CONSTITUTIONAL LAW II BAR/BRI REVIEW

OVERALL OUTLINE: I. Federal Judicial Power II. Federal Legislative Power III. Federal Executive Power IV. Federalism V. Constitutions Protection of Individual Liberties VI. Due Process VII. Equal Protection VIII. Freedom of Speech V. THE STRUCTURE OF THE CONSTITUTIONS PROTECTION OF INDIVIDUAL LIBERTIES A. Is There Government Action? (1) The Constitution applies only to the government; Private conduct does not have to comply with the constitution. Applies to government at all levels of government (federal, state and local) Applies to acts of government officers at all levels (federal, state and local) Freedom of speech means that the government cannot tell you what you can and cannot do. State-Action Doctrine is a misnomer (2) Congress by Statue May Apply Constitutional Norms To Private Conduct If a private co. discriminates based on race, EP is inapplicable Congress can adopt statutes prohibiting rac a. Pursuant to the 13th Amendment, Congress can prohibit private race discrimination. o 13th Am prohibits slavery. People cannot be or own slaves o Section 2 authorizes Congress to adopt laws to enforce it. b. Pursuant to the Commerce clause, Congress can apply constitutional norms to private conduct c. Pursuant to Section 5 of the 14th Amendment, Congress cannot regulate private behavior (3) Exceptions: a. Public Functions Exception o -If a private entity is performing a task that has been traditionally/exclusively done by the government, the Constitution applies o -Running a town is okay o -white Primary cases: TX refused to allow AAs to vote. Violated Constitution even though political parties were private entities. Holding an election was traditionally/exclusively done by the local government o -Jackson v. Metro Edison: Utility co. terminating customer service (private). Already est that before govnt owned utility co. cuts off service, must provide due process. Customer argued private utility should do same b/c of monopoly. Supre. Ct.: Running a utility is not a task that has been traditionally/exclusively done by govnt b. Entanglement Exception 1

o If the govnt affirmatively authorizes, encourages or facilitates unconstitutional conduct, the constitution applies. o Problem: The cases dont fit neatly together. Many inconsistencies that Sup Ct never reconciles. o Be familiar with leading cases: 1) Shelly v. Kramer: Courts cannot enforce racially restrictive covenants. Racially-restrictive covenant is a contract between members of a neighborhood that they wouldnt sell homes to Blacks or Jews. For this to be allowed 2) Burton v. Wilmington Parking Authority: There IS state action when the government leases premises to a restaurant that racially discriminates. 3) Norwood v. Harrison: There IS state action when the government gives free books to private schools that racially discriminate. 4) Randall Baker v. County: There is NO state action when a private school that was over 99% funded by the government fired a teacher because of her speech. 5) NCAA v. Tarkanian: There was NO state action when the NCAA ordered the suspension of a basketball coach at a state university. -Pattern: when race involved, seems Supreme Court does apply the Entanglement Exception 6) Brentwood Academy v. TN Athletic Assn: There IS state action when a private entity regulates interscholastic sports within a state. 7) Mooslodge v.: There is NO state action when a private club with a liquor license in the state racially discriminates. A. The Application of the Bill of Rights (1) The Bill of Rights Applies Directly Only to the Federal Government. (2) The Bill of Rights is Applied to State and Local Governments Through its Incorporation of The Due Process Clause of the 14th Amendment B. Provisions that Have Ne Provisions that have never been deemed to apply to State and Local Governments: a. 2nd Amendment Right to Bear Arms b. 3rd Amendment Right to not Have a Soldier in a Persons Home c. 5th Amendment Right to Grand Jury indictment in Criminal Cases -before a person can be tried in Federal court, must have GJ indictment but state doesnt have to grant this d. 7th Amendment right to jury trial in Civil Cases. e. 8th Amendment right against excessive fines. C. The Levels of Scrutiny

Three Levels: (1) Rational Basis Test: A law is upheld if it is rationally related to a legitimate government purpose. -The governments objective need only be some conceivable purpose and the means chosen just has to be a reasonable/rational way to achieve the end. -tremendously deferential to the government -government usually wins under RB review -the challenger has the burden of proof. -in order for a law to be struck down, challenger must prove either that there is no 2

(2) Intermediate Scrutiny: A law is upheld if it is substantially related to an important government purpose. -The governments objective is more than legitimate. -Courts will look only to the governments actual objective. Conceivable purpose isnt good enough. -Means chosen has to be substantially related to achieve end: Doesnt have to be least restrictive or narrowly tailored. -Doesnt have to be the best or least restrictive. -Government has the burden of proof. (3) Strict Scrutiny: A law will be upheld if it is necessary to achieve a compelling government purpose. -The governments objective must be more than legitimate or important. -Ct has to believe that governments objective is vital/compelling. -Means must be necessary to obtaining the objective -Least restrictive alternative analysis: No less discriminatory alternative can achieve the objective. -Most exacting type of review: govnt must have compelling purpose. Ct will look at govent actual objective. -Govnt usually loses and Govnt has the burden of proof. VI. DUE PROCESS A. Procedural Due Process -refers to the procedures a government must follow before it can take away a persons life, liberty, and property (1) Has there been a deprivation of life, liberty or property? a. Definitions: 1) Deprivation of liberty occurs if there is the loss of a significant freedom provided by the Constitution or a Statute. -i.e., its the written/positive law (constitution and statutes) that create liberty interests. -less obvious examples of liberty interests -except in an emergency, before an adult can be civilly committed, there must be notice and a hearing (institutionalizing someone is -when a parent institutionalizes a child, there need only be a screening by a mutual factfinder. Assumes parents act in the best interests of the children even if they institutionalize their child. -harm to reputation by itself is not a loss of liberty. Paul v. Davis (1976): Louisville KY had practice of posting picturesonly if a person can prove a tangible, economic loss, then amounts to loss of liberty -prisoners rarely have liberty interests. 2) Deprivation of property occurs if a person has an entitlement and that entitlement is not fulfilled. -Prior to late 1960s Sup Ct. drew distinction between rights and liberties -No DP if right taken away, only DP if liberty taken away -New magic word: Entitlement -Entitlement exists if a person has a reasonable expectation to continued receipt of a benefit. -Two Examples: -a person works for govnt and promised job for next year. In middle of year, person gets fired and sues that govnt should have provided DP. Yes. Person had reasonable expectation that DP would be provided -Roth v. Board of Regents: Roth worked for U. Wisc on year-to-year K w/c said Roth should have no expectation to be renewed. Sued for DP on renewal. Govnt not required to give Roth DP. Though rights taken away, no entitlement b. Government Negligence is Insufficient to State a Claim under Due Process -to have a claim under DP there has to be an intentional or at least a reckless government act. 3

-Daniels v. Williams: Prisoner slipped on a pillow negligently left on a prison step. Sued thatGovne negligence isnt enough, requires an intention or at least a reckless govnt act. -In emergency situations, government is liable only if officers conduct shocks the conduct -Sacramento County: High speed chase killing 16 year old boy. DP violation of boys life. Must show officers acted with intent to c. Generally the Government has no duty to protect people from privately inflicted harms -DeShane v. Winnebego: Joshua Deshaney suffered irreversible brain damage from his father. Govnt had no duty to protect Josh from his father. Only if govnt literally creates the danger does the govnt have duty to provide protection **Only if (1) is found, need you go to (2)** (2) What procedures are required? a. Test -Matthews v. Eldridge: 3-part balancing test used by Supreme Court 1) The importance of the interest to the individual -the more important the interest, the more in the way of procedural 2) The ability of additional procedures to increase the accuracy of the factfinding -The more the court believes that additional procedures will lead to better, more accurate decisions, the more likely it is that a court will require them. 3) The governments interest in administrative efficiency. -The court looks to the govnts interest. The more expensive the additional procedures will be, less likely court will require them. **With 3-part test, courts have a lot of discretion** b. Examples: 1) Before welfare benefits can be terminated, there must be notice and a hearing [before they are cut off] -Goldberg v. 2) When Social Security Disability benefits that are terminated, there need only be post-termination hearing. -Matthews v. Eldridge 3) When a student is disciplined by a public school there must be notice of the charges and an opportunity to explain. But, there doesn thave to be a trial-type hearing. 4) Before a parents right to custody of a child can be permanently terminated, there must be notice and a hearing. 5) Punitive damage awards require instructions to the jury and judicial review to ensure reasonableness. 6) Except in exigent circumstances, pre-judgment attachment or government seizure of assets must be preceded by notice and a hearing. -If the govnt through its courts attaches or seizes someones property, the ability of a person to use or sell property is taken awaythats why notice precedes. -Exigent if there is reason to believe person would get rid of property before notice and a hearing. -One qualification: Due Process does not require an innocent owner defense to government seizure. -Bennis v. Michigan: **If no deprivation, analysis stops. If there is deprivation, do three-part test.** B. SUBSTANTIVE DUE PROCESS 4

(1) Definition: Whether the Government has an adequate for taking away a persons life liberty or property. Whether there is sufficient substantive justification (a governments reason) (2) The Constitution provides only minimal protection for economic liberties. a. Only a Rational Basis test is used for laws affecting economic rights -1st 3rd of 20th C: Lochner era. Supreme Ct: Freedom of contract was a fundamental right and laws that interfered with such had to meed strict scrutiny. -Since 1937, Sup Ct: Only rational basis review removes government regulation to an economic right??? b. Takings Clause -found in 5th Amendment: Government may take private property for public use but it must pay just compensation. -Know: 1) Is there a taking? -Two alternative ways of finding a taking: -Possessory Taking: Govnt confiscation or physical occupation of property is ALWAYS a taking!!! It doesnt matter how small the amount of property involved is. -Regulatory Taking: Govnt regulation is a taking if it leaves no reasonable economically viable use of the property. Important to remember that regulation is NOT a taking simply b/c it decreases the value of a persons property. Penn Central v. NYC: Even govnt decreased value of investment, still left economically viable alternative. Lucas v. South Carolina: Since govnt is preventing ANY economically viable use..taking. Know: Government conditions on the development of property must be justified by a benefit that is roughly proportionate to the burden imposed. Dolan v. City of Tigard: Conditions are NOT a taking so long as justified by a benefit Know: A property owner may bring a takings challenge even as to regulations that were in place at the time the property is acquired. Mezollah v. Rhode Island: Know: Temporarily denying an owner of use of property is NOT a taking so long as governments action is reasonable. Is a 32-month delay in development a taking? No. government had acted reasonably If there is either a posessory or a regulatory taking, go to: 2) Is it for public use? -Government may take private property if its for public use. If not, govnt must give property back. -Sup Ct. has broadly defined public use so that government will almost always prevail. -Taking is for public use so long as the government acts out of a reasonable belief that the taking will benefit the public. Hawaii v. Midkiff 3) Is just compensation paid? -Government may take private property for public use but must pay for it. -Just compensation is determined based upon the loss to the owner (in reasonable market value terms); the gain to the taker is irrelevant. c. Contracts Clause -Found in Article I Section 10 of constitution -NO state shall impair the obligations of contracts. -Know: 5

1) The Contract Clause applies only to state or local interference with already existing contracts. doesnt apply to the fed govnt even if it is interfering with already existing contracts. Can just be sued under DP for RB review Already existing contractscant regulate terms of future contracts that have yet to be made and entered into. 2) State and local govnts may interfere with private contracts if intermediate scrutiny is met (actually, test phrased by supreme court is a little different) Substantial Impairment of K rights Govnt action must be Reasonably and Narrowly tailored to achieve a legitimate and important government purpose. (Has characteristics of both RB and Intermediate Scrutiny tests) 3) State or local Govnt may interfere with existing GOVERNMENT Ks only if Strict Scrutiny is met. (3) Privacy is Fundamental Right Protected Under Substantive Due Process -Early 20th C, Privacy is safeguarded under liberty of DP. -Strict Scrutiny used when govnt interferes with privacy rights. -Reality a. The Right to Marry is Fundamental Right b. The Right to Procreate is Fundamental Right -e.g.: Involuntary sterilization by govnt must meet strict scrutiny c. The Right to Custody of Ones Children -govnt can permanently terminate parental custody only if it proves compelling interest (neglect, abuse) -a state may create an irrebuttable presumption that a married womans husband is the father of her child. -Michael H. v. Gerald D. d. The Right to Keep the Family Together -includes more than just parents and children; includes the extended family -Moore v. City of East Cleveland -in order to be considered Family individuals must be related to one another. -Village of Belle Terre: limited # of unrelated people who could live together. e. Right of Parents to Control the upbringing of their children -to choose to send their kids to parochial school -violates DP for a court to order grandparent visitation over parents objection f. Right to Purchase and Use Contraceptives -Griswold: g. Right to Abortion -Roe: Women have a fundamental right to choose whether or not to terminate pregnancy -Planned Parenthood: Reaffirmed Roe, however, the court significantly changed law: No longer is strict scrutiny used with re to abortion rights (like it is under all other/above privacy rights) 1) Prior to viability, the government cannot prohibit abortion; Government may regulate abortion so long as not placed an undue burden on the right -viability: Time w/c fetus can survive outside the womb 6

-the so-called undue burden test replaced SS test with re to abortion rights a 24-hour waiting period for abortions is NOT an undue burden. It is constitutional. performed by licensed physicians is NOT an undue burden. State may require this. It is constitutional. Prohibition of so-called partial birth abortions IS an undue burden and thus unconstitutional. NB law applied to pre-viability abortions After viability, the government can prohibit abortions except when necessary to protect a womans life or health. 2) The government is NEVER constitutionally required to use government funds or facilities for abortions. -6 sup ct. cases all held that govnt may refuse to fund or provide abortions in govnt hospitals. 3) Spousal consent and spousal notification laws are unconstitutional. -Right to abortion belongs to each woman and noone including husband could take that right away. -Undue burden test used. 4) Parental Notice and/or Consent requirements for unmarried minors of abortions -State may require parental notice and/or consent for unmarried minors of abortionsONLY if the law creates and alternative procedure where a minor can obtain an abortion by going before a judge who will determine that minor is mature enough or in childs best interests. (provides for notice of procedure????) -Has to be a way for minor to have a judicial bypass. h. Right to Refuse Medical Treatment -Cruzan: 1) Competent adults have a right to refuse medical (even life saving) care. 8/9 Justices said this. 2) A state may require clear and convincing evidence that a person who wanted treatment withdrawn before is terminated? -States have important interest in protecting sanctity of life. State can insist on clear and convincing evidence 3) A state may prevent family members from terminating treatment for another. -State might believe that family member is acting out of conflict of interest. i. There is No Constitutional Right to Physician-Assisted Suicide. -WA v. Glucksberg: WA j. The Right to Privacy Protects the Right to Engage in Private Consensual Homosexual Activity. -Bowers v. Hardwick: opposite -Lawrence v. TX: Expressly overruled Bowers. People cannot be punished for same-sex sex acts. NO level of scrutiny articulated here. VII. EQUAL PROTECTION -Whenever govnt draws distinction between people A. An Approach to Equal Protection -any EP question or case can analytically be broken down into 3 steps (1) What is the Classification? How does the government draw a distinction among people? (2) What is the Level of Scrutiny? (3) Does the Governments Action Meet the Level of Scrutiny? (The level of scrutiny is the rule) 7

B. Constituional Provisions concerning EP (1) EP of 14th Am applies only to state and local govnt TIP: 14th Am NEVER applies to the federal govnt (2) EP is applied to the fed govnt through the DP clause of the 5th Amendment. -There is no clause in Constition w/c says fed govnt cant deny EP -Substantively C. Race and National ORigina Classifications (1) Strict Scrutiny is Use -Whenever govnt discriminates against people b/c race or national origina, SS must be met. (2) How is the existence of a race or national origin classification proven? -Two alternatives: a. If the racial classification is on the face of the law -the law in its very terms draws a distinction among people based on race. W. VA: Blacks cant serve on juries. pre-Brown: Black and white children cant attend public schools b. Alternatively, if a law is facially race-neutral, proving a racial classification requires proving both discriminatory impact AND discriminatory intent WA v. Davis: In order for person to be PO, had to pass test. AAs failed test more frequently than whites. Only rational basis review. Proof of impact not enough when law is facially race-neutral. In order to get more than RB review, must also show intent behind law. Use of peremptory challenges based on race violates EP. Laws that provide peremptory challengesImpact and intent, doesnt matter if crim or civil case, pr or def, use of challenge on race violates EP. c. How should racial classifications that benefit minorities be treated? 1) Strict Scrutiny is the test 2) Numerical set-asides require clear proof of past discrimination Sup Ct very hostile to anything that looks like quota or set aside only allowed as remedy to past discrim. c. Educational Institutions may use race as one factor in admissions decisions to benefit minorities. Bollinger: Colleges and universities have a compelling interest in a diverse student body. Public U cant add points to admissions profile. Cant use quotas and set-asides. D. Gender Classifications (1) Intermediate Scrutiny Ct added requirement: In addition that any gender discrimination must have a highly persuasive justification! Ct clearly asking for more than just intermediate scrutiny but not SS (2) How is the existence of a gender classification proven? Two Ways (identical to race): a. Classification exists on the face of the law -the law in its very terms draws a distinction among people on basis of gender. 8

 Craig: Beer purchased by men: 21 and women:18 was struck down VMI case: Only men could attend. Unconstituional. b. If a law if facially gender-neutral, classification can be proven only by proving discriminatory impact and intent City ordinances about size of person to be PO. Only rational basis review unless Ps can show that intent was behind requirement was disadvantage of women. Use of peremptory challenges on gender. (3) How should gender classifications benefiting women be treated? -Intermediate Scrutiny is test. a. Gender Classifications benefiting women based on role stereotypes are not allowed. Many that appear to benefit women perpetuate damaging stereotypes. Economically dependent women and economically independent men: Alimony law b. desiged to remedy past discrimination and differences in opportunities will be allowed SSN different formula for men and women constitutional b/c long history of wage discrimination in law E. Alienage Classifcations -against non-US citizens (1) Generally Strict Scrutiny is used must be US citizen for welfare benefitsunconstitutional civil service job must be US citizen..unconstitutional to be admitted to Bar -complicated b/c several exceptions where less than strict (2) Only a rational basis used for alienage classifications relating to self-government and democratic process BOTTOM LINE: The government may discriminate against aliens with regard to voting, serving on jury, being PO, teacher or probation officer. Government may reserve some privileges that relate to just citizens. POs, teachers, probation officers are integral to self-government.rational basis review Notary publics dont have anything to do with self-government and dem process.strict scrutiny and unconstitutional. (3) Only a rational basis test is used for congressional discrimination against aliens. Congress has plenary power to regulate immigration. (4) Intermediate Scrutiny is used for discrimination against undocumented alien children. -one supreme ct case Plyler v. Doe: TX law children of citizens and doc aliens get free education only. Supreme court says unconstitutional b/c no F. Discrimination against Non-Marital Children: Legitimacy Classifications (1) Intermediate Scrutiny -if govnt discriminates against children b/c parents not married (2) Laws that provide a benefit to all marital children and no non-marital children are always unconstitutional. 9

-Still intermediate scrutiny but such laws -Harder cases is where law provides benefit to some non-marital children but denies to others IN order to inherit from father, paternity had to be established during lifetime of father. E. All Other Types of Discrimination Receive only Rational Basis Review -Some important areas: (1) Age discrimination -never in Am History has sup ct found any age discrim to violate EP (2) Disability discrimination -City of Clebourne: zoning ordinance prevented home from being (3) Wealth discrimination -over 30 years: Poverty is not a suspect classification. (4) Economic regulations -whether challenged under DP or EP receive only RB review New Orleans v. Due: Ordinance: in order to be a push-cart vendor, person must have already worked there for at least 8 years. (5) Sexual orientation Roemer v. Evans: CO amendment 2 adopted by voters repealing all laws protecting gays and lesbians from discrim. F. Fundamental Rights Protected Under Equal Protection -The following found and protected under EP (1) Right to travel -keep in mind that in 1999, Sup Ct said also protected under PIs clause of 14th Amendment a. Laws that prevent people from entering or leaving state must meet strict scrutiny -CA law: No person can move in state unless can prove means to support themselves. Unconstituional b. Durational residency requirements must meet strict scrutiny -where a person who has lived in a jurisdiction for specific amount of time in order to get benefits Shapiro v. Thompson: Chilling effect. Strict Scrutiny. Unconstituional c. Only a Rational Basis Test is used for restrictions on foreign travel -There is NOT a fund right to international travel (2) Right to Vote a. Laws that keep some citizens from voting must meet strict scrutiny. Poll taxes that require people pay fee in order to vote are unconstitutional therefore SS and unconstitutional b. One person, one vote must always be maintained. -for any elected body, all districts must be about equal in population. -prior to 60s many state legislatures were battling 10

c. At large elections are allowed unless there is proof of a discriminatory purpose. -Where ALL voters vote for ALL representatives City of Mobile v. Bolden: 3 person city council. Could have divided district in 1/3s but let people cast 3 votes for 3 people. Predominantly white. Proof of impact not enough. d. Use of race in drawing election districts to benefit minorities must meet strict scrutiny -5 cases in 90s all said: If the government uses race as a predominant factor in drawing election districts e. Counting uncounted votes in a presidential election without preset standards, violates EP -Bush v. Gore: (3) Education is NOT a Fundamental Right Rodriguez v. San Antonio Board of Education: funding public schoolsSupreme Court rejected EP challenge even though poor areas taxed more than wealthy areas so less to spend on education. VIII. FREEDOM OF SPEECH A. Free Speech Methodoligy (1) Distinction between content-based and content-neutral laws a. Content-based laws generally must meet strict scrutiny. -two alternative ways of finding that a law is content-based: 1) Subject-matter restriction: where application of the law depends on the topic of the speech. Chicago had ordinance: No picketing in residential neighborhoods unless labor protest. This is Subject matter, content based restriction and unconstitutional MN law: Candidates for judicial office cant make statements about disputed legal or political issues. Unconstitutional. 2) Viewpoint Restriction: Where application of law depends on the ideology of the message. If a city: Pro war demonstrations allowed in park. Anti-war not allowed. D.C. ordinance: NO demonstrations within X feet if critical of foreign b. Content-Neutral Laws only have to meet Intermediate Scrutiny -if a law applies to all speech, whatever topic or viewpoint, content-neutral. No parades or demos in city park. (2) Prior Restraints -a Prior Restraint is a judicial order when an administrative system that stops speech before it occurs a. Court orders stopping speech must meet Strict Scrutiny Classic: Order preventing speech from happening Pentagon Papers: Fed govnt wanted order to prevent NY Times publishing info re govnt involvement in War. b. The Government may require a license for speech only if it has an important reason for licensing and there are clear criteria leaving no discretion to licensing authority City ordinance: In order for demo, need permit, on first come first serve basis. Interest in not more than one group having demo at same time -also has to have procedural safeguards 11

(3) Vagueness and Overbreadth a. A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what speech is allowed. Vague laws violate DP. But Sup Ct. especially concerned about vague laws that violate speech b/c such regulations will potentially chill free expression. City ordinance: sale of any books tending to corrupt morals of youth were prohibited b. Overbreadth: A law in unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated City Ordinance: Prohibiting all live entertainment to close down a nude dancing. Even assuming nude dancing not protected, this law does much more than that by (4) Symbolic Speech -The government may regulate conduct that communicates if it is an important interest unrelated to suppression of the message. And if the impact on communication is no greater than necessary to achieve the governments purpose After bar exam, someone upset and beat up bar examiner, arguing freedom of speech. Stopping violence is an important govnt interest. Flag-burning is constitutionally protected speech (Govnt cant prohibit flag-burning as form of expression) Draft card burning is not protected speech. (OBrien: Govnt has important interest in facilitating) Nude dancing is not protected speech. (City of Eric and Glen Theatres Cases) Burning a cross is protected speech UNLESS it is done with the INTENT TO INTIMIDATE (VA v. Black: Govnt cant ban all cross burning. BUT, can if govnt can prove in specific instance it was done with intent to threaten or intimidate.) Contribution limits in election campaigns are constitutional; Expenditure limits are unconstitutional (Govnt may limit the amount person may contribute to person or committed but not amount that person spends overall.) (5) Anonymous Speech is Protected by the 1st Amendment -People have a 1st Amendment right to speak without disclosing their IDs. B. What Types of Speech are Unprotected or Less Protected by the 1st Am. -So govnt can prohibit and punish (1) Incitement of Illegal Activity: Unprotected -Modern Test (Brandenburg): Govnt may punish advocacy if there is a substantial likelihood of imminent illegality and if the speech is directed at causing imminent illegality. (2) Obscenity and Sexually Oriented Speech a. 3-Part Test for Obscenity (Miller v. CA) (all parts must be met): 1) The material must appeal to the prurient interest -Prurient interest refers to a Shameful or immoral interest in sex. That which excites lustful or lascivious thoughts. 2) The material must be patently offensive under the law prohibiting obscene material. -Any law local, state or federal that prohibits obscene material has to describe w/c depictions it deems patently offensive and material has to fit within that definition. 3) Taken as a whole the material must lack serious, redeeming artistic, literary, political, or scientific value. 12

B. Local Governments May Use Zoning Ordinances to Regulate the Location of Adult Bookstores in Movie Theatres -Young: Detroit limited # on any city block. Upheld in interest of preserving character of neighborhoods. TIP: Errogenous zoning is permissible C. The Government May Ban Child Pornography Even if it is Not Obscene -Has to use children in its production in order to be considered child pornography. -Ashcroft: If no children used, cant be child porn D. The Government May Punish Private Possession of Child Porn But it May Not Punish Possession of Obscene Materials -Stanley v. GA: -Osborn v. Ohio: Above rule. Govnt has compelling interest in drying up market for child porn. E. The Government May Seize the Assets of Businesses Convicted of Obscenity Law Violations -Alexander: MN convicted F. Profane and Indecent Language is Generally Protected by the 1st Amendment -Coehn v. CA: Fuck the Draft. Boy convicted of disturbing peach w/c was overturned by Sup Ct. To censor words is to censor ideas. Exceptions: 1) TV and Radio broadcasts -FCC v. Pacifica: Broadcast media is uniquely intrusive of the homeonly applies to free broadcasts 2) Schools -Bethel v. Frasier: speech filled with sexual innuendo. Schools are responsible for teaching civilized discourse. (3) Commercial Speech a. False and Deceptive advertising is not protected by the 1st Amendment -the govnt may prohibit and punish b. Even True ads that inherently risk deception may be prohibited KNOW: 1) States may prohibit professionals from advertising and practicing under trade names. -TX law: Optometrists cant adopt trade names 2) States may prohibit attorneys from in-person solicitation of clients for profit. -If a lawyer does this, there is no one to monitor this and too great a danger. -By letter is okay 3) States cannot prohibit accountants from engaging in in-person solicitation of clients for profit. -FL law: applied to accountants the above lawyer rule. Edenfeld: Attorney are trained in advocacy so trust involved. Accountants trained in accuracy so no need to trust. c. Other government rgualtion of commercial speech is allowed if it meets intermediate scrutiny. -FL law: Attys cant solicit accident victims for 30 days after accident. Privacy right of accident. d. Government regulation of commercial speech must be narrowly tailored but it does not have to be least restrictive alternative. 13

(4) Defamation -Defamatory speech: libel and slander are unprotected by 1st Amendment. -Limited recovery for defamation a. If the P is a public official or running for public office, Pl can recover for defamation only by proving with clear and convincing evidence the falsity of the statement and actual malice. -Essential to be open and robust today but those running for public office -Actual Malice: D knew statement was false or acted with reckless disregard of the truth. b. If the P is a public figure, the same rules apply as with public officials -No precise definition of public figure but generally those who thrust themselves in limelight, access to media (celebrities are quintessential public figures.) c. If the P is a private figure and the matter is of public concern, the Pl can recover compensatory damages by proving falsity of statement and negligence of the speaker. -Private figures (not public official or figure) -Matter w/c public has legitimate interest -Recovery or presumed (automatic, preset by law) or punitive (to punish) damages requires proof of actual malice. d. If the Pl is a private figure and matter is not of public concern, presumed and punitive damages do not require proof of actual malice. (5) Privacy and the 1st Amendment a. A state may not allow liability for the truthful reporting of information lawfully gained from public records. (2) Exceptions: o (a) Public Functions Exception: If a private entity is performing a tastk that has been traditionally/exclusively done by the govnt then the constitution applies (Marsh v. Alabama: Co. town; Private co. ran all town) (White Primary Cases: TX refusing to allow AAs to vote) This is a narrow exception (Jackson v. Metro Edison: private utility co. terminated customer servicepublic had to give due processSC said running a utility has not traditionally, exclusively done by state govnt) o (b) Entanglement Exception: If the govnt affirmatively authorizes, encourages, or facilitates unconstitutional conduct, the constitution applies Problem: The cases dont neatly fit together Most Important Cases: i. Courts cannot enforce racially restrictive covenants (contract among members of a neighborhood that they wont sell property to blacks or jews) ii. There IS state action: If the govnt leases premises to a restaurant that racially discriminates (Eagle Restaurant/Wilmington Delaware case) iii. There is NOT state action when a private school that is over 99% funded by the government fired a teacher b/c of her speech. iv. There is NOT state action when the NCAA orders the suspension of a basketball coach at a state university. (Tarkanian) v. There IS state action when a private entity regulating interscholastic sports of the state suspends a school (Tennesses Athletic Association: Wanted to impose sanctions/suspensions on a private school..SC ruled against TAA saying that there 14

B.

was state action. Whats the difference between NCAA and TAA is that NCAA operates all over the country whereas TAA operates only in one state) vi. There is NOT state action when a private club with a liquor license in the state racially discriminates. (Moose Lodge case: Refused to serve AAsSC ruled in favor of ML no state action so it could keep liquor license and continue to discriminate) APPLICATION OF THE BILL OF RIGHTS (1) Bill of Rights applies directly only to the federal govnt (2) Bill of Rights is applied to state and local govnts through their incorporation of the due process clause of the 14th Amendement o Selective Incorporationists: Only some provisions are fundamental and only these apply to state and local govnts o Fundamental Incorporationsist: ALL provisions apply o Never has SC held that ALL provisions of DP clause of 14th Amendement apply to state and local govnt o LIST OF PROVISIONS THAT HAVE NEVER BEEN DEEMED INCORPORATED: o (a) 2nd Amendment Right to Bear Arms: o (b) 3rd Amendment Right to not have soldiers quartered in a persons home o (c) 5th Amendment Right to grant jury indictment in criminal cases. Before a person can be tried for a federal crime, there must be grand jury indictment. o (d) 7th Amendment Right to jury trial in civil cases. o (e) 8th Amendment Right against excessive fines. o OTHER THAN ABOVE PROVISIONS, ALL OTHERS APPLY UNDER INCORPORATION OF BILL OF RIGHTS LEVELS OF SCRUTINY Whenever SC deals with civil rights depends on level of scrutiny THREE LEVELS: (1) Rational Basis Test: Law is upheld if it is rationally related to a legitimate government purpose. o Legitimate, permissible for govnt to do. o ACTUAL objective does not have to be legitimate..Means only have to be rational, reasonable o Tremendously deferential to govnt because govnt almost always wins o Challenger has the burden of proof (2) Intermediate Scrutiny: A law will be upheld if it is substantially related to an important govnt purpose. o Govnts goal must be more than something that is legitimate for the govnt to do. o Ct will only look to govnts actual purpose. A conceivable important purpose is not enough o Means chosen must be substantially relatednearly tailored (good way, not best way--least restrictive alternative) o Govnt has the burden of proof (3) Strict Scrutiny: A law will be upheld only if it is necessary to achieve a compelling government purpose o Govnts purpose must be something that is more than just legitimate for the govnt to do o Ct. will look only to govnts ACTUAL objective and if is compelling o Means must be absolutely necessary to achieve goal 15

C.

o In order for the govnt to show that the law is necessary it must prove that NO LESS RESTRICTIVE ALTERNATIVE CAN ACHIEVE ITS OBJECTIVE o Govnt usually loses o Govnt has burden of proof VI. DUE PROCESS 5th and 14th Amendmentscant deprive A. PROCEDURAL DUE PROCESS (1) Has there been a deprivation of Life, Liberty, or Property? a. Definitions: i. A deprivation of liberty occurs if there is a loss of significant freedom provided by constitution or statute. (e.g. except in an emergency, before an adult can be civilly committed there must be notice and a hearing) (harm to reputation by itself is not a loss of liberty) ii. Entitlement: a person has a property interest if there is entitltement. E exists if there is a reasonable expectation to continued receipt of a benefit. EXAMPLES 1. Person works for govnt and govnt tells individual that B. SUBSTANTIVE DUE PROCESS 1. Asks whether the govnt has with adequate reason to take away a persons life, liberty or propertysubstantive justification. a. Safeguard Economic liberties b. Protect Privacy 2. Constitution provides only minimal protection for economic liberties. a. Only a rational basis test is used for laws effecting economic rights. b. Takings clause: found in 5th amendment. Govnt may take private property for public use but it must pay just compensation. Doesnt use test of levels of scrutiny. ANALYSIS: i. Is there a taking? Possessory Taking: Govnt confiscation or physical occupation of property is always a taking that is possessory. Regulatory Taking: Govnt regulation is a taking if it leaves no reasonable, economically viable use of the property. REMEMBER: Govnt regulation is not a taking simply b/c it decreases value of someones property (eg. Penn Central v. NYC) (Lucas v. SC Coastal commission) Is it for public use? Govnt may take private property only for public use. If not, gvnt must give it back. SO long as govnt acts out of reasonable belief that the taking will benefit the public. SC reaffirmed in June 2005 (Kelo v. City of New London) Is just compensation paid? Measure of payment is just compensation. Just compensation is measured in terms of the loss to the owner. Gain to the taker is irrelevant. In reasonable market value terms. Contracts Clause: No state shall impair the obligations of contracts i. ii. State and local govnts can interfere with existing private contracts if intermediate scrutiny is met. if actions are reasonably and narrowly tailored to achieve iii. State and local govnts can interfere with existing govnt contracts only if they meet strict scrutiny. 16 c. iii. ii.

3.

Privacy is a fundamental right protected under substantive due process. a. Right to marry is a fundamental rightgovnt can interfere with or prevent marriages only if it meets strict scrutiny b. Right to procreate or sterilize is a fundamental right c. Right to custody of ones children is a fundamental right d. Right to keep the family together is a fundamental right (Moore v. City of East Cleveland) (Village of Belle Terre v. Boras) e. Right of parents to control the upbringing of their children is a fundamental right f. Right to purchase and use contraceptives is a fundamental right (Seminole case) g. Right to abortion is a fundamental right (Roe v. Wade) (Planned Parenthood v. Casey: SC significantly changed law. No longer is strict scrutiny used under abortion rights.) Current Law with regard to abortion: i. Prior to viability, govnt cannot prohibit abortion. Govnt may regulate abortion so long as it does not place an undue burden on the right. Viability is the time at which the fetus can survive outside the womb. ii. Government is never requires to pay for or use its facilities for __or abortions iii. Spousal consent or spousal notification laws are unconstitutional (i.e., no govnt may require as a condition VII. EQUAL PROTECTION Whenever govnt A. APPROACH TO EQUAL PROTECTION THREE STEPS: (1) What is the classification? How is the govnt drawing a distinction among people? (2) What is the level of scrutiny? (3) Does the govnts action meet the level of scrutiny? B. CONSTITUTIONAL PROVISIONS CONCERNING EQUAL PROTECTION (1) Equal protection clause in 14th Amendment applies only to state and local govnts (**Remember: the 14th A never applies to the federal govnt**) (2) Equal protection applies to the federal govnt through the due process clause of the 5th A. There is no provision C. RACE AND NATIONAL ORIGIN CLASSIFICATIONS (1) Strict Scrutiny is used: When someone is discriminated against (2) How is the existence of a race or national origin classification proven? o (a) classification exists on the face of the law: the law in its very terms draws a distinction among people o (b) alternatively, if a law is facially race-neutral, proving a racial classification requires demonstrating both discriminatory impact and discriminatory intent (Washington v. Davis: D.C. had requirement that in order for person to be police officer, had to pass a test. Statitstics showed AAs predominantly failed test. Ct said only rational basis review (3) How should racial classifications benefiting minorities be treated? o (a) Strict scrutiny is used: It doesnt matter whether the racial classification is invidious or benign o (b) Numerical Set asides require clear proof of past discrimination: (US v. Paradise: Alabama state police engaged in intentional race discrimination in hiring and promotion.) o (c) Educational institutions may use race as one factor in admissions to benefit minorities. (Grueter v. Bolinger: If colleges and universities have a compelling interest 17

in having a diverse student bodycant set aside a set number of slots for minority students nor can they add points to application o (d) Gender classifications: i. Intermediate scrutiny is used; if the govnt discriminates on the basis of sex (US v. Virginia) ii. How is the existence of a gender classification determined? Two ways: a. classification exists on the face of the law: the law by its very terms draws a distinction between people on the basis of gender (Craig v. Boren) (US v. VA: Only men could attend VA military institute) b. alternatively, if a law was facially gender neutral proving a gender classification requires proving both discriminatory impact and discriminatory intent. iii. How should gender classifications that benefit women be treated? Under intermediate scrutiny. a. gender classifications benefiting women based upon role stereotypes are not allowed. SC: many laws that benefit women in effect perpetuate stereotypes ( b. gender classifications benefiting women are allowed if they are to remedy past discrimination or differences in opportunities. D. ALIENAGE CLASSIFICATIONS (laws discriminating against non-citizens) (1) General Rule is Strict Scrutiny: (2) Only a Rational Basis test is used for alienage classifications related to self government and the democratic process: BOTTOM LINE: The govnt can discriminate against aliens with regard to voting, serving on a jury, being a police officer, a teacher, or a probation officer. Govnt can reserve some privileges just for citizens. (3) Only a rational basis test is used for congressional discrimination against aliens: SC says congress has plenty of power to regulate immigration. (4) It appears that intermediate scrutiny is used for discrimination against undocumented aliens. (Plyler v. Dove)

E. DISCRIMINATION AGAINST NON MARITAL CHILDREN: LEGITIMACY CLASSIFICATIONS (1) Intermediate Scrutiny is used (2) Law that provided benefit to all marital children but no non-marital children are always unconstitutional. F. ALL OTHER DISCRIMINATION ONLY HAS TO MEET RATIONAL BASIS REVIEW UNDER EQUAL PROTECTION (1) Age discrimination gets only rational basis review. (2) Disability discrimination receives only rational basis review (City of Clebourn v. Clebourn Living Center) (3) Wealth discrimination receives only rational basis review: Discrimination against poor is not (4) Economic regulations receive only rational basis review: Whether a govnt economic regulation is challenged under due process or equal protection is reviewed under rational basis (New Orleans v. ). (5) Sexual Orientation discrimination.(Roehmer v. Evans: Colorado intiative passed by voters protecting gays and lesbians from discrimination 18

G.

VIII.

FUNDAMENTAL RIGHTS PROTECTED UNDER EQUAL PROTECTION (1) The right to travel is a fundamental right (Saenz v. Roe: fundamental right under privileges and immunities clause of 14th A) o (a) Laws that prevent people from moving into a state must meet strict scrutiny. o (b) Durational residency requirements must meet strict scrutiny. Where a person must live in a jurisdiction in order to (Shapiro v. Thompson: In order to receive benefits from state, must have lived in state for a year. SC, under strict scrutiny, ruled law unconstitutional) o (c) Only a rational basis test is used for restrictions on foreign travel. SC says there is not a fundamental right to international travel (2) The right to vote is a fundamental right o (a) Laws that prevent some citizens from voting must meet strict scrutiny (e.g. Pole taxes: requirement that people pay fee to vote is unconstitutional) o (b) One person, one vote must always be maintained. (ie. For any elected body, all districts must be about equal in population. o (c) At large elections are allowed unless theres proof of a discriminatory purpose (when all voters vote for other) (City of Mobile case: Had at large election, where every voter cast 3 votes for the 3 SC found it constitutional. Proof of discriminatory impact was not enough) o (d) Use of race in drawing election districts to benefit minorities must meet strict scrutiny. o (e) Counting uncounted votes in a presidential election without preexisting standards violates equal protection (Bush v. Gore) (3) Education is not a fundamental right under equal protection or the constitution (Rodriguez v. San Antonio Board of Education: Result: poor areas get taxed at higher rate but get much lessSC upheld constitutional) THE FIRST AMENDMENT A. FREEDOM OF SPEECH (FREE SPEECH METHODOLOGY) (1) Distinction between content-based and content-neutral laws o (a) Generally, content based restrictions must meet strict scrutiny. There are two alternative ways to find content based: i. Subject matter restriction: Where the application of the law depends on the topic of the speech ( ii. Viewpoint restriction: Where the application of the law depends on the ideology of the message (If a city says pro war demonstrations are allowed in park and not anti war demonstrations.) o (b) Content neutral laws only have to meet intermediate scrutiny i. The law applies to all speech whatever the subject matter, whatever the viewpoint (2) Prior restraints: A judicial order for an administrative system that stops speech before it occurs o (a) Court order preventing speech must meet strict scrutiny (Torre v. Cochran argued by Chemerinsky) (3) Vagueness and OVerbreadth o (a) Vagueness: A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted B. FREEDOM OF RELIGION C. Establishment Clause a law violates establishment clause if it violates any part of the clause (McCrury County v. ACLU) 19