Super Con-Law 1

CONSTITUTIONAL LAW 2004-2005 LEON FRIEDMAN

 CHAPTER 1: THE NATURE & SOURCES OF THE SUPREME COURT’S

AUTHORITY______________________
O JUDICIAL REVIEW
 Marbury v. Madison (1803) pg. 3
 Facts: Marbury (P) was a last-minute judicial appointee of outgoing president Adams, whose
commission was not delivered to him before Adams left office. Jefferson, the incoming
president declined to deliver the commission. §13 of the Judiciary Act of 1789 gave the Supreme
Court the power to issue writs of mandamus to any person holding office, under the authority of
the US, however it was unclear whether it gave the Supreme Court original jurisdiction in
mandamus cases b/c the statue said the Supreme Court shall also have appellate jurisdiction from
the circuit courts and courts of the several states. If §13 grants appellate jurisdiction then
Marbury’s case had to be dismissed b/c didn’t have right to originally sue in the Supreme Court
but then Marshall couldn’t use it so they say §13 authorizes the Supreme Court to take original
jurisdiction over his mandamus action and then declare §13 unconstitutional.
 Holding (Marshall): Where the Constitution of the US, as interpreted by the Supreme
Court, conflicts with laws enacted by Congress, the Supreme Court may declare such laws
unconstitutional and invalid pursuant to its judicial review power.
 Reasoning:
O Article III §2, cl 1. no federal court, including the supreme court, may hear a case or
controversy that does not fall within the scope of the federal judicial power defined by article
III §2, cl 1.
O Marbury did not have the right to bring his case in original jurisdiction b/c his suit arose
under the law of the US he had only appellate jurisdiction. Marshall rejected application of
the exceptions clause of Article III §2 b/c it allows Congress to move cases with original
jurisdiction to the appellate group and reverse and that therefore §13 was constitutional
O Marshall holds that the Exception Clause allows Congress to remove cases entirely from the
Court’s appellate jurisdiction but not move from the appellate to the original jurisdiction and
since that is what §13 of the Judiciary Act did the court held it to be unconstitutional and
dismissed Marbury’s suit for lack of jurisdiction—thereby also establishing the principle that
the federal judiciary may review the constitutionality of acts of Congress
O US Constitution Article III
 § 1: “The judicial power of the US shall be vested in one court, and other inferior
courts as Congress may from time to time ordain and establish.”
 § 2: The judicial power shall extend to...
 All cases in law or equity arising under the Constitution or federal laws (Appellate
Jurisdiction)
 All cases effecting ambassadors, public ministers, or counsel (Original Jurisdiction)
 All cases admiralty or maritime (Appellate Jurisdiction)
 All cases w/the US as a party (Appellate Jurisdiction)
 All controversies b/w two states (Original Jurisdiction)
 All controversies b/w a state and the citizens of different states (Original Jurisdiction)
 All controversies b/w two citizens of different states (Appellate Jurisdiction)
 All controversies b/w two citizens of the same state claiming property in different
states (Appellate Jurisdiction)
 All controversies b/w a state and aliens (Original Jurisdictions)
 All controversies b/w a citizen and aliens (Appellate Jurisdiction)
O Historic Antecedent: The Federalist Papers # 78
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 The legislative branch is the most powerful of the branches, but for this reason they
cannot have the final say in constitutionality
 The Supreme Court should have the power to declare laws unconstitutional b/c the
judiciary is the “least dangerous branch” b/c they do not have to cater to political whims
for election
 Policy: It is emphatically the province and the duty of the judicial department to say what the law
is
 Professor: Mandamus = An order to compel an officer to perform a duty (“Do your duty”)
O 28 U.S.C. § 1361, “Executive Department Mandamus”: The district court shall have
original jurisdiction of any action in the nature of mandamus to compel an officer or
employee of the US to perform a duty owed to the plaintiff (an “officer of employee of the
US” is always within the Executive Department)
O 28 U.S.C. 1651(a), “Judicial Department Mandamus”: The Supreme Court and all courts
established by an act of congress may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles of law (Can only be
applied to the judiciary
 Note: After Marbury, judicial review was infrequently used. The next use in the federal context
was Dredd Scott (1868). As of today, the Supreme Court declares one federal law
unconstitutional every year and a half.
 Cooper v. Aaron (1958) pg. 26
 Facts: Little Rock, Arkansas school board made efforts to comply with Brown but was blocked
by Governor who placed the school off limits to blacks and called out the National Guard. State
officials claimed that they were not bound by the Supreme Court decision.
 Holding: Supreme Court decisions regarding the constitutionality of the law are not only
binding on the parties litigating the case before the court, but are to be treated as the
Supreme Law of the Land applicable to all branches of government and the various states.
 Dickerson v. United States (2000) pg. 29
 Facts: Congress passes legislation to overrule Miranda
 Holding: Congress cannot overrule a constitutional interpretation of the Supreme Court by
statute
 Note: Congress may use a statute to overrule decisions that do not fall under the constitution (e.g.
rules of evidence and procedure, tax interpretations, etc.)
 Exception: The Amendment Process
 Article V permits Amendment of almost every provision of the Constitution
O Method 1: Congress, by a 2/3 vote, may propose amendments for ratification by 3/4 of the
States (rarely used)
O Method 2: 2/3 of the States may apply to Congress for the calling of a constitutional
convention for proposing Amendments (never used)
O CONSTITUIONAL AND PRUDENTIAL LIMITS ON CONSTITUIONAL ADJUDICATION
 Exceptions to Judicial Review In General
 Political Question—Not an issue for the court to decide, for the executive
 Standing—Party has no basis to bring the claim before the court
 Mootness—controversy is over
 Ripeness—nothing has happened yet
 EXCEPTION 1: POLITICAL QUESTION
 Baker v. Carr (1962) pg. 33
O Facts: An apportionment issue. Every county was permitted to elect one senator. However,
the counties had great disparities in their populations which affected the representation ratio.
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O Holding: Prominent on the surface of any case held to involve a political question is
found:
 (1) A textually demonstrable constitutional commitment to a coordinate political
party, OR
 Translation: The text of the Constitution commits the question to another branch of
government
 Example: The house shall be the judge of the journal of its proceedings and not the
judiciary b/c § 5 of the Constitution says so
 (2) A lack of judicially discoverable and manageable standards, OR
 Translation: No objective, substantive legal basis to make a decision
 Example: Vietnam case calling the war unconstitutional and that the President should
recall the troops as soon as possible cannot be decided without nonjudicial discretion
 Goldwater v. Carter (1979) pg. 40: National decision to recognize governments as
legitimate is an executive policy decision that cannot be reviewed by the court—and
all ramifications on the abrogation of treatises follow suit
 (3) The impossibility of deciding without an initial policy determination of a kind
clearly for non judicial discretion, OR
 (4) Not undertaking an independent resolution without showing proper respect to
the decision of a coordinate branch of government, OR
 Translation: Since another branch of equal power has made their decision, the
Supreme Court will not invalidate it
 Nixon v. United States (1962) pg. 41: Impeachment proceedings are Congress’ most
effective check on the judiciary, and Art. I, § 3, cl. 6 provides the Senate with the
power to “try” all impeachment proceedings.
 (5) An unusual need for unquestioning adherence to a political decision already
made; OR
 Luther v. Borden (1849): Two governments operating side by side in Rhode Island.
Member of the old government wants to execute a property judgment against member
of new government. New guy wants to sue old guy. New guy says even though you
think you’re a Marshall under the old government, we don’t recognize that and your
ass is a trespasser. The issue goes to court, and in the meantime the House of
Representatives decides to recognize the old government.
 (6) The potentiality of embarrassment from multifarious pronouncements by
various departments on one question
 Powell v. McCormack (1969) pg. 39
O Facts: Adam Clayton Powell was a flashy Harlem Congressman who put his many girlfriends
on the congressional payroll even though they didn’t do anything but suck a dick. Opponents
seize upon this hanky-panky as a way to get rid of him. Constitutional expulsion by 2/3
concurrence failed. Alternatively, they refused to seat him—a decision which only requires a
majority vote which they got. Their grounds for disqualification were his illicit affairs.
Powell brings an action in Federal court for his salary.
O Holding: This is not a political question, it is a judicial question involving the interpretation
of the Constitution that has political effects
O Reasoning: Article 2 § 1 US Constitution sets out formal requirements of age, citizenship and
residence. The House cannot create their own additional requirements for qualifications—
namely no hanky-panky.
 EXCEPTION 2: STANDING
 In General:
O Article III, sec. 2, cl. 1 of the Constitution provides that the judicial power shall extend to a
list of enumerated cases and controversies. To qualify as a Case or Controversy, a matter
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must be: (1) Concrete and non-hypothetical; (2) Not be an advisory opinion: (3) Involve
parties claiming an injury personal and concrete to them
O Advisory Opinion: Opinions on the legality of executive or legislative action that does not
involve an actual case
 Valley Forge Christian College v. Americans United for Separation of Church and State
(1982) pg.
O Holding (Rehnquist):
 Constitutional Minimums for Standing: Article III requires the party who invokes
the court’s authority to show that: (1) Personal (actual) injury as a result of the
putatively illegal conduct of the defendant; (2) Causation (that the injury fairly can
be traced to the challenged action); and (3) Redressability (that if you win, your
problems will go away)
 Prudential Principles that Bar Standing: (1) Plaintiff generally must assert his own
legal rights and interests (exception is the overbreadth doctrine); (2) Plaintiff cannot
rest his claim to relief on the legal rights or interests of third parties; (3) Cannot be
abstract questions of generalized grievances shared in substantially equal measure
by all or a large class of citizens; (4) Plaintiff’s complaint must fall within the zone
of interests to be protected or regulated by the statute or Constitutional guarantee
in question.
 Warth v. Seldin (1975) pg. 51
O Facts: Various organizations and individuals resident in the Penfield, NY metropolitan area
brought an action claiming discriminatory zoning practices which effectively excluded
persons of low and moderate income from living in the town.
O Holding: The prudential standing rules require petitioners prove causation by alleging
facts that establish a reasonable inference that they suffered an concrete injury
personal to themselves rather than asserting the legal interests of third parties
O Compare: Arlington Heights v. Metropolitan Housing (1977) (Sufficient injury-in-fact to
create standing b/c the construction company’s project was detailed and specific enough prior
to zoning law change to establish that a personal stake in the controversy existed).
 Lujan v. Defenders of Wildlife (1992)
O Facts: Environmentalist organizations brought a complaint challenging the Secretary of the
Interior’s new interpretation of the Endangered Species Act of 1973 in such a fashion as to
render it applicable only to actions within the US or high seas. Defenders of Wildlife seek to
require interpretation to cover foreign countries’ activities.
O Holding:
 The constitutional minimum requirement of personal injury requires an injury in
fact which is: (1) concrete and particularized; and (2) actual or imminent and not
conjectural or hypothetical
 The constitutional minimum requirement of redressability requires that a favorable
decision is likely as opposed to merely speculatively going to remedy the personal
injury
O Reasoning:
 Personal Injury: No. Although the deprivation of the pleasure of seeing a particular
species (“the spotted owl gives me an orgasm every time I see it”) is concrete, there is no
imminent danger b/c the plaintiffs asserted plans to visit foreign wildlife in the future
were hypothetical
 Redressability: Since the agencies funding the projects were not parties to the case, there
is no assurance that the threat of withdrawing US funding would cause the projects to be
terminated.
 Friends of the Earth v. Laidlaw (2000)
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O Facts: Members of an environmental organization brought an action against the Clean Water
Act. D’s contended that no harm to the environment took place, Ps attested that the pollutant
discharges deterred them from fishing, camping, and swimming in the water
O Holding: An injury doesn’t need to be economic to confer standing
O Professor: Other non-economic injuries include vote dilution, loss of opportunity to
participate in a racially neutral proceeding and aesthetic offenses.
 Frothingham v. Mellon (1923)
O Facts: Plaintiff brought an action to enjoin the Secretary of the Treasury from making
conditional grants b/c it increased his taxes.
O Holding: No standing exists for general grievances
O Reasoning: Same position as everybody else = No standing
 Bennet v. Spear (1997)
O Facts: Any citizen was permitted by the statute to bring a complaint under the Endangered
Species Act to enjoin. In this case, the complaint was based on the economic impact of a US
program. Standing was challenged under the zone of interest prudential requirement.
O Holding: Purely prudential standing obstacles may always be negated by express action
of Congress
 Elk Grove v. Newdow (2004)
O Facts: Establishment clause challenge to the inclusion of the words “under God” in the
pledge of allegiance that California schoolchildren were required to recite at public school.
Brought by the student’s father, an atheist, despite mother having custody rights and final
authority in parental disputes. Mother had no problem with the pledge.
O Holding: Standing may be denied where prosecution of the lawsuit may have adverse
effects on family law rights
O Reasoning: The father could have had standing if he had actual custody and the mother was
not given the right to settle parental disputes
O Note: The Supreme Court sidesteps the entire big religious issue by finding that the father
had no standing due to the State’s family law rights. This is a “new prudential” standard.
 FEC v. Akins (1998)
O Facts: Congress passed the Federal Elections Campaign Act (FEC) which did not recognize
the American Israel Public Affairs Committee as a “political committee.” A complaint was
brought by voters that the AIPAC should be recognized as a political committee and required
to make a public disclosure of funding for candidates for federal elective office. The FEC
challenges that the voters’ claims is a general grievance and that only Congress can confer
standing on this matter.
O Holding:
 Where a harm is concrete, although widely shared, standing exists
 Where Congress creates a statutory right to information, a denial of information
inflicts a personal injury
O Reasoning:
 The harm is concrete b/c voters are entitled to specific information regarding AIPAC’s
contributions
 This case is distinguishable from the factually speculative nature of the injury in Lujan
b/c the right to vote is more familiar and the necessity of information for voting is more
concrete
 Vermont Agency of Natural Resources v. US (2000)
O Facts: An unusual case b/c it deals w/ “qui tam” cases where the government permits
individual citizens to bring actions in the name of the government. Under the False Claims
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Act, private party realtors can sue fraudulent government contractors in the name of the
government and are entitled to a share of the proceeds.
O Holding: The US can assign its claim and therefore standing to a private individual b/c
the individual has an interest in the outcome
 Raines v. Byrd (1997)
O Facts: The line-item veto case. Practically every state in the union allows the governor to
knock out a whole line of expenditure appropriation in the State budget. Traditionally, no
such power existed for the President—it had to be a “yes” or “no” decision as mandated by
the Constitution’s language referring to the budget as an inseparable whole (“it”). Finally,
Congress passes a line item veto legislation in the Clinton era. Clinton signs the legislation.
Some Congressman who voted against the bill brought an action. Politically, they were
pissed b/c under the old paradigm they had more leverage to negotiate and bargain w/other
members for pet projects.
O Holding: Members of Congress have no standing b/c the alleged personal injury is
wholly abstract and widely dispersed
O Reasoning: Adequate remedy is available b/c canceled bill can be reinstated through a 2/3
vote
O Compare: Clinton v. New York (1998) pg. 69 (holding that NYC and healthcare unions have
standing to challenge President Clinton’s cancellation of NYC Medicaid relief pursuant to
the Balanced Budget Act of 1997, resulting in a loss of $2.3 Billion).
 Dept. of Commerce v. US House of Reps (1999)
O Facts: 10 million people are never counted in the census (homeless, etc...). The census
determines the weight of representation in Congress and electoral votes. The census bureau
wanted to do scientific sampling to account for the missing people. Members of Congress
didn’t like this, particularly the Republicans (homeless people are typically in big
Democratic cities). These members and voters from affected States brought a lawsuit.
O Holding: Voters have standing to challenge legislation which affects their number of
representatives
O Reasoning: The substantive decision was that sampling could be used for benefits, but not for
apportionment of representatives b/c of the Constitutional language “according to their
respective numbers” (not estimated numbers)
 EXCEPTION 3: MOOTNESS AND NON-RIPENESS
 Mootness: The claim is based on an injury that could have happened, but it didn’t and it can’t
anymore
O Roe v. Wade (1973)
 Facts: Lawsuit based on the right to an abortion brought in 1970. Case doesn’t get to
Supreme Court until 1973
 Holding: Although a lawsuit is moot (the kid was already born and put up for
adoption), the claim is justiciable if it is “capable of repetition yet evading review”
 Reasoning: Otherwise, no abortion case would ever be decided.
 Professor: This exception typically arises w/election law cases as well
 Note: Other exceptions to mootness include: (1) continuing harm to the plaintiff; and (2)
the likelihood of future reoccurrence of past harm to either the plaintiff personally or the
group he represents.
 Non-ripeness: The claim is based on an injury that hasn’t occurred yet
O United Public Workers v. Mitchell (1947)
 Facts: Attack on a section of the Hatch Act of 1940 that prohibited federal executive
branch employees from taking any active part in a political campaign. Challengers
sought declaratory judgment that the provision was unconstitutional.
 Holding: The Supreme Court will not hear a premature claim
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 Reasoning: The plaintiffs only claimed that they wanted to violate the statute, they had
not in fact violated.
O THE SUPREME COURT’S AUTHORITY TO REVIEW STATE COURT JUDGMENTS
 Martin v. Hunter’s Lessee (1816) pg. 71
 Facts: The Virginia Court of Appeals refused to obey the Supreme Court’s mandate in Fairfax’s
Devise v. Hunter’s Lessee that was contrary to its own decision that Virginia’s seizure of the
Fairfax British loyalist lands were effective. Virginia asserted that §25 of the Judiciary Act was
unconstitutional b/c the appellate power of the Supreme Court of the US does not extend to the
final decisions of the highest court within the respective State systems.
 Holding (Story): The Supreme Court may determine whether a state court has reached a
decision that in not in conformity with the constitution (federal question “arising under”
the constitution), but may not review state court decisions that merely adjudicate questions
of state law.
 Reasoning:
O The Appellate power of the Supreme Court is not limited by the terms of Article III to any
particular courts—it is the case, and not the court—that gives the Supreme Court its
jurisdiction
O §25 of the Judiciary Act states that if a State court examines the validity of a treaty or a State
law in conflict w/the Constitution, then the Supreme Court may review it
 Policy:
O If the State courts had the final word on Federal questions under the rationale of “separate
sovereign spheres” then there would be 50 separate interpretations of what Federal law is
O O.W. Holmes, “If Marbury v. Madison was decided the other way, then we would still have
the United States of America, but if Martin v. Hunter’s Lessee was decided differently then
we would not.”
 Cohens v. Virginia (1821) pg. 74
 Facts: Cohen brothers were convicted in a Virginia court for selling D.C. lottery tickets in
violation of Virginia law. Virginia argued that this case was distinguishable from Hunter’s
Lessee b/c the State of Virginia was a named party in the final State decision and the Supreme
Court was only granted original jurisdiction in cases “in which a state shall be a party” under
Article III
 Holding: The judicial power of the Supreme Court extends to all cases arising under the
Constitution or a law of the US, whoever may be the parties
 Note: Extends Hunter’s Lessee to State criminal law that arises under the Constitution
O POLITICAL RESTRAINTS ON THE SUPREME COURT: CONGRESS STRIPPING JURISDICTION
 In General
 Article III §§ 1: “The Judicial power shall be vested in the Supreme Court” in all cases and
controversies...
 The Exception Clause (Art. III, § 2) provides: “In all other cases before mentioned, the Supreme
Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under
such regulations as Congress shall make.”
O E.g. § 25 Judiciary Act  28 U.S.C. §1257 grants review of final State decisions by the
Supreme Court.
 It is counterintuitive to interpret the word “exception” as prohibiting the Supreme Court
from appellate review of everything.
 However, some cases can be limited from review by the Supreme Court
 Ex Parte McCardle (1869) pg. 77
 Facts: McCardle was a confederate publishing nasty articles about the Union. Congress passed
post civil war Reconstruction Acts that permitted the military to try Confederate loyalists before
military commissions. Lower Federal court holds in favor of the military tribunals. McCardle
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files a habeas corpus appeal to the Supreme Court under a statute which permits appeal of
conviction in District court. During the process of appeal before the Supreme Court, Congress
enacts legislation repealing Supreme Court appellate jurisdiction over military tribunal decisions.
Congress was concerned the Supreme Court would strike down all of the Reconstruction Acts.
 Holding: The language of the Constitution expressly provides Congress w/the power to
make exceptions to the Supreme Court’s appellate jurisdiction—and where there is no
jurisdiction there is no power to decide the case
 Professor:
O Today, the Supreme Court would never allow this to happen. This case was heavily
influenced by the politics of the day. Article I, § 9, clause 3 “Bill of Attainder”: Congress
cannot punish individuals by law (e.g. “Leon Friedman cannot vote”)
O There are present day ramifications in Guantanomo Bay, Cuba—where the president has
established an independent military commission absent the power for Supreme Court review
 Ex Parte Yerger (1868)
 Facts: Yerger tries to appeal his conviction by an independent military commission through
habeas corpus, not by the statute but by original jurisdiction.
 Holding: Congress does not have the power to make exceptions or regulations to the
Supreme Court’s original jurisdiction
 Reasoning: The Exceptions Clause is expressly limited to appellate jurisdiction
 Felker v. Turpin (1996)
 Facts: Congress passes the Anti-Terrorism and Effective Death Penalty Act (AEDPA) b/c they
are tired of seeing Federal Courts overturn State court death penalty sentences through habeas
corpus appeals. The law permits a convicted defendant 1 year to file a federal habeas corpus
petition, and only one. The Courts of Appeals had a gate keeping function prohibiting
subsequent appeals. The Supreme Court was precluded from review of any court of appeals
decision granting or denying subsequent appeals.
 Holding: Permissible b/c 28 U.S.C. §2241 allows an alternative avenue for review through
direct filing with the Supreme Court
 Reasoning: No exception or regulation of original jurisdiction
 US v. Klein (1872)
 Facts: Congress passes a law stating that no member of the confederacy can receive re-
compensation for any property seized from them. President Andrew Johnson pardons every
member of the confederacy except General Davis. Klein claims that the effect of the pardon is
that he is no longer a member of the confederacy. He goes to the court of claims and prevails—
receiving compensation. Congress immediately passes a law stating that the decision is reversed,
the jurisdiction of the court of claims is denied, and the Supreme Court is barred from review.
 Holding: Congress may not decide the merits of a case under the guise of limiting appellate
jurisdiction pursuant to the exceptions clause.
 Reasoning:
O Separation of Powers: Congress cannot steal the role of the judiciary
O Congress just can’t strip the Supreme Court of its jurisdiction based on the particular issue
 Plaut v. Spendthrift Farm (1995)
 Facts: Supreme Court in an earlier case narrowed the statute of limitations in security fraud cases
—holding that the statute of limitations must follow that of the statute of limitations in state
court. Congress took pity on the lawyers that relied on the old statute of limitations, and enacted
a subsequent law that resurrected cases dismissed pursuant to the prior Supreme Court decision.
 Holding: Congress violates the separation of powers when legislation infringes on the role
of the judiciary to decide a case
 Reasoning: If the Judge says you lose, Congress can’t say that you win
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 Professor: This is distinguishable from instances where Congress passes a new law b/c they
disagree with a prior judicial decision. They have not dictated the result of the case; they have
merely changed the rule which the court must apply.
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 CHAPTER 2: NATIONAL POWERS AND LOCAL ACTIVITIES: ORIGINS AND RECURRENT THEMES_____
O McCulloch v. Maryland (1819) pg.
 Facts: Congress creates the Bank of the US in Maryland, which became very active. Maryland
legislature taxes all banks not-chartered by the State. McCulloch, a federal bank cashier, refuses to
pay the state tax as levied on the Bank of the US. Maryland argues that there are 17 enumerated
powers of the Federal government—and no mention of a central bank is present.
 Holding (Marshall):
 The federal government may carry out its enumerated powers in any manner which is
appropriate under the “necessary and proper” clause of Article 1 § 8.
 States may not directly tax the federal government b/c “the power to tax implies the power
to destroy”
 Reasoning:
 Necessary does not mean “absolutely necessary,” (as the Framers expressly indicated in Article 1
§10), therefore they must have meant any “appropriate” means of carrying out enumerated
powers, with discretion to Congress in respect to the means by which the powers it confers are to
be carried into execution.
 Levying taxes, coining and regulating money are two of Congress’ Article 1 § 8 enumerated
powers—and the US Bank is an appropriate means to execute this power.
 Policy: It is a Constitution we are expounding—not a legal code. An expansive interpretation is
required to grant the federal government sufficient power. It would be unrealistic to expect a
Constitution to have all the proscribed means of carrying out its powers listed for eternity.
 Note: It is the Supreme Court’s role to scrutinize whether the means chosen by Congress were
adequately related to legitimate ends (reasonable convenience and qualified necessity, means must
be direct, natural and appropriate to the end). Congressional assertions may not be pretextual.
O US Term Limits, Inc. v. Thornton (1995)
 Facts: It is not unusual for the Federal or State government to enact term limitations on elected
officials. This case deals with an Arkansas state Constitutional Amendment that prohibits anyone
who served three terms in the House or two in the Senate from going on the federal government
ballot. Arkansas was relying on Article I, § 4: “The times places and manner for electing senators
and representatives shall be proscribed in each state by the legislature—but Congress may at anytime
change those laws.” Arkansas argued they could enact term limitations based on time, place, or
manner (in this case, exceeding term limits).
 Holding (Stevens):
 The power to add qualifications for federal elected officials is not within the “original
powers” of the states designated in the 10th Amendment
 The Framers intended the constitution to be the exclusive source of qualifications for
members of Congress and thereby divested states of any power to add qualifications
 Reasoning:
 The state has the right to place time, place, and manner restrictions—not additional
qualifications which are outside the general meaning of manner
 The 10th Amendment does not specify whether “the People” indicates the people of the State or
of the nation—but the previous would render the statement meaningless.
 Policy: The national government must be represented by those elected directly by the people and not
by the representatives that the State permits the people of the State to elect
O Cook v. Gralike (2001)
 Facts: As an off-shoot to Thornton, the Illinois government did not prohibit representatives based on
term limits—but they would print a notice next to their name on the ballot that they disregarded the
state’s preference that they not run.
 Holding: Instructions and derogatory notations cannot be placed on ballots
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 Reasoning: The election clause allows only the issuance of procedural regulations, and is not a
source of power to dictate electoral outcomes (put a negative stain on a campaign).
O Bush v. Gore (2001)
 Facts: Gore wins popular vote, but there is a problem in Florida b/c only 3,000 votes separates.
After re-tabulation, Gore has gained 2, 000 votes. Florida Supreme Court does not require
certification. Bush does not block certification but contests certification in 4 counties where Gore
won. Florida Supreme Court permits recounting. US Supreme Court stops recount, and Scalia has
the balls to say that it is necessary b/c if they find that a recount is unprecedented it would look
really bad if Gore actually had won.
 Holding (Scalia): A recount of ballots to “determine the intent of the voter” (as held by the
Florida Supreme Court) lacks objective standards and violates the equal protection clause.
 Note: This case was judiciable, not barred by the political question doctrine, b/c it involved a legal
question over the interpretation of Florida voting law.
 Postscript: 2 years later, a newspaper study indicated that if the Democrats had insisted on a recount
in every county then Gore would have won the election.
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 CHAPTER 3: THE COMMERCE POWER_____________________________________________________
O In General
 Article 1 §8, cl. 3: Congress shall have power to regulate commerce among the several states
 Chapter 3: The extent of affirmative Federal power to legislate pursuant to commerce power
 Chapter 5: The restrictions of State legislation by the dormant Federal commerce power
O INTERPRETATION OF THE COMMERCE CLAUSE FROM 1824-1936
 Gibbons v. Ogden (1824)
 Facts: Livingston, of the wealthy NY Livingston’s, was granted the exclusive right to operate
steamboats along w/his partner Robert Fulton pursuant to NY law. Gibbons obtained a
competing steamboat license from the Federal government. Ogden sues Gibbons on the ground
that he is violating his State of NY monopoly right. Gibbons claims that the federal license
supersedes b/c the steamboat conducts trade b/w NY and New Jersey.
 Holding: The scope of the federal commerce power pertains to the means of interstate
commerce as well as the goods trafficked
 Reasoning:
O Commerce is more than trafficking goods across state lines, it is commercial intercourse b/w
States
O Licenses to those who carry merchandise from state to state is a legitimate extension of the
right to regulate interstate commerce
 Note: The completely internal, intrastate commerce of a state is reserved for State regulation. To
be complete internal interstate commerce, there must be: (1) no effect on other states; (2) within
the state’s borders.
 US v. E.C. Knight (the “Sugar Trust” case) (1895)
 Facts: Constituional challenge of Sherman anti-trust act application to the acquisition of a
company that produced 33% of all sugar w/98% of the refining capacity.
 Holding: The commerce clause does not extend to local activities, even when the activity is
a monopoly of manufacturing.
 Reasoning:
O Manufacturing is transformation and commerce is the transaction (buying, selling and
transportation)
O The court analyzed the activity as a “still picture” rather than O.W. Holmes’ vision of the
“stream of commerce” which is more like a motion picture that indicates where the sugar
comes from and where it is going to go.
 CAUTION: This is bad law
 Compare: Addyston Pie & Steel v. US (1899) (Agreement to set prices amongst several
companies across the country found to constitute a restraint on commerce)
 Houston v. US (the “Shreveport Rate” case) (1914)
 Facts: Interstate Commerce Commission aimed to regulate the shipping rate set b/w all points in
Texas, which was proportionality lower than the rates to Shreveport, Louisiana.
 Holding: Whenever the interstate and intrastate transaction of carriers are so related that
the government of the one involves the control of the other, it is Congress and not the State
that is entitled to proscribe the final and dominant rule
 Reasoning: The fact that carriers are instruments of intrastate commerce as well as interstate
commerce does not prevent Congress from protecting the interstate aspects affected by the
intrastate aspect.
 Note: This is the origin of the substantial economic effects theory of interstate commerce.
 Swift v. US (1905)
 Facts: Cattle sent from many States to one particular state for slaughter, then the meat was
shipped throughout the States.
 Super Con-Law 13
 Holding (Holmes): Commerce b/w states is not a technical legal conception, but a practical
one drawn from the course of business.
 Reasoning: When something is sold from a place in one state with the expectation that it will end
up being purchased in another state, and it does, there is a current of commerce among the states,
and the purchase is part and incident of such commerce.
 Note: This is the origin of the stream of commerce theory of interstate commerce.
 Champion v. Ames (the Lottery Case) (1903)
 Facts: Congress passed legislation restricting the shipment of lottery interstate.
 Holding: Congress may prohibit “bad things” from traveling interstate pursuant to its
commerce power.
 Reasoning: Court found that lottery was clearly an “evil,” and since the statute only pertained to
interstate shipment, it did not interfere with state regulation of intrastate matters.
 Accord: Hipolite Egg v. U.S. (1911) (Sustaining statute prohibiting the interstate transportation
of rotten eggs).
 Hoke v. US (1913)
 Facts: Congress passed the Mann Act, prohibiting the transportation of women in interstate
commerce for immoral purposes. Historically, this was passed to target heavyweight champion
Jack Johnson from traveling state to state w/his white girlfriend.
 Holding: Legitimate under the commerce clause power to stop “bad things” (in this case,
whores) from crossing state lines as part of its police power
 Hammer v. Dagenhart (1918)
 Facts: There was a serious problem in the southern states concerning labor of children in textile
mills—which impoverished families forced them to do out of necessity. Congress passed
legislation that prohibited the transportation of otherwise “good” products when produced by the
“bad” means of child labor. Supreme Court had already found that it was permissible to regulate
prison made products under similar rationale.
 Holding: Congress may not use its commerce power as a pretext to regulate “good”
products produced by “bad” means
 Reasoning: The court looked to legislative purpose and found that this does not come within the
commerce clause b/c the regulation’s purpose is to prohibit child labor—not the transportation of
products
 Dissent (Holmes): If an act is within the powers specifically conferred on Congress, then it is not
made any less constitutional based on the indirect effect it may have—however obvious the
legislative intent to further that effect may be.
 CAUTION: This is one of the worst Supreme Court decisions ever and it was overruled.
 RR Retirement Board v. Alton RR (1935)
 Facts: One of the first New Deal legislations challenged after FDR comes into office, this Act
forces older RR employees to retire in order to promote employment
 Holding: Congressional power to regulate interstate commerce does not extend to the
compensation of employees of businesses conducting interstate commerce
 Reasoning: There is no power under the commerce clause to regulate pensions solely b/c the
employees work on the RR
 Schecter Poultry v. US (the “Sick Chicken” case) (1935)
 Facts: New deal legislation that delegated Congressional powers to private businesses in the
poultry industry in order to set better chicken standards in order to prevent unfair trade practices.
 Holding: There must be a sufficient nexus between federal legislation and interstate
commerce in order to be a legitimate use of the commerce power.
 Reasoning: The court adopted a distinction between “direct” and “indirect” effects on interstate
commerce and found this legislation to be too attenuated.
 Super Con-Law 14
 Accord: Carter v. Carter Coal (1936) (Adopting the “still-picture” rationale to strike down new
deal legislation regulating the hours and wages of people working in the coal mines b/c coal
mining is a “local activity.”)
 CAUTION: This is bad law.
 Historical Turning Point: FDR’s Court Packing Plan
 The 1935-36 decisions persuaded FDR to take action against the Supreme Court in order to
prevent them from striking down all of the New Deal legislation which is helping to take the
economy out of the Great Depression. He took aim at the 6 Justices on the Supreme Court over
70. FDR proposes to add an additional Justice for every Justice over 70—not exceeding 15
Supreme Court Justices total. Six months after Carter Coal, a new case comes along and lo and
behold, Justice Roberts, the wishy-washy Justice, changed his beliefs on the commerce clause
and shifted the Supreme Court’s power from 5-4 against New Deal legislation to 5-4 in favor.
This historic incident is known as the infamous “switch in time that saved 9.”
O THE DECLINE OF LIMITS ON THE COMMERCE POWER FROM 1937-1995
 NLRB v. Jones & Laughlin Steel Corp. (1937)
 Facts: Congress passes the National Labor Relations Act, which prohibits employers from firing
employees based on Union affiliation, as well as other Union powers. Factory challenges the
legislation on the basis that it is a local activity which Congress does not have the power to
regulate within the Commerce Clause. This was pretty short-sighted b/c the company had
factories all over the country.
 Holding: Congress has the power to regulate activities which have a close and substantial
relation to interstate commerce essential and appropriate to protect interstate commerce
from burdens or obstructions.
 Reasoning:
O Congressional power to protect interstate commerce is not limited to transactions which are
an essential part of the flow of interstate commerce. It may be used to reach any activities
that are deemed merely burdensome or obstructive of interstate commerce.
O The court found that whatever effects the workers effects the products they produce, and
therefore effects interstate commerce.
 US v. Darby (1941)
 Facts: Small lumber company challenged Fair Labor Standards violations that taxed them for not
regulating the hours and wages of employees as being beyond the commerce power by regulating
local activities.
 Holding: Congress may prohibit the transfer of “good” products made by “bad” means
across interstate lines.
 Reasoning: Under the 10th Amendment, those powers not granted to the national government are
reserved to the individual states or to the people. If the Congressional power is pursuant to an
enumerated power, the state’s must accede to the national mandate.
 Note: This overrules Hammer
 Wickard v. Filburn (1942)
 Facts: Farmer goes over wheat quota, federal government taxes him with a penalty
 Holding: Even if an activity is local and may not be regarded as commerce, it may still be
reached by Congress if it exerts a substantial economic effect on interstate commerce.
 Reasoning: Supreme Court was not concerned just with Joe Farmer, but with the entire farming
industry. If all the peeps grew more than permitted, then that would effect interstate commerce.
 Note: This is the high-water mark of the commerce clause’s power granting capacity, where
Congress could regulate anything having either an indirect or direct effect on commerce
 Professor: Under this line of cases, it seemed like there is nothing that Congress cannot regulate
pursuant to the commerce clause
 Super Con-Law 15

 Maryland v. Wirtz (1968)

 Facts: Fair Labor Standards Act extends coverage of the minimum wage beyond employees
engaged in interstate commerce to any employees of enterprises engaged in interstate commerce
(e.g. not just the miners, but the secretaries of the mining company).
 Holding (Harlan): The enterprise theory of interstate commerce recognizes that an
enterprise is a set of operations whose activities in commerce are all expected to be affected
by the wages and hours of any group of employees.
 Reasoning: Providing employees w/more money will stimulate spending, which affects interstate
commerce.
 Hodel v. Virginia Surface Mining (1981)
 Facts: Federal legislation requires strip-miners to resurface the land after they are done
excavating it
 Holding: The commerce power permits Congressional regulation of activities causing air or
water pollution, or other environmental hazards that have effects on more than one state
 Reasoning: Viewing all the strip-miners as a whole, the failure to repair the land will leas to
widespread erosion, which will have a deleterious effect on the surrounding land—and therefore
commerce
 Note: The Clean-Air Act requires factories to place “scrubbers” in their smoke-stacks to
diminish harmful emissions pursuant to the commerce power under the theory that viewing all
the factories as a whole, the good-guy factories that would like to put the scrubbers in would
have to compete w/the bad guys who don’t give a shit about the environment.
 Heart of Atlanta Motel v. United States (1964)
 Facts: Motel in downtown Atlanta seeking to continue its practice of excluding African-
Americans challenges the Civil Rights Act of 1964 as beyond the reach of the commerce power.
 Holding:
O Congress may regulate discrimination against minorities which has the affect of placing
an obstructive burden on minorities dissuading them from interstate travel pursuant to
its commerce power.
O The basic test is whether the activities sought to be regulated: (1) are commerce
concerning more than one state; and (2) have a real and substantial relation to a
national interest.
 Reasoning: Minorities travel interstate more regularly now that they can stop anywhere w/o the
burden of finding black-friendly establishments. When they travel the spend money. This has
an effect on interstate commerce.
 Professor: Up until 1995, it seemed that Congress could regulate anything it saw fit under the
commerce clause on the basis of attenuated reasoning and far-fetched justifications. Sensing this
blank-check, Congress began extending its power into areas not commonly associated
w/commerce
 Accord: Katzenbach v. McClung (the “Ollie’s BBQ” case) (1964) (Sustaining Title II of the
Civil Rights Act as applied to a restaurant receving $70,000 or more worth of food moved in
commerce)
 Perez v. United States (1971)
 Facts: Congress purports to use its commerce power to regulate criminal activity. Specifically, a
federal prohibition of loan-sharking enforced by threats of violence.
 Holding: Congress may use its commerce power to regulate criminal activity, even when
such activity is purely intrastate, if it directly affects interstate commerce.
 Reasoning: Loan-sharking in its natural setting is one way organized interstate crime holds its
gun to the heads of the poor and the rich alike and siphons funds from numerous localities to
finance its national operations.
 Super Con-Law 16

O NEW LIMITS ON THE COMMERCE POWER

 US v. Lopez (1995)
 Facts: The Gun-Free School Zone Act makes it a federal offense to have a gun within 1,000 ft. of
a school. A student is convicted for having a concealed handgun on school premises and
challenges Congress’ commerce clause justification that guns contribute to a substantial restraint
on education b/c dead and frightened kids cannot develop the skills necessary to contribute to the
workplace.
 Holding (Rehnquist): Congressional authority based on the commerce clause extends to
activities that implicate: (1) the channels of interstate commerce (roads, water, air, mail,
wire. e.g. Darby; Heart of Atlanta Motel); (2) the instrumentalities of interstate commerce,
or persons or things in interstate commerce, even though the threat may come only from
intrastate activities (things that “move” in interstate commerce e.g. Shreveport); (3) local,
intrastate activities having a substantial relation to interstate commerce—commerce
meaning “commercial activity (e.g. Jones & Laughlin, Wickard)
 Reasoning:
O The Framers’ intent was for “commerce” to refer to commercial activity. A gun in a school
zone does not fall into any of the categories b/c it does not realistically affect “commerce.”
O The dissent’s argument that gunscrimeimpact on educationnegative impact on work-
forcesmaller salariesimpact on commercial activity is entirely too attenuated.
 Professor:
O This case stopped the commerce clause bullshit rationale in its place
O The gun-free school act could be remedied by the mere addition of the words no gun “that
has traveled in interstate commerce.” Congress did just that.
 Note:
O This was the first time Congress was found to exceed its commerce power since 1937.
O There is no magic rule about how many levels b/w the activity regulated and commercial
activity is permissible w/o being too remote. The court conducts a case by case analysis.
 Sabri v. US (2004)
 Facts: Statute which prohibits the bribery of any state, local, or tribal officials that receive at least
$10,000 in federal funds. The defendant argued that the statute inadequately tied the bribe to
interstate commerce.
 Holding: The government has a legitimate commercial interest in assuring that its money is
used for the intentions it is expended, and which permit the government to run smoothly
and efficiently
 Solid Waste Agency v. US Army Corps of Engineers (the “Migratory Bird” case) (2001)
 Facts: Clean Water Act permits regulation of small local ponds on the theory that although
purely intrastate, such ponds provide a habitat for migratory birds that cross state lines.
 Holding: The “migratory bird” rationale exceeds the congressional intent underlying the
agencies powers, and therefore the commerce question isn’t reached
 Reasoning: Permitting a US agency to claim federal jurisdiction over ponds falling under the
migratory bird rule would result in a significant impingement of the state’s traditional and
primary power over land and water use.
 Note: The court undertook narrow statutory construction to avoid a serious commerce clause
question.
 Eldred v. Ashcroft (2003)
 Facts: Congress enacted the copyright terms extension act which enlarged the duration of
copyrights by 20 years in order to ensure that American authors would receive the same
protection as European authors and encourage the public distribution of their works.
 Super Con-Law 17
 Holding: Calibrating rational economic incentives is a task primarily for Congress, not the
courts.
 Note: This was decided on the basis of an interpretation of the copyright clause, not the
commerce clause.
 US v. Morrison (2000)
 Facts: Coed is raped by two football stars late at night. She complains to school officials, who
give them a slap on the wrist but permit them to stay in the school and play on the team. Coed
sues the school under the Federal Violence Against Women Act which provides a federal civil
remedy for the victims of gender-motivated violence. The Act was legislated after a finding that
such remedies were lacking within the state judicial systems. Congress justified the act on
commerce clause grounds—women who are raped are unable to effectively join the workforce,
diminishing national productivity, and increasing medical costs.
 Holding: Congress may not regulate noneconomic, violent criminal conduct based solely on
that conduct’s aggregate effect on interstate commerce
 Reasoning:
O When regulating “local activity” the local activity must itself be an “economic endeavor.”
O This case is analogous to Lopez in that it does not fit into any of the three broad categories
and rape is not a “commercial activity”
 Policy: If Congress can regulate intrastate gender motivated violence on commerce grounds, it
would also be able to regulate intrastate murder and other violent crimes since they would
certainly have a greater economic impact.
 Professor: This is a horrible outcome. In New Federalism, Leon comes up w/an alternative
justification for regulating non-economic endeavors (ADD ALTERNATIVE)
O EXTERNAL LIMITS ON THE COMMERCE POWER
 EXTERNAL LIMIT 1: STATE AUTONOMY AND THE 10TH AMENDMENT
 10th Amendment: The powers not delegated to the US by the Constitution, nor prohibited by it
to the states, are reserved to the states respectively or to the people.
 US v. California (1936)
O Facts: Penalty imposed on state-owned RR for violation of Federal Safety Appliance Act
O Holding: When acting as a commercial enterprise, a State loses its sovereign immunity
from federal regulation of activities in which the State has traditionally engaged.
O Reasoning: Congress may regulate state owned RRs just as it may regulate private RRs.
 New York v. US (1946)
O Facts: NY sold bottled mineral water. Federal government put a tax on them
O Holding: When a state participates in the economy (by operating businesses and hiring
employees in competition with private actors), Congress may tax the State run
enterprise the same as it would a private actor engaged in the same enterprise.
 National League of Cities v. Usery (1976)
O Facts: Fair Labor Standards Act sets minimum wage nation-wide. States challenge.
O Holding: Congressional power exceeds commerce justification if it interferes with an
integral government function of a state
O Reasoning:
 When Congress seeks to regulate directly the activities of States as public employers, it
transgresses an affirmative limitation on the exercise of its power akin to other commerce
power affirmative limitations contained in the Constitution.
 Federal government may not impose a financial burden of such magnitude that the state’s
can no longer function
O Note: This adopts the structural approach of McCulloch for a limitation, rather than an
enhancement, of federal power
 Super Con-Law 18
O CAUTION: Bad law. See Garcia.

 Garcia v. San Antonio MTA (1985)

O Facts: Same as above
O Holding: Any rule of state immunity that looks to the “traditional,” “integral,” or
“necessary” nature of governmental functions inevitably invites an unelected federal
judiciary to make decisions about which state policies it favors and which one it
dislikes.
O Reasoning: Any substantive restraint on the exercise of commerce clause powers must be
tailored to compensate for possible failings in the national political process rather than to
dictate a sacred province of state autonomy.
O Policy: The political process insures that laws that unduly burden the states will not be
promulgated.
O Professor: This case overrules Usury. Blackmun changed his mind. This decision was 5-4.
O Accord: S. Carolina v. Baker (1988) (Sustaining a federal income tax imposed on interest
from bearer bonds issued by the states and holding that nothing in Garcia or the 10th
Amendment authorizes courts to second-guess the substantive basis for congressional
legislation where the national political process did not operate in a defective manner.)
 New York v. US (1992)
O Facts: Federal regulation of low-level radioactive waste produced by hospitals and other
medical facilities. Congress doesn’t impose a method on the states; instead it gives the states
10 years to come up with a method to dispose of such waste. If they fail to do so, then the
State must take title to the waste. New York can’t find a place to dispose the waste, so the
state decides to challenge the regulation under the 10th Amendment. New York argued that
the Federal government was enlisting state officials to carry out a federal policy.
O Holding: The 10th Amendment bars Congress from commandeering the legislative
process of the States by directly compelling them to act as an administrative arm for
implementing a federal regulatory program
O Reasoning: The court was concerned that citizens would place accountability on the State
officials that would affect the electoral process.
O Policy: State officials should not have to bear the brunt of public disapproval
O Professor: If this was the only problem, then why can’t the state officials merely put a sign up
that says, “We are being forced to do this by the Federal government” or just wear a
department of the interior uniform. This is a bad decision.
O Note: This only affects Congressional attempts to order state governments to enact federal
policies. If Congress ordered the states to acquiesce to federal actors, the legislation would
have been permissible pursuant to Garcia.
 Printz v. US (1997) pg. 193
O Facts: Congress enacts the Brady Bill which prohibits the categories of mentally ill,
convicted felons, fugitives, drug users, and persons who have engaged in domestic violence
from purchasing a gun. Before the national computer system went into effect, the Bill
required state law enforcement officials to run the background checks for a 5 year interim. A
group of sheriffs from Arizona challenge the Bill.
O Holding (Scalia): The Federal government may neither issue directives requiring the
States to address particular problems (e.g. NY v. US), nor command the States’ officers,
or those of their political subdivisions, to administer or enforce a federal regulatory
program
 Super Con-Law 19
th
O Reasoning: Instead of relying on the 10 Amendment, Scalia points to the “structure of the
Constitution” and claims that the preservation of the states as autonomous political entities
prevents federal legislation from mandating state officials to carry out federal policy
O Policy: It matters not whether policymaking is involved, and no case-by-case weighing of
the burdens or benefits is necessary; such commands are fundamentally incompatible with
out constitutional system of dual sovereignty
O Note: This extends NY v. US to executive functions
 Reno v. Condon (2000)
O Facts: Federal Driver’s Policy Protection Act (DPPA) regulated and restricted state’s ability
to sell DMV collected personal information to commercial vendors. South Carolina
challenged the DPPA under Printz.
O Holding (Rehnquist): Federal legislation may prohibit states from affirmative action
without violating the 10th Amendment.
O Reasoning:
 The personal, identifying information regulated by the DPPA is a “thing” in interstate
commerce within the meaning of Lopez, the sale or release of that information is
therefore a proper subject of congressional regulation
 This law does not require the State to do anything on behalf of the federal government—
it only tells the states what they can’t do.
 EXTERNAL LIMIT 2: STATE SOVEREIGN IMMUNITY AND THE 11TH AMENDMENT
 11th Amendment: The judicial power of the US shall not be construed to extend to any suit in
law or equity commenced or prosecuted against one of the US states by citizens of another state
or by citizens or subjects of any foreign states.
 Chisholm v. Georgia (1793)
O Facts: Supreme Court took original jurisdiction of a suit against Georgia by a South Carolina
creditor seeking payment for goods purchased by Georgia during the revolution.
O Holding: The Supreme Court may take original jurisdiction over a suit prosecuted
against a state by a citizen of another state.
O CAUTION:
 This is bad law. The uproar following this case was the reason the Framers drafted the
11th Amendment.
 Under § 1332, the diversity jurisdiction statute, a citizen can no longer bring an action
against a state in federal court. It must be one citizen versus another citizen.
 Hans v. Louisiana (1890)
O Facts: Citizen of Louisiana wants to sue Louisiana in Federal court
O Holding: 11th Amendment applies not only to diversity jurisdiction cases, but to federal
question jurisdiction as well
O Note: A strict textualist would point to the 11th Amendment and claim it does not apply suits
by a citizen against his own state. This case stands for the principle that it does.
 Ex parte Young (1908)
O Holding: A federal court may issue an injunction against state officials seeking to
enforce an unconstitutional state law
O Reasoning: The defendant is not the state. It is the official acting beyond his constitutional
authority
O Accord: Edelman v. Jordan (1974) (holding that the 11th Amendment permits lawsuits for
prospective injunctive relief against state officers, although not lawsuits for retrospective
relief via a judgment for damages).
O Professor: The purpose of the 11th Amendment is to protect the state’s purse.
 Fitzpatrick v. Bitzer (1976)
 Super Con-Law 20
O Facts: Congress passed an Amendment to the Civil Rights Act in 1972 that applied Title VII
to state and local governments. The § 5 of the 14th Amendment provides Equal Protection
and the power to enforce by appropriate legislation.
O Holding: Laws passed pursuant to the § 5 of the 14th Amendment (the Equal Protection
Clause) have Constitutional dimensions that abrogate a state’s 11th Amendment
sovereign immunity
O Reasoning: The 14th Amendment can amend or repel the 11th Amendment b/c it came after it
O Accord: Atascadero State Hospital v. Scanlon (1985) (holding that Congress may abrogate
the state’s 11th Amendment sovereign immunity from suit in federal court pursuant to the
Equal Protection Clause, but only by making its intention unmistakably clear in the language
of the statute).
 Pennsylvania v. Union Gas Co. (1989)
O Facts: Congressional environmental law that permitted suits for monetary damages against
states in federal court.
O Holding: Congress may abrogate a state’s 11th Amendment sovereign immunity from
suit pursuant to its Article I, § 8 Commerce Power.
O CAUTION: This is bad law. See Seminole.
 Seminole Tribe of Florida v. Florida (1996)
O Facts: Federal regulation requires tribes to enter into a gambling compact. If the state refuses
to enter into the compact, then the tribe may bring an action against the State in Federal court
to compel the State to do so.
O Holding: Congress may not abrogate a state’s sovereign immunity unless the legislation
is created pursuant to enforcement of the 14th Amendment Equal Protection Clause.
O Reasoning: Fitzpatrick does not apply to the commerce clause. Union Gas deviated sharply
from established federalism jurisprudence. The 14th Amendment was adopted well after the
11th Amendment and alters the preexisting balance b/w state and federal power.
 Alden v. Maine (1999)
O Facts: Another Fair Labor Standards Act (FLSA) case. State probation officers in Maine
wanted minimum wage pursuant to the FLSA. Maine claimed that under Seminole there is
no right to bring an action against a State in federal court. The probation officers bring the
action in State court.
O Holding: An action may not be brought against a state in state court when the state
would have sovereign immunity from the suit if it were brought in federal court.
O Reasoning: The structure of the Constitution and notions of Federalism require that the
state’s residual sovereignty be respected and they not be subjected to the indignity of actions
under federal law in their own courts.
O Professor: This is another horrible 5-4 decision b/c the 11th Amendment is expressly limited
to federal courts. There is no mention of the judicial power of the states. There is no
provision of the Constitution that provides the authority for this decision.
O Note: Police brutality, sexual discrimination, and other federal causes of action based on the
14th Amendment can be brought in either Federal or State court.
 Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999)
O Facts: Lender develops computer program for paying off student loans that is so good they
get a patent for it. Florida Prepaid, a state agency, steals the program and uses it for their
own use. Lender brings trademark/patent infringement action in federal court. Federal court
denies the ability to bring such an action against a state in federal court. Congress creates a
cause of action claiming that the patent is “property” and that the commercial business is
being deprived of it w/o due process of law.
 Super Con-Law 21
O Holding: A cause of action under patent infringement or trademark law cannot be
brought against a State in federal court
O Reasoning: A remedy exists in State court for State patent infringement
O Professor: These decisions just keep getting worse. This fucks up the uniformity of federal
patent law interpretations.
 Kimmel v. Florida Board of Regents (2000)
O Facts: Federal Age Discrimination in Employment Act (ADEA) legislated to specifically
apply to employees of State governments.
O Holding: A citizen may not bring an action under the ADEA in federal court, they must
resort to state remedies
O Accord: Board of Trustees of Univ. of Alabama v. Garret (2001) (Holding that a citizen may
not bring an action under the Americans with Disabilities Act (ADA) in federal court, they
must resort to state remedies).
O Professor: These two cases are a new low. The 14th Amendment does not protect against
age, disability or sexual orientation discrimination. Some states don’t even provide these
remedies, and they are certainly less than those available under federal legislation.
 Federal Maritime Commission v. S. Carolina State Ports Authority (2002)
O Facts: Cruise ship company administrative complaint against S. Carolina Ports Authority
heard by Federal Maritime Commission, alleging violation of federal shipping acts.
O Holding: State sovereign immunity extends to adjudications within federal
administrative agencies
 Nevada Department of Human Resources v. Hibbs (2003)
O Facts: Claim under the Family and Medical Leave Act by an employee of the Nevada
department of HR who had been fired after seeking leave to care for his ailing wife. The
employee claimed that the state deprived him of “property” w/o Due Process of the law.
O Holding: A federal cause of action may proceed against a state where Congress
abrogated state sovereign immunity by acting within the scope of its 14th Amendment
power.
O Reasoning: Reaffirms Fitzpatrick. Due Process is applied to the states by the 14th
Amendment.
 Super Con-Law 22

 CHAPTER 4: FEDERALISM BASED RESTRAINTS ON OTHER NATIONAL POWERS____________________

O THE TAXING POWER AS A REGULATORY TOOL
 In General
 Article I, § 8: Congress shall have the power to lay and collect taxes, duties, imposts, and
excises.
 The power to tax is an independent source of federal authority which permits Congress to tax
activities or property that it might not be authorized to regulate directly under any of the
enumerated regulatory powers under Article I, § 8 (e.g. the Commerce Clause).
 Bailey v. Drexel Furniture Co. (the “Child Labor Tax” case) (1922) pg. 217
 Facts: Drexel furniture argues that a child labor tax is really regulation of the employment of
child labor in the states, an exclusively state function.
 Holding: The presence of extensive penalizing features, indicating a primary purpose to
regulate, may render a tax statute constitutionally invalid.
 Reasoning:
O This tax provides a heavy penalty for divergence from a detailed and specific course of
conduct. The amount is not proportionate to the extent or frequency of the violation.
O The tax is only levied where the employer knowingly departs from the proscribed course of
conduct. Scienter is associated with penalties, not taxes
O The employer’s factory is subject to inspection not only by tax officers of the treasury, but by
officers by the department of labor.
 US V. Kahriger (1953) pg. 220
 Facts: Challenge of an occupational tax imposed by the 1951 Revenue Act which levied a tax on
persons engaged in the business of accepting wagers and required such persons to register with
the collector of Internal Revenue.
 Holding: A federal excise tax does not cease to be valid merely because it discourages or
deters the activity taxed
 Reasoning: Unless there a penalty provisions extraneous to any tax need, courts do not have the
authority to limit the excise of the taxing power.
O THE SPENDING POWER AS A REGULATORY DEVICE
 In General
 Article I, § 8: Congress has the power to lay and collect taxes...to pay the debts and provide for
the common defense and general welfare of the United States
 The power to spend is linked to the power to tax. Money may be raised by taxation, and then
spent for the common defense and general welfare of the United States.
 US v. Butler (1936)
 Facts: Involved the validity of the Agricultural Adjustment Act of 1933, which sought to raise
farm prices by cutting back agricultural production. The scheme was carried out by authorizing
the Secretary of Agriculture to contract with farmers to reduce their acreage under cultivation in
return for benefit payments; the payments were in turn to be made from a fund generated by the
imposition of a “processing tax” on the processing of the commodity.
 Holding: The power to tax and spend for the general welfare is a power separate and
distinct from the other powers enumerated in Article I, § 8.
 Reasoning:
 Super Con-Law 23
O Congress may not regulate in a particular area merely on the ground that it is thereby
providing for the general welfare—it is only taxing and spending which may be done for the
general welfare.
O The AAA is unconstitutional b/c the taxing power may not be used to raise funds to purchase
compliance in an area that Congress is powerless to command

 South Dakota v. Dole (1987) pg. 230

 Facts: Government attempts to regulate drunk driving by providing the states with a choice b/w
keeping the drinking age 18 or raising the age to 21 and getting $50 million in federal money for
highway safety.
 Holding: Congress may condition the receipt of federal funds pursuant to its Spending
Power as long as: (1) the funds are expended for a federal interest that furthers the general
welfare; (2) conditions must be unambiguous; (3) must be a minimal rationality b/w
conditions and specified federal interest in national programs; and (4) conditions cannot
conflict with other constitutional provisions.
 Reasoning:
O Federal interest: Highway safety certainly furthers the general welfare
O Unambiguous condition: Congress makes it clear that the states must raise their drinking age
in consideration for the federal funding
O Minimal rationality: Increasing the drinking age will reduce the number of inexperienced
drivers from driving drunk—more than rationally related to highway safety
O No other constitutional provisions are violated (e.g. the Establishment Clause)
O WAR, FOREIGN AFFAIRS, AND FEDERALISM
 In General
 Article I, § 8: Congress is given the power to declare war and to tax and spend for national
defense as well as the right to raise and support armies and to provide and maintain a navy.
 The President, in contrast, is the commander and chief of the armed forces (Article II, § 2).
 Woods v. Cloyd W. Miller Co. (1948)
 Facts: Congress passes a rent control act after WWI in order to provide reasonably priced
housing for returning soldiers. States object.
 Holding (Douglas): The war power includes the authority to remedy the evils which have
arisen from its rise and progress and continues for the duration of the emergency
 Reasoning:
O The War power does not necessarily end after an official declaration of the end of hostilities.
O Since the war effort contributed heavily to that deficit, Congress has the power even after the
cessation of hostilities to
O The court recognized that the use of such a lasting War power may not only swallow up all
the other powers of Congress, but the 9th and 10th Amendments as well. Nevertheless, the
court was unwilling to assume that Congress will ignore its constitutional responsibilities and
limits.
 Professor: Modern application to Guantanomo Bay
O The Government detains prisoners during the war on terrorism, takes them to US territory,
denies them legal counsel and access to the federal courts. The Bush regime has argued that
these prisoners can be detained until the war on terrorism is over, and has not provided the
Geneva Convention POW privilege to a hearing confirming enemy affiliation. This is
problematic b/c the war on terrorism is not a narrowly defined “country A versus country B
war”—it is likely to continue indefinitely.
O TREATIES, FOREIGN AFFAIRS, AND FEDERALISM
 Super Con-Law 24
 In General
 Article II, §2: The president has the power to make a treaty, but it must be ratified by 2/3 of the
Senate
 Article VI, §2: The Constitution and the laws of the United States which shall be made in
pursuance there of; and all treaties made, or shall be made, under the authority of the United
States, shall be the Supreme Law of the Land.
 Article I, §8: Congress has the power to make all laws which shall be necessary and proper for
carrying into execution the foregoing powers and all other powers vested by the Constitution in
the government of the United States or in any department or officer thereof.
 Missouri v. Holland (1920)
 Facts: Many states have laws prohibiting the hunting of Canadian Geese. Missouri does not, and
many geese get shot the fuck up when the fly into the state. Federal government enters into “the
Migratory Bird Treaty” with Canada, whereas each party vows to take all necessary steps to
protect migratory birds. Congress passes the Migratory Bird Act, which restricts the hunting of
the birds to a particular season and a limited number. Missouri gets pissed b/c they’re redneck
fucks. They challenge the treaty as a “bootstrap” application of the treaty power.
 Holding: If a treaty is valid, then any laws enacted pursuant to the treaty are constitutional
 Reasoning: By Article VI, treaties made by the US are the Supreme Law of the land and, if the
treaty is valid, a statute made in pursuance of the treaty is valid under the Necessary and Proper
Clause of Article I, § 8.
 Reid v. Covert (1957)
 Facts: Many soldiers are positioned in Japan and Germany, and their wives and families come
with them. If the bitches act up (complaining about how they have nothing to do) and the
soldiers kill them on military housing, then they would be tried by an army court-Marshal
pursuant to the Congressional power under Article I, § 8 to provide for military jurisdiction. The
problem is, these crazy cunts start killing their husbands and the army is trying them before the
same army court marshal. The women complain that the proceedings are biased and argue for a
jury trial.
 Holding: No agreement with a foreign nation can confer power on Congress or any other
branch of government which is free from the restraints of the Constitution
 Reasoning: The court found nothing in the history or language of the Supremacy Clause (Article
VI, §2) which intimates that treaties and laws enacted pursuant to treaties do not have to comply
with the provisions of the constitution.
 Postscript: Subsequent to this case, Congress passed a law that extended federal jurisdiction to
such cases–to be tried in the district the arrestee first arrives back in the states.
 Perez v. Brownell (1958)
 Facts: Sustained a statutory provision regarding loss of citizenship
 Holding: The broad statement that the federal government can exercise no powers except
those specifically enumerated in the Constitution, and such implied powers as are
necessary and proper to carry into effect the enumerated powers, is categorically true only
in respect of our internal affairs.
 Reasoning: Although there is in the Constitution no specific grant to Congress of the power to
enact legislation for the effective regulation of foreign affairs, there can be no doubt of the
existence of this power in the law-making organ of the Nation.
 Policy: The government must be able not only to deal affirmatively with foreign nations, as it
does through the maintenance of diplomatic relations with them and the protection of American
tourists, it must also be able to reduce to a minimum the frictions that are unavoidable in a world
of sovereigns sensitive in matters touching their dignity and interests.
 Super Con-Law 25

 CHAPTER 5: FEDERAL LIMITS ON STATE POWER TO REGULATE THE NATIONAL ECONOMY__________

O Introduction
 The dormant power of the commerce clause renders state legislation unconstitutional absent federal
legislation
 There is a negative inference in the commerce clause that states do not have the power to regulate
commerce between states
O STATE REGULATION AND THE DORMANT COMMERCE CLAUSE
 EARLY CASES
 Gibbons v. Ogden (1824)
O Facts: This is the NY steamboat monopoly case again (See Chapter 3)
O Holding: Although a state may regulate intrastate commerce, it may not do so in a
“protectionist” manner which effectively discriminates against outside states
O Reasoning: The NY law conflicted with federal law
 Willson v. Black-Bird Creek Marsh Co. (1829)
O Facts: BB Creek Co. built a damn on a creek after obtaining authorization from Delaware.
Wilson crashed into the damn and then complained that it impermissibly on interstate
commerce by blocking navigable waterways.
O Holding (Marshall): The commerce clause will not invalidate a state law where there is
no conflicting federal statute
O Reasoning: The act does not come in conflict with the commerce clause b/c Congress has not
passed legislation addressing small navigable creeks
O CAUTION: This is bad law. See the modern cases.
 Cooley v. Boards of Wardens (1851)
O Facts: A law mandated that out of state ships hire a Philadelphia pilot to guide the boat
through the water without running up on rocks in the Philadelphia port. If they did not, they
were taxed
O Holding: Whether a state law violates the dormant commerce clause depends on the
nature of the activity being regulated.
 If the subject by its very nature requires a uniform national rule, then the power to
regulate belongs exclusively to the federal government and any state regulation of
the activity is barred
 If the activity is one that does not demand a uniform system of control (local rule),
then the state’s are free to regulate until such time as Congress chooses to do so
itself.
O Reasoning:
 The Philadelphia pilot legislation was found to be a “local rule” b/c only local pilots
know where the rocks are in the harbor.
 Therefore, Philadelphia was free to regulate until the time Congress chooses to step in
O Professor: This is an important case b/c it is the Court’s initial attempt to define the dormant
commerce clause’s limitations on state power
 DiSanto v. Pennsylvania (1927)
 Super Con-Law 26
O Facts: State law imposed a $50 license fee on travel agents selling steamship tickets for
foreign travel. A requirement for the license was proof of good character and fitness and was
revocable for misbehavior.
O Holding: A direct burden on interstate commerce is unconstitutional, whereas an
indirect burden is not
O Reasoning: The court adopted the direct/indirect distinction after recognizing that the
national/local distinction was unworkable.
O Dissent (Stone): The direct/indirect distinction is too mechanical, too uncertain in its
application and too remote from its actualities to be of value
 THE MODERN COURT’S APPROACH
 Introduction: In general, the modern cases fall into the following three groups:
O (1) Facially neutral laws that are unduly burdensome on interstate commerce
 Rule: Pike balancing
O (2) Laws that favor local economic interests at the expense of out of state competitors
 Rule: Facially neutral laws with hidden protectionist purposes are generally invalid
O (3) Overt discrimination against out of state interests (e.g. Philadelphia v. New Jersey)
 Rule: Facially discriminatory laws are subject to an extraordinarily strong presumption of
invalidity
 Pike v. Bruce Church (1970) pg. 256
O Facts: Statute imposed the burden of advertising that cantaloupes came from Arizona by
boxes. Changing the method of shipping from loose to packaged would cause a significant
cost increase and force more employees to be hired.
O Holding: Where the statute regulates even-handedly to effectuate a legitimate local
public interest and its effects are only incidental it will be upheld unless the burden
imposed on such commerce is clearly excessive in relation to the putative local benefit
O Reasoning: This is a balancing test. If the burden on interstate commerce exceeds the local
interest, then the law is unconstitutional
O Note: This only applies when the law is not facially discriminatory but still burdensome on
interstate commerce (See Maine v. Taylor)
 LAW’S THAT ARE FACIALLY DISCRIMINATORY AGAINST OUT-OF-STATE COMMERCE
O Maine v. Taylor (1986) pg. 262
 Facts: Maine statute prohibited the importation of live bait fist and defendant owned a
bait business and arranged to have bait delivered from outside the state.
 Holding: Laws that discriminate against out of state commerce may be upheld only
if they serve a legitimate local purpose that could not be served as well by available
nondiscriminatory means
 Reasoning:
 The only way to protect Maine’s pristine waters from diseased out of state fish was to
discriminate against other states. Therefore the law is constitutional.
 The available nondiscriminatory means of testing out of state baitfish for disease was
far to burdensome to be a realistic alternative
 Professor: Questions to ask in applying the Maine v. Taylor test...
 Does this serve a legitimate local purpose?
 Does the law advance this interest?
 Is there another nondiscriminatory means to serve the same end?
O Philadelphia v. New Jersey (1978)
 Facts: NJ had private businesses that collected other state’s garbage for a fee and put it in
a landfill within NJ. NJ passed a law prohibiting out of state garbage from entering its
borders.
 Super Con-Law 27
 Holding: Where a state law is basically a protectionist measure to isolate itself in the
stream of interstate commerce from a problem shared by all, rather than a law
directed to legitimate local concerns with only incidental effects on interstate
commerce, it is per se invalid.
 Reasoning: Discrimination must be based on some characteristic of goods other than its
geographic origin
 Professor: Garbage is “commerce,” b/c there are commercial transactions involving its
disposal. Therefore, it is apparent that a state may not regulate its interstate trade
 Accord: Chemical Waste Management v. Hunt (1992) (Finding an Alabama law that
imposed a hazardous waste disposal tax on out of state garbage unconstitutionally
discriminatory)
 Compare: Oregon Waste System v. Department of Environmental Quality (1994)
(Finding an Oregon law establishing a sliding scale on the disposal of hazardous wastes
which made the out of state price higher in order to adjust for the in state tax already paid
unconstitutional b/c the scale still charged out of state more after the adjustment was
factored in, but holding that an appropriate scale would be permissible)
O West Lynn Creameries v. Healy (1994)
 Facts: Mass. law imposed a tax on all sales of milk to Mass. retailers, but rebated all
proceeds from the assessment to Mass. dairy farmers. On its face, the tax was
evenhanded. The sneaky part was that Mass. rebated the farmers the cost of the dairy tax
from their general yearly taxing.
 Holding: The paradigmatic example of a law discriminating against interstate
commerce is the protective tariff or customs duty, which taxes goods imported from
other States, but does not tax similar products produced in State.
 Concurring (Scalia): The state could simply subsidize instate farmers without imposing
the discriminatory tax scheme
 Reasoning: The state law violates the principle of the unitary national market by
handicapping out-of-state competitors, thus artificially encouraging in-state production
even when the same goods could be produced at lower cost in other states.
 Compare: General Motors v. Tracy (1997) (Finding an Ohio sales tax on natural gas that
is unbundled in order to give bundlers a rebate is constitutional b/c although most in state
gas is bundled the law discriminates against unbundled gas, not out of state gas.)
O Camps Newfound v. Town of Harrison (1997)
 Facts: Maine statute provides that non-profit institutions do not have to pay a property tax
if they principally benefit Maine citizens. Out-of-state nonprofits have to pay the
property tax.
 Holding: For purposes of Commerce Clause analysis, any categorical distinction
between the activates of profit making enterprises and not-for profit enterprises is
wholly illusory (charities are within the commerce clause)
 Reasoning: This is a commerce clause issue b/c people come from out of state to go to
the camps in Maine. The property tax effects interstate commerce in campers. Therefore
it is unconstitutional
 Dissenting (Scalia): The dormant commerce clause is not founded in the text of the
Constitution and is completely unworkable
 Art. I, § 10: No state shall, w/o the consent of Congress, lay any imports or duties on
imports or exports
 The Supreme Court should overrule Woodruff v. Parham b/c the framers thought of
imports and exports to include not only foreign countries but state to state
 Super Con-Law 28
 Accord: South Central Bell Telephone Co. v. Alabama (1999) (Invalidating an Alabama
franchise law whihc allowed Alabama franchises to reduce the par value of their stock
but not out of state franchises to reduce their taxes as facially discriminatory)
O Foster-Fountain v. Haydel (1928)
 Facts: Louisiana law states that you have to remove the head and hulls of shrimp in
Louisiana before shipping out of state. The stated purpose is to keep the shrimp waste in
state as cheap fertilizer.
 Holding: Home processing requirements are facially discriminatory and per se invalid
because they favor instate business over out of state
 Reasoning:
 This case is facially discriminatory because it favors in state shrimp workers by its
terms.
 The real purpose is to provide jobs in state.
 Professor: This is an example of “home processing requirements” where companies are
forced to treat products in state before shipping them out. The Supreme Court has found
virtually all of these laws unconstitutional
O Dean Milk Co. v. Madison (1951)
 Facts: Madison county ordinance barred the sale of milk pasteurized outside of the
county. Justification is that they prefer their local health and safety inspectors
 Holding: A state may not avoid the strictures of the commerce clause by curtailing
the movement of articles of commerce through subdivisions of the state rather than
the state itself
 Reasoning:
 The commerce clause is implicated both by interstate and intrastate discriminatory
laws if reasonable, nondiscriminatory alternatives are available
 The state could have simply imposed higher standards on milk
 Professor: A legitimate environmental justification would prevail
 Accord: Fort Gratiot Sanitary Landfill v. Michigan (1992) (Finding that a Michigan law
prohibited private landfill operators from accepting waste from outside the county is per
invalid because laws cannot draw the line at the county level when it implicates out-of-
state economic activity)
O Carbone v. Clarkstown (1994)
 Facts: Clarkston required everyone within the city to take all of their solid waste to one
private company, who would operate the incinerator for five years before selling it to the
City for a nominal amount. By requiring the people in the town to use the facility the
company will be compensated. The problem is, the tipping fee was $62 per ton at the
facility and in Vermont the tipping fee is only $34 per ton.
 Holding: Flow-control ordinances are facially discriminatory when reasonable,
nondiscriminatory alternatives are available
 Reasoning: Justification for paying for the incinerator could be accomplished through
alternative non-discriminatory means like taxes
 Professor: The Supreme Court has found virtually all such laws unconstitutional
O Leon’s Cases (He lost all three)
 SSC Corp. v. Town of Smithtown (2nd Cir. 1995)
 Facts: Smithtown told outside commercial contractors they had to enter into a
contract with them to dispose of their waste. Part of the contract was a requirement to
go to the local incinerator.
 Holding: A locality may enter into a voluntary flow-control contract with
intrastate and interstate producers
 Super Con-Law 29
 Reasoning: The town is permitted to negotiate with foreign contractors as a market
participant
 NY State Trawlers v. Jorling (2nd Cir.)
 Facts: NY passes a law that you cannot catch lobsters w/a net. You must use a trap.
Having a lobster and a net on a boat is a crime within NY waters. Friedman argued
that this was a commerce clause issue b/c it would force Boston net catchers to
change their methods whenever they enter NY waters
 Holding: The NY law is rationally related to the stated interest that the
hundreds of pounds of fish in the nets crush the lobsters and damages the
natural resources

 Pharmaceutical Society of NY v. Lefkowitz (2nd Cir. 1978)

 Facts: NY law requires trademark prescriptions to include a generic alternative on the
label
 Holding: Commerce clause claim rejected b/c the law doesn’t hurt out of state
manufactures, it hurts all companies that manufacture trademark
 Reasoning: Since there is no explicit discrimination against out-of state economic
interests, the law must be analyzed under Pike.
 LAWS PROTECTIONIST IN PURPOSE OR EFFECT
O Baldwin v. Seelig (1935)
 Facts: It’s the middle of the depression and farmers are getting virtually nothing for their
milk. NYC passes a law that every buyer in the city must pay 10 cents for milk. Milk
purchased out-of-state must be purchased for 10 cents in order to be sold in NY.
 Holding (Cardozo): One state in dealing with another cannot place itself in a
position of economic isolation
 Reasoning: The effect of the law was to force buyers to buy in state b/c buying out of
state would be more expensive when taking transportation costs into effect.
O Henneford v. Silas Mason Co. (1937)
 Facts: Washington law places a 2% sales tax on retail sales in-state, as well as a
“compensating tax” on the price of goods bought out of state for the privilege of using the
products in-state.
 Holding: States may impose use taxes on out of state sellers as long as it simply levels
the tax playing field for in state sellers
 Reasoning:
 It is OK to help out local sellers when they are disadvantaged by other sates as long
as the law only levels the playing field.
 The court distinguished Selig on the grounds that this case still permits price
competition
O In Selig, the state said that your milk cannot be sold to dealers by whom you ship
it in NY unless you sell it to them in NY by a price determined here.
O In this case, the state is saying that you may ship your goods in such amounts and
at such a price as you please, but the goods when used in Washington after the
transit is completed, will share an equal burden with goods that have been
purchased here
 Professor: The Supreme Court has consistently upheld “use” taxes as equalizers
O Hunt v. Washington State Apple Advertising Comm’n (1977)
 Facts: N. Carolina law requires all apples within the state to have a USDA label.
Washington apples are the best, and they have labels indicating the superior Washington
standard. N. Carolina’s shitty apples all have the USDA label.
 Super Con-Law 30
 Holding: When discrimination against commerce is demonstrated, the burden falls
on the State to justify the law both in terms of the local benefits flowing from the
statute and the unavailability of nondiscriminatory alternatives adequate to
preserve the local interests at stake
 Reasoning: Pike balancing
 Burden on interstate commerce is that Washington apple sellers will have to pay for
different package/label designations for different states (this is not a huge burden)
 Putative local benefit claimed is “protectionist,” in that the information confuses
consumers. This is a bullshit justification, b/c providing consumers w/less
information is not really a benefit.
 Small burden outweighs non-existent benefit, therefore unconstitutional

O Breard v. Alexandria (1951)

 Facts: County ordinance prohibited door to door solicitation of orders to sell goods
except by consent of the occupants. Out of state salesperson’s who solicit for national
magazine subscriptions challenge
 Holding: A law may regulate the manner in which interstate commerce is conducted
without being impermissibly protectionist
 Reasoning: This was a reasonable regulation to prevent the interests of privacy of the
home b/c the interstate commerce is actually knocking on your door.
O Milk Control v. Eisenberg Farms Products (1939)
 Facts: Penn passes a law that an out of state buyer cannot buy milk for less than a
minimum price
 Holding: Out-of-state buyer price control regulations are permissible under the
commerce clause
 Reasoning:
 Identical to the law found unconstitutional in Baldwin except that this law regulates a
buyer and not a seller
 Only an incidental barrier b/c the buyer can go to every other state for milk—as
opposed to the seller in Baldwin who was forced to sell only in state
O H.P. Hood & Sons v. Du Mond (1949)
 Facts: An out of state milk distributor had two depots already in NY. NY has a law
which requires all buyers to get permission to open more depots. When the out of state
guy requests another depot, NY denies it on the grounds that it will be destructive to local
competition.
 Holding: Laws limiting access to instate resources will be invalidated unless the state
identifies a valid, non-protectionist purpose for the law that cannot be achieved
through less discriminatory means
 Reasoning: On its face, this law does not regulate “even-handedly” b/c it seeks to benefit
the NY milk distributors who already control the market.
O Cities Service Gas v. Peerless Oil & Gas (1950)
 Facts: State regulation of natural gas by imposing a minimum price on all gas taken from
the field, whether destined for instate or out of state markets.
 Holding: State-price fixing orders of important local natural resources are
permissible as long as they do not distinguish on the basis of whether or not the
resources are destined for intrastate or interstate consumers.
 Reasoning: Oklahoma has a justifiable concern with preventing rapid and uneconomic
dissipation of one of its chief natural resources by inferior uses of the gas at bargain rates
 Super Con-Law 31
 Compare: Penn. v. West Virginia (1923) (Finding that a Virginia law that required all
local needs for natural gas be met before any gas could be exported unconstitutional b/c it
prohibited interference with interstate commerce)
O Hughes v. Oklahoma (1979):
 Facts: Oklahoma law prohibited the out of state shipment of minnows procured within
the waters of the state.
 Holding: States may only promote the legitimate purpose of conserving wildlife
within their borders if done so in a matter consistent with the principle that our
economic unit is “The Nation” and that when a wild animal becomes an article of
commerce, its use cannot be limited to the citizens of one state to the exclusion of
citizens of another state.
 Reasoning:
 The court expressly overruled the Geer v. Connecticut legal fiction of state ownership
of wild animals within their borders
 The reasonable alternative of simply limiting the numbers of minnows that could be
caught was available
 FACIALLY NEUTRAL LAWS & PIKE BALANCING
O Pike Balancing Analysis
 Who is benefited (qui bono)?
 Who is burdened?
 What is the effect on interstate commerce?
 What is the putative local benefit?
O STATE BURDENS ON TRANSPORTATION
 Bibb v. Navajo Freight Lines (1959)
 Facts: Arkansas required every truck to have contoured mud flaps. Illinois required
straight flaps.
 Holding: Minimal burden + nonexistent local benefit = unconstitutional law
 Reasoning: Pike balancing...
O Burden: Minimal. It’s not that hard to change the flaps.
O Local Benefit: Virtually nonexistent.
O This was a facially neutral law b/c it applied to all trucks coming in, even if they
are from Arkansas
 S. Carolina State Highway Dep’t. v. Barnwell Bros (1938)
 Facts: S. Carolina prohibited any truck more than 90 inches wide or 20,000 pounds
from going through the state in order to protect its decrepit highways
 Holding: Large burden + larger local benefit = constitutional law
 Reasoning: Pike balancing...
O Burden: Large b/c it forces the trucks to travel a much greater distance and go
through the Appalachians.
O Local benefit: Even larger bigger b/c at that time the interstate highways were
shitty and the trucks could destroy them. Therefore, the law is constitutional
O This was a facially neutral law b/c it applied to all trucks, including S. Carolina
trucks which would be forced to comply with the same burden.
 Southern Pacific v. Arizona (1945)
 Facts: Arizona law says that a train going to Arizona cannot have more than 14
passenger or 70 freight cars. This forces the RR break up its trains outside the border.
Arizona’s putative purpose is to protect the health and safety of its citizens on the
trains from “slack.” Cynically, Arizona benefits b/c when the RR has to stop at
Arizona borders, Arizona employees either break up or hook up more cars.
 Super Con-Law 32
 Holding: Nonexistent local benefit + substantial burden on interstate commerce
= unconstitutional
 Reasoning: Helps Arizona citizens (“make-work law”), hurts the RR, costly burden
on interstate commerce, the “safety” putative local benefit is nonexistent. Therefore
unconstitutional
 Professor: Safety is a good excuse (as seen in Missouri Pacific), but the law in effect
forces more trains to pass through Arizona—which is adverse to the putative local
benefit in increased safety
 Missouri Pacific v. Norwood (1931)
 Facts: Miss. makes a law that every train passing through the state had to have a full
crew of specified persons and positions. This forced the train to hire additional
people solely to travel through the state.
 Holding: Modest local benefit + minimal burden on interstate commerce =
constitutional
 Reasoning: Helps Miss citizens get jobs, expense hurts RR, minimum burden on
interstate commerce (all RR are effected), arguably furthers purported local benefit of
increased safety
 Raymond Motor Transportation v. Rice (1978)
 Facts: Traditionally, freight is carried by trucks in “semis” that are 55 ft long. Truck
companies move to “doubles” which are 65 ft long. Wisconsin prohibited doubles on
its highways, but had exceptions for milk trucks (What the FUCK is up with milk?)
and trucks transporting goods out of the state.
 Holding: Empirically unestablished local benefit + substantial burden on
interstate commerce = unconstitutional
 Reasoning: Helps Wisconsin farmers and Wisconsin producers who want to export
their materials out of state, hurts out of state producers, substantial burden on
interstate commerce b/c it forces interstate commerce to avoid Wisconsin, putative
benefit that semis are safer was unproven b/c doubles are actually safer from
jackknifing
 Kassel v. Consolidated Freightways Corp. (1981)
 Facts: Iowa has almost exactly the same law as in Raymond, except that its two
exceptions were for: (1) livestock and farm vehicles; (2) and cities 50 miles from the
border
 Holding: Deference should not be granted to local state legislative findings in
dormant commerce clause balancing because the presumption should be that the
state’s are acting in a protectionist manner
 Reasoning:
O Legislative findings that “semis” are safer than “doubles” was questionable
O Ordinarily, the court is supposed to give great deference to the legislative history
 Postscript: Congress passed a law invalidating any state law regulating the use of
doubles in order to appease the trucker’s union. This removed all dormant commerce
clause litigation on this matter.
O STATE BURDENS ON TRADE
 Exxon Corp. v. Governor of Maryland (1978)
 Facts: During the oil embargo, Maryland passes legislation which forbids multi-
national oil companies from owning their own gas stations within the state. This was
due to the rumor that these companies were favoring their own stations to others in
the distribution of scarce oil and gas. Maryland’s entire oil supply is out of state and
no gas is refined in state.
 Super Con-Law 33
 Holding: Interstate commerce is not subjected to an impermissible burden
simply b/c an otherwise valid regulation causes some businesses to shift from one
interstate supplier to another
 Reasoning: The law does not discriminate against interstate commerce b/c not all out
of state suppliers were effected. The law does not prohibit the flow of interstate
goods.
 Minnesota v. Clover Leaf Creamery Co. (1981)
 Facts: Minn. passes a law forbidding milk from being sold in plastic containers. The
plastic containers originated out of state, and pulpwood just happened to be a major
instate product. The putative local benefit was to limit the amount of non-
biodegradable waste.
 Holding: Although ecological legislation which purposefully discriminates
appears to be per se invalid under Philadelphia, this is not true for
environmental acts which merely burden interstate commerce by applying to
instate and out of state actors equally.
 Reasoning: Instate plastic companies are equally burdened as out of state plastic
companies
O STATE BURDENS ON BUSINESS ENTRY
 Lewis v. BT Investment Managers (1980)
 Facts: Florida law prohibited ownership of local investment advisory businesses by
out of state banks. Such business must be owned by local banks.
 Holding: The commerce clause prohibits a state from using its regulatory power
to protect its own citizens from outside competition.
 Reasoning: The law was parochial in that it prevents competition in local markets by
out of state banks with the kinds of resources and business interests which make them
likely to attempt entry
 Professor: Owning a bank is subject to the commerce clause
 Edgar v. Mite Corp (1987)
 Facts: Illinois passed legislation which required all companies, in state or out, to
register w/the state secretary before merging w/or acquiring a target company within
Illinois. During a 20 day period they could not speak with the target company. This
imposed additional burdens above and beyond existing federal legislation.
 Holding: The commerce clause may invalidates local state statutes which
adversely affect interstate commerce by subjecting activities to inconsistent
regulations
 Reasoning: Benefits in state companies, hurts in state and out of state companies,
clearly inhibits interstate takeovers, hard to articulate a legitimate putative
governmental interest besides protectionism. Therefore unconstitutional.
 CTS Corp v. Dynamics Corp of America (1987)
 Facts: Indiana attempts to supplement the federal Williams Act (federal anti-takeover
legislation) by requiring the disinterested shareholders of a target company chartered
under Indiana law to approve all mergers and acquisitions.
 Holding: To the limited extent that state regulation of the corporate governance
or business organizations create under state law affects interstate commerce, this
is justified by the state’s interests in defining the attributes and shares of its
corporations and protecting shareholders.
 Reasoning:
O Helps shareholder, hurts in state and out of state companies, substantial impact on
interstate commerce, putative local benefit is to protect the shareholder’s interest.
Therefore permissible due to reasonable connection to putative benefit
 Super Con-Law 34
O Distinguishable from Edgar b/c the law is limited to the voting rights of
corporations formed under the state’s corporation law. Edgar applied to all
corporations within the state; no matter what state they are chartered.
O THE MARKET PARTICIPANT EXCEPTION TO THE DORMANT COMMERCE CLAUSE
 Hughes v. Alexandria Scrap Corp (1976)
 Facts: Maryland sets up a program where they agree to pay $20 for any abandoned
car (hulk) found in state. Neighboring states attempt to cash in and are denied
 Holding: The commerce clause does not prohibit a state, in the absence of
congressional action, from participating in the market and exercising the right to
favor its own citizens over others
 Reeves v. Stake (1980)
 Facts: S. Dakota restricts the sale of cement from a state owned plant to state
residents
 Holding: The commerce clause places no limitations on a state’s refusal to deal
w/particular parties when it is participating in the interstate market of goods
 Reasoning: The state was simply acting as a member of the market like any other
corporation
 White v. Mass. Council of Construction (1983)
 Facts: Required that all construction projects funded by the city must be performed at
least 50% by city residents
 Holding: A state may favor its own residents over out of state residents in
employment for government funded construction
 Reasoning:
O The fact that employees are “working for the city” is crucial to the market
participant exception
O When a municipality is a buyer or seller, then they should be permitted to
promote their economic interest according to the rules of supply and demand
 S. Central Timber v. Wunnicke (1984)
 Facts: Alaska sells its lumber to buyers for a reduced price upon the condition that the
buyer will process the lumber in state.
 Holding: Even under the market participant exception, a state may not impose
conditions by statute, regulation, or contract that have a substantial regulatory
effect outside of the particular narrowly drawn market in which they participate
 Reasoning:
O Unless the market is narrowly defined, the exception will swallow up the rule that
states may not impose substantial burdens on interstate commerce
O There is a distinction between the state’s ability to prefer its own citizens in the
initial disposition of goods when it is a market participant and a state’s attachment
of restrictions or dispositions subsequent to the goods coming to rest in private
hands.
O In this case, Alaska is a direct market participant in the timbre market, but not in
the processing market. Once the transaction for the timbre has been made, Alaska
cannot govern the private, separate economic relationships of its trading partners
downstream.
 Professor: A typical seller would not have any say in how a product is used after sale
O THE PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV
 In General
 The “Privileges and Immunities Clause” of Art. IV § 2: The citizens of each State shall be
entitled to all Privileges and Immunities of Citizens in the several States.
 Super Con-Law 35
 This clause means the opposite of what it says—it is interpreted to mean that the citizens of
individual states must be given the privileges of each state. In other words, a state cannot give a
privilege and immunity to its citizens w/o giving it to anybody else
 Limitations:
O Baldwin v. Montana Fish and Game Comm’n (1978) (Holding that the privileges and
immunities clause does not apply to hobbies such as Elk hunting permits)
O Paul v. Virginia (1869) (Holding that Corporations enjoy no protection under the privileges
and immunities clauses)
 Note: The standard of review for privileges and immunities denials is stricter than the balancing
test used in dormant commerce clause analysis, but not as strict as that for discriminatory
legislation challenged as a commerce violation
 United Building and Construction Trades Council v. Camden (1984)
 Facts: City ordinance requiring 40% of people working on city funded projects to be citizens of
the city. The UBCTC challenges under dormant commerce clause and privileges and immunities
on behalf of out-of-state contractors.
 Holding:
O There is no “market participation” exception to privileges and immunities violations.
O A statute that burdens a protected privilege and immunity that implicates the
promotion of interstate harmony is unconstitutional unless there is a substantial reason
for the discrimination against nonresidents that bears a close relation to the State’s
putative objective whereas nonresidents can somehow be shown to constitute a peculiar
source of the evil at which the statute is aimed (e.g. voting rights, jury duty)
 Reasoning:
O The two clauses have different aims and set different standards for state conduct. The
Commerce Clause acts as an implied restraint upon state regulatory powers. The Privileges
and Immunities Clause, on the other hand, imposes a direct restraint on state action in the
interests of interstate harmony.
O An out of state resident’s interest in employment on public works contracts is sufficiently
fundamental to the promotion of interstate harmony thus falling under the purview of the
clause.
 Supreme Court of New Hampshire v. Piper (1985)
 Facts: State rule prohibiting the admission of non-residents to the state Bar challenged by a non-
resident who passed the exam but was denied admission. Putative state benefit is to limit the
amount of lawyers unfamiliar w/local rules and more likely to act unethically and be unavailable
for proceedings.
 Holding:
O The practice of law is a privilege within the privileges and immunities clause
O In determining whether a state law discriminatory against nonresidents bears a close or
substantial relationship to the State’s objective, the Court has considered the
availability of less restrictive means.
 Reasoning: The court conducted a balancing and found that “less restrictive means” existed to
meet the state’s putative governmental purpose.
 Note:
O Lawyer lost a challenge of a NJ statute which required an office in state and CLE courses in
NJ. NJ statute sustained b/c office to serve papers and courses emphasizing NJ law found
legitimate
O Parnell v. Supreme Court of West Virginia: Sustained a law requiring that in order to be a
local lawyer sponsor of an out of state lawyer for in hoc viche (visiting lawyer) you must be
active.
 Super Con-Law 36
O CONGRESSIONAL ORDERING OF FEDERAL-STATE RELATIONSHIPS BY PREEMPTION AND CONSENT
 In General
 The “Supremacy Clause” of Article VI § 2: This Constitution and the laws of the United States
which shall be made in pursuance thereof; and all Treaties made, or shall be made, under the
authority of the United States, shall be the Supreme Law of the Land.
 Federal law always wins when there is a direct conflict b/c federal and state law
 The problem is that “preemption” requires interpretation of the laws to determine is a direct
conflict exists
 Pacific Gas & Electric v. State Energy Resources Conservation & Development Comm’n (1983)
 Facts: Nuclear power plant goes through all the federal licensing requirements. California
requires that the plant indicate what it will do w/spent fuel. There is no provision in the federal
regulations that accounts for spent fuel.
 Holding: Absent explicit preemptive language, Congress’ intent to supersede state law
altogether may be found from:
O (1: Pervasive Scheme) A scheme of federal regulation so pervasive as to make
reasonable the inference that Congress left no room to supplement it (e.g. Federal Food
and Drug Act); OR
O (2: Dominant Federal Interest) Federal legislation that touches upon a dominant federal
interest assumed to preclude enforcement of state laws on the same subject (e.g.
immigration, military, security); OR
O (3: Same Purpose) The object sought to be obtained by the federal law and the
character of obligations imposed by it may reveal the same purpose; OR
O (4: Impossibility/Obstacle) Even where Congress has not entirely displaced a state law in
a specific area, state law is preempted to the extent that it actually conflicts with federal
law whereas there is a direct conflict between the language of the state law and federal
law where compliance with both federal and state laws is a physical impossibility or
state law stands as an obstacle to the accomplishment and execution of the full purpose
of the federal law.
 Reasoning: Federal law does not preempt in this instance b/c the federal nuclear regulation does
not take waste disposal into account.
 Note:
O Field preemption is determined by “pervasive scheme” and “dominant federal interest.”
O Conflict preemption is determined by “same purpose” and “impossibility/obstacle.”
 Rice v. Santa Fe Elevator Corp (1947)
 Facts: Government claims federal law relating to grain warehousing practices preempts
traditional state legislation
 Holding: Historic state powers may not be preempted w/o a clear showing of Congressional
intent.
 Hines v. Davidowitz (1941)
 Facts: Penn. passes legislation requiring immigrants to register with the state. Federal legislation
already exists requiring registration w/the federal government.
 Holding: Immigration is a dominant federal interest and federal law preempts
 Reasoning: There is a comprehensive federal scheme in place.
 Florida Lime and Avocado Growers v. Paul (1953)
 Facts: California required a higher avocado oil content than the minimal federal requirement
 Holding: Federal law preempts where there is a direct conflict between state and federal
law which renders compliance with the federal law impossible.
 Reasoning: The federal law imposed a minimum rather than a uniform standard. If California set
a lower minimum, then the law would have been preempted as an impossibility.
 Super Con-Law 37
 Gade v. National Solid Wastes Mgt. Ass’n (1992)
 Facts: Purported conflict b/w Federal Occupational Safety and Health Administration Regulation
and Illinois licensing provision for workers who handle hazardous waste. Illinois claims no
preemption b/c the federal law is aimed only at worker safety and the state law is aimed at both
worker safety and public health.
 Holding: Duplicative state regulation in conflict with federal law is preempted.
 Crosby v. National Foreign Trade Council (2000)
 Facts: Mass. law bars state entities from buying products produced in Burma (Myanmar).
Federal law permits such purchases and places different sanctions on Burma.
 Holding:
O The fact of a common mend does not neutralize conflicting means
O A failure to provide for preemption expressly may reflect nothing more that the settled
character of implied preemption doctrine and the existence of a conflict does not
depend on express congressional recognition that federal and state law conflict.
 Reasoning:
O Congress manifestly intended to limit economic pressures to a specific range. The state law
conflicts by penalizing individuals and conduct Congress has explicitly exempted
O The state act is at odds with the President’s intended authority to speak for the US in foreign
relations.
 Leisy v. Hardin (1890)
 Facts: Iowa law prohibited the sale of beer in Illinois. Supreme Court found that beer was
interstate commerce in character and that the state law violated the commerce clause.
Subsequently, Congress passes legislation validating the Illinois law
 Holding: Congress has plenary power to consent to state laws that burden interstate
commerce
 Accord: Wilkerson v. Rahrer (1891) (Finding that there is no reason Congress cannot provide
that certain designated subjects of interstate commerce shall be governed by a rule which divests
the designated subjects of interstate commerce character in advance.)
 Prudential Insurance Co. v. Benjamin (1946)
 Facts: In United States v. South Eastern Underwriters (1944), the Court held that nationwide
businesses, including insurance companies, are not deprived of their interstate character merely
b/c they are built upon contracts local in nature. In response, Congress passes the McCarran Act
which states that insurance is not interstate commerce. This was done in order to exclude the
insurance companies from antitrust violations. Therefore, insurance companies could
discriminate against out of state commerce.
 Holding: Congress can consent to any variety of state legislation impinging on commerce
and in the exercise of the national commerce power it can permit state laws the Court
would otherwise consider unconstitutional under the dormant commerce clause.
 Reasoning:
O The court found that congressional consent could only be invalidated if the legislation was in
direct conflict with a provision of the constitution
O Congress can validly consent to state laws when the constitutional limitation on state power
is not matched by a similar or identical limitation on federal power
 Metropolitan Life Insurance v. Ward (1985)
 Facts: Alabama law taxes out of state insurance companies at a higher rater than in state.
 Holding: Congress may authorize state conduct which would otherwise violate the dormant
commerce clause, but it has no similar power with respect to other provisions of the
constitution—specifically the Equal Protection Clause of the 14th Amendment.
 Super Con-Law 38
 Reasoning: In the dormant commerce clause context, the court is merely protecting Congress’
options, whereas it must protect the scope of individualized liberties in regard to other
constitutional provisions.
 Compare: Northeast Bancorp v. Board of Governors (1985) (Denying an equal protection
challenge to Congress’ authorization of regional protectionism in the banking industry on the
grounds that discrimination against all out of sate corporations is distinguishable from favoritism
of some out-of-state corporations.)
O SOME OTHER ASPECTS OF FEDERALISM: A BRIEF SURVEY
 State Taxation and Free Trade
 Quill Corp. v. N. Dakota (1992)
O Facts: State taxes out of state mail order business with neither outlets nor representatives in
the states. The only contact with the state was through the mail.
O Holding: A state cannot tax a corporation that does business in other states; it can only
tax a proportionate share of the businesses’ activity in the taxing state.
 Intergovernmental Tax Immunities
 McCulloch v. Maryland (1819)
O Facts: Maryland imposes a tax on a branch of the national bank in Maryland.
O Holding: A state cannot tax a federal entity
O Reasoning: The power to tax contains the power to destroy
 Helvering v. Gerhardt (1938)
O Holding: The salaries of government employees are not immune from state income
taxes
O Reasoning: The tax is on the individual, not the federal government
 US v. New Mexico (1982)
O Facts:
O Holding: A state may not, consistent with the Supremacy clause, tax directly upon the
US or an agency or instrumentality so closely connected to the government that the two
cannot be viewed as separate entities
O Reasoning:
 Federal Immunity Exists where the legal incidence of the tax is on the United States.
Legal incidence means an obligation to pay, not an economic burden. The fact that the
burden of a tax might be passed onto the federal government is not enough to confer tax
immunity. Only where the government entity is directly required to make the payment
will there be federal immunity.
 The test for determining whether the entity being taxed is deemed part of the federal
government (thus triggering immunity) is whether the entity and the United States are so
closely connected that the two cannot be realistically viewed as separate entities.
 Intergovernmental Regulatory Immunities
 Johnson v. Maryland (1920)
O Facts: Post office employee is convicted in Maryland for driving a truck w/o a state license.
O Holding (Holmes): An employee of the US does not secure a general immunity from
state law while acting in the course of employment, but if the performance of their
duties is directly related to the violation of a state law, then they are immune
O Professor:
 28 U.S.C. §1983: The federal government can criminalize a state official for a violation
of state rights.
 28 U.S.C. §2241: The state government can prosecute a federal officer (e.g. FBI agent)
for violation of state law.
 Super Con-Law 39
 28 U.S.C. § 1941: In the event of state prosecution, federal agents are entitled to federal
habeas corpus
 28 U.S.C. § 1404: Federal agent may remove from state court to federal court prosecution
under state law
 Interstate Relationships
 The “Rendition Clause” of Article IV, §2: A fugitive from justice shall be delivered up on
demand of the executive authority of the state from which he fled
O Puerto Rico v. Branstad (1987)
 Holding: The failure by a state to comply with its obligations under the renditions
clause can be remedied by mandamus or injunctive relief in the federal courts
 Note: Congress had passed legislation, and many states have adopted similar legislation,
which uniformly secures the attendance of witnesses in criminal proceedings.
 The “Interstate Compact” of Article I, §10: No state shall, without the consent of Congress
enter into any agreement or compact with another state
O Examples of such contract are boundary issues, regional problems, natural resource
regulations, flood control and transportation
O Virginia v. Tennessee (1893)
 Holding: Not all interstate agreements require Congressional consent. The compact
clause is only directed at the formation of any combination of which may tend to
increase the political influence of the contracting states so as to impair the
Supremacy of the United States.
 Reasoning: There are many matters upon which states can agree that does not affect
federal powers.
 Super Con-Law 40

 CHAPTER 6: SEPARATION OF POWERS_____________________________________________________

O Introduction
 Three branches: Executive, legislative, judiciary. If one branch encroaches on the power of another
then an issue arises
 Another issue arises when the legislature or judiciary demands an executive officer to testify and the
executive claims executive privilege
 Article I, § 6, “Speech and Debate Clause” Members of the legislature have a privilege prohibiting
the revelation of their speech during the legislative process
O EXECUTIVE ENCROACHMENT ON LEGISLATIVE POWERS
 Youngstown Sheet v. Sawyer (1952)
 Facts: In the middle of the Korean War, there is a potential of a steel-workers strike. The
President stepped in and told the steel companies to pay the workers increased wages. The
companies declined to do so unless the government would let them charge more for steel. The
government needs the steel for the war effort and refuses. To keep the industry going, the
President seizes the steel mills by sending a colonel in as boss of the steel companies. The steel
companies bring an action in court challenging the President’s constitutional authority to seize
the mills. The President claimed authority to act under Article I aggregate powers of (1)
Executive power; (2) Care that the laws are faithfully executed; and (3) Commander and chief of
the army
 Holding: The President’s power must stem either from an act of Congress or from the
Constitution itself
 Reasoning: The President does not have inherent power to seize private property in order to
settle labor disputes
 Concurring (Jackson): Varying degrees of Presidential power...
O Maximum: President acts pursuant to an express or implied authorization of Congress.
The burden of persuasion rests heavily on any who would attack this constitutional
authority
 Super Con-Law 41
O Twilight Zone: President acts on his inherent powers that run concurrent with the
powers of the legislature, absent Congressional authorization. Any exercise of power in
this area is likely to depend on the imperatives of events and contemporary
imponderables rather than abstract theories of law (e.g. Foreign relations field in
particular, where President can send troops abroad without legislative approval)
O Lowest Ebb: President takes measures incompatible with Congressional actions. Courts
can only sustain exclusive presidential control in such a case by disabling Congress’
power to act on the subject at all.
 Four Instances Where the Court has Given the President Inherent Power:
 Myers (Removal Power)
O Facts: Congress passes an act that the President cannot remove an executive agent
appointed by Congress (the postmaster general).
O Holding: The President has the inherent power to remove agents of the
executive branch
 Schick (Pardon Power)
O Facts: Congress passes a law that the President cannot pardon certain specified
offenses
O Holding: The pardon power is inherent to the executive branch and cannot
be overruled by Congress
 Buckley v. Valeo (Appointment Power)
O Facts: Federal Election Commission’s members were appointed by Congress.
O Holding: Federal agents acting in executive type functions must be appointed
by the Executive office
 Chadha (Veto Power)
O Facts: Congress tried to limit the President’s authority by passing a law which
permitted one house to overrule the President’s veto power
O Holding: The veto power is inherent to the President and it cannot be
overruled
O Reasoning: Veto power can only be overruled by 2/3 of Congress as provided by
the Constitution
O Note: During WWII, Congress passed legislation which permits the President to
take emergency action such as this during a war
 Dames & Moore v. Regan (1981)
 Facts: At the end of the Carter administration, the President makes a deal with the Shah of Iran to
return American hostages who had been there for two years. The Iranian government refuted
their over $2 Billion in debts to American companies for military equipment. The American
companies froze over $1 Billion in the Iranian’s assets by attachment. In exchange for the
returned hostages, the Carter administration permitted all of the Iranian’s frozen funds to move
to Switzerland and all US companies’ claims would be settled by arbitration. The US
companies’ want their claim resolved by a US jury and claim a due process violation. The Regan
administration ratified Carter’s orders and issued an executive order suspending all US citizens
claims pending against Iran. The government argued that it was acting pursuant to implicit
congressional authority and it is the President’s inherent power to make agreements with foreign
executives
 Holding:
O Past practice does not by itself create executive power, but long continued systematic
and unbroken executive practices known to and acquiesced to by Congress raises the
presumption that the executive action is taken in pursuance of Congressional consent
 Super Con-Law 42
O Since Congress cannot anticipate and legislate with regard to every possible action the
President may find necessary to take in e very possible situation, the enactment of
legislation closely related to the specific question of the President’s authority evinces
legislative intent to accord the President broad discretion.
 Reasoning: Congress enacted the closely related IEEPA and Hostage Act granting the President
exclusive authority to act in such matters, and Congress has a long history of acquiescence to
other executive claims in matters relating to the resolution of major foreign policy disputes.
O EXECUTIVE DISCRETION IN TIMES OF WAR AND TERROR
 The War Powers Resolution of 1973
 Historical Note: Passed following President Johnson’s exploitation of the Gulf of Tonkin
resolution during Vietnam as justification for War absent a Congressional declaration
 Statute’s Terms:
O President may introduce troops into hostilities only after one of the following: (1) declaration
of war; (2) specific statutory authorization; or (3) a natural emergency created by attack upon
the United States, its territories, or its armed forces.
O Anytime the President starts a military operation...
 President must issue a report to Congress within 2 days of initiating a military operation
 President may then continue for 60 days without approval upon his inherent power as
Commander in Chief
 Operation must cease after 60 days unless Congress (1) declares war; (2) extends 60 day
period; or (3) physically unable to convene due to attack on the US
 President has an additional 30 days to remove the troops out of “military necessity”
 Professor: To this day, we are not sure whether this law is valid b/c the courts have always found
a way to avoid it as a “political question.”

 Ex Parte Milligan (1866)

 Facts: Confederate citizen gets sentenced to death by a military commission. After the war, a
civilian jury fails to indict D for any offense.
 Holding: The Constitution is a law for rulers and people, equally in war and in peace, and
covers with the shield its protection of all classes of men under all circumstances.
 Reasoning: Military jurisdiction can never be applied to citizens in states which have upheld the
authority of the government and where the courts are open and unobstructed
 Policy: Suspension of the constitution in exigent circumstances would lead to anarchy and
despotism
 Professor: The US Constitution lacks any express “emergency provision,” and all
accommodation for emergencies has been made by judicial interpretation.
 Ex Parte Quirin (1942)
 Facts: German saboteurs (Ds) were dropped off on Long Island by a submarine in uniform.
They changed their clothes and went off to do damage. A relative of the Ds informs the
authorities; all Ds are tried before a military commission and sentenced to death. Ds appeal for
the right to a jury trial
 Holding: Through the Articles of War, Congress has explicitly granted military tribunals
jurisdiction over offenses that violate the Law of War
 Reasoning:
O Ds were unlawful combatants under the Law of War b/c they weren’t uniformed
 Lawful combatants are subject to capture and detention as POWs by opposing forces
 Unlawful combatants are subject to capture and detention as POWs, but are also subject
to trial and punishment by military tribunals for acts which render their belligerency
unlawful
 Super Con-Law 43
O The fact that one defendant was a US citizen does not relive him of the consequences of a
belligerency which violates the Law of War. Even US Armed forces which violate the laws
of war are subject to military tribunal jurisdiction rather than trial by jury.
O An individual is no less belligerent b/c they have not completed an act of war. Attempt is
sufficient.
 Professor: The three foreign Ds could have been tried for espionage, and the US citizen D could
have been tried for treason in federal court
 Johnson v. Eisentrager (1950)
 Facts: German soldiers helping the Japanese were captured and tried by a US military
commission in Germany and found guilty. They file a writ of habeas corpus to the US Supreme
Court.
 Holding: Habeas corpus and the privilege of litigation in US courts cannot be extended to
enemy aliens who at no relevant time were within any territory over which the US is
sovereign and the scenes of their offense, their capture, their trial and their punishment
were all beyond the territorial jurisdiction of any court of the US.
 Reasoning: The soldiers were German citizens and they fought, were captured and tried all
outside of US jurisdiction
 CAUTION: This case was limited.
 Rasul v. Bush (2004)
 Facts: Rasul is an alien who fought for Afghanistan but was detained in Guantanomo Bay, Cuba.
D files a writ of habeas corpus to the US Supreme Court. The government argued that
Eisentrager controlled.
 Holding: Although the US does not have territorial jurisdiction over Cuba, the Federal
judges have jurisdiction under 22 U.S.C. §2241 to consider habeas petitions from
Guantanomo Bay Naval Base detainees who argue they are being held unlawfully.
 Reasoning:
O 22 U.S.C. 2241, “Habeas Corpus”: Shall not be granted unless...imprisoned in violation of
the laws of the US. The court construed this to reach the imprisoned in Guantanomo Bay by
US custodians b/c of the express terms of its agreements with Cuba, the US exercises
complete jurisdiction and control over the Guantanomo Bay Naval Base, and may continue to
exercise such control permanently if it so chooses.
O In contrast to the defendants in Eisentrager, Guantanomo Bay prisoners are not nationals of
countries at war with the United States, they deny engaging in or plotting acts of aggression
against the United States, they have never been afforded access to any tribunals, have not
been charged or convicted of any wrongdoing and have been imprisoned for over two years
in a territory where the US exercises exclusive jurisdiction and control.
 Hamdi v. Rumsfeld (2004)
 Facts: D, a US citizen, was captured in Afghanistan and detained in a US military prison w/o
formal charges brought against him. The court below held that D was entitled to no rights. The
government argues that D must be detained b/c the war is ongoing, and if he was released he
would simply rejoin the Taliban.
 Holding (O’Connor, Rehnquist, Kennedy, Breyer): A US citizen held in the US as an
enemy combatant must receive notice of the factual basis for his classification and a fair
opportunity to rebut the Government’s factual assertion before a neutral decision maker
 Reasoning: We have long since made clear that a state of war is not a blank check for the
President when it comes to the rights of the Nation’s citizens.
 Dissenting (Thomas): Not entitled to anything as an enemy combatant
 Dissenting (Stevens and Scalia): Must be released immediately b/c a US citizen cannot be
detained indefinitely in a US jail w/o bringing charges against him
 Super Con-Law 44
 Concurring (Souter and Ginsburg): Concur rather than join w/Stevens and Scalia b/c if they did
then the tie would act to affirm the lower court’s decision that D is not entitled to anything
 Professor: After Hamdi, the military established the Enemy Combatant Review Procedure. In
practice, the chief evidence is often classified and is not revealed to the defendant. This raises
the issue of whether the opportunity to rebut truly exists
 Rumsfeld v. Padilla (2004)
 Facts: US citizen lived in the US for twenty years, then left to join the Taliban. He was arrested
in Chicago for allegedly attempting to detonate a dirty-bomb. He was detained in New York,
filed a writ of habeas corpus, then transferred to N. Carolina indefinitely w/o any formal charges
 Holding: Procedurally, the Supreme Court cannot hear a writ of habeas corpus unless the
petition is brought in the jurisdiction where the defendant is imprisoned
 Note: D filed a new writ and the case will be reargued
 Hamdan v. Rumsfield (DC. Dist. 2004)
 Holding: The law of war is a vague notion that includes the Geneva Convention and
requires trial by court martial when an individual’s POW status is in doubt
 Reasoning:
O 10 U.S.C. § 821, “Article 21 of the Uniform Code of Military Justice”
 Jurisdiction conferred upon court martial so not deprive concurrent jurisdiction to
military commission with respect to violations of the law of war
 POWs are entitled to trial by court martial
O Geneva Convention
 Requires that soldiers “wear an insignia viewable from a distance”
 Article 5: If there is a doubt about POW status, then the protections of the convention
apply until a competent tribunal determines that an individual is not a POW
 Congress authorized aspects of the Geneva Convention, so therefore it is the law of the
land
O Competent Tribunal Determination
 President is not a competent tribunal
 The Combat Status Review Tribunal (CSRT) is not a competent tribunal b/c classified
information is not disclosed POW status is not analyzed (see NY Times article)
 Under Rahsul, a purported “enemy combatant” can challenge the legitimacy of the CSRT
classification on the grounds that the tribunal is not competent under the Geneva
convention (Note: NOT whether or not the individual is a POW)
O Military Commission trial would be unlawful
 No appeal outside the executive branch—entirely self-contained
 Defendant has to leave the courtroom when classified information is discussed, unlawful
under UCMJ Article 39 provision for dealing w/such information
 Professor: The Geneva Convention is the lynch-pin to the protection afforded by the UCMJ.
O CONGRESSIONAL ENCROACHMENT ON THE EXECUTIVE POWER
 In General
 Nondelegation is the principle that Congress may not constitutionally delegate its legislative
power to another branch of government
 However, in practice Congress regularly does this, and there isn’t a problem so long as Congress
lays down by legislative act an intelligible principle to which the person or body authorized to
act as directed to conform.
 US v. Curtiss-Wright (1936)
 Facts: Congress passed legislation which gave the executive the power to decide when embargos
could be done. Roosevelt proclaims an embargo against Bolivia and Paraguay. Defendant
violated the embargo, was indicted, and challenged the delegation of legislative power
 Super Con-Law 45
 Holding: Congress may delegate powers to the president in areas where it is unwise to lay
down narrowly definite standards by which the President would be governed
 Reasoning: The president alone has the power to speak or listen as a representative of a nation
 INS v. Chadha (1983)
 Facts: Congress was in the practice of routinely delegating to the Executive branch legislative
powers in areas outside of their expertise while providing that the legislature can veto the
Executive branch’s actions if they disagree with them. The problem is, when the President acts
pursuant to the delegation he has acted lawfully. In this case, the President had the authority to
set aside an order of deportation on hardship grounds, which he exercised. Congress attempted
to veto the President’s action pursuant to the majority vote of one house (unicameral veto) of
Congress as provided in the statute.
 Holding: Once Congress passes a law that delegates power, that legislation is law and
Congress cannot revoke that authority unless it does so pursuant to Art. I, §§ 1, 7
bicameralism that requires two thirds of both Houses of Congress to overrule an executive
veto
 Reasoning:
O Congress must abide by its delegation of authority until that delegation is legislatively altered
or revoked
O There are only four times where one house may act alone with the unreviewable force of law
not subject to the President’s veto: (1) Power of the house to initiate impeachment; (2) Power
of the senate to conduct trials on impeachment; (3) Power of the senate over presidential
appointments; and (4) Power of the senate to ratify treaties.
 Professor: This case could have been decided on the much narrower grounds that Justice Powell
raised in his concurrence, namely that Congress cannot take action which pertains to a particular
individual without encroaching on the judicial function and violating separation of powers
 Clinton v. NY (1998)
 Facts: Historically, Congress was Democratic and passed lots of social reform. Republican
presidents would consistently veto the entire legislation. In 1996, a Republican House of
Representatives finally passed the Line Item Veto Act which granted the President new power to
veto particular programs within a legislation passed as law and effectively amend the law.
Clinton uses the veto to remove a program that forgave NY of debt it owed the Federal
government from a passed law.
 Holding: A line item veto violates Article I, § 7 of the Constitution
 Reasoning: Article I, § 7: Every bill which passes the House of Representatives and the senate
must be presented to the President. If approved, he shall sign “it,” if he disapproves he shall
return “it.” This indicates that the Framers understood passed legislation to be a unity, not
divisible.
 Policy: If the Act were valid, then it would authorize the President to create different laws—
whose text had not been voted on by either house of Congress or presented to the President for
signature.
 Professor: Congress can get around this decision by...
O Passing each program individually. This is not practical.
O Constituional Amendment. This is too difficult.
O Providing a line item veto prior to the enactment of the legislation as binding law
 Buckley v. Valeo (1976)
 Facts: The Federal Election Commission was comprised of members appointed by the President
pro tempore of the Senate and the Speaker of the House. The members had executive type and
quasi-judicial functions.
 Super Con-Law 46
 Holding: An agency with the majority of congressionally named personal can only exercise
those powers that Congress may delegate to its own committees (investigatory and
informative powers)
 Reasoning: Only officers appointed by the executive or the judiciary can undertake executive or
quasi-judicial tasks
 Bowsher v. Synar (1986)
 Facts: Congress passed the Balanced Budget Act which set maximum permissible budget
expenses and granted authority to the Comptroller General to make budget cuts which the
President was required to put into effect. The Comptroller General position was created by the
Budget and Accounting Act of 1921, and is nominated by the President from a list of three
persons recommended by the presiding officers of the House and Senate. The Comptroller
General is removable only by impeachment or a joint resolution of Congress
 Holding: It is a violation of separation of powers for Congress to impose executive
functions on an officer whom Congress has the power of removal
 Reasoning:
O The Comptroller General is an officer of the Legislative Branch and he may not be entrusted
with executive powers
O The structure of the Constitution does not permit Congress to execute the laws. It follows
that Congress cannot grant to an officer under its control what it does not possess.
 Professor: If Congress wants to reduce the budget, they have to do it through the budget itself
 Myers v. US (1926)
 Facts: Congress passed legislation that provided the President could not remove postmasters w/o
the consent of Senate
 Holding: The President’s right to remove purely executive officers cannot be limited by
Congress
 Reasoning: The postmaster is an exclusively executive position
 CAUTION: Limited by Humphrey’s Executor
 Humphrey’s Executor v. Olson (1935)
 Facts: Congress passed legislation that provided President could not remove FTC members w/o
the consent of Senate
 Holding: The power to remove quasi-legislative or quasi-judicial executive officers exists
with Congress
 Reasoning:
O FTC members conducted quasi-legislative acts
O Congress can limit the President’s power of removal only to “purely executive officers.”
 Morrison v. Olson (1988)
 Facts: Congress passes the Ethics in Government Act of 1978 which provides a procedure for
independent counsel to prosecute ranking government official. If the Attorney General finds that
grounds for further investigation exists, he must report to the Special Division of the US Court of
Appeals for the DC Cir., who will then appoint an IC and defines the IC’s prosecutorial
jurisdiction. The IC may be removed by the Attorney General “for good cause.”
 Holding (Rehnquist): The Ethics in Government Act of 1978 does not violate separation of
powers, as it gives the executive branch sufficient control over the independent counsel to
render the President able to perform his constitutional duty to ensure faithful execution of
the laws.
 Reasoning:
O The determination of whether the Constitution allows Congress to impose a good-cause
restriction on the President’s power to remove an official cannot be made to turn on whether
or not that official is classified as “purely executive”
 Super Con-Law 47
O Distinguishable from Bowsher and Myers b/c the case does not involve an attempt by
Congress to usurp the executive’s powers.
O The Judiciary appoints the IC, not Congress, and Article II, §2 permits Congress to provide
the judiciary w/the power to appoint “inferior officers”
O The IC is an inferior officer b/c he can be removed by the Attorney General and has a limited
tenure for a particular purpose
 Dissenting (Scalia):
O Art. II, § 1 provides that the executive power is vested exclusively in the President
O Prosecution is an executive type function and the President must have control over
appointment and removal
 Postscript: The IC Act was approved every year until 1998, and then Congress dropped it b/c
Ken Starr went too far in his investigation of Clinton.
 Mistretta v. US (1989)
 Facts: Congress passes the sentencing reform act, including truth in sentencing and an elaborate
federal sentencing guideline based on factors which would increase or decrease the defendant’s
sentence (e.g. cooperation w/authorities, weight of contraband). The guidelines themselves were
created by the Sentencing Commission, comprised of three federal judges and several law
professors appointed by Congress.
 Holding (Blackmun): In our increasingly complex society Congress cannot do its job absent
an ability to delegate power under broad general directives
 Reasoning: The Judges who serve on the commission are using administrative power, not
judiciary power. The Constitution does not permit judges from wearing two hats; it merely
forbids them from wearing both at the same time.
 Dissenting (Scalia): This is a law b/c Judges are compelled to follow these rules. Only Congress
can pass laws.
O EXECUTIVE PRIVILEGES AND IMMUNITIES
 US v. Nixon (1974)
 Facts: Nixon was paranoid that his shitty opponent in the campaign knew about the Howard
Hughes “political contribution” he used to buy his wife a necklace. A group of seven people
known as “the plumbers” were hired to “stop leaks” (of government information). They break
into the Watergate hotel where the Democratic National Convention is located and the
undercover police caught them with wiretapping materials. The FBI discovered that large
amounts of money found in the burglars’ pockets could be traced to a Republican party donor.
Nixon tries to have the CIA intervene and stop the FBI investigation, but the FBI does not. The
Grand Jury Investigation was postponed and Nixon won by a huge landslide. Woodward and
Bernstein, two resourceful investigative reporters, leak information that the ties the President to
the scandal. A senate committee is appointed to investigate the President’s involvement. A
member of the Nixon administration flips on the President and cooperates with the senate
committee. The White House refuted the accuracy of many of the informant’s claims. A senate
committee attorney deduces that there must have been a taping system in the oval office and the
President’s phone. A special prosecutor named Archibald Cox was appointed by Congress, who
proceeded to issue subpoenas for the tapes. Nixon claims executive privilege. The attorney
general resigns rather than fire the special prosecutor. The second in command refuses and is
fired. The third in command fires Cox according to the order. A new special prosecutor is
appointed, and he is insulated from being fired by the Executive. He subpoenas the same tapes.
 Holding:
O Neither the doctrine of separation of powers, nor the need for confidentiality of high
level communications, without more, can sustain an absolute unqualified Presidential
privilege of immunity from judicial process under all circumstances
 Super Con-Law 48
O Where a claim of privilege is a general one, not related to a particular need to protect
military, diplomatic, or sensitive national security secrets, the privilege is merely a
qualified one and is outweighed by the need to develop all relevant facts at a criminal
trial
 Reasoning:
O The president’s need for complete candor and objectivity from advisers requires great
deference, but in this case the privilege depends solely on the broad, undifferentiated claim of
public interest in the confidentiality of such conversations
O The presidential privilege must be weighed against other compelling interests
O The evidence in this case was only ordered to be reviewed in camera (secret)
 Policy: The twofold aim of criminal justice is that guilt shall not escape nor innocence suffer
 Post-script: Subsequent to this case, Nixon released the “smoking gun tape” where he ordered
the CIA to stop the FBI. Two days later he resigned.
 Nixon v. Administration of General Services (1977)
 Facts: Ford takes over as president. His first actions are to pardon Nixon and to give him control
over the tapes. Both actions caused outrage, but the control over the tapes was the more
controversial issue. A temporary restraining order is placed on the tapes claiming that the giving
them to Nixon would infringe on the freedom of association. Congress responds by passing the
Presidential Recordings and Materials Preservation Act which requires that the tapes remain in
the control of the Administration of General Services so that the public gain full knowledge of
the Watergate scandal. Nixon challenges on separation of powers grounds, First Amendment
grounds.
 Holding: No separation of powers violation exists when one branches’ actions do not
constitute an undue disruption on the other
 Reasoning: This was a limited intrusion into executive confidentiality necessary to restore public
confidence in the political process
 Nixon v. Fitzgerald (1982)
 Facts: Nixon is sued personally for damages by a whistle blower from the department of Defense
who claims he was fired after he testified before Congress against Nixon
 Holding: The President has absolute immunity, rather than qualified immunity, from a
civil suit for damages for any official acts taken during the course of his presidency in the
absence of explicit affirmative action by Congress
 Reasoning:
O Protects the President from being unduly cautious in the discharge of his official duties
O The consequences for improper official acts are impeachment or failure to be reelected
 Clinton v. Jones (1997)
 Facts: Clinton was sued by Paula Jones for alleged sexual harassment he committed while
Governor of Arkansas. Three years later, Jones brought this action against Clinton—who was
now president. Clinton doesn’t argue that he has an absolute immunity; he just asserts that being
compelled to participate in a civil suit while acting as President would take his attention away
from the office and that the proceedings should be suspended until after his tenure.
 Holding: There is no immunity, no even qualified, for acts that the President takes that
extend beyond the scope of any action taken in his official capacity.
 Reasoning:
O Past Presidents, including Jefferson, Burr, and Kennedy have been subpoenaed and it has not
unduly taken their attention from the role of the Presidency
O This is the flip-side of Fitzgerald because these are actions taken prior to being President and
these actions are not connected to official functions
 Note: This rationale extends any official acting outside of their official duty.
 Super Con-Law 49
 Articles of Impeachment
 Art. I, § 3: The Senate has the sole power to “try” all impeachments. The party convicted
is nevertheless subject to indictment and punishment.
O Professor: Seems to connote a criminal proceeding.
 Art. II, § 4: The President, VP, and all civil officers of the US shall be removed from office
on impeachment for and conviction of treason, bribery, or other high Crimes and
Misdemeanors
O Professor: Ambiguous b/c although it uses many criminal law words, it seems that “High
Crime” requires that the offense be particularly serious
O Interpretations: A high crime is any offense where the President misuses the power of their
office
 Nixon: Requires an offense that would result in imprisonment. Nixon definitely
committed a high crime
 Clinton: Perjury is not a high crime Clinton didn’t misuse the office, he just wanted to get
his dick sucked

 CHAPTER 7: THE BILL OF RIGHTS AND THE POST-CIVIL WAR AMENDMENTS______________________

O Civil Rights Act of 1866
 Statute provides equal protection to the newly freed slaves under the laws
 Problem: What if a legislature supercedes some day
 Solution: Constitutional Amendment
 Problem: Art. V: Requires ¾ of the States for a constitutional Amendment. Some former states
of the confederacy were needed to pass the Amendment
 Solution: The Radical Republicans seeking the Amendment prohibited the southern Democrats from
sitting in Congress during the Reconstruction Act and Post-Civil War Amendments unless they
would pass laws allowing for (1) total male suffrage; and (2) the 14th Amendment
O The 14th Amendment
 SECTION 1:
 All persons born or naturalized in the US are citizens of the US and of the state wherein they
reside.
O Effect: Overrules Dredd Scott which held that Negros had no rights
 No state shall make or enforce any law which shall abridge the privileges or immunities of
any CITIZENS of the US (the Privileges and Immunities Clause).
 Super Con-Law 50
 Nor shall any state deprive any PERSON of life, liberty, or property without Due Process of
Law(Due Process)
 Nor to deny any PERSON within its jurisdiction the Equal Protection of the Laws (Equal
Protection Clause)
 SECTION 2:
 Representatives shall be apportioned among the several states according to their respective
numbers
O Effect: Overrules the 3/5 rule that limited the influence of the black population on
representatives
 When the right to vote at any election is denied to any male citizens, the basis of
representation therein shall be reduced in proportion to the whole number of male citizens in
the state
O Effect: Punishes states that would choose to prevent black males from voting by reducing the
maximum number of representatives the white voters can elect.
O Note: Friedman brought such an action against Mississippi, and the court held it to be a
political question that must be resolved by the legislature itself. This became a moot point
after the voting rights act was passed
 SECTION 3: No person shall be a representative of Congress or hold any office of the United
States if they took an oath for their prior office and then joined the confederate rebellion
 Effect: The only person who was never pardoned was the President of the confederacy
 Note: Congress can resume such a liability
 SECTION 4: The US shall not assume or pay any debt or obligation incurred in the aid of
insurrection or rebellion against the United States or any claim for the loss or emancipation of
any slave
 Effect: Fuck off with your confederate debt
 SECTION 5: The Congress shall have the power to enforce, by appropriate legislation, the
provisions of this article
 Effect: This may be the most important section b/c it grants constitutional power to any
legislation passed in enforcement of the 14th Amendment. Any law passed pursuant to this
section has Constituional dimensions and supersedes any conflicting previous Constitutional
Amendments
O Barron v. Baltimore (1833)
 Holding: The Bill of Rights only applies to the federal government, not the states
 Reasoning: Prior to the 14th Amendment
 Note: This is BAD LAW
O The Slaughter House Cases (1873)
 Facts: Louisiana is a corrupt southern state, and they pass a law that creates a monopoly whereas
only one company in Louisiana can run slaughterhouses and butcher shops. The white butchers of
the other companies hire John Campbell, the only Supreme Court Justice to leave for the south
during the rebellion, who challenges the law under the brand spanking new 14th Amendment claims
of (1) Privileges and Immunities; (2) Due Process; and (3) Equal Protection
 Holding: The pervading historical purpose of the 13th and 14th Amendments was a response
to the Civil War and emancipation of African American slaves and therefore they are to be
read narrowly to apply only to former slaves and African Americans
 Reasoning:
 Privileges and Immunities:
O The Privileges and Immunities guaranteed to all citizens of the US in the 14th Amendment
are minimal in comparison to the Privileges and Immunities guaranteed to the citizens of the
several states in Article IV, §2
 Super Con-Law 51
O Consequently, the Privileges and Immunities protected by the 14th Amendment is limited to
a citizens’ right to move freely from one state to another
 Due Process: The 5th Amendment Due Process and State Due Process have never been applied
in this way. Dismissed
 Equal Protection: In light of the historical purpose, we do not see how this applies to White
Butchers
 Dissenting (Field): Privileges and Immunites: Applicable here because otherwise the Amendment
would have no meaning
 Dissenting (Bradley): Due Process: A law which prohibits a large class of citizens from working
violates Due Process b/c it deprives them of liberty and their occupation is their property
 Professor:
 The majority focused almost entirely on the Privileges and Immunities clause, then summarily
dismisses the Equal Protection and Due Process claims at the end of his opinion
 Within 20 years, the dissent’s view was adopted
 If this case was brought today, it would clearly violate substantive Due Process and Equal
Protection
O Crandall v. Nevada (1868)
 Facts: Nevada tax for leaving the state
 Holding: Citizens of the united states have the right to move freely throughout the nation
 Reasoning: The commerce clause prohibits any attempts on the part of a single state to isolate itself
from difficulties common to all of them by restraining the transportation of person and property
across the borders
 Concurring: Privileges and immunities clause of the 14th Amendment
 Note: The concurring opinion has prevailed
O Edwards v. California (1941)
 Facts: During the Great Depression, California seeks to prevent the impoverished Oklahoma farmers
from immigrating there. California passes a law that it is a misdemeanor crime to bring any
nonresident indigent person into the state.
 Holding: Violation of the commerce clause
 Concurrence: The right of persons to move freely from state to state is an incident of national
citizenship protected by the privileges and immunities clause of the 14th Amendment against
state interference
 Just as any citizen is free to leave Nevada w/o a burden, they are free to enter California w/o a
burden
 Note: The concurring opinion has prevailed
O Shapiro v. Thompson (1969)
 Facts: NY was paying higher welfare payments than other states. Rockefeller passes a law that you
cannot enter NY and collect any welfare until you live there for a year.
 Holding: The equal protection clause of the 14th Amendment requires state statutes to survive
strict scrutiny if its classifications invade a fundamental right such as the right to travel freely
from state to state, even if the classifications are not suspect
 Reasoning:
 A state has a valid interest in preserving the fiscal integrity of its programs but a state may not
accomplish such a purpose by invidious distinctions b/w classes of its citizens
 This is not an absolute barrier to moving state to state, but it is a taint
 Professor: They could have decided this under privileges and immunities. These clauses often
protect the same things
O Dunn v. Blumstein (1972)
 Facts: Tennessee places a one-year in state residency requirement for voting
 Super Con-Law 52
 Holding: Durational residence requirements are subject to strict scrutiny both because they
curtail the fundamental interest in voting and because they burden the right to travel
 Accord: Starnes v. Malkerson (1971) (Invalidating a durational residence requirements on in state
tuitions that presumes that a student is an out of state resident unless they can prove otherwise as a
violation of Due Process which contains a rebuttable presumption contrary to fact)
 Professor: These things all overlap
O Memorial Hospital v. Maricopa County (1974)
 Facts: Durational residence requirements on free emergency hospital care for indigents
 Holding: Durational residence requirements violate the Equal Protection clause of the 14th
Amendment.
 Reasoning: Medical care, like welfare, is a basic necessity of life to an indigent. The state’s
durational residence requirement penalizes indigents from exercising their right to migrate and settle
in the state
 Compare: Sosna v. Iowa (1975) (Finding that durational residence requirements for the privilege to a
divorce under Iowa’s favorable laws does not violate equal protection b/c the area of domestic
relations has long been regarded as a virtually exclusive province of the states)
O Saenz v. Roe (1999)
 Facts: California durational residency requirement on welfare benefits
 Holding: The Privileges and Immunities clause of the 14th Amendment protects the rights of
newly arrived citizens seeking to become residents of another state to the same privileges and
immunities enjoyed by citizens of the state
 Reasoning: Although the word “travel” is not in text of the Constitution, the right to travel from one
state to another is firmly embedded in our jurisprudence
 Protects the right of one citizen of one state to enter and leave another state (Cramdell and
Edwards)
O Right to be treated as a welcome visitor and not unfriendly alien when temporarily in a state
O Right to be treated like other citizens of that state if you choose to move to a new state
O Right to go from on state to another, including the right to cross borders
 Nonresident temporarily present in another state is protected by the Privileges and Immunities
Clause of Article IV, § 2
O Since a person has a state citizenship, a citizen who travels to other states and intends to
return home is entitled to enjoy the privileges and immunities of other states he visits
 The right of a newly arrived citizen seeking to become residents of another state to the same
privileges and immunities enjoyed by other citizens
O This is the issue of this case
 Professor: The basic rule we get out of the travel cases is that US citizens have the right to travel
into, leave, or enter states—and once you get there, you should be treated the same way as anyone
who has been there for a long time.
 Super Con-Law 53

 CHAPTER 8: SUBSTANTIVE DUE PROCESS: RISE, DECLINE, REVIVAL_____________________________

O Introduction: Substantive Due Process v. Procedural Due Process
 Procedural Due Process: An individual only has the right not to be deprived of life, liberty or
property without Due Process. Therefore you can be deprived of any of these rights provides
that due process of law is afforded.
 On its face, “Due Process” seems like a procedural rule whereas the government can do anything
they want to you if they follow Due Process (e.g. the government can kill you if they follow the
capital punishment procedures)
 However, the government cannot torture you before the kill you because US citizens have a
substantive right not to be tortured
 Substantive Due Process: A right which cannot be violated by the government regardless of
the procedures they afford you
 In the Slaughter House Cases, the court rejected the notion of substantive due process and
therefore blocked the utilization of the 14th Amendment Privileges and Immunites clause as a
 Super Con-Law 54
substantive restraint on state legislation. Eventually, the dissenters plea for protection of
fundamental values would prevail by the end of the 19th century in the economic sphere under
the due process context.
 The modern trend has been to expand substantive Due Process rights (e.g. abortion).
O THE LOCHNER ERA: JUDICIAL INTERVENTION AND ECONOMIC REGULATION
 Lochner v. New York (1905)
 Facts: NY State prohibited the employment of bakers for more than 10 hours a day or 60 hours a
week. The bakeries complained that this was a violation of their substantive Due Process rights
to hire employees who want to work this long
 Holding: Freedom of master and employee to contract with each other in relation to their
employment in the marketplace cannot be prohibited or interfered with without violating
substantive Due Process.
 Reasoning:
O The state should not interfere with an employees willingness to work a specified number of
hours and an employers desire to hire such workers
O The court found that the statute involves neither the safety, morals nor welfare of the public.
 Dissent (O.W. Holmes): No such substantive right exists in the Constitution and it is well settled
that state laws may regulate life in many ways which the judiciary may think is injudicious.
 Professor: This case is an example of the Supreme Court reading something into the Due Process
that is difficult to find. Scalia equates Roe v. Wade to Lochner
 Note:
O During the Lochner period, various business regulations were found unconstitutional because
they prevent the corporations from doing anything they want
O The New Deal brings new awareness to working conditions and results in the repudiation of
Lochner and related decisions. Lochner is now a symbol of inappropriate judicial
intervention in the legislative process.
 THE REVIVAL OF SUBSTANTIVE DUE PROCESS FOR NONECONOMIC LIBERTIES
O Introduction
 These cases address the question of whether Due Process authorizes the court to infer fundamental
values from the Due Process Clause that are not traceable directly to Constitutional text, history or
structure or whether such action would resemble inappropriate judicial legislation such as Lochner
 9th Amendment: The enumeration in the Constitution of certain rights shall not be construed to
malign or disparage others retained by the people
 Recall that under the social contract theory, the People only gave up some of their rights
 After the 14th Amendment was passed, it became the source of where all of the rights retained
by the people is found—even when they are not specified in the Constitution
O Scalia’s problem is that the Constitution does not specify that the judges get to decide what
these rights are.
O Myer v. Nebraska (1923)
 Facts: During WWI, Nebraska passes a law that makes it illegal to teach a child the German
language. This law was passed in response to the large German population in the state. The teacher
and parents would go to jail if they did.
 Holding (McReynolds): Substantive Due Process denotes not merely freedom from bodily
restraint, but also the right of the individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to marry, establish a home and bring up
children, to worship God according to the dictates of his own conscience, and generally to
enjoy those privileges long recognized at common law as essential to the orderly pursuit of
happiness by free men
 Super Con-Law 55
 Reasoning: The right to teach your child German is part of the noneconomic substantive due process
right of parents and guardian to direct the upbringing and education of children under their control
 Professor: This is why a prisoner cannot be denied the right to marriage
O Pierce v. Society of Sisters (1925)
 Facts: Oregon law prohibited parents from placing their children in parochial and private schools
 Holding: The government cannot take away the noneconomic substantive Due Process right to
bring up children as a parent or guardian sees fit
 Reasoning: The child is not the mere teacher of the state. Those who nurture them and direct their
destiny have the right, coupled with the high duty, to recognize and prepare them for additional
obligations
O Skinner v. Oklahoma (1942)
 Facts: Oklahoma passes a law providing that after three convictions of “moral turpitude” an
individual is to be sterilized. These crimes include grand larceny but exempt embezzlement.
 Holding: Marriage and procreation are protected by substantive due process and legislation
which interferes with the right to do so are unconstitutional
 Reasoning: A man’s balls are necessary for procreation and marriage and marriage and procreation
are fundamental to the existence of the human race.
O CONTRACEPTION & ABORTION
 Griswold v. Connecticut (1965)
 Facts: Connecticut passes a law providing that it is a crime to purchase, prescribe, or use
contraception. The law is challenged by a married couple. The state didn’t concede that this law
was justified on the teachings of the Catholic Church, so they claimed its purpose was to prevent
illicit sex
 Holding: Prohibitions of contraceptive devices violate noneconomic Substantive Due
Process rights
 Reasoning:
O The intimate choice between husband and wife to use contraception lies within a zone of
privacy emanating from the penumbras of the Bill of Rights.
O A governmental purpose to control or prevent activities constitutionally subject to state
regulation (marriage) may not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms
O Desuetude: This is the doctrinal argument that the law “has withered on the vine” and no one
is paying attention to it.
 The Development of the Right to Privacy
O Zonal privacy
 4th Amendment protection against unreasonable searches and seizures
 3rd Amendment: prohibition against the quartering of soldiers
O Associational privacy
 1st Amendment (reaffirms Pierce and Myers that the state may not contract the spectrum
of available knowledge through speech, distribute, receive, inquire, think and teach)
O Autonomous privacy: Right to make personal autonomous decisions about our lives
 Fifth Amendment: Right against self-incrimination
 Note: The Court expressly disavows Lochner as a basis for its decision
O Lochner has come to stand for inappropriate judicial intervention into the legislative process
O Nevertheless, the Court has not found all judicial intervention via substantive due process to
be improper. Although the Court refrains from careful scrutiny of most economic
regulations, it has not hesitated to find substantive due process controlling as to laws
infringing privacy and other noneconomic personal interests not explicitly protected by the
Constitution.
 Eisenstadt v. Baird (1972)
 Super Con-Law 56
 Facts: Conviction under a law banning the distribution of contraceptives to unmarried persons
 Holding: The right to privacy from government intrusion into matters fundamentally
affecting a person is the right of all individuals under the equal protection clause
 Reasoning:
O The right of privacy is the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a person as the
decision whether to bear or beget a child
O This extends beyond the bedroom to protect the doctor, pharmacist, etc...
 Professor: This case may have provided the foundation for Roe v. Wade
 Carey v. Population Services International (1977)
 Facts: Prohibition of contraceptives to minors under the age of 16
 Holding: When a state burdens the exercise of a fundamental substantive due process
right, its attempt to justify that legislation as a rational means for accomplishment of a
compelling governmental purpose requires more than a bare assertion that the legislation
furthers that interest
 Reasoning: The statute failed to survive a strict scrutiny analysis because of the substantial doubt
that limiting access to contraceptives would in fact discourage early sexual behavior
 Roe v. Wade (1973)
 Facts: Challenge of a Texas abortion law that criminalized abortion except when medical advice
deemed it necessary to save the life of the mother (typical of most state’s abortion laws at the
time).
 Holding (Blackmun):
O A women’s right to terminate her pregnancy is a Substantive Due Process fundamental
personal right implicit in the concept of ordered liberty, and regulations of this right
can only be justified by a compelling state interest and narrowly tailored legislative
enactment
O In the abortion context, compelling interests in the health of the mother and that of
potential human life permit regulations of abortion at the end of the first trimester and
point of viability, respectively
 Reasoning:
O Although the constitution does not explicitly provide the right to privacy, the right to
personal privacy derives from the liberty clause of 14th Amendment Due Process (NOT
emanating from the penumbras)
O In other areas of the law, the fetus has no legal rights—especially during the early part of its
existence (e.g. no criminal or tort liability for injury to fetus)
O The trimester system
 1-3 months: No state interference w/woman’s decision
 4-6 months: Compelling interest in protecting women’s health. State may regulate the
abortion procedure (e.g. required physicians, facilities)
 7-9 months: Compelling interest in protecting viable fetus. State may criminalize
abortion except when necessary to preserve the health of the mother.
 Dissenting (White): The majority’s judgment is an improvident and extravagant exercise of
judicial review into a sensitive area involving issues over which reasonable men may heatedly
differ. Such decisions should be left to the people through their elected representatives.
 Note: Presently, Congress is attempting to pass legislation granting the early fetus legal rights in
order to undermine Roe v. Wade.
 Caution: The trimester system is no longer the law
 Super Con-Law 57
 Professor: The decision was met by pockets of resistance throughout the country. Instead of
attacking the law directly, the resistance sought to make it as difficult as possible for a woman to
exercise her Constitutional rights.
 Planned Parenthood v. Danfourth (1976)
 Facts: State law required a husband’s written consent for an abortion during the first 12 weeks of
pregnancy.
 Holding: A state cannot delegate a women’s authority to prevent an abortion during the
first trimester
 Reasoning: No absolute veto is permissible
 Bellotti v. Baird (1979)
 Facts: State law requires parental consent for minor to have an abortion
 Holding: Parental consent requirements unduly burden the right to seek an abortion when
an alternative judicial bypass is not provided
 Reasoning: Parental involvement cannot amount to an absolute and possibly arbitrary veto
 Professor: The state must provide an alternative procedure whereby the pregnant minor may
demonstrate that she is sufficiently mature to make the abortion decision itself or that despite her
immaturity an abortion would be in her best interest
 Akron v. Akron Center for Reproductive Health (Akron I) (1983)
 Facts: State law required that: (1) abortion in the first trimester take place in a hospital rather
than less expensive outpatient facilities; (2) physician inform patient of fetus’ potential viability;
(3) mandatory 24 hour waiting period.
 Holding: A state may not legislate significant obstacles in the path of a woman seeking an
abortion
 Reasoning: The statute was not designed to inform women or protect their health, it was only
designed to make an abortion more difficult to go through with and costly to obtain b/c it
required two separate trips to the facility.
 Note: The 24 hour waiting period is found permissible in Casey below.
 Thornburgh v. American Coll. of Obst. Gyn. (1986)
 Facts: State reporting requirement regarding the identities of the physician and pregnant woman
 Holding: A state may not legislate provisions that would chill the freedom to have an
abortion
 Maher v. Roe (1977)
 Facts: State law granting Medicaid benefits for childbirth but denying them for medically
unnecessary abortions
 Holding: A strict scrutiny analysis is not required for the unequal treatment of abortion
and childbirth in a State’s funding scheme because it does not interfere with the
fundamental right to have an abortion
 Reasoning:
O Roe implies no limitation on the authority of the State to make a value judgment favoring
childbirth over abortion in its allocation of scarce resources
O The funding scheme places no limitations on the indigent’s ability to have abortions that are
not already present
 Dissenting (Brennan): The distinction in state funding coerces indigent women to bear children
they otherwise would not choose to
 Harris v. McRae (1980)
 Facts: Federal funding limitation of the Hyde Amendment bars payments for most medically
necessary abortions unless rape, incest or mother’s life in danger
 Holding: The government may not place obstacles in the path of a woman’s exercise of
freedom of choice, but it need not remove those not of their creation.
 Super Con-Law 58
 Reasoning: It simply does not follow from Roe that a woman’s freedom of choice carries with it
a constitutional entitlement to the financial resources to avail herself of the full range of
protected choices
 Rust v. Sullivan (1991)
 Facts: State law excludes facilities that counsel the use of abortion as a method of family
planning from federal family planning funds
 Holding (Powell): The government has no Constitutional duty to subsidize an activity
merely because the activity is Constitutionally protected and may validly choose to fund
childbirth over abortion
 Professor: After this case, the cases that followed cast considerable doubts on the continuing
validity of Roe v. Wade
O Thornburgh and Webster indicate that O’Connor and Kennedy are critical of Roe v. Wade
O The anti-abortion faction of Scalia, White, and Rehnquist only needed one of the two to
come to their side
O The ACLU recognizes that the Supreme Court may overrule Roe v. Wade, so they file an
immediate cert. petition in order for the decision to be heard prior to the 1992 presidential
election and thrust into the political debates.
 Planned Parenthood v. Casey (1992)
 Facts: Family planning association challenges a state law which requires doctors to dispense
information to, obtain the informed consent of, and retain information about pregnant women
seeking abortion. Roe v. Wade reconsidered.
 Holding (Joint opinion of O’Connor, Kennedy, Souter):
O A woman’s Constitutional right to terminate her pregnancy derives from the liberty
clause of 14th Amendment Due Process (Upholds Roe v. Wade)
O State regulation of abortion is permissible as long as it does not unduly burden a
woman’s protected liberty by creating a substantial obstacle in the path of a woman
seeking an abortion of a nonviable fetus.
 Reasoning:
O There has been no change in facts, or society’s understanding of facts, that would justify
overruling Roe and offending stare decisis.
 LochnerWest Coast Hotel: The Great Depression change proved that contractual
freedom in an unregulated market fails to satisfy minimal levels of human welfare
 PlessyBrown: Society’s view on racial segregation changed
 RoeCasey:
 Women have not been victimized in the way that back-alley abortions previously did,
and the philosophical question of when life begins is still purely subjective. No event
has come along to prove to the Supreme Court that abortion is murder.
 However, medical advances have made abortion procedures less dangerous to the
mother and cast doubt on the reasoning of the trimester system as a misconception of
the nature of the pregnant women’s interest that undervalues the State’s interest in
potential life.
 Policy: Liberty finds no refuge in a jurisprudence of doubt
 Note:
O Regulations which do not constitute an undue burden include: (1) 24 hour waiting period
(overrules Akron I); (2) regulations designed to foster the health of a woman seeking
abortion; (3) persuasive measures which favor childbirth over abortion, even if they do not
further a health interest; (4) parental consent as long as there are adequate judicial bypass
procedures; (5) requirement to file an anonymous report by clinics
 Super Con-Law 59
O Regulation requiring notice to fathers found to be an undue burden b/c of the high risk of
domestic violence
 Mazurek v. Armstrong (1997)
 Facts: Montana passes a law which permits abortions only to be performed by physicians.
Montana is scarcely populated, and a roving woman physician assistant currently performs many
abortions in the rural areas. The new law had the practical effect of making it more difficult for a
Montana women to get an abortion.
 Holding: A law does not have the effect of creating a substantial obstacle to abortion if only
a single practitioner is affected
 Stenberg v. Carhart (2000)
 Facts: State law bans partial birth abortions (aka “dilation and extraction” aka “D & X”) without
providing an exception to preserve the mother’s health
 Holding (Breyer): Where substantial medical authority supports the proposition that
banning a particular abortion procedure could endanger women’s health, it is an undue
burden to do so without including a health exception for the preservation of the mother’s
health.
 Dissenting (Kennedy): Casey is premised on the importance of the state’s role in defining
interests in the abortion debate. A state’s measure to preserve the dignity of human life and the
medical profession should permit the prohibition of morally offensive abortion procedures.
 Professor:
O Undue burden analysis focuses on the relationship between mother, child, and doctor
O If the Supreme Court ever actually overrules Roe v. Wade, 45 out of 50 states would likely
pass abortion rights legislation. Abortion is widely accepted at this point.
O Congress has passed a new partial birth abortion law that contains a medical exception. The
law has been challenged several times in lower courts and has been found unconstitutional
every time as impermissibly vague. The Supreme Court will likely grant certiorari on one of
them.
O FAMILY RELATIONSHIPS
 Loving v. Virginia (1967)
 Facts: If a white married a black, both went to jail. If a white married a Native American, both
went to jail. If a Native American married a black, neither went to jail. In effect, this law is
saying that the lower classes can’t marry into the upper class, and if a white associates with a
lower class minority then they go to jail.
 Holding: The freedom to marry has long been recognized as one of the vital substantive
due process personal rights to the orderly pursuit of happiness and regulations which
directly and substantially interfere with that right must be subject to strict scrutiny
 Reasoning: Clearly an equal protection violation because punishment is based on race, could not
survive strict scrutiny
 Accord: Zablocki v. Redhail (1978) (Invalidating a law which prohibited an individual from
getting married if the burden of child support obligations was not met); Turner v. Safely (1987)
(Invalidating a prison regulation that restricted an inmate’s right to marry except for compelling
reasons like pregnancy)
 Moore v. East Cleveland (1977)
 Facts: City zoning ordinance narrowly defined “family” as only including a few categories of
related individuals and excluding a grandmother living with two grandchildren who are cousins
but not siblings
 Holding: The tradition of extended families is protected by substantive due process, and
any intrusion is subject to strict scrutiny and must be narrowly tailored to further a
substantial governmental interest
 Super Con-Law 60
 Reasoning: The constitution protects the freedom of family members to choose to live together
as an extended family
 Compare: Belle Terre v. Boraas (1974) (Sustaining a family oriented zoning ordinance excluded
unrelated groups from a village, holding that unrelated people have no substantive due process
protection as a family and finding that the ordinance was rationally related to the governmental
interest of limiting congestion and noise and promoting family values)
 Troxel v. Granville (2000)
 Facts: Law granted grandparents visiting rights over the objections of the sole surviving parent.
A couple gets divorced, and the child’s mother refuses to permit her ex-husband’s parents to
visit. The law wasn’t limited to grandparents and permitted the court to grant visitation rights to
other non-relatives.
 Holding: Substantive due process protects the fundamental right of parents to make
decisions in the care, custody, and control of their children and the court must give
substantial deference to a parent or guardian’s determinations
 Reasoning:
o The question is not the poor grandparent’s rights, but the parent’s rights.
o So long as a parent adequately cares for his or her child, there will normally be no reason for
the state to inject itself into the private realm of the family to contradict the parent’s decision
concerning child rearing
 Michael H. v. Gerald D. (1989)
 Facts: Law establishes a presumption that a child born to the wife is legitimately a child of the
marriage. Carol D. and Michael H. have an affair and have a child. All the blood tests indicate
that the child was the natural child of Michael H. Carol D. and Michael H. break up, and Carol
D. goes back to her husband Gerald D. Michael H. wants visitation rights and the family refuses.
 Holding (Scalia): Substantive due process protection requires not only that the interest be
fundamental, but that it is an interest traditionally protected by our society
 Reasoning:
o The “Napoleonic Code” presumption was adopted to preserve the child’s inheritance and the
father’s property in the child.
o Under family law
 Dissenting (Brennan): The majority should not use a methodology relying on historical
traditions. Instead, they should inquire more generally whether parenthood is an interest which
requires protection.
 Professor: If the whore wasn’t married and had the kid, then Michael H. would have visitation
rights pursuant to his Meyer substantive due process rights.
 Caution: Although the outcome is valid, the reasoning is no longer endorsed
o Casey, “It is tempting to believe that Substantive Due Process only protects those interests
that were protected at the time of the drafting of the Constitution, but such reasoning is
against the law
o Lawrence (gay rights) kills this rationale
 Professor: Scalia hates to let judge’s have any discretion and constantly relies on history as
binding
O SEXUALITY
 Introduction
 Does the Constitution protect the right of unmarried people to fuck without being punished?
o No Supreme Court case directly on point
o Lawrence (the gay ass-fucking case) stands for the proposition that consenting adults cannot
be punished for their sexual behavior
 Bowers v. Hardwick (1986)
 Super Con-Law 61
 Facts: State law criminalized homosexual sodomy.
 Holding: Private homosexual sodomy is not a right protected by Substantive Due Process
and states may constitutionally prohibit such conduct
 Caution: Overruled by Lawrence
 Lawrence v. Texas (2003)
 Facts: State punished two adult homosexual partners for engaging in sodomy in their home.
Sodomy was a crime under state law. The law defined “deviant sexual intercourse” as anal sex
with a member of the same sex.
 Holding: Substantive due process protects overt expression of intimate conduct with
another consenting adult, regardless of gender, in the privacy of one’s home without
government intrusion
 Reasoning:
o The question is not if there is a Constitutional right to homosexual anal sex, but whether
there is a Constitutional protection against the State entering your bedroom to see who you’re
fucking in the ass.
o The State cannot demean homosexual existence by making their sexual conduct a crime
 Note: The court explicitly prohibits application of this case as a basis for Constitutional
recognition of gay-marriage.
 Policy: Moral disapproval cannot justify criminal sanctions for private sexual conduct
 Concurring (O’Connor): This case can be decided on equal protection grounds because it does
not punish straight couples for anal sex. If both were punished, then the law would be valid.
 Dissenting (Scalia):
o Foreign decisions should have no impact on our Constitutional analysis
o This decision has sided with the homosexual agenda, and makes it clear the court has taken
sides on the culture war. Many Americans don’t want homosexuals to be teachers or
scoutmasters.
 Professor:
o Homosexuality was already not illegal in New York under the State Constitution 15 years
earlier. Several other states followed suit.
o The “evolving standard of public decency” constitutional theory derives from State laws that
eventually made it unconstitutional to execute retarded criminals. This theory gives
recognition to Scalia’s “long-tradition” theory on substantive Due Process, and states that an
emerging awareness is the new tradition.
o This standard was applied by the majority, who cited European high court precedent, the
MPC, and the State’s practice of repealing their sodomy laws as evidence that the evolving
standard of public decency accepts homosexuality
 Gay Marriage Consequences
o Goodridge v. Department of Public Health (Mass. 2000)
 Holding: Prohibition against same-sex marriage violate substantive due process (of
the state constitution) and equal protection
 Reasoning: The court rejects all of the states justifications...
 Providing a favorable setting for procreation
o Criticism: People don’t only marry to have children
 Providing the optimal setting for parent-rearing (2 parents of different sexes)
o Criticism: Only 25% of American households consist of two married parents
 Preserving scarce State and private financial resources (e.g. welfare)
o Criticism: Homosexuals are not always richer than straight people
O DEATH
 Introduction: Does an individual have a Constitutional right to decide to die?
 Super Con-Law 62
 Cruzan v. Director (1990)
 Facts: An individual was in a vegetative state after a serious automobile accident. She was only
capable of surviving on life support. Her parents want to take her off the machine on the
grounds that she “would not have wanted to live like this.”
 Holding: The Constitution grants a competent person the right to clearly and convincingly
refuse life-support, but since an incompetent person is not able to make an informed and
voluntary choice, a state may set the standard that a guardian cannot make the decision
absent a showing of clear and convincing evidence of the incompetent’s wishes (e.g. a living
will)
 Reasoning: The state is entitled to set the “clear and convincing” evidentiary standard in order to
protect the substantial interest in preventing mistakes, abuse and a generalized interest in the
preservation of life
 Washington v. Glucksberg (1997)
 Facts: Physicians seek a declaratory judgment that the Constitution permits a physician to assist
competent terminally ill patients (3 months away from death) who desire to commit suicide but
are physically incapable. Challenged on Substantive Due Process grounds.
 Holding: There is no substantive due process right to Doctor assisted suicide and therefore
a ban on assisted suicide is not unconstitutional, either on its face or as applied to
competent, terminally ill adults who wish to hasten their deaths
 Reasoning:
o Suicide is a serious public-health problem and the terminally ill are a vulnerable group
influenced by their depression
o The State also has interest in preventing euthanasia and preserving the integrity and ethics of
medical practice
o The historical “long tradition” of assisting suicide has always been a crime, and there is not a
emerging awareness
 Note: Competent adults may refuse medical treatment
 Policy: Slippery slope which may lead to involuntary euthanasia of the elderly
 Vacco v. Quill (1997)
 Facts: Physicians seek a declaratory judgment that the Constitution permits a physician to assist
competent terminally ill patients (3 months away from death) who desire to commit suicide but
are physically incapable. Challenged on Equal Protection grounds because competent patients
on life support can choose death but the terminally ill cannot.
 Holding: Everyone, regardless of physical condition, is entitled, if competent, to refuse
unwanted lifesaving medical treatment—but no one is permitted to assist a suicide
 Professor: The problem with these cases is that they struck down any Doctor assisted suicide
cases on their face, and subtle issues were left unresolved

 CHAPTER 11: FREEDOM OF SPEECH_______________________________________________________

o In General
 1st Amendment: Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press or the right
of the people peaceably to assemble, and to petition the government for a redress of grievances.
 Textual Analysis
 To a literalist, it appears that the First Amendment only applies to Congress (e.g. President could
silence free speech with military action. However, early on this protection was extended
 Super Con-Law 63
 To a literalist, it appears this does not apply to the states
O Up until 1868, States had their own freedom of speech in their constitutions
O 14th Amendment Incorporates the First Amendment to all the States
 To a literalist, it appears to protect all speech.
O However, implicitly the Amendment reads the Congress cannot restrict speech unless they
show a compelling state reason advanced through the lease restrictive means to restrict the
speech
O Additionally, the following categories of speech are outside of 1st Amendment Protection:
(1) Incitement; (2) Fighting Words; (3) Libel; Obscenity; Child Pornography
 First Amendment Rights
 Establishment: Religion
 Free Exercise: Religion
 Speech
 Press: More rights than normal speech
 Assembly: Group speech
 Petition the Government for Regressive Grievances: Invoking an organized procedure for
resolving a dispute. Separate from speech.
 Freedom of Speech Underlying Policies
 Ensures a Free Government: All of the views of all the candidates need to be disseminated
 Truth: Freedom of speech leads to truth
O John Milton, “Let her and Falsehood grapple; who ever knew truth put to the worst, in a free
and open encounter?”
O O.W. Holmes, “The best test of truth is the power of the thought to get accepted in the
competition of the market”
 Autonomy: Speech is protected simply as a form of free expression, even if it has no practical
effect
 Commercial: Speech used simply to find the best price available (e.g. Expedia.com)
O CATEGORY 1: INCITEMENT
 THE WORLD WAR I CASES AND THE ORIGIN OF “CLEAR AND PRESENT DANGER”
 Introduction
O Prior to WWI, the Supreme Court had little cause to address Freedom of Speech
O The existing governing rule at this time was the natural tendency test which provided that, “if
the natural and reasonable effect of what is said is to encourage resistance to a law and the
words are used in an endeavor to persuade to resistance than a crime is committed.”
O Problems:
 Person effected (e.g. Ted Bundy claimed that a book made him kill all of his victims)
O Causation (e.g. If A says something to B, and B does a bad act, it is altogether unclear
whether A is the cause of B’s actions)
O Jury’s Prejudicial Speculation (e.g. The jury is likely to find that a disfavored viewpoint has a
natural tendency)
O Timing (e.g. A book written today may have an affect twenty years from now (such as the
Communist Manifesto)
O Intent: However, the jury was traditionally permitted to infer that if they found the words to
encourage resistance, then the speaker intended them to do so
 Schenck v. US (1919)
O Facts: Defendant circulating anti-draft pamphlets during WWI tried under the Espionage Act
for “causing insubordination and obstruction of military services.”
 Super Con-Law 64
O Holding (Holmes): The question in every case is whether the words used are used in
such circumstances and are of such a nature as to create a clear and present danger that
they will bring about the substantive evils that Congress has a right to prevent
O Reasoning:
 “The character of every act depends upon the circumstances in which it was done. The
most stringent protection of free speech would not protect a man in falsely shouting fire
in a theatre and causing panic.”
 In this case, the circumstances of war were found to prohibit speech that otherwise would
be permitted because of the potential hindrance on the war effort
 The test is a question of proximity, degree, likelihood and intent—if the act its tendency
and the intent with which it was done are the same, the court sees no ground for saying
that you can only be convicted if you are successful
 Frohwerk v. US (1919)
O Facts: German-American produced and distributed pamphlets proclaiming the American
presence in France a monumental mistake. Tried under the Espionage Act for “causing
insubordination and obstruction of military services.”
O Holding (Holmes): The First Amendment was not intended to give immunity to all
speech
O Reasoning:
 “It is impossible to say that it might not have been found that the circulation of the paper
was in quarters where a little breath would be enough to kindle a flame.”
 In other words, even though the paper itself didn’t appear to have any special intent
behind it to reach men who were subject to the draft, the court found that the paper was
distributed in an are where it could have been inflammatory
 Debs v. US (1919)
O Facts: During a speech, Debs claims he must be prudent and might not be able to say all that
he feels, although he is proud of those who stood their ground, resisted the draft, and were
imprisoned for their conduct. Tells the crowd they need to know they are destined to be
more than slaves and cannon-fodder. Tried under the Espionage Act for “causing
insubordination and obstruction of military services.”
O Holding (Holmes): Advocacy of personal opinions is protected by free speech unless the
jury finds that there is a clear and present danger such speech will: (1) have the natural
tendency and reasonable probable effect to cause bad acts; and (2) the defendant has
the specific intent to do so in his mind.
O Reasoning: The court found that Debs praise of draft resisters encourages others to resist the
draft
O Compare: Bond v. Floyd (1966) (Finding speech of a student rights organization leader
claiming he was sympathetic and in support of the men in this country unwilling to respond
to the Vietnam draft)
 Abrams v. US (1919)
O Facts: The communist party in the US, including the defendants, printed a p amphlet in
Yiddish appealing to workers in munitions factories to stop producing weapons to be used
against the Russian revolutionaries. Ds are tried and convicted, not under the Espionage Act,
but for hampering the production of ammunitions for the German war (as a factual matter,
the ammunitions cannot logically be separated).
O Holding: Men must be held to have intended, and to be accountable for, the effects which
their acts were likely to produce
O Dissenting (Holmes):
 When words are used exactly, a deed is not done with intent to produce the
consequence unless that consequence is the aim, or proximate motive, of the deed
 Super Con-Law 65
 It is only the present danger of an immediate evil or an intent to bring it about that
warrants Congress in setting a limit to the expression of opinion where private
rights are not concerned
O Dissent Reasoning:
 Intent
 Ds did not intend to cripple the German war effort
 In the First Amendment context, legal effect must be given to the speaker’s words as
evidence of intent—despite “deeper motives.”
 Immediate Evil is the source of the “imminent” element in the modern Brandenburg test
(see below
O Dissent Policy: “When men have realized that time has upset many fighting faiths, they may
come to believe even more than they believe the very foundations of their own conduct that
the ultimate good desired is better reached by free trade in ideas—that the best test of truth is
the power of the thought to get itself accepted in the competition of the market, and that truth
is the only ground upon which their wishes safely can be carried out. That at any rate is the
theory of our Constitution. It is an experiment, as all life is an experiment.”
 Masses Publishing Co. v. Patten (S.D.N.Y. 1917)
O Facts: The publisher of the socialist magazine “the masses” permitted a cartoon to run with a
Paul Bunyan American being strangled by the two snakes of “capitalism” and “constriction.”
Patten, the post-master general of NY, came across the cartoon and found it to encourage
resistance to the law. Accordingly, he didn’t let the magazine circulate.
O Holding (Hand): The First Amendment only prohibits language which directly
advocates or counsels other to violate the law as it stands because it is in their interest
or duty to do so
O Reasoning:
 There has always been a recognized limit on free expression, incident to the existence of
any compulsive power of the state. One may not counsel or advise others to violate the
law as it stands
 If one stops short of urging upon others that it is their duty or interest to resist the law,
then the speaker should not be held the cause of the violation
O Policy:
 “One may admire and approve the course of a hero without feeling any duty to follow
him”
 Legitimate political agitation must be tolerated to safeguard free government
O Comparing Hand and Holmes
 Holmes: Focused on forecasts about the likelihood speech would produce danger
 e.g. Praising a conscientious objector is counseling
 Hand: Focused directly on the speaker’s words
 e.g. There is an appreciable distance between esteem and emulation
 THE “RED SCARE” CASES
 Introduction
O In the 1920s-30s, the States began passing laws criminalizing “anarchy.” These laws
addressed the fear that the communist party was growing within the country and sought to
violently overthrow the government.
O These cases involve the prosecution of individuals advocating The Communist Manifesto
(“Workers of the world unite, you have nothing to lose but your chains”)
O The problem is, the “bad act” of overthrowing the government hadn’t happened, and the laws
simply made it criminal at inception
 Gitlow v. New York (1925)
 Super Con-Law 66
O Facts: Defendant printed a communist newspaper advocating mass industrial and political
strikes and the overthrow of the parliamentary state
O Holding: The communist manifesto advocates and urges in industrial disturbances and
revolutionary mass action to overthrow and destroy organized government
O Reasoning:
 The court grasps onto Holmes language from Frohwerk and finds that a single
revolutionary spark may kindle a fire that, smoldering for a time, may burst into a
sweeping and destructive conflagration
 The utterances present a sufficient danger of a substantive evil to bring their punishment
within the range of legislative discretion
O Dissent (Holmes): Eloquence may set fire to reason, but whatever may be thought of the
redundant discourse before us it had no chance of starting a present conflagration
O Dissent Reasoning: Every idea is an incitement, however in this case, there is no direct
inducement of an incitement by the communist manifesto
 Whitney v. California (1927)
O Facts: A prominent member of the communist labor party is tried for violating the anarchy
laws simply because she is a member of the communist party. The law does not distinguish
between those who knowingly join only because they want communist-pussy, those who
know the party’s aims and don’t share them, and those that know and share the aims. All
who knowingly join have violated the law. The defendant here knowingly joined, but she
didn’t share the beliefs.
O Holding: Affirms conviction
O Dissenting (Brandeis):
 To justify suppression of free speech there must be reasonable ground to fear that
serious evil will imminently result
 A state may, in the exercise of its police powers, punish utterances inimical to the
public welfare, tending to incite crime, disturb the public peace, or endanger the
foundations of organized government and threaten its overthrow by unlawful
means.
O Reasoning:
 Every denunciation of existing law tends in some measure to increase the probability that
there will be violation of it.
 The wide difference between advocacy and incitement, between preparation and attempt,
between assembly and conspiracy, must be borne in mind
 In this case, the accused was impermissibly punished for a step in preparation which only
presents a remote threat to public order.
O Policy:
 Those who won our independence by revolution were not cowards and did not fear
political change or exalt order at the cost of liberty
 It is the function of free speech to free men from the bondage of irrational fears.
O Compare: Fiske v. Kansas (1927) (Finding that a conviction of a defendant who had solicited
new members for a branch of the industrial Workers of the World solely on the basis of the
preamble of the group’s constitution stating “Workers of the world unite” violated Due
Process b/c the language was insufficient to establish that the organization advocated crime,
violence, or other unlawful acts)
 De Jonge v. Oregon (1937)
O Facts: D charged under criminal syndicalism law for renting a hall to the Communist party
w/o participating in the event
O Holding: Participation alone cannot be criminalized because peaceable assembly is a
substantive First Amendment right
 Super Con-Law 67
 Herndon v. Lowry (1937)
O Facts: Black Organizer for the Communist Party convicted of an “attempt to incite
insurrection” under Georgia law prohibiting “any combined resistance to the lawful authority
of the State, with intent to the denial thereof, when the same is manifested or intended to be
manifested by acts of violence.” The conviction rested on documents in D’s possession
urging party members to vote for black self-determination and seceding from the US.
O Holding: Speech cannot be criminalized for incitement absent a showing of forcible
subversion or imminent insurrection
O Reasoning: All the black-communist did was advocate an ultimate ideal
 Dennis v. United States (1951)
O Facts: A group of communist conspirators were prosecuted under the Smith Act for
Conspiracy to overthrow the government. The Smith Act was a federal law which made it
unlawful for any person to knowingly or willfully advocate or teach the necessity, duty, or
desirability of overthrowing or destroying the United States government by force or violence,
or to organize or affiliate with a group seeking to do so.
O Holding: When speech or publication creates a “clear and present danger” of attempting or
accomplishing a prohibited crime, the government may constitutionally restrict that speech
and a conviction relying on the speech and press as evidence may be sustained.
O Reasoning: The government should not have to wait the putsch is about to be executed, plans
have been laid and signals awaited.
O Dissent (Douglas): History teaches that the independence of the judiciary is jeopardized
when courts become embroiled in the passions of the day and assume primary
responsibility in choosing between competing political, economic and social pressures.
O Dissent Reasoning: The defendants are charged with conspiracy, yet they do not teach
sabotage, stealing documents, assassination of the president, the art of street warfare or
setting bombs.
O Professor: This was a bad decision in that there was not a sufficient link between the speech
and the envisioned “act.” This decision is a reflection of history, in that the communists were
a real threat to the United States and scared the citizens and the population as a whole.
 Yates v. United States (1957)
O Facts: More Smith Act prosecutions, except now McCarthy had died and the anti-communist
fervor had somewhat abated.
O Holding (Harlan): The distinction between advocacy of abstract doctrine and advocacy
directed at promoting unlawful action is paramount to discerning whether speech
constitutes unlawful incitement
O Reasoning: The essential distinction is that those to whom the advocacy is addressed must be
urged to do something, now or in the future, rather than merely to believe in something.
 Scales v. United States (1961)
O Facts: Government convicts D under the membership clause of the Smith Act, which made it
a felony knowingly to become a member of a group advocating the violent overthrow of the
US.
O Holding: In order to criminalize membership in an organization, the government must
prove the individual’s specific intent to accomplish the violent aims of the organization
and that the individual is an active, rather than nominal member.
O Professor: This is the modern criminal organization test
 Communist Party v. SACB (1961)
O Facts: The Subversive Activities Control Act of 1950 was an intricate scheme for registration
and disclosure of Communist organization’s activities.
 Super Con-Law 68
O Holding: Freedom of speech and association do not prevent the government from
requiring the registration and filing of information, including membership lists, by
organizations substantially dominated or controlled by the Communist movement.
O Reasoning: Lost the free speech argument, won on 5th Amendment self-incrimination
grounds b/c they would be immediately prosecuted under the Smith Act
O Caution: This is bad law
O Compare: US v. Robel (1967) (Invalidating provision denying employment in any defense
facility to members of the communist party as an infringement of First Amendment right of
association on the grounds that the government cannot say that each member of the
communist party is automatically a danger)
 Lamont v. Postmaster General (1965)
O Facts: Law in which the post-master screened unsealed foreign mail for communist
propaganda and notified the addressee it would be destroyed unless they sent back a postcard
requesting it.
O Holding: The First Amendment right to receive information and ideas prohibits placing
obstacles or deterrents in the reception of the mail
 Bond v. Floyd (1966)
O Facts: Georgia refused to seat Bond because during his role as an official for the Student
Nonviolent Coordinating Committee, he expressed sympathy for Vietnam draft-dodgers.
O Holding: Even though the state has an interest in requiring its legislature to swear to a
belief in constitutional processes of government, it does not give them a right to limit a
legislator’s capacity to discuss his views on local or national policy
O Reasoning: Insufficient to constitute counseling, aiding, or abetting the refusal or evasion of
draft registration.
 Watts v. United States (1969)
O Facts: Conviction under a 1917 law making it a felony “knowingly and willfully” to make
“any threat to take the life” of the President. Petitioner had said at a public rally: “Now I have
already received my draft classification as 1-A and I have got to report for my physical this
Monday coming. I am not going. If they ever make me carry a rifle, the first man I want to
get in my sights is L.B.J. They are not going to make me kill my black brothers.”
O Holding: Political hyperbole does not constitute a threat outside 1st Amendment
protection
O Reasoning: This is not a threat because of the fact that there is a condition attached.
 THE MODERN INCITEMENT TEST
 Brandenburg v. Ohio (1969)
O Facts: A KKK leader appealed his conviction under the Ohio Criminal Syndicalism statute
for advocating the duty and necessity of using crime, violence, and terrorism to accomplish
political reform, and for teaching the doctrines of criminal syndicalism. KKK leader invited a
reporter to a rally which was broadcast nationally.
O Holding: Constitutional guarantees of free speech and free press will not permit a state
to forbid or proscribe advocacy of the use of force or of a violation of the law unless
such advocacy is (1) directed to inciting and producing imminent lawless action and (2)
is likely to incite or produce such action.
O Reasoning: This is a very fact-specific test. The facts must be likely to produce the action at
that specific time rather than possibly at some time in the future
 E.g. White cop unnecessarily kills black teen, black community riots. Community
member stands up on a podium near the police station and says, “The cops have declared
war on us, we should declare war on them. Every time they kill one of us, we should kill
one of them—and we better start thinking about that right now and stop talking about
 Super Con-Law 69
violence as a dirty word.” This would fall under Brandenburg b/c: (1) there’s a riot
going on; (2) block away from the police station; (3) black teen had just been killed. In
effect the defendant was saying, let’s kill a cop.
 E.g. “We hereby publicly counsel those young men who continue in their refusal to serve
in the armed forces as long as the war in Vietnam continues and we pledge ourselves to
aid and abet them in all ways we can.” This is not within Brandenburg b/c the men they
are speaking to have already decided to violate the draft law.
O Professor: This is the modern incitement test
 Hess v. Indiana (1973)
O Facts: Campus anti-war demonstrator yells to arresting officers, “We’ll take the fucking
street later.”
O Holding: A conviction cannot be upheld under Brandenburg unless there is sufficient
evidence supporting a rational inference from the language that words were intended
and likely to produce imminent disorder
O Reasoning: At best, the statement could be taken as counsel for present moderation; at worst,
it amounted to nothing more than advocacy of illegal action at some indefinite future time.
 Planned Parenthood v. American Coalition of Life Activists (9th Cir. 2002)
O Facts: Abortion activists found civilly liable for publishing a website depicting “WANTED”
posters of abortion doctors with lines drawn through the names of those doctors killed or
wounded by radical abortion activists. Freedom of Access to Clinics Entrances Act (FACE)
provides a right of action against whoever by “threat of forces intentionally intimidates any
person because that person is or has been providing reproductive health services.” 18 USC
§248(a)(1) & (c)(1)(A).
O Holding: If a threat is on its face and in the circumstances so unequivocal,
unconditional, immediate and specific as to the person threatened as to convey a gravity
of purpose and imminent prospect of execution, then it is outside the scope of First
Amendment protection
O Reasoning: While advocating violence is protected, threatening a person with violence is not
O Professor: Members of the Jewish Defense League (JDL) were convicted under the same
principle for stating over national television broadcast that they would kill Arafat during his
visit to the United States
O CATEGORY 2: FIGHTING WORDS AND HOSTILE AUDIENCES
 FIGHTING WORDS
 Introduction
O Hypo: Under 18 U.S.C. §871, whoever knowingly utters a threat to take the life or inflict
bodily crime upon the president is guilty of a five-year felony. A drunk in a jail claims he is
going to kill the president
O Analysis:
 Under Brandenburg, this is not advocacy and it is not likely to occur
 However, this law has been upheld time and time again because the evil that the law is
trying to prevent is the threat. The theory is that simply hearing a threat against the
President’s life is disturbing and may incite a violent reaction.
 Nevertheless, there could not be a federal law penalizing threats against professors who
give bad grades b/c there needs to be some federal nexus (e.g. member of congress)
 Under 18 U.S.C. §875(c), whoever transmits in interstate commerce any communication
containing any threat to injure the person of another.

 Cantwell v. Connecticut (1940)

 Super Con-Law 70
O Facts: Cantwell, a Jehovah’s Witness, stands out on the street and asks people what their
religion is. If they respond that they are Catholics, he plays a record calling the Catholic
Church a sham and an instrument of the devil. When people tell him they’re going to kick
his ass, he leaves.
o Holding: Legislation must be narrowly tailored to define and punish specific conduct as
constituting a clear and present danger to the state’s interest in maintaining public
peace and order and may not unduly suppress free communication of views, religious
or other, under the guise of conserving desirable conditions.
o Reasoning: The court found that the defendant was only trying to interest passerby in his
propaganda and he would leave when asked.
 Chaplinsky v. New Hampshire (1942)
o Facts: Jehovah’s Witness called a Marshall a “God damned racketeer” and a “damned
fascist” and was convicted under a statute which stated that, “No person shall address any
offensive or annoying word to any other person who’s lawfully in any street or other public
place, nor call him by an offensive or derisive name.”
o Holding: There are certain well-defined and narrowly limited classes of speech, the
prevention of which has never been though to raise any Constitutional problem. These
include the lewd and obscene, the profane, the libelous, and the insulting or “fighting
word”—those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace.
o Reasoning: These categories are of such slight social value that any benefit is outweighed by
the clearly compelling interests in order and morality they offend
 Cohen v. California (1971)
o Facts: During the Vietnam War, an individual goes into a courthouse corridor wearing a
jacket with the words “Fuck the Draft” on his back.
o Holding: Fighting words are those personally abusive epithets which, when addressed
directly and in person to the ordinary citizen are as a matter of common knowledge
inherently likely to provoke violent reaction
o Reasoning:
 Cohen cannot be convicted on the basis of any of the justifications for restricting the
freedom of speech where compelling state interests are advanced through the least
restrictive means
 Justifications: Incitement (Brandenburg); Fighting words; Libel; Obscenity;
Unwilling thrusting (e.g. sending a penthouse to a nun)
 In this case none of the applications are met
 Fuck the draft is not obscenity because it doesn’t get you hot an bothered
 Fuck the draft is not a personal epithet, and no individual would reasonably regard
them as such
 Fuck the draft was not thrust upon unwilling viewers because an unwilling listener
can simply avert their eyes and walk away. Unwilling thrusting theory requires a
showing of invaded privacy, not applicable in the public.
 Linguistic expression serves a dual communicative function: it conveys not only ideas
capable of relatively precise detached explanation, but otherwise inexpressible emotions
as well. The constitution protects both the emotive and cognitive function of speech and
sometimes the emotive function is more important.
o Policy: The state has no right to cleanse the public debate to the point that it is grammatically
palatable to everyone. One man’s vulgarity is another’s lyric.
o Professor:
 Super Con-Law 71
 Playing an abusive record or song off your IPOD is not a fighting word because it is not
personally abusive
 The threat must be a direct personal insult (e.g. burning a flag is not fighting words)
 The threat must be one that an ordinary citizen would be provoked by (e.g. “The Knicks
suck” is not fighting words.)
 However, if the trial Judge asked Cohen if he had anything to say prior sentencing and he
said “Fuck the Draft,” then he could be held in contempt of court.
 HOSTILE AUDIENCES
 Introduction:
O Involves speech which provokes unsympathetic listeners to violence of threats of violence
arising when an audience is provoked either by the form of the message or by the message
itself.
O Addressed by a balancing test rather than categorically as in fighting words
 Terminello v. Chicago (1949)
O Facts: Speaker calls the audience “snakes and slimy scum.”
O Holding: Speech is protected against censorship or punishment, unless shown likely to
produce a clear and present danger of a serious substantive evil that rises far above
public inconvenience, annoyance, or unrest.
O Reasoning: A function of free speech under our system of government is to invite dispute. It
may indeed best serve its high purpose when it induces conditions of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger.
O Professor: A hostile audience, by definition, cannot be fighting words because it is directed to
an audience at large and the individual is too far removed to legally strike back
 Feiner v. New York (1951)
O Facts: Black speaker calls the mayor a bum and the American legion a Nazi Gestapo and
calls on the blacks to rise. Speaker was asked to stop speaking by the police twice after the
police were warned that the crowd would riot.
O Holding: Although the police cannot be used as an instrument for the suppression of
unpopular views, they may be used when the speaker passes the bounds of argument
and persuasion and undertakes incitement to riot.
O Dissent: The speaker has been punished for the unpopular views he expressed
O Professor: This is a bad case b/c the police must first take all lawful efforts to protect the
speaker, and in this case they immediately sided with the angry mob.
 Edwards v. South Carolina (1963)
O Facts: Police arrest civil rights demonstrators for arousing the crowd by silently protesting
segregation with placards.
O Holding: The 14th Amendment does not permit a State to make criminal the peaceful
expression of unpopular views.
O Professor: The hypothetical officer must decide whether to arrest the speaker or the hostile
audience member. Here, the POs should have arrested violent members of the crowd.
 Kunz v. New York (1951)
 Facts: NYC law prohibited worship on the street w/o a license
 Holding: Licensing ordinances which provide administrative officials with the
discretionary right to control speech in advance are invalid as prior restraints
 Forsyth County v. Nationalist Movement
 Facts: County ordinance required demonstrators on public property to pay a fee of up to $1000 a
day to cover the cost of extra law enforcement and cleanup from counter-demonstrator’s
throwing things. The County administrator was permitted to vary the fee based on “the expense
incident to the public order.”
 Super Con-Law 72
 Holding: The First Amendment prohibits the vesting of unbridled discretion in a
government official.
 Reasoning: Speech cannot be financially burdened, any more than it can be punished or banned,
simply b/c it might offend a hostile mob.
O CATEGORY 3: INJURY TO REPUTATION AND SENSIBILITY
 LIBEL - TORT
 Introduction
O Libel is a tort – damage to your reputation – publication of a defamatory statement.
 Factual Statement, not an opinion
 Lower opinion of right thinking people in the community
 From the time of the First Amendment until the 60’s, libel law and the First Amendment
were distinct bodies of law
 Eventually, New York Times v. Sullivan attempted to reconcile the two
O There used to be something called “group libel” where there was a criminal penalty for
saying something nasty about a particular group (e.g. “the Jews suck”).
 However, we no longer sanction group libel, and “hate-crimes” are only sanctionable if
they are fighting words
 Tort of Libel Requirements:
O Element 1: A publication (libel is written down, slander is spoken) to people beyond the
person who is the subject of the libel
O Element 2: The libel must be of and concerning a specific plaintiff
 E.g. There is a famous case in the 10th Cir. where someone was accused of writing in
Playboy that Miss Wyoming won the Miss America contest by blowing all of the Judges.
The article characterized the woman as blonde and with a lasso specialty. This was true,
but since the article claimed she levitated when she sucked cock, the Court found that it
was fictional. Has to be referred to you directly.
O Element 3: Defamatory statement
 Must be a factual statement that can be proved or disproved (e.g. not “the Mayor is
incompetent”)
 Must lower the person’s reputation amongst right-minded members of the community
(e.g. Calling a fellow inmate a “snitch” would not be libel b/c right-minded members of
the community would applaud a government informant)
 Note: There is recent debate over whether calling someone “gay” is necessarily
defamatory
O Element 4: Causes Damages
 The individual must show how the libel has caused him to suffer
 Exceptions
 Accusing someone of committing a crime
 Accusing someone of bad business practices
 Accusing a woman of un-chastity
 Accusing someone of having a loathsome disease
 People can be libel proof (e.g. If you accuses Sammy the Bull of killing someone, that’s
not slander because right-minded people already know he is a murderer)
 Some cases were damages are presumed; other than that must prove that is ACTUALLY
damaged you.
O Element 5: Fault on the part of the publisher
 E.g. If a newspaper checks a story with 5 independent sources and confirms accusatory
facts, then even if the fact is false, the journalist is not liable for the libel.
 New York Times v. Sullivan (1964)
 Super Con-Law 73
O Facts: During the Civil Rights movement, and advertisement embedded by the New York
Times claimed that Sullivan did nothing to prevent violence against demonstrators at the
College campus and allowed MLK to be arrested 7 times. The police chief claims that there
are many things wrong with the advertisement, brings a libel action in Alabama, and is
awarded $500,000.
O Holding (Brennan): Public officials are prohibited from recovering damages for
defamatory statements unless the statement is made with actual malice defined as
knowledge that the statement was false or with reckless disregard as to its truth.
O Reasoning:
 Evidence of actual malice must be clear and convincing proof, a preponderance is
insufficient – need more than that.
 If you are a public official (or public figure) there is no liability unless you can show
actual malice
 If you are a non-public figure
 There is no punitive damages unless you can show actual malice
 There are no compensatory damages unless you can show fault
O Policy: To hold otherwise would impede the reporting of important events `
O Professor:
 None of the Sullivan test derived from tort law. All of a sudden, the First Amendment
intruded into the law of libel.
 It is usually a bad idea to bring a libel suit b/c it draws attention to the libel, it is
expensive to prove, and 98% of the time you lose
 Herbert v. Lando (1979)
O Facts: TV producer claims editorial privilege that would have precluded questions in pretrial
discovery proceedings pertaining to liability under the actual malice standard.
O Holding: Members of the press are open to a wide range of inquiries on whether they
were guilty of knowing or reckless falsity
 Philadelphia Newspapers v. Hepps (1986)
O Holding: Plaintiff bears the burden of proof in establishing the falsity of the allegedly
defamatory statement
 Curtis Publishing v. Butts (1967)
O Facts: The coach of an Alabama football team was accused of fixing the outcome of a game
with bookies.
O Holding: The NY Times rule applies to libel actions instituted by persons who are not
public officials but who are public figures and involved in issues in which the public has
a justified and important interest
O Reasoning: Public figures do not require the protection of the courts because the press will
permit them to set the record straight whereas a non-public figure could not
 Time, Inc. v. Firestone (1976)
O Facts: Wealthy divorcee brings libel action against Time magazine.
O Holding: An individual is not a public figure unless the individual assumes a role of
prominence in the affairs of society
O Reasoning: The court found that although the divorcee may be prominent in the Palm Beach
rich-bitch society, she is not prominent in society as a whole.
 Hutchinson v. Proxmire (1979)
O Facts: Federally funded monkey researcher claims he is a public figure.
O Holding: An individual is not a public figure unless they thrust themselves or their
views into public controversy to influence others.
 Wolfson v. Reader’s Digest (1979)
 Super Con-Law 74
O Facts: Brief stint in the public eye during communist espionage charges
O Holding: Public figure status is not permanent and fades along with prominence
 Rosenbloom v. Metromedia (1971)
O Facts: Libel initiated by a publisher of nudist magazines in response to radio reports about
alleged police action in response to his smut-literature-racket.
O Holding: If the subject matter relating to a private figure is a matter of public concern
then the public figure libel rule applies
O Reasoning: The public’s primary interest is in the event: the public focus is on the conduct of
the participant and the content, effect and significance of the conduct—not the participant’s
prior anonymity of notoriety
O Professor: This case might not be good law anymore...
 Gertz v. Robert Welch (1974)
O Facts: Chicago lawyer brings libel action against magazine for publication alleging that he
was an architect of a frame-up of a police officer and a communist.
O Holding: For non-public figures, the actual malice standard is required to recover
punitive damages
O Reasoning: Compensatory damages only require a showing of fault
 Dun & Bradstreet v. Greenmoss Builders (1985)
O Facts: Dun & Bradstreet is a firm that provides credit reports. The firm published a faulty
credit report. The corporation claimed public figure status as a defense.
O Holding: Even if you are a public official or figure, if that which you say is only a
matter of private concern than the actual malice test does not apply and only a showing
of fault is required for the plaintiff to recover compensatory damages
O Reasoning: It cannot be said that the credit report was part of the free-flow of commercial
information b/c it was only made available to five subscribers and they agreed by contract
not to disseminate it further
 Summary
O When the speech is of public concern and the plaintiff is a public official or figure, the
constitution clearly requires the plaintiff to surmount the much higher barrier of actual malice
before recovering damages from a media defendant then is raised by the common law
O When the speech is of public concern and the plaintiff is a private figure (Gertz) the
constitution still places a higher burden on damages than the common law, but is less
forbidding then the standard for public figures and publicly concerned speech
O When the speech is of exclusively private concern and the plaintiff is a private figure (D&B)
the constitutional requirements are roughly the same as the common law tort requirement of
fault.
 NON-DEFAMATION TORTS
 Intentional Infliction of Emotional Distress
O Hustler Magazine v. Farwell (1988)
 Facts: Hustler makes an ad where Jerry Farwell claims that “the first time I had sex was
in an outhouse with my mother.” The advertisement clearly said that it was a parody not
to be taking literally. Farwell could not win on libel, so he brought an action for
intentional infliction of emotional distress and won.
 Holding: A cause of action for intentional infliction of emotional distress cannot be
brought by a public figure when the it arises from libel.
 Reasoning: The Court only recognizes libel as an action against First Amendment
protected speech.
 Tort of Invasion of Privacy
O Types of Privacy
 Super Con-Law 75
 Zonal Privacy: Essentially trespass. There are reasonable expectations of privacy in
one’s home or hospital room
 False Light Privacy: This is really the equivalent of libel.
 Disclosure of Intimate Personal Facts: (e.g. It is not libelous that a woman was once a
prostitute, but disclosure of the fact after the woman has reformed herself and begun a
new life invades privacy
 Commercial Use of Your Personality
O Time, Inc. v. Hill (1967)
 Facts: Time broadcasts a play based on a family’s kidnapping and displays pictures of the
actual victims next to actors. The family sues under a NYC privacy law.
 Holding: The constitutional protection of free speech and press preclude the
application of general privacy laws to redress false reports of matters of public
interest in the absence of the actual malice libel standard.
 Reasoning: The general privacy laws didn’t meet the requirement of libel b/c it doesn’t
cast the family in a false light
O Cox Broadcasting v. Cohn (1975)
 Facts: Father sued over the broadcasting that his daughter was raped
 Holding:
 Civil liability in a true privacy action cannot be imposed upon a broadcaster for
accurately broadcasting information released to the public in official court
records.
 In order to recover for the public disclosure of private facts, a plaintiff must
show: (1) that publicity was given to matters concerning plaintiff’s private life;
(2) the publication would be highly offensive to a reasonable person of ordinary
sensibilities; and (3) that the matter publicized is not of legitimate public
concern or newsworthiness
 Reasoning: The dissemination of lawfully obtained truthful information can never be
sanctionable unless it is not newsworthy
O Bartnicki v. Vopper (2001)
 Facts: There is a Federal statute criminalizing illegal wiretapping and disclosure of the
illegally wiretapped conversations. The press report on a labor dispute involving violent
actions against employers after obtaining information from a third party who had an
illegal wiretap in place.
 Holding: If the press lawfully obtains truthful information about a matter of public
significance obtained illegally by a third party, state officials may not
constitutionally punish the publication of the information unless there is a need of
the highest order.
 Reasoning:
 The broadcasters were engaged in no unlawful activity, the speakers had little or no
interest in maintaining the privacy of the conversation, which involved a significant
concern for the safety of others
 The government’s interest in maintaining privacy gives way to the public concern
 Professor: The press enjoys special rules where disclosure serves a special purpose
O Zacchini v. Scripps-Howard Broadcasting (1977)
 Facts: Defendant, a TV news program, videotaped and aired plaintiff’s entire human
cannonball act. Plaintiff claims this is my trick and I should be able to play it where I
want.
 Holding: The press does not have the right to invalidate proprietary interests on
First Amendment grounds
 Reasoning: Combination of copyright and patent law
 Super Con-Law 76

O CATEGORY 4: HATE SPEECH

 In General
 Hate Speech: Speech denigrating a group on the basis of race, gender, sexuality, etc...
 Fundamentally, you cannot punish hate speech unless it is: (1) Fighting word personal epitaph;
or (3) true threat reasonably perceived by the person to whom directed as a threat
 Therefore, although there is a separate section on hate speech, it is not a separate category of
sanctionable speech (Chaplinsky-Cohen Categories)
 National Socialist Party v. Skokie (1977)
 Facts: American Nazi party seeks to march in a small town with many Holocaust survivors. The
town passes three laws and gets an injunction against the demonstration. The Supreme Court
voids the injunction. The town then attempts to enforce the laws.
 Holding: Strict procedural safeguards including immediate appellate review are necessary
in the First Amendment forum for the suppression of hate speech
 Reasoning:
O The swastika cannot be found fighting words or a true threat
O Anticipation of a hostile audience is not a justification for the prior restraint
O If citizens would be offended, they can merely avert their eyes
 Policy: It is better to allow those who preach racial hate to expend their venom in rhetoric rather
than to be panicked into embarking on the dangerous course of permitting the government to
decide what its citizens may say and hear
 R.A.V. v. City of St. Paul (1992)
 Facts: Juvenile burns a cross on a black family’s front yard. The law under which he is punished
criminalizes the burning of a cross or display of a Nazi swastika as per se violation.
 Holding:
O Nonverbal expressive activity can be banned because of the action it entails, but not
because of the ideas it expresses
O Content-based regulations of speech are presumptively invalid
 Reasoning:
O The government may not regulate based on hostility towards the underlying message
expressed
 E.g. Burning a flag in violation of an ordinance against outdoor fires could be punishable,
whereas burning a flag in violation of an ordinance against dishonoring the flag is not
O The statute at issues goes beyond even content discrimination to actual viewpoint
discrimination
 Professor:
O You can punish hate speech when it is a true threat or a fighting word, but the law must focus
only on true threat speech to survive constitutional challenges to its breadth
O The defendants could have been convicted of trespassing or arson because that does not focus
on the meaning of the symbol
O States may criminalize fighting words when the statute is narrowly tailored to include
fighting words only
 Super Con-Law 77
O The problem with the statute in this case is that it was under-inclusive. It focused on some
fighting words (religion and race) but not others. Therefore, the distinction is based on
content and is unconstitutional.
O Viewpoint
O Content
O Category

 Wisconsin v. Mitchell (1993)

 Facts: A group of black teenagers watch a movie where a black kid is beat up. The defendant
says “y’all wanna fuck up a white boy,” and points out the victim. The group beats him into a
comma and steals his shoes.
 Holding: R.A.V. is limited to viewpoint selective laws aimed expressly at otherwise
protected words or symbols, not hate crimes
 Reasoning: Whereas the law in R.A.V. was explicitly directed at expression, the statute in this
case is aimed at conduct unprotected by the First Amendment (assault).
 Professor:
O There is a big difference between hate speech and hate crimes. There can be increased
criminal penalties for hate crimes because they involve extra “bad intent.”
O Here, the speech is only about establishing bad intent
 Virginia v. Black (2003)
 Facts: The Virginia statute criminalizes the burning of a cross in any public place with the intent
to intimidate. However, under the statute, the burning of the cross is per se evidence of intent to
intimidate. D1 burns a cross on an abandoned field off the highway. D2 and D3 burn a cross on
a family’s front yard. Both are convicted under the statute.
 Holding:
O Intimidation in the constitutionally proscribable sense of the word is a type of true
threat, where a speaker directs a threat to a person or group of persons with the intent
of placing the victim in fear of bodily harm or death.
O Burning a cross may be evidence of an intimidating true threat, but the totality of the
surrounding circumstances must be taken into account
O Similar to RAV but with the distinction of intimidation
O §
 Reasoning:
O The long history of cross-burning indicates that it is a symbol of hate which may be
perceived by the person to whom directed as a serious threat of the KKK’s wrath. Therefore
it may in some instances be unconstitutional intimidation, regardless of whether the
individual intends to carry out the threat
O Instead of prohibiting all intimidating messages, the government may regulate this specific
subset due to its virulent form
O The only thing wrong with the law is that the prima facie intimidation jury instruction was
unconstitutionally overbroad.
 Professor: This case was notable because it was the first time cross-burning was found to be a
true threat. It was also the first time Justice Clarence Thomas spoke during oral argument.
O CATEGORY 5: SEXUALLY EXPLICIT EXPRESSION
 Introduction
 Historically, obscenity laws grew out of blasphemy b/c the way to blaspheme a God was to put
them in a sexual situation
 Throughout the early 19th century, blasphemy and obscenity laws were on the books in many
jurisdictions
 Super Con-Law 78
 Just as with libel, the First Amendment was not discussed in connection w/obscenity
 In general, if speech is sexually explicit but not obscene and does not constitute child
pornography, it is within the realm of First Amendment protection
 However, the court has struggled with whether it should be analyzed as a subordinate category of
speech
 Roth v. U.S. (1957)
 Facts: Roth was a disgusting pervert being prosecuted for mailing obscene advertising.
However, Roth did not argue that his material were not-obscene, he argued that the obscenity
laws were unconstitutional on their face.
 Holding (Brennan): Obscene material is material which has a dominant theme that, taken
as a whole, deals with sex in a manner appealing to prurient interests determined from the
perspective of an average person applying contemporary community standards (utterly
with social importance, if there is some value, then cannot be obscene)
 Reasoning: The court rejected an earlier test whereas obscenity was anything “tending to deprave
the most easily susceptible minds.” This was analogous to the “natural tendency” precursor to
the “clear and present danger” test.
 Professor:
O Even great works such as Ulysses were prosecuted under obscenity laws for sexual
references prior to Roth. They were decided to not be obscene w/o reference to the First
Amendment.
O Brennan emphasizes that all ideas having even the slightest redeeming social importance
have the full protection of the guarantees, unless excludable b/c they encroach upon the
limited areas of more important interests. This line finds its way into the Memoirs test
 Memoirs v. Massachusetts (1966)
 Facts: Famous book “Annie Hall” challenged as obscene
 Holding: Obscenity is determined from a three part test: (1) the dominant theme of the
material taken as a whole appeals to a prurient interest in sex; (2) the material is patently
offensive because it affronts contemporary community standards relating to the description
or representation of sexual matters; and (3) the material is utterly without redeeming social
value.
 Professor:
O Under this standard, any lawyer could argue that material had some “redeeming social value”
by putting some expert on the stand to testify some obscure theory.
O From 1966-1973, everything was permissible
 Kingsley Int’l Pictures v. Regents (1959)
 Facts: Lady Chatterley’s Lover, a film where a woman cheated on her weak husband with her
rough gardener, was banned by New York. It had no sexually explicit scenes, but fell within
NY’s ban of “immoral films” which portray sexual immorality as acceptable behavior.
 Holding: The government may not prohibit sexual expression because it conveys an idea
the government finds immoral
 Reasoning:
O The constitutional guarantee is not confined to the expression of ideas that are conventional
or shared by a majority
O The idea that adultery may be proper is no different than the idea that socialism is proper
 Stanley v. Georgia (1969)
 Facts: Stanley had all sorts of obscene material in his home found while investigating him for
bookkeeping. He was prosecuted for knowing possession of obscene material and argued that
you could prosecute the distributor, but not the adult viewer in the privacy of his home.
 Holding: Obscenity regulations may not reach into the privacy of one’s own home
 Super Con-Law 79
 Reasoning:
O The First Amendment prohibits a State from telling a man, sitting alone in his own home,
what books he may read or what films he may watch
O This derives from the Fourth Amendment right to privacy
 US v. Reidel (1971)
 Facts: Indictment under federal law prohibiting the mailing of obscene materials
 Holding: Stanley is not a basis for questioning the validity of obscenity distribution laws
 Reasoning:
O Obscenity and its distribution are outside the protection of the First Amendment
O The defendant could not claim infringement of privacy under Stanley because commerce
implicates no privacy interest. Roth has squarely placed obscenity and its distribution outside
the reach of the First Amendment
 Concurring:
O Mail distribution poses the danger that obscenity will inadvertently be sent to children. Even
though the defendant planned to sell only to adults who requested his materials, the only
safeguard he had in place was a declaration of the buyer’s age.
O More stringent steps to guard against receipt by minors would make distribution permissible
(e.g. credit card number).
 Miller v. California (1973)
 Facts: The social justification for prohibition of obscenity was always that it caused sex crimes.
President Nixon appointed a commission (1970 Obscenity Commission Report) that showed
college students obscene movies and came up with the amazing conclusion that obscenity makes
you horny but has nothing to do with crime. Nixon didn’t like the results and there was a huge
uproar b/w free love and censorship. Miller conducted a mass mailing of adult materials
depicting explicit pictures of group sexual intercourse with genitals graphically displayed.
 Holding: Speech may be criminalized as obscene if (1) the average person applying
contemporary community standards (local standard, see Hamling and Smith) would find
that the work, taken as a whole, appeals to prurient interests; (2) the work depicts or
describes, in a patently offensive way, sexual conduct specifically defined by the applicable
state law, and (3) the work, taken as a whole, lacks serious literary, artistic, political, or
social values (national reasonable person standard, see Pope)
 Reasoning:
O States have a legitimate interest in prohibiting the dissemination or exhibition of obscene
material when the mode of dissemination carries a significant danger of offending the
sensibilities of unwilling recipients or of exposure to juveniles
O Under this standard, a state could define for regulation representations of any “hard core”
sexual conduct including sexual acts, masturbation, excretory functions, or lewd exhibition of
genitals—but they must do so explicitly.
 Note: This case ups the requirement of redeeming social value from a scintilla to serious (e.g.
Grey’s Anatomy)
 Policy: To equate the free exchange of ideas and political debate with commercial exploitation of
obscene material demeans the First Amendment’s high purpose
 Professor: This means that the state laws need to graphically describe exactly what constitutes
“obscene” material in detail.
 Paris Adult Theatre I v. Slaton (1973)
 Facts: An adult movie theatre had a sign at its entrance forewarning obscenity and directing
those offended not to enter. It had no obscene pictures outside. The theatre analogized its
display of obscene material to the Stanley right of consenting adults to view obscenity in their
own homes.
 Super Con-Law 80
 Holding (Burger): States have a legitimate interest in regulating commerce in obscene
material and in regulating exhibition of obscene material in places of public
accommodation, including so-called “adult” theatres from which minors are excluded
 Reasoning:
O The legislature relied on the Hill-Link Minority Report of the Commission of Obscenity and
Pornography (1970) as an indication that there is an arguable correlation between obscene
materials and crime.
O It is not for the Supreme Court to resolve empirical uncertainties underlying state legislation
to protect the valid social interest in order and morality
 Policy: A man may be entitled to read obscene books and expose himself in his room, but if he
demands to do so in public places, even if discreetly so, then to grant him his right is to affect the
world about the rest of us and to impinge on other privacies
 Dissenting (Brennan):
O Obscenity cannot be defined in a manner that does not impermissibly suppress protected
speech
O The Miller standard is vague b/c the state’s interest in regulating the reading and viewing
habits of consenting adults cannot justify the substantial damage to constitutional rights
 Professor:
O The argument that obscene movies leads to crime is similar to the argument that violent
television leads to antisocial behavior. (e.g. kids watching Mr. Rogers act kindly whereas
kids watching Wile E. Coyote act violently).
O These arguments lack any “tight causation” justification or “clear and present danger” that
these results will follow from obscenity
O Subsequently, many State legislatures enacted obscenity laws citing eroding moral standards
harming the social fabric
 Jenkins v. Georgia (1974)
 Facts: Georgia jury finds the Hollywood movie Carnal Knowledge obscene. The state court
assumed that Miller precluded further judicial review regarding most elements of obscenity.
 Holding:
O It would be a serious misreading of Miller to conclude that juries have unbridled
discretion in determining what is patently offensive
O Nudity alone is not enough to make material legally obscene under the Miller standards.
 Reasoning: The film includes prominent actors and there was no exhibition of genitals
 Policy: To find it obscene runs the risk of a slippery slope leading to the prohibition of other
mainstream materials
 Hamling v. US (1974)
 Holding: Miller is determined from local community standards rather than national
standards
 Reasoning: The jury is in the best position to determine the standards of the community (e.g. a
NY jury never needs to base their decision on an Alabama communities standards)
 Smith v. US (1977)
 Facts: Smith mailed obscene material interstate from a state with no obscenity laws prohibiting
sales to adults to a state which does have such laws
 Holding: Miller is determined from the local community standards from which the jury is
selected
 Pope v. Illinois (1987)
 Holding: Serious value is determined by a national reasonable person standard rather than
local community standards
 Super Con-Law 81
 Reasoning: Just as the ideas a work represents need not obtain majority approval to merit
protection, neither does the value of the work vary from community to community based on the
degree of local acceptance it has won
 Professor: A respected artist named Robert Mapplethorpe portrayed men in homoerotic
embraces. These pictures were displayed in a museum in Cincinnati. The curator was
prosecuted for obscenity. An expert testified that it had serious artistic value and the jury
acquitted.
O CATEGORY 6: CHILD PORNOGRAPHY
 New York v. Ferber (1982)
 Facts: Under NY law, a person was guilty of promoting a sexual performance of a child if they
were under 16, engaged in sexual conduct, regardless of whether or not it was legally obscene.
Sexual conduct was defined as lewd exhibition of the genitals. The defendant facially
challenged it on the grounds that some medical films depict children naked for development
purposes. The defendant was convicted for distributing films w/young boys masturbating.
 Holding: Content-based prohibition of child pornography is constitutional under
Chaplinsky because the evil to be restricted so overwhelmingly outweighs the expressive
interest that no process of case-by case adjudication is required
 Reasoning: There are many compelling state interests which outweigh any slight artistic or
educational value, including...
O Safeguarding the physical and psychological well-being of minors
O Eliminating the sexual abuse of children through the acts permanently recorded and
exacerbated by distribution
O Eliminating the economic motive for the production of child pornography
 Osborne v. Ohio (1990)
 Facts: Conviction for the mere possession of child pornography in the defendant’s home.
Defendant invokes Stanley as a justification.
 Holding: Stanley is inapplicable to child pornography. The mere possession of child
pornography in one’s own home may be criminalized WHY? DO NOT WANT TO
ENCOURAGE CHILD PORNOGRAPHY.
 Reasoning: The interests in eliminating the criminal chain of child pornography distribution
justify criminalizing its demand
 Ashcroft v. Free Speech Coalition (2002)
 Facts: Congress passed the Child Pornography Prevention Act of 1996 (CPPA) which
criminalized simulated child pornography (images of computer generated children engaging in
sexual acts). The government justifies the legislation on the ground that the visual depiction of
the idea of child pornography whets pedophiles appetite to rape children.
 Holding: The mere tendency of speech to encourage unlawful acts is not sufficient to ban it
and the government cannot constitutionally premise legislation on the desirability of
controlling a person’s private thoughts
 Reasoning:
O This cannot be justified on the grounds that children are forced to engage in sexual conduct
O This law was overbroad on the grounds that it would equally apply to Romeo and Juliet,
American Beauty, Traffic, and other films were adult actors portray children engaged in
sexual activity
O However, if the technology evolves to the point that experts cannot decipher between
simulated and authentic child pornography, then the state may regulate virtual pornography
while providing an affirmative defense.
O CATEGORY 7: PORNOGRAPHY AS A SUBORDINATION OF WOMEN
 Introduction
 Super Con-Law 82
 The theory here is that some pornography depicts women subjected to abuse such as rape and
liking it, and that these films promote negative social consequences
 Catherine MacKinnon and Andrea Dworkin argued that pornography eroticized dominance,
submission, and pain, and therefore these mediums should be prohibited to prevent men from
believing it is permissible social behavior
 American Booksellers Ass’n v. Hudnut (7th Cir. 1986)
 Facts: Minneapolis and Indianapolis passed ordinances prohibiting “pornography” defined as the
presentation of women as sexual objects enjoying pain, subjected to torture, penetrated by
objects or animals, portrayed as inferior, or objects for dominium or exploitation. No explicit
sexual conduct was required b/c that was already covered by obscenity laws.
 Holding (Easterbrook): If speech leads to a mental attitude which may lead to bad
behavior, then the government cannot prohibit the speech for conditioning the bad
behavior.
 Reasoning:
O If the fact that speech plays a role in a process of conditioning were enough to permit
governmental regulation, that would be the end of the freedom of speech because all speech
affects the manner in which people see the world
O Under the MacKinnon-Dworkin view, pornography is not an idea, it is the injury. This
simply demonstrates the power of pornography as speech and its ability to affect our
attitudes.
O All is protected by speech (including racial bigotry, anti-Semitism, violence on TV, etc...)
however insidious. Any other answer leaves the government in control of all institutions of
culture, the great censor and director of which thoughts are good for us
O The court sometimes balances the value of speech against the costs of its restriction, but it
does this by category of speech, not by the content of particular speech. These regulations
have created an “approved point of view” and in doing do loses the support of these cases.
 Policy: Under the First Amendment, the government must leave to the people the evaluation of
ideas. Bold or subtle, an idea is as powerful as the audience allows it to be.
O CATEGORY 8: SEXUALLY EXPLICIT BUT NON-OBSCENE EXPRESSION
 Erznoznik v. Jacksonville (1975)
 Facts: Challenge to the facial validity of an ordinance prohibiting drive-in movie theatres with
screens visible from public streets from displaying films containing nudity.
 Holding: When the government, acting as a censor, undertakes selectively to shield the
public from some kinds of speech on the ground that they are more offensive than others,
the First Amendment strictly limits its power to the regulation of speech which intrudes on
the privacy of the home or when the degree of captivity makes it impractical for the
unwilling viewer to avoid exposure
 Reasoning:
O As in Cohen, the burden falls on the unwilling viewer to avoid further bombardment of their
sensibilities simply by averting their eyes
O Nudity alone is not obscene
 Note: If the ordinance prohibited all movies visible from the street, then it would have been a
valid content neutral time, place and manner restriction
 Schad v. Mount Ephraim (1981)
 Facts: Operators of a store selling adult materials include a coin slot where viewers could view a
nude dancer behind a glass panel. The state nudity covered prohibited all live entertainment.
 Holding:
O Nudity alone does not place otherwise protected material outside the mantle of the First
Amendment
 Super Con-Law 83
O When a zoning law infringes upon a protected liberty, it must be narrowly drawn and
must further a sufficiently substantial governmental interest
 Reasoning: Many live nude dancing exhibits are artistic (e.g. ballet)
 Professor: There is a whole line of cases involving live nude dancing where liquor is sold, and
the argument comes from the 21st Amendment prohibiting the transportation of liquor in
violation of state laws is unconstitutional. Therefore, States may establish conditions on the sale
of liquor. One such condition may be “no nudity where there is liquor.” Most states have struck
such conditions down.
 Young v. American Mini Theatres (1976)
 Facts: Detroit zoning ordinance doesn’t prohibit adult bookstores or movie theatres, but requires
that they cannot be within 500 feet of a protected area or within 1,000 feet of any two other adult
businesses. The theory was to prevent the development of “Skid-Row” neighborhoods with the
seedy criminal elements they attract and other “negative secondary effects.”
 Plurality (Stevens):
O Even though the First Amendment does not tolerate total suppression of erotic material, it is
manifest that erotic material is a lesser value of protected speech than political debate
O Legislatures have a compelling interest in regulating negative secondary effects and may use
the content of erotic material as a basis for placing them in different zoning classifications
 Concurring (Powell):
O Erogenous zoning is an innovative and permissible land-use regulation which does not
require viewing erotic speech as a lesser value of protected speech
O Erogenous zoning is permissible when: (1) it does not impose any content limitations on
the ability of distributors to make adult material available to whom they desire; and (2)
it does not restrict in any significant way the viewing of these movies by those who
desire to see them.
 Dissenting (Stewart):
O By refusing to invalidate the ordinance the Court disregards the cardinal principle of First
Amendment law which requires that time, place, and manner regulations that affect protected
expression be content-neutral except in the limited context of a captive or juvenile audience
O The consequences of rigorously enforcing the guarantees of the First Amendment are
frequently unpleasant—but that is the price to be paid for constitutional freedom
 Accord: Renton v. Playtime Theatres (1986) (Sustaining an erogenous zoning regulation on the
grounds that the ordinance by its terms is designed to prevent crime, protect the cities retail trade,
maintain property values, preserve quality of life in the cities neighborhoods—not to suppress
the expression of unpopular views or to place such speech in a lower category of protection)
O CATEGORY 9: INDECENCY BANS IN THE COMMUNICATIONS MEDIA (UNWILLING THRUSTING)
 Introduction:
 The First Amendment does not permit speech to intrude into the privacy of your home (e.g. Do
Not Call List)
 An individual’s home is there sanctuary, and therefore they are entitled to keep out those things
they find offensive
 FCC v. Pacifica Foundation (1978)
 Facts: FCC ban on the transmission of obscene or indecent speech on the public airwaves applied
to George Carlin’s “the original 7 dirty words,” namely “shit, piss, fuck, cunt, cocksucker,
motherfucker, and tits.” The FCC received a complaint from a man who heard it while driving
in the car with his son. The FCC filed a letter of reprimand in Pacifica’s folder.
 Holding (Stevens): Patently offensive, indecent material presented over the airwaves
confronts the citizen, not only in public, but in the privacy of their home, where the
 Super Con-Law 84
individual’s right to be let alone plainly outweighs the First Amendment right of an
intruder
 Reasoning:
O The broadcast media have established a uniquely pervasive presence in the lives of all
Americans
O Potential to influence children
O The government owns the public airwaves and the FCC may enforce its regulations of
nonpolitical opinions
 Professor: This why Janet Jackson’s nipple was such a big deal
 Rowan v. U.S. Post Office (1970)
 Facts: Congress passes a law whereas an individual who receives sexually provocative mail can
remove their name from the mailing list, and if the postman continues to deliver it, the post-
office can be fined.
 Holding: In today’s complex society we are inescapably captive audiences for many
purposes, but a significant measure of individual autonomy must survive to permit every
householder to exercise control over unwanted mail.
 Reasoning:
O The right of every person to be let alone must be placed on the scales with the right of others
to communicate
O In this case, the court found the balance to tip in favor of the homeowner
 Professor:
O FCC bans cannot extend to pay channels requirements because you pay for them. The theory
is that it is just like paying to see a movie in the theatre. This does not extend to basic cable
because you pay for the general package.
O This is unwilling thrusting because the individual is a captive audience and by the time the
individual gets up off their home sofa to change the channel, they have already been
bombarded by offensive material
 Con Edison v. Public Service Comm’n (1980)
 Facts: PSC legislation forbids the inclusion of political material in monthly bills. Con-ed is in
the practice of inserting public policy platforms in its bills
 Holding: Unsolicited political speech does not impermissibly invade the sanctity of the
home when the captive audience can easily avoid exposure by transferring the offensive
material from mail to wastebasket.
 Reasoning: The court found the political platforms to constitute only a minor intrusion
 Bolger v. Youngs Drug Products (1983)
 Facts: Federal law criminalizes advertising for contraceptives through the mail. Bolger mails out
advertisements for condoms.
 Holding: The First Amendment does not permit the government to prohibit speech as
intrusive unless the captive audience cannot easily avoid the objectionable speech without
prolonged bombardment
 Reasoning: There is nothing wrong or fraudulent about the advertisement and it may be welcome
to some
 Professor: This is more a commercial free speech issue
 Sable Communications v. FCC (1989)
 Facts: FCC criminalization of calling 900 “dial a porn” numbers.
 Holding: When active steps are required to access indecent material, there is no concern of
unwilling thrusting upon a captive audience
 Reasoning:
O Sexual expression which is indecent but obscene is protected by the First Amendment
 Super Con-Law 85
O There is a manifest difference between a radio show which can intrude into the privacy of
ones home without prior warning as to program content and a medium that requires a
presumptively aware listener to take steps to receive the communication
 Denver Area Educational Telecommunications v. FCC (1996) – cable (very technical medium)
 Facts: Congress regulation of cable broadcasting. In the cable industry, the consumer pays the
cable company for the service. In turn the cable company provides: (1) leased premium channels;
(2) mandated public access channels (the equivalent of a soap-box in the park); and (3)
government channels. Congress determines that it doesn’t want indecent material on the leased
and public access channels. The Television Consumer Protection Act of 1992 permits the cable-
companies to (a) establish prospective rules for the leased channels to follow; (b) block access to
certain channels unless the consumer requests it, or put all indecent material on a single channel;
(c) prohibit indecent material on the public-access channels and to block them if they don’t
comply
 Holding: First Amendment scrutiny of media indecency regulation requires an explicit
balancing
 Reasoning:
O Balancing is required because no competing analogy (bookstore, common carrier, broadcast)
allows the court to declare a rigid conventional standard for all future media and purposes
O Balancing Applied
 (a) is permissibly narrowly tailored
 (b) is the equivalent of a prior restraint and is unconstitutional
 (c) is unconstitutional because it is not up to the cable company to act as a censor when
the municipality already regulates it
 Unites States v. Playboy Entertainment (2000)
 Facts: Congress passes legislation which requires cable operators to either fully scramble
sexually explicit programming, and if they were unable to do so completely then they would
have to push showings back to late night hours
 Holding: Content based regulation of indecent but not obscene programming requires a
strict scrutiny and the law must be the least restrictive means possible to further the
compelling state interest
 Reasoning:
O When a plausible less restrictive alternative is offered to a content based speech restriction, it
is the government’s burden to prove that the alternative will be ineffective to achieve its
goals. The government failed to meet this burden here.
O The court distinguished...
 Erogenous zoning: No secondary effects here
 Broadcasting: Cable systems can block unwanted channels
 Reno v. ACLU (1997)
 Facts: The Communications Decency Act of 1996 criminalizes the knowing communication or
permission to communicate indecent material with a minor over the internet.
 Holding: In order to survive a strict scrutiny analysis, indecency regulation must be
narrowly tailored to promote the legitimate governmental interest in protecting children
 Reasoning: The statute was overbroad because...
O It wasn’t limited to commercial indecent speech
O It did not define indecent material under the Miller test
O Neither the parents consent nor participation will eliminate the application of the statute
O It does not have a fallback exemption for serious literary, artistic, political, or scientific value
O It is a blank prohibition on indecency which does not have an expert governing body (e.g. the
FCC) to determine whether a violation has occurs
 Super Con-Law 86
 Professor: The court distinguished the CDA from all existing permissible indecency regulations
narrowly tailored to further the interest in protecting children
 Ashcroft v. ACLU (2002)
 Facts: Congress responds to Reno with the Child Online Protection Act (COPA), which
criminalizes any obscene or indecent (determined by a reasonable individual in the community)
communication with a minor including genitals, breasts, simulated sex acts, etc. in a commercial
matter. Third Circuit held it unconstitutional because community standards do not exist in
cyberspace, and the communication will be determined indecent by the most conservative
community.
 Holding: Community standards for the internet are not determined by a precise
geographical area but by the jurors personal understanding of the national standard
 Reasoning:
 Ashcroft v. ACLU (2004)
 Facts: On remand, the Third Circuit finds more problems with COPA. This time the court finds
that less restrictive means are available such as filtering software, which will permit the
conveyor of adult material to make it accessible to adults without credit cards or adult access
numbers which is costly for the conveyor to verify. In other words, it is up for the adults at the
receiving end to determine what is appropriate for children.
 Holding: It is the parents’ responsibility to determine what speech communicated over the
internet is appropriate for their children.
 Reasoning: The court conducted a balancing, and found the scales to tip in favor of conveyors of
adult materials because less restrictive means were available.
O CATEGORY 10 : COMMERCIAL SPEECH
 Introduction: Commercial speech is speech which offers a commercial transaction; an advertisement
 Until 1976, commercial speech held no first amendment protection.
 Valentine v. Chrestensen (1942)
 Holding: The First Amendment does not protect commercial speech
 Reasoning: Commercial speech is not truth
 Caution: This case has been explicitly overruled
 Pittsburgh Press v. Pittsburgh Human Relations Comm’n (1973)
 Facts: Sex discrimination ordinance against a newspaper which ran, as all did at that time, a dual
column employment listing for “male jobs” and “female jobs.” The ordinance was challenged
by the newspaper on free speech grounds.
 Holding: Commercial speech does not enjoy First Amendment protection
 Reasoning: The court found the listings to be no more than a proposal for employment
 Caution: This case has been explicitly overruled
 Bigelow v. Virginia (1975)
 Facts: After Roe v. Wade, a Virginia newspaper criminalized the advertisement of abortion
services in other states. Challenged on free speech grounds.
 Holding: Political speech always enjoys First Amendment protection, even if presented in a
commercial form
 Reasoning: The court avoided the question by characterizing the speech as political rather than
commercial
 Virginia Pharmacy Board v. Virginia Citizens Consumer Council (1976)
 Facts: Virginia passed a law which criminalized the advertisement of the price of prescription
drugs in order to protect “mom and pops” from big chains like CVS. Although the law helps
small stores, it hurts the consumer. Virginia claims that the justification is maintaining the
professionalism of pharmacists.
 Holding:
 Super Con-Law 87
O Commercial speech is protected by the First Amendment as long as it is not: (1) an
advertisement for illegal transactions; or (2) factually false or misleading.
O Commercial speech does not enjoy special procedural protections such as the ban on
prior restraints or overbreadth (see Bates)
 Reasoning: Balancing...
O It is in the consumer’s best interest to be aware of the cheapest price
O It was in the best interest of the pharmacies to charge the drug at the highest markup
O If the State is concerned with professionalism, they can institute pharmacy regulations
 Bolger v. Youngs Drug Products (1983)
 Facts: Advertisement for contraceptives that also gave information on the importance of using
and the method of using contraceptives
 Holding: Commercial speech is protected by the First Amendment notwithstanding the fact
that they contain discussions of important public issues
 Professor: This is the flip side of Bigelo
 Linmark v. Willingboro (1977)
 Facts: Town is concerned that too many white homeowners were “panic-selling” their homes b/c
their neighborhood was becoming racially integrated. Regulation prohibited “for sale” signs in
the town. Justification was maintaining real estate prices.
 Holding: Truthful information of interest to consumers is protected commercial speech and
cannot be suppressed absent a compelling governmental interest
 Reasoning: This is truthful advertising b/c the house really is for sale
 Accord: Carey v. Population Services (1977) (Invalidating a NY law which only permits the
advertisement of contraceptives at the point of purchase—the drugstore b/c there is no articulable
legitimate government interest for this regulation)
 Bates v. State Bar of Arizona (1977)
 Facts: Bates, a lawyer, placed an advertisement in the yellow pages for a divorce lawyer at
reasonable rates. This was a violation of the state Bar’s ban on lawyer advertising.
 Holding: Lawyer advertising is protected commercial speech as long as it is not deceptive
 Reasoning:
O The state justified the prohibition under the theory that lawyer advertising...
 Promotes frivolous lawsuits because the cost of advertising requires the lawyer to take a
chance on a less promising case
 This is BS b/c lawyers don’t take frivolous cases, especially on contingency and due
to sanctions.
 Induces the lawyer to take too many cases and devout too little resources to clients
 This is BS b/c disciplinary hearings can remedy individual unprofessional conduct
 Professor: The ban on lawyer advertising arose in the 1920s when “ambulance chaser” Jewish
and Italian sole practitioners came about and the old white firms didn’t approve
 Ohralik v. Ohio State Bas Ass’n (1978)
 Facts: Lady gets into an accident, and both she and another victim are in the hospital. Lawyer
enters the hospital, propositions a contingency fee case, and claims that she has a good case.
This is all true. Lawyer gets disbarred.
 Holding: The state may proscribe in-person solicitation for pecuniary gain under
circumstances likely to result in adverse consequences without a requirement for a showing
of actual harm
 Reasoning: Lawyers are professionals in the art of persuasion, especially when the victim is in a
particularly vulnerable state
 Professor: Civilians cannot resist our hypnotic solicitation
 In re Primus (1978)
 Super Con-Law 88
 Facts: ACLU lawyer writes letter to woman that was sterilized during pregnancy. This was
standard practice for welfare recipients at the time. Letter informs woman of her rights and asks
her to join lawsuit.
 Holding: A state may not punish a lawyer who, seeking to further political and ideological
goals through associational activity, including litigation, advises a lay person of legal rights
and discloses that free legal services are available from a nonprofit organization
 Florida Bar v. Went For It (1995)
 Facts: Florida passed law which prohibited personal injury lawyers from sending solicitations to
victims and their relatives within 30 days of an accident or disaster, and from receiving referrals
from anyone who made such a contact.
 Holding (O’Connor): Sufficiently narrowly tailored b/c limited to a brief period during
which there are many other ways for injured citizens to learn about the availability of legal
representation.
 Reasoning: Substantial state interest in protecting the privacy and tranquility of personal injury
victims against intrusive and unsolicited contact of lawyers
 Dissent: Vital interests in speech are at stake when an accident results in death or injury and a
lawyer cannot offer competent legal assistance because it is often urgent to investigate the
occurrence, identify witnesses, and preserve evidence.
 Professor:
O A lot of disbarments happen following disasters when lawyers have their agents refer them
O After the Bates case, lawyers can advertise—but the state bars must specify what the content
of the advertisements
O Must are struck down as too strict. This case is the only exception.
 In re RMJ (1982)
 Facts: Bar restriction on claiming to be a member of the US Supreme Court Bar. The state
justified the restriction on the grounds that a lay person might be unduly impressed even though
the US Supreme Court Bar is the easiest to enter. It only costs a nominal fee.
 Holding: Lawyer advertisements cannot be regulated unless they are actually or inherently
misleading
 Reasoning: This was not misleading b/c the lawyer actually was a member
 Zauderer v. Office of Disciplinary Counsel (1985)
 Facts: Attorney advertised that he was an expert available to handle the Dakron Shield litigation.
The bar association prohibited the use of pictures or referring to a specific legal problem.
 Holding: Lawyers may solicit on the basis of specific legal problems
 Reasoning: The mere possibility that some members of the population might find advertising
embarrassing or offensive cannot justify suppressing it.
 Shapero v. Kentucky Bar (1988)
 Facts: Flat ban on the solicitation by lawyers targeted to specific recipients known to need real
estate closings. Bar association justified as necessary to prevent potential clients from feeling
overwhelmed.
 Holding: The State must regulate abuses of lawyer advertising through the least restrictive
means available
 Reasoning: Central Hudson application
 Peel v. Attorney Registration Comm’n (1990)
 Facts: Lawyer advertised he was a certified as a trial specialist by the National Board of Trial
Advocacy. This was truthful. Bar association complained that it might mislead clients into
believing he was governmentally affiliated.
 Super Con-Law 89
 Holding: Truthful representation in a lawyer advertisement of certification by a legitimate
organization with rigorous requirements cannot be deemed misleading under the First
Amendment
 Edenfield v. Fane (1993)
 Facts: Florida law prohibiting CPAs from engaging in direct in-person solicitation justified as
furthering interests in protecting potential clients against fraud and invasions of privacy.
 Holding: CPAs may engage in direct, in-person solicitation
 Reasoning: Unlike a lawyer (Florida), a CPA is not a professional trained in the art of persuasion
 Professor: Accountants do not have our freaky hypnotic power.
 Central Hudson Gas v. Public Service Comm’n (1980)
 Facts: NY law prohibited advertising to encourage the use of electricity b/c it was important to
conserve during a time of fuel-shortage.
 Holding: Four-part intermediate scrutiny of regulations upon commercial speech: (1)
whether the expression is protected by the First Amendment (must concern lawful activity
and not be misleading); (2) whether the governmental interest is substantial; (3) whether
the regulation directly advances the governmental interest asserted; and (4) whether it is
not more extensive than is necessary to serve that interest.
 Reasoning: Application
O (1) Advertising electricity is lawful, and the ads were not misleading
O (2) There is a substantial governmental interest in conserving electricity
O (3) The regulation’s limitation on energy-use advertising directly advances the interest
asserted
O (4) However, this regulation is more extensive than is necessary to serve the interest.
 For example, the government can regulate the price of electricity or require the advertiser
to include information about the relative efficiency of the offered service
 Professor: This standard is less than the strict-scrutiny compelling interest test and its
requirement of least restrictive means.
 Board of Trustees v. Fox (1989)
 Facts: University regulation restricting the operation of commercial enterprises on campus. The
regulation was designed to bar “Tupperware parties,” which were very popular for some reason.
The interests furthered were in promoting an education rather than a commercial atmosphere on
campuses, insuring the security of students, and preventing their exploitation.
 Holding: The “no more extensive than is necessary” requirement is an intermediate
scrutiny that is less than “least restrictive means” and more than “minimal rationality,”
which only requires a reasonable fit between the legislature’s ends and the means chosen to
accomplish those ends.
 Reasoning: The court took account of the difficulty of establishing with precision the point at
which restrictions become more extensive than their objective requires and provided the
legislative and executive branches with some leeway in the commercial speech field b/c it is
traditionally subject to governmental regulation.
 Metromedia v. San Diego (1981)
 Facts: Ordinance regulating the placement of all billboards justified as furthering the
governmental interests in traffic safety and the appearance of the city. Applies to political
billboards as well as commercial billboards.
 Holding: Regulations of non-commercial billboards cannot survive a strict-scrutiny
analysis, although regulations of commercial billboards satisfies the intermediate scrutiny
of Central Hudson
 Reasoning:
O (1) Lawful to regulate billboards
 Super Con-Law 90
O (2) Government interest in aesthetics, ridding driver distraction
O (3) Regulation advances interest b/c a flat prohibition goes right to aesthetics and ridding
driver distraction
O (4) Permissible for commercial speech (no more extensive than is necessary), fails for
political speech (least restrictive means)
 City of Cincinnati v. Discovery Network (1993)
 Facts: Regulations prohibited newsracks distributing “commercial handbills,” including adult
education classes and real estate sales, but permitted newsracks distributing general circulation
newspapers.
 Holding: The lesser value of commercial speech is not a sufficient justification for
discriminating against types of commercial speech
 Reasoning:
O (1) Lawful regulation
O (2) State interest in aesthetics
O (3) Regulation bears no relationship to the asserted interests b/c the prohibited newsracks are
no greater an eyesore than newspaper newsracks
O (4) More extensive than necessary
 Note: Even if this applied to all commercial speech, it would still be more extensive than
necessary b/c of the value of providing consumer’s access to public reading
 LAPD v. United Reporting (1999)
 Facts: Facial challenge of state law which permitted LAPD to disclose arrest records for
“scholarly, journalistic, political, or governmental” purposes, but not in order to sell a product or
service.
 Holding: Protection of privacy is a sufficient justification for limiting the access of
commercial speech to specified sources
 Reasoning: The law is not an abridgement of anyone’s right to engage in speech, commercial or
otherwise, but simply a law regulating access to information
 Posadas de Puerto Rico v. Tourism Company (1986)
 Facts: Flat prohibition of gambling advertising in Puerto Rico for the stated governmental
interest of protecting the local population from getting sucked in to the Casinos.
 Holding (Rehnquist): The government may regulate the commercial advertising of “vices”
in order to protect stated governmental interests in the public health
 Reasoning:
O The court extended this rationale from the prohibition of commercial advertising of illegal
activities
O The greater power to completely ban casino gambling necessarily includes the lesser power
to ban advertising of casino gambling, and Carey (contraceptive advertising) and Bigelow
(abortion advertising) are therefore inapposite
 Dissenting (Brennan): While tipping its hat to the Central Hudson standard, the majority does
little more than defer to the paternalistic determination of the Puerto Rico legislature
 Professor: This is bad law. Four or five Justice think that Posadas is unconstitutional.
 United States v. Edge Broadcasting (1993)
 Facts: There’s lotto in Virginia, but no lotto in North Carolina. A radio station on the North
Carolina border directs its lotto advertising to its Virginia audience in violation of a federal law
prohibiting gambling advertising interstate.
 Holding: Permissible vice regulation
 Reasoning:
O (1) Lawful to regulate gambling advertising
O (2) Governmental interest in balancing the interests of lottery and non-lottery states
 Super Con-Law 91
O (3) The interest is directly served by prohibiting all gambling advertising in non-lottery states
O (4) No more restrictive than necessary
 Dissenting (Stevens): Suppressing the truthful advertising of a legal activity is an extremely
paternalistic and patently unconstitutional means of effectuating the government’s asserted
interest in protecting the interests of non-lottery states
 Rubin v. Coors Brewing Co. (1995)
 Facts: Up until 1995, federal law prohibited advertising the alcohol content of beer on labels.
Wine and spirits could have alcohol content on the label, but beer was not under the theory that
there would be an alcohol “strength war” b/w companies leading to an increase in alcohol
percentage.
 Holding: The legislature does not have any broader latitude to regulate speech that
promotes socially harmful “vice” activities, such as alcohol consumption, than they have to
regulate other types of commercial speech.
 Reasoning: The Central Hudson test applies to all commercial speech, vice or not.
O (1) Lawful to regulate alcohol
O (2) Significant government interest in reducing alcohol consumption
O (3) Regulation does not sufficiently advance governmental interest b/c brewers remain free to
disclose alcohol content on other advertisements, and higher alcohol wines and spirits are
actually required to indicate alcohol content.
O (4) More extensive than necessary b/c the government has the option of directly limiting the
alcohol content of beer and prohibiting marketing efforts emphasizing alcohol content.
 Professor: This law violated the “stupidity clause” of the constitution

 44 Liquormart v. Rhode Island (1996)

 Facts: State law prohibited the advertising of alcohol prices except at the point of purchase
(liquor stores).
 Plurality (Stevens): When a state entirely prohibits the dissemination of truthful, non-
misleading commercial speech for reasons unrelated to the preservation of a fair-
bargaining process, there is far less reason to depart from a strict scrutiny review.
 Holding: Fails to survive Central Hudson intermediate scrutiny
 Reasoning:
O (1) Lawful to regulate alcohol
O (2) Significant governmental interest in reducing alcohol consumption
O (3) Law does not advance government interest b/c the state presented no evidence that a
restriction on price advertising will decrease market consumption.
O (4) More restrictive than necessary b/c if the state wants people to drink less liquor, they can
raise the taxes on liquor or institute an educational campaign on the dangers of excessive
drinking
 Professor:
O 4 Justices said that Posadas engages in improper paternalistic advertising and should be
overruled. This case throws out the whole “vice” principle that a state may regulate the
commercial advertisement of activities which it may ban outright.
O Although a number of justices have advocated full strict scrutiny for some regulations of
commercial speech, the 5 of them have never sat on the Court at the same time. Even after
Liquormart, the Central Hudson test remains the governing standard of review for
commercial speech regulations.
 Super Con-Law 92
 Glickman v. Wileman Bros. (1997)
 Facts: Law imposing a mandatory fee on all fruit producers towards generic fruit advertising
 Holding: Forced advertising does not amount to compelled speech and does not invoke 1st
Amendment protections
 Dissenting (Rehnquist): Laws requiring an individual to engage in or pay for expressive
activities should be reviewed under the same standard that applies to laws prohibiting one from
engaging in or paying for such activities
 Professor: Forced advertising is the opposite concern of advertising regulation
 Greater New Orleans v. US (1999)
 Facts: Up until 1999, advertising of casinos and lotteries were prohibited nationwide.
Exemptions existed for state-conducted lotteries and Native-American casinos. A New Orleans
casino challenged.
 Holding: The speaker and the audience, not the government should be left to asses the
value of accurate and nonmisleading information about lawful conduct.
 Reasoning: 44 Liquormart
O (1) Not misleading and concern lawful activities
O (2) Substantial interests in reducing social cots of gambling and assist states which restrict
gambling within their borders
O (3) Law does not advance interests b/c even if its is fair to assume that more advertising will
increase the demand for gambling, the exemptions merely channel gamblers to one casino
rather than another
O (4) Not discussed

 Lorillard Tobacco v. Reilly (2001)

 Facts: Massachusetts passed a series of regulations on tobacco advertising, requiring that no ads
be within 1,000 feet of a school and, if indoors, must be more than 5 feet high.
 Holding: A regulation of commercial speech is more restrictive than necessary if it restricts
adult access to truthful information regarding lawful activities.
 Reasoning:
O (1) Not misleading, concerns lawful activity
O (2) Substantial government interest in preventing underage tobacco use
O (3) Does not significantly advance governmental interest b/c not all children are less than 5
feet tall, and those who are certainly have the ability to look up and take in their
surroundings.
O (4) More restrictive than necessary. In trying to protect children, cannot restrict adult access
to truthful information about lawful activity.
 Thompson v. Western States Medical Center (2002)
 Facts: Federal government bans the advertisement of compound drugs (the combination of two
or more drugs)
 Holding: The government cannot paternalistically prevent the dissemination of truthful
commercial information in order to prevent members of the public from making bad
decisions with the information.
 Reasoning:
O (1) Concerns lawful activities
O (2) Substantial government interest in preserving the effectiveness of the FDCA’s new drug
approval process by eliminating a loophole that would allow unregulated drug manufacturing
to occur under the guise of pharmacy compounding
O (3) Flat prohibition advances governmental interest
 Super Con-Law 93
O (4) More restrictive than necessary. Government could simply cap the amount of any
particular compound drug that a pharmacy may produce or require that compounding only be
conducted in response to a prescription.

 CHAPTER 12: FREEDOM OF SPEECH MODES OF ABRIDGMENT & STANDARDS OF REVIEW___________

O CONTENT-BASED RESTRICTIONS

 Introduction
 You can place speech into categories for regulation (Chaplinsky)
 You cannot restrict speech b/c of its viewpoint or subject matter without subjecting it to a strict
scrutiny analysis as a content-based regulation
 Content neutral regulations are aimed at some other interest unrelated to the content of speech,
such as preservation of peace, quiet and order
 Police Dept. v. Mosley (1972)
 Facts: Chicago disorderly conduct ordinance which barred picketing within 150 feet of a school
while the school was in session, but exempted “peaceful picketing of any school involved in a
labor dispute” (e.g. teacher salaries, art classes cut).
 Holding: If a law makes a distinction based on subject matter, than it is content based and
is subject to strict scrutiny.
 Reasoning:
O Above all else, the First Amendment means that government has no power to restrict
expression b/c of its messages, its ideas, its subject matter or its content.
 Super Con-Law 94
O Content control is the essence of forbidden censorship. This is not a content neutral time,
place or manner restriction because it defined the prohibited speech on the basis of subject
matter.
 Policy: There is an equality of status in the field of ideas, and government must afford all points
of view an equal opportunity to be heard.
 Professor: Viewpoint discrimination is the worst form of content-based regulations (e.g. you can
picket for the principal, but not against him)
 Accord: Carey v. Brown (1980) (Invalidating a law which generally bars picketing outside
residences or dwellings, but exempts the peaceful picketing of a place of employment involved
in a labor dispute on the grounds that the ordinance affords preferential treatment to the
expression of views on one particular subject).
 Simon & Schuster v. Members of the NY State Crime Victims Board (1991)
 Facts: Challenge to NY’s “Son of Sam” law, which was enacted to prevent the infamous serial
killer and other criminals from profiting at the expense of their victims from books about their
crimes. The law required that any proceeds from such books be paid to the Crime Victims Board,
which would then place the funds in escrow to satisfy any damage judgments that victims might
obtain. NY sought payment from the publishing company of a book entitled “Wiseguy: Life in a
Mafia Family” based on the narrative of former “Goodfella” Henry Hill. In exchange for
compensation, Hill recounted his participation in various robberies, extortions, drug deals and
frauds.
 Holding: If a law singles out income derived from expressive activity pertaining to specific
subject matter, then it is content-based and is only constitutional if it furthers a compelling
state interest and is the narrowly tailored to meet this interest through the least restrictive
means possible.
 Reasoning:
O The Son of Sam law is content based b/c it singles out the subject matter of criminal activity
O The state has a compelling interest in ensuring that criminals don’t profit from their crimes,
but the law is significantly overinclusive as it would potentially sweep in to such works as
“The Autobiography of Malcolm X” which describes crimes committed by the civil rights
leader before he became a public figure.
 Professor: This law could be fixed by requiring that whenever a criminal acquires any money, at
any time, from any source, the statute of limitations starts again and the victims can sue the
criminal for reparations.
 Burson v. Freeman (1992)
 Facts: State law prohibiting the solicitation of votes, the display of political posters or signs, and
the distribution of political campaign materials within 100 feet of the entrance to a polling place.
 Holding: Facially content based restrictions on political speech in a public forum must be
subjected to strict scrutiny whereas the government has the burden of proving that the law
is necessary to further the asserted compelling state interest
 Reasoning:
O The statute is facially content based because it targets the specific subject matter of campaign
speech
O The state has a compelling interest in protecting the fundamental right to cast a ballot in an
election free from the taint of intimidation and fraud, and an examination of the evolution of
election reform demonstrates the necessity of restricted areas in or around polling places.
O Given the conflict b/w these two rights, the 10 feet regulation seems a justified compromise
 Professor: Subject matter restrictions invoke a strict scrutiny analysis, which is almost always
fatal. This is one of a handful of exceptions.
 Super Con-Law 95
 Republican Party of Minnesota v. White (2002)
 Facts: Provision of Minn. code of judicial conduct that required that any candidate for judicial
office, including incumbent judges, refrain from announcing their views on disputed legal or
political issues, challenged by candidate who sought to distribute literature criticizing the Minn.
Supreme Court decisions on welfare, crime, and abortion. Cannot voice their opinion on
political, controversial issues.
 Holding: Laws which prohibit speech on the basis of its content must be subjected to strict
scrutiny
 Reasoning:
O The law is content based b/c it prohibits a category of speech at the core of 1st Amendment
protections—the qualifications of candidates for public office.
O The law cannot survive a strict scrutiny analysis b/c it is barely tailored to serve the interest
in preserving the judiciary’s appearance of impartiality b/c it does not restrict speech for or
against particular parties but rather speech for or against particular issues.
You do not want government decideing who can speak.
1) Classic case of are you for or against cannot have govt deciding what people can speak about.
- the problem with content based law is: you

 Boos v. Barry (1988)

 Facts: Provision of the DC code which prohibited the display of any sign tending to engender
public disrespect for a foreign country within 500 feet of a foreign embassy
 Holding: Laws which prohibit speech on the basis of its content must be subjected to strict
scrutiny
 Reasoning:
O Although the provision is not viewpoint-based, it is content-based b/c the government has
determined that the entire category of speech critical of foreign governments is not to be
permitted
O The provision fails to survive strict scrutiny analysis b/c the least restrictive alternative of
prohibiting the intimidation, coercion, threatening, or harassment of foreign officials is more
narrowly tailored to serving the interest in protecting the dignity of foreign diplomats
O CONTENT-NEUTRAL LAWS AND SYMBOLIC CONDUCT
 Introduction
 There are two-types of content neutral laws: (1) laws aimed at a wider range of behavior which
only have an incidental impact on speech; and (2) laws aimed at expression, but for reasons
unrelated to its content
 Content-neutral regulations are subject to an intermediate scrutiny whereas the government
interest need only be “substantial” rather than “compelling,” and the state is not obliged to
exhaust less restrictive alternatives
 Clark v. Community for Creative Non-Violence (1984): The O’Brien standard and time, place
and manner standard may be used interchangeably
 US v. O’Brien (1968) – really important
 BRANDENBURG OR O’BRIEN WILL BE ON TEST
 Facts: Defendant burned his Selective Service registration certificate on the steps of the South
Boston Courthouse in order to “publicly influence others to adopt his antiwar beliefs” and was
convicted for “willfully and knowingly” destroying his Registration Certificate. Defendant
argued that the regulation was “enacted to abridge free speech” and that it served no legitimate
legislative purpose. If a big hole in a fence for a big cat, don’t need a little hole for little cat –
 Super Con-Law 96
little cat can fit in the big hole – can be all encomposing. Something added by the new law, is
burning someone else’s card – and then you will not be validing the big law, but violating the
little law --
 Holding:
O A content-neutral law which has the effect of prohibiting symbolic conduct is
constitutional if it: (1) is within the constitutional power of the Government; (2)
furthers a substantial governmental interest; (3) the government interest is unrelated to
the suppression of free expression; and (4) the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the furtherance of that interest.
O An apparently limitless variety of conduct cannot be labeled speech whenever the
person engaging in the conduct intends thereby to express an idea.
O The Court will not strike down an otherwise constitutional statute on the basis of an
alleged illicit legislative motive
 Reasoning:
O The law is content-neutral on its face b/c it deals with conduct having no connection with
speech, does not distinguish b/w public and private destruction and does not punish only
destruction engaged in for the purpose of expressing views
O Applying the intermediate scrutiny, (1) Congress has the power to classify and conscript
manpower for military service; (2) the law furthers a substantial government interest in
insuring the continued availability of issued certificates for the administration of the system;
(3) the interest is unrelated to speech; and (4) there is no alternative means which would
more narrowly preserve this interest than a law which prohibits the destruction of certificates.
O The court expressly distinguished the factual circumstances of the case from instances where
the alleged governmental interest in regulating conduct arises in some measure because the
communication allegedly integral to the conduct is itself thought to be harmful (citing
Stromberg, where the court struck down a prohibition of displaying red flags as a symbol of
opposition to organized government).
O Inquiries into congressional motives or purposes are a hazardous matter, and the court will
not look to the motives of individual legislators inferred from the legislative history to
determine whether the government interest is unrelated to the suppression of free expression.
 Professor:
O PURE SPEECH: CANNOT RESTRICT SPEECH UNLESS IN ONE OF THE FIVE CATEGORIES OR
COMPELLING STATE INTEREST TO RESTRICT SPEECH.
O SOMETHING MORE THAN SPEECH – SPEECH PLUS – SPEECH PLUS SOME ACTION OF SOME SORT
– BURNING A FLAG – SPEECH AND SOMETHING ELSE.
O Where the law is related to the suppression of free expression, it is content-based and strict-
scrutiny is required. Where the law is unrelated to the suppression of free expression, it is
content-neutral and O’Brien balancing applies.
O This is a tremendously important case b/c it is the test if there is speech + some other conduct
that is not speech.
O All of the following cases in this section will apply the O’Brien test. The problem with the
O’Brien test is that it is difficult to determine whether or not the legislation is unrelated to the
suppression of free expression. The legislative history arguably becomes relevant in
determining the true motivations behind the laws. The legislative history of this law indicated
it was designed to criminalize hippies burning their cards.
O Nevertheless, the court will not look to the motives of individual legislators in passing
legislation. However, if the purpose of the legislation is to suppress expression, then it is
subject to strict scrutiny (just as in the Lemon v. Kurtzman Establishment Clause test and
Equal Protection cases). Justice Warren confuses motive w/purpose here.
 Super Con-Law 97
 Intent: Always important (legislative history)
 Purpose: Sometimes important
 Motive: Never important
 Arcara v. Cloud Books (1986)
 Facts: NY law defined places of prostitution as public health nuisances and permits the state to
close them down. The problem here is that the establishment being ordered closed is an adult
book store. Defendant claims that the law suppresses speech.
 Holding: Least restrictive means scrutiny of regulations which effect First Amendment
activities is only required where conduct with a significant expressive element drew the
legal remedy in the first place
 Reasoning: O’Brien unnecessary, but applied anyway...
O (1) Definitely within government power to ban prostitution
O (2) Shutting down prostitution establishments furthers the state interest
O (3) Government interest is unrelated to free expression
O (4) No more restrictive than necessary b/c respondents remain free to sell their books at
another location
 Street v. New York (1969)
 Facts: Civil rights leader James Meredith was shot and killed on the streets of Alabama. Street
was pissed, and he came out and burned the fuck out of the flag. The state had a flag desecration
law which stated that any person who publicly mutilates, defaces, defiles, defies, tramples upon,
or casts contempt upon the flag by word or deed is guilty of a misdemeanor. This regulation was
common throughout the states. The jury convicts Street, not b/c of what he said or his
motivation, but b/c he burned the flag.
 Holding: It is unconstitutional to permit criminal punishment merely for speaking defiant
or contemptuous words about the American flag
 Reasoning:
O The language of the statute indicates legislative intent to criminalize ant-American sentiment.
O Defendant’s actions did not constitute fighting words or incitement

 Smith v. Goguen (1974)

 Facts: Defendant takes the American flag and sows it into the seat of his pants. Criminalized
under another flag desecration statute.
 Holding: Impermissibly vague statute
 Reasoning: Casual treatment of the flag in many contexts has become a widespread
contemporary phenomenon (e.g. flag bikini)
 Spence v. Washington (1974)
 Facts: The Vietnam War is in full swing and burning the flag has become a favored form of
protest. In 1969 we invaded Cambodia, and many hippie students protested at Kent state. Six
students were killed, and the campuses across the country went crazy. Flags were being burned
all over the place. The defendant inverted the flag (mayday posture) taped a peace symbol on it
and hung it out her window. Convicted under a statute prohibiting using the flag as an
advertisement (trademark infringement).
 Holding: Unconstitutional as applied
 Texas v. Johnson (1989)
 Facts: Texas passes a law which criminalizes the public desecration of a venerated object for
intentionally or knowingly desecrating a public monument, place of worship, or state or national
flag. The defendant protested the Reagan administration during the Republican National
 Super Con-Law 98
Convention by burning the flag in public. Texas argues that the O’Brien test applies b/c the
regulation is unrelated to the suppression of anti-American sentiment
 Holding (Brennan):
O Particular conduct possesses sufficient communicative elements to bring the First
Amendment into play whenever there is: (1) intent to convey a particularized message;
and (2) the likelihood is great that the message would be understood by those who
viewed it.
O If there is a bedrock principle underlying the First Amendment, it is that the
government may not prohibit the expression of an idea simply because society finds the
idea itself offensive or disagreeable.
 Reasoning:
O First Amendment protection does not end with the written or spoken word
O There is no way that a flag desecration statute can be unrelated to free expression. The
O’Brien test does not apply b/c the regulation is related to the suppression of content
expressing disfavor with the government.
 Policy: We do not consecrate the flag by punishing its desecration, for in doing so we dilute the
freedom that this cherished emblem represents
 Professor: There was a huge uproar following this case, and a movement started to pass a
constitutional amendment prohibiting flag desecration. Instead, a new federal law was passed.
 US v. Eichman (1990)
 Facts: Flag Protection Act of 1989 criminalizes knowingly mutilating, defacing, defiling, burning
or trampling on a flag. The statute does not characterize the flag as venerated, does not have a
public requirement, and provides an exception for disposing of the flag when it is worn or soiled.
 Holding: Any suggestion that the Government’s interest in suppressing speech becomes
more weighty as popular opposition to speech grows is foreign to the First Amendment.
 Reasoning:
O Although the Act contains no explicit content-based limitation, it is clear that the
government’s interest is related to the suppression of free expression against the flag.
O This act suffers from the same flaw as Texas v. Johnson, in that its desire to preserve the flag
as a symbol of certain national ideal is only implicated when a person’s treatment of the flag
communicates a message to others which is inconsistent with those ideals.
 Barnes v. Glen Theatre (1991)
 Facts: Public indecency statute provided a broad prohibition of public nudity. Statute applied to
an adult bookstore featuring go-go dancers and required pasties and G-strings.
 Holding: Public indecency statutes featuring broad prohibitions of public nudity are
content-neutral and only have an incidental effect on expression which is permissible under
O’Brien
 Reasoning: O’Brien applied
O (1) Within the government’s power regulate public nudity
O (2) Important interest. Nudity prohibitions have been around for centuries.
O (3) Unrelated to the suppression of free expression b/c it applies universally to all nudity in
public, not just expressive nude dancing
O (4) Incidental restriction is no greater than necessary b/c the dancers can still dance with G-
strings and pasties. The expression is the same, just less vulgar.
 Professor: Laws prohibiting nude entertainment have been struck down b/c they focus on the
dancing, and are therefore related to the suppression of nude dancing and whatever message that
conveys.
 City of Erie v. Pap’s A.M. (2000)
 Super Con-Law 99
 Facts: Municipal public nudity ban applied to a bar with totally nude erotic dancing.
 Holding (O’Connor): Government restrictions on public nudity should be evaluated under
the O’Brien test as content-neutral restrictions on symbolic conduct
 Reasoning: O’Brien applied
O (1) Within the government’s power to regulate nudity
O (2) Regulation furthers interest in combating the negative corollary effects associated with
nude dancing establishments—including the promotion of violence, public intoxication and
prostitution
O (3) Unrelated to the suppression of free expression
O (4) No more restrictive than necessary
 Concurring (Scalia): Public nudity laws are general laws regulating conduct not specifically
directed at expression and should not be subject to any 1st Amendment scrutiny.
 Souter (Dissenting): The O’Brien test should be applied, but the government should have to
demonstrate an evidentiary basis for the harm it claims in order to survive intermediate scrutiny
(confessing his error in joining the majority in Barnes)
O PUBLIC FORUMS & TIME, PLACE, AND MANNER RESTRICTIONS
 Introduction
 The government can legitimately regulate citizens occupation of public spaces with general time,
place and manner restrictions notwithstanding the importance of the speech inhibited (e.g. a Civil
Rights rally cannot take place on the Long Island Expressway)
 The First Amendment does not apply in a private home (e.g. cannot stage an anti-war protest in
Leon’s backyard if he doesn’t want it there.)
 General Rule: The government must apply specific objective standards with content-neutral
criteria in order to be a valid time, place, manner restriction
 Early Public Forum Cases
 Massachusetts v. Davis (1895)
O Facts: Preacher convicted for speaking on Boston Common without a required permit from
the mayor
O Holding (Holmes): For the legislature absolutely or conditionally to forbid public
speaking in a public place is no more an infringement of the rights of a member of the
public then for the owner of a private house to forbid it in his house
O Reasoning: The right to absolutely exclude all right to use, necessarily includes the authority
to determine under what circumstances such use may be availed of, as the greater power
includes the lesser
O Caution: This rationale is overruled in Hague
 Hague v. CIO (1939)
O Holding (Roberts): Wherever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public, and time out of mind have
been used for the purposes of assembly, communicating thoughts between citizens, and
discussing public questions.
O Reasoning: In response to Holmes early opinion that a city is a proprietor of private property
possessing the right to exclude, the public has a presumptive “First Amendment easement” of
access for the purposes of speech
 Saia v. New York (1948)
O Facts: Ordinance prohibiting the use of amplification sound-trucks without the permission of
the police chief
O Holding: Prior restraints which lack objective criteria and place unbridled discretion in
public officials to reject speech are unconstitutional
 Super Con-Law100
O Reasoning: No specific objective standard for denying permission existed
O Professor: It would have been better to have an outright ban on all sound-trucks
O Caution: This may be overruled by Kovacs
 Cox v. New Hampshire (1941)
O Facts: Convictions of several Jehovah’s Witnesses for violating a state law prohibiting a
“parade or procession” upon a public street w/o first obtaining a permit.
O Holding: The state may limit First Amendment activities with regard only to
considerations of time, place and manner as long as it exercises its discretion with
uniformity of method of treatment upon the facts of each application, free from
improper or inappropriate considerations and unfair discrimination
O Reasoning: The authority of a municipality to impose regulations in order to assure the safety
and convenience of the people in the use of public highways has never been regarded as
inconsistent with civil liberties
O Professor: No matter how important the speech, the government does not have to permit it to
take place on the LIE as long as all parades are barred from taking place on the LIE
 Schneider v. State (1939)
O Facts: New Jersey ordinances forbidding the distribution of leaflets in order to prevent litter
O Holding: Mere legislative preferences or beliefs respecting matters of public
convenience may be insufficient to justify if they diminish the exercise of rights vital to
the maintenance of democratic institutions
O Reasoning: Other methods of preventing littering, like punishing those caught throwing paper
in the street, are more narrowly tailored to further the governmental interest
 Martin v. Struthers (1943)
O Facts: Ordinance prohibiting the distribution of handbills to residences by going door-to-door
challenged by Jehovah’s Witnesses.
O Holding: Freedom to distribute information to every citizen whenever he desires to
receive it is so clearly vital to the preservation of a free society that it must be fully
preserved despite state interests
O Reasoning: It would be permissible to make it an offense for any person to ring the bell of a
householder who has appropriately indicated that he is unwilling to be disturbed
 Kovacs v. Cooper (1949)
O Facts: Prohibition of sound-trucks emitting “loud and raucous noises”
O Holding: The preferred position of freedom of speech does not require legislators to be
insensible to claims by citizens to comfort and convenience
O Reasoning: Although an absolute prohibition of loudspeakers would be unconstitutional, it
was a permissible exercise of legislative discretion to bar the emission of loud and raucous
noise
O Dissenting: This constitutes a repudiation of Saia and promotes censorship due to the
subjectivity of its standard.
 City of Ladue v. Gilleo (1994)
O Facts: Residential community ordinance which banned the posting of most signs in order to
minimize visual clutter applied to a woman who displayed a sign in her home window
protesting the Iraq war.
O Holding (Stevens): Although prohibitions foreclosing entire media may be completely
free of content or viewpoint discrimination, the danger they pose to the freedom of
speech is readily apparent—by eliminating a common means of speaking, such
measures can suppress too much speech.
O Reasoning: Adequate substitutes do not exist to replace the cheap and convenient use of signs
to communicate
 Super Con-Law101
 Watchtower Bible & Tract Society v. Stratton (2002)
O Facts: Municipal ordinance required a permit be obtained prior to engaging in door to door
proselytizing in order to protect against crime and invasions of privacy
O Holding: Insufficiently narrowly tailored because it is offensive—not only to the values
protected by the First Amendment, but to the very notion of a free society—that in the
context of everyday public discourse a citizen must first inform the government of their
desire to speak to their neighbors and then obtain a permit to do so
O Reasoning: Had the ordinance been construed to only apply to commercial activities and the
solicitation of funds, it would have been sufficiently narrowly tailored. Its application to
political causes and those attempting to enlist support for unpopular clauses renders it
overbroad.
 Government Interest 1: Public Order and Safety
 Cox v. Louisiana (1965)
O Facts: Civil rights demonstrators arrested under a Louisiana law prohibiting the obstruction
of “the free, convenient and normal use of any public sidewalk, street or other passageway by
impeding, hindering, stifling, retarding or restraining traffic or passage thereon.”
O Holding:

 A restriction designed to promote public convenience in the assistance of all and not
susceptible to abuses of discriminatory application cannot be disregarded by the
attempted exercise of some constitutionally protected right which in other
circumstances would be entitled to protection
 Statutes which on their face appear to be content neutral time, place and manner
restrictions are unconstitutional if they provide no objective standards for the
determination of local officials as to which speakers to permit and which to prohibit
O Reasoning:
 The control of traffic on the streets is a clear example of governmental responsibility to
ensure the existence of an organized society (e.g. one cannot ignore a red light out of
social protest)
 However, the broad discretion placed in public officials permits the official to act as a
censor
O Policy: The constitutional guarantee of liberty implies the existence of an organized society
maintaining public order, without which liberty itself would be lost in the excesses of
anarchy.
 Heffron v. International Society for Krishna Consciousness (1981)
O Facts: Krishnas were soliciting people at the Minnesota state fair and passing out handbills.
The fair passed a rule which permitted solicitation, but regulated it to a fixed booth. The
Krishna’s didn’t like it b/c they realized nobody would go up to their smelly falafel booth.
O Holding: Time place and manner restrictions designed to further interests in public
order and safety without reference to the content of the regulated speech and leaving
open ample alternative channels of communication for the information are
constitutional
O Reasoning:

 Stated government interest was in crowd control of a large number of people in a limited
space and the restriction didn’t significantly burden more speech than was necessary to
further the state interest
 Alternative forms for expression existed, and the rule did not exclude Krishnas from
mingling within the crowd and orally propagating their views or using a booth.
 Super Con-Law102
O Professor: Like all speech restrictions, this is a balancing
 Government Interest 2: Aesthetics
 Metromedia v. San Diego (1981)
O Facts: Flat prohibition of billboards to protect the aesthetic value of the city
O Holding: Content neutral time, place and manner restrictions may regulate protected
speech in order to further the substantial governmental interest of maintaining a
community’s aesthetic value.
O Reasoning: The deferred to the government’s stated aesthetic interests
O Professor: This is the first time aesthetics are recognized as a substantial governmental
interest
 Members of City Council v. Taxpayers for Vincent (1984)
O Facts: Supporters of a city council candidate challenged the constitutionality of a municipal
ordinance which prohibited the posting of signs on public property.
O Holding: An incidental restriction on expression is justified as a reasonable regulation
of the time, place or manner of expression so long as the restriction is narrowly tailored
to serve a significant governmental interest.
O Reasoning:

 Stated government interest is preventing visual assault perpetrated by an accumulation of

clutter on public property
 No more restrictive than necessary b/c other channels of communication are left available
 Clark v. Community for Creative Non-Violence (1984)
O Facts: Do-gooder organization wants to stage a demonstration whereas they would sleep next
to Washington monuments as symbolic of their constant vigilance protesting the
government’s lack of compassion for the indigent.
O Holding: Symbolic expression is subject to reasonable time, place and manner
restrictions when the restrictions are justified without reference to the content of the
regulated speech, are narrowly tailored to serve a significant governmental interest,
and leave open ample alternative means of communication
O Reasoning:

 Stated governments interest in protecting the park from Hippie’s taking tofu-dumps,
playing hackie-sack, smoking weed and fucking on public property. Dirty Hippies.
 The regulation is no more restrictive than necessary b/c they can demonstrate all day.
The regulation simply prevents them from sleeping in the park b/c that is to much a threat
to the park’s integrity
O Professor: Sleeping is not generally associated with expression
 Government Interest 3: Tranquility, Privacy & Repose
 Ward v. Rock Against Racism (1989)
O Facts: NYC ordinance whereas the City provides the amplifier and appoints a mixer to
control the volume of bands plating in the Central Park theatre. The band can play whatever
the fuck they want. RAR wants to play their music loud.
O Holding:

 Content neutral time, place and manner restrictions may regulate speech in order to
further the substantial governmental interest in ensuring tranquility, privacy and
repose
 Super Con-Law103
 Restrictions on time, place or manner of protected speech are not invalid simply
because there is some imaginative alternative which might be less burdensome on
speech (does not need to be least restrictive, just no more restrictive than necessary)
O Reasoning:
 Stated government interest is preventing noise pollution in the Upper West Side.
 The regulation is no more restrictive than necessary b/c the value of loud speech is
difficult to articulate. The message of the music can still be communicated.
O Dissenting: The standard of no more restrictive than necessary is purely subjective and
cannot be quantified.
 Frisby v. Schultz (1988)
O Facts: Flat prohibition of all picketing in front of private residences designed to stop anti-
abortion nuts from picketing outside of doctors’ homes.
O Holding: The 1st Amendment permits the government to prohibit offensive speech as
intrusive when the captive audience cannot avoid the objectionable speech and
alternative means of communication are available
O Reasoning:

 Stated government interest is protecting privacy

 No more restrictive than necessary b/c they can picket at the abortion clinic
 Madsen v. Women’s Health Center (1994)
O Facts: Federal judge issues two injunctions prohibiting anti-abortion demonstrators from
picketing an abortion clinic b/c they have been harassing patients, physicians and workers.
The first injunction provides a permanent stationary buffer zone around the facility and the
other is a temporary moving buffer zone around patients unless they indicate a desire to
communicate.
O Holding: Content neutral time, place and manner restrictions must be applied with
special stringency in the context of an injunction because injunctions carry a greater
risk of censorship and discriminatory application than do general ordinances
O Reasoning:

 Government interest in permitting employees to peacefully get to their place of work and
protecting women’s constitutional right to have an abortion
 The first injunction is no more restrictive than necessary, the second injunction is struck
down b/c it is more restrictive than necessary in prohibiting anyone from peacefully
approaching a patient.
O Accord: Schenck v. Pro-Choice Network (1997) (Striking down floating buffer zones and
upholding fixed buffer zones injunctions on the grounds that a floating buffer zone burdens
more speech than necessary)
 Hill v. Colorado (2000)
O Facts: Statute barring knowingly approaching within 8 feet of any individual within the
proximity of a health care facility. This was a general law that did not require the showing of
harm present in the injunction cases.
O Holding: Valid content neutral time place and manner restriction
O Reasoning: The statute applies to all protests, all counseling, and all demonstrators whether
or not the demonstration concerns abortion and whether or not they suppose or support the
woman who has made an abortion decision
O Dissenting (Scalia): Floating buffer zones around oral communication are undeniably
content based because whether a speaker must obtain permission before approaching
 Super Con-Law104
and whether he will be sent to prison for failing to do so depends entirely on what he
intends to say when he gets there.
O Professor: This was too broad b/c it would prevent and individual from providing a pamphlet
on saving money on health insurance. Scalia was right.
 US V. Grace (1983)
O Facts: Flat prohibition of any demonstration in front of the Supreme Court in order to further
the governmental interest in preventing the appearance of influencing the court’s decisions
O Holding: Sidewalks are among those areas of public property that traditionally have
been held open to the public for expressive activities and are clearly within those areas
of public property which may be considered public forum property and do not lose that
character merely b/c they abut government property dedicated to a use other than as a
forum of public expression
O Reasoning:

 The Government interest in nonexistent

 More restrictive than necessary b/c people can demonstrate in front of the White House
and Congress—why not the Supreme Court?
 Sidewalks are always public forums unless they are on private property
O Professor:
 The Supreme Court is very soundproof

There are some places where an individual cannot demonstrate, such as in a welfare
office, in order to permit the government workers to do their jobs
O SPEAKER ACCESS TO PUBLIC PLACES OTHER THAN STREETS AND PARKS
 Brown v. Louisiana (1966)
 Facts: Louisiana prohibits African-Americans from libraries. Black students enter the library, sit
down and make no noise in silent protest.
 Holding: Speech may be limited to peaceable non-disruptive manner within non-public
forums.
 Reasoning: The 1st Amendment’s protection is not confined to verbal expression and includes
peaceable and orderly protest by silence.
 Dissenting: It is incomprehensible to measure disturbances in libraries and on the streets with
identical standards
 Adderley v. Florida (1966)
 Facts: Protesters want to demonstrate behind a prison where the prisoners are escorted
 Holding: The state has the power to preserve the property under its control for the use for
which it is lawfully dedicated so long as it is even-handedly enforced
 Professor: There is a substantial government interest in permitting employees to simply perform
their function without disturbance
 Grayned v. Rockford (1972)
 Facts: Protesters want to demonstrate in from of a high school while classes are in session
 Holding: The nature of a place and the pattern of its normal activities determine the
reasonableness of time place, and manner restrictions on speech
 Reasoning:
O The question is whether the manner of expression is basically incompatible with the normal
activity of a particular place at a particular time (e.g. making a speech in the reading room of
a library can be prohibited)
O Although the sidewalk is a public forum, the expressive activity prohibited would materially
disrupt class work and infringe on the rights of others
 Super Con-Law105
 Accord: Greer v. Spock (1976) (Upholding military camp policy of preventing political
literature on its premises in order to prevent literature from negatively impacting loyalty,
discipline and moral)
 Lehman v. Shaker Heights (1974)
 Facts: Regulation prohibits political advertising on public buses but permits commercial
 Holding: A city has discretion to develop and make reasonable choices concerning the type
of advertising that may be displayed on public forums when such forum is a participant in
commerce
 Reasoning: Government interest in preventing the incumbent politicians from having an upper
hand in political advertising
 Southeastern Promotions v. Conrad (1975)
 Facts: The government, in its role as landlord, refuses to grant a permit to the play Hair to use its
official convention hall b/c it includes nudity
 Holding: The government cannot make a content-based decision on which speakers may
participate on public forums controlled by the state
 Professor: A private landlord can make a content-based decision rejecting Hair, but the
government cannot

O THE MODERN TRICHOTOMY OF TRADITIONAL, DESIGNATED & NONPUBLIC FORUMS

 US Postal Service v. Council of Green-Burgh Civic Ass’n (1981)
 Facts: Federal law criminalizes the deposit of unstamped “mailable matter” in home letter boxes
approved by the Post Office.
 Holding: Property owned or controlled by the government which is not a public forum may
be subject to a prohibition of speech, leafleting, picketing, or other forms of communication
without running afoul of the 1st Amendment so long as the government acts reasonably in
imposing such restrictions and the prohibition is content neutral
 Reasoning:
O The mailbox is the property of the government only. If every hippie were permitted to put
their shit in the mailbox, there would be no room for the legitimate mail.
O The 1st Amendment does not guarantee access to property simply b/c it is owned or
controlled by the government
O Since a letter box is not a traditional public forum, traditional time place and manner
restrictions do no apply. It must be scrutinized more carefully.
 Perry Education Ass’n v. Perry Local Educators (1983)
 Facts: Opposing labor union wants to place pamphlets in teachers’ internal school mailboxes.
The school permits outside organizations such as the YMCA and Cub-scouts to place pamphlets
in these mailboxes
 Holding:
O Quintessential Public Forums
 Scope: Streets, parks, sidewalks
 Test:
 Content based exclusion must serve compelling state interests and be narrowly
tailored
 Super Con-Law106
 Content neutral time, place and manner must be narrowly tailored to further a
significant government interest and leave open ample alternative means of
communication
O Public Property Opened to Public Use for Expressive Activity
 Scope: School premises for political or religious debate
 Test: Although a state is not required to open such forums to public activity, once it
does so, it is bound by the same standards that apply to the quintessential public
forums.
O Public Property Traditionally Not Designated as a Forum for Public Communication
(Nonpublic Forums)
 Scope: Libraries, prisons, welfare offices
 Test:
 The state may reserve the forum for its intended purpose as long as the
restriction on speech is reasonable and not an effort to suppress expression
merely b/c public officials oppose this view
 Permitting selective access of some speakers to government property does not
transform government property into a public forum, but simply creates a limited
public forum which extends only to other entities of a similar character
 Reasoning:
O The teacher’s mailboxes are public property traditionally not designated as a forum for public
communication, but since they permitted access to some outside organizations they created a
limited public forum
O The court found that the differential access was permissible because it was wholly consistent
with their legitimate interest in preserving the property for the use to which it is lawfully
dedicated
 Accord: Cornelius v. NAACP Legal Defense & Ed. Fund (1985) (Upholding the exclusion of
political and advocacy groups from a federal fundraising drive b/c it was a limited nonpublic
forum to those voluntary, tax-exempt charitable organizations providing direct health and
welfare services rather than the indirect services such organizations provided.); US V. Kokinda
(1990) (Upholding the exclusion of political parties seeking contributions from individuals on a
sidewalk leading to the front door of a post-office b/c the sidewalk was a public property
traditionally not designated as a forum for public communication (not on the general street), only
created a limited nonpublic forum for public notices, and regulations on speech interfering with
the government’s proprietary capacity only need to be reasonable)
 International Society for Krishna Consciousness v. Lee (1992)
 Facts: Regulation prohibits the solicitation of money and handing out literature in airports
 Holding: Airport terminals are nonpublic forums and therefore it is reasonable to bar the
speech which inhibits crowd control
 Reasoning:
O It is reasonable to bar the solicitation of money b/c it inhibits crowd control
O Unreasonable to bar leafleting b/c it doesn’t take up too much time
 Arkansas Educational Television Comm’n v. Forbes (1998)
 Facts: FCC licensee makes a journalistic judgment to exclude a third-party candidate form a
televised debate
Holding: Public television broadcasting is a nonpublic forum b/c in order to create a public
forum the government must intend to make the property generally available to a class of
speakers
 Reasoning:
 Super Con-Law107
O The government does not create a designated public forum when it does no more than reserve
eligibility for access to the forum to a particular class of speakers whose members must as
individuals obtain permission to use it
O Journalistic judgment by an FCC licensee is permissible content-neutral action b/c the FCC
requires private broadcasters to make editorial judgments b/c it holds them responsible for
violations.
 US v. American Library Ass’n (2003)
 Facts: The Children’s Internet Protection Act (CIPA) required any library receiving federal
funding to install filtering software blocking internet access to obscenity and pornography
 Holding: As a nonpublic forum, public libraries enjoy broad discretion to create a limited
nonpublic forum and decide the material they provide in their internet access.
 Reasoning: Internet access in public libraries is neither a traditional nor a designated public
forum. Although their desire is to provide a wide array of information, their goal has never been
to provide universal coverage
 Professor: This is the only internet pornography regulation upheld
 Widmair v. Vincent (1981)
 Facts: State university makes its facilities generally available to all groups but prohibits the use
of the facilities for religious discussion
 Holding: Where a limited nonpublic forum is made available, it must be held open to all
similar groups, including religious organizations
 Lamb’s Chapel v. Center Moriches Free School Dist. (1993)
 Facts: School district permitted school premises to be used after hours for political, social, civic
and recreation purposes, but not to be used by any group for religious purposes
 Holding: Although a state may create a nonpublic limited forum for speech, it must respect
the lawful boundaries it has itself set and any distinctions must be reasonable in light of the
legitimate purpose served by the forum in order to avoid invalidation as viewpoint
discrimination
 Reasoning: The fact that all religions and uses for religious purposes were equally excluded does
not negate the fact that their exclusion constitutes viewpoint discrimination against religion in
general
 Professor: No establishment clause problem to permit worship after school
 Accord: Good News Club v. Milford (extending Lamb’s Chapel to organizations engaging in
prayer and worship)
 Capitol Square Review Board v. Pinette (1995)
 Facts: KKK rented a public square and was denied permission to erect a large Latin there. The
public square was designated as a public forum by state law and several other secular displays
were permitted previously.
 Holding: Religious speech is the equivalent of private expression and must enjoy the same
1st Amendment protections.
O FIRST AMENDMENT ACCESS RIGHTS TO PRIVATE PROPERTY
 Hudgens v. NLRB (1976)
 Facts: Labor picketing of a store in a private shopping center
 Holding: The First Amendment does not apply to private property
 Reasoning: This overruled Amalgamated Food v. Logan (1968) which held a privately owned
shopping center the functional equivalent of a business center
 Professor:
O The shopping center is the equivalent to your living room
O If a corporation owned an entire town, then they could not extend this rationale to prohibit all
speech under the Marsh v. Alabama (1946) “public function” state action theory.
 Super Con-Law108
O SPEECH IN PUBLIC SCHOOLS
 Tinker v. Des Moines Independent Community School District (1969)
 Facts: Student wears a black armband to class on “national moratorium day” whereas all opposed
to the Vietnam War wore black armbands. Student is suspended until he will return w/o the
armband.
 Holding: Student First Amendment rights in public schools are weighed against the
governmental interest in providing education without disruption
 Reasoning:
O There was no disruption b/c the student silently wore the armband
O Undifferentiated fear or apprehension of disturbance is not enough to overcome the freedom
of expression
 Professor: If a student wore a swastika, it could be barred b/c it is inherently disruptive
 Board of Education v. Pico (1982)
 Facts: Teachers select a curriculum and then the school board knocks out the following books:
(1) Kurt Vonnegut’s Slaughter House Five (use of the word “motherfucker”); (2) Desmond
Morris’ The Naked Ape (“naked” in the title); (3) Piri Thomas’ Best Short Stories of Negro
Writers (“fuck, shit”); and more. District Court found school board had the right to speak for the
community. 2nd Circuit disagrees. Supreme Court has 4 justices for the school board, 4 against
it, and White says that trial is necessary to determine if excluded based on ideas or on preventing
students’ access to profanity.
 Holding: Local school board’s may not remove books from school library shelves simply
because they dislike the ideas contained in those books, but they may select a curriculum
designed to prevent student’s access to vulgarity and obscene language
 Professor: Every year, the American Library Ass’n has a censorship day where certain books are
designated unfit for public schools.

 Bethel School District v. Fraser (1986)

 Facts: Student gives a speech for his friend as a “firm candidate...firm in his pants....who will
nail his issues to the wall...pushing and pushing until he succeeds...and bring the students’
priorities to a climax.”
 Holding: The 1st Amendment does not prevent a school district from disciplining a high
school student from giving a lewd speech at a school assembly
 Hazelwood School District v. Kuhlmeier (1988)
 Facts: Principal removes two stories from school newspaper, one involving student pregnancies
and the other on the impact of divorce on students.
 Holding: Educators are entitled to exercise greater control over expression on school
grounds to assure that participants learn whatever lessons the activity is designed to teach,
that readers or listeners are not exposed to material that may be inappropriate for their
level of maturity, and that the views of the individual speaker are not erroneously
attributed to the school.
 Professor: Secondary-school educators have some leeway in suppressing free speech. Students
must be saved from themselves
O THE OVERBREADTH DOCTRINE
 Introduction
 Theory: If there is a law that conflicts with the First Amendment, it must be struck down as soon
as possible in order to prevent it from inhibiting or “chilling” first Amendment rights
 Super Con-Law109
 Accordingly, a person who is engaged in illegal activity and violates a state law can nevertheless
avoid conviction if the state law is in conflict with constitutional protections notwithstanding the
general limitations of the standing doctrine
 People v. Derea
O Facts: This is not in the casebook, it comes straight from Leon. The liberal party was at one
time the strongest third party in NY and would get roughly 5% of the vote. If the liberals
didn’t endorse a candidate, the voters would vote Democrat. This was enough to put the
Democrats over the top. Derea was a Republican, and he wanted to make sure the Democrats
wouldn’t get the Liberal vote. He created the Action Committee for the Liberal party, which
would include literature on the virtues of the Liberal party’s candidates. They had nothing to
do with the Liberal party. He is prosecuted under a NY law which prohibits the productions
of handbills in quantity that contains statements about a political party w/o also indicating the
true name of the person who ordered the pamphlet printed. He concedes his guilt, but
facially challenges the law as overbroad on the grounds that it inhibits protected First
Amendment activity including anonymous political literature.
O Holding: Struck down as unconstitutionally overbroad on its face
O Reasoning:
 This law would have criminalized the Federalist Papers use of the alias “Publius.”
 The law would have been constitutional if it only criminalized placing a false name on
political literature with the purpose to deceive
 Professor: There are circumstances where the overbreadth features can be eliminated
through a limiting instruction.
 Professor: The overbreadth doctrine is strong medicine. It needs limitations...
O Must be substantial overbreadth (e.g. Broadrick, Ferber)
O Must not be capable of a narrowing construction (excessive narrowing is not required) (e.g.
Brockett)
O Narrowing must be done by the court whose law is under consideration (e.g. Brockett)
O Legislature may not do the narrowing (e.g. Oakes)
 Diagram: The Boobies of Overbreadth

 Broadrick v. Oklahoma (1973)

 Facts: The Hatch Act prohibits permanent civil servants from engaging in political activity (e.g.
post-office can not give you stamps that say “Vote for Bush”). The law expressly prohibits
employees from taking part in the management or affairs of a political party or campaign, except
to exercise his right as a citizen privately to express his opinion and cast his vote. Appellants
concede they clearly violated the law by campaigning for a superior and soliciting money from
coworkers for the campaign. Nevertheless, appellants complained the statute is facially
overbroad b/c it would prevent such individuals from placing a bumper sticker on their car or
wearing a political pin.
 Holding (White):
O Overbreadth must be substantial before facial invalidation is appropriate
O Overbreadth analysis is less applicable when the challenged statute effects conduct
rather than speech
 Reasoning: The overbreadth doctrine is strong medicine and requires that the rights asserted on
behalf of a hypothetical third party are substantially likely to be chilled
 New York v. Ferber (1982)
 Facts: NY child pornography law criminalizes the promotion of actual or simulated sexual
activity by children and the lewd exhibition of genitals. Ferber is a nasty pedophile with child
 Super Con-Law110
pornography certainly unprotected by the constitution. Nevertheless, he asserts a claim of facial
overbreadth on behalf of medical textbooks and national geographic.
 Holding: When a law is not substantially overbroad, its should be cured through case by
case analysis of the fact situations to which it sanctions.
 Reasoning: This is a paradigmatic case of a state statute whose legitimate reach dwarfs its
arguably impermissible applications
 Ashcroft v. Free Speech Coalition (2002)
 Facts: Child Pornography Prevention Act (CPPA) includes a section prohibiting the portrayal of
computer generated children engaged in virtual sexual activity.
 Holding: The government may not suppress lawful speech as the means to suppress
unlawful speech
 Reasoning: Protected speech does not become unprotected speech merely because it resembles
the latter.
 Virginia v. Hicks (2003)
 Facts: Housing Development passes a law which prohibits non-residents from entering the
premises w/o a legitimate business or social purpose. The defendant was barred from the
premises for destruction of property and had no legitimate purpose. Nevertheless, he asserts a
claim of facial overbreadth on behalf of leafleting organizations.
 Holding: A law’s application to protected speech must be substantial, not only in an
absolute sense, but also relative to the scope of the laws plainly legitimate applications
before applying the strong medicine of overbreadth invalidation
 Reasoning: Defendant has not shown on the basis of the record that the housing authority’s
trespass policy prohibits a substantial amount of protected speech in relation to its many
legitimate applications.
 Brockett v. Spokane Arcades (1985)
 Facts: Washington obscenity law which defined prurient interests as “incites lascivious lust” and
encompasses “normal” as well as “shameful” sexual responses.
 Holding (White): An otherwise overbroad statute may be cured, or “trimmed of its
unconstitutional branches,” but it must be invalidated if it is “rotten at its very root.”

 Massachusetts v. Oakes (1989)

 Facts: Law prohibited the taking of nude and similar photographs of those under the age of 18.
Challenged by a man convicted for taking pictures of his fully-developed 14 year old
stepdaughter. By the time the case was heard the Supreme Court, the legislature amended the
statute to include a lascivious intent requirement.
 Holding: The legislature cannot cure the deficiencies of an overbroad statute by curing its
deficiencies prior to litigation
 Reasoning: To hold otherwise would reduce the legislature’s incentive to stay within
constitutional bounds in the first place
 Professor: The legislature’s role is to draft laws prospectively. It is the court’s role to adjust the
law retroactively. The myth is that the courts adjust the statute to comply with what the “law”
always is in order to avoid the ex post facto prohibition
 Osborne v. Ohio (1990)
 Facts: The state court narrows a state child pornography law
 Holding: Judicial narrowing of an otherwise overbroad law ends the overbreadth concern
 The Charitable Contribution Cases
 Professor: These are not really overbreadth cases, they are just laws that are too broad and are
challenged by those asserting their own rights.
 Super Con-Law111
 Schaumberg v. Citizens for Better Environment (1980)
O Facts: Ordinance barred door to door solicitation unless 75% of donations goes towards the
objects of the charity.
O Holding: Invalidated as too broad
O Reasoning: Many charitable groups do not pay out directly those they are benefiting (e.g.
medical research, lobbying)
O Accord: Houston v. Hill (1987) (Invalidating as too broad a statute which made interrupting a
police officer in the course of his duty as unconstitutional when applied to an individual
questioning why a police officer was arresting his friend on the grounds that it granted the
police officer unbridled discretion).
O VAGUENESS
 Introduction
 Vagueness is not a 1st Amendment doctrine. It is a 14th Amendment doctrine which applies b/c
a laws terms do not provide sufficient notice and it therefore violates Due Process.
 Rule: A law is impermissibly vague if persons of ordinary intelligence must guess at its
meaning and differ as to its application
O Policy: The legislature should set clear guidelines for law enforcement officials and triers of
fact in order to prevent arbitrary and discriminatory enforcement
O E.g. “It is illegal for any person to make an unjust or unreasonable rate or charge in dealing
with necessity.” What is unreasonable? What is a necessity?
 Rule: Vagueness challenges to statutes that do not involve 1st Amendment freedoms must
be examined in light of the facts of the case at hand (US v. Missouri)
O E.g. “It is illegal to sell something at an unreasonably low price for the purpose of destroying
competition.” This is an antitrust issue which is not protected by the 1st Amendment. The
facts would provide clarification. Anything below cost is unreasonable.
 Rule: Vagueness challenges to statutes that do involve 1st Amendment freedoms are not
examined in light of the facts at hand. A statute is impermissibly vague whenever it
infringes on 1st Amendment protected freedoms—even when the petitioner clearly violates
the statute and his actions are not protected (exactly the same as overbreadth).

 Coates v. Cincinnati (1971)

 Facts: Ordinance made it illegal for three or more persons to assemble on any sidewalk and
conduct themselves in a manner annoying to passerby
 Holding: A law is unconstitutionally vague when it subjects the exercise of the right of
assembly to an unascertainable standard
 Professor: The law was also unconstitutionally broad b/c it would apply to protected disfavored
speech which might annoy some people
 National Endowment for the Arts v. Finely (1998)
 Facts: NEA used to give out grants to controversial artists. Congress passes a regulation that
required the Chairperson of the NEA to ensure that “artistic excellence and artistic merit are the
criteria by which grant applications are judged, taking into consideration general standards of
decency and respect for the diverse benefits and values of the American public”
 Holding: A regulation is not unconstitutionally vague when it is merely horatory (a
suggestion rather than a standard)
 Reasoning: The chairperson was not bound by the regulation
O PRIOR RESTRAINT
 Introduction
 Super Con-Law112
 Prior restraints prohibit the expression of protected speech. There are two types of prior
restraints: (1) licensing requirement of government approval before revealing to the public; and
(2) injunction enjoining expression
 Policy: Prior restraints are worse than subsequent punishment b/c the public at large is deprived
from access to the material. The risk to the individual (e.g. imprisonment) is minimal in
comparison.
 LICENSING
 Lovell v. Griffin (1938)
O Facts: Jehovah’s Witness convicted under a Georgia ordinance which prohibited distribution
of “circulars, handbooks, advertising, or literature of any kind within the city without first
obtaining written permission from the city manager.”
O Holding: While the freedom from previous restraint upon publication cannot be
regarded as exhausting the guarantee of liberty, the prevention of that restraint was a
leading purpose in the adoption of the First Amendment.
O Reasoning: The ordinance was not limited to obscene literature or literature which was
obscene to public morals or advocated illegal conduct.
O Professor: This is as bad a law as imaginable
 Lakewood v. Plain Dealer Publishing Co (1988)
O Facts: Ordinance prohibiting placement of newspaper racks on public property unless an
application for an annual permit was approved. The application could be denied in the
Mayor’s discretion.
O Holding:
 Prior restraints which place unbridled discretion in an official’s hands are facially
invalid b/c they present two First Amendment problems: (1) self-censorship by
speakers in order to avoid being denied a license to speak; and (2) difficulty of
detecting, reviewing, and correcting content based censorship as applied without
standards by which to measure the licensor’s action.
 A facial challenge to a prior restraint lies whenever a licensing law gives a
government official or agency substantial power to discriminate based on the
content or viewpoint of speech by suppressing disfavored speech or disliked
speakers
O Reasoning: The constitution requires that restrictions on speech establish neutral criteria to
ensure that the licensing decision is not based on the content or viewpoint of the speech being
considered.
 Freedman v. Maryland (1965)
O Facts: Defendant was convicted for failing to submit a film to the Maryland Board of
Censors prior to publicly exhibiting it in a theatre. There was no guarantee of a judicial
determination within the statute.
O Holding: In order to avoid invalidation as an unconstitutional prior restraint, the
constitution requires the procedural safeguards of: (1) guarantee of prompt judicial
determination on the validity of the licensing official’s decision; (2) governmental
burden of persuading the court that a denial was content-neutral; and (3) assurance
that the status quo must be maintained pending judicial determination in order to
prevent an erroneous denial from having the effect of a final decision
O Reasoning: The risk of delay that was built into the procedure creates a heavy presumption
against its validity.
 FW/PBS v. Dallas (1990)
O Facts: Proprietors of an adult entertainment establishment challenged a zoning and licensing
ordinance that targeted businesses purveying sexually explicit speech. They claimed that the
 Super Con-Law113
ordinance provided no means for judicial review to ensure that the business is inspected
within the 30-day time period within which the license is purportedly to be issued if
approved, therefore allowing an indefinite postponement of the issuance of a license
O Plurality (O’Connor): The first two Freedman safeguards of a decision within a
specified and reasonable time period and the possibility of prompt judicial review are
essential, yet the burden of persuasion that a denial was content-neutral does not rest
with the government when there is no direct censorship of particular expressive
material.
O Reasoning: The diminished Freedman safeguards are appropriate b/c the licensing was of the
business and not the material
 Thomas v. Chicago Park District (2002)
O Facts: Municipal park ordinance requiring individuals to obtain permits for any public
assembly, parade, picnic, etc involving more than 50 individuals or for any activity involving
amplified sound. Permits were processed in order of receipt, the decision needed to be
rendered within 14 days with an option to extend it 14 more, had enumerated grounds for
denial, required notice in writing, and had both an appeals process within the park district
and the state court system.
O Holding: Content-neutral permit schemes regulating speech in a public forum are valid
time, place and manner restrictions as long as they have specific objective standards to
guide the official’s decision and render it subject to prompt and effective judicial review
O Reasoning:
 This permit scheme meets the requirements and therefore is not a prior restraint
 Selective enforcement of such a scheme would be unconstitutional, but must be dealt
with on a case by case basis.
O Accord: Kingsley Books v. Brown (1957) (Upholding a New York licensing scheme
permitting denial of obscene literature and providing expedited judicial review)
 INJUNCTION
 Near v. Minnesota (1931)
O Facts: Minnesota law authorizing abatement, as a public nuisance, of a malicious,
scandalous, and defamatory newspaper or other periodical. Local prosecutors sought to abate
publication of a specific newspaper after articles were published alleging Jewish Gangster
activity and lackluster law enforcement performance. State court enjoined the newspaper
from printing such material.
O Holding: Prior restraint injunctions on the press are only constitutionally permissible in
exceptional cases
O Reasoning:
 Example of exception circumstances: “No one would question but that a government
might prevent actual obstruction to its recruiting service or the publication of the sailing
dates of transports or the number and location of troops.”
 Public officers, whose character and conduct remain open to debate and free discussion in
the press find their remedies for false accusations in actions under libel laws providing
for redress and punishment, and not in proceedings to restrain the publication of
newspapers or periodicals.
 Walker v. Birmingham (1967)
O Facts: MLK seeks to hold a demonstration in Birmingham without a permit and the state
issues an injunction enjoining him from doing so. MLK dismisses the permit requirement as
unconstitutional and doesn’t take any legal action.
O Holding: An individual must seek legal clarification before violating an injunction
enjoining speech
O Reasoning:
 Super Con-Law114
 An individual is not free to ignore all the procedures of the law and carry on their battle
to the streets
 If an individual disagrees with a permit requirement, then they must appeal it. They
cannot simply ignore it.
 Carroll v. President & Commissioner of Princess Anne (1968)
O Facts: Carroll gets an ex parte temporary restraining order (TRO) against a group of white
supremacists restraining their demonstration.
O Holding: Ex parte injunctions enjoining First Amendment protected freedoms are
unconstitutional unless a showing can be made that it is impossible to serve or notify the
opposing party and give them an opportunity to participate in an adversary hearing.
O Reasoning: Without an adversary hearing, there was insufficient assurance of the balanced
analysis and careful conclusion which are essential in the area of First Amendment
adjudication.
 PRIOR RESTRAINT & NATIONAL SECURITY
 New York Times Co. v. US (the “Pentagon Papers” case) (1971)
O Facts: During the height of criticism of the Vietnam war, the government commissions a
study of the failings of the Vietnam war. The report is kept confidential. A contributor to the
report leaked the report to the NY Times. The report contained very damaging information.
The Nixon administration passed legislation to enjoin the NY Times from publishing the
report. The government argued that an injunction was necessary “to prevent men from
dieing.” The Judge conducted a secret hearing where the government made out their case.
The judge was not persuaded, and struck down the injunction.
O Holding: Irreparable, immediate and unquestioned injury is necessary to sustain an
injunction enjoining a newspaper from publishing newsworthy speech in the interest of
national security.
O Reasoning: A newspaper can only be enjoined upon a showing of an immediate harm
 US v. Progressive, Inc. (W.D. Wis. 1979)
O Facts: Defendant is seeking to make a point that there are no secrets in the scientific
community. He interviews some scientists and publishes a book The H-Bomb Secret: How
We Got It, Why We’re Telling It. The government claims this is extremely dangerous and an
injunction must be issued enjoining its distribution b/c although the information derives from
the public domain, its combination presents an immediate and irreparable harm to the US.
The District Court issues an injunction, and while the case is pending review an underground
reporter duplicates the findings and publishes a report making the decision moot.
O Holding: When the disparity of risk b/w suppression of protected speech and
irreparable injury to the US and its citizens weighs heavily on the side of potential
harm, an injunction enjoining protected speech as a prior restraint is permissible.
O Reasoning:
 A mistake in the government’s favor results in suppression of an individual’s speech
 A mistake in the individual’s favor results in thermonuclear destruction and widespread
death. KABOOM!
O Professor: This was a CIA conspiracy. In twenty years, nobody has ever been able to build a
bomb based on these plans.
 Sneep v. US (1980)
O Facts: CIA agents must sign an agreement not to publish anything regarding their
employment without permitting the CIA to censor for confidential information. Former
agent writes a book which doesn’t disclose confidential information, but the government
wants to claim the profits on the grounds that he did not obtain permission prior to
publication.
 Super Con-Law115
O Holding: Agencies vital to the US national security may impose reasonable restrictions
on employee activities that in other contexts might be protected by the First
Amendment.
O Reasoning: The government has a compelling interest in protecting the secrecy of
information important to national security and the appearance of confidentiality to the
effective operation of foreign intelligence services.
 Prior Restraint and Fair Trial
 Nebraska Press Ass’n (1976)
O Facts: State court approved an injunction enjoining the press from printing or broadcasting
any information relating to the defendant’s confessions, admissions or facts that were
strongly implicative in order to preserve the defendant’s right to a fair trial in a widely
publicized mass-murder case.
O Holding: Factors in determining whether a prior restraint injunction enjoining the
press from publishing in order to preserve the right to a fair trial include: (1) the nature
and extent of pretrial news coverage; (2) whether other measures would be likely to
mitigate the effects of unrestrained pretrial publicity; and (3) how effective a retraining
order would operate to prevent the threatened damage.
O ]Reasoning:
 Other alternatives such as change of venue, postponement, careful questioning,
sequestering, and limitations on lawyer’s statements were available
 The degree of certainty of irreparable, immediate harm to the defendant’s right to a fair
trial was not sufficient to satisfy the requirements of a prior restraint exception.

CHAPTER 9: EQUAL PROTECTION___________________________________________________________

 14th Amendment: ...nor shall any state deprive an individual of equal protection under the law
O Every law that distinguishes between people potentially raises an equal protection problem
O There are different categories of equal protection, and different rules apply for each category
 Equal Protection Standard of Review Handout
O RATIONAL RELATIONSHIP
 Test met if there is any reasonably conceivable set of facts that could provide a rational basis
for classification (FCC v. Beech Comm.) pg. 662
 Only 7 cases have ever failed to meet a rational basis: (1) Village of Willowbrook v. Olech (2000)
pg. 663; (2) Romer v. Evans (1996) pg. 825; (3) Allegheny Pitts. Coal Co. v. County Comm.
(1989) pg. 661; (4) Metropolitan Life v. Ward (1985) pg. 337; (5) Cleburne v. Cleburne Living
Center (1984) pg. 818; (6) Zobel v. Williams (1982) pg. 316; (7) U.S. Dept. of Agric. v. Moreno
(1973) pg. 651
O HEIGHTENED SCRUTINY
 Strict Scrutiny:
 Government can prevail only if it shows a compelling state interest advanced through the
least restrictive means
 Super Con-Law116
O Only two cases have ever met the strict scrutiny test under equal protection: Korematsu v.
U.S. (1944) pg. 668; Grutter v. Bolinger (2003) pg. 718
 This is an exclusive club that everyone would like to belong to. However, membership is limited
to:
O Violations of a fundamental right
 Explicit constitutional rights (e.g. 1st Amendment)
 Autonomous decision making/Privacy
 Right to travel
O Members of a suspect category
 Race
 Alienage (sometimes)
 Intermediate Scrutiny (Important Governmental Objective Test):
 Government must show that regulation serves important governmental objective and that
the regulation is substantially related to the achievement of that objective
O Membership in this club is limited to
 Gender (Craig v. Boren (1976) pg. 775)
 Education/Alien Children (Plyler v. Doe (1982) pg. 881 is the only case to apply this test
outside of gender distinctions)
 “One Tooth” Test:
 Scrutiny is not a toothless one (Matthews v. Lucas (1976) pg. 816)
O Membership is limited to the Illegitimate
 Civil Rights Acts Handout (Legislative Supplements to Equal Protection)
O 42 U.S.C. §1983
 This is the key civil rights act and it provides the cause of action to bring the case into federal court
(jurisdiction requirements must also be met)
 Activity Covered: All state action
 Discrimination Covered: Any governmental action against classes protected by heightened scrutiny
under equal protection, also to protect any right granted by constitution or federal law
 Requirement: Intent (Washington v. Davis)
 Procedural Requirements: No administrative exhaustion required, no statute of limitation, jury trial
and no cap on damages.

O 42 U.S.C. §1981
 This is the modern version of the 1866 Civil Rights Act passed to invalidate the Black Code. Its
main application now is in the contract context.
 Activity Covered: Making and entering into contracts (public and private) and conditions after
employment including equal benefits and like punishment
 Discrimination Prohibited: Race, but limited to what the dumb Congress of 1866 thought race to be
(Jews, Italians and other ethnicities considered separate races)
 Requirement: Intent (General Builders Contractors)
 Procedural Requirements: No administrative exhaustion required, no statute of limitation, jury trial
and no cap on damages.
O 42 U.S.C. §1982
 Activity Covered: Real estate transactions
 Discrimination Prohibited: Race
 Requirement: Intent
 Procedural Requirement: No administrative exhaustion required, no statute of limitation, jury trial
and no cap on damages.
O 42 U.S.C. §2000d (Title VI)
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 Activity Covered: All programs receiving federal financial assistance (e.g. Stafford loans)
 Discrimination Prohibited: Race, color and national origin
 Requirement: Intent (Sandoval)
 Procedural Requirement: Unclear about jury trials, but 7th Amendment may require juries.
O 42 U.S.C. §2000e (Title VII)
 This is a major civil rights action and a very useful statute. Civil rights statutes are attractive for
lawyers b/c they all have a provision for attorney’s fees to be paid to the prevailing party
 Activity Covered: All public and private employment of over 15 employees (NY statute only
requires 3 employees)
 Discrimination Prohibited: Race, color, religion, sex or national origin
 Requirement: Impact (e.g. Many firefighter cases where the FD required an ability to carry 500 lbs.
and the court found a discriminatory impact on women.)
 Procedural Requirements:
 Must file administrative complaint with the Equal Employment Opportunity Commission
(EEOC) within 180 days (300 days if the state has an antidiscrimination office such as NY) of
the alleged discriminatory event.
 Permissible to sue for emotional distress and loss of enjoyment of life
 $300,000 cap on total damages
O 42 U.S.C. §3604 (“The Fairing Housing Act”) (Title VIII)
 Activity Covered: Selling, renting, dwelling in housing
 Discrimination Prohibited: Race, color, religion, sex, familial status (e.g. no couples with children),
national origin
 Requirement: Impact (Huntington) (e.g. taxing on the basis of multiple dwellings negatively impacts
protected class)
 Procedural Requirements: No administrative exhaustion, jury trial, no cap on damages
O 20 U.S.C. §1681(a) (Title IX)
 Title VI only prohibited discrimination by race in public institutions, Congress realized that colleges
were discriminating by sex in sports program
 Activity Covered: Educational programs receiving federal funds (e.g. college sports)
 Discrimination Prohibited: Sex
 Requirement: Intent (the same as its predecessor Title IV)
 Procedural Requirement: No administrative exhaustion, jury trial (Gwinnett County)

O 42 U.S.C. §12101 (Americans with Disabilities Act)

 Activity Covered: Employment of over 15 employees
 Discrimination Prohibited: Disability, handicap, no reasonable accommodation made
 Requirement: Impact/Potential Impact
 Procedural Requirement: Jury trial, cap on damages, no administrative exhaustion
O 29 U.S.C. §623 (Age Discrimination in Employment Act)
 These are very successful jury trials b/c all jurors identify with age discrimination. Everyone will be
old at some point.
 Activity Covered: Employment of over 20 employees
 Discrimination Prohibited: Age (protected group over 40)
 Requirement: Impact (During the 2005 term, the Court recently settled the circuit split on this matter
in Smith v. City of Jackson)
 Procedural Requirement: Must file with administrative agency, cannot sue until 60 days after filing.
Jury trials, provides double damages.
 RATIONAL RELATIONSHIP
O Introduction
 Super Con-Law118
 A law is irrational if it does not accomplish what the legislature set out to do and regulates
something that doesn’t need regulation
 A law is under inclusive if it attempts to regulate an entire area and it only reaches a small part of the
problem
 A law is overinclusive if it attempts to regulate a small area and reaches far more than necessary
(e.g. drop a bomb on an apartment in order to get rid of cockroaches)
 A law can be both underinclusive and overinclusive at the same time
 Diagram: The Rings of Rationality

O Railway Express Agency v. NY (1949) pg. 645

 Facts: NY regulation prohibits trucks from carrying messages on their sides for the purpose of
advertising, but permits advertising on trucks engaged in the usual business of the owner and not
used merely or mainly for advertising purposes. The law was designed to prohibit distractive signs.
Railway Express, a nationwide delivery service similar to UPS, sells space on the exterior of its
trucks, which is for the most part unconnected with its business. The state court found this to be a
distraction in violation of the regulation.
 Holding:
 A statute that regulates economic activity will survive an equal protection challenge if there
is a rational relation b/w the challenged classification and the purpose of the statute
 It is no requirement of equal protection that all evils of the same genus be eradicated or
none at all.
 Reasoning: The court found that the fact that NY sees fit to eliminate from traffic this type of
distraction but not regulate greater ones in different categories such as vivid displays in Times
Square immaterial
 Professor:
 The law is underinclusive b/c it permits some distractive signs
 The law is overinclusive b/c it prohibits non-distractive signs
 The court’s decision is always based on the degree of under/overinclusiveness
O Williamson v. Lee Optical (1955) pg. 650
 Facts: State law regulates opticians exempted all ready to wear glasses.
 Holding: Legislative reform may take “one step at a time” addressing itself to the phase of the
problem which seems most acute to the legislative mind while neglecting others without
violating equal protection
 Reasoning:
 There is nothing in the constitution about eyeglasses, and the court defers to legislative judgment
 Evils in the same field may be of different dimensions and proportions, requiring different
remedies
O McGowan v. Maryland (1961) pg. 650
 Facts: Mandatory Sunday closing law provided exemptions to certain businesses including the retail
sale of tobacco products, confectioneries, milk, bread, fruits, gasoline, greases, drugs, medicine,
newspapers and periodicals.
 Holding: State legislatures are presumed to have acted within their constitutional power
despite the fact that their laws result in some inequality unless the classification rests on
grounds wholly irrelevant to the achievement of the State’s objective
 Reasoning: A legislature could reasonably find that the Sunday sale of the exempted commodities
was necessary either for the health of the populace or for the enhancement of the recreational
atmosphere of the day
 Postscript: This rationale was extended to permit the sale of alcohol on Sundays.
O McDonald v. Board of Elections Commissioners (1969) pg. 651
 Super Con-Law119
 Facts: Prisoners in county jail challenge state law which does not provide them with absentee ballots,
but does provide absentee ballots to persons out of the country and the disabled.
 Holding: Although the distinctions drawn by a challenged statute must bear some rational
relationship to a legitimate state end, statutory classifications will not be set aside as violative
of equal protection unless based on reasons totally unrelated to the pursuit of that goal
whereas no grounds can be conceived to justify them.
 Reasoning:
 A legislature need not run the risk of losing an entire remedial scheme simply because it failed,
through inadvertence or otherwise, to cover every evil that might conceivably have been attacked
(underinclusive)
 The state policy of adding groups to the absentee coverage over the past 50 years is justified
under the “one step at a time” rationale
 This classification can be justified on the grounds that individuals in county jail should either be
released or in prison (therefore losing their right to vote) by the time they receive their absentee
ballot. Also, they could stab eachother with the pencils.
O U.S. Dept of Agriculture v. Moreno (1973) pg. 651
 Facts: Congress passes a law that unrelated persons living together cannot get food stamps even if
they are qualified. The legislative history indicates that Congress did not want long-haired hippies
living on communes to get food stamps. The ACLU gets a blind person living with a person in a
wheel chair to challenge the law as plaintiffs.
 Holding: If the constitutional conception of equal protection of the laws means anything, it
must at the least mean that a bare congressional desire to harm a politically unpopular group
cannot constitute a legitimate governmental interest and therefore the law is irrational
 Reasoning: There is no rational basis to discriminate against hippies who need food stamps
 Professor: This case draws a distinction between a law that is “crazy irrational” (e.g. every car must
get a safety device except green cars) and one that it is “evilly irrational” b/c it is based on a desire to
harm the group given unequal treatment under the law.
O New Orleans v. Dukes (1976) pg. 652
 Facts: New Orleans legislation prohibits push-carts in the French quarter unless the vendor has been
doing so for 7 years (grandfather clause).
 Holding: Rational distinctions in economic regulations may be made with substantially less
than mathematical exactitude
 Reasoning:
 There is a rational basis for grandfathering vendors in b/c push-carts have been their livelihood
for a substantial amount of time.
 Seven years is appropriate b/c the line needs to be drawn somewhere
O Mass. Bd. of Retirement v. Murgia (1976) pg. 653
 Facts: Mass. law provides that all uniformed police officers must retire at fifty. Justified on the
grounds that old cops are out of shape and cannot protect citizens.
 Holding: A statutory classification need not be the best means to accomplish a purpose because
where rationality is the test a state does not violate equal protection merely because the
classifications made by its laws are imperfect
 Reasoning:
 This is rational Even though imposing an individual fitness test requirement may be a better
means to accomplish the purpose of maintaining a physically fit police force.
 The law is still rational b/c older cops eat too many donuts and can’t run. 50 is appropriate b/c
the legislature must draw a line somewhere.
 Accord: NYC Transit Auth. v. Beazer (1979) (Sustaining a challenge to a NYC transit policy
prohibiting individuals on methadone from operating trains on the grounds that they often go back to
 Super Con-Law120
heroin even though plaintiff claims that this is irrational b/c it encourages employees to stay on
heroin rather than registering for methadone.)
O U.S. RR Retirement Bd. v. Fritz (1980) pg. 655
 Facts: RR workers received two separate retirement benefits from social security and their pensions.
Congressional legislation requires RR employees to choose which benefits to receive. The only
individuals who get both are those who worked in 1974, the same year as union membership began.
The law was designed to protect union members.
 Holding: Equal protection is not offended if there are plausible reasons Congress could have
had for enacting social or economic regulations.
 Reasoning: Because Congress could have eliminated windfall benefits for all classes of employees, it
is not irrational for Congress to have drawn lines b/c particular groups of employees for the purpose
of phasing out those benefits. The legislature has to draw a line somewhere.
O Schweiker v. Wilson (1981) pg. 659
 Facts: Congress denied federal comfort allowances ($25/month) to needy, aged, and blind persons
confined in public institutions unless the institutions received Medicaid funds. Challengers argue
that the scheme bore no rational relationship to any legitimate objective of the federal supplementary
security program.
 Holding: The court grants a strong presumption of Constituional rationality to legislation
conferring monetary benefits because it believes that Congress should have discretion in
deciding how to expend scarce resources
 Reasoning: The expenditure of federal resources inevitably involves the kind of line drawing that
will leave some comparably needy persons outside the favored circle
O Allegheny Pittsburg Coal v. Webster County (1989) pg. 661
 Facts: West Virginia constitution established a uniform system of taxation whereas all property is
taxed in proportion to its value. Prior to 1975, value was assessed on the basis of its recent purchase
price. Other properties were assessed on the basis of their previous assessments with minor
modifications. This resulted in gross disparities of valuation
 Holding: The relative undervaluation of comparable property denies equal protection of the
law and is irrational
 Reasoning:
 The fairness of one’s allocable share of total tax burden can only be meaningfully evaluated by
comparison with the share of others similarly situated relative to their property holdings
 The court found that two different ways to figure out the same thing producing such vast
differences was irrational
 Compare: Nordlinger v. Hahn (1992) (Upholding California’s Proposition 13 proposing an
acquisition value property taxation system and thus benefiting long-term property owners at the
expense of newer property owners on the grounds that the differences in valuation were not
substantial—a factual distinction, not a legal one)
O FCC v. Beach Communications (1993)
 Facts: Distinction among cable facilities in the Cable Communications Policy Act.
 Holding: A statutory classification that neither proceeds on suspect lines nor infringes
fundamental constitutional rights must be upheld against equal protections challenge if there
is any reasonably conceivable set of facts that could provide a rational basis for the
classification
 Reasoning: The legislature need not articulate the reason, the court must guess at it. Even if the
court cannot articulate a reason, they can defer to the legislature’s ability to possibly conceive one.
 Professor:
 This is almost an impossible test to meet b/c the court bends over backwards to find a rational
reason.
 This is the modern test in the handout
 Super Con-Law121
O Village of Willowbrook v. Olech (2000)
 Facts: Town wouldn’t give Joe Schmuck water unless he would provide them with an easement.
 Holding: Equal protection is violated by punitive legislation directed at an individual
 Reasoning: This is evil rationality b/c the town is using the water to hold Joe Schmuck up for an
easement, and is not applying its regulation to anyone but the individual they want the easement
from.
 SUSPECT CLASSIFICATIONS: RACE DISCRIMINATION
O STRICT SCRUTINY OF RACIAL CLASSIFICATIONS DISADVANTAGING MINORITIES
 Strauder v. Virginia (1880) pg. 667
 Facts: Black defendant convicted by a jury of all whites. Blacks were not eligible for jury duty
 Holding: The common purpose of the post-Civil War Amendment was the securing to a
race recently emancipated all the civil rights the superior race enjoy
 Reasoning:
O The 14th Amendment was passed to constitutionalize the 1866 Civil Rights Act
O Therefore, if the 14th Amendment is to mean anything, it applies to prohibit racial
discrimination
 Professor: Subsequently, the equal protection rationale has been extended to other suspect
classifications
 Korematsu v. United States (1944) pg. 668
 Facts: Right after Pearl Harbor, President Roosevelt issued an executive order to place all
Americans with Japanese ancestry into concentration camps in order to safeguard against
espionage and sabotage.
 Holding (Warren): All legal restrictions which curtail the civil rights of a single racial
group are immediately suspect and courts must subject them to strict scrutiny review.
 Reasoning: The court found that these actions pass strict scrutiny review b/c they are not based
on racial prejudice but the real pressing threat of public necessities including Japanese invasion
 Professor: Warren is a famously liberal judge. It is ironic that the suspect group strict scrutiny
rule emerges from a case where the court permitted racial discrimination.
 Postscript: Congress has subsequently apologized for these actions.
O THE UNCONSTITUTIONALITY OF RACIAL SEGREGATION
 Plessy v. Ferguson (1896) pg. 671
 Facts: Louisiana law required “equal but separate accommodations” in RR cars. Plessy refused
to leave a seat in a coach for whites and was arrested.
 Holding (Brown): Separate but equal does not violate equal protection
 Reasoning: Separate but equal does not necessarily imply the inferiority of either race to the
other. The colored race places the badge of inferiority upon itself and the Constitution cannot put
them upon the same plane
 Dissenting (Harlan):
O Our constitution is color-blind, and neither knows nor tolerates classes among citizens
O The destinies of the two races are indissolubly linked together, and the interests of both
require that the common government of all shall not permit the seeds of race hate to be
planted under the sanction of law
 Professor: It is hard to say that this is anything but discrimination when the law was drafted by a
white legislature.
 Caution: Expressly overruled by Brown
 Brown v. Board of Education (“Brown I”) (1954) pg. 673
 Facts: Five cases coming out of Kansas, S. Carolina, Virginia, Delaware and D.C. involving
black children seeking the aid of courts in obtaining admission to the public schools of their
community on a non-segregated basis. The states contend that the “separate but equal” policy is
 Super Con-Law122
permissible under Plessy and that the schools provide equal tangible factors. The plaintiffs
contend that segregated public schools are not “equal” and cannot be made “equal” and that
hence they are deprived of the equal protection of the laws.
 Holding (Warren): The doctrine of “separate but equal” has no place in the field of public
education because separate educational facilities are inherently unequal.
 Reasoning:
O The early graduate school cases established that separate but equal required truly equal
“tangible factors” in the black schools.
O Sociologists agree that a sense of inferiority affects the motivation of a child to learn (e.g.
50% of black children preferred white dolls)
 Professor:
O Warren obtained the necessary votes by holding the question of remedy for later decision
O The Brown rationale was extended to everything from beaches to buses
 Bowling v. Sharpe (1954) pg. 676
 Facts: Due Process challenge to racial segregation in the D.C. public school systems decided the
same day as Brown
 Holding: Segregation in public education is not reasonably related to any proper
governmental objective and thus it imposes on Negro children a burden that constitutes an
arbitrary deprivation of their liberty in violation of Due Process
 Reasoning:
O The concepts of equal protection and Due Process, both stemming from our American ideal
of fairness, are not mutually exclusive
O The equal protection of the law is more explicit safeguard of prohibited unfairness than due
process of the law, and therefore the two are not always interchangeable
 Brown v. Board of Education (“Brown II”) (1955)
 Facts: Implementation of relief pursuant to the Brown I decision
 Holding: All public school desegregation cases are remanded to the lower federal courts to
take such proceedings and enter such orders and decrees consistent with Brown I necessary
and proper to admit petitioners to public schools on a racially nondiscriminatory basis with
all deliberate speed
 Reasoning: The vitality of the constitutional principles of Brown cannot be allowed to yield
simply b/c of widespread disagreement with them.

 Loving v. Virginia (1967) pg. 681

 Facts: Statutory scheme adopted by Virginia whereas if a White marries a Black or a Native
American, both bride and groom are imprisoned. A Native American can marry a Black without
violating the law.
 Holding: The mere equal application of a statute containing racial classifications is not
enough to remove the classifications from the 14th Amendment’s proscription of all
invidious racial discriminations.
 Reasoning: The law is designed to maintain white racial supremacy
 Accord: McLaughlin v. Florida (1964) (Extending Loving to invalidate an adultery and
fornication statute prohibiting cohabitation by interracial unmarried couples)
 Palmore v. Sidoti (1984) pg. 683
 Facts: A white married couple gets divorced and the wife gets custody of their child. Mother
marries black man. Court grants father custody b/c the child is being harassed b/c she has a black
daddy.
 Super Con-Law123
 Holding: Racial classifications are subject to the most exacting scrutiny, and to pass
constitutional muster the must be justified by a compelling governmental interest and must
be necessary to the accomplishment of its legitimate purpose.
 Reasoning: The custody ruling rested wholly on race b/c it was clear that the outcome would
have been different if the mother married a white man. Alas, once you go black...
 Anderson v. Martin (1964) pg. 684
 Facts: State law requiring that every candidate’s race appear on the ballot
 Holding: The power of the state cannot be placed behind a racial classification that induces
racial prejudice at the polls.
 Tancil v. Wools (1964) pg. 684
 Facts: Law requires separate lists of whites and blacks in voting, tax and property records and
that every divorce decree indicate the race of husband and wife
 Holding: Race can be required in a divorce decree b/c it is vital to statistics
 Reasoning: The separate lists in voting, tax and property records were struck down
 Lee v. Washington (1968)
 Facts: Federal court order striking down Alabama laws requiring racial segregation imprisons
 Holding: Prison authorities have the limited right when acting in good faith and in
particularized circumstances to take into account racial tensions in maintaining security,
discipline and good order in prisons and jails
 Reasoning: Alabama made no showing of a security or disciplinary purpose
 Professor: The Supreme Court found that it was a violation of equal protection for California
Prisons to segregate prisoners by race for the first 60 days and then releasing them into the
general population b/c they could not provide a compelling state reason for doing so.
O RACIALLY DISCRIMINATORY PURPOSE AND EFFECT
 Yick Wo v. Hopkins (1886) pg. 685
 Facts: There were two types of laundries in San Francisco in the 1880s; wood laundries and brick
laundries. Open fires were necessary to heat the water. California passed a law whereas no
license was required to operate a brick laundry but one was necessary for wooden laundries. It
just so happens that all of the brick laundries are white owned. 39 out of 40 White wood laundry
owners got a license. 0 out of 250 Chinese wood laundry owners did not get permits.
 Holding: Though the law itself be fair on its face and impartial in appearance, yet if it is
applied and administered by public authority with an evil eye and unequal hand so as
practically to make just an illegal discrimination between persons in similar circumstances,
the denial of equal justice is still within the prohibition of the Constitution
 Reasoning: No reason for the application of the law exists other than hostility towards the
Chinese
 Professor: If a law provided health insurance for all diseases except Sickle Cell anemia, the law
would violate equal protection as purposeful discrimination against African Americans
 Accord: Gomillion v. Lightfoot (1960) (Finding that an Alabama law redefining the boundaries
of Tuskegee had the purposeful effect of disenfranchising blacks)
 Griffin v. County School Board of Prince Edward County (1964) pg. 687
 Facts: In response to Brown, the city closes a public school and rents it to a private school which
only admits white students
 Holding: Whatever nonracial grounds might support a state’s allowing a county to
abandon public schools, the object must be a constitutional one and grounds of race and
opposition to desegregation do not qualify as constitutional
 Washington v. Davis (1976) pg. 688
 Super Con-Law124
 Facts: Involves the validity of a qualifying test administered to applicants for positions as police
officers in the District of Columbia. Questions related to verbal ability, vocabulary and reading
comprehension. A higher percentage of blacks failed the test than whites.
 Holding: Violations of the Equal Protection clause of the 14th Amendment require a
showing of discriminatory intent rather than merely showing disproportionate impact in
order to trigger strict scrutiny analysis
 Reasoning:
O A law with a disproportionate impact which negatively effects members of one race more
than another race without further proof of discriminatory intent, will not be considered a
racial classification which triggers strict scrutiny under the Equal Protections Clause.
O The governmental body or agency which passes the legislation must have intended a negative
impact
 Professor:
O There are some situations where discriminatory intent/purpose will be clear. However, for
the most part it is difficult to prove discriminatory purpose.
O Congress has passed several statutes which prohibit discriminatory impact absent a
requirement of discriminatory purpose. See summary above in introduction.
 Arlington Heights v. Metropolitan Housing Corp. (1977)
 Facts: Town passes a zoning law prohibiting multiple-dwelling (as opposed to single family)
housing. It turns out that the multiple-dwelling apartment buildings were seeking to attract low-
income residents. The housing company claims that most low-income residents are minorities
and the legislative intent was to prevent minorities from entering the town.
 Holding: Determining whether invidious discriminatory purpose was a motivating factor
triggering strict scrutiny demands a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available.
 Reasoning:
O Although impact of official action may provide a starting point for this inquiry, it alone is not
enough strict scrutiny analysis
O Absent a pattern such as in Yick-Wo where a clear pattern, unexplainable on grounds other
than race emerges from the effect of the state action even when the legislation appears
neutral on its face, the court must look to other evidence such as: (1) historical background of
the decision; (2) the specific sequence of events leading up to the challenged decision; (3)
departures from the normal procedural sequence; (4) legislative or administrative history; and
(5) trial testimony of officials in extraordinary circumstances
 Postscript: The legislature spoke on racial terms on remand and consequently lost the case
 Accord: Hunter v. Underwood (1985) (Striking down an Alabama statute which disenfranchises
individuals convicted of a crime of “moral turpitude” including passing bad check that had the
effects of disenfranchising 10 times as many blacks as whites after finding that the legislative
history indicated a zeal for white supremacy)
 Rogers v. Lodge (1982) pg. 694
 Facts: There is a very distinct Black district in the town. There are two ways of voting for the
legislature; single district (one vote for one candidate from one district) and at large (all districts
for as many positions with openings get an equal number of votes). The town decided on at
large voting in 1911, and the effect is that white voters in the other three districts have been able
to prevent Blacks from electing Black representatives in their district.
 Holding: If it is very clear that a system has a discriminatory effect over an extended
period of time, then the failure to remedy the discriminatory effect provides the inference
of discriminatory purpose.
 Super Con-Law125
 Reasoning: Discriminatory purpose can be inferred from the fact that the at large voting
mechanism has been maintained for 70 years despite its clear discriminatory effect.
 Professor: The omission is the equivalent of a discriminatory act.
 Memphis v. Greene (1981)
 Facts: Black residents bring a 13th Amendment action (indicia of servitude equivalent to a badge
of slavery) against town for closing a street at the border between black and white communities
 Holding: A mere inconvenience is not in any sense comparable to the odious practice the
13th Amendment was designed to eradicate and cannot be considered as imposing a stigma
amounting to a badge of slavery
 Reasoning: The town’s motivation was an interest in protecting the tranquility of a residential
neighborhood
 Green v. County School Board (1968) pg. 698
 Facts: Resistance to Brown continues. School board institutes a “freedom of choice” policy in
order to receive federal funding. Whites choose to go to white school, blacks choose black
school. 85% of blacks are in the black school.
 Holding: Pursuant to the Brown desegregation mandate, schools must fashion steps which
promise realistically to convert to a unitary nonracial system of public education and only a
showing of discriminatory impact is required to invalidate insufficient attempts to do so.
 Reasoning: Freedom of choice is an unconstitutional implementation of the Brown desegregation
mandate b/c this does not require a showing of discriminatory intent b/c discriminatory intent
was already found in the Brown decision.
 Professor: Federal courts have much broader discretion in remedies
 Swann v. Chbarlotte-Mecklensburg Board of Ed. (1971) pg. 698
 Facts: School district covering N. Carolina metropolitan area. District court held that each
separate district must have equal ratio of blacks to whites. This requires busing black children to
predominantly white schools in the suburbs.
 Holding: Once a right and a violation have been shown, the scope of the district court’s
equitable powers to remedy past constitutional wrongs is broad
 Reasoning: Since N. Carolina imposed de jure segregation, they must have a very heavy remedy
to eliminate their past wrongs.
 Professor: It would be virtually impossible to order busing as a remedy without the initial finding
of discriminatory intent.
 Keyes v. School District (1973) pg. 699
 Facts: Denver did not have enforced segregation (de jure segregation). Instead, the school
district drew district lines to encompass black communities (de facto segregation).
 Holding:
O De facto segregation is the equivalent to de jure segregation and both confer broad
remedial powers on the district court
O De facto segregation will be found where plaintiffs prove that the school authorities
have carried out a systematic program of segregation affecting a substantial proportion
of the students, teachers and faculties or showing of intentional segregation in one are
was probative as to intentional segregation in other areas.
 Reasoning:
O De jure: Mandated by law
O De facto: Apparent from facts
 Columbus Board of Ed. v. Penick & Dayton Board of Ed. v. Brinkman (1979) pg. 699
 Facts: School board establishes a de facto system of segregation and doesn’t do anything to
remedy it after the Brown decision
 Super Con-Law126
 Holding: The measure of post-Brown conduct of a school board under an unsatisfied duty
to liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing
or increasing the segregation caused by the dual system.
 Reasoning: Inaction to an obvious problem indicates intent to retain a segregated system which
permits the federal court to impose broad remedies such as busing and redrawing district lines.
 Milliken v. Bradley (1974) pg. 700
 Facts: Detroit has mostly black schools, and the suburbs are mostly white schools. Unlike
Charlotte, where the district lines were drawn up to differentiate b/w black and white districts
(intra-district), the Detroit district was de facto segregating and the suburban ones were not. It
was just a predominantly white geographic neighborhood. Nevertheless, the district court
ordered blacks to be bused into the suburbs.
 Holding: Before the boundaries of separate and autonomous school districts may be set
aside by consolidating the separate units for remedial purposes or by imposing a cross-
district remedy, it must first be shown that racially discriminatory acts of the state or local
school districts, or of a single school district, have been a substantial cause of inter-district
segregation.
 Reasoning: An inter-district remedy might be in order where the racially discriminatory acts of
one or more school districts caused racial segregation in an adjacent district or where district
lines have been deliberately drawn on the basis of race. Absent either, you cannot “punish” a
school district which has done nothing wrong.
 Missouri v. Jenkins (1990) pg. 701
 Facts: Court required an increase in Kansas City’s property tax in order to raise $450 million to
build new “magnet schools” (attracting the gifted) to remove the vestiges of segregation in the
district.
 Holding: A court cannot impose a specific tax on a school district to remedy past
segregation unless no other alternatives were available
 Reasoning: The court could have required the district to levy property taxes at an adequate rate,
but it could not determine the appropriate amount
 Professor: The district court went too far in remedying the school board’s past wrongs
 Missouri v. Jenkins II (1995) pg. 704
 Facts: Court orders the school district to increase teacher’s salaries to remedy past segregation
 Holding: Federal court decrees must directly address and relate to the constitutional
violation itself
 Reasoning: The nature and scope of remedies are to be determined by the violation
 Board of Ed. v. Dowell (1991) pg. 702
 Facts: District court orders system wide busing in order to remedy de facto segregation. “White
flight” to private schools changes the ratio into effective re-segregation.
 Holding: If re-segregation is the result of private choices, the court cannot create a new
desegregation plan
 Reasoning: You can punish a district once, but you cannot punish them again just b/c the
remedial punishment failed
 Accord: Freeman v. Pitts (1992) (Extending Dowell to re-segregation which is the result of
housing patterns)
 US v. Fordice (1992) pg. 703
 Facts: Mississippi has black and white colleges
 Holding: Whatever desegregation remedies are in place for the secondary schools must also
be put in place for colleges
 Hunter v. Erickson (1969) pg. 704
 Super Con-Law127
 Facts: Every other law within Akron can be passed by the legislature, but laws designed to fight
racial discrimination (e.g. fair housing) must be passed by majority vote of the citizens
 Holding: The government may not place special burdens on racial minorities within the
government process
 Reasoning: The state may no more disadvantage any particular group by making it more difficult
to enact legislation in its behalf than it may dilute any person’s vote
 Professor: These cases are about states trying to limit federal court’s equitable powers
 Washington v. Seattle (1982) pg. 704
 Facts: Washington voters confirm an initiative which provides students with the right to go to the
closest school in their geographic location
 Holding (Blackmun): Although the political majority may generally restructure the
political process to place obstacles in the path of anyone seeking to secure the benefits of
governmental action, a different analysis is required when the state allocates governmental
power non-neutrally by explicitly using the racial nature of a decision to determine the
decision making process.
 Reasoning: State action of this kind places special burden on minorities within the government
process, thereby making it more difficult for certain racial and religious minorities than for other
members of the community to achieve legislation that is in their interest.
 Professor: This law made it impossible for the decision making group to pass laws to eliminate
desegregation
 Crawford v. LA Board of Education (1982)
 Facts: California constitutional amendment designed to limit the state court’s power to order
busing to that exercised by the federal courts.
 Holding: State courts interpreting state constitutions may not implement desegregation
measures in excess of those remedies implemented by federal courts
 Reasoning: This merely equalizes the courts’ powers
O AFFIRMATIVE ACTION AND RACE PREFERENCES
 Race Preferences in Education
 Regents of Univ. of California v. Bakke (1978) pg. 708
O Facts: University of Carolina at Davis Medical School sets aside 16 out of 100 places for
members of minority groups—including Blacks, Chicanos, Asians, and Native Americans.
Even if the scores for the minority person were way lower than the white applicant, the
minority would get in if his or her score was one of the highest of the 16. Bakke had a much
higher score than the minority applicants who were accepted in the two previous years
although he was not.
O Holding (Powell): Race cannot be used for a strict admissions quota, but it may be a
positive factor in the admissions process
O Concurring: Remedies for past discrimination require strict scrutiny
O Dissenting: Important governmental objectives do not require strict scrutiny
O Caution: Grutter is the final word on affirmative action

 Grutter v. Bollinger (2003) pg. 718

O Facts: In the graduate setting, Michigan, a top 10 law school, accepts 350 seats from 300,000
candidates. The school adopts a policy that a “critical mass” of minority students is required
to achieve its goal of racial diversification. No specific number quota is adopted.
O Holding: Even if race is only used as a positive factor in affirmative action, the
admissions process must be examined with strict scrutiny and can only survive if the
admissions process is narrowly tailored to further a compelling governmental interest
O Reasoning: System found to pass strict scrutiny...
 Super Con-Law128
 Compelling State Interest: Promotes cross-racial understanding, helps break down racial
stereotypes, and enables students to better understand persons of different races
 Amicus curiae briefs were submitted by the military and top 100 businesses attesting
that more minority graduate students were necessary to engender confidence in the
leadership of minorities.
 Narrowly Tailored: No quota system was in place. Individual review of each applicants
file which gives consideration of how the applicant will contribute to a diverse academic
environment.
O Professor:
 This case is now the law on affirmative action and every state university, and most
private universities, have adopted similar policies
 The only other state legislation the Supreme Court found to meet a compelling state
interest was in Korematsu
O Compare: Gratz v. Bollinger (2003) (Companion case striking down Michigan undergraduate
program as overbroad and therefore failing to meet strict scrutiny b/c provides subjective
criteria for assessing points for categories such as “leadership” and had in place a mandatory
positive factor amount for minority students)
 Race Preferences in Public Employment and Contracting
 Wygant v. Jackson Board of Education (1986) pg. 736
O Facts: The school boards ordinary policy is last hired, first fired. Minority hires are exempt
from the seniority system on the grounds that the school board wants to increase the number
of minority teachers
O Holding: The goal of providing minority role models in order to overcome societal
discrimination is not a compelling state interest and fails strict scrutiny analysis
O Professor: The exam question last year involved a similar fact pattern based on a Posner
decision finding that it was permissible to establish role models in the police force
 Fullilove v. Klutznick (1980)
O Facts: Set aside program provides that 10% of all federal expenditures on public works must
go to MBEs (Minority Business Enterprises owned and controlled at least 51% by
minorities).
O Holding: Federal set aside programs designed to benefit minority businesses are not
subject to strict scrutiny analysis
O Reasoning: Congress had abundant historical basis from which it could conclude that
traditional procurement practices, when applied to minority businesses, could perpetuate the
effects of prior discrimination and therefore could reasonably determine that the prospective
elimination of those barriers was required to ensure equal opportunity to participate in federal
grants.
O Caution: Adarand implicitly overrules this case
 Richmond v. J.A. Croson Co. (1989)
O Facts: Set aside program provides that at least 30% of City contracted works must be
provided to MBE’s doing construction work.
O Holding: Any affirmative action program must be subjected to strict scrutiny analysis
O Reasoning:
 Failed strict scrutiny b/c none of the evidence presented by the city pointed to any
identified discrimination in the Richmond construction industry
 The court went out of its way to state that this holding does not preclude a state or local
entity from taking action to rectify the effects of identified discrimination within its
jurisdiction (e.g. evidence that nonminority contractors were systematically excluding
minority businesses from subcontracting opportunities.
 Super Con-Law129
O Professor: The problem was that the legislature made its determination on statistics w/o a
legislative history establishing racial discrimination
 Metro Broadcasting, Inc. v. FCC (1990) pg. 749
O Facts: FCC establishes a minority “distress sale” provision whereas if a minority license
owner was forced to sell their license due to insolvency, they must sell the license to another
minority ownership. This was not a generalized minority program, it only applied to areas of
ample minority ownership.
O Holding: When a program employing a benign racial classification is adopted by an
administrative agency at the explicit direction of Congress, the court must give
deference to Congress and not apply a strict scrutiny analysis.
O Caution: Explicitly overruled by Adarand
 Adarand Constructors, Inc. v. Pena (1995) pg. 750
O Facts: Incentive program whereas public works contractors would receive additional
compensation if they hired minority subcontractors. Pena receives hire compensation b/c they
hire more minority subcontractors. AC argues affirmative action discrimination b/c placed at
a competitive disadvantage.
O Holding:
 (Skepticism) Any preference based on racial or ethnic criteria imposed by a state,
federal or local actor requires strict scrutiny analysis
 (Consistency) Standard review under the Equal Protection Clause is not dependent
on the race of those burdened or benefited by a particular classification
 (Congruence) Equal Protection under the 5th Amendment is the same as under the
14th Amendment
O Reasoning: Any person of any race has the right to demand that any governmental actor
justify any racial classification subjecting that person to unequal treatment under the strictest
judicial scrutiny
O Professor: This case put the kibosh on racial preferences in public works. It is hard to
imagine any program which would meet this high burden
 SUSPECT CLASSIFICATIONS: SEX DISCRIMINATION
O Bradwell v. State (1873) pg. 771
 Facts: Law which prohibited women from practicing law b/c it offends their feminine sensibilities
 Holding: The paramount destiny and mission of woman are to fulfill the noble and benign
offices of wife and mother
 Reasoning: This is the law of the Creator (can you believe they actually said that?)
 Caution: Obviously, this is bad law.
O Goesaert v. Cleary (1948) pg. 772
 Facts: No woman could work in a bar unless she was the wife or daughter of the owner of the bar.
Justified as a protection of women from ruffians.
 Holding (Frankfurter): The constitution does not require legislature to reflect sociological
insight, or shifting social standards than it requires them to keep abreast of the latest scientific
standard
 Caution: Bad law

O Reed v. Reed (1971) pg. 772

 Facts: Law which stated that in the administration of an estate, if two people were equally entitled
(e.g. parents die and brother and sister are nearest in the line of consanguinity) then a female is not
entitled to be a co-administer and the male is entitled to the fee.
 Holding: Laws which discriminate on the basis of sex are subject to (heightened?) rationality
review
 Super Con-Law130
 Reasoning: This law, on its face, prohibits women from receiving money simply because they are
women
 Professor:
 Ginsburg was the advocate for the ACLU, and this case founded gender as a suspect category
 Many believe that the law should have passed the purported rationality review
O Frontiero v. Richardson (1973)
 Facts: Male serviceman in the army with a wife and children receive a dependency allowance.
Women with husband and child receive no such allowance unless her husband and child are actually
dependent on her.
 Holding (Brennan): Gender is a suspect classification and laws which discriminate on the basis
of sex are subject to intermediate scrutiny
 Reasoning: This law is a violation of equal protection for two reasons
 As a practical matter, a tougher test is imposed on a woman before she can receive the
dependency allowance for her family simply b/c she is a woman
 The law is based on the status premise that a woman is usually dependent on a man
 Professor: Ginsburg was the advocate again, and she persuades 4 justices to find that strict scrutiny
is required for gender as a suspect category. The majority agrees, but limits review to intermediate
scrutiny.
O Craig v. Boren (1976) pg. 775
 Facts: If you are a man, then you cannot receive 3.5% alcohol content beer unless you are 21. If you
are woman, then you can get 3.2% beer when you are 18. The law was justified on the grounds that
men in this age group are more reckless and likely to drink and drive, whereas women who drink in
this age group are smart enough not to drive.
 Holding: Gender is not a proper qualification for legal distinction and classifications by gender
are subject to intermediate scrutiny whereas they must serve important (rather than
compelling) governmental objectives and must be substantially related (rather than narrowly
tailored) to achievement of those objectives in order to pass constitutional scrutiny.
 Reasoning: It doesn’t matter that this law actually discriminates against men
 Professor: Gender qualifications must be based on fundamental differences b/w males and females to
pass intermediate scrutiny
 E.g. Statutory rape statutes. If a male under the age of 18 has sex with a woman age 22, then
everyone is proud of him. If a female under the age of 18 has sex with a male age 22, he is
guilty of statutory rape. This distinction is justified on the grounds that females can get pregnant
and males cannot.
 E.g. Draft registration. The justification is the court’s deference to the legislature that women
will not be drafted to fight.
 Note: This test is lowered one notch from the substantive and means analysis of the strict scrutiny
test
O Mississippi University for Women v. Hogan (1982)
 Facts: Mississippi sets up a state university nursing school which only enrolls women.
 Holding (O’Connor): If the statutory objective of a discriminatory law is to exclude or protect
members of one gender b/c of archaic and stereotypic notions of gender roles, then the
objective itself is illegitimate and the law fails to pass intermediate scrutiny
 Reasoning: Could not survive intermediate important governmental objective scrutiny b/c...
 The premise of the law is that since women are excluded from the medical field, they should be
permitted to be nurses
 Additionally, the law discriminates against males who would like to be nurses
 Laws which discriminate on the basis of sex, regardless of which gender is adversely affected,
are subject to intermediate scrutiny.
O J.E.B. v. Alabama (1994) pg. 780
 Super Con-Law131
 Facts: Litigators receive 6-8 preemptory challenges in the federal system for jury selection. If you
knock off jurors based on race, then that violates Batson unless the litigator has a very good
alternative reason (e.g. prior convictions). This case involves the practice of using preemptory
challenges to knock women or men off of a jury (e.g. rape trial, paternity trial). The real issue here is
that the litigants have third party standing to assert the jurors’ right to serve on a jury.
 Holding: Gender-based preemptory challenges are unconstitutional
 Reasoning:
 Equal protection jurisprudence requires an exceedingly persuasive justification in order to
survive constitutional scrutiny
 The application of intermediate scrutiny must be free of fixed notions of gender roles and should
not reflect archaic and stereotypic notions
o United States v. Virginia (1996) pg. 781
 Facts: VMI, a state supported military training institution, does not permit women to serve b/c of the
horrible hazing and conditioning type things done during basic training to the students, called “rats.”
VMI is an educational institution that does not require military enrollment after graduation (different
from West Point or Citadel). The basic training was designed to make students automatons and
become a wheel in the military cog. The state justified its gender qualification on the grounds that to
admit women would require the state to implement female bathrooms and dorm facilities.
Additionally, women were not thought up to the task of the grueling training. The state established
VMIL for women. There was no basic training and the women didn’t take orders from superiors.
 Holding (Ginsburg): Party’s who seek to defend gender based government action must
demonstrate an exceedingly persuasive justification for that action (heightened intermediate
scrutiny close to strict scrutiny?)
 Reasoning:
 Intermediate scrutiny is the minimum justification for gender based discrimination
 The justification must be genuine, not hypothesized or invented post-hoc in response to litigation
 VMIL was VMI w/o all of the rough stuff and demoralization on the “rat line.” This is not the
equivalent treatment to women who have the will and capacity to go through basic training as
military cadets.
 Any opportunity provided to a man must be provided to women. Some women want to be
abused and experience basic training.
 Dissenting (Scalia): Single gender schools have valuable psychological elements and should not be
destroyed. The “exceedingly persuasive” language is an unjustified attempt to elevate sex
discrimination to strict scrutiny.
 Professor: This case is vindication for all of Ginsburg’s work. Verbally, the exceedingly persuasive
language seems tougher than intermediate scrutiny. Scalia had a problem with that. This is really
just a different verbal formulation of intermediate scrutiny
o Acknowledging “Real” Differences
 Introduction: Traditional equal protection principles require that only those who are similarly
situated should be treated alike. Therefore, differences in treatment can be justified when they
correspond to relevant differences.
 Geduldig v. Aiello (1974)
 Facts: Disability payment program does not include pregnancy and other childbirth disabilities
only attributable to women.
 Holding (Stewart): Absent a showing that distinctions involving pregnancy are mere
pretexts designed to effect an invidious discrimination against the members of one sex or
the other, lawmakers are constitutionally free to include or exclude pregnancy from the
coverage of legislation on any reasonable basis, just as with any other physical condition.
 Super Con-Law132
 Reasoning: The program divides potential recipients into two groups—pregnant women and
nonpreganant persons. While the first group is exclusively female, the second includes members
of both sexes.
 Dissenting (Brennan): Dissimilar treatment of men and women on the basis of physical
characteristics inextricably limited to one sex inevitably constitutes sex discrimination.
 Professor: This violates the Stupidity Clause
 Postscript: All of these problems are now addressed by the Pregnancy Disability Act and the
Family Medical Leave Act. Discrimination based on gender now includes discrimination based
on pregnancy.
 Michael M. v. Superior Court (1981)
 Facts: Statutory rape law punished the male but not the female participant in sexual intercourse
when the female was under 18 and not the man’s wife. The challenger is a 17 year old male who
had engaged intercourse with a 16 year old female (hey, if there’s grass on the field...).
 Holding (Rehnquist): A legislature may provide for the special problems of women
because equal protection does not require things which are different in fact to be treated in
law as though they were the same.
 Reasoning:
o The prevention of illegitimate pregnancy is a strong governmental interest
o Virtually all of the harmful and inescapable consequences of teenage pregnancy fall on the
young female
o The risk of pregnancy is already a substantial deterrent for females, there is no such deterrent
for horny boys. By nature, nothing “bad” happens to the men—they cause the harm.
 Dissenting (Brennan): This furthers outmoded sexual stereotypes regarding the special need to
protect young women’s chastity.
 Rostker v. Goldberg (1981)
 Facts: Equal protection challenge to the Military Selective Service Act which authorizes the
President to require the registration of males but not females. Legislative history indicated that
Congress thoroughly considered whether or not to include women, and determined not to
because any future draft would be characterized by the need for combat troops. Women are
excluded form combat by statute.
 Holding (Rehnquist): Deference must be given to Congress’ informed legislative decision to
exclude women from the draft because it has the constitutional power to raise and regulate
armies and navies out of military need rather than equity.
 Reasoning: The court applied Crag heightened scrutiny...
o There is an important government interest in raising and supporting armies
o Congress did not act unthinkingly or reflexively in deciding to exempt women
o Due to the combat restrictions on women, they are simply not similarly situated as men for
purposes of draft registration.
 Dissenting (Marshall): The relevant inquiry under Craig is not whether a gender-neutral
classification would substantially advance important governmental interests—but whether the
gender-based classification at issue is substantially related to the achievement of the asserted
government interest.
 Caban v. Mohammed (1979)
 Facts: New York law granting the mother but not the father of an illegitimate child the right to
block the child’s adoption by withholding consent challenged by a father who had lived with his
children and their mother as a family for several years.
 Holding (Powell): There is no universal difference between maternal and paternal relations
sufficient to dispute that an unwed father may have a relationship with his child fully
comparable to that of a mother.
 Super Con-Law133
 Reasoning: This law is premised on an overbroad generalization
 Dissenting (Stevens): There are real differences between male and female relations with child –
especially during infancy.
 Professor: If there is an illegitimate child and either the father or the mother remarry and the
stepfather wants to adopt the child, then either natural mother or father may object. Each natural
parent should have the same right
 Parham v. Hughes (1979)
 Facts: Under Georgia law, if a child is killed and someone wants to bring a wrongful death action
then the natural mother can bring the wrongful death action but the natural father cannot. The
challenger was the undisputed biological father of the child who had visited him regularly and
contributed to the child’s support yet was barred from bringing the suit because he had not
formally legitimated the child.
 Holding (Stewart): Mothers and fathers of illegitimate children are not similarly situated
because only a father can by voluntary unilateral action make an illegitimate child
legitimate.
 Reasoning: This law does not discriminate against fathers as a class; it merely distinguishes
between fathers who have legitimized their children and those who have not.
 Dissenting (White): The court is engaging in circular logic because the fact that only fathers may
resort to legitimization does not dissolve the sex discrimination in requiring them to do so.
 Professor: The law was justified as a quid pro quo requiring the father to legitimize the child and
assume legal responsibility for the child as a dependent. Some laws are based on the principle,
“Mother’s baby, father’s maybe.” You just can’t be sure that the father is the father. DNA has
made this rationale questionable.
 Nguyen v. INS (2001)
 Facts: If the mother is a citizen and the father is not, then the child is a US citizen. If the mother
is not a citizen and the father is a citizen, then the child is not a US citizen under 8 U.S.C. §1409
unless the father: (1) established a blood relationship by clear and convincing evidence; (2) the
father drafts a promissory note financial support; and (3) fulfillment before the child’s 18th
birthday of one of three formal recognitions of paternity: (a) legal legitimization; (b) father’s
declaration of paternity under oath; or (3) court order of paternity. At this time there were many
US soldiers fathering illegitimate children in Europe (euro-trash-sluts love a man in uniform).
 Holding (Kennedy): There is a significant difference between a mother’s and father’s
relationship to the potential citizen at the time of birth substantially related to the
important government interests in: (1) assuring that a biological parent-child relationship
exists; and (2) ensuring that the child and citizen parent have an opportunity to develop a
relationship providing a connection between child, citizen and United States
 Reasoning:
o In the case of the mother, biological relation is verifiable at birth. Fathers need not be
present and the constitution does not require that Congress elect one particular mechanism,
such as DNA, from among many possible methods of establishing paternity.
o In the case of the citizen mother giving birth overseas, the opportunity for a meaningful
relationship begins at birth. It is not always certain that the father will even know that the
child was conceived or that the mother even knows the father’s identity (dirty, dirty whore!).
Scientific proof of paternity, by itself, does nothing to ensure contact b/w father and child.
 Dissenting (O’Connor): The law is not based on biological differences but on the stereotype that
mothers are more likely than fathers to develop caring relationships with their children.
 Professor: This is punishing the child for having a whore mother.
o Discriminatory Purpose and Effect and Sex Discrimination
 Personnel Admin. v. Feeney (1979)
 Super Con-Law134
 Facts: Mass. gave absolute lifetime preference to veterans for civil service positions. Over 98%
of veterans in Mass. were male.
 Holding (Stewart): Discriminatory purpose implies more than an intent as volition or
intent as awareness of consequences—it implies that the decision maker selected or
reaffirmed a particular course of action at least in part “because of,” not merely “in spite
of,” its adverse effects upon an identifiable group.
 Reasoning:
o When a law is challenged on the grounds that it affects woman adversely, a two-part inquiry
must be engaged in whereas: (1) is the classification gender based?; (2) if not, does the
adverse effect reflect invidious gender discrimination?
o As in Arlington Heights, impact provides an important staring point. However, only
purposeful discrimination offends the constitution.
o Discriminatory purpose under the equal protection clause requires more than awareness of
negative consequences on a protected group.
o This law serves the legitimate purpose of aiding veterans and the legislative history indicates
it wan not established as a pretext for gender discrimination.
o Veteran status is not uniquely male. All non-veterans, male and female, are placed at a
disadvantage.
 Dissenting (Marshall): This consequence followed foreseeably from the long history of policies
severely limiting women’s participation in the military.
 Professor:
o This could have been a title VII case
o In theory, this formulation would apply to race as well. As a practical matter, it is difficult to
think of such a situation.
o Preferential Treatment of Women: Permissible Compensation or Archaic Stereotype?
 Kahn v. Shelving (1974) pg. 807
 Facts: Property tax assessment exemption for widows (wife grieving husband) which does not
apply to widowers (husband grieving wife).
 Holding: Laws designed to rectify the effects of past discrimination against women readily
past muster.
 Reasoning: The state tax law was reasonably designed to further the state policy of cushioning
the financial impact of spousal loss upon the sex for which that loss imposes a disproportionaly
heavy burden.
 Dissenting (Brennan): Close judicial scrutiny is appropriate for gender based discrimination.
This law serves a compelling interest, but is not sufficiently narrowly tailored b/c although the
history of sex discrimination deserves remedial legislation; the state could still have narrowed
the legislation to those who have been economically discriminated against in the past.
 Schlesinger v. Ballard (1975)
 Facts: The military’s policy is “up or out.” If a man is passed over for promotion twice, then an
officer is demoted to enlisted grade—even if in less than 13 years. Women are not demoted
from officer grade unless they have not been promoted for 13 years. Women object that the
policy is based on the premise that women will not have the opportunity to earn promotion since
they are not tested in combat.
 Holding (Stewart): The different treatment of men and women officers does not reflect
archaic and overbroad generalizations, it reflects the demonstrable fact that male and
female officers are not similarly situated with respect to opportunities for professional
service.
 Reasoning: Differential rationality applied.
 Dissenting (Brennan): The majority has conjured up a legislative history which does not exist.
 Super Con-Law135
 Weinberger v. Wisenfeld (1975)
 Facts: Under social security, if a covered male wage-owner dies while he is working, then
benefits are paid to his widow and children. If a female wage-owner dies, then benefits go to the
child but not to the widower. The man who brought this case lost his wife during childbirth. He
raised his child, she went to Columbia, got married and Ginsburg officiated the marriage.
 Holding: Unjustifiable discrimination against female wage earners by providing them less
protection for their survivors then that for survivors of make wage earners.
 Reasoning: This is based on a generalization and leads to the denigration of female wage earner
 Califano v. Goldfarb (1977)
 Facts: Gender based distinction in a federal benefits program under which survivors benefits
based on the earnings of a deceased husband covered by the act were payable to his widow, but
benefits to the widower were payable only if he was receiving at least ½ of his support from his
deceased sugar momma.
 Holding: Discrimination directed against female workers, whose social security taxes
produce less protection for their spouses than was produced by the efforts of men
(denigration of female wage earner)
 Reasoning: Burdening a widower but not a widow with the task of proving dependency upon the
deceased spouse is indistinguishable from Wisenfeld.
 Califano v. Webster (1977)
 Facts: Male wage earner is entitled to cut off one year of lower earnings from salary average
basis for old-age social security benefits. Female wage earner is entitled to cut off three years
from the average. Under this formula, a male would get $185/month and a female would get
$240/month.
 Holding: Reduction of the disparity in economic condition between men and women caused
by the long history of discrimination against women has been recognized as an important
governmental objection.
 Reasoning:
o The court will reject attempts to justify gender classifications as compensation for past
discrimination against women when the classification in fact penalized women wage earners
or when the legislative history reveals that it was not enacted to remedy past discrimination
o The legislative history reveals that this distinction was not based on archaic role-typing
generalizations (“weaker,” “child-rearer”), but on past discrimination.
 Professor: No denigration in simply recognizing that women have a harder task in earning money
than men.
 Wengler v. Druggists Mutual (1980)
 Facts: State workers compensation law where widow automatically qualifies for death benefits
w/o showing dependency, but the widower does not unless he makes a showing of actual
dependency or mental/physical incapacity.
 Holding: Discriminatory against both men and women b/c the benefits a women could
expect to go to her spouse where less than the deceased male wage earner and against the
men because a widower had to prove incapacity/dependency.

 OTHER CLASSIFICATIONS ARGUABLY WARRANTING HEIGHTENED SCRUTINY

o Introduction
 Super Con-Law136
 Caroline Products Footnote: Elements to get into the strict scrutiny club...
 Element 1: You must be a member of a discrete and insular minority group, AND
o Discrete: I know one when I see one
o Insular: Hang out together (ghetto)
 Element 2: Show a history of discrimination against your minority group, AND
 Element 3: It must be virtually impossible to move out of your minority group, AND
 Element 4: You must lack political power to correct discrimination
 Application:
 Racial classifications meet all of these criteria
 Gender does not meet all of these criteria b/c women are not minorities or insular
 Aliens meet all of these criteria b/c while they are aliens fighting discrimination they cannot
move out of their group and they certainly lack political power b/c they can’t vote
O SUSPECT CLASSIFICATION: ALIENAGE
 Caution: Heightened scrutiny applies to legally resident aliens and NOT undocumented aliens (with
the exception of undocumented children barred from public school). Plyer: Illegal aliens are NOT a
suspect category.
 Graham v. Richardson (1971) pg. 811
 Facts: Legal aliens were not entitled to welfare benefits under state law.
 Holding: Classifications based on alienage, like those classifications based on race or
nationality, are inherently suspect and subject to close judicial scrutiny
 Reasoning: State laws which restrict the eligibility of welfare benefits merely because of
alienage conflict with overriding national policies in an area constitutionally entrusted to the
government.
 In re Griffiths (1973)
 Facts: NYU professor had a Dutch wife who wanted to maintain her Dutch citizenship. Under
NY law, aliens could not practice law. The state justified this prohibition on the grounds of
maintaining high professional standards, protecting clients interests, and serving as officers of
the courts.
 Holding: Aliens may not be excluded from legal practice
 Reasoning: None of the asserted state interests were valid because there is no reason aliens
cannot live up to these standards.
 Sugarman v. Dougall (1973)
 Facts: Aliens were prohibited from even the lowest civil service jobs (e.g. secretary, janitor)
 Holding: Restrictions on the employment of aliens for menial civil service jobs has little if
any relationship to the state’s substantial interest in having an employee of undivided
loyalty.
 Exception: A state may legitimately prohibit aliens from employment in positions with
state elective or important non-elective legislative and judicial positions for officers who
participate directly in the formulation, execution or review of broad public policy
performing functions which go to the heart of representing the government.
 Policy: The exception is no more than the recognition of a state’s historical power to exclude
aliens from participation in its democratic political institutions.
 Hampton v. Mow Sun Wong (1976)
 Facts: Federal civil service regulation barring aliens from employment in civil service.
 Holding: When an overriding national interest is asserted as a justification for a
discriminatory rule which would be barred by equal protection if adopted by a state, due
process requires that there be a legitimate basis for presuming that the federal rule was
actually intended to serve that interest.
 Super Con-Law137
 Reasoning: If Congress or president had expressly imposed this requirement, then it would be
justified by the national interest in providing an incentive for aliens to become naturalized—
however the court was not willing to presume that the CSC agency was deliberately fostering an
interest so far removed from its normal responsibilities.
 Postscript: President Ford issued an order reviving the bar after the case. He took the court’s
advice.
 Foley v. Connelie (1978)
 Facts: Aliens prohibited from being state troopers
 Holding:
o The Dougall exception applied to employment involving the enforcement and execution
of the laws
o The state need only justify its classification by showing some rational relationship
between the interest sought to be protected and the limiting qualification
 Reasoning: Dougall exception
o State trooper’s have discretionary government power in who to ticket and arrest
 Caution: If the Dougall exception applies, then do not apply strict scrutiny—rational
relationship is the test
 Ambach v. Norwick (1979)
 Facts: Aliens could not be state elementary and secondary public school teachers who were
eligible for citizenship but refused to seek naturalization.
 Holding: The Dougall exception applies to state public school teachers because school
teachers prepare individuals for participation as citizens and preserve the values on which
our society rest.
 Reasoning: Rational reason in preventing teacher from emphasizing Dutch history
 Bernal v. Fainter (1984)
 Facts: Aliens could not be notary publics.
 Holding: The Dougall exception must be narrowly construed and does not apply to
clerical/ministerial positions which have no power or discretion to make policy making
decisions.
 Policy: The exception cannot be permitted to swallow the rule
 Toll v. Moreno (1982)
 Facts: University of Maryland has a policy granting preferential tuition and fees to students with
in state status, non-immigrant aliens were not eligible for such status even if domiciled in
Maryland.
 Holding: State regulations which are not congressionally sanctioned which discriminate
against aliens lawfully admitted to the country are impermissible if they impose additional
burdens not contemplated by Congress.
 Reasoning: The supremacy clause was violated because Congress did not contemplate denying in
state status to federal immigrants solely because of their federal immigration status.
 Matthews v. Diaz (1976)
 Facts: Medicare benefit distinctions drawn between resident aliens and nonresident aliens
 Holding: Congress may condition an aliens eligibility in a federal Medicare program on:
(a) admission for permanent residence; and (b) continuous residence for 5 years.
 Reasoning: Congressional provision of some benefits to citizens does not require it to be
provided to ALL aliens.

O SUSPECT CLASSIFICATION: ILLEGITIMACY (NONMARITAL CHILDREN)

 Super Con-Law138
 Introduction
 You don’t know one when you see one, not a minority
 There is a history of discrimination
 Can’t move to legitimate unless the father legitimizes
 There could be the bastard party
 Louisiana v. Levy (1968) pg. 815
 Facts: Mother is killed by a truck. Legitimate child could sue for wrongful death, illegitimate
child cannot.
 Holding: The test is whether the line drawn is a rational one, but the court is extremely
sensitive when it comes to the basic civil rights and will not hesitate to stick down an
invidious classification even though history and tradition is on its side (heightened
rationality)
 Reasoning:
o This law doesn’t make any sense b/c it helps negligent drivers
o The court wasn’t sure what scrutiny to apply. They use a heightened rationality
 Professor: A year later, the Glona case raised the opposite concern. Mothers could not sue for
wrongful death of an illegitimate child. The argument was raised that this would discourage
women from having illegitimate children. The court struck down the law
 Labine v. Vincent (1971)
 Facts: Intestate contest law provided priority to the first degree of consanguinity. Under the law,
the priority was legitimate children  brothers and sisters  parents  illegitimate children.
 Holding: Illegitimacy is not a suspect classification
 Reasoning:
o The law was justified on the grounds that the parents had the power to include illegitimate
children in their will or legitimize them in their lifetime.
o If they did not do so, then they are presumed to not give a shit about their illegitimate
children and their wishes should be respected.
 Professor: Intestacy situations commonly raise these issues
 Caution: This case has been overruled
 Weber v. Aetna Cas. & Sur. Co. (1972)
 Facts: Illegitimate children do not receive any death benefit compensation from their parents
death
 Holding: The claims of dependent illegitimate children to parental death benefits cannot be
subordinated to the claims of legitimate children
 Professor: If the parents cannot legitimize the bastard, then the law must be struck down
 Matthews v. Lucas (1976)
 Facts: Legitimate children automatically get social security benefits form their parents.
Illegitimate do not. Parents could legitimize these children under the law and they would be
recognized.
 Holding:
o The level of scrutiny for discrimination against illegitimate children is “not a toothless
one,” the challengers must demonstrate the insustainability of the means-ends
relationship
o If the parent can remedy the discrimination against illegitimate children, then the law
should not intervene.
 Reasoning:
o Here the statutory scheme reflected reasonable empirical judgments (can’t have every kid
claiming benefits)
o The possibly rational, less than more exacting scrutiny criterion was readily satisfied here.
 Super Con-Law139
 Trimble v. Gordon (1977)
 Facts: Law governing intestate succession barred illegitimate children completely.
 Holding: Equal protection requires more than the mere incantation of a proper state
purpose, and the court will reject the argument that a state may attempt to influence the
actions of men and women by imposing sanctions on the children born of their illegitimate
relations (bastards!)
 Reasoning: Virtually impossible for parents to remedy even if they made a will
 Lalli v. Lalli (1978)
 Facts: Intestacy succession statute required a judicial finding of paternity during the father’s
lifetime (e.g. child support) in order to include illegitimate children in the line of succession
 Holding: The inquiry under equal protection does not focus on the abstract fairness of a
state law but on whether the statute’s relation to the state interest it is intended to promote
is so tenuous that it lacks rationality.
 Reasoning: Parents can do something during their lifetime to legitimize the children
 Mills v. Haluetzel (1982)
 Facts: In NY, if you are still a minor, then you can sue for child support. Texas, having a lot of
hillbilly bastards—literally, requires the mother to sue on the child’s behalf in the first year
 Holding: The period for an illegitimate child to asserting the right to paternal support must
be sufficiently long to permit those who normally have an interest in such children to bring
an action on their behalf despite the difficult personal, family, and financial circumstances
that often surround the burdens of having a child out of wedlock.
 Reasoning:
o The state’s justification of the difficulty in proving paternity is BS
o The mother is very busy during the first year
 Accord:
 Clark v. Jeter (1988)
 Facts: Same as above, but 6 year statute of limitation.
 Holding: Intermediate scrutiny is appropriate for discrimination against illegitimate
children
 Professor: This language resembles the important government objective test. This holding has
not been followed. For the test, think of it as less than sex discrimination (“not a toothless one”)
O SUSPECT CLASSIFICATION: DISABILITY, AGE, POVERTY
 Mental Retardation
 Professor: It appears that strict scrutiny should apply
o I know one when I see one
o History of discrimination
o Impossible to move out of the classification
o No political power b/c they are retarded
 Cleburne v. Cleburne Living Center (1985) pg. 818
o Facts: Texas town requires that a group home for the mentally retarded get a special use
permit (jump through more land use hoops). Group homes for drug addicts, juvenile
delinquents and unmarried pregnant women (knocked up bitches) did not need to obtain such
a permit.
o Holding:
 Mental retardation is not a suspect classification, and therefore discrimination on
that basis is not entitled to any heightened scrutiny
 However, under Moreno a bare desire to harm a politically unpopular group is not a
legitimate reason to discriminate and fails rational basis.
o Reasoning:
 Super Con-Law140
 State legislatures have passed laws to protect the mentally retarded, and therefore they do
not need special protection from the equal protection clause
 The court applied the rationality test and struck the land use law down b/c the stated
government purpose of protecting high school students in the area makes no sense b/c
there are mentally retarded students in the school.
 All of the states justifications were BS, and it became apparent that the law was based on
an irrational prejudice. This is evil irrational.
 Age Classifications
 Introduction
o Not a minority
o No history of discrimination
o Not able to escape
o Have lots political power (e.g. AARP, Baby-Boomers)
 Mass Bd. of Retirement v. Murgia (1976)
o Facts: Mass. cops forced to retire at 50
o Holding: Age is not a suspect classification for equal protection purposes and laws
which discriminate on this basis are only subject to rationality review
o Reasoning: No need for protection from the Majoritarian political process. We’ll all get
there.
o Professor: 27 year old requirement struck down
 Poverty
 Introduction
o Distinct
o History of discrimination
o Can escape, technically
o No political power b/c the poor don’t vote
 James v. Valtierra (1971)
o Facts: In order to get low income housing, you need a local referendum. This created a
higher burden on the poor
o Holding: No suspect classification for poverty, laws which discriminate on this basis are
only subject to rationality review.
 Sexual Orientation
 Introduction
o Minority, don’t know one when I see one
o History of discrimination
o Can escape, technically
o Homosexuals have political power
 Romer v. Evans (1996) pg. 825
o Facts: There are two types of Colorado—Vail/Aspen and everywhere else. Vail and Aspen
pass anti-sexual discrimination laws. The bumble-fuck parts of Colorado pass by referendum
an Amendment to the state constitution explicitly stating “no protected status or claim of
discrimination for homosexuals, lesbians, or bisexuals.” The law was self-executing and
invalidated the Vail and Aspen laws. The state attempted to justify on the grounds that
respect for other citizens freedom of association, respect for those who have moral objections
to homosexuality, and preserving money for fighting other discrimination.
o Holding:
 No suspect classification for sexual orientation, discrimination on this basis is
subject only to rationality review
 Super Con-Law141
 A law declaring that in general it shall be more difficult for one group of citizens
than for all others to seek aid from the government is itself a denial of equal
protection of the laws in the literal sense and is irrational
o Reasoning:
 The injury here is that it deprives gays and lesbians from the political power possessed by
all other groups.
 This is evil irrational under Moreno
o Dissenting (Scalia): I had thought that one could consider certain conduct reprehensible, for
example murder, polygamy, cruelty to animals, and even animus could be exhibited towards
such conduct. That is the only animus at issue here—moral disapproval of homosexual
conduct.
o Professor: This is distinguishable from Lawrence, which established the substantive due
process right to privacy in consenting adults’ bedroom. The courts were careful to avoid
making homosexuality a fundamental right.
O FUNDAMENTAL RIGHTS UNDER EQUAL PROTECTION
 Such interests are the same as under substantive due process plus the right to travel from state to
state (parallel to the privileges and immunities protection in Shapiro v. Thompson)
 There are two strands which have survived since the Warren court:
 Equal access to voting; and
 Equal protection access to aspects of the judicial process
 The interstate migration right has been retained but entirely restated as a federalism right from the
privileges and immunities clause of the 14th Amendment.

-THE END-
“I know a man who is firm—he is firm in his pants, he is firm in his shirt, his character is firm, but most
of all his belief in you, the students of Hofstra, is firm. Leon Friedman is a man who takes his point and
pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts—
he drives hard, pushing and pushing until finally—he succeeds. Leon is a man who will go to the very
end—even the climax, for each and every one of you.”