Con law notes and outline

8/19/2019 Con law notes and outline

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Constitutional Law OutlineRichards, Fall 2005

Origins of Constitutional Law [class notes 1-4]

• Britain was based on a arlia!entar" sure!ac" s"ste!, but #!ericans $iewed British as untrue

to their constitutional %uarantees& 'his (eelin% in(or!ed the re$olution, which !ust be understoodas a constitutional revolution&

• Once dra(ted, )adison was ro(oundl" disaointed with the Constitution, (or (ailure to rotect

hu!an ri%hts, seci(icall" with re%ards to reli%ion and sla$er"& *e $iewed the docu!ent asmorally bankrupt and (elt that it would ulti!atel" destro" #!erica& #dditionall" was concernedabout rotectin% eole a%ainst libert" $iolations (ro! states, which he $iewed as a threat&

o +ost )adison, #!ericans, eseciall" in the south, be%in to accet constitutionalis! with

sla$er"& )adisons leas are o$erlooed and (or%otten&o Reconstruction #!end!ents (inall" allow national ower to be used a%ainst the states

.seci(icall" the 14th #!end!ent/, in an e((ort to rotect indi$idual liberties& 'his broad$iew o( the a!end!ents did not catch on initiall", and was not (ull" realied until ost-

, but it was used (ro! the start as a tool to rotect irrational racis!&o 3in% and the ci$il ri%hts !o$e!ent hel to (ull" realie the 14 th #!end!ent as a %uarantee

o( hu!an ri%hts&

Constitutional Interpretation [class notes, readin% notes]

• Constitutional Interpretation by the Judiciary, and Judicial Review

o )arbur" $& )adison . 1607/ [8unther &7, readin% notes 1, class notes 4-9]

Considers the entitle!ent o( )arbur" to an aoint!ent, that was not realied with

a co!!ission b" the subse:uent ;e((erson ad!inistration&

'he court (inds that )arbur" has a ri%ht to the co!!ission as a !atter o( law, thereis a re!ed" at law, but (ails to %rant !anda!us a(ter (indin% that the disute wasi!roerl" be(ore the ure!e Court on ori%inal / [boo >0, readin% 9-6, class 5]

Con%ress chartered a national ban, with branches in $arious states& )ar"land

enacted a ta? to be le$ied a%ainst the national ban branch in the state&

)arshall, (or the court, (inds that the state ta?in% o( the (ederal ban isunconstitutional, (or it hinders the e?ercise o( national ower& hile states ha$ethe ower to ta?, the" cannot e?ercise it in a wa" that is in oosition to the (ederal owers& *ere the (ederal owers are constitutional, not e?ressl", but on ani!lied basis, and thus as the !eans are narrowl" tailored to a le%iti!ate %oal,


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o Le%islati$e and @?ecuti$e e?ercise o( constitutional re$iew is not unheard o(& +residents

ha$e used the $eto ower to re


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challen%es .thou%h the le%islati$e branch can o(ten aid in de(inin% the scoe o(ri%hts/& #r%ues that constitutional law should be ai!ed at rotectin% basic hu!anri%hts, but should do so (ro! ar%u!ents o( rincileD thus, he suorts the conceto(


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o Can be connotati$e = i&e& con$e"in% that which is lo%icall" related to

what is re(erred to = here a bod" o( sie enou%h to do 4J/ [class 15, readin% 5]

ealt with the understandin% o( the !eanin% o( a bill o( attainder under #rticle

sections >-10& *ere con%ress assed le%islation reclassi("in% a" o( (ederale!lo"ees, and a %rou o( indi$iduals were set out on account o( their olitical$iews& as it a bill o( attainderI

• British understandin% o( bills o( attainder were le%islati$e acts, without trial,

that declared one %uilt" o( a cri!e, ordered death, and resulted in corrutiono( the blood& 'his would ha$e been the ori%inalist understandin% o( the

!eanin%& Blacs oinion (or the court was anti-ori%inalist, as it disre%arded the British

understandin% o( bills o( attainder& Blac (inds it is ain to a bill o( attainder (or itsle%islati$e unish!ent that occurs without trial&

• Richards notes that it is a le%islati$e unish!ent (or sti%!atiin% eole on

account o( their olitical belie(s&o nited tates $& Brown .1>J5/ [readin% 5-J, class 15-1J]

Con%ressional act rohibited Co!!unist art" o((icials (ro! ser$in% as union

leaders& arren (or the court (ound that it was a bill o( attainder&

o *o!e Buildin% and Loan $& Blaisdell .1>74/ [readin% J, class 1J-16]

Considered the constitutionalit" o( a state law, assed in the deression, to dela"(oreclosure (or !issed ho!e a"!ents& Ori%inalist understandin% o( #rticle ection 10 would ha$e understood this as an i!air!ent o( the obli%ation o(contracts&

C; *u%hes (or the court (inds that while e!er%encies do not e?and the owers o(

states, a narrowl" tailored e?cetion to contracts when there is a co!ellin% stateinterest in the ublic wel(are is accetable, so lon% as it does not !ateriall" a((ectthe ter!s o( the contract&

utherland dissent ar%ues that this %oes a%ainst the ori%inalist understandin% o( the

constitution&o Other +roble!s with Ori%inalis! [readin% J-9]

'here are di((erences between what the framers did and said , thus looin% to the

olitical ositions the" too does not alwa"s %i$e the best understandin% o( whatthe" intended constitutionall"&

Chan%in% (actual situations deart (ro! what the (ra!ers could ha$e redicted

andKor understood, thus chan%in% constitutional interretation is needed&

$ederalism


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• $oundational %rguments for $ederalism

o Federalist 10 = ;a!es )adison [Brest 20>, class 16-20, read J]

)adison writes o( the dan%ers o( (action = $iews the! as threatenin% to di$ide the

countr" and to den" !inorities e:ual treat!ent under the law& 'o address the roble!s o( (action, )adison doesnt thin that eli!inatin% the

causes will be %ood (or the countr", as that would threaten autono!" and

indi$idualit"& Rather, )adison ad$ocates (or !iti%atin% the e((ects o( (action& 'o!iti%ate the e((ects o( (action when the (action controls a !a& Court re05/ = broad $iew o( co!!erce& Basis

(or the stream of commerce theor"& ( the ulti!ate %oalKrobabilit"is that the roduct will end u in interstate co!!erce .here !eat/,


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then the $arious rocesses leadin% u to it are sub14/ .hre$eort Rate

Case/ = broad $iew o( co!!erce clause& Court held that intra stateco!!erce can be re%ulated when it has an e((ect on interstate

co!!erce = here at issue were rates char%ed b" railroads&• Federal 8o$ern!ent has +olice +ower

o Cha!ion $& #!es . 1>07/ = broad $iew o( co!!erce clause&

holds (ederal statute, under olice ower .i( states ha$e it, (ed%o$ern!ent does to/, denial o( interstate i!ortation o( lotter"ticets&

• But, there is a directKindirect distinctionA

o $& @&C& 3ni%ht .su%ar trust case/ .16>5/ = narrow $iew o(

co!!erce clause& Court struc down antitrust re%ulation o( su%arco!an" !er%er, creatin% a direct&indirect distinction (ordeter!inin% whether or not so!ethin% a((ects co!!erce& *ere,

!anu(acturin% would onl" indirectl" a((ect co!!erce&o *a!!er $& a%enhart .1>16/ = arrow $iew o( co!!erce clause =

stries down ban on child labor& istin%uishes between !eans o( roduction and ob42/ = broad $iew uholds bar on wheat %rown

(or ersonal use in e?cess o( :uotas, (indin% that it !a" ha$e anindirect i!act on the !aret&

• nterstate 'ra$el and Racis!

o *eart o( #tlanta )otel $& nited tates .1>J4/ = broad $iew uholds

law barrin% discri!ination in !atters o( ublic acco!!odation,


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(indin% that such ractices burden the ri%ht o( interstate tra$el, andthus ha$e i!lications (or co!!erce&

ew Li!its on Co!!erce ower since 1>>5 [boo 157, notes 10-11, class 27-24]

• #bstract relation to e((ects on co!!erce no lon%er su((ices

o nited tates $& Loe .1>>5/ = narrow $iew = court stries down

ortions o( the 8un Free chool Pones #ct, (indin% that the

relationshi to co!!erce is too tenuous& Rehn:uist notes that thereare three cate%ories o( le%islation that can be re%ulated on co!!erceclause %roundsA

se o( the channels o( interstate co!!erce

se o( the instru!entalities o( interstate co!!erce .e$en i(

entirel" in state/ #cti$ities ha$in% a substantial relation to interstate

co!!erce&o nited tates $& )orrison .2000/ = narrow $iew = tries down

$iolence a%ainst wo!en act, (indin% that it is controlled b" Loe&Finds that it is not econo!ic acti$it" = thus creatin% an

econo!icKnonecono!ic distinction&o But ee 8onales $& Raich .2005/ = uholds (ederal re%ulation o(

!ari


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!istorically

• Co!!ercial re%ulation b" states %i$es rise to con(licts

o 8ibbons $& O%den .1624/ = n reasonin%, )arshall distin%uishes the

ower to re%ulate co!!erce (ro! the ower to ta? = whereasta?ation can be done concurrentl" without con(lict, the latternaturall" con(licts when done concurrentl", thus state law cannot

re%ulate co!!erce in a wa" that will con(lict&o But ee ilson $& Blac Bird Cree )arsh Co& .162>/ = state

authoriation (or da! which con(licted with (ederal ri%ht to na$i%atecould not be struc down on co!!erce clause %rounds because thestate law was not re%ulatin% co!!erce&

• Re%ulation b" tates incident to co!!erce !a" be accetable

o Coole" $& Board o( ardens .1651/ [readin% 17, class 24] = holds

state re%ulation o( water ilots when Con%ress declares that state lawcontrols until Con%ress ree!ts& Court (inds that as it is not anarea that re:uires uni(or!it", it is constitutional&

• +urose o( Le%islation is rele$ant to Constitutionalit"

o Buc $& 3u"endall .1>25/ = rotectionist state statute den"in%license (or rail is unconstitutional&

o Bradle" $& +ublic tilities Co!!n .1>77/ enial o( certi(icate to

oerate was uheld (or ublic sa(et" considerations that weredee!ed le%iti!ate = e((ect on co!!erce is incidental

odern Court %pproach to )egative Commerce Clause

Relies less on cate%orical distinctions, but striin% down state laws can becate%oried into one o( the (ollowin% areasA

• O$ert discri!ination a%ainst out o( state co!!erce .i&e& (acial

discri!ination/

• Fa$orin% local econo!ic interests at the e?ense o( out o( state co!etitors

.i&e& rotectionis!/

• Faciall" neutral laws that undul" burden interstate co!!erce& .i&e& +ie

balancin%/ Facial iscri!ination .!ort Restriction Cases/

Facial discri!ination is al!ost alwa"s in$alid = the least restrictive means arenecessar" to 96/ [readin% 14, boo 259, class 2J] = #bsolute

bar on i!ortation o( solid waste (ro! out o( area& Court (inds that this iso$ert discri!ination, and holds it to a hi%h standard& 'hou%h it is ale%iti!ate state interest, court (inds that there were less restricti$e !eans to

acco!lishin% the %oal&• ean )il $& )adison .1>51/ = )adison re:uired !il to be asteuried

within (i$e !iles o( the cit"& Court (inds that a constitutional ri%ht isin(rin%ed .interstate co!!erce/, and thus that the least restricti$e !eans toachie$e the %oal !ust be utilied& 'his is the start o( the least restricti$e!eans test&

• Fort 8ratiot anitar" Land(ill $& )ichi%an eart!ent o( atural Resources

. 1>>2/ - n$alidated a count" ban on out o( count" waste =e?tends+hiladelhia $& ; to the olitical subdi$isions o( the state


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• C M # Carbone $& Clarstown . 1>>4/ - Court in$alidated a town

re:uire!ent that all solid waste in the cit" be rocessed b" a articular lant, which char%ed !ore than the standard rate& Less burdenso!e wa"s toachie$e a local %oal

Facial iscri!ination in 'a?es and Fees [read 14]

• s %enerall" struc down& Che!ical aste )ana%e!ent $& *unt .1>>2/

.striin% down ta? on out o( state haardous waste/D Ore%on aste "ste!s

.1>>4/ .striin% down di((erential (ees (or out o( state waste/D est L"nnCrea!er" .1>>4/ .in$alidatin% across the board (ee to subsidie in state roducers/D Ca!s ew(oundKOwatonna $& 'own o( *arrison .1>>9/.striin% down ta? e?e!t bar on charities bene(itin% out o( state eole/Douth Central Bell 'elehone $& #laba!a .1>>>/ .strie down ta? sche!eallowin% bene(its (or in state, but not out o( state entities/&

• But see 8eneral )otors $& 'rac" .1>>9/ .re45/ = (or!all" nondiscri!inator" re%ulation

on nu!ber o( cars in a train is struc down (or bein% burdenso!e oninterstate co!!erce in e((ect& Court (ound that the increased (re:uenc" o(train tris under!ined the ar%u!ent that it was a $alid sa(et" re%ulation&

o er" non-de(erential re$iew = (ear o( one state settin% standards (or

all states&

• Bibb $& a$a5>/ = stries down law re:uirin% contour

!ud(las = (inds that there is no le%iti!ate urose&

• 3assel $& Consolidated Frei%htwa"s .1>61/ = tries down state law

restrictin% use o( lar%e trucs& 'hou%h (or!all" nondiscri!inator", itcreates an undue burden, and the showin% that it is a $alid sa(et" re%ulationis wea&

tate Barriers to Out o( tate ellers .and rice restrictions/

• ot er!itted when unnecessaril" or e((ecti$el" burdenin% interstate

co!!erce& Baldwin v. Seelig .1>75/ .struc down N law that re:uired a!ini!u! rice be char%ed (or !il sold in state = undul" burdened out o(state sellers that could char%e less&/D Hunt v. Washington State Apple Advertising Comm’n . 1>99/ .in$alidates &C& labelin% law that in e((ect

onl" burdened ashin%ton ales, and re!o$ed co!etiti$e ad$anta%e&/• But er!itted when uttin% it on the sa!e %rounds as in state co!!erce&

Henneford v. Silas ason .1>79/ .uheld state use ta?, at sa!e rate o( salesta?, (or %oods urchased out o( state and brou%ht in state&/D Breard v. Ale!andria .1>51/ .court uheld a law barrin% door to door solicitationabsent er!ission& Cant in(er rotectionis! (ro! discri!inator" e((ect&/

tate Barriers to Out o( tate Bu"ers .and e?ort restrictions/

8enerall" are not er!ittedA


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• hether (or rotectionist uroses H.". Hood # Sons v. $u ond .1>4>/

.Court struc down state licensin% sche!e which er!itted a%enc" to den"licenses to entities which would cause destructi$e co!etition& 'he courtreasoned that er!ittin% this would %o a%ainst the ideal o( a co!!onecono!ic !aret, and that it is not within the real! o( $alid health andsa(et" re%ulations&/D

•Or to ee natural resources in state& Hughes v. %klahoma . 1>9>/ .courtstruc down an Olaho!a law (orbiddin% the transort o( !innows (or saleout o( state when cau%ht in state - Faciall" discri!inator"&/D &ew 'ngland "ower v. &ew Hampshire .1>62/ .court struc down law restrictin% thee?ort o( ower& Reasoned that the co!!erce clause anal"sis recludesstates (ro! !andatin% that its residents %et re(erence to natural resourceswithin the borders, or roduced (ro! the!&/D Sporhase v. &ebraska .1>62/ = court rea((ir! seticis! about e?ort controls on natural resources& *eldunconstitutional a ban on withdrawin% water (or out o( state use&

• But there are e?cetionsA Cities Service (as v. "eerless %il # (as .

1>50/ .court uheld a local re%ulation ai!ed at conser$in% local natural %as&

istin%uished *ood on the %round that *ood was about discri!inatin%a%ainst co!etition, but this re%ulation alied to all %as e?tracted&/

ndul" Burdenso!e to nterstate Co!!erce = +ie Balancin%

• Faciall" neutral and non-rotectionist le%islation can

be struc down when it (ails the 'i-e .alancing est& [boo 26J] 'est(inds that where e$en-handed le%islation tar%eted at le%iti!ate ublicinterests burdens interstate co!!erce incidentall", it will be uheld unlessthe burden on co!!erce is e?cessi$e to local bene(its&

o Congressional 'reemption of (tate Law haens b" e?ress

state!ent, i!lied occuation o( the re%ulator" (ield, or i!lied reclusion o( con(lictin%state re%ulations.

)ust be e?ress state!entA "acific (as # 'lectric Co. v.State 'nergy .1>67/ [read 19-16] .Oinion noted that reclusion was aroriatewhen the te?t is e?licit, or the s"ste! o( re%ulation is so er$asi$e that statere%ulation naturall" con(licts& *ere te?t o( (ederal statute re%ulatin% nuclear owerdid not e?licitl" bar state bans, and a(ter anal"sis, court dee!ed that the re%ulator"sche!e was not so co!rehensi$e that the state law con(licted/D

!lied Occuation o( the Re%ulator" Field !ust be stron%A

)ice v. Santa *e 'levator Corp . 1>49/ .court re:uired clear showin% thatCon%ressional entr" into traditional (ield o( state re%ulation was !eant to ree!t/D

!lied reclusion o( con(lictin% state re%ulationsA Crosby v &ational *oreign

+rade Council .2000/ [boo 771] .court struc down )assachusetts law barrin% state

entities (ro! doin% business with Bur!a& Reasoned that the law was ree!ted b"a (ederal lan (or trade sanctions, and that the state e((ort con(licted/D *lorida ,ime# Avocado (rowers v. "aul .1>J7/ .notin% that ree!tion onl" e?ists i( it isi!ossible to co!l" with both re%ulations/D Hines v. $avidowit- .1>41/ [boo 72>] .struc down state i!!i%ration re%ulation as inconsistent with (ederal ob0/ .in$alidatin%


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state re%ulation o( li:uor absent $alid (ederal authoriation = co!!erce is to re!ain(ree/D Wilkerson v. )ahrer .16>1/ .uholds ilson #ct - con%ressional dele%ation o( ower to re%ulate li:uor in ori%inal aca%in% to the states/D ames Clark $istilling v. Western aryland ). Co. .1>19/ .uheld ebb-3en"on act barrin% shi!ents o(alcohol to states where used in ille%al !anner = barred sale o( all li:uor, andthus the shi!ent&/D "rudential /nsurance v. Ben0amin .1>4J/ .Court uheld state

discri!inator" re%ulation o( ta? on out o( state insurance co!an" where Con%ressdele%ated authorit" to states to re%ulate insurance/D B' @@ etropolitan ,ife /ns. 1. Ward .1>65/ .in$alidatin% on e:ual rotection %rounds discri!inator" stateta? on non-do!estic insurance a(ter concludin% that insurance is not co!!erce/&

'hree 'heories o( Con%ressional ConsentA

• tatutor" = ]

o *istorical Conte?t and nderstandin%

Federalist 90 .*a!ilton/ [Brest 222, read 1>] ad$ocated (or a stron% e?ecuti$e =Gener%" in the e?ecuti$eH Federalists 49-46 .)adison/ ad$ocated (or clear searation o( owers, with no

branch controllin% another&o on-dele%ation octrine

*istoricall" re:uired clear li!its, and not boundless ower to be dele%ated&

ubse:uentl", Con%ressional dele%ations o( ower .in ew eal conte?t/ werestruc down& +ana!a Re(inin% $& R"an .1>75/D chechter +oultr" $& nited tates.1>75/&

Brest notes that doctrine is now dead, as no other con%ressional dele%ation has

been struc down, and e?ansi$e dele%ations ha$e been aro$ed o(&

• !each!ent .#rticle 4 ection 2/ [read 20]o +rocedure = *ouse asses articles o( i!each!ent, enate tries, and the Chie( ;ustice

resides& er" little %uidance e?ists in the Constitution (or what should be i!eachableand re!o$able&

o Bac%round and urose

*i%h Cri!es and )isde!eanors, not !alad!inistration which was re


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o hat should be i!eachableI

o!e non-cri!es erhas should be reachable, lie not carr"in% out duties, or as in

the ;ohnson i!each!ent, not carr"in% throu%h with the will o( Con%ress.oliticall" !oti$ated/

o!e cri!es erhas should not be reachable, (or instance, nu!erous (ederal

cri!es do not reach the threshold o( G*i%h cri!es and !isde!eanors&H Bow!an

and eernuc su%%est looin% to the relationshi o( the !oral %ra$it" and cri!eco!!itted, se$erit" o( the cri!e in the e"es o( the cri!inal law, circu!stancesunder which co!!itted, and i( er]

o #d$ancin% nowled%e and truth

Co!es (ro! ;ohn )iltons #reoa%itica .1J44/ and ;ohn tuart )ills On Libert"

.165>/& Rationale is that !an" ideas ha$e asects o( truth, and that the truthulti!atel" re$ails& Criti:ue ar%ues that it doesnt re(lect the realities o(conte!orar" societ", that do!inant %rous ha$e an undue interest, and that e$enin !arets occasional correcti$e !easures are needed&

o Facilitatin% de!ocrac" and reresentati$e %o$ern!ent&

Co!es (ro! )iele


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• Schenck v. 2nited States .1>1>/ [read 21, class 70] held that when seech

resents a clear and resent dan%er o( brin%in% about an e$il that Con%resshas the ri%ht to rohibit, then it can be banned& *ere there was a clear and resent dan%er that the ser$ice !e!bers tar%eted b" the a!hlets bein%handed out would beco!e insubordinate&

• Broad de(erence under the @siona%e #ctA *rohwerk v. 2nited States .1>1>/

.Court uholds con$iction o( newsaer editor ar%uin% a%ainst war in8er!an"& Oinion lar%el" de(erential = *ol!es (ears (la!es o( dissention bein% (anned&/D $ebs v. 2nited States .1>1>/ .Con$iction sustained (orantiwar seech with ossibilit" o( har!in% recruit!ent, and (or notabilit" o( seaer/D Abrams v. 2nited States .1>1>/ .a((ir!in% con$iction o( a!hleteer oosin% inter$ention in Russian Re$olution = *ol!es, re$iousl" in !a29/

.Court re79/ .court (ound (irst a!end!ent rotected ersons attendance at Co!!unist art" !eetin%/D Herndon v. ,owrey .1>79/ .o$erturned con$iction o( erson ad$ocatin% (or eole to$ote (or blac sel(-deter!ination = distin%uished between ad$ocatin% (or

ideals and ad$ocatin% (or action/o ncite!ent in and Red care

'he !ith #ct cri!inalied ad$ocac" o( (orce or $iolence to o$erthrow the

%o$ern!ent, and cri!inalied helin% to or%anie a %rou that belie$ed as such&• 'he #ct was uheld as constitutional& [read 24-5] $ennis v. 2nited States

.1>51/ .Con$iction was (or helin% to or%anie a branch o( the Co!!unist art", which belie$ed in o$erthrow o( the %o$ern!ent b" (orce& O$erruled8itlow, and alied Clear and +resent dan%er in a !odi(ied (or! =wei%hin% the %ra$it" o( the har! with its robabilit" = here thou%h the


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robabilit" was s!all, the %ra$it" was serious, and the con$iction wasa((ir!ed& Richards oints out that the result !a" ha$e been di((erent i( theanal"sis were as applied as oosed to facial in deter!inin%constitutionalit"&

• Retreat (ro! $ennis occurred therea(ter& 3ates v. 2nited States .1>59/

.o$erturned a con$iction under !ith #ct, distin%uishin% between ad$ocac"

o( ideals and action/D Scales v. 2nited States .1>J1/ .uheld con$iction, but(ound that seci(ic intent and acti$e !e!bershi, as oosed to assi$e!e!bershi, were needed/D &oto v. 2nited States .1>J1/ .Court o$erturnedcon$iction (indin% that the e$idence o( ille%al ad$ocac" was not su((icientenou%h/&

o )odern ncite!ent 'est

Clear and +resent an%er test re:uires ad$ocac" o( an i!!ediate act o( $iolence or

ille%al act& Brandenburg v. %hio .1>J>/ .Con$iction o( incite!ent was o$erturned(or tele$ised 333 rall" with $a%ue threats& Court reasoned that an act o( $iolencehad to be ad$ocated (or& O$erruled Whitney = adoted hitne" concurrence/D Hessv /ndiana .1>97/ .o$erturned con$iction o( rotestor that threatened to bloc the

street a%ain = court (ound there was no i!!ediate threat/D &AAC" v. Claiborne Hardware .1>62/ .$a%ue threat o( conse:uences (or those i%norin% bo"cott was noti!!ediate enou%h to be incite!ent = con$iction o$erruled/&

• +rotected eech

o +ublic +laces

O((ensi$e eech in +ublic +laces

• *ate eech is %enerall" rotected& [1094] &ational Socialist "arty v.

Skokie .1>99/ .uholdin% the ri%ht o( ais to !arch in a redo!inantl";ewish co!!unit"& Found that neither (i%htin% words or hostile audiencee?cetions 6>/and Corry v. Stanford .Cal uer& Ct& 1>>5/ [109>] .ni$ersit" o( )ichi%an

and tan(ord ni$ersit" seech codes were struc down as unconstitutional b" lower (ederal courts and state courts&/D ).A.1. v. St "aul .1>>2/ .Courto$erturns con$iction o( bias !oti$ated seech ordinance which barredswastias and cross burnin%& *ere o((ense too lace on ri$ate roert", but accordin% to courts reasonin%, would ha$e constitutionall" been barredunder a !ore neutral statute/D 1irginia v. Black .2007/ .tatute ai!ed at barrin% cross burnin% with an intent to inti!idate was struc down asunconstitutional (or bein% o$erbroad, thou%h the court reco%nied that the bar on burnin% with an atte!t to inti!idate was a constitutional ai!/&B' @@ Wisconsin v. itchell .1>>7/ .uholdin% hate cri!e law, courtdistin%uished between seech and conduct/

o

#r%u!ents (or re%ulatin% hate seech include incororatin% it into%rou libel .Beauharnais was ne$er o$erruled = noted b" Blac!unin dissent (ro! !ith $& Collin/ , (i%htin% words, or as a searatecate%or" o( unrotected seech& Others see it as i!ortant toad$ancin% e:ualit"&

o #r%u!ents a%ainst re%ulatin% hate seech ar%ue that it is undul"

aternalistic, and that it is a (utile and counter-roducti$e e?ercise(or (ailin% to address the underl"in% causes&

+ublic Foru!s [122J]


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• Reasonable 'i!e +lace and )anner Restrictions can li!it seech&

o *istoricall", notion o( !andator" ublic (oru!s was not acceted&

assachusetts v. $avis .)ass 16>5, a((d 16>9/ .%o$ern!enthas absolute ri%ht to restrict seech on ublic roert" = here BostonCo!!on/&

8raduall", court be%an to strie down arbitrar" er!it

re:uire!ents& Hague v. C/% .1>7>/ .struc down ordinancere:uirin% er!its to sea in streets and ars = wasstandardless and stron% otential (or arbitrar" denials/D Saiav. &ew 3ork .1>46/ .struc down ordinance barrin%a!li(ication de$ices without er!ission o( olice chie(&/DStaub v. Ba!ley .1>56/ .ordinance re:uirin% er!it (or!e!bershi recruit!ent in dues a"in% or%aniations was(aciall" in$alid/D Hynes v. ayor of %radell .1>9J/.in$alidatin% ordinance re:uirin% ad$ance notice to olice be(ore can$assin% or solicitin%/D ,akewood v. "lain $ealer "ublishing Co. .1>66/ .strie down er!it re:uire!ent

be(ore lacin% newsracs on ublic roert"/D Watchtower Bible # +ract Society v. Stratton .2002/ .in$alidated er!itre:uire!ent (or door to door rosel"tiers/& B' ob7>/ .in$alidated ban on distribution o( lea(lets = litter isnot le%iti!ate 47/

.in$alidated ban on distribution o( handbills to ho!es b"rin%in%Knocin% at door = eole could ost si%ns statin%the" didnt want solicitors/D 4ovacs v. Cooper .1>4>/.thou%h uholdin% ban on loud and raucous loudseaers,indicated that (lat ban on loudseaers would beunconstitutional/D City of ,adue v. (illeo .1>>4/ .strie down ban on ostin% si%ns on residential roert" = clutter isinsu((icient


16/60

embers of City Council v. +a!payers for 1incent .1>64/ .uheld!unicial rohibition o( si%ns on ublic roert" = here utilit" oles& 'hou%h si%ns were o( a olitical candidate, it was notconstitutionall" re:uired that less restricti$e !eans be used/D Clarkv. Community for Creative &on51iolence .1>64/ .Court uheld arser$ice rule which barred ca!in% in La(a"ette +ar and the )all&

t is a neutral ti!e lace and !anner restriction, and ca!in% is not rotected s"!bolic seech/&o 'ran:uilit", +ri$ac", and Reose !a" 66/ [1255, class

47, read 40] .uheld a (lat ban on (ocused icetin% o(

articular residences& )a>4/.Found in>9/ .Court uheld (i?ed distance bu((ers, but struc down (loatin% bu((er ones as burdenin%!ore seech than was necessar"/D Hill v. Colorado .2000/

.uhold statute barrin% seaers (ro! aroachin% others tohand out roa%anda without consent within ei%ht (eet o( a!edical (acilit" = not a content re%ulation, but one o( whereseech occurs/

• )andator" ublic (oru!s er!it little %o$ern!ental re%ulation& 'hese

include streets, ars, and increasin%l" caitol %rounds, libraries, and!unicial theaters&

o Libraries cant bar silent non-disruti$e rotests& Brown v.

,ouisiana .1>JJ/ [12J4] .silent se%re%ation rotest could not be barred when there was no threat o( breach o( eace, and no showin%others were disturbed/

o

unicipal heaters are a ublic (oru!& Southeastern "romotionsv. Conrad .1>95/ [12J>] .holdin% that denial o( contro$ersial showwas unconstitutional/

o Capitol 1rounds are increasin%l" a ublic (oru!& 2nited States v.

(race .1>67/ .striin% down law barrin% disla"s o( !essa%es on ure!e Court %rounds = outer %rounds are indistin%uishable(ro! other !andator" ublic (oru!s/D


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• iscretionar" ublic (oru!s er!it e$en-handed content-neutral re%ulation&

'hese include JJ/

.uholds con$ictions o( rotesters on 92/ .uholdin% bar on loud rotests that !a" disrutschools& Found the restriction reasonable in li%ht o( the acti$it"occurrin% on the roert"/

o 'ublic ransportation can discri!inate in ad sace& ,ehman v.

Shaker Heights .1>94/ .uholdin% bar on ca!ai%n ad$ertise!ents = busses were not ublic (oru!, but rather, ad sace was incidentalto the urose/

o ilitary .ases are not %enerall" a ublic (oru!& *lower v. 2nited

States .1>92/ .threw out con$iction (or distributin% lea(lets on

!ilitar" base streets when ublic had access to the streets/D (reer v.Spock .1>9J/ .uheld ban on artisan seeches on !ilitar" base, anddistribution o( literature without rior aro$al = !ilitar" bases areto train troos, and are not historicall" $iewed as a ublic (oru!/D2nited States v. Albertini .1>65/ .!ilitar" bases are not a ublic(oru! !erel" because the" oen to the ublic (or a articular e$ent/&

o %irport erminals are not ublic (oru!s, but distribution o(

literature cannot be co!letel" banned& /nternational Society for 4rishna Consciousness v. ,ee and ,ee v. /S4C%& .1>>2/ .(ound thatairorts were nonublic (oru!s, and that bans on solicitin% !one" inthe ter!inals were constitutional, but that bans on distributin%

literature were unreasonable, and thus not constitutional& incenonublic (oru!, onl" a reasonableness standard is re:uired/&o "!bolic eech

OBrien test is the !easure o( constitutionalit" (or neutral laws burdenin% s"!bolic

seech& 'est re:uires consideration o(A• hether the law is within the constitutional ower o( the state

• hether the law is ursuin% a le%iti!ate state interest

• hether the law is directed at action and not seech

• ( it suresses seech, does it onl" suress as !uch is necessar"

2nited States v. %’Brien .1>J6/ [1207, class 41, read 79] .uholdin% (ederal ban on burnin% dra(t cards, and enu!eratin% the a(ore!entioned (our art test&/& B' law

!ust be burdenin% seech& Arcara v. Cloud Books /nc. .1>6J/ .Court uholdsclosin% o( boo store where rostitution and solicitation occurred, reasonin% thatOBrien test was inalicable, as it was not rotected e?ression/

Fla% desecration is rotected s"!bolic seech& Street v. &ew 3ork .1>J>/ .court

re$ersed con$iction (or (la% burnin% (indin% that words added an e?ressi$eele!ent = did not reach the :uestion o( whether the act itsel( was constitutional/DSmith v. (oguen .1>94/ .con$iction (or wearin% (la% atch on ants was o$erturned(or lac o( clear standards and notice in the statute/D Spence v. Washington .1>94/.o$erturned con$iction (or eace s"!bol on (la%, reasonin% that it was e?ressi$e


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conduct/D +e!as v. ohnson .1>6>/ [1212] .Court alies OBrien test to (la% burnin%, and (inds that there is no state interest in re$entin% a breach o( the eace,and that the ri!ar" !oti$ation is to ro!ote a articular oint o( $iew/&

• Le%islati$e atte!ts to rotect the (la% ost ;ohnson ha$e been struc down&

2nited States v. 'ichman .1>>0/ .triin% down Fla% +rotection #ct/& ude dancin% can be re%ulated& Barnes v. (len +heatre /nc. .1>>1/ .#lies

OBrien test to uhold asties and %-strin% re:uire!ent (or li$e nude dancers&Finds the le%islation was tar%eted at a le%iti!ate state interest, and was unrelated tothe suression o( seech/D City of 'rie v. "ap’s A.. .2000/ .Court uheld state ban on totall" nude erotic dancin% b" wo!en& +luralit" (ound it was contentneutral, and related to suressin% secondar" e((ects/

o Ca!ai%n ad$ertisin% as seech

Ca!ai%n ad$ertisin% is a (or! o( seech that is sub9J/ [1424, read 4J] .uholdin% (ederal ca!ai%n li!its on indi$idualcontributions and disclosure re:uire!ents, but striin% down candidate andindeendent e?enditure li!its& holdin% ublic (unds (or olitical ca!ai%ns/D &i!on v. Shrink issouri (overnment "AC .2000/ .rea((ir!in% the

contributionKe?enditure distinction, and uholdin% state ca!ai%n li!its (or stateo((ice seeers/& Candidate !essa%es are rotected& Brown v. Hartlage .1>62/ .o$erturn con$iction

under anti-corrution statute (or candidate that ro!ised to reduce his salar" i(elected/

Contribution li!its

• #re accetable when laced on +#C& California edical Ass’n v. *'C

.1>61/ [147J] But cannot restrict +#C %i$in% !erel" on account o( thecandidate recei$in% (ederal (unds& *'C v. &ational Conservative "AC.1>65/&

• Li!its are not accetable (or ballot !easures& Citi-ens Against )ent

Control v. Berkeley .1>61/ [144J] .Bucle" rationale (or li!its on candidatedonations does not hold (or ballot !easures/D eyer v. (rant .1>66/ .striesdown ban on aid si%nature %atherers/&

ndeendent @?enditures b" olitical arties and ad$ocac" %rous are rotected

when uncoordinated, but unrotected when coordinated& Colorado )epublican *ederal Campaign Committee v. *'C 7Colorado /8 .1>>J/ [1476] .rotectin%uncoordinated sendin% b" olitical arties/D Colorado )epublican *ederalCampaign Committee v. *'C 7Colorado //8 .2001/ .uhold li!its on coordinatedsendin% b" olitical arties/D cConnell v. *ederal 'lection Commission .2007/[1446] .holdin% ro$isions o( (ederal law barrin% coordinated sendin% betweenad$ocac" %rous and candidate ca!ai%ns, and restrictin% indeendent

e?enditures (or a eriod i!!ediatel" rior to elections& #lso struc down ban on!inors !ain% contributions/ Cororations

• $or profit corporations ha$e the ri%ht to !ae contributions and

e?enditures, but can be (orced to se%re%ate (unds used (or ad$ocac"& *irst &ational Bank of Boston v. Bellotti .1>96/ [1440] .holdin% that ro(itcororations ha$e ri%ht to !ae contributions and e?enditures/D *'C v. assachusetts Citi-ens for ,ife .1>6J/ .notin% that ro(it cororations can be (orced to se%re%ate ad$ocac" (unds&/D Austin v. ichigan Chamber of


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Commerce .1>>0/ .(or ro(it cororations can be (orced to !aintainsearate accounts (or indeendent e?enditures&/&

• )onprofit corporations can be restricted in (undraisin% and donations, and

while able to indeendentl" e?end and !ae contributions, can be re:uiredto contribute onl" (ro! searate accounts& *'C v. &ational )ight to WorkCommittee .1>62/ [1447] .restrictions on (undraisin% and sendin% li!its

are constitutional (or nonro(its and unions/D *'C v. assachusetts Citi-ens for ,ife .1>6J/ .notin% that non-ro(it ad$ocac" or%aniations cannot be(orced to se%re%ate (unds used (or indeendent e?enditures/D *'C v. Beaumont .2007/ [1444] .ca!ai%n contributions can be re:uired (ro!searate accounts&/

• nrotected eech

o ncite!ent, Fi%htin% ords, *ostile #udiences

ncite!ent, which ro$oes the $iolence o( an audience, can be barred when it

ad$ocates an i!!ediate act o( $iolence or ille%al act that oses a serious har! tothe state .Brandenbur%D hitne" Concurrence/

Fi%htin% ords, which ro$oe $iolence toward the seaer, has been narrowed as

a class o( unrotected seech&• )ere O((ense is insu((icient& Cantwell v. Connecticut .1>40/ [107>]

.Reli%ious rosel"tiin% was o((ensi$e to the ublic, and threatened breacho( the eace, but was not able to be barred on account o( the dan%er to the ublic/

• )ust ro$oe a reasonable erson& Chaplinsky v. &ew Hampshire .1>42/

.Court created (i%htin% words doctrine, and uheld law ai!ed at barrin%seech that would ro$oe a reasonable erson at ro$oin% a (i%ht&/

• italit" o( the (i%htin% words doctrine is less than certain& [1041] ince

1>42, no (i%htin% words con$ictions ha$e been uheld b" the court&(ooding v. Wilson .1>92/ .struc down (i%htin% words statute (or bein%

o$erbroad = included orobrious words or abusi$e lan%ua%e which tendedto breach the eace/D )osenfeld v. &ew ersey .1>92/ .struc downalication o( (i%htin% words to use o( mother fuc-er at school board!eetin%/D ,ewis v. &ew %rleans .1>92/ .struc down alication o(disorderl" erson statute to wo!an that called olice %od da!n !other(ucers/D Brown v. %klahoma .1>92/ .struc down alication o( a (i%htin%words law in uni$ersit" chael/D +e!as v. ohnson .1>6>/ .flag burning wasnot ain to (i%htin% words/D Cohen v. California .1>91/ [class 74, 1047] .Gfuc- the draftH 51/ .uholdin% a disorderl" conductcon$iction o( a seaer who %enerated a hostile crowd, and did not stowhen told to& Blacs dissent ar%ued that the dut" o( the olice was to rotect the seaer/ B' @@ +erminiello v. Chicago .1>4>/ .'hou%h not


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reachin% the hostile audience issue, !aJ>/ .O$erturnedcon$iction o( eace(ul rotest that did not diserse uon re:uest/

• +er!its (or seeches liel" to %enerate hostile audiences are not %enerall"

constitutional& 4un- v. &ew 3ork .1>51/ .er!it re:uire!ents (or reli%iousseeches were dee!ed to be an unconstitutional rior restraint/D *orsythCounty (eorgia v. &ationalist ovement8 .1>>2/ .Court struc down as(aciall" in$alid a er!it s"ste! that char%ed (or rotection due to hostileaudiences, and er!itted den"in% the er!it when the (ee was not aid/

o Libel, +ri$ac"

Libel is not rotected seech, thou%h its threshold is not eas" to satis("& 'raditionalele!ents re:uire ublicationKco!!unication, o( a false fact, about an indi$idual,which has a tendenc" to har! their reutation in their re(erence %rou, and causesda!a%es& [class 7J]

• 'he idea o( %rou libel, while not o$erruled, is %enerall" discredited&

Beauharnais v. /llinois .1>52/ [1054] .held %rou libel law which rohibited ublications that libeled %rous o( eole/&

• Libel a%ainst ublic o((icials and (i%ures !ust show actual !alice& &ew3ork +imes v. Sullivan .1>J4/ .ewsaer ad, with !inor (actual errors, wascritical o( olice chie( in )ont%o!er" #L& Court o$erturned con$iction(indin% that technical untruths dont su((ice (or cri!inaliin% = e$en

untruths can ha$e $alue& Rules that ublic o((icials !ust show actual!alice, i&e& nowin% or recless disre%ard o( the truth&/D Curtis "ublishingCo. v. Butts and Associated "ress v. Walker .1>J9/ .e?tendin% N 'i!esdoctrine to ublic (i%ures = athletic director and retired %eneralresecti$el"/&

o o!e subse:uent cases $iew ublic (i%ures narrowl"& 3e" see!s to

be urosel" a$ailin% onesel( to ublicit"& [10J7] (ert- v. )obertWelch .1>94/ .ro!inent law"er acti$e in his co!!unit" was ri$ate (i%ure/D +ime6 /nc. v. *irestone .1>9J/ .+al! Beach societ"di$orcee was not ublic (i%ure/D Hutchinson v. "ro!mire .1>9>/.(ederall" (unded scientist was not a ublic (i%ure/D Wolston v.

)eader’s $igest Ass’n /nc .1>9>/ .erson con$icted in 1>56 (orconte!t in %rand 94/ .holdin% thatstates can enu!erate their own standards (or libel a%ainst ri$ateindi$iduals, but that da!a%es should onl" co!ensate actual har!& *ere alaw"er de(a!ed b" a ;ohn Birch ociet" !a%aine was dee!ed a ri$ateindi$idual, and was able to reco$er/&


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o ( the sub90/ .(ocus on adult!a%aines J9/ .(alse li%ht ortra"al o( the *ill (a!il", who was held hosta%e, was barred&Court re$ersed da!a%es award, (indin% that stories on !atters o( ublic interest could not be co!ensated (or unless nowin%l"

(alse/&o isclosure o( !atters o( ublic record are rotected& Co!

Broadcasting Corp. v. Cohn .1>95/ .reublication o( rae $icti!sna!es was constitutional, as it was a !atter o( ublic court records/D *lorida Star v. B..*. .1>6>/ .newsaer ublication o( na!e o($icti! o( se?ual o((ense was constitutional, as it was obtained (ro! olice reort, which was ublic/&

o lle%all" obtained in(or!ation !a" be able to be distributed, i( it is

o( ublic concern& Bartnicki v. 1opper .2001/ .ban on radio shows broadcast o( an ille%all" obtained third art" con$ersation wasunconstitutional, as the con$ersation was one o( ublic concern&/

[1092]o )edia cannot aroriate er(or!ers act without consent& 9acchini

v. Scripps5Howard Broadcasting Co. .1>99/ .holdin% awarda%ainst !edia (or rebroadcastin% hu!an cannonballers act&/

o Obscenit" [10>4]

eech !eetin% the le%al de(inition o( obscenit" is not rotected b" the First

#!end!ent, but ri$ate ossession is rotected& )oth v. 2S , )oth v. 2nited States, Alberts v. California .1>59/ [read 29] .holdin% that obscenit" is not constitutionall" rotected& #r%ued that "ou should use the standard o( an a$era%e erson, al"in%


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conte!orar" co!!unit" standards, and $iewin% the wor as a whole&/D 4ingsley /nt’l "ictures Corp. v. )egents .1>5>/ .Court o$erturned state law den"in% licensesto theaters showin% adult !o$ies = se?ual i!!oralit" is not obscene/D Stanley v.(eorgia .1>J>/ .Court o$erturned law barrin% ri$ate ossession o( obscene!aterials = (irst a!end!ent rotects ossession/D 2nited States v. )eidel .1>91/.+ost tanle", a((ir!ed that cri!inaliation o( distribution o( obscene !aterials was

still constitutional/D iller v. California .1>97/ .court a((ir!s constitutionalit" o(cri!inaliin% obscene !aterial, but rede(ines Roth standards/ +ursuant to )iller,trier o( (act is to considerA

• hether a$era%e erson, looin% at the wor as a whole, would (ind that it

aeals to rurient interests• hether the wor deicts or describes in a atentl" o((ensi$e wa", se?ual

conduct seci(icall" de(ined under alicable law&o Local standards !atter& Hamling v. 2nited States .1>94/ .al"in%

local standards/D Smith v. 2nited States .1>99/ .intra statedistribution in state without standards was still sub97/ [1104, read 2>] .re-1110]

Child +orno%rah" is unrotected, as is ri$ate ossession, but the law barrin% it

cannot be o$erl" burdenso!e& &ew 3ork v. *erber .1>62/ [1114] .Court re


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• udit" Bans are not er!itted& 'r-no-nik v. acksonville .1>95/ .re>1/ .uholdin% bar on ublic nudit" as alied to nude dancin%/

•

@ro%enous Ponin% laws are %enerall" constitutional, ri!aril" as a result o(the secondar" e((ects o( such businesses& 3oung v. American ini +heaters.1>9J/ .Court uheld onin% law barrin% location within so !an" (eet o(other establish!ents = scatter onin%& +luralit" ar%ued that such seech wasentitled to a lower le$el o( rotection&/D )enton v. "laytime +heatres6 /nc..1>6J/ [1177, class 76] .Court uheld onin% law concentratin% such businesses in one locale = concentration onin%& Oinion (ocused on thesecondar" e((ects that such businesses ha$e/D City of ,os Angeles v. Alameda Books .2002/ .court held that su((icienc" o( secondar" e((ectscould not be deter!ined in this case on su!!ar" 96/ [1176, read71, class 7>] .8eor%e Carlins seech ro!ted a warnin% (ro! the FCC&Court uheld the re%ulation o( the ti!e such indecent seech could be airedon radio, as it reached ri$ate real!s& +luralit" ar%ued (or lesser cate%or"o( rotection, but additional !a90/.court uheld (ederal law er!ittin% reciients to ot out o( se?uall" ro$ocati$e !ailin%s/ B' @@ Consolidated 'dison v. "ublic Service

Comm’n .1>60/ .holdin% that Con @d could not be barred (ro! includin% olitical !essa%es with utilit" bills/D Bolger v. 3oungs $rug "roducts Corp.triin% down bar on unsolicited !ailin%s ertainin% to contraceti$es =!ailin%s were aroriate (or adults, and were rotected/&

• 'otal indecenc" bans are not er!itted& Sable Communications /nc. v. *CC

.1>6>/ [1145] .triin% down (ederal bar on dial a orn >00 nu!bers/D $enver Area 'ducational +elecommunications Consortium v. *CC .1>>J/.uheld (ederal law er!ittin% cable oerators to bar obscene ro%ra!!in%, but struc down ro$isions o( the law allowin% FCC to re%ulateobsceneKe?licit content, and (orced channelin% and blocin% unlesssubscribers ot in& +luralit" (a$ored a balancin% aroach/D 2nited States v.

"layboy 'ntertainment (roup .2000/ .al"in% strict scrutin", court strucdown (ederal re%ulation o( cable indecenc" that re:uired scra!blin% andcon(inin% to late ni%ht hours& Court (ound less restricti$e !eans were otentiall" e((ecti$e, and burden was on the censor to show the" were not/&

• nternet censorshi o( indecenc" cannot be o$erl" restricti$e& )eno v.

American Civil ,iberties 2nion .1>>9/ .Court struc down statute which barred showin%sKtrans!issions where children would nowin%l" %ain access = burden was on %o$ern!ent to show that less restricti$e !eans would beine((ecti$e/D Ashcroft v. American Civil ,iberties 2nion .2002/ .Court


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re>7/ .struc down ban on C+#s (ro!solicitin%/D /bane- v. *lorida Board of Accountability .1>>4/ .er!ittedlaw"ers to ad$ertise the" were C+#s/ B' @@ %hralik v. %hio State Bar Association .1>96/ .uholdin% in erson law"er solicitation ban where state(inds lielihood o( ad$erse e((ects/D *lorida Bar v. Went *or /t6 /nc. .1>>5/.uheld 70 da" state restriction on direct !ail (ro! attorne"s to in67/.inclusion o( in(or!ational a!hlets did not !ean contraceti$ead$ertise!ent !ailin%s were non co!!ercial, but court still (ound rotected/D Board of +rustees6 State 2niv. of &ew 3ork v. *o! .1>6>/.inclusion o( ho!e!ain% ad$ice in 'uerware arties did not!ae the! non-co!!ercial/

o e(inition o( co!!ercial seech does not include all acti$ities that

include ro(it !oti$es& *irst &ational Bank v. Bellotti .cororate


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ad$ocac" (or business interests in olitical ca!ai%n en>>/ .allowin% di((erential treat!ent (or disclosure o( arrestrecords when intended to be used (or co!!ercial uroses/&

• ice e?cetion to co!!ercial seech has been seriousl" :uestioned&

"osadas de "uerto )ico Assocs v. +ourism Company of "uerto )ico .1>6J/

.alied Central *udson test, and (ound that bar on ad$ertisin% le%al%a!blin% to +uerto Ricans was constitutional/D 2nited States v. 'dge Broadcasting Co. .1>>7/ [1160, read 75] .held (ederal law barrin% broadcast o( lotter" ads sa$e (or stations in states where the lotter" is le%al/B' @@ )ubin v. Coors Brewing Co. .1>>5/ .truc down (ederal lawre:uirin% alcohol content to be disla"ed on labels, (indin% that thou%hhealth interests were $alid, the re%ulation did not ad$ance the interests, andwas !ore e?tensi$e than necessar"& Re>J/[1162] .truc down co!lete ban on li:uor ad$ertisin%& ;ustices di((ered onreasonin%, but te$ens luralit" re] .court strucdown state tobacco ad$ertisin% re%ulations, (indin% the! unable to !eet(ourth ron% o( Central *udson/D +hompson v. Western States edical


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Center .2002/ .struc down ban on ad$ertisin% co!ound dru%s, (indin%(ailure o( (ourth ron% as not narrowl" tailored/&

• !er!issible For!s o( eech Restricti$e Law include O$erbroad laws, a%ue laws, and rior

restraints&o O$erbreadth [1774]

'hou%h a %o$ern!ental restriction o( seech !a" be constitutional as alied, i( it

is (aciall" o$erl" broad, it !a" be in$alidated on that %rounds& (ooding v. Wilson.1>92/ .o$erturned con$iction o( antiwar de!onstrator (or usin% orobrious wordsand abusi$e lan%ua%e = thou%h threats could otherwise be cri!inalied, law waso$erbroad/D ).A.1. v. City of St. "aul .1>>2/ .hites Concurrence noted that barrin% racist s"!bols that caused an%er or alar! was o$erbroad in (i%htin% wordsstatute/&

O$erbreadth anal"sis is uni:ue in two resects& First, it does not consider whether

the etitioners actions are roerl" barred, as it is a (acial challen%e& econd, ithas uni:ue standin% rules, as "ou can brin% u the interests o( non-arties&

ubstantial o$erbreadth !a" be re:uired where the seech includes conduct& #

(indin% o( substantial o$erbreadth re:uires that the statute be so broad and

restricti$e as to deter !uch le%iti!ate seech& Broadrick v. %klahoma .1>97/ [177J].restrictin% reach o( the o$erbreadth doctrine where the rotected seech in$ol$esconduct = here in the conte?t o( li!itin% ci$il ser$ants (ro! artisan acti$it"&Brennan dissent oints out that Gsubstantial o$erbreadthH is not de(ined andunclear&/D City Council v. +a!payers for 1incent .1>64/ .te$ens !a62/ .re65/ [1741] .'hou%h in$alidatin% state obscenit" law entirel", court said thatwhen ossible to narrow the law to constitutional li!its, that is the roer course o( action, not co!lete in$alidation/

• But not in the conte?t o( (undraisin%& Schaumburg v. Citi-ens for Better

'nvironment .1>60/ .striin% down ordinance barrin% solicitations b"charitable or%aniations that used less than 95Q o( receits (or charitableuse = artial in$alidation not an otion/D Secretary of State v. oseph H.

unson .1>64/ .as in chau!bur%, in$alidates charitable solicitation law/D )iley v. &ational *ederation of the Blind .1>66/ .in$alidatin% law i!osin%reasonable (ee li!its (or (undraisers&/ B' @@ /llinois v. +elemarketing Associates /nc. .2007/ .uholdin% li!it on abilit" o( (undraisers to use!isleadin% state!ents = 1st #!end!ent does not rotect (raud&/

Le%islati$e narrowin% o( law does not eli!inate the otential (or o$erbreadth

anal"sis& assachusetts v. %akes .1>6>/ .subse:uent le%islati$e a!end!ent doesnot re$ent an o$erbreadth e?a!ination/& ;udicial narrowin% does end the


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o$erbreadth anal"sis& %sborne v. %hio .1>>0/ .in child orn conte?t, 92/ .sustainin% anti noise ordinance nearschool buildin%s as it would liel" be interreted in a consistent wa"/&

First #!end!ent $& ue +rocess = in the (irst a!end!ent conte?t, (indin% o(

$a%ueness %enerall" results in (acial in$alidation, whereas in due rocess conte?t, itresults in a narrowin%&

a%ueness does not reach !atters o( ublic subsidies (or seech& &ational 'ndowment for the Arts v. *inley .1>>6/ .uholdin% $a%ue decenc" standards (or @# = when %o$ern!ent is the atron, it is (ree to 66/ .struc down er!it re:uire!ent (or newsaerracs& Court declared that facial challenges to licensing statutes were

appropriate where administrative actors can discriminate on the basisof content/&

o +rocedural sa(e%uards are re:uired when licensin% statutes are

uheld& *reedman v. aryland .1>J5/ .struc down licensin%statute on !o$ies& Re:uired rocedural sa(e%uards (or such a law to be constitutional, includin% uttin% the burden on showin% it isunrotected seech on the censor, ro$ision o( an aeal (ro!censors decision, and ro!t


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• ;usti(ications For ot +er!ittin% +rior Restraints include the ease o( barrin%

the seech b" stroe o( the en, censor bias in (a$or o( %o$ern!entalinterests, in(or!alit" o( censor rocedure, e((ect o( barrin% ideas (ro! the!aretlace, little nowled%e o( the har!s o( such bans& [175J]& B' @@ 4ingsley Books /nc. v. Brown .1>59/ .uheld state rior restraint sche!e (or obscene !aterials when clear standards and ro!t 9J/ .court used *and balancin% o( e((ect o( retrial co$era%e, whether other !easures would !iti%atee((ects o( unrestrained ublicit", and e((ecti$eness o( restrainin%order to strie down %a% order/&

• First #!end!ent Ri%ht o( #ccess

o

i((erin% $iews on ri%hts o( access& [class 44] Classic $iew o( (irst a!end!ent did not suort constitutional ri%hts o( access&

'he (irst a!end!ent was li!ited to %o$ern!ental action, there was no inter(erencewith ri$ate editorial decisions, and inter$ention was onl" aroriate when therewas a !onool" o( scarce resources&

Barrons $iew suorts a constitutional ri%ht o( access in certain circu!stances&

hen there is a !onool", or when it ertains to the !edia .which alies!a


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o 'here is little ri%ht o( access to ri$ate roert"& [12>7] arsh v. Alabama .1>4J/

.reco%nied ri%ht o( access to distribute literature in co!an" town = idea o( areas thatser$ed a ublic (unction/D Amalgamated *ood 'mployees v. ,ogan 1alley "la-a .1>J6/.reco%nied ri%ht to eace(ull" rotest a suer!aret in ri$ate shoin% center that was(unctional e:ui$alent o( ublic (oru!/ B' ,loyd Corp. v. +anner .1>92/ .distin%uishedLo%an alle" and struc down ri$ate roert" rotest = rotest was unrelated to business

oeration, and there were alternati$e !eans o( rotest/D Hudgens v. &,)B .1>9J/.!entioned that Lo%an alle" was no lon%er %ood law, and that there was no ri%ht o(access (or iceters to rotest business on ri$ate roert"/&

o 'here is little constitutional basis (or co!elled access o( others seech& [1796]

Ri%ht o( rel" (or broadcast, but not rint !edia& )ed ,ion Broadcasting Co. v.

*CC .1>J>/ .court uheld FCC re:uire!ent o( (airness doctrine, which re:uiresresonse ti!e (or those attaced, rel"in% hea$il" on the ublic nature o( the broadcast sectru!& octrine was later eli!inated b" FCC/D iami Herald "ub.Co. v. +ornillo .1>94/ .striin% down state ri%ht o( rel" (or rint !edia, (indin%that it co!els ublishers to carr" a articular !essa%e/&

8enerall" no co!elled access to ri$ate roert"& "runeyard Shopping Center v.

)obins .1>60/ .Court uheld state constitutional ro$ision which re:uired access to ri$ate shoin% centers, (indin% it did not in(rin%e on the (irst a!end!ent ri%hts o( the roert" owner/D "acific (as # 'lec. Co. v. "ublic 2til. Comm’n .1>6J/ .court(ound that utilit" did not ha$e to carr" !essa%e o( those critical o( its ractices = noobli%ation to carr" !essa%e it disa%rees with& issent ar%ued there should be anobli%ation as it is a re%ulated utilit" and cororation/D +urner Broadcasting Systemv. *CC 7+urner /8 .1>>4/ [1761] .(ound that !ust carr" ro$isions (or cableoerators to include local channels was content neutral, and liel" satis(ied theOBrien tests inter!ediate scrutin"/ a(ter re!and +urner // .1>>9/ .(ound that there%ulations were narrowl" tailored/&

+arades do not ha$e to carr" !essa%es their or%aniers disa%ree with& Hurley v.

/rish5American (ay6 ,esbian6 and Bise!ual (roup of Boston .1>>5/ .reasoned thata ri$atel" or%anied arade is e?ressi$e conduct, and that it does not ha$e toco!ort with a state non-discri!ination law to carr" a !essa%e it disa%rees with/&

Broadcast, as a scarce resource, !a" ha$e obli%ations to carr" !essa%es, but the"

retain !uch editorial control& [14>1] )ed ,ion Broadcast Co. v. *CC .1>J>/ .uheld(airness doctrine in li%ht o( scarce resources/D Columbia Broadcasting6 /nc v. $emocratic &ational Committee .1>97/ .court held that broadcasters retainedenou%h editorial control to re64/ .court

struc down ban on nonco!!ercial educational broadcastin% stations that recei$e ublic (unds (ro! editorialiin% = reasoned that there had to be a narrowl" tailoredrestriction, (urtherin% a substantial %o$ern!ental interests, such as (air and balanced co$era%e/D Arkansas 'ducational +elevision Comm’n 7A'+C8 v. *orbes.1>>6/ .re4/ .in reasonin%, court re


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+elecommunications Consortium v. *CC .1>>J/ .declined to decide whether cableis lie rint or broadcast, as it arose in a di((erent conte?t/D )eno v. AC,2 .1>>9/.court re56/

.Court struc down order re:uirin% ##C+ to disclose !e!bershi list& Found that (ree

association was a constitutional ri%ht, and that state re%ulator" interest ursuant tocororate charterin% was insu((icient to o$erco!e&/D Shelton v. +ucker .1>J0/ .tries downstate law re:uirin% teachers to disclose all or%aniational !e!bershis, (indin% that thestate interest in teacher co!etence, while le%iti!ate, did not outwei%h/D (ibson v. *lorida ,egislative /nvestigation Comm. .1>J7/ .!e!bershi did not ha$e to be disclosed inle%islati$e in$esti%ation o( Co!!unis!, as there was no ne?us between the in(or!ationsou%ht and a co!ellin% state interest& uch a ne?us is re:uired/&

o isclosure o( ca!ai%n contributions is re:uired& Buckley v. 1aleo .1>9J/D B' Brown v.

Socials Workers ’?: Campaign Committee .1>62/ .(ear o( inti!idation o( donorsoutwei%hed interest in disclosure/

o Bans on solicitations to $alidate ri%hts $iolate (ree association& &AAC" v. Button .1>J7/

.stries down ban on solicitin% arties (or liti%ation, (indin% that it was rotected seech =here to $indicate constitutional ri%hts/D Brotherhood of )ailroad +rainmen v. 1irginia

.1>J4/ .e?tends to ersonal in1]

8ender e:ualit" tru!s ri$ate ri%ht to associate& )oberts v. 2nited States aycees

.1>64/ [1415] .held that ri$ate %rou could not e?clude wo!en in $iolation o( statenon-discri!ination law al"in% to laces o( ublic acco!!odation& Court alieda co!ellin% interest test to the state, and (ound it !et&/D Board of $irectors of )otary /nternational v. )otary Club .1>69/ .uheld alication o( Cali(ornia law to

!andate wo!en be included, (indin% that it was a non-selecti$e !e!bershi/D &ew3ork State Club Ass’n v. City of &ew 3ork .1>66/ .uheld a nondiscri!ination law(ro! a (acial First #!end!ent challen%e/

e?ual Orientation is a le%iti!ate %rounds to e?clude uon& Boy Scouts of America

v. $ale .2000/ .Court held that the Bo" couts were en%a%ed in e?ressi$e conductand that it was aroriate to e?clude %a"s on that %rounds, in $iolation o( statenon-discri!ination law& Court (ound that the state had no co!ellin% interest&issent ar%ued that ale was not a seaer, and did not $iolate the re$iousl"unannounced rincile o( disaro$al o( %a"s/

Religious %utonomy

• i((erin% $iews on the !eanin% o( the clauses [1504]

o o!inant $iew belie$es in a whole searation o( church and state, and denies an"

%o$ern!ental suort o( reli%ion& 'his has been re(erred to as $oluntaris! and searatis! = $oluntaris! in that onl" $oluntar" contributions can (urther the actions o( a reli%ious%rou, and searatis! in that there !ust be a whole scale searation between church andstate& 'hese $iews are best articulated b" ;ustice Blac in 'verson v. Board of 'ducation.1>49/&


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o )inorit" iew belie$es that the ro$isions !erel" re:uire %o$ern!ental non-

re(erentialis!& o one reli%ion can be endorsed, but there is no re:uire!ent o( eein%the %o$ern!ent and reli%ion searate& 'his $iew has been endorsed b" so!e >5/ .'ho!as

ar%ued that onl" non-re(erence was re:uired/• Free @?ercise Clause

o Laws that urosel" discri!inate a%ainst reli%ion $iolate (ree e?ression clause& +orcaso

v. Watkins .1>J1/ .struc down re:uire!ent that state o((iceholders ro(ess belie( in 8od/D c$aniel v. "aty .1>96/ .Court in$alidated state law barrin% cler%" (ro! bein% le%islatorsor dele%ates to constitutional con$entions/D Church of the ,ukumi Babalu Aye v. City of Hialeah .1>>7/ .Court in$alidated ani!al sacri(ice ban, (indin% that it was not neutral (orallowin% e?cetions, and that it was !oti$ated b" ani!us to a articular reli%ious %rou&'o be $alid, a law burdenin% reli%ious ractice !ust be neutral, or o( %eneral alication,or else it will be subJ5/ [1510] .Court interreted reli%ion broadl" to e?e!t indi$idual that belie$ed in sure!e bein% in a re!ote sense/D Welsh v. 2nited States .1>90/ .luralit"de(ined reli%ion broadl" to %rant e?e!tion to indi$idual that struc Greli%iousH (ro!alication/ B' @@ (illette v. 2nited States .1>91/ .held that Con%ress could re(usee?e!tions (or those that onl" obJ7/ .Court alied strict scrutin" to re:uire e?cetion

to unemployment compensation sche!e (or wo!an who could not wor aturda"s whichwere her abbath& Court reasoned that the e?tension o( bene(its was re:uired b" the rincile o( reli%ious neutralit"& has onl" been alied in une!lo"!ent conte?t/D+homas v. )eview Board .1>61/ [152J, read 50] .e?tendin% herbert to indi$idual that :uit 62/ .re6J/ .Re


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But %o$ern!ent can roerl" li!it reli%ious ractices without a co!ellin%

interest& )eynolds v. 2nited States .1696/ [1521] .holdin% bi%a!" law a%ainst(ree e?ercise challen%e, (indin% that %o$ern!ent can roerl" roscribe ractices/DCantwell v. Connecticut .1>40/ .court (ound that reli%ious belie(s were entitled toabsolute rotection, but that reli%ious conduct, while sub44/ .uholdin% child wel(are

law barrin% !inor eriodical sellin% a%ainst challen%e (ro! ;eho$ahs itness whoclai!ed it was re:uired b" reli%ion/D 'mployment $ivision6 $ept. of Human )esources v. Smith .1>>0/ .Court uheld denial o( une!lo"!ent bene(its to ati$e#!ericans (ired (or use o( +e"ote& Reasoned that neutral, %enerall" alicable lawsare not barred (or in(rin%in% (ree e?ression in the absence o( other ri%hts bein% burdened as well& Court rejected idea of re3uiring a compelling governmentalinterest to 91/& t re:uired that a statute !eet

three criteria to withstand an establish!ent challen%eA

ecular le%islati$e urose +rincial or ri!ar" e((ect is not one that ad$ances or inhibits reli%ion

tatute !ust not (oster e?cessi$e %o$ern!ent entan%le!ent with reli%ion&

'he Le!on test has been criticied, and not entirel" (ollowed&o @nshrinin% O((icial Belie(s

+ublic chools

• Released 'i!e ro%ra!s are constitutional, but reli%ious teachin% b" ublic

schools is not& cCollum v. Board of 'ducation .1>46/ .in$alidated ractice o( teachin% reli%ion in ublic schools/D 9orach v. Clauson .1>52/[1549, read 52] .held a released ti!e ro%ra! where ublic school studentscould attend reli%ious classes o(( o( school %rounds durin% school da"&

Court (ound that there was no coercion, and the statute did not (a$or an"one reli%ion&/

• O((icial school ra"er is not er!itted, as it o(ten in$ol$es coercion& 'ngel

v. 1itale .1>J2/ .co!ulsor" non-deno!inational school co!osed ra"erin ublic schools was struc down/D Abington School $ist. v. Schempp.1>J7/ .struc down Bible readin% and recitation o( the Lords ra"er at theoenin% o( a school da"& Oinion reasoned that i( the urose was toad$ance reli%ion, then unconstitutional/D Wallace v. affree .1>65/ .strucdown state law re:uirin% !inute o( silence in ublic schools = (ound the!oti$ation was ad$ancin% reli%ion/D ,ee v. Weisman .1>>2/ [1557] .trucdown nonsectarian ra"er at non-co!ulsor" %raduation cere!on", (indin%

that in ractice, attendance was re:uired, and that those that disa%reed hadlittle otion but to hear the ra"er = thus there was coercion/D Santa *e /ndependent School $ist v. $oe .2000/ .struc down ro%ra! er!ittin%student led ra"er at ublic school (ootball %a!es with suort o( school&Court (ound coercion (or those there (or credit = band and cheerleaders/&

• Reli%ious 8rous !ust recei$e e:ual access& (ood &ews Club v. ilford

Central School .2001/ [15J1] .reli%ious %rous can use schools (or e?tracurricular acti$ities when other %rous had access = neutralit" re:uired/&


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• Reli%ious !oti$ations cannot be (a$ored in ublic school curriculu!& Stone

v. (raham .1>60/ .in$alidated state law re:uirin% ostin% o( 10Co!!and!ents in ublic schools (indin% that there was no secular urose/D 'lk (rove 2nified School $istrict v. &ewdow .2004/ [15J2] .'hou%h not reachin% the !erits, so!e J1/ [15J6] .court uheld unda" closin%laws a%ainst establish!ent attac, (indin% that the" ha$e beco!e secularwa" o( ro!otin% da" o( rest/&

•

Le%islati$e +ra"er is constitutional on account o( its uni:ue histor"& arshv. Chambers .1>67/ .court uheld state ractice o( oenin% each le%islati$eda" with a ra"er (ro! a state aid chalain& Relied lar%el" on thehistorical nature o( the ractice&/

• +ublic disla"s o( reli%ion are constitutional when there is no endorse!ent

b" the %o$ern!ent, and e:uall" a$ailable to others& ,ynch v. $onnelly.1>64/ [1590, read 57] .uheld disla" o( crSche with other disla"s in aholida" disla"& Found lon% histor" o( ublic suort o( secular holida"s,and that the inclusion was !erel" showin% historical roots/D AlleghenyCounty v. American Civil ,iberties 2nion .1>6>/ .court stuc down(reestandin% disla" o( nati$it" scene on courthouse %rounds, but uheld a

!ulti-deno!inational disla"& Court adoted OConnors no endorsementaroach which (inds that %o$ern!ental endorse!ent, (a$oritis!, or ro!otion o( a reli%ion is a $iolation o( the establish!ent clause&/D CapitolS;uare )eview Board v. "inette .1>>5/ .uholds erection o( Latin Cross b" ri$ate %rou on ublic roert"& +luralit" ad$ocated (or re49/ [1561] .Court uheld ta?es %oin% to busser$ice (or children attendin% reli%ious schools& oted thou%h that no ta? candirectl" suort reli%ious acti$ities or institutions/D Board of 'ducation v. Allen.1>J6/ .state can lend boos on secular sub


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Helms .2000/ .te?tboos and other instructional sulies can be lent to reli%iousschools/D 9elman v. Simmons5Harris .2002/ [15>>] .uheld state $oucher s"ste!,(indin% that the %oal was educational choice& here aid ro%ra! is reli%iousl"neutral, and ro$ides aid to reli%ious schools onl" throu%h citien choice, little basis (or establish!ent clause attac/

• Liel" has to ass the Le!on test to stand& uller v. Allen .1>67/ [1564]

.uholdin% e?e!tion in state inco!e ta? (or incidental education e?ensesincurred in reli%ious education& Court alied and (ound satis(ied theLe!on test&/

Financial #id to reli%ious hi%her education (acilities %enerall" (ace less barriers&

+ilton v. )ichardson .1>91/ .luralit" distin%uished between hi%her ed andsecondar" schools, (indin% that colle%e students are less i!ressionable& held(ederal construction %rants to secular (acilities at reli%ious colle%es/D )oemer v. aryland "ublic Works Bd. .1>9J/ .aro$ed %o$ern!ental %rants to ri$atecolle%es, includin% reli%ions ones, so lon% as (unds not used (or secretarian uroses/&

Reli%ious or%aniations can %enerall" be included in ublic subsid" sche!es when

neutrall" a$ailable to all& Witters v. Washington $ept. of Services for Blind .1>6J/[15>1] .uheld the constitutionalit" o( allowin% ublic assistance (or rehabilitationto be used b" a blind erson at a Christian colle%e/D Bowen v. 4endrick .1>66/.re>7/ .court (ound that %o$ern!ent aid (or a si%n lan%ua%e interreter inreli%ious schools was O3&/D )osenberger v. )ector and 1isitors of the 2niversity of1irginia .1>>5/ .Court held that reli%ious ublications could not be barred (ro! bein% included in the uni$ersit" subsidied ublication ser$ice (or student %rous&/D Agostini v. *elton .1>>9/ .court held that ublic school teachers can instructre!edial education classes at reli%ious schools& ( a bene(it is neutrall" a$ailable to

all in a nondiscri!inator" !anner, it is accetable&/D itchell v. Helms .2000/.Court uheld state ro$ision o( co!uters to reli%ious and secular schools alie&/o Le%islati$e #cco!!odation o( Reli%ion [1J0J]

ele%ation o( ower to reli%ious or%aniations is unconstitutional& ,arkin v.

(rendel’s $en6 /nc. .1>62/ .struc down law that %a$e churches and schools owerto $eto li:uor licenses to establish!ents within (i$e hundred (eet/D Board of 'duc.%f 4iryas oel v. (rumet .1>>4/ [1J10] .struc down acco!!odation o( a searate%o$ern!ental district (or a reli%ious co!!unit"/&

Le%islati$e acco!!odations are accetable to a de%ree& 'state of +hornton v.

Caldor6 /nc. .1>65/ .truc down law er!ittin% eole to ha$e their own abbathda" o(( o( wor& Court $iewed as ad$ancin% a reli%ious ractice/D Corporation of

"residing Bishop v. Amos .1>69/ .uholds (ederal ro$ision that er!itted reli%iouse!lo"ers to (ire those the" disa%ree with/D +e!as onthly /nc. v. Bullock .1>6>/.struc down e?e!tion (ro! sales ta? (or reli%ious ublications/D Board of 'ducation v. ergens .1>>0/ .re


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• +re Ci$il ar

o +rior to the ci$il war, the Bill o( Ri%hts was $iewed onl" as a li!it on the (ederal

%o$ern!ent, and the ure!e Court re(used to e?tend it to the states& Barron v. ayorand City Council of Baltimore .1677/ [44J] .Court re79/ [4J>] .Cardoo ar%ued that not all o( the Bill o(Ri%hts were e?tended to the states, but ar%ued (or selective e0tension& *ere he (ound thatthe double J6/ [495] .Court (ound that the ri%ht to a


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re:uired (or states/D Apodaca v. %regon .1>92/ .(ound that a unani!ous 05/ .Court struc down !a?i!u! hour law (or baers, (indin% thatthe rationale (or $iewin% the re%ulation as a le%iti!ate use o( the olice ower waswea, but that indi$iduals had the libert" to contract as the" so desiredD aco!ellin% state interest was needed to li!it a (unda!ental ri%ht& *ol!es dissentar%ued that ensers econo!ic theor" should not be the basis (or 06/ .+re 1>th #!end!ent, uheld !ini!u! wa%e (or wo!en, (indin% that therewas a co!ellin% state interest to 15/ .in$alidated state law that re$ented e!lo"ers (ro!conditionin% e!lo"!ent uon not 27/ .+ost 1>th #!end!ent - struc down a !ini!u! wa%e law (or wo!en as bein% too arbitrar"/D Weaver v. "almer Bros. Co .1>2J/ .truc down o$er inclusi$ehealth re%ulation (or beddin% (illers, (indin% that it was arbitraril" related to thehealth interest/&

o ecline o( concet o( econo!ic substanti$e due rocess = the !odern $iew


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'he court now uses rational basis re$iew (or econo!ic re%ulation, and no lon%er

$iews libert" o( contract as a (unda!ental ri%ht& &ebbia v. &ew 3ork .1>74/ [507].Court uholds re%ulation o( !il rices, (indin% that it is a !atter o( ublicinterest, and that states are (ree to adot econo!ic olic"& 'he court (inds that due rocess in this real! re:uires onl" a rational basis in order to stand&/D West Coast Hotel Co. v. "arrish .1>79/ .Re$ersed Adkins v. Children’s Hospital and uheld a

!ini!u! wa%e (or wo!en, (indin% that due rocess anal"sis could not in$alidatesuch re%ulations, and that there was no (unda!ental libert" o( contract&/D 2nitedStates v. Carolene "roducts Co. .1>76/ .held a (ederal ban on (illed !il roducts a%ainst a due rocess challen%e, (indin% that onl" a rational basis wasre:uired (or econo!ic re%ulation& Footnote (our hinted thou%h that discrete andinsular !inorities could be rotected when lar%el" disen(ranchised and unable toaccess the olitical s"ste! E@l"/D Williamson v. ,ee %ptical Co. .1>55/ [50>] .n a$er" de(erential oinion, the court uheld a state law re:uirin% consultation withe"e doctor and bar on ad$ertisin% $isual aids& Found the le%islature !a" ha$e had arational basis/D *erguson v. Skrupa .1>J7/ .sustain 3ansas law barrin% non-law"ers(ro! bein% in business o( debt ad92/ .o$erturned a ban on distributin% contraceti$es/D Carey v. "opulation


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Services /nternational .1>99/ .stries down state ban on sellin% contraceti$es to!inors under 1J/

+ri$ac" rotects the ri%ht to obtain abortions& )oe v. Wade .1>97/ [556, class 57, read

J0] .Court (ound that the ri%ht to ri$ac" rotected the abilit" to !ae !edicaldecisions, but that it !ust be balanced with state interests, which in this case, arealso co!ellin%& # co!lete ban e?cet (or the li(e o( the !other $iolates

substanti$e due rocess& Oinion created tri!ester (ra!ewor to %uide states inre%ulatin% access to abortions& issents ar%ued that there was no (unda!ental ri%htto abortion, and that the !atter was a olitical :uestion&/D $oe v. Bolton .1>97/.truc down e?tra rocedural re:uire!ents (or abortions, (indin% that h"sicians best clinical 9J/ .struc down arental and sousal consent re:uire!ents/D Bellotti v. Baird .1>9>/ .luralit" said that arental in$ol$e!ent in childsabortion is onl" er!itted when allowin% (or 67/ .in$alidatedre:uire!ent that ost (irst tri!ester abortions had to haen in hosital, andre:uire!ent o( biased in(or!ation to be resented/D +hornburgh v.

American Coll of %bst. # (yn .1>6J/ .Court struc down reortin%re:uire!ents, and hei%htened rotections (or ost-$iabilit" abortions/DStenberg v. Carhart .2000/ [56>] .struc down ban on dilation and e?traction(or lac o( health e?cetion (or !other/ B' Casey luralit" would $alidatetruth(ul in(or!ationD a-urek v. Armstrong .1>>9/ .(ound that restrictin%abortion to licensed h"sicians was not an undue burden/

• 'he %o$ern!ent not ha$e to a" (or abortions& aher v. )oe .1>99/ [5J>]

.enied alication o( strict scrutin", and uheld e?clusion o( abortion (ro!state !edicaid s"ste! (indin% that (undin% was not re:uired (or the(unda!ental ri%ht/D Harris v. c)ae .1>60/ .Found that substanti$e due rocess did not re:uire the (ederal %o$ern!ent to (und e$en !edicall"

necessar" abortions/D )ust v. Sullivan .1>>1/ .Court uheld (ederal (undin%restrictions on or%aniations that ro!oted, encoura%ed, or ad$ocated (orabortion in ro$idin% !edical treat!ent&/

• )oe *as Been Uuestioned& [592-4] Akron / .1>67/ .dissents ar%ued (or

!o$in% awa" (ro! tri!ester (ra!ewor/D +hornburgh v. American Coll. %f%bst. # (yn. .1>6J/ .dissents ar%ued that it had beco!e unworable/DWebster v. )eproductive Health Services .1>6>/ .declined to o$errule, but luralit" ad$ocated (or reworin% tri!ester s"ste!/&


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o But its central holdin% has been rea((ir!ed& "lanned "arenthood of

Southeastern "a. v. Casey .1>>2/ .Court rea((ir!ed the co!!it!ento( Roe to usin% $iabilit" as a !arin% oint, and (ound that Roe isstill worable& Re96/ .stries down a ban on !arria%e (or eole that ha$eille%iti!ate children& )arshall oinion couched the substanti$e due rocess ri%ht in theri%ht to ri$ac"/D +urner v. Safley .1>69/ .@?tended the ri%ht to !arr" to risoners, andin$alidated restrictions on the ri%ht/&

o Fa!ilial #ssociation is rotected, thou%h arental ri%hts are ri!ar"& oore v. 'astCleveland .1>99/ .striin% down a onin% ordinance that de(ined (a!ilies as onl" nuclearunits, to the e?clusion o( two %randchildren and a %rand!other/ Contrast with Belle +errev. Boraas .1>94/ .uholdin% onin% ordinance that e?cluded non-relati$es/D +ro!el v.(ranville .2000/ .court struc down er!ission to $isit %randchildren a%ainst will o(!other, (indin% it $iolated the !others substanti$e due rocess ri%hts/&

o 'radition bears uon what is $iewed as a (unda!ental ri%ht& ichael H v. (erald $ .1>6>/

.uholdin% a denial o( biolo%ical (athers ri%ht to see child a(ter wi(e re!arries = caliasanal"sis o( substanti$e due rocess looed to tradition to


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/3ual 'rotection

• tandards o( Re$iew

o Rational Basis 'est

dea o( underinclusi$e and o$erinclusi$e&

• n %eneral, underinclusi$e laws are ones ai!ed at a roble!, that (ail toaddress all causes o( it& O$erinclusi$e laws are ai!ed at a roble!, and inaddressin% it, also include non-causes&

• 'uss!an-tenBroe anal"sis [J45] re(ers to the de(inin% characteristic o( the

le%islati$e classi(ication as the trait = & t re(ers to the urose o( a law as bein% ai!ed at eli!inatin% a !ischie( = & t en$isions (i$e otentialsituationsA

1& #ll 's are )s, and all )s are 's&a& +er(ectl" Reasonable

2& o 's are )s .and no )s are 's/a& +er(ectl" nreasonable

7& #ll 's are )s, but so!e )s are not 's&a& nderinclusi$e

4& #ll )s are 's, but so!e 's are not )s&a& O$erinclusi$e

5& o!e 's are )s, o!e 's are not )s, and o!e )s are not's&

a& nderinclusi$e and o$erinclusi$e Court is willin% to tolerate so!e o$erinclusi$eness and so!e underinclusi$eness

when utiliin% rational basis& )ailway '!press Agency v. &ew 3ork .1>4>/ [J49, readJ7, class 5J] .Court holds that it is not a re:uire!ent o( e:ual rotection that arational law be er(ectl" rational, rather, a de%ree o( under or o$er-inclusi$eness is

accetable& *ere it uholds a ban on ad$ertisin% on $ehicles not ri!aril" en%a%edin transortation&/

Rational Basis crutin" uholds le%islation where the le%islature had a rational

basis (or enactin% the le%islation& Williamson v. ,ee %ptical .1>55/ .Court reJ1/ .enied an e:ual rotection challen%e to unda" Closin% lawe?etions, (indin% that rational basis onl" re:uires in$alidations o( classi(icationsthat are wholl" irrele$ant to achie$in% state ob


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susect class or (unda!ental ri%ht, there is no constitutional re!ed"/D 1ancev. Bradley .1>9>/ .uheld (ederal law re:uirin% (orei%n ser$ice eole toretire at J0/D 2.S. )ailroad )etirement Bd. v. *rit- .1>60/ [J55, class 59, readJ4] .Bene(its reclassi(ication (or railroad worers was uheld under rational basis in:uir"& 'he court (ound that there was a rational relation in therecenc" o( the ties to the railroad industr"& 'he dissent ar%ues that the court

has abstained (ro! its duties, and has (ailed to re:uire e$en a rational basis&'he case reresents the largely deferential approach on econo!ic!atters/D Schweiker v. Wilson .1>61/ .Court narrowl" uheld a denial o(allowances to disabled eole con(ined in institutions unless the institutionswere recei$in% (ederal (unds& issent wanted a (urther in:uir" to satis("rational basis/D &ordlinger v. Hahn .1>>2/ .distin%uished Allegheny anduheld an ac:uisition $alue based roert" ta? s"ste! when the articular%oal was the ad$anta%es o( such a s"ste!/D *CC v. Beach Communications6 /nc. .1>>7/ .Court uheld a distinction between cable (acilities& Found thate:ual rotection clai!s !ust (ail when there is an" Greasonabl" concei$ableset o( (actsH that ro$ides a rational basis (or the classi(ication, re%ardless o(

whether it was the actual !oti$ation o( the le%islati$e bod"&/• 'he court beca!e less de(erential with non-econo!ic re%ulations& &ew

3ork City +ransit Auth. 1. Bea-er .1>9>/ .'hou%h uholdin% a ban on !ethusers in transit e!lo"!ent, 6>/ [JJ1] .stries down a roert" ta? s"ste! that bases itsassess!ent on urchase rice, thus disad$anta%in% recent urchasers/D1illage of Willowbrook v. %lech .2000 = er curia!/ .court struc down a$illa%e de!and (or a lar%er ease!ent to connect articular iece o( roert"to ser$ices, (indin% that it was liel" !oti$ated b" re$en%e a%ainst oneho!eowner/&

o trict crutin"

Race based distinctions !erit strict scrutin"& 'his !eans that racial classi(ications

are ordinaril" suspect, and re:uire a compelling justification (ro! the state&• ;usti(ications (or $iewin% race as a susect classi(ication [class J5]

o t is an i!!utable characteristic

o alience = it is an ob$ious h"sical characteristic that !aes the

discri!ination all the !ore odious&o rrational re


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ehu!aniin%

o rrele$ant to an" state urose

o +owerless

+re$iousl" not er!itted to $ote

@$en when the" %et the $ote, the" are a s!all !inorit"

• Racial classi(ications that disad$anta%e !inorities (ail strict scrutin"&

Strauder v. West 1irginia .1660/ [JJ9, read J5, class 59] .truc down a state bar on blac eole ser$in% in


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*lorida .1>J4/ .struc down a ban on interracial cohabitation& twas in$idious discri!ination without state J0/ .re$ersed a cit" reonin% thate((ecti$el" re!o$ed all blacs = !oti$ation was discri!inator" in urose&/D (riffin v. County School Board of "rince 'dward County

.1>J4/ .(ound that the !oti$ation o( closin% inte%rated ublicschools while ro$idin% subsidies (or whites to attend ri$ateschools was raciall" !oti$ated, and in$alid/ B' @@ "almer v.+hompson .1>91/ .uholdin% closin% an inte%rated ublic ool&Court re9J/ [J66, read JJ] .Court uheld a C olice ro(icienc"e?a!, which disroortionatel" was (ailed b" racial !inorities& 'he

court (ound that the re:uire!ent was reasonabl" related to the urose, and that there was no discri!inator" urose& Reasonedthat disroortionate i!act was not irrele$ant, but alone does notshow discri!inator" intent&/D Arlington Heights v. etropolitan Housing Corp .1>99/ .a((ir!ed a denial o( a reonin% re:uest toha$e !ore low inco!e tenants = disroortionatel" !inorit"& Courta%ain (ound that o((icial action is not unconstitutional !erel" onaccount o( a disarate racial i!act/ .4 (// )ogers v. ,odge.1>62/ [J>4] .uholdin% (indin% at an at-lar%e electoral s"ste! (orcount" board had a disarate racial i!act, and was thus in$alid&Court (ound ast discri!ination in access to $otin% re%istration and

education to be circu!stantial e$idence o( urose(uldiscri!ination/D Hunter v. 2nderwood .1>65/ .triin% down stateconstitutional ro$ision that disen(ranchised (elons o( cri!es o(!oral turitude = (ound that it was assed in an at!oshere o(racis!, and had disen(ranchised blacs at a rate ten(old to whites/DEese%re%ation in chools below

iscri!inator" intent is needed to show a $iolation o( the

17th #!end!ent as well& emphis v. (reene .1>61/ .thou%hnot recisel" reachin% the :uestion, uheld a !unicial street


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closin% between two racial nei%hborhoods/D (eneral Building Contractors Ass’n v. "ennsylvania .1>62/ .held thatto sustain a cali! under the enactin% statute o( the 17 th #!end!ent, needed to show roo( o( discri!inator" intent/

o 'hou%h not initiall", the court now see!s inclined to adhere to the

urose e((ect distinction in addressin% the e((ects o( se%re%ation in

schoolsA Court re$iousl" too a broad aroach in eli!inatin% the

e((ects o( racial se%re%ation = i&e& de J6/ [J>6] .truc down a(reedo! o( choice lan (or school choice ost-Brown,(indin% that in ractice, it did not e((ect a chan%e in the racialco!osition o( the schools/D Swann v. Charlotte5 ecklenburg Board of 'ducation .1>91/ .a((ir!ed a courtorder to adot a co!rehensi$e inte%ration lan, includin% bussin%& Court noted that the re!edial owers to address de

97/ .allowed i!utin% discri!inator" intentacross entire school district when onl" a section o( thedistrict intentionall" discri!inated/D Columbus Board of 'ducation v. "enick .1>9>/ .(ound that disarate i!act can be e$idence o( urose(ul discri!ination/ $ayton Board of 'ducation v. Brinkman .1>9>/ .!easured school s"ste!sconstitutionalit" b" the e((ecti$eness, not urose, o(eli!inatin% $esti%es o( se%re%ation/&

Court retreated (ro! broad ower to address de 94/ [900] .(indin% that

there could onl" be a !ulti district re!ed" i( there was a!ulti-district wron% = !ere e((ects do not su((ice/ B' Hillsv. (autreau! .1>9J/ .uheld !ulti-


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adotion o( neutral laws and re:uire!ent o( searate(acilities was not enou%h to show co!liance/&

o Court %enerall" adheres to the urose = e((ect distinction in access

to the olitical rocess& Hunter v. 'rickson .1>J>/ [904] .trucdown a law that sub


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indi$idualied s"ste!s are unconstitutional& Finds that di$ersit" is aco!ellin% state interest, but that the !eans !ust be narrowl"tailored& Relies hea$il" on a!icus brie(s (ro! !ilitar" and business/D (rat- v. Bollinger .2007/ [929, read J>] .stries downunder%raduate a((ir!ati$e action lan that auto!aticall" %i$es!inorities 20Q score bonus& )a


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!aintainin% blac control o( con%ressional district/D Shaw v. )eno7Shaw /8 .1>>7/ [95>, read 91, class J4-5] .court stries down racialredistrict ai!ed at creatin% !a9/ .uheld adotion o( one

!inorit" district, thou%h le%islature would ha$e re(erred two,(indin% that such would subordinate the traditional districtin% oliciesKconsiderations to race/D ,awyer v. $epartment of ustice.1>>9/ .re>>/.sa!e district in haw cases was, on re!and, (ound to be ri!aril"!oti$ated b" race& Court o$erruled, (indin% that %ood (aith resu!ed, and the threshold has not been !et = district could stand/&

Funda!ental Ri%hts unenu!erated in the Constitution also !erit strict scrutin"&

•

#ccess to otin%o #ccess to $otin% is dee!ed a (unda!ental ri%ht rotected b" the

e:ual rotection clause& Harper v. 1irginia State Board of 'ducations .1>JJ/ [67>, read 9>, class 97] .Court (inds that the ri%ht to$ote is a (unda!ental ri%ht, and that while states do not ha$e to holdelections, i( the" do, then e:ual rotection re:uires that the ri%ht bee?tende

Documents

Con law notes and outline