Constitutional Law II - Lupu - 2

8/11/2019 Constitutional Law II - Lupu - 2

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CONSTITUTIONAL LAW OUTLINE

I. FUNDAMENTAL PROCEDURAL RIGHTS AND THE INCORPORATION DISPUTE

A. Pre-Civil War Situati!

1) "arr! v. Ma#r a!$ Cit# Cu!%il & "alti're(1833) (p.412)a) Facts: A wharf owner (Barron) sued the city of Baltimore for ruinin the use of his wharf! aruin that the

city"s actions #iolated the Fifth Amendment"s prohi$ition on ta%ins without &ust compensation.$) 'ssue: 's the Fifth Amendment"s &ust compensation pro#ision applica$le to the states

i) in $roader contet! the *uestion is whether the Bill of +ihts , perhaps with the eception of the FirstAmendment , applies to the states -o who is the Bill of +ihts addressed

c) oldin: (/arshall): 0o. The 5thAmendments just compensation clause provision is not applicable to thestates.i) /arshall says that the amendments are not limitations on the powers of the state o#ernments $c the

Bill of +ihts was put into place to limit the fed. o#t. and so there is a presumption that any rihts areassumed to limit onlythe fed. o#t. unless it epressly states otherwise(1) loo%s at Article! ' and 1 5 when the constitution meant to $ind the states it did so in so many

words. Fifth Amend. does not say 60o 7tate 7hall.d) 'mportance: why was it so important whether the fed. $ill of rihts applied to the states

i) as an institutional matter! it comes to who ets to decide for whom , an issue of authorityii) as a su$stanti#e matter! a set of national rihts would ha#e a unifyin function

'n the pre9ci#il war era! $asically! the only federal limitations on the states are those in Article ' of the constitution

,Bill of Rights was viewed as not binding on the states

2) Dre$ S%tt v. Sa!&r$ ()*+,, ynchpin Between Barron and 7lauhterhousea) Facts: ;red 7cott! a sla#e! was ta%en to 'llinois (free state) and then $ac% to /issouri (sla#e state) , and he

contends that he was free. 7ued master in fed. ct. under di#ersity &urisdiction. (/< compromise , outlawedsla#ery north of a particular parallel)

$) oldin: the =ourt re&ects 7cott"s suit on two rounds:i) theory that &urisdiction was di#ersity of citi>enship , =t. said that African9Amers.! whether or not free!were not a part of the 6?eople of the @.7. 5 could not $e citi>ens of the @.7. or a state for federal law

purposes 5 dismissed.ii) #en if there was &urisdiction! this part of the /issouri =ompromise is unconstitutional $c sla#es are

property and the =onst. protects aainst ta%in of property without due process of law 5 =on. can"treulate sla#e property in this way.

c) 'mportance: 7.=t. said! in effect! that there can"t $e political settlements o#er sla#ery. -here was no politicalsolution a#aila$le to =on 5 war was the only real option.

". Te Pur/0e a!$ I'/a%t & te P0t-Civil War A'e!$'e!t0

1) ?olitical and =onstitutional ed the end of sla#ery , 13thAmend. 5 this is a $lan%et prohi$ition! not addressed to thestates.i) howe#er! this turned out not to $e enouh , many confederate states passed Blac% =odes. 'n response!

=on. passed =i#il +ihts Act! $ut there was dou$t a$out the #alidity of the act , *uestion whether thiswas within =on. authority or was a matter for the states.

$) 14thAmend. was meant to constitutionali>e the 18CC =i#il +ihts Act , the 14thAmend. is framed in eneral!race9free terms.i) the net 13D years is a$out what 7ection 1 of the 14thamendment means.

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2) Te )1tA'e!$'e!ta) =iti>enship is a matter of federal constitutional law

i) the first sentence effecti#ely o#erturns ;red 7cott$) ?ri#ilees and 'mmunities =lause , 60o state shall ma%e or enforce any law which shall a$ride the

pri#ilees and immunities of the citi>ens of the @nited 7tates.i) this is the part of the 14thamend. that is the most o$#ious candidate for ha#in a su$stanti#e effect on

rihtsc) *ual ?rotections =laused) ;ue ?rocess =lause

i) $inds states , the Dthamend. due process clause $inds the fed. o#t.

3) Slau2ter-Hu0e Ca0e0 ()*,3(p.41D)a) Facts: A ouisiana law that ranted a 2D9year monopoly for one corporation to maintain slauhterhouses in

and around 0ew ens of the @7 $y denyin them e*ual protection (14th). -he primary purpose of the law was to remo#enoious slauhterhouses from the more densely populated part of the city.

$) 'ssue: ;o the 13thand 14thAmendments ma%e procedural uarantees of the Bill of +ihts applica$le to thestates

c) oldin: 0o. -he 13thand 14thamendments do not ma%e procedural uarantees of the 13 thand 14thamendments applica$le to the states.i) 13th amend. 5 the =t. says that 13thdoesn"t apply here $c it was meant to deal w sla#ery and this has

nothin to do with sla#eryii) 14thamend. 5 -he attitude we need to $rin to the 14 this that thepervading purposeof the post9war

amendments is to accomplish and complete emancipation.(1) /rivile2e0 a!$ i''u!itie0 %lau0e(this is where the action is)

(a) /a&ority: -he ?E' clause spea%s only of the ?E' of citi>ens of the @7! not of the se#eral states.-he ma&ority says that the $undle of rihts reconi>ed $y the 14 thamendment is a different

$undle reconi>ed in the pri#ilees and immunities clause of Art. '. 2 (which says: 6-heciti>ens of each state shall $e entitled to all pri#ilees and immunities of citi>ens in the se#eralstates).

(i) 'f this is the same $undle then we"#e &ust transferred an immense amount of power from thestates to the federal o#t.1. the ma&ority sees that the dissent"s approach would $rin fed. o#ernance into all

reulatin reimes and is resistin that radical approach(ii) -he ma&ority #iews the Art. ' ?E' as pertainin solely to wanderers rights, when people

from other states come throuh they must $e i#en those same rihts with reard tofundamentalrihts of that state.

($) ;issent: thin%s the $undle of rihts reconi>ed $y the 14thamend. is the sameas that reconi>edin Article ' , and that the $undle of rihts not only applies to wanderer"s rihts $ut operatesintra-stateas well as inter-state.(i) the 14thamend. ta%es the $undle and protects citi>ens from depri#ation of their common

rihts $y state leislation(ii) ma&ority #iew would ma%e ?E' clause meaninless

the 7lauhterhouse cases ma%e the pri#ilees and immunities clause of the 14thamend. disappear for 12D years. howe#er! while $ein erased from constitutional concerns! the ?E' clause aruments ha#e not $een erased.

4) 7aen> #. +oe (1) (p.428) (modern #ia$ility of ?E' clause of 14thamendment)a) Facts: =alif. enacted a law that if you mo#e to =alif. you will not $e a$le to recei#e =alif. welfare $enefits for

the first 12 months.$) oldin:

i) +eardin wanderer"s 5 state9created $enefits are not considered fundamental rihts for the purposes ofArticle '

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ii) +eardin re9settlers 5 the ct. found that states can"t treat new citi>ens different from old citi>ens.(7ome thins are eempted , e.. di#orce! in9state school tuition)(1) 7.=t. held that the reason that states can"t treat new citi>ens different from old citi>ens is the first

sentence of the 14thamend , the ?E' clausec) ;issent: says that the one9year waitin period is a way of measurin $ona fide residence , that you intend to

remain indefinitely.

d) ?rinciple: =t. here says that a state can"t prohi$it people from comin in to ta%e ad#antae of what the statehas to offer , with a few eceptions.i) -his may rest onstructureof the fed. union! the 14thamend. (e*ual protection of the laws)! or ?E' (riht

to mo#e and stay there).

C. Due Pr%e00 a!$ te I!%r/rati! C!trver0#

Car$45Fra!&urter5Harla! "la%6 Wite

Selective incorporationGfundamental #s.not9so9fundamental rihts

Total incorporationGoriinalpurpose was to incorporate all theBo+ to apply to the 7tates.

/odern iewGfocus on what isessential to Anlo9American

&ustice.

@npredicta$leGwhich rihts werein the core and which were in the

periphery would chane with new&udes.

-his #iew is insensiti#e to the factthat some clauses ha#e federalismconcerns (e.. 2nd Amend.)

"la%6, was the reat proponent of the arument that the 14thamendment incorporated all of the Bill of +ihts

and applied it to the states , and that this was all the ;ue ?rocess =lause did. 't o#errules Barron.o one of Blac%"s most persuasi#e aruments for total incorporation is that it eliminated &udicial discretion as to

what the rihts are , he was worried a$out un$ridled &udicial discretion $eyond the tet of the constitutiono Blac% would say that amendments 1 , 8 all apply to the states as a result of the 14thamendment , nothin

less! nothin more. Fra!6&urter, this is a ;ue ?rocess =lause. hy would they use a due process clause to o#errule Barron if it

already eisted elsewhere $efore

1) ?al%o #. =onnecticut (13H) (p.43D) (=ardo>o , selecti#e incorporation)a) Facts: ;efendant was tried twice for murder $y the stateI he claims that such a retrial in federal courts would

constitute dou$le &eopardy in #iolation of the Dthamendment.$) oldin: (=ardo>o) -his is not a fundamental rihtI !l#fundamental rightsare i!%r/rate$ i!t te )1 t

a'e!$'e!t70 $ue /r%e00 %lau0e.

c) hat would Blac% say: the Dthamendment spea%s a$out dou$le &eopardy in federal settins and the 14thamendment applies the dou$le &eopardy clause to the states.

2) Adamson #. =alifornia (14H) (p.43C) (=ordo>o #iew , selecti#e incorporation Blac% dissent)a) Facts: Adamson claimed that his murder con#iction #iolated the 14thamendment $c the prosecution had $een

permitted to comment on his failure to ta%e the stand at his trial.$) oldin: (+eed) /a&ority adhered to =ardo>o"s #iew. +eed said that while such a comment would #iolate the

Dthamendment"s self9incrimination pri#ilee in a federal proceedin! under ?al%o not all Bill of +ihtsuarantees are protected $y the 14 thamendment and there is no ground to make the self-incriminationprivilege applicable to the states.i) =oncurrence (Fran%furter): there are some dou$le &eopardy #iolations that would #iolate the due process

clause , Fran%furter would loo% at each particular practice andsee whether it offends the American basicsense of justice and liberty, if it does! then it #iolates the 14thamend.(1) -he 14thamendment"s due process clause has it"s own independent function.

c) ;issent (Blac%): 'nsisted that te &ull i!%r/rati! & te "ill & Ri2t0 2uara!tee0 8a0 te originalpurpose& te )1ta'e!$'e!t, therefore! 6the full protection of the D thamendment"s proscription aainstcompelled testimony must $e afforded to Adamson.

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3) Du!%a! v. Lui0ia!a ()9:* (p.441) (hite) (selecti#e incorporation apoproach)a) Facts: ;uncan! who was con#icted of $attery! punisha$le $y up to two years in prison! was denied a re*uest

for a &ury trial $ased upon ouisiana"s state constitution which re*uired &ury trial only in cases where capitalpunishment or hard la$or imprisonment may $e imposed. ;uncan arued that the Cthand 14thamendmentssecure the riht to a &ury trial in a case such as his.

$) 'ssue: should this particular Bill of +ihts uarantee $e considered essential to fundamental fairnessand!therefore! applica$le to the states

c) oldin: (hite) -he riht to a &ury trial in serious criminal cases is fundamental to the American scheme of&ustice and *ualifies for protection under the due process clause of the 14thamendment 5 the Cthamendmentriht to &ury trial is incorporated throuh the 14thto apply to the states.i) accordin to hite! need to loo% and see whether the pro#ision $ein discussed is part of the Bill of

+ihts and loo% at the whole pro#ision (e.. the dou$le &eopardy clause as a clause and the $undle ofprotections it i#es aainst the fed. o#t.) and decide whether the $undle , not merely the particularpractice , applies to the states.

the dilemma of selecti#e incorporation (Harla!, arlan doesn"t understand eaminin one pro#ision at a time

and incorporatin all aspects of the pro#ision (e#erythin the fed. o#t. must do under that pro#ision) and not &ustthe particular practice alone. ow can due process mean pic% and choose

$y ;uncan most of the Bill of +ihts had $een incorporated

Blac% ne#er ot appro#al of his total incorporation #iew! $ut ot one at a time and ot #irtually all

te substantive rightsi! te "ill & Ri2t0 are indivisibleu!li6e te /r%e$ural ri2t0.

II. SU"STANTI;E DUE PROCESS AND ECONOMIC RIGHTS

part of what is lur%in here is that when the o#t. redistri$utes wealth! it has to $e consistent with some

identifia$le pu$lic ood and it is up to the courts to determine whether or not there is a pu$lic ood , and! e#en ifthere is! must loo% at the reasona$leness of the act.

ochner #. 0J is the sym$ol of &udicial a$use of the power to ad&udicate due process.

A. A!te%e$e!t0 t L%!er

1) =alder #. Bull (1H8) (p.4D3)a) Facts: eislati#e act which re&ected pro$ate court decree and ultimately resulted in property chanin hands.

?laintiff says this is unconstitutional.$) oldin (=hase): ?roposes fundamental principle!, that courts ouht to $e a$le to say somethin #iolated

the constitution , no specific part $ut there are some fundamental principles that are #iolated.i) 0atural law theory 5 there are natural rihts that the o#t. is not free to #iolate , it doesn"t ta%e a

constitutional pro#ision to protect these rihts.

2) /uler #. Kansas (188H) (p.4DH)a) 7.=t. willin to uphold this reulation aainst li*uor $ut said willin to loo% atsubstantive reasonableness(a

sinal)

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c) ?rohi$ition , states can reulate , su$stanti#e reasons to outlaw thisI if no su$stanti#e reasons! then it#iolates economic rihts.

". Te L%!er Era< =u$i%ial I!terve!ti! a!$ E%!'i% Re2ulati!

;urin the rein of ochner9style su$stanti#e due process! there was no deference to leislati#e &udment $ut

rather an intrusion of the &udicial economic #alue choices (o#er those selected $y the leislature).

1) L%!er v. Ne8 >r6 ()9?+ (p.4D8)a) Facts: 0J passed a law prohi$itin $a%ery employees from wor%in more than 1 hrs.day or C hrs.wee%.

ochner was con#icted and fined for permittin a $a%er to wor% in ecess of the hours.$) 'ssue: 's a law that infrines on freedom in the mar%etplace and freedom of contract unconstitutional if it

does not $ear a reasona$le relation to a leitimate o#ernmental purposec) oldin (?ec%ham): Jes. A la8 tat i!&ri!2e0 ! &ree$' i! te 'ar6et/la%e a!$ &ree$' & %!tra%t i0

u!%!0tituti!al i& it $e0 !t @ear a reasonable relationt a legitimate governmental purpose. (oo% at$oth the 'ea!0and the e!$0)i) maimum hour law is unconstitutionalI eneral riht to contract in $usiness is clearly part of the

indi#idual li$erty protected $y the 14thamendment.ii) the state arued that this was a police power issue (health concerns) , $ut the ct. doesn"t $uy this

connectionI the ct. suspects that this is really a la$or law! not a health law.(1) la$or laws are to redress ine*uality in $arainin position , the ct. says that anythin a leislature

may do to distur$ peoples $arainin positions is to distur$ the mar%et and li$erty of contract.(?u$lic health is different)

(2) to test this suspicion! the court as%s the correlation $w health and $a%ers hours , demands #erypersuasi#e e#idence of health reasons.

d) ;issent :i) Hl'e05 ?olitics (leislatures) is to fiht out dominant opinions. =ourts should not o#erturn dominant

opinions unless the statute infrines onfundamental principlesas they ha#e $een understood.(1) olmes! unli%e arlan! says we don"t ha#e to limit it to health! &ust lea#e it to the leislature , if

they"re rational that"s enouh.ii) arlan 5 says there is e#idence of it $ein health law $ut admits that leislatures need to $e watched.

0eed to loo% at reasona$leness. 'n this case! he is satisfied with the reasona$leness of the leislature

=ourt loo%s at $oth 'ea!0 a!$ e!$0, the ends have to be legitimate and heavy burden on the state to show the

ne"us#fit between the means and the end it was trying to deal with .

ochner ta%es li$erty of contract principle and ma%es it in#iola$le , constitutionally protected.

o it limits the ends of the police power , la$or laws and laws that affect $arainin power are not part of the

police power.

ochner is em$lematic of the 7.=t. $ein #ery in#ol#ed in &udicial re#iew and economic inter#ention in the name

of su$stanti#e due process.

the &udes in ochner era repeatedly thwarted proressi#e economic leislation

2) /uller #.


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4) "a0i% Ele'e!t0 & te L%!er Era a!$ 0u@0eue!t alterati!0enship and cultural

#aluesis a riht that must $e a#aila$le to all on e*ual terms.iii) there is no strict scrutiny in Brown , that since it"s a$out race it"s suspicious. +ather! it"s all a$out racial

separation , a$out white superiority created $y politics (leislature controlled $y whites)

C) 7an Antonio 'ndep. 7chool ;ist. #. +odriue> (1H3)a) Facts: ?roperty ta rate and wealth in district determines school finances , arued e*ual protection #iolation.

Arument that a school could not ha#e a state financin scheme that had a disparity in per9pupil ependituresacross districts.

$) oldin: By a D94 #ote! the 7.=t. held that states are allowed to finance their schools in whate#er way theysee fit.

H) /ili%en #. Bradley (1H4)a) Facts: ;etroit was determined to ha#e unlawfully sereated the schools , ;ist. =t. &ude said that only way

to desereate was to use %ids from the su$ur$s.$) oldin: the 7.=t. $y a D94 #ote held that you cannot include other &urisdictions other than the &urisdictions

that ha#e #iolated the lawdesereation remedy had to $e limited to ;etroit.

". Ge!$er

up until the 1H"s the =ourt showed >ero sensiti#ity to ender discrimination

can you $e an oriinalist and still thin% the 14 thamendment stands for ender e*uality 2 of the 14 threaffirms

male9only suffrae.1) Bradwell #. 'llinois (18H3) (p.C48)

a) 7.=t. upheld $an on women practicin law in 'llinois.i) this reflects ideas of se roles in the early 1thcentury.

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2) Noesart #. =leary (148)a) Facts: After '' , women can"t $e $artenders ecept for wi#es and dauhters of the $ar owner

$) oldin (Fran%furter): +ational $asis test. =t. held that /ichian could for$id women from wor%in in a $ar.-he =t. applied rational basistest and deferred to the /ichian leislature sayin that the law is not withouta $asis in reason.

3) +eed #. +eed (1H1) (p.CD)a) Facts: ?reference in 'daho for men o#er women in appointment of administrators of estates. aw said that if

you had two or more people in the same entitlement class and one was a man and one was a woman! the manwould win.

$) oldin: -his is unconstitutional , choice may not lawfully $e mandated solely on the $asis of race.i) @nder a minimum rationality re#iew! a reasona$le leislature could ha#e thouht that men had more

eperience ta%in care of money than womenthis is more than a minimum rationality review.ii) 'daho had arued that this was a way of ha#in fewer hearins! streamlinin the process , $ut the law

only limits hearins where males oppose femalesthe state"s interest isn"t fully reali>edI there issomethin a little fishy.

4) Frontiero #. +ichardson (1H3) (p.CD)a) Facts: Federal law afforded male mem$ers of the armed forces an automatic dependency allowance for their

wi#es $ut re*uirin ser#icewomen to pro#e that their hus$ands were dependant.$) oldin: 7.=t. declared the law unconstitutional. Brennan stated that any statutory scheme which draws a

sharp line $etween the sees solely for the purpose of administrati#e con#enience #iolates e*ual protection(+eed). Anyway! the o#t. had no shown that it sa#ed any money $y this practice.i) -he o#t. had arued administrati#e con#enience , that it sa#ed the o#t. money to presume that wi#es

of male mem$ers are dependant while hus$ands are rarely dependant upon their wi#es.ii) Brennan made an arument forgender as suspect classification(as discrete and insular minority under

=arolene ?roducts F0 4) $ut does not et a ma&ority for that point.

$y the time we et to =rai #. Boren! Brennan reali>es that he"s not oin to $e a$le to et D #otes for treatin

ender and race classifications e*ually $ut can et D #otes to treat ender li%e ae! etc.

D) Crai2 v. "re! ()9,:(p.CD2)a) Facts:


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a) Facts: Nender discriminatory statutory rape law , punished males only. Ae of consent for females was 18!no ae of consent for malesif $oth were under 18! statutory rape for male! nothin for female.

$) 'ssue: the *uestion here is whether statutory differences for males and females under 18 reardin thecriminality of the act is constitutional

c) oldin: the court said that such statutory differences are constitutionali) the state had to present a ender9#alue $ased o$&ecti#e for the purpose of the statute

ii) the ct. says that there is a differential *uality to the act for the sees $c of real/#0i%al $i&&ere!%e0

males and females are not similarly situated.(1) $ecause they are not similarly situated! it is not ar$itrary to treat them differently.

iii) can"t really ma%e the statute ender neutral $c will create disincenti#e for #ictim of a crime to reportthe cost of the gender#neutral alternative is very high.

H) +ost%er #. Nold$er (181) (p.CH4)a) Facts: /ilitary 7electi#e 7er#ice Act re*uired reistration of males $ut not females.

$) oldin (+ehn*uist): the =ourt found the eclusion of women constitutional , +ehn*uist says that only needmen for com$at ($c only men are elii$le for com$at) so only men should $e drafted.i) this is a process approach to e*ual protection , arument is usually $ased on physical difference $ut here

the arument turns on one leal distinction $ased on another.

8) /ississippi @ni#. for omen #. oan (182) (p.CDC)a) Facts: /an wanted to o to women"s collee school of nursin

$) oldin: /iss. not allowed to eclude men from school of nursin.i) intermediate scrutiny applies to ender classifications affectin males as wellii) 'ntermediate scrutiny analysis ,


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a) gender-based affirmative actioni) e..! /iss. @ni#. for omen #. oan (182) (p.CDC)ii) e..! =alifano #. e$ster (1HH) (p.C83)

(1) Facts: social securities earnin formula was more fa#ora$le to women(2) oldin: upheld $y 7.=t. on theory that in the la$or mar%et there had $een past discrimination

aainst womenpermissi$le for =on. to set up different $enefits formula.

there are some suestions in these cases that ender conscious remedyin policies may $e accepta$le$) pure gender separation

i) first theory , separate $ut e*ual (why is o%ay re: ender! $ut not race)ii) second theory , physical differences

(1) averagedifferences #s. realdifferences (no loner similarly situated)(2) if you let men play soft$all! will push women out of soft$all , don"t ha#e that fear with lettin

women wrestle.

C. Alie!0

1) 7uarman #. ;ouall (1H3) (p.C8C)a) Facts: 0J law pro#ided that only American citi>ens may hold permanent position in the competiti#e

classified ci#il ser#ice.

$) oldin: emphasi>ed that the state $arrier does not co#er all hih policyma%in positions! $ut co#ered anum$er of menial onestherefore the restriction had little! if any! relationship to the state"s su$stantialinterest in ha#in an employee of undi#ided loyalty.i) -he ct"s scrutiny will not $e so demandin where we deal with matters restin firmly within a state"s

constitutional preroati#es , recognition of states historical power to e"clude aliens from participationin democratic political institutions.

2) ampton #. /aw 7un on (1HC) (p.C88)a) Facts: =i#il 7er#ice =ommission reulation $arrin resident aliens from employment in federal competiti#e

ci#il ser#ice.$) oldin: 7.=t. in#alidated the reulation

i) the =t. reconi>ed that o#erridin national interests may pro#ide a &ustification for a citi>enship

re*uirement in the federal ser#ice , thouh a! i$e!ti%al reuire'e!t 'a# !t @e e!&r%e$ @# a 0tate.(1) "ut=t said that the national interests offered in defense of the $an in this case were not properly theconcern of the =7= , thefed& govt& has plenary authority, only =on. or the eecI the agenciesdont have the authority

(2) $ue /r%e00 reuire0 tat tere @e a le2iti'ate @a0i0 &r /re0u'i!2 tat te &e$eral rule 8a0a%tuall# i!te!$e$ t 0erve te !ati!al i!tere0t, here there was no $asis for such a presumption.

3) /athews #. ;ia> (1HC) (p.C8)a) oldin: =t. held that =on. may condition an alien"s elii$ility for participation in federal /edicare

proram on (a) admission for permanent residence and ($) continuous residence in the @.7. for D years.i) =on.! under its $road power o#er naturali>ation and immiration! reularly made rules that would $e

unaccepta$le if applied to citi>ens , $ut disparate treatment of aliens and citi>ens did not demonstratein#idiousness

ii) deferential scrutiny , deferential to =on. , (seems li%e rational $asis scrutiny in the area of immirationand naturali>ation)

0tate la80that discriminates aainst aliens $y states is suspiciousstrict scrutiny

o rationalesuspicious of discrimination! animosity

0tate0 %a! li'it te vte a!$ i2 /liti%al &&i%e t %iti4e!0

state has no authority o#er unlawful aliens , can turn them o#er to the feds

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D. Oter Ca!$i$ate0 &r Su0/e%t Cla00i&i%ati!0

1) N!-Marital Cil$re!a) intermediate scrutinyis the la$el that ets put on this roup

$) there used to $e a presumption in many states that 6children meant 6children in wedloc% for rihtsi) from child"s perspecti#e! this is an immutable characteristic

c) the stronest arument that states ha#e for defendin such classifications in#ol#es the identification of thefather

2) Me!tal Retar$ati!a) Cle@ur!e v. Cle@ur!e Livi!2 Ce!ter(18D) (p.C3)

i) Facts: =ity denied permit for operation of roup home that would ha#e $een for the mentally retarded.0eih$ors complained $c they didn"t want it in their neih$orhood.

ii) oldin: the 7.=t. thin%s that this is !t a 0u0/e%t %la00i&i%ati!$ut determines that the ordinance isn"t#alid. -here was no leitimate purpose to only re*uire permits for mentally retarded. -he 2ver!i!20ta!$ar$ i0 rationality! not suspicious or *uasi9suspicious.(1) the =t. said that we should not $e enerally suspicious of separate classifications for the mentally

retarded $c: there are real differencesI these differences create certain pro$lems that need to $e dealtwithI o#t. aencies are enerally trustworthy when dealin with these aencies.

(2) =t. says that e#en if this case falls into rational9$asis re#iew! the Plai!ti&& 0till a0 te @ur$e! &/er0ua0i! t 08 tat tat /li%# 8a0 @a0e$ ! a $e0ire t ar' te 'e!tall# retar$e$ .(a) ? met that $urden in this casethere was no

iii) ti0 %a0e re/re0e!t0 a $iver2e!%e &r' r$i!ar# rati!alit# revie8 Brationality re#iew enerallymeans deference , yet here there was not the con#entional deference to political &udment as there would

$e with min. rationality re#iew(1) this loo%s more li%e heihtened rationality scrutiny than minimum rationality scrutiny

i#) ow could the city protect its interests in the future(1) e don"t want any more homes for the mentally retarded in the city'%uali(e in either direction&

(a) -ie the interests of the less ad#antae to the most ad#antae.($) 0o more roup uses in any of these neih$orhoods.(c) 7et up scheme of special permits for allM

3) Seual Orie!tati!a) Nenerally

i) Sta!$ar$ & Revie8, =t. has not decided whether this is suspect or *uasi9suspectii) hat if =on. amends =+A to include seual orientation and then a few years later repeals , is it

unconstitutional to repeal i%ely unconst.no loner o#t. inaction , o#t. can"t act out of $are desireto harm roup underRomer

$) R'er v. Eva!0 ()99: (p.H)i) Facts: Amendment to =olorado constitution which prohi$ited any o#t. action that would enact! adopt! or

enforce any ordinance or policy where$y homoseual or $iseual orientation or conduct could $e the$asis for any claim of minority status or claim of discrimination.

ii) 'ssue: ;o prohi$itin laws that protect homoseuals from discrimination #iolate e*ual protection

iii) oldin: Jes. the 7.=t. found the amendment unconstitutional , no rational $asis for the classification.=ourt says that law is the result of a!i'u0, the state can ha#e no interest $ut animus in this wholesaleapproach. But rejects heightened scrutinyand a//lie0 te rationality test&(1) the amendment denies to homoseuals the same protections that are etended to other roups and

nullifies eistin protections at all le#els of o#t.(2) e#en if there was a leit. state interest reardin certain elements of the pac%ae! the $readth and

scope of the pac%ae as a whole is too $road and $ased on pre&udicei#) there is not a word in +omer a$out homoseuality $ein a suspicious classification , the ct. is worried

a$out the military and marriae here

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17/45

(1) o#t. would ha#e a different $urden of proof if this was a suspect classification#) ;issent (7calia): Amendment prohi$its special treatment of homoseuals and nothin more.#i) )otential arguments on both sides:

(1) 'f the states can outlaw certain conduct of people of the same se (Bowers #. ardwic%)! then it canleislate reardin people of that class who enae in the conduct (7calia) , lots of pro$lems withthis arument

(2) -he law is on the $asis of seual orientation which should $e a suspicious classification

so should$e su$&ect to strict scrutiny. -his law undermines the e*ual protection participation of this class $cthe state constitutionali>ed the limitation. (upu doesn"t li%e this one $c it happens whene#er thestate constitutionli>es anythin

(3) the state shouldn"t $e a$le to put matters such as this to a referendum $c people ha#e their own$iases and pre&udices (this arument is wholly anti9democratic)

#ii) 's seual orientation a suspicious classifyin trait(1) First *uestionis this a roup that has $een eposed to pre&udice and antipathy(2) 7econd *uestionis seual orientation #isi$le is it immuta$le

(a) it is not #isi$le and it is up for de$ate whether or not it is immuta$le(3) 's seual orientation rele#ant to a$ility to perform certain &o$s! etc. 0o.(4) the case is a pretty powerful one for ma%in it a suspect classification.

c) Marria2ei) 0ot formally discrimination $ased on seual orientation , written in terms of malefemaleii) it is not de &ure discrimination $ased on seual orientation , $ut it is de facto&ust li%e in a #. o#in

d) Militar#, clusion of those who manifest homoseuality $y word or deedi) it is enouh to manifest a particular state $y %!$u%t! words

(1) no loner a$out 0tatu0no loner arued that it"s a proy for a$ility to do the &o$ii) *ould the military prevail under rationality review+

(1) rationality re#iew $ased on means9end relationship , what"s the relationship(a) ad#erse reaction ($ut could ha#e a ender9neutral non9touchin rule)($) #iolence(c) $ut not really different from interatin armed forces

iii) ould military sur#i#e under suspicious classification re#iew(1) $urden is shifted $ut national securitymore deference (Korematsu) , $ut perhaps would ta%e acloser loo% if the eclusion is so irrational

+omer and =le$urne are fre*uently paired toether as eamples of cases where the 7.=t. would or would not

0tret% rati!alit# revie8to reach a particular result , it doesn"t et stretched in +omer! $ut it does in =le$urne.

Burden 7witchin under the ;ifferent 7tandards of +e#iew:

o @nder 7uspicious =lassifications7trict 7crutiny

ih pro$a$ility that state"s moti#ation has discriminatory purpose! and we"ll flush it out with 7trict

7crutiny. ?resume it has $ad moti#ations! and we"ll ma%e them pro#e not.

o 'ntermediate re#iew

Aain! switch the $urden to the stateM pro#e it to us! that it"s necessary.

o +ationality re#iew

$n the ordinary case% we presume no bad motive% and so% we put burden on challenger to show no

plausible legitimate purpose to do so.

'n +omer this is successfulI 'n =lea$urn , somethin a$out the fact in =lea$urn! that the

court is willin to tihten up rationality re#iew. 7tretchin is o$#ious.

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E. Di0%ri'i!atr# Pur/0e a!$ E&&e%t< Te Pur/0e B Di0/arate I'/a%t Di0ti!%ti!

1) Jic% o #. op%ins (188C) (p.H13)a) Facts: 'f want to operate a laundry in a wooden $uildin! need a permit. -he $oard ranted permits to all $ut

one non9=hinese applicant! $ut none to the 2 =hinese applicants. A =hinese alien who operated a laundrywo a permit was imprisoned.

$) oldin: 7.=t. says that it doesn"t matter whether this type of discrimination is on the face of the law orunder the surfacethis is unconstitutional.i) this case is $efore strict scrutiny

c) ?rinciple: this case esta$lishes the rule that covert racial discrim. is as eually unconstitutional as overtracial discrim.

i) the $urden of proof in these type of cases is #ery difficult , it is on ? to show a pattern star% enouh toma%e a prima facie case

ii) ordinarily! in situations of non9randomness this is #ery difficult to pro#e! $ut in situations of randomness(li%e &uries) it is a $it easier.

d) the remedy here is o#erturnin his con#iction , this case is easy to remedy $ut many are not so easy

2) ,an race ever play a part in law enforcement decisions+a) o%ay in description of a particular suspect , not in#idiousI would $e inefficient to eclude the info

$) race9out9of9place arumenti) may$e we are more worried a$out the a$use of race than the use of face

3) ?almer #. -hompson (1H1) (p.H1D)

this case deals with policy that seem to ha#e racially neutral &ustification $ut seem to $e partially moti#ated

$y racial reasonsa) Facts: Lac%son! /iss. closed swimmin pools after effort to desereate! citin safety reasons , feared ci#il

disorder. 7uit filed assertin racial moti#ation in closin of pools. -here is e#en9handed application andimpact.

$) oldin: =onstitutional. =t. says that the court is not oin to o#erturn a case where it could $e &ustified onracially neutral rounds. -here is no racial in&ury here. on"t loo% at reasonin of decision9ma%ers if e#en9handed application. (-his is li%ely not ood law after ashinton #. ;a#is)

i) this case says! in effect! that the court does not want to hear proof of racial moti#ation when it is one ofmany possi$ilities f what miht $e a racially neutral policy

4) Wa0i!2t! v. Davi0 ()9,:(p.H1H)a) Facts: Blac% applicant to the ;= police force who had failed the ci#il ser#ice eamination $rouht an e*ual

protection challene $ecause a hiher percentae of $lac%s failed the eam than whites. -hey alleed that theeam was discriminatory in effect! $ut they did not allee that the discrimination was purposeful.

$) 'ssue: 's disparate racial impact alone enouh to esta$lish a #iolation of e*ual protectionc) oldin: 0o. Te %t. 0a#0 tat te %!0tituti! i0 %!%er!e$ 8it la80 tat are 'tivate$ @# a

$i0%ri'i!atr#purpose.

i) the ct. does not want to import -itle '' 6impact measures into the constitution (w -itle ''! need toonly show disparate impact! not discriminatory moti#e , $urden is on ? to show impact $ut then $urdenon state to show the necessity of the policy and that the same desired oal couldn"t $e achie#ed in a less

impactful way)(1) the ct. is afraid that the $urden would $e shifted to the o#t. not only in this area if it were imported

into the constitution $ut that it open up the doors to e#erythin $ein challened since someonewould $e affected disparately $y e#ery policy.

D) +oers #. ode (182)(p.H2C)a) Facts: +ural Neoria county , $lac%s ma%e up D3.CP of the population $ut only 38P of the reistered #oters

are $lac%. -he county has D commissioners! each of whom is elected at9lare and the county has ne#er $eendi#ided into districts. ach candidate for commissioner runs for a specific seat on the $oard and the #oters

18


19/45

may only #ote once for any i#en seat. 0o $lac% candidate has e#er won. 7uit is $rouht on rounds that thesystem of at9lare #otin #iolates the constitutional rihts of $lac%s $y dilutin their #otes.

$) 'ssue: =an at9lare! multi9mem$er #otin systems unconstitutionally dilute the #otin strenth of some#otes

c) oldin: Jes. At9lare #otin schemes in multi9mem$er districts tend to minimi>e the #otin strenth ofminority roups. hile not unconstitutional per se! this will #iolate the 14thamend. if it is implemented or

maintained with the intent of dilutin the #ote of racial minorities. -he 7.=t. says that ti0 0#0te' a0 @ee!maintained&r ra%iall# i!vi$iu0 /ur/0e0.i) the ct. says that there was no in#idious purpose at the time of enactment (no $lac%s #otin in 111) $ut

o#er time it $ecame in#idious , to preser#e white controld) Best way to understand this case:

i) this is a case from the 7outh where there is a deep history of racial discriminationii) especially in this specific county there is a social system of casteiii) this is a$out who is in %!trlo#er the future distri$ution of ood and ser#ices

(1) this is =aroline F04 (2) meets =aroline F04(3) , su$stanti#e rihts a$out su$stanti#e political input(2) part of what is oin on here is that this is a disparate election system $ased on race and the only

way to chane it is to chane the politics of the county , different from the #er$al test in ashinton#. ;a#is.

e) this case suests! $ut doesn"t say directly! that perhaps when the o#t. is responsi$le for the impact! then the

ct. will apply the impact model

C) Arlinton eihts #. /etropolitan ousin =orp. (1HH) (p.H21)a) Facts: A challene to a =hicao su$ur$"s refusal to rant a re*uest to re>one certain property from a sinle9

family to multiple9family classification. A nonprofit de#eloper planned to $uild federally su$sidi>ed housinunits in a larely white su$ur$ so that low income tenants! includin mem$ers of racial minorities miht li#ethere.

$) ;ecision: -he ct. found no showin of unconstitutional $eha#ior and reaffirmed the *ashington v& avisprinciplethat official action will not be held unconstitutional solely b&c it results in a raciallydisproportionate impact.

i) the =t. ela$orated on the 6su$&ects of proper in*uiry in determinin whether an unconstitutionaldiscriminatory purpose eists. -he =t. said that there are ways of pro#in racial discrim. in such cases:

(1) the impact of the decision($ut ordinarily impact will not $e dispositi#e proof of $ad purposes)(2) historical circumstances, what is the $ac%round of the decision ;oes it emere out of a history ofracial animosity (e.. ?almer #. -hompson)

(3) is this a substantive departure from prior policies(4) procedural irregularities in the $eha#ior of the decision9ma%er(D) contemporaneous statements$y decision9ma%ers(C) e"amination of the subjective motives of the decision9ma%ers ($ut this will only $e utili>ed in

eceptional cases).ii) I& #u are a@le t 'a6e a /ri'a &a%ie %a0e tat a $e%i0i! 8a0 tai!te$ @# ra%ial $i0%ri'i!ati! te!

te burden of proof shiftst te $e&e!$a!t t re@ut te /re0u'/ti! & u!%!0tituti!al a%ti! a!$

08 tat te ra%ial tai!t 8a0 a 0rt & ar'le00 errra!$ tat te# 8ul$ ave 'a$e te $e%i0i!a!#8a#.

iii) hy isn"t strict scrutiny appropriate here

(1) when you ha#e a decision that is neutral on its face! you may ha#e a decision that is #alid for otherreasons had it not $een tainted , some of these policies may $e leitimate and meritorious.(a) e don"t put policies that are neutral on their face to strict scrutiny li%e we do for o#ertly racial

policies.($) 't may $e that the innocent moti#ation may $e sufficient to sustain the policy in a mied moti#e

situation.

H) ?ersonnel Administrator of /ass. #. Feeney (1H) (p.H23) (racial purpose and se discrimination)

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20/45

a) ;ecision: the =t. re&ected a se discrimination claim challene to a /ass. law rantin 6a$solute lifetimepreference to #eterans for state ci#il ser#ice positions! e#en thouh the preference operates o#erwhelminlyin fa#or of males.i) the ct. says that when a statute is 2e!$er-!eutral ! it0 &a%eand is challened on the rounds that it has

a disproportionate effect on women! a t8-&l$ i!uir#is appropriate:(1) First! whether the statutory classification is indeed neutral in the sense that is not gender#based.

(2) 'f the classification itself! o#ert or co#ert! is not $ased on ender! then need to as% whether thead#erse effect reflects invidious gender#based discrimination.

$) ti0 %a0e 080 tat te $i0%ri'i!atr# /ur/0e a0 t @e te $e0ire t $ 0'eti!2 because& it0ar'&ul e&&e%t0, that it was donefor the reasonof harmin that roup.

F. A&&ir'ative A%ti!

1) A!te%e$e!t0< Te Pat t "a66ea) Freedman"s $ureau , o#t. a#e land to freed men post9sla#eryI land re9distri$ution

$) school desereation casesin districts where there had $een de &ure sereation! it is not enouh to &ustdesereate! must ta%e affirmati#e steps to interate (ha#e to $e race9conscious a$out who oes to schoolwhere)

2) Re2e!t0 & U!iver0it# & Cali&r!ia v. "a66e ()9,* (p.HD2)a) Facts: A medical school denied admission to a white applicant e#en thouh he had a $etter N?A! /=A-

score! and $enchmar% score than minority applicants who were admitted throuh a special admissionsproram. -he med school at @= ;a#is reser#ed 1C out of 1 spaces in its enterin class for minorities and aspecial committee was esta$lished to administer this proram.

$) 'ssue: ;oes it #iolate e*ual protection for a state school to prefer! solely on the $asis of race minority!applicants who are seeminly less *ualified than white applicants

c) ;ecision: (?owell) Jes. -he admissions prorams of state schools may achie#e di#ersity in the student $ody$y considerin the race of its applicants amongother factorsI howe#er! race may not $e the only factor usedto measure di#ersity.i) 0o one concurs with ?owell"s opinion and his 6lawful uses for race $ut he ets four concurrences

statin that the admissions proram is unlawful and that Ba%%e must $e admitted. And he ets anotherfour concurrences re#ersin the state supreme court"s in&unction aainst ;a#is from accordin anyconsideration to race in its admissions process.

ii) ?owell says that Title .$ of the ,ivil Rights Act is co-e"tensive with the e%ual protections clause ifsomethin is permissi$le under e*ual protection then it is permissi$le under -itle '. -hey are the same.(1) if this e*uation adheres! then whate#er the rule is reardin affirmati#e action in state uni#ersities

will apply to all pri#ate uni#ersities that et some federal fundin (which is #irtually all)(2) -itle '' (employment) has $een held to permit #oluntary affirmati#e actioni#es room to pri#ate

employers to $e race9conscious in ways that the e*ual protect clause does not i#e to pri#ateemployers. , interestin &utaposition of -itle ' and -itle '' , different relationships to e*ual

protection clause(a) -itle '' incorporates the impact theory! -itle ' does not

iii) Mai! ue0ti!hat should the standard of review$e (should it $e the same when minorities are

fa#ored as when they are disfa#ored)(1) ?owell says that he would re*uire strict scrutiny

(a) are the o$&ects %'/elli!2 e!u2to &ustify the race9conscious policy($) are the means chosen !arr8l# tailre$(c) ($ut what a$out =arolene F04. para 3 a$out politically powerless roups)

i#) ?oints raised $y ?owell which still dominate:(1) there will $e some #ersion of 0tri%t 0%ruti!#that will $e applied(2) the oals of affirmati#e action prorams reardin race as a proy will always fail(3) 8e! ra%e i0 !t a /r# te0e ave a %a!%eed in terms of 6fundamental rihts strand of e*ual protection

a lot of family cases can $e #iewed as either e*ual protections or due process9pri#acy cases

o unli%e procreati#e choice where the people are sayin lea#e us alone! marriae is a$out enterin into a

leal relationship with the state , the la$el of pri#acy doesn"t wor% really well with marriae ;oes the state ha#e to satisfy 0tri%t 0%ruti!#or can the state o a$out it in another way

o Traditional rights vs& innovative rights, there is a theme of traditional li$erties , we"re not oin to letthe state tin%er w that set of concerns , $ut if the state is reulatin in the traditional way and not reallydoin anythin new then we"re oin to let the state proceed

D. Seualit#

1) "8er0 v. Har$8i%6 ()9*:(p.DC8)a) Facts: A homoseual male! who had $een chared with $ut not prosecuted for pri#ate seual acts! sued to

challene the constitutionality of a law prohi$itin sodomy.$) 'ssue: 's homoseual sodomy a fundamental riht protected $y the ;ue ?rocess =lausec) ;ecision: 0o. H'0eual 0$'# i0 !t a ri2t /rte%te$ @# te $ue /r%e00 %lau0e a!$ 0tate0 'a#

%!0tituti!all# /ri@it 0u% %!$u%t.

i) if this is not a fundamental riht! then the law only needs to meet the minimum rationality standard,leislati#e interest(1) the ct. says that it does meet min. rationalitythe state arues that it is a moral choice.

ii) the court frames the issue as whether or not there is a fundamental riht to enae in homoseualsodomy , the statute is not this narrow thouhI it applies to all sodomy

it is arua$le that Nriswold esta$lished seual pri#acy as well as procreati#e pri#acy for married couples

upu thin%s that if +oe was decided correctly! then Bowers must $e decided wronly

d) Steve!07 Di00e!t: (upu thin%s this is the most important part of the case)i) 7te#ens is tryin to ma%e the e*ual protections clause do the wor% , says that under Nriswold married

people ha#e the riht to enae in sodomy. 'f that is the case! then it is etended to heteroseual peopleunder isenstadt! +oe.(1) the *uestion then $ecomes whether the state could prohi$it the act as enaed in $y mem$ers of the

same se 7te#ens says that the court"s prior decisions demonstrate that the fact that the o#ernin

ma&ority in a state has traditionally #iewed a practice as immoral is not a sufficient reason forupholdin a law prohi$itin the practice.

(2) A policy of selecti#e application must $e supported $y a neutral and leitimate state interest , thereis no $asis for applyin the law only to homoseuals

ii) what is at sta%e here is the riht to intimate association , this $rins it within the whole line of cases re:su$stanti#e due process , whereas the way the ma&ority frames the issue is #ery different

ermont has ci#il unions , can et material $enefits of marriae that are conferred $y state law

issue of same9se marriaes is tied up 6full faith and credit clause

o most states reconi>e marriaes from other states unless it contra#enes a stron pu$lic policy interest of the

state

6;efense of /arriae Act

o =on. declares that no state has o$liation under the full faith and credit clause to reconi>e same9semarriaes

o for federal purposes! same9se marriae does not *ualify as marriae

Bowers is not sufficient to &ustify a state"s $an on marriae is there anythin left to support the prohi$ition

o state can say that it has an interest in procreation and child9rearin , pro$lem with this is that there are lots of

opposite9se marriaes that don"t procreate , there is no policy of limitin marriaes to people who procreate

E. Te Ri2t t Die

2C


27/45

7tate law has four choices with su$stitute decision9ma%ers:

o decision9ma%er does what he thin%s is $est

o does what she would want them to do

o su$st. decision9ma%er not allowed to ma%e decisions li%e this unless it has $een eplicitly authori>ed in

writino not let anyone authori>e this , only a competent patient can authori>e

1) =ru>an #. ;irector! /issouri ;ept. of ealth (1) (p.DHD)a) Facts: =ru>an is in persistent! #eetati#e state. 7tate is relyin on su$stitute decision9ma%ers $c she isn"t

competent. /issouri law had re*uirement of 6clear and con#incin e#idence of what she would want inthese circumstances.

$) 'ssue: does the constitution for$id the esta$lishment of this procedural re*uirement $y the statec) ;ecision: the =t. holds that the constitution does not for$id the state"s procedural re*uirement and says that it

won"t mandate a particular rule that states ha#e to followi) ct. notes that a competent person has a constitutionally protected li$erty interest in refusin unwanted

medical treatmentd) ;issent: (Brennan) =ru>an has a riht to die with dinity.

2) Wa0i!2t! v. Glu%60@er2()99, (p.DH8)a) Facts: -erminally ill patients and their physicians sued to o#erturn a ashinton law that prohi$ited anyperson from causin or aidin in suicide.

$) 'ssue: 's a statute that $ans assisted suicide unconstitutionalc) ;ecision: 0o. A @a! ! a00i0te$ 0ui%i$e i0 !t u!%!0tituti!al! either on its face or as applied to

competent! terminally ill adults who wish to hasten their deaths $y o$tainin medication prescri$ed $y theirdoctors.i) this is the arument assumed in =ru>an $ut there is an additional step , that people ha#e the riht to

refuse treatment and there$y ha#e the riht to control the time of their death (i.e.! accelerate their death)d) the thcircuit loo%ed to troi%a opinion of =asey , $ut were not respectin the line of di#ision in the

su$stanti#e due process cases (7outer doesn"t accept this line of di#ision either):i) =an see two lines of cases in su$stanti#e due process:

(1) those a$out procreati#e choice

(2) those a$out traditional li$erties trump (Bowers! =ru>an! Nluc%s$er! etc.)e) in the end what is oin on in Nluc%s$er is that all the &ustices aree that for the ct. to reconi>e a riht to

physician9assisted suicide would $e to open up a whole lot of trou$le that states could not policei) fear that this could lead to an in#itation to families to %ill sic% elders $c of medical costs or out of

compassion or $oth.ii) also! how do you distinuish $w people that are terminally ill and those that are not

f) despite the fact that all the &udes aree! there is still a $it of hedini) Breyersays perhaps there is a riht to die wdinity that could $e compromised $y not reconi>in

this rihtii)


28/45

the $est way to understand the second amend"s place in the constitution is to loo% at the use of force in the

oriinal constitutionhow did the const. loo% at use of force how did it di#ide up $w fed. o#t. and states

1) -he way the oriinal constitution #iewed the use of force:a) Art. 1 7ec. 8 , =on. has the a$ility to raise and support armies $ut no appropriations of money to that use

shall $e for loner than a term of two years (if funds for army ha#e to $e renewed e#ery two years! there has

to $e a renewal of consent)$) Art. 1 7ec. 8 , pro#ide and maintain na#y

i) no time restriction hereii) fed. army was thouht of as a danerI na#y wasn"t , na#y also re*uires lare capital ependitures

c) Art. 1 7ec. 8 , =on. can call forth the militiai) fed. o#t. may orani>e! arm! and discipline militias when they are called into ser#ice $y the @7 (see

state powers for militias riht $elow)d) *here do the states fit in+

i) Art. 1 7ec. 1 , states can"t %eep troops or ships of war wo =on"s consentii) Art. 1 7ec. 8 , state ha#e power of appointment of officers and trainin of the militia

(1) indi#iduals were o$lied to ha#e the arms to $e useful if called up $y the unorani>ed militia

2) !$A'e!$'e!t, A well regulated militia0 being necessary to the security of a free state0 the right of the peopleto keep and bear arms0 shall not be infringed&!a) one theoryemphasi>es role of the pream$le , that it is desined to ensure that =on. may not interfere w

the ri2t & a 0tate t $e&e!$ it0el&$y disarmin the men who the state relied on to ser#ei) some state constitutions i#e the riht to $ear arms wo the militia *ualification

$) another theorythat the 2ndamendment! in addition to the militia reason! i#es the riht for people to $eararms for the /ur/0e & i!$ivi$ual /rte%ti!

3) ;id the 14th amendment transform the 2nd amendmenta) o#er time there has $een selecti#e incorporation , 2ndamendment! thouh! has ne#er $een incorporatedI $ut

this was $efore anythin was incorporated$) the oriinal militia statute restricted militias to white malesdoes the 14thamend. etend the 2nd

amendment to others

4) @7 #. /iller (13) (handout)a) Facts: /iller was chaned with mo#in an unreistered sawed9off shotun on interstate commerce. -he

0ational Firearm Act said that when the weapon was transferred you need to pay O2. -he arument ismade in the district court that the Act #iolates 2ndamend. -he lower court said that the Act did #iolate the 2 ndamend. -his case then comes $efore the 7.=t. only $riefed and arued $y the @7 , /iller fled.

$) ;ecision: (/c+eynolds) -here is ! !$a'e!$'e!t vilati!.i) -he ct. says that there is noreasonable relation$w the sawed9off shotun and use in a militia! so it

does not fall under the 2ndamendment.(1) implicit in the court"s wordin is the only thin we"re loo%in at with the weapons is whether they

would $e useful for the needs of a militia , te Ct. a00u'e0 tat te !$a'e!$. !l# $eal0 8itte %alli!2 u/ & 'ilitia 'e!.

(2) if it could $e shown that this shotun could $e used in a militiaa prohi$iti#e ta may #iolate the

second amend.c) reistrationfor the fed. o#t. to %now where all the weapons are located , may pro#e pro$lematic in #iew

of 2ndamendment protectin indi#idual rihts.d) oes 1iller preclude a federal prohibition on handguns+

i) it could $e read that way , the suestion is that if there was a reasona$le relations $w the weapon andthe militia that there could $e no prohi$ition on the riht to $ear the weapon.

D) 's there an arument that the 2nd amendment is an anachronism ('f #iewed in connection w the militia theory ofthe amendment)

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a) militia"s don"t really eistI there is now a federal armyI states ha#e orani>ed police and national uardsthe need for pri#ate indi#iduals to $e armed for the purpose of ser#in their state has e#aporated

$) could arue in opposition that the state miht yet aain want a militiac) when you epand the 2ndamend. to include indi#idual reason for $earin arms! then the arument that the 2 nd

amend. is an anachronism is #oided

C) @7 #. merson (Dth

=ir.) (21) (handout)a) Facts: ;i#orce proceedinsI durin the hearin /rs. merson alleed that merson threatened o#er the

phone to %ill the man with whom she"d $een ha#in an affair. +estrainin order issued aainst merson andautomatically! $y operation of law! he $ecomes someone who may not possess a firearm ($y federal law).

$) No#t. arument: ;enscould arue that the 2ndapplies to the states throuh incorporation or throuhsu$stanti#e due process

iii) merson arues that the rule sayin that anyone with temporary restrainin order can"t carry a weapon istoo $road

i#) No#"t says these are in&unctions and aren"t entered unless someone is li%ely to mis$eha#e! the rate ofunlawful un #iolence in domestic settins is #ery hih! and these orders are of limited duration , onlyuntil di#orce proceedins finish.

H) ow are we oin to measure if a law #iolates the 2nd amendment

a) U0er Re0tri%ti! Bpeople con#icted of a felony! people dishonora$ly dischared! children! are prohi$itedfrom ownin a un.i) ample , a person con#icted of a felony for possession with intent to sell pot. 0ow wants to apply for

a firearm. hat felons ha#e a constitutional riht to arms and which don"t , o#"t could arue that drucrimes are closely related to uns , could say limitation should $e cut $ac% to those whose cateory ofcrime and un #iolence.


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li$erty. -he 2nd! for self9defense the riht to %eep and $ear arms! is a su$stanti#e riht 999 could it $econsidered part of the matri of li$erty ' thin% 2 years ao it was pro$a$ly a fundamental riht.Fundamental li$erty to protect yourself.

c) I00ue Bwhat should $e constitutional stop ma%in political aruments a$out it.i) ;= prohi$its un ownership. 999 hih murder rate , does that #iolate the 2ndii) 's the riht to $ear arms fundamental in American society 'e! family! procreati#e rihts! etc

(1) 7u$stanti#e rihts 9 ard to eplain why they should $e limited to matters of procreation E family(2) istory E -radition , could arue historic riht to $ear arms in this country.(3) Arument $ased on a traditional riht to $ear arms has merit(4) )rivileges 2 $mmunities clause, the rihts arisin out of the relationship $etween the citi>ens and

the national o#t , ill apply to fed E statesd) upu , 2ndamendment only pre#ents outriht prohi$itions! not reulatory measures.

i) 'f 2ndAmendment rihts come into $ein , what would content $e ,(1)


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=asey said ha#in to notify spouse was an undue $urden! $ut 24 hr waitin period! different.

o Jou could say this is soooo infre*uent to sa#e say 14 li#es! you could say it"s enerally

unconstitutional.o ,ho should have burden of proof on efficacy of the reuirement-

ere! B+! so may$e o#ernment $ears $urden of persuasion.

A$out the 7cope 9 merson as applied to the 7tates9 oes the /ndapply to the states-9 I!%r/rati!

o ?al%o , first applies to the states! the matri! those indispensable to condition of liberty and

emocracy.o $s the right to have a firearm an indispensable condition of liberty and democracy- ,hich

century world view do we loo+ at-

o 'f there to protect states from the federal o#ernment , how could it be coherent to say it now

applies to the states- ;oesn"t *uite wor%.9 Privile2e0 a!$ I''u!itie0(14th) 7lauhterhouse

o Rights arising out of relationshipbetween citi(ens and 3ed government&

o ?etitionin! etc.

o $f right to +eep and bear arms% out of concern of tyrannical federal government%then the peopleget to +eep arms for this purpose% than any state law that would disarm the people% will destroy

that relati!0i/.

o 0retty good argument that the privs and ims clause would affect this.

9 Su@0ta!tive Due Pr%e005Priva%#o +iht of law a$idin citi>ens to ha#e thisM

o ?ri#acy! security , as apenumbra.

o 0enumbras aside 1 rights long protected at common law.

o Tra$iti!al l!20ta!$i!2 CL li@ert#

o ilemma for using traditional rights on what government can do&

o -radition , $loc%s inno#ati#e steps.

o Priva%# a!$ Per0!$

o 14th

as li$erty as su$stanti#e component.o )asey2 *ight to ma+e decisions over shaping of the self.

o Firearms , somethin a$out pri#acy! how you shape yourself and your relationship to the world.

Blue #. +ed states , you"d et different answers.

;II. FREEDOM OF EPRESSION AND THE FIRST AMENDMENT

A. Hi0tr# & te )0tA'e!$'e!t

1) Hi0tr# & te )0tA'e!$'e!ta) E!2li0 i0tr# Bthe only thin that people aree on is that one of the reasons for the 1 stamend. was the

prohi$ition on licensin of the press that was in nlandi) to print somethin you ha#e to et permission , this illustrates the daner of ha#in official control o#er

freedom of epression$) )0ta'e!$'e!t Bprohi$ited these prior restraints. -here was *uestion as to how much further than that the

1stamendment reaches. -here are cateories of speech crimes that came from British law that continued.c) Se$iti! A%t Bma%es it a crime to $rin the o#"t or officials into disrepute. -ruth is a defense $ut if the &ury

doesn"t $uy it you could o to prison. /any thouht that it was tyrannical. Lefferson pardoned those whohad $een con#icted and persuaded conress to repeal it. ?aradim 1stamendment case! that its desined

protect free flowin political dialoue.d) Civil War Su/re00i! Bof anti9union press durin the war

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e) )9+ - the 7upreme =ourt says that the 1stamendment applies to the states.

". Earl# Ca0e0< Te )9), E0/i!a2e A%t B Su@ver0ive A$v%a%#

the proimity to the daner is different in all three cases! in none of the cases there was no hih pro$a$ility that

the listeners would act *uic%ly on the urin.

1) S%e!%6 v. US ()9)9(p.H)a) Facts: An anti9conscription acti#ist was chared for #iolatin the spionae Act when he circulated leaflets

intended to hinder the @7" conscription efforts durin a time of war.$) ;ecision: (olmes) Te %!0tituti! /er'it0 te /u!i0'e!t & 0/ee% 8e! te 8r$0 are u0e$ i! 0u%

%ir%u'0ta!%e0 a!$ are & 0u% a !ature a0 t %reate a clear and present dangertat te# 8ill @ri!2

a@ut te 0u@0ta!tive evil0 tat C!2re00 a0 a ri2t t /reve!t.

i) =lear and ?resent ;aner , is a$out proimity(1) ncourain people on line for the draft to not do it #s. rihtin editorials in a paper , proimity is

much stroner when you tal% a$out people in line for recruitment! the a$ility to act *uic%ly inresponse to the speech is different as well.

(2) 'mae of lynchmo$ on &ail steps , someone in the crowd instiatin the others to ta%e matters intotheir own hands 999 physical proimity! temporal proimity! emotional proimity

ii) the character of e#er act depends upon the circumstances in which it is done(1) here the act leaflets were distri$uted on draft line(2) ct. says that the espionae act punishes conspiracies to o$struct as well as actual o$struction , if the

words are intended to do the same then they need not $e successful in order to warrant ma%in theact a crime

2) Frohwer% #. @7 (11) (p.H1)a) the first amendment was not intended to i#e immunity to e#ery possi$le use of lanuae

$) in this case! the circulation of the paper 6was in *uarters where a little $reath would $e enouh to %indle aflame , this fact was relied upon $y those that sent the paper out.

3) ;e$s #. @7 (11) (p.H2)

a) 6if a part or the manifest intent of the more eneral utterances was to encourae those present to o$struct therecruitin ser#ice and if in passaes such encouraement was directly i#en! the immunity of the eneraltheme may not $e enouh to protect the speech.

Nee$ine throuh the postal

ser#ice! claimin that the maa>ine o$structed military efforts in #iolation of the espionae act.$) 'ssue: /ay the epression of opinions! critici>in a law! that fall short of directly callin for the #iolation of

the law $e punished for ad#isin others to #iolate the lawc) ;ecision: 0o. in a law may not $e punished as encourain the #iolation of the law unless

the full meanin of the epression directly counsels or ad#ises others to #iolate the law as it stands.i) Lear!e$ Ha!$comes up with a different way for drawin lines $w protected and unprotected ad#ocacy

, he &%u0e0 ! te %!te!t & 8at i0 0ai$(1) it is not only necessary that you ure the act $it also that you tell someone that it is in their

interestduty to do it , they 'u0t @e 8r$0 tat directly%u!0el t %ri'e(2) and says that we shouldn"t reach too $roadly into the speech that critici>es war! etc! 99 if we do so!

we will $e underminin the enterprise of dissent , dissent is part of the pro&ect of democracy

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D) Ha!$70 A//ra% ver0u0 Hl'e07 A//ra%a) olmesproimity to daner

$) andfocus on words! not proimity to danerI only if it is direct counsel to crime should $e find them in#iolationi) and"s #iew is rather enerous to spea%ers , i#es a lot of leeway

ii) and"s #iew i#es a lot more uidance to spea%ers as to what *ualifies and what doesn"tiii) and"s approach disappears from the law after this case and shows up a$out D years later as one of the

elements of the rule in Branden$ur

C) A@ra'0 v. US ()9)9(p.H4)a) Facts: +ussian immirants were con#icted for distri$utin leaflets urin a eneral stri%e at a munitions

factory in an effort to pre#ent the use of munitions aainst +ussian re#olutionaries$) ;ecision: ?unishment under the espionae act is constitutional where the indi#iduals intend to produce an

outcome that o$structs the @7 in its prosecution of the war.c) Hl'e07 Di00e!t: -he ma&ority"s con#iction of the A$rams defendants are not supported $y their pu$lication

of the two leaflets.i) this statute has a specific intentre*uirement unli%e in 7chen%! Frohwer%! and ;e$sii) these defendants were not tryin to affect the war wNermany , they were concerned w the Bolshe#i%sthey didn"t ha#e specific intent

iii) olmes tal%s a$out imminence, proimity in timete $a!2er a0 t @e immediatea!$ severe.(1) here he adds imminence to his clear and present daner test

i#) olmes" /ar%etplace of 'deas:(1) the process is what is important , will produce efficient! sensi$le results(2) the $est place to test ideas is in the mar%etplace of ideas , people ha#e e*ual access to the mar%et(3) what a$out mar%et failures there won"t $e an echane of ideas when someone yells 6fire in a

crowded theater.

C. Te Re$ S%are Ca0e0 B Su@ver0ive A$v%a%#

in the 12s we et some cases that are different from the spionae Act cases (which in#ol#e urin someone to

do somethin that can $e a crime

proimity to crimes looms lare) , in 6+ed 7care cases! the court re&ects theidea that proimity is in#o#led

1) Gitl8 v. N> ()9+(p.84)a) Facts: a socialist produced and distri$uted a manifesto which ad#ocated the o#erthrowin of the @7 o#t. in

#iolation of 0J"s anarchy law$) ;ecision: the clear and present daner test does not apply to state laws! where the state leislature has

determined! in the constitutional eercise of its police powers! that certain %inds of utterances in#ol#e suchdaner of su$stanti#e e#il that they may $e punished.i) It i0 alri2t &r te N> le2i0lature t $e%i$e tat tere i0 a! u!la8&ul %la00 & uttera!%e0, here! a

eneral class of speech aimed at o#erthrowin the o#t.(1) =t. says that Nitlow"s speech falls win this class and i#es deference to the leislature

c) ;issent: (olmes) if the protections of the due process clause encompass the 1stamend"s freedom of speech!

then the clear and present daner test should applyi) here! there was no present daner of an attempt to o#erthrow the o#t.ii) he is aruin a%in to what he arued in A$rams.

2) Wit!e# v. Cali&r!ia ()9,(p.88)a) Facts: a mem$er and orani>er of a radical communist party was con#icted under a criminal syndicalism

statute e#en thouh she did not intend for the roup to use #iolent and unlawful tactics. $ecomin a mem$erof an orani>ation that tauht ideas that Nitlow said could $e outlawed.

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$) ;ecision: A state may! in the eercise of its police powers! punish pu$lic utterances inimical to the pu$licwelfare as incitin crime! distur$in the pu$lic peace! or threatenin the unlawful o#erthrow of orani>edo#ts.

c) "ra!$ei0 C!%urre!%e: (endorses clear and present daner test)i) this is the first reat 1stamendment opinionii) Brandeis says that the 2vt. u2t t @e a@le t a@le t li'it te a$v%a%# & %ri'e 8e! tere i0

imminent harm(olmes had said this)(1) Brandeis says that this has an important social function , the affirmati#e political duty of speech(2) up until now! the emphasis on 7.=t. opinions has $een on ris%sdaners of speech , $ut Brandeis is

tal%in a$out! for the first time! the ris%s of repression of speech(a) Brandeis says that ha#in no outlet for your ideas will yield $ad thins , if you repress people

who are aitated a$out somethin! you eliminate their hope and dri#e them to #iolence($) Brandeis has a safety outletB i& te 0/ee% i0 i! close proximitytgravea!$ serious$a!2er

te! /era/0 it %a! @e 0u//re00e$.(i) imminenceis important $c only if there is no time for discussion can you &ustify the

suppression , if there is time for ood counsel and self9reflection! then the o#t. can"tsuppress

(3) his idea draws from the polis , that people come toether to listen and to sol#e pro$lems(a) society ouht to ta%e most of the ris%s of harm , the limit comes when the speech produces

imminent daner or serious harm

$w the 12s and the 1Ds the court doesn"t chane the law on incitement in any apprecia$le way

3) De!!i0 v. US ()9+)(p.D) (6clear and present daner restated)a) Facts: A roup of communist conspirators were prosecuted under the 7mith Act for conspiracy to o#erthrow

the o#t.$) ;ecision: (?lurality opinion) hen speech or pu$lication creates a 6clear and present daner of attemptin

or accomplishin a prohi$ited crime! the o#t. may constitutionally restrict that speech and a con#ictionrelyin on the speech and press as e#idence may $e sustained.i) it ma%es no sense that the o#t. has to wait until attempted o#erthrow of the o#t. is imminentii) the plurality relies on earned and , when the daner ets as reat as an attempt to o#erthrow the

o#t.! then the re*uirement of imminence ets relaed(1) te're 0eriu0 te $a!2er te &arter a8a# &r' te $a!2er #u %a! @e t u0ti %!vi%ti!c) =oncurrence (Fran%furter): says that a con#iction in a case li%e this will silence people , $ut that national

security sta%es are #ery hih and it is not up to the court to $alance those interestsI that is for the leislaturei) we should defer to conressii) this is interest9$alancin with stron deference to the leislature $c of forein policy implications

d) ;issent: these people were nowhere near o#erthrowin the o#t.i) danerous ideas cannot $e suppressed , these people were only teachin ideas , if they were perhaps

teachin methods of terrorism that would $e differentii) this is #ery anti9ochnerian

4) Oter S'it A%t %a0e0, all are decided in the uise of statutory interpretationa) Jates #. @7 (1DH) (p.12)

i) will limit to ur2i!2 t a%ti!rather than merely $elie#e in somethin , ha#e to pro#e that people aread#ocatin action and not &ust that they $elie#e somethin

$) 7cales #. @7 (1C1) (p.12)i) Facts: deals with mem$ership clause of the 7mith Act which made it a felony to %nowinly $ecome a

mem$er of any orani>ation that ad#ocates the o#erthrow of the @7 o#t. $y force or #iolenceii) ;ecision: 0eed to pro#e not only %nowin mem$ership in a roup that is of unlawful purposes! $ut 'u0t

ave specific intentt &urter teir /ur/0e0.(1) 7o you could say '"ll $e a mem$er! and ' %now you want to o#erthrow the o#ernment! $ut ' don"t

support that part.

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(2) 3ou cant be convicted of unlawful membership in the group.

D. Te M$er! I!%ite'e!t Te0t


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ii) not o#er$road , and purports to sol#e the pro$lem of am$iuity , e.. if there was a history of #iolencein a relationship then a statement such as 6you"ll reret it may $e unlawful , $ut if there is no #iolence!then li%ely won"t $e

iii) ; says that the statements were made in pu$lic and that there was no showin that the spea%ers werethemsel#es the ones of whom the doctors were afraid

c) will the 1stamend. tolerate a 6reasona$le person standard as opposed to a su$&ecti#e intentionality standard

upu thin%s that there miht need to $e some intent re*uirement , to instill fear or threat

4) ow is A=A different from =lai$orne ardware (p.18)a) 'n =lai$orne! 7.=t. o#erturns #erdict aainst 0AA=? , 7.=t. understand the statement as thouh 3rdparties

may enforce the $oycott$) distinction=lai$orne is impersonal! A=A is personal , doctors are identified $y name

E. Fi2ti!2 Wr$0 (2e!erall# !t /rte%te$

1) Nenerallya) harm depends on impact to listener , once uttered you"#e created the harm

$) $n all these cases 1 when loo+ing at the imposition of liability 1 thin+2i) hatUs rule of law

ii) hat harms are they tryin to surpressiii) And what"s the connection

2) =antwell #. =onnecticut (14) (p.111)a) Facts: Leho#a"s itness playin record on street which insults orani>ed reliion and +oman =atholics and

outraes people around him. =antwell is chared with $reach of peace.$) ;ecision: state cannot outlaw annoyinoffensi#e utterances on the street

i) in the a$sence of a statute narrowly drawn to define and punish specific conduct as constitutin a clearand present interest of the state! cannot outlaw annoyinoffensi#e utterancesthere is no narrowlydrawn statute here , it is simply a $reach of peace #iolation.

ii) ct. says that te /00i@ilit# tat 0'e!e 8ill 2et a!2r# i0 !t e!u2

3) =haplins%y #. 0 (142) (p.112)a) Facts: Leho#a"s itness con#icted under 0 statute which said that no person 6shall address any offensi#e!derisi#e! or annoyin word to any other person who is lawfully in any street or pu$lic place! not call him $yany offensi#e or derisi#e name.

$) ;ecision: the main theory a$out fihtin word in this case is that the 8r$0 'u0t te!$ t i!%ite a!i''e$iate @rea% & te /ea%e.

i) 7e#eral crucial elements:(1) the words must $eface#to#face(2) average addressee(3) tend to incite immediate breach of peace

ii) one of the mysteries of this case is whether it is audience9sensiti#eiii) the ct. here is reactin to the historical understandin if the 1stamend. , that certain types of utterances

are historically ecluded from first amend. protection

4) Noodin #. ilson (1H2)(p.113)a) ;ecision: 7tatute is found #oid $c it is o#er$road , it swept in protected speech ranin $eyonf the fihtin

words punisha$le under =haplins%y , the statute had not $een limited to face9to9face or to the a#eraeaddressee.

it is a mista%e to thin% of the 1stamend. as whether certain types of words are protected , te )0ta'e!$. i!vlve0

ri2t0 a2ai!0t rule0 B ri2t0 !t t @e %!vi%te$ r /u!i0e$ u!$er %ertai! t#/e0 & rule0

te /0t-Ca/li!06# &i2ti!2 8r$0 %a0e0 are a@ut rule0 tat 'a# @e e%e00ive r ver@ra$.

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D) Ce! v. Cali&r!ia ()9,)(p.11D)a) Facts: A war protester was con#icted of distur$in the peace when he wore a &ac%et $earin the phrase 6Fuc%

the ;raft to a A courthouse. 't is important what =ohen was chared with , he was not chared under astatute that is focused on communication , he is chared under a %!$u%t0tatute.

$) 'ssue: @nder the 1stamend.! can states suppress speech that contains offensi#e epleti#es on the round that

these words inherently cause a distur$ance of the peacec) ;ecision (arlan): U!le00 it i0 li6el# t i!%ite la8le00!e00 a!$ vile!%e te 2vt. %a!!t re0tri%t 0/ee%

0i'/l# @e%au0e it i0 &&e!0ive.i) arlan says that you ha#e no riht to ha#e your sensi$ilities protected in pu$licii) there was no o$scenity here , there was no erotic messaeI o$scene implies eroticiii) this is not a fihtin words case $c it is not face-to-face, there was no personal insult (if we treat the

=haplins%y fihtin words rule as narrow in this way which upu thin%s you ha#e to)i#) the only theory offered $y the state that arlan says that the ct. really has to ta%e seriously is that there

are some words that are so offensi#e that the state can %eep them out of the pu$lic discourse(1) arlan responds in two ways:

(a) there is afair warning problem, how will people %now what words are on the list(i) the state could et around this $y ma%in a list of particular words

($) lanuae is chosen for many reasons , sometimes it is an emoti#e force , 0/ea6er0 ave

aut!'# ver %i%e & 8r$0 @5% tat /la#0 i!t te e'tive &r%e & la!2ua2e allowedto use lanuae that is su$#ersi#e! shoc%in , it is a ood way to et attention

d) ;issent (Blac%): Blac% says that this is conduct! not speechnot protected $y the first amendmenti) this doesn"t fly thouh $c it was his word choice! not his manner that lead to arrest

Ce! i0 a@ut te &ree$' t @e utra2eu0, 6one man"s #ularity is another man"s lyric , te 2vt. %a!7t

re2ulate ta0te i! la!2ua2e

F. I!ur# t Re/utati! B Li@el

1) Beauharnais #. 'llinois (1D2)(p.12C) (Nroup li$el) (also see in con&unction whate speech)a) Facts: An 'llinois criminal roup li$el law which prohi$ited the pu$lishin! sellin! or ehi$itin in any

pu$lic place or any pu$lication which portrays depra#ity! criminality! unchastity! or lac% of #irtue of a classof citi>ens of any race! color! or creed or which eposes them to contempt! derision or o$lo*uy! or which isproducti#e of $reach of the peace or riots. Beauharnais! pres. of the hite =ircle eaue! had orani>ed thecirculation of a leaflet settin forth a petititon callin on =hicao officials to halt $lac% 6encroachment onwhite people.

$) 'ssue: whether the 14thpre#ents a state from punishin such li$els directed at desinated collecti#es andflarantly disseminated

c) ;ecision: the =t. says that 'llinois had the power to pass such a law , li$elous utterances are not within thearea of constitutionally protected speechi) this ma%es roup li$el a crimeii) this is inconsistent w Brande$ur and =haplins%y

2) N> Ti'e0 v. Sulliva! ()9:1(p.128)

VVV this is the sinle most important decision in the history of 1stamend. ad&udicationa) Facts: /ontomery! Ala$ama"s police commissioner sues the 0J -imes for purportedly li$elous statements

printed a$out police actions in Ala$ama , a roup had pu$lished an ad in the paper charin that 6anunprecedented wa#e of terror was suppressin across $lac% protestors in the south and #arious more specificclaims.

$) 'ssue: =an a pu$lication or a mem$er of the pu$lic $e lia$le in damaes for spea%in out aainst the actionsof a pu$lic official

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c) ;ecision: A /u@li% &&i%ial %a!!t re%ver $a'a2e0 &r a $e&a'atr# &al0e$ t i0 &&i%ial %!$u%tu!le00 e /rve0 tat te 0tate'e!t 8a0 'a$e 8it actual malice, that is% with +nowledge that it was

false or with rec+less disregard of whether it was false or not.

i) can"t reco#er damaes unless the statement has $een made with a%tual 'ali%e(1) this case fails the test

ii) for the first time the 7.=t. constitutionali4es the law of libel(1)

now li$el laws implicate 1st

amendment concerns and must $e measured aainst the 1st

(2)

d) what is the harm of defamation+

i) in&ury to reputationii) pecuniary harm , harm $usinessiii) social and dinitary harm

e) the S&,t& turns the common law of defamation upside down 7 why+

i) the common law rule had made defamation tortious and there was strict lia$ility , truth was a defenseii) they turned the law on its head $c it could ha#e silenced or limited press co#erae of a #ery important

ci#il rihts mo#ement.f) 7o why do we ha#e this #ery press protecti#e rule

i) Di&&ere!%e i! te ar'0ii) Wrrie$ a@ut Sel&-Ce!0r0i/

(1) @nder 7 they would sensor themsel#es , o% with car manufacturers , we wantthem to self9sensor.iii) Mar6et Pla%e & I$ea0Ce%60 a2ai!0t $e&a'atr# &al0e$0.

(1) (Brandeis in hitney) a harm that more speech can cure.(2) *hen public officials are defamed for matters of their official conduct0 there will be sufficient

opportunities to reply and correct 7 and theyll make their way into the public discourse&(3) $dea is the public officials engaging in official conduct% will have adeuate means to respond.

3) ?ushin


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(1) actual in&ury is not limited to out9of9poc%et losses , could include in&ury to reputation! mentalanuish! etc.

(2) &r /re0u'e$ r /u!itive $a'a2e0 'u0t u0e N>T 0ta!$ar$

iii) ?owell eplained that the state interest in compensatin in&uries to pri#ate indi#iduals was stroner thanin the case of 6pu$lic fiuresthis distinction made a less demandin standard of lia$ility here

D)

;un and Bradstreet! 'nc. #. Nreenmoss Builders (18D) (p.138) (7peech on matters of pri#ate concern)a) Facts: the alleed defamation in#ol#ed a pri#ate credit report i#en $y ;EB to a $an% reardin Nreenmoss!a construction contractor , the report erroneously claimed that Nreemoss had filed for #oluntary $an%ruptcy.

$) ;ecision: (plurality) We! $eali!2 8it 0/ee% re2ar$i!2 /rivate /e/le a!$ 'atter0 & /rivate%!%er! te 0tate %a! i'/0e 8atever lia@ilit# 0%e'e it 8a!t0 eve! 0tri%t lia@ilit#

i) =t. found that credit reports in#ol#e nothin of pu$lic concernoutside of Net> principleii) A ma&ority of the court re&ected the claim that the rele#ant distinction was $w the media and other forms

of communicationno difference b#w media and non-mediac) -wo Wuestions ur%in

i) )an you ever say that this is really on a matter of private concern-(1) -hird parties do ha#e an interest in their economic well9$ein.

ii) "ajority found no distinction between press and everyone else.(1) 't could ma%e a difference if the ?ine inter#iew a$out the $om$in! a maa>ine decides to do a parody. ine #. Falwell (188) (p. 13) ('ntent. 'nflict. motion. ;istress) (@nanimous)a) Facts: 7uit $y Lerry Falwell see%in damaes aainst ustler on $asis of parody.$) ;ecision: ct. declined to hold $roadly , they held that a /u@li% &i2ure &&e!$e$ @# a! utra2eu0

'a2a4i!e /ar$# %ul$ !t re%ver &r te trt & IIED 8itut a 08i!2 & te a%tual 'ali%e

reuire$ @# N>T.c) $f mar+ed clearly% so reasonable reader +nows its not held out to be true, so lon as it is not held out as a

fact! you can"t sue

G. Priva%#

1) =o Broadcastin #. =ohn (1HD)(p.142)a) Facts: father sued $c of the $roadcastin of the fact that his dauhter had $een a rape #ictim

$) ;ecision: =t. held that %ivil lia@ilit# i! a true /riva%# a%ti! %ul$ !t @e i'/0e$ u/! a @ra$%a0ter&r a%%uratel# /u@li0i!2 i!&r'ati! relea0e$ t te /u@li% i! &&i%ial %urt re%r$0.

i) =o prohi$ition on the restriction of lawfully o$tained truthful information , includes the identities of&u#eniles and #ictims of seual offenses

2) Florida 7tar #. B.L.F. (18)(p.143)a) Facts: a newspaper had pu$lished the name of a #ictim of a seual offense , o$tained from a police report

made a#aila$le in the police dept"s press room. -here was a state law $arrin pu$lication of the names ofsuch #ictims.

$) ;ecision: held the law unaccepta$le.

3) Bartnic%i #. opper (21) (p.143)

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a) Facts: case in#ol#ed the illeal interception of a cell phone con#ersation $w two union neotiators for the?enn 7tate d. Assoc. , they were discussin a possi$le stri%e aainst a local pu$lic school district in heatedterms. -he call was secretly intercepted $y an unidentified person who turned it o#er to a local citi>en who inturn a#e the tape to a local radio tal% show which played it on the air.

$) ;ecision: =t. said that where the pu$lisher of information has o$tained the information in *uestion in alawful manner $ut from a source who has o$tained it unlawfully! the o#t. may not punish the ensuin

pu$lication $ased on a defect in the chain.(1) the fact that it was initially o$tained unlawfully doesn"t affect it(2) this is trut&ul i!&r'ati! &public%!%er!

ii) the ct. assumed that the interception was intentional and unlawfulthe disclosure of the tape #iolatedfed. and state statutes

H. Seuall# E/li%it C''u!i%ati!

1) -he law $efore /illera) $w 1CD91H3 the law of free epression was crystalli>ed in se#eral arenas , Branden$ur! 7ulli#an! =ohen!

/iller$) Before 1H3! reardin the law of o$scenity:

i) =haplins%y notes that the o$scene is not protected $y the 1stamendment (i.e.! the o#t. can reulate) , it

had also said that a$out li$el which was pro#en wron in 7ulli#anii) $einnin in the 1Ds! the 7.=t. made some effort to fit o$scenity into 1stamend. constraints

c) istorically! there are se#eral pro$lems w o$scenity:i) fair warnin#aueness how do you create standards of o$scenity which draws clear lines as to what

is accepta$le and what is notii) the relationship $w o$scenity law and art , suppression of art (this is less true today than it was)iii) what speech harm does o$scenity cause (this is the most persistent pro$lem)

(1) o$scenity is more remote and speculati#e than other speech harmsi#) 'f there is any harm from seually eplicit speech! is there any mar%et failure here suestin a criminal

element(1) is this the %ind of harm that more speech can cure

d) -wo ideas a$out o$scenity! adopted from nlish law! that were re&ected in +oth:

i) o$scenity can show up in isolated passaesii) the notion that you would measure the effects of the material $y their affect on suscepti$le o$ser#ers

2) +oth #. @7 (1DH)(p.1C2)a) Facts: a pu$lisher and a mail order $usiness are con#icted under federal and state statutes for mailin

o$scenity! for lewdly %eepin for sale o$scene $oo%s! and for pu$lishin an o$scene ad#ertisement.$) ;ecision: hen an a#erae person applyin contemporary community standards feels that the dominant

theme of some material! ta%en as a whole! appeals to prurient interests! the o#t. can! wo offendin theconstitutional uarantees of the 1stamend.! reulate the material.i) the wor+ has to be viewed as a whole, can"t loo% at isolated passaesii) need to loo% at the effect on average personsiii) focus on theprurience of the materiali#) the offensi#eness of the presentation transcends community standards

c) the reason that o$scenity can $e suppressed is that it is wor% that is 6utterly wo redeemin socialimportance. , this is offered as a rationale! not a standard to $e measured aainst

3) ;e#elopments $w +oth and /iller:a) 7tanley #. Neoria (1C) (p.1CC)

i) the state cannot criminali>e the possession of o$scene material , this is a pri#acy caseI the case is limitedto pri#acy of the home , doesn"t apply to distri$ute! etc.

$) @7 #. +eidel (1H1) (p.1CH)

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i) affirms that there is no riht to distri$utesell , therefore! the state can ma%e it contra$and , $ut once youet it home! you"re o%ay.

c) the =t. is really splintered ,i) Blac% and ;oulas thin% there should $e no law of o$scenityii) Brennan had mad the 6utterly wo redeemin social importance rationale into a standard

4) Miller v. Cali&r!ia ()9,3(p.1C8)a) Facts: ;istri$utor of unsolicited o$scene ad#ertisin $y mail was prosecuted under an anti9o$scenity law

$) 'ssue: =an state leislatures pass leislation reulatin the dissemination of o$scene material wo offendinthe 1stamendment

c) ;ecision: one certain esta$lishments

$) the theory of >onin ordinances is not that the speech is $ad $ut that these places concentrated creates a $addistrict , often means spreadin the places outi) it is a theory of secondary effects , crime! reduction in property #alue! etc.

e#en as /iller tried to create a sta$le platform for

Documents

Constitutional Law II - Lupu - 2