Individual Rights Lecture

CON LAW IND RIGHTS 1/10/06 Jim McGoldrick Primarily 14th Amendment Main body of the Constitution does not protect individual rights. Framers told states if you pass the main body, then the first Congress will propose Amendments that protect individual rights. And that is what happened. 12 Amendments were proposed and 10 of those are called the bill of rights. Problem is that the bill or rights apply only to the Federal government. The 14th amendment talks about states. In the 14th amendment there was a privileges and immunities clause that was supposed to be broad but it got killed. There was also the due process clause, and that became shaped and formed to protect individual rights. 5th amendment and 14th amendment both have due process clause. 5 th amendment applies to Congress, 14th amendment applies to States. Neither one can deny due process. Initially due process was a reference to jurisdictional limits of the courts. Minimum contacts were needed, etc. It also meant that you had a right to procedural fairness, a right to a fair hearing. The due process clause of the 14 th amendment was used to make applicable to the states the most important parts of the first 10 amendments. All but the 5 th amendment right to grand jury and 7th amendment right to civil jury were made applicable to the states. By substantive due process we mean the level of protection the due process clause gives to things you might be doing. The states can use its police powers to limit our behavior, but the due process clause imposes limits on the degree of the states use of its police power. Reasonable Basis Test: If law is reasonably related to gov‟t interest then gov‟t could restrict activity. Weaver v. Palmer Bros Case: Gov‟t banned the use of recycled materials in making clothes. Gov‟t said they banned this to prevent spread of disease and prevent fraud (passing of used clothes as new clothes). These are obviously governmental interests. But does the law reasonably advance a legitimate governmental interest? Court says no. First, if the material was sterilized then it did not lead to the spread of disease. Second, with regard to fraud, you don‟t have to ban the recycled material, you just have to require proper labeling. Lockner Case: State law banned bakers working more than 60 hours a weeks. Basis was to protect spread of disease thought bread, but principally to protect health and safety of bakers. Court said the test is reasonable basis, but then in applying the reasonable basis test they applied it in a way that was inconsistent with the normal way of applying it. Usually they uphold the law



unless there is good reason not to. In Lockner, the court strictly scrutinized the law. They say that this law is inconsistent with the right of each private employee to contract their own hours. Court also says this law is on the side of labor and that is not permissible for the government. Parish case: Court rejected Lockner and Weaver. Court adopts the rational basis test. At the Supreme Court level, since 1937 when it came about, no case has been struck down because of the rational basis test. It is the most commonly applied test. Laws restricting substantive interests must rationally relate to some legitimate governmental interest. There are two parts:  There be some legitimate governmental interest  Law rationally advances that interst Carolene Products Company Case – Congress under the commerce power passed a law banning the sale of milk filled substitutes. There was a product that took skim milk and added coconut oil to get the sensation of whole milk. Purpose for the ban, the gov‟t claims, is health and fraud. The substantive interest being restricted in the case is the interstate shipping of Millnut (this milk substitute product). So the law must rationally relate to some legitimate governmental interest. First we look at the legitimate governmental end. Here they are health concerns and fraud. Those are legitimate. Second part is that the law must rationally advance that governmental end. There is really no health concern in the substitution of the fat. But that does not matter because the legislate choice is to be preferred over the judicial choice. The court will uphold it unless there is no conceivable justification for it. So the test is really whether it is conceivable in the mind of the legislature that it advances a legitimate governmental end. What about fraud? It rationally advances the concern for fraud but it could just be labeled properly. It doesn‟t matter. The law was uphold. Williamson v. Lee Optical – Oklahoma passed a law trying to protect mom and pop optometrist. The law said you can‟t have an optometry store in a department store, it must be free standing. Also there was a law that prevented opticians from replacing broken frames unless there was a prescription. The law prevents you from going to low cost places for glasses. You have to go to your optometrist. Are there legitimate governmental ends? Regulating eye health. Court can find its own governmental purpose. Does it rationally advance eye health? Yes, because when you go to get your lenses fitted you may have new eye problems, this law promotes people going to optometrists and encourages regular eye health. The Court does not say that it actually promotes eye health, it just says that the legislature may have thought that. Danielson Case: Only life insurance agents can sell burial insurance. Mortuaries can not sell it anymore. South Carolina passed the law because insurance companies bribed them. The Court said we don‟t care what the real purpose was. Maybe the purpose was to address the evil of this high profit insurance, and maybe life insurance agents will be more responsible than mortuaries, so that is enough to pass the rational basis test.



1/12/06 1) Identify the issue. You see a law limiting a substantive interest where no other test seems to be applicable. 2) Then you use the rational basis test. Start with the nutshell of the law. Laws limiting substantive interest must rationally relate to a legitimate governmental end. First talk about the legitimate ends part. This is very easily satisfied. The facts or the law may or may not tell you what the legitimate ends are, the court will invent legitimate ends. All that is required is that it is conceivable that it advances the end. It does not have to actually advance the end. In the eye health case, the findings of fact by the trial court is that the law was needless, provident, and useless. Use facts and state the conclusion. Burden of proof is on the person challenging the law. It is a heavy burden of proving the negative – that there is no rational basis. In Missouri v. Daybright – Law was passed that all employees were given 4 hours off to vote. Encouraging voting is a legitimate governmental interest. Employers was saying, why is it my responsibility to pay them to vote. Employer said that there was no rational relationship between being an employer and voting. Court has used due process clause to limit punitive damages. Three factors in determining punitive damages are excessive.  Proportionality b/n compensatory and punitive damages – single digits  Look at the reprehensibility of the conduct  Compare punitive damages with civil and criminal penalties available for the same behavior Contract Clause Contract clause and no taking clause are two levels of interests that receive a higher level of protection because the constitution elevates them. Art. I Sec. 10 says no state may impair obligations of contracts. 5 th Amendment says no taking without compensation. States can limiting contracts in advance, but can not retroactively impair obligations of existing contracts. Blaisdell Case: State passed a law that said if you failed to pay the mortgage, it would not immediately go into foreclosure. You had a longer time to cure the default. It did provide that you had to pay interest, etc. The court said that while this was a retroactive change of contract rights, it was justified because the goal was to alleviate effects of the depression. Balance preexisting contract rights with valid public purpose. El Paso v. Simmons: Texas sold public lands with favorable terms in order to fund education, etc. One of the terms was that when you paid your down payment, you did not really have to pay other payments, because you were allowed to cure the default for such a long time. So you pay the down payment and then wait till it gets valuable to see if you want to cure the default. Texas



then passed a law that said no longer unlimited time to cure the default, must cure within 5 years. The state is now abridging his contract rights. Court said vital utilization of public resources was valid public interest and thus the law was ok. After these two cases people thought contract clause interests were not given more protection. Remember the contract clause only applies to state and local govt impairing contract rights. Federal govt. can do what it wants with regard to contract, just a due process rational issue with the federal govt. In 1977 Rehnquist Court decides to hold up the contract clause again. U.S. Trust Company v. New Jersey: In 1957, NY and New Jersey entered into contract to build bridges. They were going to charge tolls and hold the tolls to pay the debt. States needed the toll money for other stuff. Bond holders sued. New York and New Jersey then entered into a statutory contract that said, ok we will pay you guys the tolls again. Then the states need the money again and take it for themselves. They repealed the statutory covenant. The bondholders sued and said state can not repeal the covenant because they are impairing obligations of a contract. Court said can not repeal, state says we have a public purpose, we are using the bond money to buy railroads. Court said that is a public purpose but the bondholders don‟t care about that. Allied structural steel v. Spannaus: Before you had a vested pension plan with Allied you needed to work for them for 15 years. Minnesota passed state law providing for vesting in 10 years. Court said that violates the contract clause. Changing the number of years to vest was a substantial change inconsistent with pre-existing contractual rights. Court gets overwhelmed with contract clause cases so they retreat a bit. Modern analysis is on 549-550. Energy Reserve Case: Test is public purpose balancing. Here is what you do:  1st – There must be substantial impairment (any kind of impairment is not enough), but it is broad test. Look at reasonable investment based expectations. If it hurts this then it is substantial impairment. Also look at the degree to which the govt regulates this type of activity. Look to see if there is a history of regulation.  2nd -- if there is, there must be some significant and legitimate public purpose which justifies such impairment (override the harm of restricting contractual rights).  3rd -- and any changes imposed on pre existing contractual rights must be based on reasonable conditions and those new conditions must reasonably advance whatever the public purpose might be. In the Blaisdell case, the court lengthened the time in which the mortgage holder could cure the default, but on the condition that the mortgage holder paid the proper interest. There was a reasonable balance. That is the kind of balance you are looking for.



Exxon Case: Alabama passed the law adopting a new severance tax. All the oil brought out of the ground is subject to a severance tax. Contrary to pre-existing contracts, the energy companies had to pay the tax. The court said that is a substantial change, but justified by the blah blah. Easy to justify. 2nd prong is that there just a significant and legitimate public interest. 3 rd prong is the balance between the competing interests. No-Taking Clause 5th Amendment made applicable to the states by the 14 th. 5th says no taking of private property for public use without just compensation. Just compensation part is not a big deal in this class. This means the market value just prior to the announced taking. One point, if the state wants to do a taking and deprives someone of use, then decides not to take it, they still have to compensate for the period of denial of use. Berman v. Parker – Public use part of it. If the use rationally relates to a legitimate public purpose then it satisfies the public use part. 1/17/06 If the use rationally relates to a public purpose then the govt. can take from one private person and give to another private person. What is a taking? Can be taken, or can be a regulation (changing zoning). If the regulation is so great then it is considered a compensable taking. If something is not a compensable taking, then it is simply a due process rational basis issue. If a compensable taking, then the govt. has to pay for it. The line between the two is far from clear. Basic approach is a matter of sifting and weighing. It is hard to distinguish between the two. Euclid Realty Case – Change in zoning laws. Property was zoned for business, but changed to residential only. This cut the value a lot. Court said it was not a compensable taking. Reasoning was that zoning givith and zoning takith away. Zoning change was not considered a compensable taking. Modern approach. There are two per se takings. Then there is an overall approach (Penn Central Balancing). Lucas Case (p. 551) -- One per se category is when regulatory use allows no economically viable use of the property. The second per se category is when there is a physically occupation, or a physical taking. If you don‟t have either of those per se categories, then there is another approach called Penn Central Balancing. Look at three factors in balancing the competing interests. 1) The extent of the taking (how much, value); 2) The nature of the taking; 3) The harm to reasonable investment based expectations (why do people by the property and how does the regulation effect that)



Lucas Case – Guy bought beachfront property, he wanted to build homes on them. After hurricane hit that area, govt. said can‟t build any permanent structure on it. So what can he do with it now? Can sun bathe on it. Can kick other people off. Can rent it out to people camping. It has some value still. When the court says no economically viable use means principally no economically viable use. It still has some value, but the court deemed that the value was basically gone so it was a compensable taking. Basically if all economically viable use is taken then it is a compensable taking with one exception. There is a nuisance exception – If your use of the property is considered a nuisance then it could be regulated as to take away all economically viable use. One of the difficulties with the Lucas case, in other situations it can be difficult to know when there is a taking. p. 562 – Tahoe case – 32 month moratorium on building in order to develop a comprehensive plan for building. Argument was that it was a 32 month taking and they should be compensated. The Court said that a moratorium in order to develop a viable plan was not a compensable taking at all. The court does talk about partial takings being compensable, but they did not find one in this case. The second per se category – The Loretto case. In order to encourage and for the ease of the development of cable TV, the city required that the for a de minimus fee the cable companies were allowed to run wire and put a box on top of apartment complexes. The Court said that was a compensable taking, the city has to pay for the value of the area on the roof that the box was placed on. Another case, state allowed other boats to go into a private marina and use it, that was a per se taking. Physical invasion can be of any type. It can be actually allowing people to go in and use it, but can also be noise or smell. Like if there is an airport built next to you. Famous case is where planes flew over a chicken ranch and made the chickens nervous. Nervous chickens lay eggs with a thin shell. These thin shelled eggs are not worth as much. This was a compensable taking. Penn Central Case – City declared Grand Cental Station a landmark and people were denied the right to build a large structure right next to it. But people that were denied the right build next to Grand Central could take that right and build somewhere else in the city against the zoning laws. The court found that the landmark law was not a compensable taking so all that was required was that it rationally relates to the govt. Interest in preserving landmark. 1) Extent of the taking. Did not take the full value of the air rights, because it allowed them to build elsewhere. 2) Nature of the taking – in the nature of a zoning type of law, this type of law is least likely to be found a compensatory taking. 3) Reasonable investment expectations – Penn Co. bought a railroad station and they were denied the right to build a hotel. But they still had a railroad station. p. 569 –



Exactions. What are they? Conditions govt. imposes when a change of use of property is requested by property owner (use this test only for exactions) (Condition for a change of use). The Nolan case imposes limits on exactions for the first time. Nolan‟s have a little beach front property in Ventura. Nolan‟s wanted to build a nice place on the property. At that time the California Coastal Commission had to approve any buildings in there jurisdiction. CCC would not let the Nolan‟s build a large house on this property unless the Nolan‟s would give a lateral public easement. An easement running parallel to the beach. They want to give visual access to the beach back to the public. The actual purpose was to provide walking access along the beach, but they said it was to provide perpendicular access to the beach. The court said there was no nexus between what was taken and the reason for the taking. The court said that the parallel easement does not provide perpendicular access so that is a compensable taking. The test is that you have to give a reason that bears an essential nexus with what you are taking. The Nolan test is very simple, just a nexus between the taking and the purpose for the taking. The Dolan Case – This case requires something additional to an essential purpose. Dolan wanted to build a bigger hardware store. Dolan had to give a piece of property to the city. She also had to dedicate a strip of land for pedestrian bikeway. The land was taken in order to protect the water runoff, then they took a bike-path for the purpose of decreasing traffic congestion. The essential nexus test was satisfied. But the court adopts an additional requirement, a rough proportionality between the exaction and the harm caused by the change in use. The harm here is less water run off in the flood plane area, and more traffic congestion. The court says the rough proportionality is similar to a reasonable relationship test. What did the court say? What about the requirement for her to turn over some land in fee simple in order to protect the flood plain area. The problem is that this does not prevent the city from building on it. It does not prevent development. If they had put a zoning on that piece of land not allowing building on that part then that would be ok. Because it was not proportional then it is a taking and city must pay for it. What about the bike path thing? They are not sure, they don‟t believe the bikes will offset the traffic congestion but they say there may be a rough proportionality. They remand it. These cases apply only to exactions. If there is a change of use the city can impose conditions as a result of granting a change of use. But they must meet the Nolan and Dolan test in order for the exaction to be valid and not be considered a taking. Rent Control Case – Dude owns a mobile home and he says the combo of rent control and the law that he could not kick someone out of the mobile home was a taking. He argued physical per se taking. Court said you should have argued Penn Central Balancing but you didn‟t so you lose. FUNDEMENTAL RIGHTS The normal test is going to be rational basis. Carolina Products footnote says that some interests get a higher level of review (strict scrutiny). Higher level of review where the political process doesn‟t work very well. Such as:  Restrictions on Free Speech  Classifications against minority interests What kinds of interests get that higher level of review?



Griswold v. Conn: The right to privacy is found in the due process clause – Liberty can not be taken without due process. That is where is all substantive interests are found. Normal protection is a rational basis test. With regard to privacy, the court says it is a fundamental right so it needs a higher level of protection. Court says it is fundamental because even though it is not mentioned in the constitution, it relates to a number of provisions in the constitution. It has a penumbral relationship. What are some of the provisions that have a penumbral relationship with privacy?  The 1st amendment give you the right to remain silent. Freedom to keep private, personal thoughts.  4th Amendment – Right against unreasonable search and seizure.  3rd Amendment – Protects you from keeping soldiers in your home  5th Amendment – Privilege against self-incrimination Court says this right to privacy is fundamental because it bears a close relationship to rights that are specifically mentioned. Free speech is fundamental because it is specifically mentioned in the constitution. Court also says the right to privacy is fundamental because of past precedent. Past cases have said right to privacy is fundamental. Court also says we as a society value privacy greatly. Particularly marital privacy. There is a concurring opinion that says it is not the above 3 things, but the 9 th amendment that says what the fundamental rights. 9 th amendment just says there are more rights than those enumerated in the constitution. The 9th amendment is not very helpful because it does not give guidance as to what those rights are. 1/19/06 The Compelling State Interest Test – Strict Scrutiny as opposed to rational basis. Laws that limit fundamental rights must be narrowly tailored (or necessary) to advance compelling state interest. 2 part test:  Compelling state interest  Is the law necessary/narrowly tailored to advance compelling state interest (requiring a close fit between the law and the purpose). The court will determine if there as less drastic alternative ways of achieving same govt. purpose without severely limiting the fundamental right. 3 fundamental rights: 1) Privacy, 2) Right to Vote, 3) Travel interstate What falls under right to privacy? Right to marry, right to child rearing.



The starting place is Griswold. Married people have the right to decide about contraceptive use. Another case made that applicable to single people. Roe v. Wade extends that to the right to make procreation decisions. There is a limit, that is a majority of the court has never agreed that minors have the right to privacy to make those decisions about contraceptive use. Carey case: No compelling state interest to prevent minors from buying condoms at a drugstore. They struck the law down, but did not agree on the reason for it. Whalen v. Roe – Does the right to privacy actually include the right to keep things private? Whalen case does not really answer that. Law required that doctors send all medical prescriptions that are issued to a govt. database. The assertion made was that requiring that prescriptions be given to state invaded their right to keep medical condition private. The holding was that there were sufficient controls on the use of the information that it did not invade privacy. The purpose of the law was to prevent legal prescription drugs from entering the illegal market. Info could not be used for any other reason. Moore v. City of Cleveland: There was a law that allowed people to live together only if they were in the same familial line. There was a cousin living there which was in violation of the law. This is a restriction on the fundamental right of privacy to certain family/child rearing matter. The difficulty is that it is not clear what number of things are included in the protected aspects of child rearing. p. 603 – Michael H. Case: Law in CA that presumes the husband is the father of any child that is born during the marriage. Wife has an affair with neighbor were a child was conceived. She wants to go back to the husband after a period of time. CA law presumes that the husband is the father and the natural father has no rights with regard to the daughter and vice versa. In this Michael H. case the fundamental right to child rearing is not involved so they just use the natural basis test. Law restricts the right of a natural father to have rights to kids. As far as the rational basis test: 1) Legitimate govt. end is to protect the integrity of the family; 2) not being able to challenge the fatherhood of a child rationally advances that interest. Why is this not part of the fundamental right to make child rearing decisions? First off there is no precedent. Scalia says that the tradition of respecting the family unit trumps the right to make child rearing decisions. Basically hard to determine if an interest is going to be considered as part of the fundamental right to privacy with regard to child rearing. Troxel Case – State of Washington gave certain right to grandparents. Mom did not want grandparents to have visitation rights. The court gave grandparents visitation rights. She challenged the law. Court would not say that all such laws are unconstitutional. They said that they might be constitutional, but they said the absolute preference of the grandparents over the will of the mother violated her fundamental right to make child rearing decisions. Zablocki Case: Wisconsin law that says a person can not get married if the person is in default with regard to child support benefits and the children is receiving public welfare. Must pay the



past due support to get married. Court says this law involves the fundamental right to marry, so strict scrutiny must be applied meaning there must be a compelling state interest. Interest is to get father to pay. There are many other ways to get this accomplished, put him in jail, garnish wages, etc. What about other laws that restrict right to marry? Must be 16 to marry, no marriage between first cousins, requiring marriage license, etc. This is all rational basis review. What about to get married you need on male and one female? Don‟t know. Most regulations of marriage do get a rational basis test. Those restrictions that get a compelling state interest level of review are those cases that have significant unreasonable restrictions placed on marriage. Roe v. Wade – Texas law criminalized getting an abortion. Court found that right to privacy included all procreation decisions and that included the right to decide up until the beginning of the 3rd trimester. The court broke it up into 3 trimesters. During the first trimester is was the choice of the female and her doctor. The govt. had no compelling state interest in the fetus therefore applying the compelling state interest test, the right to privacy won. During the second trimester the court recognized a greater risk to the life of the female, and the court left open the possibility that the state may regulate abortion during the second term as protecting the life of the mother. It may pass the compelling state interest test. During the start of the 3 rd term, the fetus is considered viable and the state has a compelling state interest in protecting the fetus. But even in the 3rd trimester, if there is a choice between the life of the fetus and the life of the female, the life of the female is to be preferred. Casey Case – Looked like there were 5 justices that were going to overturn Roe. But that did not happen. In Casey the court said they abandoned the trimester approach. What is important is the point of viability. This is when the fetus is capable of sustaining life outside the female. Prior to point of viability, the test is undue burden. State may not place an undue burden on the female. After point of viability, there is a compelling state interest to protect the life of the fetus with life of female preferred. With regard to abortion. Many states have record keeping requirements. The court has upheld most of record keeping requirements. The only ones they have struck down were ones that made records public, even when the name of the female was erased out, but there was so much info that people who knew the woman could tell it was her having an abortion. With regard to medical requirements, the court has mostly struck down limits on the medical procedure, including restriction on partial birth abortions. It is up to the doctor to pick the safest method. However, in instances where the medical procedure is designed to protect the life of a viable fetus if it is viable, then there can be restrictions (like requiring a second doctor). This is for late second term or early 3 rd term abortions. Can also require more tests to confirm that the fetus is not in fact viable. Spousal consent – Spouse does not have the right to consent, don‟t have a right to notice. Put parental consent in dealing with minor has been held to be ok. Can impose law requiring notice to parent, but there must be a judicial bypass option that is judge decides that in this particular circumstance no notice is required. The judicial bypass itself must allow the judge to make one of two decisions. Must provide the judge with both choices. 1) Must provide the judge with the option of deciding that the minor is sufficiently mature to make her own choice; also 2) Even if



he minor is not mature, then in the best interest of the minor an abortion can be allowed without notice. SOMETHING ABOUT WHAT IS AN UNDUE BURDEN AND WHAT IS NOT. The notice requirement was trying to influence the decision of the minor, but it was not an undue burden. 24-hour waiting period was not an undue burden. 1/24/06 Parental consent and/or notice is what he is talking about. There must be a judicial bypass. If judge finds the minor is mature enough to make decision herself, or if judge finds the abortion is in the best interest of minor, or the notice or consent is not in the best interest of the minor. Also, judicial bypass must be expedited and must protect minor‟s confidentiality. Partial birth abortion – Nebraska banned a procedure that was used right at the point of viability. In 5-4 decision the court found the law to be unC. They found this because the Nebraska law was written in an ambiguous way that it could also be used to ban the most common abortion procedure. Also, the Nebraska law did not provide for a medical emergency exception. Harris v. McRae and Mayor v. Roe was that funding decisions with regard to abortion decisions get a rational basis level of review. If the govt. has a rational basis can distinguish between funding full term pregnancies as opposed to funding abortions for indigent people. Rationally relates to the state interest in a healthy fetus. Russ v. Sullivan – President Regan made order that planned parenthood clinics that got federal funds could not give any info with regard to abortion. That was challenged as being in violation of free speech of doctors and nurses and it violated a female‟s right to choice. Not getting the full info that the clinic should be giving violates her right to privacy in her right to choice. Court said this is a funding decision so the level of review is rational basis. Goal is to promote fullterm pregnancy and that rationally advances the interest. Other case is where state hospitals could not perform abortions. Court said that all state hospitals as funded by the state, therefore the ban was a funding decision, thus the level of review was rational basis. Equal Protection Clause. Very similar to due process rational basis, but sometimes one is better argument than the other. Railway Express Agency v. NY – Law banning ads on the side of vehicles. Substantive right restricted, right to use vehicles to advertise. State wants to avoid distraction on the road so rationally relates to that. What about equal protection rational basis, this may be a better argument. The argument here is that the law classifies unfairly. The classification must be rational.



The law said you could have ads for yourself, but not ads for others. Does this classification rationally relate to legitimate gov‟t ends? The end is still traffic safety. What is the distinction between ads for self and ads for others? You test the law as it generally works, and generally speaking ads for others are more distracting than ads for self. Ads for others are the product of PR companies and AD agencies and they are extravagant. Ads for self are generally just words on the side of the car. Passes rational basis test. Williamson v. Lee Optical – The law that did not allow people to get glasses from opticians. Challenging on Equal Protection Clause, because people don‟t need to go to optometrist to get readers. A whole class of people never going to the doctor, what about the point to encourage regular eye visits? The court says there is not a very good reason for it and the equal protection does not require that all classes be treated alike. The govt. may decide to handle the reader problem later. In this case due process is a better argument. Police officer over 50 must retire. This is classification based on age, this gets a rational basis level of review. Govt. interest is more fit officers. Age as a classifier rationally relates to this govt. interest. The guy in the case took a test and was the most fit person. Doesn‟t matter, look at the overall effect of the law, not how it applies to the particular person. a. FCC v Beach - congress has given FCC to set rate regulations for cable industry, and they exempted satellite TV systems where buildings were commonly owned and adjacent to the extent that no streets had to be crossed. Framed as a EPC issue b/c of the exemption of the commonly owned buildings. i. Classifications – all other cable companies versus satellite system ii. Does this classification rationally relate to a legitimate/permissible governmental end? (What justifications?) fairness and rate regulation 1. To help out smaller cable companies (but the people exempted weren‟t small operators!) 2. Maybe owners of buildings can negotiate special deals for customers 3. Since these are conceivable purposes, these are enough (it doesn‟t have to be real – it just has to be conceivable to pass the RB test) 1/26/06 Rational does not mean reasonable, just means there is some conceivable relationship. b. US R&R Retirement Board v. Fritz – Congress is concerned about the insolvency for pension plan for RR employees, b/c these employees qualified for 2 pension plans (“double dipping”); congress wants to be fair but also wants to get rid of double dipping. Gov drew a line drawn based on how recent rather than how long an employee‟s railroad



service had been was constitutional. 20, double pension. i. Classification; This is rational and survived EP b/c rational relation in rewarding people who are currently working. So, the less senior employees may have received more benefits then the senior people (19yrs) if the senior person is no longer an employee. Congress thought that be being currently connected, was a rational reason. c. Schweiker v Wilson - congress would not give supplemental security to people institutionalized in prison b/c of crime, but it said you get money if institutionalized in one that qualifies for Medicaid…problem with this law is that the medicaid reference excludes a lot of people who are in private mental hospitals (people who don‟t qualify for Medicaid) so not just criminals are being excluded i. EP: would not have a problem excluding criminals ii. Holding: it classifies, but classifications rationally relate to legitimate governmental concerns ( iii. Court upholds the law – it passes the rational basis test (everything passes it), and this shows that even though the court applies the RB test, it is conceivable that the justification is there - it is a serious advocation of judicial responsibility. RB test not working well here. d. Morey v Doud – Regulation of currency exchanges - requires a person to have a bond to exchange money – unless the money order was issued by AEMX. Struck statute that imposed requirements on all issuers of money orders except AMEX. One example of striking a law down. i. Court reviews as a Closed classification b/c AMEX was only company named so subject to stricter review than rational basis. ii. RULE: Closed Classifications are viewed more strictly in applying the RB test than others. (Only co‟s with assets more than 5 bill are exempted is an open class) Closed Classifications are view much more strictly than open classifications. Closed is “AMEX is exempt.” No one but Amex can be exempt. Open is “those with 5 Billion in assets are exempt.” Anyone can become exempt. But then Duke overrules this and says either way it is the same rational basis test. Race Based Classifications Law that says people on jury in a town must be White, Male, Citizens, over 21. This law classifies on 4 bases. Classification based on Race is scrutinized more strictly than the other 3. The other 3 get rational basis test but not race.



Classifications based on race are inherently suspect. They can be justified by a compelling state interest (modern approach). 1. Loving v. Virginia – law: prevented racially mixed marriages, so couple left state to get married and came back, they were convicted. a. Holding: (1) marriage is a fundamental right, so CSI applied. And (2) preventing marriage solely on racial classifications violates EP clause. 14th Am prevents any use of race as a classifier and considers it suspect, receiving strict scrutiny, so use CSI. Equal protection clause prevents race being used as a classifier absent satisfying the compelling state interest test. Laws must be narrowly tailored to advance some compelling state interest. Court will look to see if there are other less harsh ways of advancing a compelling state interest. Race and ethnic origin are treated alike. 1/31/06 Equal protection clause of the 14th amendment has no application to the federal government. Equal protection involving federal govt., talk about the equal protection component of the due process clause of the 5 th amendment. Swan v. Charlotte The Court said the court has the ability to use all remedies that are reasonable, feasible, and workable. Swan said that race was used to create the wrong, so race could be used as a remedy for correcting the wrong (race based discrimination/segregation in schools). But the court said they did not approve the strict use of racial quotas. What about a remedy that leaves one race schools? Any kind of remedy is looked at overall, and a remedy may be constitutional even if it leaves some single race schools. They allow approved of the drawing of attendance zones and altering them to achieve a racial mix. They also addressed bussing, the court said that as long as the bussing was reasonable, feasible, and workable, then bussing could be used to achieve racial desegregation. Swan also said that the court only has the ability to remedy a constitutional violation and that is state imposed segregation (de jure). The have no authority to remedy de facto segregation (that is race based segregation that is based on societal or cultural reasons). Federal courts only have the authority to remedy de jure segregation (segregation as a result of intentional state acts). The bottom line is that the courts have no authority to remedy most segregated schools, because most of it is a result of de facto segregation.



Currently today there is a higher degree of segregation than at the time of Brown v. Board in 1954. Virtually all of it is de facto segregation. In another case the Court said that courts have the duty to remedy all vestiges of the affirmative discrimination that occurred prior to „54. In Miliken v. Bradely said that only remedy possible is to combine the Detroit school system, with the suburban school district. The only remedy that will work will be to ignore the district lines, and desegregate across district lines. The remedy ignored the various district lines. The problem was that the court could only remedy a constitutional violation. The evidence only showed that the Detroit school system was violating the constitution, the suburban schools were not party to the suit. Once the de jure segregation has been remedied, the court loses its authority, any de facto segregation that results is beyond the authority of the court. If the school board has made a good faith effort to eliminate the last vestiges of de jure discrimination to the degree practicable, then the federal court loses its authority. And any later segregation that is a product of de facto discrimination is not within the authority of the court system. Up until that point, the courts can mandate that the school system work to alleviate the vestiges of past de jure segregation. New Issue, does the supreme court have the authority to assess property taxes in violation of the state constitution, in order to get the funds to provide a remedy? The court said, yes the federal court has that authority, but it shouldn‟t use that authority unless no other remedies would work. In other words, the court ordered that Missouri needs to fund certain schools to a tune of an additional $450 million. But, the state gets to decide how to raise that money and do it. Only if the state refuses to do it, then the court can order a raise in property taxes. Later it was decided that the remedy was not valid either, the court wanted the state to spend all this money to make an elite private like, public school system. The court then said that even if there was no discrimination there would never be this elite expensive pubic school system, the remedy was not proportional to the harm. b. Desegregating Universities i. US v. Fordici – Mississippi had a university system where there was 5 white & 3 black campuses, they failed to take steps to remedy this segregation. After Brown, Miss starts to run a race-neutral admission program and by 1992 they were mixed but still predominantly either black or white. Holding: not enough to have neutral admissions, they had a affirmative obligation, a const duty to remedy b/c



student choice did not mean the state wasn‟t pushing a dual system. 2/2/06 Gender Based Discrimination There is a special commitment to preventing race based discrimination. Reed v. Reed – There was a law that determined who could be the administrator of a minor‟s estate if the minor died. This law preferred parents over ants and uncles (preferred closer relationship), and also preferred males over females. As far as preferring people with closer relationship, we use the rational basis test. State wants ease of administration and it is better to have people with closer relationship (legal relationship) administering the estate. This passes the rational basis test. We don‟t look at the particular case, it is sufficient that overall parents have a closer relationship than ants and uncles. What about the law preferring men over women? Are fathers more likely to have the skills to administer the estate than mothers? In 1971 women did not play a major role in society as far as business fields. But the court said it failed the rational basis test. Instead of just preferring fathers over mothers, the probate court must take a hearing to consider who is the best for the job. This is inconsistent with prior rational basis decisions. Frontiero v. Richardson This case dealt with benefits to spouses in the military. If the person in the military was male, their wife was presumed to be dependent and thus there were increased benefits. If the person in the military was female, their husband was not presumed to be dependent, thus no increased benefits. Craig v. Boren An Oklahoma law prohibited the sale of "nonintoxicating" 3.2 percent beer to males under the age of 21 and to females under the age of 18. Curtis Craig, a male then between the ages of 18 and 21, and a licensed vendor challenged the law as discriminatory. Level of review applied was called intermediate review. Classifications based upon gender must substantially relate to an important governmental interest. 1) look at the end (must relate to an important governmental end, more then legitimate but less than compelling), 2) look at the relationship (must be substantially related to this important end, the modern view is that it has to be narrowly tailored advance the important end). For this second part of the test the court will consider reasonable alternative ways. The intermediate test is almost a pure balancing test. Court will weigh state interest v. the need to use gender based classification. The important end was to addresses the issues with abuse of alcohol, particularly driving under the influence. Does this classification relate to the gov‟t interest? The court said no. The data shows that young men were far more likely to be involved in an alcohol related offense. But the court says the numbers misleading because the overwhelming number of males are not



committing offenses and are not abusing alcohol, so that is no reason just to treat all males this way. What about alternatives? Increase law enforcement, limit amount permissible to buy, etc. Michael M Case – Michael M., a 17 and 1/2 year-old male, was found guilty of violating California's "statutory rape" law. The law defined unlawful sexual intercourse as "an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years." The statute thus made men alone criminally liable for such conduct. Michael M. challenged the constitutionality of the law. Did California's statutory rape law unconstitutionally discriminate on the basis of gender? No. In a plurality decision, the Court held that the law did not violate the Equal Protection Clause of the Fourteenth Amendment, noting that "young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse." The Court found that the state had a strong interest in preventing "illegitimate pregnancy." The Court noted that "[i]t is hardly unreasonable for a legislature acting to protect minor females to exclude them from punishment. Moreover, the risk of pregnancy itself constitutes a substantial deterrence to young females. No similar natural sanctions deter males." Rostker v. Goldberg After the Soviet Union invaded Afghanistan in early 1980, President Jimmy Carter reactivated the draft registration process. Congress agreed with Carter's decision, but did not enact his recommendation that the Military Selective Service Act (MSSA) be amended to include the registration of females. A number of men challenged the constitutionality of the MSSA, and the challenge was sustained by a district court. Did the MSSA's gender distinctions violate the Due Process Clause of the Fifth Amendment? In a 6-to-3 decision, the Court held that Congress's decision to exempt women from registration "was not the 'accidental by-product of a traditional way of thinking about females'" and did not violate the Due Process Clause. The Court found that men and women, because of combat restrictions on women, were not "similarly situated" for the purposes of draft registration. The Court also upheld Congress's judgment that the administrative and military problems that would be created by drafting women for noncombat roles were sufficient to justify the Military Selective Service Act. J.E.B. v. Alabama Alabama, acting on behalf of T.B. (the mother), sought paternity and child support from J.E.B.(the putative father). A jury found for T.B. In forming the jury, Alabama used its peremptory strikes to eliminate nine of the ten men who were in the jury pool; J.E.B. use a peremptory challenge to strike a tenth man in the pool. Was the use of peremptory challenges to exclude jurors solely because of their gender a violation of the equal protection clause of the Fourteenth Amendment?



Yes. The Constitution's guarantee of equal protection bars the exclusion of potential jurors on the basis of their sex, just as it bars exclusion on the basis of race. "[G]ender-based classifications," wrote Justice Harry Blackmun for the majority, "require 'an exceedingly persuasive justification' in order to survive constitutional scrutiny." As a consequence, "[P]arties still may remove jurors whom they feel might be less acceptable than others on the panel; gender simply may not serve as a proxy for bias." U.S. v. Virginia The Virginia Military Institute (VMI) boasted a long and proud tradition as Virginia's only exclusively male public undergraduate higher learning institution. The United States brought suit against Virginia and VMI alleging that the school's male-only admissions policy was unconstitutional insofar as it violated the Fourteenth Amendment's equal protection clause. On appeal from a District Court ruling favoring VMI, the Fourth Circuit reversed. It found VMI's admissions policy to be unconstitutional. Virginia, in response to the Fourth Circuit's reversal, proposed to create the Virginia Women's Institute for Leadership (VWIL) as a parallel program for women. On appeal from the District Court's affirmation of the plan, the Fourth Circuit ruled that despite the difference in prestige between the VMI and VWIL, the two programs would offer "substantively comparable" educational benefits. The United States appealed to the Supreme Court. Does Virginia's creation of a women's-only academy, as a comparable program to a male-only academy, satisfy the Fourteenth Amendment's Equal Protection Clause? No. In a 7-to-1 decision, the Court held that VMI's male-only admissions policy was unconstitutional. Because it failed to show "exceedingly persuasive justification" for VMI's gender-biased admissions policy, Virginia violated the Fourteenth Amendment's equal protection clause. Virginia failed to support its claim that single-sex education contributes to educational diversity because it did not show that VMI's male-only admissions policy was created or maintained in order to further educational diversity. Furthermore, Virginia's VWIL could not offer women the same benefits as VMI offered men. The VWIL would not provide women with the same rigorous military training, faculty, courses, facilities, financial opportunities, or alumni reputation and connections that VMI affords its male cadets. Finally, the Fourth Circuit's "substantive comparability" between VMI and VWIL was misplaced. The Court held that the Fourth Circuit's "substantive comparability" standard was a displacement of the Court's more exacting standard, requiring that "all gender-based classifications today" be evaluated with "heightened scrutiny." When evaluated with such "heightened scrutiny," Virginia's plan to create the VWIL would not provide women with the same opportunities as VMI provides its men and so it failed to meet requirements of the equal protection clause. [NOTE: Justice Ginsberg's announcement of the Court's opinion (below) may be considered an address to the American public. It is a plain-spoken and forceful summary of the majority position.] Suggestion, use both test. Use the exceeding persuasive justification, and use substantially related to important gov‟t interest. 2/7/06



NEUTRAL CLASSIFICATIONS – This is a classification that is not suspect, or quasi-suspect, so there are no fundamental rights involved. So the test is rational basis. But in these cases, even thought the law is neutral it has an impact of discrimination based on race or gender. WA v. Davis – Law that said police officers must take test 21, and you must pass to become a police officer. This could be an equal protection issue. It classifies people who pass the test and people who don‟t pass the test differently. There must be a rational basis to a legitimate governmental end. The end is to have the best possible police officers. What about the fact that there is no proof that the test leads to better police officers? Even though there is no proof, it is rational none the less. It is conceivable that it might lead to better police officers. But the additional fact is that most black applicants could not pass the test. It does not matter. Neutral laws with a disproportionate racial or gender impact are still subject to only the rational basis test. Unless, you can show that even though it was neutral, but it was passed for the purpose or intent of excluding people based on race or gender, then it is per se invalid. OK Case: OK says that you have to pass a test to vote, unless your grandfather voted. It is obviously passed to exclude blacks from voting. Statistical analysis, and the absence of any legitimate analysis are two things to look for in finding that a neutral law was passed out of racial or gender hostility. Another Case: Welfare classification: To those who were elderly they gave 100% of their needs, the blind get 95%, family with dependent children get 65%. This classification gets a rational basis test, even though it is dealing with survival. Things to look for: 1) Look for disproportionate racial impact. By itself this is not enough, but it is a major factor. 2) The absence of legitimate reasons 3) The historical background 4) The specific sequence of events (how did it come about, is this the fourth law in a line of racially biased cases) 5) The departure from procedural norms (were meetings closed, no notes taken, etc.) If you actually have a race based classification in the law then the court will automatically apply a compelling state interest test. If you have a secret law passed for the very purpose of hurting people based on race then it will be a per se approach. Hunter v. Underwood Case: If you commit a crime of moral turpitude, then you can‟t vote. For jury pools it does not matter as much that the disproportionate result is totally innocent. It is a combination of the 6th and 14th amendment. If there is a disproportionate race based exclusion that is totally innocent, it is still not valid. 2/9/06



When there is a neutral law that has a disproportionate effect on race, then discuss the Washington v. Something case, that basically says it does not matter. Still use the rational basis test. Bolden says that race can‟t be used as a basis for voting. The standard of the 14th is the same ans the 15th, must show more than disproportionate impact. Don‟t confuse with the real world, because title 7 is legislative law that applies these rights to private employers, but there is less of a burden, disproportionate impact may be enough. But title 7 is not the constitution. On the test, anytime you see race the likely test is compelling state interest. Any time you see gender use the intermediate test. Only use the per se approach if there is no other argument other than racism or sexism. GENDER BASED v. RACE BASED AFFIRMATIVE ACTION Gender Based affirmative action Hostile or not, will get Craig v. Boren intermediate test. Kahn v. Shevin: All widows get property tax exemption, but widowers do not. Ballard Case: Military has a policy that if you don‟t get promoted within a certain amount of time, you are forced to retire. Women were given more time than men. Military says this is because women couldn‟t be in combat so it was harder to show that they should be promoted. Gender based discrimination was used to make up for gender based discrimination so it was upheld. Califano v. Webster is the key case: Social Security law treats women retiring more favorably than men retiring. A female employee and male employee with the same work history and salary structure, the female would be entitled to higher SSI benefits. The reason was to make up for past historical discrimination against women in the workplace. It was upheld. Orr v. Orr: Only men had to pay alimony. Use intermediate test. Look for important governmental interest. The interest is to make up for historical economical disparity. This is an important governmental interest. The law must be substantially related to that end. Or can be stated as narrowly tailored to advance the end. Look at other alternatives to advance the end without the use of gender. Do you need to classify based on gender in order to advance the interest. Court said, that the family court could look at the actual income. There is a reasonable alternative way of doing it without a gender based classification. Necessary to advance (look for less drastic alternatives) v. Substantially related or narrowly tailored (reasonable alternatives) – First one is strict scrutiny, second one is intermediate test.



Hogan: Men denied from nursing school: Argument was that it was to make up for past discrimination, but historically there was not discrimination against women in the nursing field, so it failed the test. Making up for past discrimination can be a reason to pass the intermediate test, but it actually has to be the reason why the law was passed! Johnson Case: Gender was used to break the tie if a man and a women were tied for a job. SC Analysis: Diversity purpose passed mid-level. Advantage given to women was limited, disadvantage to men was small. Approach was moderate, flexible and case-by-case. Laws that advance women get a softer version of intermediate test. Race Based Affirmative Action: The use of race to correct race based wrongs is the easiest type of affirmative action law. Bakke Case: Med school admitted 82 students under one test, and then 18 only minority students under another test. Justice Powell breaks the tie and says the test is compelling state interest. He said, race can be considered as a factor among other factors in order to achieve diversity amongst the student population. But, it can not be the only factor, must be one of many factors. All students must be admitted in a single track where race is one of many factors. Racial quotas are not allowed. Powell said that making up for historical racial discrimination can never pass the strict scrutiny test. Fullilove: Fed govt. set aside 10% of contracts for minority contractors. This was upheld because only 10%. Also there was a waiver, if there was not sufficient minority contractors to do the work, then majority contractors could be hired. So it was a limited preference with a waiver. It was upheld. In this case, it was not making up for historical race discrimination, it was more focused, it was making up for race discrimination in public works contracts. Wygant: Law required that minority teachers be hired to make up for past discrimination against minority teachers. The problem was that they were concerned that during down times the minority teachers would be laid off first. So they put in a provision that in laying off, the same ratio of minority to majority must be maintained. The court said that hiring decisions are different that firing decisions. Court said you can not fire based on race. Richmond Case: City voted a 20% set aside program for minority contractors. Court struck it down for three reasons. 1) they said that 20% is too high, 2) there was no showing that racial discrimination led to 20% of minority contractors losing jobs, 3) the affirmative action program did not have a waiver provision. Also look at the political processes. Congress is made up of white males that like to play golf. So easier for them to pass affirmative action laws because the white male perspective was heard. In city of Richmond the city counsel was majority black, so the political process did not allow for white male perspective to be heard.



University of Michigan: Uphold use of race in law school, and strike down the use of race in the undergraduate. The level of review is compelling state interest. Can use race as one in a number of factors to advance racial diversity in an educational setting. In the undergraduate part, the Court said race was too large a factor, it was almost the deciding factor. Race counted the same weight as being the star quarterback, or a perfect SAT score. Diversity in an educational program is a compelling state interest. Some use of race is allowed but can not be used too strongly. 2/14/06 Affirmative Action Cases: Gender Based benign cases (advancing women). The test is intermediate scrutiny. Diversity in employment, making up for past econ discrimination are both valid purposes. Making up for past econ discrimination is not a valid purpose for race based affirmative action cases. The relationship part of the test – gender must be used in a moderate kind of way. Also must look to reasonable alternatives. Race based affirmative actions. The test is the compelling state interest test. But look at 4 factors. 1) The purpose of the law. The compelling state interest part of the test. The other factors go to the relationship part. 2) The degree of advantage to minority persons. 3) The disadvantage to majority persons. 4) The overall flexability. Purpose part of analysis. It must be a compelling state end. We know that making up for historical discrimination in this country (slavery, 100s of years of racism) is not a legitimate purpose. It is too amorphous to satisfy the compelling state interest test. It can pass the intermediate test but not this one. But making up for narrow pattern of discrimination in a particular type of job or as to a specific person is a compelling state interest. Also, achieving diversity in education is a compelling state interest. For the relationship part the law must be necessary to advance the compelling state interest. Look for alternative ways that are less drastic that don‟t use race. Look to the degree of advantage to minority persons. Keep in mind that race can‟t be the determining factor alone, also that race can‟t be used in firing decisions. Look at burden on majority. Also look at flexibility, that is programs that allow for waivers. Classifications based upon alienage – This is different that ethnic origin classifications which get compelling state interest. Alienage treats all foreigners the same. With regard to welfare benefits it is a compelling state interest test. Also, if the law says that no alien can apply for any state civil service job, or no alien can be admitted to the bar, these are all strict scrutiny (compelling state interest test). What about a law that says only citizens (no aliens) can be police officers or teachers? Now it is the rational basis test.



Some classifications based upon alienage get strict scrutiny, but others get rational basis. This is called the political function exception. Most get compelling state interest, but if the classification falls within the political function exception then they get rational basis level of review. With regard to political function stuff, the basis is that citizens are more likely to have the skills to do the job. Does not have to be true, just must be conceivable that it is true. Must be state job that is important (that involve a fundamental aspect of our government), and the person who holds the job must have high level of discretionary decisions (policy related decisions). What about a law that only citizens can be a notary? Is this a state job involving high level of government function? This is not a state job, so it fails that part, also not a lot of discretion for notary, they just look at I.D. and stamp things. Congress has the power to pass uniform rules of naturalization. Congress is given more deference, so federal laws classifying based on alienage get rational bases test. State laws involving state jobs get strict scrutiny. State laws that fall in political function exception get rational basis. All federal laws get rational basis. OTHER Law precludes illegitimate children can not sue for the wrongful death of parents. Court applies rational basis test and strikes the law down. Law that illegitimate children can not inherit from father by intestate succession unless they were acknowledged by father. This law was upheld for two reasons. First was the concern for fraud, the other reason is that court feels that fathers generally don‟t want illegitimate children to take their property. Substantially relate to permissible governmental ends. This is the other intermediate test. This is used in cases about illegitimate children. This is easier to pass then the other intermediate test. Lali v. Lali and Lucas Case. Laws in terms of custodial status get rational basis level of review. Heller v. Doe -- If you want to build a group home for a fraternity or sorority then the area must be zoned for group homes. If you want to build group home for the mentally retarded then must be zoned for group homes and also must get specific approval. This did not was put to the rational basis test but did not pass. Court said the only reason was prejudice. 2/16/06 Bowers v. Hardwick Lawrence v. Texas – In Lawrence v. Texas they apply more searching rational basis. The law seems principally to hurt gays without any other legitimate state end, thus if fails the rational basis test.



ii. Phyler v. Doe: IMPORTANT: TX law said illegal alien children couldn‟t attend public school... law struck... got RB level of review: 1. RB test b/c a. Classifications based on illegal alienage are not suspect b. Education is not fundamental right, see San Antonio below 2. Different RB Test applied: law must rationally relate to substantial state interest. a. McG treats it as a version of the More Searching RB Test, BUT b. Some treat it as an application of the Mid-Level Test (like that in classifications based upon illegitimacy). 3. Held: Struck down TX law, because its there to hurt children More searching rational basis. How do you know when to apply the more searching rational basis test or extreme deferential level of review? We don‟t know. Start with the traditional rational basis test, all of the presumptions in favor of the law. If you have facts that where the law has singled out an unfavorable group principally because of a dislike for the politically powerless and unpopular group. Murray v. Moreno, Plyburn, Romer, Lawrence v. Texas, Plyler v. Doe, Met Life v. Ward. Fundamental Right to Vote – This comes from the due process clause. Privacy, vote, and travel are the three the courts have invented out of the due process clause. Harper v. Virginia – There was a poll tax on voters. That was struck down as a violation of the fundamental right to vote. Can prevent felons from voting. Another part of the fundamental right to vote is re-apportionment. This deals with the population of voting districts. The constitution requires that every ten years there be a census and the member of the house of reps need to be re-apportioned among the various 50 states. Miller v. Johnson – The use of race as the predominant factor in drawing district lines is not allowed. Some use of race is allowed, but not too much. State can restrict 3rd party candidates access to the ballot in a means that reasonably relates to the electoral process. Can‟t have everyone on the ballot.



2/21/06 Right to travel interstate is considered a fundamental right derived from the due process clause. Durational residency that penalizes the right to travel by impacting the necessities of life or other fundamental rights will get strict scrutiny. Sosna v. Iowa – Iowa won‟t take a divorce case until the party has lived there for a year. This was deemed to be ok. Case: If you abandon baby then misdemeanor, if you abandon and then move to a different state then felony. This was ok because it was not durational residency impacting a fundamental. Bonafide residency do not raise fundamental right to travel issues, it is only durational residency requirements. Zobel v. Williams (1982): SC declared unconstitutional an Alaska law that distributed oil revenues to those in the state according to a formula that was calculated based on the duration of a person’s residence in the state. 3 members of the SC felt that the fundamental right to travel was involved while 3 others, not willing to go that far (probably correctly so) just felt the law was irrational, while 3 other applied RB and found it rational. Williams v. Vermot – Classify people for credit of sales tax paid in other states, classified people based on residency. The state of Vermont has a use tax. Something that is charged in lieu of a sales tax. If reside in Vermont and purchase the car in another state, when you register it in Vermont you have to pay a use tax. But you got credit for sales tax paid elsewhere, but only if you were a resident of Vermont at the time you purchased the car. Saenz v. Roe – People move to CA on welfare, in CA you would get your old state welfare amount for the first year, not CA‟s higher amount. Professor says the right thing to do would be say this durational residency requirement effects the fundamental right to support yourself, higher standard of living means you need the more money, so strict scrutiny. But instead the court says this violates the privileges and immunities clause. They said the 14th amendment P & I clause protects the right to travel interstate. Keep open both possibilities, if you have right to travel issues, then treat it as privileges and immunities and fundamental right issue. 2/23/06 Right to Travel – Emphasize the equal protection material and then mention the Saenz P & I as an alternative approach. Keep in mind how narrow the fundamental right to travel is. You need a penalty on the right to travel interstate. Penalty must be durational residency effecting a necessity of life. Durational residency that penalizes the fundamental right to travel when it impacts a necessity of life.



Bonafide residency requirements is just rational basis. Must be durational residency to be fundamental right. Wealth is not a suspect class. But there are a group of cases where the court has struck down laws with classifications that disfavor indigents as to a right to a fair hearing. Griffen case allows right to free transcript. Douglass case gives right to have counsel at the 1 st appeal. This does not flow from the 6 th amendment right to counsel, but it comes from procedural due process. Fathers subject to civil paternity tests have a right to a free blood test. When dealing with a termination of parental rights, parents may have the right to appointed counsel as well. 2/28/06 Procedural Due Process: Must be a judicial type of taking of liberty or property. Historically it was whether a distinction between a right or a privilege. But that is too hard to determine. DMV taking your driver‟s license is a judicial like taking (discretionary, individual, case by case), taking food stamps from you, public school suspending you, etc. 1) Is there an adjudicatory taking, 2) is it of liberty or property, 3) and then what level of review? How much process do you get? Level of due process depends on balancing the state interest and the governmental interest. Level of due process depends the level of interest at stake. There are infinite levels available. Case: The Vice-Principle comes up to a student and asks him if he spiked the punch. The kid says no, but the VP says “yes you did” and you are outta here. Suspends him for 10 days. The Principal has discretion to make this decision, this is a judicial like decision. Is there then a taking of a liberty or property interest? Early cases say this is a taking of liberty and property. Liberty in the sense of your reputation, the stigma attached with being suspended. Later on the court rejects this theory. But also it was the taking of 10 days worth of property. The govt. gives you a free pubic education so you have a property interest in that education. The 3 rd issue is what level of due process? He was given notice, “you spiked the punch.” Then there was a hearing, “no sir I did not.” Then the resolution, “you are outta here.” Case: People living in a duplex. People in B paid their bills but people in A did not pay. The electricity was cut off. Property interest in having your electricity on especially since you paid for it. Level of due process was this, that you had the right to talk to someone that had the discretion to keep your electricity on. That is all the due process you need in this case.



Liberty includes more than just confinement. Property includes more than just the ownership of something. Includes things often referred to as entitlements, like food stamps, welfare, government jobs maybe. To have a property interest in a govt. job you need more than a unilateral expectation, more than just you are doing a good job so you should stay there. You must have a legitimate entitlement. You don‟t have a property interest unless state law of other independent source, or contract gives you one. In this case it is called tenure. If state law says you can only be fired for cause, then you have a property interest in your job. If you can be fired at the will of your employer then you have no property interest. What it the law says police officers that file for bankruptcy are fired? Here there is no judicial like decision, not discretionary. But here it is an equal protection issue, no suspect class or fundamental right so rational basis. The interest here was that police who file for bankruptcy are more likely to be corrupted. Law is ok because such a low level of review. You can only be fired for cause, you get a summary hearing, and then if you are fired you get a big hearing after you are fired. In this case the firing comes prior to the big hearing. Normally for procedural due process the hearing should occur before. It is up to the state whether they create a right or not, they can give you a property interest in your job or not. But once they give you a property interest then it is for the court to decide the level of procedural du e process. What ever level of procedural due process you are entitled to should occur prior to dismissal. Someone goes to Sears and buys a couch, does not make the payments and so Sears repossesses the couch. The debtor is entitled to some type of hearing before the court gives the creditor the right to repossess that property. The hearing does not need to be much. Just an example of a person having a property interest. The contract gives the person a property interest. Property interests are only protected by state law or other independent source, not the constitution. There are also prison cases. If you are institutionalized against your will that is a liberty interest. Some liberty interests are protected by state law or other independent source, but some are protected by the constitution. Right to free speech is a liberty interest. Wolf v. McDonald – State law created a good time credit for prisoners. Prison takes away the credit from someone. That is the taking of a liberty interest. Case: Person is transferred from a medium to a maximum protection prison. Court says there is no liberty interest that is taken. What level of security in your prison is at the discretion of the government. Case: Person transferred from prison to mental institution. That was ruled to be a taking of a liberty interest inherently protected by the constitution. Change in the nature of the institution is the taking of a liberty interest. If prisons wrote down rules and regulations then the court found that prison guidelines were state created liberty interests. So the way to avoid that is for the prison to not have written rules and



regulations. The court said this is absurd, just writing down rules does not create a liberty interest. A liberty interest is taken only if it is a significant deprivation beyond the level of deprivation expected in prison. Washington v. Harper – Have a liberty interest in refusing medication. The hearing was low level so that was ok because there was a hearing. Negligence is not the subject of procedural due process, even intentional torts are not the subject of procedural due process. Balance 3 factors 1) importance of the private interest at stake, 2) risk of erroneous deprivation by not having more elaborate due process proceedings, and 3) importance of the governmental interest at stake. There are a group of cases that say reputation is the taking of a liberty interest, those have all been overturned. 3/7/06 State Action State Action is easy to miss. The fact pattern sets you up with violations of free speech, or equal protection, etc. Then you get carried away discussing the substantive issue. It is easy to miss the fact that it is a private entity that committed the violation. If the govt. itself is involved at any level (federal, state, city, county, state agency, govt. employee in official capacity) then you don‟t have a state action issue, because the state is violating the substantive right. You only have a state action issue when trying to determine if a private person subject to constitutional limits, or trying to determine if the state is responsible for private acts. Shelley v. Kramer – Private homeowners got together and made a racially restrictive covenant. Then they wanted to get an injunction based on that. Govt. enforcement of the covenant was state action, so no good. Govt. enforcement of private acts of discrimination convert private acts into state acts. These cases have not been extended to other situations, they have been limited to their facts. When a private homeowner, or business decides to engage in discrimination. Can the govt. aid in that. You want to have a block party, you want only whites to come to your party, can you sue them for trespass? The court never resolved that issue. Seems like it would be allowed. The use of preemptory challenges can not be exercised based on race. The case that ruled that was a criminal case where the state prosecutor itself was using race to exclude people from the jury. What about civil suits? The court extended the ruling to private attorneys in private civil lawsuits. The govt. operating the court system and the govt. authorizing peremptory challenges generally was enough for state action. That is a stretch though.



Not all govt. employees are state actors. Court said that public defender was not a state actor because his role was to be against the state. Private Activity on Govt. Property – There can be state action (not always) – Does it look like it is part of the public property, do people think it is run by the public authority, govt. could have easily regulated the actions by the private actor. i. Norwood and Gilmore cases: 1. Norwood v. Harrison („73) – SC found state action in a program that gave free textbooks to private schools that segregated. A “State‟s constitutional obligation requires it to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving aid to institutions that have racial or other discrimination.” 2. Gilmore v. City of Montgomery (1974) – SC held that a city could not give racially segregated private schools exclusive use of public recreational facilities. The SC found state action because the “city‟s actions significantly enhanced the attractiveness of segregated private schools, formed in reaction against the federal court school order, by enabling them to offer complete athletic programs.” 3. Norwood and Gilmore are two good examples of the SC finding state action when there is only minimal involvement. a. 1 view: These 2 cases represent a possible view that a low level of state involvement can equal state action if the involvement deals w/ race discrimination i. It is safe to say that if the school discriminated against short people, because height is not a suspect classification a de minimis form of state involvement will not be enough to find state action. b. 2nd view: it doesn‟t matter what the private entity did and if the state is responsible for it; just focus on the fact that the state gave away things (books) and the Constitutional violation. (prove the state did this out of racial hostility)per se invalid. These cases the court probably found that the state was intentionally advancing the agenda of these schools.



Rendell-Barker v. Kohn – Private entity runs an alternative school, where bad public kids are put. 90% of the funding comes from the govt. The private school fires teachers without due process. Are they a state actor? Court found no state action. Court says that since the govt. acts went to funding of the students then there could be state action against the students but not the teachers. ii. Blum v. Yaretzky (favorite issue) - Federal law obliged private nursing homes to make sure that their residents who were receiving federal reimbursement were in fact eligible for reimbursement. The end result of this federal regulation was that some of the homes were kicking out people w/out notice or hearing. 1. SC found no state action because it was the nursing homes who decided to kick people out. The government did not require it; it only asked that the nursing homes check patient eligibility. iii. Moose Lodge– Lodge (private) was engaged in racial discrimination. But, the state gave the Lodge a liquor license. 1. Although the state could have prevented this discrimination by not giving the license until the lodge was free of discrimination, the Ct said just having a gov license doesn’t make the gov responsible for private act of racial discrimination. Also that they could have prevented does not make them responsible. Thus no state action. iv. Jackson v. Metropolitan Edison (limiting the public function exception) – a private utility co that cuts off people‟s utility services w/out any P DP. P argued that utility is state actor b/c of regulations and historically the state provided utilities. But modernly they are provided by private entities. 1. State action b/c “traditionally exclusively reserved to the state.” a. Only if parallel to this case, otherwise you need more factors than this 2. Private people now run prisons and schools (definitely used to be exclusively state fx) now they are not necessarily public fx‟s Public functions – Running elections, running prisons, probably not running schools.



v. Reitman v. Mulkey – Ca has fair housing laws. Before the passing of these laws, private landlords could do as they chose, i.e. discrim based on race, etcthey had the freedom to discim or choose in any way b/c they are private entities. But under the fair housing laws, they can‟t discrim based on race. (other laws prevent it against gender, handicaps, and “unrx discrimination”). CL private discrim was ok, but under new law it wasn‟t. 1. Now, the new law is repealed, and LL can racially discriminate 2. Issue: is the repeal/law a state action that makes the state responsible for private discrimination? a. One view: USSC said yes b/c the law was passed for the purpose of encouraging private racial discrim. State encouragement/approval of racial discrimination can be one factor of proof of state action (by itself not likely to be enough) b. Better View: since the repeal requires 2/3 votes to pass another fair housing law, then that is a racebased classification, which req’s CSI (where there is no compelling reason for this to require 2/3 votes and other just requires a majority). In this view, no state action issue, rather an EP issue. Congresses enumerated power under the 13, 14, and 15 amendments. 1) Congress‟s ability to reach private acts 2) Congress‟s ability to change the provisions of the 13, 14 or 15 amendments. 13th says no person can be held as indenture servant. Next section says congress can pass appropriate legislation to enforce this. 14th says no person to be denied equal protection, and due process by state. Next section says … 15th Race can not be used as a basis for voting. Next section says … Can congress regulate private action? Court says congress can not reach private actors under 13 or 14 amendment. Congress can reach private acts under section 2 of the 13 th, but you need to have two things: 1) racial discrimination, and 2) a badge of slavery. What is a badge of slavery – A badge of slavery is any disability that was imposed on slaves. For example, slaves can not own property. So congress can pass a law that says people can not engage in racial discrimination with regard to ownership of property. Slaves could also not enter into contracts. Slaves were not allowed to seek employment.



Congress can reach private acts involving racial discrimination as long as it involves a badge of slavery, under the 13 amendment. Congress can reach private acts under the privileges and immunities clause of the 14 amendment. Congress can punish private acts in violation of privileges and immunities of federal citizenship. Court says that congress has the inherent and implicit authority to protect the essential attributes of privileges and immunities of federal citizenship. What are P and I? The right to sail navigable waters, right to protection when in custody of federal marshal, right to travel to DC to petition, right to travel interstate. Congress has no authority under the 14 th amendment, to prevent private acts in violation of due process or equal protection. Congress must use its other powers like spending power or commerce power, etc. 3/21/06 13th amendment reaches private acts. Congress can reach private acts via the 13 th amendment. 13th amendment relates to slavery or involuntary servitude. So Congress can only pass laws about slavery under the 13 th amendment. Must have 2 elements to pass a law. 1) must involve racial discrimination, and 2) and it has to involve a badge of slavery. Badge of slavery – The disabilities imposed on slaves. Three main things: Racial disc. involving employment, involving the entering of contracts, or involving the ownership of land. Not racial disc. in eating in restaurants, taking busses, etc. Congress can reach private acts that violate privileges and immunities of federal citizenship. Congress has the inherent ability to protect the attributes of citizenship. Which means private acts that violate one of the 4 things: This is not a product of any amendment. Congress can not reach private acts in violation of due process or equal protection rights. Congress can only reach state acts or acts under color of law under § 5 of the 14th. What is the ability of congress, through legislation, to change the substantive provisions of the 13-15th amendments. Congress can change the remedial aspects of the substantive provisions of the amendments but they can not make substantive changes. Constitution just says, no person can make another their indentured servant. Congress gets to choose if the penalty is civil, or criminal, or whatever. The way the prof sees it is that any significant changes are going to be unconstitutional. FREE SPEECH: Congress can make no law abridging the freedom of speech. Any time you see a federal law regulating free speech you say 1 st amendment. Any time you see a state law regulating free speech you say 1 st and 14th amendment. Start with the particular type of free speech issue you have. Look at the type of regulation you have.



Radical political speech – The test is the clear and present danger test. Brandenberg v. Ohio. Defamatory speech – The test is NY Times v. Sullivan Sexually Explicit – Use CA v. Miller test If there is no special speech then the fallback test is compelling state interest. Other tests are vague and over breadth test and prior restraint test. If the law is content neutral, but only regulates the time, place, and manner of speech, then the court uses an intermediate test. Must be narrowly tailored to advance significant or important governmental interest. Clear and Present Danger Test – Speech can not be restricted unless it creates a clear and present danger of obstructing the draft. 1) must be words of advocacy of violence, 2) words have to be stated for the purpose of accomplishing the acts (specific intent), 3) there must be a likely hood of success. 3/23/06 Dennis Case: The danger was the overthrow of the US. Since the danger was so great, the need for proximity was less. Sliding scale. The holding of this case has not been applied to any case since then, so pretty much ignore it. Any time the govt. is restricting radical political speech then use the clear and present danger test. The phrase clear and present danger is used in two other situations. Bridges Case: Non-Party to a court proceeding can not be held in contempt of court for a statement made outside of court unless there is a clear and present danger to the fair administration of justice. In Near v. Minnesota the court finds that prior constraints are per se invalid unless there is a clear and present danger. The more modern cases use the phrase compelling state interest in these second two situations. Void for vagueness or overbreadth: There are really two issues. Vagueness is really a procedural due process issue. It is not our major concern. The due process clause requires that criminal laws give a person notice as to what is criminal. Must be reasonable ascertainable standards by which you can determine whether or not you are violating the law. That is a requirement across the board. Vague laws have been upheld because there is a need for vagueness. Dismissal for conduct unbecoming an officer. Don‟t stress on this vagueness issue, very hard to actually find something too vague. Overbreadth – Any law that is vague is inherently overbroad. It is a way of escaping bad facts. There was a law that said it was illegal for 3 people to stand on the street corner and engage in annoying activity. That law was found to be vague and overbroad. It does not matter what they were doing on the street corner, that activity does not need to be protected by the constitution. The fact that the law was vague and overbroad means it does not have to be followed.



What you say is this. First of all, what the person is doing is not protected by the first amendment, but because the law is overbroad, the person gets to litigate the law on its face as it might be applied to others. Case: City had a ban on all public performances. The law was challenged by an adult book store where the performance was a nude in a glass box. The court did not have to decide if the performance was protected by the first amendment. They look at the law it might be applied to other public performances. If the law reaches activity or speech that is protected by the 1 st amendment, that is when you apply the vagueness and overbreadth doctrine. What if the law says, no sexually indecent speech? Person publishing hard core porn can attack the law saying that indecent speech itself is protected by the 1 st amendment, so the law regulates some activity that is protected by the 1 st amendment. Law: Sexually explicit video games that incited lustful thoughts are prohibited. That law was found to be overbroad because of the word lust. Doctrine of prior restraint – Near v. Minnesota is the key case. The basic rule is that prior restraints are presumptively invalid. Even though your speech is not protected and you can be subject to punishment after the speech is made, the doctrine of prior restraint says you can‟t be restrained prior to speech. Speech prior to publication can not be restrained, unless necessary to prevent some clear and present danger. In time of war there is a troop ship about to sail, and the newspaper is going to publish the date of sail, and there is no way to protect the safety of those troops except to enjoin the paper from publishing the sail date. That is the level of clear and present danger. Prior restraints are generally not allowed. Look for some sort of licensing scheme that is attached to the content of something, that is a prior restraint that is probably not allowed. In the past there as a board that had to review every movie before they were allowed to come out, that is not allowed. The most common form of prior restraints modernly are judicial injunctions against a parade, a movie, a book, etc. Gag order against the press is presumptively invalid unless there is not alternative way to protect the right to a fair trial. Alternative ways are extra preemptory challenge, change of venue, etc. All those must be exhausted first, and also must show that the gag order would be effective. Argument is that this is a horrible murder in a small town and everyone already knows the details. 3/28/06 Defamation NY Times v. Sullivan sets the frame work for what a public figure/public official must prove to prevail -- Intentional Falsehood or Reckless Disregard.



If the plaintiff is a private person involved in a matter of public concern (newsworthy) then the plaintiff must prove that the defendant was negligent. Also in this type of case there are limits on the types of damages. If the plaintiff is a private person not in a matter of public concern, then there is some debate. Limitation on damages is not allowed, so presumed and punitive damages are allowed. But the standard of liability is not clear. McGoldrick thinks the common law strict liability standard applies. The key is to determine what type of plaintiff you have. What is a public figure/public official, and then what is reckless disregard? Public officials are any person elected to public office, any candidate running for public office. It does not include all govt. employees, but it does include all govt. employees who play an important roll is setting public policy. Sports stars are public figures, tv personalities, etc. There are also people called limited purpose public figures, like if someone gained notoriety on a certain topic, then he would be a public figure for just that topic. This is not that clear. Public figure must prove actual malice – This means intentional falsehood or reckless disregard. What is reckless disregard? Higher standard than negligence. Having serious doubt about the truthfulness of a statement, but publishing it anyway. The test of reckless disregard is a subjective test. Must show that the person making the statement had reckless disregard, not a reasonable person standard. There is no requirement that D engage in a prior investigation. If you prove actual malice, then there is no limit on the damages you can get. Gertz case: Private person involved in a matter of public concern. Court says the standard has to be at least negligence, but the state can set a higher standard if they want. If the standard is less than actual malice, then the plaintiff is limited to proven damages, no presumed or punitive. This is not limited to economic damages. There can be dignitary harm, injury to your psyche, but you have to prove it. Also, it is the plaintiff who has the burden of proving falsity in all of these. Teri and Michael Schivo are private people who we recognize. A person remains a private figure, even though they have been drawn in to public notoriety, unless they voluntarily make themselves part of the public arena. Dunn and Bradstreet says -- if a private person brings an action not involving a matter of public concern, then the common law rules on damages applies. You can have presumed and punitive damages. The case does not discuss the standard of liability. Is it negligence or strict liability?



Right To Privacy Torts 1) Revealing private facts 2) Intrusion upon seclusion 3) Misappropriation 4) False Light In this course, we do not care about the underlying cause of action. The elements of the cause of action are not important in this course, all we care about is the free speech limitations involved in the torts. Revealing private facts. The truthful revealing of private facts is a tort if the facts are so embarrassing that revealing them is to be offensive. Are the facts so private that revealing them shocks the conscience? What is material that shocks the conscience? The court says that the govt. can not punish the revealing of private facts unless there is a compelling state interest. Protecting the identity of rape victims, or juveniles, or of judges under investigation is not a compelling state interest. In no instance so far has the court found the punishment of revealing a private fact to be justified. Intrusion upon seclusion – This is a tort committed in the process of collecting information. The publication may be protected by the first amendment, but the gathering of the info is not protected. 3/30/06 We don‟t know if the tort is inconsistent with the 1 st amendment. But the state can not limit the publishing of private facts unless there is a compelling state interest. INTRUSION UPON SECLUSION – This is the tort committed when gathering information. Can be trespass, can be breach of wiretap laws, etc. Court says that the gathering of info is not protected by the 1st amendment. But if the media obtains a copy of info that was illegally obtained, as long as they did not do the illegal obtaining, then they can publish without repercussion. MISAPPROPRIATION – The use of someone‟s likeness for commercial purposes. Court said that making misappropriation a tort is not in violation of the 1 st amendment. FALSE LIGHT – False and offensive statement that is not defamatory. Private persons involved in matters of public concern must also prove the New York times standard of actual malice. We do not know the standard of liability for private persons not involved in matters of public concern. OBSCENITY – Legitimate discussions of sexual matters are entitled to the highest degree of protection. But illegitimate discussion are not protected. But what is legitimate? It is that speech that appeals to the prurient interest of the average reasonable person. You must judge the material as a whole, it is not enough that there are periodical explicit materials. You don‟t judge the speech based on the most susceptible members of society, must look at average reasonable persons. Can not justify based on the need to protect kids.



3 part test – Appeals to the prurient interest, is patently offensive applying contemporary standards, and it be utterly without redeeming social value. Even material not protected under the 1 st amendment, was protected in the privacy of your own home. 1) Judge the material as a whole 2) Limited to prurient appeal 3) Judge based on average reasonable person Also, the material must be patently offensive using contemporary (local community) standards as specifically defined in each state‟s legislation or specifically defined by state judicial decision. Also, it be without serious literary, artistic, etc. value. The court has made on exception to the element of judging the material as a whole. Court said if you emphasize or commercially exploit the dirty parts, then the judges can focus on the dirty parts. Also, if you direct it to a pervert, then judge it from the standard of the average reasonable pervert who you direct it to. Sexually explicit speech is protected except for hard core porn. So the test above is a way of defining hard core porn. Children and Obscenity – Crime to sell sexually explicit material to kids. Govt. has a greater interest in protecting kids and can do so, provided that it only restricts kids. Pornographic depiction of kids is not protected in the home. Reason is to stop child abuse, not encourage it. What about virtual child porn? Can‟t treat that the same as actual child porn. Here you are not abusing any children. So virtual child porn must go through the 3 part test to be outlawed, and also if it is in your home then it is protected. Phone sex was limited to credit card calls, that could be ok because probably will not restrict adult use, only kids. FIGHTING WORDS – Must have indecent and profane swear words, and there also must be a face to face confrontation. The danger of breach of peace justifies restricting fighting words. Must be in a face to face confrontation. The law also has to be limited to fighting words in a face to face confrontation. 4/4/06 In order to punish fighting words you need 3 things:



1. You need fighting words. These are words that are indecent, or swearing. 2. The words also must be in a face to face confrontation. 3. Also the law itself limiting fighting words must be limited to fighting words (narrowly tailored) There was a law that prohibited interfering with an officer in the course of duty. A guy swore at the officer in his face. The law was not only limited to fighting words, so it was not a valid way to limit fighting words. Hateful and racist speech is protected by the 1 st amendment. Cross burning with the threat to intimidate is not protected, but the very cross-burning itself does not mean there is also intent to intimidate. Indecent speech is not protected to the same extent if it is on the public airways. Commercial speech. What is it? Speech proposing a commercial transaction, or speech that relates solely to the economic interests of listeners. Basically commercial speech relates only to ads. Does not relate to all speech that is sold. Central Hudson Case: Test:    



Speech must not involve unlawful activity, and must not be misleading Must involve a substantial governmental interest The law must directly advance that interest It hurts no more speech than is essential to carrying out that purpose (narrowly tailored)



First it must not involve unlawful activity or be misleading. Commercial speech gets a lot of protection, but not as much as non-commercial speech. The last 3 requirements of the commercial speech test is an intermediate test. Commercial speech is entitled to a high level of protection, but they get an intermediate test. Regulation of non-commercial speech gets a higher test, that is the compelling state interest test. Case: Radio station in North Carolina wanted to accept ads from the Virginia State Lottery. But the law said that if the lottery was illegal in that state, then the radio station could not broadcast ads. This law was upheld. But Case: Court said if private Casino is legal in the state then can not ban ads for it. Content neutral time, place, and manner of speech regulations of speech will get an intermediate test. The regulation must be narrowly tailored to advance significant governmental interest. Look at alternatives, and balance the harm to free speech and the governmental interest. If the law is content based then apply one of the strict tests (fighting words, etc.), if none of those work then apply the compelling state interest test.



It is important to protect the sidewalks as a traditional place for free speech because those are often minority points of view that do not have other outlets. Content neutral restrictions get an intermediate test. Law must be narrowly tailored to advance significant/substantial/important governmental interest. You must consider reasonable alternatives. If it regulates content, then apply the compelling state interest test. Mosely Case: No picketing near school, except for labor picketing. Is that law content neutral or content based? The court said it is content based because there was an exception for labor picketing. No picketing near a school house that disrupts school activity. That law is content neutral. No distributing leaflets because of preventing litter. This is content neutral. So apply the intermediate test. The court said there were reasonable alternatives like prosecuting the person who drops the leaflets. Ban on all billboards on telephone polls. Interest was getting rid of unsightly litter. The court upheld because no reasonable alternatives. Total ban on residential picketing. Court said it hurts too much free speech, just lost the balance part of the test. Ban on focused picketing in residential areas. Intermediate test also and this passed the test. 4/11/06 Abortion protest cases Madsen: There was a 36 foot buffer zone for protestors around front entrance. The buffer zone was not extended to back and side entrance. Is this content neutral? 4/13/06 When govt provides funding then they can regulate the speech of that entity. But if govt provides funding to legal aid clinic and allows them to take a case, they can not dictate what arguments can be made, that is interfering with attorneys and no good. SYMBOLIC SPEECH 5 step approach – O‟Brien Test:  Is there speech at all? Is the conduct that is claimed to be speech, is it sufficient to be protected as free speech? If the activity is entitled to be speech, then it gets one of the speech test, if not, then likely gets the rational basis test.  If it is sufficiently expressive to be protected as speech, then apply the O‟Brien test. o Is the regulation related to the suppression of free speech, that is, is it content based or content neutral?



If it is regulating content then O‟Brien is not the right approach and the correct approach is one of our content based tests. (Clear and present danger, NY Times v. Sullivan, Fighting words, or compelling state interest test).  If the govt is regulating a non-speech concern in a content neutral kind of way, then you apply the rest of the O‟Brien test. o It must be within governmental power. The govt. is advancing a legitimate governmental interest. This is very easily satisfied. o The regulation must be in the advancement of an important or substantial governmental interest. o The regulation hurts no more speech than is necessary in the advancement of those interests. (Basically the same as the intermediate approach in the time, case, and manner regulations) Johnson Test: 1. Is it expressive conduct? 2. It must contain a particularized message that is capable of being understood by its listeners. 3. The expressive acts must be closely akin to speech (mindless violence won‟t qualify) THIS IS THE APPROACH FOR EXPRESSIVE CONDUCT: 1. Determine whether the acts are sufficiently expressive to be entitled to protection of free speech. Look at two Spence Factors: Consider the overall environment and context and look to see if the act expresses a particular message that is capable of being understood by its listeners. Also look to see if the act is closely akin to speech. 2. Once it is determined that it is speech then use the same approach as regular speech. If content based apply one of the strict tests, if content neutral then apply the O‟Brien test: o It must be within governmental power. The govt. is advancing a legitimate governmental interest. This is very easily satisfied. o The regulation must be in the advancement of an important or substantial governmental interest. o The regulation hurts no more speech than is necessary in the advancement of those interests. (Basically the same as the intermediate approach in the time, case, and manner regulations). (Look at narrowly tailored, and look at reasonable alternatives). Permit Scheme/Regulation for use of public forums: If the permit scheme is content based then presumptively invalid absent CSI. If the permit scheme is content neutral, then intermediate test, balancing of the interests and the court almost always upholds the permit scheme. If the permit scheme allows the administrator to consider content then you can just ignore the permit requirement, unless the administrator gets an injunction. Then you have to obey the injunction. You can be compelled to say what you believe.



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4/18/06 FREEDOM OF ASSOCIATION Distinguish expressive associations from societal associations If there is a law regulating an expressive portion then the law must pass the compelling state interest test. Preventing gender discrimination likely is a compelling state interest, but sexual orientation would likely fail. If the regulation impacts only a societal aspect of an association then the regulation need only pass the rational basis test. Keller Case: Members challenged the CA state bar using dues to support pro choice groups. Court said that if the state bar spent 25 cents on the dollar on supporting activity not related to the association then you can demand ¼ of your dues returned to you. Not if the activity is related to the association. Students wanted portion of student dues because the dues were being used for political activity. The court said that everything is related to a university association because the universities are there to stimulate growth. COMPELLED SPEECH You cannot be compelled to express a point of view of other people. Cannot be compelled to speak. There was a law that said newspaper must print a reply of people who are attacked by the paper. That violates their right to decide what to say. The law was struck down. FREE SPEECH RIGHTS OF GOVERNMENT SPEAKERS If your speech as a government employee relates to the internal activity of the government offices then you can be fired, you have no free speech rights. Even if you are just critical of your boss. But, if your speech is of a matter of public interest then you are protected. Person working for police department said “if they go after Reagan again, I hope they get him.” Court said that is a statement about public concern so it is protected. If you are being picked for a government job that sets policy then you can be compelled to be a member of a particular party in order to hold the job. But if you are just a run of the mil government employee, then you can not be compelled to be a member of a particular party in order to be hired. You can not be promoted or demoted or anything based on you political affiliation. PUBLIC SCHOOLS – This only applies to mandatory schools like elementary and high school. Since the govt. compels kids to go to school, they have a responsibility to protect them. Govt. can regulate speech on school house property if reasonably related to legitimate pedological (The study of the physical and mental development and characteristics of children) concerns.



BROADCAST RADIO AND TELEVISION Special rules. Because there is limited amount of this, the govt. has the responsibility to divide it up and regulate it. Indecent speech can be channeled to safe harbor times (between 10 pm and 6 am). RELIGION CLAUSES Congress can make no law establishing a religion, this also applies to the state. Free exercise clause guarantees the right to the free exercise of religion. The Lemon test. 3 part test:  Any law that advances religion, must have a secular purpose.  Primary or principal effect must be secular, not religious. Primary effect must be to neither advance or inhibit religion.  No excessive entanglement. This is the least significant portion. Basically this means that any aid to religion must not be of the type that requires too much supervision by the government to prevent its misuse. Law: Free bus transportation to all kids going to school, including kids going to religious schools. This was upheld. But a law giving free books to religious schools was struck down. 4/20/06 Religious displays are allowed on public school grounds as long as there is a balance between historical and traditional beliefs along with the religious beliefs. The balance must be in one individual site. Can not say that between two sites there is a balance. With regard to aid to elementary and high schools, there are a number of factors to consider:  Aid directly to parents is less likely to violate establishment clause than aid directly to the schools.  Aid to all schools, public and private, is less likely to create establishment issues, than aid to just public schools. THE FREE EXERCISE OF RELIGION There are law passed for the purpose of intentionally restricting religious belief and those must pass a compelling state interest test. Laws passed that merely incidentally inhibit religion do not have to pass the compelling state interest test. It is unclear what test is used. Probably an intermediate test. 4/25/06 CON LAW REVIEW CLASS 1. Due Process and Equal Protection Rational Basis A. Apply the rational basis test when no other test applies. It is the fall back test. If you don‟t have suspect classifications, or fundamental rights, or other classifications like gender or alienage, or illegitimacy.



B. Do you approach it as due process rational basis or equal protection rational basis? Usually that is not a critical choice, as long as you are applying the same test. But make your best effort to give it the same call. i. Due process means you are concerned with the law overall. This law just does not make sense. Like Lee Optical. ii. Equal protection is always a concern for classifications. Your principle concern is that it seems to treat people that are similarly situated in a different way, or it could be treating different people in the same way. C. Applying the test i. First give the test – The law limiting the substantive interest must rationally relate to a legitimate or permissible governmental end. Then add in that the burden of proof in on the person challenging. The court will presume the law is valid. It is unlikely that the court will find the law irrational. D. We also have more searching rational basis test – If you see a law or a classification that you think gets the rational basis test then apply it. Usually you apply the traditional, deferential level of view. Use the more searching rational basis test as an alternative discussion, and only use it in these situations. i. It parallels the cases where the court applies more searching rational basis. The court feels that a politically unpopular group singled out principally because they are not liked. Murray v. Dept of Agriculture (congress denied a particular group food stamps); Living Center (law singled out the mentally retarded); Romer v. Evans, Lawrence v. Texas; Plyler v. Doe; ii. Look for situations where the more searching rational basis may actually make a difference. Close call situations. iii. In applying it, apply both parts in a more searching way. In particular the court is more worried about the purpose. Court is less likely to look at conceivable purposes, but rather the real purposes. CONTRACT CLAUSE 1. Limited to state law only. If you have a federal law impairing obligations of contract, that is a due process/rational basis issue. 2. Applies only with regard to retroactive impairment of contractual rights. Prospective limitation on contracts is not an issue. 3. If you have a state law which retroactively impairs contract rights then undertake the test (called public purpose balancing test). Three parts to the test. A. There must be substantial impairment (court will rarely decide it on the first part of the test); and i. Must be more than de minimus, but less than total destruction is enough. ii. Look to see if it goes against reasonable investment based expectations iii. Look to see the degree to which the particular area has been regulated in the past. B. If there is substantial impairment it must be justified by a legitimate public purpose; and i. Look to see how important the governmental interest is. Why is there some need to impair obligations of contract? Just use the facts you can to identify whatever it is.



ii. If you have some emergency measure or a temporary measure, the court is more likely to allow. C. Look at reasonable conditions that are appropriate to the public purpose. i. What ever the law is, advances the public purpose, based on reasonable conditions. ii. Look at balance between harm to contract and benefit to govt. interest. (Blysdale case, mortgage holders and banks). NO TAKINGS CLAUSE 1. Applies to State and Federal govt. 2. No taking of private property for public use without just compensation. 3. What is public use? For public use, or for any use that rationally relates to public interest. Can even take private property and give to another private person as long as it will be used to benefit the public. 4. Just compensation. Even if court finds that govt. has taken and then govt. tries to back out the govt. has two choices. 1) They can take it and pay for the value, or 2) they can say never mind and just pay for the period of time they “took” it. 5. If not considered a taking, then govt. just needs to pass the rational basis due process test.  Generally speaking, zoning laws are not takings. Just must pass rational basis test. But zoning laws that take away all economically viable use are a taking. Per se taking.  The physical appropriation by the govt. is also a taking. Can also be in the form of noise, or dirt, or smells. Per se taking.  Even without Per se taking, can still find takings by applying the Penn Central Balancing test. Factors: The extent of the taking (took all or some); the nature of the taking (zoning or other); how much harm was done to reasonable investment based expectations. FUNDEMENTAL RIGHT TO PRIVACY 1. Use compelling state interest test – Must be narrowly tailored to advance some compelling state interest. As part of the narrowly tailored aspect you must considered whether there are less drastic alternative ways of advancing the governmental interest without hurting the fundamental right. 2. This test does not involve as much of the facts. The biases are against the law. 3. What interests are part of the fundamental right to privacy? A. Procreation i. Use of contraception ii. Choices about abortion a. Use Casey undue burden test. Whether any particular regulation imposes an undue burden. b. With regard to parental consent and notification laws provided that such laws have a judicial bypass. Judicial bypass must have two aspects to it: 1) Judge must have authority to decide that the minor is mature enough to make the decision for herself, and 2) Judge may also bypass by determining that abortion is in the minor‟s best interest.



c. Partial Birth Abortion laws: In the past they were unconstitutional because they were too vague and they did not have emergency exception for the life of the female. d. Undue burden test prior to viability, and after viability the govt. has a compelling interest in protecting the life of the fetus, but the mother‟s life is always paramount. e. Funding choices about abortion get just a rational basis level of review. Restriction on abortion in state hospitals are regarded as funding decisions and get a rational basis test. iii. Procreation decisions with regard to children gets special attention. Court has not decided if it is a fundamental right for children. Courts have struck down law that limit a minor‟s right to contraceptives but they have used different reasons. Some members of the court apply compelling state interest test, and others use more searching rational basis test to strike laws down that restrict minor‟s procreation decisions. B. Right to Marry i. This is problematic because some regulations involving the right to marry just get a rational basis test. Just talk about the issue. Significant and unreasonable restrictions get a compelling state interest level of review. Insignificant and reasonable restrictions get a rational basis level of review. No clue as to gay marriage. C. Child rearing decisions i. All we know is that some child rearing decisions get a compelling state interest test. In Michael H. the court applied rational basis but in other cases the court applied compelling state interest. D. And possibly the right to keep certain info confidential (such as medical records). This question is un-answered. SUSPECT CLASSIFICATIONS 1. Race and Ethnic origins get a suspect classification. Use the compelling state interest test (look for less drastic alternative that advance the compelling state interest but do not use race based classifications). 2. The complexity comes with race and school desegregation cases. A. Court distinguishes between De Jure (intentionally state imposed segregation, either by law or by covert government acts like changing the zoning laws) and De Facto segregation (segregation as a result of historical and economic factors). B. The remedy for De Jure segregation is limited to fixing the wrong. C. When the local school boards have remedied the last vestiges of segregation as practicable, then the courts have lost power to step in. QUASI-SUSPECT CLASSES (Gender Based Classifications) 1. Use intermediate test (2 of them)  Must substantially relate to important government interest (Craig v. Boran)  Exceedingly persuasive test (see recording), there must be an exceedingly persuasive justification.



2. Mention both tests but apply the Craig v. Boran test. Look at reasonable alternatives as part of the test. CLASSIFICATIONS BASED ON PREGNANCY 1. This gets rational basis level of review. Courts do not consider this gender based classification. WASHINGTON v. DAVIS – PER SE APPROACH 1. Neutral law that has disproportionate impact on race or gender. 2. Basic approach is to ignore the disproportionate impact and it does not change the level of review. Apply whatever test you usually apply. 3. The only exception is when the law was passed for the purpose of working a hostile classification as to race or gender, then the law is per se invalid. Must prove that the law was passed for the sinister reason. 4. Factors: Disproportionate impact; historical, procedural, or substantive departures. 5. The difficulty is when you normally apply compelling state interest approach versus the per se approach. Again look to see if passed for the very purpose of hurting people because of race. GENDER BASED AFFIRMATIVE ACTION 1. Use intermediate test. 2. Laws passed for the purpose of making up for historical discrimination against women, can pass the governmental interest part of the intermediate test. But be careful to look for reasonable alternatives. Is there some non gender based reasonable alternatives. 3. AA programs generally need to be moderate and flexible overall. RACE BASED AFFIRMATIVE ACTION 1. These get a compelling state interest test. 2. Court has upheld these “benign” racial classifications in some cases. 3. Look at 4 factors:  Purposes of the law  Degree of advantage to minority persons  Degree of disadvantage to majority (preferences in hiring may pass, preferences in firing are no good, too much disadvantage)  Overall flexibility of the law (provisions that set goals are better than quotas) 4. Simply making up for historical discrimination is not enough to be a valid purpose.. 5. If can be more specific, like making up for historical disc.by a particular person, or company, or segment of society. This is the best purpose. 6. Other purposes can pass the compelling state interest portion of the test as well, like diversity in education. That can pass the purpose part, but still must look at other factors. CLASSIFICATIONS BASED UPON ALIENAGE Three basic categories: 1. Most of the time apply the compelling state interest test when dealing with state law. 2. State laws based upon jobs involving the political function exception apply the rational basis test.



Jobs with a high level of discretionary policy making in the job. These kinds of jobs can be limited to citizens using the rational basis test. 3. All federal laws involving alienage get a rational basis test. Congress has enumerated powers to deal with aliens. These test apply only to the line between legal aliens and citizens. We don‟t know how do deal with illegal aliens. CLASSIFICATIONS BASED ON ILLEGITAMACY 1. Use intermediate test, but less strict than gender. 2. Must bear a substantial relationship to a legitimate or permissible state ends. 3. Court upheld laws that say for an illegitimate child to inherit from the father must have order of legitimacy. However, if father is still alive, the child has until the age of majority to do this. FUNDEMENTAL RIGHT TO VOTE 1. Use compelling state interest test. 2. Length of registration – One year too long, but 50 days ok. You can only have the amount of time to ensure accuracy in the voter lists. 3. Reapportionment – One person, one vote. The various legislative districts (federal) must be equal in size with regard to population. Must be as nearly equal as is practicable. For state must be substantial equality in population (lower standard than federal). 4. Gerrymandering can not be done if primary purpose is to advance or hurt candidates based on race. This violates the equal protection clause? 5. Drawing districts that are democratic or republican, right now that does not raise equal protection concerns. 6. Getting name on ballot, regulations must reasonably relate to the election process. FUNDEMENTAL RIGHT TO TRAVEL Limited to two categories 1. Durational residency and necessities of life or fundamental rights. Must have both. 2. Bonafide residency requirements get a rational basis level of review. WEALTH BASED CLASSIFICATIONS 1. Generally rational basis EDUCATION 1. Education above a minimum level is not a fundamental right. We do not know if a complete denial of education is a violation of a fundamental right. PROCEDURAL DUE PROCESS 1. Must be the right kind of act. Must be a judicial like taking. Must be what judges do. Making individual case by case decisions. Can be any public employee. If just an overall classification then just an equal protection concern. 2. Must be taking of a liberty interest or property interest. Property interest are defined by state law of federal law or some valid contract you have entered into with the government. With regard to govt. jobs the law must say you can only be fired for cause then you have a property interest in your job. Liberty interests are created by law and by the constitution. Being free from



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confinement is a liberty interest. All of your fundamental rights are also protected, right to vote, right to travel, right to privacy, etc. 3. Must be the right level of process based on three Mathews Factors: Importance of private interest, state interest, and whether or not additional process would reduce potential for error. 4. Irrebutable presumptions are basically classifications that usuallly get the rational basis test. Marriages less than a year no spousal support, and more than 10 years support for life. The only possibility is when the facts parallel Stanley v. Illinois or Bell v Burson, then irrebutable presumptions may violate procedural due process. The court made a discretionary factor the issue (like fitness of the parent) and they scheduled the hearing after the fact. The court said usually procedural due process requires a hearing before the termination. STATE ACTION 1. If it is the government doing something then you don‟t have state action issue. 2. Talk about state action when a private person is violating constitutional rights.  When the lawsuit is filed against the government for something a private person did  When the lawsuit is filed against the private individual and the assertion is that because the private individual is connected to the state, constitution applies CONGRESS ENNUMERATED POWER 1. Can congress pass legislation reaching private acts? A. Congress can certainly reach private acts under the spending clause, commerce clause, etc. but we don‟t care about that. B. Section 2 of 13th gives power to reach private acts. But to reach the private acts you need two elements: i. Must involve racial discrimination ii. Must involve a badge of slavery.  Employment  Contracting  Ownership and use of property  Not service in a restaurant, hotel or motel. C. Congress can also reach private acts which invade the essential attributes of being a citizen. Your privileges and immunities. What are they?  Sailing the navigable waters  Being protected while in the custody of a federal marshal  Right to petition congress  Right to travel interstate (the important one). D. Congress does not have ability to reach private acts in violation of free speech rights, procedural due process rights, etc. 2. To what degree can congress change the constitutional meaning of the 13, 14 and 15 th amendments? A. Congress has some limited ability to expand the substantive provision of Section 1 of the 13th , 14th and 15th amendments.



B. Congress can not change the substantive provisions, but they can change the remedial provisions. Basically they can make limited changes. Any significant changes are going to violate congress‟ enumerated powers. 13th amendment prevents slavery, congress expanded it to badges of slavery 15th says no intentional discrimination, congress can expand to disproportionate impact FREE SPEECH 1. Figure out what type of speech is being regulated and go there? Radical Political speech Defamatory speech Clear and Present Danger – Advocacy of law violation Indecent Speech Fighting Words 2. Use the overbreadth doctrine when the party is doing something that is not protected. Otherwise just say what he is doing is protected. ESTABLISHMENT CLAUSE 1. Emphasis is on the three part Lemon test. 2. 10 Commandments -- Balance approach – Lynch v. Donnely – If too much focus on the religious aspect of the commandments then no good. 3. Free exercise of religion – Make the determination as to whether govt. is regulating society generally and incidentally impacting religion or intentionally regulating the religion. If just religion then use compelling state interest test, if generally then probably use intermediate test, maybe rational basis.