Constitutional Law II Outline
I. Equal Protection
1. Equal Protection Analysis
a. Is there any "state action?"
1) Public Function
2) "Significant State Involvement"
b. Identify the classes of people affected by the law
c. Assign a level of scrutiny
1) rational basis
2) rational basis w/bite
3) intermediate scrutiny
4) strict scrutiny
d. assign purpose(s) or goal(s) for the law
e. Use that level of scrutiny to examine the nexus between the classification and the goal.
2. Why are "suspect" classes subject to heightened scrutiny?
a. Historical purpose of EPC: adoption, ratification, early practices
b. History of pervasive discrimination: stigmatizing effect of classifications ("caste/ethical
c. Political process/Representation: "discrete and insular minorities" systematically disadvantaged
in the political process (Carolene Products fn. 4). This footnote helped to establish the strict
scrutiny standard. The point of the footnote is that when the classificatory scheme concerns a
vulnerable minority that cannot rely on the legislature to protect its interests (b/c legislatures
express the will of the majority).
d. Rational Equality: limited relevance of race or perhaps other factors to legitimate governmental
ends (perhaps with exceptions when racial profiling may be effective or necessary)
a. Socioeconomic--rational basis--Fritz; Railway Express
b. Race--strict scrutiny--Korematsu; Strauder; Loving
c. Alienage--strict scrutiny (exception = govt. functions)--Dougall
d. Gender--intermediate/heightened scrutiny--Craig; Hogan; VMI (?--b/c Ginsburg seemed to
ratchet up the level of scrutiny above intermediate)
e. Legitimacy--intermediate scrutiny--Jeter
f. Age/Wealth--rational basis--Murgia; James
g. Mental retardation/sexual orientation--rational basis with 'bite'--Cleburne; Romer
4. Invidious Purpose
a. Heightened scrutiny may be appropriate where there is: FAMI
1) Discriminatory enactment (Gomillion)
2) Discriminatory administration (Yick Wo); or
3) Discriminatory impact (Washington v. Davis; Arlington Heights; Feeney)
5. Equality--Open Questions
a. Whom did the framers and ratifiers intend to protect?
b. What institution was going to do the protecting--Congress or the judiciary?
c. What is the scope of rights protected--political, social, or civil?
1. Race-based classifications--Four types
a. race-specific classifications that disadvantage racial minorities
b. race-specific classifications that are facially neutral
c. non-race-specific classifications that disadvantage racial minorities--laws that disproportionately
impact racial minorities
d. race-specific classifications that benefit racial minorities ("affirmative action").
E. Nonmarital Children
G. Sexual Orientation
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H. Discriminatory Purpose and Effect
1. Purpose/Effects Summary:
a. Mere disproportionate impact produced by a classification that does not explicitly divide people
according to race/sex is insufficient to raise the level of scrutiny.
b. Impact itself may be some evidence of such a purpose, but will rarely be sufficient by itself (see
Arlington Heights factors).
c. Mental state required: a purpose to cause the disproportionate impact and not merely to
achieve some other end in spite of that impact (Feeney)
d. If there is a prima facie evidence of an invidious purpose, the burden may shift to the
government to establish that the same decision would have been made even absent the invalid
I. Benign Use of Racial Criteria
1. Benign Governmental Discrimination (Affirmative Action)--O'Connor's summary of three factors in
a. Skepticism: race-based discriminations always raise concern
b. Consistency: race-based distinctions should all take the same level of scrutiny
c. Congruence: federal and state govs should be scrutinized equally (strictly)
J. Fundamental Rights—Voting
1. Fundamental rights-voting:
a. strict scrutiny applies when there is:
1) denial of the franchise; or
2) dilution of the franchise; or
3) race-conscious districting (strict scrutiny triggered only on a showing by the plaintiff
that the predominant motive was race).
K. Fundamental Rights—Civil Litigation
1. Fundamental Rights/ "Access to Courts"
a. CRIMINAL CASES - The Court has invalidated requirements that appeals be conditioned upon
criminal defendants' ability to pay fees for:
1) Appellate transcripts (Griffin) (Due Process & Equal protection Clause)
2) Appellate counsel on appeals as of right (Douglas) (Due Process & Equal protection
clause) -- Again in the '50;'s before the court had settled for sure that wealth was not a
matter for heightened scrutiny, but in addition they were talking about right to have
counsel for appeal and disparate impact on poor people. And then the court starts to
peal back in Ross case.
3) But not counsel on discretionary appeals (Ross) (Due process & Equal protection) -- No
right to counsel in following discretionary appeals in criminal matters.
b. CIVIL CASES--The court has invalidated fee requirements as applied to litigants for
1) Initiating divorce (Due Process)
2) Defending paternity/blood tests fees invalidated (Little) (Due Process clause)
3) Defending against parental termination (M.L.B.) (Due process clause & Equal
protection) - We don't know which prong it's absolutely hinged upon. And perhaps the
court is purposeful in this ambiguity.
4) But not for:
A) filing bankruptcy petition (Kras) (Due process clause), and not for
B) appeal from welfare denial (Ortwein) (Due process clause)
L. Fundamental Rights—No Expansion
1. FUNDAMENTAL RIGHTS - ECONOMIC INEQUALITIES
a. No fundamental right to
1) welfare benefits or other economic necessities (Dandridge)
2) "decent shelter" (Lindsey)
3) education (Rodriguez) (But see Plyer v. Doe - some sort of intermediate scrutiny.. they
cite Craig v. Boren. Near-beer case.)
II. Post-Civil War Amendments and Civil Rights Legislation
A. Statutes Relating to Civil Rights
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1. Strong Privacy:
a. Some actions are private as a matter of right
b. rights expressly or impliedly derived from text
c. Free Exercise Clause (Roe v. Wade)
2. Weak Privacy
a. Some actions are private by negative implication
b. Duties are imposed only on public authorities
c. 14th amendment--"no state shall..."
d. 1st amendment--"Congress shall make no law..."
B. State Action and Involvement
1. State Action--Policies
a. individual autonomy
c. separation of powers
2. Interpretation of State Action in the 20th Century:
a. Public Function
b. Nexus/significant state involvement
3. State Action--"Public Function"
a. The activity must be a traditional and exclusive state function
b. Running a company town (Marsh), a municipal park (Newton), or an election (White Primary
c. But NOT running a shopping center (Hudgens), a regulated utility (Jackson), or resolving
private disputes (Flagg Bros).
d. What about: education, fire and police department, eminent domain, tax collection?
4. Significant State Involvement Summary:
a. The court has found state action to exist in cases of:
1) state encouragement, ratification, or enforcement of discriminatory private action that
would be unconstitutional if undertaken by the state officials (Shelley v. Kraemer)
2) Interdependence/symbiosis (Burton)
3) Joint Participation with the State (Lugar/Edmunson--creditor cases)
b. The court has found state action lacking in cases based on:
1) mere state permission, approval, or acquiescence (Jackson; Flagg Bros.; Blum)
2) mere state licensing or regulation (Moose Lodge; Jackson)
3) mere state-conferred monopoly power (Jackson)
4) mere state subsidization or contract relation (Rendell-Baker)
5) pure omission to act (DeShaney)
C. Congress’ Power to Reach Private Interferences
1. Equality--Open Questions
a. Whom did the framers and ratifiers intend to protect?
b. What institution was going to do the protecting--Congress or the judiciary?
c. What is the scope of rights protected--political, social, or civil?
2. Civil Rights Statutes--Models of Congressional Power
a. Judicial Authority: Use the SC's state action doctrine; private actors/action can be reached if
there is a public function or the state is "significantly involved." (e.g., Burton).
b. Congressional Authority: Allow congress to reach private actors/action even if the Court's state
action doctrine would not permit it (e.g., sections 1 and 5 of 14th amendment--that seem to
envision a shared judicial and congressional interpretation of the amendment).
c. Constitutional Rights: Allow congress to reach private actors/action where constitutional rights
with no "state action" limitations are involved (e.g., right to travel/vote; see also 13th
3. When can congress side-step the state action requirement?
a. when it acts under the 13th amendment
b. the ICC or spending clause
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c. certain very narrow fundamental rights,--only two; the right to travel and right to vote in
4. Congress and Civil Rights: Sources of Authority/State Action
a. Sources of constitutional authority that appear to require state action:
1) Section 5 of the 14th amendment (compare Guest w/Morrison)
2) Section 2 of the 15th amendment
b. Sources of constitutional authority that do not require state action:
1) Section 2 of the 13th amendment (Jones)
2) Other constitutional rights outside of the Civil War Amendments--e.g., right to travel
3) Commerce Clause (Article 1)
D. Congress’ Power to Enforce Civil Rights Under the 14th Amendment
1. Section 5 of the 14th amendment:
a. A "positive grant of legislative authority" to enforce section 1 of the 14th amendment
b. But, it is a remedial power
1) congress has no power to determine what constitutes a constitutional violation under
2) congress cannot change the court's interpretation of constitutional rights
3) Is there a "significant likelihood" that the state's practices would be unconstitutional
under the SC's procedures.
c. There must be a "congruence and proportionality" between the injury to be prevented or
remediated and the means adopted to that end
1) what does the legislative record show re: the evil that congress is attacking?
2) what is the scope of the remedy--does it apply nationwide? To a broad range of laws?
3) Does it apply in perpetuity? Is there a way out for the states?
III. Freedom of Speech—Categorical Approach
1. First Amendment: Philosophies
1) expression as critical to autonomy and self-development
2) art, politics, sexuality, etc.--full range of expression
1) relationship between free speech and democratic government
2) government cannot even-handedly censor speech about itself
1) information as public good
2) competition of ideas in the "marketplace"
2. Regulation of Content and Viewpoint:
a. General Rule: Govt regulations linked to the content (subject matter) or viewpoint of speech
receive severe judicial scrutiny.
b. The First Amendment "hierarchy":
1) Viewpoint-based regulations are least favored (but how do you determine what is
2) Subject-matter-based regulations are also disfavored.
3) Content-neutral regulations are generally permitted
1) Unprotected speech: Content, and even viewpoint, has been used to define the
categories of unprotected speech:
A) incitement to violence - Brandenberg test
B) fighting words - Chaplinsky
D) obscenity - Miller test
E) child pornography - Ferber
d. Compelling interests: content-based speech restrictions must be narrowly tailored to serve a
compelling governmental interest
e. Special forums: public schools, government created forums
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3. Categories Granted Limited or No First Amendment Protection:
a. Incitement of unlawful action (but must satisfy Brandenburg test, which is narrow)
b. Fighting Words (unclear if doctrine still exists, b/c no recent decisions)
c. Libel (NYTimes v. Sullivan--"actual malice") (level of protection depends on circumstances)
d. Obscenity (Miller test is current standard)
e. Child Pornography (based on harm inflicted in production)
f. Commercial speech (Central Hudson) (now protected, historically not protected).
4. Permissible Content Regulation Within "unprotected" categories (RAV)--this is current law:
a. where the basis for the content discrimination consists entirely of the very reason the entire
class is proscribable (e.g., only most lascivious obscenity, or only threats against the President)
b. Regulations premised upon "secondary effects."
c. Statutes directed at conduct (e.g., Title VII).
d. Where there is no realistic possibility of the suppression of ideas.
1. Incitement--Early Approaches
a. Bad Tendency: Speech that has any tendency to produce illegal acts, no matter how remote, can be
punished. This is not very speech-protective.
b. Express Advocacy: Speech that expressly advocates violation of law can be punished. But, this
requires interpretation and, in the absence of the context, may be difficult to understand. This was
originated by Learned Hand with the intent to open things up and limit judicial discretion, and as an
alternative to the Bad Tendency test.
c. Holmes. The Clear and Present Danger: Government can punish speech that "produces or is intended
to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that
the [government] constitutionally may seek to prevent" (Holmes, dissent in Abrams).
2. Incitement: Four Types of Expression:
a. Speech that criticizes government policy and discusses public issues generally (Schenck)
b. Speech that expressly advocates unlawful acts in the present (Abrams)
c. Speech that expressly advocates unlawful acts at some point in the future (Gitlow)
d. Mere association with a group that advocates unlawful activity (Whitney)
3. Incitement: Brandenburg Modern TEST
a. The gov may proscribe advocacy of unlawful conduct only when:
1) The speaker specifically intends to incite imminent lawless action; AND
2) Immediate lawless action is likely to occur. (Brandenburg, p. 1007)
C. Fighting Words and Hostile Audiences
1. Fighting Words
a. The modern doctrine is limited to:
1) Offensive words (swear words/epithets)
2) directed at a specific person
3) likely to incite immediate violence from that person
4) Note: Beware of "overbroad" statutes.
1. Defamatory Speech
a. Public Officials or Public Figures
2) Fault ("Actual Malice")
A) Knowledge that the statement was false; OR
B) Reckless disregard as to its truth or falsity.
b. Private Individuals
1) Matters of Public Concern
A) At least negligence required.
B) Presumed or punitive damages allowed only in cases of actual malice.
2) Matters of Private Concern (p. 1038)
A) No constitutional constraints (States are free to set what libel laws they want)
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B) Presumed and punitive damages available even if no actual malice.
C. Non-Defamation Torts
D. Hate Speech
1. Obscenity: Justification for Proscription
a. Protection of children
b. Protection of unwilling recipients (a captive audience)
c. "Quality of life" and "tone of commerce"(But, why doesn't this apply to hate speech?)
d. Public Safety (even though there is little empirical support for the alleged association)
2. Obscenity: The Miller Test
a. Whether the average person, applying contemporary community standards, would find that the
work, taken as a whole, appeals to the prurient interest
b. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable law
1) patently offensive description of ultimate sex acts, normal or perverted, actual or
2) patently offensive representations of masturbatory, excretory functions and lewd
exhibition of the genitals
c. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
(reasonable person standard nationally).
F. Child Pornography
G. Sexually Explicit but Non-Obscene Expression
H. Commercial Speech
1. The test is articulated in Central Hudson Gas v. PSC: it is a four-part test:
a. is the advertisement protected by the 1st amendment (concerns a lawful activity and is not
b. Is the asserted governmental interest substantial? This is EPC intermediate-scrutiny standard.
c. If the answers to 1 and 2 are "yes," does the regulation of commercial speech directly advance
the asserted governmental interest?
d. If the answer to 3 is 'yes,' can the governmental interest be served by a more limited restriction
on the commercial speech? Note, it does not have to be the least restrictive alternative.
2. Commercial Speech: Summary
a. Protected Speech (Virginia Pharmacy)
1) philosophy: the free flow of commercial ideas
2) exceptions: unlawful transactions; false advertisements; misleading advertisements
b. Recurring Themes
2) "greater includes the lesser" argument (Posadas)--unclear of this concept's status now
3) "Vice" exceptions
c. Central Hudson 4-part Test
1) permits regulation on content without compelling governmental interest
2) regulations must be sufficiently tailored
3) equivalent to the intermediate-level of scrutiny under EPC
IV. Freedom of Speech—Modes of Abridgement and Standards of Review
A. Content-Based Restrictions
B. Symbolic Speech
1. Regulation of "Symbolic Conduct" (O'Brien)
a. A content-neutral regulation of conduct which incidentally burden free expression is valid if:
1) The regulation is within the constitutional power of government
2) It furthers an important or substantial governmental interest; and
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3) The incidental restriction on alleged 1st amendment freedoms is no greater than is
essential to the furtherance of the governmental interest.
C. Flag Desecration
D. Nude Dancing
E. Speech in Public Fora
F. TPM—Public Order
1. Time, Place, & Manner Regulations TEST
a. To survive scrutiny as a valid TPM regulations, a law must be:
1) justified without reference to the content of the speech;
2) narrowly tailored (i.e., does not burden substantially more speech than is necessary).
Here, this does not mean the least restrictive alternative.
3) To serve a significant governmental interest, and
4) Leave open ample alternative channels of communication (Ward v. Rock Against
H. Tranquility, Privacy, and Repose
I. Public Forum Doctrine
1. The Trichotomy of Fora
a. Traditional Public Forum--held open "time out of mind" for public debate (street and parks)
1) Content-based regulations = strict scrutiny
2) TPM regulations = intermediate scrutiny
b. Designated Public Forum--space that has been intentionally opened by the gov for expressive
1) The gov is not required to keep the forum open, but if it does, the rules applicable in
traditional public forums apply
2) Limited public forum--limited to speakers of a certain type or character, depending on
the purpose of the forum (still must be viewpoint-neutral) (Perry) (In Perry, other
organizations got to use the mailboxes, but only of a particular character, of which
Perry was not one--but isn't this a content-based regulation?)
c. Non-Public Forum--public property neither traditionally nor by voluntary designation a forum for
1) Regulations must be
A) reasonably related to a legitimate government interest and
2) Gov may make speaker- and subject-matter-based distinctions (Perry; Cornelius)
J. Public Employee Speech/Independent Contractors/Government-Subsidized Speech
1. Govt As: Educator: Employer; Speech Subsidizer
1) Speech and conduct which "materially disrupts classwork or involves substantial
disorder or invasion of the rights of others" is not protected
2) Schools may restrict speech to inculcate social values and in furtherance of their "basic
educational mission" (Bethel school District)
3) School-sponsored activities: regulations must be "reasonable related to legitimate
1) Pickering Balancing test
2) Is the speech on a matter of public concern (content, form and context)?
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3) If so, balance employee's speech rights against the govt's interest in the effective and
efficient fulfillment of its responsibilities to the public.
c. Subsidizer (Penalty v. non-subsidy)
2) Government as Speaker (Rust) - viewpoint discrimination allowed.
3) Spending to encourage "diversity of views from private speakers" - viewpoint
discrimination is prohibited (Rosenberger). [Focused on notion of forum.]
V. Freedom of Speech—Problems in Regulating Speech
1. Example of GA overbroad statute
a. Result = FACIAL invalidation of law
b. Construction by state court (state laws) or federal courts (federal laws) may narrow scope
c. Exception to standing requirement
1) Chill speech of third parties
2) Danger of selective enforcement
e. Substantial overbreadth is required (Broadrick)
a. Example: "any person who publicly mutilates, tramples upon, defaces or treats contemptuously
the flag o the US shall be guilty of a misdemeanor
b. Test: law is vague on its face if persons "of common intelligence must necessarily guess at its
meaning and differ as to its application (Connally v. General Construction)
c. Result = facial invalidity
1) Issue of fair notice
2) selective enforcement and
C. Prior Restraints
1. Prior Restraints
a. Licensing--standardless discretion problem
b. Licensing of Content--Freedman safeguards
1) Burden must rest on censor to show content is unprotected
2) Judicial determination is required
3) Preservation of status quo (allowing expression until deemed unprotected)
4) A prompt final judicial decision
c. Presumption exists against prior restraints
1) Exception for obstruction of recruitment or publication of sailing dates of transports or
number and location of troops (e.g., embedded reporters in Iraq not revealing troop
2) Obscene publications (quasi exception)
3) Incitement to violence (quasi-exception)
VI. Freedom of Speech—Ancillary Rights
A. Compelled Speech—Individual
1. Free Speech--"Ancillary" Rights
a. The right not to speak
1) Compelled "orthodoxy" is not OK
2) Anonymity is a right
B. Compelled Speech—Access to Others
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C. Freedom of Association
1. Freedom of Association (an ancillary free-speech right)
a. Membership and 'chill'
b. Denial of benefits (Keyishian)
c. Compelled association--expressive associations (Roberts v. US Jaycees)
1) Is the group an expressive association?
2) Would the person's presence significantly burden the group's ability to advance public
or private viewpoints?
3) Does admission violate the group's freedom of expressive association--Is there a
material interference with ideas the organization wishes to express? Is there a
VII. The Religion Clauses
B. Free Exercise
1. Free Exercise
a. Laws that are purposefully designed to suppress actions solely because the actions are
1) Invalid unless narrowly tailored to promote compelling interest (Lukumi)
2) Look to:
A) text of regulation;
B) circumstance of adoption; and
C) legislative motive (?)
b. Neutral laws of general applicability
1) States may prohibit or regulate conduct in general, even if the prohibition or regulation
happens to interfere with religious practices (Smith)
2) Exceptions (Sherbert still applies)
A) Hybrid claims--Free exercise plus free speech/association; or parental rights.
B) Administrative schemes--case-by-case exceptions.
1. Establishment--Current Approaches
a. Lemon Test (not expressly overruled, but outmoded, although more modern courts have
borrowed elements of the test)
1) Secular legislative purpose required for validity
2) Principal or primary effect must be one that neither advances nor inhibits religion
3) No excessive gov "entanglement" with religion
1) Gov may not coerce anyone to support or participate in any religion or its exercise
2) Problems: Defining "coercion"--pressure versus penalty. Psychological coercion?
Establishment Clause a nullity? Scalia prefers bright-line tests (rather than more
diffuse 'standards') that are easy to apply.
1) Gov may not make adherence to a religion relevant in any way to a person's standing
in the political community (O'Connor in Lynch)
2) Sending a message to adherents that they are 'insiders,' and to non-adherents that
they are 'outsiders
D. School Prayer/Curriculum
E. Financial Aid