Constitutional Law: Individual Rights Outline

(Controlling Cases in Italics)

Professor James, Pepperdine University School of Law Fall 2007

I. State Action (10% of cases students see)

a. Types of State Action
i. Statute or Regulation
ii. Conduct of government official acting in his official capacity
iii. Conduct of private individuals that is attributable to government
b. (Delegation Doctrine): those who assume a government role trigger state action
doctrine
i. Acting under the “Color of Law” also triggers state action.
1. Plaintiff would have to prove that he was deprived of a right
secured by the Constitution
2. And that the person or entity depriving them of that right was
acting under the color of law.
3. Ex. Union Representative assumed government role because
Congress clothed the representative with powers comparable to
those possessed by the legislative body (Steele). Thus, private
conduct in such cases will be considered state action.
4. Ex. Marsh had a corporation that owned an entire town. The town
was accessible and freely used by the public and there was nothing
to distinguish it readily from any other town. Thus, private conduct
in such cases will be considered state action.
c. Public Function Doctrine
i. Traditional and exclusive government functions, when delegated to
private parties, trigger state action. Elections, police, fire, tax collection,
prisons, military are on the short list of traditional and exclusive
government functions.
ii. Ex. Flagg Brothers: the settlement of debts between creditors and debtors
is not a traditional government function, thus, no state action. State law
did not compel an act but only acquiesced to private conduct.
iii. Those who perform a government function trigger state action doctrine.
Private performance of government functions (White Primary cases) is
state action.
d. Court Enforcement of Private Disputes is state action for purposes of Constitution
i. When private individuals invoke the power of the courts, they should not
be surprised to find the Bill of Rights there.
ii. Ex. Shelley: Voluntary adherence to a restrictive covenant that
discriminated on the basis of race was not unconstitutional since it was
created by a private agreement. However, where judicial enforcement of
the terms is necessary, the terms must meet constitutional standards.

Shelly v. Kraemer

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Facts: A restrictive covenant was signed that mandated keeping the land in the hands of white
folk. One parcel of the property was then sold to a black man, who had no knowledge of the
restrictive covenant at the time of purchase. Respondents, as owners of the other parcels subject
to the covenant, brought suit praying that petitioners be restrained from taking possession of the
property.
Procedural History: The respondents’ claims were denied by the trial court because it believed
that the agreement had never become final. The S.C. of Missouri reversed. The court is also
considering a second case from Michigan.
Issue: Can the judicial enforcement of a restrictive covenant that excludes a class of persons
based on race be considered an unconstitutional state action by depriving a group of individuals
of their property without due process of law?
Rule: Restrictive agreements standing alone cannot be a violation of any rights guaranteed by
the constitution (specifically the 14th Amendment). This rule extends only as long as there is
voluntary adherence to the terms. In cases where judicial enforcement of the terms by state
courts is necessary though, the restrictive agreements must meet constitutional standards.
Whether directed by state statute or judicial official, the terms of a rule must be in line with the
constitution because it is state action.
Analysis: In this instance, the restrictions would certainly be unconstitutional if they were by
state statute or local ordinance; however, the restrictions are created by private agreements. This
is not an instance in which the state has merely abstained from action, leaving private parties free
to impose their discriminations. Instead, the state has made available to these individuals the full
coercive power of the state to discriminate on the basis of race or color.
Conclusion: In granting judicial enforcement of the restrictive agreements in these cases, the
state has denied petitioners the equal protection of the laws and that therefore, the action of the
state courts cannot stand.

e. State Enforcement of Charitable Trusts:

i. Charitable trusts do not have identifiable beneficiaries and are enforced
normally by state officials.
ii. Ex. Evans v. Abney: Court held that state cannot enforce a racially
discriminatory will, and it terminated the trust.
f. Law always triggers state action
g. Joint Activity/Participation
i. Ask: is the conduct that causes deprivation of right “fairly attributable” to
the state?
ii. Ask: Was there overt government involvement in the decision out of
which the state arises?
iii. Evans v. Newton presents the first example of entwinement. The
predominant character of a park was municipal. The city was entwined
with the management of the park. It should thus be treated as being public
and being run by a state actor.
1. “We hold that the association’s regulatory activity…should be
treated as state action [because of] the pervasive entwinement of
state school officials in the structure of the association” Brentwood

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 iv. Brentwood Academy v. Tennessee Secondary: statewide association
incorporated to regulate school athletic events was entwined with public
institutions and public officials because they comprised the organization.
v. The Symbiotic Relationship in Burson
1. Symbiotic Relationship refers to the degree of state participation
and involvement with a private person who practices
discrimination.
2. On government property, when private citizens are carrying on
their business there through a lease from the government, they are
subject to state action. This is the rule in Burson, and the rule has
never been extended beyond the fact pattern of Burson.
vi. Government Control Doctrine: government can be held responsible for
a private decision or action only when it has exercised coercive power or
has provided significant encouragement such that the choice must be
deemed to be that of the government.
1. Do not follow the funding to determine state action, follow the
decision maker to determine state action (Rendell-Baker: private
school was funded 99% by public funds, but this did not create
state action.)
2. Concerning government regulations, if the regulation does not
prompt the dispute, ignore the regulation for purposes of
determining state action. Only if the regulation requires or
encourages the issue out of which the dispute arises could there be
state action. (Ex. Moose Lodge: the issuance of a liquor license to
an organization that practices discrimination is not state action.)
3. Being subject to state regulation does not mean there is state
action. (Ex. Jackson v. Metropolitan Edison: a utilities company is
regulated, but providing utilities is not a state function. There is
also no symbiotic relationship even though the co. had a
monopoly. No state action.)
h. Statutory Rights: In these cases, it does not matter if there is no state action.
i. Civil Rights can come from: Constitution, Federal statutes, State
constitutions and statutes, and Private choices.
ii. Congress can use things like the Commerce Clause to regulate certain
behaviors. In doing so, they bring along the Bill of Rights.
1. The test for Congressional power under the commerce clause
applies to whether the activity sought to be regulated is commerce
which concerns more states than one and has a real and substantial
relation to the national interest. (Heart of Atlanta Motel)
iii. By bringing along the Bill of Rights, the Court’s trend of shrinking the
state action doctrine is not so bad. The modest approach recognizes that
Congress and the political arena have the capacity to take up these issues.
Most commonly, discrimination is attacked with “Public Accommodation”
laws.

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Jones v. Alfred H. Mayer Co.
1968
Facts: Petitioners filed claim because respondents refused to sell them a home. The Court of
Appeals affirmed a dismissal of the complaint.
Issue: Does Congress have the power to prohibit all racial discrimination, private and public, in
the sale and rental of property?
Rule: 13th Amendment works upon private conduct, so the fact that 1982 operates upon
unofficial acts of private individuals whether or not sanctioned by state law presents no
constitutional problem. Congress must be able to enforce the 13th amendment with appropriate
legislation, and this includes having the ability to eliminate all racial barriers to the acquisition
of real property.
Analysis: § 1982 on its face appears to prohibit all discrimination in the sale of property. The
Court finds that Congress meant this and that it is supported by the Constitution.
Conclusion: Reversed
Dissent says that the 1866 Civil Rights Act was aimed at prohibiting official, community based
discrimination in the south, which would overturn local racist customs that had their roots in
slavery. There is thus a disagreement about the scope of the legislation.

(Rational Basis) I---------------------------------(Mid-Tier) ---------------------------------I (Strict

Scrutiny)

II. Equal Protection and Standards of Review

a. In general: The EP clause easily eliminates laws that are discriminatory on their
face, but it also looks at application of the law. While impact of the law is
insignificant by itself, proof of an unlawful purpose or motivation might shift the
burden.
b. How is it triggered?
i. Triggered by application of the law (was it applied discriminatorily?)
ii. Triggered when classifications are made
c. Functions of Standards of Review
i. Guides lower courts and legislatures
ii. Limits Judicial Power
iii. Provides some predictability
d. Strict Scrutiny
i. TEST:
1. There must be a compelling government interest
2. The law must be narrowly tailored to guarding that interest (least
restrictive means)
ii. Strict Scrutiny is strict in form, fatal in fact (laws are not supposed to
survive strict scrutiny. There is a presumption of invalidity. What
survives? Burson, Japanese Internment cases, Affirmative Action Cases )
iii. What triggers strict scrutiny?
1. Core Rights (ex. Pure, not symbolic speech is a core right)
(O’Brien: draft card case) (Symbolic speech is most commonly
Mid-Tier)

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 2. Suspect Classes: Race, National Origin/Alienage (Note that the
federal government can pass laws concerning aliens because of Art
I § 18.
a. Requirements of a suspect class:
i. History of discrimination
ii. Immutability
iii. Political Powerlessness
b. All three requirements must be present
iv. Discriminatory laws may be subject to SS in three ways:
1. Facially discriminatory laws are unconstitutional
2. Discriminatory in application/administration: Laws that are
discriminatory in their application are unconstitutional
3. Motive: Laws that have a discriminatory effect/impact + an X
factor are unconstitutional. Also, “Where there is proof that a
discriminatory purpose was a motivating factor in the law…
judicial deference is not justified.”
a. X factors include: legislative history, testimony of decision-
makers, historical background, departures from normal
procedure, etc.
b. Mere disproportionate effect on one race is not enough to
constitute discrimination. The law must have a
discriminatory purpose, and impact may be relevant to
helping show motive. (Washington v. Davis)
v. Political Function Exception: positions that go to the heart of
representative government and have a high responsibility or amount of
discretion may be positions that cannot be filled with someone who is not
a part of the political community. (Bernal v. Fainter)
1. TEST: If the office holder exercises broad discretionary or
executory power, then the position may be restricted from aliens
provided that:
a. The position must be narrowly defined
b. The position must involve creation, discretion, or execution
of public policy.
e. Rational Basis
i. U.S. v. Caroline Products was the first RB case. “The existence of facts
supporting the legislative judgment is to be presumed… unless it is of
such character so as to preclude the assumption that it rests on a rational
basis.”
ii. States operate from a position of strength when implementing laws about
health, safety or welfare (Williamson v. Lee Optical)

Williamson v. Lee Optical of Oklahoma, Inc.

348 U.S. 483
Procedural History: The district court held three sections of an act unconstitutional because it
was not reasonably and rationally related to the health and welfare of the people.”

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Facts: The state passed a law that the district court said interfered with an optician’s right to do
business because it required a prescription to refit lens. This, the court believed, was a violation
of Due Process.
Issue: Is there a legitimate Due Process claim because a state law requires an optician to have a
prescription in order to do business?
Rule: Laws passed by the legislature to guard the welfare of its people are generally
constitutional.
Analysis: “For protection against abuses by legislatures the people must resort to the polls, not to
the courts.” The day is gone when this Court uses the DP clause to strike down state laws
because they may be unwise or improvident…. The Court sees no reason why the state could not
treat opticians the same as eye doctors and so restrict them in regards to looking after the welfare
of the people.
Conclusion: The law is constitutional.

iii. City of Cleburne: Mentally handicapped classification triggers RB (it is

not a suspect classification)
iv. Sexual orientation triggers RB (it is not a suspect classification)
1. “Animus Exception” to RB Test: If a law can be determined to
not be based on any rational means such that animus is the only
thing left to explain the law, then it loses the presumption of
validity.
2. Romer v. Evans: Colorado repeal of special protection legislation
for homosexuals. “It is not within our constitutional tradition to
enact laws of this sort.” And from Lawrence v. Texas “When the
law exhibits such a desire to harm a politically unpopular group,
we have applied a more searching form of the rational basis
review.”
3. Phyler v. Doe: The Court senses that irrational animus has
motivated a law that denies education (not a fundamental right) to
a group of citizens that is not a suspect class. Thus, even though
RB test should apply, the law fails.
4. Guarantee Clause (Art IV, Sec. 4) Concerns: The U.S. shall
guarantee to every state a republican form of government. Since
the Colorado law was passed by referendum (direct democracy),
Kennedy seems to be suggesting that it is unconstitutional for the
people to pass laws by referendum because homosexuals could
never vote as the majority. Republican democracy was being taken
away from individuals.
f. Mid-Tier (Intermediate Scrutiny)
i. TEST: Law must:
1. Serve an important government objective
2. And be substantially related to achieving those results
ii. Similarity to SS: one can assume the important government objective and
analyze whether the law is substantially related to achieving results of that

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 objective. (In SS, analyze whether law is narrowly tailored to compelling
government interest…)
iii. Implications of the Mid Tier: What is out when this standard is applied?
1. Policies based on administrative convenience
2. Laws designed to prevent gender-based conflict within
families/communities
3. Rules that support “old notions” regarding gender
roles/habits/weaknesses
iv. “Underinclusiveness” and “overinclusiveness” are both symptoms of a law
that often fails at the Mid Tier. For example, in Orr v. Orr the Court held
that imposing alimony obligations on husbands but not wives was
underinclusive.
v. Illegitimate children classification triggers intermediate scrutiny
vi. Gender classifications trigger intermediate scrutiny
1. “An exceedingly persuasive justification is established by
showing that the classification serves important government
objectives and that the discriminatory means employed are
substantially related to the achievement of those objectives.” U.S.
v. Virginia (VMI case)
2. “Legislatures must choose either to realign their laws in a gender-
neutral fashion or identify where gender generalizations comport to
fact.” Craig v. Boren (the comportment of gender generalizations
to facts seems likely to only lead to valid laws in regards to
pregnancy.)
3. NY Nudity Cases: Female citizens were not permitted to expose
their nipples in public. An EP challenge was brought. The
government objective of decency was an important government
objective, and the law is substantially related to the interest. As far
as symbolic speech is concerned, this law is unrelated to
expression and it still leaves ample alternative channels of speech
open. So the O’Brien test could be applied if a due process
challenge was brought, and the women would still lose.

III. Affirmative Action

a. “Educators have a compelling interest in attainting a diverse student body… a
judgment… to which we defer.” Grutter
i. Grutter applies only to higher education. The policy showed a compelling
interest and it was narrowly tailored to that interest.
ii. Gratz shows that even when a university shows diversity as the
compelling interest, if the policy is not narrowly tailored (awarding points
based on race on admissions applications), the law will be struck down.
b. Remedial compensation cases will not usually concern the courts; it is the non-
remedial measures that concern the courts. Non remedial approaches to the
existence of discrimination rarely provide a compelling government interest.
(Seattle School District)

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 c. Can a majority conduct invidious discrimination against itself? No.
d. While diversity in schools can be a compelling interest, there should also be a
history of past discrimination in order for legislation to be called remedial.
Otherwise, the legislature is not righting wrongs but is engaging in social
engineering.
e. Violations of EP create an affirmative duty to remedy ASAP. Remedial Power of
Congress. Quotas are lawful, particularly in remedial cases. There seems to be a
difference between lower and higher education concerning affirmative action.
Higher education has a successful template for affirmative action.
f. The Court will often defer to the remedial power of congress, particularly when
there is doubt as to whether a vigorous remedy is needed. City of Rome

IV. Section 5 of the 14th Amendment (Remedial and

Interpretive Power of Congress)
a. RULE: Section 5 legislation reaching beyond the scope of section 1’s actual
guarantee must exhibit ‘congruence and proportionality’ between the injury to be
prevented or remedied and the means adopted to that end.
b. TEST:
i. Interpretive power may not be used proactively
ii. Interpretive power is very limited, almost to the point of non-existence
iii. Congress does not enforce a constitutional right by changing what a right
is
c. Congress cannot change the standard of review when it uses its remedial
power. If it does, then it will lose every time.
d. Congress must begin with the idea that the remedies that it imposes must be
congruent and proportional to the targeted violation but it cannot redefine what
constitutes a violation. (City of Boerne: Court stuck down a law in which
Congress tried redefining the scope of the Free Exercise clause)

V. Procedural Due Process: (PDP is triggered when a

substantive violation is alleged)
a. Procedural Due Process protects Property Interests
i. To have a property interest… a person must clearly have more than an
abstract need or desire for it. He must have more than a unilateral
expectation of it. He must have a legitimate claim of entitlement to it.
(Roth: teacher was not rehired)
ii. DP limits the ability of government to act arbitrarily.
b. Procedural Due Process protects Liberty Interests
i. The DP Clause also forbids arbitrary deprivations of liberty. Where a
person’s good name, reputation, honor, or integrity is at stake because of
what the government is doing to him, the minimal requirements of the
Clause must be satisfied. (Goss)

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 ii. In considering both property and liberty interests: Once it is determined
that the Due Process Clause applies, the question remains what process
is due. The answer to that question is not to be found in state law
1. State law cannot dictate what the process is unless the process is in
line with the Constitution. State law cannot authorize deprivation
of an interest once conferred without appropriate procedural
safeguards (Cleveland v. Loudermill)
2. In general, post deprivation hearings are frowned upon. Notice and
pre-deprivation hearings are more preferred. (Goss: Students
facing dismissal deserved some kind of notice and hearing)
c. Mixed Motives
i. “The District Court should have gone on to determine whether the Board
would have reached the same decision… even in the absence of the
protected conduct.” Mt. Healthy

VI. Contract Clause

a. “No State shall… pass any… law impairing the obligation of contracts.” (Does
not apply to the Federal government.) (Clause not given literal interpretation)
b. When state is a contracting party, strict scrutiny will be applied. (U.S. Trust Co.
of NY v. NJ)
c. Unless the state is a contracting party… courts properly defer to legislative
judgment. (RB test) (Kansas Power and Light: The Court looked to see whether
there was substantial impairment of contractual rights.)
i. An impairment of a contract may be constitutional if it is reasonable to
serve an important public purpose.
d. Contract Clause assorted points:
i. Policies that further state police power outweigh private contractual rights
ii. Private contracts are presumed to be limited by current and future statutes
iii. Public Debt contracts represent ordinary financial transactions that are
binding on the government
iv. Public Contracts limiting future government action are not binding (cannot
bind police power) (Keystone Bituminous)
v. Federal laws get sub-RB treatment

VII. Property Rights: Takings

a. 5th Amendment: “Private property shall not be taken for public use without just
compensation.” This is an inflexible limit on government power and an
inflexible remedy. (If there is a taking, then the government must pay unless it
has a compelling interest.)
b. Types of Takings:
i. Government (directly) physically appropriates property
ii. Government regulation goes too far
1. Taking all economic value from property (Lucas v. SC Coastal
Council): If all economically viable alternative uses of the land are
taken, then it constitutes a taking.

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 a. If ordinance is a valid use of police power and it deprives
property of its most beneficial use, then this is NOT a
taking. (Goldblatt: ordinance put mining operation out of
business. Still not a taking. State was just using its police
power to protect people.)
2. Takes away right to exclude (CASE)
a. Police power may be used to limit property use though

Penn Central Transportation Co v. NY City

“’Taking’ jurisprudence does not divide a single parcel into discrete segments and
attempt to determine whether rights in a particular segment have been entirely abrogated. In
deciding whether a government action has effected a taking, this Court focuses rather both on the
character of the action and on the nature and extent of the interference with rights in the parcel as
a whole.” The police power has a position of strength when the battle between the state and
the individual is purely economic. Here economic theory has overtaken constitutional
interpretations. As long as there are economic alternatives, the Court will not be a place where
you can find redress for alleged constitutional violations. There is a 3 part balancing test in this
case:
1. Harm to reasonable investment-backed expectations (alternatively viable economic uses
of the land)
2. Economic impact of the regulation on the property owner
3. The character of the government action

iii. Penn Central Factors

1. Extreme Regulatory burden placed on property
2. Extreme degree of interference with legitimate property interests
(interference with reasonable investment backed expectations)
c. “Public Use” doctrine is broadened to “Public Purpose.” Courts want to be
deferential to local governments. (Kelo: Rational Basis applied. Court notes that
states can limit their use of eminent domain power themselves)
d. Temporary Takings that deny the owner all use of his property still require just
compensation (First English Evangelical Lutheran Church)
i. Not every temporary delay is a per se taking (Tahoe-Sierra Preservation:
Court saw that a land development strategy was in place.)
ii. Rule that required compensation for every delay would render routine
government processes prohibitively expensive or encourage bad decision
making.
e. Permit-Conditioned Cases/Easements: the concern is that individuals are being
isolated and the police power is being misused. (Nollan)
i. Exactions imposed by a municipality for permit conditions must be
Roughly Proportionate to the impact of the proposed development.
(Dolan)
ii. There must be an “essential nexus” between the legitimate state interest
and the permit conditions exacted by the city.

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 iii. Nollan and Dolan are equivalent to the MT, but this has never been
extended beyond the fact pattern of Nollan and Dolan.

VIII.IR under DP Clause: Privacy

a. 5th and 14th Amendment: “No person shall be deprived of life, liberty, or property
without due process of law.”
i. 5th Amendment limits Federal Power
ii. 14th Amendment limits State Power
b. Laws that substantially impair fundamental rights of all persons will be analyzed
under the DP clause. (Difference between EP and DP challenge)
c. Right to Privacy and other fundamental rights
i. The existence of core rights suggest implicit rights. Through penumbras
and emanations of the other Amendments there is a right to privacy.
(Griswold: Marital privacy is included in “liberty.”)

Griswold v. Connecticut
There was a law that fined people for the use of contraception. This was unconstitutional
according to the Court. Due Process clause of the 14th Amendment is implicated: the 14th
Amendment forces states to incorporate the Bill of Rights into their laws.
Without peripheral rights the specific rights would be less secure. These peripheral rights
come from the penumbras, formed by emanations of specific guarantees in the Bill of rights.
These create zones of privacy. (Penumbra: a shadowy, indefinite, marginal area—The partial
imperfect shadow outside the complete shadow of an opaque body.)
The 3rd, 4th, 5th Amendments protect privacy in specific instances and the 9th Amendment
says that the enumeration of rights in the constitution shall not be construed to deny other rights
that the people do in fact have. This is not about manufacture of contraceptives, but it is about
use, which is why it invades a zone of privacy.

ii. Earls: random drug testing in schools was ok because the interest in
keeping children safe from drugs was reasonable and this was not a
substantial obstacle to privacy because drug test results were kept
relatively confidential.
iii. Moore: zoning ordinances prohibiting or restricting rights of members of a
family from living together is intrusive on the right of family.
iv. Zablocki: There is a fundamental right to marry. This case dealt with a law
that substantially interfered with this right, so it was struck down.
d. Is it a Fundamental Right
i. Is it implied through other Express Rights
ii. Is the Court sticking close to history
iii. Is the Court sticking close to Framers’ intent
iv. “Concept of ordered liberty”
e. Framework for finding implied rights (Implied Rights are found through SDP)
1. Is it deeply rooted
2. Does History reveal it
3. Is it so common in Framers’ traditions that they would not have
thought of enumerating it

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 4. Reasoned judgment
f. Incorporation/Reverse Incorporation
g. SDP TEST: IMPACT IS MEASURED NOW
i. If there is substantial interference: SS (compelling interest, narrowly
tailored)
ii. If it is an incidental regulation: RB (presumption of validity and
reasonableness)
h. SDP: Is it substantial interference or incidental regulation:
i. Denial Scenario: Law criminalizes conduct or regulations that deny
approval
ii. Obstacle Scenario: obstacles are imposed to exercise of right
i. Outcome Matrix:
i. Not a right
ii. Is a right, but no substantial interference
iii. Is a right, and the law does substantially interfere

IX. Right to Abortion

a. Pre-viability: the Court does not permit any undue burden (substantial obstacle),
but it may have incidental regulations on a woman’s right to an abortion.
i. Informed consent requirement ok
ii. Parental notice with judicial bypass exception ok
iii. 24 hour waiting period ok
iv. Keeping medical records of abortion ok
v. Spousal notification: NOT ok
b. Post-viability: Abortion may be proscribed as long as there is an exception for the
life of the mother. Viability refers to the fetus’s tendency to survive outside the
womb. (Casey v. Planned Parenthood of Southeastern Pennsylvania) (struck
down spousal notification)
c. Funding for abortions: Harris v. McCrae: Nothing prevents Congress from
denying public funding for certain medically necessary abortions while permitting
funding of childbirth costs. Such a law is subjected to the Rational Basis standard
of review. Financial need does not create a suspect class.
d. Partial Birth Abortions: Gonzalez v. Carhart: Not all D & E procedures are
banned. Congress only banned partial birth D & E with the justification of
protecting the integrity and ethics of the medical profession and respecting the
dignity of human life. There is no substantial obstacle to abortion because other
procedures are available.

X. Emerging Rights
a. Lawrence v. Texas: Liberty includes freedom of thought, belief, expression, and
certain intimate conduct. Adults are free to engage in private conduct in the
exercise of their liberty.
i. Limits on Lawrence
1. Does not apply to minors
2. Does not involve persons who might be coerced

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 3. Does not involve commercial sex or public conduct
4. Does not force government to give formal recognition to
homosexual relationships.
b. Casey, and alternatively, Romer, provide the basis for saying that banning sodomy
is invalid. Laws that are passed with “Animus” will not be valid.
c. Right to Die
i. Washington v. Glucksberg: Suicide is not deeply rooted in American
tradition and personal autonomy individual interests are outweighed by
state’s interest in prevention coercion of patients and discrimination
against terminally ill.
ii. Prohibition against causing or aiding suicide does not offend the 14th
Amendment. Such laws pass the RB test because there is no fundamental
right to suicide.
iii. Court is very careful about expanding rights under the 14th Amendment

XI. Right to Travel

a. Law implicates right to travel when:
i. Law deters travel
ii. Law attempts to deter travel
iii. Law penalizes the exercise of the right
b. Right to Travel usually invokes SS, but EXCEPTION: Bona Fide Residency
Requirement:
i. States may distinguish residents from nonresidents
ii. States may treat nonresidents differently, including withholding or
charging more for benefits
iii. States can establish criteria for in-state status.
c. State may not affect constitutional rights based on citizen’s length of
residency (Saenz) (This would infringe on right to travel)
d. Domestic Relations Exception: (Sosna): Domestic relations bring very specific
concerns. Thus, laws that delay access to the courts for this purpose are not
invalid.
e. States may enhance punishments for crimes if offender left the state after
committing the crime because departure aggravates the consequences of conduct
that is already otherwise punishable. (Helms)
f. (Saenz) Right to Travel includes:
i. Right to enter and leave
ii. Right to be a “welcome visitor”
iii. Right to be treated as equal when domiciled therein
iv. Exception: Bona Fide Residency Requirement

Dunn v. Blumstein
Petitioner challenged the decision of a three-judge district court panel, striking down a durational
residence requirement for Tennessee voters as unconstitutionally restricting the fundamental
rights to vote and to travel. In order to register to vote, Tennessee residents were required by
statute to have lived in the State for 12 months, and in the county for three months, preceding the
election. The court held that petitioner failed to show a substantial and compelling state interest

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for imposing durational residence requirements that impinged upon the unconditional
fundamental personal rights to vote and to travel. Applying a strict equal protection test, the
court rejected petitioner's arguments that its interest in deterring election fraud and in ensuring
intelligent voter participation justified durational voting restrictions. Petitioner's statutory oath-
swearing system adequately ensured that voters were bona fide state residents and operated to
deter fraud. In enacting durational voting requirements, petitioner failed to use the least drastic
means to achieve its purpose.

XII. Right to Education

a. Education is not a fundamental right. RB test is applied.
b. Since there is no fundamental right, one does not measure impact. (San Antonio
Independent School District)
c. The stigma of illiteracy and the denial of the ability to contribute to the nation
(through denial of education) has been used to effectively create an animus case
by which a law that denies education to someone might be invalid. (Phyler v.
Doe)

Plyler v. Doe
Facts: This case concerned the denial of education to the children of illegal immigrants.
Analysis: These people cannot be treated as a suspect class since they are here illegally and
education is not a fundamental right, BUT: “The stigma of illiteracy will mark them the rest of
their lives… we deny them the ability to … contribute… in our Nation.” In other words, this
becomes an animus case. So even though RB was applied, the statute is invalid.

XIII.Right to Vote
a. Fundamental Right: is the law a:
i. Substantial obstacle (Miller)
ii. Incidental regulation: Government can regulate
1. Qualifications for voting: Age, residency, and Citizenship
2. Standards for counting results (fair and efficient elections)
b. Burson: Court held that the state has a compelling interest in ensuring that an
individual’s right to vote is not undermined by fraud in the election process. The
law that banned certain political speech (content-based regulation) survived strict
scrutiny.
c. Miller: Redistricting (gerrymandering) that is inexplicable on grounds other than
race must be narrowly tailored to a compelling state interest (SS). Racial
Gerrymandering is prohibited because classification by race is occurring.
d. Right to vote is more than the initial allocation of the franchise. (Counting votes is
also a part of the fundamental right to vote.) (Bush v. Gore)

XIV. Regulation of Speech and Expression

a. Government Regulation and Valid Laws:
i. Laws must not be vague or overbroad

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 1. A statute will be fail if no reasonably ascertainable standard of
guilt is prescribed. (Herndon)
2. Legislatures and courts can cure vagueness, but sometimes there is
no way to cure it. Overbreadth is the result of uncured vagueness.
Vagueness means that people don’t know what the law means until
the government says what it means. When vagueness authorizes
punishment of constitutionally protected conduct, it is
unconstitutionally overbroad. (Coates v. Cincinnati)
3. Overbreadth Doctrine is strong medicine

Broadrick v. Oklahoma
Facts: Oklahoma statute forbid partisan political activity by state civil servants. The plaintiffs
engaged in these activities and brought suit even though they conceded that the statute could
validly restrict them. They said the statute should be invalid because it also forbade
constitutionally protected activity, like wearing buttons. The Court found that the statute was
NOT overbroad.
Rule: When conduct not merely speech is involved, the overbreadth of a statute must not only be
real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.
“Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has
been employed by the Court sparingly and only as a last resort.”
- The jurisdiction of the Court was invoked on things that the plaintiffs were not even
involved in: Substituted Standing (third party standing): This is only done in First
Amendment cases
- Third party standing is allowed to challenge statute on behalf of those harmed by broad
scope of law. Law unenforceable against all if overbreadth is “substantial.” (bad guy
attack)
- Real Party in Interest on behalf of protected speech. Statute declared invalid only
partially, to keep it from reaching protected speech. (good guy attack)

4. Substantial Overbreadth: law cannot be enforced on anyone

a. Law that court cannot or will not cure
b. Standing relaxed to allow challenges, even by those whose
conduct is properly reached by the law (substituted
standing)
i. Bad guy attack (usually fails): third party standing
is allowed to challenge statute on behalf of those
harmed by broad scope of law. Law unenforceable
against all if overbreadth is real and substantial.
ii. Good guy attack: Real Party in Interest on behalf of
protected speech. Partially invalidate law.
c. Courts should avoid total invalidation unless:
i. Contrary to legislative intent
ii. Non-severable

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 iii. So poorly written that overbreadth is real and
substantial
d. Partial Invalidation is normal cure
i. Virginia v. Hicks: “Strong medicine” of overbreadth
doctrine should not have been used. Some of the
policy could have still been remedied through as-
applied litigation. (Policy had a notice-barment rule
for trespass on a private street) (Note the possible
state-action question posed by this fact pattern.
Marsh would control.)
ii. Laws cannot effect a “prior restraint” (Near v. Minnesota: an injunction
against a publication effected an unconstitutional prior restraint on
freedom of the press.)
iii. Injunctions against future speech are problematic when time is of the
essence
b. Restrictions on Time/Place/Manner
i. Content neutral TPM law must be narrowly tailored to achieve a
significant state interest (Mid-Tier)
1. Narrowly Tailored
2. Significant Government Interest
3. Ample Alternative Channels Open
ii. Content-based restrictions trigger SS
iii. Government cannot close the public forum to expression
1. Purely private religious speech that occurs in public forum cannot
be discriminated against (Capital Square)
2. Municipal Authorities have a duty to keep streets open and
available for movement of people and property. So long as such
legislation does not abridge the constitutional liberty of one
rightfully on the street to impart information through speech, it
may regulate conduct in the traditional public forum. (Schneider)
iv. Forum Types:
1. Traditional Public
a. Held in trust for the people. Thus, bans are presumptively
invalid
b. Content neutrality here is often driven by crime, litter,
noise, congestion, traffic, safety…
2. Designated Public
a. Requires an affirmative act
b. Government must intend to make property generally
available (Ark. Ed. Television Commission v. Forbes)
3. Closed Public (Krishna Consciousness)
a. Presumed Closed unless “designated public”
b. Doubts are resolved in favor of closed forum
c. Government is acting as proprietor: this triggers rational
basis

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 d. Exception: Officials cannot use closed forum to punish
speakers with whom they disagree
4. Private
a. Picketing outside of particular residences may be
prohibited because there is a compelling interest of
residential privacy and the ordinance must be narrowly
drawn to this interest. (Frisby)
b. Ordinances must leave open alternative channels of
communication.
c. Secondary Effects Doctrine
i. For the same reason that other zoning laws survive,
zoning laws regarding SOB’s survive. They do not
target speech but only secondary effects. (Alameda
Books) RB test remains in zoning cases.
ii. For zoning cases, municipalities may rely on
evidence that is reasonably relevant to showing a
connection between the regulation and the
government interest
iii. Alameda Books: Court asked
1. whether ordinance banned SOB’s altogether
2. whether ordinance was content-neutral
3. if ordinance served a substantial government
interest and reasonable alternative avenues
of communication remained available

XV. Associational Rights and Symbolic Speech

a. Right to Association
i. Two Types:
1. Intimate, close relationships
a. Familial and small, selective relationships
b. Remember: Moore v. East Cleveland
2. For the Purpose of Engaging in Protected Expression
a. Political, social, or economic, or educational, or religious
ii. Speech must be:
1. Expressive
2. Lawful (this is why gangs can be legislated against)
3. Protected speech
iii. Discrimination may be permitted in the right to association; TEST:
1. Group may discriminate as long as
2. The discrimination is connected to the association’s expression
a. Jaycees: because it was a large and unselective group, it
could not discriminate by not letting women into the group.
It lacked the expressive features that would have given it
constitutional protection (because it did not discriminate
enough).
iv. Special Circumstances

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 1. A state may not compel an organization to reveal names of its
members without demonstrating a controlling justification because
there would be a deterrent effect to joining the organization.
(NAACP v. Alabama)
2. “Civil liability may not be imposed merely because an individual
belonged to a group, some members of which committed violence.
For liability to be imposed by reason of association alone, it is
necessary to established that the group possessed unlawful goals.”
Claiborne Hardware
3. “The state interests embodied in NJ accommodation law do not
justify such a severe intrusion on the Boy Scouts rights to freedom
of expressive association.” “An association must merely engage in
expressive activity that could be impaired in order to be entitled to
protection.” Boy Scouts of America v. Dale

Boy Scouts of America v. Dale (Watch fact pattern on exam)

Boy Scouts win. “The state interests embodied in NJ accommodation law do not justify such a
severe intrusion on the Boy Scouts rights to freedom of expressive association.” “An association
must merely engage in expressive activity that could be impaired in order to be entitled to
protection.”
- This case presents the template to how an organization can survive the public
accommodation laws.
- Associations have evolving ideologies. Rehnquist makes this point in the majority.
- Here, the Boy Scouts set out to discriminate enough. They want only a particular type of
boy in their membership. Discrimination must be connected to a message that the
First Amendment protects. Test:
o Discrimination
o Discrimination’s connection to group’s message.

4. Southworth: University students may be required to pay an activity

fee that is disbursed to all student organizations because it does not
prefer any viewpoint over another by requiring fee payment.
b. Symbolic Speech
i. Speech elements given SS or MT
1. Mid-Tier test is same as it was for TPM restrictions
2. O’Brien Test (a version of MT applied when government interest
is unrelated to suppressing expression):
i. Law must be within power of government
ii. And be content-neutral
iii. And further a substantial interest
iv. And be narrowly tailored
3. “Narrowly tailored” is code for alternative communication
channels

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 4. Texas v. Johnson: O’Brien applies only where the government
interest is unrelated to the suppression of expression. Here the
government was suppressing an idea that it did not like. (flag
burning)
5. If on exam, it is a facial attack, can you conjure up a hypo in
which the law will pass? If so, then it survives the facial
challenge.
ii. Conduct elements given RB
1. O’Brien: statute was appropriately narrow in protecting
government interest and condemns only the non-communicative
impact of his act. Speech restrictions were not aim of the act.
2. City of Erie: nude dancing was prohibited by a public nudity
statute. This law was ok because the regulation was general and
unrelated to expression, meeting the O’Brien test.

XVI. Free Exercise Clause

a. “Congress shall make no law respecting the establishment of religion or
prohibiting the free exercise thereof.”
b. Free Exercise is multi-faceted:
i. Involves the right to believe and profess
ii. Forbids regulation of religion as religion
1. Cannot compel
2. Cannot punish “false” religions
3. Cannot pit one religion against another
iii. Right is not absolute
1. Neutral, generally applicable regulations are presumed valid.
c. Sherbert v. Verner: There was discrimination on the basis of religion (Saturday-
Sabbath observer was denied unemployment benefits while Sunday-Sabbath
observers were protected); strict scrutiny applies. The government cannot force
someone to give up their religious convictions with such a law.
d. Wisconsin v. Yoder: Hybrid case: involves the right of parents to raise their
children and the free exercise clause. Strict Scrutiny is applied in hybrid cases.
e. Smith Case: “The mere possession of religious convictions which contradict
relevant concerns of a political society does not relieve the citizen from the
discharge of political responsibilities…The government’s ability to enforce
generally applicable laws of socially harmful conduct cannot depend on
measuring the effects of the law on a religious objector’s spiritual development.”
(Law was neutral and generally applicable here: presumed valid.)
f. Lukumi: Court held that ordinances that were not neutral or generally applicable
violated free exercise clause. (Ordinances had prohibited animal sacrifices of a
religious group after the group proposed to move to the town.)

XVII. Establishment Clause (government speech—not private)

a. “Congress shall make no law respecting the establishment of religion or
prohibiting the free exercise thereof.”

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 b. The problem is that Government laws will, in some manner, benefit religion. The
challenge is to devise a uniform test for preventing direct aid and to come up with
a test for clearly identifying permissible indirect aid.
c. Establishment Clause Tests:
i. History (legislative prayer before congress starts, tax exemptions)
ii. Lemon Test (Secular purpose, secular effect, excessive entwinement
avoided) (Edwards v. Aguillard: Evolution case: no secular purpose)
iii. Endorsement Test (Allegheny v. ACLU: crèche and menorah)
iv. Free Speech (Public Forum Rules) (Lambs Chapel: Bible club at school)
d. The neutrality of the program can allow the Court to overlook the fact that
religious interests are furthered. (Everson)
e. Zorach v. Clauson: Where the government is neutral and simply accommodates
religion, then this is ok. The court notes that this nation is a religious people.
(“Release time” case)

Zorach v. Clauson
Students were allowed “release time” during which they could leave school if they chose and
attend religious instruction elsewhere.
“We find no constitutional requirement which makes it necessary for government to be
hostile to religion and to throw its weight against efforts to widen the effective scope of religious
influence… Here the public schools do no more than accommodate their schedules to a program
of outside religious instruction.”
- “We are a religious people whose institutions presuppose a supreme being”
- “When the state encourages religion it follows the best of our traditions”
- “The government must be neutral when it comes to competition between sects”
- “But government can close its doors or suspend its operations to allow citizens to repair
to their religious sanctuary.”

f. Neutrality is somewhat incompatible with the Lemon Test. The Lemon Test is
much more exacting.
g. Lemon Test Reconstituted in Agostini v. Felton (Public teachers offering remedial
instruction in public schools case)
i. Relaxed “entanglement”: “We have abandoned the presumption that the
placement of teachers on parochial school grounds results in
entanglement:
ii. Expanded “secular effect”: “We have departed from the rule that all aid
that directly aids the educational function is invalid.”
iii. Whenever the Lemon Test is applied, still expect unconstitutionality.
h. Ten Commandment Cases
i. McCreary: “If someone in the government hides religious motive so well
that the objective observer does not see it, then the establishment clause is
not violated.” One could walk through the courtyard and not even see the
Ten Commandments statue.

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 ii. Van Orden: Display was constitutional because the commandments have a
secular meaning and a place in history. The context of the monument
showed that it was used for its secular moral and historical message.
i. Locke v. Davey: Court says that this is different from Lukumi because it is a state
constitution case in which the state has only strengthened establishment
protections set by the Establishment Clause of the 1st Amendment. (In actuality,
this does not appear to be the case. The state had enacted a scholarship program
that excluded students who would be pursuing a degree in theology.)
j. Exam tips for choosing which Establishment Test to use:
i. Never analyze Establishment cases under the Free Speech Forum rules
unless the forum is a traditional public forum or designated public forum.
ii. History as a test is only used in the specific fact pattern of cases like
prayer before Congressional sessions.
iii. Lemon test and Endorsement test are most commonly applicable.

XVIII. Unprotected Speech

i. Types:
1. Libel
2. Obscenity
3. Child Porn
4. “Fighting Words”
5. Commercial Speech
6. Lawless Advocacy (Speech that is so inflammatory that it creates a
“clear and present danger”
ii. Regulations for unprotected speech need only pass the RB test
b. Libel: NY Times v. Sullivan Rule: prohibits a public official from recovering
damages for defamatory falsehood relating to his official conduct unless he
proves that the statement was made with “actual malice,” or reckless disregard for
its veracity.
i. Actual malice is very difficult to prove. State laws can punish libel against
public figures but only to the extent that there is malice. There must be an
utter disregard for the truth.
ii. “Neither factual error nor defamatory content suffices to remove the
constitutional shield from criticism of official conduct; the combination of
the two elements is no less inadequate.”
iii. Libel Laws and Opinion
a. Expressions of opinion, however unflattering, hyperbolic,
or mean-spirited, are absolutely protected
b. Checklist for Opinion
1. Statement made as opinion
2. Made regarding a matter of public concern
3. Does not imply or relate to defamatory facts
iv. Bartniki: (Wiretapping had occurred. Recording was sent to a radio
station.) The Court notes that punishing disclosures of lawfully obtained
info of public interest by someone who was not involved in the initial

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 illegality is not an acceptable means of serving those ends. Privacy
concerns give way when balanced against the interest in publishing
matters of public importance.
v. Florida Star: A newspaper may be punished for publishing truthful
lawfully obtained info only in rare instances. In this case, the law failed
because it was underinclusive, as the law had tried to prevent the
publication of sexual assault victim’s names, but it only prevented it in
limited instances.
vi. Private or Public Figure?
1. Gertz: “Private individuals are not only more vulnerable to injury
than public officials and public figures; they are also more
deserving of recovery… We hold that, so long as they do not
impose liability without fault, the States may define for themselves
the appropriate standard of liability for a publisher or broadcaster
of defamatory falsehood injurious to a private individual.” The
New York Times standard does not apply to private individuals.
2. Limited Public Figure (involuntary public figure)
a. Extremely rare
b. Issue is never solely whether libel arises out of matter that
is of public interest
c. Factors:
i. Nature of participation in matter that led to libel
ii. Whether plaintiff voluntarily injects himself into the
forefront to play a role in the matter
iii. Whether a person is drawn into a particular
controversy
d. Doubts are resolved in favor of finding an individual to
be a private figure
c. Obscenity
i. Four categories of obscenity
1. Obscenity: Unprotected
2. Child Porn: Unprotected (because of the state interest in
protecting children exploited in the production process)
3. Porn: Protected
4. Exception to the Rule: Broadcast sexually oriented speech
ii. Paris Adult Theatre Case: If the state can write a proper law, really bad
sexually oriented expression can be regulated
iii. Jenkins (applying the Miller Test): What is obscene must be something
more than nudity. This was decided under the standards laid down in
Miller. OBSCENITY DEFINITION: Expression unprotected only if
State can show that it:
1. Appeals to the prurient interest (community standard)
2. Depicts or describes sexual conduct in a patently offensive way
(community standard) (community standards in this element can
change…)

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 3. Lacks serious value (taken as a whole) (national standard=
“reasonable person”) (this element is here because of the chilling
effect)
iv. Unprotected speech in a pro-regulatory environment will always be
attacked because no one cares about unprotected speech. With the test
given above, the test brings civic life closer to sexually oriented speech. It
is so hard to get an obscenity conviction.
v. Ashcroft v. Free Speech Coalition: government cannot suppress lawful
speech as the means to suppress unlawful speech. Protected speech does
not become unprotected simply because it resembles the unprotected
speech. (Computer generated images of child porn was not the same as
actual child porn.)
vi. Note that because porn is protected, statutes that regulate against it, when
they are content-based, must be subject to strict scrutiny.
vii. Obscenity general observations:
1. Test designed to discourage regulation
2. Porn exception controls the doctrine (there is so much more there
that regulators would like to get at, but they cannot) (resolve
doubts in favor of this form of speech unless you find secondary
effects or unless you find a rare instance where the Miller test
is satisfied.)
3. Backlash against Obscenity Rules:
a. Porn and zoning (Renton)
b. Porn and secondary effects (Alameda Books)
c. Child Porn as “attack theme”
4. Broadcasting and Control of content:
a. F.C.C. v. Pacifica
5. Internet and Control of Content:
a. Non-invasive in form and unlimited spectrum
d. Fighting Words
i. Chaplinsky: Fighting words were “those which by their very utterance
inflict injury or tend to incite an immediate breach of peace.” They are not
protected by the Constitution. Face-to Face words likely to cause a fight
are fighting words.
ii. City of Houston v. Hill: “A properly trained police officer may reasonably
be expected to exercise a higher degree of restraint than the average
citizen… in the face of verbal challenges to police action, officers must
respond with restraint.”
1. If you are a government official, the fighting words doctrine
does not apply to you.
2. “We have repeatedly invalidated laws that provide police with
unfettered discretion to arrest individuals.” Police officers and
other government officials are supposed to exercise a higher
degree of restraint than the average citizen
iii. Virginia v. Black: You cannot go over a subset of fighting words with a
statute. You must go after all fighting words. Thus, a statute punishing

23
 cross-burning meant to intimidate would be ok, but treating cross burning
as prima facie evidence of intent to intimidate renders this statute
unconstitutional.
iv. RAV v. Minnesota: Court invalidates a statute that tries to prevent fighting
words through cross-burning.
v. Hostile Audience Exception
e. Commercial Speech
i. Government can place restrictions on commercial speech protected by the
first amendment if it directly advances a substantial government interest
and is not broader than necessary to achieve that interest.
ii. Central Hudson Test:
1. Is it lawful, truthful speech?
2. Does government have a substantial interest
3. Does law directly further interest
4. Is the law narrowly tailored?
f. Lawless Advocacy (Clear and Present Danger)
i. Bandenburg Test: Government must prove:
1. Speaker intended to incite the audience (shouting fire in a crowded
theater)
2. That words were likely to produce imminent lawless action
3. Words urged the action.
ii. Hostile Audience Exception (Feiner v. NY)
1. Police have right to silence a speaker to protect the peace
2. First duty of police is to protect speaker and deter violence.

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