Constitutional Law II Short Outline

Constitutional Law II Short Outline

Constitutional Law II – Short Outline

Levels of Constitutional Scrutiny

  • Rational Basis Scrutiny - Law must be rationally related to legitimate gov’t purpose
  • Intermediate Scrutiny - Law must be substantially related to important gov’t purpose
  • Strict Scrutiny - Law must be necessary to compelling gov’t purpose

3 levels of review / Classification/Interest / Ends
Objective of a law / Means
How do you do it? / Burden
(1) Strict Scrutiny most exacting
high standard / “Suspect Classes”
-National Origin
-Alienage* / Compelling gov’t purpose (really really important )
Gov’t must have truly significant reason for discriminating / Necessary
Narrowly tailored
Cannot achieve through any less discriminatory alternative / Gov’t
(2) Intermediate strict but not as much as strict / “Semi/Quasi Suspect”
-Non-Marital Children / Important gov’t purpose
Need not find that the purpose is compelling / Means substantially related to ends / Gov’t
(3) Rational Basis
Minimum level of scrutiny / All laws not subject to strict/intermediate
-Sexual Orientation / Legitimate gov’t purpose
Need not be compelling or important, just something the gov’t may legitimately do / Rationally or reasonably related / Challenger
Enormously deferential to the gov’t

Equal Protection Framework:

  1. What group?
  2. What level of scrutiny?
  3. Gov’t will argue for lowest level (rational basis)
  4. Challenger will argue for highest (strict scrutiny)
  5. Is scrutiny met?
  6. Apply test for appropriate level of scrutiny
  7. Over or underinclusive?

First Amendment Framework

  1. What forum?
  2. CB v. CN
  3. If CB – unprotected or less-protected?
  4. apply strict scrutiny
  5. If CN – apply intermediate scrutiny
  6. Level of Scrutiny
  7. Gov’t will argue for lowest level
  8. Challenger will argue for highest (strict scrutiny)


  1. Rational Basis Test
  2. (1) Does the law have a Legitimate Purpose?
  3. Romer v. Evans – CO laws re: gays not legitimate
  4. Any conceivable purpose is enough (US RR Retirement Board v. Fritz)
  5. (2) Is there a reasonable relationship
  6. laws will be upheld unless the gov’t action is clearly wrong, a display of arbitrary power, or not an exercise of judgment
  7. Substantial underinclusiveness is allowed b/c the gov’t “may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind” (RR Express v. NY)
  8. Substantial over-inclusiveness allowed (NY City Transit v. Beazer – methadone)
  9. Arbitrary & Unreasonable laws that therefore FAIL rational basis review
  10. Ex: US Dept of Agriculture v. Moreno – food stamps/hippies
  11. Ex: City of Cleburne TX v. Cleburne Living Center – group home for retarded
  12. Race & National Origin (SS)
  13. BEFORE 13th/14th Amendments, Court held that slaves were property, not citizens (Dred Scott)
  14. Strict Scrutiny for discrimination based on race & national origin → gov’t must demonstrate that the discrimination is necessary to achieve a compelling gov’t purpose
  15. Footnote 4 – discrete and insular minorities
  16. Proving the existence of race/national origin classification
  17. Classification on the FACE of the law
  18. Race specific classifications that disadvantage racial minorities upheld in Korematsu (Japanese Americans during WWII - only instance)
  19. Race Classifications burdening BOTH whites & minorities
  20. Loving v. VA – unconstitutional to forbid interracial marriage
  21. Palmore v. Sidoti – no deny custody when stepfather of different race
  22. Laws requiring separation of the races – only allowed if meet SS
  23. Plessy v. Ferguson – upheld separate but equal
  24. Brown v. Board of Education – no segregation in public education
  25. Facially Neutral laws w/a Discriminatory Impact/Administration
  26. Rule: require proof of discriminatory purpose (Davis) AND effect (Palmer)
  27. Discriminatory purpose
  28. WA v. Davis – police entrance exam
  29. McCleskey v. Kemp – death penalty to blacks
  30. City of Mobile v. Bolden – at large elections
  31. Discriminatory effect - Palmer v. Thompson (swimming pools)
  32. Rule: discriminatory purpose is proven by…
  33. Showing proof that the gov’t desired to discriminate
  34. It is not enough to prove that the gov’t took action w/knowledge that it would have discriminatory consequences (Feeney)
  35. Ex: Feeney – hiring preference to veterans
  36. Arlington Heights v. Metropolitan Housing – zoning low income
  37. Discriminatory use of Preemptory Challenges is not permitted based on race (Batson) or gender (JEB) by the prosecutor (Batson), the civil litigant (Edmonson) and criminal defendants (McCollum)
  38. Batson Test: whether impermissible discrimination in jury selection
  39. Δ prima facie case of discrimination
  40. burden shifts to prosecutor to offer race-neutral explanation
  41. court decides whether explanation is persuasive
  42. Remedies – the problem of School segregation
  43. Brown v. Board of Education – ordered school desegregation
  44. Massive Resistance – ex: Cooper v. Aaron (Little Rock & National Guard, reasserted that Brown is the law and the state’s must follow the federal judiciary)
  45. District Courts have broad discreation to impose remedies in school desegregation cases (Swann v. Charlotte-Mecklenburg Board of Education)
  46. Ex: Millikin v. Bradley – multidistrict remedy not generally allowed
  47. Racial Classifications Benefiting Minorities (SS)
  48. SS used to evaluate all gov’t affirmative action plans
  49. The use of race to benefit minorities in college and university admissions not allowed if using quotas or numerical qualifications
  50. Grutter v. Bollinger – MI Law upheld under SS b/c race a factor, not the
  51. Gratz v. Bollinger – MI undergrad point system invalidated
  52. Seattle School District case – white/non-white determinations not allowed
  53. Gender Classifications
  54. Early cases approving gender discrimination
  55. Bradwell v. IL – prohibited women licensed to practice law
  56. West Coast Hotel v. Parish – uphold minimum wage law for women
  57. Evaluate Gender with Intermediate Scrutiny (Craig v. Boran)
  58. Reed – invalidated gender classification (1st time) re: hierarchy of estates
  59. Frontiero – gender should be subject to SS (no to law re: women prove dependence)
  60. Craig v. Boren – Intermediate scrutiny (OK low alcohol beer law not okay)
  61. US v. Virginia – exclusion of women from VMI not okay & gov’t couldn’t demonstrate exceedingly persuasive justification
  62. Proving the existence of gender classification
  63. (1) can exist on the face of the law (the law in its very terms draws a distinction among people based on gender)
  64. (2) law is facially gender neutral, proving a gender classification requires demonstrating that there is both a discriminatory impact to the law & a discriminatory purpose behind the law
  65. Geduldig .v Aiello (deny pregnancy related benefits met rational basis review)
  66. Gender classifications benefiting women
  67. Based on role stereotypes – generally not allowed (Orr – alimony case)
  68. MI University for Women v. Hogan (can’t exclude men from nursing school)
  69. Michael M. v. Superior Court (statutory rape law against men only okay)
  70. Rostker v. Goldberg (upheld male-only draft registration)
  71. Gender classifications benefiting women allowed when they are designed to remedy past discrimination or differences in opportunity
  72. Califano v. Webster (Social Security Act benefits better for women = ok)
  73. Classifications benefiting women because of Biological differences between men & women allowed in Nguyen v. INS (favored mothers over fathers okay)
  74. Alienage Classifications (SS)
  75. Alienage discrimination = discrimination against non-citizens
  76. 14th Amendment applies to non-citizens also (Yick Wo)
  77. Strict Scrutiny as the general rule (Graham – can’t deny welfare to aliens)
  78. Exceptions to the SS rule
  79. (1) Alienage classifications relating to self-government & the democratic process (ex: state may deny aliens the right to vote or hold political office)
  80. Foley v. Connelie – okay to require citizenship to be police officer
  81. Ambach v. Norwick – okay to require citizenship to be elementary teacher
  82. (2) Congressionally approved discrimination (as a result of a federal law) subject to rational basis review
  83. Undocumented aliens and E/P – evaluate under intermediate scrutiny
  84. Plyer v. Doe (can’t prohibit free public education to alien kids b/c not their fault)
  85. Discrimination Against Non-Marital Children (intermediate scrutiny)
  86. If the law’s distinction is between marital & non-marital children, the law is likely to be invalidated (Levy – wrongful death)
  87. If the law’s distinction is among non-marital children, the Court will apply intermediate scrutiny in evaluating the law (Lalli – okay to require non-marital kids to inherit from father only if paternity established pre-death)
  88. Age Classifications (rational basis)
  89. MA Board of Retirement v. Murgia – upheld state law requiring police to retire at age 50
  90. Disability (rational basis) but ADA broadly prohibits discrimination
  91. Wealth Discrimination (rational basis)
  92. poverty is not immutable & most discrimination against poor is result of effects of law, rather than an product of intentional discrimination
  93. Discrimination Based on Sexual Orientation (rational basis)
  94. Romer v. Evans – invalidate CO law re: sexual orientation discrimination
  95. animus against gays & lesbians, even when presented as purported “moral” basis for a law is NOT sufficient to meet rational basis

II. First Amendment

  1. Freedom of Expression
  2. Theories why should freedom of speech be a fundamental right? → self-governance/discovering the truth/advancing autonomy/promoting tolerance
  3. Content Based v. Content Neutral
  4. Content Based – presumptively invalid; strict scrutiny applied
  5. laws that by their very terms distinguish favored speech from disfavored speech on the basis of views or ideas expressed
  6. viewpoint or subject matter regulations
  7. Content Neutral – intermediate scrutiny applied
  8. CN if it applies to all speech, regardless of the message
  9. CN = both viewpoint and subject matter neutral
  10. viewpoint neutral – ideology of the message
  11. subject matter neutral – topic of the speech
  12. Will be sustained under 1st Amendment if it (a) advances important gov’t interests (b) unrelated to the suppression of free speech, and (c) does not burden substantially more speech than necessary to further those interests
  13. Turner Broadcasting (cable TV must carry provisions were CN); Boos v. Barry (picketing near gov’t embassy); Republican Party of Minnesota v. White (elected candidates)
  14. problems in applying the distinction between CB and CN laws
  15. Secondary Effects Doctrine - City of Renton (zoning ordinance re: adult theatres)
  16. A facial CB regulation will be treated as CN if motivated by permissible CN purpose (such as controlling secondary effects)
  17. The CN justification must be unrelated to desire to suppress speech & unique
  18. When CB okay
  19. Finley – when gov’t subsidizing, may make choices based on content so long as viewpoint neutral (arts endowment case)
  20. U.S. v. American Library Association – constitutional for Congress to condition federal funds on requirement for internet filters at public libraries
  21. Vagueness & Overbreadth
  22. Vagueness – if a reasonable person cannot tell what speech is prohibited/permitted
  23. Coates v. Cincinnati – vague law re: sidewalk/annoying manner
  24. Overbreadth – regulates substantially more speech than the Constitution allows
  25. run around standing requirements – 3rd person can bring
  26. does not apply to commercial speech
  27. Schad v. Borough of Mount Ephraim – ordinance prohibiting all live entertainment overly broad
  28. Laws challenged under both Vagueness & Overbreadth (facial)
  29. Overbroad but not vague - Jews for Jesus (no 1st Amend. activity in airport)
  30. Vague not Overbroad – ex: if prohibit speech not protected by 1st Amendment
  31. Unprotected & Less Protected Expression
  32. Generally must meet rational basis
  33. But CB distinctions w/in categories of unprotected speech must meet SS (RAV)
  34. Unprotected Speech = incitement of illegal activity, fighting words, obscenity
  35. Less Protected Speech = commercial, some sexually oriented
  36. Incitement of Illegal Activity – concern audience may follow speaker into lawlessness
  37. Clear & Present Danger Test – Schenck (upheld leaflets re: draft)
  38. Requirements (1) likelihood of (2) imminent (3) significant harm
  39. Ex: Frohwerk v. U.S. (German newspaper); Debs (advocating socialism/criticize draft); Abrams (Russian immigrant leaflets criticizing US military efforts)
  40. Reasonableness Approach – upheld so long as prosecution reasonable (Gitlow – left wing manifesto); Whitney v. CA (communist labor party – case *discredited*)
  41. The Risk Formula Approach – whether the gravity of the evil, discounted by its improbability, justifies invasion of free speech as necessary to avoid danger (Dennis – teaching Marx)
  42. The Brandenburg Test – advocacy can be punished only if there is (a) imminent harm, (b) a likelihood of producing imminent illegal conduct and (3) an intent to cause imminent illegality (case re: KKK incitement)
  43. Post-Brandenburg – mere advocacy of force not enough (NAACP v. Claiborne)
  44. Fighting Words – concern that audience may be lawless in reaction to speaker
  45. TODAY: fighting words law not likely to survive
  46. If narrow – deemed impermissible CB restriction on speech
  47. If broad – invalidated in vagueness and overbreadth terms
  48. Chaplinsky (Jehovah’s conviction upheld) – fighting words, which by their very utterance inflict injury or tend to incite are unprotected
  49. 2 Situations of fighting words
  50. (1) likely to cause a violent response against the speaker
  51. (2) an insult likely to inflict immediate emotional harm
  52. Never overturned Chaplinsky, BUT never again upheld fighting words conviction
  53. Instead, USSC employed narrowing, Vagueness/Overbreadth, and CB restrictions to avoid fighting words convictions
  54. Ex: Narrowing -- Street (flag burn ok); Cohen (fuck draft jacket ok); TX v. Johnson (flag burning = protected speech)
  55. Ex: Vague/Broad – Gooding – GA law prohibiting opprobrious/abusive language
  56. Ex: CB restrictions - RAV – ordinance prohibiting hate speech/symbols
  57. Hostile Audience
  58. applied C&P Danger test in dealing w/how the gov’t may punish speech that provokes a hostile audience reaction
  59. Feiner – upheld conviction re: critical President speech where crowd angered
  60. TODAY - Police should 1st try to control the audience & stop the speaker only if crowd control impossible and threat to breach of peace is imminent
  61. Racist Speech
  62. Beauharnais – strong authority for gov’t to restrict racist speech (but ? good law today)
  63. When gov’t tries to regulate hate speech by banning it – problematic CB, vague, broad
  64. Virginia v. Black – unconstitutional VA law prohibiting cross burning w/intent intimidate
  65. Held (1) gov’t can’t prohibit all cross burning, (2) burning w/intent of true threat not protected, and (3) need individual proof per case of true threat
  66. Sexually Oriented Expression
  67. Obscenity - unprotected (Roth)
  68. obscene material appeals to prurient interest (not synonymous w/sex)
  69. Paris Adult Theatre – arguable correlation between obscene material & crime
  70. Miller - 3 part test for whether something is obscene (guidelines for court)
  71. (1) material must appeal to prurient interest decided by a community standard, and
  72. (2) patently offensive under the law prohibiting obscenity; and
  73. (3) taken as a whole it must lack SLAP value
  74. Should be a new exception for porn - MacKinnon
  75. Child Pornography – not allowed b/c gov’t interest in protecting children
  76. doesn’t have to fit under Miller test for obscenity, just plainly NOT allowed
  77. NY v. Ferber – upheld law prohibiting making/selling child porn
  78. Aschcroft v. Free Speech – child porn only when real children used
  79. Protected but Low-Value Sexual Speech – do not meet test for obscenity and thus protected by 1st Amendment (but deemed low value and gov’t can regulate)
  80. Zoning ok - Young v. American Mini Theatres / Renton – secondary effects
  81. Nude Dancing – Barnes v. Glen – gov’t may completely ban nude dancing
  82. Can regulate symbolic speech if (a) sufficiently justified w/in gov’t constitutional powers, and (b) furthers important gov’t interest unrelated to suppression of free expression, and (c) incidental restrictions no greater than essential
  83. City of Erie v. Paps – upheld no nudity ordinance as CN b/c interest in combating secondary effects (no proof needed)
  84. Should there be a category as low-value sexual speech?
  85. Gov’t Techniques for Controlling Obscenity & Child Pornography
  86. Gov’t can prohibit sale/distribution/exhibition of obscene material even to willing recipients, BUT it cannot prohibit/punish private possession (Stanley), except for child porn (Osborne)
  87. Profanity & “Indecent” Speech/Expression – generally protected, but exceptions
  88. Cohen v. CA (fuck draft jacket ok) – strongest protection for profanity
  89. Broadcast Media - FCC v. Pacifica (Carlin filthy words)
  90. gov’t can prohibit profane/indecent speech b/c unique medium
  91. Telephones - Sable Communications (can’t eliminate dial-a-porn)
  92. The Internet – Court has been very protective
  93. Reno v. ACLU – gov’t can’t restrict transmission of obscene material over the internet by restricting availability to adults & children
  94. Ashcroft v. ACLU- COPA regulating commercial sex sites by credit card requirements was a CB restriction on speech and failed SS (filtering ok)
  95. Cable TV – can have consumer ask to restrict channel, but that’s all
  96. Commercial Speech
  97. Rules:
  98. Speech that does no more than propose a commercial transaction is protected (VA State Board Pharmacy - ads with drug prices ok)
  99. Advertising illegal activities or false/deceptive ads not protected (VA Board)
  100. true ads that inherently risk deception not protected (Freidman - trade names)
  101. Overbreadth doctrine does not apply to commercial speech regulations
  102. Commercial speech = proposes a commercial transaction (VA Board), expression related solely to economic interests (Central Hudson)
  103. 3 Characteristics of Commercial Speech (Bolger v. Young’s Drugs Products)
  104. (1) advertisement of some form
  105. (2) refers to a specific product
  106. (3) speaker has an economic motivation for the speech
  1. Test for evaluating regulation of commercial speech (Central Hudson) gov’t burden
  2. (1) is the advertising false/deceptive or illegal
  3. if Yes – unprotected / if no = see 2nd prong
  4. (2) gov’t restriction justified by substantial gov’t interest (ends) (intermed S)
  5. If Yes – see 3rd prong / if no = unprotected
  6. (3) law directly advances the gov’t interests (means) (intermediate S – fit)
  7. (4) regulation of speech no more extensive than necessary to achieve the gov’t interest (means) (intermediate scrutiny) (narrowly tailored – Fox)
  1. Conduct that Communicates (expressive) – words, symbols, conduct, marching, picketing
  2. Methodology
  3. apply the Spence Test
  4. 2 Factors whether conduct is communicative
  5. (1) intent to convey a particularized message
  6. (2) substantial likelihood the message would be understood by those who view/receive it
  7. apply the O’Brien Test (law prohibiting burning draft card okay)
  8. A gov’t regulation is sufficiently justified if…
  9. Gov’t regulation is w/in the constitutional power of the gov’t (looking for neutral articulation of gov’t power)
  10. Gov’t interest is unrelated to the suppression of free expression [CB or CN?]
  11. If Yes (CN) → continue w/prongs 3 & 4 (applying intermediate scrutiny analysis for CN regulations)
  12. If No (CB) → apply strict scrutiny!
  13. Ends: does it further an important or substantial governmental interest
  14. Means: is it an incidental restriction on 1st Amendment expression
  15. Ex: flag burning – constitutionally protected form of speech (TX v. Johnson)
  16. Ex: spending money = political speech (Buckley v. Valeo – contribution limits and disclosure requirements okay, but expenditure limits invalidated)
  1. FORUMS available for expression
  2. Overview: scrutiny for the forum controls, regardless of whatever else you have
  3. summary of forum from Perry
  4. Public Forum - “streets, parks, and sidewalks”
  5. Traditional: Hague (can meet in street/park w/o permit); Schneider (leaflets)
  6. Modern Examples: Mosley (picketing by school); Hill (abortion picket ok TPM)
  7. CB → strict scrutiny
  8. the state must show the regulation was necessary to serve a compelling gov’t interest and is narrowly tailored to achieve that end
  9. CN → time, place, manner (TPM)
  10. Intermediate Scrutiny - Gov’t can regulate if CN, or reasonable TPM that serves important gov’t interest, narrowly tailored, & leaves open adequate alternatives for speech (Hill)
  11. Licensing/Permit – ok if serve imp purpose & give clear criteria/no discretion
  12. Cox (ok limit 1 parade at a time); Forsyth (fee up to $1000 not ok)
  13. *Gov’t need not use the least restrictive alternative, though must be narrowly tailored (Ward v. Rock – concert in CP must use city sound engineers)
  14. Limited/Designated Public = gov’t property voluntarily opened for expressive activity
  15. Gov’t can close down the forum but as long as it remains open, it is bound by the same standards as a traditional public forum
  16. CB → strict scrutiny (see above)
  17. CN → time, place, manner
  18. Ex: Widmar – school/university opens to student groups, have to allow religious
  19. Can limit public forum, so long as no viewpoint restriction & reasonable (Good News Club)
  20. Non-public Forum (still public)
  21. gov’t property where okay to reserve for non-speech uses, so long as it is viewpoint neutral, reasonable, and not an effort to suppress expression
  22. Adderly (prison); Greer (military); Lehman (bus ads); Kokinda (post office); Krishna (airports); Forbes (candidate debate)
  23. Private Property – there is no right to use private property for speech purposes!
  24. privately owned, so no state action &  Constitution does not apply
  1. Religion
  2. What is religion?
  3. Attempt to define religion under the Selective Service Act - US v. Seeger
  4. Requirement for sincerely held beliefs - US v. Ballard
  5. Relevance of Religious Dogma and Shared Beliefs
  6. Free Exercise of Religion
  7. freedom to believe – absolute right / freedom to act – not absolute
  8. The Current Test
  9. Employment Division v. Smith – distinctions between gov’t actions that burden religion and invoke SS, and gov’t actions of a neutral application (like drug laws) that incidentally affect the F/E of religion
  10. The Law BEFORE Smith
  11. Sherbert v. Verner
  12. Gov’t Benefit Cases
  13. Compulsory Schooling
  14. Cases Rejecting Exemptions Based on the F/E Clause
  15. The law AFTER Smith
  16. Church of Lukumi Babalu Aye – applied SS → unconstitutional
  17. Is denial of funding for religious education a violation of F/E of Religion?
  18. Locke v. Davey – upheld WA scholarship excluding devotional degrees
  19. Establishment Clause
  20. Competing Theories of the Establishment Clause
  21. Strict Separation of church & state (Jeffersonian)
  22. Lemon Test – step by step way of separating church & state
  23. (1) secular purpose – statute must have secular legislative purpose
  24. (2) secular effect – principle or primary effect must not advance nor inhibit religion
  25. can only accommodate to allow F/E
  26. (3) excessive entanglement – must not foster this
  27. Neutrality Theory – no endorsement of religion
  28. Accommodation – no “coercion”
  29. Theories applied: County of Allegheny v. ACLU (holiday display at court)
  30. Gov’t Discrimination Among Religions will only be allowed if it meets SS
  31. If there is not discrimination, evaluate under Lemon
  32. Larson v. Valente – unconstitutional charitable orgs funding requirements