CONSTITUTIONAL LAW II

HUDSON FALL 2023 KEY:

____→ CONSTITUTIONAL
EQUAL PROTECTION PROVISIONS/LAWS
I. INTRODUCTION ____→ TESTS/REMEMBER
____→ CASES
A. CONSTITUTIONAL PROVISIONS- HISTORY AND CONTEXT
____→ KEY TERMS
B. FRAMEWORK
____→ RULES FROM CASES
1. Generally
____→ IMPORTANT QUOTES
2. What is the classification?
3. What is the appropriate level of scrutiny?
4. Application
II. RATIONAL BASIS REVIEW
A. DOES THE LAW HAVE A LEGITIMATE PURPOSE?
1. Romer v. Evans (1996)
2. Must the State's Explanation of Law Be the Actual Purpose or is Any Conceivable Purpose for the Law Enough?
B. THE REQUIREMENT FOR A “REASONABLE RELATIONSHIP”
III. CLASSIFICATIONS BASED ON RACE AND NATIONAL ORIGIN
A. RACE DISCRIMINATION AND SLAVERY BEFORE THE THIRTEENTH AND FOURTEENTH AMENDMENTS
B. STRICT SCRUTINY FOR DISCRIMINATION BASED ON RACE AND NATIONAL ORIGIN
C. PROVING THE EXISTENCE OF A RACE OR NATIONAL ORIGIN CLASSIFICATION
1. Race and National Origin Classifications on the Face of the Law
a) Race Specific Classifications that Disadvantage Racial Minorities
b) Racial Classifications Burdening Both Whites and Minorities
c) Laws Requiring Separation of the Races/Jim Crow
d) Separate but Equal Affirmed
e) Initial Attack on “Separate but Equal”
f) Brown v. Board of Education I (1954)
g) Following Brown v. Board, The Invalidation of Segregation in Other Contexts
2. Facially Neutral Laws with a Discriminatory Impact or with Discriminatory Administration
a) The Requirement for Proof of a Discriminatory Purpose
b) How is a Discriminatory Purpose Proven?
c) Discriminatory Use of Peremptory Challenges
D. RACIAL CLASSIFICATIONS BENEFITING MINORITIES
1. The Use of Race to Benefit Minorities in College and University Admissions
PROCEDURAL DUE PROCESS
I. GENERALLY
II. WHAT IS A DEPRIVATION?
A. NEGLIGENCE
1. Is government negligence sufficient to create a deprivation or must there be a reckless or intentional government action?
2. When is the government’s failure to protect a person from privately inflicted harms a deprivation?
B. IS IT A DEPRIVATION OF LIFE, LIBERTY, OR PROPERTY?
1. The “Rights-Privileges” Distinction and its Demise
2. What is a Deprivation of Property?
3. What is a Deprivation of Liberty?
a) Reputation as a Liberty Interest
b) Liberty Interests for Prisoners
III. PROCEDURES
A. WHAT PROCESS IS DUE?
1. Matthews Test
FUNDAMENTAL RIGHTS AND SUBSTANTIVE DUE PROCESS
I. FUNDAMENTAL RIGHTS FRAMEWORK
A. GENERALLY

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 1. The Concept of Fundamental Rights
B. FRAMEWORK
1. Is There a Fundamental Right?
2. Is the Constitutional Right Infringed?
3. Is There Sufficient Justification for the Government Infringement?
4. Is the Means Sufficiently Related to the Purpose?
C. FAMILY AUTONOMY
1. The Right to Marry
2. Rights of Unmarried Fathers
3. The Right to Keep the Family Together
4. The Right of Parents to Control the Upbringing of Their Children
D. REPRODUCTIVE AUTONOMY
1. The Right to Purchase and Use Contraceptives
2. The Right to Abortion
FREEDOM OF EXPRESSION
I. FREE SPEECH
A. HISTORY
1. Why do we have the First Amendment?
2. Main rationales for the First Amendment Freedom of Speech
B. ANALYSIS
C. CONTENT-BASED AND CONTENT-NEUTRAL LAWS
D. VAGUENESS AND OVERBREADTH
E. PRIOR RESTRAINT
F. UNPROTECTED AND LESS PROTECTED SPEECH
1. Clear and Present Danger
2. Incitement
3. Fighting Words
4. True Threats
5. Obscenity
6. Profanity and Indecency
7. Commercial Speech
8. Defamation
9. Intentional Infliction of Emotional Distress
10. Expressive Conduct
G. PUBLIC FORUM DOCTRINE
H. GOVERNMENT AS EDUCATOR AND EMPLOYER
1. Education/Student Speech
2. Speech Rights of Government Employees
II. FREE EXERCISE
A. ABSOLUTE PROTECTION FOR FREEDOM OF BELIEF
B. FREE EXERCISE HISTORY
C. THE CURRENT TEST
D. SUPREME COURT DECISIONS SINCE EMPLOYMENT DIVISION V. SMITH

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EQUAL PROTECTION
I. INTRODUCTION
A. CONSTITUTIONAL PROVISIONS- HISTORY AND CONTEXT
1. The Reconstruction Amendments→ Enacted by the 39th Congress’ “radical republicans”
a) 13th Amendment→ Outlawed slavery and involuntary servitude
(1) Overruled Dred Scott v. Sandford
b) 14th Amendment→ Provided national citizenship to all those born or naturalized in the US, including those
formerly enslaved
(1) Equal protection, due process, privileges and immunities
c) 15th Amendment→ Prohibited racial discrimination in voting
(1) Outlawed literacy tests
2. The Equal Protection Clauses of the 14th and 5th Amendments are the key provisions used to combat invidious
discrimination and to safeguard fundamental rights
a) 5th Amendment→ requires the federal government to provide equal protection under the laws
b) 14th Amendment→ applied EP to the states
3. “The Equal Protection Clause of the 14th Amendment is essentially a direction that all persons similarly situated
should be treated alike”
B. FRAMEWORK
1. Generally
a) Proving discrimination→ Generally, there must be intent on the part of the government to discriminate to
have an Equal Protection violation. A discriminatory effect is generally not enough.
2. What is the classification?
a) Facially discriminatory
(1) Strauder v. West Virginia→ “Only white men property owners over 21 can serve on juries”
b) Facially neutral with discriminatory effects (discriminatory application)
(1) Yick Wo v. Hopkins→ Ordinance that required wood-built laundromats apply for a permit, only asian
owned laundromats were denied permits
c) Discriminatory motive
(1) Really hard to prove, McCleskey v. Kemp→ Race of murderer and victim affected whether a Δ got the
death penalty, proven by academic study but still not enough.
3. What is the appropriate level of scrutiny?
a) Strict Scrutiny→ The most demanding standard of judicial review used by courts.
(1) Requires that the law or policy being challenged supports a compelling governmental interest, is narrowly
tailored to achieve that interest, and is the least restrictive means available to achieve that interest
(a) Means that there is a truly significant reason for discrimination and the government cannot achieve the
same goal through any other alternative
(i) Government holds the burden of proof
(2) Applies to when laws discriminate based on race, national origin, or alienage (RAN)
(a) Applies when a suspect class or fundamental right is at issue
(i) Suspect class→ groups frequently subject to discrimination (RAN)
(ii) Fundamental right→ a right enumerated in the constitution (voting, speech, procreation,
access to judicial process, interstate travel)
(a) Direct violation/impact = strict scrutiny
(b) Incidental violation/impact = lower level
(3) “Strict in theory but fatal in fact” | “Strict scrutiny leaves few survivors”
b) Intermediate Scrutiny→ Also known as “heightened scrutiny”
(1) Requires that the law or policy being challenged supports an important government purpose/interest and
must be substantially related to achievement of those objectives
(2) Applies to laws the discriminate on the basis of gender, nonmarital children
(a) Government holds burden of proof
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 c) Rational Basis→ Default test for equal protection challenge if not one of the ^ categories
(1) Legislation is presumed to be valid and will be upheld if the classification drawn by the statute is rationally
related to a legitimate state interest
(a) Legitimate purpose→ at the very least, a traditional police power (protecting safety, public health,
morals), but basically anything not forbidden by the Constitution
(2) Laws are rarely declared unconstitutional when analyzed under rational basis review
(3) Challenger of law has the burden of proof
4. Application
a) Does the government meet the standard of review/level of scrutiny?
(1) Court evaluates both the law’s ends and means
(2) Overinclusive→ The law applies to those who need not be included in order to achieve the law’s
purpose = the Overbreadth Doctrine
(a) Unnecessarily applies to a group of people (Korematsu = one of the only times SCOTUS approved
race based discrimination and upheld a law under strict scrutiny, in retrospect the law was
overinclusive and should have been struck down, US has since apologized)
(3) Underinclusive→ Doesn’t apply to individuals who are similarly situated to those whom the law DOES
apply
(4) Under/overinclusiveness does necessarily = unconstitutional
(a) “One step at a time” approach to issues is okay
b) Intro to application of EP analyses
(1) Johnson v. California →“Classifications based on race raise special fears that they are motivated by an
invidious purpose… public respect for our system is undermined when the system discriminates based on
race”
(a) Inmates were separated by race for their first 60 days in the CA Dept of Corrections because of
“racially motivated violence”
(i) CoA applied rational basis because they believed prisoners deserve less rights
(ii) SCOTUS reversed, applying strict scrutiny because race is still race, even in prison
(a) Held strict scrutiny MUST apply when a law discriminates on race, and that this law
failed because there were less restrictive means available to achieve the same purpose
(like analyzing inmates’ hx/likelihood of violence on an individual basis)
(2) Civil Rights Cases→ Dealt with the constitutionality of the Civil Rights Act of 1875 that outlawed
racial discrimination in public accommodations
(a) Held the CRA of 1875 unconstitutional
(i) Although this holding has been overturned, the effect still survives→ the Equal Protection
Clause does not apply to purely private acts of discrimination, only to state/government
action.
(3) Plessy v. Ferguson→ upheld separate but equal doctrine of accommodations for whites and non-whites
(a) John Marshall Harlan dissent→ “Our constitution is color-blind, and neither knows nor tolerates
classes among citizens”

II. RATIONAL BASIS REVIEW

A. DOES THE LAW HAVE A LEGITIMATE PURPOSE?
1. Romer v. Evans (1996)
a) Challenge = “Amendment 2” → CO law prohibiting anti-discrimination protections for LGBTQ+
community
b) SoR: Rational Basis
c) Kennedy majority says law is both over and under inclusive
(1) Overinclusive because it applies to all protections of democratic means
(2) Underinclusive because it only applies to LGBTQ+
(3) No relationship to any state interest

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 d) “Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by
anything but animus toward the class it affects”
(1) Animus→ malevolent ill-will
e) RULE: A law prohibiting anti-discrimination protections for the gay, lesbian, and bisexual community violates
the Equal Protection Clause of the Fourteenth Amendment.

2. Must the State's Explanation of Law Be the Actual Purpose or is Any Conceivable Purpose for the Law
Enough?
a) A law will be upheld as long as the government’s lawyer can identify some conceivable legitimate purpose,
regardless of whether that was the government’s actual motivation
b) The actual purpose behind a law is irrelevant and the law must be upheld “if any statement of facts reasonably
may be conceived to justify” its discrimination

B. THE REQUIREMENT FOR A “REASONABLE RELATIONSHIP”

1. City of Celeburne, Texas v. Cleburne Living Center (1985)
a) Challenging = the denial of a special use permit for a mentally ill home due to a zoning ordinance
b) States argument = the location of the home (near a school and in a floodplain) posed issues and caused a
negative attitude by nearby property owners, legal responsibility for the actions of residents, size and number of
occupants
c) SoR: Rational Basis
d) Holding: Based on disparate treatment, problems posed by a home for mentally ill are no different from those
posed by a fraternity, sorority, nursing home, etc. and those types of homes weren’t subject to the zoning
ordinance
e) RULE: The mentally disabled are not a quasi-suspect class and thus any legislative regulations affecting their
rights are subject to rational basis review and not intermediate scrutiny, but even under rational basis the law is
invalid.
(1) Quasi-suspect class: classes we apply intermediate scrutiny to (gender, outside of marriage children)
(a) Usually accorded economic/social legislation, but they don’t always have a history of discrimination
against them
(b) CoA held that the mentally ill is a quasi-suspect class and any legislation discriminating against them
is subject to intermediate scrutiny- SCOTUS said no, rational basis

III. CLASSIFICATIONS BASED ON RACE AND NATIONAL ORIGIN

A. RACE DISCRIMINATION AND SLAVERY BEFORE THE THIRTEENTH AND FOURTEENTH AMENDMENTS
1. Dred Scott v. Sandford (1857)
a) Missouri Compromise→ admitted MO as a slave state but prohibited slavery in the territories north of the
latitude of 36/30. Territories below this line could decide whether to allow slavery and could make that
choice when admitted as states
b) RULE: People of African descent brought to the United States and held as slaves, as well as their descendants
(either slave or free), are not considered citizens of the United States and are not entitled to the protections and
rights of the Constitution.
(1) I.e. slaves are property not citizens (meaning Π didn’t have the right to bring a suit), MO Compromise is
unconstitutional
c) Overturned by 13th and 14th amendments

B. STRICT SCRUTINY FOR DISCRIMINATION BASED ON RACE AND NATIONAL ORIGIN

1. Racial classifications will be allowed only if the government can meet the heavy burden of demonstrating that the
discrimination is necessary to achieve a compelling government purpose
a) AND the compelling government purpose cannot be achieved through any less discriminatory alternative
b) ALL racial classifications, whether disadvantaging or helping minorities, MUST meet strict scrutiny
2. Court has long recognized that the primary purpose of the 14th Amendment was to protect African Americans

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 a) Emphasized that the long history of racial discrimination makes it likely that racial classifications will be based
on stereotypes and prejudices
(1) Discrimination on the basis of race is more likely to reflect racial prejudice than legitimate public concerns
3. US v. Carolene Products Co. (1938)
a) “Prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail
the operation of those political processes ordinarily to be relied upon to protect minorities” and thus “may call
for a correspondingly more searching judicial inquiry”

C. PROVING THE EXISTENCE OF A RACE OR NATIONAL ORIGIN CLASSIFICATION

1. Race and National Origin Classifications on the Face of the Law
a) Race Specific Classifications that Disadvantage Racial Minorities
(1) Korematsu v. United States (1944)
(a) Civilian Exclusion Order displaced > 100,000 Japanese Americans from their homes to internment
camps for “national security” purposes after Pearl Harbor; Π claims this deprived 5th Amendment
rights
(b) SoR: Strict scrutiny
(i) ONLY time strict scrutiny has been applied and a law been upheld
(c) RULE: State laws restricting the rights of persons based on race are subject to strict scrutiny and will
only be upheld if they further a “pressing public necessity” (war powers do to protect from espionage
and sabotage)
(d) Murphy dissent: “Ugly abyss of racism”
(i) Questioned the existence of evidence of sabotage to make law okay
(ii) There were less discriminatory means available (looking at hx of individuals)
(iii) “Legalization of racism” = “Utterly revolting”
b) Racial Classifications Burdening Both Whites and Minorities
(1) History
(a) Pace v Alabama (1882)→ Court upheld AL law that provided for harsher penalties for adultery and
fornication if the couple was interracial than if the couple were of the same race
(b) McLaughlin v. Florida (1964)→ SCOTUS struck down FL law prohibiting the habitual occupation
of a room at night by an unmarried interracial couple
(2) Both of ^ were precursors to Loving v. Virginia (1967)
(a) Interracial couple married in DC, moved to VA and charged with violation of prohibition of anti
miscegenation statute
(b) Challenging: Anti miscegenation statute of VA (“Racial Integrity Act”) as violation of 14th
Amendment DP & EP→ Fundamental right to marry = DP violation
(i) The Racial Integrity Act was enacted to preserve the races as separate
(a) Very important to Chf Just Warren: basically an endorsement of white supremacy
(c) State argument/hx: 16 states had anti miscegenation statutes, some statutory and some contained
in state constitutions→ just because something is in a state constitution doesn’t mean it isn’t subject
to federal review
(i) Trend: 14/16 states had repealed their anti miscegenation statutes
(a) “Evolving standards of decency” = when laws move more toward progressive social
norms
(ii) 10th Amendment argument that this was exclusive state function
(d) SoR: Strict scrutiny
(e) RULE: A state may not restrict marriages between persons solely on the basis of race under the Equal
Protection and Due Process Clauses of the Fourteenth Amendment.
(f) Equal application (applied the same to whites and blacks) is not enough to remove classifications from
the 14th Amendment’s proscription of all invidious racial discrimination “Odious to the 14th’s EP
Clause”

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 (i) Rejected 10th Amendment arg stating this isn’t even a legitimate state purpose, only rooted in
white supremacy
(3) Palmore v. Sidoti (1984)
(a) Challenge: Judgment of FL court divesting mom of custody of infant bc she married someone of a
different race
(b) State arg: “Lifestyle unacceptable to the father and society”; concerns of environmental
pressures/stigmatization of the child
(c) RULE: The effects of racial prejudice cannot justify a racial classification that removes a child from
their mother when the mother is an appropriate parent
(i) “Constitution cannot control prejudices but neither can it tolerate them”
(ii) “Private biases may be outside the reach of the law, but the law cannot, directly or indirectly,
give them effect”
c) Laws Requiring Separation of the Races/Jim Crow
(1) Plessy v. Ferguson (1896)
(a) RR accommodations segregated. Blacks, drunks, disorderly conduct = second class accommodations.
Π refused to move from white car
(b) RULE: Public accommodations that are segregated according to racial classifications do not violate the
Equal Protection Clause of the Fourteenth Amendment as long as such accommodations are “separate
but equal.”
d) Separate but Equal Affirmed
(1) Cumming v. Richmond County Board of Education (1899) → Upheld the government’s operation of a
high school open only for white students while none was available for black students
(2) Berea College v. Kentucky (1908) → Affirmed the conviction of a private college that had violated KY
law that required the separation of the races in education
(3) Gong Lum v. Rice (1927) → Mississippi could exclude a child of chinese ancestry from attending schools
reserved for whites
e) Initial Attack on “Separate but Equal”
(1) Missouri ex rel. Gaines v. Canada (1938) → Court held it was unconstitutional for MO to refuse to
admit blacks to its law school, but instead to pay for blacks to attend out-of-state law schools
(2) Sweatt v. Painter (1950) → For the first time, the Court ordered that a white university admit a black
student
(3) McLaurin v. Oklahoma State Regents (1950) → Held that once blacks were admitted to a previously all-
white school, the university could not force them to sit in segregated areas of classrooms, libraries, and
cafeterias
(a) Such segregation hindered the black student’s ability to study, engage in discussion, and exchange
views with other students
f) Brown v. Board of Education I (1954)
(1) Combined 5 cases claiming the separate but equal doctrine violated the 14th’s EP Clause
(2) Case argued in 1953, court couldn’t come to an agreement, but would have affirmed Plessy in a 5-4
decision, but then CJ Vinson died, and CJ Warren was appointed and persuaded all other justices into a
unanimous opinion issued in 1954
(a) A unanimous ruling from the Court in this case is seen as essential in light of the intense opposition to
integrating schools
(3) HOLDING: A sense of inferiority affects the motivation of a child to learn. Separate but equal has no place
in the field of public education because separate educational facilities are inherently unequal
(4) “To separate children from others of similar age and qualifications solely because of their race generates a
feeling of inferiority as to their status in the community that may affect their hearts and minds in a way
unlikely ever to be undone”
(5) RULE: Separate educational facilities based on racial classifications are inherently unequal and violate the
Equal Protection Clause of the Fourteenth Amendment.
(a) This case was the catapult that launched the Civil Rights Movement
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 (6) Brown v. Board of Education II (1954)
(a) The Court in 1954 did not grant a remedy, so they reheard argument in 1955
(b) HOLDING: Adequate compliance with the Court’s previous holding that racial discrimination in
public education is unconstitutional requires public schools to desegregate “with all deliberate speed.”
(i) BUT “all deliberate speed” wasn’t exactly taken to heart by every state. Some public schools
weren’t desegregated for another 15 years in the 1970s
g) Following Brown v. Board, The Invalidation of Segregation in Other Contexts
(1) SCOTUS issued a series of per curiam opinions affirming lower court decisions declaring state laws that
required segregation unconstitutional
(a) Per curiam→ opinion “of the court” rather than written by specific justice(s)
(2) Mayor and City Council of Baltimore City v. Dawson (1955) → Affirmed lower court decision declaring
unconstitutional a law requiring segregation in the use of public beaches and bathhouses
(3) Holmes v. City of Atlanta (1955) → Affirmed lower court decision declaring unconstitutional a law
requiring segregation of municipal golf courses
(4) Gayle v. Browder (1956) → Affirmed lower court decision declaring unconstitutional a law requiring
segregation of a municipal bus system
(5) Johnson v. Virginia (1963) → Affirmed lower court decision declaring unconstitutional a law requiring
segregation of courtroom seating
(6) Turner v. City of Memphis (1962) → Affirmed lower court decision declaring unconstitutional a law
requiring segregation of public restaurants
2. Facially Neutral Laws with a Discriminatory Impact or with Discriminatory Administration
a) The Requirement for Proof of a Discriminatory Purpose
(1) Washington v. Davis (1976)
(a) Challenge: “Test 21” requirement for applicants to DC Police Department because it had a disparate
effect on African-American applicants
(b) HOLDING: Test 21 is okay because it analyzes job performance abilities equally among white and
black applicants
(i) Disparate impact isn’t irrelevant but it’s not dispositive→ “Our cases have not embraced
the proposition that a law or other official act, without regard to whether it reflects a
racially discriminatory purpose, is unconstitutional solely because it has a racially
disproportionate impact”
(c) RULE: A state-sponsored racial classification violates the equal protection provisions in the Fifth
Amendment’s Due Process Clause only if it is shown to have both a disproportionate impact on a
particular race and is motivated by invidious racial discrimination.
(d) SoR: Intermediate Scrutiny
(i) The Court used intermediate scrutiny because the law was facially neutral, even though it was
a race issue
(ii) Asked whether the test is actually something that measures job performance
(a) SCOTUS says the chief purpose of the 14th EPC is the prevention of official conduct
discriminating on the basis of race→comes from the Civil Rights Cases of 1883’s State
Action Doctrine
(e) HOW TO SHOW FACIALLY NEUTRAL LAW IS DISCRIMINATORY:
(i) Yick Wo v. Hopkins→ Statute only applied to chinese owned laundromats
(ii) Title VII of the CRA (discrimination in employment)→ can extend protection further than
the constitution (Constitution is the floor not the ceiling)
(a) If claiming an EP violation, you have to show a discriminatory purpose, but that’s not
necessary under Title VII.
(i) If Π would have pursued this as a Title VII action, he could have prevailed
(2) McCleskey v. Kemp (1987)

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 (a) Challenge: GA’s capital punishment procedures
(i) Claim: Racially discriminatory application evidenced through the Baldus Study
(a) Revealed that the race of the victim and Δ have impact on whether Δ is sentenced to
death
(b) Issue: Does this research study prove discriminatory purpose?
(c) SoR: Intermediate Scrutiny
(d) Holding: No. Δ presents evidence specific to his case that would support an inference that racial
considerations played a role in his sentencing.
(e) RULE: A criminal defendant alleging an equal protection violation must prove the existence of a
discriminatory purpose and a racially disproportionate and discriminatory effect.
(i) If the Baldus Study was accepted as evidence that GA’s capital punishment procedures had a
discriminatory purpose, then an EP violation would be found in almost every case where a
black Δ killed a white victim.
b) How is a Discriminatory Purpose Proven?
(1) Court has made clear that showing a discriminatory purpose requires proof that the government desired to
discriminate
(a) Not enough to prove that the government took an action with knowledge that it would have
discriminatory consequences
(2) Personnel Administrator of Massachusetts v. Feeney (1979)
(a) Challenge: Veterans preference statute for civil service positions as gender discrimination because ¼
of MA population were veterans = 98% male, 1.8% female
(b) SoR: Intermediate Scrutiny
(c) Holding: Veterans preference statute doesn’t violate EP because it was created to reward veterans for
their service. The gender disparity in application of the law is in part because of gender based
restrictions of the military itself. Gender based discrimination did not shape the veterans preference
legislation.
(d) RULE: To prove that a state actor violates the Equal Protection Clause by enacting legislation with a
discriminatory purpose, a plaintiff must show that the decisionmaker selected or reaffirmed a particular
course of action at least in part because of, not merely in spite of, its adverse effects upon an
identifiable group.
(3) Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977)
(a) Challenge: Rezoning application denial as racially discriminatory and a violation of the 14th’s EPC
and the Fair Housing Act of 1968
(b) SoR: Intermediate Scrutiny
(c) Holding: The rezoning application denial does not violate the EPC or the FHA because it was not
motivated by a discriminatory purpose, nor does it have a discriminatory impact.
(d) RULE: State sponsored racial classification will not violate EPC unless Π shows that the law was
motivated by a discriminatory purpose and has a discriminatory impact.
(e) “Arlington Heights Factors” → To show a discriminatory purpose, several factors must be
considered:
(i) Historical background predating decision
(ii) Specific sequence of events leading to challenged classification
(iii) Departures by state actor from normal procedures
(iv) Substantive departures, especially if the factors usually considered important by state actor
point to a decision contrary to the one made
(v) Legislative/Administrative history surrounding adoption of legislation
(a) Presents an issue because there may be multiple reasons why someone voted for
something in particular
(4) Arlington Heights Factors applied in Hunter v. Underwood (1985)
(a) Challenge: AL law that permanently deprived someone convicted of a crime involving “moral
turpitude” of the right to vote

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 (i) Law did not include serious felonies like second-degree manslaughter or assaulting a police
officer. The district court found that white supremacy and the disenfranchisement of Black
voters was the major purpose for the convention for the Alabama Constitution of 1901.
(ii) The court of appeals found that the delegates chose crimes that were thought to be committed
by Black people more, that there was a disproportionate impact on Black voters, and that there
was intentional discrimination.
(b) Holding: Law is unconstitutional race discrimination for the state to disenfranchise those convicted of
misdemeanors
(c) SoR: Intermediate Scrutiny
(d) “Once racial discrimination is shown to have been a substantial or motivating factor behind enactment
of the law, the burden shifts to the law’s defenders to demonstrate that the law would have been
enacted without this factor”→ judicial deference is no longer justified
c) Discriminatory Use of Peremptory Challenges
(1) For cause strike→ Obviously biased potential juror, unlimited number of for cause strikes
(2) Peremptory strike→ Attorney doesn’t have to prove cause or give a reason why they wish to strike a
juror
(a) Facially race neutral, but when based on race or gender, they are motivated by a discriminatory intent
and have a discriminatory purpose, subject to intermediate scrutiny
(b) Court has held that race or gender based peremptory challenges deny equal protection whether
exercised by a prosecutor, a criminal defendant, or a civil litigant
(3) Swain v. Alabama (1965) → Racial discrimination by a prosecutor could only be proven through
showing a pattern of discriminatory peremptory challenges over the course of their career
(4) Batson v. Kentucky (1986) → Overturned Swain, holding that discriminatory use of peremptory challenges
by a prosecutor denied equal protection
(a) THREE STEP PROCESS:
(i) Δ must set forth a prima facie case of discrimination by a prosecutor (decided by trial judge)
(a) Δ is a member of cognizable racial group
(b) Prosecutor used peremptory challenges to remove members of Δs race from the jury
(ii) Burden shifts to prosecutor to prove a race-neutral explanation for the peremptory challenges
(a) Must be a clear and reasonably specific explanation
(iii) Trial court must decide whether the prosecutor’s race-neutral explanation is persuasive or
whether Δ has established purposeful discrimination
(5) Batson applied:
(a) Hernandez v. NY (1991) → There was sufficient race-neutral explanation when a prosecutor said
that he had struck two potential Latino jurors (Δ was Latino) because they spoke Spanish and
therefore might not accept the translators version of testimony from witnesses who were going to
testify in Spanish
(b) Flowers v. MS (2019) → Batson was violated when the same prosecutor struck 41/42 potential African-
American jurors over 6 trials involving the same Δ.
(c) Foster v. Chatman (2016) → Batson was violated when documents obtained via a public-records
request showed that the prosecutor had intentionally excluded African American jurors.
(d) Edmonson v. Leesville Concrete Co. (1991) → Batson applies to civil litigation, there is still state
action because peremptory challenges are authorized by state law and supervised by courts
(e) Powers v. Ohio (1991) → Δ can raise Batson claim even if stricken jurors were of a different race
(i) Violation of 6th Amendment right to a fair cross section of the community empaneled as the
jury and Fourteenth Amendment right to equal protection.
(f) J.E.B. v. Alabama ex rel. T.B. (1994) → Extended Batson to apply to gender based discrimination
(g) Batson violations are one of the most common habeas corpus claims

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D. RACIAL CLASSIFICATIONS BENEFITING MINORITIES
1. The Use of Race to Benefit Minorities in College and University Admissions
a) Regents of the University of California v. Bakke (1978)
(1) UC Medical School reserved 16/100 spots for minorities in a “racial set-aside program”. Π (Bakke) brought
suit stating this was violation of EP because lesser qualified minority students got in while he got denied.
(2) SoR: Strict scrutiny
(3) RULE: Under the Equal Protection Clause of the Fourteenth Amendment, a public university may not
discriminate on the basis of race in its admissions policies, even if doing so benefits members of minority
races.
b) Grutter v. Bollinger (2003)
(1) Challenging: The use of race as a factor in admissions at University of Michigan Law School under Bakke
(2) SoR: Strict scrutiny
(3) RULE: Consideration of race as a factor in admissions by a state law school does not violate the Fourteenth
Amendment because supporting student body diversity is a compelling state interest; however, the school
must demonstrate it previously made a serious, good faith consideration of workable, race-neutral
alternatives to achieve the sought-after racial diversity.
(a) Because race was a factor, weighed equally with other non-minority applicant’s experiences that bring
diversity (traveling, studying abroad, hardships, fluent in other languages), it was simply one factor
among many, not solely evaluated to add points to an applicants decision
(b) Diversity is a compelling state interest because it contributes to students’ ability to understand people
who are different from themselves, prepares them better for a diverse workforce, and enhances
classroom discussion
(i) All applicants, regardless of race, had the opportunity to highlight their own personal
diversity. Race was simply one way to do that.
c) Gratz v. Bollinger (2003)
(1) Challenging: UM undergrad admissions policy that gave an applicant automatically twenty bonus points if
they were a member of an underrepresented minority group, attended a predominantly minority or
disadvantaged high school, or was recruited for athletics
(2) SoR: Strict scrutiny
(3) Holding: The University’s use of race as a justification for automatically assigning twenty points to each
minority applicant is not narrowly-tailored to achieve its purpose of promoting student body diversity.
Under this system, applicants are not afforded individualized review and the extra twenty points virtually
guarantee admission to any minimally-qualified minority applicants. Thus, race is elevated as the decisive
factor in admissions decisions.
(4) RULE: A university’s admissions policy that automatically gives preference to minority students on the
basis of race, without additional individualized consideration, violates the Equal Protection Clause of the
Fourteenth Amendment.
d) Fisher v. Texas (2016) (Fisher II)
(1) Challenging: University of TX’s use of race in admitting in-state students outside of the top 10% of their
class
(2) SoR: Strict scrutiny
(3) Holding: In this case, Δ has attempted several race-neutral methods to increase diversity like intensifying
outreach efforts, creating new scholarship programs, opening new regional admissions centers, increasing
its recruitment budget, and organizing over 1,000 recruitment events. Δ tried these methods over seven
years and failed to achieve meaningful diversity. Δ also tried adjusting academic and socioeconomic factors
in the admissions calculus.
(a) Π argued that Δ should further adjust these factors. However, the Equal Protection Clause does not
force universities to choose between a diverse student body and a reputation for academic excellence.
(b) Π also argues that Δ should expand the class-ranking portion of the automatic admissions process
beyond the top 10%. However, there are compelling reasons for Δ to consider criteria beyond a
student’s high school ranking

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 (c) Privileging one characteristic above all others does not lead to a diverse student body. Δ has shown
that it continuously evaluates the diversity of its classes and has not yet reached the level of diversity
necessary for its goals.
(d) MAIN HOLDING: The university’s admissions process does not violate the Equal Protection Clause.
(4) RULE: Under strict scrutiny, the consideration of race must be narrowly tailored to attain diversity. Each
applicant must be evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the
defining feature of his or her application. Additionally, if a nonracial approach could promote the
substantial interest about as well and at tolerable administrative expense, then the university cannot
consider race.
e) Students for Fair Admission v. Harvard (2022)
(1) Overturned affirmative action
(2) RULE: Institutions of higher learning using race as a factor in admissions decisions violates the Equal
Protection Clause of the Fourteenth Amendment.
PROCEDURAL DUE PROCESS
I. GENERALLY
A. The 5th and 14th Amendments serve to impose procedures on the government (federal and states, respectively) when it
takes away a person’s life, liberty, or property
B. Three main questions:
1. Has there been a deprivation?
2. Is it of life, liberty, or property?
3. Is it without due process of law?
C. Remember: 42 U.S.C. § 1983→ vehicle for pursuing constitutional tort litigation
II. WHAT IS A DEPRIVATION?
A. NEGLIGENCE
1. Is government negligence sufficient to create a deprivation or must there be a reckless or intentional
government action?
a) Daniels v. Williams→ Prisoner sued for injuries sustained from falling on a prison stairway
(1) RULE: Government negligence is insufficient to state a claim under the Due Process Clause
(2) Purpose: We aren’t trying to open the floodgates to constitutional tort litigation
(3) Deliberate indifference→ Way prisoners can show prison officials were more than negligent = sufficient
to state a claim
b) Davidson v. Cannon→ Prisoner claimed he was deprived of due process when prison officials failed to
protect him from an attack by another prisoner when they knew it was likely
(1) RULE: The allegation of government negligence was insufficient to state a claim under the Due Process
Clause
c) County of Sacramento v. Lewis→ high speed chase that led to innocent citizen’s death
(1) RULE: A specific action by a state official violates due process when it is deliberate and thus constitutes
“arbitrary conduct shocking to the conscience” and violates the “decencies of civilized conduct”
(a) Reasoning: This wasn’t a reasonable action, but it doesn’t shock the conscience because police
officers have to make hasty decisions “supposed to act decisively and show restraint in the same
moment”
d) What DOES shock the conscience→ Rochin v. California
(1) Officers went to Δ’s home to find two capsules on his nightstand, when asked about them, Δ swallowed
them. Officers took him to the hospital to have his stomach forcibly pumped against his will and
subsequently charged him with possession of morphine
(2) RULE: Law enforcement may not procure physical evidence by forcible extraction of a defendant’s
stomach contents. Such conduct shocks the conscience and violates the due process clause of the
Fourteenth Amendment.
2. When is the government’s failure to protect a person from privately inflicted harms a deprivation?
a) Deshaney v. Winnebago County Department of Social Services
(1) Π was a child subject to severe abuse from custodial father, multiple reports of abuse/injuries and CPS did
nothing
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 (a) Π was beaten so badly that he had emergency brain surgery and was permanently mentally
disabled. Father was convicted of child abuse
(2) CLAIM: CPS knew this was going on and had a duty to do something about it because Π and CPS had a
special relationship and CPS did nothing, which led to Π’s injuries
(3) RULE: Under due process principles, there is no affirmative duty of the state to act to protect individuals
from deprivations of life, liberty, or property by other citizens, unless those citizens are prisoners
(4) Justice Brennan Dissent: State took an active role in Π’s life, focused on action rather than inaction. State’s
knowledge of predicament and expressions of intent to help him can amount to a limitation on his freedom
to act on his own behalf or to obtain help from others
(5) Justice Blackmun Dissent: Sympathetic reading rather than drawing harsh lines, “compassion need not be
exiled from the province of judging” “Poor Joshua!”
b) Town of Castle Rock v. Gonzales→ Π had a restraining order against estranged husband, he kidnapped
daughters and police did nothing to enforce order, daughters and husband died. CO had law requiring
officers to enforce restraining orders
(1) RULE: Government has no duty to protect even if state law required police to enforce restraining orders
c) BOTTOM LINE: Government generally has no duty to provide protection from private inflicted harms. ONLY
IF government literally creates the danger or a person is in government custody is there any constitutional duty
for the government to provide protections

B. IS IT A DEPRIVATION OF LIFE, LIBERTY, OR PROPERTY?

1. The “Rights-Privileges” Distinction and its Demise
a) Past→ Court repeatedly held that there was only a liberty or property interest if there was a “right”, a
government bestowed “privilege” was not a basis for requiring due process
b) 1960s→ lots of criticism of rights-privileges doctrine
(1) Reich article→ argued that the rights-privileges distinction is an anachronism in an era where people
depend on the government for so much that is essential to survival
(a) I.e. education, welfare, social security, licenses, jobs
(b) Contended that the rights-privileges distinction should be discarded and that due process should be
provided when the government terminated “new property”
c) Goldberg v. Kelly→ Whether due process requires a state that terminated public assistance payments to a
particular recipient to give him an evidentiary hearing prior to termination of benefits
(1) RULE: When a state seeks to terminate welfare benefits, procedural due process requires the state to
provide the recipient with a pre-termination hearing for the purpose of determining the validity of
discontinuing public assistance in order to protect the recipient against an erroneous termination of his
benefits
(a) “The fundamental requisite of due process of law is the opportunity to be heard. Hearing must be
at a meaningful time and in a meaningful manner”
(i) Requires recipient to have timely/adequate notice detailing the reasons for proposed
termination and an effective opportunity to defend by confronting any adverse witnesses
and by presenting his own arguments and evidence orally
(2) Fair Hearing→ provides a full administrative review, need not take the form of judicial or quasi-judicial
trial
(3) Justice Black Dissent: This system will create extreme delays in ability of recipients to have hearings, and
will ultimately limit access to the courts = opposite effect
2. What is a Deprivation of Property?
a) Board of Regents of State Colleges v. Roth→ Π was employed by WSU on a contract of one year, but was
not rehired. Π was given no reason for the decision nor any opportunity to challenge it
(1) RULE: The Fourteenth Amendment’s guarantee of procedural due process applies to the deprivation of
individual liberty and property interests by the state. Procedural-due-process protections apply to a person's
property interest in a benefit if the person has a legitimate claim of entitlement to the benefit and not merely
an abstract need or desire for the benefit.
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 (2) No liberty interest because:
(a) Π could teach elsewhere; and
(b) Action did not cause reputational harm
(i) Reputational harm is the root of modern defamation law
(ii) Π’s stigmatization claim fails because Δ didn’t accuse Π of anything that would create a
stigma to Π
(3) No property interest because:
(a) Property interests are created by state law/policy/rule/understanding that secure certain benefits
that support claims of entitlement to those benefits
(i) Π’s contract didn’t give him any entitlement to keeping his job
(4) Dissent: Government must act fairly and reasonably, there should be a reason for not rehiring
b) Generally a property interest is defined as a reasonable expectation to continued receipt of a benefit
3. What is a Deprivation of Liberty?
a) Reputation as a Liberty Interest
(1) Goss v. Lopez→ School district suspended multiple students for 10 days without a hearing either prior
to suspension or within a reasonable time thereafter.
(a) OH state law provided that Π had an entitlement to public education and had a compulsory
attendance law→ independent source of entitlement that was missing in Roth
(b) RULE: Due Process Clause of the 14th Amendment requires a student facing suspension of 10
days or less to be provided notice of the charges against him, evidence, and an opportunity to rebut
the accusations
(i) The state cannot constitutionally suspend students without fair procedures under the Due
Process Clause because suspension of students can negatively affect their good standing
with other students and teachers, as well as later opportunities for higher education and
employment
(2) Paul v. Davis→ Π sued the Chief of Police for defamation type claim under DP because he was placed on
“Active Shoplifter” list without being found guilty of shoplifting, charge was later dismissed.
(a) RULE: A person’s reputation, on its own, is not a liberty or property interest sufficient to invoke
constitutional due process protections. These protections are only available where the government
action harming a person’s reputation also subjects that individual to some other type of disability,
such as the loss of employment.
b) Liberty Interests for Prisoners
(1) Up until June 1995, a liberty interest for prisoners could be found either if the prison statutes and
regulations were written in mandatory language and created such an interest or if the interest was so
important that the Court would deem it to be part of liberty regardless of the content of the statutes or
regulations
(2) Sandin v. Conner→ Conner was a prisoner subject to very invasive strip search, reacted angrily and
cussed at officer. Conner participated in a disciplinary hearing in which he was not allowed to present
witnesses. The hearing committee sentenced Conner to 30 days of disciplinary segregation.
(a) RULE: A prison disciplinary procedure that does not impose an atypical and significant hardship
in relation to the ordinary incidents of prison life does not violate an inmate’s due process rights.
(b) Needs to “shock the conscience”, solitary confinement doesn’t fall outside the ordinary practices
of prison life
(3) What DOES shock the conscience→ Hope v. Pelzer→ prisoner chained to a hitching post for 7 hours at
a time. Lower courts did not decide whether punishment violates 8th Amendment, only stating that
the prison guards were covered by qualified immunity
(a) RULE: A prison guard is not entitled to qualified immunity if a reasonable guard would have
known the guard’s action was unconstitutional. Qualified immunity protects prison guards from
liability for official conduct that violates the constitution unless a prison guard knowingly violates
the law in light of legal rules that are clearly established at the time.

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 (b) Whether qualified immunity exists depends on the objective reasonableness of the guard’s action.
This test asks if a reasonable prison guard could have thought that the action was lawful.

III. PROCEDURES
A. WHAT PROCESS IS DUE?
1. Matthews Test
a) Matthews v. Eldridge→ Whether DP requires a pre-termination hearing before termination of social
security benefits
(1) HOLDING: A pre-termination evidentiary hearing is not required under DP.
(2) RULE: Whether an administrative procedure meets the constitutional guarantees of the Due Process Clause
requires a consideration of three factors:
(a) The private interest at stake in the administrative action;
(b) The risk of an erroneous deprivation of this interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards;
(c) The government’s interest, including the function involved and the fiscal and administrative
burdens that additional or substitute procedural requirements would entail.
(i) Balances interest with cost and procedure’s appropriateness
(a) Weighs against Eldridge here→ evidentiary hearing not required and present
procedures fully comport with due process
b) HOW TO APPLY MATTHEWS TEST
(1) Identify private interest at risk
(2) Identify procedures in place and what protections they provide
(3) Balance with government interests (cost)
FUNDAMENTAL RIGHTS AND SUBSTANTIVE DUE PROCESS
I. FUNDAMENTAL RIGHTS FRAMEWORK
A. GENERALLY
1. The Concept of Fundamental Rights
a) Ninth Amendment→ justification for the Court to safeguard unenumerated rights (privacy)
(1) Justice Goldburg concurrence in Griswold v. Connecticut invalidating law that prohibited use of
contraceptives
(2) Principle that there are some unenumerated rights not listed in the Bill of Rights, provides a textual basis
for asserting a liberal view of individual rights
B. FRAMEWORK
1. Is There a Fundamental Right?
a) Carolene Products→ Judiciary will defer to the legislature unless there is discrimination against a “discrete
and insular” minority or infringement of a fundamental right
b) Fundamental rights in the Constitution: speech, religion, press, arms, voting, travel/move
(1) “Deeply rooted in history and tradition”
(a) Important but shouldn’t stop progress -Justice Kennedy in Obergefell
c) When the Court says a right is fundamental, they’re saying it deserves special protection/is extremely important
2. Is the Constitutional Right Infringed?
a) In evaluating whether there is a violation of a right, the Court considers the directness and substantiality of the
interference
(1) Direct limitation v. incidental limitation
3. Is There Sufficient Justification for the Government Infringement?
a) Compelling, important, legitimate
4. Is the Means Sufficiently Related to the Purpose?
a) Necessarily tailored, substantially related, reasonable

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C. FAMILY AUTONOMY
1. The Right to Marry
a) Loving v. Virginia→ Πs were a biracial couple married in DC, moved to VA and were charged with
violating states ban on interracial marriage and were sentenced to one year in prison, judge suspended
sentence on condition that Π’s wouldn’t return to VA for 25 years. Π’s filed suit saying it violated 14th
(1) RULE: A state may not restrict marriages between persons solely on the basis of race under the Equal
Protection and Due Process Clauses of the Fourteenth Amendment.
(2) The freedom to marry is one of the basic civil rights of man, fundamental to our very existence and survival
(a) The freedom to marry/not marry a person of another race lies solely with the individual and cannot
be infringed on by the states
b) Zablocki v. Redhail→ WI law prevented individual from obtaining marriage license without court approval
if they were behind on child support payments
(1) RULE: The right to marry is a fundamental right, and any legislative attempts by a state to limit that right
are unconstitutional unless they are narrowly-tailored to the accomplishment of an important governmental
purpose.
c) Obergefell v. Hodges→ combined cases out of four states challenging ban on same-sex marriage
(1) RULE: Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, states must
issue marriage licenses and recognize lawful out-of-state marriages for same-sex couples.
(2) History and tradition guide our principles but do not set boundaries
(3) Precedent affirming the right to marry is fundamental:
(a) Loving v. VA = interracial marriages
(b) Zablocki v. Redhail = legislative attempts can’t limit
(c) Turner v. Safley = prisoner’s right to marry
(4) Marriage is fundamental and applies equally to same-sex couples for four reasons:
(a) Right to personal choice regarding marriage is inherent in the concept of individual autonomy
(b) Supports a two person union unlike any other in its importance to committed individuals
(c) Safeguards children and families
(i) Allows children to understand integrity and closeness of their own family, affords
permanency and stability
(d) Marriage is the keystone of our social order
(i) Benefits: taxes, wills, privilege (evidentiary), medical authority, workers comp/ss
benefits, insurance, child support, etc.

2. Rights of Unmarried Fathers

a) Michael H. v. Gerald D.→ Δ and Carole were married. Carole had an affair with Π (neighbor) and became
pregnant. DNA test showed Π was 98% the father, Π sued to establish paternity. CA law said that a child
of a marital couple is presumed to be the husband’s child and there were no triable issues of fact.
(1) Issue: Whether CA law violated potential fathers’ DPC rights in establishing paternity
(2) Holding: No.
(3) RULE: The right of a potential natural father to assert parental rights over a child born into a woman’s
existing marriage with another man is not traditionally recognized in historical jurisprudence and is not a
fundamental right protected by the Due Process Clause of the Fourteenth Amendment.
(a) This case has a limited reach because state statutes can overrule, but important nonetheless
because if history and tradition are the sole touchstone of constitutional law, they can
unsatisfactory results
3. The Right to Keep the Family Together
a) Moore v. City of East Cleveland, Ohio→ City enacted a housing ordinance that limited occupancy of
dwelling units to a single family. Family was defined as limited categories of related people. Π lived with
her son and 2 grandsons and that did not = definition of family under the ordinance. Π was charged with
violation and then subject to criminal penalties when she refused to change her living situation

16
 (1) Holding: The City’s reasoning for the law (preventing overcrowding, parking) is not enough. The statute
only marginally serves these purposes and is not necessary to achieve this goal.
(2) RULE: The right of related family members to live together is fundamental and protected by the Due
Process Clause, and necessarily encompasses a broader definition of “family” than just members of the
nuclear family.
4. The Right of Parents to Control the Upbringing of Their Children
a) Meyer v. Nebraska→ NE law made it a crime for anyone to teach a child younger than 8th grade any
language but English. Π was convicted of violation of statute for teaching a student German, when his
parents were German immigrants and requested it.
(1) Holding: The right to teach German at the request of parents relates to the fundamental right recognized for
parents to control and educate their children
(2) RULE: A state may not prohibit the teaching of foreign languages to a young child in school when such
teaching has been requested by the child’s parent because this interferes with the fundamental liberty
interest of a parent to control his or her child’s education.
b) Pierce v. Society of Sisters→ OR enacted a statute requiring children 8-16 to attend public schools
(1) RULE: Requiring children to be educated only by public instruction violates the Fourteenth Amendment of
the United States Constitution.
(a) Children are not “merely a ward of the state”

D. REPRODUCTIVE AUTONOMY
1. The Right to Purchase and Use Contraceptives
a) Griswold v. Connecticut→ Π’s were arrested and convicted as “accessories” pursuant to Connecticut statutes
that prevented using contraception or assisting someone else in using contraception.
(1) RULE: An implied “right of privacy” exists within the Bill of Rights that prohibits a state from preventing
married couples from using contraception.
(2) ** Important because you don’t get the Roe decision without this case. Without Griswold, there is no
implied right of privacy within the Bill of Rights
b) Eisenstadt v. Baird→ extended Griswold and struck down law preventing giving contraceptives to unmarried
people
2. The Right to Abortion
a) Roe v. Wade→ TX law restricted legal abortions to those “procured or attempted by medical advice for the
purpose of saving the life of the mother.” Π brought suit on the grounds that the statute was an
unconstitutional restriction on her right to obtain an abortion.
(1) RULE: The constitutional right to privacy protects a woman’s right to choose to have an abortion.
(2) HOLDINGS:
(a) A state criminal abortion statute of the current TX type, that excepts from criminality only a life
saving procedure on behalf of the mother, without regard to pregnancy state and without
recognition of the other interests involved, violates the DPC of 14th
(i) Until the end of the first trimester, decision must be left to medical judgment of physician
(ii) From the end of the first trimester, the state may, if it chooses, regulate the abortion
procedures in ways reasonably related to maternal health
(iii) From the stage subsequent to viability, the state may ban abortion except where it is
necessary in appropriate medical judgment to preserve the life or health of the mother
b) Planned Parenthood v. Casey→ Π sued Δ (PA governor) for the purpose of challenging five restrictions on
abortion under PA law. Most significantly, the PA statute required informed consent and a 24-hour
waiting period for all women prior to undergoing the procedure. All minors seeking an abortion were
required to obtain the informed consent of at least one parent, while a married woman had to show that
she notified her husband of her intent to abort the fetus.

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 (1) RULE: A state abortion regulation places an undue burden on a woman’s right to an abortion and is invalid
if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before
the fetus attains viability.
(2) HOLDINGS:
(a) Employed undue burden analysis = if statute’s purpose/effect is to place a substantial obstacle in
the path of a woman seeking abortion before fetus is viable = unconstitutional
(b) Rejected trimester framework of Roe
(c) Reaffirmed Roe’s holding that a State may not prohibit any woman from making the ultimate
decision to terminate her pregnancy before viability
(d) Reaffirmed Roe’s holding that subsequent to viability, the state may ban abortion except where it
is necessary in appropriate medical judgment to preserve the life or health of the mother
c) Dobbs v. Jackson→ Overruled Roe and Casey for five reasons:
(1) Erroneous interpretation of the Constitution
(2) Weak reasoning not based on text
(3) Not workable- no framework for how to apply
(4) Deleterious impact on other laws
(5) Creates tenuous reliance interests

FREEDOM OF EXPRESSION
I. FREE SPEECH
A. HISTORY
1. Why do we have the First Amendment?
a) As a result of a history of extensive suppression and licensing of speech
b) Prior restraints→ the “least tolerable and most serious restraints on the First Amendment because you don’t
want the government telling the people what they can say or what they can print” - Chief Justice Burger
c) Seditious libel→ A crime in England, made it illegal to criticize the crown/government
(1) Fundamental principle that the First Amendment is founded on is the ability to criticize the government
(2) Trial of John Peter Zenger in 1735→ tried for publishing criticisms of the governor of NY
(a) Lawyer argued truth should be defense, at time it wasn’t but one of the first instances of jury
nullification, jury disregarded the law and acquitted
(3) Alien and Sedition Acts of 1798→ made it illegal to publish false, scandalous, and malicious writings
against the government. Did allow truth as a defense and required proof of malicious intent
(a) Thomas Jefferson as president pardoned everyone convicted under this

2. Main rationales for the First Amendment Freedom of Speech

a) Important for democratic self-governance
(1) Open discussion on political issues, debate among political candidates
(2) Ability to criticize government and officers is “the central meaning of the 1A” - New York Times v.
Sullivan
b) Discovering Truth
(1) Marketplace of ideas→ allow all ideas and the best ones will rise to the top
(a) Doctrine has come under recent fire because reason and truth do not always prevail, and there is
differential access to the market
(b) “The ultimate good desired is best reached through free trade in ideas — that the best test of truth is the
power of the thought to get itself accepted in the competition of the market, and that truth is the only
ground upon which their wishes safely can be carried out.” - Justice Oliver Holmes in Abrams v. U.S.
c) Advancing Autonomy
(1) “The First Amendment serves not only the needs of the polity but also those of the human spirit – a spirit
that demands self-expression” - Justice Marshall in Procunier v. Martinez
d) Promoting Tolerance
(1) Tolerance is a desirable, if not essential, value and that protecting of unpopular or distasteful speech is itself
an act of tolerance
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 e) *** These four theories are not mutually exclusive

B. ANALYSIS
1. Is it speech?
a) Spoken and printed word = speech
b) Expressive conduct that triggers 1A analysis (Tinker armband, Johnson burning American flag, tattoos)
2. Is the speech protected?
a) Not all speech is protected: extortion, threatening, perjury
b) SCOTUS has developed narrow exceptions of unprotected categories:
(1) Incitement
(2) Fighting Words
(3) True Threats
(4) Obscenity
3. Is the law vague and overbroad?
a) Content-discrimination principle→ Chief methodological tool courts use to determine if a
statute/regulation/action is violative of the First Amendment
(1) Even if speech is not in an unprotected category, it may still be limited but concerns about governmental
attempts to engage in viewpoint or subject matter discrimination
(2) Content based→ discriminates against speech based on the content/message conveyed in that speech
(a) Subject to strict scrutiny because could be a governmental attempt to invade thought
(b) Treating similarly situated speech differently
(i) Example: Concerts OK but no political speeches in public amphitheater
(c) Viewpoint discrimination→ Allowing one viewpoint but not the other
(i) “An egregious form of content discrimination”
(ii) Don’t want the government dictating what viewpoints are good and what viewpoints are bad
(3) Government speech→ exception to content based/viewpoint discrimination
(a) Government can pick specific messages that it wishes to propagate
(b) Example: supporting no smoking campaigns, “Just Say No” Nancy Reagan against drugs
(4) Content neutral→ applies to all speech regardless of viewpoint expressed
(a) Subject to intermediate scrutiny
(b) Time, place, and manner restrictions→ “You can have whatever meetings in the park, but they have
to be between 10-3pm” inquiry is whether the restriction is reasonable
4. Why do we care?
a) We don’t want the government using laws to disguise suppression of certain views that the government doesn’t
like = Government controlling thought
b) “Above all else, the 1A means that the government has no power to restrict expression because of its Message,
its Ideas, its Subject matter, or its Content” MISC quote from Justice Marshall in Chicago v. Mosley

C. CONTENT-BASED AND CONTENT-NEUTRAL LAWS

1. Requirement for Viewpoint Neutrality
a) Reed v. Town of Gilbert (2015) → ordinance created different categories of signs, applied different
restrictions to each category, more restrictive with regulation of temporary directional signs. Π’s held
church services at various buildings and posted temporary signs around the town to direct parishioners to
the services. Π’s were cited for violating the sign ordinance
(1) Content based or content neutral? CoA said content neutral because there wasn’t an intent to suppress
different viewpoints
(a) SCOTUS reversed, holding content based because the level of the regulation a sign receives is entirely
dependent on the message the sign contains
(2) Government Motive? CoA said no “insidious motive”
(a) A benign motive is irrelevant because there is still a danger of censorship

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 (b) “The vice of content-based legislation… is not that it is always used for invidious, thought-control
purposes, but that it lends itself to use for those purposes” – quoting Scalia’s dissent in Hill v.
Colorado
(3) Must meet SS→ Compelling government interest, narrowly tailored, least restrictive means
(a) Government’s argument: (1) Preserving the Town’s aesthetic appeal; (2) Traffic safety
(i) Court response: “Hopelessly underinclusive”
(ii) Temporary directional signs are “no greater an eyesore” than ideological or political ones
(iii) “A law cannot be regarded as protecting an interest of the highest order, and thus as justifying
a restriction on truthful speech, when it leaves appreciable damage to that supposedly vital
interest unprohibited”
(b) Government argument that all sign laws would be stricken down
(i) Court response: you can create content neutral sign laws, subject to lesser scrutiny
(4) RULE: A restriction on speech that is content-based on its face is subject to strict scrutiny regardless of the
government’s benign motive or justification.
(5) Kagan Concurrence: Identifying governmental purpose is the most important to determine if a law or
regulation is content neutral or content based
(a) “The law’s distinctions between directional signs and others– does not pass strict scrutiny, or
intermediate scrutiny, or even the laugh test”, but concerned that strict scrutiny applied to some
entirely reasonable laws will strike them down, doesn’t think SS should always apply
b) Matal v. Tam (2017) → Π was asian american singer of band called “The Slants” and sought to trademark
the band name; Slants = derogatory term to asians; trademark denied on grounds of Lanham Act
Disparagement Clause→ can’t trademark language/terms that disparage people
(1) RULE: The disparagement clause of the Lanham Act is unconstitutional because it violates the free speech
clause of the First Amendment.
(2) Are trademarks government speech? No. They are private speech. Contain expressive content, convey a
message
(3) Government claims that the disparagement clause serves these valid interests that must be protected:
(a) Interest in preventing underrepresented groups from being assailed with demeaning messaging in
commerce; and
(i) Response: The government’s restriction of private speech it finds offensive strikes at the
very heart of First Amendment protections
(ii) “The proudest boast of our free speech jurisprudence is that we protect the freedom to express
the thought that we hate” - Holmes in United States v. Schwimmer
(b) Interest in protecting the orderly flow of commerce, which discriminatory trademarks might disrupt.
(i) Response: The disparagement clause is much too broad to support the contention that it is
necessary to preserve the orderly flow of commerce.
(ii) Clause protects every person, living or dead, as well as every institution
(a) Applies to trademarks like “Down with racists” → disparages racists, but this isn’t bad
= “This isn’t an anti-discrimination clause; it’s a happy-talk clause”
(4) HOLDING: These interests are insufficient to justify the disparagement clause’s restrictions on private
speech→ Trademarks are private speech and as such are entitled to the protections of the First
Amendment.
(5) MAIN TAKEAWAY: You can’t ban offensive speech just for being offensive→ “bedrock First
Amendment principle”
(a) “It is a fair summary of history to say that the safeguards of liberty have frequently been forged in
controversies involving not-very nice people.” - Justice Frankfurter dissent in US v. Rabinowitz = It’s
not the speech that everyone agrees with that gets censored
c) Iancu v. Brunetti (2019) dealt with another provision of Lanham Act that banned scandalous or immoral marks
(1) RULE: The Lanham Act’s prohibition on the registration of marks that consist of or comprise immoral or
scandalous matters violates the First Amendment. = Vague

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2. Subject Matter Restrictions
a) Carey v. Brown→ Anti-picketing ordinance exception for labor workers struck down
(1) RULE: Whenever the government attempts to regulate speech in public places, it must be subject matter
neutral
b) Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board→ Son of Sam law
(1) NY law: prevented those accused/convicted of crime from profiting off story
(2) RULE: Content based laws that impose a financial disincentive only on speech of particular content are
invalid
c) Williams-Yulee v. Florida Bar→ law prohibiting judicial candidates/incumbents from personally soliciting
funds for campaigns
(1) RULE: A state law prohibiting elected judges and judicial candidates from personally soliciting funds for
their campaigns does not violate the First Amendment’s guarantee of freedom of speech.
(2) BECAUSE, law was narrowly tailored way to further compelling state interest of ensuring judges maintain
the appearance of impartiality

3. Content Neutral Laws

a) City of Renton v. Playtime Theatres, Inc. → Zoning ordinance regarding “adult motion picture theaters”
(1) Court says okay because the ordinance is not aimed at the content of the films shown, but rather at the
secondary effects of such theaters on the surrounding community (property values, schools, etc)
(2) RULE: “Content-neutral” time, place and manner regulations are acceptable under the First Amendment so
long as they are designed to serve a substantial governmental interest and do not unreasonably limit
alternative avenues of communication.
(3) Brennan “continued disagreement with the proposition that an otherwise content-based restriction on
speech can be recast as ‘content-neutral’ if the restriction ‘aims’ at ‘secondary effects’ of the speech.. Such
secondary effects offer countless excuses for content-based suppression of political speech”
b) Secondary Effects→ A facially regulatory law based on speech’s viewpoint/message is presumed content-
based, but the government can refute by persuading a court that regulation is justified by a content-neutral
desire to avoid undesirable secondary effects of the speech.
(1) The content-neutral justification must be truly unrelated to the desire to suppress speech and it must be
unique to the speech suppressed as compared to the speech allowed
(2) Criticisms:
(a) Waters down judicial review of first amendment challenges
(b) Gives government greater power to regulate speech
(c) “Permits an end run around the First Amendment: The government can always point to some neutral,
nonspeech justification for its actions”
c) City of Erie v. Pap’s AM → Π challenged city ordinance making it a crime to knowingly or intentionally
appear in public in a “state of nudity.”
(1) RULE: A government ordinance prohibiting public nudity is permissible under the First Amendment if it is
content-neutral and targeted towards combating negative secondary effects associated with adult
establishments.
(a) City’s goal of preventing the secondary effects of nude dancing (prostitution and other criminal
activity) were sufficient to make the law content-neutral

4. Government Speech
a) Government Speech Doctrine→ 1A does not apply if government is the speaker or adopts private speech as
its own
b) Pleasant Grove City, Utah v. Summum→ Park monument of 10 commandments, Π asked for one reflective
of their religion
(1) RULE: The placement of a permanent monument in a public park is a form of government speech and is
therefore not subject to scrutiny under the Free Speech Clause of the First Amendment.
(2) Gov speech is not unlimited, subject to Establishment Clause and political process
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 (a) This wasn’t violative of EC because 10 commandments are “historical” → that is stupid
c) Walker v. Texas Division, Sons of Confederate Veterans→ Specialty license plate (not a vanity plate) proposal
with confederate flag denied
(1) Court says this is not violative of 1A because a license plate is government speech
(2) Alito dissent: says not the same as Summum, because PART of a license plate (state name, flag, etc) are
government speech, the other part is a “billboard for rent” and the state is choosing to reject one message
because it’s offensive = viewpoint discrimination
(a) “This capacious understanding of government speech takes a large and painful bite out of the First
Amendment”
(b) “Messages that are proposed by private parties and placed on TX specialty plates are private speech,
not government speech. TX cannot forbid private speech based on its viewpoint. That’s what it did
here”
(3) RULE: Generally, the First Amendment cannot be used to challenge government speech.
(a) Government speech generally cannot be barred by the First Amendment’s content-based-speech
requirements. Without the freedom to engage in content-based speech, the government could not
properly function.
(i) Requiring a government to discuss every competing side of an issue each time it
communicates something to its constituency would be impractical.
(4) HOLDING: The designs approved on Texas’s specialty license plates constitute government speech.
(a) State license plates have conveyed messages from the state in addition to the state name and plate
number. The public closely associates a state’s license plate with that state’s government. A state’s
license plates are required by, produced by, and issued by that state.
(b) The state government even took ownership of the designs on specialty license plates in Texas. States
retain approval authority for any speech appearing on their license plates.
5. Public Forum Doctrine→ says that there is certain governmental property that by policy or practice the
government has opened up for public expressive use = government has created a public forum
a) Later limits government’s control over speech in these areas
(1) Public parks, public streets
b) Designated public forum→ government property that has not historically been opened up for public usage,
but over practice the government has allowed private groups to display their message
(1) Flag poles in Shurtleff v. City of Boston, Massachusetts
(a) A city program that allows private organizations to choose which flags are flown on a city-owned
flagpole does not constitute government speech.
c) Limited public forum→ government has specifically limited property for certain subject matter
d) Non-public forum→ government property that is not opened up for public expression
e) How does this intersect with government speech?
(1) Sons of Confederate Veterans argued that TX made license plates a designated public forum by opening up
submissions for specialty plates, Court says “The fact that private parties take part in the design and
propagation of a message does not extinguish the governmental nature of the message or transform the
government’s role into that of a mere forum-provider”

D. VAGUENESS AND OVERBREADTH

1. Vagueness and overbreadth often go together and are analyzed in conjunction
2. Vagueness→ A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and
what is permitted
a) Violates due process: it’s about fairness. It’s unjust to punish a person without providing clear notice as to what
conduct is prohibited.
(1) Risk of selective prosecution = “invites arbitrary enforcement of the law” - O’Connor
b) Coates v. City of Cincinnati→ statute banning 3 or more people to assemble on any sidewalks and there
conduct themselves in a manner annoying to persons passing by
(1) Statute failed to define annoying = overbroad and vague
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 (2) RULE: An ordinance that prohibits more than three persons from assembling and engaging in annoying
conduct on public property is unconstitutionally vague and impermissibly infringes upon the constitutional
right to free assembly.
(3) Conduct that annoys some people does not annoy others. Vague in the sense that no standard of conduct is
specified at all = “men of common intelligence must necessarily guess at its meaning”
3. Overbreadth→ A law is unconstitutionally overbroad if it regulates substantially more speech than the
Constitution allows to be regulated, and a person whom the law constitutionally can be applied to can argue
that it would be unconstitutional as applied to others.
a) Schad v. Borough of Mount Ephraim→ Ordinance banned live entertainment
(1) Governments cannot completely ban non-obscene sexual expression
(2) Overbroad because all live entertainment included theater, etc.
(3) RULE: A law is impermissibly overbroad if a less restrictive intrusion on protected speech is available.
b) In order for a law to be overbroad, it has to be substantially overbroad
(1) Not susceptible to a precise definition
(2) More examples of reaching protected speech = more likely the law is overbroad
c) City of Houston v. Hill→ city ordinance that prohibited interruption of official police officer duties
(1) Court invalidated because it prohibited any criticism of police officers; violated bedrock principle of 1A =
ability to criticize government
(2) RULE: An ordinance that criminalizes constitutionally protected speech and vests excessive enforcement
discretion with law enforcement officers is unconstitutionally overbroad.
d) “A person to whom the law constitutionally may be applied can argue that it would be unconstitutional as
applied to others”
(1) Exception to general standing principle that requires people to assert only their own rights
(2) Gooding v. Wilson→ “Overbreadth doctrine is necessary because persons whose expression is
constitutionally protected may will refrain from exercising their rights for fear of criminal sanctions
provided by a statute susceptible of application to protected expression” - Brennan
(a) RULE: While the First Amendment does generally not protect “fighting words”, a state statute
prohibiting them may still be unconstitutional if it is over-inclusive.
4. Relationship Between Overbreadth and Vagueness
a) Board of Airport Commissioners of Los Angeles v. Jews for Jesus, Inc. → statute prohibited “all first
amendment activities” at LAX
(1) RULE: An express prohibition against all First Amendment speech that is not subject to a limiting
construction is facially unconstitutional as overbroad.
(2) Policy could be construed to prohibit reading, wearing buttons, talking, wearing symbolic clothing
(a) No conceivable governmental interest
b) Chilling effect→ encourages people to engage in self censorship and not exercise 1A right
(1) A phenomenon whereby expression is suppressed due to the writers’ and speakers’ fear of potentially
violating a law
(2) Any law that causes people to self censor and steer clear of the reach of the law
(3) Happens when laws are not drafted with precision
c) Vague and overbroad laws reek of the possibility that government officials could do the wrong thing and
selectively enforce the laws

E. PRIOR RESTRAINT
1. Prior restraints on speech and publication are the most serious and least tolerable infringement on 1A rights
a) “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its
constitutional validity” - New York Times v. US
b) Regarded as a particularly undesirable way of regulating speech
2. Prior Restraint→ Any law or policy that imposes significant pre-publication hurdles; an administrative system or
a judicial order that prevents speech from occurring

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 a) Classic example: English licensing laws→ Had to have a license issued by king before printing, no license =
printing is a crime
b) “Used to describe administrative and judicial orders forbidding certain communications when issued in advance
of the time that such communication are to occur” - Alexander v. US
(1) Prevent speech from occuring in the first place→ why prior restraints are such an issue
c) Involve either an administrative rule requiring some form of license or permit before one may engage in
expression, or a judicial order directing an individual not to engage in expression, on pain of contempt
3. Insufficient procedural safeguards in film licensing schemes could equal prior restraint → Freedman v. Maryland
a) A film censorship law that requires censor approval prior to public screening is unconstitutional when it does
not afford procedural protections to ensure a timely and impartial review of censorship decisions.
4. Collateral Bar Rule→ A person violating an unconstitutional law may not be punished, but a person violating
an unconstitutional prior restraint generally may be punished
a) A court order must be obeyed until it is set aside, and that persons subject to the order who disobey it may not
defend against the ensuing charge of criminal contempt on the ground that the order was erroneous or even
unconstitutional
5. Court Orders as a Prior Restraint
a) Near v. State of Minnesota ex rel. Olson→ statute provided for the abatement as a public nuisance of a
“malicious, scandalous and defamatory newspaper, magazine or other periodical.” Publishers could also be
given a temporary or permanent injunction prohibiting distribution, as well as a fine and imprisonment
(1) RULE: Courts may not issue injunctions against the publication of newspapers, magazines, or other
periodicals deemed to be “malicious, scandalous, and defamatory” as such a court order would constitute a
prior restraint on the freedom of the press protected by the Fourteenth Amendment to the Constitution.
(2) Exceptions:
(a) National Security→ releasing information regarding obstruction recruiting service or publishing
location of troops
(i) Narrow exception, so few absolutes in Con Law
(b) Primary requirements of decency may be enforced against obscene publications
(i) Didn’t age well, this opinion was written in 1931
(3) Can’t be justified by the fact that the publisher is permitted to show that the matter published is true and
published with good motives/justifiable ends
(a) Step to a complete system of censorship→ recognition of authority to impose prior restraints on
publications in order to protect the community against the circulation of charges of misconduct
would carry with it the admission of the authority of the censor against which the constitutional
barrier was elected
6. Court Orders to Protect National Security
a) New York Times Co. v. United States→ Pentagon papers case; New York Times and the Washington Post,
published excerpts from a top secret study of the Vietnam War conducted by the United States
Department of Defense
(1) Per Curiam RULE→ The United States government may be constitutionally permitted to enjoin
publication material on the grounds that such publication jeopardizes national security, but the burden
for justifying such an injunction is extremely high = no one is above the law, including the executive
branch
(a) “Democracies die behind closed doors” - Judge Damon Keith in Detroit Free Press v. Ashcroft
7. Court Orders to Protect Fair Trials
a) Nebraska Press Association v. Stuart→ Family was murdered in small town, got a lot of media coverage,
court entered gag order prohibiting attendees from publicly disclosing any evidence
(1) RULE: A court order prohibiting the reporting of facts that implicate a criminal defendant violates the
guarantee of freedom of the press unless the presumption against prior restraint can be defeated.
(a) A judge should weigh the following factors before granting gag order:
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 (i) Nature and extent of pretrial news coverage
(ii) Whether other measures would be likely to mitigate the effects of unrestrained pretrial
publicity
(a) A judge could change trial venue, postpone trial to let media coverage subside, searching
questioning of prospective jurors to screen out those with fixed opinions, use clear
instructions re: evidence in trial is all you’re allowed to consider, sequester jury
(iii) How effectively a restraining order would operate to prevent the threatened danger
(a) The gag order wouldn’t have been effective because the court doesn’t have jx over
everyone and in a small town, even without media coverage, rumors would fly
(2) MAIN TAKEAWAYS:
(a) “Prior restraints on speech and publication are the most serious and least tolerable infringement on 1A
rights” - CJ Burger
(b) Basically total restraint on gagging media
(3) Court isn’t creating an absolute ban on prior restraints to protect a criminal Δ’s right to a fair trial, but
almost operates as an absolute ban
(a) Generalized public interest in right to receive information and ideas
(b) We don’t enhance society by closing doors

F. UNPROTECTED AND LESS PROTECTED SPEECH

1. Clear and Present Danger
a) Schenck, Frohwerk, and Debs→ trio/trilogy of upholding convictions under the Espionage Act, all written
by Justice Holmes
(1) Espionage Act of 1917→ made it a crime when the nation was at war for any person to “make or
convey false reports or false statements with intent to interfere” with the military success or to
“promote the success of its enemies.” Also made it a crime to willfully “obstruct the recruiting or
enlistment services of the US”
(2) Schenck v. United States→ Δ charged with violation of ^ because he sent letters to men drafted alleged
to cause insubordination and obstruction
(a) Court said speech during war is less protected than in times of peace
(i) Ordinarily-protected speech can be restricted during wartime if it presented a clear and
present danger to a Congressional purpose
(b) “The most stringent protection of free speech would not protect a man in falsely shouting fire in a
theater and causing a panic”
(3) Frohwerk v. United States→ Δ charged with violation of EA for writing articles denouncing US
involvement in WWI
(4) Debs v. United States→ Δ gave speech protesting US involvement in WWI
b) Abrams v. United States→ Πs printed copies of leaflets denouncing US’ decision to send troops to Russia as
part of WWI
(1) RULE: Speech, which would ordinarily be protected by the First Amendment, may nevertheless be
prohibited when it is used in such circumstances and is of such a nature as to create a clear and present
danger of substantive evils that Congress has a right to prevent.
(2) Π argued that his act was lawful because it involved speech protected by 1A.
(a) Court response: For the reasons discussed in Schenck, Frohwerk, and Debs, Abrams’ speech is not
protected and the convictions by the district court are sustained.
(3) Holmes Dissent: Neither of the statements by Π attack the US in any way, as prohibited under the EA. Also
no evidence that the pamphlets were actually made and distributed with intent to cripple the US in its
production of essential war materials.
(a) Without proving intent, Π’s acts could not be considered criminal under the EA.
(i) Schenck, Frohwerk, and Debs were correctly decided, but the present case differs because
there is no clear and present danger that Π’s speech could possibly harm the war effort or the
draft
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 (b) Marketplace of ideas opinion: “While that experiment is part of our system I think we should be
eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be
fraught with death, unless they so imminently threaten immediate interference with the lawful and
pressing purposes of the law that an immediate check is required to save the country” → Now what’s
known as clear and present incitement of danger
c) Reasonableness Approach
(1) Gitlow v. New York→ first time 1A is applied to the states under DP of 14th; State law against criminal
anarchy at issue
(a) RULE: State statutes utilizing the state’s police power to regulate speech and the press are
constitutional unless they are arbitrarily or unreasonably exercised.
(b) Holding: conviction under state anarchy law is upheld
(c) Holmes dissent: “It is said that this manifesto was more than a theory, it was an incitement. Every idea
is an incitement”
(2) Whitney v. California→ California’s Criminal Syndicalism Act (CCSA) prohibited “advocating,
teaching, or aiding and abetting the commission of crime, sabotage, or unlawful acts of force and
violence or unlawful methods of terrorism as a means of accomplishing a change in the industrial
ownership or control or effecting any political change.” Π was a member of the Communist Party of
CA and was prosecuted for violating the CCSA for organizing a Communist Convention.
(a) RULE: Under the First and Fourteenth Amendments, states may constitutionally prohibit speech that
represents a clear and present danger of inciting to crime, disturbing the public peace, or threatening
the overthrow of government by unlawful means.
(b) Brandeis concurrence: “If there be time to expose through discussion the falsehood and fallacies, to
avert the evil by the processes of education, the remedy to be applied is more speech, not enforced
silence” → Counter-speech doctrine
(i) Safety Valve Theory→ Provides an outlet for those who want to criticize society. If we
repress that, it will come out not in the form of speech but violent action
(a) Generalized conduct of inciting speech is protected unless it is imminent
d) The Brandenburg Test
(1) Bond v. Floyd→ GA legislature refused to allowed Bond to take his seat in the House because he
criticized the Vietnam War
(a) Court concluded Bond’s statements were advocacy of ideas protected by 1A
(2) Watts v. United States→ Π made statement Court categorized as “crude political hyperbole” after stating
“They are not going to make me kill my black brothers. If they give me a rifle, the first person I’ll kill is
LBJ”
(a) Court reversed his conviction because he engaged in “protected political hyperbole”, not a true threat,
and thus was protected by 1A
(3) Brandenburg v. Ohio→ Π was the leader of the KKK in OH. Charged with violating OH Criminal
Syndicalism Act (OCSA) for “advocating the duty, necessity, or propriety of crime, sabotage, violence,
or unlawful methods of terrorism as a means of accomplishing industrial or political reform,” and for
“voluntarily assembling with any society, group, or assemblage of persons formed to teach or advocate
the doctrines of criminal syndicalism” for burning a cross and uttering speech that was derogatory to
African Americans and Jews during a KKK rally
(a) RULE: Under the First and Fourteenth Amendments, a state may only regulate speech that advocates
violence if the speech is intended and likely to incite imminent illegal activity.
(b) When the government may punish advocacy of illegality: “The constitutional guarantees of free speech
and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law
violation except where such advocacy is directed to inciting or producing imminent lawless action
and is likely to incite or produce such action”
(i) Protected unless the speech is intended and likely to incite imminent illegal activity

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 (4) Hess v. Indiana→ “We’ll take the fucking street later” response to police officer after police cleared
demonstration from street
(a) RULE: Speech that advocates illegal activity or the use of force is protected under the First
Amendment to the United States Constitution unless it is both intended and likely to provoke imminent
illegal activity.
(b) Court said “at best the speech could be taken as counsel for present moderation; at worst, it amounted
to nothing more than advocacy of illegal action at some indefinite future time”
(c) Insufficient to meet Brandenburg test because there was “no evidence.. that his words were intended to
produce, and likely to produce, imminent disorder”
(5) The Brandenburg test has been criticized because it has no element of proximity. Doesn’t answer how
imminence and likelihood are to be appraised
(a) Most speech protective formulation of the incitement test
(b) Also used in civil cases where individuals seek tort liability from people who authored works that
allegedly encouraged others to engage in illegality
(i) Π argued music incited driver to kill state trooper→ TX state trooper shot by citizen he
pulled over while he was listening to Tupac lyrics that were “anti-police” (Davis v. Time
Warner)
(a) Court says no because no intent on part of Tupac to incite violence against police
(c) How does the Court get around the Brandenburg test? Sometimes they just don’t apply it
(i) Rice v. Paladin Enterprises (4th Cir.)→ Man hired hitman to kill his wife, son, and son’s
nurse after reading “How to be a Hitman”, Π’s sued publisher saying the book aided and
abetted the hitman when the book was found in the hitman’s house
(a) RULE: If a reasonable person could find that a publisher who provided specific
instructions on how to commit a crime specifically intended for the instructions to be
used to commit the crime, the publisher may be held civilly liable for aiding and abetting
the crime.
(ii) Planned Parenthood v. American Coalition of Life Activists (9th Cir.)→ ACLA publishing a
series of posters, “The Dirty Dozen,” and the “Nuremberg Files” naming and depicting
physicians who provided abortions. The posters, which captioned the physicians as
“guilty,” were the second in a series that started with wanted posters for certain such
doctors, many of whom were killed after the posters were released.
(a) RULE: A definition of threat of force in the Freedom of Access to Clinic Entrances Act,
18 U.S.C. § 248, that includes whether a reasonable person would foresee that the
statements would be interpreted by those to whom the maker communicates the statement
as a serious expression of intent to harm or assault coupled with the requirement of intent
to intimidate comports with the First Amendment so that any such threat would not be
considered protected speech.
(b) Refused to apply Brandenburg

2. Incitement
a) Incitement to Imminent Lawless Action→ Form of unprotected speech where speaker speaks to a large group
of people and someone immediately (or in a short timespan) acts unlawfully
(1) Difficult standard for government to meet due to the proximity requirement
b) Justice Brandeis spoke of this in his concurring opinion in Whitney v. CA (communist case) when he wrote:
(1) “In order to support a finding of clear and present danger it must be shown either that immediate serious
violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such
advocacy was then contemplated”
c) Rule from Brandenburg: “The constitutional guarantees of free speech and free press do not permit a state to
forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to incite or produce such action”
(1) Directly overruled Whitney v. CA because Π was charged with the same sort of statute as the Π in Whitney
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 d) Hess v. Indiana→ Court ruled that “advocacy of illegal action at some indefinite future time” is not enough
to satisfy Brandenburg
3. Fighting Words
a) Fighting Words→ A insults B in such a way that B would respond with violence; Words which by their
very utterance inflict injury or tend to incite an immediate breach of the peace→ Chaplinsky v. New
Hampshire
(1) Most courts use second definition: Incite immediate breach of the peace
(2) Some courts use first definition to apply to racial slurs: Inflict injury on a large group of people
b) How these cases arise:
(1) Individual is criminally charged→ Chaplinsky v. New Hampshire
(2) When person is charged w/ disorderly conduct/breach of the peace, charges are dropped, and person files
civil rights action against police for unlawful arrest/retaliation based on protected speech
c) Chaplinsky v. New Hampshire→ Δ charged w/ violation of NH law prohibiting offensive, derisive, or
annoying speech. “You damn fascist”- SHE THINKS I’M A FASCIST? I don’t control the railroads or the
flow of commerce!
(1) REASON WHY NH LAW WASN’T OVERBROAD: State SC had a narrow construction of broad
statute→ statute’s purpose was to preserve the public peace, no words being “forbidden except such as
have a direct tendency to cause acts of violence by the person to whom, individually, the remark is
addressed”
(2) RULE: “Fighting words” that incite others to violence are not protected by the First Amendment from
governmental regulation.
(3) Reasoning for unprotection of fighting words:
(a) Not valuable speech: No essential part of any expression of ideas
(b) Are of such slight social value as a step to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morality
(4) “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of
which has never been thought to raise any Constitutional problem. They include the lewd and obscene, the
profane, the libelous, and the insulting or ‘fighting’ words– those which by their very utterance inflict
injury or tend to incite an immediate breach of the peace.”
(a) Profanity is no longer separate unprotected category of speech
d) Limiting of fighting words doctrine
(1) Gooding v. Wilson→ “SoB” to police officer
(a) The GA supreme court had never narrowed their statute like the state supreme court in Chaplinsky.
Therefore, statute reached substantial amount of protected speech = overbroad
(b) RULE: While the First Amendment does generally not protect “fighting words”, a state statute
prohibiting them may still be unconstitutional if it is over-inclusive.
(c) Even if your own conduct consists of proscribable speech, you still have to be charged under an
appropriately drafted statute
(i) You can still prevail on a facial challenge because the statute is unconstitutional→ even
though Π’s speech would likely be unprotected in most jx’s, he prevailed because the
statute was facially unconstitutional
(a) Facial challenge→ The law on its face is unconstitutional and needs to be stricken
because it reaches a substantial amount of protected speech
(i) A successful facial challenge means that the statute is not good law
(b) As applied challenge→ The law as applied to MY speech is unconstitutional
(i) A successful as applied challenge means that the statute is still good law, but
Π’s speech doesn’t fall within the statute
(2) Most significant: Cohen v. CA→ Fuck the draft jacket
(a) Not fighting words because message wasn’t directed at a particular individual, generalized statement
against the draft
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 (b) Limited fighting words to direct and individual insults
(c) “No individual actually or likely to be present could reasonably have regarded the words on the
appellant's jacket as a direct personal insult.”
(d) “For while the particular four-letter words being litigated here is perhaps more distasteful than most
others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we
think it is largely because governmental officials cannot make principled distinctions in this area that
the Constitution leaves manners of taste and style so largely to the individual”
(e) Established the principle that fighting words should be confined to direct personal insults
(f) Also warned that government officials “might soon seize upon the censorship of particular words as a
convenient guise for banning the expression of unpopular views” → i.e. government shouldn’t
engage in viewpoint discrimination

4. True Threats
a) True threat→ A speaks to B in such a way that causes B to reasonably think A has a serious intent to cause
bodily harm or death to B
(1) Proven to be difficult for the courts to grapple with
(2) Serious expression of an intent to cause death or serious bodily harm to another
(a) Can arise through words or conduct (cross burning)
(3) R.A.V. v. City of St. Paul, Minnesota→ Prosecutorial discretion, Π’s behavior was a true threat, but he
was charged under a “Bias-Motivated Crime Ordinance” = poor decision. Ordinance prohibited the
placement of hateful symbols, including burning crosses, “which one knows or has reasonable grounds
to know arouse . . . anger, alarm or resentment in others on the basis of race, color, creed, religion or
gender.”
(a) We cannot make these statutes a vehicle for content discrimination or devolve into viewpoint
discrimination
(b) RULE: Under the First Amendment, states may not regulate categories of unprotected speech, such as
“fighting words,” on the basis of content.
(c) Government targeted certain types of fighting words
(i) “Nonverbal expressive activity can be banned because of the action it entails, but not because
of the ideas it expresses”
b) Feiner v. New York→ Court upheld conviction of student speech that sharply criticized the president and
local political officials for their inadequate record on civil rights, crowd seemed angry and police asked Π
to leave, he refused and was arrested
(1) Hostile Audience→ Not a separate category, but distinctive
(2) “It is one thing to say that the police cannot be used as an instrument for the suppression of unpopular
views, and another to say that, when as here the speaker passes the bounds of argument or persuasion and
undertakes incitement to riot, they are powerless to prevent a breach of the peace”
(3) Court said Π knew or should have known his speech was going to incite violence
c) Edwards v. South Carolina→ 187 Black high school and college students participated in a civil-rights
protest during which the students marched from Zion Baptist Church in Columbia, South Carolina, to the
South Carolina State House to express their grievances to the legislature concerning the state’s racially
discriminatory laws
(1) THE Supreme Court case that holds that public protest is protected by the First Amendment.
(2) The 1A does not allow for the criminalization of peaceful protest and freedom of assembly
d) Watts v. United States→ Π engaged in “political hyperbole”, overturned conviction
(1) RULE: The First Amendment protects political hyperbole that includes a threatening statement against the
president of the United States.
(a) Watts Factors:
(i) Context in which statements are made→ during a political debate

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 (ii) Was the threat explicit or conditional→ conditional
(iii) Response to the speech→ Π’s friends laughed
e) Virginia v. Black→ Really two separate cases:
(1) KKK leader Barry Black burns cross in field with permission of property owner; neighbor testifies that she
was scared.
(2) Richard Elliott and Jonathan O'Mara attempted to burn a cross in the yard of James Jubilee, an African-
American neighbor of Elliott’s
(3) = Δ’s violated VA’s cross burning law→ "It shall be unlawful for any person or persons, with the intent
of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property
of another, a highway or other public place.”
(4) "Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group
of persons." → THIS is the problem
(a) Not all cross burnings are the same - Justice O’Connor
(b) Elliot and O’Mara intended to intimidate Jubilee
(c) Black was not targeting any specific person
(5) “True threats encompass those statements where the speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence to a particular individual or group of
individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true
threats protect[s] individuals from the fear of violence and from the disruption that fear engenders, in
addition to protecting people from the possibility that the threatened violence will occur.” - Justice
O’Connor

5. Obscenity
a) Roth v. U.S. → Court’s first major obscenity test
(1) RULE: Obscenity is not protected by the 1A
(a) Obscene speech→ deals with sex in a manner appealing to prurient interest
(b) Prurient interest→ having a morbid or shameful interest in sex
(c) Why? Historically not protected speech. Most countries and states have laws against obscenity
(d) Sex and obscenity is not synonymous→ just because something deals with or talks about sex
doesn’t make it obscene
(i) Sex is a “subject of absorbing interest of mankind”
b) After Roth→ Court struggled to formulate a definition of obscenity.
(1) Expressed by Justice Potter Stewart in Jacobellis v. Ohio: “I shall not today attempt further to define the
kinds of material I understand to be embraced within that shorthand description; and perhaps I could never
succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is
not that.”
(2) “Redrupping” → process of court determining whether something was obscene or not obscene without
defining/placing limit on obscenity
(a) Beginning in 1967, in Redrup v. New York, the Court overturned obscenity convictions in per curiam
decisions without an opinion, something that the Court did more than 30 times in obscenity cases in the
next six years.
c) Paris Adult Theatre I v. Slaton
(1) RULE: Obscene material has no protection under the First Amendment, and states have a legitimate
interest in regulating commerce in obscene material and in regulating exhibition of obscene material in
places of public accommodation.
(2) Secondary effects→ Businesses that display obscene material have secondary effect on area like
decreased property value and increased crime
(3) Brennan dissent: No proper way to distinguish between protected and unprotected obscenity
(a) As long as we aren’t dealing with minors or non-consenting adults, rejects obscenity exception
d) Miller v. California
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 (1) Develops the Miller test: In determining whether material is obscene, the trier of fact must consider three
guiding principles:
(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 state law; and
(c) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
(2) “Contemporary community standard” → locale where the jury is from in an obscenity case
(3) Patently offensive→ going beyond what is typically accepted in the community
(4) SLAPS (way to remember)→ work lacks Serious Literary, Artistic, Political, or Scientific value
(5) What does it apply to?
(a) Films or pictures of hardcore sexual content
(i) But not always the case→ Jenkins v. Georgia: Jenkins owned theater in GA and played film
“Carnal Knowledge”, not porn
(a) CJ Rehnquist: Material that does not depict sexual conduct in a patently offensive way is
not outside the protections of the First and Fourteenth Amendments due to obscenity. The
film “Carnal Knowledge” does not contain visual depictions of any sexual acts. The film
alludes to sexual activity, but the camera does not focus on the actors’ bodies during
those scenes. The film contains some nudity, but nudity alone does not amount to
patently offensive sexual conduct.
e) After Miller, Court has adhered to test in three major ways:
(1) First, the material must appeal to prurient interest and that is to be decided by a community standard.
(a) Example: Juries applying federal obscenity laws define prurient interest from a community perspective
(i) “The fact that distributors of allegedly obscene materials may be subjected to varying
community standards in the various jurisdictions does not render a statute unconstitutional
because of the failure of application of uniform national standards of obscenity.”
(2) Second, in order for material to be obscene it must be patently offensive under the law prohibiting
obscenity
(a) In Ward v. Illinois, the Court held that the law did not need to provide an “exhaustive list of the sexual
conduct” that would be patently offensive, it was sufficient that a law included the examples included
in Miller
(3) Third, in order for material to be obscene, it must, taken as a whole, lack serious redeeming artistic,
literary, political, or scientific value.
(a) In Pope v. Illinois, the Court held that social value is to be determined by a national standard—how the
work would be appraised across the country—and not a community standard
(b) Court said that “the value of [a] work [does not] vary from community to community. . . . The proper
inquiry [is] whether a reasonable person would find such value in the material.”

f) Child Pornography
(1) New York v. Ferber→ Film showing 16 year olds masturbating at issue
(a) RULE: A state may prohibit the exhibition, sale, or distribution of child pornography even if that
material does not meet the articulated test for obscenity. Material could qualify as child pornography
even if it doesn’t meet the Miller test
(b) Focus: Harm to actual children in the production of this material, will cause lasting harm
(i) In order to combat problem, have to target people who create material in the first place
(c) When the evil overwhelmingly outweighs any expressive interest/social value
(d) To be classified as child porn, must actually involve children in the creation of the material
(2) Ashcroft v. Free Speech Coalition→ Important clarification of Ferber.
(a) RULE: The government cannot ban child pornography based on its condemnation of the material.
Rather, the government’s interest is limited to protecting children from being used in the making of the
material.

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 (3) United States v. Williams→ challenged Prosecutorial Remedies and Other Tools to End the Exploitation of
Children Today Act of 2003 on overbreadth grounds that it applies even if the material provided or
requested is not actually child pornography, but instead is speech protected by the First Amendment
(a) Act more narrowly defined child pornography and it prohibits offers to provide and requests to obtain
child pornography.
(b) The Court upheld the Act and concluded that “offers to provide or requests to obtain child pornography
are categorically excluded from the First Amendment,” even if the material involved is not child
pornography and is speech protected under the First Amendment.
(4) Tension between Williams and Free Speech Coalition
(a) Free Speech Coalition unequivocally held that people cannot be punished for possessing, selling,
distributing, or requesting non obscene sexually explicit material unless it actually used children in its
production
(i) But the effect of Williams is exactly that: The government can punish people for offering or
requesting this material if they have the mistaken belief that it is child pornography.
(b) On the other hand, the cases can be distinguished in that Williams follows basic criminal law principles
in holding that a person can be punished for attempting to engage in illegal activity even if the material
involved turns out not to actually be contraband.

g) Zoning Ordinances
(1) Young v. American Mini Theaters→ Detroit adopted two zoning ordinances requiring adult movie
theaters to be sufficiently dispersed throughout the city. Specifically, they could not be located within
1000ft of any two other “regulated uses” or within 500ft of a residential area. The term “regulated
uses” included ten different kinds of establishments in addition to adult theaters. Π challenged
(a) RULE: A city ordinance may constitutionally require the geographic disbursement of adult movie
theaters if doing so furthers a legitimate governmental purpose.
(b) “Even though we recognize that the First Amendment will not tolerate the total suppression of erotic
materials that have some arguably artistic value, it is manifest that society’s interest in protecting this
type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled
political debate that inspired Voltaire’s immortal comment”
(i) Voltaire’s immortal comment→ “I don’t like what you say but I will defend to the death
your right to say it”
(c) Stewart dissent: Content based restriction is subject to strict scrutiny, Court didn’t do that but instead
just made up this rule
(i) Reason for dissent: he recognizes that the secondary effects doctrine is distorting 1A
jurisprudence re: content-based and content-neutral
(a) Content based = strict scrutiny
(b) Content neutral = intermediate scrutiny
(i) Can be outcome determinative
(ii) As a gov atty: if trying to justify, look outside the primary effects of speech
(2) Renton v. Playtime Theaters→ enacted a zoning ordinance that prohibited adult motion-picture theaters
from locating within one thousand feet of any residential zone, single- or multiple-family dwelling,
church, park, or school. Theaters were defined as “adult” if they distributed media depicting,
describing, or relating to “specified sexual activities” or “specified anatomical areas” for observation by
patrons
(a) **Secondary effects was a footnote in American Mini Theaters, takes center stage here
(b) RULE: “Content-neutral” time, place and manner regulations are acceptable under the First
Amendment so long as they are designed to serve a substantial governmental interest and do not
unreasonably limit alternative avenues of communication.
(i) Court described the ordinance as being content-neutral because the “City Council’s
‘predominant concerns’ were with the secondary effects of adult theaters, and not with the
content of adult films themselves.” The Court said that the ordinance was designed to
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 “prevent crime, protect the city’s retail trade, maintain property values, and generally protect
and preserve the quality of the city’s neighborhoods, commercial districts, and the quality of
urban life, not to suppress the expression of unpopular views.” = SECONDARY FX’S
(c) **Renton is to American Mini Theaters as Barnes is to Pap’s AM → Took a footnote/concurrence in
the former and made it the opinion of the court relied on in the latter
(d) Marks rule: When plurality, the controlling opinion that governs future cases is the opinion of those
among the plurality that is decided on the narrowest of grounds
(i) When you have a highly fragmented court, the opinion of one becomes opinion of the court
(3) City of Los Angeles v. Alameda Books→ LA enacted a zoning ordinance prohibiting the establishment
of two or more adult book or video stores in the same building. City cited a study that demonstrated a
correlation between the placement of adult book and video stores and a higher incidence of violent
crime and prostitution.
(a) RULE: In demonstrating that an ordinance was designed to serve a substantial government interest, a
municipality may rely on evidence that the municipality reasonably believes to be relevant.

h) Nude Dancing
(1) Barnes v. Glen Theatre, Inc
(a) RULE: The government may completely ban nude dancing. Specifically, the Court ruled that an
Indiana statute prohibiting public nudity could be used to require that female dancers must, at a
minimum, wear pasties and a G-string when they dance.
(b) Souter: Government can prohibit totally nude dancing because of the harmful effects of nudity
(i) “that legislation seeking to combat the secondary effects of adult entertainment need not await
localized proof of those effects [and that] the State of Indiana could reasonably conclude that
forbidding nude entertainment of the type offered at the Kitty Kat Lounge [furthers] its
interest in preventing prostitution, sexual assault, and associated crimes.”
(ii) Applied O’Brien test
(2) City of Erie v. Pap’s A.M. → Court reaffirmed Barnes. Also reaffirmed Renton’s holding that the
government’s interest in preventing secondary effects is sufficient to make the law content-neutral and to
uphold the closing of nude dancing establishments
(a) RULE: A government ordinance prohibiting public nudity is permissible under the First Amendment if
it is content-neutral and targeted towards combating negative secondary effects associated with adult
establishments.
(i) Justified ordinance based on secondary effects that the ordinance wasn’t based on
(b) Stevens dissent: “The Court relies on the so-called “secondary effects” test to defend the ordinance.
The present use of that rationale, however, finds no support whatsoever in our precedents. Never
before have we approved the use of that doctrine to justify a total ban on protected First Amendment
expression. On the contrary, we have been quite clear that the doctrine would not support that end.”
(c) Souter dissent: Does something SCOTUS justice rarely does = admits he was wrong in Barnes

i) **If secondary effects doctrine applies, what is effect of 1A analysis?

(1) Waters down analysis needed to justify restrictions on speech
(2) Lowers content-based to content-neutral → INTERMEDIATE SCRUTINY
(3) Used outside of obscenity cases:
(a) Restrictions on political signs for “impact on traffic safety” or “visual clutter”
(b) Generally associated with adult expression, but has been used to limit commercial speech, political
speech, and much more
(4) Hudson tends to view secondary effects doctrine as dangerous as government speech doctrine because of
the limits they place on 1A protections

6. Profanity and Indecency

a) Profanity
(1) Cohen v. CA
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 (a) CA’s argument re: Cohen’s jacket “Fuck the draft”
(i) It was profanity
(a) Court says in order to be profanity, needs to be in some form erotic; Fuck isn’t erotic
(ii) It was fighting words
(a) Court says no, wasn’t directed towards an individual
(b) “Direct, face to face, insult”
(iii) Protection of others from “crude form of protest”
(a) They can look away
(b) RULE: Absent a particularized and compelling purpose, a state may not criminalize a public display of
a single four-letter expletive without violating the First and Fourteenth Amendments.
(c) “Governments might soon seize upon the censorship of particular words as a convenient guise for
banning the expression of unpopular views”
(i) Celebrated as 1A opinion because it deals with so many nuances of 1A law
(d) Justice Blackmun dissent: “Mainly conduct and little speech” = not subject to 1A protection→
Conduct/speech dichotomy
b) Indecency
(1) FCC v. Pacifica→ Dirty words monologue played on radio during daytime hours
(a) Broadcasting receives the most limited 1A protection
(i) Broadcasting establishes a uniquely pervasive presence in the lives of Americans→ In
public and in the home
(ii) Broadcasting is uniquely accessible to children, even those too young to read
(b) Very narrow holding- rooted in less protection for broadcasting
(i) Temporal ban on speech: “Safe Harbor” hours- post 8pm
(ii) Not a criminal prosecution
(c) Criticized because some people believe broadcasting shouldn’t be subject to such exacting measures
(2) FCC v. Fox Television→ “fleeting expletives” cannot be punished, violates due process because TV
stations did not have fair notice that this could be punished
(3) Reno v. ACLU→ Communications Decency Act of 1996 at issue: Indecent transmission provision and
patently offensive provision prohibited the knowing transmission of obscene or indecent messages to any
recipient under 18, and prohibits the knowing sending or displaying of patently offensive messages in a
manner that is available to a person under 18 years of age
(a) Distinguished from Pacifica: (1) CDA isn’t limited to time; (2) CDA is criminal law; (3) CDA is a
content based blanket restriction on speech
(b) Distinguished from Ginsberg v. NY (state may restrict access to minors of material that an adult would
have a constitutional right to access)
(i) Ginsberg was limited to certain ages, CDA does not distinguish between older and younger
minors
(ii) Ginsberg limited to actual pornography, terms in CDA were much broader than that
(c) “Cyber Zoning” law → Renton secondary effects
(i) Purpose of CDA is to protect children from primary effects of indecent and patently offensive
speech– nothing to do with secondary effects
(ii) Makes CDA content based restriction = STRICT SCRUTINY
(d) Vagueness→ Care about this partly because of due process- fair notice that your conduct could
subject you to criminal liability
(i) Concern that CDA covers far more than commercial pornography- birth control,
homosexuality, consequences of prison rape
(ii) Vagueness is severe concern here because:
(a) Content based = chilling effect
(b) Criminal statute= Severity of criminal sanctions may cause people to remain silent rather
than communicate even arguable lawful words, ideas, images

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 (e) Overbreadth→ “The government may not reduce the adult population to only what is fit for
children”
(i) Scope isn’t limited to commercial speech/entities- unlike Ginsberg and Pacifica
(f) RULE: Under the First Amendment, the government may not regulate the transmission and display of
content on the internet unless it does so for a compelling purpose and uses means that are narrowly
tailored to that purpose.
(4) Ashcroft v. ACLU→ Child On-Line Protection Act at issue
(a) Court struck down, even though it was more limited than the CDA because it was a content
based restriction, applying only to sexual speech, so had to meet strict scrutiny→ not the least
restrictive means. Least restrictive means would have been filtering devices

c) Violent Speech
(1) United States v. Stevens→ 18 U.S.C. 48: criminalizes the transmission of images of animal cruelty
(a) Court resists the application of the Ferber test: When the evil overwhelmingly outweighs any
expressive interest/social value
(i) Law would reach substantial amount of protected speech (hunting videos)
(b) Overbreadth→ must apply to a substantial number of types of protected speech
(i) “Criminal prohibition of alarming breadth”
(a) Doesn’t require the conduct to be cruel- “maimed, mutilated, tortured, wounded, killed” =
animals could be in these states for a number of reasons
(c) § 48’s exceptions clause exempts from the prohibition “any depiction that has serious religious,
political, scientific, educational, journalistic, historical, or artistic value.” (Miller v. CA)
(i) The Government argues that hunting can fall into one of these categories. However,
determining whether a particular depiction falls within one of the excepted categories is too
tenuous to withstand constitutional scrutiny.
(d) RULE: A federal law that seeks to ban visual and auditory depictions of animal cruelty is overbroad in
violation of the First Amendment.
(2) Brown v. Entertainment Merchants Association→ CA law imposing restrictions on violent video games
(a) Initial question: Are video games speech? Scalia says modern video games are expressive enough to
trigger 1A review
(b) Is it content based or content neutral? Content based- only violent video games = strict scrutiny
(i) State cannot meet standard, evidence isn’t enough to show compelling interest and even if
they did- the law is flawed because although a minor cannot purchase a violent video game,
the state legislature is willing to sell such a game to a parent to then give to the child. This is
not the narrow tailoring that restriction of First Amendment rights requires.
(ii) While it is true that a state can use its power to protect children from harm, it does not have
free reign to restrict the ideas to which children may be exposed. CA offered no significant
evidence to link violent video games and incidents of harm to minors.
(iii) The only justification provided by the defendants is that violent video games tend to make
some minors more aggressive. Such a justification is insufficient against the backdrop of the
sweeping regulation.
(c) As a means of protecting children from portrayals of violence, the law is underinclusive, not only
because it excludes portrayals other than video games, but also because it allows a parent to purchase
the game.
(d) And as a means of assisting concerned parents, the law is overinclusive because it abridges the 1A
rights of young people whose parents and guardians think violent video games are a harmless pastime.
(i) Violence permeates American culture whether we like it or not
(e) RULE: A state law that seeks to prohibit the sale of violent video games to minors must be narrowly
tailored to serve a compelling government interest.

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7. Commercial Speech
a) Commercial speech receives 1A protection, just lower level
(1) Subject to a form of intermediate scrutiny- Central Hudson test
(a) Still good law, but arguments that Court should cease the second class treatment of commercial speech
b) History on Commercial Speech and the First Amendment
(1) 1942: Valentine v. Christensen→ Court held that commercial speech was not protected by 1A
(2) 1964: New York Times v. Sullivan→ NYT did not defame AL official
(a) Π argued that it was commercial speech so it falls under Valentine
(b) Court held not commercial speech, so not subject to Valentine → speech regarding important political
issues, AL mistreatment of Civil Rights Protesters
(3) 1975: Bigelow v. Virginia→ Court held that speech is not stripped of 1A protection merely because it
appears as a commercial advertisement
(a) The fact that the particular advertisement had commercial aspects or reflected the advertiser’s
commercial interests did not negate all 1A guarantees, somewhat akin to “ad” in New York Times v.
Sullivan
(b) Questioned Valentine rule, but did not expressly overrule it
c) Modern Commercial Speech Jurisprudence
(1) Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. → Statute prohibited
pharmacists from advertising prices of drugs
(a) Purely commercial speech, Court couldn’t side-step the Valentine rule like it did previously
(i) Explicitly overruled Valentine
(b) Commercial speech is entitled to some 1A protection
(i) Why? Consumers have a right to receive information and ideas
(a) One of the most important and expansive doctrinal strands in all of 1A jurisprudence
(b) Involves not just the 1A right of advertisers, but also 1A rights of consumers
(c) Society has an interest in the free flow of commercial information
(i) Emphasizes that state is not prohibited from placing any restrictions on commercial speech
(a) Inherently misleading speech v. potentially misleading speech
(i) Inherently misleading = not protected
(ii) Potentially misleading = can be protected because can be remedied by
disclaimer
(b) “The 1A does not prohibit the State from ensuring that the stream of commercial
information flow cleanly as well as freely”
(d) RULE: The First Amendment protects commercial speech relating to the advertisement of prescription
drug prices.
(2) Central Hudson Gas & Electric Corp. v. Public Service Commn. of New York→ Court finally develops test
exclusively for commercial speech:
(a) Is the expression protected by 1A?
(i) Protected commercial speech is truthful, non misleading, concerns lawful activity
(b) Does the government have a substantial interest in the regulation?
(i) Why Central Hudson test is intermediate scrutiny
(c) Does the regulation directly and materially advance the government interest?
(d) Is the regulation narrowly tailored to serve that interest?
(i) Doesn’t have to be the least restrictive means, just narrowly tailored
(3) 44 Liquormart, Inc. v. Rhode Island→ Two RI statutes that prohibited advertising alcohol prices
(a) Government's assertion of substantial interest: temperance (hello prohibition?)
(b) Court unanimously struck down statutes: “RI’s price advertising ban constitutes a blanket prohibition
against truthful, non misleading speech about a lawful interest”
(i) State argues this is in the state’s best interest→ exactly what Justice Blackmun was
warning about in Central Hudson concurrence: “Covert attempt by the State to manipulate

36
 the choices of its citizens, not by persuasion or direct regulation, but by depriving the public
of the information needed to make a free choice.”
(c) RULE: Under the First Amendment, a state may not constitutionally prohibit the advertising of prices
of alcoholic beverages.
(d) Most significant opinion: arguably Justice Thomas’ concurrence
(i) Doesn’t see a distinction between bans on truthful commercial speech and non-commercial
speech, no historical justification for different treatment
(4) Lorillard Tobacco Co. v. Reilly→ Statute was so overbroad, it almost amounted to a flat ban on speech
re: tobacco ads: Doesn’t pass 3rd or 4th prong of Central Hudson
(a) RULE: Under the First Amendment, a state may not constitutionally prohibit commercial speech,
unless doing so withstands the four-part analysis outlined in Central Hudson
(b) Cites FL Bar v. Went For It (limiting free speech rights of attorneys): We do not, however, require that
"empirical data come . . . accompanied by a surfeit of background information . . . We have permitted
litigants to justify speech restrictions by reference to studies and anecdotes pertaining to different
locales altogether, or even, in a case applying strict scrutiny, to justify restrictions based solely on
history, consensus, and 'simple common sense.'"
(c) Interesting because FL Bar when citing this passage, cites Renton, SECONDARY EFFECTS: Used to
justify speech restrictions in other contexts
(5) TAKEAWAYS:
(a) While the Central Hudson test is used for commercial regulations, a form of rational basis is used to
analyze the constitutionality of disclaimer regulations in advertising→ government is compelling
you to include certain speech on your advertisement
(i) Borgner v. Florida Board of Dentistry: Case of this came to SCOTUS, denied cert; RBG
and Thomas dissented in the denial of cert→ dissenting in denial of cert is rare, and then
you put RBG + Thomas together lmao
d) Attorney Advertisements
(1) Bates v. State Bar of Arizona→ Rule of PR banned advertising legal services, Δ’s directly violated rule by
advertising their legal services
(a) Gov args: Adverse effect on ethics, stir up unnecessary litigation, affect quality of legal services,
promote distrust of lawyers, tarnish the reputation of the profession
(b) RULE: The government may not prohibit attorneys from engaging in truthful, nondeceptive
advertising of their services. Under the First Amendment, a lawyer may not constitutionally be
disciplined for advertising routine legal services.
(i) Why? Consumers of legal services have the right to receive truthful, nondeceptive
information regarding the offerings of lawyers
(2) Ohralik v. Ohio State Bar Assn
(a) RULE: A state bar may discipline a lawyer for soliciting clients in person without violating the First
Amendment.
(b) Different from Bates because there is more coercion/pressure in a face to face solicitation
(3) In re Primus→ Lawyer solicitations are protected by the 1A when the lawyer offers to represent a client
free of charge
(4) Shapero v. Kentucky Bar Assn. → A state bar association may not ban written advertisements that are not
false, deceptive, and do not concern unlawful activities unless in the furtherance of a substantial
government interest.
(a) Letter solicitation does not have the same risk of abuse (pressure, coercion) as face-to-face solicitation
(5) KEY TAKEAWAYS:
(a) States may prohibit attorney in-person solicitation of clients for profit, but solicitation where the
attorney would not profit directly from the client or solicitation by mail is generally protected by 1A
(b) One exception to mail solicitations→ 1995: Florida Bar v. Went For It, Inc. →A bar association rule
prohibiting direct mail solicitation of accident victims within a limited time period following the
occurrence of an accident does not violate constitutional protections of commercial speech.
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 (c) “If commercial advertisers are First Amendment step-children, lawyers come closer to abandoned
orphans.”

8. Defamation
a) Defamation→ false statement of fact that harms another’s reputation
(1) Truth is a defense; true = not defamatory
(a) Substantial truth doctrine→ as long as the gist of the statement is true, it doesn’t have to be 100%
accurate
(2) Provably false factual statement
(a) Rhetorical hyperbole v. fact
(i) ^ used successfully by lawyers in libel suits by Trump
(a) Clearly exaggerated, over the top statements
b) FOUR CATEGORIES:
(1) Where Π is a public official or running for public office
(a) New York Times v. Sullivan→ When Π is a public official or running for public office, Π can recover
for defamation only by proving with clear and convincing evidence the falsity of the statements and
actual malice
(i) “Libel cannot continue to claim talismanic immunity from the limits of the 1A”
(ii) HOLDING: No evidence that NYT acted with actual malice, at most, negligent
(a) Another reason why Sullivan lost: required element of defamation suit is identification,
Sullivan would have had to be identified in the article and he wasn’t
(iii) Arguably saved the Civil Rights Movement because >$15 million in defamation suits
regarding the reporting of events of the CRM
(iv) Actual Malice→ The Δ knew that the statement was false or acted with reckless disregard
of the truth
(b) Four requirements under this category:
(i) Π is a public official or running for public office;
(a) No test for how far public official goes but “anything which might touch on an official’s
fitness for office”
(b) “Someone who has substantial responsibility or control over the conduct of governmental
affairs” – decision making power that influences others (Rosenblatt v. Baer)
(ii) Π must prove their case by clear and convincing evidence;
(a) Appellate courts must conduct an independent review to ensure there is clear and
convincing evidence that Δ uttered false statements with actual malice→ de novo
(Bose Corp v. Consumers Union of United States, Inc.)
(iii) Π must prove the falsity of the statement;
(a) Δ cannot be held to prove the truth of the statements
(b) Labeling a statement as opinion is not sufficient, in itself, to preclude defamation liability
(Milkovich)
(iv) Π must prove actual malice
(a) Statements were made with “the high degree of awareness of their probable falsity”;
“Deliberate or reckless falsification”
(b) Actual malice cannot be proven by showing that Δ failed to verify the accuracy of facts
or even that Δ acted recklessly
(c) Must be proof that Δ had serious doubts about the accuracy of the statements before
making them
(d) Even the intentional fabrication of quotations is not enough to prove actual malice if the
statements were substantially accurate in reflecting what was said (Masson v. New
Yorker)
(e) *** This requirement must be proven by clear and convincing evidence
(i) Higher than preponderance of evidence, typical standard of civil cases

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 (c) Libel and fiction claims→ subset of defamation claims suing producers of movies/authors of books
claiming that a fictional character in the movie/book is so factually similar to the Π that it
constitutes libel
(2) Where Π is a public figure
(a) Extended NYT v. Sullivan→ same rules apply in defamation suits brought by public figures (Curtis
Publishing Co. v. Butts and Associated Press v. Walker)
(i) Public figures cannot recover for defamation with less than proof of actual malice
(b) Public figure/official = “Thrust themselves into the forefront of particular public controversies in order
to influence the resolution of the issues involved”
(i) “Invite attention and comment”’
(ii) Public figure = celebrity, sports star, etc.
(c) When public officials/figures are confronted with false statements, they have greater ability and
resources to counter the false statement Gertz v. Welch = why they are held to higher standard in
defamation suits
(i) Also, comes with the territory
(3) Where Π is a private figure and the matter is of public concern
(a) Snyder v. Phelps→ Military funeral picketing case
(i) RULE: A church protesting a military funeral on public land in a peaceful manner is
considered public speech protected by the First Amendment.
(a) Even though public speech is protected by the First Amendment, it is not limitless. Public
speech is still subject to reasonable time, place, or manner restrictions and is not
protected when it occurs outside a personal residence or an abortion clinic entrance.
(ii) The content of Δ’s signs plainly relate to broad issues of interest to society at large, rather
than matters of purely private concern
(a) They were peaceful, lawfully complied with police direction, didn’t actually interrupt
funeral, on public land → funeral setting doesn’t alter the conclusion that Δ’s speech is
“fairly characterized as constituting speech on a matter of public concern”
(iii) State legislatures quickly responded with anti-funeral picketing laws to prevent this in the
future but at the time MD did not have one→ Circuit split on whether these laws are
constitutional
(iv) One of the most famous recent free speech quotes→ CJ Roberts end of opinion, “Speech
is powerful. It can stir people to action, move them to tears of both joy and sorrow, and--as it
did here– inflict great pain. On the facts before us, we cannot react to that pain by punishing
the speaker. As a Nation we have chosen a different course--to protect even hurtful speech on
public issues to ensure that we do not stifle public debate.”
(4) Where Π is a private figure and the matter is NOT of public concern
(a) Gertz v. Welch→ Actual malice standard does not apply to private persons, only have to prove
negligence
(i) Π was more private person than public figure, just because he was prominent attorney doesn’t
make him a public figure
(ii) HOLDING: 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 = negligence
(a) Designation of Π as a private person or public official/figure is outcome determinative.
**Figure out what Π is classified is FIRST***

9. Intentional Infliction of Emotional Distress

a) Hustler Magazine v. Falwell→ parody of Falwell (nationally known minister) in Hustler “pornographer v.
the preacher”
(1) IIED Elements

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 (a) Intentional and reckless conduct;
(b) That is outrageous;
(c) That causes serious emotional/mental distress
(2) RULE: Public officials/figures cannot recover for IIED by reason of publications without showing in
addition that the publication contains a false statement of fact which was made with “actual malice”
(a) Outrageousness element is what concerned Court→ “Outrageousness” in the area of political and
social discourse has an inherent subjectiveness about it which would allow a jury to impose
liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a
particular expression”
(i) “An outrageousness standard thus runs afoul of our longstanding refusal to allow damages to
be awarded because the speech in question may have an adverse emotional impact on the
audience”
(b) Amicus brief from DC attorney Rozalyn Mazer on behalf of The Association of American
Editorial Cartoonists had big effect on CJ Rehnquist→ quote in opinion “The political cartoon is a
weapon of attack, of scorn and ridicule and satire; it is least effective when it tries to pat some
politician on the back. It is usually as welcome as a bee sting and is always controversial in some
quarters”
(3) Larry Flynt→ editor of Hustler “If the 1A will protect a scumbag like me, it will surely protect all of you”
b) Other Privacy Torts
(1) Intrusion upon Seclusion
(a) Jackie Kennedy paparazzi following case
(2) Public Disclosure of Private Facts
(a) Daily Mail principle→ Seldom can the press be punished for the publication of truthful information
lawfully acquired (Smith v. Daily Mail)
(3) False Light Invasion of Privacy
(a) Prostitution documentary showing footage of woman in high heels walking down street→
woman wasn’t a prostitute = sued under false light
(b) Juvenile crime doc use of stock footage
(4) Appropriation→ use of commercial likeness for profit without payment
(a) GA SC first recognized
(b) Variant = right of publicity→ usually brought by celebrities
(i) TN has one of the strongest statutes bc of Elvis
10. Expressive Conduct
a) When is conduct expressive enough to trigger 1A review?
(1) The 1A does cover more than verbal and printed expression
(a) “Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to
symbolize some system, idea, institution, or personality, is a shortcut from mind to mind” WV State
Board of Education v. Barnette
(2) Not all conduct is speech (i.e. not protected)
(a) Kernel of free expression not specifically expressive enough to trigger 1A review - CJ Rehnquist
(3) Spence v. Washington→ When conduct is communicative
(a) Two factors:
(i) An intent to convey a particularized message
(ii) A message that society would reasonably understand
(b) When these factors are met = triggers 1A review
b) When may the Government Regulate Conduct That Communicates?
(1) United States v. O’Brien→ Π + 3 others burning of their draft cards; At issue: 1965 Amendment to the
Universal Military Training and Service Act of 1948 which made it an offense to “knowingly
mutilate, or in any manner changes any such certificate”
(a) O’Brien Test (altered intermediate scrutiny): A government regulation is sufficiently justified if:
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 (i) It is within the constitutional powers of Congress;
(ii) It furthers an important or substantial government interest;
(iii) It is unrelated to the suppression of free expression;
(a) Most important factor (TX v. Johnson)
(iv) If the incidental restriction on alleged 1A freedoms is no greater than is essential to the
furtherance of that interest (narrowly tailored)
(b) HOLDING: 1965 Amendment is constitutional
(c) Δ’s argument that the purpose for the amendment was to suppress the draft card burners. Court says it
doesn't matter because the purpose of congress is not a basis for declaring legislation unconstitutional.
Legislators have different reasons for voting for or against different laws.
(d) Government has substantial interest in the administrative functions of the issuance of selective service
certificates
(2) Texas v. Johnson→ Flag burning case
(a) O’Brien test didn’t apply because Texas did not assert an interest in support of Δ’s conviction that was
unrelated to the suppression of expression = strict scrutiny is default
(b) RULE: A state statute that criminalizes the burning of an American flag as a means of political protest
violates the First Amendment.
(c) Johnson was not prosecuted for the expression of just any idea- prosecuted for the expression of
dissatisfaction with the policies of the US→ bedrock principle of 1A protections
(i) TX law wasn’t aimed at protecting the physical integrity of the flag, only against impairments
that others would find offensive
(d) “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that
this cherished emblem represents”
(3) Post Texas v. Johnson
(a) Congress enacts the Flag Protection Act of 1989→ federal law of the same type as the TX statute
(i) United States v. Eichman→ Court declared ^ unconstitutional, same reasoning as Texas v.
Johnson
(b) Congress tried to pass a constitutional amendment→ Proposed 28th Amendment
(i) Passed House 3x, came within 1-2 votes needed in the Senate

G. PUBLIC FORUM DOCTRINE

1. Traditional Public Forums→ piece of governmental property Hague v. CIO “governmental property from time and
memoriam has been held in trust for use by the general public”
a) Public parks and some public streets
b) RULE: Government officials may not engage in content discriminatory actions unless they meet strict scrutiny
c) Permitting schemes: content neutral and have to set sufficient guidelines so that government actors don’t act
with unbridled discretion to decide who can protest and who can’t
(1) Police Department of the City of Chicago v. Mosley→ labor picketing exception case, EP problem but
also 1A
(a) EP because treating two different types of protestors differently = differential tx but because content
based = 1A problem
(b) MISC quote: “But above all else, the First Amendment means that the government has no power to
restrict expression because of its Message, its Ideas, its Subject matter, or its Content”
(i) “Essence of this forbidden censorship is content control” → worried about thought control,
don’t want government saying what is ok to think and not ok to think
(c) In a public forum (public street) government cannot engage is content based discrimination
(i) But reasonable time, place, manner restrictions are okay
(2) Carey v. Brown→ Applies Mosley and says you can’t allow some picketing outside a residence but not
others
(3) Frisby v. Schultz→ Upheld prohibition on picketing in residential areas, targeted at one person’s home
(a) Brandeis “most comprehensive of all rights is right to be let alone” Olmstead v. US
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 (4) Burson v. Freeman
(a) Fundamental right = voting
(b) Government has compelling interest in not having voters intimidated, court applied ss and upheld law
prohibiting distributing campaign literature within 100 ft of polling place
(5) Heffron v. International Society for Krishna Consciousness→ upheld regulation of speech at MN State
Fair that prohibited the distribution of literature or the soliciting of funds except at booths
(a) Heffron principle: You don’t always have a 1A right to speak whenever and wherever you want
(b) Compelling state interest: Need for crowd control, sufficient time, place and manner restrictions
(c) RULE: States may impose reasonable, content-neutral time, place, and manner restrictions on
protected speech and religious practices if the least-restrictive means of protecting a legitimate
government interest.
(6) Hill v. Colorado→ “Floating abortion barrier” can’t get within 8 ft of someone entering or exiting an
abortion clinic and can’t come within 100 ft of entrance of building
(a) RULE: Under the First Amendment, a state may curtail a person’s freedom of speech directed at
unwilling listeners as a proper content-neutral, reasonable time, place, and manner restriction.
(i) Dispute among justices regarding whether content based or content neutral
(ii) Majority: a place restriction on speech
(iii) Floating buffer zone protects individuals from unwanted communication
(iv) Stevens quotes Brandeis in Olmstead about “right to be let alone,” reasonable expectation of
privacy
(b) CO Statute passes test for 3 reasons:
(i) Not regulation of speech, regulation of where speech may occur
(ii) Not content based, not adopted “because of disagreement with the message it conveys”
(iii) State’s interest in protecting access and privacy are unrelated to the content of the
demonstrator’s speech
(c) How to square with “protect the speech, even that which we hate” → court concerned with
protecting the right of women to seek reproductive health, rising acts of violence in this context
(i) Court more concerned with ^ constitutional right than protestors’ 1A rights

2. Designated Public Forums→ Governmental property that by policy or practice the government has opened it up
for public use
a) Classic example: public comment period at school board meetings
(1) Flag poles in Boston case
b) If government does open it up, they can’t engage in selective content discrimination
c) Wide variety of types
3. Non- Public Forums→ governmental property that historically has not been opened up for public uses of the
public
a) Court prohibited protests outside of post-office
b) What types of speech are non-public forums?
(a) Public parks
(b) Public street
(c) Meeting of governmental body with public comment period (subj to guidelines)
(2) NOT OK:
(a) Prisons→ special for 1A purposes
(i) Johnson v. Avery→ SCOTUS accepted the phenomenon of the jailhouse lawyer. Π was a
Tennessee prisoner, was disciplined for violating a prison regulation which prohibited
inmates from assisting other prisoners in preparing writs.
(a) RULE: Since the basic purpose of the writ of habeas corpus is to enable those unlawfully
incarcerated to obtain their freedom, it is fundamental that access of prisoners to the
courts for the purpose of presenting their complaints may not be denied or obstructed.
(ii) Limited access to prisoner’s for interviews
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 (iii) Adderly v. Florida→ You do not have a 1A right to engage in a mass protest outside of a
prison
(b) Most school buildings
(c) Military bases
(i) Greer v. Spock→ Military bases, even parts open to the public, are nonpublic forums
(d) Post office properties
(e) Airports
(f) Candidate debate sponsored by a government-owned television station
(3) What about the internet/social media?
(a) Packingham v. North Carolina→ banned sex offenders from the internet
(i) Kennedy alludes to the fact that some aspects of internet indicate public forum
(ii) But not expressly decided, before SCOTUS soon
4. Licensing and Permit Systems
a) When a license/permit scheme is unconstitutional→ gives government officials too much discretion on
who gets a license and who doesn’t
b) Forsyth County, GA v. Nationalist Movement→ white supremacist group attempting to get permit to protest
(1) State had an ordinance that allowed a fee of up to $1000 if they thought the group would bring additional
concerns
(2) Court struck down, saying law was subjective, “nothing in the law or its application prevents the official
from encouraging some views and discouraging others through the arbitrary application of the fee. The 1A
prohibits the vesting of such unbridled discretion in a government official”
c) No Requirement for The Use of The Least Restrictive Means
(1) Ward v. Rock Against Racism
(a) RULE: Under the First Amendment, a regulation of the time, place, or manner of protected speech
must be narrowly tailored to serve the government’s legitimate, content-neutral interests, but does not
need to be the least restrictive or least intrusive means of doing so.
5. Christian Legal Society Chapter of The University of California, Hastings College of The Law v. Martinez
a) Facts: UC Hastings Law had a long-standing policy that, in exchange for receiving the benefits of being a
school-recognized Registered Student Organization (RSO), an RSO was required to allow any student to
participate, become a member of, or seek a leadership position in the RSO, regardless of status or belief. Π
brought suit in federal court against Δ alleging that the policy impaired its First Amendment rights to free
speech, expressive association, and civil rights under 42 U.S.C. § 1983.
(1) RSO registration/organization process was ‘public forum’ because school facilitated forum where students
could form and meet and share ideas
b) RULE: A public university policy requiring Registered Student Organizations to accept all comers is
constitutionally reasonable and viewpoint neutral.
c) Clash between constitutional right of non-discrimination and 1A rights
d) In any type of forum, governmental actions/regulations on speech must be reasonable and viewpoint neutral

H. GOVERNMENT AS EDUCATOR AND EMPLOYER

1. Education/Student Speech
a) Court didn’t recognize 1A right of students until WV Board of Education v. Barnette in 1943 (girls expelled
because they wouldn’t salute the flag)
(1) Established a constitutional baseline that public school students have some 1A rights
(2) Established the no compelling speech doctrine→ government cannot compel belief/speech = violates
1A
b) Tinker v. Des Moines Independent Community School District→ generally held as highwater mark of student
speech
(1) RULE: In a public-school setting, prohibiting an expression of an opinion is unconstitutional unless there is
a specific showing that engaging in the forbidden conduct would materially and substantially interfere with
appropriate discipline in the operation of the school.
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 (2) Primary standard→ substantial disruption test
(a) Slightly modified in later decisions, sometimes referred to as “reasonable forecast of substantial
disruption” = school administrators don’t have to wait for a disruption to occur
(3) Viewpoint discrimination→ school officials singled out a particular symbol representing a specific
viewpoint (anti-war)
(4) Secondary standard→ Student speech is not protected when it invades the rights of others
(a) More salient today because of bullying/cyberbullying→ right to be let alone
(i) Harper v. Poway Unified School District→ Π wore a series of t-shirts with quotes from
bible targeted at LGBTQ, court held not protected by 1A
(ii) When students engage in sexually harassing speech
(5) Issue left unsettled→ constitutionality of dress codes and school uniform policies
(a) Discussed only in passing
(b) School uniforms: O’Brien test because it involves both speech and non-speech conduct
(i) A government regulation is sufficiently justified if:
(a) It is within the constitutional powers of Congress;
(b) It furthers an important or substantial government interest;
(c) If it is unrelated to the suppression of free expression;
(d) If the incidental restriction on alleged 1A freedoms is no greater than is essential to the
furtherance of that interest (narrowly tailored)
c) Tinker Exceptions/Carve-outs
(1) Bethel School District 403 v. Fraser→ speech endorsing school presidential candidate w/ sexual
innuendos in front of captive audience
(a) RULE: Under the First Amendment, school officials may properly punish student speech with
suspension if they determine that speech to be lewd, offensive, or disruptive to the school’s basic
educational mission
(i) Initial iteration: vulgar, lewd, or plainly offensive
(ii) Current standard: just vulgar and lewd
(b) Marked distinction between political content of Tinker at the speech at issue here→ ironic because Π
was giving a political speech
(2) Hazelwood School District v. Kuhlmeier→ student newspaper article re: teen pregnancy and effect of
divorce on students, principal deleted articles from publication
(a) RULE: Under the First Amendment, educators may exercise editorial control over the style and
content of student speech in school-sponsored expressive activities so long as their actions are
reasonably related to legitimate pedagogical concerns.
(b) “Reasonably related to legitimate pedagogical or educational concerns” = rational basis, comes from
Turner v. Safely prisoner “reasonably related to legitimate penalogical concerns”
(i) Literally says students have the same free speech rights of prisoners
(ii) 13 states have anti-Hazelwood statutes
(3) When is student speech school-sponsored (governed by Hazelwood) or student-led (governed by Tinker):
(a) Some “school-sponsored” speech is considered a public forum = student led
(b) What IS school sponsored:
(i) School plays
(ii) School newspapers
(iii) Curricula
(iv) School mascots
(4) Morse v. Frederick→ bong hits 4 jesus
(a) RULE: Under the First Amendment, school officials may prohibit student speech that can reasonably
be interpreted as promoting illegal drug use.

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 (i) Got rid of “plainly offensive” standard from Fraser because we don’t want to give school
officials the power to censor speech just because it is offensive to others = can function as
viewpoint discrimination
(b) Qualified immunity→ government officials are entitled to qualified immunity unless they violate
clearly established law- this law was unsettled, so Court was 9-0 on the fact that Morse was entitled to
QI
(5) Mahanoy v. B.L. → fuck cheer fuck school fuck everything
(a) RULE: Although public schools might have special interests in regulating some off-campus student
speech, the First Amendment protects students’ off-campus speech in some circumstances.
(i) Some types of off-campus expression that is simply beyond the reach of school officials
(b) Three features of student social media postings:
(i) Schools are not often standing in place of parents while students are off campus;
(ii) School regulation of both on-campus and off-campus speech might mean that students are
altogether prohibited from engaging in certain types of speech;
(iii) Schools have an interest in protecting students’ unpopular expression, especially off-campus,
because it ensures a free exchange of ideas and ultimately promotes democracy
(a) “Public schools are the nurseries of democracies”, have a duty to protect even unpopular
speech
(c) Most, but not ALL student social media speech is off-limits for regulation by school officials
(i) Officials retain authority over some types of student social media speech:
(a) Severe bullying, harassment, targeting of other students
(d) Questions still remain, still unsettled law re: where school regulatory authority remains in this context
(i) Circuit split re: whether students can wear clothes with guns on them (violent student speech)
(a) Inquiry:
(i) Whether speech is true threat
(ii) If not, can still be substantial disruption or invading rights of others under
Tinker
(b) Example: Lavine v. Blaine School District→ “Last words” poem about school shooter,
student subject to emergency expulsion, has to see psychiatrist before returning,
impacted his ability to join the military, he sues
(i) Not a true threat, not targeted at anyone/anything

2. Speech Rights of Government Employees

a) Pickering v. Board of Education→ Teacher fired for sending a letter to local newspaper that was critical of
the way school officials spend more money on sports than academics
(1) RULE: Under the First Amendment, a teacher cannot be terminated for exercising the right to comment on
matters of public importance, absent proof that the teacher knowingly or recklessly made false statements.
(a) If matter of public importance = 1A protection, how school spends $ was important to this community
(b) Private grievance = no 1A claim
b) Connick v. Myers→ Π was an ADA, conducted a survey of her coworkers’ views on transfers, whether
employees felt pressured to work in political campaigns, etc. Δ was informed that Π was creating a “mini-
insurrection” in the office. Δ terminated Π due to her refusal to accept her transfer, and because he believed her
distribution of the questionnaire to be an act of insubordination.
(1) RULE: When public employees’ expression does not relate to any matter of political, social, or other public
concern, it is generally not protected by the First Amendment and any regulations of such expression by
government officials are entitled to great deference by the courts.
(2) Proper inquiry: Whether employee spoke on a matter of public concern– if public concern, balance
employee’s right to speech against employer’s interests
(a) Focused on “mini-insurrection”, why balance was tipped in favor of employer
c) Garcetti v. Ceballos→ Π was a deputy DA, believed an affidavit used to obtain a critical search warrant
contained severe inaccuracies. Π recommended that the case be dismissed. Supervisors decided to

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 prosecute, and Π was called by the defense to testify about the inaccuracies in the affidavit. After his
testimony, Π claims that he was subjected to several retaliatory employment actions.
(1) RULE: When public officials speaks pursuant to their official job duties = ZERO 1A protection
(a) Invokes government speech doctrine: Unlike speech by a government employee made as a private
citizen, speech, even on matters of public concern, is not protected under the First Amendment if it is
made while on the job and as part of his or her duties
(b) Fundamentally transformed government employee speech rights

II. FREE EXERCISE

A. ABSOLUTE PROTECTION FOR FREEDOM OF BELIEF
1. Protects religiously devout to fiercely atheistic and everyone in between
2. Issue when you have some religious conduct that conflicts with a generally applicable law
a) Clash between law and religiously inspired conduct that conflict with it
B. FREE EXERCISE HISTORY
1. Reynolds v. United States→ federal law prohibiting polygamy
a) “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and
in effect to permit every citizen to become a law unto himself”
2. Sherbert v. Verner→ Seventh Day Adventist was fired for refusing to work on saturday (sabbath)
a) Strict scrutiny should be used in evaluating laws burdening free exercise of religion and declared
unconstitutional the denial of unemployment benefits to Sherbert
3. Wisconsin v. Yoder→ Amish belief that older children should work on the farm v. Wisconsin compulsory
schooling law
a) Free exercise of religion requires that Amish parents be granted an exemption from compulsory school laws for
older children
4. Sherbert Yoder Test→ When you had a regulation that conflicted with an individual’s sincerely held religious
beliefs = strict scrutiny and usually found in favor of the individual before Employment Division v. Smith
C. THE CURRENT TEST
1. Employment Division, Department of Human Resources of Oregon v. Smith→ Π’s ingest peyote (Schedule I drug),
fired from jobs, sought unemployment but denied
a) Majority: Scalia
(1) Rejects Sherbert Yoder test→ calls for a return to the Reynolds decision- if Πs were granted an exemption
from this criminal law, everyone would need to be exempted from various criminal laws
(2) This case is different from Sherbert because this case deals with a criminal law- applied equally to all
people v. Sherbert’s unemployment denial- very fact specific/individually based
(3) Applies a form of rational basis, law will be upheld unless there is evidence that the state is targeting a
religious group
(4) Compelling government interest regarding disparate treatment based on race, regulating content of speech
= equality of treatment and unrestricted flow of contending speech = constitutional norms
(a) Compelling government interest regarding religious free exercise that excuses criminal liability = a
private right to ignore generally applicable laws = constitutional anomaly
(5) RULE: Under the Free Exercise Clause of the First Amendment, a state may constitutionally refuse to
carve out an exception from its generally applicable criminal laws for religious practices.
b) Concurring in judgment only: O’Connor
(1) “Majority rules” idea→ “the Court today suggests that the disfavoring of minority religions is an
“unavoidable consequence” under our system of government and that accommodation of such religions
must be left to the political process. In my view, however, the 1A was enacted precisely to protect the
rights of those whose religious practices are not shared by the majority and may be viewed with hostility.”
(a) Quotes Barnette, “The very purpose of a bill of rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to
establish them as legal principles to be applied by the courts.”

46
 (b) “The compelling interest test reflects the 1A’s mandate of preserving religious liberty to the fullest
extent possible in a pluralistic society. For the Court to deem this command a “luxury,” is to denigrate
“the very purpose of a Bill of Rights”
(c) TLDR; would reach same conclusion but leave compelling interest test alone
2. Timeline
a) 1963-1990→ Sherbert-Yoder Test (SS)
b) 1990→ Employment Division v. Smith
c) 1993→ Congress enacts Religious Freedom Restoration Act (RFRA) essentially restoring the Sherbert-Yoder
test statutorily
d) 1997→ City of Boerne v. Flores→ Court strikes down RFRA as applied to state and local governments
because RFRA said what the standard of review must be: court’s job not congress’
(1) Congress overstepped→ essentially a judicial separation of powers, cites Marbury v. Madison “it is
expressly the court’s job to say what the law is”
(2) RFRA is still good law as applied to the federal government
e) 2000→ Religious Land Use and Institutionalized Persons Act (RLUIPA): Government land use decisions and
treatment of prisoners that significantly burden religion must meet strict scrutiny
f) 2005→ Cutter v. Wilkinson→ Court upholds RLUIPA as applied to institutionalized persons
(1) Better claim for infringement on religious freedom re: prisoners or federal government is STATUTORY,
not constitutional
g) Same phenomenon→ School speech with Hazelwood = state anti-Hazelwood statutes
(1) Better claim is not constitutional but statutory claim
h) 42 U.S.C. § 1988→ Fee shifting statute
(1) Give the little guy a chance (people who can’t afford a lawyer), get costs paid if they win
D. SUPREME COURT DECISIONS SINCE EMPLOYMENT DIVISION V. SMITH
1. Church of the Lukumi Babalu Aye, Inc. v. Hialeah→ Court struck down a Miami law that prohibited ritual
sacrifice of animals on the ground that the law was not a neutral law of general applicability
a) RULE: A city ordinance prohibiting ritualistic animal sacrifices violates the First Amendment’s protection of
the free exercise of religion.
b) Law wasn’t neutral, only targeted certain religions
c) Because it wasn’t neutral = strict scrutiny
2. Masterpiece Cake Shop, LTD v. Colorado Civil Rights Commission→ bakery told same-sex couple they wouldn’t
make their wedding cake
a) Court sides with the bakery, holding that in protecting the civil rights of same-sex couples, the government also
must protect the rights of those who object to same-sex relationships on religious or philosophical grounds.
b) Kennedy, re: quote from Commission “To describe a man’s faith as “one of the most despicable pieces of
rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as
despicable, and also by characterizing it as merely rhetorical– something insubstantial and even insincere”
c) RULE: Adjudicatory proceedings against a person for unlawful discrimination must give neutral and respectful
consideration to the person's defense of sincere religious motivation.
3. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC→ Teacher was fired after developing serious
medical condition = claim under ADA
a) “Ministerial exception” to Title 7 of CRA of 1967 = gives churches free pass to discriminate against employees
if they’re a minister
(1) SCOTUS held that ^ applied because she taught religious subjects and that it would violate the Free
Exercise Clause and the Establishment Clause to hold a religious institution liable under an
antidiscrimination law for the choices it makes as to who will be its ministers
(2) RULE: A church-school that fires a teacher with a disability falls within the ministerial exception to federal
anti-discrimination laws under the Religion Clauses of the First Amendment.

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