Constitutional Law II

The 14th Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The Court has employed three distinct methods of review to ensure that state legislatures comply with this instruction. [insert particular scenario here]

In this case, the Supreme Court of NJ considered the states’ 1844 Constitution which established that all men were free and equal. The issue was whether this provision would render slavery unconstitutional. After reviewing precedent set in other states and the Declaration of Independence, the court held that this provision did not make slavery unconstitutional. Finding that, the court disposed that the legislature would have been explicit in regard to such a serious issue and both the Constitution and DOI envision that slaves exist, and that slaves are not to be equal in society. This case mainly represents the different lines of thinking that the judges could have employed as well as the proposition that laws are to be interpreted in a modified sense according to the nature, the condition and laws of the society to which they belong.

in 1834 Dred Scott’s owner took Scott to a post in IL then to MO  in 1836. which was a territory in the MS Compromise. As defined by that agreement, slavery was not to be introduced into any of the states acquired in the compromise. The issue in this case was whether Dred Scott was a free man by virtue of having resided in a free territory. The Court held that states could not elevate enslaved persons to the level of a free man because Congress could not take away property – this would constitute a violation of due process in property interest (this notion was backed by the fugitive slave provision). Furthermore, the Constitution and BOR could not extend to slaves. It follows that the MS Compromise must have been unconstitutional. With this decision, the Court ultimately held that neither Blacks nor their offspring could ever become citizens of the US nor did the Constitution intend to extend protections to this class of people. This is especially noteworthy because although the Constitution speaks of slavery in three different provisions, it does not connect slavery to people solely of African descent so it is inexplicable that the Constitution strips certain rights from people of African descent.

Here, a LA statute required RR to provide separate accommodations for white and colored persons and made it so that a person incorrectly occupying a cart would be held criminally liable. The Court found that the 14th Amendment only applies to political equality not to social equality, holding that it would be impossible for the court to establish the latter. Plessy argues in the contrary; that discrimination based on race permits discrimination in other realms. Still, the Court upholds that discrimination is permissible if it is reasonable. The flaw in Plessy’s argument is that the instances of discrimination he presents are unreasonable.

TX attempted to hastily create a law school to comport with equal opportunity requirements after refusing to allow Black students to attend UT. However, the Court reasoned that this was not an equal opportunity that the state was attempting to institute after considering the intangible factors and advantages of attending UT. This reinforces the notion that facilities must be substantially equal if they are to be separated on the basis of race and “soft factors” are included in the measure equality.

In this case, a Black student was granted graduate admission to Univ. of Oklahoma but was forced to isolate himself. The issue was whether a state may, after admitting a student to graduate instruction in a state university, afford him different treatment from other students solely because of his race. The Court concluded that this differential treatment was unconstitutional and equal access to opportunities does not preclude a claim to discrimination where an individual finds themselves disadvantaged within those opportunities solely on the basis of their race.

The issue in this case was whether segregation of children in public schools solely on the basis of race, even where the physical facilities and other ‘tangible’ facts may be equal, deprives the children of minority groups access to equal educational opportunities. The Court disposed that the meaning of the 14A was at best uncertain because the conditions of public schooling at the time of the amendment’s ratification rendered original intent and even precedent irrelevant to the Court’s analysis. After considering social science data that suggests separate facilities engender an inferiority complex that causes Black children to suffer, the Court reached the decision that integration in the realm of public education was necessary, thus invalidating “separate but equal” in this specific context.

The Court did not provide any instruction on what was to happen during the time immediately following the decision of Brown I. The issue here concerned what type of relief should be afforded following Brown I. The Court held that because of certain complexities, the schools and authorities should make a reasonable start and desegregate with all deliberate speed. Schools should only be afforded additional time to desegregate if necessary in terms of the public interest.

In this case, the school district was on board with desegregation efforts but the governor and legislature took action that triggered public hostility. Yet, the Court still denied the city any additional time to comply with ruling, thus reaffirming Brown, because state actors caused the hostility. Therefore, that was not a legitimate reason to halt desegregation. This demonstrated the principle that Brown could not be openly or discretely nullified by the states.

Here, the Detroit BOE designed an optional attendance policy that would create a loophole around desegregation efforts and entice white people to move out of the city to avoid the schools. The Court examined whether a federal court may impose a multidistrict, areawide remedy to a single district de jure segregation problem absent any finding that the other included school districts have failed to operate unitary schools systems within their districts. Post-review, the Court determined that remedies are only afforded interdistrict when there has been a constitutional violation. Because white/suburban schools obviously weren’t having these problems, no relief could be granted.

Legislation that does not involve a suspect class or fundamental right is subject to a rational basis review. Meaning that as long as there is a conceivable basis upon which the legislature could justify the law, then the Court declines to delve into the legislature’s rationale. It follows that the Court does not require the legislature to narrowly construct laws. Meaning that, legislation may be overinclusive, despite the fact that this may seem to discriminate against a certain classification based on broad generalizations. New York City Transit Authority. Similarly, legislation may be under-inclusive, in that it does not exhaust all means to solve a particular problem and may disadvantage a classification in its limited reach. Railway Express Agency. Ultimately, the legislature can pick what problem to address at which juncture. Williamson.

Here, the Supreme Court considered the validity of the District Court’s holding that the New York City Transit Authority had violated the Equal Protection Clause of the 14th Amendment where the TA declined to hire methadone users. The TA refused to hire persons using narcotics, thereby the TA would not hire methadone users. Methadone is a synthetic narcotic that is used in the treatment of heroin addiction. The District Court held that a blanket exclusion of methadone users would be unconstitutional, but given the nature of the job(s), the TA could place certain restrictions on individuals that they hired who were known to use methadone. SCOTUS affirmed the District Court’s rationale, however, the Supreme Court determined that this was a matter of personnel policy that did not implicate the principles that the Equal Protection clause was designed to protect. The majority concluded that although the rule would infringe on a subpart of methadone users, it is not violative of the rights of all methadone users or even a class of persons protected under the EPC.  *introduces us to the idea of rational basis review in the context of EPC*

Here, the Supreme Court considered Clover Leaf Creamery Co.’s argument that Minnesota’s statute banning the retail sale of milk in nonrefillable, non-returnable containers was violative of the EPC and Commerce Clause where the statute permitted the retail sale of milk in paperboard milk cartons and other nonrefillable, nonreturnable containers. The statute was aimed at achieving legitimate state purposes, however, the evidence Clover Leaf Creamery Co. presented showed that the statute was unlikely to advance those interests. Nevertheless, SCOTUS disposed that state legislatures do not have to “convince the courts of the correctness of their legislative judgments” nor do they actually have to be correct; states are only required to act rationally. Further, “where there was evidence before the legislature reasonably supporting the classification, litigants may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken.”

Here, the NY legislature bans ads on commercial vehicles unless the commercial vehicle belonged to the person operating it or their particular company. Supposedly, this was to serve a safety purpose by eliminating distractions. However, this is an instance of an underinclusive statute because the law does not address the problem of distractions in its entirety. Nonetheless, the Court concludes that problems do not have to be addressed in their entirety; the legislature can choose subsets of a problem to address.

This case concerned a statute that would affect opticians although they are licensed to fit lenses just as optometrists and ophthalmologists are. The legislature claimed that there was a health and safety concern behind prohibiting opticians from fitting lenses because they received a different level of training than the optometrists and ophthalmologists. The Court disposed that the legislature can pick which problems to address and at which juncture and this includes what problems they seek to correct and which one they want to neglect. The Court will only intervene in instances of invidious discrimination. In this case the Court did not find invidious discrimination.

Animus is shown where the legislature, the political majority, uses its power for no reason other than to harm a vulnerable group. Romer. In these instances, the resulting legislation will be subject to a heightened level of scrutiny that concentrates on whether a nexus exists between means and ends. City of Cleburne. If a nexus does not exist and it is shown that the legislation is inspired by a mere legislative preference for one class that is not rationally related to a legitimate state purpose, the legislation will be declared invalid. Moreno.

In this case, the respondents challenged, under 5A, a federal law that prohibited participants in the food stamp program from sharing residences with unrelated people. Respondents argued that the classification made no sense and was invalid because it is irrational to consider unrelated persons as some type of classification. When the legislature adopted the law, the purpose was supposedly to prevent hippies/people living in hippie communes from manipulating government programs. Because the classification was invalid, the legislation could not be upheld. As such we learn that a mere legislative preference for one class that is not rationally related to a legitimate state purpose is invalid. (wording of the rule definitely favors Quimbee)

Here, pursuant to a city ordinance, the Center filed an application to get a permit so that they could open a home for the mentally impaired. The city rejected the application and this prompted the Center to sue. Upon review, the Court for the first time (in context of the cases we’ve reviewed) looks at the legislature’s reasons for instituting the ordinance as well as the rationale behind the denial of the permit. The Court found that the lawmaker was acting out of irrational prejudice toward this group in society and out of irrational fear. The reasons offered for the denial (children at a nearby school would taunt the mentally impaired people living in the home and the possibility of the area flooding) were spurrilous claims. From this case we gather that the subjection to scrutiny is based on the nexus between means and ends.

In this case, CO adopted a law that prevents that any anti-discrimination measure against gay or bisexual couples be upheld. Here, the Court determined that the legislation served no valid purpose and explained the actions taken by the legislature as evidence of “animus”. We used this case to define animus as [The] political majority using political power for no reason other than hostility, animus and spite.” This case is interesting however, because the Court had not decided yet that the LGBT community is a suspect group.

Laws that are found to endanger an important interest or target a suspect group are subject to heightened level of scrutiny. In these instances, the Court applies a balancing test to determine whether a particular classification should be upheld.

Classifications based on race are immediately subject to a heightened level of scrutiny. Korematsu. Where racial classifications are to be upheld, there must be a legitimate state purpose regardless of whether the legislation seems to be neutral, in that it disadvantages the minority and majority equally. Loving. The Court considers legislation involving race under one of two lenses: legislation that is (1) disparately applied; or (2) that produces disparate effects. [insert category]

Pursuant to Exclusion Order No. 34, people of Japanese ancestry were to leave the “military area” in which they occupied and move to a concentration camp. Korematsu refused and was arrested and convicted for violating the order. There was no evidence that existed to suggest Korematsu had been disloyal to the US. However, the legislature maintained that there was no basis to decide who was loyal and who was not. Here, the Court largely deferred to the judgment of the legislature. For the first time, the Court actually employed strict scrutiny and upheld deference to the legislature (this deference usually is not given in a strict scrutiny analysis). Here, we learn that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. [ . . . . ] Pressing public necessity may sometimes justify the existence of such restrictions[ . . .]” Thus affirming the notion that when the lawmaker makes law regarding race it is per se problematic from a constitutional perspective and that in times of national hysteria, the legislature has a tendency to poorly evaluate the appropriateness of the executive/legislature’s actions.

Here, the Court considered the constitutionality of a law prohibiting interracial marriages. Although on its face the law involved race, it was racially neutral in that it disadvantaged both races the same. Still, the Court held that the distinction based on race had no legitimate state purpose and discriminating against people on the basis of race is unconstitutional. This case demonstrates that if racial classifications are to be upheld, “they must be shown to be necessary to the accomplishment of some permissible state objective” irrespective of whether they disadvantage the minority and majority equally.

Facially neutral laws will be considered constitutionally invalid if they are “applied and administered by public authority with an evil eye and an unequal hand, so as to practically make unjust and illegal discriminations between persons [of different races] in similar circumstances[. . .].” Yick Wo.

In this case, Yick Wo was convicted for operating a laundry in a non-brick or stone building without consent. Yick Wo argued that his 14A rights were violated because Chinese people were never granted the waiver which would enable them to operate in these types of buildings. Here the Court disposed that even facially neutral laws are constitutionally invalid if they are “applied and administered by public authority with an evil eye and an unequal hand, so as to practically make unjust and illegal discriminations between persons [of different races] in similar circumstances[. . .]”

Facially neutral legislation that produces disparate effects only triggers strict scrutiny analyses where the legislation is shown to have both a discriminatory impact and an invidious discriminatory purpose. Washington. The Court will consider the (1) historical background of the decision; (2) specific sequence of events leading up to the challenged decision;(3) legislative or administrative history around the enactment of the legislation; and (4) the lawmakers’ departures from normal procedural sequence to determine whether an invidious discriminatory purpose exists. Arlington Heights. The existence of a discriminatory purpose necessarily suggests that the legislation was enacted “because of” not merely “in spite of” race. Rogers. Where these conditions are satisfied, the legislation will be struck down.

n this case, DCPD had a qualifying test and in order to enter into the force, one was required to take and pass the test. A number of unsuccessful AA candidates brought this suit arguing that a (1) greater percentage of AA applicants failed the test and (2) the test was not reliable nor related to job performance. Upon review, the Court held that disproportionate impact on its own is not sufficient to trigger strict scrutiny – parties bringing suit are burdened with showing that there was some discriminatory purpose and that the state contrived to reach [X] particular goal in a manner that would harm this particular group in society. In other words, party bringing suit must show that there was an invidious discriminatory purpose. Based on these determinations, the Court holds that the test was neutral and served a legitimate local end (presupposing that the test is appropriately measuring communication skills).

This case reveals the four factors that the Court assesses when determining whether a discriminatory purpose exists: (1) Historical background; (2) specific sequence of events; (3) legislative or administrative history; and (4) departures from normal procedure.

This case centered around the constitutionality of an at-large election system in Burke county where over 53% of the population consisted of AA and none of the City Board Commissioners were Black due to the election system. Here, because those elected were historically insensitive to AA and there was evidence of past discrimination in regard to voting and schooling, the Court found that the system was a violation of the 14th Amendment Equal Protection clause. It is this case that teaches us a discriminatory purpose necessarily suggests that the legislature took action “because of” not merely “in spite of” race.

This case involves a preference policy MA instituted to provide opportunities to veterans, the respondents argue that by way of the policy, the state discriminated against women in violation of the 14A Equal Protection clause. Here, the Court evokes “because of” not merely “in spite of” principle and determines that the policy was not a violation of women’s 14A rights.

In this case, to avoid integration, the city closed down all of its segregated pools. AA residents brought suit alleging a violation of the 13A and 14A. However, the Court disposed that the Constitution does not impose the duty to maintain public pools onto the city (the US Constitution only consists of negative rights which prevents states from engaging in certain activities).  Moreover, the Court declined to look into the motive the city employed when closing the pool thus holding that the effect of discrimination is what plays into a strict scrutiny analysis, not whether the legislature intended that effect as other cases may seem to suggest.

In this case, the legislature altered a city boundary in a way that removed almost every Black voter, without touching a single white voter.  A Black voter brought suit. Although the Court will not adjudicate on the constitutionality of political gerrymandering because of the PQ doctrine, the Court adjudicated on the issue in the present case because it involved racial gerrymandering and one can see race. This demonstrates that “Courts may review the exercise of an otherwise unreviewable state power if that power is used to deprive individuals of their constitutional rights.” (Quimbee) Here, the Court found that the statute was problematic because it violated AA’s right to vote.

In this case, Black citizens sued because the mayor gets to select members to an educational board from citizenry at large and despite the racial makeup of the city, he did not appoint any Black members to the board. Here, the Court did not find a constitutional violation because there was no proof of racial discrimination. Moreover, even if there was discrimination, this was considered a discretionary appointment power of an elected executive officer so the Court could not have adjudicated on the matter.

Any use of racial criteria in school admissions must be subject to strict scrutiny. Bakke. However, when eliminating past wrongs there is no need to act in a colorblind fashion. Fullilove. The Court has held that in the context of remedial measures, the government may pass legislation that overcomes a strict scrutiny analysis provided that the legislations adheres to two caveats: (1) there is a limit to which innocent parties bears the brunt of past discrimination; and (2) the remedies are tailored to remedy the exact instance of discrimination i.e. the particular individual that has been discriminated against. Wyant.; Richmond. The latter condition must be satisfied irrespective of the level of government that employs the remedial measures, thus further emphasizing that the remedies only pass constitutional muster if they are narrowly tailored to further a compelling interest. Adarand.

In this case, Bakke, a white man, applied for admission at Univ. of California Davis. At the time, the university had a twin admission program. There was a regular admission program and a modified admission program for minority applicants. Minority students could be admitted on either track while the white students/non-minorities could only be admitted on the regular admission track. Bakke was denied admission into the university although he had superior credentials and exceeded those necessary for special admission. Therefore, he claimed that if it was not for his race, he would have been admitted. Here, there was no majority consensus with regard to the standard of review yet Justice Powell employed strict scrutiny. Thus demonstrating that any use of racial criteria must be subject to strict scrutiny. Another question canvassed in this case was, when dealing with affirmative action, should the Court move from an individual rights strategy and move toward a group perspective? Justice Powell decided that the court should not move toward the group strategy because the Equal Protection clause was intended to give rights to individuals not groups. Ultimately, despite the distinct justifications UC Davis gave for its twin admission program (the desire to aid minority populations who are victims of past discrimination, achieve a minimum percentage of certain groups in their student body, improve healthcare of certain communities, and attain a diverse student body) the Court decided that the use of the twin admission program did not pass constitutional muster after a  strict scrutiny review of each justification.

In this case, Congress created an act that would condition state and local governments receipt of funding on the premise that 10% of the services were being used to retain minority subcontracts. The plaintiff did not qualify as a minority for the sake of the program. Justice Burger writes this opinion and does not apply strict scrutiny. Here, the Court disposed that when eliminating past wrongs there is no need to act in a colorblind fashion. It is relevant to recall however, that Justice Powell said we must employ some type of fact-finding when acting remedially. The only evidence in this case is that Congress made a factual determination.

Central to this case was an agreement between the union and school board that stated that there will be a minimum of minority teachers that will be employed and they will always be employed. As time passed, the school board had to make layoffs and they laid off white teachers with greater seniority than minority teachers because of this agreement. The white teachers sued because they were laid off solely because they were white. Here, the Court was uncertain that there had been past discrimination and even if there was past discrimination, the Court decided that the remedy was too drastic. The themes that emerge from this case are (1) the government can eliminate past discrimination; and (2) there is a limit to which the innocent parties may bear the brunt of past discrimination.

In this case, the city adopted a set-aside program for minority contractors. The city defined minority businesses to include businesses that were owned by 51% “Blacks, Spanish-speaking, Orientals, Indians, Eskimos or Aleuts”. The city advanced four distinct arguments to demonstrate that the city discriminated against minority contracts in the past. Nonetheless, the Court determines that this is a race-based set-aside program that is constitutionally infirm. Although, in Fullilove Congress made a finding without any type of factual evidence and the Court accepted it, the Court only did so because Congress was acting in a remedial fashion under §5 of the 14A. Therefore, the Court examined the issue in that case on a rational basis. Here, the Court disposed that there is a difference between Congress and state-level governments. This case is significant because we now have a majority on the Court. Also, we learn that we will employ strict scrutiny to statutes that impose race on their face, at least when enacted by states. The takeaway is that remedies must be tailored to remedy the exact instance of discrimination i.e. the particular individual that has been discriminated against.

At issue in this case was alleged violation of the 5A Equal Protection clause. In reviewing the issue, Justice O’Connor concluded that the use of intermediate scrutiny in Metro Broadcasting was wrong. Furthermore, that if anything less than strict scrutiny is applied, it is impossible to identify whether discrimination is benign or underlying. This, Justice O’Connor believes, would exacerbate racial tensions by creating the impression that the group involved is inferior. This case and Richmond lay the foundation for the jurisprudence of the Court now.

Academic institutions may incorporate the use of race in their admissions procedures to achieve a diverse student body for the sake of achieving diverse viewpoints within the classroom because such would qualify as a compelling state interest. Grutter. This interest is entitled to protection where race is not the only determining factor as to whether a student is granted admission in a particular program. Id. In contrast, where the legislature or school board acts to achieve a racial balance within the classroom, no compelling state interest exists and it follows that the legislation will not pass constitutional muster. Parents Involved in Community Schools.

In this case, the University of Michigan Law School was using race as one of the factors of admission. Even under strict scrutiny, this admission process passes constitutional muster because race was not the only factor being taken into consideration. The Court disposed that diversity in the student body for the sake of diverse viewpoints is a compelling state interest. Moreover, the Equal Protection clause does not prohibit the use of race to meet that interest. Because there was an individualized consideration of each application, and race was a soft variable that served as a plus factor, it must follow that the law school’s admission policy was valid. It is important to note that this case, unlike the other cases we reviewed, (1) is a majority not plurality opinion that affirms diversity is a compelling state interest; (2) does not fall under the umbrella of affirmative action because groups historically discriminated against are not the only ones benefiting from this policy; and (3) does not define critical number of minority students to be accepted, just a range.

n Seattle, the school board enacted a policy to increase racial balance among several districts. This policy was adopted on a voluntary manner absent sufficient evidence of past discrimination. The Court held that assigning students based on race violated the Equal Protection clause. Other the other hand, in Jefferson county the schools were ordered, pursuant to a decree, to move on program to desegregate public schools. After the decree expired, the county elected to continue on a race-based program in order to ensure a minimum number of African Americans attended public schools. Although the decree was originally instituted because of past discrimination, it became an issue whether the county could maintain a race-based program despite the expiration of the decree. because the decree had expired and presumptively, the past discrimination had been cured, any further use of race in Jefferson county would have to be justified on other grounds. Here, after employing strict scrutiny and reviewing all three justifications of each party, the Court also delved into a distinct interpretation of Brown – that race cannot be used to separate people. The Court then found that both districts enacted policies aimed at racial balancing which is a violation of the Equal Protection clause. However, it is worth noting that the third interest employed by the school districts was unique to this case: the school districts alleged that maintaining an integrated school system would promote a pluralistic society. The competing interpretations of Brown also prompted an institutional question to emerge which the Court did not address. That question is, can the Court evaluate social science where social science is scattered?

In this case, voters in Michigan voted on a proposal which would prohibit the use of race in granting admission to state universities, public employment, public education or public contracting decisions. Here, the Court considered a variety of previous cases. From these cases the Court defined invidious discrimination and demonstrated injury based on race. The Court distinguished this case from instances where voters act in a manner to cause specific injury and where the majority restructures the political process to hurt a minority. Although these situations are problematic per se, the Court disposed that neither of these scenarios were evoked in the present case. In fact, the Court decided that this is an instance of a complex policy choice and the electorate has the right to make a judgment through the democratic process. The takeaway is that the judiciary supports the democratic process absent overt injury inflicted on minorities.

Johnson was an inmate in a California prison and he challenged the constitutionality of the prison’s policy to assign prisoners on the basis of race. The prison supposedly did so because of an underlying assumption that rival gangs were organized based on race. In order to prevent gang warfare, the prison housed different races separately. Here, the Court decided that strict scrutiny was the appropriate standard of review. In doing so, the Court found the policy unconstitutional.

At issue in this case was a reapportionment plan meant to create a majority African American election district in NC. Justice O’Connor view in this case is that the reapportionment plan amounts to deliberate discrimination of voters in several districts and this violates the Constitution. From this case we adopt the notion that the Constitution does not allow the separation of voters into racial districts, especially with blatant disregard to factors such as “compactness, contiguity and respect for political subdivisions.”

At issue in this case was a reapportionment plan meant to create a majority African American election district in NC. Justice O’Connor view in this case is that the reapportionment plan amounts to deliberate discrimination of voters in several districts and this violates the Constitution. From this case we adopt the notion that the Constitution does not allow the separation of voters into racial districts, especially with blatant disregard to factors such as “compactness, contiguity and respect for political subdivisions.”

In this case, GA created a new 11th District, a electoral district that starts in Atlanta and goes all the way to Savannah, GA which is linked by an interstate highway, i.e. a very narrow corridor. The Court found a constitutional violation where race was used when drawing the electoral district because the state relied on race in substantial disregard for traditional districting principles. Here, we learn that the burden is on the plaintiff in these cases “to show either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district,” using the principles outlined in Shaw or by whatever means possible.

The issue in this case was whether an ID statute that gives preference to males versus females in the arbitration of an estate. Here, the Court applies the rational basis standard and finds that this law was arbitrary and forbidden by the Equal Protection clause. This is the first time that an unanimous court struck down a case discriminating against women thus signifying a huge shift in attitude.

In this case, the issue was whether a law requiring women to be over 18 and males to be over 21 to purchase non-intoxicating 3.2% beer was unconstitutional under the Equal Protection clause. This case inaugurated the Court’s use of intermediate level scrutiny in instances of gender discrimination. Intermediate scrutiny requires that an important government interest is implicated and that the proffered solution substantially relates to achieving those ends. The onus of proof is on both parties. Here, the Court took issue with the relation between means and ends. The statute does not prevent males from drinking alcohol, just purchasing it. Therefore, it follows that it is unconstitutional because it does nothing for the stated objective. This case prompted us to consider why gender discrimination deserved heightened scrutiny. Again, footnote 4 in U.S. v. Carolene Products explained that discrete and insulate minorities are of concern when it comes to fundamental rights. Women are not considered a discrete and insulate minority.

In this case, the United States sued the state of Virginia and VMI claiming that VMI’s policy of only admitting male students was a violation of the Equal Protection clause. VMI is an institution that is known for its strict discipline (i.e. limited to no privacy), bonding, and training based on the English adversarial system. The trial court sustained VMI supposedly because allowing women to attend the school would compromise the diverse education taught at VMI. The Court of Appeals reverses and provides three options: (1) integration; (2) the creation of a parallel institution; or (3) VMI could be privatized. The State of VA then moved to create a parallel institution, VMIL. The Supreme Court however, decided that VMIL does not cure the constitutional violation at issue. The Court review VMI’s three justifications for its single-gender environment: (1) that a single gender environment provides substantial benefits; (2) it is necessary to preserve the adversarial mode of training; and (3) the standards of the school would fall because women can’t perform the same as men. In response to the first justification, the Court made a rare consideration and looked at VMI’s motive in asserting this justification. The Court held that it was not VMI’s intention to provide these substantial benefits, this was an ex-post facto justification. In response to the other two justifications raised, the Court disposed that they were rooted in sociological assumptions and an outdated line of thought. Ultimately, the Court decided that even if VMIL matched VMI in education the intangibles could not pass constitutional muster (this is akin to their Sweatt ruling). Although this was an example of the Court applying intermediate scrutiny, it is within this decision that Ginsburg writes that there must be an “exceedingly persuasive justification” for the gov. action in these lines of cases. Here, the government failed to meet that burden.

In this case, the issue was whether California’s statutory rape law violated the 14A Equal Protection clause. The pertinent part of the statute provides that any sexual act with a woman under 18, who is not the the wife of the perpetrator, is a criminal offense. Here, a 17 y/o male had sexual intercourse with a 16 y/o female. The Court upheld the law because of real biological differences that exist between men and women, also because the state had a legitimate interest in preventing teenage pregnancy – the consequences of which fall on women and in many cases, the state

At issue in this case was a statute that allowed a foreign born child to a US mother to petition for citizenship at any time in the child’s life, whereas a foreign born child to a US father could only file a petition up until the child turned 18. The petitioner asserted two arguments against the statute: (1) if the issue requires an elevated level of scrutiny then the legislature must use the least restrictive means available to accomplish the government’s goal; and (2) there are gender neutral methods to establish paternity. The Court characterized Nguyen’s first point as “hollow neutrality”; it is inevitable that a mother is present during the birth of her child and the Court disposed that because of this a natural bond is forged between the mother and child. However, the same cannot be said for fathers. With that being said, it is relevant to note that the government premised this law on a bond that exists between a parent and their child, not a relationship that may or may not actually exist. In response to Nguyen’s argument that there are gender neutral means to establishing paternity, the Court held that Congress is not restricted to any particular means to meet their objective. Moreover, Congress likely factored in the “expense, reliability, and availability” of said tests prior to adopting the law, and determined that their solution was the most feasible. For the foregoing reasons, the Court found that the law in question was constitutional.

In this case, OASDI provided that widows would automatically receive survivor’s benefits based on the earnings of their deceased husband but a widower would only be entitled to survivor benefits if he was receiving at least ½ of his support from his deceased wife. Goldfarb was denied benefits because he could not show that he received half his support from his wife. The government justified the law on the grounds that it represented the prevalent norm therefore administrative convenience would demand its enactment. However, the Court disposed that this statute is discriminatory against women because women paid into this program under the assumption that after paying into her family would be taken care of. Because this statute denied some husbands the right to their survivor’s benefits, it was unconstitutional.

In this instance, the Court upheld a voluntary affirmative action plan designed to increase the number of women in traditionally male positions. Thus, exemplifying a group remedy paid by society at large.

In this case, female wage-earners under the Social Security Act were granted a higher benefit than males – a clear instance of gender-based discrimination. However, the Court disposed that this was constitutional because this compensated women for past discrimination. Furthermore, more favorable treatment was afforded to women based on a real difference, an economic difference. A unanimous court reached this decision using an intermediate level of scrutiny.

CO Amendment 2 that stripped legal protections from gay and bisexual persons passed. The Supreme Court employs a rational basis review of the statute because a heightened standard of review would require the imposition of a suspect group. At this time, gay and bisexual people were not considered to be in their own suspect category nor did sexual orientation constitute a fundamental right. Nevertheless, the Court finds that the only possible objective of this statute was to inflict animus against these groups of individuals and struck down the law. Thus demonstrating that even if a group is not considered a suspect group, animus against anyone is not a legitimate government interest.

The federal law implicated in this case, the Defense of Marriage Act (DOMA), only recognized marriage as it existed between a man and a woman. However, the state of New York recognized gay/lesbian marriage. Therefore, conflict arose when one woman tried to claim a federal estate tax-exemption after her wife had passed away. The woman was denied the exemption and proceeded to file suit. It is important to note that in terms of federalism, marriage is one of the institutions that has overwhelmingly been determined by the states. In this case, NY recognizes same-sex marriage so the S. Ct. questions why the lower courts and national gov’t attempt to under NY state law. The Court held that this is another example of a political majority using its power to politically harm an unpopular group of people in a distinct manner. However, this leaves unclear whether all states must recognize same-sex marriage.

In this case, the Court addresses whether states are obligated to support same-sex marriage. The Court finds that, under the 14A Equal Protection clause, states must recognize same-sex marriages. In doing so the Court identifies four principles that support this ruling/same-sex marriage as a whole: (1) personal choice is inherent in the concept of individual autonomy therefore marriage flows from that; (2) supports a two-person union – dignifies couples who wish to [...]; (3) this protects/safeguards children and families; (4) marriage is a keystone of our social order; and (5) flows from liberty not necessarily due process or equal protection.

In this case, a NY statute barred “aliens” from competing for a civil service position by implementing an examination. The government’s justification assumes that being a citizen of a different state would undermine confidence in public service. Considering that aliens are excluded from the political process, the Court found that aliens find themselves in a vulnerable position which affords them some type of protection. For this reason, The Court held that aliens are persons protected by 14A and are an insulate minority. As such, laws discriminating against aliens are subject to heightened scrutiny. It follows then that the law at question here is especially discriminatory where it places a blanketprohibition on aliens in every job offered, irrespective of the nature of work. With this assertion, the Court does recognize that there are some instances where the state may have a legitimate interest in prohibiting aliens from occupying certain positions. It is relevant to know that although aliens are a suspect group, alienage is not suspect in the same way race/gender is because alienage is not an immutable characteristic; it is premised on a choice and one cannot be identified as an alien just by sight.

In this case, the TX legislature adopted a law to de-incentivize illegal immigrants from entering the state by denying undocumented children access to free public education. Although immigrants are not considered a suspect group and this issue was not subject to heightened scrutiny, the Court invalidates the law because the state was acting purely out of spite/with the intention to cause harm. Moreover, the children would be harmed by this legislation when more than likely their parents were the ones who made the decision to immigrate and that is unfair.

This case involved a California statute that facially discriminated against the poor. The Court struck down the statute using the Commerce Clause, holding that it is impermissible to use property status to qualify or limit rights by way of a statute. This raised the question where indigency is a suspect classification.

Case held that it is/was unconstitutional to require indigenous people to pay for counsel on appeal.

(same case we read earlier in the semester) This case involved a challenge to the city’s failure to grant a permit to a home for those mentally handicapped. Although it seems that those suffering from a mental disability should be viewed as part of a suspect group and thus entitled to a heightened standard of review, the Court applies the rational basis test. The takeaway is that the Court does so because there is a spectrum when it comes to those suffering from mental disabilities and the Court does not have the wherewithal to measure who should be afforded heightened scrutiny.

The statute at issue in this case, the Habitual Criminal Sterilization Act, provided that persons convicted of 3+ crimes of moral turpitude/felonies must be sterilized. In its original form, the statute did not make the distinction between white-collar crimes and other criminals. The Court struck down this law because it violates the rights of certain individuals to have offsprings.

In this case, the payment of a $1.50 poll tax was a precondition to voting. Again, the Court disposed that the right to vote is important. Although there is no fundamental right to vote in state elections, having determined that the right to vote is important in itself means that it cannot be afforded in an unequal manner on a certain criteria, namely wealth. Therefore, we also learn that making the exercise of a fundamental right dependent on wealth is unconstitutional.

In this case, landowners typically used the water storage district. There was a law in place that required people to be landowners in order to vote in district elections. The Court found this law constitutional because the law did not implicate a traditional government interest. Instead, it involved a relationship between a supplier of a commodity and people who access it. Therefore, it is okay to exclude people not using the water for farming.

At issue in this case is the apportionment of the AL legislature based on the census/population. The AL Constitution required that reapportionment occurred periodically, yet at this point, it had not occurred in 63 years. In that time, society had evolved; people overwhelmingly moved from rural to urban areas. The state was less agrarian and more industrial. Because this change was not represented, the votes of the people living in urban areas were being diluted. The AL government argued that voting was based on communities of interest. The Court responded that reapportionment was to occur on the basis of the population, not the community of interest. The important takeaway from the Court’s observation is that the legislature represents the people. Therefore, in establishing legislative districts, states must use population as a basis and they cannot stray from this. Legislative districts must be drawn with equal interest. Mal-apportionment infringes on the right to vote because it lessens the effectiveness of certain citizens’ votes. (Effectiveness meaning that any one vote has the same weight as another vote).

The takeaway is that not every person is entitled to have their minority represented (dark takeaway).

This case established that the right to an appeal may not be predicated on an individual’s inability to pay court fees. To do so would be a violation of the DPC and Equal Protection clause of the 14th Amendment.

Demonstrated that denying a defendant counsel during their first appeal because of the client’s financial hardships constitutes individious discrimination against poor appellants.

Here the issue was whether the Court could impose a fee on indigent persons wanting to file for divorce. The Court held that making the exercise of fundamental rights contingent on a fee is unconstitutional especially where the state has a monopoly on marriage/divorce. Thereby holding that not all court fees are illegal just those that restrict the exercise of a fundamental right(s). The violation in this case was a DPC violation.

In this case, the issue was whether courts may condition appeals from custody decrees on the parent’s ability to pay court fees. The Court invalidated these decrees on equal protection and due process grounds.

At issue in this case was a statute in a number of jurisdictions that imposed duration of residency requirements for welfare. The requirement would basically state that a person had to reside in a certain jurisdiction for a prescribed period of time, i.e. one year if they were to receive benefits. Although, the most logical interpretation of the statute would be that it discriminates against individuals who resided in a state for less than a year, the Court considers this the right to travel. In this instance, the Court does not suggest that there is a right to welfare, however those who have already received welfare should be afforded fluxity as they travel. Here, the opinion demonstrates the Court’s concern about considering welfare as a positive right because that would change the entire edifice of the Constitution. To avoid possibly eliciting this idea, the Court considers the right to travel, although it concedes that there is no constitutional basis for this right.

This case is different from previous cases in that the statute at issue did not deny all welfare benefits on the basis of residency requirements. Instead, the amount of benefits that one may have received was capped to the state that the individual originated from (even if that means a person was afforded less benefits than those that are typically granted in the state they moved to). Here, the Court found that the statute is unconstitutional because the right to travel is still being deterred and actually grounds the right to travel in the text of the Constitution. The Court disposed that the right to travel is extracted from Article 4 Section 2, the Privileges and Immunities clause and the Dormant Commerce Clause. Overall, this case teaches that the durational residency requirement for actions that the Court does not feel are important are unconstitutional (i.e. right to vote), however where actions are averted that the Court finds are important, the Court will find a textual basis to ground the constitutionality of these acts.

This case taught us that the Court recognizes healthcare as an important, yet not fundamental, right. However, in this specific instance where healthcare was conditioned upon a residency requirement, the Court found that the durational residency requirement was unconstitutional.

The statute at issue in this case imposed a cap on the amount of grant money a family could receive based on the size of the family. Thus preventing families from getting more benefits by virtue of having a larger family. The majority classified this statute and the rights that are implicated here as one involving economic and social welfare. For this reason, the Court applied a lower level of scrutiny when reviewing the statute.  In accordance with this logic and previous precedent, the Court held that there is no fundamental right to welfare. Therefore, the Court upheld the statute.

A significant portion of educational funding comes from property taxes. Here, the Court considered the facts surrounding two adjacent districts in TX. One of the districts had higher taxes than the other. It follows that the district with lower taxes expended less money on education. The plaintiff in this case argued that this amounts to discrimination in terms of access to education. The Court applied the rational basis test which demonstrated that the Court does not consider education a fundamental right. Education is not considered a fundamental right because the right to education is not explicitly found in the Constitution. Although the Court categorizes other rights as fundamental without specific textual basises, the Court only does this for negative rights. Education would be a positive right that forces a duty upon the government and could possibly translate to the government being obligated to do other things. Therefore, the Court disposed that wealth with the enjoinment of interest that the Court considers important is problematic. Again, because in this case the Court found that education is not important, the Court employed rational basis review. In doing so, the Court held that where the two districts allotted funding for education based on their property taxes, there was no constitutional violation.

In this case, a statute prohibited bakers from working more than 60 hours/week. Lochner violated this statute and was fined. Here, the Court held that the statute violated the 14th Amendment. Finding that in the absence of evidence that this law curtails health and safety, this law infringed on the liberty of the employer and employee to contract, the lawmaker arbitrarily imposed. This case teaches us about how the Court defines (1) liberty; (2) how liberty should be granted; (3) and its own role.

The statute at issue in this case created a fixed price for milk during the Great Depression. The plaintiff advanced the same argument used in Lochner. However, in this case the Court held that the lawmaker was free to adopt whatever economic regulation it wanted to ensure the public good so long as the lawmaker was not constitutionally prohibited from doing so.

Like the previous case, Nebbia, this case exemplifies the notion that property rights and contract rights are not absolute; both must yield to the public good and the lawmaker has the power to define what is the public good. In these two cases, the Court’s hesitation to invalidate the legislation in economic cases is affirmed. As is the rejection of the notion that the Co

The statute at issue in this case imposed restrictions on the shipment of condensed milk that contained any fat or oil other than milk fat. The company was penalized in accordance with the statute, although the company argued that this law was based on incorrect scientific findings. Here, the Court determined that the statute was still subject to rational basis review. Thus emphasizing that any conceivable basis to uphold a statute will be used to uphold that statute.  It is worth noting however, that footnote four, the most celebrated footnote in constitutional history, explains that the analysis would be different if the legislation targeted a discrete or insulate minority or fundamental rights.

In this case, the statute at issue penalized anyone using or assisting anyone in the use of contraceptives. The parties involved in this case were physicians who were convicted for distributing information and contraceptives to married couples in violation of the statute. Here, the Court found that the statute violated the unenumerated right of privacy, the fundamental right of privacy. This is different from previous cases where the Court refused to recognize unenumerated rights. Instead, in this instance, the Court considered multiple amendments from the BOR which the Court classified as “penumbras” (3A – quartering soldiers, 4A – unreasonable search/seizure, 5A – self-incrimination). The penumbras were derived from provisions in the BOR that appear to protect certain associations (one of which is the association of married couples). In other words, the extensions that flow from these rights are extensions from which one can extract the right to privacy.

In this case, the Court considered whether a state ban on abortion implicated a fundamental right, and whether the state sufficiently justified the intrusion. The Court ultimately addressed the right to privacy question as identified in Griswold. Here, the Court connected the issue to the 14A liberty provision and determined that privacy in this case is not implicated in the normal sense, but as privacy in one’s thought, or in other words, autonomy. In this decision, the Court determined that the state’s interest in a woman’s pregnancy began with viability, yet states were required to permit abortions that saved the life of the mother. In Roe, the Court disposed that life begins when the fetus can survive outside the womb. However, the basis on  which the Court reached this question was left up to skepticism, so the controversial question, when does life begin, remained. This case demonstrated that the level of generality versus specificity with which the Court addresses issues impacts the Court’s judgment.

note this is where the Court departs from trimester approach

In responding to the issue presented in this case, the Court affirmed that women have the right to abortion prior to viability and to obtain an abortion without undue interference from the state. In assessing an undue burden, or significant obstacles placed on part of a woman in terms of having an abortion, the Court employed a 2-step analysis. The first step required the finding of an UB and the second, was a strict scrutiny review of the facts.  Using this analysis, the Court determined the unconstitutionality of the third provision of the statute at hand and completely rejected the trimester approach. However, it is important to recognize that by this time Justice Kennedy had joined the Supreme Court and made it clear that he rejected the decision reached in Roe. This was a 5-4 decision and Kennedy only sided with the majority in this case because of stare decisis. Therefore, his part in the decision lays the groundwork for legitimacy arguments against this decision.

In this case, a TX statute required (1) doctors who perform abortions at a clinic to have admitting principles at a hospital within 30 miles; and (2) for abortion facilities to meet the standards of surgical facilities. The first part of the statute had already been implemented, yet the second part had not been because of a court-determined stay pending the determination of its constitutionality. Justice Breyer delivered the majority opinion. The case fell upon whether TX knew of one instance where this law helped one woman obtain better treatment. Because TX could not cite one instance, the Court determined this was an undue burden on a woman’s right to an abortion. In terms of the surgical center requirement, the Court determined this was also unconstitutional and an UB because it would not benefit patients in any way as there are/were no risks whether abortion would be performed in an ambulatory environment or surgical environment

This case is significant because Justice Roberts crosses the floor in terms of stare decisis and invalidates the Louisiana statute that required certain admitting privileges at a hospital no more than 30 miles from where the abortion was performed.

Here, the Court addressed whether the Constitution gives women the right to an abortion and whether abortion is deeply rooted in this nation’s history and tradition. Although the Court could have addressed a much narrower question, the Court considered the aforementioned question and completely obliterated previously established rights. The majority’s decision was premised on the text and original intent. In this case, the Court reached its decision based on the facts that (1) the right to abortion is not found in the Constitution; and (2) abortion is not deeply rooted in this nation’s history and tradition. Because the right to abortion was not found in the Constitution and Roe was primarily based upon autonomy, the Court concluded that individuals do not have an unfettered right to autonomy and autonomy is not at issue here, just the right to destroy potential life is. Moreover, the Court decided that previous cases infer that women have a right to end fetal life but it is still not clear when fetal life begins, and judges on the Court have arbitrarily decided when life begins, despite nothing in the Constitution giving them the power to make this decision. Finally, the Court determined that abortion cannot be rooted in our nation’s history and tradition when it used to be criminalized throughout the entirety of the union. The Court cited five factors to support the unconstitutionality of a woman’s right to abortion and the overruling of prior precedent: (1) the nature of the Court’s error; (2) the quality of the reasoning; (3) workability; (4) effect on other areas of law; and (5) reliance interests.

An EC ordinance limits occupancy of a dwelling unit to members of a single family. This definition of a single family only applied to blood relatives, but did not provide for an extended family. This instance involved the petitioner's grandson, who was not a blood relative to the other occupants. This case is similar to Shapiro. Here, the Court determined the ordinance was unconstitutional because family comes in many different permutations and the Court is willing to recognize extended families.

In this case, the issue involved a federal food stamp act that limited assistance where families lived together. The underlying assumption was that a family would share meals, whereas unrelated individuals would not. Thus, unrelated individuals were qualified to receive benefits individually and receive more benefits. Here, the Court employed the rational basis test and considered whether this statute interfered with a right of family to live together. Keeping in mind that the previous case declared that the right to family was a fundamental right, the distinguishing factor in this case is that the lawmaker in Moore defined what a family was and told them they could not live together. In the instant case, the lawmaker is making a choice regarding benefits, i.e. socioeconomic legislation. At this point the Court has already disposed in other cases that individuals are not entitled to socioeconomic legislation. Therefore, the statute at question here was upheld.

The statute at issue in this case required any individual responsible for paying child support to establish that they could take care of these obligations prior to obtaining a marriage license. Justice Marshall addressed this in terms of equal protection and fundamental rights under the 14A. The Court had already established that marriage was a fundamental right, therefore because this condition to pay infringed on said right, it was unconstitutional.

The statute at issue in this case provided that disability benefits for disabled dependent children would terminate upon the child’s marriage. When constructing this law, the lawmakers relied on the assumption that if an individual gets married they are not dependent on others for support. Here, two disabled children who were receiving benefits got married and their disability benefits were terminated. The Court employed a rational basis review of the statute because the individuals were not members of a suspect class, no fundamental right was evoked and again, there is no right to welfare. Following this review, the Court held the statute was constitutional because the right to marriage was not being stripped away. Through this ruling the Court basically demonstrated that individuals may get married, just not at the government’s expense.

In this case, the GA statute at issue criminalized sexual acts characterized as sodomy whether in the male or female context. This was a political case like Roe, but on the other side of the spectrum. Here, the Court recognized the broad right to sexual liberty but by relying on history and tradition, decided that there is no fundamental right to engage in homosexual sodomy. The Court disposed that a right to homosexual sodomy is distinct from rights to marriage, family and procreation and the Court had never held that individuals have the right to engage in any kind of sexual conduct in private. Again, this exemplified that the Court can pose as narrow of oa question that they would like and that would change the judgment of the Court.

This case included a similar set of facts as those canvassed in Bowers. In this case, Justice Kennedy wants us to repudiate the question asked in Bowers because Kennedy recognized that this matter encompassed a different scope of liberty. Because this case was ultimately about liberty, the Court held that the lawmaker had no legitimate interest in proscribing the conduct in question. Again, after establishing that the approach in Bowers was wrong, Kennedy had no problem overturning it. The interesting part of this case however, is that the majority relied on foreign precedent to reach its decision.

In this case, a patient’s family wanted to remove life-supporting equipment from the patient who was in a vegetative state following an automobile accident. The state was responsible for the costs of the patient’s care. Because of Missouri’s rule of decision, the hospital would not remove the equipment without a court order.Here, the  Court considered the constitutionality of the  MS statute (the rule of decision)  that required a guardian seeking to remove life-sustaining treatment to prove that the patient, if competent, would have wished to discontinue treatment. The Court considered the fact that while competent, people, under common law, have rights that flow from the 14th Amendment right to liberty. People may refuse food, medication, etc. which may ultimately lead to their death. This recognition prompted the Court to ask if these rights imply that individuals have a right to die. The Court however, did not need to consider this broader question here, where the law in Missouri upheld the wishes that individuals manifested while competent. Ultimately demonstrating that the state has an interest in protecting life.

In this case, plaintiffs are physicians that sought to challenge the constitutionality of a longstanding law in Washington which forbade individuals from assisting another individual in ending their own life. The physicians argued specifically that individuals should have the right to physician assisted suicide if the face of debilitating illness. The Court rejected such a right, holding that the right to suicide is not deeply rooted in this nation’s tradition and history. Here, the Court employed the same methodological approach as Bowers v. Hardwick, meaning that the Court again failed to address the extent of autonomy one has over their own body.

In this case, Roth, a teacher, sued after being hired for a year and terminated without an explanation. Roth’s contract was specific in that it stipulated the contract was only for a year. The contract did not create an expectation of renewal based on satisfactory job performance. Nonetheless, Roth argued that he was owed an explanation for his firing. Here, the Court held that Roth did not have a property interest. In order to have such a right, a legitimate claim of entitlement is required. The Court disposed that property rights are not created by the Constitution, they are either created by: (1) contract; (2) statute adopted by state or local government that confers a right; or (3) an oral contract. Because none of these conditions were present in the facts of Roth’s case, the Court found that Roth was not deprived of his right to due process, and thus, there was no constitutional violation.

In this case, Sindermann was terminated after having renewed several one year contracts of employment within the state college system. No provision in Sindermann’s contract explicitly stated that teachers were entitled to an explanation if they were terminated nor did it provide for the possibility of achieving tenure. However, a provision in the contract did state that the school would like for teachers to feel that they had obtained permanent tenure, so long as they performed satisfactorily. In a press release, the school alleged that Sindermann was terminated due to his insubordination. The school failed to give Sindermann an opportunity to contest this assertion and his nonrenewal. Given that Sindermann had been offered multiple renewals in the past, Sindermann argued that although there was no contractual grant of tenure, he had a binding expectation of tenure based on the school’s tradition of extending de facto tenure. Here, the Court distinguished this case involving a claim of entitlement based on contract, from cases that involve a mere want of entitlement. The Court ruled that property interests may be established where the government gives an individual some type of expectation and does not honor it.

In this case, Loudermill was hired by the Cleveland Board of Education as a security guard. A year into his employment, the board found that Loudermill had been dishonest on his application and dismissed him without an explanation. Loudermill argued under an OH law that stated that civil servants may only be terminated for-cause, i.e. misfeasance or malfeasance. In response, the board maintained that the legislature can determine the bases for terminating employees. The Court responded that the state has discretion to create property rights, but once those rights are conferred, the state cannot deny an individual of that right without procedural due process. As such, Loudermill’s rights were violated as he should have been afforded the opportunity to contest his termination.

In this case, Elridge had been receiving disability benefits for an ongoing period pursuant to a doctor’s report. A relevant state agent determined that Elridge was no longer entitled to the benefits but allowed him to submit, in writing, a challenge to this declaration. After another state agent reviewed Elridge’s challenge and still denied him his disability benefits, Elridge brought suit. Elridge claimed that he was entitled to an oral evidentiary hearing and because he was not afforded such hearing, his right to procedural due process was violated. The Court held that an oral evidentiary hearing was not necessary in this instance, and in doing so, disposed of a 3-part test to determine whether administrative procedures adhere to due process requirements. Whether an administrative procedure meets the constitutional guarantees of the Due Process Clause requires a consideration of three factors: (1) the private interest at stake in the administrative action; (2) 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; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail.

In this case, Shaffer was convicted of violating the Espionage Act of 1917 where he wrote and mailed an anti-war book. Although the book was only intended to express Shaffer’s personal views on the war, the government considered it seditious.  It follows that the Court considered whether the natural and probable tendency of Shaffer’s words would result in behavior that was violative of the act. Finding that Shaffer’s words were likely to increase delinquency in the draft, i.e. insubordination, which was prohibited by the Espionage Act,  the Court affirmed that specific intent was not required to violate that act.

In this case, Schenck was convicted of violating the Espionage Act where he mailed draftees a document that encouraged them to resist the draft. The Espionage Act criminalized individuals that disseminated false information with the purpose of obstructing war efforts. Schenck, however, alleged that the act violated his first amendment right to freedom of speech. Here, the Court upheld the conviction of Schenck and disposed of one of the most important analogies in constitutional law history – “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Thus affirming that words that create a public harm may be punished. This declaration introduced us to the clear and present danger standard which authorizes the criminalization of individuals for uttering or publishing words that bring about the substantial evils that Congress sought to prevent.

This case occurred during WWI but concerned the United States’ involvement in the Bolshevik Revolution in Russia. Abrams and other individuals were concerned about the way in which the United States would get involved and called for a general strike in the United States. They were all tried under the Espionage Act for condemning the United States’ action per the production and distribution of leaflets. In this instance, the Court again upheld Abrams’ and the other individuals’ convictions and the validity of the Espionage Act by using the clear and present danger standard and considering the nature of the circumstances surrounding wartime. 

Holmes in his dissenting opinion breaks from his previous opinion, although he does not outright repudiate the majority opinion in previous cases. Holmes simply focuses on the fact that there was no imperiling war effort in this case, so the individuals’ actions did not present an immediate danger like that presented in previous cases. Holmes also introduces rationales for considering a person’s intent in the calculus of whether speech should be restricted.

In this case, Gitlow, a member of a left wing socialist organization published a pamphlet calling for the overthrow of the government. No evidence existed to show that the pamphlet had the intended effect, however a New York statute regarding criminal anarchy set the basis for Gitlow’s conviction. The statute made any advocacy of the overthrow of the government by force punishable as a felony. Here, the Court considered the constitutionality of the statute. In doing so, the Court recognized that the state has a right of self-preservation and gave us a basis for determining whether a statute is a legitimate exercise of such. The Court first considered the reasonableness of the statute in achieving its desired effects. This approach gives deference to the state as long as it is not legislating in an arbitrarily unreasonable fashion. In this instance, the Court held that the NY statute was reasonable. As such, Gitlow’s conviction was upheld.

In this case, the statute at issue was the Smith Act which provided in pertinent part that an individual who advocates for the overthrow of the United States by force or violence or advocates for the asassination of any United States government official is criminally liable. Petitioners in this case were members of the Communist Party during a time that the government was particularly concerned with domestic conversion and political overthrow. Here, the Court employed the clear and present danger standard. Although there was no probability of clear/immediate violence because the CP was not taken serious, the Court decided that that was not relevant and gave deference to Congress/the legislature. Thus demonstrating that a particular group or individual may not have the means to carry out the acts they allege, if the acts they allege align with the evils that Congress intended to prevent, the acts must be averted.

The petitioners in this case, members of the CP, did not directly charge anyone to engage in specific acts at a specific time, however, alluded that if we were to reach a certain impasse in society, violent action might be necessary.  Unlike Dennis where the Court focused on the degree of advocacy, the Court’s analysis turned based on the nature/content of the advocacy. In doing so, the Court overturned the conviction of the several members of the CP under the Smith Act.

In this case, the state of NY refused to provide the petitioner a license to showcase their film because the film characterized adultery as an acceptable act. At the time, almost every state had banned adultery. In its analysis the Court extended the reasoning of Yates from political subversion to immorality. Thus holding that the state may be justified in prohibiting certain conduct, yet advocacy for that conduct may still fall under the protections of the 1A as long as the advocacy falls short of incitement. It follows that the Court also disposed that the respondent misconceived what the Constitution sought to protect and that the statute evoked here was unconstitutional.

This case signified a transition point in the Court’s jurisprudence and consideration of first amendment rights.

In this case, the petitioner was convicted of violating the Smith Act for his membership in an organization that advocated for the overthrow of the United States’ government. Here, the Court held that mere membership in an unlawful organization was not enough to convict an individual under the Smith Act; an individual must be “an active member of the Party, and not merely a nominal, passive, inactive or purely technical member, with knowledge of the organization's illegal advocacy, and with the specific intent to bring about the overthrow of government as speedily as circumstances would permit.” [Here the petitioner was an active member but we did not discuss that, or the outcome of the case in class].

In this case, a KKK member was convicted under the OH Syndicalism Act for threatening revengeance on government members guilty of “suppress[ing] the white, Caucasian race.” Here the Court disposed of the two-part Brandenburg standard which is now controlling in the context of subversive advocacy. The standard is as follows: “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.” Applying this standard, the Court struck down the act and overturned the petitioner’s conviction. *N.B. for my analyses: since Brandenburg (1969) we have never had a conviction for subversive advocacy.

In this case, the defendant was arrested for disorderly conduct where he uttered the F-word during an anti-war demonstration. Witnesses testified that Hess’ statements were not a call to action at that time, and were not seemingly directed at a particular individual or group. Here, the Court applied the Brandenburg standard and overturned Hess’ conviction, finding that the statement was mere advocacy in that there was no evidence that it produced or was likely to produce violence.

In this case, the NAACP threatened violence in response to consumer merchants engaging in racist practices. The Court held that the mere advocacy of the use of force does not remove it from constitutional protection.

At issue in this case was a federal statute that stated it was illegal to provide material support to foreign terrorist organizations. Material support included legal training and political advocacy. The Humanitarian Law Project wanted to support a few different terrorist groups, however they wanted to support the groups’ nonviolent actions and show them that violence was not the way to achieve their goals. Under the Scales decision, the government needed to prove that the plaintiffs were promoting the illegal activities of the organizations plaintiffs sought to assist. Although there was no evidence pointing to that end, the Court still determined that the statute was constitutional. The Court gave substantial deference to Congress in its decision. The Court held that Congress was justified in its determination that any material support of a terrorist group would constitute help of the terrorist group, and Congress had a legitimate interest in combatting terrorism.

Another example of a poor response on the part of the Court when national security, i.e. war or terrorism is involved.

In this case, a labor union leader published a telegram blasting a court decision and threatened a strike in response. The Court considered whether criticism of the Court during an ongoing proceeding may be punished by contempt because of the threat posed by such criticism. In its analysis, the Court employed the clear and present danger standard from J. Brandeis’ concurrence in Schenck and interpreted the standard to mean that the substantial evil Congress sought to prevent must be extremely serious and the degree of imminence must be extremely high before utterances can be punished. The Court placed an emphasis on the speech component and not the imminence component in this case. Finding that Bridges’ speech did not interfere with the administration of the court’s decision, this Court held that Bridges’ conviction could not be upheld. Here, the Court offered meaningful rationales for allowing criticism of the judiciary, such as the observation that prohibiting criticism would not create respect for the institution, it would cause contempt.

At issue in this case was a statute that criminalized individuals for making threats against the president of the United States. During an anti-war rally, Watts made a conditional threat toward President Lyndon B. Johnson – that if Watts were ever drafted and they put a gun in his hands, LBJ would be the first man he was looking for. The Court disposed that in order for the statute to apply here, the government had to prove that a true threat actually existed. To prove that a true threat exists, the Court held that it is proper to use a reasonable person test. Given the conditional nature of Watts’ speech and the audience’s response to Watts’ speech, the Court determined that Watts’ threat was mostly used as an offensive way to express a political opposition. With this determination, the Court recognized that a threat is sometimes used as hyperbole. Finding that Watts’ speech was merely hyperbole, the Court reversed Watts’ conviction.

In this case, the defendants constructed a website on which they compiled a list of facilities and physicians that carried out abortions. The site stated that one day these individuals would be charged with crimes against humanities. On the site there was also a board with pictures of the physicians who carried out abortions. There were wanted signs over some of the physicians’ heads. The other physicians had already been killed and it follows that their names had already been crossed out. In this case, the majority in a 6-5 decision found that the material on the website constituted a true threat because as the Court disposed, “It is not necessary that the defendant intend to, or be able to carry out his threat; the only intent requirement for a true threat is that the defendant intentionally or knowingly communicate the threat.”

In this case, Terminiello baited those outside an auditorium with racial epithets and derogations. He was charged with a “breach of peace”, and after trial, was found guilty and convicted for disorderly conduct pursuant to the violation of a city ordinance. Here, the Court canvassed the principles that free speech is aimed to promote. The Court disposed that our civil and political institutions depend on free speech in order to exist and exist in a manner distinguishable from totalitarian governments. Likewise, free speech is intended to “invite dispute” because ultimately, this can be productive. After examining these principles, the Court held that, “That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Holding such, the Court reversed Terminiello’s conviction.

In this case, Feiner made a speech that criticised Harry Truman, the American Legion and Mayor of Syracuse. Feiner also called on African Americans to rise up and use their force. The police arrested Feiner after asking him on three separate occasions to withhold his speech. The Court considered three possible rationales for Feiner’s arrest: (1) the speech Feiner engaged in was an incitement to riot; (2) Feiner undertook the incitement to riot; or (3) Feiner refused to obey the order(s) of the police officer(s). Here, the Court disposed that United States citizens do not have a duty to obey police commands that infringe on an individuals’ constitutional rights. However, the Court held that that was not the situation here where Feiner was inciting others to riot. Because of this, the Court upheld Feiner’s conviction.

In this case, Chaplinsky, a Jehovah’s Witness, was making a speech outside of the entrance to city hall. Eventually, he was taken into police custody and escorted to the police station. On his way to the station, Chaplinsky made statements to the marshal, supposedly calling him a racketeer and a fascist. Chaplinksy was then convicted under a statute that forbade name-calling directed at a person on a public street or in a public place, with the intention to offend or deride the other individual. Here, the Court disposed of the fighting words doctrine: amongst the classes of words that are not protected are “the lewd, 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.” After applying the doctrine, the Court concluded that Chaplinsky’s speech could not be upheld and affirmed his conviction.  

*N.B. for my analyses – Since Chaplinsky there has been no conviction for fighting words

This case involved an area with a high concentration of Jewish residents and Holocaust survivors, and a Neo-Nazi organization that converged on the city precisely because of the significant number of Holocaust survivors. The organization sought to march while wearing several Nazi emblems. Villagers filed suit and alleged that if the march were to occur, it would inevitably cause a riot or something of the like and the organization intended to inflict such harm. In other words, the villagers wanted to evoke the fighting words doctrine to obtain a court-ordered injunction that would stop the organization from marching. Although the injunction was eventually issued, it was later found invalid thus showing that the fighting words doctrine will only be upheld in the most extreme circumstances.

Phelps and members of the West Baptist Church of Kansas would show up at funerals to protest what they considered the military’s toleration of homosexuality. In these protests, the organizers would darkly warn of a just God and suggest that dead soldiers were evidence of God’s anger. The organization picketed at over 600 funerals. After learning that a soldier, Matthew Snyder’s, funeral was set to take place in MD, Phelps and other organizers traveled to MD the day of the service and picketed on public land adjacent to the service. Snyder’s family sued for IIED. The lower courts found for the family and the congregation appealed. This Court’s analysis began with assessing whether Phelps and his congregation engaged in public or private speech. The Court disposed that, “Speech deals with matters of public concern when it can 'be fairly considered as relating to any matter of political, social, or other concern to the community,' or when it 'is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.'” The Court also disposed that the circumstances surrounding the speech are key to categorizing what type of speech is involved. Using this calculus, the Court determined that this case concerned public speech. Moreover, the Court held that "speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection."  Although public speech is not entirely immune to regulation, it is subject to reasonable time, place or manner restrictions, the Court found that none of these restrictions were present, even as the family relied on the appropriateness of the organizer’s location to sustain their argument. Reason being, the Court determined that the content and viewpoint clearly offended the family more than the location of where the speech was displayed because the speech did not interfere with the funeral, so seemingly, if a different message were conveyed, the family would not have had a problem with it. Finally, The Court also held that the trial court was able to reach its decision based on the outrageness of the conduct. However, outrageous is a highly malleable standard and because the jury likely could not remain objective in a case with facts such as the ones present here, that judgment should not be upheld.

In this case, a Virginia newspaper published an article stating that a tribunal was investigating a state judge. Yet, a Virginia statute provided that it was unconstitutional to publish information relating to matters pending in tribunal. Here, the Court considered the constitutionality of that statute. In doing so, the Court adopted a balancing test. The test weighs the need for confidentiality against the value of the suppressed speech. The Court concluded that because the conduct of a judge is important to the public, in this case, the balance favors the speech.

In this case a trial judge published an order that prohibited the newspapers from publishing statements of those recused in murder cases. The purpose was to protect the defendant’s right to a fair trial. Here, the Court deemed the order was unconstitutional because the right to a fair trial could have been protected by less restrictive means. 

This is a prior restrainment case – trying to prevent an individual from engaging in speech whereas other cases involve prosecution after speech

Here, the New York Times and Washington Post had obtained 47 volumes involving Indochina during the Vietnam War. The United States wanted to prevent the papers from being published and claimed that it wanted to do so to protect national security. The Court held that, “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.’ The Government ‘thus carries a heavy burden of showing justification for the imposition of such a restraint.’” In the instant case, the Court concluded that the government had not met this burden. This is significant because the Court usually messes up during times of national hysteria.

In this case, Snepp wrote a book about CIA operations in Vietnam, although he had signed a NDA prior to his employment. The Court held that Snepp could be held to this NDA. By doing so, the Court exposed an enormous hole in the theory of free speech: the government can prevent its own employee from publishing information but provided that the press takes no illegal measures, the government cannot prevent the press from publishing information it obtains from a government employee. (think whistleblowers and all the leaks from the Trump administration)

In this case Agee was a government official that made an undertaking not to disclose certain information. In violation of this undertaking, Agee opposed international CIA undertakings, exposed the identities and other information about CIA operatives that led to their attacks. Agee also exposed military strategy. Here, Agee’s passport was revoked and the Court upheld its revocation because "No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. [Thu] Agee's disclosures [have] the declared purpose of obstructing intelligence operations and the recruiting of personnel. Thus, they are clearly not protected by the Constitution." The ruling in Agee copies the dicta of 1931 case while simultaneously representing the exception to prior restraint precedent (the extremely high burden).

In this case, an AL Commissioner claimed to have been libeled by an advertisement in the NYT paid for by civil rights activists. Here, the Court disposed that “[They considered] this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” In doing so, Justice Brennan concluded that the Constitution requires a public official to prove that the publisher made his statements with ‘actual malice’ – that is, with knowledge that it was false or reckless disregard of whether it was false or not, if the public official is to recover damages for defamatory falsehood that occurred in the course of their duties. The Court decided that that burden was not met upon the present facts (just because they did not verify the statements is not sufficient to meet this threshold).

Apply NYT rules to people who are public figures, not just public officials.

In this case, the Court considered whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public figure nor public official may claim a constitutional privilege against liability for the injury inflicted by those statements. The Court distinguished between a false idea, which it held does not exist, and false statements of fact which do not contribute at all to the goals of the 1A. Furthermore, the Court recognized that although the erroneous statement of fact is not worthy of constitutional protection, it is inevitable in public debate and punishing actual errors would run afoul of promoting self-censorship, which is one of the interests that the 1A aims to prevent. In balancing the state interest in free speech with the state interest in compensating those harmed by defamatory falsehoods, the Court disposed that the NYT standard could not apply to private individuals. Reason being, private individuals are more vulnerable to injury as they cannot counteract statements made against them in the same way that public figures/officials can and they do not subject themselves to falsehoods in the same manner as public figures/officials. The Court instead held that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.

This case involved a parody made against Respondent, a celebrity, that suggested the celebrity engaged in a drunken, incestous rendezvous. The parody included a disclaimer that it was not to be taken seriously. Despite the controlling NYT standard, Respondent argued that a different standard should be applied to this case given the severe infliction of emotional distress that the magazine intended to cause. Here, the Court disposed that tort remedies could not be made available for supposed 1A violations without a showing of actual malice because (1) cartoonists/satiricists would often been subjected to damages because of the nature of their work; and (2) it would be too difficult for a jury to ascertain the “outrageousness” component of the standard that controls IIED remedies, because the inherent subjectiveness that follows social and political discourse would seep into the juror’s judgment.

At issue in this case was a VA statute that prohibited the advertisement of prescription drug prices. Respondents argued that the statute was violative of the 1A, amongst other constitutional rights. The Court considered whether speech which does “no more than propose a commercial transaction” is so removed from any “exposition of ideas,” and from “truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government,” that it lacks all protection. To address this inquiry, the Court heard both parties asserted interest; Petitioners argued on the basis of their economic and professional interests whereas Respondents’ interest was in accessing affordable drug prices which ultimately contributed to the “alleviation of [their] physical pain or the enjoyment of basic necessities.” The Court determined that the extensive board regulations Petitioners were subjected to undermined their professionalism argument, as such Petitioners’ primary concern rested on the ignorance of consumers to shape their business practices. Finding that this concern was insufficient as it ignored the fact consumers could still choose to buy prescriptions on the basis of what would be most helpful to them, not just price,   the Court disposed that society has a strong interest in the free flow of commercial interest. With this finding, however, the Court did not hold that it could never be regulated in anyway – lawmakers could still place time/manner/place restrictions on commercial speech, false or illegal information is not to be advertised, and electronically broadcasted information is subject to different regulations – but none of the restricted conditions existed in this case.

In this case the Court considered whether a regulation of the Public Services Commission of NY violated the 1A and 14A because it completely banned promotional advertising by an electrical utility company. The legislative purpose of the regulation was to alleviate a fuel shortage in NY – in other words, to conserve energy. The regulation differentiated between promotional advertising, which was advertising completely aimed at making sales, and institutional and informational advertising, a much broader category. Here, the Court disposed of the 4-part standard to determine whether bans on commercial advertising are permissible under the 1A – the regulation (1) must concern a lawful activity and cannot be misleading; (2) the asserted government interest must be substantial; [if the first half of the test is satisfied] (3) the regulation must directly advance the governmental interest asserted; and (4) must not be more extensive than necessary to serve that interest. In this case, the Court found that the regulation clearly met the first half of the test, however, fails based on the fourth prong because the regulation suppressed speech that in no way impaired the State’s interest in conservation. The Court held that to further its goals, the Commision could have implicated format and content restrictions on the advertising – thus exposing a critical difference between political and commercial speech**, in the commercial speech context, content-based restrictions are sometimes permissible.

At issue in this case was a statute that banned the advertising of liquor [prices] except on the physical premises where the alcohol was marketed. Here, the Court found that the fourth prong of the Central Hudson Gas test was not satisfied and thus, struck down the statute and repudiated Posadas. The Court held that only if the legislature regulated conduct then they could regulate speech, but if the legislature did not ban the conduct, they could not ban the dissemination of truthful information.

The regulation at issue in this case prohibited the advertising of tobacco or tobacco related products outdoors in a certain vicinity of schools/playgrounds. In effect, the regulation prevented advertising of said products in almost 90% of city of Boston. The state’s goal was to prevent underage use of tobacco, i.e. a legitimate goal. However, the Court held that the legislature cannot use a vice exception in order to justify a complete prohibition of a lawful product – the  basis to eradicate every instance of truthful advertising cannot be to protect children.

The federal statute in this case prohibited the advertisement of compound drugs, two independently legitimate drugs combined to treat a particular patient. Here, the Court determined that the regulation failed the 4th prong of Central Hudson Gas; although the lawmaker was concerned with public health and safety because the drugs nor the efficacy of the drugs had been tested, less restrictive alternatives to banning advertisements of the drugs existed. This case was an emphatic rejection of the notion that the lawmaker can restrict the distribution of truthful information.

In this case, Roth was convicted for violating a federal statute where he mailed obscene materials. Here, the Court reaffirmed the longstanding view that obscenity is not within constitutional protection because it is without social importance. It is without social importance because the Court finds that obscenity does not further the interests of free speech, in that it does not contribute to the marketplace of ideas, self-governance or self-fulfillment.  The standard that the Court employs for obscenity is whether the average person applying contemporary community standards would find that the dominant theme of the material taken as a whole appeals to the prurient interests. Prurient meaning “marked by or arousing an immoderate or unwholesome interest or desire specially  : marked by, arousing, or appealing to sexual desire.”

In this case, Miller mailed copies of books that graphically depicted intercourse to unwilling recipients. Here, the Court considered the constitutionality of California’s obscenity statute that Miller was convicted under. In doing so, the Court disposed of a three-part test that a trier of fact must use to determine whether a regulation of obscene materials is constitutionally sound. The trier of fact must evaluate: “(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.” Parts one and two of the test are based on community standards of the applicable jurisdiction, while part three is a national standard. 

N.B.* for my analyses – Roth set the foundation for evaluating obscene materials but Miller is the controlling standard that is to be employed

In this case,  petitioners were charged for exhibiting obscene films at adult theaters in violation of a state statute. The theater warned patrons of the type of materials that would be displayed and also placed an age requirement on attendees. Here, the Court considered whether obscene materials could pass constitutional muster if they were only viewed by consenting adults. The Court held that precautionary measures do not preclude the state from regulating obscene materials because there is a legitimate state interest in regulating said materials. To accept that argument would support the notion that conduct involving consenting adults only is always beyond state regulation, and the Court does not want to send this message.  This case is the companion case to Miller; here, the Court emphasizes the legislature protecting its interest in community, that obscenity erodes morality and where there is no empirical connection to support such assertions, the legislature can determine that there is a connection, set the tone of the community and that is a good enough basis for the law to stand. The case also rejects the notion of complete autonomy.

In this case, Ferber sold films depicting sex acts involving underage boys in violation of a NY statute. Although the jury did not find the materials obscene, the Court upheld Ferber’s conviction. Thus holding that the obscenity standard articulated in Miller does not apply to cases involving child pornography; pornographic materials affecting children fall completely outside of protections granted under the 1A.

It is also worth noting that the state’s interest in prohibiting child pornography is to protect children whereas in obscenity cases the interest is in protecting the viewer from ostensibly receiving harm.

In this case, the Court addressed the constitutional status of virtual child pornography, i.e. pornography used to depict children without using children. Here, the Court held that this speech is fully protected because the interest in prohibiting child pornography is lacking as there are no children being harmed in the production of these materials. This case demonstrates that when there is a child involved, the Court will automatically jump to strict scrutiny, but when there is no child involved, the Court finds that there is an artistic component that deserves protection. Virtual pornography can however, be subject to the Miller standard.

This case involved virtual pornography that was marketed as child pornography. An individual responsible for marketing these materials as such can be prosecuted for distributing the materials because of a rationale similar to that employed in the context of commercial advertising – offering to engage in an illegal transaction can be outlawed if the speaker intends for the receiver to believe that real children are being used.

n this case, Cohen wore a jacket that was inscribed with the phrase “f*** the draft” and he was convicted for violating a CA statute. Here, the Court considered the validity of the statute. The message on Cohen’s jacket was not deemed obscene nor did it contain fighting words, yet the legislature asserted that there was a state interest in punishing the expression. The interest was supposedly that the speech caused offense to unwilling listeners and tended to degrade public discourse. The Court rejected this argument however, because the Court found that unconsenting individuals could have “avert[ed] their eyes.” While the state would suggest that this type of speech lacked value, the Court emphasized that lewd, profane, indecent language, such as that on Cohen’s jacket, has some type of importance in conveying the emotive state of one’s conviction. In other words, the Court recognized that language is important when trying to send a powerful message. Moreover, the Court recognized that this case implicated a content-based limitation because if Cohen were to have adopted a popular view then he would not have been subjected to the same consequences. For the foregoing reasons, the Court reversed Cohen’s convictions. 

This case also encompassed certain doctrinal implications: (1) had the Court upheld the conviction, it would have gone down the path of banning certain words; (2) the identification of a class of words that could be prohibited under the state’s theory would be impossible; and (3) the state’s interest in protecting sensibilities/sensitive subjects is not really a significant interest. N.B. – If there is a captive audience and it is impossible to avert one’s eyes, there is a possibility of that speech being restricted because such would constitute a content-based limitation (think Lehman v. Shaker Heights).

At issue in this case was a federal statute that banned the transmission of indecent materials on the internet. The Court engaged in a review of a previous case, Pacifica where the Court upheld a regulation of what radio broadcasters could broadcast when it comes to minors. In that case, the Court focused on medium transmission. Here, the Court disposed that the internet is different. After applying strict scrutiny because of the content-based limitation present upon these facts, the Court established astoundingly that the internet must be afforded the highest level of protection under the 1A. As such, blanket bans on the transmission of indecent materials on the internet are unconstitutional. Yet, this does not affect the prosecution of any individual if their conduct satisfies the Miller standard

In this case, the city of Detroit implemented two ordinances that called for the disbursement of adult theaters. The city enacted the ordinances because the placement of such theaters in the same vicinities “tends to attract an undesirable quantity and quality of transients, adversely affects property values, causes an increase in crime, especially prostitution, and encourages residents and businesses to move elsewhere.” Although the ordinance is based on the content depicted at these theaters, the Court found that there was no constitutional violation here. Instead, the Court reaffirmed that sexually explicit speech does not have the same protections as other speech.

At issue in this case was an ordinance that banned the distribution of any placard, handbill, flyer, poster, ad, or paper of any description on any street. The alleged legislative purpose of this ordinance was to prevent littering. Here, the Court found that the ordinance was unconstitutional because the justification was insufficient to punish individuals for passing out literature to willing recipients. There were other alternatives to punishing littering. [The states can make other restrictions when an activity bears no necessary relationship to the freedom to speak, write, print or distribute information or an opinion.

At issue in this case was a statute that prohibited any person distributing materials from ringing doorbells,  sounding the door-knocker or otherwise summoning the inhabitants of a residence for the purpose of them receiving the materials. Here, the Court disposed that the statute was an unconstitutional prohibition as the use of doorknocking was essential to the poorly financed causes of little people. Also, the freedom to distribute information to every citizen whenever one desires to receive it is vital to the preservation of a free society; there could have been other reasonable police and health regulations put in place. Most restrictions should have only been punished if distributors ignore the homeowner’s warnings to go away.

This case involved the state interest in preserving peace and tranquility. Here, a statute made it unlawful for any person to use a sound truck, loud speaker, amplifier, etc. or any device which emitted a loud and raucous noise and was attached to any vehicle operated or standing upon streets or public spaces. The Court found that the statute was constitutional because public speech of this kind could reasonably be deemed a nuisance. 

Although city streets are recognized as a normal place for the exchange of ideas via speech or paper, these freedoms are not beyond all control; it is a permissible exercise of legislative discretion to bar loud and raucous broadcasts.

At issue in this case was a San Diego ordinance that imposed substantial prohibitions on the erection of outdoor ad displays within the city. The ordinance effectively eliminated the billboard as an effective medium of communication. Here, the Court found the statute unconstitutional because it was underinclusive in its attempt to achieve aesthetic goals and the goal of lessening distractions was unsupported by evidence.

In this case, a city ordinance prohibited homeowners from displaying any signs on their property except resident identification signs, for sale signs, and signs warning of safety hazards. Commercial establishments, churches and nonprofit organizations were allowed to erect certain signs that were not allowed at residencies. Respondents erected a sign at their single-family home to oppose the war. After the sign was removed, she placed another and that one was kicked to the ground. Respondent attempted to inform authorities, at which point she was told that the sign was violative of the ordinance. Here, Petitioner argued that this was a mere time, place and manner restriction. The Court held that the statute was unconstitutional and violated the 1A. In response to the argument that this was merely a time, place and manner restriction, the Court held that even when regulations do not foreclose an entire expression medium, it must leave open ample alternative channels of communication. There has historically been a special respect for individual liberty in the home; this principle has special resonance when gov’t seeks to constain a person’s ability to speak there. Yard signs are special because they are unusually cheap, identify the speaker and are convenient thus there is no practical substitute. Furthermore, alternative means exist to meet the city’s stated regulatory needs.

In this case, the city adopted an ordinance that prohibited any public address on any publicly owned property without a permit from the mayor. Here, the Court considered whether the gov’t could limit speech on government-owned property through its basic property rights. The Court determined that it could and the statute was constitutional; under the 1A, the gov’t can limit speech on government property through its basic property rights. The gov’t has the power to control use of the property which it owns (think, under basic property rights the gov’t could prohibit public access to its property, therefore it can also limit public speaking).

In this case, a city ordinance forbade the leasing of any hall without a permit from the Chief of Police, if the public meeting was meant to advocate for obstruction of the government of the U.S., a state or a change of government by unlawful means. Essentially, this meant no public meetings in streets or other public places without a permit. Here, the Petitioners argued that they were being denied lawful meetings because of their Communist affiliation. The Court held the statute was unconstitutional because the streets and parks had been held in the trust for the use of the public, and had been used for assembly, communicating thoughts between citizens, and discussing public questions. As such, a 1A easement exists — individuals have the right to exercise free speech in parks and streets.

At issue here was a NY statute aimed to regulate the volume of amplified music at the bandshell, a concert area which was located near Sleepy Meadow, a quiet area for passive recreations within Central Park, and apartment buildings. The legislative purpose behind this particular statute was to retain the character of Sleepy Meadow and avoid undue intrusion into residential areas. Here, the Court found that the regulation was content-neutral, and thus, constitutional.  The Court disposed that the principal inquiry determining content neutrality in time, place, manner cases is whether the government adopted a regulation of speech because of disagreement with the message it conveys. For a regulation to be neutral, it must be justifiable without reference to the content of the regulated speech, as was the regulation in this case. Most importantly, the takeaway from this case is that a narrowly-tailored regulation requires only that the government does not restrict the speech more than necessary. The Court will be deferential in these circumstances because it believes the government needs to use its power in these instances.

At issue in this case was a regulation issued by the National Park Service that stated camping in National Parks was only permitted in campgrounds designated for camping. No campgrounds of this kind had been designated in Lafayette Park or the Mall. Respondents received a renewable permit from the parks service to conduct a demonstration in Lafayette Park and the Mall to demonstrate the plight of homelessness. According to the permit, they were authorized to erect two symbolic tent cities. However, the park service denied Respondents' request to sleep in the tents. Here, the Court upheld the regulation because it satisfied the grounds for constitutionality; (1) the restrictions were justified without reference to the content of the regulated speech; (2) the restrictions were narrowly tailored to serve a significant government interest; and (3) the regulation left open ample alternative channels for communication of the information.

At issue in this case was a NH statute that required individuals to obtain a permit to engage in parades and processions, and required licensees to pay for the permit in accordance with the duration of their events. The statute was intended to give the city advance notice of the need for proper policing of events. Here, the Court held that the statute was constitutional because there was a significant interest in access to convenient travel, and the government may impose regulations to maintain the use of public sidewalks. Moreover, the statute was content-neutral.

In this case, Respondents had planned and organized a civil rights march in response to the racist history of the county. This march became the largest civil rights demonstration in the South since the 1960s and cost the county over $670, 000 in police protection. As a direct result of this incident, the county adopted Ordinance 34 which would require every permit applicant to pay a sum, not exceeding $1,000, for every day they planned to hold a demonstration. The ordinance also allowed the county administrator to “adjust the amount to be paid in order to meet the expense incident to the administration of the Ordinance and to the maintenance of public order in the matter licensed.” The fee assessed would ultimately depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content. Supposedly, the ordinance was enacted to hold those participating in the demonstrations accountable for their costs. Here, however, the Court found the statute unconstitutional and disposed that speech may not be financially burdened, any more than it can be banned, simply because it may offend a hostile mob.

In this case, Petitioners were FAMU students that protested on jail property. The county sheriff, legal custodian of the jail and jail grounds, tried to persuade the students to leave the jail grounds. When this did not work, he warned the students that if they stayed, they would be arrested and charged. The students that stayed were arrested and charged accordingly. They challenged their convictions on the grounds that it violated their rights of free speech and assembly. Here, the Court upheld their convictions because the sheriff had the power to direct large crowds off jail property and he did not direct the students based on what they said nor was there any evidence that other large groups had been allowed to use the grounds for protesting in the past. Being that the jail was reserved only for jail uses, the Court ruled that the State has the power to preserve under its control for the use which it is lawfully dedicated. Moreover, the United States Constitution does not forbid a State to control the use of its own property for its own nondiscriminatory purpose.

This case involved the Fort Dix reservation in the U.S. Army post, located in NJ. According to the regulations of the reservation, soliciting was prohibited without approval of the commanding general. Here, Respondents were political candidates that were denied access to the reservation and subsequently brought suit challenging the constitutionality of the regulation. The Court disposed that the purpose of the reservation was to train soldiers, not to provide a public forum, and the regulation was evenhandedly applied to keep military activities free of entanglement with partisan politics of any kind. As such, the regulation was constitutional and content-neutral.

Regulation that requires postage on items placed in a letterbox cannot be said to be violative of the 1A simply because it would diminish the efficiency of Respondent’s communications. Moreover, access to a letter box could be treated just as it is to other forums (i.e. Greer and Adderley)

In this case, the Court considered the constitutionality of a USPS regulation that prohibited solicitation on the sidewalk leading to the post office. Court upheld the regulation finding that, “The postal sidewalk at issue does not have the characteristics of public sidewalks traditionally open to expressive activity. . . . [T]he postal sidewalk was constructed solely to provide for the passage of individuals engaged in postal business. The sidewalk leading to the entry of the post office is not the traditional public forum sidewalk. . . .”

In this case, the Court considered whether an airport terminal operated by a public authority is a public forum and whether a regulation prohibiting solicitation in the interior of an airport terminal violates the First Amendment. Here, Petitioner’s were members of a religious organization that required them to disseminate information regarding their faith and solicit funds in public areas. They challenged a regulation adopted by the Port Authority of NY and NJ that forbade repetitive solicitation of money within terminals, on the grounds that the regulation infringed on their 1A rights. The Court disposed that the forum fails the “[use] in the public trust for expressive activity” requirement set forth in Hague because airports were never traditionally held out for use by the public for expressive purposes, nor were they traditionally used by religious groups for solicitation purposes. Therefore, the regulation must have only been reasonable to pass constitutional muster. In consideration of the impediments to airport traffic, and possibly duress that may result from face-to-face solicitation, the Court found that the Port Authority’s regulation was reasonable to protect air travelers from undue interference. 

N.B. – Solicitation was permissible on the sidewalks outside the airport because that was most akin to soliciting the general public + it is insufficient to compare airports to rail (train) + bus stations

At issue in this case was a city ordinance prohibiting picketing within a certain proximity of a school. The ordinance provided exceptions for peaceful picketing regarding labor disputes. The Court disposed that this case involved an entanglement of Equal Protection (14A) interests as well as 1A issues, because of the unequal application of the ordinance and the content-based limitation. Whenever the Equal Protection clause is implicated, the Court’s analysis focuses on whether a substantial governmental interest exists and whether the legislature’s proscribed means to protect that interest was narrowly tailored to accomplish such a goal. Here, the Court decided that neither part of this standard was satisfied. Moreover, the Court held that even if the government were to have constitutionally prohibited all picketing near a school, i.e. in accordance with equal protection principles, the government could not have specifically excluded nonlabor picking because that is a content-based limitation. The takeaway from this case is, “There is an 'equality of status in the field of ideas,' and the government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, the government may not prohibit others from assembling or speaking on the basis of what they intend to say.”

In this case, the issue was “whether a city which operates a public rapid transit system and sells advertising space for car cards on its vehicles is required by the First and Fourteenth Amendments to accept paid political advertising on behalf of a candidate for public office.” Here, the petitioner was a politician who wanted to promote his candidacy for state representative on the city’s transit cars. The city denied the petitioner’s request because of a policy that forbade political advertising. The petitioner argued that this raised a constitutional issue because the transit cars constituted a public forum that was protected by the First Amendment. Rejecting this argument, the Court held that public transit is not a public space, instead, it is a commercial venture. Therefore, provided that the policies or laws governing the regulation of these spaces are not arbitrary, capricious or invidious, then the Court will allow the regulation to stand.

In this case, the petitioner was a public television broadcaster in the state of Arkansas. While the petitioner sponsored a series of political debates, the petitioner only opened the debates to candidates from the two major parties. Here, the Court disposed that there was no 1A issue implicated, as there was no public forum. Although the state did not open debate to everyone generally, the state did open the debate to a certain class of people which means that there was limited access, not a public forum. This case gave rise to selective vs. general access forums. In such instances, the state is able to make exclusions from a nonpublic forum as long as the exclusions are reasonable, and coincide with other constitutional protections.

In this case, Respondent sought to influence others to adopt anti-war views by burning a draft card in protest of the Vietnam War. He was convicted for mutilating a draft certificate in violation of federal law. Respondent argued that the law infringed on his constitutional liberties where the law forbade conduct that was protected under his 1A freedom of speech. Here, the Court held that not all conduct intended to express an idea could be considered speech. Even where the conduct may be considered speech, that does not automatically grant the conduct 1A protections.  When the non-speech and speech elements of an individual's conduct are so intertwined, an important or substantial government interest in regulating the non-speech can justify incidental limitations on 1A speech if the regulation is (1) within the constitutional power of the Government; (2)  if it furthers an important or substantial governmental interest; (3) if the governmental interest is unrelated to the suppression of free expression; and (4) if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” In this case, the law met all four requirements of the test, thus the law was upheld as was OBrien’s conviction.

In this case, Petitioners wore black armbands to school to show their opposition to the Vietnam war. The school warned that anyone who wore the armbands would be asked to remove them, and if they did not comply, they would be suspended and prevented from returning to school until they took off their armbands. Petitioners were punished accordingly. As a result, they filed suit alleging that their 1A rights had been violated. Here, the Court found that the wearing of the armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the 1A. Thus, the Court affirmed that the protections of the 1A extended to the school environment and held that 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.(Quimbee*)

In this case, Respondent was charged with desecrating the American flag, in violation of a TX law. Respondent burned the flag as a means of political protest. Here, the Court determined that Respondent’s expressive conduct was sufficient to evoke the 1A. With this determination, the Court decided that if the purpose of the TX statute was to outlaw the conduct, then the Court would apply the OBrien standard; if not, the Court would consider under strict scrutiny, the government’s interest in outlawing the speech components of the conduct. Because the asserted purpose of the statute was to preserve the special symbolic character of the flag, and thus limit the expressive conduct of those who burnt the flag,  the Court subjected this interest to strict scrutiny. In doing so, the Court disposed that no precedent exists to support the notion that states are able to apply and uphold its own meaning of the flag by prohibiting expressive conduct relating to it. Moreover, the government could not attach and honor only one meaning of a symbol as this would constitute a content-based limitation. Thus, the statute was violative of the 1A and Respondent’s conviction was overturned.

This case stood for the proposition that:  “The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. It may not, however, proscribe particular conduct because it has expressive elements. . . .”

In this case, the Court considered the constitutionality of the federal Flag Act of 1989. Although it was written in broader terms than the statute at issue in Johnson, the Court nonetheless held that the interest of the Act remained the same, as such, it was still unconstitutional. Thus affirming that the purposeful suppression, i.e. regulation,  of expressive conduct out of concern for its communicative impact is constitutionally infirm, if the restriction on the expression cannot be “justified without reference to the content of the regulated speech.”

In this case, the statute at issue banned all public nudity, “regardless of whether that nudity [was] accompanied by expressive activity.” The Court found that the statute was constitutional because the legislature did not aim to suppress the expressive conduct, instead the legislature sought to prevent the harmful secondary effects of the conduct. Applying the OBrien standard, the Court upheld the statute and found that a content-neutral restriction aimed at preventing secondary harms of a given conduct is permissible.

At issue in this case was a general statute that required out of state membership organizations to disclose the names and addresses of their organizations’ members to the state. The Court considered whether under the DPC of the 14A, the state could compel members to produce such information about themselves without regard to their position in the organization. Here, the Court held that the statute placed too great of a burden on the organization’s members in light of the real possibility of reprisal. Moreover, the state’s interest was too attenuated to sustain the inhibition that the statute would place on petitioner’s right to associate and freedom of speech. The takeaway from this case is that where due process interests are threatened, the Court will employ strict scrutiny to determine the validity of the statute in question.

This case centered around the right to association. The respondent in this case, the Jaycees Organization, was an organization directed toward creating opportunities for young men to become leaders in the community. Here, the organization was being sued because its conduct was supposedly violative of a MN Human Rights statute that prohibited discrimination based on gender. The Court upheld the statute and disposed that it did not infringe on Jaycees’ right to associate because the state in no way inhibited Jaycees’ mission; the Court however, recognized that Jaycees’ mission could accomplished in a manner that was not discriminatory toward women. Thus demonstrating that statutes and/or conduct will be upheld where the burden on an individual’s rights, i.e. the right to association, is minor in relation to the states interest.

In this case, the Boy Scouts excluded Dale from their organization on the basis of his sexuality. Here, the Court had to consider whether the organization’s conduct was violative of a NJ statute that prohibited discrimination on such grounds, where the organization had a policy specifically against allowing gay individuals to join their organization. The Court decided that the statute, as applied to the Boy Scouts, was unconstitutional because the Court concluded that the organization partook in expressive association, and the acceptance of Dale into the organization would significantly burden that expression. The Court distinguished this case from Roberts where the inclusion of women into the organization would not have conflicted with any of the organizations’ principles, and again, found that allowing Dale into the organization would burden the organizations’ right to associate in a manner that outweighed the state's interest in erecting the anti-discrimination statute. Thus emphasizing that embedded in an organization’s right to associate is the right to exclude.

Here, the Court considered the constitutionality of a resolution that required teachers and students to engage in recitation of the pledge of allegiance within public schools. Those who did not comply with the resolution would be punished accordingly for insubordination. The Court decided that the resolution was unconstitutional and disposed that, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

In this case, the Court considered whether NH could constitutionally enforce criminal sanctions against individuals who covered the display of the state motto on their license plates. Here, the Court held that the statute was unconstitutional and found that, “where the State's interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual's First Amendment right to avoid becoming the courier for such message.” IOW - states cannot force individuals to subscribe to an ideological view that they do not support.

At issue in this case was a “right of reply” statute which required newspapers that criticized political candidates to allow those candidates the opportunity to respond to the criticism at the newspaper’s expense.  The Court disposed that the statute implicated two rights: (1) the right to silence; and (2) the right to speak. Also significant to the Court’s analysis was the fact that the right to reply was also both a content-based and viewpoint-based restriction –  this triggered a strict scrutiny review of the statute. The Court considered the goals that the lawmaker was trying to accomplish (equal functioning of the marketplace) but ultimately concluded that the statute contradicted the 1A and diminished the autonomy of the press. Thus, the statute was struck down.

At issue in this case was the fairness doctrine that required radio or television broadcasters that displayed an endorsement for one political candidate, to allow the opposing candidate to respond. The issue was the same as Tornillo, yet the Court upheld the statute as constitutional. The Court disposed that the distinguishing feature in this case was the expression of the scarcity doctrine – the gov’t controls who is granted a broadcasting license and as such, there are far fewer airways than there are newspapers. Moreover, the issue in the newspaper context turned mostly on financial discrepancies between who could afford to publish and who could not whereas in this context, the number of sources that can exist on an airway is capped irrespective of finances. For this reason, the Court employed rational basis review here.

At issue in this case was Sections 4 and 5 of the Cable Television Consumer Protection Act of 1992 which required cable television systems to devote a portion of their channels to the transmission of local broadcast television stations. The government instituted this act to ensure that local broadcasting stations did not go out of business. Here, the petitioners brought suit alleging that the requirement infringed on their right to silence and right to editorial discretion. In their analysis the Court employed an intermediate level of review because cable is different from radio and television in that it creates more channels so there is less scarcity. The government asserted that its important interest was in promoting diversity of viewpoints, and it follows that the limitation was both content-neutral and viewpoint-neutral. Under these considerations, the Court upheld the must carry provisions using the intermediate level of scrutiny.

In this case, the Court consolidated and considered the claims of individuals who objected to participation in the war based on their own religious beliefs in accordance with the definition of religion under the relevant statute. The statute at issue defined religion as, "an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, sociological, or philosophical views or a merely personal moral code." Here, although the individuals evoked this clause, they were convicted because their religious beliefs were not traceable to a specific faith. In this instance, the Court held that religion would constitute a sincere and meaningful belief. Therefore, we learned that under the constitutional jurisprudence of the United States, courts will never say something is or is not religion; all the Court will consider is the sincerity of one’s belief.

In this case, Kennedy was a football coach at a public school that would pray on the field at the middle line after the game and the players/coaches had shaken hands. Initially, Kennedy prayed alone until some students asked to pray with him. There was no evidence that the students felt compelled to pray just because they witnessed his prayer. Here, the Court does not repudiate the facts of the previous two cases but still distinguishes this case. In this case, the school was not establishing nor broadcasting the prayer in a manner that compelled participation. Therefore, the Court held that Kennedy had a private right under the free exercise clause to engage in the religious exercise he indulged in in this case. Note, the majority employed strict scrutiny thinking that this was a curtailment of the free exercise clause. The majority also tells us that the Lemon test invites chaos and substitutes the test to determining whether the Establishment Clause has been violated with a consideration of history and faithful reflection of the understanding of the founding fathers – “[T]he line” that courts and governments “must draw between the permissible and the impermissible” has to “accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.”