Constitutional Law — Weekly Outline

Week 1.2 — Introduction

I. “No Vehicles in the Park” & the Logic of Legal Interpretation

This famous hypothetical (often used by H.L.A. Hart and in constitutional seminars) highlights five interpretive problems:

Problem	Constitutional Doctrine Implicated	Redish-style Analysis
1. Vagueness	Due Process (5A/14A) – Void for Vagueness	No fair notice; fails procedural due process
2. No enforcement mechanism	Non-justiciability (no case or controversy); Delegation Doctrine	Unenforceable law = no standing = no case to interpret
3. No enforcement body assigned	Separation of powers problem? Possibly a delegation issue	Might suggest unconstitutional vagueness or improper delegation
4. Ambiguity across time	Originalism vs. Living Constitutionalism	Was “vehicle” intended to include drones? Strollers? Wheelchairs?
5. Lack of purpose statement	Legislative intent; purposivism vs textualism	What was the statute meant to do? Public safety or noise reduction?

II. Can SCOTUS Strike Down a Law for Vagueness Alone?

✅ Yes. Even if a law doesn’t violate a specific enumerated right (like speech or religion), it can be struck down for being so vague that it violates due process by:

• Failing to give fair notice
• Enabling arbitrary and discriminatory enforcement

Doctrine: Void for Vagueness

• Rooted in Procedural Due Process:
  • 5A (federal laws)
  • 14A (state laws)

Key Precedents:

Case	Holding	Justice Notes
Papachristou v. City of Jacksonville (1972)	Struck down vague vagrancy law	Douglas (majority): Vagueness enables police abuse
Kolender v. Lawson (1983)	Struck down ID law with vague terms	O’Connor (majority); Brennan concurrence: focused on arbitrary enforcement
FCC v. Fox (2012)	Indecency policy was vague	Kennedy: Due Process requires fair notice even in admin law
Sessions v. Dimaya (2018)	Vague deportation statute struck	Gorsuch sided with liberal wing; emphasized nondelegation + liberty
In Dimaya:

• Gorsuch (concur):
  • Reinforced nondelegation principles and rule of law.
  • Warned against the “ghastly power of the criminal law” in vague statutes.
• Thomas (dissent):
  • Argued the Court improperly applied vagueness to civil removal proceedings.
  • Criticized erosion of legislative discretion.

III. Can a Justice Unilaterally Strike a Law or Trigger Review?

❌ No — SCOTUS is fundamentally reactive.

• Cannot sua sponte strike down a law without:
  • A case or controversy (Article III)
  • A properly filed case reaching the Court via certiorari or appeal

However, justices have tools to encourage challenges:

Method	Details
Public Remarks / Dissents from Denial	Justices (e.g., Sotomayor) can issue dissents from denial of certiorari to draw attention to unjust laws
Emergency Docket	If a case is filed (e.g., by ACLU or NIJC), a justice can vote to place it on the emergency “shadow docket”
Amicus Signal	Justices may signal in prior opinions that a law is ripe for challenge
Law Clerk/Advocacy Backchannel	Though ethically delicate, justices can privately express skepticism of a law’s constitutionality, prompting action

IV. What if Someone Sues a Supreme Court Justice?

Technically possible, practically impossible.

• Absolute Immunity: Justices are immune from suit for official actions, per Stump v. Sparkman, 435 U.S. 349 (1978).
• A case cannot proceed to SCOTUS where a justice is a defendant, since it would present:
  • Recusal issues
  • Violation of separation of powers
  • Lack of neutral adjudicator
• So no, you can’t sue Sotomayor and expect the Court to rule on itself.

Courts do consider: “COULD the government do this?” They do NOT consider: “SHOULD the government do this?”

V. How to Read a Case Redish-Style

Step	Description	Mental Goal
1. First Read	Identify facts vs issues	Orient yourself: what is the fight about?
2. Second Pass	Divide into holding, logic, context	What rule of law was applied and how?
3. Justice-specific views	Identify majority, concurrence, dissent	Who said what, and why does it matter?
4. Analogies + Evolution	How did the Court reason by analogy? How did this case evolve law?	Legal thought is cumulative; identify shifts
5. Outcome Relevance	What changes in the law? Who wins? Why should I care?	Connect to broader themes (due process, equal protection, etc.)

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Week 2.1 — The State Action Doctrine

I. Constitutional Tests and State Action

Test	Standard of Review	Used When	Burden of Proof
Strict Scrutiny	Law must be narrowly tailored to serve a compelling government interest.	Applied to racial classifications or infringement on fundamental rights.	Government must justify the classification.
Intermediate Scrutiny	Law must further an important government interest in a way substantially related to that interest.	Gender and some quasi-suspect classifications.	Government must justify the classification.
Rational Basis	Law must be rationally related to a legitimate government interest.	All other cases not involving suspect classifications or fundamental rights.	Challenger must prove irrationality.

In practice, a private party’s conduct becomes “state action” if any one of these is true:

1. Legislative or regulatory: A government statute or regulation directly compels or authorizes the conduct.
2. Official actor: A government official, acting under color of law, participates in or enforces the conduct.
3. Public function / entanglement: The private party is (a) performing a function traditionally and exclusively done by the government, or (b) so entwined with the government (leases, licensing, subsidy, symbiosis) that its actions are fairly attributable to the State. The cases below sit along a spectrum of entanglement—from absolute state action (courts enforcing covenants) to clear non‑action (mere licensing).

• State action doctrine is a “conceptual disaster area” and theories about it are a “torch-less search for a way out of a damp echoing cave.”
• Any state enforcement or delegation of discriminatory practices violates the Constitution—regardless of whether the discrimination originated with the state or a private party.

1. Shelley v. Kraemer, 334 U.S. 1 (1948)

Facts?
 – Private homeowners’ association in St. Louis had racially restrictive covenants forbidding sale to “any person not of the Caucasian race.”
 – The Shelleys (Black) bought a house; neighbors (Kraemers) sued in state court to enforce the covenant.

Shelley’s argument?
 – Judicial enforcement of the covenant is “state action” under the Fourteenth Amendment’s Equal Protection Clause.

Kraemer’s argument?
 – Covenants are purely private agreements; enforcement by state courts is ministerial, not “action” under the Fourteenth Amendment.

Holding?
 – Yes: When a court enforces a racially discriminatory covenant, that enforcement is state action—and it violates Equal Protection.

Precedents the Court looked to?
 – Ex parte Virginia, 100 U.S. 339 (1880), on enforcing discrimination as state action;
 – The Civil Rights Cases, 109 U.S. 3 (1883), crafting the state‑action principle;
 – Early Equal Protection decisions on judicial enforcement.

Constitutional provisions?
 – Fourteenth Amendment, § 1 (“No State shall… deny to any person… equal protection of the laws.”)

Concurrences:

• Justice Murphy: Racial covenants are “inherently repugnant to the free society” and violate due process as well as equal protection.
• Justice Jackson: Emphasized that a judicial decree—even to effect a private contract—transforms that contract into state action.
• Justice Burton: Focused on the enforcement machinery itself: “the state cannot be a party to a private wrong.”

Dissents:
– None. (Unanimous in outcome; three separate concurrences.)

2. Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)

Facts?
 – A municipally owned parking authority leased ground‑floor space to the Eagle Coffee Shop, which refused service to James Irvis, an African‑American.

Irvis’s argument?
 – The close financial and structural “symbiosis” between the Parking Authority and the restaurant makes the restaurant’s conduct state action under Equal Protection.

Authority’s/Restaurant’s argument?
 – The restaurant is privately owned; discrimination in its seating policy is private, not attributable to the State.

Holding?
 – Yes: Because the Authority granted exclusive lease, provided utilities, and shared profits, the restaurant’s discriminatory policy is fairly attributable to the State.

Precedents the Court looked to?
 – Marsh v. Alabama (326 U.S. 501 (1946))—private company town held state action;
 – Shelley v. Kraemer—judicial enforcement as state action.

Constitutional provisions?
 – Fourteenth Amendment, § 1 (“No State shall… deny… equal protection.”)

Concurrences:

• Justice Brennan: Highlighted the Authority’s tax exemptions and liability protection as further entangling the public and private actors.

Dissents:
– None. (Unanimous decision; one concurrence.)

3. Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972)

Facts?
 – Moose Lodge, a private fraternal organization in Pennsylvania, excluded Black members. Plaintiff Irvis was denied a drink. The State requires all liquor‑license applicants—public or private—to obtain a state permit.

Irvis’s argument?
 – That state licensing of all establishments, including Moose Lodge, creates sufficient state action to invoke Equal Protection.

Moose Lodge’s argument?
 – Licensing is a neutral, general regulation; membership and service policies remain purely private choices.

Holding?
 – No: A mere state license, without more direct regulation or support, does not make private discrimination “state action.”

Precedents the Court looked to?
 – Burton v. Wilmington—symbiotic entanglement test;
 – Marsh v. Alabama—public function test;
 – Shelley v. Kraemer—enforcement as action.

Constitutional provisions?
 – Fourteenth Amendment, § 1.

Concurrences:

• Justice Stewart: Argued that licensing is too attenuated—“a mere state permit” doesn’t transform private choice into official conduct.

Dissents:

• Justice Brennan (joined by Justice Marshall & Justice Douglas): Maintained that the state’s power to revoke the license and the regulatory benefits conferred create enough entanglement to treat Moose Lodge’s discrimination as state action.

II. State Action Doctrine: Four Main Tests

Test Name	Rule / Legal Standard	Key Cases	Limitations
1. Public Function Test	A private party is a state actor only if performing a function traditionally and exclusively done by the state.	🔹 Marsh v. Alabama (1946) — Company town with public sidewalks 🔹 E.g., elections, prisons	🛑 Fails if the function is not exclusively public. Education, hospitals, even policing ≠ always enough.
2. Entanglement / Symbiotic Test	State action exists where the government is significantly involved, encourages, or benefits from private conduct.	🔹 Burton v. Wilmington PA (1961) — State-owned garage leasing to racist coffee shop 🔹 Moose Lodge (1972) — License ≠ entanglement	🛑 Mere regulation, licensing, or funding ≠ sufficient. Must be mutual, operational integration.
3. State Compulsion Test	State action occurs when the government coerces, mandates, or enforces the private conduct.	🔹 Shelley v. Kraemer (1948) — Court enforcement of racist covenant = state action 🔹 Utility termination orders	🛑 No state action if the private decision was made independently, without coercion or mandate.
4. Nexus / Close Relationship Test	If there’s a close connection such that the private action is fairly attributable to the state, it counts as state action.	🔹 Lugar v. Edmondson Oil (1982) — State-aided seizure of property by creditor	🛑 Vague test; courts rarely apply it without concrete state involvement (e.g., use of courts or police power).

III. Additional Notes

Analogy — First Amendment Freedom of Association:

• Private parade/assembly: If organized entirely by private individuals (no state sponsorship, no permit conditions), the organizer may exclude on any basis (race, gender, ideology) without running afoul of the First or Fourteenth Amendments.

• State involvement test: If the parade uses public streets under a state‑issued permit that conditions non‑discrimination, or if the organizer receives special government funding, then exclusion may be state action and trigger strict scrutiny (e.g., NAACP v. Claiborne Hardware analogies).

• Burton stands for the principle that public-private partnerships come with constitutional baggage. If a government agency creates an appearance of unity with a private actor—physically (shared doors), financially (shared rent/utilities), or operationally (shared public services)—then the private actor inherits the state’s constitutional obligations.

• The Court doesn’t require ==actual knowledge or direct control==—just that the state put itself in a position where discrimination could flourish on public grounds. The closer the physical and economic entanglement, the heavier the constitutional burden.

• Four people in my house:

  • Common-sense skepticism: if I rent out part of my house, am I suddenly responsible for guests’ actions?
  • The answer is: only if you’re the state.

• Distinction between Burton and Moose Lodge:

  • In Moose Lodge, the Court narrows the concept of entanglement. Merely having a state liquor license is not enough to make a private club’s actions state action under the Fourteenth Amendment.
  • The distinction hinges on mutual benefit and integration:
    • In Burton, the state and the lessee were symbiotically linked—sharing profits, facilities, and utilities.
    • In Moose Lodge, the state’s involvement was general and regulatory, not specific or supportive of the discriminatory practice.

Always map: (1) Who is acting? (2) Under what authority or support? (3) **What constitutional guarantee is at stake?

Using IRAC when analyzing a state action question:

• Issue: Is the private party’s conduct subject to constitutional limits?
• Rule: Apply all four tests.
• Application: Go through each one based on the facts.
• Conclusion: State action only if one of these tests is met.

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Week 2.2 — The Due Process Clause and Fundamental Rights

I. The Countermajoritarian Judiciary

Question	Underlying Tension
When should courts override legislative action?	When a constitutional limitation—especially one involving fundamental rights or suspect classifications—is at stake.
When should courts defer?	When the issue falls into political questions, economic regulation, or rational basis review—i.e., majoritarian domain.
Why allow unelected judges to overrule democratic will?	To protect minorities, prevent tyranny of the majority, and enforce constitutional structure and rights that aren’t subject to vote.
What is the difference between law and doctrine?	Law is enacted by legislatures and binding through statutes. Doctrine is judge-made—rules created to interpret the Constitution or statutes.

When Does the Court “Create” New Rules?

Action by the Court	Example Cases	Type of Judicial Behavior
Invents or expands rights	Griswold, Roe, Lawrence, Obergefell	Judicial Activism (criticized by originalists)
Clarifies existing doctrines	Glucksberg, Casey	Judicial Restraint or minimalism
Creates enforcement doctrines	Miranda, Gideon, Shelley	Doctrinal necessity (process creation)

Judicial Doctrine vs. Legislative Law

• Legislative law is explicit, prospective, and subject to democratic checks.
• Judicial doctrine is interpretive, precedential, and can look like “law about law.”
• It can be passive (just choosing a framework like tiers of scrutiny), or activist (declaring new rights or rules).
• The legitimacy of doctrine depends on whether courts are interpreting, applying, or inventing principles.

🧠 The real balance question is:
“When does doctrine preserve the Constitution, and when does it usurp democracy?”

II. Due Process & Fundamental Rights

The Due Process Clause (5th and 14th Amendments) guarantees more than procedural fairness—it also protects certain substantive liberties from government interference, even with “due process.”

💬 “Liberty” = Certain interests so central to autonomy and dignity that government can’t infringe them without extraordinary justification. 🛑 But: Rights are not absolute. A “fundamental” right triggers scrutiny, not immunity. Rights are always context and extent dependent.

• When courts recognize a new right, they remove it from democratic politics—they’re saying, “You can no longer vote to restrict this.”
• That’s why due process rights are mostly negative: they block the government from doing things, rather than requiring it to affirmatively provide things (e.g., housing, health care).

Substantive Due Process Doctrine

• Refer to the earlier table detailing three levels of scrutiny

Key Case: Washington v. Glucksberg (1997)

• Facts: Washington state banned physician-assisted suicide. Plaintiffs claimed the ban violated a constitutional liberty interest in controlling one’s death.
• Issue: Does the Due Process Clause protect the right to physician-assisted suicide?
• Holding (Chief Justice Rehnquist, Majority): No. The right to assisted suicide is not a fundamental liberty interest protected by the Constitution.
• Reasoning:
  1. Two-step test for new fundamental rights:
     • (1) Is the right deeply rooted in the Nation’s history and tradition?
     • (2) Is it implicit in the concept of ordered liberty?
  2. The Court emphasized judicial restraint:
     • Warned against expanding substantive due process without historical foundation.
     • Framed itself as deferring to democratic debate and state experimentation.

“The mere novelty of such a claim is reason enough to doubt that ‘liberty’ encompasses it.”

• Concurring Opinions:

Justice	View
O’Connor (concurring)	Emphasized importance of palliative care and autonomy, but stopped short of declaring a constitutional right to die.
Stevens (concurring)	Suggested that under certain facts, such a right might exist, but voted with the majority.
Souter (concurring)	Warned about judicial minimalism becoming too rigid, but agreed with historical approach.

Partial List of Recognized Fundamental Rights (Substantive Due Process):

Category	Examples	Key Cases
Marriage & Family	Marry (Loving v. Virginia), control child education (Pierce v. Society of Sisters), contraception (Griswold)	Loving, Griswold, Meyer, Pierce, Troxel
Bodily Autonomy	Refuse medical treatment, ==abortion (limited)==	Cruzan, Casey, Roe, Whole Woman’s Health
Privacy & Intimacy	Sexual conduct, contraception, family choices	Lawrence v. Texas, Griswold, Obergefell
Travel & Residence	Move freely among states	Shapiro v. Thompson, Saenz v. Roe
Access to Courts	Especially in criminal and family law settings	Boddie v. Connecticut
Parental Rights	Raise children without undue interference	Troxel v. Granville

Types of Due Process:

Type	Core Question	Focus	Example
Procedural Due Process	Were fair procedures used before depriving life, liberty, or property?	Notice, hearing, opportunity to respond	A hearing before terminating benefits
Substantive Due Process	Did the government have a good enough reason to infringe a right or liberty?	Whether the law itself is justifiable	Abortion, marriage, parenting rights

Erwin Cheminsky — Against Judicial Activism:

• Substantive due process is one of the most controversial and contested right in the entire American legal system.
• Substantive due process is not textually grounded—it interprets “liberty” expansively.
• Critics: It’s a “judicial invention,” inviting activism.
• Supporters: It’s essential to protect unenumerated but fundamental rights from majoritarian overreach.

1. Lochner v. New York, 198 U.S. 45 (1905)

Facts?
– A New York law limited bakers to working no more than 60 hours per week or 10 hours per day. A bakery owner was fined for violating it.

Lochner’s argument?
– The law violated his and his workers’ liberty of contract, protected by the Due Process Clause of the Fourteenth Amendment.

New York’s argument?
– The law served the public interest by protecting the health and safety of bakers, a legitimate exercise of the state’s police powers.

Holding?
– Yes: The Court struck down the law, holding that it unreasonably interfered with freedom of contract.

Precedents the Court looked to?
– Earlier substantive due process and economic liberty cases, though the Court heavily relied on its own balancing of liberty vs. police power.

Constitutional provisions?
– Fourteenth Amendment, Due Process Clause (substantive interpretation).

Liberty interest?
– Right to enter into employment contracts without excessive state interference.

State action?
– New York labor statute limiting work hours.

Level of scrutiny?
– Not formally articulated, but effectively strict scrutiny for economic liberty.

Significance?
– A hallmark of the Lochner era, where the Court used substantive due process to strike down economic regulations. Later heavily criticized as judicial overreach and overturned in spirit by West Coast Hotel.

2. Meyer v. Nebraska, 262 U.S. 390 (1923)

Facts?
– Nebraska law prohibited teaching modern foreign languages (like German) to students before 8th grade. Meyer, a teacher, taught German to a student and was convicted.

Meyer’s argument?
– The law violated his and the parent’s liberty under the Fourteenth Amendment, including the rights to teach, learn, and direct a child’s education.

Nebraska’s argument?
– The law served the public welfare by promoting civic unity and English literacy in post-WWI America.

Holding?
– Yes: The Court struck down the law as an arbitrary interference with individual liberty.

Precedents the Court looked to?
– Early substantive due process decisions and common-law traditions of parental rights and personal liberty.

Constitutional provisions?
– Fourteenth Amendment, Due Process Clause.

Liberty interest?
– Rights of parents to control their children’s education; right of individuals to teach and learn.

State action?
– State statute restricting curriculum content in private schools.

Level of scrutiny?
– Not formally tiered, but applied a heightened (quasi-strict) scrutiny based on liberty interference.

Significance?
– Expanded substantive due process beyond economics to include cultural and educational autonomy. Helped lay groundwork for later privacy and parental rights cases.

3. Williamson v. Lee Optical, 348 U.S. 483 (1955)

Facts?
– Oklahoma law made it illegal for opticians to fit lenses without a prescription from an ophthalmologist or optometrist. A business challenged the law as irrational.

Williamson’s argument?
– The law was economically protectionist and served no rational purpose, thus violating the Due Process Clause.

State’s argument?
– The law could promote public eye health, even if indirectly, and the legislature has wide discretion to regulate professions.

Holding?
– No: The Court upheld the law, even if it was “needless” or “wasteful,” because it met the rational basis test.

Precedents the Court looked to?
– Post-Lochner cases like Nebbia v. New York (1934) and West Coast Hotel that upheld economic regulations.

Constitutional provisions?
– Fourteenth Amendment, Due Process Clause.

Liberty interest?
– Economic liberty: the right to operate a business without arbitrary regulation.

State action?
– State regulation governing optician practices.

Level of scrutiny?
– Rational basis—law presumed valid if any conceivable purpose exists.

Significance?
– Cemented judicial deference to economic regulation, marking a full rejection of Lochner-era activism. The law does not have to be wise—just not irrational.

4. Aptheker v. Secretary of State, 378 U.S. 500 (1964)

Facts?
– Under the Subversive Activities Control Act, the Secretary of State denied passports to members of the Communist Party. Aptheker, a U.S. citizen and party official, was barred from foreign travel.

Aptheker’s argument?
– The passport denial violated his liberty to travel internationally under the Due Process Clause, and it was an overbroad infringement based on guilt by association.

Government’s argument?
– National security justified restricting travel by individuals associated with subversive organizations.

Holding?
– Yes: The statute was facially unconstitutional because it swept too broadly, applying to all party members regardless of their individual conduct.

Precedents the Court looked to?
– Kent v. Dulles (1958) on the right to travel; First and Fifth Amendment associational and liberty protections.

Constitutional provisions?
– Fifth Amendment Due Process Clause, with implications from the First Amendment’s freedom of association.

Liberty interest?
– Right to international travel and freedom of political association.

State action?
– Federal statute enforced by executive agency (State Department).

Level of scrutiny?
– Effectively heightened scrutiny—not labeled “strict,” but Court looked for tailoring to compelling interest.

Significance?
– Reaffirmed that liberty interests can’t be infringed by overly broad laws, especially where associational rights are implicated. Imposed limits on executive power in national security contexts.

5. (Bonus) West Coast Hotel v. Parrish, 300 U.S. 379 (1937)

Facts?
– A Washington state minimum wage law for women was challenged by a hotel owner who claimed it violated freedom of contract.

Parrish’s argument?
– The law served the public interest and addressed harmful labor practices; economic liberty was not absolute.

Hotel’s argument?
– The law infringed on the employer’s and employee’s freedom of contract, violating due process.

Holding?
– No: The Court upheld the law, explicitly rejecting the Lochner approach.

Precedents the Court looked to?
– Overruled Lochner implicitly; relied on Nebbia v. New York (1934).

Constitutional provisions?
– Fourteenth Amendment Due Process Clause.

Liberty interest?
– Economic liberty: right to negotiate wages.

State action?
– State labor law mandating minimum wages.

Level of scrutiny?
– Rational basis—deferential review of economic legislation.

Significance?
– Marked the end of the Lochner era, launching the modern doctrine of deference to legislatures in economic regulation.

III. Case Notes

Feature	Lochner	Lee Optical
Era	1905 (Lochner era)	1955 (New Deal/post-Lochner era)
Liberty at Stake	Economic liberty (freedom of contract)	Economic regulation (optical practices)
Outcome	Law struck down	Law upheld
Judicial Attitude	Activist protection of economic rights	Deferential to legislative judgment
Scrutiny Applied	Strict/substantive protection	Rational basis

Stare Decisis Standards:

Factor	Meaning
Workability	Has the precedent proven unmanageable?
Reliance	Have people or institutions relied on it?
Doctrinal Shift	Has the law around it changed significantly?
Changed Facts	Has society evolved so that the factual basis of the decision is obsolete?

Strengths and Weaknesses of a Judicial Argument:

• Because legal reasoning often operates inside a closed system, using elegant logic to argue over absurd premises.

Feature	Strength	Weakness
Precision	Allows detailed, technical reasoning	Often misses the forest for the trees
Doctrine-based	Creates structured debate	Ignores moral/emotional common sense
Historical continuity	Builds on precedent and tradition	Traps society in outdated norms
Adversarial thinking	Sharpens analysis	Encourages tribalism, not truth

IV. Additional Analogy on Free Speech (From CRS)

Freedom of speech includes the right:

• Not to speak (specifically, the right not to salute the flag).
  West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
• Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”).
  Tinker v. Des Moines, 393 U.S. 503 (1969).
• To use certain offensive words and phrases to convey political messages.
  Cohen v. California, 403 U.S. 15 (1971).
• To contribute money (under certain circumstances) to political campaigns.
  Buckley v. Valeo, 424 U.S. 1 (1976).
• To advertise commercial products and professional services (with some restrictions).
  Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976); Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
• To engage in symbolic speech, (e.g., burning the flag in protest).
  Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).

Freedom of speech does not include the right:

• To incite imminent lawless action.
  Brandenburg v. Ohio, 395 U.S. 444 (1969).
• To make or distribute obscene materials.
  Roth v. United States, 354 U.S. 476 (1957).
• To burn draft cards as an anti-war protest.
  United States v. O’Brien, 391 U.S. 367 (1968).
• To permit students to print articles in a school newspaper over the objections of the school administration. 
  Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
• Of students to make an obscene speech at a school-sponsored event.
  Bethel School District #43 v. Fraser, 478 U.S. 675 (1986).
• Of students to advocate illegal drug use at a school-sponsored event.
  _Morse v. Frederick, __ U.S. ___ (2007).

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Week 3.1 — Bodily Autonomy

Fundamental Right to Privacy → Contraception and Bodily Autonomy

The Constitution protects zones of personal autonomy—particularly concerning marriage, sex, procreation, family, and bodily integrity—under a doctrine of substantive due process.

1. Griswold v. Connecticut, 381 U.S. 479 (1965)

Facts?
– Connecticut criminalized the use of contraceptives, even by married couples. Estelle Griswold, Director of Planned Parenthood, was convicted for providing them.

Griswold’s argument?
– The law violated the right to privacy in marital relations. Cited Skinner v. Oklahoma (1942): marriage and procreation are fundamental to liberty.

Connecticut’s argument?
– The statute protected public morality, discouraging premarital sex and preserving social norms.

Holding?
– Yes: The law was unconstitutional. The Court held that marital privacy is a protected liberty, found in the “penumbras” of specific Bill of Rights guarantees.

Precedents the Court looked to?
– Skinner, Meyer, Pierce, and selective incorporation doctrine.

Constitutional provisions?
– Majority (Douglas): Privacy comes from 1st, 3rd, 4th, 5th, and 9th Amendments. Not due process.

Liberty interest?
– Right of marital privacy in intimate decisions about contraception.

State action?
– Connecticut’s criminal statute punishing use and counseling of contraceptives.

Level of scrutiny?
– Implicitly strict scrutiny—though no tiered language yet.

Concurring opinions:

• Goldberg: Relied on 9th Amendment, “retained rights” of the people.
• Harlan: Located privacy in the 14th Amendment’s Due Process Clause, rooted in tradition and ordered liberty.
• White: Saw no compelling interest justifying intrusion into intimate decisions. Applied substantive due process.

Dissents:

• Black: Warned against judicial overreach. No textual “right to privacy.”
• Stewart: Called the law “uncommonly silly” but constitutionally valid.

Significance?
– Created the modern right to privacy, forming the basis for later decisions on contraception, abortion, sexuality, and family life. Redefined how courts identify unenumerated rights.

2. Roe v. Wade, 410 U.S. 113 (1973)

Facts?
– Texas banned abortion except to save the mother’s life. Jane Roe (a pseudonym) challenged the law as unconstitutional.

Roe’s argument?
– The abortion ban violated her right to privacy and bodily autonomy, grounded in substantive due process.

Texas’s argument?
– Asserted three compelling interests:

1. Moral preservation
2. Protection of potential life
3. Maternal health and medical integrity

Holding?
– Yes: The Court struck down the ban, recognizing abortion as a fundamental right under the liberty component of the 14th Amendment Due Process Clause.

Precedents the Court looked to?
– Griswold, Eisenstadt v. Baird, Skinner, Meyer, Pierce.

Constitutional provisions?
– Fourteenth Amendment, Due Process Clause.

Liberty interest?
– Right to terminate a pregnancy as part of personal bodily autonomy and family life.

State action?
– Texas criminal abortion statute.

Level of scrutiny?
– Strict scrutiny: State must show compelling interest and narrow tailoring.

Trimester Framework (created by the Court):

• 1st trimester: State has no interest to interfere.
• 2nd trimester: State may regulate for maternal health.
• 3rd trimester: State may regulate or prohibit abortion, except when mother’s life/health is at risk.

Significance?
– Roe defined abortion as a constitutional right and shaped 50 years of reproductive law. Created a sweeping judicial doctrine, yet also provoked intense backlash for being doctrinally ambitious.

3. Planned Parenthood v. Casey, 505 U.S. 833 (1992)

Facts?
– Pennsylvania law imposed restrictions on abortion: informed consent, 24-hour waiting period, parental consent for minors, and spousal notification.

Planned Parenthood’s argument?
– These requirements unduly burdened the right to choose abortion, violating Roe.

Pennsylvania’s argument?
– Claimed the law supported informed decision-making and respect for fetal life.

Holding?
– Yes and No: Roe was reaffirmed, but the trimester framework was replaced. The Court upheld most provisions except the spousal notification, which it deemed an undue burden.

Precedents the Court looked to?
– Roe, Akron v. Akron Center for Reproductive Health, Thornburgh.

Constitutional provisions?
– Fourteenth Amendment Due Process Clause.

Liberty interest?
– Right to abortion as part of bodily autonomy and personal decision-making.

State action?
– Pennsylvania’s abortion regulation statute.

Level of scrutiny?
– INTRODUCED the Undue Burden Test to REPLACE Strict Scrutiny: A law is unconstitutional if it places a substantial obstacle in the path of a woman seeking an abortion before fetal viability.

Joint opinion (O’Connor, Kennedy, Souter):
– Reaffirmed Roe’s “essential holding” on the constitutional right, but retreated from strict scrutiny in favor of functional burden analysis.
– Emphasized stare decisis: Legal stability matters even amid controversy.

Significance?
– Casey preserved abortion rights but narrowed them. It institutionalized the “undue burden” standard, which would be pivotal in future litigation.

4. Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___ (2022)

Facts?
– Mississippi law banned abortions after 15 weeks, directly challenging the viability line of Roe and Casey.

Jackson Women’s argument?
– The law was clearly unconstitutional under Casey, which protected pre-viability abortion access.

Mississippi’s argument?
– Urged the Court to overrule Roe and Casey, arguing abortion is not a deeply rooted right and should be left to the states.

Holding?
– No constitutional right to abortion. Both Roe and Casey were overruled. The Court returned authority to the states.

Precedents the Court overruled?
– Explicitly overruled Roe v. Wade and Planned Parenthood v. Casey.

Constitutional provisions?
– Fourteenth Amendment does not protect abortion, majority says.

Liberty interest?
– Not recognized. Court said abortion is not deeply rooted in American tradition or history.

State action?
– Mississippi statute banning abortion after 15 weeks.

Level of scrutiny?
– Rational basis review now applies to abortion laws.

Majority (Alito):
– Denounced Roe as “egregiously wrong from the start.”
– Rejected substantive due process for unenumerated rights not rooted in history and tradition.

Concurring (Thomas):
– Suggested reconsidering other substantive due process precedents (Griswold, Lawrence, Obergefell).

Dissent (Breyer, Sotomayor, Kagan):
– Condemned the majority for destroying a liberty central to women’s autonomy and equality.

Significance?
– Most radical rollback of a constitutional right in modern history. Reignited the abortion-rights political fight and redefined the limits of substantive due process.

5. Skinner v. Oklahoma, 316 U.S. 535 (1942) — Bonus Case

Facts?
– Oklahoma’s Habitual Criminal Sterilization Act allowed forced sterilization of certain repeat offenders. Jack Skinner was ordered sterilized after three theft convictions.

Skinner’s argument?
– The law violated his equal protection and infringed a fundamental liberty: the right to procreate.

Oklahoma’s argument?
– Argued sterilization served eugenic goals and targeted only certain “degenerate” traits.

Holding?
– Yes: The law was struck down. Procreation is a fundamental right, and the law’s arbitrary targeting of some crimes (but not white-collar crimes) violated equal protection.

Precedents the Court looked to?
– Buck v. Bell (1927)—implicitly retreated from it without overruling.

Constitutional provisions?
– Fourteenth Amendment Equal Protection Clause, with liberty implications.

Liberty interest?
– Fundamental right to procreate, as part of human dignity and autonomy.

State action?
– Oklahoma’s criminal sterilization statute.

Level of scrutiny?
– Not named, but effectively strict scrutiny due to fundamental right.

Significance?
– Laid the groundwork for privacy, reproductive rights, and later substantive due process jurisprudence (Griswold, Roe). First explicit recognition that bodily autonomy and reproduction are fundamental constitutional concerns.

I. Case Notes

1. Application of Stare Decisis in Abortion Cases:

Stare Decisis Factor	Meaning	Application in Casey / Dobbs
Workability	Is the precedent administrable and logically coherent?	Casey said Roe’s trimester framework wasn’t workable, but its core liberty holding was.
Reliance Interests	Have people built their lives and expectations around the decision?	Casey emphasized this for women and society. Dobbs dismissed it as speculative.
Doctrinal Coherence	Is the precedent consistent with the rest of constitutional doctrine?	Dobbs said Roe/Casey were outliers in substantive due process.
Changed Facts	Have underlying social or scientific circumstances changed in a way that makes the precedent obsolete?	Dobbs claimed medical advances justified new viability standards and state interest arguments.

2. Pros and Cons of Substantive Due Process and Bodily Autonomy:

Theme	Proponents Say…	Critics Say…
Substantive Due Process	Essential to protect unenumerated but deeply personal rights from political interference.	Vague, historically ungrounded, allows courts to act like unelected moral legislators.
Right to Privacy	Flows from a zone created by the penumbras of multiple Amendments (Griswold), later housed in due process.	No explicit right to privacy in the Constitution—makes it hard to cabin judicial power.
Bodily Autonomy (Roe/Casey)	Reproductive freedom is central to liberty, equality, and personal dignity.	The Constitution says nothing about abortion; should be returned to state legislatures (Dobbs view).
Court’s Anti-Majoritarian Role	Protects individuals and minorities from popular tyranny.	Undermines democracy and public accountability when based on vague or moral reasoning.

3. Key Distinction between Strict Scrutiny and Undue Burden:

Strict Scrutiny	Undue Burden Test
State must prove law is narrowly tailored to a compelling interest	Law is invalid only if it places a substantial obstacle in the path of a person seeking an abortion before viability
Extremely hard for state to win	Much easier for state to justify regulation
Used in Roe v. Wade	Created in Casey and applied to all post-viability abortion cases afterward
Treats abortion like a fundamental right	Treats abortion as a protected liberty, but with less robust protection than other fundamental rights

Casey downgraded the level of judicial protection for abortion—not reversing Roe, but weakening it.

4. Why the hell is Planned Parenthood involved in everything?

Because they are:

• One of the most prominent providers of abortion services in the U.S.
• Constantly targeted by state laws trying to regulate or restrict abortion access
• Legally aggressive—willing to sue states the moment they pass a restrictive law

Think of them as:

The NAACP Legal Defense Fund of reproductive rights: always in court, always fighting the cutting edge of the issue, always the named plaintiff.

That’s why you see:

• Planned Parenthood v. Danforth (1976)
• Planned Parenthood v. Casey (1992)
• Planned Parenthood v. A, B, C… in dozens of federal and state court

XX. Additional Cases

1. Eisenstadt v. Baird, 405 U.S. 438 (1972)

Facts?
– William Baird was convicted under Massachusetts law for giving contraception to an unmarried woman. The law allowed contraception only for married couples.

Baird’s argument?
– The law violated Equal Protection by discriminating between married and unmarried people in access to contraceptives.

Massachusetts’s argument?
– Argued it was justified by morality-based regulation of nonmarital sexual behavior.

Holding?
– Yes: The law was unconstitutional. The Court extended Griswold’s privacy protection to unmarried individuals.

Precedents the Court looked to?
– Griswold v. Connecticut, emerging privacy and equality precedents.

Constitutional provisions?
– Equal Protection Clause of the Fourteenth Amendment (majority); privacy doctrine also reinforced.

Liberty interest?
– Right of individuals, not just married couples, to access contraception and control reproductive decisions.

State action?
– State criminal statute restricting contraceptive distribution.

Level of scrutiny?
– No formal tier, but heightened scrutiny implied.

Significance?
– Cemented individual privacy and reproductive autonomy. Built the foundation for recognizing abortion as a private, personal right.

2. Pierce v. Society of Sisters, 268 U.S. 510 (1925)

Facts?
– Oregon law mandated all children attend public schools, effectively banning private religious schooling. The Society of Sisters, a Catholic organization, sued.

Society’s argument?
– The law violated parents’ right to control their children’s upbringing and education.

Oregon’s argument?
– The state had an interest in promoting standardized civic education through public schools.

Holding?
– Yes: The Court struck down the law, affirming the liberty of parents to choose religious and private schooling.

Precedents the Court looked to?
– Meyer v. Nebraska, natural rights of family life.

Constitutional provisions?
– Fourteenth Amendment Due Process Clause.

Liberty interest?
– Parental autonomy in directing children’s education and moral development.

State action?
– Compulsory education law mandating exclusive public schooling.

Level of scrutiny?
– No tiered language, but effectively strict scrutiny due to fundamental right.

Significance?
– Established that personal and family life decisions fall within the realm of protected liberty, foundational to later privacy cases like Griswold and Casey.

3. Stenberg v. Carhart, 530 U.S. 914 (2000)

Facts?
– Nebraska banned a broadly defined “partial-birth abortion” procedure (D&E), with no health exception.

Carhart’s argument?
– The law was vague, covered common procedures, and lacked a health exception required under Casey and Roe.

Nebraska’s argument?
– Claimed a compelling interest in banning a “gruesome” method of abortion and preserving fetal dignity.

Holding?
– Yes: The Court struck down the law. It imposed an undue burden and was constitutionally vague.

Precedents the Court looked to?
– Casey, Roe, Doe v. Bolton.

Constitutional provisions?
– Fourteenth Amendment Due Process Clause.

Liberty interest?
– Right to choose safe, legal, and medically appropriate abortion options.

State action?
– Criminal statute banning abortion method without exception for health.

Level of scrutiny?
– Undue burden test applied; vagueness doctrine also used.

Significance?
– Reinforced abortion access must include medical discretion and health exceptions, even as public and legislative attacks intensified.

4. Gonzales v. Carhart, 550 U.S. 124 (2007)

Facts?
– The federal Partial-Birth Abortion Ban Act banned the same procedures at issue in Stenberg, but with more specific definitions. Still no health exception.

Carhart’s argument?
– The ban was functionally identical to the one struck down in Stenberg and placed an undue burden on women.

Government’s argument?
– The statute was narrower, provided clearer guidance, and protected women and fetal dignity. Congress determined women could suffer psychological harm.

Holding?
– No violation: The Court upheld the law, shifting away from Stenberg and reducing medical deference.

Precedents the Court looked to?
– Cited Casey, but reinterpreted it narrowly. Distinguished from Stenberg on definitional grounds.

Constitutional provisions?
– Fourteenth Amendment Due Process Clause—but now applied with more deference to legislative findings.

Liberty interest?
– Diminished—Court emphasized state’s interest in protecting women and fetal life.

State action?
– Federal statute banning specified abortion method.

Level of scrutiny?
– Undue burden test, but more deferential—suggesting a weakened form of scrutiny.

Significance?
– Marked a doctrinal shift: Court was now more willing to uphold restrictive abortion laws, especially under Roberts/Alito Court. Justice Ginsburg dissented forcefully:

“Reflects ancient notions about women’s place… ideas long discredited.”

5. Doe v. Bolton, 410 U.S. 179 (1973) — Roe’s Companion Case

Facts?
– Georgia law required multiple procedural barriers to abortion (hospital committees, multiple doctors, etc.) and narrowly defined “health” exceptions.

Doe’s argument?
– The law’s health restriction and procedural hurdles violated liberty and privacy rights protected under Roe.

Georgia’s argument?
– Sought to regulate abortion for safety and protect medical ethics.

Holding?
– Yes: The law was struck down. The Court broadly defined “health”, ruling it must include:

“All factors—physical, emotional, psychological, familial, and the woman’s age…”

Precedents the Court looked to?
– Roe v. Wade, Griswold, Casey (retroactively cited in later cases).

Constitutional provisions?
– Fourteenth Amendment Due Process Clause.

Liberty interest?
– Right to abortion access with comprehensive medical discretion.

State action?
– Georgia’s procedural abortion restrictions and narrow health definition.

Level of scrutiny?
– Strict scrutiny at the time, consistent with Roe’s framework.

Significance?
– Defined the “health exception” standard still cited in later litigation. Courts would wrestle over whether this included mental and social well-being, or only physical survival.

6. **Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976)

Facts?
– Missouri enacted a law requiring spousal and parental consent for abortions, banned certain procedures (e.g., saline amniocentesis), and demanded physicians preserve the life of the fetus at all stages.

Petitioner’s argument?
– The law violated a woman’s fundamental right to abortion, as recognized in Roe, by giving third parties veto power over her personal decision.

Missouri’s argument?
– Claimed an interest in protecting fetal life, promoting parental involvement, and preserving marital interests in family decisions.

Issue?
– Whether spousal/parental consent laws and method bans violate the constitutional right to abortion under Roe v. Wade.

Holding?
– Yes:

• Spousal consent requirement = unconstitutional.
• Parental consent for minors = struck down (as written, because it gave parents an absolute veto).
• Ban on saline method = invalid.
• Physician’s duty to preserve fetal life at all stages = overbroad and unconstitutional.

Precedents the Court looked to?
– Roe v. Wade, Doe v. Bolton.

Constitutional provisions?
– Fourteenth Amendment Due Process Clause (substantive liberty).

Liberty interest?
– A woman’s personal and medical autonomy in making abortion decisions, free from unjustified third-party interference.

Level of scrutiny?
– Applied strict scrutiny consistent with Roe.

Significance?
– Reaffirmed that the abortion decision rests with the pregnant person, not the spouse or parents. State cannot use procedural gatekeeping to undermine constitutional liberty.

7. **City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983)

Facts?
– Akron passed a law requiring:

• A 24-hour waiting period after receiving state-mandated anti-abortion counseling.
• That all abortions after the first trimester be performed in hospitals (not clinics).
• Parental consent for minors without judicial bypass.
• Special regulations on fetal disposal.

Clinic’s argument?
– These provisions were designed not to promote safety, but to deter abortion, violating the substantive due process rights recognized in Roe.

Akron’s argument?
– Claimed the requirements promoted informed decision-making, protect fetal life, and ensure safety and professionalism.

Issue?
– Whether these procedural and physical burdens on abortion access were consistent with Roe’s protections.

Holding?
– Yes, the law was unconstitutional:

• 24-hour delay = invalid, as it served no compelling interest and created obstacles.
• Hospital-only rule = struck down; clinics are often medically sufficient.
• Parental consent = unconstitutional due to lack of judicial bypass.
• Biased counseling = violated informed consent standards.

Precedents the Court looked to?
– Roe v. Wade, Planned Parenthood v. Danforth, Doe v. Bolton.

Constitutional provisions?
– Fourteenth Amendment Due Process Clause.

Liberty interest?
– Right to obtain abortion free from state-imposed delays, manipulation, or unnecessary clinical restrictions.

Level of scrutiny?
– Strict scrutiny, consistent with pre-Casey doctrine.

Significance?
– Expanded the protection of abortion access by invalidating indirect deterrence mechanisms. Later partially reversed in Casey, which permitted some delays and regulations under a looser undue burden standard.

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Week 3.2 — Intimate Association

Fundamental Right to Privacy → Intimate Association and Bodily Autonomy

The Constitution protects zones of personal autonomy—particularly concerning marriage, sex, procreation, family, and bodily integrity—under a doctrine of substantive due process rooted in the Fourteenth Amendment.

1. Loving v. Virginia, 388 U.S. 1 (1967)

Facts?
– A Virginia law criminalized interracial marriage. Mildred Jeter (Black woman) and Richard Loving (white man) married in D.C., returned to Virginia, and were arrested. They received suspended sentences contingent on leaving the state for 25 years.

Petitioners’ argument?
– The law violated the Equal Protection Clause and infringed their fundamental liberty to marry under the Due Process Clause.

Virginia’s argument?
– Argued the law punished both races equally and reflected the state’s interest in preserving racial integrity and social order.

Issue?
– Does a state law banning interracial marriage violate the Fourteenth Amendment?

Holding?
– Yes: The law was struck down as both an equal protection and substantive due process violation.

Precedents the Court looked to?
– Skinner v. Oklahoma (procreation and marriage as fundamental), Brown v. Board of Education.

Constitutional provisions?
– Fourteenth Amendment: Equal Protection and Due Process Clauses.

Liberty interest?
– Fundamental right to marry, regardless of race—deeply rooted in American history and tradition.

Level of scrutiny?
– Applied strict scrutiny for racial classifications and fundamental rights.

Significance?
– Landmark decision establishing that marriage is a fundamental right, and that laws based on racial classifications are presumptively unconstitutional. Key precedent for later same-sex marriage litigation.

2. Bowers v. Hardwick, 478 U.S. 186 (1986)

Facts?
– Michael Hardwick was criminally charged under Georgia’s sodomy law after police found him engaging in consensual sex with another man in his own home.

Hardwick’s argument?
– Claimed the law violated his fundamental right to privacy in intimate relationships and bodily autonomy.

Georgia’s argument?
– Argued the state had a legitimate interest in preserving public morality, and sodomy was not a deeply rooted constitutional liberty.

Issue?
– Does the Constitution protect the right of consenting adults to engage in homosexual sex in private?

Holding?
– No: The Court upheld the sodomy law, holding that the Constitution does not protect homosexual conduct as a fundamental right.

Precedents the Court looked to?
– Distinguished from Griswold, Eisenstadt, Roe, claiming those involved heterosexual or procreative activity.

Constitutional provisions?
– Fourteenth Amendment Due Process Clause—rejected as applicable here.

Liberty interest?
– Not recognized: The Court refused to treat same-sex intimacy as constitutionally protected.

Level of scrutiny?
– Rational basis—deference to the legislature’s moral judgment.

Significance?
– One of the most criticized decisions of the Burger Court era. Marked a deep retreat from privacy jurisprudence. Overruled 17 years later in Lawrence v. Texas.

3. Lawrence v. Texas, 539 U.S. 558 (2003)

Facts?
– Lawrence and another man were arrested in Texas for violating the state’s “Homosexual Conduct” law. Unlike Georgia’s sodomy law, Texas’s law only criminalized same-sex sexual conduct.

Petitioners’ argument?
– Argued the law violated their liberty and privacy under the Due Process Clause, and possibly the Equal Protection Clause.

Texas’s argument?
– Claimed a legitimate interest in preserving traditional morality.

Issue?
– Does criminalizing private, consensual same-sex conduct violate the Fourteenth Amendment’s liberty protections?

Holding?
– Yes: The Texas law was struck down. The Court explicitly overruled Bowers and declared that the state cannot criminalize private consensual intimacy between adults.

Precedents the Court looked to?
– Griswold, Roe, Casey, Eisenstadt, and foreign decisions recognizing sexual privacy (e.g., European Court rulings).

Constitutional provisions?
– Fourteenth Amendment Due Process Clause.

Liberty interest?
– Right to engage in private, consensual sexual conduct without state interference.

Level of scrutiny?
– No explicit tier; applied a robust form of rational basis bordering on heightened scrutiny.

Significance?
– Reversed Bowers and reaffirmed that liberty includes intimate choices related to identity and autonomy. Set the stage for Obergefell by recognizing dignity and equality in private relationships.

4. Obergefell v. Hodges, 576 U.S. 644 (2015)

Facts?
– Plaintiffs from several states challenged state bans on same-sex marriage, arguing they violated fundamental liberty and equal protection.

Petitioners’ argument?
– Same-sex couples have a fundamental right to marry, just as in Loving. Denial of that right violates both Due Process and Equal Protection.

States’ argument?
– Marriage traditionally involved only heterosexual unions; states had interests in children’s welfare, tradition, and democratic self-governance.

Issue?
– Do state bans on same-sex marriage violate the Fourteenth Amendment?

Holding?
– Yes: Same-sex couples have a fundamental right to marry, and state bans violate both the Due Process Clause and the Equal Protection Clause.

Precedents the Court looked to?
– Loving, Griswold, Lawrence, Zablocki v. Redhail, Turner v. Safley.

Constitutional provisions?
– Fourteenth Amendment Due Process and Equal Protection Clauses.

Liberty interest?
– Right to marry the person of one’s choice, regardless of sex or gender.

Level of scrutiny?
– No tier named, but treated as a fundamental right, so effectively strict scrutiny.

Significance?
– Landmark case recognizing marriage equality. Cemented that intimate association and dignity are central to liberty and equality. Opponents criticized it as judicial activism, but it built directly on the logic of Loving, Griswold, and Lawrence.

Case	Right Recognized / Denied	Scrutiny Applied	Significance
Loving v. Virginia	Right to interracial marriage	Strict scrutiny	Marriage = fundamental right, racial equality central to equal protection
Bowers v. Hardwick	Denied right to same-sex intimacy	Rational basis	Retreat from privacy; upheld state moral laws (later overruled)
Lawrence v. Texas	Right to private same-sex sexual intimacy	Unnamed, but heightened	Overruled Bowers; key moment for LGBTQ+ liberty and sexual privacy
Obergefell v. Hodges	Right to same-sex marriage	Effectively strict scrutiny	Marriage equality grounded in both liberty and equality

X. Timelines of Intimate Association and Abortion

🔻 Roe → Dobbs: Doctrinal Collapse Timeline

• 1973 – Roe v. Wade
  → Recognized abortion as a fundamental right under substantive due process.
  → Strict scrutiny applied. Trimester framework introduced.
• 1976 – Danforth / 1983 – Akron
  → Court struck down procedural hurdles. Protected autonomy and physician discretion.
• 1992 – Planned Parenthood v. Casey
  → Reaffirmed Roe, but downgraded protection.
  → Introduced undue burden test, abandoning strict scrutiny.
  → Trimester framework gone. Spousal notification struck, other barriers upheld.
• 2000 – Stenberg v. Carhart
  → Struck down ban on partial-birth abortion: law too vague, no health exception.
• 2007 – Gonzales v. Carhart
  ==→ Upheld federal ban, despite no health exception.==
  → Ginsburg: “Reflects ancient notions about women’s place.”
• 2022 – Dobbs v. Jackson Women’s Health
  → Overruled Roe and Casey.
  → Claimed abortion not “deeply rooted in history.”
  → Liberty = dead. States free to ban entirely.

🌈 Loving → Obergefell: Intimate Association Expansion

• 1967 – Loving v. Virginia
  → Interracial marriage ban struck down.
  → Marriage = fundamental right, protected by Due Process and Equal Protection.
• 1986 – Bowers v. Hardwick
  → Court upheld criminalization of gay sex.
  → No recognition of same-sex intimacy as a liberty interest.
• 2003 – Lawrence v. Texas
  → Overruled Bowers.
  → Recognized right to private sexual intimacy regardless of gender.
• 2015 – Obergefell v. Hodges
  → Same-sex marriage legalized nationwide.
  → Liberty + equality = marriage for all.

🤦 Dissenting Matrix: Judicial Hall of SHAME

• Bowers v. Hardwick (1986)
  ❌ White, Burger, Rehnquist, Powell
  → Claimed gay intimacy wasn’t protected by the Constitution.
  → Powell later admitted he may have been wrong.
• Lawrence v. Texas (2003)
  ❌ Scalia, Thomas, Rehnquist
  → Scalia warned this would lead to gay marriage. (He was right. Still wrong.)
• Obergefell v. Hodges (2015)
  ❌ Roberts, Scalia, Thomas, Alito
  → Claimed this ruling betrayed democracy. Ignored decades of marriage precedent.
  → Scalia called it “pretentious,” “egotistic,” and “a threat to American democracy.”
• Dobbs v. Jackson (2022)
  ❌ Alito, Thomas, Gorsuch, Kavanaugh, Barrett
  → Overturned 50 years of precedent. Claimed Roe was “egregiously wrong.”
  → Thomas called for revisiting Griswold, Lawrence, and Obergefell next.

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Week 3 Additional Notes

I. Eras of the Supreme Court

Criteria:

• Judicial temperament (activist, minimalist, restrained, ideological, institutionalist)
• Era and context (economic liberty vs. civil rights vs. culture wars)
• Alignment on major doctrines (substantive due process, privacy, abortion, marriage, etc.)

I. The Lochner Era (1897–1937): Conservative Economic Libertarians

Key Justices:

• Justice Rufus Peckham (author of Lochner v. New York)
  → Zealous defender of economic liberty and freedom of contract
  → Treated market autonomy as sacred; deeply hostile to government regulation
• Justice Oliver Wendell Holmes (Dissent)
  → Famous for warning: “The Constitution does not enact Mr. Herbert Spencer’s Social Statics.”
  → Advocated judicial restraint and pluralism, not libertarianism

Temperament:
🟥 Hyper-conservative in economics, but not socially moralistic.
The Court was activist in striking down regulations, not in enforcing morality.

II. The New Deal & Warren Court (1937–1969): Liberal Ascendancy

Chief Justices:

• Charles Evans Hughes (1930s)
  → Presided over the “switch in time” that ended Lochnerism
  → Upheld New Deal legislation, giving birth to the modern regulatory state
• Earl Warren (1953–1969)
  → Architect of the civil rights revolution (Brown v. Board, Miranda, Loving)
  → Promoted egalitarianism, due process, liberty, and equality

Key Liberal Justices:

• William Brennan
  → Intellectual engine behind substantive due process and equal protection expansion
  → Crafted rights-based doctrine in Eisenstadt, Roe, Goldberg v. Kelly
• Thurgood Marshall
  → Civil rights giant, first Black Justice
  → Prioritized dignity, equal access, and racial justice

Temperament:
🟩 Liberal activist court, unafraid to reshape American law in favor of individual rights and social progress.

III. The Burger Court (1969–1986): Transitional & Divided

Chief Justice Warren Burger
→ Publicly conservative, but the Court delivered liberal rulings in privacy and abortion (Roe, Eisenstadt, Furman)

Key Swing Justices:

• Lewis Powell
  → Voted with majority in Roe, authored Bakke, but backed Bowers v. Hardwick
  → Elite moderate conservative, reflective of establishment Republicanism
• Harry Blackmun
  → Authored Roe v. Wade, moved steadily leftward over time, especially on gender and liberty

Temperament:
🟨 Transitional—split between liberal remnants of Warren Court and emerging conservatism.
Court was pragmatic, incremental, and ideologically messy.

IV. The Rehnquist Court (1986–2005): Conservative Consolidation

Chief Justice William Rehnquist
→ Philosophically opposed to expansive liberty claims, federal power, and broad rights
→ Authored or joined in narrowing Roe, limiting civil rights remedies, favoring states’ rights

Key Conservatives:

• Antonin Scalia
  → Originalist bulldog, anti-substantive due process, hostile to Roe, Lawrence, Obergefell → Fiery dissents, full of sarcasm and ideological clarity
• Clarence Thomas
  → Even more radical than Scalia—hostile to privacy doctrine, due process, and even Griswold
  → Willing to reverse decades of precedent with glee

Key Moderates / Liberals:

• Sandra Day O’Connor
  → Pragmatist; authored Casey joint opinion
  → Valued stability, compromise, and incrementalism
• John Paul Stevens
  → Technocratic, pro-liberty liberal
  → Often joined dissents in Bowers, Gonzales v. Carhart

Temperament:
🟥 Ideologically shifting: From liberal remnants to a disciplined, rights-skeptical conservatism, but with pragmatic moderates still holding the center.

V. The Roberts Court (2005–Present): Hyperpolarization & Doctrinal Retrenchment

Chief Justice John Roberts
→ Claims institutionalism, but often votes conservative on substance (e.g., Dobbs)
→ Strategically moderates optics, not outcomes

Hardline Conservatives:

• Samuel Alito
  → Architect of Dobbs, relentless in attacking Roe, Casey, Griswold
  → Views abortion, LGBTQ rights, and privacy as judicial overreach
• Neil Gorsuch
  → Libertarian leanings, but firmly originalist
  → Surprisingly progressive on Native rights, but not abortion
• Brett Kavanaugh
  → Institutionalist posture, but voted to overturn Roe
  → Seeks moderation in tone, not in outcome
• Amy Coney Barrett
  → Deeply conservative Catholic legal theorist
  → Firm on religious liberty, abortion restrictions, and textualism

Liberal Wing:

• Sonia Sotomayor
  → Moral conscience of the Court. Fiercely defends bodily autonomy, race equity, and procedural justice
  → Dissents in Dobbs, Carhart, Kennedy v. Bremerton blister with righteous fire
• Elena Kagan
  → Brilliant writer, institutionalist liberal
  → Focuses on administrative law, precedent, and First Amendment
• Ketanji Brown Jackson
  → Early signs of sharp intellect + progressive values
  → Will likely continue Sotomayor’s legacy on race, gender, and power

Temperament:
🟥🟩 Polarized to the extreme.
No center remains. Court swings based on personnel changes, not doctrinal consistency.
Culture wars dominate—privacy, abortion, voting, race, and religion are constitutional battlegrounds.

Most Liberal Justices (Civil Rights & Liberties)

• William Brennan
• Thurgood Marshall
• Ruth Bader Ginsburg
• Sonia Sotomayor
• John Paul Stevens (later years)

Most Conservative Justices (Restricting Rights / Structuralism)

• Clarence Thomas
• Samuel Alito
• Antonin Scalia
• William Rehnquist
• Amy Coney Barrett (likely long-term)

II. ACLU Comment on Laken Riley Act

• • Mandatory Detention Without Charge or Hearing:
    The Act mandates detention of any noncitizen who admits to having committed conduct that constitutes the essential elements of burglary, theft, larceny, or shoplifting—regardless of whether they were ever charged, arrested, or convicted in any jurisdiction. This pre-criminal, hearsay-based detention regime raises grave due process concerns.
• No Hearing, No Judge, No Charge—Just Indefinite Detention:
  The Act allows detention even where an immigration judge expressly disagrees, and without requiring any arrest or formal adjudication. Such authority circumvents core procedural protections guaranteed under the Fifth Amendment’s Due Process Clause, and resembles detention schemes previously invalidated by the Supreme Court (Hamdi v. Rumsfeld, Foucha v. Louisiana).
• Expansive, Vague, and Unconstitutional:
  The language is overbroad, covering vague “admissions” and conduct from any jurisdiction, regardless of legal definitions or cultural context. Such vagueness invites arbitrary enforcement, violates fair notice principles, and runs afoul of the void for vagueness doctrine (Papachristou v. Jacksonville, Kolender v. Lawson).
• Improper State Enforcement of Federal Immigration Law:
  The Act grants standing and enforcement powers to state attorneys general and other non-federal actors. This conflicts with Supreme Court precedent that immigration regulation is an exclusive federal function (Arizona v. United States, United States v. Texas). Under Spokeo v. Robins, Congress cannot manufacture standing by statutory fiat without a concrete and particularized injury.
• False “Open Border” Narrative Refuted by DHS Data:
  Contrary to political rhetoric, Department of Homeland Security (DHS) data shows that immigrant removals from May to November 2023 were on par with or exceeded those from 2019, and surpassed all totals from 2015 to 2018. Daily removals nearly doubled compared to pre-pandemic averages (2014–2019). The notion of an “open border” is not supported by empirical enforcement metrics.
• Relevant Court Cases below.

1. United States v. Texas (599 U.S. ___, 2023)

• Facts: Texas and Louisiana challenged Biden administration’s immigration enforcement guidelines that prioritized deporting noncitizens who were a threat to public safety or national security, rather than everyone eligible for removal.
• Holding: The Court dismissed for lack of standing—states cannot sue the federal government just because they disagree with enforcement priorities.
• Right / Principle: Article III standing requires a concrete, judicially cognizable injury—not a political or administrative grievance.
• Significance: Limits state standing to challenge federal immigration discretion. Weakens Laken Riley Act’s idea that state attorneys general can act as independent enforcers of federal immigration laws.
• Era: Roberts Court, 2023

2. Hamdi v. Rumsfeld (542 U.S. 507 (2004))

• Facts: Yaser Hamdi, a U.S. citizen, was detained indefinitely as an “enemy combatant” without charge or trial after being captured in Afghanistan.
• Holding: The Court held that even enemy combatants have due process rights. Hamdi was entitled to a meaningful opportunity to contest his detention before a neutral decisionmaker.
• Right / Principle: Due Process Clause (Fifth Amendment) applies to detention, even in wartime.
• Significance: Undermines any notion that immigrants—even noncitizens—can be detained indefinitely and without hearing, as the Laken Riley Act proposes.
• Era: Rehnquist Court, 2004

3. Foucha v. Louisiana (504 U.S. 71 (1992))

• Facts: A man found not guilty by reason of insanity was kept in custody even after no longer being mentally ill, solely because he was deemed dangerous.
• Holding: Indefinite civil detention based solely on dangerousness, without mental illness or criminal charge, violates due process.
• Right / Principle: Liberty deprivation must be tied to mental illness or criminal charge, not mere speculative risk.
• Significance: Laken Riley Act proposes mandatory detention based on past conduct or suspicion, not mental illness or crime—Foucha makes clear this is constitutionally invalid.
• Era: Rehnquist Court, 1992

4. Covington v. Harris (419 F.2d 617 (D.C. Cir. 1969))

(Note: Not a SCOTUS case, but cited frequently in due process litigation)

• Facts: Plaintiff, declared mentally ill, challenged indefinite confinement after recovery.
• Holding: Continued civil commitment must have procedural safeguards and must not be punitive.
• Right / Principle: Due process protections for civil liberty apply to non-criminal detentions.
• Significance: Emphasizes procedural checks on detention without current justification—challenges Riley Act’s open-ended detention framework.

5. Shelton v. Tucker (364 U.S. 479 (1960))

• Facts: Arkansas required teachers to disclose all organizational affiliations. A teacher who refused was dismissed.
• Holding: The law violated First Amendment freedom of association. It was not narrowly tailored and chilled expressive rights.
• Right / Principle: Government cannot condition employment or freedom on sweeping disclosure or associational guilt.
• Significance: Riley Act’s targeting of people who have “admitted to” certain past conduct (even uncharged) resembles guilt by association, not valid individualized due process.
• Era: Warren Court, 1960

6. Spokeo, Inc. v. Robins (578 U.S. 330 (2016))

• Facts: Plaintiff sued for statutory violation (under the FCRA) but could not show any concrete harm.
• Holding: Statutory violation alone is not enough—plaintiff must show concrete injury to satisfy Article III standing.
• Right / Principle: Congress cannot create standing out of thin air. A real injury is needed for federal court jurisdiction.
• Significance: Crucially undermines Laken Riley Act’s provision that state attorneys general can be given standing by Congress—Spokeo says that violates Article III limits.
• Era: Roberts Court, 2016

7. Arizona v. United States (567 U.S. 387 (2012))

• Facts: Arizona passed SB 1070, a law trying to enforce its own immigration rules. The federal government sued.
• Holding: Most of the law was preempted by federal immigration law. Immigration enforcement is a federal power, not state.
• Right / Principle: The Supremacy Clause makes federal immigration policy supreme. States cannot create parallel enforcement regimes.
• Significance: Crushes the legal foundation of the Riley Act’s state enforcement authority. States cannot unilaterally detain or prosecute immigration violations.
• Era: Roberts Court, 2012

8. De Canas v. Bica (424 U.S. 351 (1976))

• Facts: California law prohibited employers from hiring undocumented workers. Challenged as preempted by federal immigration law.
• Holding: The law was upheld at the time—Court said it targeted employment and was not field preempted.
• Right / Principle: States can act on employment-related immigration effects, but not directly regulate entry, detention, or removal.
• Significance: Often misused by proponents of state power in immigration. But post-Arizona, its scope is narrow. Riley Act’s detention regime goes far beyond De Canas.
• Era: Burger Court, 1976

🚨 Summary: Why These Cases Undermine the Laken Riley Act

• Standing (United States v. Texas, Spokeo):
  → States and Congress cannot manufacture standing without a real, personal injury.
• Due Process / Detention (Hamdi, Foucha, Covington):
  → Detaining people without charge, based on vague categories or past admissions, is unconstitutional.
• Federalism (Arizona, De Canas):
  → Immigration enforcement is a federal domain. The Riley Act’s grant of power to state attorneys general violates supremacy principles.
• Civil Liberties (Shelton):
  → Detaining people for past behavior, associations, or admissions with no judicial finding chills liberty and invokes guilt-by-inference.

III. No, there’s no “hate speech” exception to the First Amendment — Eugene Volokh

I keep hearing about a supposed “hate speech” exception to the First Amendment, or statements such as, “This isn’t free speech, it’s hate speech,” or “When does free speech stop and hate speech begin?” But there is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn Islam — or Muslims, or Jews, or blacks, or whites, or illegal aliens, or native-born citizens — as one is to condemn capitalism or Socialism or Democrats or Republicans.

To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with “hate speech” in any conventionally used sense of the term. For instance, there is an exception for “fighting words” — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. But this exception isn’t limited to racial or religious insults, nor does it cover all racially or religiously offensive statements. Indeed, when the City of St. Paul tried to specifically punish bigoted fighting words, the Supreme Court held that this selective prohibition was unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on all fighting words would indeed be permissible. (And, notwithstanding CNN anchor Chris Cuomo’s Tweet that “hate speech is excluded from protection,” and his later claims that by “hate speech” he means “fighting words,” the fighting words exception is not generally labeled a “hate speech” exception, and isn’t coextensive with any established definition of “hate speech” that I know of.)

The same is true of the other narrow exceptions, such as for true threats of illegal conduct or incitement intended to and likely to produce imminent illegal conduct (i.e., illegal conduct in the next few hours or maybe days, as opposed to some illegal conduct some time in the future). Indeed, threatening to kill someone because he’s black (or white), or intentionally inciting someone to a likely and immediate attack on someone because he’s Muslim (or Christian or Jewish), can be made a crime. But this isn’t because it’s “hate speech”; it’s because it’s illegal to make true threats and incite imminent crimes against anyone and for any reason, for instance because they are police officers or capitalists or just someone who is sleeping with the speaker’s ex-girlfriend.

The Supreme Court did, in Beauharnais v. Illinois (1952), uphold a “group libel” law that outlawed statements that expose racial or religious groups to contempt or hatred, unless the speaker could show that the statements were true, and were said with “good motives” and for “justifiable ends.” But this too was treated by the Court as just a special case of a broader First Amendment exception — the one for libel generally. And Beauharnais is widely understood to no longer be good law, given the Court’s restrictions on the libel exception.

• See New York Times Co. v. Sullivan (1964) (rejecting the view that libel is categorically unprotected, and holding that the libel exception requires a showing that the libelous accusations be “of and concerning” a particular person); 

• Garrison v. Louisiana (1964) (generally rejecting the view that a defense of truth can be limited to speech that is said for “good motives” and for “justifiable ends”); 

• Philadelphia Newspapers, Inc. v. Hepps (1986) (generally rejecting the view that the burden of proving truth can be placed on the defendant); 

• R.A.V. v. City of St. Paul (1992) (holding that singling bigoted speech is unconstitutional, even when that speech fits within a First Amendment exception); 

• Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. # 204, 523 F.3d 668, 672 (7th Cir. 2008) (concluding that Beauharnais is no longer good law); 

• Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1200 (9th Cir. 1989) (likewise); 

• Am. Booksellers Ass’n, Inc. v. Hudnut, 771 F.2d 323, 331 n.3 (7th Cir. 1985) (likewise); 

• Collin v. Smith, 578 F.2d 1197, 1205 (7th Cir. 1978) (likewise); 

• Tollett v. United States, 485 F.2d 1087, 1094 n.14 (8th Cir. 1973) (likewise);

• Erwin Chemerinsky, Constitutional Law: Principles and Policies 1043-45 (4th ed. 2011);

• Laurence Tribe, Constitutional Law, §12-17, at 926;

• Toni M. Massaro, Equality and Freedom of Expression: The Hate Speech Dilemma, 32 Wm. & Mary L. Rev. 211, 219 (1991);

• Robert C. Post, Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment, 76 Calif. L. Rev. 297, 330-31 (1988).

Finally, “hostile environment harassment law” has sometimes been read as applying civil liability — or administrative discipline by universities — to allegedly bigoted speech in workplaces, universities, and places of public accommodation. There is a hot debate on whether those restrictions are indeed constitutional; they have generally been held unconstitutional when applied to universities, but decisions are mixed as to civil liability based on speech that creates hostile environments in workplaces (see the pages linked to at this site for more information on the subject). But even when those restrictions have been upheld, they have been justified precisely on the rationale that they do not criminalize speech (or otherwise punish it) in society at large, ==but only apply to particular contexts,== such as workplaces. ==None of them represent a “hate speech” exception, nor have they been defined in terms of “hate speech.”==

For this very reason, “hate speech” also doesn’t have any fixed legal meaning under U.S. law. U.S. law has just never had occasion to define “hate speech” — any more than it has had occasion to define rudeness, evil ideas, unpatriotic speech, or any other kind of speech that people might condemn but that does not constitute a legally relevant category.

Of course, one can certainly argue that First Amendment law should be changed to allow bans on hate speech (whether bigoted speech, blasphemy, blasphemy to which foreigners may respond with attacks on Americans or blasphemy or flag burning or anything else). Perhaps some statements of the “This isn’t free speech, it’s hate speech” variety are deliberate attempts to call for such an exception, though my sense is that they are usually (incorrect) claims that the exception already exists.

I think no such exception should be recognized, but of course, like all questions about what the law ought to be, this is a matter that can be debated. Indeed, people have a First Amendment right to call for speech restrictions, just as they have a First Amendment right to call for gun bans or bans on Islam or government-imposed race discrimination or anything else that current constitutional law forbids. Constitutional law is no more set in stone than any other law.

But those who want to make such arguments should acknowledge that they are calling for a change in First Amendment law, and should explain just what that change would be, so people can thoughtfully evaluate it. Calls for a new First Amendment exception for “hate speech” shouldn’t just rely on the undefined term “hate speech” — they should explain just what viewpoints the government would be allowed to suppress, what viewpoints would remain protected, and how judges, juries, and prosecutors are supposed to distinguish the two. Saying “this isn’t free speech, it’s hate speech” doesn’t, I think, suffice.

Summary:

i. Basic Legal Framework

• U.S. law does not recognize “hate speech” as a separate category of unprotected speech. Offensive, hateful, or even racist expression is protected unless it falls into a recognized exception (like true threats, incitement, or harassment in a regulated setting).
• There is no legal definition of “hate speech” under federal law.
• All exceptions must be:
  • Narrowly defined
  • Content-neutral (except in rare categories like incitement)
  • Historically rooted

ii. On Libel

• Libel is a form of defamation—specifically, written or published false statements that harm someone’s reputation.
  • If spoken, it’s called slander.
  • If written (newspaper, book, online post, TV caption, etc.), it’s libel.
  • Libel = Defamation in a fixed medium that damages a person’s reputation, livelihood, or public standing.
• Elements of a Libel claim:
  • The plaintiff (the person suing) generally must prove:
  • False Statement of Fact
    The statement must be objectively false, not just an opinion or insult.
  • Publication
    It must be communicated to someone other than the plaintiff (e.g., in a newspaper, blog, social media, etc.).
  • Identification
    The plaintiff must be specifically identifiable, either by name or clear reference.
  • Harm to Reputation
    The statement must have caused actual reputational or economic harm (sometimes presumed).
  • Fault
    • If the plaintiff is a private figure, negligence may be enough.
    • If the plaintiff is a public figure or public official, they must prove “actual malice” — meaning the speaker knew it was false or acted with reckless disregard for the truth.

iii. Key Textbooks

• Erwin Chemerinsky, Constitutional Law: Principles and Policies — standard textbook in U.S. law schools.
• Laurence Tribe, Constitutional Law — foundational liberal constitutional theory.
• Robert Post, Toni Massaro — leading First Amendment theorists.
• Volokh’s own law review articles and blog — widely read, often cited in legal scholarship and opinions.

iv. Landmark First Amendment Cases

🔹 1. Beauharnais v. Illinois (1952)

• Facts: A man distributed racist leaflets attacking Black residents. Prosecuted under Illinois’ group libel law.
• Ruling: Upheld the law; Court said libelous statements targeting racial groups can be punished.
• Rights: Treated “group libel” as a category of unprotected speech.
• Significance: Outlier case, now widely considered obsolete due to modern libel standards.
• Court: Vinson Court, pre–First Amendment expansion.

🔹 2. New York Times Co. v. Sullivan (1964)

• Facts: NYT published an ad criticizing Southern officials during the civil rights movement; a public official sued for defamation.
• Ruling: Established that public officials must show “actual malice” to win libel claims.
• Rights: Strengthened freedom of the press; high bar for libel claims.
• Significance: Core First Amendment/libel precedent.
• Court: Warren Court, civil liberties expansion era.

🔹 3. Garrison v. Louisiana (1964)

• Facts: Prosecutor criticized judges’ laziness; was criminally charged for defamatory speech.
• Ruling: Truthful speech on public matters is protected, even if motives aren’t “pure.”
• Rights: Reinforced that truth is a defense; state can’t punish “bad motive” speech.
• Significance: Limits state power in libel prosecutions.
• Court: Warren Court.

🔹 4. Philadelphia Newspapers, Inc. v. Hepps (1986)

• Facts: Newspaper accused a businessman of mob ties. Pennsylvania law required the defendant (the paper) to prove truth.
• Ruling: Reversed; plaintiff must prove falsity when speech is of public concern.
• Rights: Press gets protection unless falsity is proven.
• Significance: Tilted libel law toward defendants in public debates.
• Court: Burger Court, mid-liberal-conservative tension.

🔹 5. R.A.V. v. City of St. Paul (1992)

• Facts: Teen burned a cross on Black family’s lawn. Prosecuted under ordinance banning race-based fighting words.
• Ruling: Struck down the law as viewpoint discrimination.
• Rights: Even “low-value” speech can’t be banned selectively.
• Significance: Reinforced content neutrality in First Amendment law.
• Court: Rehnquist Court, conservative shift.

🔹 6. Nuxoll v. Indian Prairie School Dist. #204 (7th Cir., 2008)

• Facts: Student wore shirt with anti-gay message; school limited it citing harassment concerns.
• Ruling: School couldn’t preemptively ban speech without actual disruption.
• Rights: Student speech protected unless it materially disrupts school environment.
• ==Significance: Beauharnais cited as no longer valid precedent.==
• Court: 7th Circuit, post-R.A.V., speech-protective period.

🔹 7. Dworkin v. Hustler Magazine (9th Cir., 1989)

• Facts: Feminist activist sued over satirical sexual imagery.
• Ruling: Dismissed; satire and parody are protected.
• Rights: Extended First Amendment to offensive satire.
• Significance: Cited Beauharnais as outdated and incompatible with modern First Amendment doctrine.
• Court: 9th Circuit, speech-expansive era.

🔹 8. American Booksellers Ass’n v. Hudnut (7th Cir., 1985)

• Facts: Indianapolis passed ordinance defining pornography as degrading to women.
• Ruling: Struck down; government can’t censor based on political content or ideology.
• Rights: Upheld content neutrality in sexual expression.
• Significance: Frequently cited as a barrier to content-based hate speech laws.
• Court: 7th Circuit, strong First Amendment protection stance.

🔹 9. Collin v. Smith (7th Cir., 1978)

• Facts: Neo-Nazis sought to march in Skokie, Illinois—a town with many Holocaust survivors.
• Ruling: Struck down prohibitions on march.
• Rights: Even extreme and offensive speech is protected in public forums.
• Significance: Central case in protecting political speech, regardless of content.
• Court: 7th Circuit, peak Warren-era legacy.

🔹 10. Tollett v. United States (8th Cir., 1973)

• Facts: Case involving criminal charges and free speech implications.
• Ruling: Not a First Amendment ruling per se, but included a footnote questioning the continuing validity of Beauharnais.
• Significance: One of several federal appellate decisions doubting group libel’s constitutionality.
• Court: 8th Circuit, early post-Sullivan reevaluation era.

v. EU versus the United States

Category	European Union	United States
Hate Speech	🛑 Often criminalized or restricted	✅ Fully protected unless it fits into narrow exceptions
Incitement to Hatred	🛑 Criminalized even without imminent violence	❌ Only unprotected if it leads to imminent lawless action
Holocaust Denial	🛑 Criminalized in many EU states (and upheld by ECtHR)	✅ Protected as speech in U.S.
Blasphemy (some EU states)	🛑 Still illegal in a few countries (e.g., Ireland until 2020)	✅ Fully protected in U.S.
Balancing Rights	⚖️ Free speech is balanced with dignity, equality, and order	🗽 Free speech is generally paramount

vi. On Rewriting the Constitution:

School of Thought	Stance on Rewriting the Constitution
Radical Progressives (Critical Race/Fem Theory)	Support rewriting as necessary to break structural inequality—current Constitution is too steeped in property, whiteness, patriarchy.
Civil Rights Traditionalists (e.g., NAACP Legal Defense Fund)	Cautious. Prefer reinterpretation, not rewriting—fearing minority protections may be lost in new negotiations.
Immigrant / Diaspora Legal Scholars	Mixed. Some call for constitutional recognition of belonging, language rights, economic mobility. Others fear backlash from majoritarian dominance.
Intersectional Feminists & Queer Legal Theorists	Often pro-rewriting or “constitutional supplementation”—not deletion, but deep expansion of dignity-based rights.

vii. The Supreme Court actively striking down laws:

School of Thought	View on Judicial Constitutionalism
Legal Realists	Accept it as inevitable: judges interpret, reinterpret, and reshape.
Originalists	Fear it: the Court must not evolve meaning beyond text and history.
Living Constitutionalists	Embrace it: the Constitution is a framework, not a fossil.
Critical Legal Theorists	Distrust it: even “progressive” rulings preserve elite power.
Democratic Theorists	Warn that too much judicial power undermines popular sovereignty.

---

Questions for April 22 OH:

• Bodily Autonomy
  • “If Dobbs reclaims democratic control of abortion, does that undermine Obergefell and Lawrence by logic—even if not by holding?”

    • “The Constitution does not confer a right to abortion, and such a right is not deeply rooted in this Nation’s history and tradition, nor implicit in the concept of ordered liberty.” Washington v. Glucksberg (1997) Rehnquist.

    • BUT GLUCKSBERG WAS UNANIMOUS
    • ==O’Connor, Souter, and Stevens rejected the test.==
    • Lawrence v. Texas (2003) explicitly rejected it.
    • Obergefell v. Hodges (2015) acknowledged Glucksberg, but used different reasoning, focused on dignity, personal identity, and evolving norms.
  • “Do you think Dobbs will eventually be seen as one of the worst decisions in history, or just a doctrinal ting?”
  • ==“What case or principle would you use to rebuild reproductive autonomy jurisprudence—if any?”==
  • “Do you think Casey’s ‘undue burden’ test was more judicial restraint or judicial policymaking?”
  • Intermediate

  • “I’m also trying to situate these debates in the context of systems like China, where abortion ==is regulated but always subordinate to state goals== like population planning…”

• How can a right be “fundamental” enough to override democratic majorities—yet not be clearly stated anywhere in the Constitution?
  • Abortion (Roe, Casey)
  • Marriage (Loving, Obergefell)
  • Sexual intimacy (Lawrence)
  • Parenting (Meyer, Pierce)
  • Contraception (Griswold, Eisenstadt)

  • You can’t logically distinguish between the doctrinal basis for abortion and same-sex marriage, yet one was destroyed (Dobbs), the other (for now) remains.

  • “Why is the right to marry someone of the same sex fundamental, but the right to terminate a pregnancy is not—when both rely on the same doctrine that the Court now says is too vague to uphold?”

  • Selective judicial ideology/morality?
• Era of courts (Lochner, Warren, Burger, Rehnquist, Roberts) — Increasingly conservative? Why?
• ==With so many inequality cases, and i feel like most times according to a modern point of view, they are arguing within a closed system, using elegant logic to argue based on absurd premises. For example, abortion, no privacy, Plessy.==
  • The Supreme Court is the only American institution that writes the meaning of the Constitution without ever admitting it rewrote anything.
  • De facto constitutional reform body
• Why dont they actively strike down laws or rewrite the constitution, invoke article V or bypass it
  • ERA 1972, some states rescinded, 13 states, about just over 10 million people, that is less than 3% of the population, can override everything?
  • case or controversy, redefine controversy like Madison, expand standing
  • We now interpret ‘controversy’ to include systemic inequality or structural exclusion, even if it doesn’t match prior standing rules.
• Contradiction of First Amendment and Title VI/VII

Organized Notes

1 “Scholarship” v. Constitutional Reality

• Birth-right citizenship is not revocable by executive fiat. Afroyim v. Rusk (1967) holds that the Fourteenth Amendment’s Citizenship Clause “can be taken away only by a voluntary act” of the citizen; Perry v. United States (1935) adds that constitutional guarantees may not be “abrogated by Executive Order.”
• Pop-blog posts and self-published SSRN papers asserting the contrary illustrate a broader path-ology: conspiracy-style scholarship that treats settled text as optional, then buries readers in faux-technical verbiage to obscure the absence of doctrine. Flag one of these pieces in OH as a cautionary tale about separating real precedent from ideological fantasy.

2 The Court’s Baseline Conservatism—and Its Rare Jolts Left

Era	Dominant Posture	Flash-points of Liberal Surge	Backlash / Retrenchment
Lochner (≈1897-1937)	Economic libertarianism	–	West Coast Hotel ends it
Warren (1953-69)	Fresh egalitarianism	Brown (1954), Reynolds (1964), Miranda (1966)	Nixon appointees begin pull-back
Burger–Rehnquist (1969-2005)	Moderately conservative	Roe (1973), Bakke (1978), Lawrence (2003)	Bowers (1986), narrowing of Warren rules
Roberts (2005—)	Aggressively conservative super-majority	(none comparable yet)	Dobbs (2022), Students for Fair Admissions (2023)

Even the Warren rush was bounded: it took twenty-one years after Brown for the Court to require actual school‐desegregation metrics (Swann 1971). Your professor’s generation remembers the short Warren crest; today’s students see the longer conservative tide.

3 When Constitutional Change Requires More than Courts

• Civil War & Reconstruction: Slavery’s abolition demanded both warfare and the 13th–15th Amendments; the ante-bellum Court could not resolve the contradiction it helped instigate (Dred Scott 1857).
• Prohibition & Repeal: The 18th Amendment proved that nationwide moral legislation required super-majoritarian buy-in—and failed when public support collapsed (21st Amendment).
• Civil-Rights Movement: Massive social mobilization plus the 1964 Civil Rights Act finally gave Brown teeth.
  These episodes display a pattern: durable constitutional revolutions emerge only when legal doctrine, congressional action, and public consent converge. Courts alone cannot sustain change if “most people are not prepared to obey the rule most of the time.”

4 “Passive Virtues,” Logjams, and the Proper Moment to Intervene

Alexander Bickel’s “passive-virtues” thesis counsels restraint until the normal political process is blocked—e.g., when disenfranchised groups cannot legislate their own relief. Classic triggers:

1. Voting barriers (Shelby County 2013 curtailed, but Allen v. Milligan 2023 shows the doctrine lives).
2. Entrenched mal-apportionment—ignored until 1962–65, when the Court issued ~50 reapportionment decisions: Baker v. Carr (1962) opens the door; Reynolds v. Sims (1964) imposes “one person, one vote”; Gray v. Sanders (1963) rejects “land over people.” Illinois, with huge Chicago under-representation, was a poster-child.

5 Self-Correction: The Court’s Reluctance to Overrule Itself

• Fewer than a dozen precedents are expressly overruled per decade. West Coast Hotel (1937) killed Lochner; Brown (1954) buried Plessy; Lawrence (2003) reversed Bowers; Dobbs (2022) reversed Roe/Casey.
• The rarity feeds the myth that the Court is “cramped”; yet when political pressure plus doctrinal incoherence reach a critical mass, the Justices pivot—often after decades of criticism.

---

Week 4.1

1. Plessy v. Ferguson, 163 U.S. 537 (1896)

Facts?
 – Louisiana’s 1890 “Separate Car Act” required railroads to provide “equal but separate” coaches for white and Black passengers.
 – Civil‑rights activists (the Citizens’ Committee of New Orleans) recruited Homer Plessy—a light‑skinned Creole who was 7⁄8 white—to purchase a first‑class whites‑only ticket and refuse to move.
 – He was arrested by pre‑arrangement, convicted in state court, and fined $25.

Plessy’s argument?
 – Segregation laws violate the Thirteenth Amendment (badge of servitude) and the Equal Protection Clause by creating a caste system based on race.

Louisiana’s argument?
 – The statute is a valid exercise of the state’s police power to preserve public order. Separate facilities do not imply Black inferiority if they are “equal.”
 – The 14th Amendment was never intended to abolish social distinctions.

Issue?
 – Does a state law mandating racial segregation on common carriers violate the Fourteenth Amendment’s Equal Protection Clause or the Thirteenth Amendment?

Holding?
 – No. Segregation is constitutional so long as the facilities are “equal” in quality—birth of the “separate‑but‑equal” doctrine.

Reasoning (Justice Brown):
 – The 14th Amendment guarantees legal—not social—equality.
 – Segregation does not, per se, stamp the Black race with a badge of inferiority; any such feeling “is due solely to that race’s interpretation.”
 – The law applies equally to both races (both are punished for entering the “wrong” coach).

Dissent (Justice Harlan):
 – Color‑blind Constitution: The law “cannot permit any public authority to know the race of those entitled to be protected.”
 – Warned that the decision would prove as pernicious as Dred Scott.

Precedents / Authorities cited?
 – Slaughter‑House Cases (1873) (narrow 14th Am.), Civil Rights Cases (1883) (state vs. private action).

Constitutional provisions?
 – 13th Amendment (involuntary servitude)
 – 14th Amendment §1 (Equal Protection & Privileges/Immunities)

Level of scrutiny? – Proto‑rational basis (court required only minimal justification).

Significance?
 – Legitimized Jim Crow for nearly six decades.
 – Overruled de jure in Brown v. Board (1954) but still cited as a cautionary tale of “textual literalism” + racism.
 – Harlan’s dissent became the intellectual seed for modern Equal Protection.

2. United States v. Carolene Products Co., 304 U.S. 144 (1938)

Facts?
 – Congress passed the Filled Milk Act of 1923, criminalizing interstate shipment of “Milnut”—milk mixed with coconut oil—on public‑health grounds.
 – Carolene Products was indicted for violating the Act and argued it lacked a rational basis, breaching the Fifth Amendment’s Due Process.

Carolene’s argument?
 – Scientific evidence showed filled milk is no more harmful than dairy butterfat; the statute is economic protectionism for dairy interests.
 – Thus violates substantive due process just like the Lochner line of cases.

Government’s argument?
 – Congress reasonably believed filled milk endangered children; the Court must defer under its police power.

Issue?
 – Does economic legislation that restricts a specific food product violate substantive due process when the health justification is contested?

Holding?
 – No. The Act is constitutional. Courts will defer if any conceivable rational basis exists.

Reasoning (Justice Stone):
 – Judicial review of economic regulation is narrow. It is up to legislators, not judges, to weigh evidence.
 – Court abandons Lochner‑style scrutiny for economic laws.

Famous Footnote Four:
 1. Bill of Rights violations may merit stricter review;
 2. Laws distorting political processes (voting, dissemination of information) may require more exacting judicial scrutiny;
 3. Laws targeting “discrete and insular minorities” need heightened vigilance.
 👉 Birth of tiers‑of‑scrutiny & modern Equal Protection doctrine.

Constitutional provision?
 – Fifth Amendment Due Process (applies to federal statutes).

Level of scrutiny? – Rational basis for economic regulation.

Significance?
 – Marks the end of Lochner era.
 – Footnote Four sets the analytic framework for strict & intermediate scrutiny, laying groundwork for racial & gender jurisprudence.

3. Korematsu v. United States. 323 U.S. 214 (1944)

Facts?
 – After Pearl Harbor, President Roosevelt issued EO 9066 authorizing military zones.
 – Civilian Exclusion Order 34 required all persons of Japanese ancestry to evacuate the West Coast.
 – Fred Korematsu, native‑born citizen, refused relocation, was arrested, convicted, and appealed.

Korematsu’s argument?
 – The order imposes race‑based internment without individualized suspicion, violating equal protection (via 5th Am Due Process) and fundamental liberties.

Government’s argument?
 – Military necessity: fear of espionage and sabotage justified swift group measures; courts must defer in wartime.

Issue?
 – Can the federal government exclude and intern U.S. citizens based solely on race under wartime powers?

Holding?
 – Yes. The exclusion order is constitutional.

Reasoning (Justice Black):
 – Racial classifications are suspect and subject to strict scrutiny, but the gravest imminent danger can justify them.
 – Court deferred to the military’s judgment of necessity.

Dissents:
 – Murphy: Called it “legalized racism”, no evidence of threat.
 – Jackson: Warned the decision lies about facts; once precedent, it’s a “loaded weapon”.
 – Roberts: No due process, obvious race discrimination.

Later treatment:
 – Documents in the 1980s showed the government lied about military necessity; Korematsu’s conviction vacated (coram nobis).
 – Trump v. Hawaii (2018): Court said Korematsu was “gravely wrong,” effectively disavowing it.

Significance?
 – Stands as the canonical warning of deference gone wrong.
 – Illustrates the fragility of civil liberties in wartime.

4. Brown v. Board of Education (Brown I), 347 U.S. 483 (1954)

Facts?
 – Consolidated cases from Kansas, South Carolina, Virginia, Delaware, D.C.
 – Black children forced to attend segregated schools with inferior facilities and resources.

Plaintiffs’ argument?
 – Segregation denies equal educational opportunities, violates Equal Protection even if physical facilities are equal.
 – Relied on social science (Dr. Kenneth Clark’s doll tests) showing psychological harm.

States’ argument?
 – Relied on Plessy: separate but equal satisfies the Constitution; education is a state matter.

Issue?
 – Does state‑mandated public‑school segregation violate the Equal Protection Clause of the 14th Amendment?

Holding?
 – Yes. Separate educational facilities are inherently unequal.

Reasoning (Chief Justice Warren, unanimous):
 – Education is “the most important function” of state and local gov’t.
 – Segregation generates sense of inferiority that affects motivation to learn.
 – Historical intent of 14th Amendment inconclusive; must be read in light of present-day importance of education.

Implementation (Brown II – 1955):
 – Desegregation “with all deliberate speed”—led to decade‑long resistance.

Significance:
 – Overturned Plessy in education; moral cornerstone of Civil Rights Movement.
 – Invoked by later cases on gender, disability, and LGBTQ rights.

5. Bolling v. Sharpe, 347 U.S. 497 (1954)

Facts?
 – In Washington D.C., 12 Black children were denied entry to an all‑white school (John Philip Sousa JHS).
 – Because D.C. is federal territory, plaintiffs couldn’t invoke 14th Amendment.

Plaintiffs’ argument?
 – Segregation by the federal government violates the Due Process Clause of the 5th Amendment.

Government’s argument?
 – Congress has plenary authority over D.C.; segregation is long‑standing policy.

Issue?
 – Does the Fifth Amendment prohibit the federal government from operating segregated schools?

Holding?
 – Yes. Segregation in D.C. schools violates due process.

Reasoning (Chief Justice Warren):
 – “Liberty” under the Fifth Amendment incorporates notions of equality.
 – Discrimination so unjustifiable as to be arbitrary violates due process.
 – Hence, equality principles reverse‑incorporated into the Fifth Amendment.

Level of scrutiny? – Effectively strict scrutiny for racial classifications.

Significance:
 – Created reverse incorporation: Equal Protection norms apply to the federal gov’t via Fifth Amendment.
 – Ensured desegregation of all public schools nationwide, not just in the states.

Since the late 19th century, various Supreme Court rulings established the Constitutional rights of illegal immigrants. In Yick Wo v. Hopkins (1886), the court ruled that under the Fourteenth Amendment, all people, regardless of “race, of color, or of nationality” have the right to due process and equal protection under the law. A similar ruling of Wong Wing v. US (1896) stated that all persons within the territory of the United States are afforded equal protections under the Fifth Amendment and Sixth Amendment.

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Week 4 Discussion

Spring 2017 Issue-Spotting Exam

Congress has decided to raise revenue and encourage civics education by opening a theme park that celebrates the Supreme Court’s history. The park is named “The Least Dangerous Park.” Tickets to the park are $50 for anyone of non-Irish heritage and (given rising anti-U2 sentiment in the United States) $100 for anyone with Irish heritage.

The park includes such attractions as the Carter Coal Mine Ride, Ride with the Four Horsemen, and the Schechter Poultry Petting Zoo. Early on, Congress received a number of strongly worded letters from vegans condemning the park’s Slaughterhouse Cases Ride (a flume ride which takes riders on a gruesome but celebratory tour of New Orleans slaughterhouses). To avoid such complaints going forward, Congress has banned all vegans from the ride.

Certain park employees dress up as Supreme Court justices and walk around having their pictures taken with guests. The park is committed to historical verisimilitude, and thus will only hire people to portray Supreme Court justices who have the characteristics of the individual justices. These employees wear period-appropriate clothing and giant foam heads molded to look like the justice in question. No part of the employees’ bodies are visible when the employee is in full costume.The park is currently looking for someone to portray Justice Antonin Scalia.

In the months since the park has opened, it has garnered terrible Yelp reviews. In addition, several parties have sued, each claiming that the federal government has acted unconstitutionally.

Ed Mulgrave, a Chicago Resident of Irish descent who wants to play a lower fee. Winston Zeddmore, a vegan from NOLA who would really like to ride the Slaughterhouse cases ride.

Walter Peck, a Black man rejected from the position of Antonin Scalia.

• Does Mulgrave have standing to sue?
  • Mootness ok, ripeness and standing doubtful, unless he actually entered the park
  • If Ed did not attempt to buy a ticket and was deterred by the pricing structure, he may still have standing under ==“chilling effect” doctrine== (cf. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014)).
  • Mulgrave likely has standing if he credibly alleges he was deterred from entering the park by the discriminatory pricing.
• The operation, maintenance of the park are definitely state action
• Equal protection clause (different fee)
  • Segregate but equal, unconstitutional according to Plessy and Korematsu
  • Discrimination based on national origin
  • Strict scrutiny
  • Loving v. Virginia
• Equal protection clause (vegan ban)
  • Standing true: injury-in-fact, causation, redressability
  • But it’s based on personal preferences, not protected classes under EP framework, and not even a suspect class (sex and gender) under intermediate scrunity
  • To become strict scrutiny, it has to be a hybrid rights claim
    • e.g., combining vegan preference based on religion
  • Rational basis
  • If it’s a private meat food restaurant bans all vegans from entering, it is usually valid?
  • If its Congressional dining hall? Likely not.
  • Deference to Congress about economic regulations
  • Precedent: Carolene Products, brown, plessy, korematsu?
• Civil rights violation (employment discrimination? equal protection violation? or it is justified by the purpose)
  • Standing yes, again, three principles.
  • What is the reason for rejection? Race? or other merits?
  • Fundamental right: discrimination based on race or it’s a neccessary thing
  • Government interest: historical accuracy to find someone as closely resembling Scalia as possible
  • Any racial classification -> strict scrutiny
    • Compelling government interest: Big NO for theatrical, artistic reasons
    • Narrowly tailored: NO, Even if “visual resemblance” is the goal, using race as a proxy is overinclusive and underinclbv No skin is visible, any visual difference could be adjusted via costuming or mask design
    • Racial characteristics cannot be BFOQs (bona fide occupational qualifications)
    • Brown, Loving
    • But, everyone is covered without being able to see the full body.
      • So, unless there are other characteristics that the government wants to imitate, like height, weight, accent, etc, they cannot reject the employment based solely on race.
• To overrule, the Court must go beyond just condemning the prior ruling, but explicitly “reject or overrule” it in a very similar new case?

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Citizenship

• 1884: Elk v. Wilkins
• 1898: United States v. Wong Kim Ark
• 1967: Afroyim v. Rusk
• 1980: Vance v. Terrazas

Privileges or immunities

• 1873: Slaughter-House Cases
• 1875: Minor v. Happersett
• 1908: Twining v. New Jersey
• 1920: United States v. Wheeler
• 1948: Oyama v. California
• 1999: Saenz v. Roe

Incorporation

• 1833: Barron v. Baltimore
• 1873: Slaughter-House Cases
• 1883: Civil Rights Cases
• 1884: Hurtado v. California
• 1897: Chicago, Burlington & Quincy Railroad v. Chicago
• 1900: Maxwell v. Dow
• 1908: Twining v. New Jersey
• 1925: Gitlow v. New York
• 1932: Powell v. Alabama
• 1937: Palko v. Connecticut
• 1947: Adamson v. California
• 1947: Everson v. Board of Education
• 1952: Rochin v. California
• 1961: Mapp v. Ohio
• 1962: Robinson v. California
• 1963: Gideon v. Wainwright
• 1964: Malloy v. Hogan
• 1967: Reitman v. Mulkey
• 1968: Duncan v. Louisiana
• 1969: Benton v. Maryland
• 1970: Goldberg v. Kelly
• 1972: Furman v. Georgia
• 1974: Goss v. Lopez
• 1975: O’Connor v. Donaldson
• 1976: Gregg v. Georgia
• 2010: McDonald v. Chicago
• 2019: Timbs v. Indiana
• 2022: New York State Rifle & Pistol Association, Inc. v. Bruen

Substantive due process

• 1876: Munn v. Illinois
• 1887: Mugler v. Kansas
• 1897: Allgeyer v. Louisiana
• 1905: Lochner v. New York
• 1908: Muller v. Oregon
• 1923: Adkins v. Children’s Hospital
• 1923: Meyer v. Nebraska
• 1925: Pierce v. Society of Sisters
• 1934: Nebbia v. New York
• 1937: West Coast Hotel Co. v. Parrish
• 1965: Griswold v. Connecticut
• 1973: Roe v. Wade
• 1977: Moore v. City of East Cleveland
• 1990: Cruzan v. Director, Missouri Department of Health
• 1992: Planned Parenthood v. Casey
• 1996: BMW of North America, Inc. v. Gore
• 1997: Washington v. Glucksberg
• 2003: State Farm v. Campbell
• 2003: Lawrence v. Texas
• 2015: Obergefell v. Hodges
• 2022: Dobbs v. Jackson Women’s Health Organization

Equal protection

• 1880: Strauder v. West Virginia
• 1886: Yick Wo v. Hopkins
• 1886: Santa Clara County v. Southern Pacific Railroad
• 1896: Plessy v. Ferguson
• 1908: Berea College v. Kentucky
• 1916: The People of the State of California v. Jukichi Harada
• 1917: Buchanan v. Warley
• 1942: Skinner v. Oklahoma
• 1944: Korematsu v. United States
• 1948: Shelley v. Kraemer
• 1954: Hernandez v. Texas
• 1954: Brown v. Board of Education
• 1954: Bolling v. Sharpe
• 1962: Baker v. Carr
• 1967: Loving v. Virginia
• 1971: Reed v. Reed
• 1971: Palmer v. Thompson
• 1972: Eisenstadt v. Baird
• 1973: San Antonio Independent School District v. Rodriguez
• 1976: Examining Board v. Flores de Otero
• 1978: Regents of the University of California v. Bakke
• 1982: Plyler v. Doe
• 1982: Mississippi University for Women v. Hogan
• 1986: Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico
• 1996: United States v. Virginia
• 1996: Romer v. Evans
• 2000: Bush v. Gore
• 2003: Grutter v. Bollinger
• 2023: Students for Fair Admissions v. Harvard

Felon disenfranchisement

• 1974: Richardson v. Ramirez
• 1985: Hunter v. Underwood

Power of enforcement

• 1883: Civil Rights Cases
• 1966: Katzenbach v. Morgan
• 1976: Fitzpatrick v. Bitzer
• 1997: City of Boerne v. Flores
• 1999: Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank
• 2000: United States v. Morrison
• 2000: Kimel v. Florida Board of Regents
• 2001: Board of Trustees of the University of Alabama v. Garrett
• 2003: Nevada Department of Human Resources v. Hibbs
• 2004: Tennessee v. Lane
• 2006: United States v. Georgia
• 2012: Coleman v. Court of Appeals of Maryland
• 2013: Shelby County v. Holder
• 2020: Allen v. Cooper
• 2024: Trump v. Anderson

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Consititution Annotated Section 1: Citizenship and civil rights

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Background

The two pages of the Congressionally-signed original of the Fourteenth Amendment in the National Archives, written with iron gall ink on parchment. It was last publicly displayed in 2013. As of 2025, it is stored in the research wing of the archives inside a boxed book of Acts of Congress from its 39th session.

Section 1 of the Fourteenth Amendment formally defines United States citizenship and protects various civil rights from being abridged or denied by any state law or state action. In Shelley v. Kraemer (1948), the Supreme Court held that the Fourteenth Amendment’s historical context of countering the discriminatory Black Codes of Southern states must be used in its interpretation.Primarily written by Representative John Bingham, Section 1 is the most frequently litigated part of the amendment, and this amendment is the most frequently litigated part of the Constitution.

Citizenship Clause

Senator Jacob M. Howard of Michigan, author of the Citizenship Clause The Citizenship Clause overruled the Supreme Court’s Dred Scott decision that African Americans could not become citizens. The clause constitualized the Civil Rights Act of 1866’s grant of citizenship to all born within the United States, except the children of foreign diplomats. Compared against European jus sanguinis laws that assign citizenship by one’s parents, historians have framed the United States’ Citizenship Clause as an extension of the Fourteenth Amendment’s egalitarian principles.

Congress’ debate over the Citizenship Clause shows explicit rejection of Senator Edgar Cowan’s anti-Romani sentiment, affirming that birthright citizenship cannot be revoked from children born to disfavored ethnic minorities. In United States v. Wong Kim Ark (1898), the Supreme Court confirmed that children born in the United States receive birthright citizenship, regardless of whether their parents are non-citizen immigrants.

In Elk v. Wilkins (1884), the Supreme Court interpreted the Citizenship Clause as granting birthright citizenship to all born within the jurisdiction of the United States and allowing Congress to establish alternative pathways for naturalization. Consistent with the views of the clause’s author, Senator Jacob M. Howard, the Supreme Court held that because Indian reservations are not under the federal government’s jurisdiction, Native Americans born on such land are not entitled to birthright citizenship. The 1887 Dawes Act offered citizenship to Native Americans who accepted private property as part of cultural assimilation, while the 1924 Indian Citizenship Act offered citizenship to all Native Americans born within the nation’s territorial limits.

In Mackenzie v. Hare (1915), the Supreme Court upheld the Expatriation Act of 1907, which dictated that all American women who voluntarily married a foreign alien renounced their American citizenship. Perez v. Brownell (1958) similarly held that Congress could designate voting in foreign elections or draft evasion as renunciations of citizenship. However, in Afroyim v. Rusk (1967) and Vance v. Terrazas (1980), the Supreme Court reversed itself, holding that renunciations of American citizenship must be formally expressed.

In January 2025, President Donald Trump issued Executive Order 14160 to deny birthright citizenship to children with parents of illegal or temporary immigration status. While this topic was not considered by the 39th Congress, nor has it been addressed by the Supreme Court, enforcement of the Executive Order has been blocked as unconstitutional by multiple federal judges. Furthermore, many of the freed slaves whose children were covered by the Citizenship Clause were illegal immigrants brought in violation of the 1807 Act Prohibiting Importation of Slaves.

Privileges or Immunities Clause

The Privileges or Immunities Clause was written to provide congressional power of enforcement to the similar Privileges and Immunities Clause of Article Four of the Constitution. In 1823, Supreme Court Justice Bushrod Washington decided Corfield v. Coryell, interpreting the latter clause as protecting the right to travel, seek habeas corpus, and hold property in multiple states, among other rights. In the Slaughter-House Cases (1873), the Supreme Court rejected arguments that the Privileges or Immunities Clause further incorporated the Bill of Rights against state governments or transferred police power to the federal government. In McDonald v. City of Chicago (2010) and Timbs v. Indiana (2019), Supreme Court Justice Clarence Thomas advocated transferring the incorporation doctrine from the Due Process Clause to the Privileges or Immunities Clause, but this has been criticized as a veiled attempt to restrict the rights of non-citizens within the United States.

Due Process Clause

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that, through the course of this Court’s decisions, it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.

The Due Process Clause of the Fourteenth Amendment explicitly applies the Fifth Amendment’s similar clause to state governments. In protecting all people against arbitrary denial of life, liberty, or property, courts have recognized both procedural and substantive due process. Procedural due process deals with the processes for restraining life, liberty, or property, such as the right to be notified of a hearing by a neutral decision-maker. In comparison, substantive due process involves the government’s justification for engaging in those processes. In deciding whether legislation unconstitutionally infringes on one’s liberty, most government acts are subject to rational basis review, under which the government must present a legitimate state interest. When the government infringes on fundamental rights, such as racial equality, strict scrutiny requires its actions to instead be narrowly tailored to address a compelling state interest.

The early 20th century has been referred to as the Lochner era for the Supreme Court’s embrace of a freedom of contract in cases like Allgeyer v. Louisiana (1897) and Lochner v. New York (1905). While that freedom was ultimately curtailed in West Coast Hotel Co. v. Parrish (1937), those early cases recognized substantive due process rights within the Due Process Clause. For example, Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925) struck down anti-immigrant state education laws as violations of substantive due process.

In 1890, future Supreme Court Justice Louis Brandeis and his law partner, Samuel D. Warren II, published “The Right to Privacy” in the Harvard Law Review. While the article only advocated for tort actions to protect one’s privacy, the Supreme Court later elevated privacy to a fundamental right, protecting contraceptive sales in Griswold v. Connecticut (1965), consensual sex in Lawrence v. Texas (2003), and same-sex marriage in Obergefell v. Hodges under substantive due process. In Roe v. Wade (1973), the Supreme Court recognized a substantive due process right to abortion, but that holding was overturned in Dobbs v. Jackson Women’s Health Organization (2022), which claimed that “a right to abortion is not deeply rooted in the Nation’s history and traditions.”

Incorporation of the Bill of Rights

Prior to the Fourteenth Amendment, the Supreme Court held in Barron v. Baltimore (1833) that the Bill of Rights only restrained the federal government. However, in Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897), the Supreme Court applied the Fifth Amendment’s Takings Clause to the eminent domain power of state governments under the Due Process Clause, beginning an ongoing process of incorporation. Legal scholar Akhil Reed Amar has argued that while Congress intended the Fourteenth Amendment to reverse the Barron decision, Representative Bingham expected incorporation to rely on the Privileges or Immunities Clause. The Supreme Court has explicitly rejected incorporation of the Fifth Amendment’s Grand Jury Clause and Seventh Amendment, and it has never addressed the Third Amendment.

Equal Protection Clause

Rep. John Bingham of Ohio was the principal author of the Equal Protection Clause. The Equal Protection Clause was written to constitutionalize the anti-discrimination principles of the Civil Rights Act of 1866, preventing enforcement of the southern states’ Black Codes.　In Strauder v. West Virginia (1880), the Supreme Court recognized exclusion of African Americans from West Virginian juries as an unconstitutional infringement of this clause, triggering the 1866 law’s provision to remove the underlying case to federal court. In Yick Wo v. Hopkins (1886), the Supreme Court clarified that race-neutral laws administered in discriminatory ways were similarly unconstitutional.

Whereas the Privileges or Immunities Clause refers to citizens, this clause refers to all people within the jurisdiction of the United States. Accordingly, in Plyler v. Doe (1982), the Supreme Court prohibited state governments from restricting public education on the basis of a child’s immigration status. In that decision, Justice William J. Brennan Jr. noted that in Wong Wing v. United States (1896), the Supreme Court had already recognized illegal immigrants as within American jurisdiction for the purposes of due process rights.

While the Fourteenth Amendment’s Due Process Clause incorporates the Bill of Rights against state governments, the Fifth Amendment’s similar clause has been used for reverse incorporation of the Equal Protection Clause against the federal government. In Bolling v. Sharpe (1954), the Supreme Court used this doctrine to prevent the federal government from maintaining segregated public schools in Washington, D.C.

The Supreme Court also decided whether foreign corporations are also within the jurisdiction of a state, ruling that a foreign corporation which sued in a state court in which it was not licensed to do business to recover possession of property wrongfully taken from it in another state was within the jurisdiction and could not be subjected to unequal burdens in the maintenance of the suit. When a state has admitted a foreign corporation to do business within its borders, that corporation is entitled to equal protection of the laws but not necessarily to identical treatment with domestic corporations.

In Santa Clara County v. Southern Pacific Railroad (1886), the court reporter included a statement by Chief Justice Morrison Waite in the decision’s headnote:

The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.

This dictum, which established that corporations enjoyed personhood under the Equal Protection Clause, was repeatedly reaffirmed by later courts.[51] It remained the predominant view throughout the twentieth century, though it was challenged in dissents by justices such as Hugo Black and William O. Douglas.[52] Between 1890 and 1910, Fourteenth Amendment cases involving corporations vastly outnumbered those involving the rights of blacks, 288 to 19.[53]

In Plessy v. Ferguson (1896),[54] the Supreme Court held that the states could impose racial segregation so long as they provided similar facilities—the formation of the “separate but equal” doctrine.[55] The Court went even further in restricting the Equal Protection Clause in Berea College v. Kentucky (1908),[56] holding that the states could force private actors to discriminate by prohibiting colleges from having both black and white students. By the early 20th century, the Equal Protection Clause had been eclipsed to the point that Justice Oliver Wendell Holmes Jr. dismissed it as “the usual last resort of constitutional arguments.”[57]

The Court held to the “separate but equal” doctrine for more than fifty years, despite numerous cases in which the Court itself had found that the segregated facilities provided by the states were almost never equal, until Brown v. Board of Education (1954) reached the Court.[58] In Brown the Court ruled that even if segregated black and white schools were of equal quality in facilities and teachers, segregation was inherently harmful to black students and so was unconstitutional. Brown met with a campaign of resistance from white Southerners, and for decades the federal courts attempted to enforce Brown’s mandate against repeated attempts at circumvention.[59] This resulted in the controversial desegregation busing decrees handed down by federal courts in various parts of the nation.[60] In Parents Involved in Community Schools v. Seattle School District No. 1 (2007), the Court ruled that race could not be the determinative factor in determining to which public schools parents may transfer their children.[61][62]

In Hernandez v. Texas (1954), the Court held that the Fourteenth Amendment protects those beyond the racial classes of white or “Negro” and extends to other racial and ethnic groups, such as Mexican Americans in this case.[63] In the half-century following Brown, the Court extended the reach of the Equal Protection Clause to other historically disadvantaged groups, such as women and illegitimate children, although it has applied a somewhat less stringent standard than it has applied to governmental discrimination on the basis of race (United States v. Virginia (1996);[64] Levy v. Louisiana (1968)[65]).[66]

The Supreme Court ruled in Regents of the University of California v. Bakke (1978)[67] that affirmative action in the form of racial quotas in public university admissions was a violation of Title VI of the Civil Rights Act of 1964; however, race could be used as one of several factors without violating of the Equal Protection Clause or Title VI.[68] In Gratz v. Bollinger (2003)[69] and Grutter v. Bollinger (2003),[70] the Court considered two race-conscious admissions systems at the University of Michigan. The university claimed that its goal in its admissions systems was to achieve racial diversity.[71] In Gratz, the Court struck down a points-based undergraduate admissions system that added points for minority status, finding that its rigidity violated the Equal Protection Clause; in Grutter, the Court upheld a race-conscious admissions process for the university’s law school that used race as one of many factors to determine admission.[72] In Fisher v. University of Texas (2013), the Court ruled that before race can be used in a public university’s admission policy, there must be no workable race-neutral alternative.[73][74] In Schuette v. Coalition to Defend Affirmative Action (2014), the Court upheld the constitutionality of a state constitutional prohibition on the state or local use of affirmative action.[75][76]

Reed v. Reed (1971),[77] which struck down an Idaho probate law favoring men, was the first decision in which the Court ruled that arbitrary gender discrimination violated the Equal Protection Clause.[78] In Craig v. Boren (1976),[79] the Court ruled that statutory or administrative sex classifications had to be subjected to an intermediate standard of judicial review.[80] Reed and Craig later served as precedents to strike down a number of state laws discriminating by gender.[78]

Since Wesberry v. Sanders (1964)[81] and Reynolds v. Sims (1964),[82] the Supreme Court has interpreted the Equal Protection Clause as requiring the states to apportion their congressional districts and state legislative seats according to “one man, one vote”.[83] The Court has also struck down redistricting plans in which race was a key consideration. In Shaw v. Reno (1993),[84] the Court prohibited a North Carolina plan aimed at creating majority-black districts to balance historic under-representation in the state’s congressional delegations.[85]

In Pitts v. Black (1984) the Court established that, by refusing the homeless to register to vote, the New York City Board of Elections was in breach of the Equal Protection Clause. As a result, homeless voters were allowed to cast their ballots.[86]

The Equal Protection Clause served as the basis for the decision in Bush v. Gore (2000),[87] in which the Court ruled that no constitutionally valid recount of Florida’s votes in the 2000 presidential election could be held within the needed deadline; the decision effectively secured Bush’s victory in the disputed election.[88] In League of United Latin American Citizens v. Perry (2006),[89] the Court ruled that House majority leader Tom DeLay’s Texas redistricting plan intentionally diluted the votes of Latinos and thus violated the Equal Protection Clause.[90]

State actor doctrine

The Eleventh Amendment provides state governments with sovereign immunity from federal lawsuits brought by citizens of other states, and in Hans v. Louisiana (1890), the Supreme Court held that it implies immunity from all lawsuits brought by private parties. In Fitzpatrick v. Bitzer (1976), the Supreme Court determined that Section 5 of the Fourteenth Amendment’s congressional power of enforcement allows the federal government to limit state sovereign immunity.[91]

Furthermore, in Ex parte Young (1908), the Supreme Court held that private individuals could seek federal injunctions against state officials to prevent enforcement of unconstitutional laws, reasoning that unconstitutional conduct can never be a protected state action. Similarly, in Shelley v. Kraemer (1948), the Supreme Court held that while the federal government cannot prevent private parties from establishing racially discriminatory housing covenants, state and federal courts cannot enforce them.[92]

In cases like Jackson v. Metropolitan Edison Co. (1974) and Flagg Bros., Inc. v. Brooks (1978), the Supreme Court clarified that state laws do not transform regulated businesses into state actors. Thus, private companies are free to engage in conduct that would be unconstitutional for state governments to pursue, though the federal government can prevent discriminatory private conduct under its Commerce Clause authority, and state governments may further regulate business operations.[93]

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Week 4.2

Other important cases: Reed v. Reed South Carolina v. Dole Bostock v. Clayton County

1. Frontiero v. Richardson, 411 U.S. 677 (1973)

2. Craig v. Boren, 429 U.S. 190 (1967)

Facts?
 – Oklahoma has a statute that bars the sell of alcoholic beverages over 3.2% VOL to men over the age of 21 and women over the age of 18.

Plaintiffs’ argument?
 – Discrimination based sex by the Oklahoma state violates the Due Process Clause of the 14th Amendment.

Government’s argument?
 – Statistics from several surveys shows barring male aged between 18 and 20 can lower DUI rates, therefore improving traffic safety within the state.

Issue?
 – Does the Oklahoma statute violate the equal protection clause of the fourteenth amendment.

Holding?
 – Yes. The Oklahoma statute discriminates man between the age of 18 and 20.

Reasoning (Justice Brennen):
 – “Liberty” under the Fifth Amendment incorporates notions of equality.
 – Discrimination so unjustifiable as to be arbitrary violates due process.
 – Hence, equality principles reverse‑incorporated into the Fifth Amendment.

Level of scrutiny? – Effectively strict scrutiny for sexual classifications.

Significance:
 – Created Intermediate Scrutiny: Sex and gender as a suspect class that requires a level of scrutiny between rational basis review and strict scrutiny, requiring the state to demonstrate important governmental interest and the law must be substantially related to that interest.

Of course — and you’re very smart to allow extra room for United States v. Virginia (1996), because the case turns heavily on the unique nature of VMI (Virginia Military Institute) and the concept of “exceedingly persuasive justification” for gender-based classifications.
I’ll stick close to your Craig v. Boren format but expand the VMI context more deeply as you requested.

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3. United States v. Virginia, 518 U.S. 515 (1996)

Facts?
– Virginia Military Institute (VMI), a prestigious and publicly funded military college, had a male-only admission policy. It was the only single-sex public higher education institution in Virginia and had a reputation for a rigorous, adversative (harsh, militaristic) training method to develop “citizen-soldiers.”

Plaintiffs’ argument?
– The United States sued Virginia, claiming that excluding women from VMI violated the Equal Protection Clause of the Fourteenth Amendment.
– Separate but equal is not permissible here; the state’s action must meet heightened scrutiny for sex-based classifications.
– VMI’s male-only policy perpetuated archaic stereotypes about gender roles and deprived women of unique educational opportunities. – Virginia’s proposal to create a separate program for women (Virginia Women’s Institute for Leadership at Mary Baldwin College) was not an adequate remedy because it was not equivalent in prestige, rigor, or opportunity.

Virginia’s defense?
– Claimed that admitting women would fundamentally alter VMI’s unique adversative method.
– Argued that creating a parallel women’s program at another school (VWIL) was sufficient to meet constitutional requirements.

Issue?
– Does Virginia’s exclusion of women from VMI violate the Equal Protection Clause of the Fourteenth Amendment?

Holding?
– Yes. VMI’s male-only admissions policy was unconstitutional, and the proposed alternative program for women did not cure the violation.

Reasoning (Justice Ginsburg, majority):
– The state must show an “exceedingly persuasive justification” for gender-based classifications.
– Generalizations about women’s abilities or preferences cannot justify state-sponsored exclusion. – VWIL was not genuinely equal to VMI: it offered less rigorous training, lower funding, different academic offerings, and inferior prestige.
– VMI’s goals (producing citizen-soldiers through adversative methods) could be achieved without excluding women entirely; the program could adapt.

Level of scrutiny?
– Intermediate scrutiny, but intensified:
– The classification must serve important governmental objectives.
– The means employed must be substantially related to achieving those objectives.
– The justification must be “exceedingly persuasive” — a stricter version of intermediate scrutiny.

Significance:
– Cemented gender-based discrimination as requiring heightened (almost strict) intermediate scrutiny.
– Rejected overbroad generalizations about gender roles.
– Marked a major victory for women’s rights, reinforcing that separate but unequal facilities violate equal protection, even outside racial contexts.

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Week 5.1 — Other Suspect Classifications

1. San Antonio I.S.D. v. Rodríguez, 411 U.S. 1 (1973)

Facts?
– Texas financed public schools through a statewide foundation program plus each district’s property-tax levy. Property-poor Edgewood I.S.D. raised far less per pupil than affluent Alamo Heights, even though Edgewood taxed itself at a ==higher== rate.

Plaintiffs’ argument?
– The scheme discriminates against a suspect class of poor children and burdens the fundamental right to education, demanding strict scrutiny.

State’s argument?
– Local control justifies relying on local property wealth; education is not a fundamental right and wealth is not a suspect class.

Issue?
– Does the Texas finance system violate the Equal Protection Clause because it creates wealth-based disparities in per-pupil spending?

Holding?
– No. Wealth is not a suspect classification and education, though important, is not a fundamental right; rational-basis review applies, and the system is rational.

Reasoning (Justice Powell):
First, the plaintiffs could not define a discrete indigent class—poor families are scattered across districts.
Second, no child suffers an absolute deprivation of schooling; disparities are relative.
Third, strict scrutiny is reserved for suspect classes (race, alienage, etc.) or fundamental rights; neither is present.
Fourth, the system rationally furthers two legitimate goals: (1) local fiscal autonomy and (2) experimentation in educational policy.

Level of scrutiny? – Rational-basis (deferential).

Concurrence (Justice Stewart, solo) – Agrees education is not a fundamental right and no suspect class is involved, so rational-basis review suffices; finds the Texas scheme satisfies that test.

Dissents: Justice White (joined by Douglas & Brennan) – Local-wealth differentials deprive poor districts of any real choice to raise funds; the scheme is irrational because equal tax effort yields radically unequal revenue. ​ Justice Marshall (joined by Douglas) – Education is “vital to political and social life” and should trigger heightened scrutiny; the State must show its means are substantially related to achieving legitimate goals, which it failed to do. ​

Significance:
– Rejected “poverty” as a suspect class; cemented the rule that most socioeconomic legislation gets minimal review and left school-finance reform to politics.

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2. Plyler v. Doe, 457 U.S. 202 (1982)

Facts?
– Texas statute denied state funds and let local districts exclude undocumented children from free K-12 education.

Plaintiffs’ argument?
– The law imposes a lifetime disability on children not responsible for their immigration status, violating equal protection.

State’s argument?
– Texas may conserve resources for lawful residents and deter illegal immigration.

Issue?
– May a state bar undocumented school-age children from free public education?

Holding?
– No. Section 21.031 violates the Equal Protection Clause.

Reasoning (Justice Brennan):
First, undocumented children are “persons” within the Fourteenth Amendment.
Second, the classification is neither suspect nor wholly ordinary; education is not fundamental, but the deprivation is grave and permanent.
Third, Texas’s asserted interests (saving money, discouraging migration, classroom burdens) are speculative and poorly tailored.
Fourth, the statute would create an illiterate underclass, harming the State and Nation—so even under “heightened rationality” the law fails.

Level of scrutiny? – “Intermediate-plus” rational basis (often called rational basis with bite).

Concurrence (Justice Marshall, solo): – Reiterates his Rodríguez position: education is a fundamental interest; the majority reaches the right result but should have applied strict scrutiny. ​ —

Dissent (Chief Justice Burger, joined by White, Rehnquist & O’Connor): – The Court acts as “Platonic Guardians”; Texas may ration public resources and is not constitutionally compelled to educate those who entered unlawfully. ​

Significance:
– Shows the Court will stiffen rational-basis review when legislation targets a vulnerable, innocent group and jeopardizes core civic participation.

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3. City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985)

Facts?
– Cleburne required a special-use permit for a 13-person group home for the mentally retarded, yet allowed boarding houses, hospitals, dorms, etc., as of right in the same zone.

Plaintiffs’ argument?
– The permit denial rested on irrational stereotypes and violated equal protection.

City’s argument?
– Mentally retarded residents pose unique concerns (flood plain, junior-high harassment, density, legal liability).

Issue?
– Does denying the permit violate equal protection, and is mental retardation a quasi-suspect classification?

Holding?
– Yes (as-applied); the ordinance is irrational here, but mental retardation is not a quasi-suspect class. UNANIMOUS JUDGMENT.

Reasoning (Justice White): First, heightened scrutiny is limited to groups with deep prejudice and limited political power; recent legislation shows active political protection for the retarded.
Second, nonetheless the city offered no rational link: fears and neighbor hostility are illegitimate, flood risk applies equally to permitted uses, and size/density limits are inconsistently enforced.
Third, mere “bare desire to harm a politically unpopular group” is never legitimate.

Concurrences: Justice Stevens (joined by Burger & Powell) – Would invalidate the permit requirement on traditional rational-basis grounds but stresses that insisting on a special permit “reflects only unthinking prejudice.” Justice Marshall (joined by Brennan & Blackmun) (concurring in part, dissenting in part) – Agrees the ordinance is invalid but argues that mental retardation deserves heightened scrutiny because of a long history of exclusion and the fundamental interest in establishing a home. ​

Level of scrutiny? – Formal rational-basis, but with searching inquiry (“rational-basis with bite”). word games

Significance:
– Clarified that disability is not quasi-suspect, but also that irrational prejudice flunks even low-level review; became the template for later animus cases.

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4. Romer v. Evans, 517 U.S. 620 (1996)

Facts?
– Colorado’s Amendment 2 barred state or local governments from enacting any law protecting persons from discrimination on the basis of sexual orientation.

Plaintiffs’ argument?
– The amendment singles out gays and lesbians for a blanket disability and cannot survive even rational review.

State’s argument?
– Amendment 2 prevents special preferences and upholds freedom of association.

Issue?
– Does Amendment 2 violate the Equal Protection Clause?

Holding?
– Yes. It fails even ordinary rational-basis review.

Reasoning (Justice Kennedy):
First, equal protection requires a connection between a classification and a legitimate goal; here none exists.
Second, the amendment is both too narrow and too broad—it targets a single trait yet bans protection in every sphere.
Third, its breadth reveals a “bare…desire to harm” an unpopular group, which is not a legitimate state interest (citing Moreno).
Fourth, by closing the political process to one class alone, Amendment 2 violates the core meaning of equal protection.

Level of scrutiny? – Nominal rational-basis, but explicitly animated by the animus doctrine.

Dissent (Justice Scalia, joined by Rehnquist & Thomas): – Faults the majority for inventing a new “animus” test; contends Amendment 2 is a permissible moral choice comparable to Bowers v. Hardwick, and that rational-basis review should uphold a law reflecting voters’ moral disapproval of homosexuality. (Reasoning drawn from the opinion; no file excerpt available.)

Significance:
– First Supreme Court victory for LGBT rights; established that laws motivated by animus flunk equal protection without requiring heightened scrutiny, paving the way to Lawrence and Obergefell.

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Quick Comparative Takeaway

Case	Suspect Class?	Review Applied	Court’s Core Logic (sound-bite)
Rodríguez	None (wealth)	Rational basis	Local control justifies funding disparities
Plyler	None (undocumented kids)	“Rational-plus”	Penalizing innocent children is irrational
Cleburne	None (disability)	Rational-basis-with-bite	Prejudice ≠ legitimate zoning rationale
Romer	None (sexual orientation)	Rational-basis-with-bite	Animus alone is not a public purpose

Modern Equal Protection Classifications

• Strict scrutiny (⁠“suspect class”⁠)
  The State must show the law is narrowly tailored to meet a compelling interest. The Court has only put a few classifications here because history shows they trigger prejudice that politics can’t easily cure.
• Intermediate scrutiny (⁠“quasi-suspect class”⁠)
  The State must show the law is substantially related to an important interest. Sex (and illegitimacy) live here; the Court has not formally moved sexual-orientation or gender-identity up from rational-basis, though the post-Obergefell jurisprudence is functionally “rational-basis-plus.”
• Rational basis (ordinary or “with bite”)
  Law must be rationally related to a legitimate interest. Age (Murgia), disability (Cleburne), wealth (Rodriguez), etc., stay here, but the Court occasionally uses a skeptical variant (“with bite”) when it smells animus.

Classification	Level of Scrutiny	Lead SCOTUS Cases (chronological key)	2025 Notes / Common Caveats
Race / Ethnicity / Color	Strict	Korematsu (1944, discredited but not overruled); Brown (1954); Adarand (1995); Students for Fair Admissions (2023)	Includes any use of racial categories, even if facially benign (e.g., affirmative-action quotas).
National Origin	Strict	Hernandez v. Texas (1954); Oyama (1948)	Often travels with race; covers ancestry & ethnicity.
State-law Alienage (lawful perm. residents)	Strict	Graham v. Richardson (1971)	Not strict if (i) classification comes from Congress or (ii) is tied to “political-community functions” (Foley 1978).
Religion	Strict (as equal-protection classification)	Larson v. Valente (1982); Lukumi (1993)	Rare; most modern religious cases arise under the First Amendment, but the Court treats religious gerrymanders as suspect under EP too.
Fundamental-right burdens (voting, interstate travel, marriage, speech…)	Strict (even if the underlying group isn’t suspect)	Reynolds v. Sims (1964) (vote); Saenz v. Roe (1999) (travel); Obergefell (2015) (marriage)	Technically not a “class,” but any line that burdens a fundamental right gets strict scrutiny.
Sex / Gender	Intermediate	Reed (1971); Craig v. Boren (1976); United States v. Virginia (1996)	Test has drifted toward “exceedingly persuasive justification,” i.e., high-powered intermediate scrutiny.
Illegitimacy (non-marital parentage)	Intermediate	Levy (1968); Trimble (1977); Clark (1984)	Still used, mostly in benefits & probate contexts.
Undocumented CHILDREN	“Intermediate-plus” (exact label avoided)	Plyler v. Doe (1982)	Only this narrow cohort; adult undocumented aliens remain rational-basis.
Sexual Orientation	Formally Rational-basis-plus (strict bite)	Romer (1996); Windsor (2013); Obergefell (2015)	Court hasn’t uttered “suspect,” but its analysis is more searching than ordinary rational basis.
Gender Identity	No formal tier yet	Cert. grants in 2024-25 (e.g., Doe v. Oklahoma) suggest forthcoming showdown, but current precedent applies Romer-style rational-basis-plus.
Age	Rational Basis	Murgia (1976)	Congress—not the Court—elevated scrutiny legislatively (ADEA).
Disability	Rational-basis-plus	City of Cleburne (1985)	ADA & Rehab Act now supply most bite; Court continues to apply deferential review.
Poverty / Wealth	Rational Basis	San Antonio v. Rodriguez (1973)	Court has rejected a poverty suspect class.

Important Explicit/Implicit Positive Obligations

“Positive right” = an affirmative governmental duty (providing a good/service). Unlike European constitutions, ours is mostly negative-rights-oriented; but a handful of doctrines DO compel action:

• Text-based, explicit – requirements baked into the instrument (jury, habeas, counsel, fair elections).
• Doctrine-driven, implicit – obligations the Court inferred from Due Process, Equal Protection, or the Eighth Amendment (prison medical care, marriage licensing, etc.).

Positive Duty the State Must Perform	Source (Clause + Lead Case)	Scope & Limits (2025 snapshot)
Provide counsel to indigent criminal defendants	6th Am. & 14th Am.; Gideon v. Wainwright (1963); Argersinger (1972); Alabama v. Shelton (2002)	Applies to any offense with actual imprisonment; extends to first appeal (Douglas 1963).
Furnish trial/appeal transcripts to indigent defendants	14th Am. DP & EP; Griffin v. Illinois (1956)	Ensures meaningful appeal access—not just paper availability.
Conduct regular, equal, and fairly apportioned elections	Art. I, § 4; 14th Am. EP; Baker v. Carr (1962); Reynolds v. Sims (1964)	Requires states to draw districts of substantially equal population; triggers strict scrutiny for vote-dilution schemes.
Issue marriage licenses on equal terms	Substantive DP & EP; Loving v. Virginia (1967); Obergefell v. Hodges (2015)	State must affirmatively provide access to the civil institution once it offers marriage at all.
Maintain minimally adequate prison conditions & medical care	8th Am.; Estelle v. Gamble (1976); Brown v. Plata (2011)	Duty is “deliberate-indifference” standard; can force states to spend money or release prisoners to comply.
Ensure basic access to elementary & secondary education for undocumented children	14th Am. EP; Plyler v. Doe (1982)	Limited to K-12 and only bars exclusion or punitive tuition; does not mandate equal funding.
Habeas corpus availability	Art. I, § 9 (Suspension Cl.); Boumediene v. Bush (2008)	Federal courts must be open to test the lawfulness of detention unless Congress properly suspends.
Provide library / legal-materials access for prisoners	1st & 14th Am. (access to courts); Bounds v. Smith (1977); scaled back by Lewis v. Casey (1996)	Only to the extent necessary to file non-frivolous legal claims.
Grand-jury indictment in federal felony cases	5th Am.	Textual; does not bind the states (incorporation never happened).

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Week 5 Office Hour

• Suspect class question, any other, social policy making, Burger court (any older cases?)
• On the last issue-spotting exercise:
  • Cite specific pages
  • Reiterating the facts — IRAC, no facts, just revelant parts
  • Quoting other cases beyond the scope of this course — although mentioned and referred readings
  • Standing
  • How long would each issue be? should i keep this flow or simpley use a more rigid IRAC methods, such to clearly state what each section is about
• Thanks for sharing the pro bono opportunities — landed in Federal Defender
  • Is it well respected
  • What to prepare in six month
    • ==Constitutional cases, 4A, 5A, 6A, 8A, and sometimes 14A==
      • In a nutshell
    • Textbooks to skim through
    • Books to read? The New Jim Crow, the
    • Guide Books/Practice Advisories: Sentencing Guidelines, Circuit Specific Manual, DOJ/NACDL guidebooks
    • Mayeux

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Week 5 Discussion

Hypo 1.

Drawing on a recent study demonstrating that unmarried men are responsible for 90% of all car accidents in the state, Illinois adopts a formal policy of denying drivers’ licenses to single men. Only married men, and all women, may obtain a license. The policy is challenged by Jack McCoy, an unmarried man who drives a taxi.

Issue: whether barring a subset of one gender is sufficient Reason: Important government interest — ok to reduce rate, all other remedies, equal arguments can be made that all young drivers since they overlap, and even worse it can be similar to the that 90% of all are DUI, and then ban all alcohol, doesn’t change the man or improve the education, the other consequences of infriging people’s right to drive and make a living, so not narrowly tailored. Craig, Virginia.

• Can do both way

Hypo 2 Arguing that women are better at caring for young children, NYC established a formal policy of preferring female to male applicants in a city-run day care. This policy is challenged by Raymond Shaw, a former solider looking for a new career. You are the judge deciding this case.

Issue, Sounds like it can be either way, like all these cases can be argued either way, and even on several different standard, e.g., inter or RB

Hypo 3 California ban ban all tattooed people from attending state college for immorality

The adequate and independent state ground doctrine states that when a litigant petitions the U.S. Supreme Court to review the judgment of a state court which rests upon both federal and non-federal (state) law, the U.S. Supreme Court does not have jurisdiction over the case if the state ground is (1) “adequate” to support the judgment, and (2) “independent” of federal law. See Michigan v. Long, 463 U.S. 1032, 1038 (1983) (“It is, of course, incumbent upon this Court to ascertain for itself whether the asserted non-federal ground independently and adequately supports the judgment.” (internal quotation marks omitted)); Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935) (“[W]here the judgment of a state court rests upon two grounds, one of which is federal and the other non-federal in character, our jurisdiction fails if the non-federal ground is independent of the federal ground and adequate to support the judgment.”); Murdock v. City of Memphis, (“[W]hether there exist other matters in the record actually decided by the State court which are sufficient to maintain the judgment of that court, notwithstanding the error in deciding the Federal question. In [that case] the court would not be justified in reversing the judgment of the State court.”).

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Week 5.2 — Affirmative Action

• Why it doesn’t past rational basis review? Why is it not strict scrutiny.
• This term refers to groups that are distinct (discrete) and isolated (insular) from the mainstream political process. They are often characterized by an immutable or highly visible characteristic, such as race, that makes them easy to target for discrimination. 

1. Regents of the University of California v. Bakke, 438 U.S. 265 (1978)

Facts / Procedural Posture
– UC-Davis Med School set aside 16 of 100 seats for applicants who identified as “Blacks, Chicanos, Asians, or American Indians” and who competed only against each other under a separate admissions track (“Special Admissions”).
– Allan Bakke, a 33-year-old white male engineer and former Marine with GPA = 3.46 & MCAT = 511/600, was rejected twice, while minority applicants with substantially lower scores were admitted under the set-aside. – Bakke sued in California superior court → won summary judgment → CA Supreme Court struck the quota and ordered his admission. UC Regents sought cert.

Plaintiff’s theory (Bakke)
– The quota is a racial classification triggering strict scrutiny under Equal Protection (14A) and Title VI (because UC-Davis receives federal funds).
– Remedies for societal discrimination are too amorphous; there is no showing that UC discriminated or that Bakke personally benefitted from past discrimination.

University’s theory
– Compelling interests: (1) Remedying historic exclusion of minorities from medicine; (2) Improving medical care to underserved communities; (3) Training students for a diverse society; (4) Obtaining educational benefits of classroom diversity (Harvard-style rationale).
– Quota is narrowly tailored: 16 seats (16%) ≈ minority hospital-service population; race is one factor for the remaining 84 seats.

Issues

1. Does the special-admissions quota violate the Equal Protection Clause?
2. Does it violate Title VI of the Civil Rights Act (1964)?
3. If unconstitutional, what is the proper remedy?

Holdings / Vote Map
– No single majority opinion; Powell’s opinion (Parts I, III-C, IV, V) controls (4–1–4 alignment).

• Powell (1) + “liberal four” (Brennan, White, Marshall, Blackmun) = 5 votes to allow race as a plus factor.
• Powell + “conservative four” (Burger, Rehnquist, Stewart, Stevens) = 5 votes to forbid a rigid quota & order Bakke admitted.
  – Result: Quota invalid (Bakke admitted), but race-conscious holistic review permissible.

Reasoning (Justice Powell, controlling)
Step 1 – Standard of Review:
– Racial classifications by any government actor are “inherently suspect” → strict scrutiny (same for benign vs. invidious).
Step 2 – Compelling Interest Analysis:
– Remedying societal discrimination = too ill-defined.
– Medical-service goals & countering shortage of minority doctors = not shown.
– Classroom diversity (Harvard plan) is compelling because it advances robust academic freedom.
Step 3 – Narrow Tailoring:
– A fixed 16-seat quota is not narrowly tailored: treats race as decisive, forecloses individual review, lacks flexibility, no logical sunset.
– A holistic system that considers race as “one factor among many”—e.g., Harvard’s assigning an edge to “race/ethnicity” but pitting all applicants in a single pool—would survive.
Step 4 – Statutory Mirror:
– Title VI is ==coextensive with Equal Protection== whenever the defendant is a state actor; same analysis, same result.

Concurrence–Dissent (Brennan, White, Marshall, Blackmun)
– Standard of Review: Only intermediate scrutiny for ==benign== racial classifications.
– Remedial & diversity interests are compelling; the 16-seat set-aside is narrowly tailored.
– Would uphold the plan in its entirety!

Concurrence (Stevens, joined by Burger, Rehnquist, Stewart)
– Focuses on Title VI text: race-based exclusion from a federally funded program is flatly prohibited; therefore, quota illegal without Equal-Protection analysis.
– Would avoid constitutional question.

Level of Scrutiny Applied in Result: Strict scrutiny (“suspect classification”); quota fails tailoring prong.

Significance / Aftermath
– First SCOTUS recognition that diversity can be a compelling state interest.
– Provided the Harvard holistic model as a roadmap.
– Spawned a trilogy: Grutter v. Bollinger (2003) (upheld Michigan Law’s holistic use); Gratz (2003) (struck undergrad point system); ultimately overruled in part by SFFA v. Harvard (2023), below.
– Introduced the “Bakke‐two-step”: (1) diversity compelling, (2) quotas verboten.

Socratic-Class Landmines & Answers
– Q: “Did Bakke create binding precedent if no majority?” → Yes, under the Marks rule Powell’s opinion controlling where five Justices concur in judgment on narrowest grounds.
– Q: “Is Title VI broader than Equal Protection?” → Not for state actors; but Title VI can reach private universities (e.g., Harvard) receiving federal funding; EP does not.
– Q: “What tailoring tools did Powell suggest?” → Individualized review, no fixed seat reservations, race as a ‘tip’ not a clincher, periodic end-point review.

2. Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. — (2023) (consolidated with SFFA v. UNC)

Facts / Procedural Posture
– Harvard (private, Title VI) and UNC (public, Equal Protection) used holistic admissions where self-identified race could boost a “personal rating.”
– SFFA, founded by activist Edward Blum, alleged discrimination against Asian-American and white applicants. District courts upheld both programs after lengthy bench trials; First Cir. affirmed Harvard judgment; Fourth Cir. interlocutory appeal pending for UNC. SCOTUS granted cert & heard both cases together.

Petitioner’s theory (SFFA)
– Strict scrutiny: Diversity is no longer compelling (or never was), and even if it is, the plans are not narrowly tailored → rely on racial stereotypes, lack end-point, and disadvantage Asians.
– Title VI incorporates Equal Protection standards; Harvard’s system thus unlawful.

Universities’ theory
– Diversity remains compelling under Bakke/Grutter line; race is only one contextual factor among dozens; no quota or set-aside; periodic reviews show no workable race-neutral alternative.

Issues

1. Should the Court overrule Bakke/Grutter and prohibit race-conscious admissions altogether?
2. Even if those precedents stand, do Harvard & UNC fail strict scrutiny?

Holdings / Vote Map
– 6–3 (Roberts C.J.; Thomas, Alito, Gorsuch, Kavanaugh, Barrett):

• Race-based admissions violate the Equal Protection Clause & hence Title VI.
• Bakke/Grutter “cannot be reconciled” with core EP principle of color-blindness → effectively overruled.
  – Sotomayor diss. (joined by Kagan & Jackson for UNC part); Jackson diss. separately (recused from Harvard); both decry “historical amnesia.”

Majority Reasoning (Chief Justice Roberts)
Step 1 – Strict Scrutiny Reaffirmed:
– Racial classifications are “odious” and permissible only where precisely tailored to a truly compelling interest.
Step 2 – Compelling Interest?
– Universities’ asserted benefits (“training leaders,” “combatting stereotypes,” “civic engagement”) are immeasurable, unreviewable, and lack a logical endpoint.
– Contrasts with Brown’s command that racial distinctions must be eliminated “root and branch.”
Step 3 – Narrow Tailoring?
– Data show consistent racial balancing (“strikingly stable” admit percentages).
– Race-neutral tools (geographic, socioeconomic, first-gen preferences) were not seriously pursued.
– Use of broad racial categories (Asian, Hispanic, Black) masks intragroup diversity and peddles stereotypes. Step 4 – Carve-outs & Caveats:
– Military academies get “no view”—national-security briefs left open.
– Applicants may still describe how race affected them personally (e.g., overcoming discrimination); but schools cannot award a benefit “because of race itself.”

Thomas Concurrence
– History-textualism: Constitution requires color-blindness; race‐conscious remedies perpetuate stigma and harm intended beneficiaries.

Gorsuch Concurrence (joined by Thomas)
– Title VI text independently bars race-conscious admissions for all federally funded schools, public or private.

Kavanaugh Concurrence
– Notes 25-year sunset promised in Grutter has arrived; racial preferences must end.

Sotomayor Dissent
– Calls majority “color-blind in theory, color-deaf in reality”; race still matters; diversity undeniably compelling; Court “cements a superficial rule of color-blindness.” Brown is not about eliminating classification, but for equality. However, in reality, it’s impossible to achieve equality without classification given the entrenched socio-economic, political disparities on the basis of race.

Jackson Dissent (UNC)
– Emphasizes intergenerational racial inequality statistics; warns of “let-them-eat-cake” jurisprudence.

Level of Scrutiny Applied: Strict scrutiny (and programs fail both prongs).

Significance / Immediate Fallout
– Ends affirmative action in virtually all higher-education admissions (except narrow potential pocket for service academies).
– Overrules the diversity rationale as compelling—though footnote allows race-linked experiences discussion.
– Revives debate on legacy preferences, socioeconomic factors, pipeline programs, and percentage-plan alternatives.
– Expects wave of litigation: scholarships, faculty hiring, corporate DEI plans.

Socratic-Class Landmines & Answers
– Q: “Is diversity per se no longer compelling?” → Majority: diversity goals “too amorphous.”+ Even if compelling, tailoring fails. Effectively impossible to resurrect.
– Q: “What about Title VI vs. EP after SFFA?” → Gorsuch: Title VI textually bars any racial preferences in federally funded programs—so private universities are doubly locked out.
– Q: “Why the military carve-out?” → Majority cites unique national-security interests but takes no position; signals separate litigation ahead.
– Q: “May a Black applicant still write about racial adversity?” → Yes, but admissions must evaluate that story’s individual merit, not award points because “Black.”
– Q: “Does SFFA expressly overrule Bakke?” → Not in so many words, but by declaring its central premise (diversity as compelling interest) unworkable, the Court functionally discards it (“Grutter is abandoned, Bakke reduced to historical artifact”).

3. Grutter v. Bollinger (2003)

• Facts: White applicant denied admission to Michigan Law; challenged race-conscious admissions.
• Issue: Does holistic use of race in admissions violate Equal Protection?
• Doctrines: Strict scrutiny, diversity as compelling interest, narrow tailoring.
• Holding: UPHELD policy; diversity is compelling, and individualized review without quotas is narrowly tailored.

4. Fisher v. UT Austin I (2013)

• Facts: White applicant challenged UT’s race-conscious admissions (top 10% plan + holistic review).
• Issue: Did lower courts apply the correct level of scrutiny?
• Doctrines: Clarified strict scrutiny must be genuine, not deferential.
• Holding: REMANDED; courts must rigorously test if race-neutral alternatives suffice.

5. Fisher v. UT Austin II (2016)

• Facts: Same case after remand; UT defended use of race as limited and justified.
• Issue: Does UT’s policy survive strict scrutiny?
• Doctrines: Strict scrutiny, narrow tailoring, deference to educational judgment.
• Holding: UPHELD policy (4–3); race use was limited, periodic, and no workable race-neutral alternative existed.

3. Regents of UC v. Bakke (1978)

• Facts: White applicant denied by UC-Davis Med due to 16-seat racial quota.
• Issue: Can race-based set-asides be used in admissions?
• Doctrines: Strict scrutiny, Title VI, diversity rationale (Powell).
• Holding: Struck quota, but allowed race as one factor in a holistic review—diversity = compelling.

Quick Comparative Cheat-Sheet

Dimension	Bakke (1978)	SFFA (2023)
Classification Level	Strict scrutiny (suspect class)	Strict scrutiny reaffirmed
Compelling Interest Recognized	Powell: “Diversity” in education	Majority: Diversity not compelling (too abstract)
Tailoring Test	No quotas; individualized “plus factor” OK	Any race “tip” invalid; only race-linked experience narrative may be weighed
Outcome	Quota struck; holistic race consideration survives	Harvard/UNC plans struck; general race consideration barred
Key Legacy	Launched 45 yrs of permissible affirmative action	Shuts the door on affirmative action; raises Title VI color-blind bar

Additional Affirmative Action Notes

On SFFA v. Harvard/UNC

• Grutter v. Bollinger
  • Compelling interest for a diverse student body
  • do not use quotas or racial balancing are narrowly tailored when there are no effective race neutral alternatives available
• Fisher I 2013
• Fisher II 2016
• Bakke 1978

Edward Blum is a conservative legal strategist and the founder/president of Students for Fair Admissions (SFFA).

• He’s not a lawyer but has engineered several landmark Supreme Court cases (e.g., Shelby County v. Holder on the Voting Rights Act).
• His mission is to eliminate racial classifications in education, voting, and employment.
• His critics argue he’s promoting a colorblind legal ideology that ignores structural inequity; his supporters view him as defending individual merit and legal neutrality.

What the fuck is he thinking?
Blum believes the Constitution requires a race-neutral society, where race should not be used by public institutions at all, even to remedy past or current discrimination. He sees affirmative action as a form of reverse discrimination.

✳️ Reaffirmed 4 Key Limits on Race-Conscious Programs:

1. No use of race as a negative: A program cannot disadvantage individuals based on their race (e.g., Asian Americans).
2. No reinforcement of stereotypes: Race must not be used in a way that assumes anything about a person’s traits or abilities.
3. Must be measurably connected to goals: Abstract invocations of “diversity” are not enough—there must be clear metrics and endpoints.
4. Race-conscious programs must have a logical endpoint: Permanent race-based policies are unconstitutional. Diversity cannot be so vague that schools never know when they’ve achieved it.

Despite public confusion, the ruling does not ban all attempts to increase diversity:

Permissible Strategies	Examples
Race-neutral programs	% plans (e.g., top 10% of each high school), SES-based admissions, adversity scoring, first-gen preference
Holistic review of racialized experiences	Applicants may still write about how race shaped their identity, struggle, or values—but race itself cannot be the determining factor
Increased need-based aid	More financial aid for low-income applicants
Redefining “merit”	Moving beyond test scores to include community service, leadership, overcoming hardship
Removing structural barriers	Dropping standardized tests, legacy preferences, app fees
Campus DEIA programs	Support for affinity groups, anti-discrimination systems, diverse faculty hiring

❌ Is this truly about merit?

Many critics argue the decision undermines holistic admissions by ignoring how race intersects with:

• Wealth & poverty
• Generational disadvantage
• Neighborhood & school segregation
• Trauma and resilience

Some scholars argue this returns admissions to a false “neutral” standard—one that historically benefited wealthy, white, and legacy students.

Is “colorblindness” just?
Is it justice as formal equality (treating everyone the same), or justice as substantive equality (giving people what they need to thrive)?

…to the point where we see that race is a fact, but not the defining fact and not the fact that tells us what is important, but we are not there yet. Until we are, race-conscious admissions programs that survive strict scrutiny will have an important place in society and help ensure that colleges and universities can offer a diverse atmosphere that fosters learning, improves scholarship, and encourages mutual respect and understanding. — District Court Judge Allison Burrough

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Week 6.1 — Free Speech

Categories of Speech

• Unprotected Speech (rational‑basis review, unless selective enforcement triggers scrutiny)
  • Incitement to imminent lawless action (Brandenburg)
  • “Fighting words” likely to provoke retaliatory violence (Chaplinsky)
  • True threats—serious expression of intent to harm (Virginia v. Black; Counterman)
  • Obscenity failing the Miller three‑part test
• Less‑Protected Speech
  • Sexually oriented but non‑obscene expression (Renton; Erznoznik)
  • Profane/indecent speech (FCC broadcast carve‑outs; Pacific a)
  • Commercial speech—truthful but regulable under Central Hudson
• Fully Protected Speech
  • All remaining content, including hate speech, political advocacy, artistic expression—government must satisfy strict scrutiny
  • Court’s historic bias in favorem libertatis except in “historic and traditional” exceptions

Three Approaches to the First Amendment

• Absolutist – “no law means NO LAW” (Justice Black’s view)
• Categorical – slot speech into protected/unprotected boxes; if unprotected, rational basis (Chaplinsky framework)
• Balancing – case‑by‑case weighing of speaker’s interest vs. governmental interest (Hand’s Dennis formula; modern intermediate scrutiny)

Types of Restrictions (con Examples)

• Content‑Neutral (Time/Place/Manner)
  • Ban on picketing private homes (Frisby)
  • Prohibition of any signs on utility poles
  • Night‑time amplified‑sound curfew
  • Permit required for >50 persons in a park
• Subject‑Matter Based
  • Ban on all war‑themed demonstrations—pro or anti
  • Home picketing allowed only for labor disputes
  • Judicial candidates barred from discussing “disputed legal or political issues” (Williams‑Yulee)
• Viewpoint Based
  • Ban on anti‑war protests (but pro‑war allowed)
  • Ban on signs critical of foreign governments near embassies
  • TikTok executive‑order targeting “Chinese‑owned speech platform” could be argued viewpoint‑discriminatory under R.A.V.

Levels of Judicial Scrutiny

• Rational Basis – content‑neutral limits on unprotected speech
• Intermediate Scrutiny – content‑neutral limits on protected speech (O’Brien symbolic‑burning test)
• Strict Scrutiny – any content‑based (subject‑matter or viewpoint) restriction on any speech

Two Modes of Challenge

• “As‑Applied” Challenge
  • Tests whether my conviction punishes protected speech
  • E.g., National‑security secrets law applied to aunt’s cookie recipe
  • Chilling‑effect argument: self‑censorship through vagueness or overbreadth in individual case
• Facial Challenge
  • Argues statute is invalid in all (or substantial) applications
  • Tools: Void‑for‑Vagueness & Substantial Overbreadth
  • Good practice: plead both claims whenever viable

Judicial Review Matrix

• Must track (1) category of speech, (2) type of restriction, (3) posture (facial vs as‑applied)
• Content‑based on protected speech → strict scrutiny (rarely survives)
• Content‑neutral on protected speech → intermediate scrutiny (must be narrow, alternative channels)
• Viewpoint‑based on even unprotected speech → invalid per R.A.V.

Procedural Due Process – Void for Vagueness

• “Men of common intelligence must not guess” (Connally, 1926)
• Statute must define offense so ordinary people understand & does not encourage arbitrary and discriminatory enforcement (Kolender, 1983)

Public‑Forum Doctrine (+ Examples)

• Traditional Public Forum – streets, sidewalks, parks (Grant Park, Chicago)
• Designated Public Forum (Unlimited) – city‑owned theatre opened for any event, university free‑speech zones (UCLA “Bruin Walk” when booked)
• Designated Public Forum (Limited/Purpose‑Bound) – school board meeting for curriculum comments, Northwestern lecture hall reserved for academic debate
• Nonpublic Forum – airport terminals (ISKCON), courthouse interiors, public‑school classrooms during instructional hours
• Private Property – shopping malls (under Pruneyard only in some states), Northwestern dorms; governed primarily by trespass law

Rapid‑Reference – Content (Actual Speech) vs Context (Online Platform) Restriction

• TikTok ban: arguably content‑neutral national‑security regulation (context), but critics allege discriminatory treatment of Chinese‑owned speech platform (content/viewpoint)
• Flag‑burning (Texas v. Johnson): context‑based (fire safety) struck down because law targeted one symbolic message → content‑based

1. Smith v. Goguen, 415 U.S. 566 (1974)

Facts / Procedural Posture
– Massachusetts G. L. c. 264 § 5 made it a crime publicly to “treat contemptuously” the U.S. flag.
– Joseph Goguen, 18‑year‑old anti‑war protester, was arrested in Worcester for wearing a small cloth flag sewn to the seat of his jeans. A state jury (after instructions that “contemptuous” meant whatever they thought showed disrespect) convicted him; sentence of one year (suspended).
– Massachusetts Supreme Judicial Court affirmed. Goguen then won federal habeas relief in District Court; First Circuit reversed, reinstating the conviction. SCOTUS granted certiorari.

Petitioner’s Theory (Commonwealth of Massachusetts)
– Flag protection statute is narrow, intelligible, and long‑standing; ordinary citizens understand what “contemptuous” flag treatment means.
– Law regulates conduct, not expression; any expressive elements are incidental and outweighed by state interest in preserving a national symbol.
– Even if First‑Amendment interests are implicated, the statute is comparable to regulations on draft‑card destruction (O’Brien) and survives intermediate scrutiny.

Respondent’s Theory (Goguen)
– Statute is unconstitutionally vague under the Due Process Clause: gives no objective standard, invites ad‑hoc, content‑based enforcement against unpopular speakers.
– By empowering police/juries to punish “disrespect,” the law chills core political speech and discriminates against dissenters.
– Unlike O’Brien, the state’s interest is viewpoint‑driven respect, not a neutral administrative goal; thus fails any First‑Amendment balancing.

Issues

1. Does § 5 violate Fourteenth‑Amendment Due Process because “treats contemptuously” is impermissibly vague?
2. If not void for vagueness, does it nonetheless abridge free expression protected by the First Amendment?

Holdings / Vote Map
– 6–3 (Powell, J.): § 5 is void for vagueness; conviction reversed.
– Burger C.J., Rehnquist, White dissent.
– (No need to reach broader First‑Amendment question once vagueness determined.)

Majority Reasoning (Justice Powell)
Step 1 – Vagueness Doctrine:
– Criminal statutes must furnish “explicit standards” to give fair notice and prevent arbitrary enforcement (Connally; Papachristou).
Step 2 – Application to § 5:
– Key term “contemptuously” “fails to draw reasonably clear lines between lawful and unlawful conduct.”
– Statute delegates resolution of fundamental policy (“what counts as disrespect”) to police, prosecutors, and juries on an ad‑hoc basis, creating a risk of viewpoint discrimination.
Step 3 – Distinguishing Precedent:
– Unlike narrowly drawn flag‑desecration bans on physical destruction (Street) or government‑owned flags (Spence), § 5 sweeps in any behavior a particular jury dislikes.
– Massachusetts cannot salvage the law by “judicial narrowing”; text is inherently standard‑less.
Result: Conviction set aside; statute unconstitutional as applied, and effectively facially void.

Concurrence (Justice Douglas)
– Would reach the First Amendment and hold that punishing symbolic expression—no matter how defined—violates core political speech principles announced in Stromberg and Barnette.
– Warns that deferential “respect‑for‑flag” statutes inevitably become tools against unpopular dissent.

Dissent (Justice Rehnquist, joined by Burger C.J. & White)
– States may legitimately protect a unifying national emblem; “contemptuous” has a plain meaning understood by average citizens, parallel to “obscene” in Miller.
– Court improperly stretches vagueness to strike a law merely because it dislikes the policy; majority should defer to state definitions and O’Brien balancing.

Level of Scrutiny Applied
– Vagueness / Due‑Process analysis, not classic strict‑vs‑intermediate tiers; focus on fair‑notice & anti‑arbitrariness.
– First‑Amendment merits expressly left unresolved (majority), though concurrence would apply strict scrutiny to speech regulation.

Significance / Immediate Fallout
– Reaffirmed that symbolic‑speech statutes must give clear, objective standards, laying groundwork for later flag‑burning victories (Spence ’74, Johnson ’89).
– Illustrates Court’s two‑track flag cases: vagueness (due process) v. viewpoint (First Amendment).
– Signaled that mere legislative appeals to patriotic unity will not excuse standard‑less criminal bans.
– Invited legislatures to rewrite flag‑protection laws with narrow, conduct‑specific language—many states attempted “uniform code” amendments post‑1974.

Socratic‑Class Landmines & Answers
– Q: “If ‘contemptuous’ is vague, why isn’t ‘obscene’ in Miller equally vague?”
→ Miller supplied a three‑part test; § 5 had no comparable objective elements.
– Q: “Could Massachusetts salvage the law by defining misconduct more precisely (e.g., burning, defacing)?”
→ Yes—the Court hints that a specific‑acts statute might survive vagueness (though still faces First‑Amendment attack).
– Q: “Does the ruling mean all flag‑respect laws are void?”
→ No—only those lacking clear, objective standards; physical‑destruction bans tied to fire safety or property interests may pass muster.
– Q: “Why not decide the First‑Amendment question directly?”
→ Powell prefers the narrowest‑grounds rule; once vagueness suffices, no need to reach broader speech issues.
– Q: “How does Goguen fit into the later Texas v. Johnson narrative?”
→ Goguen softens the ground: it strips away vague ‘disrespect’ statutes, forcing states into narrower bans that Johnson will later strike on content‑based grounds.

2. Airport Comm’rs v. Jews for Jesus, 482 U.S. 569 (1987)

Facts / Procedural Posture
– In 1983 the Los Angeles Board of Airport Commissioners adopted Resolution No. 13787 declaring that the entire Central Terminal Area (CTA) of LAX “is not open for First Amendment activities” and directing the City Attorney to sue anyone engaged in such conduct. – On July 6 1984 Alan “Avi” Snyder, a minister with Jews for Jesus, Inc., was stopped while handing out free religious leaflets on an outdoor pedestrian ramp; an airport officer showed him the resolution and ordered him off the premises. – Snyder and Jews for Jesus sued in the C.D. California for declaratory and injunctive relief, alleging the rule was facially unconstitutional, vague, and discriminatorily enforced. The district court (on stipulated facts) held the CTA a public forum and struck the rule; the Ninth Circuit affirmed. SCOTUS granted cert.

Petitioner’s Theory (Board of Airport Commissioners)
– Airport‑security & traffic‑flow justify a total ban; LAX terminals are, at most, a nonpublic forum, so regulations need only be reasonable and viewpoint‑neutral.
– Overbreadth doctrine does not apply because the Board intended the rule to cover only non‑airport‑related expressive activity that could impede operations.

Respondents’ Theory (Jews for Jesus & Snyder)
– Resolution is facially overbroad: it criminalizes even silent prayer, wearing a political button, or casual conversation; no narrowing construction possible.
– Even in a nonpublic forum an absolute speech ban is unreasonable and violates the First Amendment; the rule also invites selective enforcement.

Issues

1. Does Resolution 13787 violate the First Amendment by banning all “First Amendment activities” inside LAX’s central terminal?
2. Must the Court decide whether an airport terminal is a public forum before resolving the challenge?

Holdings / Vote Map
– 9 – 0 (Opinion: O’Connor, J.) → Resolution facially violates the First Amendment under the overbreadth doctrine; judgment of Ninth Circuit affirmed.
– White, J. (joined by Rehnquist, C.J.) concurring: agrees on overbreadth, but would emphasize that airports are not traditional public fora.

Majority Reasoning (Justice O’Connor)
Step 1 – Overbreadth Framework
– A law is invalid if its “plain language” prohibits a substantial amount of protected speech relative to its legitimate sweep (Broadrick, Ferber).
Step 2 – Application to Resolution 13787
– Text bars “all First Amendment activities”: encompasses political discussion, reading a newspaper, humming a hymn—speech that could not conceivably endanger airport safety.
– Such a sweeping ban would be unconstitutional even in a nonpublic forum because no governmental interest justifies eliminating all expression.
Step 3 – No Saving Construction
– Board’s invitation to infer a “speech‑unrelated‑to‑airport‑purposes” gloss is too vague and delegates unfettered discretion to airport police; Court declines to rewrite the ordinance.
Step 4 – Forum Status Unnecessary
– Because the regulation is patently overbroad, the Court need not decide whether LAX’s CTA is a traditional, designated, or nonpublic forum.

White Concurrence (joined by Rehnquist C.J.)
– Airports are typically nonpublic fora; the Board could enact reasonable, content‑neutral time‑place‑manner limits focused on congestion—but a total ban overshoots.

Level of Scrutiny Applied
– Facial overbreadth / reasonableness test: even the minimal standard for nonpublic fora condemns an absolute, content‑neutral but total prohibition on speech.

Significance / Immediate Fallout
– Landmark reminder that government may not adopt a blanket speech embargo on its property, no matter the forum classification.
– Invigorated the overbreadth doctrine as a swift tool to strike facial bans, forcing governments to craft narrow, objective rules (e.g., designated leafleting zones, permit systems).
– Influenced later airport‑speech cases and analogous disputes in transit hubs, shopping malls, and train stations; many authorities rewrote rules to target specific disruptions rather than expression per se.

Socratic‑Class Landmines & Answers
– Q: “If the Court didn’t decide whether an airport is a public forum, what guidance remains?”
→ Any forum test still forbids an absolute ban; agencies must tailor regulations to concrete harms like obstruction or security, not to speech itself.
– Q: “Could LAX limit leafleting to kiosks or curbside areas?”
→ **Probably yes—if the rule is content‑neutral, leaves ample alternatives, and is tied to congestion or security evidence.
– Q: “Does this case make airports ‘free‑speech zones’?”
→ No. It only invalidates a total prohibition; reasonable, narrowly tailored restrictions remain permissible.
– Q: “Why is overbreadth different from vagueness?”
→ Overbreadth protects third‑party speakers by striking a statute that sweeps too widely; vagueness targets lack of clear standards.
– Q: “Would a ban on ‘distribution of literature that interferes with passenger flow’ survive?”
→ Maybe—Court would demand evidence that leafleting actually disrupts operations and that the ban is no broader than necessary.

3. Keyishian v. Board of Regents, 385 U.S. 589 (1967)

Facts / Procedural Posture
– New York’s Civil Service Law § 105 and Education Law § 3022 (the “Feinberg Law”) required every teacher or professor employed by the State University of New York to sign a “loyalty certificate” disavowing Communist‑party membership and to affirm they had never advocated “the overthrow of the government by force or violence.”
– The Regents could list “subversive organizations”; mere knowing membership—even without active advocacy—was grounds for dismissal.
– Harry Keyishian (English instructor) and four SUNY‑Buffalo colleagues refused to sign; they were fired and sued for declaratory and injunctive relief in the W.D. New York. District court upheld the statutes; the Second Circuit affirmed (2‑1). SCOTUS granted certiorari and heard argument October 17‑18 1966.

State’s Theory (Board of Regents & Attorney General)
– The State has a compelling interest in preserving an educational workforce loyal to constitutional government; § 105 targets action, not opinion.
– Statutes are patterned on clear federal precedents (e.g., Cleveland Board of Education v. LaFleur?) (They actually relied on Adler v. Board of Education, 1952) and provide adequate procedural safeguards: notice, opportunity to resign, review by Commissioner of Education.
– Academic employment is a privilege, not a right; the State may attach reasonable conditions (no subversive activity) to that privilege.

Petitioners’ Theory (Keyishian et al.)
– Laws are overbroad and vague: terms like “treasonable,” “seditious,” “advocacy” lack objective content and chill legitimate debate.
– Punishing mere membership in a proscribed group—without proof of specific intent—conflicts with Noto, Scales, Elfbrandt.
– Statutes impose an ideological orthodoxy on public universities, violating the First Amendment’s core protection of academic freedom.

Issues

1. Do New York’s loyalty‑certificate and subversive‑membership provisions violate the First and Fourteenth Amendments as vague, overbroad, and a prior restraint on academic freedom?
2. Should Adler v. Board of Education (1952)—which upheld a predecessor loyalty law—be overruled?

Holdings / Vote Map
– 5 – 4 (Opinion: Brennan, J.; joined by Warren C.J., Douglas, Fortas, Black)  → Statutes are unconstitutionally vague & overbroad; convictions reversed; Adler effectively overruled.
– Clark, Harlan, Stewart, White dissented (Clark opinion).

Majority Reasoning (Justice Brennan)
Step 1 – Overbreadth & Vagueness
– Statutes reach “advocacy in the abstract” and impose liability for passive organizational membership—a direct clash with Noto and Elfbrandt.
– Key terms (“treasonable,” “seditious,” “utter before any class”) provide no objective standards, leaving teachers to guess at what speech risks dismissal—classic Baggett vagueness.
Step 2 – Academic Freedom as a First‑Amendment “Special Concern”
– “The classroom is peculiarly the marketplace of ideas.” Government may not cast a “pall of orthodoxy” over universities; rigorous scrutiny applies.
Step 3 – Overruling Adler
– Experience since 1952 shows loyalty schemes chill debate far beyond any legitimate security aim; Adler’s reasoning incompatible with modern First‑Amendment doctrine.
Result: Statutes facially invalid; reinstatement and back‑pay relief left to lower courts.

Concurrence (Justice Douglas)
– Stresses that any ideological blacklist in public employment offends the First Amendment, regardless of vagueness. Academic freedom demands an absolute bar to such loyalty requirements.

Dissent (Justice Clark, joined by Harlan, Stewart, White)
– States may demand “orthodox loyalty” to constitutional processes from public servants; the Feinberg Law targets conduct, not belief.
– Terms are no vaguer than “obscenity” or “clear and present danger,” and ample administrative review cures any marginal uncertainty.

Level of Scrutiny Applied
– Effectively strict scrutiny: laws burden core political speech in a uniquely sensitive forum (higher education); state must show narrowly tailored means to a compelling end, which it fails.

Significance / Immediate Fallout
– Landmark for academic freedom: First time the Court constitutionalized the concept and invalidated loyalty oaths on that basis.
– Overruled Adler; accelerated dismantling of McCarthy‑era teacher loyalty laws nationwide.
– Foreshadowed later tilt against “guilt by association” (O’Hair, Roberts).
– Cited in countless faculty‑speech cases and in modern debates over campus ideological mandates, showing Court’s skepticism toward state‑imposed intellectual conformity.

Socratic‑Class Landmines & Answers
– Q: “Why did the Court rely on vagueness rather than decide a broad ‘academic‑freedom’ right?”
→ Brennan used vagueness/overbreadth as narrowest grounds, but embedded a robust academic‑freedom principle—making the holding both doctrinally cautious and normatively strong.
– Q: “How is this different from security clearance loyalty checks for nuclear scientists?”
→ Clearances review specific conduct and are handled in camera; Feinberg banned even silent association and public classroom speech, reaching far broader.
– Q: “Does Keyishian mean states can never condition employment on association?”
→ No—under Scales, the state may act when it proves knowing, active membership + specific intent to further unlawful ends. Mere status is insufficient.
– Q: “Would a statute targeting only active advocacy of violent overthrow in class survive?” → Possibly—if narrowly drawn, viewpoint‑neutral, and keyed to direct incitement (Brandenburg) rather than abstract doctrine.
– Q: “What if a professor openly leads a militant group calling for insurrection?”
→ State can discipline based on incitement / true threat standards; Keyishian protects academic inquiry, not violent conspiracies.

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Week 6 Office Hour (No Discussion)

Legal Reasoning & Opinion Styles

• Meyer (used in 2-year travel ban argument)
  • Possibly a stretch in reasoning.
  • Example of a more Sotomayor-style opinion — emotionally grounded, rights-expansive.
• Difficulty in summarizing opinions:
  • Supreme Court language is dense and verbose.
  • Syllabus summaries are helpful but hard to craft succinctly.

Marriage Rights as Legal History

• If researching marriage as a legal right:
  • Look at case citation networks in:
    • Meyer v. Nebraska
    • Loving v. Virginia
    • Obergefell v. Hodges
  • Question: Can a right to divorce be invented analogously from Obergefell or Loving?

TikTok Ban & the First Amendment

• Not likely to be discussed in class:
  • Too politically charged
  • Involves corporate law & executive deference
  • Doesn’t fit within clean doctrinal lines of First Amendment jurisprudence
  • Too many overlapping First Amendment cases to draw a singular principle

==Grisinger’s Legal Career & Reflections==

Private Sector (BigLaw) 👎

• Summer associate life:
  • Extremely busy, puzzles sometimes interesting but mostly repetitive
  • Billable hours = major downside
    • Time tracked to the minute
    • Work-life balance “really, really hard”
    • Repetitive motion practice and document review
• Burnout risk high
  • Most litigation = same cases for years, just cycles of paperwork
  • “That’s what the money is for” → but not worth the lost time

Legal Academia 🎉👍

• Teaching & Research as a professor:
  • More freedom than lawyers: “not bound by clients and partners”
  • Almost absolute control over your time and syllabus
    • Teaching = rewarding when flexible
    • Mandated syllabi = feel like a job, not a passion
  • Once taught many times, class planning becomes modular (“can add a day, rearrange”)
• Preferred lifestyle:
  • Self-paced, self-designed intellectual career
  • Less lucrative than BigLaw, but ==“TIME is really a luxury”==
    • Willing to “trade money for time”
    • “Like a queen” in the classroom → absolute authority, flexibility, and rewarding

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Week 6.2

1. Schenck v. United States, 249 U.S. 47 (1919)

Facts / Procedural Posture
– Spring 1917: Charles Schenck (Gen. Secretary, Socialist Party of America) and Elizabeth Baer mail out 15,000 leaflets urging recently drafted men to “assert your rights” and resist conscription under the new Selective Service Act.
– Indicted in the E.D. Pa. for violating § 3 of the Espionage Act of 1917 (willfully causing or attempting to cause insubordination or obstruction of enlistment).
– Jury convicts; Judge Clayton imposes 6‑month sentences. Circuit Court of Appeals affirms (per curiam). SCOTUS grants expedited cert.; argument Jan. 9, decision Mar. 3 1919—the same Term as Debs and Frohwerk.

Government’s Theory (U.S. Attorney & Solicitor General Lamar)
– The leaflet was an intentional attempt to obstruct the draft, a vital war measure; when “the nation is at war, many things that might be said in time of peace are a hindrance.”
– No prior restraint involved—only retrospective punishment for criminal attempt.
– First Amendment doesn’t protect speech that creates a substantive evil Congress may prevent.

Defendants’ Theory (Schenck & Baer)
– Leaflet advocates peaceful political opposition—petitioning to repeal the draft—not sabotage.
– Espionage Act, as applied, punishes expression of opinion and is therefore repugnant to the First Amendment.
– No evidence that the circulars actually interfered with enlistment.

Issues

1. Does punishing distribution of anti‑draft leaflets under the Espionage Act violate the First Amendment (applied to the federal government)?

2. What doctrinal test governs when political speech may be criminalized in wartime?

Holding / Vote Map
– Unanimous 9‑0 (Opinion: Holmes, J.; joined by White C.J., McKenna, Day, Van Devanter, Pitney, McReynolds, Brandeis, Clarke).
– Convictions affirmed; Act constitutional as applied.

Majority Reasoning (Justice Holmes)
Step 1 – Contextual Lens
– “The character of every act depends upon the circumstances in which it is done.” Wartime context amplifies the government’s interest.
Step 2 – Birth of the Clear‑and‑Present‑Danger Test
– Speech is unprotected when its “words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about ==the substantive evils Congress has a right to prevent.==”
– Analogy: falsely shouting fire in a crowded theatre—speech’s proximity & likelihood of harm govern.
Step 3 – Application
– Leaflet’s explicit call to oppose the draft during active mobilization posed a danger both ==“clear” (imminent) and “present” (proximate).==
Step 4 – First Amendment Scope
==– First Amendment is not absolute; it does not protect speech that undermines lawful government functions in wartime.==

Scrutiny Level
– Not yet “strict scrutiny”; rather an ad‑hoc balancing strongly deferential to wartime legislative judgment.

Significance / Legacy
– First articulation of the Clear‑and‑Present‑Danger test, soon re‑examined in Abrams (Holmes dissent) and refined in Whitney (Brandeis concurrence).
– Illustrates early Holmes‑Brandeis civil‑libertarian evolution: unanimous here, but their views liberalize within a single year.
– Framework survives through the 1920s–40s until supplanted by “incitement to imminent lawless action” in Brandenburg v. Ohio (1969).
– Stands as canonical example of wartime speech restrictions and the tension between security and dissent.

Socratic‑Class Landmines & Answers
– Q: If the leaflets had advocated only repeal of the draft but not resistance, same result?
→ Probably not; Holmes emphasizes the practical obstruction language. Pure policy advocacy would be protected.
– Q: How “clear” is “clear”—does a single leaflet suffice?
→ Holmes never quantifies; later cases (Debs, Abrams, Gitlow) show Court sliding toward abstract ideological punishments until Brandenburg.
– Q: Where does incorporation stand?
→ Schenck binds only the federal government; states were unrestricted until Gitlow (1925) began selective incorporation.
– Q: Could Congress criminalize possession of anti‑draft literature?
→ Under Schenck, perhaps yes during war, but modern doctrine demands advocacy + imminence.
– Q: Does “fire‑in‑a‑theatre” still govern?
→ Rhetorically famous, doctrinally outdated; modern incitement test is Brandenburg’s intent + imminence + likelihood triad.

2. Dennis v. United States, 341 U.S. 494 (1951)

Facts / Procedural Posture
– 1948‑49: Eugene Dennis (General Secretary, Communist Party USA) and 10 other party leaders indicted in the S.D.N.Y. for conspiracy to violate § 2(a)(1) of the Smith Act (advocating the violent overthrow of the U.S. government).
– Lengthy nine‑month jury trial before Judge Harold Medina; prosecution rested largely on FBI informants & Marxist‑Leninist texts. All defendants convicted; received 3–5‑year sentences.
– Second Circuit (Hand, J.) affirms, adopting the famous ==“gravity of the evil, discounted by its improbability”== formulation.
– SCOTUS argument Dec. 4‑7 1950; decision June 4 1951, at the height of Korean War & McCarthy hearings.

Government’s Theory (Attorney General J. Howard McGrath)
– Communist Party is a disciplined conspiratorial apparatus seeking to foment revolution when geopolitically opportune; leadership’s teachings pose a latent but grave threat.
– No First‑Amendment immunity for a conspiracy to advocate illegal violence; Congress validly acted to neutralize subversive organizations before they strike.
– Courts must weigh national survival; cannot wait for the “certainly impending” spark.

Defendants’ Theory (Dennis et al.)
– Indictment punishes speech and belief, not action; teaching Marxism is protected advocacy of political theory.
– Smith Act overbroad & vague; violates clear‐and‑present‑danger standard of Schneider, Thomas v. Collins, Bridges.
– First Amendment demands proof of imminent incitement; prosecution showed only academic discussion and party texts.

Issues

1. Is the Smith Act’s prohibition of conspiracy to advocate violent overthrow facially or as‑applied unconstitutional under the First Amendment?
2. What is the proper test for “danger” posed by doctrinal advocacy in the Cold‑War context?

Holdings / Vote Map
– Plurality 4‑1‑4 (Overall 6‑2 to affirm)

• Vinson C.J. opinion (joined by Reed, Burton, Minton).
• Frankfurter concurrence (joined by Jackson): same result, separate balancing.
• Jackson solo concurrence (sharper focus on “conspiracy”).
• Black & Douglas dissents (separate; sweeping speech protections).
• Clark recused. ⇒ Convictions affirmed; Smith Act upheld.

Plurality Reasoning (Chief Justice Vinson, joined by Reed, Burton, Minton)
Step 1 – Adopt Judge Hand’s Balancing
– Court embraces the “gravity‑of‑evil discounted by its improbability” test: ==if evil is great enough, government need not await near‑certainty.== Step 2 – Distinguish Abstract Doctrine vs. Active Conspiracy
– Defendants are ==not mere philosophers;== they lead a hierarchical organization committed to Leninist discipline. – “==Advocacy” under Smith Act means organizing for action,== not casual discussion.
Step 3 – Judicial Role in National Security
– Courts must acknowledge Congressional/executive intelligence on Communist tactics; deferential but not rubber‑stamp.
Result: Present danger adequate; First Amendment yields to collective security.

Frankfurter Concurrence (joined by Jackson)
– Advocates explicit balancing test: courts must weigh society’s right to self‑preservation against speech.
– Warns against “absolutism” of First Amendment; endorses legislative fact‑finding on subversive threats.

Jackson Concurrence (solo)
– Frames defendants as ==akin to enemy agents;== stresses conspiracy as actionable independent of overt incitement.

Dissent (Justice Black)
– First Amendment is absolute: Congress may punish only direct incitement or action, not teaching.
– Balancing “gravity” vs. “probability” hands judges a censor’s veto.

Dissent (Justice Douglas)
– Danger here is too remote; free society must risk “misguided orthodoxy” to preserve liberty. – Smith Act collapses distinction between doctrine and advocacy; cites Jefferson’s “error of opinion may be tolerated.”

Level of Scrutiny
– Effectively a Hand‑style ad‑hoc balancing ≈ intermediate scrutiny weighted by national security; far from modern Brandenburg strictness.

Significance / Fallout
– High‑water mark of Cold‑War repression; legitimated broad anti‑Communist prosecutions.
– Soon retrenched: Yates v. U.S. (1957) narrows “advocacy,” insisting on “urge to action.”
– Overruled in effect by Brandenburg v. Ohio (1969) (imminent‑lawless‑action test).
– Exposed fissures in First‑Amendment theory: absolutism vs. balancing; seeded modern doctrine that abstract advocacy is protected.
– Political echo: fueled McCarthyism yet also provoked intellectual backlash leading to cases like Keyishian (1967) and Braynen.

Socratic‑Class Landmines & Answers
– Q: Are Dennis and Schenck formally overruled?
→ Dennis’s test is explicitly rejected by Brandenburg; Schenck’s result survives only where speech meets incitement + imminence + likelihood.
– Q: Why didn’t the Court require proof of an overt act?
→ Conspiracy law criminalizes agreement plus intent; plurality viewed Party structure itself as “clear and present”.
– Q: Could the same prosecution succeed today?
→ Unlikely: Brandenburg demands specific intent to produce imminent lawless action; abstract Marxist seminars are protected.
– Q: What doctrinal thread links Schenck, Dennis, Keyishian, Brandenburg?
→ An arc from wartime deference → Cold War balancing → academic‑freedom recognition → robust incitement standard safeguarding ideological speech.
– Q: Does Dennis permit suppression of ISIS online propaganda?
→ Only if government shows direct incitement of imminent terrorist acts; modern courts apply Holder v. Humanitarian Law Project (2010) and Brandenburg.
– Q: Is Hand’s formula dead?
→ As First‑Amendment doctrine, yes; but echoes survive in national‑security FISA warrants and material‑support statutes, where courts still weigh severity vs. likelihood under a rational‑basis‑plus lens.

Both cases illuminate the dialectic between national exigency and constitutional liberty:

Era	Perceived Threat	Doctrinal Test	Result	Later Treatment
1919 – Schenck	German sabotage, wartime morale	Clear & Present Danger (nascent)	Speech punished	Soft‑limited by evolution toward imminence
1951 – Dennis	Global Communist conspiracy	Hand’s Gravity ÷ Probability balancing	Speech punished	Yates narrows; Brandenburg supplants

3. Brandenburg v. Ohio, 395 U.S. 444 (1969)

Facts / Procedural Posture
– Clarence Brandenburg, a Klan “Imperial Wizard” from rural Ohio, invited a Cincinnati TV reporter to film a ==cross‑burning rally== on a farm in Hamilton County (June 1964).
– The broadcast showed hooded speakers railing ==against Blacks and Jews== and warning that if the government continued to “suppress the white Caucasian race,” there might have to be “revengeance” against Congress, the President, and the Court.
– Brandenburg was charged under Ohio Rev. Code § 2923.13 (Criminal Syndicalism), which outlawed advocating “crime, sabotage, violence, or unlawful methods of terrorism” to effect political change and assembling with any group formed to teach or advocate such doctrine.
– County Court convicted; sentence: $1,000 fine plus 1–10 years. Ohio Court of Appeals affirmed; Ohio Supreme Court dismissed without opinion. SCOTUS noted probable jurisdiction; argument Feb. 27 1969; decision June 9 1969.

State’s Theory (Prosecutor & Ohio AG)
– The statute mirrors Whitney and Dennis; it punishes advocacy, not mere abstract doctrine, of violent overthrow.
– Brandenburg’s own words and affiliation with the Klan create a sufficient danger to public order.

Petitioner’s Theory (Brandenburg)
– Speech was political hyperbole with no call to immediate violence; statute punishes mere abstract advocacy, violating the First & Fourteenth Amendments.
– Yates and Noto require proof of incitement to action, not abstract teaching.

Issues

1. Does Ohio’s criminal‑syndicalism law violate the First and Fourteenth Amendments by punishing advocacy of violence irrespective of imminence or likelihood?
2. What is the constitutional test for distinguishing protected advocacy from unprotected incitement?

Holding / Vote Map
– Per Curiam, 8 – 0. (Justice Fortas had just resigned.)
– Conviction reversed; statute unconstitutional ==on its face.==
– Black & Douglas each filed short concurrences emphasizing absolutism.

Core Reasoning (Per Curiam)
Step 1 – Jettison the “Balancing” of Dennis
– Re‑examines Whitney and Dennis; rules that mere advocacy of abstract doctrine is not enough.
Step 2 – Announce the Brandenburg Incitement Standard
– *“The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation ==except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”== – Two prongs: (i) Intent/Direction and (ii) Imminence/Likelihood.
Step 3 – Apply to Facts
– Brandenburg’s statements, although racist and violent in tone, were conditional and future‑oriented; ==no imminent mob, no concrete plan, thus protected.==
Step 4 – Overrule Sub Silentio
– Explicitly overrules Whitney v. California (1927); implicitly guts Dennis balancing.

Concurrences
– Black: First Amendment bars any punishment for mere advocacy; ==rejects all “clear‑and‑present‑danger” formulations.==
– Douglas: Balancing speech against security invites censorship; only ==**“hot” incitement== may be punished.

Level of Scrutiny / Doctrine Articulated
– Establishes the modern “Imminent‑Lawless‑Action” test—effectively strict scrutiny plus temporal and probabilistic filters.

Significance / Fallout
– Canonical pivot from hand‑waving balancing to a bright‑line test that protects even extremist advocacy.
– Framework now governs everything from terror‑recruitment cases to social‑media exhortations.
– Influential progeny: Hess (1973), NAACP v. Claiborne Hardware (1982), Bible Believers (6th Cir. 2015).
– Cited to show that “hate speech” is protected unless it meets the Brandenburg standard—fueling campus‑speech debates and online‑platform policy.

Socratic‑Class Landmines & Answers
– Q: “Does Brandenburg protect direct instructions to build bombs posted online?”
→ Only if there is no intent or likelihood of immediate use; otherwise, Holder v. HLP & material‑support statutes apply.
– Q: “How ‘imminent’ is ‘imminent’?”
→ Seconds or minutes, not days; abstraction ≠ imminence (see Hess: ‘We’ll take the streets later’ is protected).
– Q: “Does the decision rely on viewpoint neutrality?”
→ Yes. Statute failed to distinguish abstract doctrine vs. incitement and thus was viewpoint‑based and overbroad.
– Q: “What if Brandenburg had handed out weapons at the rally?”
→ Act plus intent → unprotected incitement + aiding‑and‑abetting; criminal liability stands.
– Q: “Is Brandenburg absolute?”
→ No; “true threats,” “fighting words,” and speech integral to crime remain outside protection.

4. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

Facts / Procedural Posture
– Walter Chaplinsky, a Jehovah’s Witness, was distributing literature in downtown Rochester, N.H. Crowds grew hostile; police led him to a patrolman.
– Chaplinsky shouted: ==“You are a God‑damned racketeer” and “a damned Fascist.”==
– Arrested under N.H. Rev. Laws ch. 378, § 2: criminalizes addressing “any offensive, derisive or annoying word” to another person in a public place.
– Convicted in Municipal Court; $50 fine. New Hampshire Supreme Court affirmed, holding the statute limited to words that tend to cause a breach of the peace. SCOTUS granted cert.; argument Feb. 5 1942; decision March 9 1942.

State’s Theory (County Attorney & N.H. AG)
– Statute targets “fighting words”—epithets likely to provoke the average person to retaliate; narrow focus on immediate breaches of peace.
– Faces of statute construed by state courts to avoid vagueness.

Petitioner’s Theory (Chaplinsky)
– Statute is overbroad and vague; criminalizes protected expression including religious or political criticism.
– Words spoken were political opinion insulated by the First Amendment (as incorporated via Fourteenth).

Issues

1. Does a state statute punishing “offensive, derisive, or annoying” words violate the First and Fourteenth Amendments?
2. Are there categorical classes of speech outside First‑Amendment protection?

Holding / Vote Map
– Unanimous 9 – 0 (Opinion: Murphy, J.). Conviction affirmed.

Majority Reasoning (Justice Murphy)
Step 1 – Two‑Tier Theory of Speech
– Some utterances ==“are no essential part of any exposition of ideas and are of such slight social value that any benefit is clearly outweighed by the social interest in order and morality.”== – Enumerates unprotected categories: ==obscenity, profanity, libel, and “fighting words.”==
Step 2 – Define Fighting Words
– “Words which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” – Objective ==“average man” standard; context matters.==
Step 3 – Apply to Chaplinsky
– “God‑damned racketeer” / “damned Fascist” directed face‑to‑face at an officer = classic fighting words; statute, as narrowed, punishes only that subset, so no overbreadth or vagueness.

Level of Scrutiny
– No balancing; categorical exclusion: fighting words are unprotected, so ordinary rational‑basis review of statute.

Significance / Subsequent Doctrine
– Landmark creation of the Fighting‑Words Doctrine.
– Later cases narrow the category:

• Cohen v. California (1971) – “F*** the Draft” jacket protected (not a face‑to‑face insult).
• Gooding v. Wilson (1972), Lewis v. New Orleans (1974) – statutes voided for overbreadth.
• R.A.V. v. St. Paul (1992) – Viewpoint‑based bans on fighting words struck down.
  – Modern courts seldom uphold convictions on pure fighting‑words grounds; doctrine survives mainly in assaultive face‑to‑face insults.

Socratic‑Class Landmines & Answers
– Q: “Why is ‘F*** the Draft’ protected but ‘You’re a damned Fascist’ not?”
→ Audience & focus: Cohen’s message was political, general, non‑confrontational; Chaplinsky’s was a direct personal epithet likely to trigger violence.
– Q: “Does Chaplinsky survive R.A.V.?”
→ The category survives; but regulations must be content‑ and viewpoint‑neutral—no targeting specific ideologies.
– Q: “Difference between fighting words and ‘true threats’?”
→ True threat: speaker intends to instill fear of bodily harm; fighting words: likely to provoke target to violence.
– Q: “If Chaplinsky had shouted the same words online?”
→ Likely protected; absence of immediate physical confrontation undermines the fighting‑words rationale.
– Q: “Can states criminalize hate slurs as fighting words?”
→ Only if the statute is neutral (covers all epithets) and speech is face‑to‑face, likely to provoke violence; otherwise R.A.V. and Virginia v. Black constraints apply.

Quick Comparative Table

Case	Year	Unprotected Category	Doctrinal Test Announced	Result	Modern Status
Chaplinsky	1942	Fighting Words	Categorical exclusion; words that by utterance inflict injury / provoke immediate breach	Conviction affirmed	Survives but narrowed by Cohen, R.A.V.
Brandenburg	1969	Incitement to Violence	Speech unprotected only if directed to and likely to produce imminent lawless action	Conviction reversed; statute void	Governs modern incitement / extremist speech

First Amendment Decision Tree

![[Screenshot 2025-05-13 at 10.20.35.png]]

Additional Context

🔹 First Amendment Doctrinal Categories – Exceptions to Protection

Category	Standard / Case	When Speech Is Unprotected	Typical Application Contexts
Fighting Words	Chaplinsky v. N.H. (1942)	Face-to-face, personal insults likely to provoke immediate retaliatory violence	Street confrontations, protests, bar fights (rarely upheld today)
True Threats	Virginia v. Black (2003), Counterman (2023)	A serious expression of intent to commit violence, made with knowledge or recklessness	Threats to President, stalking, online threats, violent domestic abuse
Incitement to Lawless Action	Brandenburg v. Ohio (1969)	Speech directed to inciting imminent lawless conduct and likely to produce it	Extremist rallies, mob agitation, terror propaganda
Harassment (Work/School)	Meritor Savings v. Vinson (1986), Title IX	Severe, pervasive, and objectively offensive conduct interfering with education/employment	Sexual, racial, gender-based verbal conduct in schools or workplaces
Defamation (Libel/Slander)	New York Times v. Sullivan (1964)	False factual assertions causing reputational harm; public figures must show actual malice	Press, social media, political campaigns, personal attacks
Obscenity	Miller v. California (1973)	Appeals to prurient interest, depicts sexual conduct patently offensive, lacks value	Pornography prosecutions (mostly obsolete with Internet age)
Child Pornography	New York v. Ferber (1982)	Any depiction of minors in sexual conduct; no value test needed	Possession, production, or distribution involving real children
Commercial Speech (Limited)	Central Hudson (1980)	May be regulated if misleading, unlawful, or the regulation meets intermediate scrutiny	Ads for illegal goods, misleading health claims

🔹 Key Distinctions Between Categories

Doctrine	What’s Being Provoked	Core Test	Protected If…
Fighting Words	Violence from the listener toward speaker	Face-to-face insult likely to provoke retaliation	General vulgarity not directed at a person
Incitement (Provoke)	Unlawful action by the listener — provoking violence against the speaker	Intent + imminence + likelihood (Brandenburg)	No immediate danger, abstract ideology
True Threat	Fear or terror in the target	Serious intent to harm + subjective awareness (Black, Counterman)	Conditional or hyperbolic political speech
Harassment	Systematic abuse within institutions	Severe, pervasive, objectively offensive	Single or offhand comment in public
Defamation	**Reputational injury through false speech	False statement of fact + damage + culpability (Sullivan)	Opinion, parody, hyperbole are protected

🟢 Application Framework – Watts v. U.S. (1969) Factors for “True Threats”

Watts Factors	Explanation
Context of Speech	Political rally vs. private threat vs. online comment
Audience Reaction	Was it laughed off, ignored, or taken seriously?
Conditional or Not	“If they draft me, then…” → suggests lack of immediacy or seriousness

✅ Watts: “If they ever make me carry a rifle, the first man I want to get in my sights is LBJ.”
🔎 Context = political protest; Audience = laughed; Threat = conditional → Protected hyperbole.

🟢 Key Case: R.A.V. v. St. Paul (1992) — Viewpoint Discrimination within Unprotected Categories

• Held: Even within an unprotected category (e.g., fighting words), the government cannot engage in content- or viewpoint-based discrimination.

R.A.V. Principle
A regulation cannot criminalize only certain views within fighting words or threats (e.g., only racist epithets) unless it targets a neutral, proscribable basis (e.g., threats to safety).

🔁 E.g., You can’t criminalize cross-burning with racist motivation but allow it for other motives, unless you’re regulating true threats (Virginia v. Black carved out this nuance).

🟢 Key Case: Virginia v. Black (2003) — “True‑Threat” Definition and Permissible Regulation

Virginia v. Black Principle

The State may punish speech as a true threat only when the speaker (1) directs the statement toward a specific individual or clearly identifiable group and (2) conveys a serious expression of intent to commit unlawful violence and (3) acts with the purpose (or conscious awareness) of placing the target in fear of bodily harm or death. The speaker need not actually intend to follow through; the constitutional interest is in shielding the target from fear, the disruption that fear causes, and the possibility that the threatened violence might occur.

🔹 Example Applications: Your Hypotheticals

Statement	Fighting Words?	True Threat?	Incitement?	Protected?	Why?
“You are fucking ugly.”	Maybe (face-to-face)	❌	❌	✅	Crude insult; not likely to provoke violence
“Fuck you, you little piece of shit.”	Possibly (if hostile + face-to-face)	❌	❌	✅/❌	Maybe punishable as fighting words, but extremely rare
“I’ll shoot you in your ugly face.”	❌	✅	❌	❌	Likely unprotected true threat (intent + fear)
“We should blow up Congress.”	❌	❌	✅ if imminent	Maybe	Depends on intent + likelihood of action
“Let’s kill all women tomorrow.” (online)	❌	✅/Maybe	✅/Maybe	❌/✅	If directed + imminent = incitement/threat; abstract = protected
“Deny. Delay. Depose. You guys are the next!”

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Week 7.1 — Obscenity

1. Miller v. California, 413 U.S. 15 (1973)

— Burger Court redraws the map of “obscenity,” coining the three‑part Miller test

Facts & Procedural Posture

• 1969‑70 → Marvin Miller runs a direct‑mail “adult” business in Southern California.
• Five catalog brochures—packed with graphic photos entitled Intercourse, Man‑Woman, Sex Orgies Illustrated, An Illustrated History of Pornography, plus the film Marital Intercourse—are mailed unsolicited to a Newport Beach restaurant; the manager’s mother also sees them and calls police.
• Charged under Cal. Pen. Code § 311.2(a) (knowingly distributing obscene matter).
• Orange County jury convicts; Superior Court imposes a fine + prison term (sentence stayed).
• Appellate Dept., Superior Court affirms without opinion; California Supreme Court denies review.
• SCOTUS notes probable jurisdiction (Jan 1972), argues Nov 7 1972; reargued Jan 18 1973; decision June 21 1973.

State’s Theory

• Brochures graphically depict “hard‑core” sexual acts; no artistic or literary merit; statute tracks Roth and Memoirs standards; California has a compelling interest in shielding unwilling recipients.

Miller’s Theory

• Mailings protected by the First Amendment; existing “utterly without redeeming social value” standard (from Memoirs) not satisfied; statute fails to give fair notice or require national standards → unconstitutional vagueness/overbreadth.

Issues Presented

1. What constitutional test should govern state regulation of obscenity after Roth, Memoirs, and Stanley?
2. Does California’s conviction violate the First and Fourteenth Amendments?

Holding & Vote

• 5 – 4 (Burger, White, Blackmun, Powell, Rehnquist ⇢ majority; Douglas, Brennan, Stewart, Marshall ⇢ dissent).
• Conviction vacated and remanded (because jury applied the wrong, too‑lenient “social‑value” test); California statute survives so long as it incorporates the new standard.

Core Reasoning (Burger, C.J.)

1. Rejection of “Social‑Value” & National‑Standard formulas
   • The Memoirs rule (“utterly without redeeming social value”) proved unworkable; jury confusion + deluge of appeals.
2. Announcement of the Miller Test

   “The First Amendment allows regulation only of works that, taken as a whole:
    (a) appeal to the prurient interest of an average person applying contemporary community standards;
    (b) depict or describe patently offensive sexual conduct specifically defined by state law; and  (c) lack serious Literary, Artistic, Political, or Scientific (SLAPS) value.”

3. Community Variability
   • National uniformity is impossible; what Maine must tolerate need not equal Las Vegas.
4. Fair Notice & Enumerated Conduct
   • States must spell out in the statute—or authoritative judicial construction—the sexual acts subject to prohibition.
5. Application
   • California courts used an outdated test; case remanded for reassessment under the new standard.

Brennan’s Dissent (joined by Stewart & Marshall)

• Concedes personal exhaustion with obscenity line‑drawing; now favors full First‑Amendment protection for adult pornography absent direct assault on juveniles or unwilling viewers.
• Predicts continued “institutional stress” and chilling effect.

==Douglas Dissent==

• “Obscenity” never appears in the Constitution; censorship must come—if at all—via amendment, not judicial invention.

Doctrinal Takeaways

• SLAPS replaces “utterly without” test.
• Community standards = local, not national, but SLAPS value judged by a reasonable national jury, preserving some objectivity.
• Crime requires depiction of sexual conduct, not mere profanity/nudity.
• Jury still fact‑finder; judges supply limiting instructions.

Impact & Legacy

• Obscenity prosecutions revived (e.g., “Deep Throat,” 1976).
• “Miller test” governs U.S. obscenity law to present day; survives technological shifts (VHS, internet).
• Online era: courts wrestle with which “community” applies in cyberspace; some circuits adopt an “interested community” approach, others national for prong (a).
• Content‑platform policies (YouTube, OnlyFans) silently embed Miller criteria.

Socratic Traps & Answers

• Q: Do community standards vary within a state? → Yes; jury reflects its jurisdiction’s norms.
• Q: Does SLAPS value look to local views? → No; objective, reasonable‑person perspective.
• Q: What about violent but non‑sexual gore? → Not obscenity; analyze under general indecency/harm provisions.
• Q: Is child pornography covered? → No; separate categorical exclusion New York v. Ferber (1982).
• Q: Can “mere nudity” be obscene? → Rarely; prurient + patently offensive + SLAPS‑less threshold rarely met by simple nudity.

Mnemonic

“P‑P‑S / S‑L‑A‑P‑S” → Prurient, Patently offensive, Specific conduct & Lacks Serious Literary‑Artistic‑Political‑Scientific value.

Bottom Line
Miller institutionalized a three‑pronged local‑standards + SLAPS framework: only the most graphic, valueless sexual depictions aimed at arousal fall outside First‑Amendment protection; mere offensiveness or nudity does not suffice.

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2. Cohen v. California, 403 U.S. 15 (1971)

— The Court’s ode to the emotive power of four‑letter words

Facts & Procedural Posture

• April 26 1968 → Paul Robert Cohen, 19‑year‑old Vietnam‑war critic, enters the Los Angeles County Courthouse corridor wearing a jacket hand‑painted “Fk the Draft.”**
• No chanting, no leaflets, no threats; women and children present.
• Arrested under Cal. Pen. Code § 415: “maliciously and willfully disturb the peace … by offensive conduct.”
• Municipal Court convicts; sentence: 30 days in jail.
• California Court of Appeal affirms, defining jacket as “offensive conduct.” State Supreme Court denies review.
• SCOTUS grants certiorari (Oct 1969), hears argument Feb 22 1971; decision June 7 1971.

California’s Position

• The jacket’s language is likely to provoke violence (“fighting words”) or at least shocks captive observers; courthouse demands decorum; statute valid.

Cohen’s Position

• Pure political expression; word is vulgar but not obscene or directed at anyone; passers‑by can avert eyes; statute void for vagueness & overbreadth.

Issues

1. Does punishing display of a single profane word on a jacket violate free‑speech guarantees?
2. Are “offensive” words outside First‑Amendment protection absent obscenity, threats, or incitement?

Holding & Vote

• 6 – 3 (Harlan II writes; joined by Douglas, Brennan, Stewart, White, Marshall).
• Conviction reversed; § 415 unconstitutional ==as applied.==
• Dissent (Blackmun, joined by Burger & Black): jacket ≈ conduct; falls within Chaplinsky “fighting words.”

Majority Reasoning (Harlan)

1. This is Speech, Not Conduct – Only the communicative content was punished; no disruptive actions.
2. Not Obscenity, Not Fighting Words – “F‑‑‑” lacks erotic detail (Roth), and message not aimed at any particular listener (Chaplinsky).
3. No Captive‑Audience Problem – Brief exposure in a public corridor; people can simply “avert their eyes.” — Not fighting words
4. Emotive & Cognitive Dimensions of Speech – The Constitution guards not just ideas but the intensity with which they are expressed; one man’s vulgarity is another’s lyric.
5. Slippery‑Slope / Boundless Censor’s Veto – If this word is banned, where stop? Government cannot sanitize public debate to placate the squeamish.
6. Balancing Public Morality vs. Free Expression – “[A]n undifferentiated fear or apprehension of disturbance is not enough.” Regulation must fit within narrow historical exceptions; § 415 sweeps too broadly.

Blackmun Dissent

• Labels episode “absurd and immature antic” closer to conduct than speech; courthouse merits heightened civility; sees fit under Chaplinsky.

Doctrinal Significance

• ==“Offensiveness” ≠ unprotected:== creates robust shield for profanity in public discourse.
• Clarifies limits of captive‑audience doctrine; seeds later cases (FCC v. Pacifica limits broadcast, but distinguishes Cohen’s political context).
• Emphasizes viewpoint and content neutrality: state cannot punish because listeners are offended.
• Distinction cemented between obscenity (sexual content) and indecency/profanity (linguistic offensiveness).

Ripple Effects & Modern Use

• Cited whenever governments attempt to ban bumper stickers, band t‑shirts, or protest signs with profanity (City of Erie v. Pap’s A.M., 2000; Iancu v. Brunetti, 2019 trademark case).
• Forms backbone of campus‑speech guidelines: emotional, even vulgar dissent is constitutionally sacrosanct.
• Internet era: platforms generally tolerating expletives rely on Cohen’s rationale for non‑erotic profanity.

Classroom Hot‑Seat Questions

• Q: Could a judge expel Cohen from the courtroom itself? → Possibly; courtroom is a non‑public forum with decorum rules, provided regulation is content‑neutral and narrowly tailored.
• Q: What if Cohen’s jacket targeted a person (“F‑‑‑ Judge Smith”)? → Moves toward “true threat” / fighting‑words territory; context matters.
• Q: Do schools get Cohen protection? → Not wholly; Fraser (1986) allowed school discipline for lewd speech; students’ rights not “coextensive” with adults.
• Q: Broadcast radio? → Pacifica (1978) allowed FCC to fine for mid‑day expletives due to pervasive/accessible medium and child audience.
• Q: Hate slur instead of “F‑‑‑”? → Still protected unless it is a direct, personal insult likely to provoke violence (Chaplinsky) or meets Brandenburg incitement.

Mnemonic

“Cohen = Coat + Curse ≠ Crime.”

Bottom Line
The First Amendment shelters even raw, four‑letter political outbursts in public spaces. Government may regulate obscenity, threats, or direct incitement—but mere offensiveness is not a constitutional trump card.

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3. Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)

— Where the Court carved a First‑Amendment “lewd‑speech” exception inside the schoolhouse gate

Facts & Procedural Posture

• April 26 1983 → Matthew N. Fraser, Bethel High School junior, delivers a 1‑minute nomination speech for a classmate at a mandatory, school‑sponsored assembly (≈ 600 students, many only 14). The speech brims with explicit sexual double‑entendre (“firm in his pants… to the very end—the climax—for each and every one of you”).
• Reaction: laughter, cat‑calls—no fights, no mayhem.
• Discipline: assistant principal cites Bethel’s rule against “obscene, profane language or gestures,” suspends Fraser three days and removes him from the commencement‑speaker ballot.
• U.S. District Court (W.D. Wash.) finds a § 1983 violation, deems rule vague/overbroad, awards nominal damages.
• Ninth Circuit (Tang, J.) affirms: speech was political; Tinker governs; no material disruption.
• SCOTUS grants cert. Nov 12 1985, hears argument Mar 3 1986, decides Jul 7 1986.

School District’s Position

• Schools inculcate civility; sexual vulgarity offends captive minors; educators act in loco parentis; rule targets manner, not viewpoint.

Fraser’s Position

• Pure political endorsement; no obscenity; no significant disruption; rule void for vagueness/overbreadth; Tinker protects absent material interference.

Issues

1. May public‑school officials punish a student for lewd, sexual metaphors at a compulsory assembly even without substantial disruption?
2. How does Tinker’s “material and substantial interference” test interact with vulgar, non‑political student speech?

Holding & Vote

• 7 – 2. Burger, C.J. (joined by White, Powell, Rehnquist, O’Connor, Blackmun, Stevens†) upholds discipline; reverses Ninth Circuit.
• Brennan concurs in judgment.
• Dissent: Stevens (joined by Marshall).
• Rule: Public schools may sanction student speech that is lewd, vulgar, or plainly offensive and incompatible with the “fundamental values of public‑school education,” without proving Tinker‑level disruption.

Majority Reasoning (Burger)

1. Civility Mission – Echoes Jefferson/Ambach: schools must teach “habits and manners of civility.”
2. Tinker Distinguished – Black‑armbands were silent political protest; Fraser’s speech was intrusive sexual imagery in front of minors.
3. Per‑Se Lewdness Category – Vulgar sexual expression bears “slight social value” (Pacifica, Chaplinsky analogies); schools get wider latitude than public streets.
4. Captive Audience & In Loco Parentis – Assembly forced attendance; 14‑year‑olds lacked realistic “avert the ear” option.
5. No Viewpoint Discrimination – Sanction addressed mode, not Fraser’s support for his candidate.
6. Proportional Penalties – Three‑day suspension and lost speaking honor are educational, not punitive imprisonment.

Brennan Concurrence

• Discipline permissible here because decorum expectations were clear; cautions against equating innuendo with obscenity; ==outside school, Cohen would control.==

Stevens–Marshall Dissent

• Vagueness/Overbreadth – Rule gave no fair notice that “metaphor” = “obscene.”
• No Real Disruption – Laughter ≠ material interference; punishment excessive.
• Courts shouldn’t constitutionalize etiquette; schools can teach manners without suspensions.

Doctrinal Significance

• Establishes “Fraser carve‑out”: lewd or vulgar student speech is punishable per se, sidestepping Tinker.
• Forms second prong of the tripartite student‑speech framework later crystallized in Hazelwood (curricular speech) and Morse (drug‑advocacy).

Ripple Effects & Modern Use

• Upholds bans on profanity‑laden T‑shirts, sexually graphic posters, explicit rap lyrics in class projects.
• Digital era: circuits split on off‑campus social‑media vulgarity; Mahanoy Area v. B. L. (2021) limits Fraser outside school grounds.
• Frequently cited in dress‑code and cheerleader‑banner cases to justify discipline sans disruption evidence.

Classroom Hot‑Seat Questions

• Q: If Fraser had cursed school policy without sexual innuendo (“This rule sucks!”)? → Likely political speech; many courts would require Tinker disruption showing.
• Q: Does Fraser let schools ban “F‑‑‑” on student clothing? → Usually yes inside hallways; minors + captive audience tip scale.
• Q: Valedictorian recites risqué Shakespeare? → If pre‑screened, school may excise under Hazelwood; if rogue live, post‑hoc discipline likely under Fraser.
• Q: Universities? → Generally no; college students are adults; Papish (1973) applies fuller First‑Amendment scrutiny.

Mnemonic

“Fraser = Filthy Figurative Flourish Forbidden in Front of Fellow Freshmen.”

Bottom Line
K‑12 educators may insist on decorum and punish lewd or sexually explicit student speech even without proof of disruption. Fraser narrows Tinker, carving a lewd‑speech exception that anchors modern student‑expression doctrine.

Supreme Court Case	What It Protects	What It Allows Government to Criminalize	Effect on 18 U.S.C.
Miller v. California	Speech that is not obscene	Obscene material meeting all 3 Miller prongs	Limits all §1460–1467 applications to Miller definition
Cohen v. California	Profane/offensive speech that is not erotic	Nothing—offensive language alone is protected	Narrows “indecent” & “profane” enforcement under §§ 1463–1464
Fraser v. Bethel	Political speech by students	Lewd/vulgar speech in K–12 settings	Justifies regulations in public schools, not criminal laws

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Week 7 Clarification Notes

1. “ F* Senator ” shirt inside the Capitol or a courthouse

Setting	Forum Type	Baseline Rule	Likely Analysis
Public corridor / rotunda (open to tourists)	Traditional or at least designated public forum	Cohen governs: profanity alone ≠ unprotected. Government may impose time-place-manner limits that are content-neutral, narrowly tailored, alternative channels.	Shirt is protected political speech; cannot be banned merely for vulgarity. Any rule singling out particular words would be content-based and strict-scrutiny-fatal.
Senate gallery during session	Limited public forum; decorum rules long-recognized.	Rules of order may bar signs, chanting, or clothing with “demonstrative” messages so long as they are viewpoint-neutral and reasonable in light of the forum’s purpose.	You can be expelled for violating the gallery dress code; but a blanket ban on criticism of senators while allowing “Pro-Senator” garb would be invalid viewpoint discrimination.
Inside a courtroom during proceedings	Non-public forum; judge holds inherent contempt power.	Court may bar disruptive or disrespectful attire to preserve neutrality and decorum. Nebulous “offensiveness” is enough here.	Likely permissible to eject or sanction; Cohen yields to the judiciary’s stronger order-maintenance interest.

Key doctrinal hooks: Cohen; Perry Educ. Ass’n; Madsen (court orders); courtroom contempt precedents. No obscenity (fails Miller prongs), no fighting words (not a direct, face-to-face insult).

2. “F* Trump/President!” billboard on a pickup truck

• Forum: public streets → traditional public forum for speech attached to private property.
• Category: core political viewpoint; not obscene, not fighting words (no personal addressee).
• Rule: Any enforcement (ticket for “obscenity,” zoning‐sign ordinance, or disorderly-conduct statute) must be content-neutral. Cases challenging “F*** Biden” decals have uniformly favored the speaker because Miller obscenity fails at the first prong (no appeal to prurient sexual interest).
• Caveat: A genuinely neutral size-or-traffic-safety sign ordinance (Reed v. Town of Gilbert) can require smaller lettering, but it cannot single out profanity or a viewpoint.

3. “Disorderly-conduct” catch-alls for loitering, drunkenness, public urination

Conduct	Speech?	1A Shield?	Bottom Line
Loitering / public intoxication	Typically non-expressive conduct; O’Brien symbolic-speech test rarely satisfied.	Minimal First-Amendment coverage.	Statutes OK if they have a clear mens rea and do not target a viewpoint (e.g., City of Chicago v. Morales struck down for vagueness, not for speech).
Public urination / lewd exposure	Pure conduct, or at most low-value indecent speech.	Even if construed as expression, it would likely fit the secondary effects / public-health rationale—highly regulable.	State can criminalize without implicating Cohen–Miller concerns.
“Disorderly conduct” applied to chanting, picketing, swearing	Speech; triggers scrutiny.	Must satisfy Brandenburg (incitement) or Chaplinsky (fighting words) or be a valid time-place-manner rule.	Mere profanity in public (without imminent violence) is protected; vague “offensiveness” provisions are void (Coates).

4. Library book curation and removal

• Public libraries are viewed as limited public fora devoted to the communication of speech. Under Board of Educ. v. Pico and circuit cases:
  • Content-based but viewpoint-neutral weeding (outdated science texts, duplicate copies) is permissible.
  • Viewpoint discrimination (removing all pro-LGBTQ titles, or exclusively “anti-colonial” works) is presumptively unconstitutional.
  • Schools get slightly more leeway than public libraries, but even so, political viewpoints may not be excised solely for being “inappropriate.”

5. Rainbow flags; “Allahu Akbar!”; “From the river to the sea”; “Impeach him,” etc.

Phrase / Symbol	Possible Government Interest	Relevant Category	Likely Outcome
Rainbow flag 🏳️‍🌈	offense to certain religious parents	Pure political expression; not obscene or threatening	Protected; restriction would be viewpoint discrimination.
“Allahu Akbar” shouted in airport	Public-safety concern	Could morph into a true threat only if directed & contextual cues show intent to intimidate (Virginia v. Black).	Absent threatening context, protected religious speech.
“From the river to the sea…” on campus	Alleged incitement	Apply Brandenburg: advocacy of violence must be intended and likely to produce imminent lawless action.	Generally protected unless paired with explicit calls for immediate violence.
Calling government “sexist, racist, colonial, fascist”	Offensiveness	Core political speech; highest protection.	Cannot be punished unless it meets another exclusion.
Parodying Trump’s insults	Political hyperbole	Hustler v. Falwell – rhetorical ridicule is protected; Watts – political hyperbole ≠ true threat.	Protected.

5.5 Auto-Felon Quartet:

“F* these politicians/activists! Someone really ought to blow up the office building / HBCU / Black church!”	Advocacy of violence → Brandenburg incitement test. Speech is protected unless (i) intended to spur imminent lawless action and (ii) objectively likely to do so. Vague “someone should” + no timetable = usually not imminent.	Brandenburg v. Ohio; Hess v. Indiana (1973) (future-tense advocacy protected). Possible federal scrutiny under 18 U.S.C. § 875(c) (interstate threat) or hate-crime investigations.	Probably protected, but expect FBI knock & grand-jury subpoena if posted online; prosecution only if facts show concrete, imminent plot.
“I will bomb the White House / plane / school / mall / office building!”	True threat—speaker expresses a serious intent to commit violence. Not protected.	Virginia v. Black (2003); Watts v. U.S. (1969) (political hyperbole line). 18 U.S.C. § 871 (Pres./VP threats), § 844(e) (bomb threats by any medium), § 875(c) (interstate threats), § 115 (threat against U.S. officials).	Felony indictment almost automatic; no need to prove ability to carry it out. Secret Service or ATF leads the arrest.
“I will bomb ___ on XX date, XX time.”	True threat + hoax bomb threat. Specific time makes it credible → triggers evacuations.	Same as above plus 18 U.S.C. § 1038(a) (terroristic-hoax statute) and state “false report” laws.	Felony; sentencing higher because emergency services are mobilized; restitution for evacuation costs common.
“Thanks to X, I’ve built a [named] bomb and will deploy it at ___ on XX date, XX time.”	True threat + confession of terrorist conspiracy / material support. No First-Amendment shelter.	18 U.S.C. § 2332a (use of WMD), § 2332b (terrorism transcending national boundaries), § 371 (conspiracy), § 842(p) (instruction on explosives), § 2339A/B (material support).	Immediate arrest on multiple federal counts; potential life sentence. Speech itself is the overt act proving conspiracy.

Special federal protection for high officials

• 18 U.S.C. § 871 – threats, knowingly and willfully “to kill, kidnap, or inflict bodily harm” upon the President, Vice President, or those in the line of succession.
• 18 U.S.C. § 879 – extends similar protection to former Presidents, major candidates, and their families.
• 18 U.S.C. § 1751 – makes actual assaults on the President/VP a separate federal offense.

When you say “I will bomb the White House:”

• You’re arrested under 18 U.S.C. § 871 before lunch.
• Your computer and phone are seized by federal agents.
• A prosecutor gets an indictment without ever applying Brandenburg.
• You sit in a cell unless you can afford bail, which is often denied in threat cases.
• If you fight it, you’re spending $100,000+ and 2+ years hoping a judge finds it wasn’t a “true threat.”

==Clearly, while one may freely engage in discussions about the application of these constitutional tests and principles in the classroom setting, in reality, ANY relevant speech can result in immediate felony charges.==

6. Broadcast-specific indecency regulation

• FCC v. Pacifica (1978) recognized a narrow, medium-specific carve-out for “indecent” (not obscene) speech on broadcast radio/television during hours when children are likely to be listening (the “safe-harbor” rule).
• Rationale: pervasiveness + easy accessibility to children.
• Cable, the Internet, streaming → protected platforms (Reno v. ACLU, U.S. v. Playboy)—Pacifica does not extend automatically.

7. K-12 schools v. colleges

Case Rule	Applies Where	Standard
Tinker (1969)	Student political speech that is neither vulgar nor school-sponsored	School must show “material and substantial disruption.”
Fraser (1986)	Lewd, sexually explicit student speech on campus	Per se punishable; no Tinker disruption showing required.
Hazelwood (1988)	School-sponsored curricular speech (newspaper, play)	Educators may control so long as decision is reasonably related to legitimate pedagogical concerns.
Morse (2007)	Student speech promoting illegal drug use at a school event	School may suppress to protect health/safety.
Mahanoy (2021)	Off-campus social-media speech	School authority “diminished”; Tinker factors apply but with greater weight to student autonomy.
Universities	Adults; Papish (1973); Rosenberger	School may not employ Fraser-style lewdness rules; full public-forum analysis.

8. Government-employee & teacher speech

1. Pickering v. Board of Education (1968)
   Outside-duty, public-concern speech → apply Pickering balancing (employee interest vs. workplace efficiency).
2. Connick v. Myers (1983)
   If the speech is purely private grievance, employer may discipline without First-Amendment scrutiny.
3. Garcetti v. Ceballos (2006)
   Speech made pursuant to official job duties is not protected at all.
   Professorial academic freedom caveat left undecided; lower courts split.

Teachers disciplining students may invoke Fraser/Hazelwood controls, but their own speech outside class about politics is largely Pickering-protected.

9. Putting it all together – the decision tree

1. Is it speech or conduct?
   – Pure conduct (urination, intoxication) → ordinary police power.
   – Expressive conduct → apply O’Brien or Johnson.
2. Does it fit a categorical exclusion?
   – Miller obscenity, Ferber child porn, Brandenburg incitement, Chaplinsky fighting words, true threat (Virginia v. Black), defamation, fraud.
3. Is there a context-specific carve-out?
   – Schools (Tinker/Fraser/Hazelwood/Morse/Mahanoy)
   – Broadcast (Pacifica)
   – Government employee (Pickering/Garcetti)
   – Courtroom / legislative floor (non-public forum decorum)
   – Prison/military (very deferential Turner/O’Brien balancing)
4. If none of the above, apply ordinary forum analysis and strict scrutiny to content-based restrictions, intermediate to time-place-manner rules. level of scrutiny (3-5), forum (5 types), type of speech (true threat, incitement, fighting words, obscenity), two modes of challeneg, types of restrictions (as applied, subject matter, viewpoiint), level of protection (proteced, less-protected, unprotected)

Must track (1) category of speech, (2) type of restriction, (3) posture (facial vs as‑applied)

Mnemonic Capsule

“COHEN unless MILLER, BLACK, or BRANDENBURG takes it down, and FRASER or PACIFICA trims it in special places.”

That single sentence encodes:
General protection (Cohen), lost only to the big categorical exclusions (Miller obscenity; Black true threats; Brandenburg incitement), and trimmed by special-venue carve-outs (Fraser schools; Pacifica broadcast).

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Week 7.2 — Conduct as Speech

1. United States v. O’Brien, 391 U.S. 367 (1968)

— Warren Court forges the four-part “O’Brien test” for laws that incidentally burden expressive conduct

Facts & Procedural Posture

• Mar 31 1966 → South Boston, MA: David Paul O’Brien, 19 years old, and three companions publicly burn their ==Selective-Service draft cards== on the steps of the federal courthouse before a crowd (including FBI agents).
• Crowd attacks them; an agent brings O’Brien inside for safety. O’Brien admits purpose was to persuade others to resist the draft.
• Charged under the 1965 amendment to § 12(b)(3) of the Universal Military Training & Service Act (50 U.S.C. App. § 462(b)(3)) — which, after 1965, ==criminalized knowingly destroying a registration certificate.==
• U.S. District Court (D. Mass.) convicts; First Circuit affirms.
• SCOTUS grants cert. Nov 13 1967; argued Jan 24 1968; decided May 27 1968.

Government’s Theory

• Draft cards are indispensable administrative tools; statute is ==content-neutral housekeeping==; disturbance to Selective-Service machinery justifies prohibition.

O’Brien’s Theory

1. Burning was ==symbolic speech protesting the war== ⇒ First Amendment shields the act.
2. Statute’s ==“purpose” was to stifle anti-war expression== ⇒ unconstitutional content-based suppression.
3. Law is ==overbroad/vague==; less restrictive alternatives exist (fine for failure to possess card, etc.).

Issues Presented

1. Does the First Amendment protect destruction of draft cards as symbolic speech?
2. What standard governs statutes that penalize conduct with both speech and non-speech elements?
3. Was § 462(b)(3) enacted to silence expression, rendering it unconstitutional?

Holding & Vote

• 8 – 1 (Warren C.J.; joined by Black, Harlan, Brennan, Stewart, White, Fortas, Marshall).
• Conviction affirmed: statute is constitutional as applied.
• Douglas dissents (absolutist view: speech + conduct inseparable; law suppresses dissent).

Core Reasoning (Warren, C.J.)

1. Definitional move — Not every conduct labeled “speech” gets full immunity.
2. Hybrid-conduct framework — When speech and non-speech elements are “combined,” government may regulate the non-speech portion if four criteria are satisfied:

   (1) within constitutional power; (2) furthers an important/substantial governmental interest; (3) interest is unrelated to suppression of expression; (4) incidental restriction on First-Amendment freedoms is no greater than essential. → The “O’Brien test.”

3. Application
   • Congress has sweeping Art. I power to raise armies & administer Selective-Service.
   • Protecting cards’ availability is a substantial administrative interest.
   • Interest is content-neutral — ==law bars all destruction, pro- or anti-war.==
   • No narrower means will assure ready access to cards.
4. Legislative motive — Even if some floor statements reflected hostility to dissent, valid broad purposes control absent proof of dominant censorship motive.

Douglas Dissent

• Draft cards are “identification papers of the kind ==so typical of totalitarian regimes.==”
• Burning is pure speech indistinguishable from uttered protest; majority trivializes expressive element.

Doctrinal Takeaways

• O’Brien test = ==intermediate scrutiny for content-neutral laws regulating expressive conduct.==
• Distinguishes from Texas v. Johnson category (content-based suppression) and from Miller obscenity.
• Valid even where incidental burden on expression is foreseeable.
• Legislative motive rarely fatal if statute is facially neutral.

Impact & Legacy

• Forms backbone of symbolic-speech analysis (flag-desecration, nude-dancing, draft-card possession, mask bans).
• Reappears in Ward v. Rock Against Racism (1989) & Turner Broad. v. FCC (1994) as template for tailoring inquiry.
• Modern security-credential laws (airport IDs, badge destruction) routinely survive under O’Brien.

Socratic Traps & Answers

• Q: Could Congress instead criminalize private flag-burning under O’Brien? → No; ==purpose of reverence for the flag is content-related== → strict scrutiny (Johnson).
• Q: If O’Brien had worn the card as an armband? → Mere display ≠ destruction ⇒ statute not triggered; would fall under pure speech (strict scrutiny for any content-based ban).
• Q: Does § 3 interest survive after the draft ends? → Court defers to Congress’s administrative judgment; future mootness irrelevant to 1968 conviction.

Mnemonic

O-B-R-I-E-N = Only Burden when Reasonable, Important, Expressive-Neutral, Narrow.

Bottom Line
O’Brien legitimizes content-neutral regulation of expressive conduct via the four-part test, anchoring modern intermediate scrutiny for symbolic-speech cases.

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2. Tinker v. Des Moines I.C.S.D., 393 U.S. 503 (1969)

— Fortas opinion declares that students do not “shed their constitutional rights at the schoolhouse gate,” birthing the “material-and-substantial disruption” test

Facts & Procedural Posture

• Dec 1965 → Des Moines, Iowa: siblings Mary Beth Tinker (13) & John Tinker (15) and friend Chris Eckhardt (16) ==plan to wear black armbands during Advent to mourn Vietnam war dead and advocate a truce.==
• School principals adopt a pre-emptive rule: remove armband or face suspension until compliance.
• Students wear bands; silently attend class; face peer comments but no violence. Five suspended.
• Parents sue under 42 U.S.C. § 1983; U.S. D.C. (S.D. Iowa) upholds school; Eighth Circuit affirms by ==equally divided en banc court.==
• SCOTUS cert. granted Nov 12 1968; argued Nov 12; decided Feb 24 1969.

School District’s Position

• Armbands provoke controversy during wartime; forecast of disturbance justified preventive discipline; schools can prescribe dress and conduct.

Students’ Position

• ==Silent, passive== political expression = pure speech; no evidence of ==disruption==; policy singles out Vietnam opposition ⇒ ==viewpoint== discrimination.

Issues Presented

1. Are silent armbands in school protected speech under the First & Fourteenth Amendments?
2. What standard governs school regulation of student expression?

Holding & Vote

• 7 – 2 (Fortas, Brennan, White, Marshall, Douglas, Stewart, Warren ⇢ majority).
• Discipline unconstitutional; suspensions reversed.
• Black & Harlan dissent (Black joined by Harlan).

Core Reasoning (Fortas, J.)

1. Students are “persons” under the Constitution. ==They do not abandon rights at the schoolhouse gate.==
2. Symbolic armband = “pure speech.” Historically, Barnette flag-salute and Meyer language-teaching protect student/teacher expression.
3. Standard articulated — School may regulate only where expression would ==“materially and substantially disrupt”== classwork or invade others’ rights; mere ==“undifferentiated fear”== or desire to avoid discomfort is insufficient.
4. Application — Record shows no disruption; policy singled out Vietnam armbands while allowing other political symbols ⇒ viewpoint discrimination.
5. Tolerance of controversy is essential to democratic education; suppression cultivates “totalitarian enclaves.”

Black Dissent

• Predicts erosion of discipline; courts usurp local control; students are in school to learn, not teach; any deviation distracts.

Harlan Dissent

• Would uphold rule absent proof of “irrationality”; courts should defer to reasonable professional judgment of educators.

Doctrinal Takeaways

• “Tinker test”: speech protected unless school proves ==material/substantial disruption or invasion of rights.==
• Distinguishes later Fraser (lewd speech), Hazelwood (school-sponsored curriculum), Morse (drug advocacy), Mahanoy (off-campus).
• Establishes viewpoint-neutrality requirement in K-12 fora.

Impact & Legacy

• Backbone of student-speech jurisprudence; cited in social-media cases, LGBTQ armbands, climate-strike walkouts, Black Lives Matter shirts.
• Post-Columbine & Parkland walkouts reignited debates over “disruption.”
• International influence: echoed in Canadian, Indian, and European education-rights rulings.

Socratic Traps & Answers

• Q: Would a walkout be protected? → Likely disruptive → school may discipline under Tinker.
• Q: Confederate-flag shirts? → Evaluate disruption & harassment of protected classes; many circuits uphold bans if racial tension evidence exists.
• Q: Off-campus Snapchat rant? → Mahanoy: schools have reduced authority; must prove substantial disruption with greater burden.

Mnemonic

“TINKER = Teachers Impose? No, Kids’ Expression Remains—unless real disruption.”

Bottom Line
Tinker cements robust First-Amendment rights for K-12 students: silent, non-lewd political expression cannot be punished absent a specific, evidence-based forecast of substantial disruption or rights invasion.

Supreme Court Case	Rule / Test Announced	Speech Unprotected	Sphere of Application
O’Brien (1968)	Four-part O’Brien test for content-neutral regulation of expressive conduct	Conduct whose incidental burden satisfies the 4 parts	Draft-card destruction, generally symbolic conduct
Tinker (1969)	Material-&-substantial disruption standard for student speech	Only school expression causing real disruption or rights invasion	K-12 public schools (non-lewd, non-curricular)

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3. Texas v. Johnson, 491 U.S. 397 (1989)

— Rehnquist Court holds that flag-burning is core political expression, striking down content-based bans

Facts & Procedural Posture

• Aug 22 1984 → Dallas, TX: During the Republican National Convention, protester Gregory Lee Johnson douses a U.S. flag in kerosene and burns it while chanting political slogans (“Reagan, Mondale, the same old…”) as demonstrators march past City Hall.
• Some onlookers are offended; no violence ensues.
• Johnson arrested under Tex. Pen. Code § 42.09(a)(3) (“==desecration of a venerated object in a way that seriously offends observers==”).
• Trial court convicts; sentenced to 1 year + $2,000 fine.
• Texas Court of Appeals affirms; ==Texas Court of Criminal Appeals reverses==, holding statute unconstitutional.
• SCOTUS grants cert. Jan 1988; argued Mar 21 1989; decision June 21 1989.

Texas’s Theory

1. State possesses a “unique interest” in preserving the flag as a symbol of nationhood and unity.
2. Statute addresses “non-speech” conduct (fire), or at worst is content-neutral because it punishes the mode of desecration, not viewpoint.

Johnson’s Theory

1. Flag-burning is expressive conduct squarely within the First Amendment.
2. Statute is content-based—offense hinges on audience reaction (“seriously offends”), triggering strict scrutiny.
3. No compelling interest justifies silencing political protest.

Issues Presented

1. Is flag burning expressive conduct protected by the First Amendment?
2. If so, does Texas’s interest in preserving the flag’s symbolic value justify a content-based restriction?

Holding & Vote

• 5 – 4 (Brennan, J.; joined by Marshall, Blackmun, Scalia, Kennedy).
• Statute unconstitutional; conviction reversed.
• Dissents: Rehnquist (C.J., joined by White & O’Connor) and Stevens.

Core Reasoning (Brennan)

1. Expressive nature conceded—the State stipulated Johnson’s act was “political.”
2. O’Brien inapplicable—==law is content-based==: whether burning is criminal depends on the message observers perceive (==offense==). Strict scrutiny applies.
3. No compelling interest
   • Preserving the flag as a symbol = interest in suppressing a particular message; the very function of the First Amendment is to forbid government from controlling symbols’ meaning.
   • Preventing breaches of the peace is speculative; actual disturbance did not occur and is addressable with breach-of-peace statutes.
4. Bedrock principle: Government may not prohibit expression simply because society finds the idea offensive or disagreeable.
5. No separate category of the national flag

Rehnquist Dissent

• Flag is a singular national emblem; long tradition of special protection.
• Johnson’s act is conduct with minimal “speech” value; O’Brien intermediate scrutiny satisfied.

Stevens Dissent

• The ==flag embodies ideals transcending verbal expression==; burning destroys that unique communicative resource and can be banned without stifling Johnson’s political message.

Doctrinal Takeaways

• Content-based vandalism statutes aimed at a symbol’s communicative impact trigger strict scrutiny.
• “Offense” to viewers is insufficient justification.
• Decision later extended in United States v. Eichman (1990), striking federal Flag Protection Act.

Impact & Legacy

• Codified the right to desecrate flags as political protest; recurring congressional attempts at flag-desecration amendments fail.
• Forms modern template for analyzing viewpoint-based vandalism laws targeting other symbols (crosses, rainbow flags).

Socratic Traps & Answers

• Q: Could Texas ban all open-flame demonstrations for fire safety? → Yes, if content-neutral and narrowly tailored (time-place-manner).
• Q: What if Johnson stole the flag? → Theft laws apply; First Amendment no defense to independent unlawful conduct.
• Q: Can Congress amend the Constitution to forbid flag burning? → Yes; constitutional amendment supersedes Johnson.

Mnemonic

“JOHNSON burns, STATE churns — but offense alone can’t quench free speech.”

Bottom Line
Flag-burning is protected political expression; government cannot criminalize messages merely for being deeply offensive to national sentiment.

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4. Ward v. Rock Against Racism, 491 U.S. 781 (1989)

— Refines time-, place-, manner doctrine; “narrow tailoring” ≠ “least-restrictive means” for content-neutral regulations

Facts & Procedural Posture

• Central Park, NYC: Since 1967, Naumburg Bandshell hosts summer concerts. Nearby residents complain of excessive volume from rock shows promoted by Rock Against Racism (RAR).
• 1986: NYC Parks Department issues a regulation requiring bandshell performers to use city-provided sound-amplification equipment and a city-employed sound technician.
• RAR sues (42 U.S.C. § 1983), claiming the regulation chills artistic expression.
• S.D.N.Y. upholds rule; Second Circuit reverses (not least-restrictive means).
• SCOTUS cert. Nov 1988; argued Feb 27 1989; decision June 22 1989.

City’s Theory

• Regulation is content-neutral; primary purpose = control volume, protect residents’ tranquility; expertise of technician ensures uniform compliance.

RAR’s Theory

1. Mandated city technician gives officials content control (mute unpopular speech).
2. Even if content-neutral, regulation isn’t narrowly tailored—city could use decibel limits or post-event penalties (“least-restrictive means”).

Issues Presented

1. Is the sound-equipment rule content-neutral?
2. What constitutes “narrow tailoring” for a content-neutral time-, place-, manner restriction?

Holding & Vote

• 6 – 3 (Kennedy, J.; joined by Rehnquist (C.J.), White, Stevens, O’Connor, Scalia).
• Regulation constitutional; Second Circuit reversed.
• Dissents: Brennan (joined by Marshall), Blackmun separately.

Core Reasoning (Kennedy)

1. Content neutrality—Rule applies regardless of music genre or viewpoint; decision to require city equipment is unrelated to message conveyed.
2. Time-, place-, manner framework (from Clark v. CCNV):
   • Significant governmental interest → safeguarding residential quiet and park quality.
   • Narrow tailoring → does not require the least-restrictive means; law must simply not burden substantially more speech than necessary to further the interest.
   • Ample alternative channels → Bands may perform, choose repertoire, control volume (through requested settings), or play elsewhere.
3. City’s centralized technician is a reasonable fit; alternatives (post-hoc fines, equipment confiscation) less effective.

Brennan Dissent

• Mandated technician risks content manipulation; decibel limits suffice—city chose a course that unnecessarily intrudes on artistic control, violating “narrow tailoring.”

Blackmun Dissent

• Questions factual predicate; no proof city’s own technicians outperform private ones; remand for findings.

Doctrinal Takeaways

• Clarifies that “narrow tailoring” in a content-neutral context ≠ strict-scrutiny “least-restrictive means.”
• Reinforces O’Brien / Clark line: incidental speech burdens okay if reasonable fit.
• Validates government management of public-forum logistics—sound, safety, permit caps—if message-neutral.

Impact & Legacy

• Cited in noise-ordinance and permit-fee cases; provides template for regulating protest amplification (McCullen v. Coakley cites Ward).
• Influences city-busking rules, parade amplification, nightclub zoning.

Socratic Traps & Answers

• Q: Could NYC limit concerts to <90 dB without specifying equipment? → Yes; still content-neutral.
• Q: What if technician turned down volume only for political speeches he disliked? → As-applied First-Amendment violation.
• Q: Does “not least-restrictive” rule apply in strict-scrutiny settings (e.g., content-based)? → No; strict scrutiny still demands least-restrictive means.

Mnemonic

“WARD: We Aren’t Required to deliver the Least device—just a Reasonably tailored one.”

Bottom Line
Content-neutral regulations need only be reasonably—not minimally—restrictive; government may impose uniform technical constraints (like sound systems) to advance significant interests without micromanaging message content.

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Supreme Court Case	Rule / Test Clarified	Speech Unprotected / Regulated	Sphere of Application
Texas v. Johnson (1989)	Strict scrutiny for content-based bans; offense is no justification	Flag-burning criminalization struck down	Viewpoint-targeted vandalism laws
Ward v. Rock Against Racism (1989)	Content-neutral time-place-manner: “narrow tailoring ≠ least-restrictive means”	City-mandated sound system upheld	Forum management (noise, permits, logistics)

When evaluating whether a law that restricts expressive conduct violates the First Amendment, courts ask whether the regulation is content-based or content-neutral. The Selective Service card-burning case (United States v. O’Brien, 1968) is the paradigm for content-neutral regulation of conduct. The law didn’t care why you burned your draft card—it prohibited destruction of the card to maintain the functionality of the Selective Service system. This purpose was unrelated to the message expressed, so the regulation was upheld under what became known as the O’Brien test, which permits content-neutral restrictions on expressive conduct if: (1) the regulation is within the government’s constitutional power, (2) it furthers an important or substantial governmental interest, (3) the interest is unrelated to the suppression of expression, and (4) the restriction is no greater than necessary to further that interest.

By contrast, flag-burning prohibitions that punish only protest-based or offensive uses, as in Texas v. Johnson (1989), are content-based. The law at issue didn’t ban all flag burning—it criminalized expressive flag desecration, i.e., burning with the intent to criticize or offend. This meant the state’s action depended on what the speaker was trying to say—a textbook violation of viewpoint neutrality and a trigger for strict scrutiny, which the law failed.

In Morse v. Frederick (2007), the Court allowed a school to discipline a student for unfurling a “BONG HiTS 4 JESUS” banner at a school event. While the decision acknowledged that student speech is protected under Tinker, it carved out an exception for speech seen as promoting illegal drug use. The ruling was widely criticized for being content-based, though the Court tried to frame it as a school-based regulation of illegal advocacy, not viewpoint discrimination. It shows how context and institutional setting—here, the school environment—can sometimes skew doctrinal application.

Turning to forum doctrine, International Society for Krishna Consciousness v. Lee (1992) addressed airport terminals, where the Court held that solicitation could be banned because the space was a nonpublic forum, not traditionally open to expressive activity. However, it did allow distribution of literature, highlighting the subtlety of permissible regulation in limited spaces. The test here focuses on reasonableness and viewpoint neutrality, not strict scrutiny, because the government has more control over nontraditional forums.

In Burson v. Freeman (1992), the Court upheld a law banning electioneering within 100 feet of polling places. Although the law was content-based—targeting political speech—it survived strict scrutiny due to the compelling state interest in protecting electoral integrity and voter privacy. This case is an example of content-based speech restrictions that can survive, but only when the justification is compelling and the law is narrowly tailored.

Lastly, obscenity law remains an outlier. In Roth v. United States (1957), the Court first held that obscenity is not protected speech under the First Amendment. This was later refined by the infamous plurality in Jacobellis v. Ohio (1964), where Justice Stewart declined to define hardcore pornography but famously said, “I know it when I see it.” That phrase encapsulates the subjectivity and instability of obscenity doctrine, which has often invited criticism for its moralistic and inconsistent enforcement, though it remains technically valid law under the Miller test today.

Together, these cases illuminate the delicate—and often contradictory—line the Court tries to draw between conduct and expression, protected and unprotected categories, and the forum-based flexibility of speech rights. The critical inquiry always turns on the same few pivots: is the law regulating the message or the medium, and is the restriction justified independent of suppressing expression? The more a law relies on assessing the meaning behind a speaker’s act, the more likely it is to run afoul of the First Amendment.

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Week 7 Additional Notes — Common Law History of Obscenity

Year	Event / doctrinal turning-point
1663	Sedley obscene-libel conviction (earliest English precedent).
1708	Reed prosecution fails—courts still view obscenity as ecclesiastical.
1727	Curl conviction extends obscene-libel to secular court.
1857	UK Obscene Publications Act passed (first modern statute).
1868	Reg. v. Hicklin formulates “tendency to deprave and corrupt”.
1815 (US)	Commonwealth v. Sharpless—first American obscenity conviction.
1821 (US)	Vermont adopts first state obscenity statute; Mass. bans Fanny Hill.
1842 / 1865	Federal tariff & postal acts bar import/mailing of obscene material.
1873	Comstock Act (federal postal obscenity law) enacted; Anthony Comstock appointed special postal inspector.
1896	SCOTUS adopts Hicklin in Rosen v. United States.
1913	Judge Learned Hand critiques Hicklin in Kennerley.
1933	United States v. One Book Called “Ulysses” softens Hicklin (holistic approach). Judge Woolsey in S.D.N.Y.
1957	Butler v. Michigan voids child-standard statutes; Roth v. United States announces the Roth three-factor test and declares obscenity unprotected speech.
1959	Kingsley Int’l Pictures forbids bans on “ideological” immorality.
1964	Jacobellis v. Ohio – variable community standard questioned; Stewart concurrence (“I know it when I see it”).
1966	Memoirs v. Massachusetts adds the “utterly without redeeming social value” prong, raising the bar for suppression.
1967-1970	Presidential commission’s report recommends decriminalisation; repudiated by Congress and President Nixon.
1973	Miller v. California adopts the modern three-prong obscenity test and shifts to local community standards.
1987	FCC “safe-harbor” rule prohibited indecency 6-to-22.
1996-97	Communications Decency Act indecency provisions struck in Reno v. ACLU.
1998-2009	Child Online Protection Act litigation ends with law enjoined (Ashcroft v. ACLU and subsequent orders). 1998 Act → prelim. injunction 1999 → SCOTUS 2002 & 2004 → permanent injunction 2007 → cert. denied 2009

Books-in-Question

Title	Author	First publication
“Memoirs of a Woman of Pleasure” (Fanny Hill)	John Cleland	1748
“An American Tragedy”	Theodore Dreiser	1925
“The First Lady Chatterley”	D. H. Lawrence	1944 U.S. edition (first manuscript 1926)
“Lady Chatterley’s Lover” (film/novel referenced)	D. H. Lawrence; film dir. Marc Allégret	Novel 1928; film 1955
“Ulysses”	James Joyce	1922
“A Book Named ‘John Cleland’s Memoirs of a Woman of Pleasure’ v. Attorney General”	(same as Fanny Hill; cited in case caption)	—
“The Lovers” (Les Amants) – feature film but included in list for completeness	dir. Louis Malle (screenplay loosely after Dominique Vivant)	1958

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Week 8.1

1. West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)*

— Jackson Court buries Gobitis, establishes the modern doctrine of compelled-speech and the “fixed-star” principle

• The user wrote “1948”; the landmark decision was handed down June 14 1943, Flag Day.

Facts & Procedural Posture

• After Minersville v. Gobitis (1940): West Virginia amended its statutes to mandate courses in patriotism and—by Board resolution (Jan 9 1942)—a daily flag-salute for all public-school pupils. Non-compliance = “insubordination,” punished by expulsion; truancy statutes exposed parents to $50 fine / 30 days jail.
• Jehovah’s Witnesses (Barnette family et al.) refuse on biblical grounds (Exodus 20:4-5). Children expelled; parents threatened with delinquency charges.
• Suit in U.S. District Court (S.D. W.Va.) seeks injunction under 42 U.S.C. § 1983. Three-judge court grants relief; state appeals directly to SCOTUS.

State’s Theory

1. National-unity imperative: Flag salute vital to inculcate civic cohesion (borrowing Gobitis language).
2. Salute is conduct, not protected speech; even if speech, school officials may set curriculum prerequisites.

Barnette’s Theory

1. Flag salute is symbolic expression; compelled affirmation violates both speech and free-exercise guarantees.
2. Regulation is viewpoint-specific—government dictating orthodox belief.
3. No “clear & present danger” from silent non-participants.

Issues Presented

1. Does the First Amendment forbid states from compelling students to salute the flag and recite the Pledge as a condition of attending public school?
2. Does the interest in national unity justify compulsion?

Holding & Vote

• 6 – 3. Jackson, J. (Stone C.J., Black, Douglas, Murphy, Roberts concurring) reverses; mandatory salute unconstitutional.
• Dissent: Frankfurter, J. (joined by Roberts & Reed).

Core Reasoning (Jackson)

1. Speech vs. Conduct – A salute is “a form of utterance. Symbolism is a primitive but effective way of communicating ideas.”
2. Compulsion > Suppression – Forcing affirmation intrudes more deeply than silencing dissent; no ==“clear and present danger”== justifies it.
3. Fixed-Star Maxim – “If there is any fixed star in our constitutional constellation, it is that no official … can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”
4. Majoritarianism rejected – Rights are withdrawn “from the vicissitudes of political controversy.”
5. Overrules Gobitis – Courts, not transient legislatures, guard fundamental liberties.

Frankfurter Dissent (highlights)

• Judicial restraint: ==curriculum choices lie with elected bodies;== Court improperly substitutes its judgment.
• Predicts civic disorder if ==courts become “school boards.”==

Doctrinal Takeaways

• Compelled-Speech Doctrine: Government may not force affirmation of belief.
• Introduces modern symbolic-speech analysis (later used in Wooley, Hurley, Janus).
• Distinguishes instruction (permissible) from confession of faith (impermissible).

Impact & Legacy

• Flag-salute mandates nationwide invalidated.
• Serves as cornerstone for refusals to display messages (Wooley), to fund speech (Pacific Gas), and to join unions (Janus).
• Elevated Justice Jackson’s reputation for eloquent civil-liberties prose.

Socratic Traps & Answers

• Q: Could a voluntary patriotic ceremony be required for extracurricular participation?
  A: Yes—voluntary participation avoids coercion; state just can’t compel attendance or expression.
• Q: May schools teach the history and meaning of the flag?
  A: Absolutely; informational instruction is content-neutral pedagogy.
• Q: Could the state punish students for disrupting peers’ salute?
  A: Yes—schools may regulate disruptive conduct without policing viewpoints.

Mnemonic

“BAR–NETTE bars the Banner’s Affirmation—Rights Neither Ebb _n**_or Travel to Tyranny’s Edict.”

Bottom Line The First Amendment forbids compulsory patriotism; government cannot command citizens—least of all schoolchildren—to mouth an orthodox creed.

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2. Wooley v. Maynard, 430 U.S. 705 (1977)

— Burger Court extends Barnette: the right to refrain from displaying a state’s ideological motto on private property

Facts & Procedural Posture

• New Hampshire statute (1969): All passenger-car plates must bear state motto “LIVE FREE OR DIE.”
• George & Maxine Maynard (Jehovah’s Witnesses) tape over / trim off motto; cited thrice under § 262:27-c (misdemeanor for obscuring plate).
  • Convicted → $25 & $50 fines + 15 days jail (served).
• File § 1983 suit; three-judge U.S. District Court enjoins enforcement; state appeals.

State’s Theory

1. Vehicle-identification: Motto aids police in spotting proper passenger plates.
2. Civic-patriotic interest: Promotes “history, individualism, state pride.”

*Maynards’ Theory

1. Forced display makes their car a “mobile billboard” for an abhorrent slogan.
2. First Amendment protects both speech and silence—right to refuse to propagate an idea.
3. Less-restrictive alternatives (unique plate colors, numbers) meet identification goal.

Issues Presented

1. Does compelling motorists to display an ideological motto violate the First Amendment right not to speak?
2. Are New Hampshire’s interests sufficiently compelling and narrowly tailored?

Holding & Vote

• 6 – 3 (Burger, C.J.; Brennan, Stewart, White, Marshall, Powell, Stevens).
• Statute unconstitutional as applied; injunction affirmed.
• Dissent: Rehnquist, J. (joined by Blackmun). (Court membership in 1977 makes this effectively a 7-2 decision; ==Justice While== joined both the dissent and the majority.)

Core Reasoning (Burger)

1. Complementary freedoms – “The right to speak and the right to refrain from speaking are … complementary components of ‘individual freedom of mind.’”
2. No genuine ID need – Numeric/letter configurations already distinguish passenger plates; motto adds nothing.
3. Ideological dissemination – State’s second aim is non-neutral; government may not draft citizens as involuntary couriers of ideology.
4. Narrow-tailoring requirement – Even substantial ends cannot be pursued by broadly stifling personal liberties when narrower means suffice (citing Shelton v. Tucker).

Rehnquist Dissent (with Blackmun)

• No “speech” implicated; plate understood as state’s utterance, not driver’s.
• Citizens free to add bumper stickers disclaiming motto; hence no compelled affirmation.

Doctrinal Takeaways

• Barnette + O’Brien fusion: Where government commandeers private property to display its message, strict scrutiny applies.
• Distinguishes government speech (currency’s “In God We Trust”)—portable objects not uniquely tied to a single speaker.
• Lays groundwork for Hurley, Johanns, Janus on compelled subsidies or messages.

Impact & Legacy

• Plates now offer “alternative motto” or sticker options in several states.
• Cited in cases striking compelled slogans on mission statements, union fees, and specialty plates.

Socratic Traps & Answers

• Q: Could NH let drivers opt-out by paying extra for a plain plate?
  A: Probably constitutional—compulsion removed; fee must be nominal to avoid penalty-in-disguise.
• Q: What about “In God We Trust” on currency?
  A: Court hints difference: bills aren’t publicly affixed to the bearer and are clearly state speech.
• Q: Could the state mandate a safety slogan (“Buckle Up!”) on plates?
  A: If purely factual, non-ideological, and not contested belief, lower scrutiny may apply; but compelled ideological speech remains forbidden.

Mnemonic

“WOOLEY won’t wear the motto—Witnesses Obscure Obligatory Line; Expression _Y_ours, not State’s.”

Bottom Line The First Amendment shields individuals from being forced to carry the state’s ideological messages on their own property; silence, too, is protected speech.

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3. Pleasant Grove City v. Summum, 555 U.S. 460 (2009)

— Roberts Court crystallizes the modern government-speech doctrine: permanent park monuments speak for the sovereign, not for passing citizens

Facts & Procedural Posture

• Pioneer Park, Pleasant Grove, UT: a 2.5-acre city park already displaying fifteen permanent exhibits—including a Ten Commandments slab donated by the Fraternal Order of Eagles in 1971—became the focus of dispute when the religious group Summum twice (2003) petitioned to install its own stone monument espousing the “Seven Aphorisms of Summum.” The city, invoking unwritten custom limiting monuments to items germane to local history or long-standing community ties, refused.
• A formal policy codifying those criteria followed in 2004; a third Summum request in 2005 was likewise denied.
• Summum sued under 42 U.S.C. § 1983. The District Court sided with Pleasant Grove; the Tenth Circuit reversed—treating the park as a traditional public forum and the city’s refusal as impermissible viewpoint discrimination. SCOTUS granted certiorari.

Petitioners’ (City’s) Theory

1. Permanent monuments are government expression. Acceptance constitutes the city’s own message, hence immune from Free Speech Clause constraints.
2. Even if forum principles applied, physical scarcity and aesthetic curation justify selective acceptance; strict neutrality would force either chaos or closure.

Respondent’s (Summum’s) Theory

1. Public parks are per se traditional public fora; refusing its monument while retaining others is viewpoint discrimination.
2. The city could satisfy equal-treatment obligations through neutral criteria (e.g., size or safety) rather than content-laden judgments.

Issues Presented

1. Does the Free Speech Clause require a municipality to accept a privately donated permanent monument when it has accepted others?
2. Are permanent monuments in public parks subject to public-forum analysis—or are they instances of government speech unregulated by the Clause?

Holding & Vote

• 9–0 (Alito, J.): Reversed. The display of a permanent monument in a city park is government speech; therefore, the Free Speech Clause imposes no viewpoint-neutrality obligation on the city.

Core Reasoning (Alito)

1. Historical practice of selective receptivity. Governments have long chosen, financed, or accepted monuments to craft civic identity—Statue of Liberty, Iwo Jima, Vietnam Wall, etc.
2. Attribution logic. Observers reasonably associate an installed monument with the landowner’s voice; selective placement and perpetual presence convey an official message.
3. Forum doctrine “out of place.” Unlike leafleting or rallies (transitory and multitudinous), land cannot host limitless stone structures; compelling the city to display every offered monument would either clutter parks or chill acceptance altogether.
4. Limits remain. Government speech must still respect other constitutional commands (e.g., Establishment Clause), but is not cabined by the Free Speech Clause.

Concurring Perspectives (Highlights)

• Roberts, C.J. (joined by Scalia & Thomas): Emphasizes that the Free Speech Clause “is a limit on government, not a limit on itself.”
• Souter, J.: Flags future need to distinguish government speech from government funding of private speech.
• Breyer, J.: Suggests a functional, not formal, approach—looking to context and likely attribution.

Doctrinal Takeaways

• Establishes a bright-line rule: permanent monuments accepted for display on government land are government speech; forum analysis (public, designated, limited) is irrelevant.
• Fortifies the government-speech shield later invoked in Walker v. Texas Division, Sons of Confederate Veterans (2015) to uphold state refusal of specialty plates bearing Confederate symbols.
• Signals that when the state speaks, it may curate content, though that power is tempered by other constitutional guarantees (e.g., Establishment Clause scrutiny of Ten Commandments displays).

Impact & Legacy

• Cities nationwide cite Summum to defend selective monument policies, art-commission vetoes, and removal or retention of controversial statuary.
• Invigorates scholarly debate over the “democratic accountability” rationale for shielding government speech from First-Amendment challenge.

Socratic Traps & Answers

• Q: Could Summum insist merely on staging an annual ceremony beside the Ten Commandments?
  A: Yes—temporary oral speech remains private expression in a public forum, subject to standard time-place-manner rules.
• Q: Does Summum license cities to censor hostile leaflets in parks?
  A: No—the ruling is confined to permanent structures clearly attributed to the government; transient private speech still enjoys forum protection.
• Q: Must the city remove its Ten Commandments slab after Summum if it fears an Establishment-Clause suit?
  A: Possibly—Summum offers no immunity from Establishment scrutiny; government speech can still violate the Religion Clauses.

Mnemonic

“SUMMUM stones = State tones—park monuments speak for the polity, not the passer-by.”

Bottom Line A permanent monument in a city park belongs to the government’s voice; the Free Speech Clause does not obligate equal access for competing messages, though other constitutional constraints may still apply.

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Comparative Synthesis

Supreme Court Case	Rule / Test Clarified	Speech Unprotected / Regulated	Sphere of Application
West Virginia State Board of Education v. Barnette (1943)	Compelled-speech doctrine: Government may not force individuals to affirm belief or salute the flag	Mandatory flag salute and pledge of allegiance struck down	Public education; patriotic rituals; state-dictated ideology
Wooley v. Maynard (1977)	Right not to speak extends to refusal to display state ideology on personal property	Criminal penalty for obscuring “Live Free or Die” license plate invalid	Private property; ideological messaging by the state
Pleasant Grove City v. Summum (2009)	Government-speech doctrine: Permanent public monuments are expressions of the state, not citizens	City’s refusal to install religious monument upheld	Government-controlled forums for permanent symbolic expression (monuments, civic messages)

Q0: Petition to graduate, graduate early after winter quarter, no plans to go to law school right away, need more time and more experiences

“I’d like your guidance on the long-term viability and risks of a post-grad legal pathway that isn’t a straight K-JD track. I’m currently planning a multi-stage plan that involves criminal justice fieldwork, possibly campaign/legal-policy work, and global law-related opportunities — all before applying to law school. I want to make sure I’m protecting my admissions competitiveness, academic references, and professional narrative during that gap.”

Rec letter, federal defender, publishing memoir, gap year campaign, international experience,

Q1: 1948 in syllabus Q2: 6-3 or 7-2

Q3: Is government speech truly unregulated?

“Can the government say anything as long as it doesn’t abridge rights or promote religion?”

• Short answer: Mostly yes, but with important caveats.

Government Speech Doctrine

• The government can speak freely in its official capacity. It’s not bound by viewpoint neutrality like private speech forums.
• Walker v. Texas Division, Sons of Confederate Veterans (2015) → License plates as government speech, can exclude Confederate flag.
• Pleasant Grove City v. Summum (2009) → City can accept a Ten Commandments monument but reject others on gov property.

Limits on Government Speech

1. Establishment Clause – Gov speech cannot promote religion, especially in legislative or school settings (e.g., Town of Greece v. Galloway vs Lee v. Weisman).
2. Compelled Speech – If gov forces others to carry its message, then it’s not just gov speech anymore (e.g., Wooley v. Maynard).
3. Civil Rights Context – Speech by officials (esp. federal employees) can trigger §1983 or Bivens liability if it creates a hostile environment or infringes protected rights. Not all speech is shielded under “government function” if it’s discriminatory or retaliatory.

→ Still, this is a high bar. Most civil suits are against conduct, not speech.

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Ceballos v. Garcetti (2006)

• Public employee speech case.
• If gov employee speaks pursuant to official duties, their speech is not protected under the First Amendment.
• Reinforces gov speech doctrine—employer control over internal messaging is broad.

→ Think about the state as employer vs. the state as sovereign legislator.

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Stone in Gobitis vs. Carolene Products

• Minersville School District v. Gobitis (1940):
  • Justice Stone dissented from majority that upheld mandatory flag salute.
  • Precursor to West Virginia v. Barnette (1943), which overruled it on compelled speech grounds.
• Carolene Products (1938):
  • Footnote 4 (Stone again): Birth of “discrete and insular minorities” doctrine. Suggests strict scrutiny might be appropriate where laws affect fundamental rights or marginalized groups.

→ Stone emerges as a proto-civil libertarian voice across different domains (economic regulation vs civil liberty).

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🆔 Oklahoma – Sex Offender Label on ID

• Constitutional Issue: Compelled speech vs Government speech.
• If the label is part of a general state ID system, the state might argue it’s government speech, intended for public safety.

BUT…

• Courts often apply strict scrutiny if it:
  • Publicly stigmatizes individuals (see Doe v. DPS).
  • Lacks a compelling gov interest narrowly tailored to that method.
• Relevant cases may include:
  • Wooley v. Maynard (1977) – Right to refuse to display “Live Free or Die”.
  • United States v. Alvarez (2012) – False speech not always punishable.

→ This likely fails as pure government speech and enters compelled identity speech, triggering stricter review.

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🚗 License Plate Disputes

1. Walker v. Texas Division (2015):
   • State refused Confederate flag specialty plate.
   • SCOTUS held: license plates = government speech, no viewpoint neutrality needed.
2. Wooley v. Maynard (1977):
   • Jehovah’s Witness refused to display Live Free or Die.
   • Court said gov cannot force private citizens to carry ideological message → this is compelled speech.

→ Tension between when a license plate is government expression and when it’s private speech platform.

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🗽“Live Free or Die” – Government Speech?

• Mixed issue:
  • As a state motto, it is government speech.
  • But when forced onto individuals’ private property (e.g., cars), it can become compelled speech.

→ Key insight: location and context matter in compelled speech cases. The medium of expression (ID, license plate, uniform) determines scrutiny level.

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📌 Summary Principles

• Government Speech = Generally unregulated, but:
  • Must avoid Establishment Clause violations.
  • Cannot compel individuals to express ideology.
  • Speech by employees or officials can face restriction or liability if:
    • Within employment context (Garcetti);
    • Discriminatory or violating civil rights.
• Compelled Speech = Strict scrutiny applies.
  • Must be narrowly tailored to a compelling interest.
  • Even “symbolic” speech (ID labels, slogans, flags) is protected.
• Stone’s influence:
  • Anticipates liberty-conscious dissent in both civil liberties and fundamental rights jurisprudence.

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Week 8 Discussion

==General Rule: Viewpoint Discrimination==

“Really hard to argue in favor of viewpoint-based restrictions.”

Key Doctrine:

• Strict Scrutiny applies to viewpoint discrimination.
• Government cannot favor or disfavor particular perspectives in:
  • Traditional public forums
  • Designated public forums
  • Limited public forums (if within subject matter)

Takeaway:

If a law or regulation targets the specific opinion or perspective being expressed, it is almost always unconstitutional.

→ See: Rosenberger v. UVA (1995), Lamb’s Chapel (1993), and Reed v. Town of Gilbert (2015).

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Hypo 2: Ban on Indoor Fires, Except for Chemistry

Policy bans all indoor open flames except for chemistry labs.

Facial Challenge:

• Facially content-neutral → rule applies to all “fire expression” equally.
• But potentially underinclusive → why are chemistry labs privileged? Could imply speaker identity discrimination (if students in art or religion can’t use candles, etc.).

As-Applied Challenge:

• If someone is disciplined for lighting a memorial candle, or an art installation → this could be:
  • Underinclusive if it only permits fires for academic disciplines the school prefers.
  • A possible free expression or free exercise issue, depending on context.

Doctrinal Framing:

• Is the rule truly content-neutral or content-based under the surface?
• Does the exception for chemistry create an arbitrary or discriminatory preference?
• Does it trigger a forum analysis (e.g., classroom as a limited public forum)?

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Hypo 3: Public Park Weight Restriction

Law bans carrying any sign over 5lbs in a public park during mass gatherings.

Forum Type:

• Public Park = Traditional Public Forum
  • Government has least leeway to restrict speech.
  • Can only enforce narrowly tailored, content-neutral time, place, and manner regulations.

Content-Neutral or Not?

• On its face, the rule appears content-neutral → weight-based, not idea-based.
• BUT if it disproportionately affects protest signs, or is enforced selectively, could be:
  • Pretext for content suppression
  • Subject to heightened scrutiny

Government Interest:

• Claimed interest: prevent damage or injury (e.g., from heavy signs falling).
  • May be legitimate, but the rationale must be logical:
    • Is a falling sign only dangerous when carried?
    • What about heavy equipment used for non-expressive purposes?

Narrow Tailoring?

• Is the 5lb limit the least restrictive means?
• Are there alternative channels of communication?
• Are non-expressive activities (e.g., sports gear, chairs) regulated similarly?

🛠️ Alternative Test: CN-NT-Alt

Element	Test
Content-Neutral	Rule does not target message or viewpoint
Narrowly Tailored	Cannot burden more speech than necessary
Ample Alternatives	Speakers must retain effective communication options

→ See: Ward v. Rock Against Racism (1989)

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Student Speech Standard

“Materially and substantially disrupt classwork or invade others’ rights”; mere undifferentiated fear or discomfort is not enough.

Standard from:

• Tinker v. Des Moines (1969)

What’s Not Enough:

• Avoiding controversy
• Offense or disagreement
• Desire for administrative ease

→ To restrict student expression, schools must demonstrate actual or reasonably forecasted disruption to educational function.

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Compelled Speech Core Principle

“Looking for an element of compulsion.”

Key Question:

• Is the government merely speaking for itself (gov’t speech)?
• Or is the government forcing an individual to express or endorse a message?

Key Tests:

Doctrine	Case(s)	Test / Threshold
Compelled Speech	Wooley v. Maynard (1977)	Forced to carry ideological message against will
Employee Speech Regulation	Garcetti v. Ceballos (2006)	If speech is part of official duties, it’s not protected
Government Speech	Walker v. Sons of Confederate Veterans	If reasonable observer sees it as gov’t position → no individual rights

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Final Takeaways

• First Amendment cases live and die on classifications:
  • Forum (traditional / designated / limited / nonpublic)
  • Nature of speech (content-neutral vs viewpoint)
  • Speaker (citizen, student, employee, government)
  • Regulatory aim (avoiding disruption, safety, government identity, etc.)
• Always walk through:
  1. What kind of speech is this?
  2. Who is the speaker?
  3. What is the forum?
  4. What is the regulation’s purpose?
  5. Is it content-based or viewpoint-based?
  6. Does it compel expression or suppress dissent?

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Week 8.2 — Libel and Defamation

1. New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

— Warren Court constitutionalizes American libel law: only “actual malice” can silence criticism of public officials

Facts & Procedural Posture

• Montgomery, AL (1960): A full-page advertisement, “Heed Their Rising Voices,” ran in The New York Times, soliciting funds for the civil-rights struggle and recounting police abuses. Several factual details were inaccurate (e.g., students sang the wrong anthem; King arrested four, not seven, times).
• L. B. Sullivan, elected Commissioner of Public Affairs (in charge of police), claimed the word “police” implicitly libeled him. Alabama law treated such words as libel per se—injury, falsity, and malice presumed.
• State jury awarded Sullivan $500,000 against the Times and four Black clergy signatories; Alabama Supreme Court affirmed. Cert granted to decide how far the First and Fourteenth Amendments limit state libel verdicts.

Petitioners’ (Times & Clergy) Theory

1. Criticism of official conduct on public issues lies at the First Amendment’s core; l==iability without fault== yields unconstitutional self-censorship.
2. Alabama’s doctrine of “presumed malice” inverts the burden of proof, chilling debate.
3. Advertisement did not refer to Sullivan “of and concerning” him; verdict lacks evidentiary basis.

Respondent’s (Sullivan) Theory

1. Libelous speech sits outside constitutional protection; states may set strict liability to vindicate reputational interests.
2. Errors of fact, even in political ads, forfeit First Amendment immunity.
3. Jury reasonably inferred he was targeted as the police commissioner.

Issues Presented

1. What constitutional standard governs defamation suits by public officials over speech about their official conduct?
2. Does the First Amendment permit a verdict resting on presumed falsity and malice, with the burden on defendants to prove truth?
3. Were the challenged statements “of and concerning” Commissioner Sullivan?

Holding & Vote

• 9 – 0 (Brennan, J.): A public official may recover for defamatory falsehood relating to official conduct only by proving “actual malice”—knowledge of falsity or reckless disregard for truth—by “clear and convincing” evidence. Alabama verdict reversed.

Core Reasoning (Brennan)

1. Robust public debate imperative. Democracy demands “uninhibited, robust, wide-open” criticism of officials—even “vehement, caustic” attacks.
2. Error is inevitable in free discussion; compelling critics to guarantee truth on pain of ruin chills speech.
3. Actual-malice rule balances free debate with reputational interests, preserving breathing space.
4. Presumptions of falsity/malice and strict liability conflict with the First Amendment; evidence also insufficient to show the ad was “of and concerning” Sullivan.

Concurring Perspectives (Highlights)

• Black & Douglas: First Amendment is absolute—government may never punish criticism of officials, true or false.
• Goldberg (joined by Douglas & Brennan): “Actual malice” applies to all speech on public issues, not merely attacks on officials.

Doctrinal Takeaways

• Birth of the “public-official actual-malice” test, later extended to public figures (Curtis Publishing v. Butts, 1967) and limited-purpose figures.
• Shifts libel from strict state tort to constitutional domain; states may not impose presumed damages or punitive awards absent actual malice.
• Establishes clear-and-convincing-evidence standard of proof.

Impact & Legacy

• Transformed U.S. press freedom; encouraged investigative journalism on Vietnam, Watergate, etc.
• Continues to shield media (and today, bloggers & social media users) when criticizing officials, though doctrine now challenged by some Justices and legislators.

Socratic Traps & Answers

• Q: If a mayor sues a local blog for a small factual mistake, does Sullivan apply?
  A: Yes—mayor is a public official; plaintiff must show actual malice.
• Q: Does Sullivan protect knowing lies about a private individual?
  A: No—private plaintiffs need show only negligence (Gertz v. Robert Welch, 1974).
• Q: Can a state flip the burden, requiring defendants to prove lack of malice?
  A: No—the First Amendment requires the plaintiff to prove presence of actual malice.

Mnemonic

“SULLIVAN shields scrutiny—Officials swallow ‘actual malice’ pill.”

Bottom Line
State libel law cannot penalize criticism of public officials unless the speaker knew it was false or recklessly ignored the truth; mere inaccuracy, negligence, or presumed malice is constitutionally insufficient.

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2. Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969)

— Warren Court strikes down discretionary parade-permit regime: citizens may ignore a “prior restraint without standards.”

Facts & Procedural Posture

• Good Friday, April 12, 1963: Civil-rights leader Rev. Fred Shuttlesworth led 52 Black demonstrators four blocks from a Birmingham church to protest segregation. Marchers stayed mostly on sidewalks; no traffic blocked.
• They had no parade permit under Birmingham Code § 1159, which required written application and allowed the City Commission to deny permits whenever “public welfare, peace, safety, health, decency, good order, morals or convenience” so “require.”
• Police arrested Shuttlesworth; he was convicted, sentenced to 90 days hard labor + fine. Alabama appellate courts affirmed. SCOTUS granted cert.

Petitioner’s (Shuttlesworth) Theory

1. Ordinance is an unconstitutional prior restraint: no narrow, objective standards; grants officials unbridled discretion.
2. Where a licensing scheme is facially void, citizens may exercise First Amendment rights without first applying.
3. Conviction violates Due Process because ordinance is overbroad and discriminatorily enforced against civil-rights protesters.

Respondent’s (City) Theory

1. Streets are a public resource; permits ensure orderly traffic and safety.
2. Petitioner failed to exhaust administrative remedies—could have applied earlier or pursued judicial review; cannot “self-license.”
3. Even if parts of ordinance vague, Court should construe it narrowly or uphold conviction for ==unpermitted use of streets.== ??

Issues Presented

1. Does § 1159, vesting permit decisions in officials’ subjective judgment, constitute an unconstitutional prior restraint?
2. If a licensing law is unconstitutional on its face, may demonstrators be punished for marching without obtaining a permit?

Holding & Vote

• 8 – 0 (Stewart, J.): Ordinance vests “virtually unbridled and absolute power”—invalid under First & Fourteenth Amendments. Where a law is so void, citizens may ignore it and exercise speech rights with impunity; conviction reversed.

Core Reasoning (Stewart)

1. Precedent forbids permit systems lacking “narrow, objective, and definite standards” (e.g., Staub v. Baxley, Kunz v. New York). Words like “decency” or “morals” allow suppression of disfavored ideas.
2. Prior restraint doctrine: When the right to speak hinges on an official’s unguided whim, the scheme is unconstitutional.
3. Because Birmingham’s ordinance was facially void, Shuttlesworth was entitled to disregard it; state may not imprison him for not begging permission to exercise a constitutional right.

Concurring Perspectives (Highlights)

• Harlan, J.: Agrees ordinance unconstitutional but emphasizes practical absence of expedited review; without prompt procedure, permit denial effectively final, justifying civil-rights marchers’ decision to proceed.
• White, J. (separate): Stresses that narrow traffic-control rules are permissible; defect here is standardless discretion and discriminatory use.

Doctrinal Takeaways

• Clarifies that void-for-vagueness + discretion in permit schemes equals facial invalidity.
• Establishes citizens’ right to “ignore” such schemes (later cited in Cox v. Louisiana II, Papachristou).
• Signals that permissible parade ordinances must: (a) contain objective criteria; (b) require prompt decision; (c) allow swift judicial review.

Impact & Legacy

• Became cornerstone for modern time-, place-, and manner licensing jurisprudence; cities now draft detailed, content-neutral parade rules (attendance caps, insurance, fees) to survive Shuttlesworth scrutiny.
• Frequently invoked in challenges to protest permitting after 9/11 and during Black Lives Matter demonstrations.

Socratic Traps & Answers

• Q: City ordinance now denies permits for any march criticizing police during rush hour—valid?
  A: Likely invalid: content-based and vested in official discretion, violating Shuttlesworth.
• Q: If city had fixed standards (route capacity, safety) and offered 48-hour review, could it punish marchers without a permit?
  A: Yes—constitutionally tailored scheme; protestors must comply or face civil penalties.
• Q: Does Shuttlesworth forbid permit fees?
  A: No—reasonable, content-neutral fees tied to administrative costs are permissible (Forsyth County v. Nationalist Movement, 1992).

Mnemonic

“SHUTTLES can WORTHily launch without a license when officials steer by whim.”

Bottom Line
A permit system that lets officials veto demonstrations for amorphous “public welfare” reasons is a facial prior restraint; when such a law controls the streets, demonstrators may march without papers—and the state cannot jail them for exercising their First Amendment freedoms.

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3. New York Times Co. v. United States, 403 U.S. 713 (1971)

— “Pentagon Papers” decision: extraordinary prior restraints demand an extraordinary justification the government could not supply

Facts & Procedural Posture

• Top-secret study leaked: In March 1971 RAND analyst Daniel Ellsberg photocopied a 7,000-page Defense Department history of U.S.-Vietnam policy (1945-1968).
• June 13 – 18: New York Times began serializing excerpts (“Pentagon Papers”). The Nixon Administration sought an injunction under § 793(e) & §§ 794–798 Espionage Act plus inherent executive power, alleging grave, immediate harm to national security.
• S.D.N.Y. (Judge Gurfein): Issued a temporary restraining order; then, after in-camera review, denied a preliminary injunction—“The security of the Nation is not at the ramparts alone.”
• 2d Cir. (per curiam): Reversed 5-3, remanding for detailed findings; continued the prior restraint pending appeal.
• Meanwhile, Washington Post began publishing; D.D.C. denied injunction; D.C. Cir. affirmed 2-1.
• With the press split, the Supreme Court granted cert & stay on June 25 and heard argument June 26, deciding June 30: the fastest merits disposition in Court history.

Petitioners’ (U.S.) Theory

1. ==Imminent, irreparable harm:== Release would compromise ongoing diplomatic initiatives (Paris peace talks), expose intelligence sources, and prolong the war.
2. Courts must defer to executive assessments of national security; traditional criminal remedies are inadequate once secrets are public.
3. Even if the First Amendment disfavors prior restraints generally, publication of ==classified information obtained unlawfully== is an exceptional case where equity may intervene.

Respondents’ (Times & Post) Theory

1. Heavy presumption against prior restraints (Near v. Minnesota)—government bears a “heavy burden” of proof it has not met.
2. The Papers are a historical study, not operational plans; government’s assertions are conclusory and unsupported.
3. Injunctions are tantamount to licensing; the proper remedy is after-the-fact prosecution, subject to Sullivan‐Gertz standards.

Issues Presented

1. Does the First Amendment permit the federal courts to enjoin newspapers from publishing classified, historically oriented documents absent a specific statute authorizing such restraint?
2. What burden of proof must the United States satisfy to justify a prior restraint on publication?

Holding & Vote

• Per curiam, 6 – 3: Government failed to meet the “heavy burden of showing justification for the imposition of a prior restraint.” Injunctions vacated; publication may proceed.

Core Reasoning (Per curiam summary)

• The First Amendment “leaves no room for governmental restraint of the press” unless the Government can show direct, immediate, and irreparable injury to the Nation or its people—burden unmet here.

Concurring Opinions (Highlights)

• Black (joined by Douglas): First Amendment is absolute—“no law” means no law; only a free press can expose official mistakes and deception.
• Brennan: Prior restraint tolerable only if publication would “surely result in direct, immediate, and irreparable damage to the Nation”; record contains no specific proof.
• Stewart & White: Executive has broader constitutional responsibility for secrets, but courts may enjoin only when disclosure will “surely” cause grave harm; Government offered mere surmise.
• Marshall: Separation-of-powers bar—Congress has not authorized pre-publication injunctions; the courts cannot manufacture one.

Dissents (Highlights)

• Harlan (joined by Burger & Blackmun): Criticizes “frenetic haste”; argues for deference to the political branches and full fact-finding; would remand with injunction intact.
• Blackmun: Potential lives at stake; presses for balancing national security versus freedom of the press, finds the scales uncertain.

Doctrinal Takeaways

• Near-Sullivan lineage fortified: Prior restraints on speech—even involving national security—carry an almost conclusive presumption of invalidity.
• Burden on Government: must prove publication will lead to “direct, immediate, and irreparable harm”; hypothetical or generalized harm is insufficient.
• Leaves open the possibility of post-publication criminal liability, but erects sky-high barriers to pre-publication silence.

Impact & Legacy

• Cemented the press’s watchdog role; accelerated investigative journalism on Watergate, CIA domestic spying, and later, digital-age leaks (Snowden, WikiLeaks).
• Spawned continuing battles over classified-information leaks, yet no federal court has enjoined a mainstream outlet since.
• Influences FOIA jurisprudence and debates over the Espionage Act’s reach toward publishers.

Socratic Traps & Answers

• Q: Could the Government obtain an injunction today if publication would reveal an imminent troop location?
  A: Possibly—the Times standard allows prior restraint if harm is specific, immediate, and catastrophic and proved with concrete evidence.
• Q: Does Times immunize journalists from criminal prosecution under the Espionage Act?
  A: No—the Court expressly limited its holding to prior restraint; post-publication prosecutions remain theoretically available (though never tested against a newspaper).
• Q: If a statute expressly barred publication of nuclear launch codes and provided for injunctions, would that satisfy Marshall’s separation-of-powers concern?
  A: Statutory authority would remove one objection, but courts would still scrutinize whether the restraint meets the heavy-burden test for immediate, irreparable harm.

Mnemonic

“PENTAGON PAPERS: Press Prints, President Protests—Prior Restraint Falls.”

Bottom Line
Absent an overwhelming, immediate threat proven with specificity, the Government cannot gag the press before publication—the First Amendment’s presumption against prior restraints reigns supreme, even when classified secrets are at stake.

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Libel refers to written or visual defamation—statements made in a fixed medium like articles, posters, cartoons, or digital images that injure someone’s reputation. Slander refers to spoken defamation—transient verbal statements that carry the same injurious effect but are traditionally treated with more evidentiary burden due to their ephemeral nature.

Prior restraint refers to a government action that prevents speech from being expressed before it occurs. This is constitutionally disfavored and subject to the strictest scrutiny under First Amendment doctrine. Unlike punishment after the fact, prior restraint seeks to stop the expression from ever reaching the public, which courts view as presumptively unconstitutional unless certain exacting standards are met.

The leading case on prior restraint is Southeastern Promotions Ltd. v. Conrad (1975). In this case, a theater group sought to present the controversial musical Hair in a municipal facility but was denied a permit. The Court ruled that this denial constituted an impermissible prior restraint because the permitting system lacked procedural safeguards and gave excessive discretion to officials. The decision clarified the constitutional requirements that any system of prior restraint must meet.

The Court laid out a three-part test for when prior restraint might be allowed:

1. There must be an important or compelling governmental reason to impose the restraint (e.g., protecting national security in a narrowly defined context, avoiding imminent incitement to violence).
2. The regulatory scheme must contain clear, narrowly drawn, and objective standards that leave little to no discretion in the hands of the licensing authority. Discretionary systems are prone to censorship based on content or viewpoint.
3. There must be strong procedural safeguards, including:
   • A fair and timely hearing
   • A quick final decision
   • Availability of appellate review
     These ensure the speaker is not silenced indefinitely while the process drags on.

In this context, a first-come, first-served system may qualify as a clear standard because it minimizes discretion. If a permit is granted based solely on application timing and not on content or viewpoint, that suggests neutrality and fairness. However, the system must be consistently applied and not used to indirectly suppress certain viewpoints by, for instance, denying access to unpopular speakers through technicalities.

Judicial injunctions on speech—court orders restraining parties from making certain statements—also implicate prior restraint principles. These are highly controversial because they amount to court-imposed censorship.

• The collateral bar rule says that even if an injunction is later found unconstitutional, it must be obeyed until overturned through proper legal channels. Disobeying the order can lead to contempt sanctions regardless of its ultimate validity. This rule creates tension between obeying the law and protecting expressive freedom.
• Judicial “gag orders” are a form of injunction usually applied in the context of ongoing trials (e.g., to prevent pretrial publicity from influencing a jury). These are subject to strict scrutiny and often invalidated unless they are absolutely necessary and narrowly tailored.

A declaratory injunction merely declares the rights and legal status of the parties—it does not mandate behavior. A full injunction, by contrast, is a coercive court order requiring or forbidding specific conduct, including expressive acts. Only the latter triggers prior restraint concerns.

Regarding national security, the Court has repeatedly emphasized that broad or vague references to “security” are insufficient. In New York Times Co. v. United States (1971) (the Pentagon Papers case), the government’s attempt to enjoin publication on national security grounds failed because its justifications were too general and speculative. The Court held that security cannot be used as a blanket justification for suppressing speech; it must be specific, concrete, and imminent.

Overall, the doctrine of prior restraint is built on a distrust of government power to pre-approve speech. The constitutional preference is always for post hoc accountability (e.g., libel suits) rather than ex ante censorship.

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Week 8 Office Hours Notes

1. Carson v. Makin

2. The question of whether Paid Days Off (PDOs) for menstrual cramping violate the Equal Protection Clause of the Fourteenth Amendment turns on whether the law classifies on the basis of sex and, if so, whether it satisfies intermediate scrutiny. Under Craig v. Boren and reinforced by United States v. Virginia (VMI), sex-based classifications must serve an important governmental interest and be substantially related to achieving that interest. The Court in VMI went further and demanded an “exceedingly persuasive justification” for such sex-based policies. A menstrual PDO policy would likely be viewed as facially sex-based, triggering intermediate scrutiny automatically. The state might argue it supports gender equity in the workforce, but it must demonstrate that the policy is not based on overbroad generalizations or stereotypes about women’s capacity for work.

   1. From a rational basis lens, this might pass easily, but the real question is whether it’s sufficiently tailored. The tailoring inquiry focuses on over- and under-inclusiveness: is the policy grounded in objective medical thresholds (e.g., base level of pain), or does it substitute a moral or social value judgment for legal precision? For example, comparing flu-related medical leave (often permitted with documentation) versus menstrual pain (often stigmatized or minimized) may raise substantive equality concerns. If a policy gives 12 days of PDOs for medical reasons and includes menstrual pain as one eligible cause, that’s more neutral—but a blanket carveout or extra leave solely for menstruation may face questions about scope, gender exclusivity, or economic impact (e.g., employer costs, tax implications). Relatedly, the tax status of menstrual products like tampons—often taxed as luxury items rather than exempt medical goods—raises issues under state constitutional equality clauses. States like California have cited state-level Equal Protection to prohibit taxing bottled water differently from other health-related items, hinting at analogous arguments for menstrual equity.
   2. This discussion connects to Carolene Products Footnote 4, which suggested that laws targeting “discrete and insular minorities”, especially when involving immutable characteristics (like sex or race), merit heightened scrutiny. This framework could arguably be extended to menstrual equity under gender-based immutability reasoning. A similar dynamic played out in public reaction to Chicago’s soda tax, where critics argued that the tax disproportionately impacted low-income communities—highlighting how overbreadth and hidden class lines often permeate seemingly neutral health regulations. The logic would also map to abortion-related taxes or carveouts: for example, taxing abortion services while exempting other procedures may present an equal protection or undue burden claim, depending on the facts.

3. Shifting to immigration and speech, the idea of deporting international students for anti-American speech (e.g., social media posts critical of U.S. values or DEI discourse) raises grave constitutional red flags. For noncitizens already physically present in the U.S., including those on F-1 visas tracked by SEVP (Student and Exchange Visitor Program), any such policy would likely amount to viewpoint discrimination, which is presumptively invalid under the First Amendment. As applied here, it would require the government to punish individuals based on the content of their political beliefs, triggering strict scrutiny and likely failing due to the absence of a compelling interest narrowly tailored to such speech. Additionally, due process protections would apply, especially since termination of SEVP status can result in immediate loss of legal presence and serious immigration consequences. While the federal government does enjoy broader power at the border—keeping people out via visa restrictions—it faces stricter constitutional limits when regulating people already inside the U.S. Any such measure would need to grapple with both procedural due process and substantive free speech doctrine.

4. On the matter of foreign affairs and executive power, courts have long recognized that the judiciary lacks authority to interfere with foreign policy decisions of the Executive Branch. This deference is rooted in the political question doctrine, often invoked in cases like Zivotofsky v. Kerry or Haig v. Agee, where courts defer to the President’s unique competence in diplomacy and national security. However, this doesn’t mean the executive power is unlimited—especially where individual constitutional rights are implicated domestically.

5. This leads to the final question: if Canada’s public discourse or media turns hostile to Americans, can the U.S. government respond with travel bans, export controls, or digital censorship? Constitutionally, such retaliation raises serious First Amendment and commerce-related issues, particularly if these restrictions are applied domestically or affect U.S. citizens’ access to foreign media, platforms, or markets. Even in the realm of foreign commerce, Congress and the Executive must act within enumerated powers (e.g., Commerce Clause, foreign affairs), and retaliatory actions cannot violate constitutional guarantees—including free speech, equal protection, or due process—especially when impacting individuals inside U.S. borders. Blanket statements about “national security” do not suffice; the government must provide specific, imminent, and concrete justifications for infringing core liberties. As in Pentagon Papers or Boumediene v. Bush, vague fears of propaganda or foreign hostility are not enough to suppress speech or impose sweeping restrictions. The Constitution does not permit ideological retaliation in the name of geopolitics without clear, lawful limits.

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Week 9.1

1. Lemon v. Kurtzman & Earley v. DiCenso (companion), 403 U.S. 602 (1971)

— Burger Court crystallizes the modern Establishment-Clause framework: statutes aiding parochial schools must clear the three-part “Lemon test.”

Facts & Procedural Posture

• Pennsylvania “Purchase of Services” Act (1968): reimbursed non-public schools—almost all Catholic—for teachers’ salaries, textbooks, and materials in secular subjects (math, modern languages, science, P.E.). Reimbursements flowed directly to the schools, subject to audits and accounting rules.
• Rhode Island Salary Supplement Act (1969): paid 15 % salary bonuses directly to teachers of secular subjects in qualifying non-public elementary schools—again, overwhelmingly Catholic. Applicants pledged not to teach religion and to use only materials approved for public schools.
• Taxpayer plaintiffs (including Alton Lemon) alleged violation of Establishment & Free Exercise Clauses; three-judge district courts split—Pennsylvania law upheld, Rhode Island law struck. Appeals consolidated; Supreme Court noted first application of new § 1253 review route.

Petitioners’ (States) Theory

1. Secular purpose: rescue financially imperiled private schools providing mandatory secular education, thus easing public-school overcrowding.
2. Primary effect neutral: aid earmarked to non-religious instruction; explicit bans on religious content safeguard neutrality.
3. No excessive entanglement: audits are routine fiscal oversight; comparable to health inspections or bus subsidies already upheld.

Respondents’ (Taxpayers) Theory

1. Parochial schools are pervasively sectarian; money is inherently fungible—state funds inevitably advance religion.
2. Continuous audits, salary monitoring, and per-pupil cost policing create intimate church–state supervision—an entanglement the Founders sought to avoid.
3. Political divisiveness along religious lines is itself a forbidden entanglement.

Issues Presented

1. Do statutes that subsidize secular instruction in church-related schools violate the Establishment Clause?
2. What analytic framework governs such church-state aid questions?

Holding & Vote

• 8 – 0 on rule (Burger, C.J.), 8 – 1 on application (White dissenting as to Pennsylvania): Both statutes are unconstitutional because they foster “excessive government entanglement with religion.”

Core Reasoning (Burger)

1. Synthesizes prior precedents into a three-pronged test: a statute
   1. (i) must have a secular legislative purpose,
   2. (ii) its principal or primary effect must neither advance nor inhibit religion, and
   3. (iii) it must avoid excessive government entanglement with religion.
2. Purpose here is secular, and effect arguably neutral, but continuous auditing of school accounts, policing teacher conduct, and monitoring per-pupil religious expenditures create pervasive, enduring oversight—“a relationship pregnant with dangers” of church dominance or state censorship.
3. Cash subsidies risk political factionalism: fights over public funds will align with sectarian identity, precisely the evil the Clause anticipates.

Concurring Snapshots

• Douglas: Once aid flows, fungibility guarantees advancement of faith; statutes fail all three prongs.
• Brennan: Warns that even “secular” instruction in parochial schools inevitably transmits religious worldview.
• White (partly dissenting): Would uphold Pennsylvania plan—sees no greater entanglement than textbook loans in Allen.

Doctrinal Takeaways

• “Lemon test” becomes default metric for Establishment cases for decades—though later treated as “guidelines,” not talismanic.
• Introduces entanglement as distinct from purpose/effect; recognizes political divisiveness as a constitutional harm.
• Fuels wave of litigation striking or narrowing state-aid schemes until Agostini v. Felton (1997) relaxes prong ②/③.

Impact & Legacy

• Dooms most direct cash subsidies to parochial schools until voucher cases (Zelman, 2002) chart a new path via “private choice.”
• Supplies lower courts with a ready checklist; simultaneously criticized as overly rigid and indeterminate.
• Term “excessive entanglement” enters constitutional lexicon, influencing faith-based-initiative debates.

Socratic Traps & Answers

• Q: Would free state-provided Chromebooks to all students violate Lemon?
  A: Likely pass—neutral, secular hardware, minimal ongoing monitoring.
• Q: Must states yank bus subsidies to parochial schools after Lemon?
  A: No—Everson already upheld transportation; effect neutral, oversight trivial.
• Q: If a statute required quarterly catechism audits, what prong fails first?
  A: Entanglement (Ⅲ) via invasive surveillance.

Mnemonic

“Lemon Squeeze: Purpose–Effect–Entanglement.”

Bottom Line
State aid to religious schools survives only if it has a secular aim, a neutral effect, and avoids deep church–state entanglement; Pennsylvania and Rhode Island flunk on the last, birthing the durable but controversial Lemon framework.

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2. Lee v. Weisman, 505 U.S. 577 (1992)

— Kennedy for the Rehnquist Court extends school-prayer limits: graduation invocations violate the Establishment Clause under a new “subtle coercion” test.

Facts & Procedural Posture

• Providence, RI public schools: long-standing policy lets principals invite clergy to deliver non-sectarian invocation & benediction at middle- and high-school graduations; clergy receive NCCJ “Guidelines for Civic Occasions.”
• 1989: Principal Robert Lee asked Rabbi Leslie Gutterman to pray at Nathan Bishop Middle School ceremony; provided draft guidance but did not script text.
• Parent Daniel Weisman sought TRO; denied. After ceremony, family sued to enjoin future prayers. District court & 1st Circuit ruled for Weisman; Supreme Court granted cert.

Petitioners’ (School District & U.S.) Theory

1. Prayers are ceremonial deism echoing historic traditions (Thanksgiving, inaugural invocations); minimal, nonsectarian, voluntary attendance.
2. Any discomfort is de minimis; students may sit or skip graduation.
3. If Lemon applies, the policy has secular purposes (solemnity), neutral effects, and negligible entanglement.

Respondent’s (Weisman) Theory

1. Graduation is effectively obligatory; state-directed prayer coerces students to participate or appear disrespectful—violating principle of governmental neutrality in matters of conscience.
2. Pre-service vetting of clergy and insistence on nonsectarian content shows state control of religion, forbidden whether sectarian or not.
3. Lemon and school-prayer precedents (Engel, Schempp) forbid religious exercises in the public-school context.

Issues Presented

1. Does inclusion of clergy-led, nonsectarian prayers in public-school graduations contravene the Establishment Clause?
2. Is psychological or peer pressure a constitutionally cognizable form of coercion?

Holding & Vote

• 5 – 4 (Kennedy, J.): State-sponsored graduation prayers are unconstitutional; government may not coerce participation in religious exercise through social pressure in the school setting.

Core Reasoning (Kennedy)

1. Coercion principle: Even subtle pressure on impressionable students to stand or remain reverent is “as real as any overt compulsion.”
2. State direction: Officials selected clergy, set prayer parameters, and placed invocation within official program—amounting to state endorsement.
3. ==Opt-out not adequate;== missing graduation sacrifices a once-in-a-lifetime rite. The Free Exercise “accommodation” rationale cannot override core prohibition.
4. Decision reached without overruling Lemon but treats entanglement and endorsement through lens of coercion.

Concurring / Dissenting Highlights

• Blackmun (conc.): Embraces Lemon; prayer fails all three prongs.
• Souter (conc.): ==Historical practices== do not justify graduation prayer; rejects “civic religion.”
• Scalia (dissent, joined by Rehnquist, White, Thomas): Majority invents “psychological coercion” unheard of in 1791; tradition and neutrality permit nonsectarian civic prayer.

Doctrinal Takeaways

• Introduces “psychological coercion” test—particularly potent in primary/secondary schools. — contrast with lemon: replacing the coercion test with the
• Marks shift from Lemon toward endorsement/coercion hybrid later echoed in Santa Fe ISD v. Doe (2000).
• Clarifies that nonsectarian prayer is not a constitutional safe harbor when government orchestrates the event.

Impact & Legacy

• Graduation ceremonies nationwide drop official clergy prayers, replace with “moments of silence” or student remarks.
• Coercion analysis resurfaces in public-monument and pledge-of-allegiance litigation.
• Sparks intense debate over civic traditions versus strict separation—dialogue amplified by Justice Scalia’s polemical dissent.

Socratic Traps & Answers

• Q: Would a student-initiated prayer, chosen by lottery, pass Lee?
  A: Probably not—Santa Fe held even “student-led” prayers at football games unconstitutional when school-sponsored.
• Q: Legislative chaplains (Marsh v. Chambers) still OK?
  A: Yes—Court distinguishes adult legislatures from compulsory school settings.
• Q: Does Lee doom “under God” in the Pledge?
  A: Not necessarily; Pledge recitation is opt-out and historically embedded—though Scalia flagged the tension.

Mnemonic

“LEE: Leave Ecclesiastics at the Exit.”

Bottom Line
When public-school officials orchestrate even “nonsectarian” prayer at a graduation, the subtle but real pressure on students constitutes unconstitutional state-coerced religious exercise—cementing the idea that school events must remain prayer-free to honor liberty of conscience.

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3. Van Orden v. Perry, 545 U.S. 677 (2005)

— Rehnquist Court splits over a granite Ten Commandments on Texas Capitol grounds: historical context saves what “Lemon” alone might sour.

Facts & Procedural Posture

• Austin, TX (1961): The Fraternal Order of Eagles donated a 6-foot granite monument inscribed with the Ten Commandments; the state installed it on a walkway leading to the Capitol. The 22-acre grounds already featured 17+ other historical and patriotic displays (heroes of Texas Revolution, Bill of Rights tribute, Korean-War memorial, etc.).
• Thomas Van Orden, an Austin attorney who often passed the monument, filed suit in 2001 under 42 U.S.C. § 1983, alleging violation of the Establishment Clause.
• U.S. District Court (W.D. Tex.) granted summary judgment for Texas; Fifth Circuit affirmed. The Supreme Court noted probable jurisdiction and heard argument the same day as McCreary County v. ACLU (courthouse Commandments—later struck).

Petitioner’s (Van Orden) Theory

1. Religious endorsement: A stand-alone Decalogue on government property sends the message that the state endorses Judeo-Christian theology.
2. Fails Lemon test: Neither secular purpose nor primary secular effect; presence of other monuments irrelevant because none share religious content.
3. No genuine historical context: Monument was installed as part of an Eagles campaign to promote religion and morality.

Respondent’s (Texas) Theory

1. Dual secular and moral significance: Ten Commandments influenced Western law; monument acknowledges that heritage among many others.
2. Passive display: Silent, permanent, non-proselytizing; no schoolchildren or captive audience coerced.
3. Historical practice: Governments long reference the Decalogue (e.g., SCOTUS frieze); public understands it chiefly as a legal-historic symbol.

Issues Presented
Does the presence of a Ten Commandments monument on state-capitol grounds violate the Establishment Clause of the First Amendment, as applied to the states through the Fourteenth Amendment?

Holding & Vote

• 5 – 4 to uphold (Rehnquist, C.J., plurality; Breyer concurrence supplies the fifth vote): The monument is constitutional given its passive, historical context and the nation’s tradition of acknowledging religion’s role in public life.

Opinion Breakdown

Alignment	Key Points
Plurality (Rehnquist, joined by Scalia, Kennedy, Thomas)	• Lemon is not a useful compass here; Establishment jurisprudence must be shaped by “the relief sought and the context.” • Decalogue has dual significance—moral & historical; its 40-year presence among many secular monuments shows a “respectful accommodation”, not endorsement.
Concurrence (Breyer) — controlling vote	• Rejects formal tests; decides by “legal judgment” balancing text, history, purpose, and physical setting. • Monument’s long, controversy-free existence & mixed secular surroundings create no real risk of divisive religious government. • Emphasizes “borderline” nature: slight changes (new display, school yard) could flip result.
Dissent (Stevens, joined by Ginsburg)	• Purpose & effect plainly religious; context cannot convert a scriptural proclamation into secular history.
Dissent (O’Connor)	• Warns that government endorsement alienates non-adherents; would apply Lemon/Endorsement.
Dissent (Souter, joined by Stevens & Ginsburg)	• Historical influence does not excuse overtly sacred text; absence of challenge for 40 years proves only inertia.

Doctrinal Takeaways

1. Context matters. Passive, long-standing displays with mixed surroundings can survive even if overtly religious.
2. Lemon not abandoned but sidelined. Plurality treats it as one tool, not master test; Breyer applies “pragmatic judgment.”
3. Decided the same day as McCreary, producing twin precedents: new courthouse Commandments struck (religious purpose), old capitol Commandments upheld (historical context).
4. Sets stage for “historical practices & understandings” approach later emphasized in Town of Greece v. Galloway (2014) and foreshadows the Court’s post-2019 drift away from Lemon.

Impact & Legacy

• States & cities often cite Van Orden to defend long-standing religious monuments (e.g., veterans’ memorials).
• Lower courts draw a durational/contextual distinction: aged monuments → likely constitutional; newly erected religious displays → greater scrutiny.
• Fuels scholarly debate over whether Establishment analysis should hinge on history & coercion rather than Lemon/endorsement.

Socratic Traps & Answers

• Q: Could Texas now add a new Ten Commandments statue beside the old?
  A: Risky—contemporaneous government purpose would be examined; absence of historical pedigree may doom it (McCreary rationale).
• Q: What if the monument stood alone on the grounds?
  A: Solitary sacred text with no secular companions weakens “historical tableau” defense; likely unconstitutional.
• Q: Does Van Orden overrule Lemon?
  A: No; plurality merely declines to apply it. Later cases chip away but stop short of formal overruling until Kennedy v. Bremerton Sch. Dist. (2022) effectively retires it.

Mnemonic

“Van Orden → Context orders the Commandments.”

Bottom Line
A passive Ten Commandments monument that has quietly stood for decades among numerous secular tributes on a state-capitol lawn does not amount to governmental endorsement of religion—its historical context and absence of coercion tip the constitutional balance, illustrating the Court’s shift from rigid formulas to pragmatic, context-sensitive judgment.

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In the realm of First Amendment religion cases, the Supreme Court has long struggled to draw a stable line between establishment and free exercise, oscillating between the ideals of strict separation, neutrality, and accommodation. The most famous doctrinal test arose in Lemon v. Kurtzman (1971), where the Court articulated a three-pronged framework to evaluate whether government action violates the Establishment Clause: (1) the law must have a secular legislative purpose, (2) its primary effect must neither advance nor inhibit religion, and (3) it must not foster excessive government entanglement with religion. Although never formally overturned, the Lemon test has been hollowed out and increasingly bypassed by the Court in favor of neutrality or historical practice tests.

In Carson v. Makin (2022), the Court effectively rejected Lemon without saying so outright, holding that Maine’s exclusion of religious schools from a tuition-assistance program violated the Free Exercise Clause. The ruling embraced a neutrality-based approach, where government cannot exclude religious entities from a public benefit solely due to their religious status. The shift away from Lemon reflects what scholars like Philip Kurland advocated decades ago: formal neutrality, where the state neither aids nor targets religion per se, but must remain equidistant from all beliefs. This approach gained traction in Van Orden v. Perry (2005), where a Ten Commandments monument on state capitol grounds was upheld due to its passive historical significance, signaling that context and history matter more than rigid doctrinal tests.

By contrast, the accommodation/equality approach—seen in cases like Lee v. Weisman (1992)—accepts some government interaction with religion so long as it does not coerce participation or endorse religious orthodoxy. In Lee, the Court invalidated clergy-led prayers at public school graduations, emphasizing the psychological pressure on students and reaffirming that the state must not organize religious exercises in public education. This position reflects the liberty-centered theory of the Establishment Clause: not that religion is dangerous, but that state power corrupts voluntary conscience when it aligns itself with belief.

Where the government discriminates among religions, or favors one sect over another, the Court applies strict scrutiny—even if it doesn’t always name it as such. Any law that explicitly prefers Christianity, Judaism, or Islam over others is presumptively invalid unless it satisfies a compelling interest, which is almost never possible. Importantly, even when the Court applies the Lemon test, the first two prongs functionally mirror strict scrutiny: if a law lacks a secular purpose or its primary effect advances religion, then no amount of “important government interest” can salvage it—a hallmark of strict scrutiny logic cloaked in formalism.

Prayer in public institutions remains a key battleground. In Engel v. Vitale (1962), the Court struck down the recitation of a state-composed prayer in public schools, declaring it unconstitutional even though students could opt out. The problem wasn’t coercion—it was the symbolic union of church and state. Wallace v. Jaffree (1985) extended this to invalidate a “moment of silence” in public schools where the legislative history showed it was intended to reintroduce prayer. Yet in Marsh v. Chambers (1983), the Court upheld official legislative prayers at the start of sessions, noting that such practices were deeply rooted in historical tradition. The key takeaway is that schools and students are uniquely vulnerable, while legislatures composed of adults and elected officials are given more leeway under the historical-practice exception.

The symbolic use of religious imagery, such as the Christian cross, continues to provoke disagreement. In public settings, a cross may be challenged as an endorsement of religion, but the context matters. For example, a cross-shaped tombstone marking a soldier’s grave may be seen as a personal religious symbol rather than state endorsement. Justice Scalia, in oral arguments and dissents, often criticized excessive sensitivity to such displays, suggesting that not all religious symbols are coercive or unconstitutional. This theme reappears in Carson v. Makin, where the state’s exclusion of religious use (not just religious status) was struck down, further shifting the balance toward religious equality in public funding.

Finally, in broader free speech contexts with national security implications, your notes reference New York Times Co. v. United States (1971)—the Pentagon Papers case. While the per curiam opinion blocked the government’s attempt to impose prior restraint on publication, the concurrence by Justice Stewart (joined by Justice White) warned of the real risks of secrecy and emphasized the press’s structural role in checking executive abuse. Stewart wrote that “the only effective restraint upon executive policy and power…may lie in an enlightened citizenry,” emphasizing that vague invocations of “security” cannot justify censorship. This ties back to religious liberty and free speech: the government cannot rely on broad generalities or unverified fears to justify the suppression or imposition of belief.

In sum, the Court’s religion doctrine today is a fragmented mosaic: strict scrutiny for religious discrimination, weakened Lemon for establishment cases, a growing tilt toward neutrality and accommodation, and an undercurrent of concern about coercion, symbolism, and public context.

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Week 9.2

1. Sherbert v. Verner, 374 U.S. 398 (1963)

— Brennan, writing for a 7 – 2 Warren Court, inaugurates the modern “compelling-interest/least-restrictive-means” test for Free Exercise: South Carolina may not deny unemployment benefits to a Seventh-day Adventist who refuses Saturday work.

Facts & Procedural Posture

• South Carolina textile worker Adell Sherbert (Seventh-day Adventist) was fired for declining Saturday shifts and repeatedly turned down jobs requiring Saturday labor.
• State Unemployment Commission found her “unavailable for work” and denied benefits under statutory language disqualifying claimants who “fail, without good cause, to accept suitable work.”
• State trial court and South Carolina Supreme Court affirmed, holding the rule imposed no unconstitutional burden. Sherbert appealed.

Appellant’s Theory (Sherbert)

1. Denial of benefits pressures her to choose between faith and livelihood—an unconstitutional penalty on religious exercise.
2. Conditioning a public benefit on abandoning Sabbath observance violates Free Exercise, regardless of indirect form.
3. State’s fear of fraudulent claims is speculative and can be policed by less-restrictive alternatives.

State’s Theory

1. Rule neutrally requires all claimants be “available”; it does not target religion.
2. Administering individual exemptions would jeopardize the fund and burden employers with scheduling uncertainty.
3. Benefits are a statutory “privilege,” not a right. (Rejected by Court.)

Issues

1. Does disqualifying a Sabbatarian for refusing Saturday work substantially burden Free Exercise?
2. If so, does the State have a compelling interest justifying that burden?

Holding & Vote

• 7 – 2: Judgment reversed.
• Free Exercise is burdened; no compelling state interest supports denial.

Core Reasoning (Brennan)

1. Substantial Burden: Forcing Sherbert to choose between faith and benefits is “as real as a fine.”
2. Strict Scrutiny: Only the “gravest abuses, endangering paramount interests” permit such infringement. Potential malingering is unsupported in record and could be addressed by narrower regulation.
3. Neutrality vs. Establishment: Granting benefits is an accommodation, not establishment; it simply places Sabbatarians on equal footing.
4. Rejects notion that public benefits may be denied as mere “privileges.”

Concurrences / Dissents

• Stewart (conc.): Would invalidate on both Free Exercise and Equal Protection grounds.
• Harlan (joined by White) (diss.): Sees no discrimination; State need not create religion-based exemptions and warns Court is singling out religion for special treatment.

Doctrinal Takeaways

• Birth of the Sherbert test (substantial burden → compelling interest + least-restrictive means).
• Signals robust protection for religious exemptions in benefit contexts; later applied in Thomas, Hobbie.
• Foreshadows distinction between accommodation and establishment.

Impact & Legacy

• Became lynchpin of Free Exercise analysis until narrowed by Smith (1990).
• Prompted many states to craft explicit Sabbath exceptions; influenced Title VII religious-accommodation doctrine.

Socratic Traps & Answers

• Q: Would the result differ if Sherbert sought exemption from a criminal law (e.g., truancy)?
  A: Likely yes under Smith; criminal prohibitions receive more deference.
• Q: Must States always honor religious work-schedule claims?
  A: No—may deny if they prove a specific, compelling need unmet by narrower means.

Mnemonic

“Sherbert Friday—Saturday work denied, State must justify.”

Bottom Line
Denying benefits because Sabbath observance limits job availability is an unconstitutional burden unless the State can pass strict scrutiny; the decision ushers in the Sherbert balancing era.

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2. Wisconsin v. Yoder, 406 U.S. 205 (1972)

— Burger for a 7 – 0 (Douglas conc./diss. in part) Court: Compulsory high-school attendance beyond 8th grade violates Amish parents’ Free Exercise.

Facts & Procedural Posture

• Old Order Amish & Conservative Mennonite parents (Yoder, Miller, Yutzy) convicted and fined $5 each for refusing to send children (14-15 yrs) to school past 8th grade, contrary to Wisconsin’s compulsory-attendance law.
• State courts upheld convictions; Wisconsin Supreme Court affirmed. U.S. Supreme Court noted probable jurisdiction.

Parents’ Theory

1. High-school environment contradicts core Amish tenets of separation, humility, agrarian life; threatens children’s salvation.
2. Pierce recognizes parental liberty to direct children’s upbringing; compulsory schooling gravely burdens religion.
3. Amish provide robust vocational training (on-farm apprenticeships), satisfying civic preparedness.

State’s Theory

1. Universal education to 16 is essential for citizenship and self-reliance.
2. Exemptions risk leaving children unprepared if they leave community.
3. Statute is facially neutral and uniformly applied; no targeted discrimination.

Issues

1. Does forcing Amish children to attend school to age 16 violate parents’ Free Exercise rights?
2. Is the State’s interest sufficiently compelling to override those rights?

Holding & Vote

• Affirmed 7 – 0. Compulsory attendance law, as applied, violates Free Exercise; State interests not compelling here.

Core Reasoning (Chief Justice Burger)

1. Substantial Burden: Law coerces conduct “undeniably at odds” with 300-year-old religious practice, threatening survival of Amish culture.
2. Compelling-Interest Test Applied:
   • Civic preparation interest is legitimate but minimal incremental benefit past 8th grade given effective Amish vocational training.
   • No evidence exempted children become burdens on society.
3. Narrow Tailoring: State failed to explore options like testing or part-time schooling.
4. Distinguishes secular lifestyle choices (e.g., Thoreau) from deeply rooted religious obligation.

Douglas Separate Opinion

• Agrees as to respondents whose children voiced no objection, but would remand to consider individual child’s wishes, emphasizing children’s own religious liberty.

Doctrinal Takeaways

• Expands Sherbert strict-scrutiny regime to parental-rights hybrid cases.
• Recognizes communal religious life as part of Free Exercise.
• Introduces notion that incremental educational benefit must be weighed against religious harm.

Impact & Legacy

• Provides model for modern home-schooling statutes and religious-school exemptions.
• Cited as “hybrid rights” precedent in Smith.
• Invoked in debates over vaccine mandates, child labor in religious communities.

Socratic Traps & Answers

• Q: Would a similar claim by a secular communal group succeed?
  A: Unlikely; Court grounded protection in religious obligation, not mere philosophy.
• Q: Could the State require standardized competency exams instead?
  A: Probably yes—less restrictive, addresses civic literacy without daily attendance.

Mnemonic

“Yoder Younger Than 16—Amish stay home after eighth.”

Bottom Line
When a compulsory-education law threatens to destroy a coherent religious community, and the State cannot show a specific, necessary benefit unobtainable by narrower means, the Free Exercise Clause prevails.

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3. Employment Division v. Smith, 494 U.S. 872 (1990)

— Scalia for a 6 – 3 Rehnquist Court narrows Free Exercise: Neutral, generally applicable criminal laws need not grant religious exemptions (peyote use), overruling Sherbert balancing outside unemployment-benefit context.

Facts & Procedural Posture

• Alfred Smith & Galen Black, counselors at private rehab clinic, were fired for ingesting peyote during Native American Church sacrament.
• Oregon denied unemployment benefits, labeling peyote use “work-related misconduct.”
• Oregon Supreme Court held denial unconstitutional and, on remand, that Oregon’s peyote ban violated Free Exercise. U.S. Supreme Court granted cert.

Claimants’ Theory

1. Denial of benefits burdens religious practice; under Sherbert test State must show compelling interest.
2. Oregon historically never prosecuted religious peyote use; exemption would not undermine drug policy.

State’s Theory

1. Uniform enforcement of Schedule I drug prohibition is a neutral, generally applicable criminal law.
2. Compelling-interest test should not override democratically enacted laws of general applicability.

Issues

1. Does the Free Exercise Clause require a religious exemption from a neutral, generally applicable criminal drug law?
2. Must Oregon nonetheless pay unemployment benefits to those fired for such religiously motivated conduct?

Holding & Vote

• Reversed 6 – 3. Free Exercise does not bar enforcement of neutral, generally applicable laws; Oregon may deny benefits.

Core Reasoning (Scalia)

1. Historical Rule: The Constitution protects belief, not actions violating neutral laws (citing Reynolds polygamy).
2. Neutral/Generally Applicable Standard: Only laws aimed at religion trigger strict scrutiny; otherwise, rational basis suffices.
3. Sherbert Limited: Compelling-interest test confined to unemployment-benefit cases or “hybrid” rights (religion + speech/parenting).
4. Warning that universal exemptions would make every citizen “a law unto himself,” risking anarchy.

Concurrence (O’Connor)

• Agrees with result but insists Sherbert should remain governing; finds Oregon’s interest compelling here.

Dissent (Blackmun, joined by Brennan & Marshall)

• Accuses majority of abandoning precedent; argues State failed to prove compelling interest or show peyote’s religious use harms public health.

Doctrinal Takeaways

• Establishes Smith rule: Neutral, generally applicable laws need no religious exemptions.
• Sparks bipartisan backlash → Religious Freedom Restoration Act (RFRA) 1993, reinstating Sherbert test federally; many state RFRAs follow.
• Introduces “hybrid rights” dicta, seldom applied with force.
• Leaves open strict scrutiny for targeted laws (Lukumi, 1993).

Impact & Legacy

• Courts now first ask whether a law is neutral & generally applicable; only then consider compelling-interest test.
• RFRA litigation (e.g., Hobby Lobby, 2014) occupies center stage where Smith does not control (federal action).
• Ongoing debate on scope of neutrality in cases like Fulton v. Philadelphia (2021).

Socratic Traps & Answers

• Q: Would Smith win under federal RFRA today?
  A: Likely yes—RFRA restores strict scrutiny for federal (not state) law; but Oregon repealed peyote ban for religious use after the case.
• Q: Are vaccine mandates “neutral and generally applicable”?
  A: Depends on breadth of secular exemptions; differential treatment triggers Lukumi strict scrutiny.

Mnemonic

“Smith Slices Sherbert—No exemptions from neutral laws.”

Bottom Line
Employment Division v. Smith reorients Free Exercise analysis: unless a statute targets religion or implicates another constitutional right, the government need not justify denying exemptions—leaving accommodation to legislatures and prompting RFRA’s enactment.

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4. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)

— Kennedy for a fractured but unanimous Court resurrects strict scrutiny where a facially neutral ordinance targets religion; Hialeah’s anti-“sacrifice” laws flunk neutrality, general applicability, and narrow tailoring.

Facts & Procedural Posture

• Santería church (Lukumi) buys property in Hialeah, FL, announces plans for worship entailing ritual animal sacrifice (later cooked and eaten).
• City Council emergency session: passes four ordinances prohibiting “unnecessary killing of animals” and possession for “sacrifice,” exempting kosher slaughter, fishing, hunting, medical research, pest control.
• District court upholds ordinances; Eleventh Circuit affirms. Supreme Court grants cert.

Petitioners’ (Church) Theory

1. Ordinances surgically strike Santería practice—impermissible religious targeting.
2. Even if facially neutral, selective exemptions demolish general applicability; strict scrutiny applies.
3. City cannot show compelling interest narrowly served—public health claims speculative; inspection regimes already exist.

Respondent’s (Hialeah) Theory

1. Laws are neutral public-health measures mirroring federal Humane Slaughter Act.
2. No discrimination: prohibitions apply to all “ritual” killing.
3. State’s interests in animal welfare and waste disposal are compelling.

Issues Presented

1. When does a facially neutral ordinance become unconstitutional by targeting religion?
2. Do selective secular exemptions destroy general applicability, triggering strict scrutiny?

Holding & Vote

• 9 – 0 judgment (Kennedy, J.): Ordinances violate Free Exercise; not neutral or generally applicable. (Scalia, Souter, Blackmun, O’Connor each concur separately.)

Core Reasoning (Kennedy)

1. Neutrality inquiry: Look beyond text to object, design, and operation; legislative minutes reveal hostility to Santería.
2. General applicability: Multiple secular exemptions render ban underinclusive, undermining asserted interests.
3. Triggered strict scrutiny → City’s interests (public health, animal cruelty) under-inclusive and achievable through less-restrictive means (licensing, inspections).
4. Confirms Smith permits exemptions for laws not neutral/generally applicable.

Concurrences

• Scalia: Neutrality judged by text, not subjective motive; joins except dicta on motive.
• Souter: Questions Smith; would revive Sherbert in all free-exercise cases.
• Blackmun/O’Connor: Agree hostility but also find compelling-interest failure.

Doctrinal Takeaways

• Targeting + underinclusion = fatal.
• Establishes two-step pre-threshold: neutrality and general applicability.
• Shows Smith is not a free pass for state hostility; strict scrutiny remains potent.

Impact & Legacy

• Blueprint for later exemptions litigation (Fulton v. Philadelphia, 2021).
• Invoked by lower courts striking COVID-19 worship limits that singled out churches (Tandon, 2021).
• Clarifies that secular exemptions erode state claims of necessity.

Socratic Traps & Answers

• Q: Would a total ban on all animal slaughter except emergencies survive?
  A: Possibly—neutral & generally applicable → Smith rational-basis, but may fail under Due Process/property claims.
• Q: Does Lukumi protect sacramental drug use?
  A: Only if a law targets the practice; neutral narcotics laws still governed by Smith unless RFRA applies federally.

Mnemonic

“Lukumi Lops Lopsided Laws.”

Bottom Line
Even after Smith, government may not single out a faith through underinclusive, exemption-ridden statutes; such targeting triggers strict scrutiny, which Hialeah’s ordinances could not survive.

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5. Kennedy v. Bremerton School District, 597 U.S. ___ (2022)

— Gorsuch for the Roberts Court buries Lemon, holds a public-school football coach’s midfield post-game prayer is protected Free Exercise & Free Speech, rejecting “endorsement” fears absent actual coercion.

Facts & Procedural Posture

• Joseph Kennedy, assistant football coach at Bremerton (WA) High, developed practice (2008) of brief, silent 50-yard-line prayer after games; players sometimes voluntarily joined.
• 2015: District orders cessation to avoid Establishment Clause issues; Kennedy continues, is put on leave, contract not renewed.
• Kennedy sues under Free Exercise & Free Speech (42 U.S.C. § 1983).
• District court & Ninth Circuit grant/affirm summary judgment for school. Supreme Court grants cert.

Petitioner’s (Kennedy) Theory

1. Prayer was personal, private speech outside official duties—protected expression.
2. District’s actions were viewpoint discrimination and burdened Free Exercise; failure to renew contract penalizes religious observance.
3. No Establishment problem: activity happened after official play, voluntary, no student coercion.

Respondent’s (School District) Theory

1. Coach was “on duty”—speech attributable to the State under Garcetti; district may control to avoid Establishment Clause violation.
2. Students feel pressure to conform to coach’s display; Lee/coercion concerns.
3. Lemon/endorsement test requires avoiding reasonable perception of official religious endorsement.

Issues Presented

1. Is a public-school employee’s brief, post-game prayer private speech protected by Free Speech & Free Exercise?
2. Does allowing such prayer violate the Establishment Clause, justifying school prohibition?

Holding & Vote

• 6 – 3 (Gorsuch, J.): Bremerton violated Kennedy’s constitutional rights; no Establishment Clause bar.

Core Reasoning (Gorsuch)

1. Speech classification: Post-game, no coaching duties; prayer therefore private speech → not government speech.
2. Free Exercise burden: District conditioned employment on forgoing religious exercise; triggers strict scrutiny, unmet by speculative endorsement fears.
3. Establishment Clause analysis: Rejects Lemon / endorsement as having “long ago been abrogated”; adopts “history & tradition” approach—brief personal prayer never historically banned.
4. Coercion test: No evidence students were compelled; mere observation ≠ coercion.
5. Harmony principle: Free Exercise & Free Speech rights complement, not conflict with, Establishment Clause.

Concurrences / Dissents

• Thomas (conc.): Questions Garcetti scope; government-employee speech doctrine needs narrowing.
• Alito (conc.): Emphasizes limits of government-speech label.
• Sotomayor (dissent joined by Breyer, Kagan): Majority ignores factual record of student pressure; warns decision weakens church-state separation and public-school neutrality.

Doctrinal Takeaways

• Formal retirement of Lemon; Establishment analysis now driven by historical practices + coercion.
• Strengthens Free Exercise in public-employee context, narrowing government-speech doctrine.
• Underscores coercion—not mere offense—as touchstone for school-prayer cases.

Impact & Legacy

• Signals Court’s broader movement toward history-and-tradition tests (see Dobbs, Bruen).
• Invigorates challenges to “no-religion” policies in public employment and public square.
• School districts revise policies to focus on actual coercion rather than perceived endorsement.

Socratic Traps & Answers

• Q: Could coach pray before kickoff as players stretch?
  A: Riskier—still within duties; district may argue government speech. Outcome depends on factual “on-duty” analysis.
• Q: May a district now sponsor a student-led prayer over loudspeaker?
  A: Unlikely—compulsory-audience + school sponsorship revives Santa Fe coercion problem.
• Q: Does Kennedy overrule Lee v. Weisman?
  A: Not expressly; but limits Lee to situations of actual, not perceived, coercion.

Mnemonic

“Kennedy’s Knee—Prayer OK if free.”

Bottom Line
The Court cements a speech-plus-religious-exercise right for public employees when they are not actively performing duties, discards Lemon, and re-anchors Establishment jurisprudence in historical practice and absence of real coercion—expanding space for individual religious expression in public schools.

Pocket Script for Class

Case	Oral Summary
Sherbert v. Verner (1963)	“South Carolina cut off unemployment checks to a Seventh-day Adventist seamstress who refused Saturday work. Brennan said that **conditioning a public benefit on violating one’s Sabbath is a ‘substantial burden,’ so the State must pass **strict-scrutiny—compelling interest and least-restrictive means—and it plainly couldn’t. The opinion launches the ‘Sherbert test,’ expanding Free-Exercise protection beyond earlier neutrality cases like Braunfeld and Reynolds.”
Wisconsin v. Yoder (1972)	“Wisconsin fined Amish parents for stopping school after eighth grade. Burger applied the Sherbert compelling-interest test, found the State’s extra two years of schooling offered only marginal civic gain, and carved out a religious exemption. He analogized to Pierce v. Society of Sisters (parental control of education) and Sherbert, not overruling anything.”
Employment Division v. Smith (1990)	“Two Native American counselors were fired and denied benefits for sacramental peyote use. Scalia said when a **law is neutral and generally applicable, Free Exercise gets no exemptions—no strict scrutiny—so Oregon wins; Sherbert is limited to benefit-denial or ‘hybrid-rights’ cases. In effect the Court abandoned the Sherbert regime outside unemployment, provoking Congress to pass RFRA.”
Church of Lukumi Babalu Aye v. Hialeah (1993)	“Hialeah banned animal ‘sacrifice’ as soon as a Santería church opened. Kennedy found the ordinances not neutral or generally applicable—they targeted the faith—so **strict scrutiny revived and the city lost. The Court relied on Smith’s exception for non-neutral laws and reinforced that Sherbert lives on whenever government singles out religion.”
Kennedy v. Bremerton (2022)	“A high-school football coach knelt for a brief midfield prayer after games and was sidelined; Gorsuch held that was private speech and protected Free Exercise. The majority jettisoned Lemon, used a history-and-tradition / anti-coercion lens (functionally strict when the State punishes prayer) and said no Establishment Clause conflict. It distinguishes Lee v. Weisman (coercive graduation prayers) and effectively buries the endorsement test.”

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Week 10.1

1. District of Columbia v. Heller, 554 U.S. 570 (2008)

— Scalia for a 5 – 4 Roberts Court holds the Second Amendment protects an individual right to keep a handgun in the home for self-defense, striking D.C.’s total handgun ban and trigger-lock rule.

Facts & Procedural Posture

• D.C. law: flat ban on civilian handguns; long-guns in the home had to be disassembled/locked.
• Dick Heller, a special police officer, was denied a permit to keep a functional handgun at home and sued under the Second Amendment.
• D.C. district court dismissed; D.C. Circuit reversed; Supreme Court affirmed the Circuit.

Petitioner (District) Theory

1. Amendment protects only militia-related gun use; ban is permissible.
2. Even if an individual right exists, rigorous controls pass rational-basis / public-safety review.

Respondent (Heller) Theory

1. Text (“the right of the people”) guarantees a personal right independent of militia service.
2. Total handgun prohibition and forced disablement fail any level of heightened scrutiny.

Issues

1. Does the Second Amendment secure an individual right unconnected to militia service?
2. If so, do D.C.’s handgun ban and trigger-lock requirements survive constitutional review?

Holding & Vote

• 5 – 4: Individual right confirmed; total handgun ban and functional-firearm ban in the home are unconstitutional.

Majority Reasoning (Scalia)

1. Textual reading: “the people” mirrors usages in the 1st & 4th Amendments; operative clause controls.
2. History: English Bill of Rights & colonial experience show a ==pre-existing individual right;== tyrants disarmed the populace.
3. Standard: rejects interest-balancing and ==means-end scrutiny==—rights enumerated are not open to judicial cost-benefit.
4. Limits acknowledged: longstanding bans on felons, the mentally ill, “dangerous and unusual” arms, and carry in “sensitive places” remain presumptively valid.

Concurrences / Dissents

• Stevens: right is militia centered; Court upends precedent Miller (1939).
• Breyer (joined by Stevens, Souter, Ginsburg): even if individual, D.C. law survives a deferential interest-balancing test.

Level of Scrutiny

• No conventional tier; Court fashions a “text-history-tradition” approach and expressly rejects intermediate scrutiny.

Analogies & Precedent Shift

• Overrules the “collective right” reading implicit in United States v. Miller; anchors analysis in pre-Founding sources.

Doctrinal Takeaways

• Creates a two-step inquiry: (1) Does the text cover the conduct? (2) Is the regulation historically rooted?
• Lists “presumptively lawful” regulations but leaves precise test open for future cases.

Impact & Legacy

• Sparked torrent of litigation; most courts adopted a two-part “text + means-end” framework later repudiated in Bruen.
• Catalyzed political mobilization around individual gun rights.

Mnemonic

“Heller = Home Handguns Held.”

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2. McDonald v. City of Chicago, 561 U.S. 742 (2010)

— Alito (plurality) incorporates the individual Second-Amendment right against the states through the Fourteenth Amendment’s Due Process Clause; Thomas concurs on Privileges or Immunities grounds.

Facts & Procedural Posture

• Chicago & Oak Park ordinances effectively banned handgun possession.
• Otis McDonald and other residents sued after Heller, seeking state-level protection.
• District court & Seventh Circuit upheld bans (based on Cruikshank/Presser). Supreme Court reversed.

Petitioner Theory

1. Self-defense right is fundamental—deeply rooted in history and vital to ordered liberty.
2. Slaughter-House misread Privileges or Immunities; but Court should incorporate via either P/I or Due Process.

Municipal Theory

1. Handgun ban reasonable local safety measure; right is not indispensable to civilized society.
2. Incorporation would destabilize diverse state gun laws.

Issues

1. Does the Fourteenth Amendment make the Second-Amendment right recognized in Heller fully applicable to the states?

Holding & Vote

• 5 – 4: Yes. Plurality employs selective incorporation (Due Process); Thomas would revive Privileges or Immunities.

Majority Reasoning (Alito)

1. Self-defense right is “fundamental to our scheme of ordered liberty” and “deeply rooted” in American tradition.
2. Post-Civil-War history: Congress passed Freedmen’s Bureau & Civil Rights Acts to protect Black citizens’ arms-bearing; Framers of 14th Amendment saw the right as essential.
3. Incorporation must give the same scope against states as against federal government.

Concurrence / Dissents

• Thomas: Due Process is the wrong vehicle; P/I was meant to guard enumerated rights.
• Stevens (solo) & Breyer (joined by Ginsburg, Sotomayor): ==Self-defense interest not fundamental;== warns against court-driven gun policy.

Level of Scrutiny

• Court does not specify tier; by bringing Heller wholesale to the states, it implicitly adopts Heller’s text-history methodology.

Analogies & Precedent

• Extends incorporation line (Duncan, Gideon, Near). Narrows Slaughter-House by implication though not overruled.

Doctrinal Takeaways

• Solidifies self-defense as a nationally uniform constitutional baseline.
• Opens debate over Privileges or Immunities revival.

Impact & Legacy

• Struck down handgun bans in major cities; prompted wave of state-level deregulation and “shall-issue” licensing statutes.
• Set stage for Bruen by confirming the right travels outside D.C.

Mnemonic

“McDonald Makes the Right Mobile.”

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3. New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. ___ (2022)

— Thomas for a 6 – 3 Court invalidates New York’s “proper cause” regime for carry permits and formalizes the “text, history, and tradition” test, displacing means-end scrutiny.

Facts & Procedural Posture

• N.Y.’s Sullivan Law required applicants to show a special need for self-defense to get an unrestricted concealed-carry license.
• Petitioners Nash & Koch were law-abiding adults denied full permits; sued under §1983.
• District court & Second Circuit upheld statute; Supreme Court reversed.

Petitioners’ Theory

1. Right to bear arms extends beyond the home; licensing that turns on discretionary “proper cause” destroys the right.
2. Laws must be judged under Heller’s history-driven standard, not interest balancing.

State’s Theory

1. Long Anglo-American history of limiting public carry justifies modern “may-issue” licensing.
2. Statute passes intermediate scrutiny as tailored to urban safety.

Issues

1. Does the Second Amendment protect ordinary, law-abiding citizens’ right to carry handguns in public for self-defense?
2. What analytic framework governs modern gun-control challenges?

Holding & Vote

• 6 – 3: Yes; New York’s “proper cause” violates the Second & Fourteenth Amendments.

Majority Reasoning (Thomas)

1. Step 1 – Text: “Bear” naturally includes public carry; petitioners’ conduct is presumptively protected.
2. Step 2 – History & Tradition: State bears burden to identify a well-established historical analogue; New York’s few outlier laws insufficient.
3. Method: Rejects the lower-court two-step ==(history + means-end) test;== no intermediate scrutiny. Courts must ask only whether the regulation accords with the Nation’s historical tradition.
4. Sensitive-places caveat: Government may still ban guns in historically recognized sensitive spots and regulate “dangerous and unusual” weapons.

Concurrences / Dissents

• Kavanaugh (joined by Roberts): Emphasizes that shall-issue regimes remain presumptively lawful.
• Barrett: Flags unanswered questions about which historical period—1791 or 1868—controls.
• Breyer (with Sotomayor, Kagan): Criticizes exclusive reliance on history; catalogues ==modern gun violence statistics.==

Level of Scrutiny

• Text-History-Tradition only; dismisses means-end tests as “judge-empowering.”

Analogies & Overruled Approaches

• Undercuts the post-Heller appellate consensus using intermediate scrutiny; rejects the Kachalsky line. Builds directly on Heller & McDonald.

Doctrinal Takeaways

• Converts Heller’s dicta into a binding two-step historical test.
• Treats Second Amendment as “not a second-class right”; discretionary licensing likely doomed nationwide.

Impact & Legacy

• Immediate ripple: N.Y., N.J., MD, CA, HI, MA scramble to rewrite licensing statutes; litigation over “sensitive places” and magazine limits intensifies.
• Courts now sift archives instead of balancing interests, influencing analysis of assault-weapon and age-limit bans.

Mnemonic

“Bruen Breaks ‘Proper Cause.’”

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Case	Oral Summary
District of Columbia v. Heller (2008)	“D.C. banned handguns and required all guns at home to be locked. The Court—Scalia writing—held the Second Amendment protects an individual right to keep a handgun for self-defense in the home. It rejected interest balancing and created a text-history-tradition test, not tiers of scrutiny. This overturned the militia-only interpretation and reshaped Second Amendment law from the ground up.”
McDonald v. City of Chicago (2010)	“After Heller, Chicago’s handgun ban was challenged. The Court held that the individual right applies to states through the 14th Amendment Due Process Clause—though Thomas would’ve used Privileges or Immunities. The majority said the right is fundamental, deeply rooted in history. So Heller’s framework now binds both federal and state governments.”
New York State Rifle & Pistol Ass’n v. Bruen (2022)	“New York made people show ‘proper cause’ to carry guns in public. Thomas wrote that the right to bear arms extends outside the home, and licensing must match historical tradition, not be subject to judicial interest balancing. The Court rejected intermediate scrutiny and formalized a two-step test: text first, then history. It gutted ‘may-issue’ laws and ended the lower courts’ old two-part approach.”

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All the cases we’ve discussed—whether on speech, religion, abortion, guns, or immigration—are ultimately value-laden judgments, even if they’re cloaked in legal methodology. They reflect deeper tensions between judicial discretion and legislative authority, between majoritarianism (i.e., democratic deference) and anti-majoritarianism (i.e., constitutional checks). The boundary between constitutional interpretation and policy-making is not fixed; it is historically contingent, deeply ideological, and often politicized. This is especially evident in the current debates around the Second Amendment, where conflicting methodologies yield starkly different outcomes on the scope of gun rights.

Originalism as a Mode of Constitutional Interpretation

• Supporters argue:
  • It reflects fidelity to the constitutional text and intent of the Framers.
  • It restrains judicial overreach, preserving democratic legitimacy.
  • It allows the Constitution to evolve through formal amendment, not judicial fiat.
• Critics respond:
  • The “dead hand” problem: Why should the moral and political judgments of 1789 control us today?
  • Ambiguity in abstraction: Phrases like “cruel and unusual punishment” or “arms” require interpretive flexibility.
  • Tensions between amendments and with stare decisis: For example, how do you reconcile the First and Second Amendments in light of modern public safety concerns?
  • Is originalism itself even “originalist”? The method was not dominant in early American jurisprudence.
  • Uncertainty about what counts as originalism: Is it original intent (the subjective mindset of the Framers) or original public meaning (how a reasonable observer at the time would have understood the text)?
  • Increasing critiques from historians, especially regarding selective readings of founding-era sources and reliance on contested 18th-century practices.
  • What happens when multiple plausible interpretations exist? Choosing one often involves a value judgment, even if it’s disguised as neutral historical analysis.

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Incorporation is the legal doctrine by which most of the first eight amendments have been applied to the states through the Due Process Clause of the Fourteenth Amendment. The leading test for whether a right is incorporated asks whether it is “fundamental to our scheme of ordered liberty” and “deeply rooted in this nation’s history and tradition.” This framework, developed in cases like Palko v. Connecticut and refined in Duncan v. Louisiana, has led to the incorporation of nearly all the Bill of Rights—but with a few notable exceptions.

Among the non-incorporated rights are:

• The Third Amendment’s prohibition on quartering soldiers,
• The Grand Jury Indictment Clause of the Fifth Amendment, and
• The Seventh Amendment’s right to jury trials in civil cases.
  These remain enforceable only against the federal government, not the states.

Conversely, reverse incorporation refers to the application of the Equal Protection Clause—which formally applies to the states via the Fourteenth Amendment—to the federal government, via the Fifth Amendment’s Due Process Clause. This innovation, first articulated in Bolling v. Sharpe (1954) (the companion case to Brown v. Board of Education), held that equal protection principles must logically bind all government actors, regardless of textual placement. It is a functional, if constitutionally unorthodox, solution to the need for symmetry in civil rights enforcement.

The Supreme Court’s Second Amendment jurisprudence reflects these themes vividly. In District of Columbia v. Heller (2008), the Court struck down D.C.’s handgun ban and held that the Second Amendment protects an individual right to possess firearms, independent of militia service. The opinion leaned heavily on original public meaning, although Justice Scalia’s majority reasoning was criticized for being both historically selective and functionally aligned with conservative policy preferences. Two years later in McDonald v. City of Chicago (2010), the Court applied this individual right to the states through incorporation, marking a decisive expansion of Second Amendment protections.

The most recent watershed decision, New York State Rifle & Pistol Association v. Bruen (2022), abandoned the two-step scrutiny framework used by most lower courts and instead mandated a “history-and-tradition” test: modern gun regulations are only constitutional if they are consistent with the nation’s historical tradition of firearm regulation. This effectively embedded a strong version of originalism into the doctrine, sidelining the kind of means-end balancing (e.g., intermediate scrutiny) that courts had previously used to weigh public safety against individual gun rights.

In the wake of Bruen, courts are now grappling with how to assess contemporary regulations using analogies to 18th- or 19th-century laws. A striking example is United States v. Sing Ledezma (W.D. Tex. 2023), in which a district court evaluated whether certain firearms possession restrictions for noncitizens could survive under the Bruen test. The court found insufficient historical precedent to uphold the restriction, thereby invalidating the statute. The case exemplifies how post-Bruen adjudication is driven not by contemporary policy concerns, but by a contested inquiry into historical analogues, often interpreted through a selective and ideologically charged lens.

This trend highlights a deeper constitutional conflict: should the judiciary act as a historian’s tribunal, or should it remain sensitive to modern realities—such as mass shootings, urban violence, and police authority? The Second Amendment thus becomes a prism through which broader questions emerge: What is the role of the courts in a democracy? How do we balance individual liberty with collective security? And can historical analogies deliver constitutional clarity, or are they simply another vehicle for judicial value judgments cloaked in the language of fidelity to the past?

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Week 10 OH

The voting paradox you raise in incorporation jurisprudence is not merely a theoretical puzzle; it cuts to the core of judicial legitimacy and the mechanics of constitutional meaning. Consider McDonald v. City of Chicago: the vote to incorporate the Second Amendment was fractured, not along outcome, but doctrinal justification. You had five justices agreeing on the result—that the right should be incorporated—but not on the route taken.

Four justices relied on the Due Process Clause—an already doctrinally convoluted device for importing substantive rights into state-level constraints. Justice Thomas, alone, grounded incorporation in the Privileges or Immunities Clause, which has been moribund since The Slaughterhouse Cases. The outcome was 5–4 for Due Process, but 8–1 against using Privileges or Immunities. The result: the Second Amendment was incorporated, but without any doctrinal majority on how. There is no controlling opinion on rationale. This is your paradox.

The problem—a doctrinally rootless judgment—is not an aberration; it’s structural. Under Marks v. United States, the Court sometimes tries to extract the “narrowest grounds” for controlling doctrine. But that only works in one dimension. Incorporation is not one-dimensional. Thomas’s opinion introduces a second dimension—a structural claim about federalism and post-Civil War constitutional design. That second axis invalidates the idea that we can simply triangulate a “median opinion.” When a two-dimensional split occurs, there is no narrowest ground—only a coincidence of votes. As a result, incorporation survives as a practice, but not as a theory.

This matters because incorporation is law by repetition, not by logic. Today, 99% of incorporated rights pass through the Due Process Clause, despite how logically foreign “due process” is to the content of those rights. “Due process” was procedural; we’ve turned it into a constitutional suitcase, packed with whatever the Court wants to smuggle in. And the judiciary is aware of this. Most justices know they’re working backward from intuition—fundamental to our system of justice—but they package that intuition in historicist garb. In that way, originalism becomes results-oriented even as it denies the charge.

Now, stepping back from doctrine to something far more important—what separates good from exceptional in this field. In my four decades teaching constitutional law, I’ve seen the full spectrum: clerks to Justices, appellate litigators, public defenders, prosecutors, policy advisors, and many fine lawyers who had no taste for courtrooms but shaped doctrine through paper. The difference is never just grades. It’s not GPA. It’s not a trophy brief. The singular defining trait is ==the capacity for rigorous, persuasive writing—clarity, concision, precision.== Not legalese. Not verbosity. Controlled argument. Intellectual pressure. Sentence-by-sentence clarity. If you can write a motion or a memo that a judge reads once and instantly gets, you are already ahead of 90% of lawyers.

There’s a myth that oral advocacy is the gold standard. It isn’t. Most of constitutional litigation happens on paper. I’ve known students who dreaded moot court, who ==never spoke in class==, and who went on to write opinions cited by the Court. Why? Because they could write with force. So yes, take every writing class you can. Find instructors who will bleed on your drafts. Make yourself uncomfortable in your revision process. That’s how you go from a 90 to a 100 in the space where most people settle for 95. If your writing is predictable, organized, and intellectually dangerous—you will be trusted. And that trust is everything.

Finally, your path—starting with watching court, falling into con law doctrine, and moving into criminal defense—is exactly the path that reveals the moral weight of constitutional law. The Constitution isn’t just a text; it’s the line between liberty and power. Criminal defense work will teach you procedural integrity. Prosecutorial work, if you pursue it next, will teach you discretion and restraint. By the time you apply to law school, you won’t just have experiences—you’ll have an internalized ethical architecture, which will set you apart.

And yes, of course you can reach out. Any student who thinks as carefully and writes as critically as you already earns my respect. If, in two years, you still believe law is your path—and if your writing reflects the same fire as your thinking—I would be honored to write on your behalf. You don’t owe me perfection. You owe the profession your rigor.

And I trust that you will deliver.