CONSTITUTIONAL

LAW II – FINAL
1. SUMMARY
A. Levels of Scrutiny
i. Strict
1. The law must be narrowly tailored, necessary, the least restrictive way to achieve a compelling
government interest.
2. Gov has the burden to prove it passes judicial review
3. Applies to Race, National Origin, Political Speech, Content-based 1st amend restrictions , Freedom
of Association, Free Exercise of Religion, Compelled Expression, Core 2nd Amend, Fundamental
Right Essential to Liberty (privacy & voting)
ii. Intermediate
1. The law must be substantially related to an important government interest
2. Gov has the burden to prove it passes judicial review
3. Applies to Gender, Commercial Speech, Content-Neutral 1st amend restrictions, Outside core of 2nd
amend.
iii. Rational Basis
1. The law only needs to be rationally related to a legitimate government interest
2. The challenger of the action has the burden of proof.
3. Presumption of constitutionality
4. Applies to economic liberties, nonfundamental rights, everything else.
5. Frontiero Factors to get heightened review:
a. Is it an immutable characteristic?
b. Is there a history of discrimination against the group/currently being discriminated against
(based on prejudice or stereotypes)?
c. Does the group currently/previously lack political power?
d. Does the classification bear any relation to the person’s ability to perform in relation to the
discrimination?
6. Cases Passing Rational Basis
a. Williamson v. Lee optical [any conceivable legitimate interest]
b. United States v. Carolene Products [rational basis review]
7. Cases Failing Rational Basis
a. Romer v. Evans [Colorado law that repealed laws that protected lgbtq discrimination - no
legitimate purpose in singling out a particular group and precluding it from using the political
process and that the law must have been created with animosity in mind.]
b. City of Cleburne Texas v. Cleburne Living Center [zoning ordinance that required special permit
for mentally disabled - Court went through every conceivable government interest for denying
the permit and could not find any legitimate one- the were all based on prejudice and a blatant
attempt to harm an unpopular group.]
B. Due Process
i. Whether the government’s interference with the individuals right (whether fundamental or not) is justified
(depending on the level of scrutiny)
ii. If the law denies the right to everyone – due process is usually the ground for analysis
iii. Questions to ask:
1. Has the government caused a deprivation?
a. Government does not need to protect individual from private harms
2. Of life, liberty, or property?
a. Fundamental rights gets strict
i. unenumerated fundamental rights are deeply rooted in our nation’s history and
tradition
 b. Nonfundamental rights gets rational basis
C. Equal Protection
i.
whether the governments discrimination as to who can exercise the rights (classification) is justified by a
sufficient purpose (depending on what level of scrutiny)
1. race or national origin = strict
a. the government interest must be compelling
b. Neutral Laws with disparate impact = rational basis
i. Argue under Arlington heights for heightened review
2. Sex = intermediate
a. the government interest must be important
b. Neutral Laws with disparate impact = rational basis
i. Argue under Arlington heights for heightened review
3. Any other classification = rational basis
a. the government interest just needs to be legitimate
b. Frontiero factors for heightened review
ii. If the law denies the right to some, while allowing it to others -equal protection (or due process) can be used
to challenge the law
iii. Neutral Laws with Discriminatory Purpose get heightened review- Arlington heights analysis
D. Fundamental rights
i.Unenumerated Deeply rooted in our nations history and tradition
1. Right to privacy includes: right to marry, right to sexual activity/sexual orientation, right to control
reproduction/contraception, right to control a child’s uprbring, right to procreate, right to
abortion, right to refuse medical treatment.
ii. Enumerated in the bill of rights
iii. Strict scrutiny
E. 1st amendment – Free Speech
i. Content-based restrictions target viewpoint and/or subject matter
1. Subject to strict scrutiny
ii. Content-neutral restrictions are laws that regulate speech regardless of message or viewpoint or regulate
conduct that has an effect on speech without regard to its content or viewpoint
1. Subject to intermediate
iii. Conduct as speech
1. O’Brien Test: A government regulation is sufficiently justified if:
a. it furthers an important or substantial government interest
b. The government interest is unrelated to the suppression of speech; and
c. The incidental restriction of the speech freedom is no greater than is essential to the
furtherance of that interest
i. This does not require the government to use the least burdensome means if the means
are direct and effective
2. Regulating Speech in Public
a. the gov can regulate speech in the public forum with reasonable time, place, and manner
restrictions. They MUST be:
i. content neutral (i.e., subject matter neutral and viewpoint neutral);
ii. narrowly tailored to serve an important government interest; and
iii. Leave open alternative channels of communication.
1. Ex: Schneider v. NJ
2. Buffer zones in front of abortion clinics are valid
iv. Unprotected Speech
1. Incitement of illegal activity [Brandenburg test]

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 a. A state cannot forbid advocating the use of force or of law violation unless such advocacy is (1)
directed to produce or incite imminent lawless action and (2) is likely to produce or incite such
action
2. Fighting words
a. Constitution does not protect “true threats” – statements meant to communicate an intent to
place an individual or group in fear of bodily harm (allowed to be prohibited as a class)
i. HOWEVER, cannot ban based on viewpoint – statutes cannot place restrictions that
punish only certain viewpoints (prohibiting fighting words ONLY if they convey a
particular message)
1. [RAV – ordinance that applies only to those fighting words that insult of provoke violence on
the basis of race, religion, or gender is invalid]
3. Obscenity
a. Miller test: obscenity as a description or depiction of sexual conduct:
i. taken as a whole, by the average person, applying contemporary community standards
1. standards depend on the trier of fact
ii. Appeals to the prurient interest in sex
1. Not inciting lust, but rather shameful or morbid interests
iii. Portrays sex in a patently offensive way; and
1. Patently offensive according to the community standard
iv. Does not have serious literary, artistic, political, or scientific value
1. Societal standard – reasonable person
v. Protected Speech
1. Political speech – Strict Scrutiny
a. Permissible Regulation
i. Contribution limits on campaign finance
1. McConnell v. Federal Election commission
2. Buckley v. Valeo
ii. Disclosure requirements of contributors for campaign finance
iii. Gov funded campaign finance
b. Invalid Regulation
i. Expenditure contribution maximum limit
1. Citizens united
ii. Overall campaign expenditure limits.
1. Buckley v. valeo
iii. Restrictions on the aggregate amount a person or entity contributes to political
candidates or committees in an election year
1. McCuthceon v. Federal Election commission
c. Government interest must always go towards preventing quid pro quo corruption or the
appearance of quid pro quo corruption.
2. Commercial Speech – Intermediate Scrutiny
a. Commercial speech is an expression that relates solely to economic interest of the speaker and
its audience
b. Central Hudson Test -The gov can regulate commercial speech if:
i. The speech must not be false or deceptive and must be about a lawful subject
1. False advertising and speech proposing unlawful transactions may be outlawed
ii. The government must have a substantial interest being served by the restrictions
iii. The regulation must directly advance the governmental interests
iv. The regulation is narrowly tailored to serve that interest - not more extensive than
necessary to serve that interest but does NOT require the least restrictive means
possible

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 3. Torts: Defamation, IIED
i. Public Official or Public Figure
1. “A public official may not recover for defamatory words relating to his official conduct or a
matter of public concern without clear and convincing evidence that the statement was made
with “actual malice”
a. Actual malice = knowledge that the statement was false OR reckless disregard as to the
trust of its falsity
ii. Private individuals
1. A private individual can bring actions for defamation and these actions are only subject to
constitutional limitations when the defamatory statement involves a matter of public concern
a. When the defamatory statement involves a matter of public concern, Gertz imposes two
restrictions on private plaintiffs: (i) it prohibits liability without fault, and (ii) it restricts
the recovery of presumed or punitive damages
vi. Scope of Free Speech Includes
1. freedom not to speak [Hurley – irish parade]
2. Freedom to not compel expression [Abood – union fees]
3. Symbolic conduct [Eichman – prohibiting mutilating flag except for proper disposal was found
invalid because the gov has no other interest except regulating the symbolic conduct given its
exception for proper disposal]
vii. Freedom of Press
1. Journalists are still required to appear and testify before a federal grand jury [branzenburg v.
hayes]
2. Journalists can still be sued for breaking their personal contracts like confidentiality [cohen v.
cowels media]
3. Government can regulate radio broadcasting under the fairness doctrine [red lion broadcasting]
4. Government cannot regulate newpapers and demand equal reply time [Miami herald publishing v.
tornillo]
F. 1st Amend - Freedom of Association
i. Subject to strict scrutiny – O’brien test
1. It may be infringed to serve a compelling government interest, unrelated to the suppression of
ideas, that cannot be achieved through means significantly less restrictive of associational
freedoms, at least when the infringement would not significantly affect an association's right to
express its viewpoints.
ii. Compelled Association
1. Freedom of association would protect a right to discriminate only if it is intimate association or
where the discrimination is integral to express activity. Absent of either of these two ideas – the
gov has a compelling gov interest in stopping discrimination
2. Forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive
association if the presence of that person affects in a significant way the group’ ability to advocate
public or private viewpoints
3. Compelled Association that is constitutional
a. Roberts v. Jaycee - A state’s interest in ending invidious discrimination justifies prohibiting
private clubs that are large and basically unselective in their membership, or that are often
used for business contacts, from discriminating on the basis of race, creed, color, national
origin, or sex—at least when it is not shown that this would impede the individual members’
ability to engage in First Amendment activity.
4. Compelled Association that is unconstitutional
a. A state's interest in ending invidious discrimination justifies prohibiting private clubs that are
large and basically unselective in their membership, or that are often used for business
contacts, from discriminating on the basis of race, creed, color, national origin, or sex-at least
when it is not shown that this would impede the individual members' ability to engage in First
Amendment activity.

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 iii. Compelled Disclosure
1. Government can compel disclosure if its relevant and required to serve a compelling gov interest
a. Subordinate interests of the state must survive strict scrutiny and there must be a relevant
correlation or substantial relation between the government interest and the information
required to be disclosed.
2. Compelled Disclosure of Membership that is Constitutional
a. Buckley v. Valeo – the compelled disclosure of the names of the contributors was narrowly
tailored to serve the compelling gov interest of combatting quid pro quo corruption
3. Compelled Disclosure of Membership that is unconstitutional
a. NAACP v. Alabama - NAACP showed the negative effects that disclosure could have on their
members that could lead to harassment or retaliation which would result in a substantial
impediment on their right to associate (Subject to strict if the disclosure will inhibit a person’s
ability to freely associate)
G. 1st amend – Free Exercise of Religion
i. Background
1. Gov may not compel or punish religion
2. Freedom to religious belief or opinion is absolute
3. Freedom to practice religious motivated conduct is NOT absolute
4. Laws of general applicability = rational basis
5. Laws directed at religious practices = strict scrutiny
6. Courts cannot declare religious beliefs to be false
ii. Punishment of Religious Conduct because of Religion – Unconstitutional
1. The Supreme Court has stated that the Free Exercise Clause prohibits the government from
punishing conduct merely because it is religious or displays religious belief
2. Trinity Lutheran v. Comer - Religious institution denied a government benefit solely because they
were affiliated with a religion. Law is unconstitutional because the gov could not pass strict
scrutiny – no asserted compelling government interest
3.
iii. Neutral Laws of General applicability that intended to punish religious conduct – Unconstitutional (subject to
strict)
1. Church of Lukumi v. Hialeah - A city law that prohibited the precise type of animal slaughter used in
the ritual of a particular religious sect violated the Free Exercise Clause because the Court found
that the law was designed solely to exclude the religious sect from the city.
a. B/c this law facial did not discriminate it was subject to strict scrutiny and the court
determined that the law was not a neutral law of general applicability; nor was the law
necessary to promote a compelling interest.
iv. Neutral Laws of General applicability that have an Incident Effect on Religion – Constitutional (Rational basis
review)
1. Employment Division v. Smith – Smith was fired from his job because he ingested peyote for
sacramental purposes as part of a Native American Church practice.
a. Religion does not exempt you from criminal prosecution
2. Reynolds v. United States - The gov law forbid polygamy even though the Mormons claimed that it
was required by their religion.
a. Religion does not exempt you from a valid law of general applicability
v. RFRA – Religious Freedom Restoration Act
1. The Religious Freedom Restoration Act (“RFRA”) allows a person to challenge federal laws of
general applicability as burdening his religious beliefs and practices. If there is a substantial
burdening of religious free exercise, under RFRA the government must meet strict scrutiny
2. RFRA v. 1st Amend for neutral laws of general applicability:
a. If the law substantially burdens religion and is brought under RFRA you have to pass strict
scrutiny
b. If the law is under the 1st amendment – you need to apply the standard in Smith
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 3. Burwell v. Hobby Lobby - a federal requirement that businesses include contraceptive coverage in
their insurance coverage for employees violates RFRA for close corporations whose owners object
to this on religious grounds. There were less restrictive means to achieve the interest (like the gov
subsidizes the medication) – failed strict scrutiny
H. 1 amend – Establishment Clause
st

i.Background
1. Gov must remain neutral towards religion
2. Gov action that discriminates against a religion must pass strict scrutiny
ii. Lemon Test- Government action (that is not discriminatory) challenged under the Establishment clause will
be invalid UNLESS the action:
a. Has a secular purpose;
b. Has a primary effect that neither advances nor inhibits religion; AND
c. Does not produce excessive government entanglement with religion
iii. Actions that don’t violate establishment clause
1. Marsh v. Chambers – State Legislatures beginning the day with prayer by employing a chaplain
2. Town of Greece v. Galloway - Town board meetings that begin with prayer
3. Van Orden v. Perry - A monument of the Ten Commandments on a 22-acre State Capitol ground
displaying 17 monuments and 21 historical markers commemorating the state’s “people, ideals,
and events that compose its identity” communicated not only a religious message but also a secular
moral message, and its setting suggested that the state intended the secular message to
predominate.
a. “reindeer rule”
iv. Actions that violate the establishment clause
1. Lee v. Weisman – Government cannot endorse religion. State officials directed the prayer,
participation is obligatory, subtle coercion in elementary and secondary schools
2. McCreary County v. ACLU of Kentucky – Government cannot have the purpose of advancing a
religion. Government act of displaying 10 Commandments had a predominantly religious
purpose which violated the clause.
I. 2nd Amend
i.
Background
1. The core of the second amendment is the individual’s right to keep and bear arms for the purpose
of self-defense in the home.
a. Usually flat out bans will implicate the core
b. Regulations inside the home implicate the core
2. Outside the core will not infringe on the right to keep and bear arms for the purpose of self-defense
in one’s home
ii. Level of Scrutiny
1. Gov action that implicate AND burden the core – Strict Scrutiny
2. Regulation that do NOT burden the core – intermediate
J. Takings
i. Questions to ask:
1. Is it a taking? (Physical or Regulatory)
2. Is it for public use? (related to some legitimate public purpose, or something that the public can
derive a benefit from)
3. Did the gov pay just compensation? (fair market value at the time)

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2. LEVELS OF JUDICIAL REVIEW
A. Strict Scrutiny
i.
Definition
1. The law must be narrowly tailored, necessary, or the least restrictive way to achieve a compelling
government interest.
2. The law will be upheld ONLY if its necessary to achieve a compelling or overriding government
purpose. The Court will always considered whether there are less burdensome means of accomplishing
the legislative goal.
a. Most gov actions fail under this test.
ii. Ends
1. The government must have a truly significant reason for discriminating.
2. Compelling, Necessary, Vital
iii. Means
1. The government action must be narrowly tailored towards the compelling government interest
2. The action must be the least restrictive means necessary to achieve the compelling government
interest
iv. Reasoning
1. The Supreme Court has declared government regulation should be scrutinized very strictly when it
infringes on a protected liberty (like procreation or marriage) or a protection action (like political
speech), or when it unfairly discriminates against a protected class (like race or national origin).
v. Burden
1. The government has the burden of proof when strict scrutiny is applied
a. Gov must show that its action is necessary and that there are no other less restrictive means to
achieve the goal.
b. Government cannot state the goal after the fact.
2. The means and ends need to fit perfectly otherwise it will likely be struck down.
a. The court will not allow a law that reaches more people or conduct than is necessary
(overinclusive)
b. The court will not allow a law that does not reach all of the people or conduct sought to be
regulated (underinclusive)
vi. Applies to:
1. Discriminatory Classification Based on:
a. Race
b. National Origin
2. Core of Enumerated Rights
a. Political Speech
b. Content-based restrictions
c. Freedom of Association
d. Compelled Expression
e. Core 2nd Amend
3. Fundamental Right Essential to Liberty
a. Rights that are extracted from privacy
b. Voting
B. Intermediate Scrutiny
i. Definition
1. The law must be substantially related to an important government interest
ii. Ends
1. The government objective must be more than just legitimate the interest must be important
iii. Means
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 1. The means chosen must be substantially related to achieving the important interest
a. Does not need to be a perfect fit
iv. Burden
1. The government has the burden of proof
v. Applies to:
1. Discriminatory Classification based on :
a. Gender
2. Attenuated Fundamental Rights (farther from the core)
a. Commercial Speech
b. Content-Neutral restrictions
c. Regulation on 2nd Amend outside the home.
C. Rational Basis Review
i. Definition
1. The law only needs to be rationally related to a legitimate government interest
a. Most government action under this standard is upheld unless arbitrary or irrational
ii. Ends
1. Government has a legitimate purpose if its advancing a traditional police purpose like safety, public
health, or public morals (But virtually any goal that is not forbidden by the constitution will be a
legitimate purpose)
2. Does NOT need to be compelling or important – the ends just need to be something the government
can legitimately do
3. The law should be upheld if there is ANY conceivable legitimate interest (even if that wasn’t the
government’s actual purpose)
a. Example cases
i. Williamson v. Lee Optical
1. Purpose of the regulation was public health: the court stated that the legislature may have
concluded that eye exams were so critical that every change in frames and every duplication
of lens should be accompanied by a prescription. – Purpose OKAY
ii. Romer v. Evans (Colorado law that repealed laws that protected lgbtq discrimination)
1. Purpose of the regulation was public morals: court stated that there was no legitimate
purpose in singling out a particular group and precluding it from using the political process
and that the law must have been created with animosity in mind. – Purpose INVALID
iii. Means
1. Means only need to be a rational way to accomplish the end
2. The law will be upheld unless the government action is clearly wrong, a display of arbitrary power, or
not a valid exercise of judgment
a. Example Case
i. City of Cleburne Texas v. Cleburne Living Center (zoning oridinance that required
special permit for mentally disabled)
1. Even though the city offered a number of justifications for the ordinance even under rational
basis the court held the regulation as invalid because all of the justifications were based on
prejudice against the mentally disabled because drawing a line between a home for the
mentally disabled compared to all other facilities is prejudicial
iv. Burden
1. The challenger of the government action has the burden of proof
2. There is a strong presumption of constitutionality in favor of the law being valid that can only be
overcome by a showing that the government had no legitimate purpose or that the means chosen are
not a reasonable way to accomplish the goal.
3. The court will defer to the legislature decision that a law is rational.
4. Overinclusive and Underinclusive laws are acceptable.

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 a. The court will uphold a law taking the “first step” toward ANY legitimate goal (even if the court
thinks its unwise)
i. The law does not need to be the best law that could have been written to achieve the
goal, the law does not even need to go far to establish the goal.
v. Applies to:
1. Everything that does not already have a classification

3. DUE PROCESS CLAUSE

A. Background
i.
The Due process clause of the 5th amendment (applicable to the fed gov) and the 14th amendment (applicable
to the states) provides that the “government shall not take a person’s life, liberty, or property without due
process of law.
1. The clause imposes two separate limits on government:
a. Procedural Due Process
i. Refers to the procedures that the government must follow before it deprives a person
of life, liberty or property.
b. Substantive Due Process
i. Looks to whether there is a sufficient justification for the government’s deprivation of
life, liberty or property
1. This depends on what level of scrutiny is used.
2. Both Procedural and Substantive Due Process must be satisfied for a valid government action
B. Constitutional Issue
i.Whether the government’s interference with the individuals right (whether fundamental or not) is justified
(depending on the level of scrutiny)
1. If the right is fundamental – the government interest must be compelling
2. If the right is not fundamental – the government interest only needs to be legitimate
ii. If the law denies the right to everyone – due process is usually the ground for analysis
C. Standard of Review
i. Rational Basis Review – any government action that that does NOT invoke a fundamental right
ii. Strict Scrutiny - Any deprivation of Life, Liberty, or Property that implicates a Fundamental Right
D. Due Process Analysis
i.
Questions to Ask
1. Has the Government Caused a Deprivation?
a. The government has no duty to protect individuals from private harms – the due process clause is
invoked when there is a government deprivation
2. Of Life Liberty or Property?
a. There needs to be a deprivation of something (Either Fundamental enumerated or unenumerated
rights (strict scrutiny) or of nonfundamental rights (rational basis)]
i. Fundamental Enumerated rights are expressed in the constitution
1. Ex: right to free speech or right to bear arms in self-defense of one’s home.
ii. Fundamental Unenumerated Rights
1. “deeply rooted in our nation’s history and tradition”
a. Look to state law, state practice, common law, common practice.
iii. Not Fundamental rights
1. Williamson v. Lee Optical – regulation of sale of glasses
E. Case
i. Lee optical
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4. EQUAL PROTECTIONS CLAUSE
A. Background
i. Requires that the government treat similarly situated people equally
B. Constitutional Issue
i. whether the governments discrimination as to who can exercise the rights (classification) is justified by a
sufficient purpose (depending on what level of scrutiny)
1. If the classification is race or national origin– the government interest must be compelling
2. If the classification is gender – the government interest must be important
3. Any other classification – the government interest just needs to be legitimate
ii. If the law denies the right to some, while allowing it to others -equal protection (or due process) can be used
to challenge the law
C. Types of Discrimination
i. De Jure – discrimination according to the law
1. Facially discriminatory – law only needs to mention a classification in the text (doesn’t matter if its
helping or hurting a classification)
a. Gets strict Scrutiny
ii. De Facto – discrimination in effect
1. Disparate impact based on classification
a. Gets rational basis review
D. Neutral Laws with Discriminatory Purpose get heightened review
i. In order for a neutral law to get heighten judicial review there needs to be proof of a discriminatory purpose
for the law to be treated as facially discriminatory (usually invoked for laws with disparate impacts)
ii. Steps getting heightened Scrutiny for a facially neutral law:
1. Step #1 - Plaintiff needs to establish a discriminatory purpose behind the neutral law and a
discriminatory effect
a. The impact of the law may be so clearly discriminatory that there is no other explanation other
than the fact that it was adopted for discriminatory purposes
b. The history surrounding the government action may show discriminatory purposes
c. The legislative or administrative history of law may show its discriminatory purpose
2. Step #2 - If the plaintiff produces evidence of a discriminatory purpose (step #1) , the burden shifts to
the government to prove that it would have taken the same action (even if the asserted discriminatory
purpose was never considered)
3. Step #3 – Judicial Determination
a. If the court accepts the governments justification for the neutral law – rational basis review
b. If the court rejects the governments justification and determines there is a discriminatory purpose
– the law is treated as facially discriminatory and subject to strict scrutiny (which it will most
likely fail because you’ve proven a discriminatory purpose which negates any potential for a
compelling gov interest)
iii. Cases
1. Washington v. Davis
a. Facts
i. Police force applicants required to take a police force exam. Stats showed that black
applicants failed the exam far more often than white applicants.
b. Holding
i. A discriminatory impact alone is insufficient to show the existence of a racial
classification
ii. There needs to be proof of a discriminatory purpose for the law to be treated as
facially discriminatory.
2. Yick Wo v. Hopkins
a. Facts
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 i. A city’s ordinance required that laundries be located in brick or stone buildings unless
a waiver was obtained.
ii. Over 200 petitions be Chinese applicants were denied but every application filed by
non-chinese applicants were approved.
b. Holding
i. The facts establish that the administration of the neutral law was so exclusively
against a particular class of persons that there was clear intent in the laws application
to discriminate and deny equal protection.
3. Village of Arlington Heights v. Metropolitan Housing Development
a. Facts
i. City refused to rezone a parcel of land to allow construction of low and moderate
income housing
ii. The plaintiffs argued this had a discriminatory effect in excluding black individuals
from the city
b. Opinion
i. Discriminatory purpose can be established if:
1. The impact of the law may be so clearly discriminatory that there is no other explanation
other than the fact that it was adopted for discriminatory purposes
a. Showing a statistical patter that can only be explained by discriminatory intent
i. Ex: Yick Wo – laundry mat certification denial
2. The history surrounding the government action may show discriminatory purposes
a. Showing the specific sequence of events leading up the government action that clearly show
its purpose was discriminatory
i. Ex: a literacy test for voting that has a “grandfather clause” exception. – the law is
neutral on its face but in effect is clearly an attempt to disenfranchise black voters
because all white votes would be exempt through the clause
3. The legislative or administrative history of law may show its discriminatory purpose
a. The legislative or administrative history may be relevant – especially where there are
statements by members of the decision making body
ii. If the plaintiff produces proof of a discriminatory purpose, the burden shifts back to
the government to prove that it would have taken the same action regardless of the
discrimination
E. Equal Protection Analysis
i. Question #1 - What is the classification? (Two Types)
1. Facial Discrimination – the laws explicit terms draws a distinction among people based on a
particular characteristic
a. Ex: a law that says only 18 and up can have their drivers license
2. Discriminatory Impact - either discriminatory impact from the law or discriminatory effects from is
administration
a. To challenge a law for a discriminatory impact you must show that the discrimination was a
pretext for the law (must prove the law has a discriminatory purpose despite it being facially
neutral)
b. Ex: a law that requires police officers to be at least 6ft and 150lbs on its face only implements a
height and weight classification but statistics show that over 40% of men will meet this
requirement and only 2% of women will. This law has a discriminatory impact
ii. Question #2 - What level of scrutiny should be applied?
1. Race or National Origin Classification – Strict Scrutiny
a. Law is upheld only if gov proves that the law is necessary to achieve a compelling gov interest
2. Gender Classification – Intermediate Scrutiny
a. Law is upheld if it is substantially related to an important government interest]
3. Unidentified Class – Rational Basis Review
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 a. Law will be upheld if it is rationally related to a legitimate government purpose.
iii. Question #3 - Does the government action pass its level of scrutiny?
1. Court evaluates means and ends.
a. Strict
i. Compelling interest
ii. Means Requires perfect fit
1. Cannot have an alternative less restrictive means
2. No overinclusive or underinclusive
b. Intermediate
i. Important interest
ii. Means are substantially related to ends
1. Requires a close fit but not perfect
2. Can have some overinclusive or underinclusive
c. Rational Basis
i. Means and ends just can’t go in the opposite direction
ii. Any legitimate interest
iii. Means rationally relate to that interest

5. DISCRIMINATION ON THE BASIS OF RACE

A. Level of Scrutiny – Strict
i. Any facial classification based on race is subject to strict scrutiny
1. Mostly because the courts are suspicious of the legislatures intent to discriminate.
2. Gov must show an extremely important reason for its action AND it must demonstrate that the goal
cannot be achieved without the racial classification
3. Subject to strict scrutiny regardless of whether they are helping or hurting the race
ii. Neutral law with racial disparate impact
1. Arlington heights analysis
2. Need to prove there was an intent to discriminate
a. Washington v. davis
b. Yick wo
B. Accepted Compelling government interests for race affirmative action programs
i. Remedying the effects of past intentional discrimination
ii. Diversity in higher education
1. Bakke, grutter, gratz, fisher
C. Diversity in Higher education
i. Permissible Means of Race:
1. Race can be used as a “plus” among other characteristics under a holistic view
2. Race cannot be given a quota or numerical quantification
ii. Cases
1. Bakke, grutter, gratz, fisher
D. Remedying Past De Jure Discrimination
i. Affirmative action can be used to remedy past discrimination if the government directly created the problem
they are now seeking to fix
1. attempts to place minorities in the same position that they would be in if the centuries of
discrimination has not occurred.
ii. Cases
1. Brown v. Board I and Brown v. Board of Education II
2. United States v. Virginia (VMI) – for sex de jure discrimination
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 iii. HYPO:
1. Background:
a. De Jure segregation – “segregation in law” (black schools versus white school – required by the
law)
b. De facto segregation – “segregation in fact” (black communities tend to send their kids to black
schools versus white communities tend to send their kids to white schools – not required in the
law)
c. Brown v. Board of education holding is established
2. Analysis for De Jure Segregation
a. If you are starting with de jure segregation ( law mandated) - then the law, after brown, requires
you to desegregate.
b. Court found the best way to desegregate (i.e. remedy past discrimination) is to specifically classify
people based on race in order to mix them up – racial desegregation orders
i. This would be another form of de jure discrimination for the purpose of overcoming
the governments PRIOR de jure segregation - this is ACCEPTABLE racial classifcation
1. Once you desegregate then you are at a “unitary status” that would have existed BUT FOR the
de jure segregation.
3. Analysis for De Facto segregation
a. Suppose once the schools reached the “unitary status” they then become de facto segregated
b. Here the court CANNOT step in and implement racial desegregation orders (classification based
on race in order to mix them up) because the order would no longer be remedying past DE JURE
segregation it would be attempting to remedy DE FACTO segregation
4. The difference:
a. Using racial classifications to overcome prior DE JURE segregation (intentional racial
discrimination) is allowed because the racial classification can be narrowly tailored and it is
necessary to achieve desegregation of prior government de jure segregation .
b. Using racial classifications to overcome prior DE FACTO segregation (segregation in fact) is
NEVER allowed because the classification can never be narrowly tailored or necessary to achieve
desegregation of prior government de jure segregation – because there as NEVER prior
government action that created the segregation
i. The segregation was created in fact, not by law.
ii. You can achieve your goal through less restrictive means, like redistricting or charter
schools.

6. DISCRIMINATION ON THE BASIS OF SEX AND OTHER CATEGORIES

A. Level of Scrutiny
i. Sex – Intermediate Scrutiny
1. Craig v. Boren
ii. Other Categories – Rational Basis Review
1. Cleburne v. Cleburne Living Center
2. Romer v. Evans
iii. Use the Frontiero Factors to get Heightened review for a case that does not have a classification yet
1. Is it an immutable characteristic?
2. Is there a history of discrimination against the group/currently being discriminated against (based on
prejudice or stereotypes)?
3. Does the group currently/previously lack political power?
4. Does the classification bear any relation to the persons ability to perform in relation to the
discrimination?
B. Use of De Jure Sex Classification to Remedy a Prior Instance of De Jure Segregation
i. United States v. Virginia (VMI) – failed attempt.
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7. ECONOMIC LIBERTIES (REGULATIONS THAT AFFECT ECONOMY)
A. Economic Liberties that are protected under the due process
i. Reviewed under rational basis
ii. law has a presumption of constitutionality
iii. the court defer to the legislatures choices as long as the law is reasonable.
iv. Are no longer treated as fundamental rights
v. Government can regulate these to serve and legitimate purpose
B. Examples
i. Freedom of Contract
ii. Regulation effecting minimum wage
iii. State tax of soda products.
C. Cases
i. West Coast Hotel v. Parrish
1. Facts
a. Law establishing a minimum wage requirement for women
2. Holding
a. Minimum wage requirement upheld as constitutional
b. A regulation which is reasonable in relation to its subject and is adopted in the interest of the
community is due process
ii. United States v. Carolene Products
1. Rule
a. Economic regulations should be upheld so long as they are supported by a conceivable rational
basis, even if it cannot proved that it was the legislatures intent
2. Holding
a. Court upheld the filled milk act of 1923 that prohibited filled milk
b. Courts will presume laws are constitutional unless the law interferes with individual rights, or a
law that restricts the ability of the political process to repeal undesirable legislation, or a law that
discriminates against a discrete and insular minority – then the law is subject to higher judicial
review
iii. Williamson v. Lee Optical
1. Opinion
a. The state law may exact a needless, wasteful requirement in many cases. But it is for the
legislature, not the courts, to balance the advantages and disadvantages of the new requirement
i. It is conceivable that the law could potentially advance public health and its not for
the Court to determine whether or not the interest is valid, just whether or not one
exists.
1. The day is gone when the Courts use the due process clause to strike down laws regulating
business and industrial conditions because they may be unwise or the courts may disagree
with them
b. ii. Under Rational Basis – the court will search for ANY possible legitimate purpose for the law
and as long as the law is reasonable it will be upheld
2. Holding
a. As long as the Court can conceive SOME legitimate purpose and so long as the law is reasonable, it
will most likely be upheld.

8. FUNDAMENTAL RIGHTS (UNENUMERATED)

A. Background
i. Protected under the due process and equal protections clause

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 ii. A right is fundamental if it is deeply rooted in the nation’s history and tradition
1. Depends on the level of abstraction you claim the right
a. If you are the government trying to say the right is not deeply rooted – you want to make the right
as specific as possible because then it most likely won’t be deeply rooted and then this gets
rational basis.
b. If you the plaintiff trying to say the right is deeply rooted – you want to make the right as broad as
possible because then it most likely will be deeply rooted and then the regulation gets heightened
scrutiny.
B. Level of Scrutiny
i. Strict Scrutiny
C. Rights Established
i. Right to Privacy Includes:
1. Fundamental Right to Privacy
a. Case – Griswold v. Connecticut
i. Facts
1. Doctor gave medical advice to married people about the use of contraceptives which violated
a statute that forbid aiding anyone in using contraceptives.
2. The law prohibited married couples from using contraceptives
ii. Opinion
1. Right to privacy is a fundamental right
a. Bill of rights, 3rd, 4th, 5th amendments all establish specific penumbras that help give them life
and substance. They create a zone of privacy.
2. There is a zone of privacy which is heightened between marital relationships and this law
regulates within that zone.
3. Subject to strict scrutiny and fails
2. Right to Marry
a. Loving v. Virginia
i. Right to marry anyone – irrespective of race
ii. “the freedom to marry has long been recognized as one of the vital personal rights
essential to the pursuit of happiness
b. Obergefell v. Hodges
i. Legalized and recognized same-sex marriage
1. The right to personal choice regarding marriage is inherent in the concept of individual
autonomy – it shapes an individual’s identity
a. It would be contradictory to recognize a right to privacy with respect to other matters of
family life and not with respect to the decision to enter the relationship that is the foundation
of the family in society
2. The right to marry is fundamental because it supports a two-person union unlike any other in
its importance to the committed individual
3. Protecting the right to marry safeguards children and families and thus draws meaning from
related rights of childbearing, procreation, and education,
4. Marriage is the keystone of a social order and it demeans lgbtq+ to lock them out of a central
institution of society.
3. Right to Sexual Activity and Sexual Orientation
a. Lawrence v. Texas
i. Right to private consensual sexual activity between consenting adults of the same sex
ii. There is constitutional protection for all individuals in the most intimate and private
aspects of their lives
1. Reaffirms a right to privacy
2. Sexual activity is a fundamental aspect of personhood that is entitled to constitutional
protection
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 a. Could potentially extend to equal protection and equal dignity for lgbtq+
iii. Overrules Bowers v. Hardwick
4. Right to Control Reproduction / Contraception’s
a. Case – Griswold v. Connecticut
i. Right to contraceptives for married individuals
b. Case – Eisenstadt v. Baird
i. Right to contraceptives to unmarried individuals
ii. “if the right to privacy means anything it is the right of an individual, married or single,
to be free from unwarranted governmental intrusion into matters so fundamentally
affecting a persons like the decision to start a family.
5. Right to Control the Upbringing of One’s Child
a. Meyer v. Nebraska
i. State law that prohibited the teaching of school children in another language
ii. Violated the due process clause
iii. Parents have a right to make decisions for their children
b. Troxel v. Granville
i. Mother denied the rights of grandparents to see her children
ii. Court intervened.
iii. Parents have a right to control the upbringing of their children, grandparents rights
don’t supersede that
6. Right to Procreate
a. Buck v. Bell
i. Sterilization case that met strict scrutiny
7. Right to Abortion
a. Overview
i. The states have a compelling interest in protecting the health of the woman AND the
fetus once it becomes viable
ii. Government may NOT ban abortions prior to viability
1. But the government can regulate abortions pre-viability as long as it does not place an undue
burden on the access to abortion.
iii. Government may ban abortions post viability as long as there is a womans health
exception
b. Roe v. Wade
i. Right to privacy includes the right of a woman to have an abortion under certain
circumstances without undue interference from the state.
1. complete prohibitions of all abortions violates a fundamental right
ii. Trimester standard – overturned by Casery
iii. Holding that is still good law Since Casey:
1. The woman has a right to choose to have an abortion before viability and to obtain it without
undue burden interference from the state.
a. Before viability, the states interests are not strong enough to support a prohibition of
abortion or the the imposition of substantial obstacle to the woman’s effective right to elect
the procedure
2. The state has the power to restrict abortions after fetal viability if the law contains exceptions
for pregnancies that endanger the health or life of the woman.
3. The state has a legitimate interest from the outset of the pregnancy in protecting the health of
the woman and the life of the fetus that MAY become a child.
c. Planned Parenthood of Southeastern PA v. Casey
i. Standard for gov to regulation abortions:
1. Regulation Pre-Viability cannot impose undue burdens

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 a. Pre- viability a state may adopt regulations (protecting the mother’s health and the life of
the fetus) only if the regulation does not impose an “undue burden” or substantial obstacle
to the woman’s right to have an abortion.
b. A statute will not impose a substantial obstacle or an undue burden simply because it has the
incidental effect of making it more difficult or more expensive to obtain an abortion.
c. A law creates an undue burden if its purpose of effect is to place a substantial obstacle in the
path of a woman seeking an abortion before the fetus attains viability
d. Not Undue Burdens:
i. Informed Consent is NOT an Undue Burden : it is not an undue burden to require a
physician to provide the woman with information about the nature of the procedure,
the health risks, the alternative options, etc.
ii. Waiting Period is NOT an Undue Burden: requiring a 24-hour waiting period between
initial consultation and procedure
iii. Parental Consent WITH Judicial Override for minor in NOT an Undue Burden: a state
may require the consent of a parent as long as there is an exception to receive the
abortion with the consent of a judge
iv. Banning partial birth abortions [Gonzales v. Carhart]
e. Undue Burdens
i. Spousal Consent and notification IS an undue burden on the woman
ii. Parental Consent WITHOUT Judicial Override for a minor IS an undue burden
iii. Requiring a physician have admitting privileges to a hospital IS an Undue Burden
2. Regulation Post-Viability
a. The state can prohibit abortion post-viability and regulate for the health of the fetus if it
chooses too, AS LONG as there is an exception that allows the woman to receive an abortion
if her health or life is threatened
b. Once the fetus becomes viable the state’s interest in the fetus’s life can override the woman’s
right to choose an abortion but it does NOT override the state’s interest in the woman’s
health.
d. Gonzales v. Carhart
i. Federal Law banning partial births abortions reviewed under the Casey Standard
ii. A federal law prohibiting partial birth abortions does NOT on its face (applied to
everyone) impose an undue burden because (1) there are other abortion procedures
available (2) the law includes specific anatomical standards and (3) there is an
exception to protect the woman’s life.
iii. The Court generally upheld the statute but said that the statute could not be applied in
situations wherein the woman’s health would be endangered (without receiving the
D&E) – it could be unconstitutional as applied to an individual
1. If congress finds that a particular kind of abortion is never medically necessary, then congress
can ban that procedure entirely even without the life or health exception, BUT:
a. Congress has to describe the procedure with anatomical precision
b. If that procedure turns out to be medically necessary for the life and health of the women,
then they cannot be prosecuted under that law
2. Here court states Congress did sufficient legislate fact-finding and found that D&E is NEVER
medically necessary which is why with this regulation can ban it categorically and rid the
possibility of this specific type of procedure fitting under an exception for the life and health of
women under Casey.
e. Whole Woman’s Health v. Hellerstedt
i. Significance – an application of the undue burden test where the facts and
circumstances of the case show that restrictions cause an undue burden AS APPLIED in
this case (may not cause the same burden elsewhere – depends on the facts and
evidence of the case)
ii. Texas required an admitting privileges requirement and surgical center requirement
for abortions

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 iii. Both requirements place an undue burden on a woman’s access to an abortion and
neither confer a medical benefit sufficient to justify the burden
1. The court determined that the combo of the requirements would cause the closing of almost
all the abortion clinics in Texas that operating legally before the requirements.
a. Before the admitting privilege requirement there was no evidence that showed that Texas’s
abortions were unsafe and needed this regulation to protect the woman’s health. – Texas
abortions were relatively safe so there was no health-related problem that the law sough to
cure
i. The evidence shows that this requirement led to most of the facilities to shut down.
Although driving father to receive an abortion does not always cause an undue burden
(CASEY) the facts here show that restriction does cause a burden in this case.
b. The evidence shows that the surgical center requirement does not benefit patients and is not
medically necessary
i. The evidence shows that the risks of an abortion are not lower at surgical centers and
the woman will not obtain better care or get better outcomes at surgical centers
2. The two requirements create an impermissible obstacle AS APPLIED to all women seeking a
pre-viability abortion by restricting access to previously available facilities in Texas
ii. Rights Not Established
1. NO fundamental right to assisted suicide
a. Washington v. Glucksburg
i. Demonstrates how to narrowly define a right in order to show that there is no history
or tradition
ii. A state can provide you the right to assisted suicide but you are not entitled to one
which means they can prohibit the act if they choose

9. FIRST AMENDMENT – FREEDOM OF SPEECH AND PRESS

A. Background
i. Text: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances.”
ii. The 1st amend means that the government has no power to restrict expression because of its message, ideas,
subject matter, or content
iii. The 1st amendment bars the government from dictating what we see, read, speak, or hear. The freedom has its
limits and does not embrace certain categories of speech including defamation, incitement, obscenity, and
pornography produced with real children.
B. How to Evaluate a Restriction of Free Speech
i. Distinction between Content-based and Content-neutral Laws
1. Content-Based Restrictions
a. Content-based restrictions target viewpoint and/or subject matter
i. Viewpoint restriction – the government is trying to regulate speech based on the
ideology of the message
1. Ex: forbidding pro-choice demonstrations in a park while allowing pro-life demonstrations –
this is a viewpoint regulation on the topic of abortion.
ii. Subject matter restriction – the government is trying to regulate speech based on the
topic of speech
1. Ex: forbidding everyone from public demonstrations about their opinions about a war.
b. Presumptively invalid (which creates a rebuttable presumption for the government to prove
they are not content based)

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 i. Because society has the right and civic duty to engage in open, dynamic, and rational
debate and these ends are not served if the government is allowed to orchestrate the
public discussion through content-based restrictions
c. Subject to strict scrutiny
i. The existence of content-neutral alternatives means the regulation fails strict scrutiny
ii. In order for the government to pass strict scrutiny for content-based restriction the
state must identify an actual problem and the restriction on speech must be necessary
to its solution
d. “the government has no power to restrict expression because of its message, its idea, its subject
matter, or its content.”
i. Fear is that the government seeks to suppress unpopular ideas or information or is
trying to manipulate the public debate through coercion
2. Content-Neutral
a. Content-neutral restrictions are laws regulating speech regardless of its message or viewpoint
i. Ex: a law prohibiting the posting of all signs on public utility poles would be content-
neutral because it applies to all signs regardless of their subject matter or viewpoint
b. Content-neutral restrictions can also regulate conduct that has an effect on speech without regard
to its content or viewpoint.
i. Ex: a sale tax that is applicable to all purchases including reading material, might have
a significant incidental effect on speech but it is still content-neutral.
c. Subject to intermediate scrutiny
ii. Conduct as Speech
1. United states v. o’brien
a. Rule
i. A government regulate is sufficiently justified if:
1. it furthers an important or substantial government interest
2. The government interest is unrelated to the suppression of speech; and
3. The incidental restriction of the speech freedom is no greater than is essential to the
furtherance of that interest
a. This does not require the government to use the least burdensome means if the means are
direct and effective
2. Regulating Speech in Public
a. When the gov regulates speech in the public forum, any time, place and manner the regulation is
justified if it is without reference to the content of the speech.
3. Texas v. Johnson
4. R.A.V. – City of St. Paul
iii. Spending Money as Speech
1. Overview
2. Cases
a. Buckley v. Valeo
iv. Application of Restriction
1. Vagueness and Overbreadth
a. A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and
what is permitted because it is unjust to punish a person without providing clear notice as to what
conduct is prohibited
b. A law is unconstitutionally overbroad if it regulates substantially more speech that the
constitution allows to be regulated, and a person to whom the law constitutionally can be applied
can argue that it would be unconstitutional as applied to others.
i. In an area where the government can regulate speech, a law the regulates much more
expression than the constitution allows to be restricted will be declared
unconstitutional

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 v. Is there a Government Infringement?
1. Civil Liability for Speech
a. Imposing civil liability for speech, even in the context of private litigation, is an interference with
speech and must pass judicial scrutiny
i. “what a state may not constitutionally bring about by means of a criminal statute is
also beyond the reach of its civil law of libel”
ii. Liability for torts like invasion of privacy, iied, libel, must be consistent with the 1 st
amendment
2. Compelling Speech
a. There is a right not to speak
b. There is a right to remain anonymous
3. Forced Association
a. When the government impermissibly forces people to association.
i. Ex: Abood v. Detroit Board of Education
4. Unconstitutional Conditions Doctrine
a. When the government conditions a benefit on the requirement that a person forgo a constitutional
right
vi. Types of Unprotected, Less Protected, and Protected Speech (Exception to the Content-based restriction rule)
1. Types of Unprotected Speech that the Government can Prohibit and Punish
a. Incitement of Illegal Activity
i. Test – Brandenburg clear and present danger test
1. “first, only intentional incitement of unlawful conduct (not advocacy of abstract doctrine) can
be punished. Second, only incitement to imminent lawless action which is likely to incite or
produce such actions” may be regulated
2. The government can ban speech that is directed to incite imminent lawless action or the
overthrow of the government and it likely to produce that action
ii. Elements
1. Likelihood of;
2. Imminent;
3. Significant Harm
iii. Reasoning
1. The government may constitutionally punish speech that produces or is intended to produce a
clear and imminent danger that will bring about (imminently) certain substantive evils that
the US seeks to prevent. This power is undoubtably greater in war time.
2. Concern that an audience might follow the speaker into lawlessness
iv. Case – Brandenburg v. Ohio
1. Facts
a. Leader of KKK was convicted under an ohio law. There was evidence of his incitement on a
film that depicted a KKK rally which included racists and anti-semitic speech
2. elements for incitement test
a. imminent harm
b. a likelihood of producing illegal action
c. speech had intent to cause imminent illegality
3. Government evaluation of the restriction
a. The government is required to carefully consider the actual circumstances surrounding such
expression, they must ask whether the expression is directed to incite or produce imminent
lawlessness action and is likely to incite or produce such action.
i. Not every provocative idea will meet this standard
b. True Threat
i. Rule

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 1. True threats include those statements where the speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence to a particular individual or
group.
ii. There is no 1 st amendment protection for a true threat
c. Fighting Words
i. Test – Chaplinsky
1. “what men of common intelligence would understand would be words likely to cause an
average addressee to fight. Fighting words include personally abusive epithets, which are
inherently likely to provoke a violent reaction”
2. “Government can impose content-based regulation when the speech constitutes fighting
words – words which by their very utterance inflict injury or tend to incite an immediate
breach of the peace.”
ii. Reasoning
1. Concern the danger that the audience might be lawless in reaction against the speaker
iii. Two circumstances where it applies
1. Where it is likely to cause a violent response against the speaker
2. Where it is an insult likely to inflict immediate emotional harm
iv. Application
1. Doctrine only applies to speech directed at another person that is likely to produce a violent
response
2. Fight words prohibit the mode of expressing the idea, NOT the content involved
3. The regulation needs to place the restriction on the delivery of the content NOT on the content
itself
v. Case
1. R.A.V. v. City of St. Paul
a. Even if a law regulates fighting words, if it discriminates on the basis of subject matter or
viewpoint to create subcategories of fighting words – then the regulation is subject to strict
scrutiny because of the content based restriction
b. Fighting words may not be made a vehicle for content discrimination unrelated to their
distinctively proscribable content.
i. Since the regulation was directed as fighting words towards a specific religion or race
they were content based because there would be other fighting words not included in
the prohibition.
ii. City just needed to proscribe ALL fighting words – rather than fighting words based on
religion or race
d. Obscenity
i. Miller test
ii. Test to determine if material is obscene for the trier of fact
1. Whether the average person, applying contemporary community standards would find that
the work, taken as a whole, appeals to the prurient (sexual) interests;
a. The sexual interests are to be decided by community standards
2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; AND
a. Ex: patently offensive representations or descriptions of sexual acts, normal or perverted,
actual or simulated. OR patently offensive representations or descriptions of masturbation,
excretory functions and lewd exhibitions of gentials
3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value
a. Whether a reasonable person would find such value in the material
2. Types of Protected Speech
a. Political Speech – Highest Protection
i. Overview

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 1. Speech in connection with elections and the electoral process
2. Core of the 1st amendment
3. Subject to Strict Scrutiny
ii. Regulation of Spending Money in Campaigns
1. Regulations
a. Permissible Regulation
i. Contribution limits on campaign finance
ii. Disclosure requirements for campaign finance
iii. Gov funded campaign finance
b. Invalid Regulation
i. Expenditure contribution maximum limit
ii. Led to the creation of PACs
iii. Overall campaign expenditure limits.
2. Compelling Government Interest
a. To prevent actual, or the appearance of, corruption in the political process
b. To avoid a quid pro quo system
b. Commercial Speech – Less Protected Speech
i. Overview
1. intermediate scrutiny
2. No clear definition of what constitutes commercial speech
ii. Test for determining if the government can regulate the speech (intermediate scrutiny)
1. Must determine whether the expression is protected by the 1st amendment
a. For commercial speech to fall under the 1st amend it at least must concern lawful activity
and not be misleading
b. Is the advertising false, deceptive, or of illegal activities – areas that are unprotected by the
1st amend?
2. Whether the asserted government interest is substantial
a. Is the restriction justified by a substantial government interest?
b. Question #1 and #2 must be positive answers to move onto #3 and #4
3. Whether the government regulation directly advances the asserted government interest
a. Does the law directly advance the government’s interest?
4. Whether it is no more extensive than necessary to serve that interest (narrowly tailored)
a. Is the regulation of speech no more extensive than necessary to achieve the government’s
interest.
iii. Commercial speech that can be regulated
1. Advertising of illegal activity
2. False or deceptive advertising
3. True advertising that inherently risks becoming false or deceptive
4. Commercial speech that needs to be regulated to achieve other goals (like tobacco advertising
regulation to promote health)
a. Regulate advertisement to discourage harmful behavior.
3. 1 Amendment Limits on Tort Liability (Defamation, Invasion of Privacy)
st

a. The limit on tort depends on the identity of the plaintiff and the nature of the subject matter
b. Categories of situations:
i. Plaintiff is a public official or running for public office, or a public figure
1. New York Times Standard to recover:
a. The plaintiff must be a public official or running for public office;
b. The plaintiff must prove his case with clear and convincing evidence;
c. The plaintiff must prove falsity of the statements; AND
d. The plaintiff must prove actual malice (that the defendant knew the statement was false or
acted with reckless disregard of the truth
22
 ii. Plaintiff is a private figure and the matter is of public concern
iii. Plaintiff is a private figure and the matter is not of public concern.

10. FIRST AMENDMENT – FREEDOM OF ASSOCIATION

A. Background
i.
Freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of liberty
1. Fundamental right protected by the 1st amendment through the due process clause of 14th
amendment
ii. Effective advocacy of both public and private points of view, particularly controversial ones is undeniably
enhanced by group association
iii. There is a close nexus between freedom of speech and assembly.
iv. It doesn’t matter whether the beliefs sought to be advanced by association pertain to political, economic,
religious, or cultural matters – state action which may have the effect of curtailing the freedom of association
is subject to the closest scrutiny.
v. Freedom to speak, associate, and exercise religion come with a corollary right to not speak, not associate, and
not exercise religion
B. Compulsory Disclosure of Membership
i.
Subject to strict scrutiny if the disclosure will inhibit a persons ability to freely associate.
ii.
Cases
1. NAACP v. Alabama
a. Invalid disclosure requirement.
b. NAACP made a showing that the compelled disclosure would severely inhibit their members right
to associate
c. State failed to show a state interest that would justify the burden
2. Buckley v. Valeo
a. Valid disclosure requirement
b. P failed to establish that the disclosure requirement would burden their 1st amend right to
associate
c. Gov established a substantial government interest that was directly served by the disclosure
requirement.
i. To prevent corruption and disseminate information to the public about political
process.
C. Compulsory Expression
i. Compelled speech violates the first amendment
ii. Under the 1st amendment a speaker has the autonomy to choose the content of its own message – Hurley v.
Irish-American LGBTQ of Boston
iii. It is unconstitutional to force participants to contribute to political candidate and to express political views
unrelated to its duties as exclusive bargaining representative – Abood
iv. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning. A law
commanding involuntary affirmation of objected-to beliefs would require even more immediate and urgent
grounds than a law demanding silence. – Janus
v. Subject to strict scrutiny
vi. Cases
1. Abood
a. Overturned by Janus
b. Union compelled collective bargaining fees
2. Harris
a. Health care workers as union members
b. Unconstitutional compelled expression
3. Janus
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 a. Overturned Abood
b. Unconstitutional to compel fees for union collective bargaining.
D. Compulsory Association
i. Freedom of association would protect a right to discriminate only if it is intimate association or where the
discrimination is integral to express activity. Absent of either of these two ideas – the gov has a compelling
gov interest in stopping discrimination
ii. Forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if
the presence of that person affects in a significant way the group’ ability to advocate public or private
viewpoints
1. While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to
interfere with speech for no better reason than promoting an approved message or discouraging a
disfavored one, however Enlighted either purpose may strike the gov. – hurley
iii. Subject to strict scrutiny
iv. Cases
1. Roberts v. Jaycee
a. Freedom of association is not absolute – gov can infringe to further a compelling interest
b. Totality of the circumstances test to determine how intimate the relationship of the group is
i. Court reviews the size, purpose, policies, selectivity, personalities, qualities, interests,
and other characteristics that may be important.
c. More intimate = more 1st amend protection
2. Boy Scouts of America v. Dale
a. Freedom of association does protect the right to discriminate in limited circumstances (exceptions
below)
i. If the activity is an intimate association (small, private gathering) freedom of
association would protect the right to discriminate
ii. If the discrimination is integral to the expressive activity then the freedom of
association protects the right to discriminate
1. Ex: KKK excluding African americans or jews because of their key message
b. Court gives deference to an associations assertion regarding the nature of its expression and also
to an associations view of what would impair its expression
c. Two step analysis to see if forced association is unconstitutional:
i. 1 st question - Is the group expressing something collectively?
1. Court declared that the group gets to determine its own expressive message
ii. 2 nd question - 2nd question – will the gov action affect their ability to express their
views?
1. Requires the court to review the groups of homosexuality to determine if forcing them to
accept homosexuals infringes their expression.
2. Boy scouts say that homosexuality goes against their expression and it is not the role of the
court to reject the groups expressed values because they disagree with them. Because the
record reflects written evidence of the groups viewpoint – they must accept the assertion
a. Forcing the association to accept gay people is unconstitutional. Unlike the Jaycee case,
forcing association here would directly interfere with the groups ability to express its ideas
and in fact would force them to express an idea they do not want.

11. FIRST AMENDMENT –RELIGION

A. Background
i. Two clauses that protect religion belief and action
1. Free exercise clause
2. Establishment clause
ii. The clauses are complementary
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B. Free Exercise Clause
i. Background
1. The government may not compel or punish religious beliefs
2. The freedom to hold religious beliefs and opinions is absolute
3. The free exercise clause does not provide absolute protection for religiously motivated conduct
4. Laws of general applicability only need to meet rational basis review
5. Laws directed a religious practices have to meet strict scrutiny
ii. Conduct
1. Reynolds v. United States
a. Gov can regulate conduct but NOT belief
iii. Neutral Laws of General Applicability
1. Sherbert v. Verner
a. Unemployment benefit for Saturday sabbath
b. Unconstitutional
2. Employment Division, Dept. Human Resources of Oregon v. Smith
a. Fired for ingesting peyote
b. Laws of general applicability that have incidental effects on free exercise of religion do NOT need
to pass strict scrutiny
c. Only laws that discriminate against a religion have to survive strict scrutiny
d. Peyote law is constitutional despite its incidental effect on religion
3. Church of Lukumi Babalu v. City of Hialeah
a. If a neutral law of general applicability has objective to inhibit or compel religion it may be
subject to strict scrutiny if the facts establish that objective
b. Santoria law is unconstitutional despite the fact it was neutral and of general applicability
because the law clearly had an objective to prohibit religion. As such, the law was subject to strict
scrutiny and failed
iv. Laws that clearly discriminate against religion
1. Trinity Lutheran Church v. Comer
a. Religious institution denied a government benefit solely because they were affiliated with a
religion.
b. Law is unconstitutional because the gov could not pass strict scrutiny – no asserted compelling
government interest
v. Congressional Response – RFRA
1. Under RFRA it doesn’t matter if the law is neutral or of general applicability – if it imposes a
substantial burden on religion then it is subject to strict scrutiny
2. Burwell v. Hobby Lobby Stores
a. Even though the neutral law is of general applicability, there is a significant burden under RFRA
b. Government contraceptive mandate is unconstitutional because it fails strict scrutiny
i. Gov did establish a compelling gov interest
ii. Gov fails the means analysis because there is a less restrictive alternative to achieve
the government interest.
C. Establishment Clause
i. Background
1. “Congress shall make no law respecting an establishment of religion
2. Purpose of the establishment clause is to afford protection against sponsorship, financial support, and
active involvement of the sovereign in religious activity” – Walz v. Tax Commission
ii. Violating the clause
1. The government violates the establishment clause if it discriminates among religious groups. Such
discrimination will be allowed if strict scrutiny is met
2. If there is not discrimination, Lemon test - which holds that the Government violates the establishment
clause if:
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 a. the government’s primary purpose is to advance religion; or
b. Or if the principle effect is to aid or inhibit religion; or
c. Or if there is excessive government entanglement with religion
iii. Entanglement
1. Lemon v. Kurtzman
a. Unconstitutional
iv. Endorsement
1. Marsh v. Chambers
a. Constitutional
2. Town of Greece
a. constitutional
3. Lee v. Weisman
a. unconstitutional
v. Purpose to advance religion
1. McCreary County v. ACLU of Kentucky
a. Unconstitutional
2. Van Orden v. Perry
a. Constitutional

12. SECOND AMENDMENT

A. Background
i.
The core of the second amendment is the individual’s right to keep and bear arms for the purpose of self-
defense in the home.
1. Usually flat out bans will implicate the core
ii. Outside the core will not infringe on the right to keep and bear arms for the purpose of self-defense in ones
home
1. Regulations outside the home will not implicate the core
B. Level of Scrutiny
i. Regulation that implicate AND burden the core – Strict Scrutiny
ii. Regulation that do NOT burden the core – intermediate
C. Cases
i. District of Columbia v. Heller - 934
1. Complete ban of guns = subject to strict scrutiny
a. Regulation fails strict scrutiny
2. The right to keep and bear arms for the purpose of self-defense in one’s home is at its highest in the
home.
ii. McDonald v. City of Chicago - 957
1. Ban on guns in Chicago = subject to strict
2. The 2nd amendment applies to the states
a. If the right is deeply rooted in our nation’s history and tradition then the right is incorporated
against the states.
iii. Ezell v. City of Chicago – 979
1. Ban on firing ranges in the city of Chicago = subject to strict
2. The right to possess firearms for protection has a corresponding right to acquire and maintain
proficiency in their use
a. The core right wouldn’t mean much without the training and practice to make it effective.
iv. Teixeira v. County of Almadea – 984
1. Regulation on the right to purchase and sell firearms = subject to intermediate scrutiny
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 a. Zoning Ordinance that effectively prohibited firearms retail stores in the city
2. “if the right of the people to keep and bear arms is to have any force the people must have a right to
acquire the firearms they intend to keep and bear”
a. Where a right depends on a subsidiary activity the right extends to the subsidiary activity as well

13. TAKINGS
A. Background
i.
Questions to ask for takings analysis
1. Is it a taking?
a. Physical taking; OR
i. A permanent appropriation or permanent invasion (no matter how small or if its for a
limited period of time)
1. Personal property of intangible things
2. Ex: phone line that was forced on house roof
b. Regulatory taking
i. Government regulates your property in such a way that it deprives the property of all
economic value
ii. Test is “when the government goes too far”
1. Looks at the totality of the circumstances
2. Is it for public use? (private use is unconstitutional)
a. Does the public derive some public benefit from it?
i. Ex: economic revitalization, jobs for the city, etc.
ii. A use will be held to be “public” as long as it is related to some legitimate public
purpose – health, welfare, safety, moral, social, economic , political, or aesthetic ends.
1. The gov can even authorize giving the property to private enterprises AS LONG as the taking
be create a public advantage
a. Kelo v. City of New London
3. Did the government pay just compensation?
a. Fair market value of the property at the time of the taking
ii. Court review of takings
1. Court will not review underlying decisions to take the property, the will only evaluate if it was a
taking, if it was for public use, and if there was just compensation
B. Regulations vs. Takings
i.
If the regulation denies the landowner of ALL economic use of his land the regulation = a taking
ii.
If the regulation changes its use, decreases its value, or denies it most beneficial use BUT there is still
remaining economic use of the land = NOT A TAKING
C. Cases
i. Kelo v. City of New London
1. A city adopted an integrated development plan to revitalize its ailing economy
2. by buying up privately held land in its riverfront area, developing some land into parks, and
transferring the rest to developers who would open marinas, stores,
3. etc.
4. The Supreme Court held that a taking is for public use so long as the government acts out of a
reasonable belief that the taking will benefit the public, and taking private property to promote
economic development has long been accepted as a public use.
ii. Pennsylvania Coal Co. v. Mahon
1. The general rule is that while a property may be regulated to a certain extent – if the regulation goes
too far it will be recognized as a taking

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