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CONSTITUIONAL LAW II PROFESSOR KANG EQUAL PROTECTION: MUST HAVE STATE ACTION!!!!!

(RECITE THIS ON EXAM) 14 Amendment: Equal Protection Clause: No state shall deny to any person within its jurisdiction the equal protection of the laws. I. Equal Protection Analysis: LOOK AT SHEET A. Equal Protection can be divided into 3 questions: BEFORE ANYTHING: IS THERE STATE ACTION? YES, THEN 14TH 1. What is the classification? (Does it set up a class being discriminated) a) 2 ways to determine the existence of classifications: 1 Classification is on the face of the law 2 If law is facially neutral, there is discriminatory purpose for the law and a discriminatory impact to the law (Quasi-Suspect Class) (a) Look at discriminatory legislative intent when dealing with this issue. If its there, then you use SS. (b) See if the law favors one group more than another. (c) Ex: Washington v. Davis: Blacks are complaining of Test 21 b/c they say it has discriminatory impact and favors whites b/c the blacks fail the test more. (i) COURT SAID TEST WAS CONSTITUTIONAL (ii) The Ps were unable to prove that the test was in place to discriminate against blacks. They must show INTENT. The test showed a relationship b/w good cops and bad cops. Therefore, it was under rational review. (d) It is very difficult to show there is discrimination on the mind of the legislature. (e) Its easy to show discriminatory impact but the purpose is hard to prove. Prof. Charles Lawrence said that although discriminatory purpose may lack proof, in a society with a long history of discrimination, it can be presumed that the law is made for some discriminatory purpose. (f) Mclesky v. Kemp: Black men challenged the fact that black men were sentenced to die more than whites and said it is b/c of discrimination. Court rejected EP claim b/c it was not able to show purposeful discrimination. b) When thinking of discrimination, use the following traits on the exam to show the discrimination: 1 Social Stigma: like a sense of shame or dishonor based on their identity (Mentally retarded, hippies, homosexuals.) 2 Immutability: were you born with it (Race, origin, mental retarded) 3 History of Discrimination: has society been known to disfavor the group in question. (Any race other than white)
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2. What is the level of scrutiny? (Applies when state discriminates against a particular group) a) Strict Scrutiny: law must be necessary to achieve a compelling government purpose. 1 Used b/c it is unfair to penalize a person for traits the person did not choose and that the individual cannot change. 2 Applies to the following groups: (a) Race (i) Loving v. Virginia (ii) Palmori v. Sidoti (iii) Plessy v. Ferguson (iv) Brown v. Board of Education (v) Richmond v. Croson (vi) Grutter v. Bollinger (vii) Gratz v. Bollinger (b) National Origin (i) Korematsu v. US (c) Alienage-generally (i) Graham v. Richardson (d) Travel- but not foreign travel (e) Voting b) Intermediate Scrutiny: law must be substantially related to an important government purpose 1 Applies to the following groups: (a) Gender (i) US v. Virginia Military Inst. (ii) Mississippi Univ. for Women v. Hogan (iii) Craig v. Boren (b) Illegitimacy (c) Undocumented children c) Rational Basis Test: Law must be rationally related to legitimate government interest. 1 Applies to the following groups: (a) Age (i) Massachusetts Board of Retirement v. Murgia (b) Disability (i) Geduldig v. Aiello (c) Wealth (d) Sexual Orientations (i) Romer v. Evans (e) All other classifications (i) US Railroad Retirement v. Fritz (ii) NY Transit v. Beazer (iii) US v. Moreno (iv) City of Cleburne, TX v. Cleburne Living Center

(f) Congressional regulation of aliens (i) Plyler v. Doe (g) Alienage classifications related to self government and the democratic process Local School board, City Council, etc (i) Foley v. Connelie (ii) Ambach v. Norwick 3. Does this law meet that level of scrutiny? Is it over or under inclusive? a) Over Inclusive: people who should not be covered but are covered. b) Under Inclusive: people who should be covered but are not II. RATIONAL BASIS REVIEW: 90% Chance that it will NOT be unconstitutional A. General Information: 1. Applies to the following groups: a) Age b) Disability c) Wealth Sexual Orientation d) All other Classifications e) Alienage classifications such as short, tall, bad test taker, etc. 2. Court most likely rule in favor of the law even if it was not the governments purpose. 3. Look out for groups that are politically disfavored. 4. Questions to Ask: a) Does the law have a legitimate government purpose? 1 Legitimate purpose is to promote police power. b) Is the law rationally related to achieve its purpose? 5. Must it be an Actual Purpose OR is Conceivable Purpose Enough? a) Does NOT have to be actual purpose. b) Court has said that actual law behind law is irrelevant. c) Any conceivable legitimate purpose is sufficient. B. Types of Rational Review 1. Rational Review Vanilla Flavored: government will win a) US Railroad Retirement v. Fritz: Retirement fund would go bankrupt soon b/c it gave windfall to workers. Congress passed an act limiting the benefits to all retired workers in accordance with their years of service. 1 Court said that the reason legislature passed the act is irrelevant. They will give deference when it deals with social and economic acts. The court will make up a plausible reason if one is not present. b) Railway Express Agency v. New York: NY passed a statute that prohibited ads on trucks if it was not related to the trucks business. COURT SAID LAW WAS CONSITUTIONAL. They said it could be refined later. 1 Govt purpose was that people will get distracted with the ads and possible cause injury and accidents. 3

2 Is there a class? Yes, those businesses that wants to sell general ads and put them on their trucks. 3 Legitimate government interest? Yes, people are trying to protect people from injury, death, accidents. No, they are still allowing ads of the trucks own business, which is to say that those ads do not cause accidents. 4 Are means rationally related? (a) Over inclusive? Yes, many ads are not distracting (b) Under inclusive? Yes, they still allow ads that are distracting b/c the trucks own business can make very distracting ads. c) NY Transit v. Beazer: NY refuses to employ persons that use methadone or are on methadone treatment. The treatment had a high failure rate of 25%. Methadone was used to cure heroin addicts. These people were going to be in charge with serious safety concerns due to the positions being applied for such as cop, bus driver, etc. COURT SAID LAW IS CONSTITUTIONAL b/c a persons life is too valuable and there was too much uncertainty involved. 1 Is there a classification? Yes, people in rehab who were heroin addicts. 2 Legitimate government interests? Yes, the welfare, health, and safety of the people of NY. 3 Means chosen related? Yes, b/c it prevents people from applying that are within the class. (a) Over inclusive? Yes, b/c 75% of the people on the treatment does not go back to the use of heroin. Many people maybe able to perform the job. But court said too much uncertainty. (b) Under inclusive? No. d) Geduldig v. Aiello: A statute in CA set aside 1% of all wages for a disability insurance program. Pregnancy was excluded form the disability. The govt began to realize that they were losing money b/c of pregnancys high costs. CA got Rational Review and NOT Intermediate Scrutiny b/c they argued that, Yes, it is true that pregnant women are not getting coverage, but we are discriminating against people who are pregnant. We are not discriminating against women. 1 This was a very clever argument: Are all women pregnant? No, so then we dont discriminate against women. Only people who are pregnant. 2 COURT RULED EXCLUSION WAS CONSTITUTIONAL 3 Difference with US v. Virginia Military Institute is that they flat out discriminated against women.

2. Rational Review With Bite: court will be tough and government is not getting away with it. a) Romer v. Evans: Colorado passed a statute that prohibited homosexual protection at all legislative, executive, or judicial action at any state government level. COURT SAID LAW WAS UNCONSITUTIONAL. 1 Is there a class? Yes, homosexuals. 2 Legitimate government interest? Yes, provide protection to heterosexuals and uphold moral values. (a) No, b/c it does not encourage freedom of association such as a hotel not allowing homosexuals on a property. 3 Means Rationally Related? No b/c it forgets one group and it changes the State constitution. Homosexuals would basically have no protection or redress for anything. They cannot buy a home, groceries; take kids to daycare, etc. Everyone would deny them access to everything since they have no access. (a) Over inclusive? Yes b/c it covers everyone just b/c they are gay. Not b/c they are doing something. (b) Under inclusive? Yes b/c every person can be offended by any other, not only for sexual orientation, but b/c anything the person would not like about the other. b) US Dept. of Agriculture v. Moreno: Statute giving food stamps was amended and required relationship by blood or marriage (like a traditional family) in order to get food stamps. During this time, it was the hippy era. Congress was trying to punish hippies. COURT SAID LAW WAS UNCONSTITUTIONAL. 1 Is there a classification? Yes, people living below the poverty line and living together but are not part of a family. 2 Legitimate government interest? Yes, to prevent fraud by people getting stamps and selling them. The purpose was really to prevent hippies living together. 3 Rationally related? No, there are other means available. 4 Brennan said fraud is a legitimate interest but the purpose was not fraud b/c any person who could find work but refused to work cannot receive the stamps. Congress just wanted to show hatred and prejudice towards a group in society that was disliked. This is not one of the police powers. c) City of Cleburne, TX v. Cleburne Living Center: The City of Cleburne, TX passed a zoning ordinance that allowed the denial of a special use permit to a group of unrelated, mentally retarded persons who wished to share a residence. Since housing is not a fundamental right and retarded persons are not suspect classes, so the court applied RR. COURT RULED

ORDINANCE UNCONSTITUTIONAL b/c the sole reason the permit was denied was due to the plaintiffs mental condition. 1 Is there a class? Yes, mentally retarded people. 2 Legitimate government interest? NO, city argued that the moral of children would be inhibited. This was not a morality of children problem. The city preferred that the retards would not be in the area b/c the residents protested and said they would leave. The retards were the only ones that were deprived of a permit. 3 Rationally related? No. 4 This is just like Moreno case. Congressionally Approved Discrimination This case had a bit of RR with Bite d) Plyler v. Doe: Children in TX were deprived a public school education b/c of their undocumented status. 1 COURT RULED STATUTE UNCONSTITUTIONAL 2 Is there a classification? Yes, but TX says not against aliens but against criminals who were undocumented. They allow non-citizens, just not illegal immigrants. 3 Legitimate government interest? No, court ruled for the children b/c the parents chose for the kids. The kids cannot make those decisions. Court said this was a very important right. 4 Fundamental Right v. Very Important Right: FR receives the greatest protection and the IR only receives minimal protection. 5 Brennan said this was a very important right b/c it allows these children to be integrated to American society and so you are not subjected to the criminal sub-culture. Age Discrimination e) Massachusetts Board of Retirement v. Murgia: MA statute forces police officers to retire at age 50. Government said the work was very strenuous and would be a danger to the public b/c officers may not be able to perform the job fully. 1 COURT SAID STATUTE WAS CONSTITUTIONAL 2 Is there a classification? Yes, older officers. 3 Is there a legitimate govt interest? Yes, the govt seeks to protect the public by assuring physical preparedness of its uniformed police. 4 Is it rationally related? Yes, b/c physical disability declines with age. 5 Overinclusive? Yes, b/c many older men are in better shape than younger men. 6 Underinclusive? Yes, b/c a lot of younger men who may not be physically capable of performing the duties required.

3. Alienage Classification related to Self Government and Democratic Process 6

a) Foley v. Connelie: NY has statute that says persons have to be a US citizen to be police officers. 1 COURT RULED STATUTE AS CONSTITUTIONAL. 2 Legitimate government interest? Yes, b/c officers intrude on peoples rights. Since the position is related to the democratic process, to be a citizen is a valid and sufficient interest. 3 Means chosen rationally related? Yes, the requirement confines the performance to an important public responsibility as a police function and therefore citizenship bears a rational relationship. b) Ambach v. Norwick: Two (2) teachers were denied their teaching certifications b/c they refused to obtain their US citizenship. 1 COURT RULED STATUTE AS CONSTITUTIONAL b/c to be a public school teacher you are responsible for teaching the US ideals. If you are not a citizen and grew up in another country than you are not in touch with a persons civil liberties. 2 Legitimate government interest? Yes, (Health, Safety, Morals) b/c you are trying to promote the US ideals. 3 Rationally related to interest? Yes, it makes sense. Not the best form but definitely makes sense. III. STRICT SCRUTINY: 90% chance the government will lose. **ON EXAM YOU MUST CITE THE FOLLOWING IF DEALING WITH RACE: The law is subject to strict scrutiny of the law b/c it creates a racial classification. Korematsu. A. General Information: Defend the Defenseless. 1. Applies to the following groups: a) Race or Ethnicity b) National Origin c) Alienage d) Travel, but not foreign travel e) Voting 2. Court will most likely rule against the law. 3. Government has BOP that the law is necessary. 4. If the law reaches more people or conduct than necessary (over inclusive) or does not reach all of the people or conduct sought to be regulated (under inclusive), it will most likely get struck down. 5. Questions to Ask: a) Is there a compelling government purpose? 1 Compelling govt purposes include: health, safety, welfare, morals, national security during war, racial diversity in colleges. b) Is the law necessary to achieve that purpose? 1 Is there less restrictive means available?

6. Focus on discriminatory impact also. The discrimination does not have to bee on the face of the law. It can be on the secondary effect. B. Why Strict Scrutiny for these groups? 1. Race and origin are immutable traits. 2. It is unfair to discriminate against people for a characteristic that is acquired at birth and cannot be changed. 3. HOWEVER, the discrimination is tolerated if the government can prove that is necessary to achieve a compelling government purpose. C. Laws that Expressly Impose a Burden b/c of Race and National Origin 1. Korematsu v. US: The government on an executive order incarcerated US citizens of Japanese ancestry on the west coast during WWII. They gave them curfews and subjected them to confinement in a specific location. Government said the order was necessary to achieve a compelling government interest. Govt wanted to prevent espionage and sabotage. Japs were very loyal and t could not be ascertained as to who was loyal or disloyal to US. a) COURT RULED STATUTE CONSTITUTIONAL b/c it was a matter of national security which is a compelling government interest. b) Compelling government interest? Yes, we are in war. They did not sign oath of allegiance to the US. c) Law necessary? Yes, b/c on the whole, the safety of the US citizens is greater than the burden of a couple thousand. d) Overinclsuive? Yes, b/c there has not been a single act of turmoil. e) Underinclusive? All people in Hawaii Japs were not included. D. Government Action that Burdens Both Whites and Minorities 1. Loving v. Virginia: Black woman married a white man. Virginia had statute saying that if you are of non-white race you can marry anybody else that is a non-white race. Here, the law discriminated b/c it burdened both races. a) COURT FOUND STATUTE AS UNCONSTITUIONAL. b) Is there a classification? Yes, Racial classification. VA argues that it is not discriminatory b/c they punish whites and blacks equally. c) Compelling government interest? No, b/c VA said they put the statute in place to protect the white race. That is not a compelling government interest. 2. Palmori v. Sidoti: Court awarded custody of child to father b/c mother married a Negro. Here, the law recognized a racial prejudice and succumbed to it. a) COURT FOUND LAW UNCONSTITUIONAL. b) Is there a class? Yes. c) Compelling government interest? Father argued that his son will face social humiliation which the judge may be inclined to rule it as a compelling government interest. d) Necessary to achieve purpose? No, court said that they know racism is part of life but they do not have to give into it. E. Statute Requiring Separation of Races 8

1. Plessy v. Ferguson: The court said here that Separate but equal is equal. There was statute that said blacks had separate carriages than the whites on trains. The P was 7/8 white so he went to the white carriage. Strict scrutiny was not in effect yet. a) COURT RULED STATUTE CONSITUTIONAL B/C STRICT SCRUTINY WAS NOT AROUND YET and they said that each person received equal treatment; therefore, one group cannot feel inferior to the other. THIS IS NOT GOOD LAW ANYMORE. b) Is there a class? Yes, non-whites. c) Compelling government purpose? Yes, court said if the law was not upheld then there would be public disruption and fights. Although it is not national security, it is an important interest. d) This case would probably be decided differently now. Attack on Separate but Equal is Equal: 2. Brown v. Board of Education: Kansas had policy of segregating white children from non-white children. Brown challenged the school boards policy. School board said that as long as facilities are equal then they can go to different schools. Here, the blacks schools were breaking down and in horrible condition. a) COURT SAID SEPARATE BUT EQUAL CAN NEVER BE EQUAL. IT HAS NO PLACE IN SOCIETY, THEREFORE, IT IS UNCONSTITUTIONAL. b) Is there a class? Yes, blacks. c) Compelling government interest? No, school board was really worried about interracial marriage and interracial breeding. Court said that by having separate schooling, they are sending a message to black kids that white kids are better and they are not a part of true society. Court also says sociological problems b/c they will always feel they are less worthy. d) They based the argument on a study that black girls instead of choosing black dolls, they chose white dolls. They wanted to be like the whites instead of what they were. F. Racial Classifications Benefiting Minorities (Affirmative Action Cases) 1. Minorities are not discriminated against here, but the whites are adversely affected. 2. USE ON EXAM, THE EXAMPLE OF BALCKS BEING DISCRMINATED AND NOW LAWS ARE MADE TO BENEFIT THEM. 3. Strict Scrutiny is still applied. 4. Whenever you have one disadvantaged group and another group being highly benefited, you will create a high level of animosity. 5. When government attempts to remedy history of discrimination, it is ok. Cannot solely be racial discrimination at large. a) The government action must be narrowly tailored towards that intent.

6. Richmond v. Croson: Government tried to help minorities here. The discrimination is not against the minorities but is against the whites. The City of Richmond is trying to remedy past discrimination against groups. The majority of the construction business is owned by whites. There are very little minority owned construction business b/c of discrimination in giving them work. The city adopted affirmative action by giving 30% of general contracting jobs to minorities. a) COURT SAID ACTION WAS UNCONSTITUTIONAL b/c it denies certain citizens the opportunity to compete for a percentage of contracts based solely on their race. b) Compelling government interest? No, b/c they only wanted to increase minority owned business getting government work. They only aimed at remedying societal discrimination. The action would have been valid if they were trying to remedy specific past instances of discrimination. c) Was it necessary? No. 7. Adarand Constructors v. Pena: P Sued b/c it submitted the low bid on a sub-K for a government project but the sub-K job was given to a business controlled by socially and economically disadvantaged individuals b/c the GC would get pad more money from the government if he hired minority owned business. a) COURT SAID ACTION WAS UNCONSTITUTIONAL b/c the government cannot discriminate base on attempting to right the wrong. G. Use of Race to Benefit Minorities in College and University Admissions 1. Race is allowed as an admissions facto for colleges and universities but it is not permissible to add weight to the application b/c of it. a) However, it may be narrowly tailored and pass strict scrutiny. 2. A narrowly tailored procedure is done to ensure the means fit the compelling goal so closely that there is little or no possibility that the motive for justification was illegitimate racial prejudice. 3. The group that is not part of the favored racial and ethnic group must NOT be unduly burdened by the program. 4. These programs may not be permanent so watch for permanency or temporary status. 5. Grutter v. Bollinger: Michigan law school uses several factors in admissions decisions including race. The school was committed to have a racially diverse student body b/c it adds to the law school experience in order to get different opinions. There was no set number on racially diverse students they may admit. P had a 3.6 GPA and 161 LSAT but was denied admission. a) COURT SAID THEIR PRACTICE WAS CONSTITUTIONAL B/C they had narrowly tailored means for the procedure. b) Compelling government interest? Yes, having a diverse student body will exchange ideas and educate each other. B/c you will deal with people who are different than you. c) Means chosen necessary to achieve interest? Yes, b/c they do not have a set number of students to accept. They said the number fluctuates every year. 10

They also argued that some whites admitted had lower grades than the minorities did. d) What would not work? If they tried to make up for societal discrimination. 6. Gratz v. Bollinger: Michigan University uses point system for admissions wherein they award 20 points automatically for being a minority. a) COURT RULED THIS UNCONSTITUTIONAL b) Compelling government interest? Yes, to diversify the viewpoints of undergraduate students. c) Means hosen necessary? No, b/c they are offering too many points for being apart of a race. Although there is no quota, it still affects admissions of students that are not apart of the favored minorities. d) Overinclsuive? Yes, you are limiting perspectives b/c the students being admitted may not provide the viewpoints you are searching for. e) Underinclusive? Yes, b/c kids who grew up rich and poor would not be benefited b/c its not valued in the policy. And it would have been valuable to get those different perspectives. Others not covered, are sexual preferences and age, etc. H. Alienage Classifications ON EXAM CITE THE FOLLOWING: The 14th Amendment is not confined to protection of citizens. Yick Wo v. Hopkins 1. Strict Scrutiny used for discriminations against non-citizens. 2. BE CAREFUL: Rational review is used for alienage classifications related to selfgovt and the democratic process. (Local School board, City Council, etc) 3. Graham v. Richardson: Arizona statute denied welfare benefits to non-citizens. The P was an alien. a) COURT FOUND STATUTE UNCONSTITUTIONAL b) Court said the classifications based on alien status were inherently suspect b/c they are at a political disadvantage. Aliens have been perennial losers in the legislative process. c) Compelling government interest? Maybe, the government wants to preserve the limited welfare benefits for its own citizens. d) Are the means necessary? No, it was inadequate to exclude people who contribute to the state in some way. e) Overinclusive? Yes, some citizens do not deserve the benefits b/c they do nothing for the furtherance of the state. f) Underinclusive? Yes, the P truly became disabled and he truly needed the benefit. Excluding them does not serve the purpose of preserving benefits for those who need them. g) Additional Arguments: 1 Immutability: you are born with nationality 2 Social stigma: being an alien can be viewed as a social stigma since youre not a member of the community. 3 History of Discrimination: long history of discrimination against aliens. 11

IV. INTERMEDIATE SCRUTINY: 50% chance the govt will win or lose. ON FINAL EXAM CITE THE FOLLOWING: Any gender classification is subject to intermediate scrutiny. Craig v. Boren. A. General Information: 1. Applies to the following groups: a) Gender b) Illegitimacy: children out of wedlock c) Undocumented alien children. 2. Questions to Ask: a) Is there an important government purpose? b) Is the law substantially related to the purpose? 3. Cases to Focus on: a) Frontiero v. Richardson b) Craig v. Boren c) US v. Virginia d) Geduldig v. Aiello (OJO: Got rational review b/c of the clever argument) 4. Gender based action must show an exceedingly persuasive justification. B. Intermediate Scrutiny 1. Craig v. Boren: Statute prohibited the sale of beer to males until 21 yrs of age but females were allowed to buy beer at age 18. a) COURT RULED STATUTE WAS UNCONSTITUTIONAL b/c the statistics showed no correlation b/w gender and DUI. Brennan wanted to do away with stereotypes b/c of his fear that it would lead to something greater. For example, women not being able to do anything b/c they are not capable of doing certain things. b) Important government interest? Yes, government said traffic safety and showed statistical evidence that women were more mature than men when dealing with alcohol. c) The means substantially related? A woman being less likely to drink and drive is more like a compliment, not a stereotype. But they are saying that the women are goodie goodies and that men are the bad ones in society. d) Overinclusive? Yes, b/c there are many 18yr old males that are good and many 18yr old females that are bad. C. Gender with Invidious Discrimination using Debilitating Stereotype 1. Intermediate Review with Bite is applied here. There must be an exceedingly persuasive justification. 2. US v. VA (VMI): Virginia school only allows men to attend. NO WOMEN. Virginia proposed VWIL for women only. a) COURT RULED SCHOOLS PROCEDURE UNCONSTITUTIONAL b) Is there a gender classification? Yes b/c women that want rigorous education are deprived c) Is there an important government interest? VMI said they were trying to provide a quality rigorous education.

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d) Were the means substantially related? No, b/c the program was not even done by many men b/c it was very physically rigorous and terrorized these men. e) Overinclusive? Yes, b/c they allowed men that did not even qualify to attend. f) Underinclusive? Yes, b/c there is many women that can handle the physiological torture that the men cannot handle. g) Difference from Craig v. Boren b/c VMI deals with a much more important right which is education. In Craig it is drinking. h) Difference from Frontiero v. Richardson is that in VMI they totally exclude women and here they systematically exclude them. 3. In limited circumstances, gender based classification favoring one sex can be justified if it intentionally and directly assists the members of the sex that is disproportionately burdened. (Ex: helping women to become doctors instead of nurses) 4. Mississippi University for Women v. Hogan: P was male that applied to all girls school that specialized in nursing. He would have qualified but the school was for women only. By excluding the men from the school, the university showed that nursing is stereotypically left for women. The school showed nothing that women lack opportunity in the nursing field. a) COURT RULED STATUTE WAS UNCONSTITUTIONAL. b) Is there a gender classification? Yes, men are not allowed in school. c) Is there an important government purpose? The school says they are trying to help women become nurses in the US. They further state that if men are in the classroom then the women will not concentrate. The problem was that 98% of the nurses in the US were women. d) Court said they should have created opportunities to become doctors. Nurses are good, but by trying to get women to become nurses imply that they cannot become doctors b/c they dont have enough brains. e) Distinguished from VMI: VMI wanted to perpetuate negative stereotypes. 5. Hypothetical: Two-Story Dorm n UM. The requirements to live there are you must be a woman and must be in engineering. They did this b/c only 2 girls graduated in engineering. They said it was a masculine field and girls may get feeling she is not wanted there so they limit it for the girls. The men will say they are trying to get rid of a stereotype that they are trying to rid themselves of so by them staying there would be unwise. a) Important government interest? Yes, they want to graduate more women where as nursing school was already saturated with women. b) Is it substantially related? Yes.

Three Standards of Review under EPC

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A. SS (Race, Ethnicity, National Origin, & Alienage) Defend the defenseless. When SS is applied, the govt. will have the burden of proving that law is necessary. If a law reaches more people or conduct than necessary (overinclusive) or does not reach all of the people or conduct sought to be regulated (underinclusive), it will likely be struck down. a. Is there a compelling govt. interest? i. Health, safety, welfare, and morals 1.) Moralscould say that morals as that were rejected in Moreno but then Scalias dissent in Lawrence says laws have been passed on grounds of morals all the time (i.e. pedophilia, bigamy, etc.) ii. Natl sec. during war + racial diversity in colleges. b. Are the means narrowly tailored? i. Less restrictive means available? ii. Is it substantially underinclusive? iii. Is it substantially overinclusive? 1.) Korematsu (war) 2.) Loving (marriage) Race (on its face) 3.) Palmori (custody) 4.) Brown (segregated) 5.) Davis (police exam) RR Race Neutral 6.) Yick Wo (laundry license) SS But For Test 7.) McCleskey (death penalty) RR 8.) Bakke (16/100 slots set aside for minoritiesquota system) 9.) Croson (minority contractors) Remedial Action 10.) Pena (federal highway) Remedial Legislature 11.) Grutter (white girl denied) 12.) Gratz (Michigan points system) 13.) Graham (benefits for residents15 yr. residency req.) B. IR (Gender & Illegitimacy) a. Vanilla Flavor IR (look for debilitating stereotypes) i. Is there an important government interest? (I.e. highway safety). ii. Are the means chosen substantially related? 1.) Craig (beer) 2.) VMI (single-sex college) 3.) Hogan (nurse school) 4.) Califano v. Webster (1977): Social security and tax exemptions that entitle women to greater benefits to make up for past discrimination are invalid. b. IR w/ bite i. Is there an important govt. interest? ii. Is there an exceedingly persuasive justification? 1.) VMI (single-sex college) C. RR a. Vanilla Flavor RR under RR, a law will be upheld if it is rationally related to a legitimate govt. interest. BOP is on the challenger, and is upheld unless the law is arbitrary or irrational. Here, the Court usually defers to a legislatures decision that a law is rational.

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i. Is there a legitimate govt. interest? White supremacy and animus toward unpopular social group will NEVER be a leg. int. ii. Are the means rationally related? 1.) Fritz (benefits) 2.) Railway (Adsunderinclusive; still, it passes RR) 3.) Beazer (Methadoneunderinclusive; still, it passes RR) 4.) Geduldig (pregnancy) 5.) Lee Optical (any conceivable related means) b. RR w/ bite i. Is there a legitimate govt. interest? ii. Very closely related means? 1.) Moreno (food stamps) 2.) Romer (homosexuals) 3.) Cleburne (mentally retarded

SDP ANALYSIS
The Court has said that FRs include those liberties that are deeply rooted in this Nations history and tradition. The following cases suggest that specific guarantees in the 14th amendments DPC have penumbras, formed by emanation from those guarantees that help give them life and substance. Various guarantees create zones of privacy. Three kinds of rights in the Constitution: (Under the rights section, the first thing you ask is what kind of right are you dealing with)? Fundamental rights: If a law infringes a fundamental right, its subject to heightened review. Ask: 1.) Important govt. interest? 2.) Are the means narrowly tailored? [Ask if there are less restrictive means?] Non-fundamental rights = RR Important government right: Plyler v. Doe [Look for a quasi suspect class] (Used rarely, but available). Rights derived from the 14th amendment SDPC in reference to liberty: Rights of Privacy include the following:

a. Right to get married i. Loving v. VA (1967) (C.J Warren) ii. Zablocki v. Redhail (1978) (J. Marshall): state cant stop marriage just b/c husband owes back child support b. Right to teach your kids your language (German) i. Meyers v Nebraska (1923) (J. McReynolds): NE law prohibited people from teaching any language other than English, ct said teaching of other languages is a familial tradition c. Right to teach your kids your religion

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i. Pierce v. Society of Sisters (1923) (J. McReynolds): teaching your kids


your religion is a familial tradition. ii. Parents must send all normal children 8 to 16 years old to public school Right to control who is a part of your household i. Moore v. City of East Cleveland (1977) (J. Powell): city ordinance narrowly defines family to exclude a womans grandkids. Compelling govt. interest? Yes, to prevent overcrowding, congestion, burdens on school system. The statutes means, however, are not narrowly tailored to accomplish its ends (they would go to jail). i. Fund right, yes. Statute is infringing b/c would go to jail and pay fine. Right to procreate/bodily autonomy i. Skinner v. Oklahoma (1942) (J. Douglas): chicken thief was going to be sterilized pursuant to an OK law that required sterilization of habitual offenders. Right to contraceptives i. Griswold v. CT (1965) (J. Douglas): Ct law said no one can buy condoms, married couples can have condoms; however, the Court has indicated that there is a marital zone of privacy, so it will likely grant broader protection to private sexual relations between married persons than it does concerning non-married persons. 1. minority perspectiveits about right to sexual intimacy 2. majority perspectiveits about the right to have kids or not ii. The choice to buy contraceptives, are akin to the relationship in the privacy of a bedroom, between a man and a women, that to criminalize the act, would surely deter those who would like the option to make such a choice, and would invade the autonomy of the relationship. The government could have regulated the use, rather than prohibiting and criminalizing the act. iii. Eisenstadt v. Baird (1972) (J. Brennan): Court reaffirmed and extended Griswold. Professor gives single woman prophylactic foam, gets locked up, anyone can use condoms. Right to refuse treatment (but not absolute) i. Cruzan v. Missouri (1990) (J. Rehnquist): Parents of girl in vegetative state sought court permission to have their daughters life terminated when hospital refused to discontinue lifesaving treatment without a court order. ii. Historically, the CL recognized a notion of bodily integrity is embodied in the requirement that informed consent is generally required before medical treatment can be administered. The logical corollary of this doctrine is that the patient possesses a right to not consent, or to refuse medical treatment. iii. Ct. concluded that a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person in a persistent vegetative state. iv. Ct. did not allow parents to terminate daughters life; however, Cruzan stands for the proposition that legally competent persons most likely have a right, protected by the constitution, to refuse life-saving medical treatment. Right to have consensual homosexual sex in privacy of home

d.

e.

f.

g.

h.

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i.

j.

Right to interstate travel i. Saenz v. Roe (1999) (J. Stevens): where a woman who moved from AZ to CA was only allowed the same amount of welfare she was getting in AZ even when the cost of living was much higher 1. ct ruled that its means for saving money were not the least restrictive alternative 2. The Court has articulated and applied the right to travel primarily in evaluating laws that impose durational residency requirements; where a person must live in the jurisdiction for a specified amount of time in order to receive a benefit, i.e., welfare, voting, and divorces Right to abortion: (late in the 19th century, its prohibition came about due to Victorian morals). i. Here, you apply undue burden test. ii. Kang The court has found that there is a right to abortion under the 14th amendment DPC in reference to the word liberty.As the government, you want to make an argument that it is not based on gender; rather, against people that want to have abortions. iii. The constitution does not explicitly mention any right to privacy. In a line of decisions, however, going back perhaps as far as Union Pacific r. Co. v. Botsford (1891), the Court has recognized that a right of personal privacy, or a guarantee o certain areas or zones of privacy, does exist under the Constitution. iv. Roe v. Wade (1973) (J. Blackmun): the liberty in the DPC presupposes bodily autonomy, which implies the right to abortion w/o undue interference from state. 1. 1-3 months: the state cant do anything 2. 3-6 months: the state may pass laws to protect the mother but cant protect the fetus 3. 6-9 months: the fetus is becoming viable and the state can step in if it wants to. a. It can compel the mother to watch video off dead fetuses, enforce 24 hours waiting period, can prohibit all together b. Very cunning and very strategic by Scalias dissent: He said OConnor did away with the trimester scheme and instituted the viability test because OConnor does not believe abortion is a fundamental right. v. Planned Parenthood v. Casey (1992) (Plurality opinion) (J.s OKS): Reaffirms the right of abortion as a fundamental right; further, it sets out the undue burden test, which applies to laws regulating/infringing on the right to an abortion. 1. Here, the Ct. recognizes that the trimester framework (Roe) presents a danger to a womens right to an abortion: As technology advances, the right to abortion diminishes. 2. PA enacted Abortion Control Act. ABC requires a 24-hr waiting req. Kangs colleague at Michigan wrote article arguing the waiting period is a violation of the EPC b/c it perpetuates debilitating stereotypes about women. Its as if the legislatures hunch is that women do not think about the abortion enough (get

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3.

4.

5.

6.

7.

a good night sleep and really think about it). It implies that women are too emotional and not rational. Political and economic lines. Women enjoy being home with childrenthey cannot go out and get a job etc. Its debilitating girls in a political and economic way. Court asks: does the statute present an undue burden to a womens right to abortion? A law is an undue burden if it presents a substantial obstacle to the womans decision to get an abortion. If something presents an undue burden, you ask: a. Is there a compelling govt. interest? b. Are the means narrowly tailored? Kang: if the state regulation creates a substantial obstacle to a womans decision to an abortion before viability, its an undue burden UNLESS its to protect the mother; however, a statute will not impose a substantial obstacle or an undue burden simply b/c it has the incidental effect of making it more difficult or more expensive to obtain an abortion. The following are NOT undue burdens if they take place before the fetus is viablethat is, if the fetus can live (it can live on its own outside the womb). a. 24 hour waiting period requirement (nobodys being abused, unlike the spousal notification) i. Doesnt matter if you only have enough money to buy one ride to the clinic 1. Harris v. McRae: the feds dont have to pay for abortions 2. Maher v. Roe (1977) (J. Powell): state doesnt have to pay for abortions. b. Receive literature at clinic i. But would be an undue burden if forced to read it. ii. If they made you look at an ultrasound, this would also constitute undue burden. c. Minor needs parental/judicial consent i. Casey (1992): Ct. said this is subject to RR. 1. Is there a legitimate govt. interest? a. Yes. To ensure she knows what shes doing. 2. Are the means chosen rationally related? a. Yes. There is a reasonable basis that the req. will ensure the minor will have ample time to reflect maturely about her choice. ii. Bellotti v. Baird (1979) (J. Powell): parental consent does not count as a substantial obstacle as long as there is an alternative to go in front of a judge for consent. d. Certain records kept at clinic

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e. Requirement that doctors notify parents after the abortion i. HL v. Matheson said this is not an undue burden f. Requirement that notice be given to parents before the abortion is performed i. Hodgson v. Minnesota said this is not an undue burden. 8. Requiring SPOUSAL CONSENT is an undue burdenthat is, because it places a substantial obstacle to the womens right to get an abortion (theory is that women will be physically and emotionally abused by angry boyfriend). a. Planned Parenthood v. Casey (1992) (J.s OConnor): spousal consent is an undue burden b/c it could put womans lifea victim of spousal abusein a lifethreatening situation, especially since the statute b. Perhaps, a mans right to decide to have a child can be a compelling govt. interest, but the means chosen are not the least restrictive alternatives available. i. You can require that the woman ONLY notify the man (constructive notice), and not seek consent; it can be done via e-mail. The woman would not have to sign the ct. document. 9. Outlawing partial birth abortion is an undue burden a. Stenberg v. Carhart (2000) (J. Breyer): A state may not completely proscribe partial-birth abortions since they are the most commonly used methods for pre-viability. But a state could bar one type of partial-birth abortion if there are other adequate, safe methods of abortion available and the law provides an exception for those instances when the banned procedure is necessary to preserve the life or health of the mother. 2. Kang: Difference between Rust & Geduldig to that of Casey: a. Give me money! Rust and Geduldig ask for money, whereas Casey asks for the right to an abortion. Even though the Court did not say in Geduldig and Rust, the rationale behind that is about government financial support. It is less about the fundamental right and more about the subsidy. i. Rust v. Sullivan (1991) (J. Rehnquist): Public Health Services Act provides fed. Funding for family-planning services. Dept. of Health and Human Services is authorized to give grants to health care facilities to offer family planning care. Act provides: None of the funds . . . shall be used in programs where abortion is a method of family planning. Purpose was to ensure Title X funds are used only to support contraception, population research, infertility treatment, etc. Ct. held statutory prohibition was const. ii. First, regulations are not VP discrimination. When govt. decides to fund programs encouraging activities it believes to be in the public interest, it is not also required to fund alternative approaches. The govt. has simply chosen to fund one program to the exclusion of the other. 1. Ex: When Congress funded the National Endowment for Democracy, it was not also req. to also encourage fascism.

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iii. Second, these regulations do not implicate unconstitutional conditions


doctrine govt. cannot condition a benefit on giving up a constitutional right, nor can it deny any benefits for exercising ones constitutional rights. 1. Here, regulations do not deny benefits, but merely ensure public funds are spent for the purposed authorized by the statute. Regulations do not force people to give up pro-abortion speech. iv. Ct. adopts the view that when the govt. appropriates funds to establish a program, it may make regulation which ensure the funding is restricted to activities within the statutes scope. 3. Is that fundamental right being infringed? a. Zablocki v. Redhail (1978) (J. Marshall): a law infringes on the fundamental right when it directly and substantially interferes with that right. 4. If not fundamental or only regulated, then we apply rational review (except when its a very important right). a. Right to contract is not fundamental right i. West Coast Hotel v. Parish (1937) (J. Hughes): WA passes min. wage law under the rationale that women have less bargaining power, and the resulting exploitation of women will become everyones problem. The Ct. upholds. ii. Williams v. Lee Optical (1955) (J. Douglas): This is a SDPC case. OK had a law that said only an ophthalmologist and optometrist could fit old lenses into new ones (opticians couldnt do it at all). The optician argued right to K before the Court (retarded). The SC upheld. 1. Kang says this shows how easy it is to pass RR. The Ct. made up possible legitimate govt. interests itself (Atty. just listened). b. Right to refuse treatment is a fundamental right but is not absolute i. Living wills are OK ii. Cruzan v. Missouri (1990) (C.J. Rehnquist): a state may apply a clear and convincing evidence standard to show consent of the victim in proceedings where a guardian seeks to discontinue life support. c. No right to assisted suicide i. Washington v. Glucksberg (1997) (C.J. Rehnquist): Right to die has never been a part of American tradition d. Right to a private education education i. San Antonio v. Rodriguez (1973) (J. Powell): poor kids want tax money from the rich kids district to fund a better school 5. Kangs Hypothetical: a. Do you think under the phrase liberty, there is a substantive DPC right for gay marriage? Answer b. You want to start with the closest possible liberty rights (i.e. Marriage) i. 1.) Marriage (Griswold, Loving, and Zablocki) J. Kennedy in Griswold, mentioned a man and a woman. J. Douglas mentioned in

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Griswold that we wanted to promote marriage is for the man and woman to be able to have a child. 1. Not just a factual compulsion like equal protection or first amendment ii. 2.) Gay Marriage as a fundamental right: 1. Cite to Moore for the proposition that the Court has recognized a tradition to live as a family unit; those people that love each other, want privacy in the home, and would like the traditional financial breaks and other legality implicit in the marriage between two individuals. 2. Make the argument: Griswold J. Douglas said that marriage between a man and a woman is to explore the meaning of life together (tie homosexuality intimacy and marriage; this will give you the A paper). Homosexual intimacy can ALSO explore this just as stated in Griswold. c. The Federal Govt. can discriminate against citizens (EPC). However, you can invoke a 14th amendment argument under the 5th amendment. i. However, in Bolling v. Sharpe, C.J. Warren randomly inserted the EPC IV. Two Standards of Review under SDP 6. SS (If the law infringesdirect & substantialon a FR, then its subject to SS) a. Is there a compelling govt. interest? i. Health, safety, welfare, and morals 1. Moralscould say that morals as that were rejected in Moreno but then Scalias dissent in Lawrence says laws have been passed on grounds of morals all the time (i.e. pedophilia, bigamy, etc.) ii. Natl sec. during war + racial diversity in colleges. b. Are the means narrowly tailored? i. Less restrictive means available? 1. Loving (marriage) 2. Zablocki (marriage/child support) 3. Moore (grandmotherkeeping the nuclear family together) Family 4. Meyer (German) 5. Skinner (sterilizationprocreation) 6. Griswold (contraceptivesmarried couples) 7. Eisenstadt (contraceptivessingles) 8. Cruzan (vegetable girlrefuse medical treatment) Life 9. Glucksberg (no right to diephysician-assisted suicide) 10. Roe (abortiontrimester scheme) 11. Casey (abortionViability: Undue Burden Test) 12. Stenberg (abortion: Partial-birth) Abortion 13. Maher (no govt. funding for abortion) 14. Bellotti (parent or judicial consent) 7. RR (If the law merely regulates a FR or anything else, its subject to RR)

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a. Vanilla Flavor RR i. Is there a legitimate govt. interest? White supremacy and animus toward unpopular social group will NEVER be a leg. int. ii. Are the means rationally related? 1. Contracts Clause: West Coast Hotel (Minimum wagenot a FR 2. THE CONTRACT CLAUSE: Article I, 10 provides that No State shallpassany Law impairing the Obligation to Contracts. This provision applies only if a State or local law interferes with existing contracts. 3. Contracts Clause: Blaisdell (Mortgagesurvived RR) 4. Freedom to practice profession: Lee Optical (not a FR)

8. Exceptions for very important rights (quasi-fundamental right) = Heightened scrutiny. a. Heightened Scrutiny i. Sexual intimacy 1. Lawrence: No gay sex. ii. Education 1. Plyler: children of illegal immigrants. Involves quasi-SC w/ quasi-FR. 2. San Antonio: Taxes = lower education a. Not quasi FR b. Not quasi SC i. It is, therefore, subject to plain old vanilla RR. ______________________________________________________________________________ ______________

PROCEDURAL DPC
Note: There is a right to PDP only when the govt. acts to deprive an INDIVIDUAL of life, liberty, or property. Is there a deprivation of a liberty interest? Is there a liberty, property, or life interest? A deprivation of liberty occurs if a person: i. Loses significant freedom of action; or ii. Is denied a freedom provided by the Constitution or a statute. i. Fundamental rights under the Constitution ii. Court recognized very important rights (i.e. welfare, private education, delivery of babies). a. How do we recognize what these rights are? b. Liberty: The term liberty includes more than just freedom from bodily restraints; it includes the right to contract and to engage in gainful employment. i. Paul v. Davis (1976) (J. Rehnquist): Injury to reputation in itself is not a deprivation of liberty or property; however, if governmental acts (statement of reasons given for termination of public employment) so injure a persons reputation that he will have lost significant

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employment or associational opportunities, there is a loss of property. 1. Here, shop sends out fliers to neighboring shops of those who have been accused of shoplifting; this doesnt necessarily mean anything, youve only been accused and therefore you have no liberty interest c. Roth: his termination could mean a bunch of things, not necessarily that he fucked up, no harm to reputation and therefore, no interest d. Property: Property includes more than personal belongings and realty, chattels, or money, but an abstract desire for (or a unilateral expectation) the benefit is not enough. There must be a legitimate claim or entitlement to the benefit under state or federal law. Roth. i. Board of Regents v. Roth (1972) (J. Stewart): Professor is on tenure track and is fired after year; his contract was only for year and ct said he had no property or liberty interest that was deprived from him. Id. 1. reasonable expectation factor: if you have a reasonable expectation in something, you have an interest a. i.e. if Roths contract was 2years long and they fired him after only a year b. contrast to a unilateral expectation, which is what the ct said Roth had in his employment 2. Reputation factor: if the deprivation hurts your reputation, then you have an interest in it. There can be a property interest in ones reputation. ii. Goss v. Lopez (1975) (J. White): There is a property interest in public education when school attendance is required. Thus, a significant suspension (e.g. 10 days) requires PDP. Here, kid gets expelled from school without notice or opportunity to be heard; this leads to only one conclusion: you fucked up, and therefore, you have a liberty interest; however, if the students presence poses a danger to persons or property, or threatens to disrupt the academic process, such notice and hearing may follow removal as soon as practicable. iii. Goldberg v. Kelly (1970) (J. Brennan): NY decided to terminate welfare benefits to certain

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families without requirement of prior notice or a hearing of any kind. 1. How important is the right for survival (another factor) 2. Here, the right was welfare, which was the sole source of food and waterpretty damn important. iv. Saenz v. Roe (1999) (J. Stevens): the right to interstate travel is a fundamental right and when it is deprived, the state must provide notice and an opportunity to be heard 1. limited someones source of food, water, vital necessities is a NO-NO b. Is there a deprivation? (must be arbitrary and capricious or shocks the conscience) i. Daniels v. Williams (1986) (J. Rehnquist): Fair process is required for intentional acts of the govt. or its employees. If an injury is caused to a person through the mere negligence of a govt. employee, there is no violation of the DPC. a. Sacramento v. Lewis (1998) b. (J. Souter): recklessness is OK (and not a deprivation) if it is the result of a high speed chase with no intent to harm suspects physically or to worsen there legal plight 1. Recklessness would not be OK if he did a wheely in the middle of a parade arbitrary 2. Factor into the analysis danger to third parties ii. DeShaney v. Winnebado County (1989) (J. Rehnquist): no deprivation when the state has undertook control of a childs life and then given back to abusive parentthe kids father deprived him of his liberty, the state didnt iii. Davidson v. Cannon (1986): when a prisoner is threatened, informs prison authorities and they simply forget, resulting in his getting beaten, this is not a deprivation 1. But contrast to Kangs hypo where prison authorities knew he was going to get beaten and purposely did nothing about it this is a deprivation.

c. What type of process is required? i. While all intentional governmental deprivations of life, liberty, or
property require fair process, what constitutes fair process in terms of the timing and scope of the hearing varies according to the circumstances of the deprivation. The Court will weigh: 1. The importance of the individual interest involved? 2. The value of specific procedural safeguards to that interest; and 3. The governmental interest in fiscal and administrative efficiency. ii. In each of the aforementioned, the Court will likely require fair procedures and an unbiased decision-maker. Person being deprived should also receive notice of the govt.s action and have an opportunity to respond before termination of the interest; however, the Court may

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allow a post-termination hearing in situations where a pre-termination hearing is highly impracticable. The Court has made the following: rulings with regard to specific types of deprivations: iii. Welfare Benefits: In Goldberg, due process required an evidentiary hearing prior to termination of welfare benefits. The recipient must have adequate and timely notice of the reasons for the proposed termination, the right to confront adverse witnesses, and the right to present his own arguments and evidence orally. Counsel need not be provided, but must be permitted. Decision must be based on evidence adduced there. iv. Disability Benefits: No prior evidentiary hearing is required for termination of disability benefits, as long as there is prior notice to the recipient, an opportunity to respond in writing, and a subsequent evidentiary hearing (w/ retroactive payment if the recipient prevails). RATIONALE: Disability benefits, unlike welfare benefits, are not based on financial need and hence are not vital. Matthews. v. Matthews v. Eldridge (1976) (J. Powell): set for the balancing test that determines what kind of procedure is appropriate for the FR or important right that is being infringed 1. Balance the: a. private interests b. risk of erroneous deprivation and probability value of additional safeguards c. govt.s interest 2. The Court ruled that disability benefits are not as important as welfare benefits and that the govt. doesnt have to give you an administrative hearing like the ct ruled in Goldberg a. All he had to do in Matthews was offer medical testimony that he was unable to work, whereas the additional evidence required for welfare benefits was much more difficult to produce IV. Test for Procedural DPC 1. Is there a deprivation of life, liberty, or property? a. Life: a job, your actual life, safety b. Liberty c. Property: Reputation ( i. If so, is there a reasonable expectation 1. Roth: Teachers tenure (reputation test) 2. How important is the interest? a. Is there a deprivation of a liberty interest? i. Deprivation: Arbitrary and capricious in a matter that shocks the conscience. 1. Arbitrary: Unable to generate a justification a. Lewis (motorcycle): Negligence doesnt meet the burden, but deliberateness does (i.e. Daniels: Prison pillow); maybe recklessness. ii. No affirmative right to governmental assistance 1. DeShaney (beaten-up kid) a. Scope of authority and control. 2. Goldberg (state welfare benefits taken away) a. Although not entitled to it, once you get it, must get DP.

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3. What procedures are due? a. Notice, hearing, and a lawyer Kang: Say the following: This particular person was deprived of his 14th amendment due process clause rights because he was deprived of his liberty interest in safety without due process (a notice and a hearing).

V. FIRST (1ST) AMENDMENT A. General Information: B. 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 people to peaceably assemble and petition the government for a redress of grievances. 1. The amendment is meant for the restriction of speech and press. 2. Four Justifications for Right of Free Speech a) Self Governance: there is something deeply anti-democratic with government telling you what to think and say. b) Discovery of Truth: if we have right of free speech, most likely we have diversity of perspectives, then we will most likely arrive at truth. c) Advancing Autonomy: self actualization of justification. Lets you tell the world who you are. d) Promoting Tolerance: get in habit to tolerating peoples speech that you cannot stand. Teaches you to deal with others which is key for democracy. C. Analysis for 1st Amendment: 1. Part 1: Is the speech protected? You must make sure the speech is a type that is protected. a) No Protection: 1st amendment does not protect the following: 1 Clear and Present Danger: The building is on fire. 2 Obscenity: 3 Child porn: adult porn is protected 4 Communication in furtherance of a criminal conspiracy 5 Libel or defamation 6 Fighting words 2. Part 2: Analyze the governments statute. What is the govt action or law? a) FOCUS ON PRIMARY EFFECTS OR SECONDARY EFFECTS OF SPEECH B/C OF THE STATUTE. 26

b) Strict Scrutiny: Content Based Restrictions are subjected to S.S. and require the govt showing that the regulation is necessary to achieve a compelling state interest and is narrowly drawn to achieve that end. 1 Unduly Vague: a laws regulating speech are void if they are so ambiguous that the reasonable person cannot tell what expression is forbidden and what is allowed. (a) It is unjust to punish a person without providing clear notice as to what conduct is prohibited. USE COATS TO DISTINGUISH!!!!! (b) Ex: Coats v. Cincinnati: Ohio statute prohibited 3 or more students from assembling on any sidewalk in a manner annoying to passers by. Court said it was too vague b/c what may be annoying to some is not to others. And no reasonable person could determine what a violation of the statute was and what was permitted. It also violated the right of free assembly and association. 2 Check for substantial over breadth: overbroad if it regulates substantially more speech than the Constitution allows to be regulated and a person to whom the law constitutionally is applied can argue that it would be unconstitutional as applied to others. (a) Laws that prohibit speech which allowed to be said (b) This restriction prohibits speech not overtly protected. Very broad in nature. Difficult to find. Make sure you see it!!!!! USE JEWS FOR JESUS TO DISTINGUISH!!! (c) Ex: LA v. Jews for Jesus: LAX airport passed resolution that said the terminal area prohibits any and all 1st amendment activities. Court said it was violation b/c a person even reading, wearing, or talking is in violation. Further, there was no conceivable government interest. ARGUE BOTH CONTENT BASED AND CONTENT NEUTRAL ON FINAL!!!!!!!!! IF NONE OF THE ABOVE TWO ITEMS, THEN MOVE INTO THE FOLLOWING FORMS OF PROHIBITED SPEECH!! 3 Content Based Discrimination: a law that by terms distinguishes favored speech from disfavored speech on basis of views and ideas expressed. The government cannot regulate based on context. If it does, it is presumptively invalid. There are 2 types of Content Based Discriminations: (a) Subject Matter Discrimination: cannot say anything about that specific principle. In other words, a particular matter cannot be discussed. (b) Viewpoint Discrimination: can only say good things regarding a specific principle. In other words, a particular viewpoint of a particular matter can only be discussed. This is when one group is allowed to have one opinion on a 27

subject and one group will be punished for having the opposite viewpoint. Punishes certain viewpoints or opines c) If you say no to 1 and 2 above, and say yes to SMD or VD, then you go to intermediate scrutiny below: d) Intermediate Scrutiny: T, P, M restrictions are acceptable so long as they are designed to serve substantial governmental interests and do not unreasonably limit alternatives of communication. 1 Content Neutral Discrimination OR T,P,M: also known as time, place, manner regulation (a) This ONLY applies to secondary effects of speech. (b) Time, Place, and Manner restrictions are acceptable so long as they are designed to serve substantial governmental interest and do not unreasonably limit alternative avenues of communication. (c) Content neutral justification must be truly unrelated to the desire to suppress speech and it must be unique to the speech suppressed as compared to the speech allowed. D. Distinction b/w Content Based and Content Neutral/TPM: 1. TBS vs. FCC: Statute said that any cable TV station must carry certain local channels. The purpose was to keep those people in area informed of what is happening in area b/c big TV networks would not give TV post to local areas. They would only give to ESPN, MTV, etc. a) Court said it was content neutral b/c it does not require to regulate whatever content is being portrayed. Therefore it was subject to IR. 1 COURT SAID IT WAS NOT VIOLATION OF 1ST. b) It was subject to IR because it affects the secondary effects of the speech. c) The argument to make here is that Congress is regulating the secondary effects b/c those little stations lack the financial wherewith all to buy any spots. They are trying to provide an equal opportunity for legal stations to compete with national stations. d) Important government interest: regulating the financial opportunities of smaller stations. e) Means Related: if it was HBO, they have the money to buy all the space they need. If they are limited b/c of the statute, then they can seek a spot on another channel b/c they have money. Yes it is related to purpose. E. Determining whether law is Content Based 1. Boos v. Barry: Washington D.C. statute had code that no signs within 500 ft of foreign embassy that would bring the foreign embassy disrepute. a) Profound national commitment to principle that debate on public issues should be uninhibited, robust, or wide open. NY Times v. Sullivan b) Court determined it was content based subject matter discrimination b/c they regulated the type of content regarding the foreign embassies. 1 COURT SAID, YES VIOLATION OF 1ST. c) It was subject to SS b/c it regulated the content. 28

d) Important Government Interest: protect dignity not constitutionally protected. It was really passed to prevent safety, traffic from people, welfare. 1 It was the wrong argument by the government. They should have said that the P could have done it at 505 ft and not been prevented which would have triggered IR and then they would have passed. F. Problems in applying distinction b/w Content Based and Content Neutral Laws 1. City of Renton v. Playtime Theatres: Renton, Seattle has statute that cannot have an adult theatre from 100 feet of school, home, residential zone, church, a mile away from a school. The ordinance allows the porn theatres to be established elsewhere. a) Court said it was content neutral therefore subject to IR b/c government argued that it wanted to avoid the secondary effects of the speech. 1 COURT SAID NO VIOLATION OF 1ST. b) This case was controversial b/c many people believed it was content based discrimination. Not content neutral. c) City of Renton argued for TPM regulation by saying the following: 1 They are allowed to do it but just cannot do it within the area. 2 They regulate the secondary effects b/c it may bring down the value of the homes and the area. 3 People that go to these theatres may be danger to women or kids in the area. 4 Prostitution and drugs are common around these places. d) Important government interest: Yes, trying to prevent all the abovementioned e) Substantially related: Yes, b/c there is other places such as red light district, or porn land, etc. f) Dissent: Brennan said that it is very easy for govt to make up some neutral justification. 2. National Endowment for Arts (NEA) v. Finley: government funds artist to make art to promote art in the US. Statute said that if you want money from the fund, then the art must be decent and promote good values. There were two pieces of art showing interracial homosexual photos and another of Jesus Christ with urine. Both pieces of artwork received no money on the basis that it was against American values of decency. a) Court said it was subject matter discrimination but OConnor subjected it to IR b/c the NEA had to make decisions b/c it only has limited money. 1 COURT SAID: NO VIOLATION OF 1ST. 2 USED WHEN THE GOVT GIVES YOU THINGS b) Congress may selectively fund a program to encourage certain activities it believes to be in public interest while not funding another artist that seeks dealing with promotions in another way. c) Court reasoned that entitlement to the money is not a 1st amendment right. They said that they can think and say whatever they wanted.

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3. US v. American Library Association (ALA): Congress passed statute that prevents public libraries from receiving federal assistance unless they install software to block obscene or pornographic material from the computers. Govt wanted the installation of software to prevent the wrongful internet searches. The software was allowed to be taken off if the patron requested. a) COURT SAID: NO VIOLATION OF 1ST. b) USED WHEN THE GOVT GIVES YOU THINGS c) Court said it was subjected to IR b/c you can just ask to turn off the filter to get access to the porn. May result in privacy issue b/c you have to ask for it to be taken off. d) Court also said it may have been subjected to substantial over breadth b/c maybe the software limited other things that are not porn. e) Important Government Interest: Congress may insist that the public funds be spent to further the purposes b/c libraries have excluded porn from shelves anyways. f) Means Substantially Related: Yes it is a public library, they can protect it. This is not the privacy of your own home.

G. EXAM HYPO: write a government statute to get it in under Intermediate Review. 1. 1st Statute: No student may engage in speech which deals with class, religion, race whose speech will most likely provoke a reasonable danger of peace and order. nd 2. 2 Statute: No student may engage in speech which is reasonably likely to disrupt peace and order. 3. Analysis: a) The first statute is most likely subject to subject matter discrimination b/c you are limiting only those forms of speech. 1 Further, dont usually fight over the topics in a statute. They get angry b/c of personal animosity, not over this type of speech. b) The key here is whether the 1st statute can still be considered TPM regulation b/c youre trying to prevent disruption of the peace and quiet order. H. PRIOR RESTRAINTS (PRs) (We will most likely write our own statute) 1. General Information: Do I need permission to talk? a) USE NEA CASE AND ALA CASE ALSO b) It is basically an administrative system or a judicial order that prevents speech from occurring. c) Look for something that is tailor made to block the speech such as permission from the courts, licenses, and taking something away that was there. 1 Ex: Set up booth in fair to give literature. You need a license for it. 2 Ex: Newspaper providing unfavorable information about the mayor was ordered to be picked up and cops went around town picking up all 30

newspapers. The government gave no discretion to engage in Content based discrimination. d) Something which allow a person to invoke some form of 1st amendment activity such as the following: 1 Licenses (for parades) 2 Gag orders 3 Gated community 4 Getting permission from city 5 Going to city council and not being able to talk 6 Seizing every copy of newspapers 7 Libraries buying certain books only 8 School policy that prevents school paper from running story about favorite/least favorite professor 9 Deleting websites 10 Taking away something that was there (book taken from shelf) e) There is a strong presumption against prior restraints f) Peace and order is an important government interest. g) Collateral Bar Rule: this form of restriction is more inhibitive than subsequent punishment and is considered worse than other regulations b/c a person that violates an unconstitutional law may not be punished but, a person violating an unconstitutional prior restraint may be punished. 2. Questions to Ask/Test for PR: a) Determine whether the government has too much OR too little discretion 1 Too little discretion: then subject to IR 2 Too much discretion: then subject to SS (a) Purpose: government may not like your viewpoint and gives them opportunity to not allow you from talking. 3 Think of reasonable alternatives. 3. Court Orders as PR a) Near v. State of Minnesota: Statute prevented the publishing of magazines or newspapers that have lewd, obscene, scandalous, or malicious information. The D published information that a Jewish gangster was in control of gambling in Minn. 1 COURT RULED IT WAS VIOLATION OF 1ST 2 Purpose of statue was to have a polite and civil Minnesota. This was not a compelling government interest. 3 Strict Scrutiny applied b/c government had too much discretion to engage in subject matter discrimination and viewpoint discrimination 4 Malicious speech is protected under the 1st b/c it is not a legal category. Defamation has its own category. 4. Court Orders to Protect Fair Trials: a) Nebraska Press Association v. Stuart: judge granted a gag order for a small town murder trial. The district attorney and defense attorney proposes the order to assure D got a fair trial b/c there was bad publicity. The bad publicity would result in disfavorable info and prejudicially decide the case. 31

1 COURT RULED GAG ORDER WAS VIOLATION OF 1ST. 2 Judge had no discretion so it triggered IR (a) Important govt interest? Yes, get 6th amendment right to fair trial (b) Means chosen related? No, b/c of the following 3 GR on Gag Orders: Gag Orders are valid if: (a) Nature and extent of pretrial news coverage warrants restraint (Here, judge was justified to get fair trial) (b) Other measures available would mitigate effects of unrestrained pretrial publicity (Here, insufficient b/c they did not consider change of venue, postponement, etc) (c) Restraining order would effectively operate to prevent the threatened danger. (Here, restraint may be ineffective b/c it was a small town and everyone knew of case already) 5. Licensing as a Prior Restraint a) Occurs when the government requires a license or permit in order for speech to occur. b) All these cases are a dime a dozen. Not much comparing to do. c) Just look for govt discretion: 1 Too much= SS 2 Too little= IR d) Lovell v. City of Griffin, GA: D was convicted of ordinance violation which prohibited the distribution of literature of any kind w/o written permission from commissioner. 1 COURT said Substantial Overbreadth on statutes face. 2 There was too much discretion on part of the government b/c it had no criteria. (a) It was not narrowly tailored b/c the govt could covertly control their purpose. e) Watchtower Bible of NY v. City of Stratton: Statute required all door-to-door solicitors to obtain permit to sell anything within a residential neighborhood. 1 COURT SAID it was Substantially Overbroad 2 They applied Strict Scrutiny: (a) Compelling government interest? Yes, prevent crime, fraud, and invasion of privacy is a valid interest. (b) Means chosen related? No, b/c there was no criteria by which govt makes decision to allow or not allow. (i) The means chosen resulted in religious and political groups from promoting their speech. f) Saia v. New York: In NY if you want to announce something by loudspeaker on a truck, then you need a permit. There were no criteria or standards. The government had too much discretion. 1 COURT applied Strict Scrutiny

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(a) Compelling govt interest? Yes, b/c there may be unreasonable things said at unreasonable hours. The welfare of children is a valid government interest and peace is also a government interest. (i) There is also a 1st amendment right to silence. (b) Means chosen related? No, the means are not narrowly tailored b/c the statute could have said to only do it from 12pm and limit the speech to only messages that do not hinder the welfare of children. 2 By doing the aforementioned, the review is now IR b/c we regulate T, P, M. I. EXAM HYPO: The Cuban Books in Miami Dade Library that are pulled by superintendent who is an elected official. The books, I Love Cuba, led a very strong Castro favoritism. Many people complained and he removed the book. What about the people that wanted to read the book. 1. Analysis a) Part 1: Is there too much discretion? If so, then Strict scrutiny. If not too much discretion, then go to Intermediate Scrutiny. b) Part 2: You can argue that the govt funds are limited and they can choose who to give the money to. CITE: NEA and ALA c) Part 3: What about students that want to read the books? Then look at Viewpoint Discrimination. 1 You can say that in ALA it wasnt banned b/c they had the opportunity to still view the porn; they just had to ask for it. But here, they are banning the book entirely. Furthermore, in NEA, you can say that you can still make the art, just not get the money. Here, they cannot read the books at all. TYPES OF UNPROTECTED SPEECH 1) Fighting Words 2) Clear and Present Danger (3 Flavors) 3) Obscenity 4) Child Porn 5) Libel/Defamation 6) Communications in furtherance of a criminal conspiracy. J. CLEAR AND PRESENT DANGER: 1. General Information: a) There is no 1st amendment protections for clear and present danger b) MUST be seen and must be present. c) Classic example: Falsely shouting fire in building. 2. Types of Tests: C & P occurs if the person engages in any of the following: a) Reasonable Approach: someone advocating something that is unlawful. 1 Very easy to show.

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2 Ex: Schenk v. US: During WWI, Congress passed the Espionage Act which was geared towards the social climate at the time. The climate was strongly opposed to communism which was attempting to take over. The statute said that it is a crime to obstruct the recruiting or enlistment of service of the US. The D was passing out flyers to not enlist in the war and instead to resort to peaceful measures. Govt said he was trying to cause insubordination in the armed forces and they feared a potential threat of takeover. Court held that 1st amendment did not protect this speech b/c of the nature of the speech and the time in which it was said. There is a great govt interest in protecting the armed forces. 3 WATCH FOR TERRORISM, VERY SIMILAR!!! b) Risk Formula: a person that advocates something that is gravely dangerous that the likelihood of the person listening does not matter. 1 Ex: Person has sign saying to kill the President everyday. Does not matter that nobody pays attention. B/c the nature of the speech is so grave that it imputes no constitutional protection. 2 This was popular during Cold War. 3 No likelihood or imminence requirement. 4 Look for catastrophic harm when dealing with this. 5 GR: Balance the gravity of evil with the probability of it occurring. (a) The invasion of the free speech is justified if it is necessary to avoid the danger. 6 Ex: Dennis v. US: Statute prohibited attempts or conspiracy to overthrow govt and begin communism. Here, some guys were sitting around talking about Marx and were convicted under the statute. Court said it was not a violation of the 1st b/c the group was formed and capable of actually doing it. c) Brandenburg Test: there is clear and present danger if you advocate the following: 1 Elements Required: (a) Imminent Harm (b) Likelihood to produce illegal activity (c) Intent to cause imminent illegality 2 This formula protects speech the most!! 3 Mere advocacy of use of force or violence does not remove 1st amendment protection. 4 Applies when we are not in war. USE ALL OF THE FOLLOWING CASES: 5 Ex: Brandenburg v. Ohio: KKK member invited a TV crew to a meeting and said, If the President and Congress do not give us respect, then we might have to get vengeance. The statute in question prohibited advocating crime, sabotage, violence, or unlawful terrorism. Court said this was not C & P Danger b/c there was no imminent threat b/c they did not state a time or place. The word

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MIGHT was not assertive enough. They were only advocating their Klan members. 6 Ex: NAACP v. Claiborne: Black activists were against a white owned chain of stores and said, If we catch you going into one of those stores, we are going to break your neck. Court said the word IF was not imminent. It was a conditional word. 7 Ex: Hess v. Indiana: D said We will take the fucking street later. Court said there was no C & P Danger b/c it lacked imminence.

K. FIGHTING WORDS 1. General Information: a) These form of speech has no constitutional protection b) General Definition: these are words that are likely to cause a man of common intelligence to enter into a fight. 1 They are not essential for the exposition of ideas. (a) Are there less provocative ways to say it? 2. Factors to Consider: a) Must be personal in nature b) Must be close in physical proximity c) Look at the ability to cool off. 3. Only Case to ever be Considered as FWs a) Chaplinsky v. New Hampshire: Chaplinsky was a Jehovah witness and was handing out literature. NH had a statute that said No person shall address any offensive, divisive, or annoying word to any person that is lawfully in any place or other public place. He began making the crowd become restless and was being removed by Mr. Bowering. He then told Mr. Bowering: Get your damn hands off me you god damn fascist. 1 COURT RULED THESE WERE FIGHTING WORDS, THEREFORE, NO PROTECTION. 2 Part 1: Substantial Overbreadth? May not be b/c in SO you know what speech is prohibited. Unduly Vague? Yes b/c, like in Coats v. Cincinnati, they are not allowing two people argue in public. So in other words, a couple could not have a disagreement in public b/c it would be considered a violation under the annoying provision. 4. Narrowing the FWs Doctrine a) Street v. NY: Guy burned an American flag upon learning that James Meredith had been shot. He said We dont need any damn flag If they let that happen to Meredith, we dont need an American flag. Court said there is a small class of FWs that are likely to provoke the average person to retaliate thereby causing a breach in the peace.

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1 COURT RULED THEY WERE NOT FIGHTNG WORDS b/c although it may be inherently inflammatory, it was not FWs that were unprotected by the 1st amendment. b) Cohen v. California: Cohen was convicted for disturbing the peace by wearing a jacket, which read on the back: Fuck the draft. 1 COURT RULED THESE WERE NOT FIGHTING WORDS b/c it was a form of symbolic speech that was not directed at anyone. These words were not direct, personal insults, nor directed to the person hearing.

c) Texas v. Johnson: Flag burning is protected speech. No reasonable on-looker would have regarded the generalized expression of dissatisfaction as a direct and personal insult. Government argued that the flag destruction was likely to provoke a violent response form the audience and therefore was FWs. 1 COURT RULED THESE WERE NOT FWS b/c the speech was not directed at a particular person nor was it an invitation to exchange fists. It was a form of symbolic speech. 5. FWs Invalidated as Substantial Overbreadth and Unduly Vague a) Gooding v. Wilson: Statute said: Any person who w/o provocation shall use opprobrious words or abusive language tending to cause a breach of the peace, shall be guilty of a misdemeanor. (Opprobrious words include: Son of a Bitch, I will kill you.) Here, Gooding used: White son of a bitch, Ill kill you. These were FWs but the statute was no good. 1 COURT RULED NO FWS b/c of statute being vague. Brennan said the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. b) COURT SAID NO FWS in all of the following cases b/c speech is protected even if uttered in anger filled with profanities, and likely to anger the audience. 1 Rosenfeld v. NJ: Person used the word Motherfuckers, to address teachers at a school board meeting. This was said in a global context. Therefore, if can be argued that these words are necessary for the exposition of ideas, that are no personal in nature. (a) COURT SAID NO FWS 2 Lewis v. City of New Orleans: Woman said: God damn motherfucker police, as they arrested her son. 3 Brown v. Oklahoma: D said: Black motherfucking pig and damn motherfucking fascists cops, while being at a Black Panther meeting. The cops were on the other side of hundreds of people. 36

(a) COURT SAID NO FWS b/c compared with Chaplinsky, these Ds were not in the face of cops. Therefore, the threat was not imminent. 6. Narrow FWs Laws as Content Based Restrictions a) RAV v. City of St. Paul, Minnesota: Statute provides that whoever places on public or private property a symbol, object, appellation, or characterization which one knows arouses anger, alarm or resent in others on basis of race, color, creed, religion thereby commits disorderly conduct is charged with a misdemeanor. 1 MAJORITY WRITTEN BY SCALIA SAID IT WAS VIEWPOINT DISCRIMINATION (a) He said that the statute will get you in jail for saying, You Catholic SOB. HOWEVER, you will NOT get in trouble for saying, You anti-Catholic SOB. 2 RULE of RAV: Some forms of speech, such as FWs or Obscenity, may be protected very little by VP Discrimination that is not otherwise protected. 3 Justice WHITE with the minority says the statute in RAV is unconstitutional b/c of Subject Matter Discrimination. Anger and resentment are forms of speech which should be protected. 4 RAV Analysis (a) Part 1: Substantial Overbreadth? Here, RAV is prohibited from saying the primary effects of speech. People can discuss these issues but are not allowed here. People can cause anger for anything under this statute b/c anger, alarm, and resentment are all effects of this form of speech (b) Part 2: Unduly Vague? Yes. Use Coats case. (c) Part 3: VP Discrimination? You can only say good things about race, religion, etc. Not bad things. Therefore, Strict Scrutiny. (i) Compelling govt interest? Promote safety. Not sufficient enough of interest. (ii) Means related? Nope. (d) Part 4: SM Discrimination? Boos v. Barry argument. Here, St. Paul prohibits speech of this form. (e) Part 5: Symbolic Speech? Yes (f) Part 6: FWs? Most likely not b/c there is no face to face element present. Although, it may be very offensive as in Chaplinsky, it is not essential to exponential ideas b/c there are less provocative ways to say it. (g) Part 7: C & P Danger? (h) Part 8: HYPO: Sexual Harassment Statute:

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7. Statute says: No male professor can engage in sexual harassment against a female student. Includes quid pro quo and hostile form. Hostile form is a pattern of repeated occurrences of social humiliation an harassment that makes it hard to strive. a) Analysis: 1 Part 1: Substantial Overbreadth? Use Jews for Jesus. (a) Not analogous b/c there you could not have any form of 1st amendment activities allowed. They were forms of activities that were and were not protected. Here, these forms of speech are not protected at all. 2 Part 2: Unduly Vague? Use Coats Case (a) That case did not allow annoying activities which is vague. 3 Part 3: VP Discrimination? This is when one group is allowed to have one opinion on a subject and one group will be punished for having the opposite viewpoint. Use RAV case. (a) Here, a woman could say things that would otherwise get a male into trouble. 4 Part 4: SM Discrimination? Use Boos v. Barry (a) Here, females can have opinions towards other females. L. SYMBOLIC SPEECH 1. General Information: This form of speech is a combination of conduct and speech. a) There are no 1st amendment rights to engage in conduct. But yes to speech. 1 Ex: Burning a cross is a symbol. b) You are entitled to less constitutional protection than verbal speech b/c it is conduct AND speech. M. OBSCENITY 1. General Information: representation that is highly offensive. It lacks any serious literary, artistic political values when looked at as a whole. a) Ex: Placing a burning cross on somebodys front lawn is NOT obscenity. 2. Only case to know is Miller v. California.

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