Doctrine of Selective
Incorporation
1. Fundamental principle
of liberty and justice.
Lies at the base of our
civil and political
institutions.
2. Is a basic in our system
of jurisprudence.
3. A fundamental right
essential to a fair trial.
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Equal Protection/
Due Process
Due Process- If the law denies
the right to everyone use this.
Equal Protection- If the law
denies the right to only SOME
people use this.
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(Keep in mind that no rights are
absolute. If the government can
show a compelling justification
and provides a least restrictive
alternative.)
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State Action Doctrine
1. Public Function- A (Rise) Prohibited bakery workers from being
private entity must
comply with the
Constitution if it is
performing a task that
has traditionally been
exclusively held by the
government.
2. Entanglement Theory-
Private conduct must
comply with the
constitution if the
government has
authorized,
encouraged, or
facilitated the
unconstitutional
conduct.
Ninth Amendment
The enumeration in the
constitution of certain rights,
shall not be construed to
disparage others retained by the
people.
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(Fundamental Rights- Even
though something is not
enumerated in the constitution,
the Ninth Amendment strongly
supports the proposition that un-
enumerated rights can be
fundamental.
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Lochner Era
regulated due to their fundamental right to
contract.
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(Fall) The freedom to contract is not
fundamental. The government has a rational
basis for regulating economics, (freedom to
contract). Economic regulations will be
viewed with extreme deference to congress.
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Laws comply unless they are unreasonably,
arbitrary, or capricious AND the means
selected shall have a real and substantial
relation to the objective sought to be attained.
Due Process- Fundamental Rights
Framework for Due Process Analysis:
1. Is there a fundamental right?
(Yes=Strict Scrutiny; No=Rational
Basis)(Usually Outcome
determinative)
2. Is the right infringed?
3. Is the government’s action justified
by a sufficient purpose?
4. Are the means sufficiently related to
the goal sought?
Fundamental Right:
Different Views on how to establish:
-Limited to the liberties Stated in the
Constitution.
-Judiciary should interpret framer’s intent.
-Those “deeply rooted in this Nation’s history
and tradition”
 Right to an Abortion
Roe- Two fundamental rights are
vying against one another. The
child’s right to life, with the
mother’s right to choose.
-Had a very structured frame work,
which was abandoned in Casey.
Characterizing Roe’s holding is
important. It has been seen as the
“right to choose,” which was based
on the fundamental right of
privacy. This pits “life” against
“liberty.”
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Casey- Undue Burden Test- Can be
equated to a substantial obstacle or
structural mechanism that impairs
the right to have an abortion. (Not
having a health exception for the
mother has been held to be an
undue burden. Also if the statute is
ambiguous it is an undue burden
b/c people are burdened if they
have to figure out the statute.)
Concurring- Uphold the trimester
approach. Based on precedent.
Dissent-(Rhenquist)- Replacing the
Roe analysis with undue burdens is
not supported by stari decisis. 14th
amendment liberty does not create
an all encompassing right to
privacy. Therefore “rational basis”
should apply.
Right to Refuse
Treatment
-You have a fundamental right
to refuse treatment, but the state
may require some burden of
proof in showing you are
competent.
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-A state may prevent family
members from terminating
treatment of another.
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Right to Physician
Assisted Suicide
The court stressed the “intent” in
this case. “In some cases,
painkilling drugs may hasten a
patient’s death. A doctor who
assists a suicide, however, ‘must
necessarily and indubitably,
intend that the patient be made
dead.’” The Court said that the
law traditionally has recognized
this distinction in distinguishing
between allowing refusal of
treatment and prohibiting
suicide.
The issue of a right to die is left
to the political process; states
may prohibit or allow
physician-assisted suicide
largely unconstrained by the
Constitution.
2
Equal Protection
1. What is the classification?
a. Is it on its face?;
b. Or is it facially neutral,
but has a discriminatory
impact. (Needs both
purpose and impact.)
2. What is the appropriate level of
scrutiny?
a. Strict
b. Intermediate
c. Rational Basis
3. Does the government action meet
the level of scrutiny?
(underinclusive/overinclusive
analysis)
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Korematsu- Two main holdings (Which are
GOOD LAW):
1. All racial and national
classifications are subjected to the
strictest scrutiny.
2. In times of war, or national crisis
the court will defer to the
government. (Hasn’t been
challenged since WWII.)
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Segregation
Brown v. Board of Education-
(Broad View) Anything that segregates two
races is unconstitutional.
(Narrow View) The psychological
ramifications of “separate but equal.”
Affirmative Action
All affirmative action statutes are
held to the level of strict scrutiny.
The only form of affirmative
action that has not been revisited
is whether in education strict
scrutiny is used. The plurality
used strict scrutiny. The
concurrence/dissent used
intermediate.
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Gender Classification
Intermediate Scrutiny- The
government must show an
important government purpose,
and the statue must be
substantially related to the goal
sought.
For affirmative action the court
used different language.
“Exceedingly persuasive
justification” to withstand
scrutiny.
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The majority of Supreme Court
cases concerning gender
discrimination have involved laws
that benefit women and
disadvantage men:
1. Gender classifications
benefiting women based on role
stereotypes and their roles in
family and the economy
generally will not be allowed.
2. Classifications benefiting
women designed to remedy past
discrimination and differences
in opportunity generally are
permitted.
3. Classifications benefiting
women can be based on
biological differences between
men and women.
Arguments For:
All racial classifications, whether
invidious or benign, should be
subjected to strict scrutiny. The
Constitution required that the
government treat each person as
an individual without regard to
his or her race, strict scrutiny is
used to ensure that this occurs.
All racial classifications
stigmatize and breed racial
hostility, and therefore all should
be subjected to strict scrutiny.
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Arguments For:
It is an immutable characteristic
It is warranted because of the
need for a strong presumption
against laws that discriminate
against people based on traits that
were not chosen and that cannot
be changed.
Gender like race is an
immediately visible
characteristic.
Like racial minorities, women
tend to be under represented in
the political process.
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Arguments Against:
There is a significant difference between
the government using racial classifications
to benefit minorities and the government
using racial classifications to disadvantage
minorities. There is a long history of
racism and discrimination against
minorities, but no similar history of
persecution against whites.
Achieving social equality requires
affirmative action at this point in American
history. The tremendous continuing
disparities b/w blacks and whites in areas
such as education, employment, and public
contracting necessitate remedial action.
Applying strict scrutiny would greatly
impede such remedial efforts because
relatively little ever has survived this
rigorous review.
There is a major difference between the majority
discriminating against the minority and the majority
discriminating against itself.
Arguments Against:
The framers of the 14th Amendment meant only
to outlaw race discrimination.
Biological differences between men and women
make it more likely that the proposed laws will
be justified, this requires a level less than strict
scrutiny so the desirable laws will be upheld.
Women are a political majority who are not
isolated from men and thus cannot be considered
a discrete and insular minority.
Now many people who used to favor strict
scrutiny are worried that if strict scrutiny is
adopted, they will be unable to receive as many
affirmative action benefits. This would be
because of the strict level of review that would
be required.
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 Alienage Classifications
Strict Scrutiny is used to evaluate
discrimination against non-
citizens.
Except when:
1. Alienage classifications
related to self-
government and
democratic process
(Rational Basis Review);
and
2. Congressionally
Approved
Discrimination
(Rational Basis)
1st Amendment
Content based restrictions-on
speech must meet strict scrutiny.
Content Neutral Restrictions-
only need to meet strict scrutiny.
a. Viewpoint Neutral
b. Subject Matter Neutral
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Vagueness- Law is
unconstitutionally vague if a
reasonable person can’t tell what
speech is prohibited and what is
permitted.
Overbreadth- a law that
regulates substantially
more speech than the
Constitution allows. 2
Requirements:
1. Must be substantially
overbroad; and
2. Can argue it would be
unconstitutional as
applied to others.
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Arguments For:
Aliens do not have the right to
vote, and therefore cannot protect
themselves through the political
process. (argument that has
seemed to win the day)
There is a long history of
discrimination against aliens,
often based on prejudice or
economic protectionism.
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Prior Restraints
“The term prior restraint is used
to describe administrative and
judicial orders forbidding certain
communications when issued in
advance of the time that such
communication are to occur.”
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Collateral Bar- Person violating
an unconstitutional law may not
be punished, but a person
violating an unconstitutional prior
restraint generally may be
punished. (Promotes integrity of
the courts.)
Proper remedy is to deal with
unprotected speech after it has
occurred, not by prior restraints.
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Exceptions: War
1. Troop movements;
2. Recruitment of the
armed forces;
3. Number and location of
troops; and
4. Dates of transports.
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4
Arguments Against:
Alienage is not an immutable
characteristic; aliens are capable
of being citizens after a relatively
short time period.
It is appropriate to allow the
government more latitude than
strict scrutiny permits in reserving
benefits for citizens.
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Pentagon Papers Case:
Held: Any system of prior
restraints bears a heavy
presumption against
constitutionality, in this case the
government didn’t bear its
burden.
Leaves 2 major questions open:
1. What difference if any
would there be if there
was a statute authorizing
prior restraints?
2. What circumstances if
any would justify a court
order preventing
publication so as to
protect national security.
-INSERT DIFFERENT VIEWS-
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Licensing-
1. Important reason for
licensing.
2. Clear standards leaving
almost no discretion to
the licensing authority.
3. Procedural safeguards.
(Ability of court to
quickly review.)
 Incitement of Illegal Activity
1. Clear and Present Danger
Test- Whether the words used
are used in such circumstances
and are of such a nature as to
create a “clear and present
danger” that they will bring
about the substantive evils that
Congress has a right to prevent.
Dissent under this first test
brought up the “imminent” test.
2. Reasonableness Test- Speech is
not protected so long as long as
the government’s law and
prosecution was reasonable.
Equivalent of rational basis.
3. Risk Formula Approach-
Whether speech is or is not
protected depends upon the
gravity of the evil compared with
its likelihood.
4. Brandenburg Test-
a. Imminent harm
b. Likelihood of producing
illegal action
c. Intent to cause
imminent illegality
*Combined the most speech protective
aspects of all the tests and incorporated
them into one test.*
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Fighting Words/ Hostile
Audience/ and Racist
Speech
Fighting Words- Those by
which their very utterance inflict
injury or tend to incite an
immediate breach of the peace.
BUT, after Chaplinsky the court
has never again upheld a fighting
words conviction. Used 3
techniques:
1. Court has narrowed the
scope of the fighting
words doctrine by ruling
that it applies only to
speech directed at
another person that is
likely to produce a
violent response.
2. The Court frequently
has found laws
prohibiting fighting
words to be
unconstitutionally vague
or overbroad.
3. The Court has found
laws that prohibit some
fighting words, such as
expression of hate based
on race or gender, to be
impermissible content
based restriction on
speech.
Fighting words law will be
upheld only if it is narrowly
tailored to apply just to speech
that is not protected by the First
Amendment. However, the more
narrowly tailored a law become
the more likelihood that it well
be impermissible as a content
based distinction.
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5
Hostile Audiences-
Modern Rule:
Audience Control Approach-
1. Threat of immediate
violence;
2. Reasonable effort to
protect the audience;
and
3. A request to stop the
demonstrators.
-This evolved from the “clear
and present danger” test. The
problem with the clear and
present danger test is that it
allows an audience reaction, if
hostile enough, to be a basis for
suppressing a speaker.
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Racist Speech- Courts can
regulate racist speech.
Beauharnais v. Illinois But lower
courts have treated this as no
longer being good law.
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Sexually Oriented Speech
Miller v. California reaffirmed
that obscene “material is not
protected by the First
Amendment” and formulated the
test for obscenity that continues
to be used. The “basic guidelines
for the trier of fact must be:
1. ‘the average person,
applying contemporary
community standards’
would find that the
work, taken as a whole,
appeal to the prurient
interest; (a community
standard)
2. Whether the work
depicts or describes, in a
patently offensive way,
sexual conduct
specifically defined by
the applicable state law
(Community Standard);
and
3. Whether the work, taken
as a whole, lacks serious
social value. (National
Standard)
6
 Child Pornography
Privacy Theory- The government
may prohibit the exhibition, sale,
or distribution of child porn even if
it does not meet the test for
obscenity. It’s non constitutional
because it is a product of actual
physical harm to the child. It’s not
the viewing by the third person that
is the harm. It is the harm to the
child that is being protected.
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Symbolic Expression
Flag Burning and Campaign
Finance
Flag burning is a protected form of
speech. You can’t pass a law
where you can burn a flag to bury
it, but you can’t to show that you
are upset with the government.
Campaign finance does not fall
under O’Brien because there is
non-speech involved. Spending
money in this way is speech.
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Protecting Low Value
Speech-(Sexual Speech that
is neither child pornography or
obscene)
There is a category of speech
that does not meet the test for
obscenity and this is protected
by the First Amendment, but is
deemed to be of such low
value speech and thus the
government has latitude to
regulate such expression.
The court argued that the
zoning regulation was content
neutral because it focused on
the prevention of secondary
effects. The court defined
content neutrality not by the
terms of the law, but rather, by
the legislature’s predominant
purpose. The court has never
answered how far it will allow
city’s to go in their
regulations.
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Expressive Conduct
Texas Test- Ask:
Whether the state’s regulation
is related to suppression of
free expression. IF it is NOT
use Obrein, if it is use strict
scrutiny.
Obrein- A government
regulation of symbolic or
communicative conduct is
sufficiently justified if it is:
1. Within the
constitutional power
of the government;
2. Furthers a important
or substantial
government interest
3. The government
interest is unrelated
to the suppression of
free expression.
4. The incidental
restriction on alleged
1st amendment
freedoms is no
greater than is
essential.
Profane and Indecent Language
Cohen FUCK THE DRAFT
The government may not prohibit or
punish speech simply because others find
it offensive.
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Media by Media Approach
Radio Broadcast and Public Television-
These forms of broadcast are uniquely
pervasive and intrusive to the home.
Confronts individuals in the privacy of
their homes. Allowed for prohibition and
punishment of speech in this.
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Telephones
The Supreme Court drew a distinction
between “obscene” and “indecent” The
Court said that while the law was
constitutional in prohibiting obscene
speech it was unconstitutional in
prohibiting indecent speech.
The Court made not that there was no
“captive audience.”
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Cable Television
In the Playboy case the Supreme Court
used strict scrutiny to declare
unconstitutional a provision of the Cable
act regulating sexual speech. The Court
stated, “Since §505 is a content based
restriction on speech, it can stand only if
it satisfies strict scrutiny.”
First time the Court has applied strict
scrutiny to government regulation of
sexually explicit, non-obscene speech.
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The Internet
Reno v. ACLU the Sup. Ct. expressly
distinguished Pacifica. The court noted
that the FCC regulation of television and
radio was applied to a time when children
might be listening, whereas the
Communications Decency Act applies to
all hours. Also, Pacifica involved
sanction by a regulatory agency; the
Communications Decency Act imposed
criminal penalties on violators. The act
was ultimately struck down due to is
overbreadth. It lacked definitive language
in many instances.