• -2 DP Clauses; 5th Amendment and 14th that prohibit the federal and state governments, respectively, from depriving any person of "life, liberty, or property without due process of law.  
• -5th protects individual from federal govt; 14th from state.
• -"easy" SDP cases involves individual rights that DP clauses protect by 'incorporating' other parts of the Const. 
• -Pleading ANY violation of the B.o.R. by a state requires pleading the 14th amendment. 
• -"controversial" SDP cases involve non-textual rights.

Substantive Due Process Analysis

 (NON-TEXTUAL RIGHT)

1). Look to precedent to see if earlier cases encompass newly claimed right; if it DOES NOT then

2). examine nation's history and tradition (how narrowly focused must the history or tradition be?) if no history/tradition, then

3). Is the asserted right "inherent in the concept of ordered liberty or recognized by all free govts?" Conservative judges hate 3d prong.

• If analysis leads to conclusion that there is a fundamental right, state must meet strict scrutiny for law to survive. If there is no fundamental right, rational basis applies. 

Meyer v. Nebraska

(Substantive Due Process)

• Facts: Meyer convicted under Nebraska statute making it a crime to teach kids any language other than English.
• Holdling: A state may not prohibit the teaching of foreign languages to a young child in school when such teaching has been requested by the child’s parent because this interferes with the fundamental liberty interest of a parent to control his or her child’s education.

Pierce v. Society of Sisters

(Substantive Due Process)

• Facts: Compulsory Education Act required those responsible for minors to send them to public school to compel general attendance.
• Holding: Requiring children to be educated only by public instruction violates the Fourteenth Amendment of the United States Constitution. States may require that children attend school and reasonably regulate such schools, but states do not have the authority to require public education only. The Fourteenth Amendment protects the liberty of parents and guardians to direct their children’s education.

Griswold v. Connecticut

(Substantive Due Process)

• Legal standard to determine the constitutionality of a statute, used when the statute implicates a fundamental right or relates to a suspect classification under the equal protection clause
• To determine if a statute passes the test, a court considers whether the government has a 
• compelling interest in creating the law, 
• whether the statute is "narrowly tailored" to meet the government's objectives, and 
• whether there are less restrictive means of accomplishing the same thing. 

Planned Parenthood v. Casey

(Substantive Due Process)

• Facts: Pennsylvania statute required informed consent and a 24-hour waiting period for all women prior to undergoing an abortion. All minors seeking an abortion were required to obtain the informed consent of at least one parent, while a married woman had to show that she notified her husband of her intent to abort the fetus. 
• Holding: A state abortion regulation places an undue burden on a woman’s right to an abortion and is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. Undue burden test replaces trimester framework for determining whether a regulation impermissibly interferes w/ a woman's right to an abortion. 
• all the portions of the statute were deemed valid EXCEPT the husband notification element. Also, the law must allow a judicial bypass for a minor unable to obtain or unwilling to seek such parental permission. 

Gonzales v. Carhart

(Substantive Due Process)

• Facts: Congress passed the Partial-Birth Abortion Ban Act, which criminalized doctors’ performance of partial-birth abortions. The Act explicitly and precisely defined “partial-birth abortions” in part as an abortion following the delivery of a living fetus.
• Holding: Congress may ban a specific type of partial-birth abortion provided its restrictions on the practice are narrow and clear and the ban does not constitute an undue burden on a woman’s right to an abortion.

Lawrence v. Texas

(Substantive Due Process)

• Facts: Two men in Texas were convicted under a a statute that made homosexual sodomy a criminal act.
• Holding: The constitutional right to privacy protects a right to engage in private, consensual, sexual activity; it is unconst'l to criminalize intimate sexual conduct between persons of the same sex.
• THEORETICAL BASIS IS UNCLEAR; MAJORITY NEVER SAYS THERE'S A FUNDAMENTAL RIGHT FOR SAME SEX SODOMY.

Michael H. v. Gerald D. 

(Substantive Due Process)

• Facts: Gerald was married and lived with a woman who had an affar with Michael. She had a child and told Gerald it might be Michael's, and DNA revealed it was. The woman left Gerald for a third man and refused to allow Michael to see the child. He sued to establish his paternity.
• Holding: Due Process Clause jurisprudence governing “liberty” interests requires such interests to be both “fundamental” as well as traditionally protected by society. The Due Process Clause of the Fourteenth Amendment traditionally protects only relationships developed within the unitary family.

Washington v. Glucksberg

(Substantive Due Process)

• Facts: doctors in WA who treated terminally ill patients who were suffering, and these doctors said they would assist those patients in ending their lives if WA didn’t have the statute banning such practice.
• Holding: the right to physician assisted suicide is not a const'l protected liberty interest under the Due Process Clause. 

Kelley v. Johnson

(Substantive Due Process)

Procedural Due Process

1. P must establish a deprivation of liberty or property.
• this is a matter of entitlement; ID the source of the interest to be protected.
2. challenge must assert that either the way a statute is enacted was procedurally inadequate or that the language was so vague one can't understand its requirements.
3. USUALLY BASED ON APPLICATION OF STATUTE.
4. usually involves acts that deprive individuals of liberties such as reputation (infliction of a stigma) or the ability to obtain a job or education and property interests. 

Board of Regents v. Roth

(Procedural Due Process)

• Facts: P was hired as a part-time prof for a fixed term of one year, and was not re-hired after that year.
• Holding: to have a property interest in a benefit, a person must clearly have more than a unilateral expectation, but instead have a legitimate claim of entitlement to it.
• Property interest can be found in a K, statute, employment guidelines, de facto policy, something other than the Constitution. Once found, then const'l issue to figure out what procedure is due. 

Paul v. Davis

(Procedural Due Process)

• Facts: 800 merchants received flyers listing persons arrested from 1971-72 who had arrested for shoplifting. Plaintiff was on a flyer even though his guilt/innocence hadn't been determined. He sued for defamation.
• Holding: A person’s reputation, on its own, is not a liberty or property interest sufficient to invoke the due process protections of the Fourteenth Amendment. 
• These protections are only available where the government action harming a person’s reputation also subjects that individual to some other type of disability, such as the loss of employment.

Castle Rock v. Gonzales

(Procedural Due Process)

• Facts: woman repeatedly reported to police that her estranged husband had her three daughter and had violated a restraining order. Police did nothing, and the husband killed the three daughters.
• Holding: A person has to have a legitimate claim of entitlement to the government benefit to be protected under the Due Process Clause. Additionally, a benefit is not a protected entitlement if government officials could grant or deny it in their discretion. 

Procedural Due Process analysis

(Matthews v. Eldridge test)

Goss v. Lopez

(Procedural Due Process)

• Facts: Ohio law provides for free education to all children ages 6-21. A principal may suspend a pupil for misconduct without a hearing for up to 10 days or expel him, but must notify the parents within a day. 
• Holding: The Due Process Clause requires a student facing suspensions of ten days or less to be provided oral or written notices of the charges against him, an explanation of the evidence against him, and an opportunity to rebut the accusations. RECOGNIZES A PROPERTY RIGHT TO SECONDARY EDUCATION. 

Ingraham v. Wright

(Procedural Due Process)

• Issue: whether DPC requires notice and an opportunity to be heard before corporal punishment is used in schools?
• Holding: Yes, where school authorities, acting under color of state law, deliberately decide to punish a child for misconduct by restraining the child and inflicting appreciable physical pain, the Fourteenth Amendment liberty interests are implicated.

Board of Curators v. Horowitz

(Procedural Due Process)

• Facts: A med student was dismissed after failing to meet certain academic standards. 
• Holding: The due process protections do not require a formal hearing prior to the dismissal of a student for academic reasons. Unlike disciplinary determinations, academic evaluations of students bear little resemblance to the judicial and administrative fact-finding proceedings that typically merit a full hearing (less procedure may be required in dismissal).

Caperton v. A.T. Massey Coal

(Procedural Due Process)

• The issue is whether a judge should recuse himself when a contributor’s influence on his election is so substantial that it would offer a possible temptation to the average judge to lead him not to be impartial
• A judge is biased and should recuse himself when a contributor’s influence on his election is so substantial that it would offer a possible temptation to the average judge to lead him not to be impartial.
• The factors to be considered are the contribution’s relative size in comparison to the total amount contributed, the total amount spent on the election, and the effect of the contribution on the outcome of the election.

Liberty Interest

(Procedural Due Process)

• whenever a state deprives a person of some significant freedom provided by statute or under the Constitution. 
• injuring reputation in conjunction with future opportunities to continue education/employment. 

Property Interest

(Procedural Due Process)

• occurs when a person has an entitlement that has been taken away or is not fulfilled. 
• entitlement = a reasonable expectation to continued receipt of a benefit.
• e.g. welfare/medicare/social security/social services, public employees have property interest in continued public employment, students have a property right in secondary education.

• No state shall deny to any person w/in its jurisdiction equal protection of the law. 14th amendment applies to states; 5th to federal government. 

• occurs when people or corporate persons are separated into 2+ classes and the classes are treated differently.
• must have intent to discriminate for there to be a violation; a law having a greater impact on a particular group will not necessarily violate the EPC.
• If there's no reason to suspect legislative bias, law may only need to pass rational basis test (rationally related to a permissible govt'l purpose; burden on P). 
• If good reason to belive govt is biased, classification = suspect and strict scrutiny applies. 

Intermediate Scrutiny

(Equal Protection cases)

• classification is quasi suspect; GENDER & LEGITIMACY OF BIRTH.
• govt. must demonstrate an IMPORTANT governmental interest to which classification is SUBSTANTIALLY RELATED. 

1. Suspect class prong 
2. Fundamental rights prong

• Employed when people/corporations are put into 2+ classes & treated differently.
• MUST determine whether classifications are 

1. SUSPECT (strict scrutiny applies)
2. QUASI-SUSPECT (intermediate scrutiny) or 
3. NOT SUSPECT (rational basis)
• How much reason is there to suspect legislature/govt intended disparate treatment?

When SCOTUS has not ruled on whether a class is suspect or not, must consider the following:

1. is the group discriminated a discrete and insular minority? discrete = is group membership defined as a yes/no question or describes a place on a continuum? Insular = living separately (ethnic neighborhood)
2. is there a history of discrimination against the group? (unclear how recent history must be).
3. does the group lack political power? (denied right to vote? underrepresented in legislature?)
4. is the classification based on an unchangeable characteristic unrelated to ability/merit?

On exam, don't state w/ certainty how suspect class is or what level of scrutiny applies if court hasn't decided on it; instead, apply each class and its corresponding level of scrutiny.

Fundamental Rights Prong

(Equal Protection)

Essentially two lines of cases absorbed into fundamental rights prong. 1) cases where important rights that are not fundamental, and are not const'l required to be granted, are granted to some but not to all (appeals of criminal convictions) & 2) cases where the exercise of a fundamental right was the basis for the classification (cases involving restrictions on obtaining welfare or free non-ermgency medical care until a recipient had been resident in the state for at least a year; right = travel). THIS ANALYSIS HAS NOT BEEN ADOPTED BY SCOTUS. 

• EPC applies to cities/counties and state universities.
• EPC applies to states through the 14th amendment.
• EPC applies to the federal govt by pleading the 5th amendment's due process clause incorporating the 14th amendment.

Railway Express Agency v. New York

(Equal Protection case)

• Facts: NY statute prohibited vehicles devoted solely to displaying advertisements, but permitted business vehicles to display signs related to their business as long as the business vehicles were not solely used for advertising.
• Holding: Law does not violate EPC; no suspect class, rational basis applies. A state law that is substantially underinclusive does not necessarily violate the Equal Protection Clause because a state may rationally decide to address a public problem in phases. 

Korematsu v. United States

(Equal Protection case)

• Facts: Japanese-Americans were ordered to move to relocation camps in light of the United States’ involvement in World War II. A Japanese-American refused, and he was convicted of violating the law.
• Holding: Strict scrutiny applies b/c law is based on race, BUT the law is constitutional b/c of the "pressing public necessity" of protecting against espionage and sabotage."

Brown v. Board of Education I

(equal protection case)

• Facts: Brown and other minor African American children  had been denied admission to public schools attended by white children under laws requiring or permitting segregation according to race.
• Holding: Separate educational facilities based on racial classifications are inherently unequal and violate the EPC. 
• When an opportunity for education exists and the state has undertaken to provide it, that opportunity must then be made available to all students on equal terms. Segregation has a profound and detrimental effect on minority students' hearts and minds. 

Brown II

(Equal protection case)

• Adequate compliance with the Court’s previous holding that racial discrimination in public education is unconstitutional requires public schools to desegregate “with all deliberate speed.”

Loving v. Virginia 

(Equal Protection case)

• Facts: An african american and a caucasian were married in D.C. under its laws and later moved to Virginia where interracial marriage was illegal. They were convicted and told to avoid jail they must leave Virginia.
• Holding: A state may not restrict marriages between persons solely on the basis of race. Such race-based classifications are subject to strict scrutiny and cannot be upheld unless they are shown to accomplish a permissible state objective independent of the racial discrimination. VA argued its ban protected legitimate state purpose of preserving racial integrity and pride, which court said were not legitimate overriding purposes independent of invidious racial discrimination. 

Washington v. Davis

(Equal protecion case; introduces intent element)

• Facts: Plaintiffs were African American men who applied to D.C. police department and were denied based on allegedly discriminatory verbal skills test that was disproportionately failed by blacks.
• Holding: the test was not a violation of EPC incorporated thru 5th amendment b/c the policy was not intended to discriminate; it merely had a disproportionate effect on African Americans. 
• The test was neutral on its face and was administered to all applicants to ascertain whether they had reached a particular level of verbal skill necessary for becoming a successful police officer. 

Grutter v. Bollinger

(Equal protection; affirmative action)

• Facts: MI law school had an unofficial policy giving substantial weight to applicants' race to obtain a diverse student body. Grutter was caucasian and denied entry and she sued on EPC grounds.
• Holding: considering race does not violate the 14th Amendment b/c supporting diversity of viewpoints is a compelling state interest and "critical mass" approach is narrowly tailored since there's individualized consideration. 

Gratz v. Bollinger

(Equal Protection; affirmative action)

• Facts: Two caucasians applied to U of M undergrad and were denied entry under a policy that ranked applicants on a point-scale, which awarded minority students 20 points for race. 
• Holding: A university’s admissions policy automatically giving preference to minority students on the basis of race, without additional individualized consideration, violates the Equal Protection Clause. The use of race as a justification for automatically assigning twenty points to each minority applicant is not narrowly-tailored to achieve its purpose of promoting student body diversity.

Adarand Construction, Inc. v. Pena

(Equal protection, affirmative action)

• Facts: federal govt program provided a financial incentive for any contractors who hired subcontractors controlled by “socially and economically disadvantaged individuals” (including minorities) in the performance of federal government contracts.
• Holding: All racial classifications imposed by the federal, state, or local government must be analyzed by a reviewing court under strict scrutiny; that is, such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.

Craig v. Boren

(Gender based classifications)

• Facts: OK statute prohibited the sale of “non-intoxicating” 3.2 percent alcoholic beer to males under the age of twenty-one, but permitted the sale of such beer to females over the age of eighteen.
• Holding: Statute violates the EPC. A govt'l regulation involving gender discrimination is const'l if it is substantially related to the achievement of an important government purpose (introduces intermediate scrutiny). Statistical evidence not enough to justify a broad categorical rule prohibiting the sale of alcohol to males, and not females.

United States v. Virginia

(equal protection)

• Facts: VMI was the only single-sex public higher education institution in Virginia. It trained men for leadership in civilian life and military service using an “adversative” method. VMI refused to admit women, and a court ruled that violated EPC, so VMI created a separate program for women that differed in academic offerings, instruction, and financial resources.
• Holding: VMI's policy of excluding women violated EPC and the alternative program was not an appropriate remedy. The standard of review for any governmental gender classification is intermediate scrutiny, and the state must show the justification for the classification is "exceedingly persuasive." <-- 'exceedingly persuasive' NOT adopted by court.
• Inherent differences exist between men and women, but these differences can be used only for purposes such as remedying the history of sex discrimination against women, or promoting equal employment opportunities. 

Clark v. Jeter

(Legitimacy)

• A six-year statute of limitations imposed on paternity actions filed on behalf of illegitimate children is too short to satisfy the requirements of equal protection.
• The period must be 1) long enough to provide a reasonable opportunity for claims to be presented, and 2) the time limitation must be substantially related to the state’s interest in curbing stale or fraudulent suits.

Cleburne v. Cleburne Living Center

(Mentally disabled & EPC)

• Facts: Center sought a permit to build a residential facility for mentally disabled men and women, and the city denied them the permit.
• Holding: The mentally disabled are not a quasi-suspect class and thus any legislative regulations affecting their rights are subject to rational basis review and the denial of the permit failed rational basis.

Romer v. Evans

(sexual orientation discrimination)

• CO Const was amended in 1992 by referendum to basically prohibit all legislative, executive or judicial action at any level of state or local government designed to protect homosexual persons or gays and lesbians.
• Holding: dislike for a group is not a permissible reason for a discriminatory classification.
• Court did not resolve question of what level of scrutiny applies b/c the state was unable to meet even the lowest level of scrutiny. 

• an elevated form of rational basis used to strike down laws whose sole purpose is to discriminate against a certain group that isn't necessarily a suspect or quasi suspect class, USUALLY HOMOSEXUALS
• ask: is the law motivated for dislike of the group?
• essentially, the court will not accept morality or animus towards a group as a legitimate state interest. 

Ambach v. Norwick

(alienage and equal protection)

• A state may refuse to employ as elementary and secondary school teachers who are legal aliens who refuse to seek naturalization; rational basis applies. Most govt'l alienage classifications are inherently suspect, but there's an exception for classifications relating to employees in government positions involving "political functions."

Kramer v. Union Free School District

(equal protection & voting)

• Facts: NY had a law requiring property ownership as a prerequisite for voting in a school district election.
• Holding: Law violates EPC. The right to vote is fundamental. Therefore the exclusion of population groups from voting in school district elections must promote a compelling state interest, which this law fails to do. Law is not drawn narrowly enough. 

Reynolds v. Sims

(Equal protection & voting)

• Facts: AB had a legislative districting scheme that relied on the 1900 federal census, which resulted in less populated districts having more representation in the state legislature than more heavily populated areas.
• Holding: Law fails b/c it infringes on a fundamental right and must pass strict scrutiny. The practical effect of overweighting and overvaluing the votes of citizens living in one district is a dilution and undervaluation of votes of those living in other districts. Neither history nor economic interests are permissible factors in attempting to justify the disparity.

Saenz v. Roe

(Equal protection)

• Facts: CA passed a statute that limited the maximum amount of welfare benefits available to a family residing in the state for less than twelve months to the amount payable by the state of the family’s prior residence.
• Holding: Law involve a fundamental right (travel) and fails strict scrutiny. The Privileges and Immunities Clause protects the right to travel in three ways: 
• allowing citizens to move freely between states; 
• securing the right to equal treatment in all states when visiting; and 
• securing the rights of new citizens to be treated the same as long-term citizens living within the state.

Memorial Hospital v. Maricopa County

(equal protection)

• Facts: Under AZ law, individual county govts are charged w/ mandatory duty of providing medical care for their indigent sick, but statute required an indigent to have been a resident of the County for a year before being eligible.
• Holding: statute violates EPC. Arizona's durational residence requirement for free medical care penalizes indigents for exercising their right to migrate to and settle in that state and, unless shown to be necessary to promote a compelling state interest, is unconstitutional. 

Suspect classes

1. race
2. national origin
3. religion
4. alienage (narrow exceptions)

SCOTUS has concluded that ALL classifications based on race or ethnicity are suspect, thus, strict scrutiny applies whether a minority or a majority populatio nis the beneficiary of, or is negatively affected by, a classification.  

• Gender discrimination
• legitimacy of birth

1. Age
2. Disability
3. Wealth (or poverty)
4. Political Preference
5. Felons
6. Undocumented aliens. 

• Laws dealing with national security (Korematsu)
• Affirmative action based on racial diversity (Grutter v. Bollinger). 

Free Expression

• First Amendment. Default position is that expression is protected UNLESS the expression fits into one of a number of recognized exceptions to the First Amendment.
• where expression falls outside the protection of the 1st Amendment, limits need only meet rational basis test. 

Free Expression exceptions

• Speech that raises a clear and present danger
• Speech that is obscene
• "Fighting words"

• applies when the CONDUCT employed in communication is at issue,
• when govt is regulating the time, place, and manner of conveying the message, and,
• commercial speech.

• Allows restrictions on speech when speech is intended to bring about imminent lawless action and is likely to have that result.
• Three distinct elements: intent; imminence; likelihood. 
• Test does NOT allow the suppression of speech that is merely abstract advocacy or even the advocacy of some future action. 

Brandenburg v. Ohio

(clear & present danger)

• Facts: Brandenburg was a KKK member who spoke at a KKK rally and called for revengance against the govt. for not upholding whilte supremacy. The rally was taped by a TV reporter. 
• Holding: Under the First and Fourteenth Amendments, a state may only regulate speech if the speech is directed to or inciting or producing imminent lawless action and is likely to incite or produce such action. 

New York Times Co. v. Sullivan

(First Amendment)

• Facts: Sullivan alleged he had been libeled in an advertisement in the NYT claiming an unprecedent wave of terror was suppressing blacks engaged in non-violate demonstrations. Sullivan wasn't named, but claimed "police" referred to him.
• Holding: If a plaintiff is a public official or is running for public office, he or she can recover damages for defamation only by proving the falsity of the defamatory statements and the presence of actual malice in the speaker.
• There's a profound nat'l commitment to the principle that debate on public issues should be uninhibited & wide open, which might include vehment, caustic, and unpleasant attacks on govt. & public officials. 
• A rule compelling a critic of officials to guarantee the truth of his factual assertions leads to self-censorship <-- chilling effect. 

• required to establish a defamation claim by public officials/figures; must show that the paper knew that the story was false or had a reckless disregard for truth or falsity.
• "Reckless disregard" does not encompass mere neglect in following professional standards of fact checking. The publisher must entertain actual doubt as to the statement's truth.
• Public officials who have sought govt office must accept necessary consequences of invovlement in public affairs. 

Curtis Publishing Co v. Butts

(First Amendment; extends NYT to public figures)

• Facts: Butts was AD @ Georgia, but employed by a private corporation. An article claimed Butts was conspiring to fix a football game. He sued for defamation.
• Holding: A public figure who is not a public official may recover damages for a defamatory falsehood whose substance causes substantial danger to reputation by showing the defendant publisher acted with highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting.
• Less demanding than actual malice. 

• a person who commands a substantial amount of continuing public interest and who has sufficient access to the means of counterargument to be able to expose through discussion the falsehood and fallacies of the defamatory statements.
• public figures have voluntarily thrust themselves into the public eye and invite attention and comment. 

Gertz v. Robert Welch, Inc.

(First Amendment)

• Facts: A policeman shot & killed a minor, and the minor's family attorney, a private individual, was named in an article as the 'architect' for framing the police officer and claimed he was a Marxist.
• Holding: Private individuals do not need to provide clear and convincing evidence of falsity or a reckless disregard for the truth when seeking actual damages for libel suits, but such evidence is necessary to recover punitive or presumed damages.
• Private individuals don't have the same access to public platforms to refute the falsities, and they have not voluntarily exposed themselves to the public. 

Hustler Magazine v. Falwell

(1st Amendment)

• Facts: Hustler ran a liquor ad parody libeling Falwell, a nationally known minister. Ad was a fake interview about Falwell's first time depicting it as a drunken incestuous event.
• Holding: Public figures cannot recover for IIED from speech. The ad is clearly a parody and is protected b/c reasonable people would not have interpreted the parody to contain factual claims. Holding otherwise would chill speech from political cartoonists and satirists. 

Snyder v. Phelps

(1st Amendment)

• Facts: Westboro Baptist Church challenged an IIED judgment against them for picketing near a soldier's funeral. Neither the father who sued nor his son the deceased were public figures.
• Holding: Speech was protected because it was of a public concern. "Public concerns" = speech that can be fairly considered as relating to any matter of political/social interest to the community or is a subject of general interest and of value and concern to the public.

Chaplinsky v. New Hampshire

(Fighting words)

• Facts: Jehovah's Witness was convicted under NH statute for denouncing all religions and for calling a city official a racketeer and a fascist, all in public.
• Holding: "Fighting words" that incite others to violence are not protected by the 1st amendment from govt regulation. 

• Words that by their very utterance inflict injury or tend to incite an immediate breach of the peace. 
• This speech has very little social value and makes no contribution to the marketplace of ideas protected by 1st amendment. 

Roth v. United States

(Obscenity)

• Facts: Roth ran a pornographic book business and mailed ads to solicit sales.
• Holding: Obscenity is not protected by the 1st amendment. Most of the original states passed laws prohibiting obscenity; 1st amendment protections are not absolute, and it protects ideas w/ the slightest amount of redeeming social value, but speech that is obscene (dealing w/ sex in a way appealing to prurient interest) is unprotected. 

Ginzburg v. United States

• Facts: D mailed ads about how/where pornographic publications could be obtained, but ads were not obscene. Case differs from Roth b/c it asks for context of circumstances of production/sale. D was convicted under federal obscenity statute for pandering ads for sexually explicit publications.
• Holding: Obscenity statute did not violate 1st Amendment. Presentation & dissemination of material are equally relevant to determining whether social importance claimed for materials was spurious. 

Stanley v. Georgia

(obscenity)

• Facts: GA police found 3 roles of 8 mm film with obscene material on it and arrested the owner of the material.
• Holding: The mere private possession of obscene matter cannot be made a crime; individuals have a right to read or observe what they please in the privacy of their home. 
• line between transmission of ideas and mere entertainment is too elusive for the Court to draw. 

Miller v. California

• Facts: D convicted for mailing unsolicited ads for pornographic books. 
• Holding: states have legit interest in prohibiting distribution of mass mailings depicting sexual acts to unwilling recipients b/c of high risk that these materials are offensive. 

Miller test

(Obscenity)

Announced in Miller v. California; modified by Ginsberg & Mishkin, the trier of fact must consider three guiding principles

1. Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;
2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
3. Whether a reasonable person would find the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
• With regard to prurient interest, that interest is to be judged based on the audience to which the work is marketed or made available.

• Argument that publications did not appeal to prurient sexual interest of the average person fails. If matieral is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, then the material should be assessed in terms of the sexual interests of its intended and probable recipient group. 

Ginsberg v. New York

• Facts: Appellant & his wife own a shop in long island that sells, among other things, “girlie” magazines. Appellant was convicted of selling “girlie” magazines to a 16 year old on two occasions. The magazines are not considered obscene for adults.
• Holding: although material wouldn't be obscene to an adult, it may be obscene to 16 year olds; so, w/ regard to a 16 year old, it fits Miller test. 

• Before exempting a category of speech from the normal prohibition on content-based restrictions, the Supreme Court must be presented with persuasive evidence that a novel restriction on content is part of a long, if heretofore unrecognized, tradition of proscription

New York v. Ferber

(child pornography)

• Facts: Ferber was arrested after selling films depicting minor boys masturbating to an under cop and was convicted of violating a NY making it a crime to knowingly promote sexual performances by minors.
• Holding: a state may prohibit the distribution/sale of child pornography b/c of the state's compelling interest in safeguarding the physical and psychological well-being of a minor + 47 states passed laws prohibiting the production of child porn w/out it being obscene; i.e. need not go through Miller test. 

Ashcroft v. Free Speech Coalition

• congress may not suppress sexually explicit images that APPEAR to be child pornography because they do not involve, let alone harm, any children in the production process. 

• Facts: 18 USC 48 criminalizes commercial creation/sale of depictions of certain animal cruelty.
• Holding: Statute is too broad b/c the language applies to any depiction in which an animal is intentionally maimed without requiring that it be "cruel." Hunting videos and documentaries would be found illegal under such statute. 

• Facts: CA bill prohibited the sale/rental of violent video games to minors and requires their packaging to be labeled 18. 
• Holding: The bill is NOT a valid exception to the 1st Amendment because speech about violence is not obscene. Therefore, it is of no consequence that CA's statute mimics the NY statute regulating obscenity-for-minors upheld in Ginsberg.

United States v. O'Brien

(communicative conduct)

• Facts: Ps burned Selective Service registration cards @ a Boston courthouse and they were attacked. P was convicted under an act prohibiting the knowing mutiliation of the card.
• Holding: the act did not violate 1st amendment. A regulation is justified if it is w/in the constitutional power of the govt; it furthers an important/substantial govt'l interest, and the govt'l interest is unrelated to the suppression of free expression. 

O'Brien test

When a regulation prohibits conduct that combines speech and non-speech elements, a sufficiently important govt'l interest in regulating the NONSPEECH element can justify incidental limitations on 1st Amendment freedoms; regulation must 

1. be within the const'l power of the Government;
2. further an important or substantial govt'l interest;
3. the govt'l interest must be CONTENT NEUTRAL, (look at this first when judging a govt'l regulation; if govt interest is suppressing the message, strict scrutiny) and
4. it must prohibit no more speech than is essential to further that interest.

Texas v. Johnson

(American flag case)

• Facts: man burned an American flag as a means of political protest and was convicted under a TX statute prohibiting the desecration of the flag.
• Holding: Statute was unconst'l restriction on political expression b/c flag burning is expressive conduct. O'Brien test applies if the statute is content neutral; it is not, therefore strict scrutiny, which this fails. 

Clark v. Community for Creative Non-Violence

(communicative conduct)

• Facts: Nat'l Park Service regulation prohibited camping/sleeping overnight in areas of certain nat'l parks. The Service issued a permit to a group conducting a demonstration in the park to illustrate the plight of the homeless, but it denied their request to sleep in the parks.
• Holding: govt. regulation of expressive conduct does not violate the 1st Amendment if it is content-neutral, a reasonable regulation of the time, place, and manner of expressive conduct, narrowly-tailored to serve a substantial govt'l interest, and leaves open ample alternative avenues of expression. 

Time, Place, and Manner test

Renton v. Playtime Theaters

(time/place/manner)

• Facts: City had an ordinance prohibiting adult theaters from operating w/in 1000 feet of any residential zone, church, park, or school. 
• Holding: Ordinance is const'l. It is content-neutral b/c it is not aimed at content of the films but rather at the "secondary effects" of adult theaters on the surrounding community.
• interest = attempting to preserve quality of urban life.

Boos v. Barry

(time/place/manner)

• Facts: Law prohibited display of any sign w/in five hundred feet of a foreign embassy if the sign tended to bring that foreign govt into public disrepute.
• Holding: Law prohibiting negative content-based signs violated the 1st Amendment by prohibiting political speech and b/c it bars speech on public streets and sidewalks, which are traditional public forums, and because it is content based. 

Erie v. Pap's A.M.

(secondary effects)

• Facts: city had an ordinance banning public nudity, and a nude dancing establishment was required to have its dancers wear g-strings & pasties. It sued.
• Holding: The ordinance did not ban the 1st amendment. Nude dancing is expressive conduct on the outer range of the 1st amendment. Scrutiny hinges on whether govt regulation is content-neutral. If it is, O'Brien test, if not, strict scrutiny. 
• Preventing harmful secondary effects is content neutral; secondary effects are associated w/ presence of adult entertainment establishments, not the erotic expression of the dancing. 

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Councils

(Commercial Speech)

• Facts: Statute prohibited ads of prescription drug prices. 
• Holding: statute violated 1st amendment. Commercial speech that does more than simply propose a commercial transaction, containing factual material of public interest, warrants protection. 
• Speech does not lose its 1st Amendment protection b/c money is spent to project it and that the advertiser's interest is purely economic doesn't disqualify it either. 
• Society has a strong interest in the free flow of commercial information. 

Central Hudson Gas & Electric v. Public Service Comm'n

(commercial speech)

• Facts: Public Service Comm'n of NY ordered electric utilities in NY to cease all advertising that promoted use of electricity b/c NY didn't have sufficient fuel resources to continue furnishing customers' demands. 
• Holding: If commercial speech is neither misleading nor unlawful, govt may only prohibit it if doing so advances a substantial govt interest and the limits on expression are narrowly tailored. The protection available for particular commercial expression turns on the nature both of the expression and of the govt'l interest served by the regulation. 

1. The speech regulated is fraudulent, misleading, or proposes an illegal transaction; or
2. All of the following elements are present:
   1. The government's interest in regulating the speech is substantial;
   2. The restriction directly advances the government interest; and
   3. The restriction is no more extensive than necessary to advance the government interest.

Lorillard Tobacco v. Reilly

(commercial speech)

• Facts: MA statute prohibited advertising of tobacco products w/in 1000 feet of a school/playground and required that ads be placed at least five feet off the ground.
• Holding: Law violated 1st amendment b/c it failed the Central Hudson 4-part analysis. 

Beauharnais v. Illinois

(Hate Speech)

• Facts: D was convicted in violation of a statute that prohibited the distribution of materials that was derogatory to a class of citizens of any race, color, creed, or religion. 
• Holding: First Amendment does not protect libelous speech. 

R.A.V. v. St. Paul

(Hate speech)

• Facts: Defendants assembled a wooden cross and burned it on the lawn of a home owned by an African American family, and they were arrested for violating an ordinance prohibiting hateful expressions of speech.
• Holding: ordinance is facially unconst'l b/c it prohibits otherwise permissible speech solely on the basis of the subject that speech addresses. 
• Chaplinsky held fighting words are not entirely w/out value, but merely not essential to exposition of ideas, which implies that a state might not be able to constlly regulate fighting words in all contexts. 
• Constitutionality of regulation depends on various elements of content expressed and the secondary effects stemming from that content. Statute specifically applies to fighting words that provoke violence on basis of race/color/creed/religion/gender, meaning fighting words are permissible if they don't address one of those topics i.e. content based.

Virginia v. Black

(hate speech)

• Facts: Defendant convicted of violating a statute that mde it illegal to burn a cross if the burning was done w/ intent to intimidate someone and that burning a cross is prima facie evidence of intent to intimidate.
• Holding: statute violated 1st amendment b/c the prima facie evidence provision renders an individual guilty no matter what the purpose of his expression. 

Near v. Minnesota

(Prior Restraints)

• Facts: statute provided for abatement as a public nuisance of a malicious, scandalous, and defamatory newspaper/magazine/periodical. D published a newspaper criticizing racial groups w/ racial slurs about several Minnesota officials.
• Holding: Law constitutes a "prior restraint" on the freedom of the press b/c it was aimed at completely ceasing publication of print media deemed malicious, scandalous, and defamatory and it also censors the publisher b/c he cannot resume publishing w/out completely changing the content. 

New York Times Co. v. United States

(prior restraint)

Snepp v. United States

(Prior Restraint)

• Facts: D was a former CIA employee who signed a K agreeing not to publish any info describing CIA activities w/out clearance. He published a book violating the K. 
• Holding: K provision imposing restrictions on the ability of a former public employee to publish info pertainint to an unclassified govt operation does not violate the employee's const'l right to free speech. 
• Constructive trust = legal fiction employed by courts of equity to compel the owner of property to convey that property to the victims of that owner's fraud. goal is to prevent unjust enrichment of a party who receives title to property but is not legally entitled to that property.

Schneider v. Irvington

(time/place/manner)

• Facts: cities prohibited distributio of handbills in public areas such as streets, parks, and sidewalks and to private residences.
• Holding: Cities may impose reasonable restrictions and time requirements for soliciting & canvassing on public property, but 1st Amendment does not permit them to restrict these activities entirely in public places. 

Ward v. Rock Against Racism

(time/place/manner)

• Facts: NYC had an open air theater where concerts were played; nearby was a grassy area which was designated as a quiet area for passive recreations. NYC attempted to regulate volume of amplified music @ bandshell.
• Holding: Law is const'l. Restriction is content-neutral and is narrowly tailored to serve significant govt interest in protecting citizens from unwanted noise. Requirement of narrow tailoring is satisfied if regulation promotes a substantial govt interest and that interest would be achieved less effectively absent the regulation. Finally, guidelines leave open ample alternatie channels of communication. 
• Like intermediate scrutiny. 

Police Dept v. Mosely

(time/place/manner)

• Facts: Ordinance prohibited picketing on a public way w/in 150 feet of a school, but exempted peaceful labor picketing.
• Holding: Ordinance violated 1st amendment b/c it described permissible picketing in terms of its subject matter. 

International Society for Krishna Consciousness v. Lee

(time/place/manner)

• Facts: Krishna attempted to solicit $ from people in an airport violating a regulation adopted by the airport forbidding such solicitation.
• Holding: an airport terminal is NOT a public forum, therefore any regulations of speech w/in terminals are only evaluated under rational basis. 

Not specially designated as open to public expression. Such forums can be restricted based on the content, but not on viewpoint (if permits pro-life speaker, must permit pro-choice). 

• examples (UNLESS DECLARED OTHERWISE BY THE GOVT)

1. jails
2. public schools
3. military bases

Burson v. Freeman

(time/place/manner)

• Facts: TN code prohibited solicitation of votes and display of campaign materials w/in 100' of the entrance to a polling place violates the 1st and 14th amendment.
• Holding: Statute is not content neutral b/c it regulates speech related to a political campaign, so its reviewed under strict scrutiny. Law PASSES strict scrutiny b/c history demonstrates a substantial concensus that there must be some restricted zone around polling places necessary to protect the fundamental right to vote. 

Hill v. CO

(time/place/manner)

• Facts: CO law made it unlawful for any person to knowingly approach another w/out that peson's consent for the purpose of passing a leaflet to/displaying a sign/engaging in oral protest/education/counseling of another w/in 100' of a health care facility.
• Holding: Law was const'l b/c did not restrict content, was narrowly tailored, and allowed pedestrians to choose to move closer to speakers. Interest was to protect ppl from unwanted harassment. 

Tinker v. Des Moines

(student speech)

• Facts: minor school children protested vietnam war by wearing black armbands during to school. They were suspended for doing so and were not permitted to return until they removed the armbands.
• Holding: policy violated 1st amendment b/c it was content based while allowing other forms of relgious/political speech. "Neither students nor teachers shed their 1st amendment rights at the schoolhouse gate."
• Speech that interferes with the work of the school or the rights of others can be limited in the school setting. 

Bethel School District v. Fraser

(school speech)

• Facts: student supsended after giving a lewd speech in front of student assembly.
• Holding: First amendment allows school officials to punish student speech if they determine that speech to be lewd, offensive, or disruptive to the school's basic educational mission. 
• Tinker noted that the armbands did not concern speec/action that intrudes upon the work of the schools or the rights of other students. Student in this case was not a peaceful political statement. 

Hazelwood School Dist. v. Kuhlmeier

(school speech)

• Holding: first amendment rights of students in public schools are not automatically coextensive w/ rights of adults in other settings and must be applied in light of special characteristics of the school environment. 
• Educators do not offend the 1st amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to a legitimate pedagogical concern.

Morse v. Frederick

(school speech)

• "Bong Hits 4 Jesus" case
• Holding: schools can punish speech that interferes with the school's educational mission, BUT a school cannot declare its educat'l mission to include a political or moral position and suppress speech contrary to that position.  

FCC v. Pacifica

• FCC may regulate speech used in broadcasting, even if the speech is merely offensive and not obscene, b/c of the pervasive nature of radio broadcasting.
• Words in broadcast were not obscene, but they were offensive in the same way obscenity is offensive; the words lack literary, political, or scientific value, and thus are likely u nprotected by the 1st amendment. 
• protected status of speech depends at least in part on the circumstances in which the speech is made; radio is uniquely accessible to children. 

• Telecommunications Act Section 505 is not const'l time/place/manner regulation b/c it is content based.
• If a statute regulates speech based on its content, strict scrutiny. 

Reno v. ACLU

• Facts: indecent transmission provision of CDA prohibited knowing transmission of obscene/indecent messages via the internet to anyone under 18. 
• Holding: Fed statutes violated 1st amendment b/c they were a broad categorical prohibition of internet content, the act was punitive, and the internet does not have a long-standing history of regulation. 
• the CDA is also specifically designed to protect minors from the primary effects of indecent & patently offensive speech rather than the secondary effects. 

• Facts: Child Online Protection Act was enacted to protect minors from exposure to sexually explicit materials on the internet.
• Holding: aimed at content and fails strict scrutiny because the act did not use the least restrictive means (internet filters) to achieve the interest. 

• Facts: Children's Internet Protection Act enacted to address problems associated w/ availability of internet porn in public libraries. Libraries could not receive federal funding unless they installed software to block obscene images.
• Holding: This law did not violate 1st amendment b/c congress has wide latitude to attach conditions to the receipt of federal assistance to further its policy objectives, and the requirement does not induce libraries to engage in unconst'l violations of patrons' 1st amendment rights. 

• associational freedom is necessary to the functioning of the freedom of expression.
• effective expression may require an ability to associate w/ those of like belief. 
• encapsulated in this right is the right NOT to be associated with particular ideas/expression/group.

Wooley v. Maynard

(freedom of associa

• Facts: Jehovah's witnesses claim NH motto "live free or die" offends their religious beliefs and don't want to disseminate the message by having it on their license plate.
• Holding: state cannot require an individual to have the state motton on their license plate. "The right to speak and the right to refrain from speaking are complementary components of the broader concept of individual freedom of mind. Fails strict scrutiny.

Citizens United

(freedom of association/campaign funding)

• Facts: Nonprofit corporation produced a film that was essentially a negative advertisement urging viewers to vote against Hillary Clinton, violating federal law prohibiting corporations & unions from using their general treasuries to make direct campaign contributions.
• Holding: the govt cannot suppress political speech on the basis of the speaker's corporate identity. 

West Virginia v. Barnette

(freedom of association from ideas)

• a state may not compel individual's to engage in involuntary expression (flag saluting case)

Pruneyard Shopping Center v. Robbins

(freedom of assocation from ideas)

• Facts: Pruneyard is a privately owned shopping center with a policy not permitting individuals to engage in any publicly expressive activity not related to commercial purposes.
• Holding: Policy is unconst'l. Shopping center is a business establishment that is open to the public to come and go as they please; the views expressed by members of the public in passing out pamphlets will not likely be identified w/ those of the owner. 

Rumsfeld v. Forum for Academic & Inst'l Rights

(freedom of association from ideas)

• Facts: Congress passed an act in response to law schools restricting access of military recruiters to their students b/c of disagreement w/ govt's policy on homosexuals in the military. Act said if an institution of higher ed. denied recruiters access equal to that of other recruiters, the institution would lose certain federal funds.
• Holding: The law is valid b/c it does not limit what law schools may say nor requires them to say anything; the schools remain free to express whatever views they may have b/c the law regulates conduct, not speech.

Hurley v. Irish-American LGB of Boston

(freedom of association from ideas)

• Facts: an unincorporated association of individuals was granted the right to conduct an annual parade; the Irish-American Gay, Lesbian & Bi Group applied for and was denied an opportunity to march in the parade and sued.
• Holding: a state may not require a private group of citizens to include in a parade a group whose message the organizers do not wish to promote. Parades' purpose is to make some sort of collective statement, and are thus a form of expression. 
• a speaker has the autonomy to choose the content of his message; one who chooses to speak may also decide what not to say. 

Keller v. State Bar

(freedom of association from ideas)

• Facts: Members of CA Bar sued that body alleging it used their membership dues to finance ideological/political activities they opposed.
• Holding: State Bar may constlly use mandatory membership dues to fund activities germane to goals of regulating legal profession and improving quality of legal services, but it may not use dues to fund activties of ideological or political nature. 

Johanns v. Livestock Marketing Ass'n

(freedom of association from ideas)

• Facts: Federal policy was announced promoting the marketing and consumption of beef and beef products using funds raised by an assessment on cattle sales and importation.
• Holding: speech was government speech not susceptible to 1st amendment challenge. Challenges to compelled expression sustained in two types of cases 1) true 'compelled speech' cases where an individual is obliged personally to express a message he disagrees with imposed by the govt, and 2) "compelled-subsidy" cases in whicn an individual is required by govt. to subsidize a message he disagrees w/ expressed by a private entity.

Roberts v. United States Jaycees

(freedom of association from persons)

• Facts: Jaycees only permitted young males to become regular members. This practice was challenged under a state human rights law prohibiting discrimination against women in places of public accommodation. 
• Holding: Law does NOT violate 1st amendment. Bill of Rights affords protection from state interference to intimate relationships involved in family formation and procreation. Relationships between employees in large businesses do not receive this protection. To determine whether a relationship is more like a protected familiar one, it is helpful to consider factors such as size, purpose, policies, selectivity, congeniality, and other characteristics that may be relevant in a given case. Jaycees are outside const'l protection b/c they are large, unselective groups. 

Boy Scouts of America v. Dale

(Freedom of association from persons)

• Facts: Boy Scouts are a private non-profit organization who revoked the membership of an adult Scout for being a homosexual. The man filed suit under a NJ accommodations law.
• Holding: Application of the NJ law to the Boy Scouts violated their first amendment right. The forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints. 

Christian Legal Society v. Martinez

(freedom of association from persons)

• Facts: public university policy required registered student organizations to allow students to participate, become a member of, or seek a leadership position in the RSO regardless of status or belief in exchange for receiving benefits. Christian Legal Society sued.
• Holding: the requirement that student groups accept all commers is justified w/out refrence to content or viewpoint of the regulated speech. Limited-public-forum framework applies. Policy does not prevent CLS from engaging in speech or accepting the members on its own terms, it just doesn't give them benefits. 

• prohibits Congress from passing any law regarding an establishment of religion. 

Oldest of the Establishment clause tests. Three ways to analyze state legislation regarding religion:

1. the statute must have a secular purpose; (purpose prong)
2. its primary effect must be one that neither advances nor inhibits religion, (effect prong) and 
3. the statute must not foster an excessive govt entanglement w/ religion (entanglement prong).

• if any prong is violated, govt's action is unconst'l. 

Lemon v. Kurtzman

(Establishment clause)

• Facts: two states adopted laws providing state aid to church related elementary/secondary schools.
• Holding: law violates the establishment clause b/c the cumulative impact of the law involves an excessive entanglement of the govt w/ religion.

Zelman v. Simmons-Harris

(Establishment clause)

• Facts: OH established a program to provide educat'l choices to families living in bad school districts by giving tuition aid for students to attend a particpating school.
• Holding: a state may enact an educat'l program that provides indirect financial assistance to religious schools if the program truly provides individuals the opportunity to choose other schools. 

Endorsement test

(Establishment clause)

• proposed by O'Connor in Lynch v. Donnelly, asks if the display is an endorsement of religion. Does it indicate to believers that they are political insiders, and to nonbelievers that they are political outsiders?
• GRADUATION PRAYERS, RELIGIOUS SIGNS ON GOVT PROPERTY OR IN RELIGIOUS CURRICULUM. 

• Introduced by Kennedy in Lee v. Weisman, religious invocations fail this test when the price of avoiding the religious speech is being unable to attend something important like a school graduation.
• (graduation prayers, basically any ceremony conducted by the state that subjects people to having to participate if they are to be there). 

Stone v. Graham

(establishment clause)

• Facts: KY statute required posting of 10 Commandments on walls of each public school classroom
• Holding: this violates establishment clause b/c the pre-eminent purpose of the 10 Commandments is plainly religious. 

Lee v. Weisman

(Establishment clause)

• Facts: School principals in public school system were permitted to invite members of the clergy to offer invocation and benediction prayers as part of the formal graduation ceremonies for middle/high schools.
• Holding: Policy violated the establishment clause b/c the govt at a minimum may not coerce anyone to support/participate in religion or its exercise. Prayer exercises in public schools carry a particular risk of indirect coercion. What to most believers may seem nothing more than a resonable request, a nonbeliever may view it as an attempt to employ the machinery of the state to enforce a religious orthodoxy. 

McCreary County v. ACLU

(establishment clause)

• Facts: Ten commandments posted on walls of county courthouses.
• Holding: acting in a way that favors a religious purpose violates the establishment clause b/c 10 commandments are undeniably a sacred text in Christianity and Judaism. Where the text is set out, the insistence of the religious message is ahrd to avoid in the absence of a context plausibly suggesting a message going beyond an excuse to promote the religious point of view. 

County of Allegheny v. ACLU

(establishment clause)

• Facts: ACLU challenged 2-state sponsored holiday displays in Allegheny as unconst'l. 1st is a creche placed on the grand staircase of the Allegheny courthouse, the second is a Chanukah menorah placed outside the City-County building next to a Christmas tree and a sign saluting liberty.
• Holding: Creche violates establishment clause, second display doesn't. inquiry turns on the context in which contested object appears and whether it is viewed as an endorsement of religion; does govt intend to convey a message of endorsement or disapproval of religion?

Van Orden v. Perry

(establishment clause)

• Facts: TX Capitol building contained monuments, one of which had the 10 commandments on it. Resident sued on grounds that it violated Establishment clause.
• Holding: When considered in context, a state action w/ religious undertones is permissible if the action conveys a historic/social meaning rather than an intrusive religious statement. 

• Free exercise clause is violated when the law prohibits the performance of an act specifically b/c of its religious nature.

Locke v. Davey

(Free exercise clause)

• Facts: Washington established the Promise Scholarship Program to assist academically gifted students w/ post-secondary education expenses, but students could not use the $ to pursue a degree in devotional theology.
• Holding: Law did not violate the free exercise clause b/c it's not hostile towards religion; it still allows students to take religious courses, just not to major in religion, therefore no hostility towards religion. 

Employment Division v. Smith

(free exercise clause)

• Facts: Plaintiffs were fired from their jobs after ingesting peyote for a sacramental purposes as a Native American Church service; they were denied unemployment benefits b/c they had been discharged for work-related misconduct.
• Holding: Free exercise clause permits the state to criminalize religous practices that violate GENERALLY APPLICABLE LAWS. 
• where Smith applies, statute must still meet rational basis UNLESS law involves another fundamental right (raising children). 

Church of the Lukumi Babalu Aye v. Hialeah

(free exercise clause)

• Facts: Lukumi Babalu is a Santeria church that practices ritualistic animal sacrifice. Hialeah imposed several ordinances prohibiting such sacrifices.
• Holding:ordinance is facially unconst'l when it is directly aimed at prohibiting religious exercises. 
• Where Hialeah applies, law must meet strict scrutiny.

Taxes & Religion

(establishment clause)

• tax exemption is not sponsorship b/c the govt. does not xfer part of its revenue to churches but simply abstains from demanding that the church support the state. Churches and church buildings may be included in tax exemptions that apply broadly. 
• a targeted tax exemption would violate the 1st amendment.
• Religious groups are not exempt from a generally applicable sales tax. 
• IRS can deny tax-exempt status to schools that practice racial discrimination in admitting students. 

• In some circumstanecs federal or state laws may impose const'l requirements on private actors:

1. when private actor is performing what is essentially a public function, or
2. the private actor is so entangled w/ the govt in some way to justify holding it constitutionally accountable. 

threshold issue: court will not consider the substance of an equal protection/individual librty claim unless there is state action or one of the exceptions applies.

Burton v. Wilmington Parking Authority

(state action)

• Facts: African American man brought suit against Wilmington Parking Authority on the grounds that the Eagle Coffee Shop, a restauraint in WPA's building, refused to serve him food b/c he was black.
• Holding: When a state leases public property to a private entity and forms a relationship of interdependence with that entity, the private lessee must comply w/ the 14th amendment's prohibition of discriminatory conduct. Symbiotic relationship: each mutually contribute to each others' success.

Terry v. Adams

(state action)

• Facts: Jaybird Party was a TX political organization created to hold primary elections & identify candidates that would later run in the Democratic primary. Membership was limited to whites.
• Holding: when a private entity takes over an essentially govt'l function (voting), it is a state actor. 
• it is significant that the Jaybirds practiced the same election procedures as used by county elections. 

Marsh v. Alabama

(state action)

• Facts: town of Chicksaw was owned by a private corporation, but w/ the exception of the private ownership, it opearted as any other town. Marsh distributed religious literature and was told she could not distribute the literature w/out a permit and was denied a permit
• Holding: protections of speech and religion still apply to individuals when operating in a privately-owned town if the town is open to the public and used for public purposes. 

Hudgens v. Nat'l Labor Relations Board

(State action)

• Facts: D owned a shopping center w/ over sixty retail stores. One store decided to strike over labor issues and picketed in the shopping mall & in front of the store.
• Holding: a private shopping mall may constitutionally exclude picketing on its premises even if that picketing relates to the actual activities of the tenant stores. 

Jackson v. Metro Edison Co

(state action)

• Facts: Metro Edison Co was a privately owned electricity company authorized by the state to deliver electricity and cut off electricity to those who didn't pay their bills. Woman had her electricity cut off and convinced Edison to reinstate it under the name of another resident in her home, and her service was eventually cut-off when Edison discovered this deceit.
• Holding: private actions are not subject to constitutional regulations; the fact that Metro Edison was granted a state sanctioned monopoly is not enough to show the private company was acting as the state.
• An action of a private entity would only be treated as state action if there is a sufficiently close nexus between the state and the challenged action of the private entity.

Shelley v. Kraemer

(state action)

• Facts: 30 property owners recorded restrictive covenant that provided no races other than whites were welcome as tenants on their property for 50 years.
• Holding:14th amendment prohibits state courts from enforcing race-based restrictive covenants of private individuals. 
• This is state action because the covenants are secured by judicial enforcement, which makes them actions of state courts. A court may also act as an improper state actor when it enforces a substantive rule that violates individual rights. 

Reitman v. Mulkey

(State action)

• Facts: CA voters passed an amendment to CA prohibiting the state from making laws that prohibited the right of property owners to discriminate against potential renters for any reason; Mulkeys sued Reitmans claiming they refused to rent to them b/c of their race.
• Holding: creation of express right invalidly involved the state in private discriminations in a manner contrary to the EPC.  

NCAA v. Tarkanian

(state action)

• A private party does not engage in state action by virtue of its relationship with a state entity; in a state action case, the question is whether the state provided a mantle of authority that enhanced the power of the harm-causing private party. 

Brentwood Academy

(state action)

• An action taken by a private regulatory association within a state that is composed of public school members and governed by public school administrators constitutes state action for purposes of the Fourteenth Amendment because the state is sufficiently entwined with the private association.

Rendell-Baker v. Kohn

(state action)

• Regulation & funding alone will not make a party a state actor. a private school receiving public $ and subject to public regulations b/c it performs a public service, WITHOUT MORE, does not constitute a state actor. 

Flagg Brothers

(State action)

• Facts: woman was evicted from her home, and her belongings were stored in a warehouse owned by Flagg Brothers. A dispute arose over charges between the parties, and Flagg Bros threatened to sell the woman's belongings under the UCC to satisfy a lien.
• Holding: a plaintiff cannot bring a cause of action for violating the due process clause based on the actions of a private party; Flagg Bros was not a state actor b/c the state merely authorized its action, which does not covert private action into state action. 

Edmonson

(state action)

• a private litigant in a civil case may not use peremptory challenges to exclude jurors on account of their race b/c the exercise invokes state action; a prosecutor is a state actor. when civil case, Shelley v. Kraemer applies b/c it is the judge who dismisses the juror. 

DeShaney

(state action)

• There's no affirmative duty of the state to act to protect individuals from deprivations of their life, liberty, or property by other citizens unless those citizens are prisoners held in custody agaist their will by the state. 

• test for regulations regarding abortion. A regulation is an undue burden when it has the purpose or effect of standing in the way of women seeking abortions. 
• deprivation of liberty interest; when regulation is not an undue burden, there's no deprivation of liberty. IF a regulation is an undue burden, it may still be valid if it meets strict scrutiny. 

• Tend to be in area of family relations and procreation.
• Griswold v. Connecticut (right to non-procreative sex)
• Lawrence v. Texas (some right to engage in same-sex sexual activities)

United States v. Windsor

(equal protection; sexual orientation)

• When practical effect of a law is to impose a disadvantage, a separate status, and a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. United States v. Windsor. 

• Public figure = person pervasively involved in public affairs.
• Limited purpose public figure = those who have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. 

• to be communicative, the person(s) engaged in the conduct must have intended to communicate a message, and there must be a reasonable likelihood that those seeing the conduct will understand the message. 
• if conduct is communicative, it is reviewed under the O'Brien test. 
• If conduct is NOT communicative, rational basis.

• 2 kinds of associations

1. intimate associations (small size to allow intimacy among members and selective criteria)
2. expressive associations (group expresses a message)

If state violates freedom of association, strict scrutiny. 

Neutrality test

(establishment clause)

• govt aid program must be evenhanded in terms of who receives aid. Indirect aid to a religious group is const'l as long as it is part of a neutrally applied program that directs $ through a parent or third party who ultimately controls the destination of the funds.