Constitutional Law Maggs/4th ed. Outline II

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Constitutional Law
Authors Gregory Maggs
Peter Smith
Text Image of Constitutional Law: A Contemporary Approach (Interactive Casebook Series)
Constitutional Law: A Contemporary Approach (Interactive Casebook Series)
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Natural Rights: You are born with certain rights that pre-date government and that you give away in exchange for government offerings. You cannot give up inalienable rights.

Bill of Rights Traditional Rights are split into

  1. Enumerated rights or the numbered rights in the Bill of Rights
  2. Unenumerated Rights or rights not written down that are inferred from the due process clause of the fifth amendment.

Ninth Amendment states that just because these bill of rights are written down, doesn’t mean there aren’t more rights.Do these rights apply to states?

  • - Originally, no. (Baron v. Baltimore)
  • - Post-Civil Ware: States are forced to sign the fourteenth amendment because we don’t trust the states anymore. First section states that all persons born in the US are citizens overruling Dred Scott.
  • - The second section states that no state shall abridge (1) privileges and immunities of the US, (2) Nor shall a state deprive life, liberty, or properly executed due process. (substantive and procedural due process), or (3) the right to equal protection.

Slaughter House Cases[edit | edit source]

F: City tired of slaughter houses in neighborhoods so city creates one big one making a monopoly. Rights are included in due process if they are fundamental. Introduces selective incorporation, this right applies to the states because it is fundamental and not because it is in the bill of rights.The only bill of rights that are not incorporated are (1) grand jury indictment, (2) quartering soldiers, and (3) right to jury in civil cases.

McDonald v. City of Chicago (2010)[edit | edit source]

McDonald v. Chicago, (2010), challenges a handgun ban in the city of Chicago.[1] Otis McDonald was a Chicago resident who wanted to keep a handgun for self-defense.

Heller (2008) says the 2nd Amendment is a fundamental right, and this case incorporates that right through the due process clause of the 14th Amendment.

Saenz v. Roe (1999)[edit | edit source]

This case incorporates the right to travel by requiring states to supply state benefits as soon as you reside there.

Substantive Due Process[edit | edit source]

When legislation infringes on a right '''''Q1. WHAT RIGHT? Comes from the 5th amendment (fed.) and 14th amendment (st.)

  • - Life, Liberty or Property, cannot transgress traditional rights, must be reasonable


  • - Right to Marry.

Right to marry person of choice regardless of race, sex, class but not if you are married to someone else and there is not a right to marry a house, car, etc.Q3. IS IT FUNDAMENTAL?

STRICT SCRUTINY[edit | edit source]

In order to transgress right, the government has the burden to show:

  1. Compelling Governmental interest
  2. Narrowly Tailored to the Interest (but doesn’t have to be the most tailored as possible)


From Williamson (1) The legitimate governmental interest doesn’t have to be the motivation of the legislation. (even one dreamed up by the court is okay,its any possible interest.)(2) It doesn’t have to be reasonably relates. It is enough that a reasonable legislator could have thought it was related.
With Bite (1) The court must inquire as to the actual legitimate governmental interest. (2) Actually has to be reasonable related.

RATIONAL BASIS TEST: Challenger Burden[edit | edit source]

  1. Legitimate Governmental Interest
  2. Reasonably Related To That Interest

Williamson is the standing law, so use Williamson first. Test can be overinclusive, you can ban all apples to prevent bad apples.


Lochner v. New York[edit | edit source]

A state may not regulate the working hours mutually agreed upon by employers and employees as this violates their Fourteenth Amendment right to contract freely under the due process clause.'''''

Nebbia v. New York[edit | edit source]

The Due Process Clause does not prevent states from enacting economic policies such as price regulations to further the public good as long as those policies are not unreasonable or arbitrary. The freedom to contract is no absolute.

West Coast Hotel Co. v. Parrish[edit | edit source]

A state may regulate the minimum wage paid to female employees when the regulation is for the purpose of promoting employees’ health, safety, and general welfare. This is a legitimate governmental purpose. The freedom to contract is not a fundamental right.United States v. Carolene Products Co. State legislatures possess authority to regulate widely-used articles of food for the benefit of the public’s welfare and this legislation will be analyzed under a rational basis test.Williamson v. Lee Optical Co. A state may regulate a business if its legislature determines there is a particular health and safety problem at hand and that the regulation in question is a rational way to correct the problem. It is sufficient that there is a particular health and safety evil at hand for correction and that the particular legislature measure is a rational way to correct it.

Important to Note: All of these rights are negative rights meaning the only requirement is that the governmentcannot take these from you, but thegovernment does not have to provide anything to you.

FUNDAMENTAL RIGHTS Rights deeply rooted in American TraditionWhat fundamental rights do we have so far?'''''

1. Enumerated Rights[edit | edit source]

All rights in the first 8 amendments against both Federal and State (except right to jury trial in civil cases and right to grand jury)

2. Unenumerated Rights[edit | edit source]

  • - Liberty to refuse unwanted medical treatment (Cruzan)
  • - Right to privacy (Griswald)

5th and 14th -Liberty in intimate relations between two consenting adults (Lawrence)Amendment - Right to terminate pregnancy before viability or life of mother affected (Roe) under the - Right of individual to make contracts (Meyer) Due Process - Right to engage in the common occupations of life

Clause[edit | edit source]
  • - Right to acquire useful knowledge
  • - Right to marry
  • - Right to establish a home and bring up children (Meyer, Pierce, Skinner)
  • - Right to travel within the US
5th and 14th[edit | edit source]
Slaughterhouse '''''Cases brought '''''these rights

Amendment '''''under the - Right to come to the seat of government, its seaport, and other Privileges buildings to conduct business and - Right to demand protection of the government on the high seas and inImmunities foreign lands Clause - Right to use navigable waters of the US

Skinner v. Oklahoma Right to Procreation[edit | edit source]

A state law requiring forced sterilization of criminal convicted of crimes of moral turpitude unconstitutionally infringes on the fundamental rights of marriage and procreation. Marriage and procreation, both rights impacted by forced sterilization, are fundamental to the very survival of the human race.

Griswold v. Connecticut Right to Intimate Relations/Privacy[edit | edit source]

An implied “right to privacy” exists within the Bill of Rights that prohibits a state from preventing married couples from using contraception. The protected activities are “prenumbras” that are not specifically enumerated in the Constitution, but instead represent various “zones of privacy” into which the government cannot intrude. Eisenstadt came later to include unmarried couples.

Is it Fundamental? ''''''''''Yes, Right to bodily integrity, you cannot be forced to take life-saving medication.
Roe v. Wade Right to Privacy (not anymore) now Right to Bodily Integrity[edit | edit source]

The constitutional right to privacy protects a woman’s right to choose to have an abortion. However, abortions may be regulated by a state after the first trimester and may be prohibited after the point of viability unless necessary to preserve the health of the mother.

Planned Parenthood v. Casey/ Gonzales Substantial Obstacle in way of Right[edit | edit source]

A state abortion regulation places an undue burden on a woman’s right to 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. The trimester framework established in Roe is overruled. Informed consent, 24 hour waiting period, and parental notification w/ judicial bypass are not undue burdens. However, a spousal notification requirement is an undue burden.

Hellerstedt[edit | edit source]

Requiring a physician having admitting privileges in a hospital no farther than 30 miles and the facility having to meet the minimum standards for ambulatory surgical centers is an undue burden.

Gonzales v. Carhart Right to Bodily Integrity[edit | edit source]

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 abortion.

Meyer v. Nebraska Right to Marry[edit | edit source]

Congress can require restrictions on a right that do not affect the core of the right like requiring a marriage license and a licensed minister or public official to exercise the right.

Zablocki Right to Marry[edit | edit source]

A law that required those who paid child support to receive permission from the court to remarry is unconstitutional because even though they do not explicitly prevent marriage, judges in this situation have discretion to decide whether you can get married or not.

Loving v. Virginia Right to Marry[edit | edit source]

A state may not restrict marriages between persons solely on the basis of race.

Obergefell v. Hodges Right to Marry[edit | edit source]

Moral thought is not a rational basis and therefore states may not restrict marriages based on sex. Rights can apply to new groups of people defeating the requirement that fundamental rights are ones deeply rooted in American tradition.

Moore v. City of East Cleveland Right to bring up children[edit | edit source]

Constitutional protections do not stop at nuclear families and regulations that intrude on choices concerning family living arrangements warrant heightened review. There is a right to chose your family.

Troxel v. Granville Right to bring up children[edit | edit source]

Parents have a fundamental right to make decisions concerning the care, custody, and control of their children.

Michael H. v. Gerald D. Right to claim children[edit | edit source]

An individual must have a right to rebut a presumption that a child is a child of the marriage.

Lawrence v. Texas Right to privacy[edit | edit source]

The Due Process Clause includes a right to liberty in individual decisions concerning the intimacies of their physical relationship. Morals are not a legitimate governmental interest. (overrules Bowers)

DeShaney v. Winnebago County Dept. of Social Services Right to Life[edit | edit source]

There is 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 against their will by the state.Exception: If the state takes away your means to protect yourself such as prison, state mental health facility, and some states include foster homes. Cruzan v. Director, Missouri Department of Health Right to Die? Right to refuse unw. A state may require that a guardian seeking to remove life-prolonging treatment prove by clear and convincing evidence that the person in the persistent vegetative state would have wanted the treatment withdrawn under such circumstances.

Washington v. Glucksberg Physician Assisted Suicide[edit | edit source]

The right to physician-assisted suicide is not a constitutionally protected liberty interest under the Due Process clause. The legitimate governmental interest is the preservation of human life, the protection of vulnerable groups, and the discouragement of state policy from following a path that might eventually lead to involuntary euthanasia. This law is in furtherance of those objectives.

Procedural Due Process[edit | edit source]

q Step One Does the person have a life, liberty, or property interest that is being infringed? (doesn’t matter if it is fundamental) Life: state is trying to kill youLiberty: going to jail, institutionalized, temporary arrest, restraining orderProperty: difficult, condemning land, terminating parental rights, suspend kid from schoolDue Process when employed by the government. You must have the expectation of continued employment or entitlement to your job. Like a tenured government-employed law professor.

Laudermill[edit | edit source]

The government employment contract states that he can only be fired for-cause and also specifies what procedural rights he has. This is a property interest. This could just require a process involving pre-termination hearings. (This example could be changed if the employee were selling FBI secrets to N. Korea, then the government has an interest in acting prompt.)'''''

Wisconsin Statute Example[edit | edit source]

Chief of police can designate an excessive drinker and tell liquor stores not to sell alcohol to them for a year. The liberty to purchase alcohol was not enough. q Step Two What process are you due?

  1. Notice
  2. Articulated Standard (did they tell you not to do that)
  3. Opportunity to be heard and rebut the charges in a meaningful way at a meaningful time

The worse the risk of erroneous deprivation or the worse the consequences, the more process if due.

TEST: The private The risk of The availability
interest + erroneous
of post- deprivation
involved. deprivation. Compared To: The governments interest in acting promptly. safeguards.

A death sentence results in super due process because the private interest involved is the right to life and there are no post-deprivation safeguards. The government has a small interest in being prompt. This results in super due process involving a full trial beyond a reasonable doubt plus a sentencing trial. School suspensions: Under 10 days usually requires notice and an informal hearing and over 10 days requires notice and full hearing.

Equal Protection[edit | edit source]

Must be We get the concept of equal protection from the fourteenth amendment for states and through the fifthreasonable amendment for federal government which is assumed in Cannot infringe due process. traditional rightsPre-Question: Must have Is it a law, regulation, or government action at issue? Procedures Q1. Is there a distinction or discrimination being made?Q2. Why for? Whats the basis for this distinction? Why only these people?

Distinctions based on Race/National Origin (Suspect Class)[edit | edit source]

These distinctions are subject to strict scrutiny and the burden is on the government.

  1. A Compelling Governmental Interest
  2. Narrowly Tailored/Least Restrictive Means

Distinctions based on Gender, Legitimacy (Quazi-Suspect Class)[edit | edit source]

These distinctions are subject to intermediate scrutiny and the burden is on the government.

  1. Important Government Interest
  2. Substantially Related (any reasoning has to be exceedingly compelling.

[Alienage is a quazi-suspect class but is not subject to this test.]

Every other Distinction[edit | edit source]

These distinctions are subject to rational basis and the burden is on the challenger.

  1. Legitimate Governmental Interest
  2. Reasonably Related to that Interest

(Analyze under Williamson and With Bite)

Railway Express Agency v. New York[edit | edit source]

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. The distinction was based on truck ownership.

New York Transit Authority v. Beazer[edit | edit source]

A state regulation that is over-inclusive because it regulates a general class of persons based on the conduct of particular members within that class does not violate the Equal Protection Clause of the Constitution if it is rationally related to a legitimate state purpose. Under rational basis, over or under inclusive is okay. It is not a bad law just because some people who could safely drive transit were not permitted to drive.

Race and Equal Protection[edit | edit source]

Part one of the fourteenth amendment overruled Dred Scott (1857).How is a statute, regulation, etc. discriminatory toward a suspect class?

  1. ''''''''Facially Discriminatory

Strauder v. West Virginia[edit | edit source]

A facially discriminatory statute that states no African Americans on a jury denies a criminal defendant a jury of their peers and the right of the jurors themselves to serve on a jury.

Korematsu v. US[edit | edit source]

They messed up and held that forcing those of Japanese descent to leave the west coast was compelling national security interest and was the least restrictive means. Turns out that this is very over inclusive and therefore should have been held to violate the equal protection clause.

  1. ''''''''Facially neutral but applies in a discriminatory manner

Yick Wo v. Hopkins[edit | edit source]

A new law which states that wooden laundries must get a permit certifying safety from fires. There were 310 wood laundries in San Francisco and 240 are of Chinese descent. None of the Chinese laundries were given a permit and all whites were given a permit.'''''

  1. ''''''''Facially neutral but passed for a discriminatory purpose (hardest to prove)

Tuskegee, Alabama Case[edit | edit source]

The re-drawing of city boundaries to exclude African-American neighborhoods was facially neutral but was passed to prevent African-American’s from voting in the city elections.To show discriminatory purpose, look to (1) the historical background of the decision, (2) the sequence of events including deviations from normal procedure, (3) the legislative or administrative history, and (4) the disparate impact in application.

Disparate Impact[edit | edit source]

Washington v. Davis[edit | edit source]

The new test to be a police officer had a desperate impact in that 70% of Caucasians pass and only40% of blacks pass. The equal protection clause only applies to intentional discriminatory conduct. This is why the Civil Rights Act of 1964 was passed but we are only looking to constitutional violations.* A law that is facially neutral, intends to discriminate but doesn’t actually discriminate still has not been decided. Standing may be an issue.Separate but Equal

Sweat v. Paynter What must be established to show separate but equal[edit | edit source]

  1. Education (tangibles) must be equal like the classes available and the library.
  2. Intangibles, such as notoriety, alumna, prestige, and community, must be equal.
  3. The classroom experience must be equal. This is what defeats almost all upper-level arguments because law and college cannot be taught in a vacuum.
Oklahoma v. Declaren[edit | edit source]

The act of setting apart and the restrictions inhibited the plaintiff’s ability to perform, especially in a graduate setting where free exchange of ideas is necessary.

Brown v. Board of Education[edit | edit source]

Separate educational facilities based on racial classifications are inherently unequal and violate the Equal Protection Clause. Modern studies confirm that the children experiencing segregation feel inferior, become less motivates, and perform at a lower standard than children that do not experience segregation.

Invidious vs. Non-Invidious Regulations[edit | edit source]


Loving v. Virginia[edit | edit source]

A state may not restrict marriages between person solely on the basis of race under the Equal Protection Clause. This is invidious segregation or segregation seeking to harm.Non-Invidious Regulation or Affirmative Action or Segregation seeking to help is treated the same under Strict Scrutiny (1) compelling governmental interest and (2) narrowly tailored except that the compelling governmental interest could be:

  1. Diversity in Education
  2. Remedying prior discrimination caused by that governmental entity
  • Quotas will NEVER work. Race can never be the determining factor nor can it outweigh every other factor. The decisions surrounding this helpful process still requires discretionary measures.
Gratz v. Bollinger[edit | edit source]

A university’s admissions policy that automatically gives preference to minority students on the basis of race, without additional individualized consideration, violates the Equal Protection Clause.

Fisher v. UoT-Austin[edit | edit source]
  1. Court always assumes if you say the government interest is diversity, you mean it.
  2. For narrow tailoring, the reviewing court must be satisfies that no workable alternative (race-related) that would produce the educational benefits of diversity.
Parents Involved in Community Schools v. Seattle School District[edit | edit source]

Public schools may not assign students to schools solely on the basis of race for the purpose of achieving racial integration, although the use of narrowly-tailored, race-conscious objectives to achieve general diversity in schools is permissible.

Shaw v. Reno[edit | edit source]

A redistricting plan violates the Equal Protection Clause if it cannot rationally be understood as anything other than an attempt to separate votes based on race and there is not sufficient justification for the separation.

Gender Discrimination as a Quazi-Suspect Class Intermediate Scrutiny[edit | edit source]

Craig v. Boren[edit | edit source]

A governmental regulation involving gender discrimination is constitutional if it is substantially related to the achievement of an important governmental purpose. A statute prohibited the sale of 3.2 percent beer to male under the age of 21 but permitted the sale to females over the age of 18. The government interest was safety but it was not substantially related because even though there was a statistical difference, it was not enough to justify a broad categorical rule prohibiting sale to males.

United States v. Virginia[edit | edit source]

All governmental gender classifications must be substantially related to an important government purpose that can be demonstrated by the government if it offers an exceedingly persuasive justification for the classifications. An important government interest does not work post-hace, AKA you cant fund a justification after being sued. State run schools, if separated by gender, must have equal (1) facilities, (2) methods of instruction, (3) curriculum, and (4) intangibles such as reputation and alumni.

Orr v. Orr[edit | edit source]

Requiring men, not woman, to pay alimony is not substantially related to the purpose of providing help to needy spouses and to compensate women for past discrimination in marriage and divorce.

Michael M. v. Superior Court of Sonoma County[edit | edit source]

A state statutory-rape law that discriminate against males does not violate the Equal Protection Clause because it deters males from engaging in sexual behavior that might lead to illegitimate pregnancies. When teen pregnancy occurs, these risks are uniquely borne to females. Very few similar risks exist to deter teen males from engaging in sexual activity that leads to pregnancy.

Personnel Administrator of Massachusetts v. Feeney[edit | edit source]

The Massachusetts veteran preference law was enacted to reward veterans for their service, to ease their transition from military to civilian life. Despite the attempted of Massachusetts to include as many woman as possible in the scope of the law, a disproportionate among of men are included largely because gender-based restrictions were enacted by the military itself. Feeny must prove that the legislature adopted veteran preference because of, not merely in spite of, its adverse effects upon woman.

Other Classifications'''''

Alienage/Citizenship[edit | edit source]

Graham v. Richardson[edit | edit source]

States may not condition receipt of welfare benefits on the beneficiary having US citizenship or residing in the US for a specified number of years. The guarantee of equal protection of the laws to all persons necessarily includes lawful resident alience.Aliens are a discrete and insular minority and states will only be able to regulate as a class in narrow circumstances.For federal laws discriminating against undocumented immigrants, apply rational basis. Except, if it is concerning the education and children of undocumented immigrants, apply intermediate scrutiny.For state laws and regulations, apply strict scrutiny. There is a state function exception to which rational basis is applied when looking at citizenship as a pre-requisite for city-mayors, police officers, schoolteachers, and even juries.

Parents’ Marital Status[edit | edit source]


Clark v. Jeter[edit | edit source]

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. There is an important government interest, but the time limitation does not substantially relate to the state’s interests in curbing stale or fraudulent suits. The increasing accuracy and sophistication of paternity tests notably reduces evidentiary issues.

Age[edit | edit source]

Massachusetts Bd. of Retirement v. Murgia[edit | edit source]

A statute instituting mandatory retirement for police officers at age fifty is subject to rational basis review and does not violate the equal protection clause. Age is not a suspect class and everyone (theoretically) will be in this class at some point. Over-inclusive is okay under rational basis.

Disability[edit | edit source]

Cleburne v. Cleburne Living Center[edit | edit source]

The mentally disabled are not a quasi-suspect class and thus any legislative regulations affecting their rights are subject to rational basis review and not intermediate scrutiny. Disabilities are under rational basis because persons require special care for functioning and should be looked at rationally, lawmakers have shown great appreciation for mentally disabled and enact significant legislation prohibiting discrimination against them, mentally disabled individuals are not politically powerless, and mentally disabled persons are difficult to define. In this case, they did not have a legitimate interest (rational basis with bite).This case is the first case where they took into account that lawmakers were doing something fishy with this regulation.

Sexual Orientation[edit | edit source]

Romer v. Evans[edit | edit source]

A law prohibiting anti-discrimination protections for the LGBT community violates the equal protection clause. Colorado votes passed a law that prevented cities from passing antidiscrimination laws on the basis of sexual orientation. Rational basis was applied and it is shown that a whole class of people is unable to seek to protection of the laws. Such a targeted and injurious denial of basic rights bear no rational relation to a legitimate state interest even under the lenient standard of judicial review. Morality isn’t a rational basis. The bare desire to harm an unpopular class can bever be a rational basis.Question 1 - What do those weird rights in Meyer v. Nebraska include (specifically the right to contract and the right to engage in the common occupations of life)?The right to engage in the common occupations of life is a fundamental right but a pretty limited one. It applies to non-specialized occupations. More technical occupations that require specialized knowledge or skills aren't covered. For instances, if your occupation is “handyman” you probably can’t be prevented from being a handyman. However, if your occupation is “plumber” then you might be subject to licensing requirements to be a “plumber” and such regulations would not infringe on your right to common occupation and would be subject only to rational basis.The freedom to contract is another one of those. It’s substance is the right to contract at all, not the right to contract for particular terms. If it’s just a regulation on terms, such as “minimum wage” or “maximum hours”, it doesn’t fall under that right and is just rational basis.We also talked about the right to marriage, and how it covers anything that basically forbids marriage, but lesser things like steps you have to take before getting married don't infringe on the core of that right and are subject only to rational basis.Question 2 - Wait, how do Due Process and Equal Protection fit together? When do you do one, the other, or both? So, Due Process and Equal Protection are usually separate issues and separate analyses. You use Due Process when you are arguing that a government action is infringing on one of your rights. The question there is whether they can infringe on that right.You use Equal Protection when you are arguing that the law discriminates against your certain class, whatever it it. That is, the law isn't equal.The time they do go together is when you are arguing that the law infringes on your right, but the right you are arguing for hasn't traditionally encompassed your group. Think same-sex marriage before Obergefell. In that case, you often have to go through an equal protection analysis to determine whether your group should be held to fall within those people who have the right. If so, then you go back to the due process argument and apply whatever the right gets (strict scrutiny if fundamental). If not, then you go back to the due process argument and apply rational basis. Note that this sort of analysis requires 2 different analyses: Denial of Interracial Marriage prior to Loving - Denial of Right to Marry, Does it extend to Interracial Couples (Equal Protection Analysis based onRace, Strict Scrutiny because Race, Government Fails so included), Right Included, Right isFundamental, so Strict Scrutiny. Denial of Contraception to Unmarried Couples pre-Eisenstadt - Denial of Right to Privacy, Does it extend to unmarried couples? (Equal Protection Analysis based on Marital Status, Probably Rational Basis, Government still failed so included), Right Included, Right is Fundamental, so Strict Scrutiny. '''''When analyzing issues: Always use enumerated rights before due process or equal protection.

£ Pure Speech - Content-Based: Reed v. Town of Gilbert, Arizona (2015)[edit | edit source]

A restriction on speech that is content-based on its face is subject to strict scrutiny regardless of the government’s benign motive or justification. Town passed ordinance preventing posting of signs and applied different regulations to categories such as “Ideological Signs,” “Political Signs,” and “Temporary Directional Signs.” The town cited aesthetic appeal and traffic management as the interests served by implementing the different restrictions based on sign type.This is a content-based restriction and therefore presumptively unconstitutional. The court assumes their reasons are a compelling government interest. However, the ordinance is not narrowly tailored to serving those interests. The town does not provide any evidence that temporary directional signs are less aesthetically appealing or more dangerous to traffic than political or ideological signs. Yet, the ordinance imposes more restrictive regulation on temporary directional signs.

® Pure Speech – Content Neutral (Place): Renton v. Playtime Theatres, Inc. (1986)[edit | edit source]

Content-Neutral time, place, and manner regulations are acceptable under the First Amendment so long as they are designed to serve a substantial government interest and do not unreasonably limit alternative avenues of communication.City enacted a zoning ordinance that prohibited adult motion-picture theatres from locating within one thousand feet of any residential zone, church, park, or school. The ordinance does not ban adult theatres completely, but rather provides that adult theatres cannot be located within one thousand feet of schools. The ordinance should be considered a form of time, place, and manner regulation. The city ordinance can properly be considered “content-neutral” because it is not aimed at the content of films shown at “adult motion-picture theatres,” but rather at the secondary effects of adult theatres on the surrounding community.Should be content based but it is considered content neutral under the secondary effects doctrine. This ordinance is not aimed at the content of the adult films but the secondary effects such as crime and traffic in the area. Really only applied in porn cases.

U Pure Speech – Content Neutral (Manner): Ward v. Rock Against Racism (1989)[edit | edit source]

A regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government’s legitimate, content-neutral interest, but does not need to be the least restrictive or least intrusive means of doing so.New York City required bandshell performers to use sound-amplification equipment and a sound technician provided by the city. The principal justification for the sound-amplification guidelines is the city’s desire to control noise levels at bandshell events which satisfies the significant government interest. The city’s regulation is also narrowly tailored to serve the significant government interest in protecting citizens from unwanted noise. The city is using a direct and effective way of limiting sound volume by the requirement of using the city’s sound technician. The city’s guidelines leave open amply alternative channels of communication because it does not attempt to ban any particular manner or type of expression at a given place or time. Rather the guidelines continue to permit expressive activity in the bandshell and have not effect on the quantity or content of that expression beyond regulating the extent of amplification.

G Incidental Regulation – Not aimed at speech but affects it: US v. O’Brien (1968)[edit | edit source]

If conduct contains both speech and nonspeech elements, an important or substantial governmental interest in regulating the nonspeech element may justify incidental limitations on the protected speech if: (1) the regulation furthers an important or substantial government interest, (2) the governmental interest is unrelated to the suppression of free expression, and (3) the incidental restriction on alleged 1st freedoms is no greater than essential to the furtherance of that interest.Every male was given a military draft card and individual burned his draft card on the steps of the courthouse. The important government interest is that destroying the card will (1) make it difficult to verify registration, (2) complicating communication between registrants and their local boards, (3) eliminating reminders that registrants must update their local boards with address or status changes, and (4) increasing the difficulty of detecting abuses in the use of cards, such as fraud, alteration, or forgery. The governement’s interest and the law only implicate the noncommunicative impact of the conduct of burning the card.

¶ Incidental regulation – Not aimed at speech but affects it: Barnes v. Glen Theatre, Inc. (1991)[edit | edit source]

A generally applicable regulation that furthers a substantial government interest but places an incidental burden on expressive activity does not violate 1st amendment.State law that prohibits anyone to appear nude publicly with the intent to arouse the sexual desires of another therefore targeting nude dancing clubs. Dancing is always pure speech because it always communicates a message but this is still an incidental regulation because it isn’t targeted at dancing. There is a substantial government interest in protecting order and morality and it is narrowly tailored because the law only requires the dancers to wear pasties and g-strings.

ª Prior Restraints – New York Times Co. v. United States (1971)[edit | edit source]

The United States government may be constitutionally permitted to enjoin publication material on the grounds that such publication jeopardizes national security, but the burden for justifying such an injunction is extremely high.The New York Times published excerpts from a top secret study of the Vietnam War conducted by the United States Department of Defense. Governemnt has the highest of burdens to pass the prior restraint test.

{ Conduct – Aimed at Speech: Stranberg[edit | edit source]

State passed a law making it a crime to display opposition to recognized government through burning of a flag. This is not always speech so not pure speech. This is visually expressive and therefore is conduct.This is a particularized message and the message is understood by the reasonable observer. Therefore, it passes Spence. The government does not pass the O’Brien test because its important government interest is related to the content of the speech.

{ Conduct: Texas v. Johnson[edit | edit source]

A state law making it illegal to burn flag for any reason. This still doesn’t pass the test because there is no important or substantial government interest. The only way for this to be okay is to say you cant burn anything.

Vague or Overbroad Restrictions – Anyone can Challenge: NAACP v. Button (1963)[edit | edit source]

State prohibits the solicitation of legal business that occurs when an organization employs, retains, or compensates any lawyer in connection with any judicial proceeding in which it has no pecuniary right or liability. Political association for the purpose of litigation is a form of expression protected by the First Amendment and may not be regulated unless the government does so for a compelling state purpose.Vague or overbroad restrictions occur when a ordinance is not clear and doesn’t draw reasonably clear lines regarding what is prohibited. The test for VAGUE is if men of common intelligence must necessarily guess at its meaning. The test for OVERBREADTH is if speech is restricted that should be allowed.

Unconstitutional Conditions Doctrine: Rust v. Sullivan (1991)[edit | edit source]

A federal law may, as a condition of receiving federal funds, constitutionally restrict fund recipients from engaging in abortion-related activities. The projects that receive funding could not provide counseling concerning the use or provide referral for abortion as a method of family planning. The projects also must be physically and financially separate from prohibited abortion activities.This is not a basis of viewpoint but a chosing of who to fund. The governemnet may make a “value judgement” favoring childbirth over abortion, and may implement that judgement by the allocation of public funds. The government’s asserted purpose for the regulations is to encourage family planning, rather than provide prenatal care. To hold that the government unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advancing certain permissible goals would render numerous government programs unconstitutional. This is government speech and the government can speak.

The Unconstitutional Conditions Doctrine: The government cannot deny a generally available benefit to any person based on their constitutionally protected speech.

K Unconstitutional Conditions: Wabunsee County[edit | edit source]

Trash Truck Driver sues Commissioner because since he has criticized the way the county is operated his trach contract was not renewed as usual. They could have not renewed for any reason meaning he has not right to that contract, but still is unconstitutional because it denied a generally available benefit. The right to compete for this contract is withheld.

¨ Unconstitutional Conditions: Rosenburger[edit | edit source]

University provides funds for student groups in a public forum. The University could choose only to support groups that send a certain message, just cant retaliate for them speaking.

Special Categories of Protected Speech[edit | edit source]

War and Exigent Circumstances/Incitement of Crime: Brandenburg v. Ohio (1969) Klu Klux Klan member arrested and charges for advocating the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism…

The test for Incitement of Crime[edit | edit source]

is (1) where such advocacy is directed to inciting or producing imminent lawless action, and (2) is likely to incite or product such action. (A threat of vengeance in the future is not enough.)The mere abstract teaching of a need to resort force or violence is upheld as protected by the First Amendment because this activity is far different from preparing a group for violent action and encouraging it to commit that action. A statute that doesn’t distinguish between these two types of speech is unconstitutional because it is over-inclusive.

Defamation: New York Times Co. v. Sullivan (1964)[edit | edit source]

A public official political candidate, or public figure may not recover in tort for a defamatory statement relating to his official conduct or a matter of public concern unless the statement was both false and made with “actual malice.”A private figure may not recover regarding a matter of public concern unless that statement was both false and made knowingly or at least negligently.The New Yor Times accused Sullivan of a wave of terror he was leading in his police force. It is undisputed that several of the allegations were either false or exaggerated and therefore NYT was sued. Since bother false and defamatory statements to public officials is individual protected, the 1st amendment also protects the combination of the two. Therefore, actual malice is required to particularize this regulation. Actual malice occurs when the defendant knew that the statement was false or acted with reckless disregard of the truth.

Defamation: Snyder v. Phelps (2011)[edit | edit source]
Community Standards: Standards are from where you view the work. (Where is theviewer?)
Prurient Interests: Characterized by or arousing inordinate or unusual sexualdesires

West Boro Baptist protested a funeral. The protestors occupied a 10 by 25 foot plot of public land approximately 1,000 feet from the church where the funeral was held. Snyder argues that because the protect took place in connection with his son’s private funeral the speech is a matter of public concern. However, this is a matter of public concern.

Obscenity Test: Obscenity gets lesser protection under the 1st amendment[edit | edit source]
  1. Whether the average person, applying community standards, would view that the work, taken as a whole,

appeals to the prurient interest;

1. Nudity is not obscene.2. Depictions of sex not obscene in general.
  1. Whether the work depicts or describes, in a patently offensive (must disgust) way, sexual conduct specifically defined by state law; and
  2. Whether the work, taken as a whole,

lacks serious literary, artistic, political or scientific value.(excludes psychology and biology textbooks)

Obscenity: Roth v. United States (1957)[edit | edit source]

A federal law prohibits the mailing of every obscene, lewd, or filthy book, pamphlet, picture, paper, etc. His conviction was upheld because the speech was only obscene and thus outside protection.

Child Porn is its own separate rule from obscenity.
Child Pornography: New York v. Ferber (1982)

A state may prohibit the exhibition, sale, or distribution of child pornography even if that material does not meet the articulated test for obscenity. Skip the obscenity test, child porn gets its own test. This prohibition is limited to actual depictions of children.

Inciting Violence: “Lets go beat people up!”
Fighting Words: “You wanna fight me?”

Not writings, of age actors pretending to be underage (except, can be convicted with distribution if you represent it is real) and it does not extend to virtual simulation.

Provocative Speech: Chaplinsky v. New Hampshire (1942)

“Fighting Words” that incite others to violence are not protected by the First Amendment from governmental regulations.Jehovah Witness on the corner yelled at person calling him a racketeer and fascist. This was considered fighting words because, by their very utterance, inflict injury or intend to incite an immediate breach of the peace.

Fighting Words: Cohen v. California (1971)[edit | edit source]

Man was convicted for maliciously or willfully disturbing the peach by offensive conduct when he wore a jacket bearing the words “Fuck the Draft.” These were not fighting words because they were not directed at anyone. Everyone had the option of looking away. Objective test but takes into account some circumstances. Racist comments could be inciting but must be directed toward someone.

Hate Speech: RAV v. City of St. Paul (1992)[edit | edit source]

No graffiti, nazi symbols, or cross-burning when one knows or has reason to know it will arise anger, alarm or resentment to others on the basis of race, color, creed, religion or gender. This could be fighting words but it is way too overbroad. Fighting words are very severe and it could include conduct that doesn’t rise to fighting words. This statute doesn’t even reach the true threat. The regulation on “nazi symbols” seems a regulation on content. The main problematic part is “others on the basis of race, color, creed, religion, or gender..” because it is on viewpoints. This law is not neutral in viewpoint because it is this subject matter that arise anger, alarm, or resentment. You can ban fighting words, but not just on the fighting words on the basis of race, etc.The kinds of hate speech subject to government regulation is (1) incitement to violence or crime, (2) fighting words, (3) and true threats such as intimidating or threatening words or conduct not made in jest.

True Threat: Virginia v. Black[edit | edit source]

No cross burning with intent to intimidate a person. The court says this is okay under the true threat doctrine. It reaches anyone who cross burns. The statute itself is viewpoint neutral.

Commercial Speech: Central Hudson[edit | edit source]

Commercial Speech is advertising or other business-related communications. Untruthful commercial speech is unprotected, except for viewpoint. The test for commercial speech is (1) substantial government interest in the regulation, (2) directly related, and (3) restraining speech only to the extent necessary to further the interest.

Commercial Speech: 44 Liquormart v. Rhode Island (1996)[edit | edit source]

A regulation that bans the advertising of liquor prices. The government says their interest is to reduce the consumption of alcohol for health and safety. However, this regulation is not directly related to the interest. This is a ban on truthful, non-misleading commercial messages and that rarely protects consumers from arm. Also, this is not a restraint that is limited to furthering the interest.

Campaign Contributions: Buckley v. Valeo (1976)[edit | edit source]

When you give money to a political candidate you are always communicating a message.The regulation is that individuals cannot contribute more than $25,000 to campaigns in a year. You cannot do this, it is a limit on speech. A regulation that individuals cannot contribute more than $1,000 to anything relative to clearly identified candidate also is not okay.The rules are…

  • (1) Congress can limit the amount individual humans can contribute to any political candidate.
  • (2) Congress cannot limit the amount individual humans can contribute to advocacy on behalf of any political candidate or issue. (PACs)

Corporations are added to these rules by Citizens United.

McCutcheon v. Federal Election Commission (2014)[edit | edit source]

A law restricting hw much money a donor can contribute in total to all political candidates or committees is unconstitutional under the first amendment. The first amendment protects participation in the democratic process. A law seting an aggregate cap on donations to individual candidates and committees is not sufficiently related to avoiding corruption.

Garcetti v. Ceballos (2006)[edit | edit source]

Unlike speech by a government employee made as a private citizen, speech, even on matters of public concern, is not protected under the First Amendment if it is made while on the job and as part of his or her duties.

Other Categories: US v. Stevens (2010)[edit | edit source]

A federal law that seeks to ban visual and auditory depictions of animal cruelty is overbroad in violation of the first amendment. (It also applied to videos of hunting.) '''''

FREEDOM OF THE PRESS[edit | edit source]

How do we define members of the press? No special rights of the press to:

  1. Refuse to testify in front of grand juries
  2. Not reveal sources
  3. Limited right related to search warrants
  4. Test for Search Warrants: Warrants must set out the items to be searched for/framed with “scrupulous exactitude.” (Zurcher case)

Grand Juries: Branzberg v. Hayes (1972)[edit | edit source]

Under the First Amendment, a state may constitutionally require a news reporter to appear and testify before state or federal grand juries about information the reporter obtained in confidence.

Search Warrant: Zucher v. Stanford Daily (1978)[edit | edit source]

It does not violate constitutional protections to issue a search warrant for the offices of a newspaper even though the object of the search could be demanded through the issuance of a subpoena.

Requiring the press to provide media access to others: Red Lion Broadcasting v. FCC (2969)[edit | edit source]

The First Amendment permits a federal agency to formulate rules to allow persons defamed or potentially defamed access to equal air time to respond, and to establish a “fairness standard” for editorial speech by broadcast radio stations.

Political Candidates right to reply: Miami Herald Publishing Co. v. Tornillo (1974)[edit | edit source]

Under the First Amendment, a state may not promulgate a rule providing political candidates criticized in a newspaper a right to reply to newspaper editorials.

Freedom to Attend Criminal Trials (both public and press) Strict Scrutiny-ish[edit | edit source]

  1. Compelling Government Interest in closing proceeds (national security, risk to life of witness)
  2. Restriction is narrowly tailored to protect the interest while preserving the right of access as much as possible

First Amendment Right as a Government Employee: The Pickering Balancing Test[edit | edit source]

Private person on a matter of public concern. Remember that if it is a private employer, they can fire you for picketing.Your interest in speaking on a matter of public concernVSGovernment’s interest in limiting speech in order to ensure proper performance of government function.Example: Police officers cant make racist remarks or engage in racist activities.Example: Teacher rights letter to the editor criticizing school board’s poor policy choices. They want to fire her. She can even say “Im a teacher” so long as not maintain she is speaking on behalf of her job. Teacher Wins.Example: Federal agency wants to build a wall. Agency’s legal council identifies problems under existing law with doing that. He can get fired because he is doing his job.

Freedom of Association[edit | edit source]

  1. ''''''''An individual cannot be penalized for joining a group nor can an individual or group be penalized simply for the conduct of some of its members.

Exception A: You don’t have a right to associate in a non-expressive group. (street gang)Exception B: Not every gathering is an “association” not withstanding that the conduct engaged is expressive.Ex. Two people who happen to be dancing in the same vicinity does not mean they are associating. Dance hall only for teens and teens said right to association, but nope you aren’t associating for that purpose. Exception C: No right to associate for criminal purposes.Smith Act: Outlawed MEMBERSHIP in the American Communist Party because the party advocated for the violent overthrow of the American government. NOTO v. US struck down outlaw membership because it is an expressive association with a message.It is enforceable against someone who actively advocates the overthrow with the intent to succeed.

Group Liability from NAACP v. Clarborne[edit | edit source]

You cannot hold a group liable for the acts of some members unless (1) the group possessed unlawful goals and (2) either directed or ratified the action.

Request Membership Statement from Baird v. State Bar of Arizona[edit | edit source]

The question was “Have you ever been a member of a group who advocated for the toehrthrow of the government?” You cant just ask about being a member, because being a member doesn’t mean anything.

  1. '''''Organizations cannot be compelled to reveal their membership absent a compelling government interest.

This would have a chilling effect on association rights. (NAACP v. Alabama)Interest must outweigh the individuals need for animosity. (Political donors pass this test.)

  1. '''''The freedom to associate includes the freedom to not associate with others when such association would significantly impair the purpose or message.

KKK can exclude blacks and jews. Often in conflict with anti-discrimination laws but this right usually wins out.

Exclude from Hurley v. Irish American GLB Group of Boston[edit | edit source]

(1) Group has latitude to determine message and (2) court will look at whether the message is truly impaired.Roberts: Junior Chamber of Commerce cant exclude women because nothing to do with purpose.Dale: A homosexual leader can be excluded from the boy scouts because the purpose is cleanliness and that impairs that message.

Freedom of Religion[edit | edit source]

Establishment Clause: Congress shall make no law respecting an establishiment of religion. Been interpreted as: Government cannot favor religion over non-religion and vice versa and cannot favor a particular religion over another.Government Aid to Religion (From Everson case)

  1. Neither a state nor federal government can set up a church.
  2. Neither state nor federal can pass laws which aid one religion, aid all religions, or prefer one religion over another.
  3. Neither state nor federal can force or influence a person to go away or to, or remain away from a church. (or force them to profess a belief or dis-belief any religion.)
  4. No person can be punished for entertaining or professing beliefs or disbeliefs or for church attendance or non-attendance.
  5. No tax, in any amount, large or small, can be levied to support any religious activities.
  6. Neither state nor federal can openly or secretly participate in the affairs of any religious institution or vice versa.

Establishment Clause Lemon Test: Does this action offend the establishment clause?

  1. Whether the law has a secular (non-religious) purpose?
  2. Whether the primary effect is neither to advance nor inhibit religion?
  3. What is a primary effect?
    1. Does it result in government indoctrination, coercion, or endorsement?
    2. Does it define its recipients with reference to religion?
    3. Does the law excessively entangle the government and religion?

Bus Fairs: Everson[edit | edit source]

NJ law that reimburses bus fairs for school children, no matter what school they go to, whether public or private. What if the school is a private religious school? Then tax payers are paying to support religious activities.This is a non secular purpose, with no religious primary purpose. It is okay to treat religious school like other private schools.

Lemon Case[edit | edit source]

Lemon v. Kurtzman: State gives private school teachers a salary supplement not to result in higher salaries than public school teachers. Limited to secular subjects, and must have accounting procedures to ensure money is not toward religion.This is a violation because they have to investigate what is religious subjects and that is excessive entanglement between church and state. They also don’t like giving money directly to schools.

School Vouchers: Cleveland School District[edit | edit source]

Kid can either (1) go to public school, or (2) apply for voucher to take to any private school and we will pay part of your tuition. (AKA what it would have cost us to have you in public school.)There is a secular purpose and primary purpose is okay because it doesn’t make them fo to religious schools, doesn’t define recipients, and money is given to parents so it does not excessively entangle. Vouchers are generally okay unless the purpose is to funnel kids to religious schools.What might violate primary effects?

  1. Can churches come into schools and teach classes on their religion? No this is a non-secular purpose and it endorses religion. (McCollum Case)
  2. Can public schools excuse kids from class to go offsite to a religious class? This is okay, this goes along with accommodations with religious practices.
  3. School prayers? Cant do that. Endorsing. Period of slience for meditation or voluntary prayer, no endorsement.
  4. Prayer before Congress? Secular purpose is argued as tradition. If you do something long enough and it becomes traditional ceremonial act, there is no religion to it. (March v. Chambers)

We only teach evolution in schools because it’s the only thing we have some proof of.

Religious Displays[edit | edit source]

Nativity Scene on Courthouse Lawn: Lynch v. Donnaly[edit | edit source]

Endorsement is based on a casual observer standard. Would a casual observer think this is an endorsement?With respect to holiday displays: Does the secular purpose outweigh the religious one? ThreeReindeer Rule (If you are putting up a nativity scene, put up three reindeer too)Establishment Clause Lemon Test: Does this action offend the establishment clause? 1.Whether the law has a secular (non-religious) purpose?

  1. Whether the primary effect is neither to advance nor inhibit religion?
  2. What is a primary effect?
  3. Does it result in government indoctrination, coercion, or endorsement?
  4. Does it define its recipients with reference to religion?
  5. Does the law excessively entangle the governement and religion?
  6. The effect of the courts decision will, to the casual observer, make the courts decision look as if the court is favoring or disfavoring religion?

10 commandments in a courthouse: Endorsement regardless if you put other stuff with it.10 commandment statute that has been in front of the courthouse for 50 years: Okay.Jesus picture in gym: Endorsement

Giant Ass Cross (Blatansburg)[edit | edit source]

It’ll stay since its been there for 100 years.Not a rigid test anymore but still use the test and weigh each side.'''''

Unemployment: Sherbert v. Verner[edit | edit source]

Seventh Day Adventist with Saturday Sabbath, fired because cant work Saturdays. Applied for unemployment. State denies because she is not “ready to work.”Substantial Burden: We are requiring her to chose between her religion and a generally available public benefit. What is a generally available public benefit? Would they qualify for the benefit but for their religious?Court says this is NOT narrowly tailored.

Native American Church: Smith Case AKA worst decision in SC history[edit | edit source]

Payote as sacrament and fired, filed for unemployment. State denies because fired “for cause” by breaking the law. A neutral law of general applicability receives only rational basis.

Wisconsin v. Yoder[edit | edit source]

Hybrid Laws still get strict scrutiny.Right to Parents to bring up Children and ReligionCompulsory school attendance when Amish don’t send kids to school after 14.

Free Exercise Clause[edit | edit source]

Free Exercise Clause is concerned with governement action imposing a substantial burden on the free exercise of religion.

Q1. What is a substantial burden? (Sherbert)[edit | edit source]
  1. Imposing criminal or civil sanctions on any type of religious service or conduct.

Outlawing what your religion requiresRequiring something your religion forbids

  1. Denial of the Right to participate in the political affairs of the community because of belief or religious position
  2. Requiring a person to chose between their religious beliefs and receiving a generally available government benefit.

General available to those who qualifyPerson or OrganizationLosing tax exempt isn’t generally available because most organizations don’t get tax exempt statusWhen looking at substantial burden, the court will not look at the sincerity of the belief.

Q2. Strict Scrutiny[edit | edit source]

Aimed at Religious Practice, State they are aimed at religion, Facially neutral but (1) applied discriminatory, (2) discriminatory purpose.

  1. Compelling Government Interest
  2. Narrowly Tailored

Q3. A neutral law of general applicability received only rational basis. Federal Law throw this out under RFRA so for federal action go to strict scrutiny/substantial burden. State law still uses rational basis.Q4. A hybrid case, where free exercise and an additional fundamental right is at issue, strict scrutiny is still applied regardless if it is neutral with general applicability.

Animal Sacrifice: Church v. City in Florida[edit | edit source]

Law prohibits sacrifice of animals not for consumption. Law prohibits slaughter of animals with or without consumption except for license slaughterhouse. Looks neutral but passed for discriminatory purpose, therefore, strict scrutiny.

Masterpiece Cake Shop[edit | edit source]
City Anti-Discrimination Statute Usually anti-discrimination statutes are facially neutral -> Rational Basis But: Gives exemptions to person whose it violates their values, Commissioners were hostile to cake baker, applied in discriminatory manner, therefore -> Strict ScrutinyIn between establishment and free exercise clause
Degree: Locke v. Davey[edit | edit source]

Scholarship Program provides any student with funds for college classes except for a degree in devotional theology. This is not a publicly available benefit because not available to theology majors and therefore does not violate free exercise clause, this isn’t but for your religion. You can use the money for anything, so it doesn’t violation the establishment clause.

Church Playground: Trinity Lutheran[edit | edit source]

State progeam buys old tires for playgrounds, any nonprofit can apply to get it for free. Trinity won the grant but they went back and said nope, not giving it to religious institutions. This is a violation because they didn’t say “not available to religious institutions.”

Contracts Clause[edit | edit source]
  1. No substantial impairment
  2. Significant and legitimate purpose behind regulation such as remedying of a broad and general social or economic problem
  3. Law reasonable and appropriate for its intended purpose
  • Contract must be already in effect at the time the law or regulation is passed.
Home Building & Loan Assn. v. Blaisdell (1934)[edit | edit source]

During the Great Depression in 1933, Minnesota responded to a large number of home foreclosures in the state by passing the Minnesota Mortgage Moratorium Law which extended the amount of time for mortgagors to redeem their mortgages from foreclose contrary to the terms previously agreed upon in the mortgage contract.Substantial Impairment? The court said it was a big impairment but not “substantial” because they were not canceling the debt, they are just impairing one of the remedies (foreclosure) you would be entitled to and this is a temporary stop.Significant Purpose? This is an emergency because we are in the middle of the Great Depression.Reasonable? This is going to give farmers the chance for some breathing room so they can bounce back.Therefore, contracts clause is not violated.

Allied Structural Steel Co. v. Spannaus (1978)[edit | edit source]

In 1974, Minnesota passed a law which required private employers to pay a fee if they terminated employee pension plans or moved their officers away from thr state, leaving insufficient funds to cover the pensions of employees having worked for the companies for over ten years. Basically, requiring private employers to pay a pension.A state may not pass legislation that retroactively and significantly affects the contractual obligation of an employer to provide a pension plan for its employees. They can enact this law for all employees going forward. However, retroactive implications is a substantial impairment.

Sveen v. Melin (2018)[edit | edit source]

Married couples list their spouse as a beneficiary on life insurance but never change it when they get divorced. Minnesota remedied this issue by passing a law that automatically revokes all revocable beneficiary designations to your spouse on divorce.

  1. Significant Impairment? No, because you can always change the beneficiary back to your ex-spouse if you want to. This benefits most people and the ones it doesn’t has an easy fix. This doesn’t take your right, it just requires you to take one more step to reaffirm that contractual relationship.
  2. This is a broad social problem that Minnesota is fixing with this regulation.
  3. Reasonble

Takings The government can take your property for public use with just compensation. (Most arguments are over what is just compensation.)When does a takings occur?

1. Physical Taking[edit | edit source]

The government comes to you and takes your property to build a road. It doesn’t matter how big or small it is, you still get compensation.It is a taking if the government requires cables to be installed in an apartment building.

LORETTO V. TELEPROMPTER MANHATTAN CATV CORP., Supreme Court of theUnited States (1982)[edit | edit source]

Teleprompter Manhattan CATV, would obtain permission from property owners to run cable through their premises. In exchange, for this permission the Respondent would pay the owners 5% of the gross revenue recognized from the installation of cable in the apartment buildings. In 1973, the New York legislature passed an act stipulating that a landlord “could not interfere with the installation of cable television facilities upon his property.” (Industry Friendly Statute) Issue #1. Does a minor, but permanent physical occupation of property under the authorization of the government constitute a “taking”? ℙ: This installation is a trespass. [Class Action inverse Condemnation, need compensation]


  1. '''''''' '''REGULATORY TAKINGS

BRIGHT LINE RULE #2. Regulations that wipe out all economic value are takings.When a regulation declares off-limits all economically productive or beneficial uses of the land, that are not already regulated inherently, it goes beyond what the relevant background principles (normal nuisance or property law regulations) would dictate and compensation must be paid to sustain it.

US v. CAUSBY (1946)[edit | edit source]

In between Actual and Regulatory Taking.In 1942, the US began using an airport next to Causby’s chicken farm which passed less than 70 feet over the farm. The noise and lights from the planes were overwhelmingly intrusive and led to the death of 150 chickens.Even though to plane doesn’t actual touch the ground, this is a physical taking. It is as if they ran a road through the property. Generally, flights over private land do not constitute a taking, unless they are so low and frequent that they cause a direct and immediate interference with the enjoyment and use of the land.Here, the low and frequent flights were the direct and immediate cause of a diminution in the value of the land.Regulatory Takings Test:

  1. Does it deprive the property owner of all beneficial use of the property? (Really not all, but actually a lot of the beneficial use.)

PENN CENTRAL TRANSPORTATION CO. V. CITY OF NEW YORK, Supreme Court of the United States (1978)[edit | edit source]

Penn Central’s property was designated as landmark under New York law and therefore subject to city preservation restrictions. As a result, Penn Central was prohibited from building the two proposed structures on top of its building. Penn Central sued alleging that the restrictions. As a result, Penn Central was prohibited from building the two proposed structures on top of its building. Penn Central sued alleging that the restrictions constituted a “taking” by depriving it of the gainful use of its “air rights” above the Terminal.Grand Central Station may continue to be used precisely as it has in the past, they didn’t show that they were deriving primary beneficial use of the property. In addition, the restrictions imposed did not prevent Penn Central from all construction on top of the terminal.Courts look to the extent regulation interferes with DISTINCT INVESTMENT BACKED EXPECTATIONS. Regulations that harm economic wellbeing can withstand. Action does not interfere with what the government can already do. When you got the property, what were you expecting?

You have a business that sells eagle feathers. Government prohibits the sale of eagle feathers. Did the government take your property? No. You still have these feathers, you just cant sell them, but there is a lot of other things you can do with them.Surface Rights and Mineral Rights.. Law says no coal mining on property. Pennsylvania Law says these are two different interests in land. All of the mineral rights are worthless. Therefore it is a taking.What is Public Use? RailroadBlighted Land for Private Use (Nuisance on Public)

KELO V. CITY OF NEW LONDON, Supreme Court of Connecticut (2000)[edit | edit source]

In 2000, the city of New London approved a development plan that, in the words of the Supreme Court of Connecticut, was “projected to create in excess of 1,000 jobs, to increase tax and other revenue, and to revitalize an economically distressed city, including its downtown and waterfront areas.” The city purchased property and seeks to enforce eminent domain to acquire the remaining parcels from unwilling owners. The City did not plan to open the condemned land to the general public, nor were the private lessees of the land required to operate like common carriers.ℙ: The development plan violates the 5th amendment because it is not for public use.⧋: A statute under Connecticut Law allows takings for the good of the public. Two Burdens for Proving Eminent Domain:

  1. The takings of the particular properties at issue were “reasonably necessary” to achieve the City’s intended public use; and
  2. The takings were for “reasonably foreseeable needs.”The Unites States Supreme Court says:

The constitution provides only limited protection, states are free to enact harsher rules, or amend their conditions.Dissent: The property is in the two cases cited by the concurrent judges were cases in which the property was taken because it was run down and improved to achieve a public benefit. Here the property has not run down (the pre-condemnation situation had to be bad). Most of theproperties that have been “taken” in the past have been owned by minorities.There needs to be clear public use. The constitution had this amendment for this specific scenario, to prevent the taking of property by the government and transferring it to private entities. Every home would produce more revenue as a Walmart. What are the limits?Thomas, Dissent: Most of these types of economic development plans don’t work, should this matter to the court?

After Kelo[edit | edit source]

Some states have passed laws saying, “economic development alone is not a valid public use.” Other states have codified tougher standards of review for public use.

STATE ACTION[edit | edit source]

Judicial Function Exception[edit | edit source]

Company Town Doctrine: Any entity providing the same function as a public town is subject to the same restrictions. (A company that owns the entire town, like Celebration, Florida is all owned by Disney back in the day. This really doesn’t happen anymore.) It doesn’t apply to shopping center.

Parking Garage with Restaurant Store Front. Restaurant discriminates on the basis of race. Is it state action? The City owns the parking garage and is basically a landlord. If the city is the landlord, it gets to make the rules and its responsible for its tenants.Doesn’t go the other way. ICE rents from private landlord. Protestors at ICE. ICE calls private landlord to tell them to leave. Cant do that. Government cant shed its responsible by using a private person. Place that government rents is treated the same as a place where the government owns.

References[edit | edit source]