Protects the privileges OR immunities of nat'l, not state citizenship (most significant in practical terms)  

Court rejected argument that 14th Amendment enforcement clause incorporated the Bill of Rights to apply to the states.  

1. 3rd - Quartering of Troops
2. 5th - Grand Jury Requirement
3. 7th - Right to Jury (Some Civil Suits); AND
4. 8th - Excessive Fines

The P&I clause protects the right to travel by:

1. Allowing citizens to move freely b/w the states
2. Securing the right to equal treatment in all states when visiting; and
3. Securing the rights of new citizens to be treated the same as long-term citizens living w/in the state

**McDonald v. Chicago (2010) - Incorporation - (2)

Test for When to Incorporate a Right Against a State

A Bill of Rights guarantee applies to the states IF:

1. It is fundamental to the nation's scheme of ordered liberty; OR
2. Deeply rooted in the nation's history and tradition

Under the 14th Amendment, Congress does not have the power to pass laws prohibiting discrimination by private citizens.  

Credited in part w/ creating State Action Doctrine

1. Public Function Exception; 
2. Entanglement Exception; and
3. Entwinement Exception.  

1. If it looks like the gov't, its the gov't;  
2. Duck Doctrine

The 1st and 14th Amendment protections of speech and religion still apply to individuals when operating in a privately owned town if the town is:  

1. Open to the public; and
2. Used for public purposes.  

1. Should not be read broadly;  
2. Should look to history to see if, historically, it was a gov't function;  
3. Public Function limited to something historic and traditional; 
4. Whether activity has been exclusively done by gov't

A private political party that controls the outcome of elections is engaging in state action, thereby making it subject to the 15th Amendment.  

Holding private election was public function.  

Where the tradition of municipal control and public use of a park has been firmly established, park managers cannot discriminate if the management becomes private.  

Not historic - but tradition was of public ownership.  

1st Amendment right to peacefully picket on premises of privately owned shopping center because is serves as the community business block and is open to the general public (replaced down town).  

Court found it similar to town in Marsh

Private business may constitutionally exclude distribution of flyers on its property when they are unrelated to mall and there is an alternative means of getting out message

Court essentially rejected Logan by saying difference was that Logan was a specific union protesting a specific store, AND the protesters had an alternative place to hand out flyers - the street.  

1. Court rejects Logan; 
2. Shopping malls are private property; AND
3. You have NO gov't action (no constitutional protection), even though its a public gathering place.  

1. State court enforcement of racially restrictive covenant is state action under EPC of 14th Amd.  
2. Judge Enforcement = State Action
3. Limited in scope b/c courts just ignore it, EXCEPT
4. As safety valve for defamation cases (NY Times)  

Conduct is "fairly attributed" to the state when:  

1. It is caused by the exercise of a right created by the state (system to execute prejudgment); and
2. The actor is one for whom the state is responisble (sheriff) 

1. Existence of the Scheme
2. Person of Sheriff for Enforcement

·      The granting of a liquor license to a private club that discriminated against non-whites is NOT ENOUGH entanglement to implicate the state action

State action can be invoked it state law significantly encourages and involves the state in private discrimination.  

Prop 14 - Similar to gay rights issue today

1. 1st 8 Amds. and 14th Amd. - Very Individual, personal rights; and
2. 9th Amd. - Says constitution is not exhaustive list, SCOTUS decides these "unwritten rights"

Ex. Right to Privacy and Right to Abortion

1. Substantive DP;
2. To include social Darwinism to encourage laissez faire economy.  

NO LONGER recognized - court hinting back at it

A state may not legislate in such a way as to deprive its citizens of liberties guaranteed by the DP Clause  

1. State may not legislate in such a way that deprives citizens of liberties guaranteed by DP Clause;  
2. Right to K was part of substantive DP;  
3. Court must determine if limit on K is appropriate exercise of police power

+ Every sovereign gov't has police power, including states and nat'l gov't, to regulate population re issues of:

1. Health;
2. Welfare, and
3. Public safety.  

A restriction on the manufacturing of items is an interference with the contractual bargain between buyer and seller that can only be upset in the interests of state police power    

Price controls that are arbitrary, discriminatory, or demonstrably irrelevant to the policies of the legislature, are unconstitutional because they are unnecessary and unwarranted interferences with individual liberty.    

A state may regulate the minimum wage paid to female employees when that regulation is for the purpose of promoting employees’ health, safety and general welfare. 

Roberts switch - from this case forward - substantive DP was not going to be applied to economic liberties  

1. When evidence exists in support of economic or social legislation, then it is not the place of the judiciary to second-guess the legislative reasoning
2. Court switched to using substantive DP for little guy
3. Footnote 4 - discrete and insular minorities protected in political process

1. Grossly excessive (145:1) punitive damages violates D's substantive due process under 14th Amendment;  
2. Court was state actor.  

1. NO legitimate purpose; OR
2. No rational relationship b/w purpose of law (rational basis)  

1. Classification; AND
2. Level of Scrutiny

1. Strict Scrutiny; 
2. Intermediate Scrutiny; AND
3. Rational Basis.  

Applies to Racial or Nat'l Origin Discrimination

Gov't has burden to show:  

1. Law is necessary to achieve a compelling purpose; AND
2. Gov't used least restrictive means to do so.  

Applies to gender and non-marital children discrimination;

Gov't has burden to show:  

1. Important interest in discriminating; AND
2. Significant relationship b/w the interest and discrimination

Claimant has burden of showing:  

1. Discriminatory purpose; AND
2. Discriminatory effect.  

Hard for P to show both.  

1. Race; 
2. Nat'l Origin; 
3. Ethinicity.  

1. Gender; and
2. Non-Marital Children

Claimant has the burden of showing:  

1. No legitimate gov't purpose; OR
2. No rational purpose.  

1. Immutable Characteristic; AND
2. History of Gov't Discrimination

1. Facial; OR
2. Non-Facial

1. Separate but equal is OK under EPC of 14th Amd.;
2. Upheld Jim Crow

1. Dred Scott
2. Plessy v. Ferguson

1. War Time Stress; 
2. Military Overstatement; AND
3. Racism.  

1. Scott - NO EP for slave, not people;  
2. Plessy - Separate but equal; and
3. Korematsu - EP, but under SS

1. Biggest challenge to judicial review since Marbury;  
2. Eisenhower sent army; 
3. In response to desegregation.  

P must show: 

1. Discriminatory purpose; AND
2. Discriminatory effect.  

1. Gov't action that denies access to pool to ALL persons does not violate EPC;  
2. Limit on how far court would go to require pool to be open.  

1. Did not designate level of scruting for AA; 
2. Race could be factor, but not decisive factor (quota); and
3. Had to be holistic view.  

1. No level of scrutiny for AA;  
2. Race could be used as factor, not quota; 
3. Holistic view.  

1. AA has no level of scrutiny; 
2. AA OK as remedial tool for now;  
3. Schools may consider race so long as non-decisive factor; 
4. Race could not be contributing factor; and
5. Only holistic approach OK.  

1. Gender discrimination subject to IS
2. Some times it is necessary to discriminate based on gender

1. All gender classifications must be substantially related to important gov't purpose;  
2. Watch for benign, but archaic attitude.  

Under inclusive legislation is OK under EPC, so long as the line drawn by state is rationally supportable

Ex. Disability program did not apply to some conditions only affecting women for legit reason, but also did same for men.  

1. AL statute unconstitutional b/c no rationally related to legit state objectives proposed by statute; 
2. Only required men to pay alimony, not women.   

The fed. gov't may classify on the basis of race, but only when there is:

1. An important gov't interest; AND
2. The means are substantially related to the interest.

Intermediate Scrutiny!

1. For legal aliens EPC does apply;
2. Generally, restrictions based on alienage are subject to SS.  

1. Where citizenship is important - voting, holding office; 
2. Jobs connected w/ being American, having power and influence - police officer, teacher, parole officer.  

1. Courts do not go through traditional IS analysis; 
2. If you have allowed categorical denial against non-marital children - NOT OK; BUT
3. If categorical discrimination just contains rebuttable presumption, OK

1. Marry
2. Custody of One's Children
3. Keep the Family Together
4. Parents to Control Upbringing of Their Children
5. Procreate
6. Purchase and Use Contraceptives
7. Abortion
8. Refuse Treatment
9. Vote

1. Rejected Presumption - Normally in best interest of child to spend time w/ grandparent, b/c failed to provide for FR of control of upbringing of children
2. Did not eliminate GP rights, but shut door for visitation petition for just anyone.   

1. Right to have offspring is FR, apply SS
2. Implicitly reversed Buck v. Bell
3. Sterilization is unconstitutional

1. SCOTUS conclusion that constitution protects right to abortion prior to viability; 
2. What types of staet regulations are permissible or unconstitutional; 
3. Decisions concerning laws that prohibit use of gov't funds or facilities for performing abortions; 
4. Spousal consent and spousal notification required for married woman's abortion; AND
5. Law re ability of state to require parental notice and/or consent for unmarried minor's abortion.  

Bright Line Rule: 

1. Woman has right to abortion pre-viability; 
2. State has interest in protecting human life post-viability.  

1. The point which life begins; 
2. No certain point - moving target; 
3. Usually around 2nd trimester

1. Spousal notification for abortion is unconstitutional b/c overly burdensome; 
2. Requiring parental notification is constitutional, so long as 1) there is medical emergency exception and 2) a judicial bypass procedure; 
3. Pre-Viability - Right to Privacy prevails; 
4. Post-Viability - Power of state to protect life prevails; 
5. Law is invalid if purpose/effect is to place substantial burden in obtaining abortion pre-viability

1. Can regulate pre-viability, so long as no undue/substantial burden on woman's right; 
2. Post-viability, state can regulate as sees fit, to the point of prohibition; 
3. EXCEPT, any regulation, including post-viability, must have exception for 1) mother's health, OR 2) life.  

1. 24-hour waiting period NOT UNDUE BURDEN; 
2. Spousal consent is UNDUE BURDEN; and
3. Legal Q - Requires medical evidence.  

1. Homosexuality is NOT FR; BUT
2. Intimate sexual relationships b/w consenting adults is FR; 
3. Dealt w/ sodomy law in TX; 
4. Found no clear scope in law, vague.  
5. Not sure if ALL laws would be unconstitutional, but probably would be

1. Min - Gov't gives notice & opportunity to be heard; 
2. + Some say by fact finder; 
3. + Heard by impartial tribunal (typicallly judge); 
4. + Examine evidence, subpoena power, discovery, confront Ws; 
5. + Right to counsel, experts, or tests; 
6. Max - Capital defense L w/ right to appeal, habeas corpus, seek commute of life sentence, or pardon by governor.  

1. Look at what gov't is trying to take; 
2. More serious - more DP to reduce chance of error

1. Must be intentional; 
2. No negligence; 
3. No recklessness; AND
4. No failure to act.  

Poor Joshua Case

There are no positive constitutional rights, only negative.  

You can assert right as a shield, not a sword

Can't force the gov't to do something, only prevent it from doing something.  

1. Political Liberty - Freedom to Govern yourself
2. Individual Liberty - Freedom to do what you want w/out gov't interference

1. If a prisoner is removed to a worse condition that is a significant diminuation of liberty = allowed some process
2. Must be a legitimate peneological interest in your safety or safety of others
3. Needs notice, heard by impartial tribunal (usually guard/warden), and periodic review

1. Consider seriousness of deprivation; 
2. Risk to Too Little DP to P; 
3. Risk of a Bad Decision (Wrong One); 
4. Cost to Gov't

1. Establishment of Religion; 
2. Free Exercise of Religion; 
3. Freedom of Speech/Press; 
4. Peacebly Assemble; AND
5. Petition Gov't for Redress of Injury.  

1. Part of political process and necessary to self-govern;
2. Permits advances in scienve/education and prevents retard of growth;
3. Personal autonomy of freedom to speak freely; and
4. Freedom of though

1. Time; 
2. Manner; and
3. Place of Speech

Content based restrictions on political speech in a public forum is subjected to SS

Political speech gets highest form of protection

1. Subject Matter - Entire subject off limits - e.g. No more talk about the election
2. Viewpoint - Goes beyond subject matter to viewpoint and makes gov't view all you can say - MORE OFFENSIVE speech limitation - e.g. I think Cruz is crazy, no more postive Cruz talk.  

1. Court can look at both; 
2. Not mutually exclusive, usually analyzed together

1. Prudent person may err on side of caution and self regulate speech to the point of saying nothing;
2. By chilling speech, vagueness effectively prohibits protected speech; and
3. The vague regulation has chilled speech.  

1. Content Based Regulations; AND
2. Content Neutral Regulations

1. Vagueness; and
2. Overbreadth

More prevalant in vagueness

Does the regulation at issue:  

1. Punish speech that already occurred; OR
2. Prevent speech from occurring in 1st place

1. Prevents future speech; 
2. Treated more seriously than any other speech regulation; and
3. Hard to impose

1. Clear rules;
2. No discretion; 
3. Quick review of the application; and
4. Content-Neutral (e.g. time, place, and manner)

1. Any system of prior restraints on expression comes to SCOTUS bearing a heavy presumption against its validity.  
2. If gov't wants to suppress, gov't has to show specifically what it wants to suppress AND that its a threat to nat'l security.  

Under 1st Amd, state may prohibits speech that:

1. Represents a clear and present danger of inciting crime; 
2. Disturbs public peace; or
3. Threatens to overthrow gov't by unlawful means

Brandenberg - Can only arrest for Incitement if

1. There is a significant likelihood of imminent
2. Intentional 
3. Illegal conduct 

HIGH BAR - Default - Not justified in arresting speaker

State may only regulate speech for incitement if:

1. Speech is proven to cause imminent harm; 
2. A likelihood of producing illegal action; AND
3. An intent to cause imminent illegality.  

Most Speech Protected Case

1. Words, when addressed to another person, would induce them to punch you in the nose
2. Basically non-existent b/c of vagueness

1. Defamation
2. Libel
3. Slander (Spoken word)
4. IIED
5. Invasion of Privacy
6. Public Disclosure of Private Facts
7. Intrusion of Seclusion

1. Public Official (Current or Running)
2. Public Figure (All-Purpose, Limited Purpose, Involuntary)
3. Private Person

1. Public Concern
2. Private Concern

When P is

1. Public Official
2. Public Figure
3. Private Person w/ Public Concern

1. If P is public official or running for office;
2. P must prove case by CCE;
3. P must prove falsity (changed common law); and
4. P must prove actual malice

1. Can statement be proven as false
2. If yes, fact is a false statement
3. If not, just an opinion

Subjective Standard - P made statement w/

1. Knowledge of falsity; OR
2. Reckless disregard of the truth

Person, among heirarchy of gov't employees, has or appears to have:

1. Substantial Responsibility; OR
2. Control Over Gov't Affairs

e.g. Prosecutors, Principals, and Police Officers

1. Encourages public debate on issues;
2. Voluntarily put self in spotlight; 
3. More able to defend and speak against claim.  

Same as Public Official - If Public Figure, must:

1. Prove by CCE
2. Prove Falsity
3. Prove AM

1. Intimately involved in resolution of public question; OR
2. Shaped events in areas of concern to society by reason of their fame

1. Private P w/ public concern can sue at lower fault of negligence, but has to show actual damages
2. But to obtain punitive or presumed damages, must prove falsity and AM by CCE

1. P must prove falsity
2. For fault, P can rely on negligence; 
3. BUT, if relying on negligence, must prove actual injury;
4. But, if P proves AM, damages can be presumed and injury does not have to be shown.  

1. Negligence standard is OK
2. Damages presumed
3. Punitive damages available
4. Up to state whether P must prove falsity or common law truth

1. Outrageous IIED conduct; 
2. False statement of fact; 
3. Made w/ AM

1. Disclosure must be public, not private; 
2. Facts must be private facts that have not been disclosed to the public
3. Matter made public must be one which would be offensive and objectionable to a reasonable person of ordinary sensibilities
4. That has no legitimate interest in the facts disclosed.  

1. Facts were obtained lawfully; 
2. From public records; OR
3. Obtained illegally from non-gov't source.  

Was regulation intended to regulate speech

1. If yes - SS b/c content based
2. If no - RB - is incidental effect on speech

Ex. Symbolic Speech - Burning draft card

- U.S. v. O'Brien - Conduct that Communicates

The O'Brien Test (2)

1. If regulation was intended to regulate speech use SS
2. If regulation was not intended to regulation use RB

1. Traditional Public Forum
2. Desgnated (Limited) Public Forum
3. Nonpublic Forum

1. Streets, parks, sidewalks, etc.  
2. NO content based regulation
3. OK - Time, place, and manner restrictions (w/ IS)

Same rules as traditional public forum

1. No content based regulations
2. OK - Time, place, and manner (w/ IS)
3. Becomes limited public forum b/c gov't either allowed or accidentally allowed nonpublic forum space to be used as public forum space.  

1. Courtrooms, offices, jails, etc.  
2. Places where gov't does a job
3. Gov't CAN regulate speech based on CONTENT
4. Subject matter restrictions OK
5. Viewpoint restrictions might be OK
6. Can restrict speech to point of viewpoint to protect basic function of office

Ex. IRS - Employee says I hate IRS in disruptive manner

1. Gov't has important interest and gov't usually defers to place so long as they have a legit interest
2. Ex. School, Jails, and Military Bases

1. Court has never defined religion and never will; 
2. If pushed, courts will evaluate whether a litigant truly believes
3. Court will examine sincerity of religion, not validity

1. State may refuse to carve outexception from generally applicable criminal laws for religious practices;  
2. Back to Reynolds - Every man a law unto himself

Does not require that accommodations be given by gov't for:

1. Neutral Laws (Courts will scrutinize) 
2. That Apply to Everyone Generally

If non-neutral - unconstitional (no ss)

1. Right - History and Tradition Argument - Many instances of church of gov't - Accommodationist Approach - We Accommodate Churches
2. Left - Secular Tradition - Strict Separationist - Jefferson - Wall of separation b/w church and state
3. Most of the time - courts apply prong 2 of Lemon test and ensure neutrality

1. Prohibits state from displaying religious depictions that have effect of endorsing religion
2. Jesus scene in City Hall has effect of favoring religion over non-religion
3. In park down street, Jesus, Santa, etc. OK - does not appear to favor particular religion or non-religion
4. One Reindeer Rule

If gov't challenged on Establishment clause, has to pass three tests:  

1. Law has a secular purpose - nothing to do w/ religion; 
2. Neither advances nor inhibits religion (neutrality); 
3. No entanglement w/ gov't and church (so that it looks like an official church)  

Courts do not always apply b/c so stringent

Most of the time - just looks to prong 2.  

Fed gov't program that provides gov't aid to both public and private religious schools is OK if:

1. Does not result in gov't indoctrination; 
2. Define its recipients by reference to religion; OR
3. Create an excessive gov't entanglement w/ religion