Constitutional Law Exam Notes

Interpreting the Constitution: The Rights Revolution in American Constitutional Law

Barron v. Baltimore (1833)

Background: John Barron's wharf business was ruined by city's diversion of streams causing silt accumulation. He sued, arguing the city took his property without just compensation under the Fifth Amendment's Takings Clause.
Ruling: Chief Justice John Marshall ruled unanimously that the Bill of Rights restricts only the federal government, not the states. The Fifth Amendment did not apply to Baltimore, so Barron had no constitutional claim.
Connection: This case established non-incorporation, meaning states were not bound by the federal Bill of Rights, until the Fourteenth Amendment opened the door after the Civil War.

Hurtado v. California (1886)

Background: Hurtado was convicted of murder in California based on a prosecutor's filing (information) instead of a grand jury indictment. He challenged this under the Fifth Amendment, which guarantees a grand jury in federal criminal cases, arguing due process required it in state courts too.
Ruling: The Court upheld the conviction, stating that the Fourteenth Amendment’s Due Process Clause doesn't require states to follow all specific procedures of the Bill of Rights (like grand juries). "Due process" is flexible and doesn't necessarily incorporate every federal procedural safeguard.
Connection: This case was an early rejection of total incorporation, showing the Court's initial reluctance to apply the Bill of Rights to states. It highlights the selective and limited nature of incorporation before broader civil rights protections emerged in the mid-20th century.

Palko v. Connecticut (1937)

Background: Frank Palko was tried twice for the same crime in Connecticut. Initially convicted of second-degree murder, he was retried after a successful appeal by prosecutors and convicted of first-degree murder, receiving the death penalty. He argued this violated the Fifth Amendment’s protection against double jeopardy.
Ruling: The Court upheld the conviction, holding that only rights "fundamental to a scheme of ordered liberty" are incorporated through the Fourteenth Amendment. The double jeopardy clause wasn't considered fundamental enough to apply to the states.
Connection: This case introduced selective incorporation, where the Court decides case by case which rights apply to the states. It guided incorporation cases for decades, marking a gradual shift toward expanding civil liberties using the Fourteenth Amendment.

Duncan v. Louisiana (1968)

Background: Gary Duncan, a Black teenager, was convicted of battery after trying to break up a fight. Louisiana law didn't allow a jury trial for his misdemeanor charge. Duncan argued the Sixth Amendment right to a jury should apply in state courts.
Ruling: The Court sided with Duncan, holding that the right to a jury trial in serious criminal cases is fundamental and incorporated through the Fourteenth Amendment. Juries act as a safeguard against government oppression.
Connection: This was a landmark case, affirming that the Bill of Rights limits state governments. It confirmed the trend toward full incorporation of criminal procedure rights and the importance of fair trial protections.

Timbs v. Indiana (2019)

Background: Tyson Timbs was convicted of a drug offense and fined $1,200$ . The state seized his $42,000$ Land Rover under civil asset forfeiture laws. He argued the forfeiture violated the Eighth Amendment’s ban on excessive fines.
Ruling: The Court held that the Eighth Amendment’s Excessive Fines Clause is incorporated against the states through the Fourteenth Amendment’s Due Process Clause. State governments are not exempt from basic constitutional limits on punishment.
Connection: This case completed the incorporation of the Eighth Amendment, confirming economic penalties are subject to constitutional limits. This decision reinforced that nearly all core protections in the Bill of Rights apply to state governments, making Barron entirely obsolete. It also highlighted concerns about abusive state-level forfeiture practices and economic justice.

What is Free Speech? Foundations and Early Interpretations

Schenck v. United States (1919)

Background: Charles Schenck, a socialist, distributed leaflets during World War I urging resistance to the military draft, claiming it violated the Thirteenth Amendment. He was convicted under the Espionage Act for obstructing military recruitment.
Ruling: Justice Oliver Wendell Holmes upheld the conviction and articulated the "clear and present danger" test. Speech is not protected if it creates a clear and present danger of significant harm, like "falsely shouting fire in a theater."
Connection: The Court's first major First Amendment interpretation set a precedent for restricting speech during wartime. The "clear and present danger" test evolved later, and Holmes's opinion was criticized for allowing too much government suppression of dissent. It marked the beginning of modern free speech jurisprudence.

Abrams v. United States (1919)

Background: Five Russian immigrants were convicted for distributing leaflets protesting U.S. military intervention in the Russian Revolution. They were charged with violating the Espionage Act for encouraging resistance to war production.
Ruling: The Court upheld the convictions using a broad version of the clear and present danger test, arguing the leaflets undermined the war effort.
Connection: Justice Holmes's dissent, joined by Justice Brandeis, is most remembered. Holmes refined his earlier test, stating only speech presenting an "imminent danger" of substantive evil should be punished, laying the groundwork for Brandenburg. The dissent advanced the idea of a "marketplace of ideas."

Gitlow v. New York (1925)

Background: Benjamin Gitlow, a socialist, was convicted under New York’s Criminal Anarchy Law for publishing a manifesto advocating revolutionary socialism. He challenged his conviction, arguing his First Amendment rights had been violated.
Ruling: The Court upheld Gitlow’s conviction, ruling states could restrict speech advocating violent government overthrow, even without immediate incitement. However, the Court also held that the First Amendment applies to the states through the Fourteenth Amendment's Due Process Clause—a process called incorporation.
Connection: This case formally incorporated the First Amendment against state governments, even though the speech wasn't protected. It set a key precedent for applying federal constitutional rights at the state level, shaping the framework for civil liberties cases.

Dennis v. United States (1951)

Background: Leaders of the U.S. Communist Party were convicted under the Smith Act, which criminalized conspiring to advocate the violent overthrow of the government. The defendants argued they were engaged in abstract discussion, not active incitement.
Ruling: The Court upheld the convictions, adopting a modified "clear and present danger" test, stating courts must weigh the gravity of the evil against its likelihood—even if the threat isn't imminent.
Connection: This case reflected Cold War fears and marked judicial deference to anti-communist legislation. It was later undermined by Brandenburg, which restored a more protective standard for political advocacy.

Brandenburg v. Ohio (1968)

Background: Clarence Brandenburg, a KKK leader, gave a speech hinting at violence against the government. He was convicted under Ohio’s criminal syndicalism law, which prohibited advocacy of illegal conduct.
Ruling: The Court overturned Brandenburg’s conviction and established the modern incitement test:
1. Directed to inciting or producing imminent lawless action, and
2. Likely to incite or produce such action.
Connection: Brandenburg overruled Dennis and became the definitive rule for speech advocating violence or illegality. It reaffirmed protecting offensive or radical ideas unless they pose an immediate threat. The decision remains a cornerstone of First Amendment doctrine on political speech.

Freedom of Association

Boy Scouts of America v. Dale (2000)

Background: James Dale, an assistant scoutmaster, was expelled from the Boy Scouts after publicly identifying as gay. He sued under New Jersey’s public accommodations law, which prohibited discrimination based on sexual orientation.
Ruling: The Court held that the Boy Scouts had a First Amendment right to expressive association. Forcing them to retain Dale would compel them to endorse a message contrary to their values, violating their freedom of association.
Connection: This case affirmed that private organizations have a right to exclude individuals if inclusion would alter their expressive message, underscoring the tension between anti-discrimination laws and associational freedom.

Janus v. American Federation of State, County, and Municipal Employees (2018)

Background: Mark Janus, a public employee, challenged an Illinois law requiring him to pay agency fees to a public-sector union, even though he was not a member. He claimed this compelled him to financially support political speech he disagreed with.
Ruling: The Court struck down mandatory agency fees, ruling that forcing public employees to subsidize union speech violated the First Amendment, particularly in public-policy advocacy.
Connection: This case reinforced that the First Amendment protects against compelled speech and association, dramatically weakening public-sector unions by making dues optional.

Americans for Prosperity v. Bonta (2021)

Background: California required nonprofits to disclose their donor lists to the state attorney general. Two advocacy organizations argued this chilled freedom of association, particularly for controversial causes, by exposing donors to potential harassment.
Ruling: The Court struck down the disclosure requirement, holding that the law imposed a blanket burden on associational rights without being narrowly tailored, even if intended for non-public use.
Connection: This decision expanded protections for anonymous association, especially for politically sensitive causes, reflecting growing judicial concern with chilling effects on speech and association in a digital era, and may affect future campaign finance and donor disclosure laws.

Commercial Speech

Central Hudson Gas and Electric Corp. v. Public Service Comm’n of New York (1980)

Background: Following the 1970s energy crisis, the New York Public Service Commission banned promotional advertising by electric utilities to conserve energy. Central Hudson challenged the regulation, arguing it violated its First Amendment right to commercial speech.
Ruling: The Court struck down the ban and developed the Central Hudson Test to determine when commercial speech can be regulated:
1. Is the speech about a lawful activity and not misleading?
2. Is the government interest substantial?
3. Does the regulation directly advance that interest?
4. Is it not more extensive than necessary?
Connection: This case became the controlling framework for commercial speech regulation, confirming that while commercial speech enjoys less protection than political speech, it is still entitled to constitutional safeguards. The test remains widely used in advertising, health warnings, and corporate disclosures cases.

Nat’l Inst. Of Family and Life Advocates v. Becerra (2018)

Background: California’s FACT Act required licensed pregnancy centers to notify patients about free or low-cost abortion services and unlicensed centers to disclose their status. Religious, anti-abortion centers challenged the law as compelled speech.
Ruling: The Court struck down the law, holding that the state cannot compel organizations to speak a government-favored message, even if the speech is professional or commercial. The regulation failed heightened scrutiny and was deemed viewpoint discriminatory.
Connection: This decision narrowed the scope of Central Hudson by suggesting that professional and ideological commercial speech deserves greater protection. It blurred the line between commercial and political expression, reinforcing that compelled speech in regulated markets still triggers serious constitutional scrutiny.

Protests, Pickets, and Demonstrations

West Virginia v. Barnette (1943)

Background: West Virginia required all public school students to salute the flag and recite the Pledge of Allegiance. Jehovah’s Witness students refused for religious reasons and were punished with expulsion and legal action. The case followed the Court’s opposite ruling in Minersville v. Gobitis (1940).
Ruling: The Court overruled Gobitis and held that compelled patriotic speech violates the First Amendment. Justice Jackson famously wrote: “If there is any fixed star in our constitutional constellation, it is that no official… can prescribe what shall be orthodox.”
Connection: This is a bedrock case for freedom of expression and religious liberty, cementing the idea that the government cannot coerce belief or expression, especially in public schools. It is frequently cited in later rulings about symbolic speech, student expression, and protest rights.

United States v. O’Brien (1968)

Background: David O’Brien burned his draft card in protest of the Vietnam War. He was convicted under a federal law prohibiting destruction of draft cards. O’Brien argued this act was symbolic political speech protected by the First Amendment.
Ruling: The Court upheld the conviction and introduced the O’Brien Test for symbolic speech:
1. The government’s interest must be within its constitutional power.
2. The interest must be substantial.
3. The regulation must not target expression, only the conduct.
4. The restriction must be no greater than necessary.
Connection: This case created a durable test for regulating expressive conduct, distinguishing between laws that incidentally burden speech and those aimed at suppressing it. It affirmed that not all symbolic acts are protected, especially if they interfere with valid government functions.

Tinker v. Des Moines (1969)

Background: Three students wore black armbands to school to protest the Vietnam War and were suspended. Their parents sued, arguing the school violated the students’ right to free expression.
Ruling: The Court sided with the students, stating that students do not shed their constitutional rights at the schoolhouse gate. The armbands were non-disruptive political expression, and schools could only regulate student speech if it caused material disruption or invaded others' rights.
Connection: This case remains the high-water mark of student speech rights, setting a powerful precedent for peaceful, symbolic protest in schools, though later cases would qualify its reach. It is frequently cited in student protest and expression cases, especially involving social or political dissent.

McCullen v. Coakley, Attorney General of Massachusetts (2014)

Background: A Massachusetts law created a 35-foot buffer zone around abortion clinics, barring protestors from approaching patients. Anti-abortion protestors claimed the law violated their First Amendment rights to engage in sidewalk counseling and peaceful protest.
Ruling: The Court struck down the law, stating that while the state had a legitimate interest in clinic safety, the buffer zone burdened more speech than necessary and was not narrowly tailored. The law made peaceful conversations impossible on public sidewalks.
Connection: This decision reaffirmed that public sidewalks are traditional public forums and that content-neutral laws still require narrow tailoring. It strengthened protections for peaceful protest and political expression, even in emotionally charged settings, and cautioned against blanket restrictions that silence entire messages.

Offensive Speech

Chaplinsky v. New Hampshire (1942)

Background: Walter Chaplinsky, a Jehovah’s Witness, was arrested after distributing religious pamphlets and calling a city marshal offensive names. He was convicted under a New Hampshire law prohibiting offensive speech directed at others in public.
Ruling: The Court upheld Chaplinsky’s conviction, stating that "fighting words"—those which by their very utterance inflict injury or tend to incite immediate breach of the peace—are not protected by the First Amendment. The Court carved out categories of unprotected speech including obscenity, libel, and fighting words.
Connection: This case established that not all speech is constitutionally protected, introducing the “fighting words doctrine.” Although the scope of this doctrine has since narrowed significantly, it still influences the Court’s treatment of face-to-face insults and incitement, especially when aimed at provoking violence.

Cohen v. California (1968)

Background: Paul Cohen wore a jacket in a courthouse that said “F*** the Draft” during the Vietnam War. He was arrested for disturbing the peace by using offensive conduct. The state argued the words were likely to incite anger in a public space.
Ruling: The Court overturned Cohen’s conviction, emphasizing that the government cannot prohibit speech just because it is offensive. The phrase was not directed at any individual and did not constitute fighting words or incitement.
Connection: This decision greatly expanded First Amendment protection for provocative language, drawing a critical line between expression of political opinion and true threats, reaffirming that “one man’s vulgarity is another’s lyric.” The case marked a departure from Chaplinsky and helped shape a more tolerant view of emotional and political expression in public discourse.

Morse v. Frederick (2007)

Background: Joseph Frederick, a high school student, unfurled a banner reading “BONG HiTS 4 JESUS” during a school-sponsored Olympic torch event. School officials suspended him, arguing the banner promoted illegal drug use. Frederick sued, claiming his speech was protected under Tinker v. Des Moines.
Ruling: The Court sided with the school, stating that schools may restrict student speech at school events when it is reasonably viewed as promoting illegal drug use, even if the speech is vague or unserious.
Connection: This case carved out an exception to the broad protections of Tinker by allowing schools to regulate speech perceived to undermine educational missions. It signaled a more conservative turn in student speech rights, particularly in regulating messages that contradict school policies or societal laws.

Snyder v. Phelps (2011)

Background: Members of the Westboro Baptist Church picketed the funeral of Marine Lance Corporal Matthew Snyder, displaying inflammatory signs. Snyder’s father sued for intentional infliction of emotional distress (IIED).
Ruling: The Court ruled in favor of Westboro Baptist Church, emphasizing that because the speech addressed matters of public concern (U.S. military policy, religion, morality) and occurred on public property, it was protected—even if it caused deep emotional pain.
Connection: This case reaffirmed robust protection for public discourse, especially when involving political or moral topics, no matter how offensive. The majority underscored the idea that public speech, even if cruel, occupies the “highest rung” of First Amendment values.

Matal v. Tam (2017)

Background: Simon Tam, a member of the Asian American rock band “The Slants,” sought to reclaim a racial slur by registering the band’s name as a trademark. The U.S. Patent and Trademark Office denied the registration under the Lanham Act’s “disparagement clause.”
Ruling: The Court held that the disparagement clause violated the First Amendment, stating that the government cannot suppress speech merely because it may offend, even in the context of trademarks.
Connection: This extended First Amendment protections to commercial and symbolic speech, emphasizing that viewpoint discrimination is unconstitutional even in government-regulated spaces like trademarks.

Mahanoy Area School District v. B.L. (2021)

Background: Brandi Levy, a high school cheerleader, posted a Snapchat saying offensive things after failing to make the varsity squad. She was suspended from the team. Levy sued, arguing her off-campus speech was protected under Tinker.
Ruling: The Court sided with Levy, stating that while schools may regulate student speech, they have diminished authority over off-campus expression, especially when the speech is not disruptive and is political or personal in nature.
Connection: This decision reaffirmed that students do not “shed their constitutional rights” outside of school and clarified the limits of school authority in the digital age. It balanced Tinker with emerging technologies, upholding that off-campus, online, and emotional expression deserves protection, even when coarse or critical.

Obscenity, Pornography, and Harmful Speech

Roth v. United States (1957)

Background: Samuel Roth ran a mail-order business distributing sexually explicit materials and was convicted under a federal law prohibiting mailing of