Case: Salib v. City of Mesa1
Facts: Edward Salib owned a Winchell’s Donut House in Mesa, Arizona. Salib displayed large signs in
his store window. The city ordered Salib to remove the signs as they violated the Sign Code, which
prohibited covering more than 30% of store’s windows with signs. Salib sued claiming the Sign Code
violated his First Amendment rights. The trial court ruled in favor of Mesa, and Salib appealed.
Issue: Did Mesa’s Sign Code violate the First Amendment?
Decision: No, the Code placed a reasonable limit on commercial speech. Affirmed.
Reasoning: The First Amendment guarantees free speech rights to people and to organizations. The
government, though, can restrict commercial speech in some circumstances. Regulators, for example,
can ban false and misleading messages. They may also place limits on other advertisements if they pass
the following three-part test:
First, the government has a substantial interest. Second, a restriction directly advances this interest.
Third, the restriction is narrowly tailored to meet its goal.
In the case, the City of Mesa claimed a substantial interest in making its business district aesthetically
pleasing. It argued that the Sign Code did in fact make the city more attractive. Mesa also claimed that
its 30% standard was a narrow and reasonable compromise between its interest in city beautification
and the rights of business owners.
The Court agreed with Mesa’s arguments and declined to second-guess the standard.
Question: Compare the government’s power to regulate commercial speech with its power over
other forms of speech.
Answer: The government has more power to regulate commercial speech than other forms of
Question: Why has the Supreme Court historically permitted greater regulation of commercial
speech?
Answer: Commercial speech is linked closely with the underlying business arrangement that it
proposes. For example, an advertisement is closely linked with the product that the company is
Question: For a government regulation of commercial speech to be valid, what standard must it
meet?
Question: What was the state interest served in this case?
Answer: Mesa claimed that it had an interest in upholding certain aesthetic standards for the city.
Question: If Salib conceded on that point, what was his problem with the law?
Answer: Salib’s issue with the Sign Code was that there was no hard evidence that signs detracted
Question: What does “narrowly tailored” mean?
Answer: It means that the effects of a law go only as far as necessary to serve the law’s purposes,
Question: What was the Court’s point on whether the regulation was narrowly tailored?
Answer: The Court made it clear that it is not in the business of deciding what percentage of
window covering would accomplish the goals of the city. The Court’s only job is to decide whether
1 133 P.3d 756, 212 Ariz. 446, Arizona Court of Appeals, 2006.
Fifth Amendment: Due Process and the Takings
Clause
Procedural Due Process
Procedural due process is required whenever the government attempts to take liberty or property. The
amount of process that is due depends upon the importance of the liberty or property threatened.
Takings Clause
The Takings Clause prohibits a state from taking private property for public use without just
compensation.
Substantive Due Process
A substantive due process analysis presumes that any economic or social regulation is valid, and
presumes invalid any law that infringes upon a fundamental right.
Case: Kelo v. City of New London2
Facts: New London, CT was declining economically. In order to revitalize the city, state and local
officials decided to redevelop a section of the city called Fort Trumbull. The development plan included
residential, business, and hotel use. The state bought most of the properties from willing sellers, but
nine owners refused to sell and filed suit claiming the city was taking its land for private use in
violation of the Takings Clause.
Issue: Did the city’s plan violate the Takings Clause?
Decision: No, the plan was constitutional. Affirmed.
Reasoning: The Takings Clause allows for some transfers of real property from one private party to
another, so long as the land will be used by the public. For example, land may be taken to allow for the
construction of a railroad, even if private railroad companies will be the primary beneficiaries of the
transfer.
New London’s economic development plan aims to create jobs and increase the city’s tax receipts. The
Supreme Court has not previously considered this type of public use, but now determines that
economic development is a legitimate public purpose. New London did not violate the Takings Clause.
Dissent by Justice O’Connor: Any public benefit in this case would be incidental and secondary.
Under the majority’s opinion, the government can now take private property for any purpose. This case
will most likely benefit those with inside access to government officials, at the expense of small
property owners.
Question: What does the Takings Clause require?
Question: Does that mean that the government has the right to announce that it wants your house
in order to build a library, and it may then take the property?
Question: In this case, the City of New London took private property to put to private use. How is
that possible?
Answer: The city did take private property to give to other private entities. However, the city
Question: Why did Justice O’Connor not agree with that public use?
Answer: Part of Justice O’Connor’s dissent focused on the public use realized from almost any use
2 545 U.S. 469, 125 S.Ct. 2655, United States Supreme Court, 2005.
Question: But if there is a predicted or even guaranteed beneficial public use, isn’t that a good
thing?
Answer: Not necessarily. Justice O’Connor’s fear is that the people who will benefit from this
Fourteenth Amendment: Equal Protection Clause
Pursuant to the Equal Protection Clause, the government generally must treat people equally. As with
most of the important constitutional protections, “government” means not only the federal but also
state and local governments. And yet, many statutes do make classifications. States classify citizens
based on age, for purposes of drinking, obtaining a driver’s license, voting, attending school, receiving
health benefits, and many other purposes. Most such classifications are legal. To know whether a
classification is lawful, the first step is to specify what is being regulated. That will determine the level
of scrutiny a Court will apply to the regulation, which in turn will generally make the outcome of the
case predictable.
•Minimal Scrutiny: Economic and Social Relations. Government actions that classify people
or corporations on these bases are almost always upheld.
•Intermediate Scrutiny: Gender. Government classifications are sometimes upheld.
•Strict Scrutiny: Race, Ethnicity, and Fundamental Rights. Classifications based on any of
these are almost never upheld.
Additional Case: Brennan v. Midland Memorial Hospital and Ray
Branson, Individually and in his capacity as Hospital Administrator, et al.3
Facts: This case arises out of a rescue operation that received nationwide publicity. In October 1987,
Jessica McClure fell into an abandoned well in the backyard of an aunt’s home in Midland, Texas.
Practically every local, state and national newscast reported on the rescue operations.
At that same time, John Brennan was working as a respiratory therapist for Midland Memorial
Hospital. When he went to work, he took his camera. On that same date, Jessica McClure was admitted
to the hospital emergency room following a difficult but successful rescue. Brennan alleges that he
obtained permission from the child’s mother, Reba McClure, before he took pictures of the child.
Brennan later negotiated a deal to sell the pictures to The New York Times. On October 18, the pictures
appeared in the local newspaper, The Midland Reporter–Telegram.
On October 17, Brennan was summoned from his duty station at the hospital to the office of Ray
Branson, the President and CEO of the hospital. At the meeting, Brennan said he had tried to obtain
permission from the hospital’s public relations department to take pictures but never received such
permission. He reported that he had obtained oral permission from the child’s mother to take the
photographs and sell them. Branson advised him at that meeting that hospital policy prohibited taking
photographs in the hospital without the signed, written consent of the child’s parents. Because of this
violation of hospital policy, he was suspended from his employment pending further investigation.
Later, Brennan was shown a bound notebook with the hospital policy on photographing. Mr. Brennan
said at that meeting he was not aware of that particular policy.
Brennan was terminated the following Monday morning. Although he was aware of hospital grievance
procedure, Brennan did not use the procedures provided to hospital employees to challenge
termination.
Brennan challenges the decision and claims that the hospital deprived him of his liberty interest
pursuant to the Fifth and Fourteenth Amendments to the United States Constitution.
The trial court entered a summary judgment result in favor of Midland Memorial Hospital.
3 809 S.W.2d 348, Court of Appeals of Texas, El Paso.
Issue: Were Brennan’s constitutional procedural due process rights violated after being terminated
without a hearing?
Holding: Mr. Brennan was an “at-will” employee of the hospital and could be discharged at any time
for any reason without cause. There are several statutory restrictions placed upon employers in
specified areas of employment regarding employment termination. None of those statutes apply to the
facts in this case.
Additionally, in order to have a property interest protected by procedural due process, a person “must
have more than a unilateral expectation of it.”
The Texas Court concluded that an “at-will” employee was not entitled to procedural due process in
connection with his termination. Brennan had no statutory or constitutionally protected rights that were
violated. Because Brennan had no protectable property interest in his position at the hospital, his
constitutional claims must fail.
Question: What is employment-at-will?
Answer: Employment-at-will is a common law rule that states that an employment contract of
Question: Why does an employee-at-will not have constitutionally protected rights in
connection with his termination?
Answer: His status as an employee-at-will implies that he could be discharged at any time for
Additional Case: Abigail Noel Fisher v. University of Texas at Austin
et al.4
Facts: Petitioner, who is Caucasian, was rejected for admission to the University’s 2008 entering class.
She sued the University and school officials, alleging that the University’s consideration of race in
admissions violated the Equal Protection Clause.
The University of Texas at Austin considers race as one of various factors in its undergraduate
admissions process. The University, committed to increasing racial minority enrollment, adopted its
current program after this Court decided Grutter v. Bollinger 5 ﾧ (upholding the use of race as one of
many “plus factors” in an admissions program that considered the overall individual contribution of
each candidate), and decided Gratz v. Bollinger 6
, (holding unconstitutional an admissions program that
automatically awarded points to applicants from certain racial minorities).
The District Court granted summary judgment to the University. Affirming, the Fifth Circuit held that
Grutter required courts to give substantial deference to the University, both in the definition of the
compelling interest in diversity’s benefits and in deciding whether its specific plan was narrowly
tailored to achieve its stated goal. Applying that standard, the court upheld the University’s admissions
plan. The Supreme Court agreed to hear the case.
Issue: Did the lower courts use the proper standard of review to determine whether race-based
admissions violated the Equal Protection Clause?
Holding: The lower court did not hold the university to the demanding burden of strict scrutiny
articulated in Grutter v. Bollinger, and Regents of the University of California v. Bakke. Its decision
4 133 S.Ct. 2411, Supreme Court of the United States.
5 Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304.
6 Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257.
affirming the district court’s grant of summary judgment was incorrect. The Supreme Court vacated the
decision and remanded the case for further consideration using strict scrutiny as the standard of review.
Question: How many standards of review may a court use when deciding equal protection
cases?
Question: Why does that matter?
Answer: The level of scrutiny used affects the outcome of the case. Here, the District Court
and Fifth Circuits deferred to the University. Under strict scrutiny, there is a greater burden for
Example: State Universities and Non-Resident Tuition
In discussing the Equal Protection Clause, a question will often arise: Does lower tuition for in-state
residents than non-residents at a state university violate the 14th Amendment? This is a good topic for
discussion because most students will be aware that non-residents pay higher tuition than residents at
state schools, but it may not be obvious why this practice does not violate the Equal Protection Clause.
In discussing this topic, ask students for other examples of discriminatory charges paid by
non-residents of a state. Some students will be familiar with the higher fees paid by non-residents for
fishing and hunting licenses, or with higher fees paid by non-residents of a town for access to a town
beach. Students should also focus on the legal test required to analyze such higher payments. These are
the points to elicit or make during discussion:
Courts apply the rational basis test to ascertain the constitutional validity of higher non-resident
tuition because it is a classification based on economic relations.
Courts have consistently upheld higher non-resident tuition. See, for example, Clarke v Redeker:7
Higher non-resident tuition “tends to distribute more evenly the cost of operating and supporting
[the state university] between residents and non-residents attending the University. Although there
is no way for this Court to determine the degree to which the higher tuition charge equalizes the
educational cost of residents and non-residents, it appears to be a reasonable attempt to achieve a
partial cost equalization. The regulation classifying students as residents or non-residents for
tuition payment purposes is not arbitrary or unreasonable and bears a rational relation to Iowa’s
object and purpose of financing, operating and maintaining its educational institutions.”
Courts have often upheld higher fees for non-residents when charged for access to limited state
resources that the state has husbanded through expenditure of state funds collected from taxpayers.
See, e.g., Baldwin v Fish and Game Commission of Montana.8
Multiple Choice Questions
1. Greenville College, a public community college, has a policy of admitting only male students. If the
policy is challenged under the 14th Amendment, ________________ scrutiny will be applied.
(a) strict
(b) intermediate
7 259 F. Supp. 117 (C.C.Iowa 1966) aff’d 406 F.2d 883 (8th Cir. Iowa), cert. den. 396 U.S. 862 (1969).
8 436 U.S. 371; 98 S. Ct. 1852; 56 L. Ed. 2d 354; 1978 U.S. LEXIS 27; 8 ELR 20425.
(c) rational
(d) none of the above
2. You begin work at Everhappy Corp. at the beginning of November. On your second day at work, you
wear a political button on your overcoat, supporting your choice for governor in the upcoming
election. Your boss glances at it and says, “Get that stupid thing out of this office or you’re history,
chump.” Your boss ______________ violated your First Amendment rights. After work, you put
the button back on and start walking home. You pass a police officer who blocks your path and
says, “Take off that stupid button or you’re going to jail, chump.” The officer _____________
violated your First Amendment rights.
(a) has; has
(b) has; has not
(c) has not; has
(d) has not; has not
3. Which of the following statements accurately describes statutes that Congress and the President may
create?
(a) Statutes must be related to a power listed in Article I, section 8 of the Constitution.
(b) Statutes must not infringe on the liberties in the Bill of Rights.
(c) Both A and B.
(d) None of the above.
4. Which of the following is true of the origin of judicial review?
(a) It was created by Article II of the Constitution
(b) It was created by Article III of the Constitution
(c) It was created in the case Marbury v. Madison
(d) It was created by the 5th Amendment
(e) It was created by the 14th Amendment
5. Consider the case Kelo v. City of New London, in which a city with a revitalization plan squared off
against property owners who did not wish to sell their property. The key constitutional provision
was the Takings Clause in the _____ Amendment. The Supreme Court decided the city
________________ use eminent domain and take the property from the landowners.
(a) 5th; could
(b) 5th; could not
(c) 14th; could
(d) 14th; could not
Essay Questions
You Be the Judge: WRITING PROBLEM
1. Scott Fane was a CPA licensed to practice in New Jersey and Florida. He built his New Jersey
practice by making unsolicited phone calls to executives. When he moved to Florida, the Board of
Accountancy there prohibited him (and all CPAs) from personally soliciting new business. Fane
sued. Does the First Amendment force Florida to forgo foreclosing Fane’s phoning? Argument for
Fane: The Florida regulation violates the First Amendment, which protects commercial speech.
Fane was not saying anything false or misleading, but was just trying to secure business. This is an
unreasonable regulation, designed to keep newcomers out of the marketplace and maintain steady
business and high prices for established CPAs. Argument for the Florida Board of Accountancy:
Commercial speech deserves—and gets—a lower level of protection than other speech. This
regulation is a reasonable method of ensuring that the level of CPA work in our state remains high.
CPAs who personally solicit clients are obviously in need of business. They are more likely to bend
legal and ethical rules to obtain clients and keep them happy, and will lower the standards
throughout the state.
Answer: Fane wins. The Court held that the Florida statute violates the First Amendment. Laws
restricting commercial speech will only survive constitutional analysis if they are tailored in a
2. President George H.W. Bush insisted that he had the power to send American troops into combat in
the Middle East, without congressional assent. Yet before authorizing force in Operation Desert
Storm, he secured congressional authorization. President Clinton stated that he was prepared to
invade Haiti without a congressional vote. Yet he bargained hard to avoid an invasion, and
ultimately American troops entered without the use of force. Why the seeming doubletalk by both
Presidents?
Answer: The Constitution is unclear about the President’s power to use troops without a
declaration of war. Article 1, §8 grants to Congress the exclusive power to declare war. Yet Article
11, §2 makes the President the Commander in Chief of the armed forces and empowers him to
3. In the landmark 1965 case of Griswold v. Connecticut, the Supreme Court examined a Connecticut
statute that made it a crime for any person to use contraception. The majority declared the law an
unconstitutional violation of the right of privacy. Justice Black dissented, saying, “I do not to any
extent whatever base my view that this Connecticut law is constitutional on a belief that the law is
wise or that its policy is a good one. [It] is every bit as offensive to me as it is to the majority.
[There is no criticism by the majority of this law] to which I cannot subscribe—except their
conclusion that the evil qualities they see in the law make it unconstitutional.” What legal
doctrines are involved here? Why did Justice Black distinguish between his personal views on the
statute and the power of the Court to overturn it?
Answer: The right of privacy is nowhere stated in the Constitution, and its enforcement is an
example of the Court applying substantive due process. Justice Black thought the law was terrible
but he thought it was even worse for the Court to invent constitutional doctrine simply because it
disliked a particular law. He would have preferred to practice judicial restraint–i.e., to leave it up to
4. Gilleo opposed American participation in the war in the Persian Gulf. She displayed a large sign on
her front lawn that read, “Say No to War in the Persian Gulf, Call Congress Now.” The City of
Ladue prohibited signs on front lawns and Gilleo sued. The city claimed that it was regulating
“time, place, and manner.” Explain that statement, and decide who should win.
Answer: A government may regulate the time, place, and manner of speeches, marches, and so
forth. But the Supreme Court was unpersuaded by Ladue’s argument that this was nothing more
5. David Lucas paid $975,000 for two residential lots on the Isle of Palms near Charleston, South
Carolina. He intended to build houses on them. Two years later the South Carolina legislature
passed a statute that prohibited building seaward of a certain line, and Lucas’s property fell in the
prohibited zone. Lucas claimed that his land was now useless and that South Carolina owed him its
value. Explain his claim. Should he win?
Answer: His claim is based on the Takings Clause of the Fifth Amendment. The Supreme Court
was unable to make a final ruling because certain facts were unclear from the record. But the Court
stated that when the owner of real property has been called upon to sacrifice all economically
beneficial uses in the name of the common good, he has suffered a taking and is entitled to
Discussion Questions
1. Return to the opening scenario and the Citizens United case. Is political advertising purchased by
corporations appropriate? Do you agree with the five members of the Supreme Court who voted to
allow it, or with the four who dissented and would have drawn distinctions between free speech by
individuals and organizations? Why?
2. ETHICS Is political advertising by a nonprofit political organization like Citizens United any more
or less appropriate than advertising by for-profit corporations like the one described in the opening
scenario? If you were a board member in the opening scenario, which (if any) of the three ads
would you vote to authorize?
3. Consider the “tea party” movement. Do you believe that the federal government should be able to
create whatever laws it deems to be in the country’s best interests, or do you believe that individual
states, like Florida and California, should have more control over the laws within their own
borders?
4. This chapter is filled with examples of statutes that have been struck down by the courts. A Texas
law banning flag burning was rejected by the Supreme Court, as was a Louisiana death penalty
statute. The Affordable Healthcare Act has been voided by two lower court judges, and the
Supreme Court may or may not agree with the action.
Do you like the fact that courts can void laws that they determine to be in violation of the
Constitution? Or is it wrong for appointed judges to overrule “the will of the majority” as
expressed by elected members of Congress and state legislatures?
5. Gender discrimination currently receives “intermediate” 14th Amendment scrutiny. Is this right?
Should gender receive “strict” scrutiny as does race? Why or why not?
Bonus Exam Strategy:
Question: Exotic Showgirls is an adult entertainment club that wants to open in the business district in
the town of Smallville. The government of Smallville passed a law that prohibited the operation of
such clubs in the business district because they claim such businesses increase the incidence of
prostitution, drugs, and other crimes. May the town pass such a law?
Strategy: This question is a First Amendment issue. Nude dancing is protected speech, and the
government is passing a law that seems to prohibit that speech. Even if the speech is protected, the
government can pass a law regulating the time, place, and manner of that speech, but not prohibit
the speech itself.
Result: The state action is clear: the government passed a law affecting speech. However, here, the law
in question states that the club cannot be located in the business district. This regulation of speech
is not a prohibition of the speech; the law merely prohibits the club from being located in the
business district. And because the government can regulation the time, place, and manner of
speech, this law is probably valid.