Case: Texas v. Johnson1
Facts: In 1984, outside the Republican National Convention in Dallas, Gregory Johnson participated
in a protest against policies of the Reagan administration. Participants gave speeches and handed out
leaflets. Johnson burned an American flag. He was arrested and convicted under a Texas statute that
prohibited desecrating the flag, but the Texas Court of Criminal Appeals reversed on the grounds that
the conviction violated the First Amendment. Texas appealed to the United States Supreme Court.
Issue: Does the First Amendment protect flag burning?
Holding: Yes, the First Amendment protects flag burning. The Amendment literally protects
“speech,” but the court has long included other conduct that “conveys a particularized message.” Flag
burning is symbolic speech. As to whether this form of symbolic speech should receive protection the
Court stated “[i]f there is a bedrock principle underlying the First Amendment, it is that the
Government may not prohibit the expression of an idea simply because society finds the idea itself
offensive or disagreeable. Nothing in our precedents suggests that a State may foster its own view of
the flag by prohibiting expressive conduct relating to it.”
Comment: In dissent, Justice Rehnquist wrote: “In holding this Texas statute unconstitutional, the
court ignores Justice Holmes’ familiar aphorism that ‘a page of history is worth a volume of logic.’ For
more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a
uniqueness that justifies a governmental prohibition against flag burning in the way respondent
Johnson did here.”
Question: How does Justice Brennan, for the majority, respond to Justice Rehnquist’s point that
the flag is not just a symbol but a unique symbol?
Answer: Brennan says: “The way to preserve the flag’s special role is not to punish those who feel
General Question: With whom do you agree?
Questions for those who agree that the First Amendment protects flag burning:
Isn’t it very painful for veterans of foreign wars, some permanently disabled, to see someone
burn the flag that they fought for?
Did Johnson contribute any valuable ideas when he burned the flag?
If he contributed nothing, why should a state be forced to permit his actions?
If the majority of a state’s citizens want to outlaw flag burning, why shouldn’t they be allowed
to?
Questions for those who argue that the First Amendment does not protect flag burning:
If a state could outlaw flag burning, could it also outlaw burning a copy of the Constitution? A
photograph of the flag? A cross? A photograph of the President?
Even if some people regard the flag as special, why should their opinion be the law of the land?
Doesn’t the anger created by flag burning indicate that it is effective speech? Should we
outlaw effective speech and permit only speech that offends no one?
Additional case: You Be the Judge: Barnes v. Glen Theatre, Inc.2
Facts: Indiana’s public indecency statute prohibits any person from appearing nude in a public place.
A nightclub called the Kitty Kat Lounge, and several dancers who wished to perform nude, filed suit,
seeking an order that the statute was unconstitutional. The United States District Court ruled that the
dancing was not expressive conduct. The Court of Appeals reversed, declaring that it was nonobscene
expressive conduct and thus protected by the First Amendment. Indiana did not argue that the dancing
was obscene. (If that were the issue, the Miller test would have determined the outcome.) Instead,
1 491 U.S. 397, 109 S. Ct. 2533, 1989 U.S. LEXIS 3115 United States Supreme Court , 1989
2 501 U.S. 560, 111 S. Ct. 2456, 1991 U.S. LEXIS 3633 United States Supreme Court, 1991
Indiana claimed that its general police powers, including the power to protect social order, allowed it to
enforce such a statute.
Issue: Does Indiana’s public indecency statute violate the First Amendment?
Holding: Although the Court was sharply divided, it upheld the statute. The Court, per Chief Justice
Rehnquist, held that this dance is expressive conduct but only within the outer perimeters of First
Amendment protection. The state has a substantial interest in protecting societal order and morality
and, as this statute only incidentally limits some expressive activity, it does not violate the First
Amendment.
Question: What are a state’s “police powers?”
Answer: The police powers are the inherent rights of states (reserved to them by the operation of
Question: Is it important that Indiana did not argue that the dancing was obscene?
Answer: Possibly. Had the Court applied the Miller test to determine obscenity (defined on page
Question: What specific purpose did the Indiana statute serve?
Question: Doesn’t a state law that interferes with expression require strict scrutiny?
Answer: Usually. The Court’s response to this case was fractured, with Chief Justice Rehnquist
and Justices O’Connor and Kennedy agreeing that the statute did not violate the First Amendment
Political Speech
Political speech is protected unless it is intended and likely to create imminent lawless action.
One of the most important recent developments in Constitutional law concerns the ability of
organizations to engage in political speech.
Commercial Speech
This is speech that has a dominant theme to propose a commercial transaction. Although the First
Amendment protects commercial speech, the government may regulate it more closely than other forms
of speech. Commercial speech that is false or misleading may be outlawed altogether. Regulations on
permissible commercial speech must be reasonable and directed to a legitimate goal.
Case: Salib v. City of Mesa3
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?
Holding: No, the trial court ruling is affirmed. Commercial speech that concerns any unlawful
activity or that which is false or misleading is not protected by the First Amendment. However, all
other speech may be regulated if the government can satisfy a three-prong test. First, the government
3 133 P.3d 756, 212 Ariz. 446, Arizona Court of Appeals, 2006.
must show a substantial interest in support of the regulation. Both parties agree that aesthetics is such
a substantial interest.
Second, the government must show that the challenged regulation advances that interest in a direct
and material way. Here Salib argues that Mesa cannot satisfy this prong because they have conducted
no studies proving what aesthetic or safety problem existed and how the Sign Code could solve such
problems. Mesa claims that the Sign Code was passed in response to legitimate concerns of business
owners that many businesses in the area had 100% window coverage and that detracted from the
aesthetic of the city. Moreover, the city council received considerable input on sign coverage of
windows before passing the Code. The constitution does not require studies to show that the city’s
interests are being advanced by the regulation.
Lastly, Salib argues that the Sign Code is not narrowly tailored. However, narrowly tailored does
not mean that the last restrictive means must be used to accomplish the City’s goals. A “reasonable fit”
between the intent of the law and the means used to accomplish that intent is sufficient. Mesa claims
that 30% is a reasonable compromise between 100% coverage and a total ban on signage. The court is
not in a position to determine what percentage of coverage is the best solution, only that the 30%
standard adopted by the City was reasonable in order to fulfill the goals of the Code.
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
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?
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
Question: What does “narrowly tailored” mean?
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
You Be the Judge: WRITING PROBLEM
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.
Holding: 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
reasonable manner to serve a substantial state interest. This statute fails on both tests. Florida has not
demonstrated that the ban advances its goal of improving the quality of CPAs. Further, the state’s
approach greatly restricts free speech, and less intrusive means are available to achieve its goals.
Edenfield v. Fane, 507 U.S. 761, 113 S.Ct. 1792, 1993 U.S. LEXIS 2985 (1993).
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.
Case: Kelo v. City of New London4
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.
Issues: Did the City’s plan violate the Takings Clause?
Holding: No, the judgment of the Supreme Court of Connecticut is affirmed. A state cannot take the
property of a private party and give it to another private party, even if the first party is compensated.
However, a state may take property from a private party and give it to another if such taking is for a
public use.
Here the city is not planning to make all of the property open to the general public. The city is
trying to execute an economic revitalization plan that includes, among other things, new jobs and
increased tax revenue from the developed property. This unquestionably serves a public purpose.
Kelo asks the court to adopt a rule that prohibits economic development from being considered
a public use. However, economic development has long been considered a public use. Historically,
this court has held that mining and agriculture are public uses because they contribute to the welfare of
the state. Based on those cases, the same can be said of economic development.
Comment: Justice O’Connor, in her dissent stated that the Court’s decision is an expansion on the
meaning of public use. Now, according to O’Connor, the state may take private property from a private
person and give it to another private person if there is a predicted benefit to the public. However,
almost any lawful use of private real estate can be said to have positive side effects. If this is the case,
reasoned O’Connor, then any predicted positive effect would be enough to justify a taking by the state.
This result would render the “public use” constraint on the government’s power under Eminent Domain
useless.
4 545 U.S. 469, 125 S.Ct. 2655, United States Supreme Court, 2005.
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 of private real estate. Her point was that almost all uses of private property generate a
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
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.
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, 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. Laws regulating economic or
social issues will receive minimal scrutiny. Laws regulating gender will be subject to the intermediate
scrutiny test. And, laws discriminating against racial or ethnic minorities or interfere with a
fundamental right are looked at with strict scrutiny.
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? 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. 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 nonresident tuition. See, for example, Clarke v Redeker:5
Higher non-resident tuition “tends to distribute more evenly the cost of operating and supporting
[the state university] between residents and nonresidents 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 nonresidents, it appears to be a reasonable attempt to achieve a
partial cost equalization. The regulation classifying students as residents or nonresidents 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 which the state has husbanded through expenditure of state funds collected from
taxpayers. See, e.g., Baldwin v Fish and Game Commission of Montana.6
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
(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?
5 259 F. Supp. 117 (C.C.Iowa 1966) aff’d 406 F.2d 883 (8th Cir. Iowa), cert. den. 396 U.S. 862 (1969)
6 436 U.S. 371; 98 S. Ct. 1852; 56 L. Ed. 2d 354; 1978 U.S. LEXIS 27; 8 ELR 20425
(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) d. 14th; could not
Case Questions
1. In 1996, California legalized the medical use of marijuana, even though it was still illegal under
federal law. Californians Angel Raich and Diane Monson used homegrown medical marijuana.
When federal agents destroyed their plants, Monson and Raich sued, claiming, among other things,
that the Commerce Clause did not permit the federal government to regulate activities that took
place in their backyards and homes. The federal government argued that because consuming
locally grown marijuana for medical purposes affects the interstate market for marijuana, the
federal government may regulate—and prohibit—such consumption. Whose argument should
prevail?
Answer: This question is based on Gonzales v. Raich, 545 U.S. 1 (2005). Relying on Wickard v.
Filburn, the Supreme Court held that regulating marijuana was within the federal government’s
2. 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
3. Carter was an employee of the Sheriff’s office in Hampton, Virginia. When his boss, Sheriff
Roberts, was up for reelection against Adams, Carter “liked” the Adams campaign’s Facebook
page. Upon winning reelection, Sheriff Roberts fired Carter, who then sued on free speech
grounds. Is a Facebook “like” protected under the First Amendment?
Answer: This question is based on Bland v. Roberts (4th Circuit, 2013). The district court had held
4. 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
5. The federal Defense of Marriage Act (DOMA) defined marriage as a union between a man and a
woman. As a result, same-sex couples were not eligible for the federal marriage benefits given to
heterosexual couples. Edith Windsor and Thea Spyer had been together for 40 years, and married
for two, when Spyer died. Because of DOMA, the federal government did not treat Windsor as a
surviving spouse for purposes of estate taxes, so she was presented with a tax bill of $363,000. If
she had been married to a man, she would not have owed any taxes. Windsor challenged the
statute, claiming the government had violated her right to equal protection. Should she win?
Answer: This case is based on US v. Windsor, 570 U.S. ___ (2013), 133 S. Ct. 2675. The Supreme
Discussion Questions
1. What is the proper role of a judge in interpreting the Constitution? Do you believe in judicial
activism or judicial restraint?
2. Ethics Lawmakers have traditionally struggled when asked to define obscenity. Justice Potter
Stewart simply defined it as “I know it when I see it.” This chapter discusses the guidelines that
determine if speech is obscene for purposes of the First Amendment. In Chapter 4, you read about
the FCC’s vague guidelines on obscenity in Fox Television Stations v. FCC. Should obscenity ever
be protected under the First Amendment? Where you do draw the line?
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 was voided by multiple lower court judges before the
Supreme Court ultimately upheld the law.
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” Fourteenth Amendment scrutiny. Is this
right? Should gender receive “strict” scrutiny as does race? Why or why not?