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CONSTITUTIONAL LAW II R.

Mirian Vandevelde 2012


IS GOVERNMENT ACTION CONSISTENT WITH THE CONSTITUTION?

1. 2.
3.

Look for every act by the government [legislation or action] Whether the state act is Constitutional [substantive] Whether the federal court hear the case [procedural]

STEP ONE: WAS THE ACT BY THE FEDERAL OR STATE GOVERNMENT? 1. WAS THERE STATE ACTION? a. Public Entities: legislature, govt official, court, public school b. Private Entities: Where action is taken by PRIVATE INDIVIDUALS, it will be state action in THREE SITUATIONS: I. PUBLIC FUNCTION DOCTRINE

1. Where private individuals exercise a function that is


TRADITIONALLY, EXCLUSIVELY A PUBLIC FUNCTION [flagg bros.]

a. Exclusive Function: i. ii.


Nixon: private party holding a primary election Marsh: private company owned land of town-operated town [made infrastructure]

b. Non-Exclusive Function

i. ii.

Hodges: operating shopping center not state action in US constitution. Flagg Brothers: UCC enforcing debts is not a traditional, exclusively reserved to states

ii. COERCION AND ENCOURAGEMENT 1. Where the state ENCOURAGES OR LENDS COERCIVE POWER
FOR PRIVATE ACTION

a. Encourages i.
Reitman v. Mulkey Cali put Prop14 on the ballots giving people the choice as to whether or not to discriminate. Adoption w/exercise right made it encouraging

b. Coercion i.
Shelley v. Kramer[private k prohibiting selling to blacks] Judicial enforcement to back up the private action, it is deemed using coercive power for state action.

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iii. SYMBIOTIC ACTIVITY or ENTERWINEMENT

1. Whether the state is SIGNIFICANTLY INVOLVED IN PRIVATE


ACTIVITY

a. Symbiotic Relationship: i. ii.


Situation whereby two organisms depend upon the other to serve needs that the other needs.
Burton: Held: relationship between the coffee shop and public parking structure was symbiotic relationship because needed shop to pay debt coffee shop needed place to operate-. One w/out the other would have failed to survive. both sides get a benefit

b. Entwinement i. Relationship between state and private entity is so entwined.

ii.

Brentwood Academy: (1) state associated interscholastic activity (2) 84% membership where public schools (3) all officials public ee (4) funding came gate revenues (5) meetings of assc during school hours.

2. NOT SUFFUCIENT TO CREATE STATE ACTION: a. Mere existence of extensive STATE REGULATION OR STATE FUNDING of an
activity to private entity IS NOT STATE ACTION

i. State Regulations:
1. State Regulating private monopoly

a.

Jackson: the court found that the only state utility company, which was heavily regulated by the state, does not constitution state action

ii. State Funding

1. 2.

Rendal Baker: private school was funded 90% by federal funds, court still found no state action. Blum: 90% funding private nursing home not state action

b. EXCLUSIVE STATE LICENSES to private entity is NOT STATE ACTION i.


Moose Lodge: this organization discriminated against blacks from being members. A black man brought a suit alleging state action, because the state issued liquor licenses to the clubs restaurant. The court did not find any state action

STEP 2: WHETHER STATE ACTION WAS CONSTITUTIONAL?

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I.

FREEDOM OF SPEECH 1. GR: Government action that abridges the freedom of speech is void unless: i i It passes strict scrutiny; or iii Is otherwise justified.

iiii Even where the abridgment is justified, it is void if it is improper in form 2. Overall Analytic Framework: ii In general terms, the analysis requires three steps. i i (1) Determine whether the government has abridged free speech; i i (2) If so, determine whether the abridgement is justified, either because it i i (3) Whether or not the abridgment is justified, determine whether it is improper in form. iii STEP 1: DETERMINE WHETHER THE GOVERNMENT HAS ABRIDGED FREE SPEECH ii 3 Steps in establishing a Prima Facie case: 1. THE PRIMA FACIE CASE HAS THREE ELEMENTS: (1) state action
(2) abridging freedom of (3) speech 2. The analysis is best if worked backwards 1. DETERMINE WHETHER THERE IS SPEECH? Definition: Speech is (1) Activity INTENDED to convey a PARTICULAR MESSAGE (2) Where the likelihood is great that the message will be UNDERSTOOD. (Texas v. Johnson) i. Speech can be conveyed by: 1. Verbal Communication a. Composed of words oral words or written words b. Ex: Wooley: state motto on license plate passes strict scrutiny or on some other ground; and

2. Non-verbal Communication - Actions and other


forms of conduct (including feelings) a. Rule: Only conduct that is intended to communicate a particularized message which is likely to be understood by others is protected

b.

i. ii. iii. iv. v.

Examples: Barnette: Saluting the Flag Texas v. Johnson- Burning a draft card Austin; making pol. campaign contributions City of Erie-- Nude dancing (erotic message) Sleeping (context in front of the White House);

2. DETERMINE WHETHER THE SPEECH HAS BEEN ABRIDGED? 1. Freedom of speech includes the RIGHT TO SPEAK and the RIGHT NOT TO SPEEAK, 2. Abridgment exists where the government (state or federal a. (1) BURDENS or PENALIZES the exercise of free speech OR i. Penalizing Speech: some sort of punishment for verbal or non-verbal communication
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ii. Examples: Arresting a person for violating the law


abridging speech 1. Taking away a right (Barnette physical movement) 2. Taking away a privilege (Wooley driving a car or government employment) (Erie-Nudity-) 3. Note: The Unconstitutional Conditions Doctrine b. (2) Where it COMPELS A PERSON TO SPEAK. i. Compelled Affirmation: government FORCES you to communicate a message you do not agree with or wish to communicate. ii. Wooley =citizens of a state are forced to display state motto on license plates (Mr. Maynard his car license plate Live Free or Die) iii. Barnette- Children forced to salute the flag iv. Virginia Pharmacy: right to RECEIVE SPEECH 3. DETERMINE WHETHER THE GOVERNMENT ABRIDGED THE SPEECH? i. State or Federal action either through statute or some other abridgment

II.

ii. LESS PROTECTED SPEECH. [commercial speech] If CONTENT-NEUTRAL [MANNER OF REGULATION]: 1. If the abridgment is content neutral, then it generally will be analyzed either as: i. (1) RESTRICTION ON EXPRESSIVE CONDUCT. OR II. (2) TIME, PLACE, AND MANNER RESTRICTION 1. Content neutral 2. Viewpoint neutral iii Step 2: Determine Speaker if not content or content neutral issue i iLESS PROTECTED SPEAKERS iiii Step 3: If neither content or content neutral or speaker justification apply, State can regulate speech under STRICT SCRUTINY 1. Abridgments that pass STRICT SCRUTINY will be upheld. ii Note: more than one justification may be applicable and they may be applicable in
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STEP 2: WHETHER THE ABRIDGEMENT WAS JUSTIFIED? 1. GR: THE STATE MAY ABRIDGE SPEECH ONLY IF IT PASSESS STRICT SCRUTINY OR SOME OTHER GROUNDS ii Shift of Burden: Once a prima facie case has been shown the burden of proof shifts to the government to prove that the government had an adequate justification which makes its actions Justified. i SC has identified several adequate justifications. If any one of the i justifications is satisfied, then the abridgement is justified. 2. 3 STEPS FOR JUSTIFICATIONS: i i Step 1: Determine if content based or content-neutral abridgment ii If CONTENT BASED: 1. Content based abridgments follow strict scrutiny unless if they fall within: i. 5 UNPROTECTED SPEECH, OR

any combination 1. CONTENT BASED: UNPROTECTED SPEECH AND LESS PROTECTED SPEECH GR: CONTEST BASED REGULATIONS MUST PASS STRICT SCRUTINY UNLESS UNPROTECTED SPEECH OR LESS PROTECTED SPEECH Content Based: Looking at the message, speech, terms of the speech Remember: If a regulation is content based then a finding must have been made A. UNPROTECTED SPEECH DEF: State may regulate unprotected speech 5 TYPES OF UNPROTECTED SPEECH 1. ADVOCACY OF UNLAWFUL ACTION Brandenburg 1. IF WORDS ARE FROM INDIVIDUAL: Brandenburg 2 prong test [Clear and Present Test] a. The government may regulate speech if: i. ADVOCACY is directed at INCITING OR PRODUCING IMMINENT LAWLESS ACTION [Present] and 1. Inciting a. Occurs where the speaker is spurring or encouraging others to act lawlessly b. Watts v. US- Guy giving speech against draftsaying if have gun will shoot 2. Imminence a. Must be present; about to happen without a chance to respond b. Hess v. Indiana: Anti-war protestors saying Well take the Fucking Streets c.
later. The court found later to be in the indefinite future and not imminent NAACP v. Claiborne Hardware: NAACP was organizing a boycott said If we see any of you visiting these racists stores, well break your neck. - Found it indefinite-no imminent lawless action. president. Historical content is president LBH. Court found not sufficient to incite words bc knew it was rhetorical. (joke)

which found NO SECONDARY effects of regulation.

3. Lawless Action ii. LIKELY TO INCITE OR PRODUCE SUCH ACTION [Clear] 1. Likely means the danger must be clear, probability it will occur a. Distinguish between Advocacy of a Belief and Advocacy of
Action.

b. 2.

3. 4.

IF WORDS ARE FROM A GROUP: a. To be convicted for membership of an organizations speech [without actually participating in the speech]: i. Have KNOWLEDGE of the organizations ILLEGAL ADVOCACY 1. (know of their unprotected speech); AND ii. Must have the specific INTENT for those ORGANIZATIONAL GOALS TO SUCCEED. Policy: Hecklers veto -to prevent actual violence and promote peacefulness. Note: Very hard test for State to prove-all cases were overruled .

Brandenburg: Merely teaching resort to force and violence is not same as preparing a group [Look at circumstances]

2. FIGHTING WORDS (Chaplinsky) [Extension of clear and present danger rule]


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1. Two-part test: The government may regulate fighting words IF: 1. WORDS that tend to INCITE an IMMEDIATE BREACH OF THE PEACE; AND

a. a.

2.

Tend to incite suggests the clear, probability element. Immediate suggests the imminent, present element. Breach of the peace suggests the danger, harm aspect Cantwell: Jehovahs Witness, played an anti-Catholic phonograph to two passer-bys who became pissed and threatened to hit him if he didnt go away

WORDS that are DIRECTED at a HEARER who is PRESENT.

b. Note: [distnc. from adv. unlawful action is face to face] 2. Policy: prevent violence and illegal activity- promote peace. 3. NOTES:

Post-Caplinksy: Hard to establish-court has become pretty TOLERANT of fighting words You son of a bitch ill choke you to death not considered fighting words The better argument claim that the fighting words are threats. -- both fighting words and threats should be analyzed.

3. TRUE THREATS Virginia v. Black: [much easier to satisfy] 1. GR The government may regulate true threats IF: A. The speaker INTENDS to communicate A SERIOUS EXPRESSION OF AN INTENT to commit an ACT OF UNLAWFUL VIOLENCE Exam tip: Key is to prove intent-not suff. to show mere act of intimidation B. TO A PARTICULAR INDIVIDUAL OR GROUP of individuals. 2.Prevent Chilling Effect/hecklers veto: protect the hearer from the fear and intimidation the speech causes Policy does not concern that the harm actually occur Unlike the previous categories (incitement to illegal activity and fighting words) where the policy was to prevent actual violence 4. OBSCENITY Miller v. California [EXAM: APPLY BOTH OBSCENITY & CHILD PORN IF EVER SEE EITHER] 1. GR: The government may regulate OBSCENE speech. a. If you are able to get the obscene material into your home you are protected, however you can be arrested if you are caught buying it, producing it, or selling it, and even possessing it in public. 2. 3 Part TEST: Speech is OBSCENE IF it satisfies 3 ELEMENTS (Miller test):

a. Average person applying i. Contemporary COMMUNITY STANDARDS would find that the work,
taken as whole, appeals to the 1. Community: when material is targeted at a specific group/audience, the jury needs to apply the standards of that particular community. a. The community can be geographic or a particular group of people b. This is a local community analysis-different based on locale ii. PRURIENT INTEREST IN SEX. 1. Prurient Interest in Sex: abnormal perverted sex; unwholesome sex; not healthy sex b. The work:
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(1) DEPICTS in a Images or words or conduct (2) PATENTLY OFFENSIVE way 1. The acts must be offensive and cross the threshold. 2. Ex: masturbation, excretion, lewd exhibitions of genitals 3. Jenkins v. Georgia: Nudity alone is not obscene. Need to have patent
sexual conduct.

(3) SEXUAL CONDUCT specifically 1. Can be either actual or simulated sexual conduct (4) IDENTIFIED as obscene by state law; and The state statute must describe the types of obscenity that is unprotected. ---this acts as a notice c. The work, taken as a whole, LACKS SERIOUS (substantial) LITERARY, ARTISTIC, POLITICAL, OR SCIENTIFIC VALUE, as measured by a NATIONAL STANDARD. (SLAPS) i iThis factor in a sense is redeeming value because if the material has one of these characteristics the chances of it being obscene are less likely. 1. National Standard: this factor is based on a national standard i. Note: the other to factors are based on a community standard 2. Lacks SLAPS: where the work lacks any of the characteristics and
satisfies the other two factors it is likely to be held obscene. i. Example: Medical text books are protected because the material in them is necessary for doctors to learn 3. Policy: Hecklers veto protecting sensibilities of unwilling recipients or

juveniles. Laws must adequately put us on notice. 4. Notes: very difficult to prove and the focus has shifted more towards Child Pornography
5. CHILD PORNOGRAPHY NY. v. Ferber I. The state may regulate child pornography A. INCLUDING: in home OR offers to give or receive child porn. B. Supreme court has not given formal definition. Need to apply Ferber. FERBER TEST ANALYTICAL FRAMEWORK: II. (1) SEXUALLY EXPLICIT MATERIAL (2) DEPICTING MINORS constitutes CHILD PORNOGRAPHY. A. Sexually Explicit: 1. The representation or depiction must be explicitclear, unambiguous. 2. The picture doesnt even have to be of a naked minor 3. One picture is all that is needed 4. the material does not need to be taken as a whole B. Depicting Minors: 1. Policy: Must harm child 2. Ashcroft [actual child] court found statute was overinclusive because virtual child porn is not the same as actual child porn. Thus, images depicting children, who are actual adults, are not protected. 3. Ferber: Statute was about actual child . i. Even material that Appears to contain minors, and where people believe that the person is a minor are NOT considered to fall within the
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unprotected child pornography category

C. Adequately Described by State Law: 2.


1. Need notice
CHILLING EFFECT POLICY: Need notice bc fear of chilling protected speech, self-censoring speech; people must knowthe statute must adequately define the proscribed conduct. The State has to show it has put you on notice by adequately describing what has been prohibited

III. Hecklers Veto: Harmful to child

EXCEPTION TO UNPROTECTED SPEECH: RAV, [if distinguish by degree apply] [if distinguish content apply S.S.] 1. Content based regulations of ONLY SOME (not all) speech in a category of unprotected speech are subject to STRICT SCRUTINY UNLESS the criterion for determining which portion of the unprotected speech where regulated is based on the characteristics of the speech that justifies treating it as UNPROTECTED. 2. ANALYTICAL FRAMEWORK: a. Is it CONTENT BASED? (1-5) b. Does regulation ban only SOME SPEECH in a category? c. If so, is does regulation ban ONLY THE WORST SPEECH

i. Black: Worst speech: cross burning seen as inherently negative bc of historical


symbol. 1. However arg: Market place of Ideas v. Hecklers Veto: Determining what can and cannot be suppressed must be based on the characteristic that makes the speech unprotected in the first place, not on the viewpoints or message it conveys RAV: (cross burning): so such slight social value that any benefit derived from them is outweighed by social interest in order and morality.

ii.

B. CONTENT BASED: LESS PROTECTED AREAS OF SPEECH: Meaning they are not fully unprotected, but not protected. However, they also dont have to pass strict scrutiny. 1. COMMERCIAL SPEECH Hudson Gas 1. State may regulate commercial speech a. Def. Commercial Speech is speech that proposes a commercial transaction. b. Free Market Idea Policy Need info for market economy to work. It is not only the speaker right but the listeners (customers) right to info. Reason to protect commercial speech bc price info is greater interest to people then political info is. c. Chilling Effect Policy: Less then Full Protection: Virginia Pharmacy Commercial Speech is not fully protected because there is less risk for chilling given the direct self-interest in PROFITS from advertising.

a. Verifiable commercial speech is easily verifiable because it is easy to ensure the truth

about your speech, and thus it doesnt have the chilling affect that political speech has, where determining the truth is more difficult. i. If company adv. product know $ charging. If dont know its true- you know that its not true. b. Durable commercial speech is more durable because it is a profit builder people make money off of the speech --Positive incentive to utter commercial speech bc can get $

2. 2 WAYS COMMERCIAL SPEECH MAY BE REGULATED: Hudson Gas test- and Sorrell 1. Commercial speech may be regulated if: a. FALSE i. Misleading b. COERCIVE Speech or
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Unprotected Attorneys speech use to be deemed coercive and thus are not protected. c. Proposes an UNLAWFUL TRANSACTION 2. Commercial speech may be regulated if: a. Directly ADVANCES a b. SUBSTANTIAL INTEREST and is c. NOT MORE RESTRICTIVE THAN NECESSARY. ANALYTICAL FRAMEWORK 1. Whether there a SUBSTANTIAL INTEREST: a. What interest does the state have in regulating the commercial speech?

i.

b. c.

Hudson: interestconserving energy during crisis Obrian and Hill: Motive not relevant

2. Did it DIRECTLY ADVANCES: i. Look for direct correlation

1.

ii. Looks for under-inclusiveness. 1. Sorrell: only banning pharmacist from getting info can still get info indirectly. 3. NOT MORE RESTRICTIVE THAN NECESSARY: o Not as heavily scrutinized as strict scrutiny more like intermediate scrutiny a. Over-inclusive i. Hudson: ban on ALL included those that promoted energy conservation b. Under-inclusive. c. Less Restrictive alternatives. a. This is not a least restrictive means test; all that is required is a reasonable fit. b. Sorrell: can have no soliciting sign instead of ban 2. CONTENT NEUTRAL SPEECH: LESS SCURTINIZED SPEECH [looks at nature of regulation][intermediate scrutiny] IS REGULATION: (1) CONTENT NEUTRAL OR (2) VIEWPOINT NEUTRAL? I. CONTENT NEUTRAL [when restriction not related to writing or speaking]: A. EXPRESSIVE CONDUCT (OBrian) [Exam hint: always apply TPM too] A. GR: When speech or an idea IS COMMUNICATED THROUGH CONDUCT, the state may regulate that conduct 1. When people communicate through conduct, such conduct could have social implications that the state should be entitled to address. 2. OBrien court created four factors to determine when a state may regulate such expressive conduct. B. OBRIAN FOUR FACTORS: 1. The regulation is WITHIN the constitutional power of the government; i. The regulation must be within one of the powers of the government which allow it to act ii. State Police power: health, safety, welfare, and morality of the people.

Hudson: effectiveness of the regulations is that the utility company actually fought it because it will result in less use of electricity = less profits

iii.

Note: if a regulation does not pass this first factor, then 1A does not need to be looked at, bc no power to act.

2. The Regulation FURTHERS an important or substantial GOVERNMENT


INTEREST i. Substantial Government Interest? i. Look at: Governments interest in regulating the conduct
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1. 2. 3.

OBrien: an effective national defense City of Erie: Preventing -reducing crime Turner: Preserving benefits of free local broadcasting, promoting widespread information from multiple sources, and promoting fair competition in the marketplace were substantial state interests. City of Erie: Court found little evidence showing regulation would reduce crime but presumed

ii. Substantial?

1.

ii. Furthers? 3. The Regulation is UNRELATED to the SUPPRESSION OF EXPRESSION


i. REGULATION ON ITS FACE i. The regulation on its FACE DOES NOT address the MESSAGE rather it looks at MANNER OF REGULATION 1. Scope of Behavior covered by the law ----Should have a BROAD Message i. City of Erie prohibited ALL public nudity-[not just strippers] ii. Argue how be interpreted as broad or limited to certain messages 2. Content neutral looks at MANNER of regulation ii. GOVERNMENT INTEREST i. GOVERNMENT INTEREST Is Unrelated to Suppression of Expression 1. INTEREST in suppressing the CONDUCT is to PREVENT SECONDARY EFFECTS (such as crime) and NOT the primary effects (the erotic message). 2. Argue: Targeting conduct and speech is merely incidental 3. Congressional Motive NOT RELEVANT: i. Under inclusive?

i. OBrien; Erie: The Court will not inquire into TRUE MOTIVE for
passing a law crime

ii. City of Erie: Motive related suppression of hookers but said was
If it is determined at this point that the statute is content-based and not content-neutral Strict Scrutiny is applied.

4. ANY BURDEN ON EXPRESSION is NO GREATER THAN NECESSARY TO


FURTHER THE INTEREST. i. Not as heavily scrutinized as strict scrutiny more like intermediate scrutiny. a. OVER-INCLUSIVE [focus on over-breadth] b. LESS RESTRICTIVE ALTERNATIVES. i. This is not a least restrictive means test; all that is required is a reasonable fit

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B. TIME, PLACE, AND MANNER REGULATIONS 1.GR: The state may regulate the TIME, PLACE, AND MANNER OF SPEECH The State aims not at the content of the message, but rather its physical manifestations. Where the regulation applies determines the level of scrutiny. 2 Steps:
a.

b.

Determine which forum applies. Determine level of scrutiny: whether the regulation is content neutral/viewpoint neutral or content based/viewpoint based (consider congressional motive exception as in OBrien). i. apply the respective tests.

Note: many TPM restrictions can also be argued/analyzed under the OBrien test- the conduct that is being regulated.
1. CONTENT NEUTRAL TEST FOR: i. Traditional public Forum: i. Public property traditionally open to speech. Time out of mind 1. Public means govt owned. ii. Ex: Streets, Sidewalks, parks have always been assumed to be an appropriate area of speech) 1. Schultz: sidewalk 2. Madison: sidewalk 3. Hill: street ii. Designated Public Forum: i. Public property intentionally opened for speech by anyone. (all

2. 2 Steps in Analyzing: 5 TYPES OF FORA A. STEP 1, determine what TYPE of FORUM the speech is taking place on.

1. Public means designated by govt ii. Ex: University Auditorium iii. Private Property: i. Owned by a private citizen ---not government 1. City of LaDue: put sign on yard- private property ii. Note: the word property as used here is not limited to real estate. It can refer to any means of communication. (Ex: a newsletter) 2. VIEW POINT NEUTRAL TEST FOR: i. Limited Designated Public Forum: i. A designated public forum that is open only to certain types of speech ii. Where the state opens up the public property for speech (i.e. a school), but only certain types of speech. 1. Christian Legal Society ii. Nonpublic Forum: i. Government facilities not intended to speech, ii. All other public property--- jail, office, auditing tax returns 1. Krishna: Airports B. STEP 2: DETERMINE WHAT TEST APPLIES (2 TESTS):
I. CONTENT NEUTRAL TEST [3 PART TEST]: Frisby v. Schultz) 1. Where speech occurs in (1) traditional public forum (2) designated public forum
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purpose forum)

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(3) private property, the state my impose a content neutral regulation of Time, Place and Manner if: 1. Content neutral 2. Regulation is narrowly drawn to serve a significant government interest 3. Leave ample alternative channels of communication 2. Level of Scrutiny: This test is weaker than strict scrutinyneed not be least restrictive means to further states interest. 3. Content based TPM cannot be justified under this doctrine =subject to strict scrutiny unless other justification 1. STEP 1: CONTENT NEUTRAL: 2-PRONG TEST TO DETERMINE CONTENT NEURTALITY 1- LOOK AT FACE OF LAWwhat does it prohibit? i. The regulation on its FACE DOES NOT address the MESSAGE rather it looks at MANNER OF REGULATION i. Identify Content Neutrality Regulation: Hill: BROAD scope a. Argue how be interpreted as broad or limited to certain messages b. Hill: No Counseling or Educating or Soliciting in med center- These are certain

kinds of message. But only anti-abortion was being demonstrated. Held: it to be soliciting about anything. Therefore it was seen as content neutralBROAD SCOPE.

ii. Look at language --- (Hill). a. Shultz [trad]: prohibited ALL picketingnot just abortion b. La Due[privt]: prohibits ALL SIGN on residential property but with qualified
exceptions

c. Alamedia [private] prohibit ALL adult stores.


2- INTEREST OF LAW i. Govt interest must be UNRELATED to Suppression of Expression ii. INTEREST in suppressing the CONDUCT is to PREVENT SECONDARY EFFECTS iii. Argue: Targeting conduct and speech is merely incidental

i. Erie: Interest was to limit crime not nudity ii. Madsen: (injunction of ALL protest) Not to regulate abortion injunction but to
protect public health and safety. people

iii. Hill: (ordinance cant go 800feet to medical facility) promote health and safety of iv. Injunctions are treated as content neutral even though reg. particular
message Madsen):

i. ii.

Content neutral: Court argues that they are not regulating the message but are regulating the unlawful conduct of the protestors Because of the discretion given to courts in issuing injunctions the court has mandated a higher level of scrutiny in injunction cases.

ii. Look to see if it was REAL INTEREST 1. Congress Motive NOT RELEVANT: The Court will not inquire into True
motive for passing a law that is otherwise constitutional (OBrien)
speech was prompted by the response to a particular message beautify but REAL interest regulate message of war

a. Hill v. Colorado the court held irrelevant the fact that an ordinance restricting b. La Due: Prohibit signs on residential property with qualified exceptions. Interest:

2. Congress Findings Dont matter: i. Almeda [Court split:] Prevent crime but No studies shown. Real Interest: regulating erotic messages 2. STEP 2: NARROWLY DRAWN to serve a SIGNIFICANT GOVERNMENT INTEREST; and 1. Significant interest:
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a. Congress Findings? i. The significance of the interest will show through by the means of the enforcing the interes ii. Obrain and Hill: Motive is irrelevant iii. But; Almeda: Interest Crime. Court split: No studies shown. Real Interest: regulating erotic manner.
messages 2. Narrowly

Drawn: the regulation must not go too far in restricting the time, place, and

1. OVER or UNDER inclusive 2. Whether it is EFFECTIVE in serving the interest

i.

3. LESS RESTRICTIVE MEANS TO FURTHER INTEREST i. Madsen: images of protesterslook the other way

Shultz: Here the picketing is aimed at the private residence, not the public. Thus, the resident is the captive audience. The regulation, then, eliminates only this evil.

3. Step 3: LEAVES OPEN AMPLE ALTERNATIVE CHANNELS OF COMMUNICATION I. Must give alternative ways of communicating that allow the speaker to reach the SAME AUDIENCE IN A SIMILARLY EFFECTIVE WAY a. Look to see if can reach same audience with same Message
b. Ample:

i. Schultz: still reach neighborhood and communicate to same audience. ii. City of Erie; The nude dancers were able to comply with the law and still get the majority of their
message across Cohen the words he used seemed to be the only method of communicating his idea If disabled personcant put bumper sticker or hand out leaflets but can only put sign in yard Location may be restriction message (Cohen). Therefore. May not be able to say it at all. If suppress sign in yard then suppressing particular person want to reach.

iii. c. i. ii.

Not Ample: City of LaDue:

II. VIEWPOINT NEUTRAL: LIMITED DESIGNATED FORM AND NON-PUBLIC FORM


This is an easier standard for the State to prove, because it is not saying it is not discriminating based on the content of the speech at all (content neutral), just that it is prohibiting any viewpoint about or involving a certain topic.

Rule: Where speech occurs in a (1) non-public forum or (2) limited designated form, the state may regulate the time, place, and manner of the speech provided that the regulation is: 1. VIEWPOINT NEUTRAL; AND a. Language of the Regulation Must be neutral [cannot take a particular side]

i. Viewpoint neutral is different from content neutral, in that viewpoint neutral can be
content based and address the content of the speech,

b. Kristna [NPF]: Here, the Port Authority said you cannot disseminate commercial speech at all, c. Christian Legal Society: School policy req. ALL to access org.
notwithstanding the particular viewpoint of the transaction. did not recognize Christian society bc requirement to believe in god. i. Ex: No one can discuss politics in the parkno one can talk about taxes 1. This is content based because it pulls out politics and thus would fail the traditional public forum test iii. Ex: If however, the law stated that Only democrats can discuss politics in the park 1. This is view point based bc taking a SIDE of who can talk. and would therefore fail the non-public forum test

2. REASONABLE in light of the PURPOSE OF THE FORUM. 1. The regulation must be reasonable a. Does not ban the speech entirely, but still remedies the concerns

2.

Krishna [Non-Public forum]: the court found that it was reasonable under the circumstances to restrict the Krishnas from soliciting because airports are created for transportation, and because of the rush and

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Note: The Non-Public/Limited Designated Forum test is a much easier to satisfy thus courts often want things to be considered non-public forums. III. GOVERNMENT SPEECH: LESS PROTECTED SPEAKERS 3. THE FOLLOWING THREE TYPES OF SPEECH ARE REGULATED BY WHO IS SPEAKING A. GOVERNMENT SPEECH i. GR: The content of speech communicating the states message may be regulated by the state. (Sullivan) ii. Exception: The general rule does not apply where the state acts to FACILITATE private speech Velasquez) 1. (rather than delivering its own message), in which case the constitutionality of state regulations will be determined in accordance with the general principles underlying the time, place, and manner cases. 2. Refusals to Subsidize DO NOT Constitute Abridgements When it is the Governments Message: To put it another way, when the government funds others (private parties; In Sullivan, the doctors) to facilitate its own message, it can control the content of the message (even content or viewpoint based) without violating the First Amendment III. ANALYTICIAL FRAMEWORK 1. IS STATE COMMUNICATING MESSAGE? not protected.

chaos of airports, the plaintiffs only add to the problems. a. Reasonable bc only restricted them only inside of the airport building. Could reach audience it wants tot speak with outside airport.

a. SULLIVAN: i. Govt entitled to have a view point. Govt can express opinion b. c.
through 3rd parties. 3rd parties are speaking for govt not themselves. Valesquez: i. lawyer communicating clients message (private message). ii. state act is facilitating private speech Pleasant Grove: Park w/Monument- Park owned by Govt. Choose what monuments go in park. Therefore government speech and 1st Amendment does not apply.

2. IF YES: CONSTITUTIONAL---IF NO: APPLY STRICT SCRUTINY. B. GOVERNMENT EMPLOYEE SPEECH 1. GR:

1. The state may restrict the speech of government employees on matters of PRIVATE CONCERN 2. Where a government EMPLOYEE engages in SPEECH ON A MATTER OF 3. The constitutionality of state regulations of the content of that speech will be
determined by BALANCING i. THE EMPLOYEES INTEREST IN FREE SPEECH against ii. The STATES INTEREST IN AN EFFECTIVE AND EFFICIENT WORKPLACE. (Connick) 2. Exception: the protection provided by the general rule does not extend to government employees speaking on matters relating to their jobs or their OFFICIAL DUTIES (Garcetti ) 3. 3 STEPS IN ANALYSIS: 1. Step 1: ask whether the speech is a MATTER OF PUBLIC CONCERN?
Con. Law II Outline -

PUBLIC CONCERN,

14

i. MATTER OF PUBLIC CONCERN:


1. CONTENT, CONTEXT, AND FORM OF THE SPEECH MUST BE LOOKED AT. a. Political/Newsworthy i. Connick: questionnaire on political campaign contribution.
Being pressured to work on employers political campaign is such (but not information for personal vendettas).

b. Public Policy: i. Rankin: I wish they got him again referring to president-

c. Perjury: i. Gacetti: whistleblower-prosecutor spoke out claiming was


a fake search warrantwas then transferred.

Public policy---Reagan administration

ii. If private concern no protected iii. If public concern gets some protection 2. Step 2: the government/state must balance the interest of the EMPLOYEES RIGHT AS A CITIZEN against the governments interest in an EFFECTIVE AND EFFICIENT WORKPLACE. a. Employees INTEREST in free speech: i. How IMPORTANT is the speech? 1. More public concern the greater the interest a. Rankin: High interest bc reflects political thought b. Connick: Low interest: only one of several questions related to public concern b. States interest in AN EFFECTIVE AND EFFICIENT WORKPLACE: 1. How DISRUPTIVE is the speech? a. Greater the disruption more favorable for State interest i. Rankin: told b/f in office-back-room-no one heard. There was no discrediting in office. ii. Connick: giving questionnaires for campaign contributions during office time outweighed effective and efficient workplace. 2. Extent view of speaker are confused w/government a. Rankin: clerk was out of public eye 3. Context for the info a. Connick: upset at news of a forced transfer b. Rankin: off-hand private comment to co-worker 3. Step 3: Determine if the employee is SPEAKING in CONNECTION WITH HIS OFFICIAL RESPONSIBILITIES 1. Government Employee Speech Doctrine DOES NOT Protect Speech Related to Job Duty 1. If so not protected and firing is not subject to first Amendment claim 2. If not exception doesnt apply thus analysis stops with the weighing of interests

d. SCHOOL SPEECH

For Connick to apply, the speech must not fall within the employees job description. In Garcetti, his speech was within his duties as calendaring attorney, and so suppression (i.e. demotion) was justified.

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Gr: School speech is by elementary or secondary school students. Discretion of the sate to regulate school speech depends upon whether the speech is sponsored by the school i. Step 1: Determine if SCHOOL SPONSORED speech 1. Speech is not purely by student. Speech represents school 2. Hazelwood: Student Newspaper attributes speech to school not just student writing it. ii. Step 2: Two Basic Tests: a. If NON-SCHOOL SPONSORED Speech (Tinker test): i. Rule: A school may regulate a students speech if: i. Speech SUBSTANTIALLY INTERFERES with the WORK of the school; OR 1. Tinker: Armbands to support politics did not disruptpassive act. 2. Morse: arg. similar to Tinker holding sign during school time is sub. Interferes. ii. Impinges on the RIGHTS OF THE STUDENTS b. IF SCHOOL SPONSORED Speech (Hazelwood test): i. Rule: The state may regulate school-sponsored speech if: i. The regulation is REASONABLY RELATED TO A LEGITIMATE PEDAGOGICAL (EDUCATIONAL) PURPOSE
a. Educational mission of school; Protecting students from exposure to inappropriate material (Hazelwood and Fraser); Protecting from false attribution to school

b.
c.

ii. Step 3: 2 EXCEPTION: 1. The school has the right to regulate LEWD [SEXUAL] SPEECH a. Bathal: At assembly to student electionsstudent used sexual innuendos. Was suspended. Held: School can regulate speech that is of indecent behaviorspeech not representative of societal values. b. ARGUE INAPPROPRIATE SPEECH concept can be extended to other subjects. i. ie. Bathal case of narrow: erections or broad: inappropriate 1. The school has the right to regulate speech REASONABLY BELIEVED to be ADVOCATING ILLEGAL DRUG USE.

a. Morse: field trip off campus student made sign bong hits for Jesus Held: during b.

c.

school hours, school event, banner held up so other students can see (directed at school) shows school speech. Broad interpretation could be argued ANY ILLEGAL ACTIVITY is unprotected school speech. i. ---Arg. broad (social inappropriate) or narrow (adv.drug) interp. ii. Viewpoint restrictionwould not have suspended if said NO drugs.===Note: Contrast Brandenburgthere it was adv. unlawful conduct BUT also likelihood incitement of imminent action When the school creates a forum for the students speech the school sponsors the speech and thus the test should be more narrow. -----Very low level test to satisfy.

NOTE: THE UNCONSTITUTIONAL CONDITIONS DOCTRINE HOLDS THAT The state cannot condition receipt of a privilege on the surrender of a constitutional right. (Shapiro) applies in: Gov Speech (Rust and Velasquez); Gov Employee Speech; Student Speech public education) 3. STRICT SCRUTINY The state may abridge speech if the law is (1) narrowly drawn to (2) serve a compelling state
Con. Law II Outline -

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interest. 1. Compelling Interest: a. Step 1: Determine what the governments interests are JUSTIFIED The facts will often specify the considerations that prompted the government to take the challenged action. If the facts dont tell you, then use your common sense.

b. Step 2: Determine whether the interests are COMPELLING 1. Must be of sufficient constitutional magnitude
a. b.

2.

3.

Discuss and analyze each interest separately Since there is no definitive list stating what a compelling interest is, there will often be no clear answer. Not Compelling a. Saving money or administrative ease is rarely a compelling state interest. b. The need to promote nationalism is not a compelling state interest (Barnette) Compelling: a. Protecting Privacy= protected by the Constitution.

i. Cohen Fuck the draft: State claims invasion of privacy. ii. Marketplace of Ideas: Censoring some words may result
in censoring ideas in that it limits the way people can express themselvesneed to say offensive words in order to express what want to say Words are in public place does not affect private refuge.

b. Protecting Children from adult content is a compelling state interest c. Preventing Political Corruption in the political process is a compelling
state interest (Buckley). (Playboy).

i. Citizen United: Government may not regulate speech

Thus: assuming that X is a compelling state interest, need to determine whether narrowly drawn.

based on identity of speaker. 1. Rationale: Cant treat corporations differently on people or corruption. Court rejects definition of corruption in Austin. 2. Held: political speech is indispensable to a democracy, which is no less true because the speech comes from a corporation. "governmental interest" in providing the "electorate with information" about election-related spending resources. ii. Witney v. California: If political discussion =marketplace of ideas, the government should step in and break up monopolies to promote freer flow and promote more viewpoints.

2. Narrowly Drawn: . Suppressions will be narrowly drawn if limited only to the extent that the message
can still go forward without violating the interest

1. (Buckley, contributions $1k limited only to the extent the message could go forward 2.

without the corrupt influence; Capitol Square, placing a sign next to the cross might have been an alternative less restrictive way than a flat out denial). Exam: if it is plausible bring it up and argue --Very hard standard to satisfy. Cts. Do not Con. Law II Outline -

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impose this

. Look for ways that the law is: 1. Over-inclusive: means that the law goes too far 2. Under-inclusive: means that the law doesnt go far enough 3. Less Restrictive Alternatives: a. Step 1: If the challenger offers a less restrictive alternative Show any plausible less restrictive means Playboy- opt-out of channel. b. Step 2: Burden of proof shifts to the defendant to show that this less restrictive alternative is INEFFECTIVE. Playboy- govt show did not opt out. Court said did not show- maybe they did not want to opt out. c. Step 3: If the defendant fails to satisfy his burden, the statute is unconstitutional ways of achieving the governments purpose with a lesser imposition on constitutional rights II. STEP 3: IMPROPER IN FORM: WAS THE ARIDGMENT PROPER IN FORM? 1. GR: Regardless of whether state abridgment of speech is justified, the abridgment will be void if it is improper in form. A. Regulations are improper in form if they are: 1. Vague, 2. Overbroad, or 3. Prior Restraint

B.

CHALLENGING THE LAW: TWO WAYS:

1.

On its face: Much tougher challenge to win. Essentially the petitioner says that under no conceivable set of facts could this be constitutional; not when just applied to me. If successful, the judicial branch declares that any further enforcement is unconstitutional (if arrested, the person will walk) As applied: Easier challenge to win. Essentially the petitioner says that while the law may be fine as applied in other circumstances, the facts of my case do not provide the State with enough justification to suppress me. If successful, the law is still on the books; it is only unconstitutional as it applied to them, the facts of their case.

2.

A. VAGUE

i. R: A statute is vague if PERSONS OF COMMON INTELLIGENCE MUST GUESS AT ITS


MEANING. [coats] ii. Policy: Avoid:

b. Chilling Effect on Speech: It is unsure what type of speech falls within the
regulation, so out of fear people dont speak because they are not sure whether there speech is subject to punishment or not.

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c. Discrimination/Favoritism: allows others to subjectively discriminate (such as


police) to interpret the statute and apply it in a way that could have a discriminatory effect and results in standard-less discretion, in that it allows people to use their discretion in applying the regulations.

d. Violates Due process-no notice . 2 ways a Statute or Regulation can be invalidated for vagueness:
Vague on its face: a statute that is found to be vague in all possible situations will be held void on its face and cannot be applied to the case before the court or in any future case.

Vague on face cant be applied to ANYONE

Vague as applied: a statute that is vague in a particular case will be held void as applied to that case, but may be applied in future cases where its meaning is not vague. Vague to the set of facts given

iii. EXCEPTION: Saving Construction: Where Court takes vague term and defines or gives it a clear synonym. Court presumes legislature did not intend to violate constitution when it passed the law. Imputes meaning to legislative intent.

2. OVERBROAD

a. R: A statute is void if it is SUBSTANTIALLY OVERBROAD. i. Substantially:


1. Does not apply where the statute is minorly overbroad

2. Broackrick:not allowed to wear political buttons while soliciting was not


seen as substantial bc was more speech then conduct.]

3. DOES NOT APPLY TO STATUES DIRECTED AT CONDUCT [Hicks]: a. Hicks [Need to look at regulation as a whole ii. Overbroad: 1. Regulates PROTECTED SPEECH & UNPROTECTED SPEECH OR 2. that DELEGATES TO OFFICIALS STANDARDLESS DISCRETION TO
REGULATE SPEECH.

Con. Law II Outline -

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a.

To have standing = the persons must have been injured. (i.e. their rights were violated)

b. Note: A statute that is overinclusive, is called overbroad for the Free Speech context. ii. 3 WAYS THE COURT CAN INVALIDATE A LAW FOR OVERBREADTH 1. When raised by an Unprotected Speaker Challenges the Statute [just tertii] a. The unprotected speaker is permitted to assert the rights of those who are prevented by the statute from engaging in protected speech. b. If the overbreadth challenge is upheld, the statute will be void on its face and will be applied neither to the challenger nor to anyone else. 2. Protected Speaker Challenges the Statute:

a. If an overbroad statute is challenged by a speaker whose speech is


protected, the statute will be voided only as to that speaker. (Brockett)

b. Rationale: this doctrine assumes that the protected speaker will not challenge
the law, and where they do, the court will only find that the law is void as applied to them. 3. Partial Invalidation: a. Court could invalidate certain portions of law for overbreadth, leaving a constitutionally firm statute

c. Note: Legislatures now put in Severability Clauses which say if one part is
unconstitutional, keep the rest (or the rest becomes inoperable at the same time).

EXCEPTION: Saving Construction [does not invalidate] [Brockett]: a. Can impute legislative intent in saving the constitutionally vague term. b. Because the overbreadth doctrine could have such a freeing effect on the unprotected speaker, the court will where it can, try and interpret the statute in a way that they believe the legislature intended, thereby trying to save the statute by
Con. Law II Outline -

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giving it the ambiguous word a more narrow meaning.

3. PRIOR RESTRAINT

1. R: Prior restraints generally comprise (1) INJUNCTIONS AGAINST SPEECH and (2) REGULATIONS requiring PRIOR APPROVAL before speech may occur.


2.

There is a very heavy presumption against the validity of any prior restraint on speech. Prior means any before any speech takes place [if violate, punished later]

2 Types of Prior Restraints: 1. INJUNCTIONS [Near] a. An injunction against speech is likely to be subjected to STRICT SCRUTINY EXCEPT in the cases of

a. ADVOCACY of UNLAWFUL CONDUCT b. DIRECT THREATS to National Security


C. OBSCENITY

b. Prior Restrain on Press Reporting Trial Nebraska Press 1. Nature and Extent of pre-trail coverage 2. Effectiveness of OTHER MEANS of protecting fairness of trail
1. Can info be gotten from other news. 2. Govt did not show if other measures.

3. LIKELY EFFECTVINESS OF RESTRAINING ORDER.


1. Very hard to satisfy.

Con. Law II Outline -

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c. Rationale: We worry about prior restraints b/c of the abuse often linked with injunctions 1. Collateral Bar Rule the only remedy to an injunction is to appeal it, whereas
challenging a statute unconstitutional is a complete defense.

2. Separation of Powers the legislature is suppose to create the law, where the
judicial branch is suppose to interpret the laws, but in the case of an injunction, the court is imposing and enforcing the restriction. Where you violate an injunction, you stand before a person you have just violated their order- thus, they are unlikely to be a neutral factfinder.

3. NOTE: APPLY STRICT SCRUTINY GENERALLY FAILS.

2. LICENSING SCHEMES [apply if content based] Friedman v. Maryland a. Elements: Where a statute requires PRIOR APPROVAL OF SPEECH, such
approval is permissible if:

i. SUBSTANTIVE REQUIREMENT AND 1. The approval is based on standards that are NARROW, OBJECTIVE,
AND DEFINITE; 2. Avoiding standardless discretion
Watchtower: everyone was allowed to get permit but no narrow, obj. definite standards

ii. PROCEDURAL REQUIREMENTS ARE MET: 1. There must be a provision of speedy judicial review for any
censorship order

2. Restraint is for a specified brief time and is solely to maintain the


status quo and

3. Censor bears the burden to show validity of the order


Watchtower: there was little delay if any at all, and the only real burden was filling out the paperwork. iii. CONTENT BASED 1. Set of rules is for content based licensing schemes. i. If content based-- apply. ii. If content neutralapply TPM

Con. Law II Outline -

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2. FREEDOM OF ASSOCIATION a. Rule: 1st amendment=federal court 14th amendment=state court

1. Government action that burdens FREEDOM OF ASSOCIATION IS VOID 2. UNLESS it passes STRICT SCRUTINY 3.
AND EVEN IF the action passes strict scrutiny, it is VOID IF IT IS IMPROPER IN FORM a. [ie. Vague or overbroad]

b. FRAMEWORK FOR FREEDOM OF ASSOCIATION: 1. STEP 1: Determine whether the STATE HAS BURDENED THE FREEDOM OF
ASSOCIATION;

2. STEP 2: If so, determine whether the states action passes STRICT SCRUTINY;
and

3. STEP 3: In any event, determine whether the states action is VOID BECAUSE
IT IS VAGUE OR OVERBROAD. STEP 1: DETERMINE WHETHER THE STATE HAS BURDENED THE FREEDOM OF ASSOCIATION

a. Prima Facie Case: The prima facie case has three elements, but they should best addressed
in reverse order:

i. (3) State Action that


ii. (2) Burdens the freedom

iii. (1) To engage in a Protected Association


Note: For analysis purposes its better to be addressed in reserve order.

1. STEP 1: IS THERE A PROTECTED ASSOCIATION?


GR: The Constitution protects only two kinds of Associations (1) EXPRESSIVE AND (2) INTIMATE ASSOCIATIONS (a) EXPRESSIVE ASSOCIATIONS

i.

Asso. of persons for the purpose of ENGAGING in protected 1st Amdt. ACTIVITY

ii. Activity: (a) speech, (b) assembly, (c) petition for the redress of
grievances, (d) THE EXERCISE OF RELIGION

iii.

NAACP: NAACP promoted black civil rights through assembly and petition for the redress of grievances

Con. Law II Outline -

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iv. v. vi.

Rutan: govt employment based on political affiliation. Roberts: sex and age based orgmen b/w 18-35 only natl org.others had limited membership rights EXAM TIP: the message or purpose of associating that the association is conveying does not have to be the same message you can have an association without having a common message.

(2) INTIMATE ASSOCIATIONS

a. Intimate Associations group form of are highly personal relationships


characterized by: i. Size

1. Small number of persons involved;


2. As the number of people involved in the association grow, the greater the argument is that it is not intimate

ii. Selectivity: 1. The degree of Selectivity in permitting new persons to join;


and iii. Seclusivity:

1. The extent to which the groups activities are PERFORMED IN


SECLUSION RATHER THAN PUBLICLY. 2. The more it conducts activities in private, secluded from the public, the more it tends to be protected
Roberts: all mens club. were not an intimate association (too large, not very selective, strangers present at activity),

2. STEP TWO: WAS THE ASSOCIATIONS FREEDOM BURDENED?

1. R: BURDEN ON FREEDOM must be SIGNIGICANT in order to violate the Constitution


[Boyscouts] 2. Abridgment exists where the government: a. COMPELLED ASSOCIATION:

i. FA may be abridged where a group or individual is FORCED to ASSOCIATE


with ANOTHERS GROUP

ii. Burdening RIGHT TO ASSOCIATE OR RIGHT NOT TO ASSOCIATE.

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1. Right TO Associate a.
NAACP: forced disclosure of a black civil rights through assembly and petition for the redress of grievances caused chilling effect to associate w/group bc of privacy issues

2. Right NOT to Associate:


A. ASSOCIATION FORCED TO ADMIT MEMBERS

i. ii.

Roberts- Ct. held mens only Club must admit women women particd. In club. Boy Scoutsstatute Forcing assc. of Gays] Forced to accept homosexual leader impeded the org. moral message to its

members . Held unconst.

iii.

Prunyard Shopping. Private property Shopping Center was seen as state action. Forced mall to allow solicitors. Forced solicitors view on private property PG&E [ct. split no precedence] forced to put consumer newsletters in envelope. Did not want to be associated w/material.

iv.

b. NONMEMBERS FORCED TO JOINNEED CLOSE LINK i. ii.


Rutan: St compelling demos to become republican for govt emly.req to asso. gov. Lathrop v. Donahue: Held favor for states interests in requiring lawyers to join a state bar [club]. Ct: need to reg. legal profession. And improve legal services need lawyer to join bar outweigh burden ARG: RUMSFELD military came on campus. students disagr. Held: Students were not forced to be part of assoc. bc it was on there campus. link was tenuous; recruiters just guests who are not admitted into the group.

iii.

c. MEMBERS OR NONMEMBERS FORCED TO SUBSIDIZE


ASSOCIATION

i.

Private Speech Keller: MUST BE OF GERMANE PURPOSE

1.

Keller: State compel lawyer to pay for state bar if want to practice. Bar engaged in several activities that promoted particular political, social views- some not related to law. argue. being force to subsidize beliefs that the bar supported, which he did not. COURT: A member can be compelled to subsidize activities or speech that are GERMANE TO PURPOSE!!

ii.

Govt Speech Johans MUST BE GOVT SPEECH

1.

Govt uses tax money to promote consumption of beef. P did not want money to be associated promo. Held: citizens

Con. Law II Outline -

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compelled to fund govt speech.

iii.

Student Activity Fees: MUST BE VIEWPOINT NEUTRAL

1.

Board of Regents: mandatory student fees are allowable to fund student speech at a state

b. SERIOUS/SUBSTANTIAL BURDEN [BOYSCOUTS/ROBERTS] i. A substantial burden is when the burden is so SERIOUS [Roberts] OR
SIGNFICIANT [Boy scouts-lower standard] THAT IT WOULD IMPEDE the ASSOCIATIONS ABILITY TO FREELY ASSOCIATE. ii. CANNOT BE A TRIVIAL BURDEN TO ASSOCIATION
1. SERIOUS

a.

Roberts: held: NOT have a SERIOUS BURDEN of assc. (1) past have allowed women to come to events (2) have associate positions (3) just no right to vote or be member. NAACP: serious burden Court-ordered disclosure of member/affiliation lists where the revelation would chill membership)--no one would join if names were given.

b.

2.

SIGNIFICANT

a.

Boy Scouts: having gay leader was seen as a significant burden bc went against morally straight purpose of org.

b. ARGUE BOY SCOUT STANDARD BASED ON: -diff. sex. v. gender,


secular commercial org. v. elements or religion intimacy org, old v. new case,

3.

STEP 3: WHETHER THERE WAS STATE ACTION BURDENS ASSOCIATION

STEP TWO: WHETHER THE STATE JUSTIFIED IN BURDENING THE ASSOCIATIONS FREEDOM?

1. A State is justified in burdening the association of activities if it PASSESS (1)


STRICT SCRUTINY UNLESS (1) SPECIAL SPEAKERS OR (2) SPECIAL REGULATIONS. Once the Association has established that the state has substantially burdened their Right to Associate, the burden of proof shift to the state to show a justification

a. STRICT SCURITNY RULE: i. Rule: A state action is justified if it is (1) NARROWLY DRAWN (2) TO
Con. Law II Outline -

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SERVE A COMPELLING STATE INTEREST ii. STRICT SCURTINY TEST 1. COMPELLING STATE INTEREST

(Roberts and NAACP)

a. There must be a justifiable state interest [anti-discrimination-Roberts,


EC]

b. Motive is not relevantHill


2. NARROWLY DRAWN a. UNRELATED TO SUPRESSION OF IDEAS

i. Suppression of ideas is not an interest to justify


burdening associative interests

ii.

NAACP: disclosure creates chilling effect to pursue collective goals

b. LEAST BURDENSOME TO ASSOCAITION OF RIGHTS


b. SPECIAL SPEAKERS

i. GOVT EMPLOYEES AFFILIATION Rutan 1. Govt employees assco. may be terminated, not promoted, or
not rehired based on

2. Their assoc. w/ or failure to assoc. w/ a particular political party


IF

3. IN A POLICY MAKING POSITION 4.


POLICY MAKING ANALYSIS: a. Does the employee supervise a lot of people? b. Is the employees view likely to be attributed to the government? ii. UNLAWFUL ACTIVITY AFFILIATION 1. The state may punish an individual for membership in an org. engaged in unlawful activity if the individual was: a. Active member

i.

Paying dues and joining is not sufficient

b. Who had specific knowledge of the unlawful goals of the


organization and

Con. Law II Outline -

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i. Must have specific knowledge of the associations illegal purpose c. Specific Intent for goals to be achieved. i. Must have the specific intent that the particular illegal purpose be achieved

c. 3 SPECIAL REGULATIONS [SUBSIDIZING SPEECH] i. ORG. PAYMENTS -----GERMAN TO ITS PURPOSE 1. State may compel payment to an org if: a. MEMBERSHIP IS REQUIRED [donahue] AND b. Payments are GERMANE TO THE ORGS. PURPOSE (Keller).
2. Analytical framework a. Is it government speech? i. If Yes then valid.

1. Johan: Government saying beef is for dinner 2. Keller: private individual Lawyers b. IF NO, is subsidy RELATED TO ASSO. GERMANE PURPOSE
i iADVERTSING CAMPAIGNS

1. State may compel payment fee to support govt ad campaign


that is govt speech. ii VIEW POINT NEUTRAL

1. STUDENT FEES i. ii.


Mandatory student fees are allowable to fund student speech at a state uni if Allocation of the fund is VIEWPOINT NEUTRAL

1.

Regents: money given to all activities. Not particular activity.

2. LIMITED PUBLIC FORUM [Christian Legal society] i.


Access restriction on limited public forum that burdens freedom of expressive association valid IF:

1. VIEWPOINT NEUTRAL and


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2.

REASONABLE IN LIGHT OF PURPOSE OF FORUM.

STEP 3: WAS THE REGULATION IN IMPROPER FORM?

1. STEP 1: REGULATIONS IMPROPER IN FORM a. (1) VAGUENESS (2) OVERBREADTH (3) PRIOR RESTRAINT
b. See in freedom of speech section on improper form

ESTABLISHMENT CLAUSE [NEUTRAL LAWS OF RELIGION]


PREFERENTIALIST

[STRICT

INTERPRETATIONIST

[CHURCH V.ST] V.

NON-

[PRO.

DIVERSITY]

Congress shall make no law with respect to establishment of religion or prohibiting exercise. 1. The EC requires that the state be NEUTRAL WITH RESPECT TO RELIGION.

2. Neutrality is: (Everson): (a) NO AID TO RELIGIONS i.


Can provide religions receive same general benefits as other private entities

ii. Aid v. General Benefits 1. Aid: Additional benefits 2. General Benefits: provided for all public (b) NO COERCION

i. The state cannot force you to practice a certain religion (c) NO HOSTILITY
3. Discrimination based on Religion a. When a state law prefers one religion over the other, the discrimination based on religion is void, UNLESS IT PASSES STRICT SCRUTINY.
. Scalia dissent: can favor religion over non-religion but not b/w different religions.

4. 3 different tests used to determine whether state action violates the Establishment Clause: (1) Lemon Test, (2) Endorsement Test (3) Coercion Test

Con. Law II Outline -

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Note: Any three tests can be applied to any set of facts

(1) LEMON TEST: i.


Rule: State action does not violate the EC if all three of the following requirements are met: I. STATE ACTION HAS A SECULAR PURPOSE

1. State action that has a secular purpose may nevertheless be


held to violate the clause IF the SECULAR PURPOSE APPEARS TO BE:

a. SHAM OR i.
Edwards v. Aguillard legislation was struck down that where teachers were to teach evolution, they must also teach creation science. State giving preference to one type of interpretation of creation. Held: No secular purpose. Reason was to discredit evolution and promote particular theory of creation. McCreary: religious quote inside courthouse wall. sham bc real purpose was religious bc initially started w/it.

ii. b.

PREDOMINANT PURPOSE IS RELIGIOUS.

i.

McCreary huge display of 10 commandments w/smaller nonreligious quotes. Held: secular purpose not sufficient if predominate religious purpose. Not sufficient to have A secular purpose. Dissent argue can favor religion v. non-religion Wallace: The Court examined the purpose behind moment of silence laws.-it was to create a setting for kids to pray and were encouraged to pray=religious purpose.

ii.

c. The court can inquire into the HISTORY OF THE STATE


ACTION to determine whether its PURPOSE WAS SECULAR OR RELIGIOUS.

i.

McCrearyHistory of multiple changes of display where 10 comdmnts. bigger then rest- real purpose is religious-. Held. Religion purpose dressed w/ /non secular

ii.

Van Orden v. Perry: Govt Park accepted several monuments including 10 comdmts. accepted by civil private group. Purpose of display was to commemorate a secular purpose; 40yrs civic group fight child delinquency. Held: simply having religious content does not violate EC. Would be hostile otherwise. being our law and history of country was based on religion. Was put here on civic religious group. Zelman: state gave parents voucher to promote edu children=sec purp.

iii.

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ii. ITS PRIMARY EFFECT is neither to ADVANCE (AID) NOR TO INHIBIT


(HINDER) RELIGION; AND 1. GENERAL BENEFITS

a. The state does not aid religion when it provides religious


institutions with GENERAL BENEFITS, SUCH AS POLICE AND FIRE PROTECTION

i.
org.]

Everson: gave all benefits to public and religious org.

2. Benefits to INDIVIDUAL and NOT Organization [$ to individual not a. The state may provide BENEFITS TO THE INDIVIDUAL, as
opposed to the organization itself as part of a generally applicable program.

i. ii. iii.

Everson: (1) Bus transportation for children at religious schools (2) School books provided to children at religious schools Zobrest: An interpreter to aid a hearing impaired child at a religious school .ok. CONTRAST EDWARDS: primary effect of the law was to advance the viewpoint that a "supernatural being created humankindthis shows adv. religious org.

3. Financial Assistance when Individual CHOOSES Religion [giving


$ third party]:

a. The state may provide financial assistance to an institution


that has a religious character if the funds are channeled to the institution as the result of individual choice, as in the case of tuition vouchers.

b.

Zelman v.: parents are given a voucher from the state, they are then the decision maker as to how they want to spend this private or public education. Because the parents decide they break the link between the state and religion. KEY: PASSES THROUGH PARENTS!!!Dissent: effect of money goes to religion therefore supporting it

4. Financial Assistance Used for Secular Purposes to Religious


Org [$ rel. org]:

a. The state may provide financial assistance to an institution


that has a RELIGIOUS CHARACTER, provided that the institution is no pervasively sectarian and the assistance is used only for the NONSECTARIAN PURPOSES.

i.

Tilton v. Richardson: the court upheld money given to private, religious universities to be used to build nonreligious (secular) buildings i.e. science lab

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ii.

Mitchell v. Helms: the state provided AV (audio equipment) to both religious and public schools court found this to be more like a general benefit and neutral.

iii. IT DOES NOT FOSTER EXCESSIVE ENTANGLEMENT of the STATE WITH


RELIGION.

1.

Look for State Policing- Fund all schools (religious and non) sponsor science. When having to have a supervisor to make sure not having religious perspective of what is being done is excessive entanglement. Zelman: NOT ALWAYS APPLIED Lemon v. Kurtzman: reinforced the notion that the state will not pay for religious instruction. If teachers are on the schools payroll, and they are just being reimbursed by the State, the state doesnt have a clear picture of where the funds are going. There is excessive entanglement.

2. 3.

(2) COERCION TEST [school cases] i.


State action that COERCES INDIVIDUALS TO ENGAGE IN RELIGIOUS CONDUCT [ie prayer] violates EC.

ii. Coercion may be the result of all the circumstances, including social or peer
pressure.

i. ii. iii.

Engle teachers requiring starting class with prayer. Coercive: Kind req. to be at school, Children are impressionable. Lee prayer at req. graduation violates the clause it coerces people to lead or take part in prayer Wallace Requirement of Moment of silence-teach said can pray or mediate or whatever. Held; moment of silence was attempt to bring prayer back in w/o expressing prayer. True purpose of silence was religious not secular.. Santa Fe the high school students voted prayer and it was their choice to attend the games. Held: social coercion, there is peer pressure to go to the football games, so they are being socially coerced to take part in prayer. Having a non-denominated prayer also seen as created greater suppression of minorities bc less pp. Policy not to force religion on minorities. CONTRAST: GOODNEWS:,parents who decided whether or not to send their children to their club meetings-- there are no impressionability concerns; the parents are not coerced to send their children, they want their children to be there. The state is not coercing anyone; attendance was up to the parents, and the club met after school hours. Not letting ppl come looks hostile, not neutral.

iv.

v.

(3) ENDORSEMENT TEST [display in forum cases] i.


R: State action that a REASONABLE, INFORMED OBSERVER would INTERPRET AS AN ENDORSEMENT of RELIGION violates the EC.

ii. Def: Reasonable informed observer: someone that is aware of the context.
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i.

Capitol Square [trad. public]: State made park available for everyone. the KKK wanted to place a cross on public property which was open to others holiday display. Here the court holds the display as okay because it was brought by a private individual. Rat. Views of individuals not govt. Lynch v. Donnolly: A nativity display was surrounded by reindeer. Because the religious symbol was surrounded by other secular ones, the display was not seen as an endorsement of religion. Alleghen [designated] (a) nativity scene all by itself in one display INSIDE court promoted Christianity-violated EC - no secular purpose by itself (b) a menorah that is surrounded by other non-Judaism symbols [x-mas tree] OUTSIDE courthouse --found not violation because it was surrounded by others Santa Fe [limt. Des] school allowed --elected student officer to offer prayer before football games endorses religion GOODNEWS [limit dis]: the club meets in a closed room, after school hours, there is no risk of the students confusing the school as endorsing religion. In fact, if the Good News club were kicked off, the children may confused the state as being HOSTILE toward religion. Zelman: reasonable informed observer see parent paying for it not state. Von Ordan Argument: simply having religious content or promoting a message does not go against EC

ii.

iii.

iv. v.

vi. vii.

EXCEPTION Marsh v. Chambers. The court in this case upheld prayer at the beginning of a legislative session conducted by a state funded chaplain base on the LONG HISTORY OF THIS PRACTICE DATING BACK TO THE FIRST CONGRESS.

Exam tip: Govt may arg. E.C violation if support. P will arg- FEC and FS. Also vice versa

(4) FREE EXERCISE CLAUSE [RELIGION.


R: RELIGIOUS BELIEF IS ABSOLUTELY PROTECTED. THE STATE MAY NOT COMPEL OR PUNISH RELIGIOUS BELIEF.

i. Laws that TARGET religion or religious conduct must pass STRICT SCRUTINY 1. RELIGION: SINCERITY HELD BELIEFS ARE TREATED AS RELIGIOUS.
a. Court reluctant to define what is religion for constitution.

b. LOOK AT SINCERITY OF INDIVIDUALS BELIEF i. ii.


Hellen: Religion church allowed women to gave sex to congregation in return for donation. Seen more as prostitute then religious. Kuch: church religious belief smoking weed. Church had leader, symbol, core

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beliefs-victory over horseshit.

2. RELIGIOUS QUESTIONS: A court can decline to decide a despite if to do so would


require it to decide matters of religious doctrine. i.e. whats a good priest

ii. State may regulate CONDUCT MOTIVATED BY RELIGIOUS BELIEF THROUGH


NEUTRAL LAWS OF GENERAL APPLICABILITY
SMITH: drugs

1.
b.

Policy: if individuals could escape prosecution or liability simply by asserting their conduct was religiously motivated.

ANALYTICAL FRAMWORK:

i.

STEP 1: DETERMINE WHETHER LAW TARGETS RELIGION OR IS NEUTRAL LAWS OF GEN. APPLC.

1. LAW IS NEUTRAL AND GENERAL WHEN DOES NOT TARGET


RELIGIOUS BELIEF BUT BURDENS CONDUCT [Smith]

a. Targeting: LEGISLATIVE AND ADMINISTRATIVE HISTORY, and


exemptions for non-religious activity.

i.

Hialeah: law prohibited religion from sacrificing animals passed in reaction of church coming to city law enacted in reaction to church opening. Included no ceremonial killings Held: DIRECTED AT CHURCH. IT WAS TARGETED!

b. If the law was enacted to target religion STRICT SCRUTINY


APPLIED.

3. STEP 2: IF LAW AIMED AT RELIGIOUS CONDUCT = STRICT SCRUTINY i i Rule 1st Amend=Fed
14thAmend=State

i Laws that BURDEN RELIGIOUSLY MOTIVATED CONDUCT i i Must be JUSTIFIED by a COMPELLING STATE INTEREST i i That CANNOT BE SERVED IN A LESS BURDENSOME WAY i iii APPLIES IN TWO SITUATIONS: ii
and The law is NOT A NEUTRAL LAW OF GENERAL APPLICABILITY

1.

Hialeah Law cannot sacrifice animals for religious rituals. Ct found. When applied, law targeted only particular religionlaw targeted religious behavior-Under inclusive. Ct. looked at motive of enactment. Sherbert: Sabbath observer was solely denied rights to collect unemployment because practice of religionputs burden to forgo right to practice religion to get paid

2.

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ii

HYBRID CASES [Free exercise + F.Speech or F.Assc.]:

1. Cases in which the law is challenged under the free exercise


clause, in conjunction with another clause of the Constitution

2. YODER: Amish family argued forcing kids go to school pass 16 violation of


their FE.+

III. STRICT SCRUTINY TEST: i. COMPELLING INTEREST

ii. NARROWLY DRAWN [over-under-least burdensome alt.]

5. FREEDOM OF THE PRESS

4. R: GOVT MAY NOT ABRIDGE FREEDOM OF PRESS (a) Freedom of press not yielded a single doctrinal framework (b) Courts have been reluctant to definenot entitled to special protection. (c) The press is subject to (1) GENERAL LAWS (2) it may not be subject to
SPECIAL BURDENS and (3) it is not subject to GENERAL PRIVILEGES. 5. ANALYTICAL FRAMWORK:

i. The press is subject to GENERAL LAWS. Cohen


1. Laws that apply to ordinary individuals applys to press.

ii. It may not subject to SPECIAL BURDENS Minneapolis Star AND 1. Interference with EDITORIAL JUDGMENT (Miami Herald) a. Laws that compel press to print certain material violate FOP.
b. Policy: Chills free speech

c. Note: This is analogous to the compelled speech doctrine.


2. Truthful Publications

a. State may not punish publications of lawfully obtained truthful info


that is a public concern

b. UNLESS punishment is narrowly tailored to serve a state interest of


the highest order.

3. Prior Restraints on Trail (Nebraska Press):


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1. Court may not ban reporting of events happening in OPEN COURT. 2. Prior restraints on the press bear a heavy presumption against their
validity.

i.

3 Factors Test:

a. NATURE AND EXTENT OF THE PRETRIAL news coverage b. Effectiveness of OTHER MEASURES in protecting the fairness of
trial c. Effectiveness of the restraining order ii. Equal Access to Criminal Trails

i. ii.

The press has same rights as the general public to equal access of criminal trials Denials of the right of access are VOID unless they pass STRICT SCRUTINY

iii. Not subject to GENERAL PRIVILEGES. Branzburg 1. Government Access to Press sources Branzburg 2. EXCEPTION: a. State legislatures have passed shield laws, protecting reporters from
testifying about confidential sources (Branzburg); have placed limits on search warrants of press buildings (Zurcher);

6. SECOND AMENDMENT [RIGHT TO BEAR ARMS]

3. R: INDIVIDUALS have a right to POSSESS for their OWN DEFENSE ARMS (guns), but
only those types of arms in COMMON USE when the Second Amendment was adopted.

a. The courts have been reluctant to interpret and define the scope but they have given
guidelines

4. Presumed Limitations: a. The prohibition of felons and mentally impaired to own guns; b. The prohibition of guns in sensitive places (i.e. schools); and c. The sale of Firearms

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LIMITATIONS APPLICABLE ONLY TO THE FEDERAL GOVERNMENT [if see state action this is not applicable] 10TH AMENDMENT R: Federal govt CANNOT COMMANDEER (FORCE) A STATE by:

i. Compelling a state to ENACT A REGULATORY SCHEME; OR 1.


NY v. United States [force]: Congress could not compel states to take ownership of nuclear waste.

ii. Compelling STATE OFFICIALS TO ENFORCE A FEDERAL STATUTE


1. MUST BE A AFFIRMATIVE ACT

a.

Pritz [force] Held: Federal govt cannot force state officials to conduct background checks on people wanted to purchase guns for federal law. Too much burden.=commandeering.

2. PROHIBITON IS NOT AN AFFIMRATIVE ACT

a.

CONTRA: Reno v. Condon [prohibit] Crazy guy got address of women from DMV and killed her. Fed. prohibiting state [DMV] releasing personal info.. The court found that legislation was not requiring them to do something, but prohibiting the state from certain conduct. Commandeering=affirmative action Prohibition=NOT do something.

iii. Exam Tip: phrasing is key: You may NOT give gun=Prohibiting where You
may give UNTIL=commandeer 1. Phrasing from negative to positive.

d. EXCEPTION:
i. Supremacy Clause:

1. Federal govt may regulate and preempt state law under


supremacy clause

ii. Spending Power: 1. Congress may offer money to the states with condition the state
taking the money on the grounds that the state enact the federal law iii. State Judges

1. Congress has the power to compel state judges to enforce federal


law under the Supremacy Clause
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STEP 3: WHETHER THE FEDERAL COURTS CAN HEAR THE CONSTITUTIONAL ISSUE?

1. R: Federal Courts are courts of limited jurisdiction, they are limited in hearing
cases under:

a. Article III [process of brining claim]


b. Eleventh Amendment

ARTICLE III - THE PROCESS OF RAISING A CONSTITUTIONAL ISSUE IN FEDERAL COURT [note: can still bring it in state ct.]

1. Federal court has jurisdiction over cases or controversy


1. No advisory opinion-must have an actual issue in court.

2. 4 ELEMENTS TO DETERMINE CASE OR CONTROVERSY 1. The plaintiff MUST HAVE STANDING 2. The claim CANNOT BE MOOT 3. The claim MUST BE RIPE OR 4. The claim is asking the court to resolve a POLITICAL QUESTION
STEP 1: WAS THERE STANDING? 3 STANDING REQUIRMENTS 1. THE PLAINTIFF MUST HAVE SUFFERED AN INJURY [credential rule for policy] A. INJURY REQUIREMENT: (4 requirements)

i. P must have SUFFERED A CONCRETE INJURY 1. Harmed: Economic loss; physical injury; or even aesthetic harms (view
from home is lost)

a. If the plaintiff has not been harmed in some way, they do not
have standing.

ii. The injury cannot be a GENERALIZED GRIEVANCE


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1. The plaintiff must have suffered an injury that is different from the
general public (was not suffered by all members of the public)

iii. Exception - A taxpayer may challenge government expenditures that


violate the EC 2. THAT RESULTS FROM A VIOLATION OF HIS RIGHTS [Causation] and

1. JUS TERTII DOCTRINE [credential rule for policy] a. P INJURY MUST RESULT FROM THE P RIGHTS BEING VIOLATED b.
2. There is NO STANDING to assert the RIGHTS OF THIRD PARTIES

4 EXCEPTION TO JUS TERTII:

ii OVERBREADTH DOCTRINE 1. Where a law is overbroad, any person injured by the law
may challenge it, even if the law does not violate his rights, in that the challenger was engaged in unprotected speech (obscenity).

2.

Brockett: pornographer selling unprotected obscene material may challenged

ii. CLOSE RELATIONSHIPS

i. ii.

Where the person asserting the rights in a close relationship with the person whose right is being asserted.
Craig] vender was permitted to asset right of his customers

iii. ASSOCIATION STANDING Association may assert the rights of their members if: 1. Members have standing

2. INTEREST IS GERMANE to ASSOCIATIONS PURPOSE and 3. Neither the claim or relief requires participation of
individual members. iv. THIRD PARTIES
Shelly:

1. Where the third party whose right is violated is unlikely


to be able to he assert his right. 3. THAT IS LIKELY TO BE REDRESSED BY A JUDICIAL DECISION. 1. ABILITY TO REDRESS:
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1. The injury must be able to be remedied by a judicial decision.

STEP 2: WAS THERE RIPENESS? [SAME AS ELEMENT 2 OF STANDING]

1. P CANNOT BRING A CLAIM UNLESS HE HAS SUFFERED AN ACTUAL INJURY OR


a. Hypothetical injuries are not sufficient.

2. Is SUFFERING A REAL AND IMMEDIATE THREAT a.


(Lyons) not sufficient that could happen in future must prove that it is real and

imminent.

STEP 3: WAS THERE MOOTNESS? [SAME AS ELEMENT 3 OF STANDING] Craig v. Boren

1. R: A case is moot if a DECISION would NOT AFFECT the RIGHTS OF THE PARTIES a. moot at the inception or that becomes moot during = dismissed.
2. Exception:

a. IF situation is CAPABLE OF REPETITION, YET, EVADES REVIEW

STEP 3: WAS THERE A POLITICAL QUESTION? 1.R: A court will not decide a case that turns on a POLITICAL QUESTION a. The court has not announced a test that applies to Political Question but instead finds that certain characteristics which make political questions not a case 2. 6 POLITICAL QUESTION: 1. Textually demonstratable commitment to another branch

i.

Ex: the question whether the President should be impeached has been committed by the Constitution to the House of Representatives.

2. Lack of judicially manageable or discoverable standards


i. No legal test or law that applies

3. Cannot be decided w/o making a policy determination that is inappropriate for a court
i. The issue is a policy dispute and not a legal dispute

4. There is an unusual need for unquestioning adherence to a decision


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already made.
i. If the court hears the issue, they would be showing a lack of respect to another branch.

5. Resolution of the question would show a lack of respect for a


coordinate branch of the government.
i. No embarrassment, confrontation b/w branches. Clinton Cases, the court refused to wait until President Clintons presidency was complete before they started trial on the issue of perjury.

ii.

6. Potential for embarrassment of the government from multiple pronouncements from different branches.
i. This is primarily seen in foreign relations as it is important that our country speak with one voice. Thus, when the president makes a decision in regards to foreign relationships (treaties) he needs to be upheld.

11TH AMENDMENT [applies only to suits in fed. Court]

A private citizen may not sue a state in federal court w/o consent of the state

A. Applies to their state or a another state Pennhurst B. The rules does NOT APPLY to: i i i i
i i Suits against states by other states or Suits against states by the federal govt Suits where D is the state Suits against counties and municipalities unless relief in effect would be against the state

i i

C. EXCEPTION: State Immunity Waiver: the state may waive their 11th
Amendment right

2. 2 EXCEPTIONS: a. You may sue a state office in federal court for: Ex Parte Young: i. Unconstitutional action where remedy is injunctive relief OR
1. Cant sue for past damages

ii. Monetary damages come from the officials personal funds.


1. 2. Cannot get money for state. Rational: out of scope of government. Govt not responsible.

b. Congress may take away the immunity given by the 11th Amendment if:
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i. Congress intent must be UNEQUIVOCALLY EXPRESSED


1. No question that this is what congress was intending to do

ii. Violation must be w/in scope of ENABLING CLAUSE. iii. Remedy is CONGRUENT and PROPORTIONAL to wrong Garrett
1. We must look at the problem Congress is trying to fix, an ask: Is remedy proportional, or too severe

EXAM TIPS: KEY IS TO BE SYSTEMATIC. IF SOMETHING IS OBVIOUS BE VERY SHORT! FOCUS ON THE GRAY!

i.

Step 1: Look for state action: USE HEADINGS AND PARAGRAPHS

3.

If you see reference to enactment of (1) legislation or (2) action by govt official = con question B. Then ask which government acted, federal or state? ii. Step 2: Run through the list of clauses applicable to each. --Focus on the factual situations iii. Step 3: Consider whether the procedural hurdles to a Constitutional challenge. FACT PATTERN ISSUE ATTACK

A.

a.

IF INDIVIDUAL ENGAGED IN ANY CONDUCT THAT COULD COMMUNICATE A MESSAGE APPLY:

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FREE SPEECH i. Burden Speech: free speech need not communicate an idea. It could communicate a emotion Compelled Speech: Consider where P is being required to communicate message not merely those that where communicates is being restrictive iii. Tip: FS arise arose on a wide variety of contexts---think carefully before you discard it IF RELIGION MENTIONED IN ANY WAY APPLY: i. Establishment Clause when: 1. Govt is aiding an organization w/ religious character

ii.

B.

c.

D.

2. Govt has permitted religious activity in public sphere Free Exercise Clause when: 1. Person being burdened or penalized for the conduct motivated by religion or religious belief 2. HYBRID: If religious speech is suppressed, consider free speech clause too iii. If Religious Association burdened: 1. Hybrid issue [FA+FEC]: apply Free Exercise Clause to you apply Strict Scrutiny. 2. Consider Freedom of association IF ANY REFERENCE TO MEMBERSHIP IN A GROUP OR CONDUCT OF ANY KIND BY PPL IN GROUP SETTING: FREE ASSOCIATION i. Remember: Violated when someone is prevented from association and when someone is forced to associate IF NEWS MEDIA MENTIONED IN ANY WAY: FREEDOM OF PRESS i. Look for burden. If notprobably not an issue.
ii.

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