Con Law II Mentor Outline

 
Disclaimer: This outline does not contain every issue in the class. The rules and application are from my
understanding. If the rules or the application is inconsistent with your professor or your notes, go with the
professor’s application of the law. Good luck.

11th Amendment
The 11th Amendment bars suits by private citizens against the state in federal court. The 11th Amendment not
apply to suits against local government (i.e. cities, counties, local school boards). It does not bar one state from
suing another state, or federal government suing state, or bankruptcy proceedings. A state may waive its
sovereign immunity (express not implied).

There are two main exceptions when a private citizen may sue state in federal court:

1. An action against a state officer may be brought in federal court despite the 11th Amendment for
injunctive relief to enjoin an officer from future conduct that violates Constitution or federal law (even if
it will require prospective payment from state) and action for damages against officer that he must
pay out of his pocket. (Ex Parte Young)

2. Congress can remove 11th Amendment immunity to prevent discrimination under the 14th
Amendment, but it must be unmistakably clear that Congress intended to remove immunity.

Note – the call of the question might say that P is suing the state and the state attorney general but both the
state and the attorney general filed a motion to dismiss claiming the 11th Amendment protection. Simply
discuss the state (11th protection applies) and the attorney general (11th won’t apply) separately.

State Action
Because the Constitution generally only applies to governmental action, to show a constitutional violation,
“state action” must be involved. State action involves actions by government and government officers at all
levels. The 14th amendment does not apply to purely private conduct, however, State action can also be found
in actions of seemingly private individuals who: (i) perform exclusively public functions, or (ii) have significant
state involvement.

1. Public Function Exception

If a private entity is performing a task traditionally and exclusively done by the government, then this
can constitute state action - i.e. private prisons, elections.

2. Significant State Involvement (Entanglement Exception)

If government affirmatively authorizes, encourages, or facilitates unconstitutional activity, then this can
constitute state action (i.e. government lease premises to racially discriminating restaurant, providing
books to schools that racially discriminate)
Note – state action does not need to be discussed where it is obvious it is a government acting. On final
exams, it is not really an issue. This is more for a bar exam or MBE question.
Fundamental Rights
Certain fundamental rights are protected under the Constitution. If they are denied to everyone, it is a
substantive due process problem. If they are denied to some but not others, then it is an equal protection
problem. In either case, the applicable standard is strict scrutiny: (1) compelling government purpose; (2)
narrowly tailored to compelling purpose; and (3) no less restrictive means to accomplish that purpose.

1. Right to Travel
An individual has fundamental right to migrate from state to state and be treated equally after moving into
a new state.

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 Normally, the problem arises when a state imposes a minimum durational residency requirement (a
waiting period) for receiving its benefits (i.e. welfare) – strict scrutiny applies. Note – Government’s
argument is usually to prevent fraud.

Durational Residency Requirements

o 1 year residency to receive full welfare: invalid
o 1 year residency to receive state-subsidized medical care: invalid
o 1 year residency to vote in state: invalid
o 30 day residency to vote in state: valid
o 1 year residency to get divorced: valid
 
2. Right to Bear Arms
The right to bear arm is set forth in the 2nd Amendment, which provides in part: A well-regulated militia,
being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not
be infringed.
 
3. Right to Vote
The right to vote is a fundamental right. Restrictions, other than the basis of residence, age, and
citizenship, are invalid unless they pass strict scrutiny (government’s argument will always be to ensure
voting conditions are fair, honest, and orderly).

o Residential requirements – that are reasonable (i.e. 30 days) are valid.

o Poll taxes – invalid
o Primary elections – states may requires early registration to vote in primaries. However, states
cannot prohibit political parties from opening their primary elections to anyone, whether or not
registered with the party.
o Gerrymandering – race (and other suspect classification) cannot be the predominate factor in
drawing the boundaries of voting district unless the district can pass strict scrutiny.

4. Right to Court Access

The right to be heard in court is a fundamental right, and an essential aspect of due process.
Discrimination among people is generally subject to strict scrutiny.

Freedom of Speech

The government shall make no law abridging the freedom of speech. The right to speech is guaranteed, but
not absolute and not all speech is protected. The government may constitutionally prohibit speech where the
government meets the required level of scrutiny.
Speech – identify the speech being regulated
Speech is generally the communication of a thought, idea, message, or viewpoint. It is the subjective
intent to communicate a message and reasonably likely to be understood as communicating a message
(Spence test).
 
Content Based v. Content Neutral Regulations
 
Content-Based
Laws that attempt to regulate speech based on their subject matter or particular view point. Strict
scrutiny applies where the content of speech is regulated and the government has the burden of
showing the regulation is (1) necessary to achieve a compelling government interest, (2) narrowly
tailored to achieving that purpose, and (3) using least restrictive means possible.

Secondary Effect

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 A content-based regulation will be deemed content-neutral if the regulation is motivated by its
secondary effects. (This is the argument the government will make to lower the level of scrutiny
from strict to intermediate)
 
Example: Regulation that adult theatres cannot be within 100 feet of schools. The regulation is
content based (porn) and thus strict scrutiny applies. However government will argue the
"secondary effects" of these types of theatres - crime, noise, loitering- so intermediate scrutiny
applies.
 
Content-Neutral
Regulations that is not based on subject matter or particular view point and targets something other
than the speech, incidentally impedes the message. Intermediate scrutiny applies, and the government
has the burden of showing the regulation is (1) necessary to achieve an important government interest,
(2) narrowly tailored to achieving that purpose, and (3) leaves alternate channels of communication
open.

Prior Restraints on Speech

A prior restraint prevents speech before it actually happens. Prior restraints are heavily disfavored by courts
and very difficult in challenging because of the collateral bar rule which generally prevents a person from
challenging the prior restraint until they adhere to the regulation.
 
1. Court and other Administrative Orders (e.g. gag orders, cease and desist orders)
Prior restraint in the form of court orders that suppress speech before it happens will apply strict scrutiny.
In determining the compelling purpose - considering "the gravity of the harm and likelihood of
occurrence" in evaluating compelling justifications.
  
Example: Government trying to stop press from releasing information and asking court to order
them not to.
 
2. License and permits
Prior restraint in the form of a permit / license requires intermediate level of scrutiny and must meet the
following standards to be constitutional: (1) have an important purpose for the requirement, (2) clear
standards leaving no unfettered discretion to government, (3) procedural standards and (4) quick
approval or denial for the circumstances.
 
Note - license / permits may trigger a time, place, and manner discussion
 
Collateral Bar Rule
The Collateral Bar Rule prevents an individual from challenging a court order or permit if they disobey the order
before appealing the order through appropriate proceedings. However, the CBR does not apply where the law
is unconstitutional on its face.
 
Simply stated: If you violate the court order, or you don’t apply for a permit (i.e. to play music in a park)
and you just play music, you cannot claim the court order or the permit was unconstitutional (by prior
restraint) after being arrested. You have to apply, get denied and then actually fight the prior restraint
properly.

Forums
  
Public Forms
Property that is traditionally available for speech.

Examples: internet, US mail system, streets, parks where speech not incompatible with operation of
property)

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 Exam - When you discuss public forum (and limited public forums), determine whether it is content
based or content neutral:
 
Content Based
If the speech is content based (based on view points or subject matter) then strict scrutiny applies.

Secondary Effects
Although a regulation is content based, if the statute seeks to regulate the secondary effect of
the expression, then the Secondary Effect Doctrine will turn a content based into a content
neutral – thus use an intermediate scrutiny applies. (This is the government’s argument)
 
Content Neutral
If the speech is content neutral (not regulating based on view point or subject matter) then intermediate
scrutiny applies. The government can enact time, place and manner restrictions on public forums
where content neutral and meets intermediate scrutiny.
 
Time, Place and Manner
The government may restrict speech-related conduct by the time, place and manner regulations. To
be a valid TPM the regulation must be (1) content neutral, (2) important purpose, (3) narrowly
tailored, and (4) leave amble alternatives for speech.
 
Example: Buffer zone restriction of hospitals (abortion clinics) - court found a regulation in how far
protesters must be from hospital was narrowly tailored (8 feet) for government's interest of
protecting people from unwanted encounters and confrontation. The TPM restriction was allowed
because it was content neutral (applied to all protesters).
 
Limited Public Forums
A limited public forum is public property that is not historically open for speech however the government has
opened up to property for speech that is compatible with basic purpose of the forum.

Example: using public school gym for debate on weekends

 
Apply the same analysis as public forum - determine whether content based or content neutral (keep in
mind secondary affect argument and time place manner augment when applicable)
 
The government will argue that the speech is not compatible with the forum's interest.
 
Example: Schools renting out their auditorium for churches on the weekends (meaning government
opens to speech) but then tells a Satan group they cannot rent it. You can argue one is compatible with
pedagogical interest of the school.
 
Nonpublic Forums
A nonpublic forum is all public property that is not traditionally or designated public forum. The government
may regulate speech activities in nonpublic forums so long as the regulation is view point neutral and
rationally related to a legitimate government interest.
 
Example: transit port, airports, hospital, outside of a prison, advertisement on public buses, sidewalks
of post office

Airports – government may prohibit solicitation of money but not prohibit distribution of literature
 
Authoritarian forum - special forum (i.e. prison, military, schools):
1. Military bases - regulation needs to be related to a legitimate military interest (reasonable) – even
public areas such as sidewalks are non-public

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 2. Schools - regulation needs to be reasonable related to pedagogical interest

Example: mail coming into the school may be regulated (reasonable regulation) but regulating
outgoing may not be regulated under the same analysis since it is being sent to another
"forum.”

3. Public Employees - If the government employee is speaking as part of his duties then no 1st
Amendment rights unless it is a matter of public concern. However, even then he can be disciplined
or fired if government can show efficiency of office justifies the action.

Did the employee speak pursuant to duties?

 If yes, then no 1st Amendment speech protection
 If no, determine if the speech involves public concern - if it is a matter of public concern,
then you must balance the interest of the employee and that of the state. Note: time,
place and manner may be factors
 
Private Forums
Private property that is privately owned has no 1st Amendment protection for speech. Rational basis applies.
(i.e. mall, homes, stores, private hospital)

Fully Protected Speech

Speech that expresses ideas and viewpoints are fully protected. Strict scrutiny applies when fully protected
speech is restricted.
 
Types of Fully Protected Speech
Oral expressions; Gestures; Epithets; Symbols; Silence to make a point; Maintaining anonymity to
prevent chilling effect on speech; Expenditures (or refusal to allow or limit expenditures) of funds on
political or other view point; Expressive Associations; Advertisement; Press; Religious expressions;
Maintaining anonymity of members of expressive association
 
Political
Spending money in connection with campaigns is a form of fully speech.
 
Expenditures: (meaning how you spend your money) is fully protected speech and cannot be
regulated.
 
Contribution: by individuals or groups to individual candidate, or political parties, may be regulated –
the compelling interest is to avoid fraud. Note: It cannot limit the amount contributed to a groups
that lobby for or against matters in legislature since it puts too much restraining on speech and
association.
 
Protected Speech

Expressive Conduct / Symbolic Speech

Anything that communicates an idea to another is speech. Where the conduct is (1) intended to convey
a message and (2) it is reasonably understood to be message by others, it is speech and no less
protected than any other form of speech such as verbal communications. (i.e. burning a draft card, flag
burning)
Government may regulation the expressive conduct if the regulation is: (1) within constitutional power of
government to regulate; (2) unrelated to suppression of free speech; (3) narrowly tailored and
specifically defined to prohibit conduct; and (4) no more extensive than necessary to protect that
interest (O’Brien Test).
Note: cross burning is symbolic speech, thus protected speech - however, it is unprotected with used to
incite violence, or threat – i.e lighting cross on someone’s front yard.
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Commercial Speech
Any speech that is economically motivated or has nothing more than a commercial transaction is
protected. Speech is determined to be commercial speech if (1) it is meant to be an advertisement, (2)
references a particular product, and (3) has economic or profit motivation. Intermediate scrutiny applies.
 
The government may regulate truthful commercial speech by meeting intermediate scrutiny by
showing (1) important interest in the regulation, (2) the regulation directly and materially advances that
substantial interest, and (3) no more extensive than necessary to protect that interest.

Exam note - the government does not have to be the best way, just a "reasonable fit between the
means and the end" - put on exam. 

Unprotected Commercial Speech

Commercial speech that is false, deceptive, or proposes illegal activities are not protected and
government need only to apply a rational basis.
 
Advertising that risks but not facially deceptive:
 
1. Attorneys: Government cannot prohibit attorney from engaging in truthful, non-deceptive
advertising. However, government can prohibit attorney from in-person solicitation of
prospective clients because of inherent risk of deceptions (except pro bono work).
 
2. Accountants: Government cannot prohibit in-person solicitation for profit since
accountants are not considered trained in art of persuasion.

Important Notes:
 Over breath does not apply to commercial speech.

 Indecent speech with sexual overtones - court will usually apply an intermediate level of
scrutiny (treat as content neutral even where an argument could be made that is content
based).

 Commercials that have components of fully protected speech, such as political

overtones, will not give commercial full protection - intermediate scrutiny still applies (i.e.
Clint Eastwood Chrysler ad)
 
Unprotected Speech
Speech has no 1st Amendment protection.
Note – government will want to label speech as unprotected but first start will the highest level of scrutiny that
you can.
 
1. Incitement to Violence/ Illegal Activity (can be criminal acts)
Speech that (1) presents clear and present danger to incite imminent lawless action and (2) a likelihood
that lawless action will occur is not protected.
 
The key is the imminent - look to see if the speech is going to cause an immediate illegal activity. On
exam - balance the gravity of evil with the improbability of it happening when coming to a conclusion.
 
2. Fighting Words
Speech that is (1) narrowly directed at individual, (2) intended to provoke violent response or inflict
emotional harm on listener is not protected. Annoying and offensive words are not fighting words.
Fighting word statues are usually vague or overbroad making them unconstitutional.

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 Example: Burning a cross on someone’s front yard. This is expressive conduct (cross burning) and
normally protected - but once it is on someone’s lawn then it is directed at individual and likely to inflict
harm and no longer protected.
 
3. Hostile Audience
Police or officials may order a speaker to desist or face arrest when the speaker's communication creates
an imminent danger of uncontrolled violence that rises far above public inconveniences, annoyance, or
unrest. Police must attempt to subdue the crowd before ordering the speaker to desist.

4. Obscenity
Speech is obscene if it describes or depicts sexual conduct that, taken as a whole: (1) appeals to the
prurient interest (meaning - morbid or shameful interest in sex) in sex according to community standard,
(2) is patently offensive way according to local standard; and (3) lacks serious value (literary, artistic,
political or scientific) according to the national reasonable person standard.

Zoning Ordinance
Government is permitted to use zoning ordinances to regulate the location of adult business (i.e.
book stores, movie theatres) if regulation is designed to reduce the secondary effect of such
business (i.e. rise in crime rate, drop in property value)

Private Home
Government cannot regulate private possession of obscene material in someone’s home unless
it is child pornography.
 
5. Child Pornography
Material is categorized as child pornography where it (1) depicts actual children engaged in sexual acts
or lewd exhibition of their genital, and (2) specifically defined by law.

Child porn is not protected. Government's compelling purpose is to safeguard minor. Note - must be an
actual child - an actor acting like a child is not sufficient.
 
Vagueness
A law is unconstitutionally vague if a reasonable person cannot tell what speech is permitted or prohibited or
gives too much discretion to government authorities. If found unconstitutionally vague, the regulation is void on
its face.
 
Note - fighting word laws are usually unconstitutionally vague.
 
Overbreadth
Overbreadth laws are facially invalid because they burden a significant amount of protected speech. A law will
be found to be overbroad if there is a realistic danger that it regulates substantially more speech that the 1st
Amendment allows to be regulated or needs to be regulated to accomplish the government’s purpose.
 
Standing exception: A person whom the law is applied may argue that the statute is unconstitutional to
others.

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 Freedom of Association

Freedom of association is fundamental right protected by the First Amendment.

 
Expressive Association
Freedom of expression association is a fundamental right. Infringement of the right of association may be
justified where strict scrutiny is met. Government diminishing a group that intends to foster or amplify a
primary goal / message /collective goal is infringing on the association's speech- “by limiting the number of
voices"
 
Expressive Association Issues Arises when:

1. Government Prohibits or Punishes Membership

Government may not punish or prohibit an association unless there is an unlawful purpose.
Individual membership in an association does not mean that individual endorses illegal activities
unless it is shown that (1) the organization advocates illegal conduct, (2) individual is
affiliated and active in association, and (3) individual knows the illegal purpose and has the
specific intent to further the illegal purpose.

2. Government Requires Disclosure of a Group

If the government is requesting a group to disclose members, then strict scrutiny applies -
because if people know their membership can be easily disclosed then they won't join in the first
place and that limits the associations’ expression or speech.
 
3. Government Forces Association
Strict scrutiny applies - government cannot force an unwanted person by the association (i.e.
making boyscout allow gay scout leader)
 
4. Association Discriminates
Association may discriminate against members joining if that individual would significantly
affect the group's ability to express their belief or collection goal.
 
Freedom of the Press

The government shall make no law abridging the freedom of press. The press is a person or group in the
media that collects/ reports/ publishes and disseminates news to the public.
 
Press is subject to generally applicable economic regulations or taxes (including generally applicable non-
discriminatory tax laws) even if enforcement of the rules has incidental effect on the press ability to gather and
report the news. A tax or regulation impacting on the press cannot be on the content of the publication (i.e. a
tax exemption cannot be given to “medical journals”) absent a compelling justification.
 
The press has no special immunity, absent applicable legislation (shield laws, from application of general laws.
Thus, a reporter can be subpoenaed to disclose source if member of public can be subpoenaed. Press is
entitled to access to places open to the public (i.e. court rooms), but does not give press special access to
information not generally open to the public (i.e. not allowed in court where child is victim of sex offense).
 
Shield laws
Some states make laws protecting the press from disclosing their sources. If the government is trying to have
the press disclose their sources, they will have to meet strict scrutiny.

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Freedom of Religion

The 1st Amendment prohibits the government from interfering with exercise of religion and establishing
religion. It is not required that the religion be recognized or generally accepted. The only requirement is that the
person who practices the religion must have a sincere belief.

Free Exercise or Establishment Clause?

 Does the regulation favor one religion over another? If yes - then it deals with Establishment Clause
 Does the regulation forbid or disfavors a religious conduct? If yes - then it deals with Free Exercise
Clause
 
Free Exercise Clause
Government must permit people to believe and practice their religious beliefs without interference.
 
Exam Approach:

1. Government will argue that the law is (1) neutral and generally applicable to all people
regardless of religion, (2) has incidental effect of burdening a religious practice and (3) the law
advances an important government interest (Smith test)
 
Example: Government making a law saying certain drugs are illegal. Native Americans argue
peyote is part of their religion and the government law is interfering with their religion. However,
government will argue that the law is neutral (i.e. all drugs) and generally applicable to everyone.

Exception: Amish people can wait to send their kids to school at age of 16 and people can still
receive unemployment even if they quit their job because of religious reasons.

2. Challenger will argue that the law substantially burdens a religious practice and the
government must meet strict scrutiny (Sherbert test).

Establishment Clause
Government may not favor any one religion over and above another. Where government favors a religion, strict
scrutiny applies. If the law is non-discriminatory (or doesn’t favor) then courts apply the Lemon test.

Note - Challenger argues for strict scrutiny and the government will argue Lemon test
 
Lemon Test: used when the government contains no religious purpose:
1. Government regulation must have secular purpose (meaning no religious purpose);
2. Its principle or primary effect neither advances no inhibit religion;
3. There is no excessive entanglement with religion.
 
Symbolic Test: used when there is symbolic endorsement of particular religion
o Can a reasonable person perceive that there is a government endorsement of religion from a
private display? If yes, then the state may not allow its property to be used as a form for the
display.
o However, if it is for historical standpoint/effects where it is used to educate how religion
historically affects us then it does not endorse religion (i.e. Christmas tree at City Hall is
historical - not religious).
 
 
 
 
 
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