STATE ACTION

Is there Govt Action? o Federal Govt 5th Amendment (Bolling)

o State & Local Govts Incorporation (Brown) o Private Actors Exception to State Action Doctrine (where private entity MUST comply
w/ Constitution):

(1) Public Function If performing a task that has been traditionally, exclusively done by the govt.

o Marsh, (company owned town) the more an owner, for his own

advantage, opens up his property for use by the public in general, the more his rights become circumscribed by the constitutional & statutory rights of those who use it. public function.

o Evans, when the service rendered is municipal in character, its a o Election Cases, the govt can not avoid the Constitution by
delegating to private entity.

(2) Entanglement

To establish, the govt MUST have authorized, encouraged, or facilitated the unconstitutional conduct. o Judicial entanglement:

Shelly v. Kramer, cts cannot enforce racially restrictive covenants. Batson Challenges can not be discriminatory

o Licensing & regulation: mere fact that biz is subject to state

regs does not by itself convert its actions into State actions, regardless of how extensive & detailed the reg may be.

BUT where govt relationship w/ biz is mutually beneficial, then state action.

o Subsidies: Only state action when govt purpose (subsidy to biz)

is to undermine the protection of constitutional rights. Absent such motivation, no state action. Initiatives: Invalid when they deny equal protection

o Mutual benefit.

EQUAL PROTECTION
The Fourteenth Amendment to the United States Constitution says that no state government can deny any person within its jurisdiction the equal protection of the law. There is no identical provision applicable to the federal government. However, the Fifth Amendment guarantees that the federal government shall not deprive a person of life, liberty, or property without due process of law. Courts have understood the Fifth Amendment to require the federal government to give equal protection. Equal protection, in its simplest definition, means that laws are supposed to protect people equally. For obvious reasons, however, laws cannot always treat people equally. Government programs to benefit the poor, for example, obviously treat the poor differently from the wealthy, just as programs to benefit children treat children differently than adults, or they have no effect. The government often needs to classify people in order for laws to be effective. Is there Govt Action? o First Question is the deprivation caused by the exercise of some right or privilege created by the state? o Second Question is the party charged with deprivation someone who may be fairly considered a state actor? Govt if entity was created by fed statute to serve a national interest. If private, then consider the extent to which the actor relies on govt assistance & benefits (Entanglement)* Exception to State Action Doctrine (where private entity MUST comply w/ Constitution: (1) Public Function (performing a task that has been traditionally, exclusively done by the govt) (2) Entanglement (govt MUST have authorized, encouraged, or facilitated the conduct) What Classification of Law o 2 ways to establish classification: Facially Discriminatory The law on its face is discriminating (draws a distinction) against a group based on a particular characteristic. Automatic Heightened Scrutiny.

o Korematsu provided that classifications based on race were subject to the most rigid scrutiny. o Caroline Products said heightened scrutiny for discrete and insular minorities.

Facially Neutral Demonstrating that a law has a (1) discriminating effect (it is discriminating against group) and (2) discriminatory purpose (law was meant to discriminate) To determine discriminatory purpose, use: Arlington Heights, to find discriminatory purpose look to legislative intent & departure from normal procedure, historical background, sequence of events, patterns. o To determine discriminating impact, ask whether it is actually discriminating against a group. If cant establish purpose AND effect, then Suspect & Semi-Suspect Classes get review lowered to rational basis. o

 What is the appropriate level of Review

o Criteria applied in determining the level of scrutiny used for particular classifications* Immutable characteristics: unfair to penalize a person for their characteristics that the person did not choose and that the individual cant change Political Power: Ability of the group to protect itself through the political process Historical Treatment: The history of discrimination against the group.

o Strict Scrutiny narrowly tailored to a compelling state interest.

Govt has the burden SUSPECT CLASSES: Race, National Origin & Alienage* & Fundamental Rights Strict scrutiny wont apply: o Democratic process exception state can discriminate against a non-citizen if its dealing w/ the position that has something to do w/ the democratic process. o Congressional & Presidential Decisions exception any decision made by either will receive rational basis review. o Undocumented aliens unless denying the kids education. Is the law facially discriminatory or facially neutral? o Facially discriminatory on the face of the law then strict scrutiny. Is there a compelling state interest? Is it narrowly tailored? Neither underincusive/overinclusive Least restrictive means to achieve goal o Facially neutral requires Plaintiff MUST show purpose and effect Use Arlington Heights to show discriminatory purpose: Look to legislative history, departure from normal procedure, historical background, is decision arbitrary, pattern. Does the law have a discriminatory effect? Is it discriminating against a group? If cant show both, then rational basis.

o Intermediate Scrutiny substantially related to an important state interest

Govt has the burden Applies to: Gender & Illegitimacy (IF certain illegitimate, then case by case) Is the law facially discriminatory or facially neutral? o Facially discriminatory on the face of the law then heightened scrutiny. Is there a compelling state interest? Is it narrowly tailored? Neither underincusive/overinclusive Least restrictive means to achieve goal o Facially neutral requires Plaintiff must show purpose and effect Must use Arlington Heights to show discriminatory purpose: Look to legislative history, depart from normal procedure, historical background, is decision arbitrary, pattern.

Does the law have a discriminatory effect? Is it discriminating against a group? If cant show both, then rational basis.

o Rational Basis rationally related to meet a legitimate purpose.

Plaintiff carries the burden Applies to everything not covered under strict & intermediate. If so, dont go to facially discriminatory or facially neutral.

Does the govt action meet the level of scrutiny? o Strict Scrutiny: compelling & necessary tailored to achieve Cant be overinclusive or underinclusive. o Intermediate: important interest & substantially related to an important interest o Rational: rationally related a legitimate state purpose Fritz, Legitimate purpose need not be actual, simply conceivable Romer, Animosity not deemed a legitimate purpose. If law doesnt pass (comply) the test, then ask whether the govt can o Deny if the state can show that the law/action would have been done anyway, then. FN 80, Feeny

FUNDAMENTAL RIGHTS
9th Amendment (residual) FRAMEWORK FOR ANALYZING A FUNDAMENTAL RIGHT: First, Is there a Fundamental Right? o Glucksburg Test: fundamental right if deeply rooted in this nations history & tradition.
Right to marry Loving: marriage FR Zablocki: marriage FR; can still be regulated, but cant infringe direct & substantially. Right to Custody of ones children Stanley: bio parents presumed fit Lehr: mere existence of a biological link doesnt merit equivalent constitutional protection Right to keep the family together Moore: living with family (blood relatives) is a FR; extends to extended family Smith: foster parents have rights as well Right of Parents to control the upbringing of their children Meyer: have right to educate your children as you see fit Pierce: parents can send their children to any school they choose public/private Prince: parents right to control the upbringing of their children isnt beyond regulation in the public interest Right to Procreate Skinner: right to procreate Right to purchase and use contraceptives Griswold: right to privacy (contraceptives) for married persons Eisenstadt: expands to unmarried persons as well Carey: expands to children Right to abortion Roe: right to have an abortion up to a certain point; trimester framework( 1stmother more interest;2nd somewhat equal;3rd-states interest higher) Planned Parenthood: reaffirms Roe; moves from trimester framework to viability (less arbitrary); law with undue burden not constitutional Undue burden: restriction purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability Stenberg: jail time for docs; hard to find one; undue burden Maher: govt doesnt have to pay for nontherapeutic abortions; govt has interest in protecting fetus; no undue burden PP v. Danforth: spousal consent is an undue burden Casey: spousal notification is an undue burden Danforth: parental notice and consent requirement not an undue burden if there is also a judicial exception. Right to Medical Care Decisions Cruzan: a competent person can effuse medical treatment Right to privacy

Lawrence: right to privacy; adult consensual sex

Second, Is the Constitutional Right Infringed?

o Zablocki, direct and substantial (if can overcome infringement prob not
direct/substantial i.e. age restriction on marriage) If no, rational basis If yes, continue analysis w/ strict scrutiny

Third, Is there a sufficient justification for the Govts infringement of a right? o A compelling state interest. Fourth, Is the means sufficiently related to the Purpose?
o Narrowly tailored? No least restrictive means available NOR Not over- or under-inclusive.

PROCEDURAL DUE PROCESS

14th Amendment Procedural due process is the guarantee that the government will not deprive a person of life, liberty, or property without first giving the person some amount of legal process. Legal process means some kind of legal notice or opportunity for a hearing. Is there Govt Action? o First Question is the deprivation caused by the exercise of some right or privilege created by the state? o Second Question is the party charged with deprivation someone who may be fairly considered a state actor? Govt if entity was created by fed statute to serve a national interest. If private, then consider the extent to which the actor relies on govt assistance & benefits (Entanglement)* Exception to State Action Doctrine (where private entity MUST comply w/ Constitution: (1) Public Function (performing a task that has been traditionally, exclusively done by the govt) (2) Entanglement (govt MUST have authorized, encouraged, or facilitated the conduct) What is a Deprivation? o Establishing a denial of due process requires an intentional deprivation or at least reckless govt action. Daniels & Davidson, negligence is insufficient to demonstrate a deprivation of due process Does not want to open the cts up where there is no abuse of power. Lewis, emergency circs the govt only may be held liable if its officers conduct shocks the conscience. Emergency turns on whether deliberation is possible Shocks the conscience requires showing the govt acted w/ intent to harm. o Failure to protect from privately inflicted harm: DeShaney, govt generally has no duty to protect individuals from privately inflicted harms UNLESS the govt creates the harm or the person is in govt custody. Gonzalez, there is a property interest ONLY IF there is an entitlement. A benefit is not a protected entitlement if govt officials may grant or deny it in their discretion. Is it a Deprivation of Life, Liberty or Property? The govt has to provide due process ONLY when there has been a deprivation of life, liberty, or property. o The extent to which procedural due process must be afforded in a particular situation is influenced by the extent of the loss suffered, and depends on whether the aggrieved partys interest in avoiding that loss outweighs the govtal interest in summary adjudication., Goldberg o PROPERTY: Goldberg, welfare is property, b/c of importance in lives of the recipients. Roth, Property interest in employment ONLY where there is a reasonable expectation of continued receipt of benefit.

Perry, Practices in place support the arg that there is a reasonable expectation of continued employment. Implied by the handbook. Bishop, the govt can prevent there from being a prop interest by making it clear that it retains the right to fire the individual at will. Goss, prop interest in continued receipt of education when govt creates a public school system & requires children to attend. the total exclusion from the educational process for more than a trivial period is a deprivation of property & liberty requiring due process. LIBERTY: Liberty interests are created either by the Bill of Rights or state law. Roth, liberty includes free exercise of religion, right to K, acquire useful knowledge, marry, home & raise children. Goss, reputation is a liberty when being deprived of something else. students have a liberty interest in not being disciplined by a public school, in part, b/c suspension from school would damage the students reputation. Paul, harm to reputation, by itself, is not a deprivation of liberty. Liberty Interests for Prisoners: Sandin, liberty interest exists ONLY if there is a significant deprivation of freedom which is atypical to the usual conditions of confinement.

Was there Due Process? o Mullane v. Central Hanover, When deprivation has occurred, govt must always supply
certain basic safeguards such as: Notice of charges or issue (apply Matthews) What type of notice is required? The opportunity for a meaningful hearing (apply Matthews); and When must it be before or can it be after? What type of hearing is required must it be adversarial/govt provided atty provided atty? An impartial decision maker.

o Test for determining what process is due: Matthews v. Eldridge (to determine type of notice/hearing to be had): To
determine what procedures are required when there has been a deprivation of life, liberty, or property and due process is required (balance private interest vs. govt interest) 1. The private interest that will be affected by official action; o The more important the function of the interest, the more safeguards are needed. Consider whether theres a fall-back upon the deprivation.

2. The risk of an erroneous deprivation of such interest through the

procedures used; o The more the procedure will lead to better, more accurate, less erroneous decisions, the more likely it is to be required. Consider how easy it is to make an error w/ current procedure in place.

whether addtl procedures will reduce error in the outcome. Arnett & Loudermill, provide a balance the ct likes for employees an informal pre-termination hearing & then, if necessary, a post-termination hearing.

3. The govt interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural reqt would entail. o The more expensive, the less likely it will be required.

FIRST AMENDMENT
(1) Is there a government actor? a. If private actor, would entanglement or public function exception apply? b. Federal Govt 5th Amendment (Bolling) or State & Local Govts Incorporation
(Brown) (2) If govt actor, Is it Speech? a. Words or Symbols are speech. b. Expressive conduct Only conduct that communicates is speech under the 1st Amend. i. Test to determine whether conduct is expressive: 1. Spence, Conduct should be regarded as communicative when: a. intent to convey a particularized msg; and b. In Circs, the likelihood was great that those around would understand it. i. Ex.: Tinker, (black armbands protesting Vietnam War) symbolic act clearly intended to communicate a msg & those seeing it, in the context of the times, would understand it as a symbol of protest. ii. OBrien, If expressive conduct AND actual speech are being regulated. SUBSTANTIVELY VALID?

(3) The infringement - Is it being denied or compelled? (pp. 1126) a. The complete denial of speech? b. Laws that burden the speech are those that: i. Allow CIVIL LIABILITY for expression; 1. New York Times, state defamation laws are limited by the 1st Amend. a. Liability for torts (invasion of privacy, false light, & IIED) must be

consistent w/ 1st Amend. ii. Prevent or RESTRICT COMPENSATION for speech; 1. Restrictions on payments for speech (if content-based or contentneutral) are an infringement. a. Simon & Schuster, prevented individuals from keeping the profits made from their story. b. National Treasury Employees Union, when govt says you cant get paid for your speech. iii. COMPEL EXPRESSION (or deny the right to NOT speak); 1. state law requiring a salute to the flag is an infringement.. 2. McIntyre, govt cant require a forfeiture of anonymity before speaking (distributing campaign mat.) 3. Buckley, govt requirement of disclosure w/out sufficient cause is an infringement. 4. Johanns v. Livestock Marketing Assoc., if govts own speech, then not compelled even if supported by non-govt funds. CITIZENS HAVE NO RIGHT TO NOT FUND GOVT SPEECH. a. Government Speech Doctrine - To be an infringement, it MUST be the individuals own speech/msg. i. When the govt sets the overall msg to be communicated & approves every word that is disseminated, it is not precluded from relying on the Government Speech Doctrine merely b/c it solicits assistance from nongovernmental sources in developing specific msgs.

5. Rumsfeld v. Forum for Academic and Instit. Rights, Govt may compel
conduct, so long as it is not expressive conduct as long as it does not interfere w/ individuals own msg. a. Okay when little likelihood that the views of those engaging in the govt sponsored speech would be identified w/ the owner, who remains free to disassociate from those views & was not being compelled to affirm belief in any govtally prescribed position or view. iv. UNCONSTITUTIONAL CONDITION; and 1. the govt cannot condition a benefit on a reqt that a person foregoing any constitutional right. a. Govt may not deny a benefit to a person b/c he exercises a constitutional right. 2. Speiser, the unconstitutional conditions doctrine prevents the govt from penalizing those who exercise their constitutional rights by w/holding a benefit that otherwise would be available. 3. Velazquez, private speech may not be restricted or controlled by limitations on use of fed funds. a. Govt may not impose rules & conditions which in effect insulate its own laws from legitimate judicial challenge. 4. Rust, govt may selectively fund programs which encourage certain activities in the public interest, w/out also funding alternative approaches. a. the govt may use private speakers to transmit info pertaining to its own program. v. GOVERNMENT PRESSURE 1. Pressure individuals not to speak w/out actually prohibiting it. a. Evaluate the degree of pressure against the speech. The more minimal, the less likely to be considered an infringement. i. Bantam Books (p.1149) the pressure was so great as to constitute an unconstitutional prior restraint of speech, even though no books were actually banned and no prosecutions were undertaken. ii. Meese v. Keene, govt pressure was constitutional b/c minimal. Ct distinguished on the ground that it saw little adverse effect on speech by the govt labeling material as political propaganda.

(4) Is it protected? a. Protected, Unprotected or Somewhat Protected? i. PROTECTED 1. Political a. Contributions are somewhat protected cant exceed the limit imposed. i. Limits placed on contributions may not stop the political process. b. Expenditures are protected no limits may be placed on expend. Otherwise it would restrict expressions. ii. SOMEWHAT PROTECTED 1. Commercial a. What is commercial? i. Virginia State Board of Pharmacy

1. Speech that does no more than propose a commercial transaction is protected! ii. Bolger, if its an advertisement, it MUST: 1. have Economic motivation: AND 2. reference to a specific product. a. EX. Ads supporting political speech. b. Central Hudson Test for determining whether Govt may regulate. i. If, all four, then the govt may regulate: 1. (i) ads that are truthful and not deceptive; 2. (ii) the restriction is justified by substantial governmental interests, 3. (iii) prohibiting the ad directly advances that govtal interest, and 4. (iv) the reg is the least-restrictive method needed to achieve that interest. (not reqd P. 1264 to use the least restrictive means) ii. Greater New Orleans, changed least restrictive to narrowly tailored. 2. Indecent (bad words/things people dont want hear) a. How is it coming out? i. Broadcast media: can be regulated, but not outright banned. 1. In regulating, must consider the time, audience & content of the program in which the language is being used. a. Adult, child, things of that nature. 2. Highly regulated, b/c of access by children. ii. Cable: 1. Less regulated, b/c ppl have a damn choice. iii. Telephones: 1. Less regulated. iv. Internet: 1. more than likely going to be overbroad. 3. Adult (strip clubs) a. Young v. American Mini-Theaters, Inc., the govt may legitimately use the content of these materials as the basis for placing them in a different classification from others b. Zoning permissible b/c of secondary effects. Secondary effects are big in this category. iii. UNPROTECTED 1. Illegal, false, misleading ads. 2. Incitement of Illegal Activity a. Brandenburg Test, conviction for incitement is constitutional ONLY if: i. Imminent harm; ii. A likelihood of producing illegal action; and iii. An intent to cause imminent illegality. 3. Fighting Words a. What constitutes fighting words?

i. Chaplinsky, two situations where speech constitute fighting

words (Broad): 1. When it is likely to cause a violent response against the speaker; and 2. When it is an insult likely to inflict immediate emotional harm. ii. Street, limits the fighting words that will be unprotected to those which are (Narrow) 1. likely to provoke the average person to retaliation, & thereby cause a breach of the peace. b. When is it protected? i. Speech is protected even if it is uttered in anger, filled w/ profanities, and likely to anger the audience. ii. Cohen, fighting words unprotected ONLY if: 1. The speech is directed to a specific person; and 2. Likely to provoke a violent response. c. Laws regulating fighting words: i. A fighting words law will be upheld only if it is narrowly tailored to apply just to speech that is not protected by the First Amend. 1. Otherwise, likely to be deemed void on vagueness grounds or invalidated as being impermissibly overbroad. 2. Most laws regulating hate speech are invalidated b/c broad or vague. ii. Virginia v. Black, govts may prohibit cross burning done w/ the intent to intimidate, but that this intent must be proven in the particular case and the speech was a true threat. iii. Wisconsin, permissible for govt to enhance punishment if it could be proved that a victim was chosen b/c of his or her race. 1. Where the law punishes conduct it may consider race intentions as a basis for enhancing penalties. 4. Obscenity a. Roth, obscene material is that which deals w/ sex in a manner appealing to the prurient interest. i. Prurient means that which excites lustful or lascivious thoughts. b. Miller, To be deemed obscene, ask: i. Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; ii. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and iii. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. c. CHILD PORN i. Ferber, the govt may prohibit child porn. ii. Ashcroft, the govts interest is limited to protecting children from being used/harmed in the making of the material. 1. Children in its production to be considered child porn.

iii. If no children involved, then apply Miller test. d. Obscene materials are permitted to be in the home. Govt may regulate obscene materials going to home. i. Govt may prevent child porn from being in the home.
b. Is it content-neutral or content-based? i. Content-based: Governmental regulations on speech which impose differing burdens on various types of communications, based on their content (either based on View point or subject matter). (strict scrutiny) 1. EXCEPTIONS: a. RAV, even if unprotected then still strict scrutiny UNLESS i. The distinction advances the reason why the category is unprotected; or ii. The restriction is meant to prevent secondary effects. b. Limited resources & then govt permitted to make contentbased decision. 2. If it meets an exception, then it is deemed content-neutral. 3. Once deemed content-based, then apply strict scrutiny review: a. Narrowly tailored to a compelling state interest. ii. Content-neutral: Government regulations which affect all communications equally, regardless of the message being communicated. (intermediate scrutiny) 1. Speech regulation is deemed content-neutral when it is BOTH viewpoint neutral (i.e. it cannot allow praise but forbid dissent) AND subject-matter neutral (i.e. it cannot pre-empt discussion of specified topics. 2. Intermediate scrutiny will find content-neutral regulation constitutional if it a. (i) advances important government interests, b. (ii) which are unrelated to suppression of free speech, and c. (iii) does not burden more speech than is necessary to further those interests.

(4) OBrien Test ARG FOR GOVT ONLY IF REGULATING EXPRESSIVE CONDUCT & SPEECH!
i. Govt can regulate conduct that communicates ONLY if it has an important purpose unrelated to suppression of the msg. 1. OBrien does not apply when the govts interest is directly related to suppression of the msg a. sole purpose is to prevent the conduct from relaying a particular msg. ii. To determine whether the govt may regulate the conduct (a govt reg is sufficiently justified IF): 1. If it is w/in the Constitutional power of the govt; 2. It furthers an important or substantial govtal interest; 3. The govtal interest is unrelated to the suppression of free expression; and 4. If the incidental restriction on 1st Amendment freedoms is no greater than is essential to the furtherance of that interest.

(5) As applied challenge

a. An as-applied challenge means that the party is challenging the law as it is applied to him or her. The idea is that the statute might be constitutional as applied to some

speech, but not the speech the challenger engaged in. the law, as written, may not be a problem, but its application is no longer acceptable.

All above to determine whether the State could even regulate it. Now ask whether the regulation was procedurally valid.

EVEN IF CONSTITUTIONAL, Then, determine whether the State has taken appropriate PROCEDURAL STEPS:

(6) Is if vague or overbroad? a. Vague (A reasonable person could not know what was outlawed and what was
permitted) b. Overbroad (A law that regulates much more expression than the Constitution allows) see Broadrick, Vinson p.1088 c. 1st, Facial Challenge; i. It must be substantially overbroad it must restrict significantly more speech than the Constitution allows to be controlled. 1. Statute may be invalidated on its face, ONLY if the overbreadth is substantial. Ct says lack of substantial overbreadth can be cured on case-by-case analysis of the fact situation. 2. Example of way to overbroad - LAX, (p.1090) ii. Vinson, To show substantially overbroad, you must show many instances that it covered more than what it was intended to cover d. Second, As applied Challenge, If not substantially overbroad.

(7) Does it constitute a Prior Restraint? a. Prior restraint: An administrative system or a judicial order that prevents speech from
occurring. i. In practice, most prior restraints involve either an administrative rule requiring some form of license or permit before one may engage in expression, or a judicial order directing an individual not to engage in expression, on pain of contempt. ii. Ex. A license or a court/injunctive order. b. If yes, ask: i. Is it dealing w/ war-time speech, dealing w/ obscene material or incitement to act violent? 1. If yes, then law presumed valid. If no, then ask: ii. Is it dealing w/ LICENSING? 1. If yes, then three-prong test (to be constitutional, must pass each prong): a. is there an important interest for licensing? (is it dealin w/ T, P, & M?) b. Are there clear standards w/ no discretion? c. Are there procedural safeguards? i. If yes (hearing/re-determination), to all three (a, b, c) then presumed valid. ii. If no, presumed invalid. iii. Is the prior restraint dealing w/ an INJUNCTIVE ORDER? 1. If yes, then is the govt asserting some compelling interest such as national security, military secrets, or protect fair trial? a. If no, presumed invalid. b. If yes, then i. Is it narrowly tailored? 1. If yes, then valid. 2. If no, presumed invalid.

(8) Is it dealing w/ Time, Place, or Manner?

a. Public forum (generally open to the public - streets, sidewalks, etc.) then three
prong test: i. The action MUST be: 1. Content-neutral; 2. Narrowly tailored to achieve a significant govt interest; AND 3. Leave open alternative means for communication (Other ways the person can get their msg out) b. Limited (or designated) forums: i. Once opened to the public, then analyze as public forum. c. Non-public forums (jails, military bases): i. Three factors to consider whether non-public: 1. Tradition of availability of the place for speech; 2. The extent to which speech is incompatible w/ the usual function of the place; and 3. Whether the primary purpose of the place is for speech. ii. Two-Prong Test for Non-Public: 1. It must be viewpoint neutral; and 2. Reasonably related to a legitimate interest.