Con Law - Model Rule Statements

Question 1

state action

Answer 1

The Constitution generally protects against wrongful conduct by the government, not private parties. A private person’s conduct must constitute state action in order for these protections to apply. State action is found when a private person carries on activities that are traditionally performed exclusively by the state, such as running primary elections or governing a “company town.”

Question 2

first amendment through the 14th amendment

Answer 2

The First Amendment is applicable to the states through the Fourteenth Amendment and protects the freedom of speech as well as the freedom not to speak.

Question 3

protected speech and expressive conduct

Answer 3

The First Amendment protects freedom of speech. Protected speech can include written, oral, and visual communication, as well as expressive conduct such as picketing and leafleting. However, expressive conduct is subject to a lesser degree of protection.

A governmental regulation of expressive conduct will be upheld if (i) the regulation is within the government’s power to enact, (ii) the regulation furthers an important governmental interest, (iii) the governmental interest is unrelated to the suppression of ideas, and (iv) the burden on speech is no greater than necessary (i.e., is narrowly tailored).