Individual Liberties

Question 3

Free Exercise Clause

Answer 3

Prohibits the government from outlawing or preventing the exercise of religious beliefs

Question 4

Laws that intentionally target religious beliefs are subject to what level of scrutiny?

Answer 4

Strict scrutiny

Question 5

Laws that only incidentally impact religion are subject to what level of scrutiny?

Answer 5

Rational basis review

Question 6

Establishment Clause

Answer 6

Prohibits the government from endorsing or supporting a particular religion

Question 7

Laws promoting a particular religion are subject to what level of scrutiny?

Answer 7

Strict scrutiny

Question 8

Are tax deductions given to parents of students in religious schools constitutional?

Answer 8

Yes, as long as they are also given to parents of students in secular schools

Question 9

Are tax exemptions for religious organizations constitutional?

Answer 9

Yes, as long as they are also given to other non-profit organizations

Question 10

Is allowing a religious organization to hold its meetings in a public school constitutional?

Answer 10

Yes, as long as there are a broad range of organizations using the facilities and none are given preferential treatment

Question 11

Is posting the Ten Commandments in a classroom constitutional?

Answer 11

No

Question 12

Is displaying the Ten Commandments on public property constitutional?

Answer 12

No, if the display has a �predominantly religious purpose.� If secular or historical purpose, may be considered constitutional

Question 13

What is the constitutionality of religious holiday displays in public places (e.g. courthouse)?

Answer 13

Constitutional if surrounded by other holiday symbols that make it clear government is not promoting specific religion

Question 14

What is the freedom of association?

Answer 14

Protects the right to participate in any club, gathering, or group. Subject to strict scrutiny: can only infringe if there�s a compelling gov. interest

Question 15

When can someone be fired or prevented from gaining public employment for association with a group?

Answer 15

D is active member of subversive organization; D knows about the group�s illegal activities; and D has specific intent to further illegal activities

Question 16

What oaths can public employees be required to take?

Answer 16

Oath to support the Constitution; and Oath to oppose a legal or violent overthrow of government

Question 17

When can a candidate be denied admission to the bar?

Answer 17

On the basis of political affiliation if candidate is: An active member of subversive organization; Knows about the group�s illegal activities; and Has specific intent to further illegal activities Or if candidate interferes with investigation into qualifications

Question 18

Can the government require disclosure of group membership?

Answer 18

Yes, but if the disclosure would have chilling effect, restriction must meet strict scrutiny.

Question 19

Define overbroad

Answer 19

Regulation that restricts substantially more speech than is constitutionally allowed (i.e. restricts unprotected and protected speech). Renders regulation void.

Question 20

Define public forum

Answer 20

Places historically open to the public for expression (e.g. parks and sidewalks). Can be either traditional or designated.

Question 21

Define prior restraint

Answer 21

Blocks speech before it is expressed. Subject to strict scrutiny. ?? Highly unfavored and presumptively unconstitutional except in extremely rare instances

Question 22

When is a prior restraint on speech allowed?

Answer 22

Only allowed in extremely rare circumstances such as: During wartime or national security crisis to protect troops/citizens; or To prevent incitement of violence

Question 23

When can the government regulate speech that is incitement to violence?

Answer 23

Regulation must be narrowly tailored and only aimed at: Speech that promotes or directs imminent illegal action; and Creates a �clear and present danger� of such action

Question 24

Define fighting words

Answer 24

Substantially likely to provoke an immediate violent reaction (e.g. direct personal insult)

Question 25

What is the 3-prong test to determine whether speech is obscene?

Answer 25

Appeals to �prurient interests;� (community standard) Depicts or describes sexual conduct in a way that is patently offensive to community standards and applicable state law; and Lacks serious artistic, literary, political, or scientific value as determined by national standards ?? Note: Sexual expression that is indecent but not patently offensive is protected by the First Amendment.

Question 26

Do the public and press have a right to attend trials?

Answer 26

Criminal trials: Yes, but can be overruled upon showing of overriding interest Civil trials: Unclear

Question 27

What 5 types of speech can be regulated on the basis of content? (i.e. unprotected speech)

Answer 27

Obscenity; Incitement; Fighting words; Defamation; and Commercial speech ?? Can be regulated as long as statute is narrow, does not need to meet strict scrutiny

Question 28

Can the government restrict inmates� free speech?

Answer 28

Yes, as long as the regulation is rationally related to a legitimate penalogical objective and an alternate way to express legitimate speech is available ?? Note: This includes pretrial detainees, parolees, and those on probation

Question 29

Does the press have more First Amendment rights than the general public?

Answer 29

No, same rights public at large

Question 30

Can the government regulate broadcast TV?

Answer 30

Can only fine stations for airing �patently offensive and excretory speech�

Question 31

Content-based regulations of cable TV are subject to what level of scrutiny?

Answer 31

Strict scrutiny

Question 32

Content-neutral regulations of cable TV are subject to what level of scrutiny?

Answer 32

Intermediate Scrutiny (e.g. �must carry� provisions)

Question 33

What is the four-part test to determine whether regulation of commercial speech is constitutional?

Answer 33

Must satisfy Central Hudson Test: Speech is not false, misleading, or illegal; Regulation serves substantial government interest; Regulation directly advances interest; and Regulation is not more extensive than necessary to serve that interest

Question 34

Define commercial speech

Answer 34

Speech whose primary goal is commerce (e.g. commercial or advertisement for a product or service)

Question 35

Are gag orders constitutional?

Answer 35

Very rarely constitutional, unless they are the least restrictive means necessary to ensure D has a fair trial (usually alternatives such as better voir dire, venue change, or postponement are available)

Question 36

What does the First Amendment protect?

Answer 36

Freedom of expression (speech, press, assembly, & association)

Question 37

What is unprotected commercial speech?

Answer 37

Speech that is misleading, false, or unlawful and can be regulated freely by the government

Question 38

Is profanity protected?

Answer 38

Yes unless: Broadcast over public television; or In public schools

Question 39

Are attempts to limit fighting words constitutional?

Answer 39

Limitations will almost always fail for being either overbroad, vague, or viewpoint-based and thus failing strict scrutiny ?? If you see a question on the MBE with a fighting word statute, it is extremely likely it will be too vague or overbroad

Question 40

Define content-based restriction

Answer 40

Restriction based on subject matter of expression; i.e. disagreement with the viewpoint or message it contains. Can be either content-based on its face or as applied. ?? Subject to strict scrutiny ??

Question 41

Define viewpoint neutral restriction

Answer 41

One that restricts entire categories of speech, but not viewpoints within a category Ex. Restriction on all Second Amendment speech would be allowed, but restriction on only anti-Second Amendment speech would not be allowed

Question 42

Define content-neutral restriction

Answer 42

Applies neutrally to all content regardless of viewpoint or subject matter. Ex. time, place, or manner restriction ?? Subject to intermediate scrutiny

Question 43

Distinguish traditional vs. designated public forum

Answer 43

Traditional: traditional public areas (e.g. sidewalks, parks, etc.) that cannot be changed into nonpublic forums Designated: Designated as public forums during certain hours or in general (e.g. municipal meeting rooms). Can be changed into nonpublic forums

Question 44

3 requirements needed for a valid time, place, or manner restriction in a public forum

Answer 44

Restriction is: Content-neutral; Leaves open ample, alternative channels of communication; and Narrowly tailored to serve significant government interest (not compelling gov. interest)

Question 45

Is there a right to picket a single residence?

Answer 45

No

Question 46

When will a regulation on speech in a designated public forum be upheld?

Answer 46

When forum is open for speech and: Regulates time, place, or manner (i.e. is content-neutral); Is narrowly tailored to serve significant government interest; and Leaves open ample, alternative channels of communication (same as test for traditional public forum)

Question 47

Define non-public forum

Answer 47

Public property that is not open to speech (e.g. schools, jails, airports)

Question 48

When is a restriction on speech in a non-public forum valid?

Answer 48

Viewpoint neutral (**does not need to be content neutral); and Reasonably related to a legitimate government purpose

Question 49

Define vagueness

Answer 49

Restriction is void for vagueness if reasonable person does not understand what the law requires or prohibits

Question 50

Define symbolic speech

Answer 50

Expressive conduct meant to convey a particular message (e.g. wearing black arm bands in protest)

Question 51

When can the government regulate symbolic speech?

Answer 51

Regulation furthers important gov. interest; Interest is unrelated to suppression of the message; and Impact on speech is no greater than necessary to achieve interest

Question 52

Are restrictions on the following constitutional: Flag burning Public nudity Leafleting Cross burning

Answer 52

Unconstitutional Constitutional b/c interest in harmful effects Constitutional b/c interest in littering Unconstitutional unless action is meant to threaten

Question 53

Is the media protected by the First Amendment for publishing a lawfully obtained private fact? (e.g. identity of a rape victim)

Answer 53

Yes, as long as story is matter of public concern (i.e. newsworthy)

Question 54

Are zoning restrictions on adult entertainment establishments constitutional?

Answer 54

Yes, if zoning is to prevent adverse �secondary effects� caused by the business, such as increased neighborhood crime (�secondary effects doctrine�)