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Flashcards in Individual Liberties Deck (56)
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Free Exercise Clause

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

More info: Free Exercise Clause


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

Strict scrutiny



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

Rational basis review 


Establishment Clause

Prohibits the government from endorsing or supporting a particular religion

More info: Establishment Clause


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

Strict scrutiny


What is the 3-part test to determine whether a law violates the Establishment Clause? 

Lemon test:

  1. Action must have a secular (non-religious) purpose
  2. Primary effect must neither advance nor inhibit religion; and
  3. Action does not excessively entangle the government with religion

⚠️ Action will only be upheld if it meets all 3 elements of the Lemon test and only regulates practice of religion; not belief (gov. can never regulate beliefs) 


When is government aid to private, religious schools allowed? 

  1. Aid is for secular instruction/purpose; and
  2. Does not excessively entangle government (i.e. doesn't require gov. to oversee programming/funding disbursement)


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

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


Are tax exemptions for religious organizations constitutional? 

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


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

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


What is the constitutionality of school prayer? A moment of silence designated for prayer? 

Both unconstitutional



What is the constitutionality of student led prayer at a public high school football game?



Is posting the Ten Commandments in a classroom constitutional?



Is displaying the Ten Commandments on public property constitutional? 

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


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

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


What is the freedom of association?

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 


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

  1. D is active member of subversive organization
  2. D knows about the group's illegal activities; and
  3. D has specific intent to further illegal activities


What oaths can public employees be required to take?

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


When can a candidate be denied admission to the bar?

On the basis of political affliation if candidate is: 

  1. An active member of subversive organization; 
  2. Knows about the group's illegal activities; and
  3. Has specific intent to further illegal activities

Or if candidate interferes with investigation into qualifications


Can the government require disclosure of group membership? 

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



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

Renders regulation void.


public forum

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



prior restraint

Blocks speech before it is expressed. Subject to strict scrutiny.

⚠️ Highy unfavored and presumptively unconstitutional except in extremely rare instances 

More info: Prior Restraint


When is a prior restraint on speech allowed?

Only allowed in extremely rare circumstances such as:

  • During wartime or national security crisis to protect troops/citizens; or 
  • To prevent incitement of violence



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

Regulation must be narrowly tailored and only aimed at: 

  1. Speech that promotes or directs imminent illegal action; and 
  2. Creates a "clear and present danger" of such action 


fighting words

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


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

  1. Appeals to "prurient interests;” (community standard)
  2. Depicts or describes sexual conduct in a way that is patently offensive to community standards and applicable state law; and 
  3. 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. 




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

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

Civil trials: Unclear 


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

  1. Obscenity; 
  2. Incitement;
  3. Fighting words;
  4. Defamation; and
  5. Commercial speech

⭐️ Can be regulated as long as statute is narrow, does not need to meet strict scrutiny


Can the government restrict inmates' free speech? 

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 


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

No, same rights public at large 


Can the government regulate broadcast TV?

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


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

Strict scrutiny


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

Intermediate Scrutiny

(e.g. "must carry" provisions)


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

Must satisfy Central Hudson Test: 

  1. Speech is not false, misleading, or illegal
  2. Regulation serves substantial government interest; 
  3. Regulation directly advances interest; and
  4. Regulation is not more extensive than necessary to serve that interest

More info: Central Hudson Test 


commercial speech

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



Are gag orders constitutional? 

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)



What does the First Amendment protect? 

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


What is unprotected commercial speech? 

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


Is profanity protected?

Yes unless: 

  1. Broadcast over public television; or 
  2. In public schools


Are attempts to limit fighting words constitutional? 

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


content-based restriction

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 ⭐️


viewpoint neutral restriction

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


content-neutral restriction

Applies neutrally to all content regardless of viewpoint or subject matter. 

Ex. time, place, or manner restriction

⭐️ Subject to intermediate scrutiny 


Distinguish traditional vs. designated public forum 

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  


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

Restriction is: 

  1. Content-neutral;

  2. Leaves open ample, alternative channels of communication; and 

  3. Narrowly tailored to serve significant government interest (not compelling gov. interest)



Is there a right to picket a single residence? 



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

When forum is open for speech and: 

  1. Regulates time, place, or manner (i.e. is content-neutral);

  2. Is narrowly tailored to serve significant government interest; and

  3. Leaves open ample, alternative channels of communication

(same as test for traditional public forum)


non-public forum 

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



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

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




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


symbolic speech

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


When can the government regulate symbolic speech

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


Are restrictions on the following constitutional: 

  1. Flag burning
  2. Public nudity 
  3. Leafleting
  4. Cross burning

  1. Unconstitutional
  2. Constitutional b/c interest in harmful effects
  3. Constitutional b/c interest in littering
  4. Constitutional unless meant to threaten


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

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


Are zoning restrictions on adult entertainment establishments constitutional?  

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