Individual Liberties

Question 1

Define

Free Exercise Clause

Answer 1

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

More info: Free Exercise Clause

Question 2

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

Answer 2

Strict scrutiny

Question 3

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

Answer 3

Rational basis review

Question 4

Define

Establishment Clause

Answer 4

Prohibits the government from endorsing or supporting a particular religion

More info: Establishment Clause

Question 5

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

Answer 5

Strict scrutiny

Question 6

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

Note: This has been overruled, but still be prepared with the old test. See reverse side of card for more detail.

Answer 6

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)

2023 NOTE: The Lemon test has been overruled by Kennedy. The MBE may still test it and it may not - be prepared for both situations. Barbri is continuing to test it.

Question 7

When is government aid to private, religious schools allowed?

Answer 7

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)

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

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

Answer 11

Both unconstitutional*

*Note: Kennedy v. Bremerton School District, 597 U.S. (2022) essentially overturned the Lemon Test. This update will likely not be tested on the MBE, but be aware of both possible answers.

Question 12

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

Answer 12

Unconstitutional.

**This changed in the recent decision Kennedy v. Bremerton School Dist. (06/27/2022), but the MBE will likely not be updated to reflect this in July 2022.

Question 13

Is posting the Ten Commandments in a classroom constitutional?

Answer 13

No

Question 14

Is displaying the Ten Commandments on public property constitutional?

Answer 14

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

Question 15

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

Answer 15

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

Question 16

What is the freedom of association?

Answer 16

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 17

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

Answer 17

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

Question 18

What oaths can public employees be required to take?

Answer 18

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

Question 19

When can a candidate be denied admission to the bar?

Answer 19

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

Question 20

Can the government require disclosure of group membership?

Answer 20

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

Question 21

Define

overbroad

Answer 21

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

Renders regulation void.

Question 22

Define

public forum

Answer 22

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

Question 23

Define

prior restraint

Answer 23

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

⚠️ Highy unfavored and presumptively unconstitutional except in extremely rare instances

More info: Prior Restraint

Question 24

When is a prior restraint on speech allowed?

Answer 24

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 25

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

Answer 25

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

Question 26

Define

fighting words

Answer 26

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

Question 27

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

Answer 27

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.

Question 28

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

Answer 28

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

Civil trials: Unclear

Question 29

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

Answer 29

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

Question 30

Can the government restrict inmates’ free speech?

Answer 30

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 31

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

Answer 31

No, same rights public at large

Question 32

Can the government regulate broadcast TV?

Answer 32

Can only fine stations for airing “patently offensive and excretory speech”

Question 33

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

Answer 33

Strict scrutiny

Question 34

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

Answer 34

Intermediate Scrutiny

(e.g. “must carry” provisions)

Question 35

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

Answer 35

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

Question 36

Define

commercial speech

Answer 36

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

Question 37

Are gag orders constitutional?

Answer 37

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 38

What does the First Amendment protect?

Answer 38

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

Question 39

What is unprotected commercial speech?

Answer 39

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

Question 40

Is profanity protected?

Answer 40

Yes unless:

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

Question 41

Are attempts to limit fighting words constitutional?

Answer 41

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 42

Define

content-based restriction

Answer 42

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 43

Define

viewpoint neutral restriction

Answer 43

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 44

Define

content-neutral restriction

Answer 44

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

Ex. time, place, or manner restriction

⭐️ Subject to intermediate scrutiny

Question 45

Distinguish traditional vs. designated public forum

Answer 45

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 46

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

Answer 46

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)

Question 47

Is there a right to picket a single residence?

Answer 47

No

Question 48

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

Answer 48

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)

Question 49

Define

non-public forum

Answer 49

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

Question 50

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

Answer 50

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

Question 51

Define

vagueness

Answer 51

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

Question 52

Define

symbolic speech

Answer 52

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

Question 53

When can the government regulate symbolic speech?

Answer 53

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

Question 54

Are restrictions on the following constitutional:

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

Answer 54

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

Question 55

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

Answer 55

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

Question 56

Are zoning restrictions on adult entertainment establishments constitutional?

Answer 56

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