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2022 MBE > Con Law: 1st Amendment > Flashcards

Con Law: 1st Amendment Flashcards

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MBE flashcards
1
Q

Establishment Clause:

A

prohibits gov from establishing a religion, preferring a particular religion, or preferring religion over non-religion.

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2
Q

A government action that has the effect of benefitting a religion is valid if (Lemon test) ∑:

A

(a) PURPOSE – it has a secular purpose,
(b) EFFECT – its primary effect neither advances nor inhibits religion;
(c) ENTANGLEMENT – it does not result in excessive government entanglement with religion

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3
Q

Financial aid to religious institutions is valid if

A

if the

(a) aid is used only for secular purposes,
(b) secular in nature, and is
(c) distributed according to religiously neutral criteria

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4
Q

Constitutionality of government holiday displays

A

permitted unless a reasonable observer would conclude that the display is a religious endorsement.

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5
Q

Standard for laws that intentionally target religious conduct

A

strict scrutiny

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6
Q

Standard for neutral regulation of conduct that impact religion:

A

rational basis

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7
Q

Ministers exception to freedom of religion

A

religious organization are free to select its ministers without governmental interference.

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8
Q

Test for regulation of expressive conduct ∑ 3

A

is valid if ∑ 3:

(a) INTEREST – it furthers an important interest;
(b) INTEREST – interest is unrelated to suppression of expression and
(c) BURDEN – burden on expression is no greater than necessary

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9
Q

Speech regulation is impermissibly overbroad if

A

if it regulates substantially more speech than necessary to protect a compelling interest

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10
Q

Speech regulation is void for vagueness if

A

if it fails to provide a person of ordinary intelligence with fair notice of what’s prohibited.

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11
Q

Prior restraints on speech:

  • standard of review
  • presumption
A

Subject to strict scrutiny

Presumption: presumed to be unconstitutional unless procedural safeguards are in place.

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12
Q

Prior restraints on speech–burden of proof

A

government bears the burden to prove that the material is not protected speech, even when national security is at issue.

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13
Q

Media’s right to publish

standard of review

A

prohibits gov from unduly restricting the right to publish (a) lawfully obtained and (b) truthful info about (c) matters of public significance

strict scrutiny for matters of public concern.

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14
Q

Media restrictions on media–Illegally obtained info

A

Media can publish if

(a) info was obtained by third party unknown to the media / media didn’t unlawfully obtain it; and
(b) the info involves matter of public concern.

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15
Q

Media restrictions on media–lawfully obtained private fact

A

Media can publish if the matter involves matter of public concern (e.g., the identity of a rape victim)

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16
Q

Standard for content-based regulation

A

Strict scrutiny.

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17
Q

5 Exceptions to content-based regulation:

A 
Commercial speech, 
Obscenity/Child porn, 
incitement to violence, 
fighting words, 
defamation
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18
Q

Is commercial speech protected under 1st Amendment?

A

Commercial speech is protected unless false, misleading, or unlawful.

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19
Q

Regulation of commercial speech

standard

test

A

Subject to intermediate scrutiny

4-part Central Hudson Test:

(a) speech is not false, misleading or unlawful
(b) regulation directly advances
(c) a substantial government interest (not compelling); and
(d) is narrowly tailored to serve that interest (there is a reasonable fit between the regulation and its purpose)

20
Q

Defamation burden of proof–

if P is a public figure or the defamatory statement involves a matter of public concern

A

In addition to prima facie elements of defamation, P must prove

(a) fault; and
(b) falsity.

21
Q

Defamation: fault element for public officials/figures

A

requires proof of actual malice (knowing or reckless falsity)

22
Q

Defamation: fault element for private persons with statement involving public concern

A

requires proof of negligent falsity

23
Q

Obscenity

test
requirement

A

(not protected) : 4S ∑—

(a) sexy
(b) society sick
(c) standards
(d) serious value

[1] Sexy: content must be erotic
[2] Society sick: must be patently offensive to an average person in the society.
[3] Standard: must be defined by proper standards for determining what’s obscene. cannot be vague or overbroad
[4] Serious value: material must lack serious value—determined by court, not jury, based on national standard, not local.

© city can regulate but not impose a blanket ban on porn

24
Q

Incitement to violence

A

(not protected): advocates immediate lawless action/use of force and likely to produce such.

25
Q

Fighting words

A

(not protected): likely to provoke an IMMEDIATE breach of the peace, must be aimed at specific someone and that person might hit back.

© Cannot restrict fighting words that express only certain viewpoints. (e.g., Supreme Court has struck down an ordinance that applied only to fighting words that insulted or provoked on the basis of race, religion, or gender. )

26
Q

Public forum definition

A

is a place traditionally reserved for speech activities: streets, parks, sidewalks

27
Q

Content-neutral regulation:

definition

standard of review

A

applies neutrally to all content regardless of subject matter or viewpoint (e.g. time, place or manner restrictions).

Subject to intermediate scrutiny.

28
Q

Test for time/place/manner regulation of speech in a public forum

A

(a) be content neutral (both subject matter and viewpoint)
(b) narrowly tailored to serve
(c) a significant government interest; and
(d) leave open ample alternative channels of communication (not a flat prohibition on speech)

29
Q

Nonpublic forum definition

A

Government property that is not a public forum. (e.g. government office, jail, military bases, power plants)

30
Q

Test for speech regulations in nonpublic forum ∑ 3

A

allowed if ∑

(a) viewpoint-neutral (no need to be content-neutral);
(b) rationally related to
(c) a legitimate government interest.

31
Q

Standard for regulations of campaign contribution

A

subject to intermediate scrutiny.

generally can be regulated if the limits are not unreasonably low.

32
Q

Standard for regulations of campaign expenditure

A

subject to strict scrutiny.

generally cannot be regulated.

© Coordinated expenditures (when campaign asks individual to spend for them) can be regulated because they are disguised contributions.

33
Q

Regulation of political parties: primary elections

A

states cannot require political parties to have open primaries (open primary: primary where you don’t have to be registered in a party to participate)

34
Q

Regulation of political parties: ballot access

A

state can refuse to grant a party candidate access to general election ballot, unless the party demonstrates public support

(e.g. voter signatures on petition, voter registrations, previous electoral success)

35
Q

Does 1st Amd protect government employee speech?

A

Protection if speaking as a citizen on a matter of public concern.

No protection if speaking pursuant to official duties (he is speaking pursuant to official duties if speech is ordinarily within the scope of those duties)

36
Q

Freedom of association definition

A

right to form or participate in any group.

unless

(1) subversive org,
(2) loyalty oath,
(3) forced inclusion,
(4) electoral process

37
Q

Standard for regulations of freedom of association

A

Generally strict scrutiny (compelling interest)

38
Q

Test for restriction on public employment based on political affiliation

A

May not be punished or deprived of based on their political affiliation, unless

(a) is an active member of a subversive organization,
(b) has knowledge of the organization’s illegal activities, and
(c) has a specific intent to further those illegal objectives.

39
Q

Leafleting

A

leafleting is protected speech © leafleting on private property even when its open to the public, such as a mall.

40
Q

limited public forum:

A

opening of private property to the public does not convert it to limited public forum where leafleting must be permitted over the owner’s objection.

41
Q

Prior restraints on speech: exceptions

A

Prior restraints on expression are generally not allowed. Exception ∑

(a) there is a particular harm to be avoided and
(b) certain procedural safeguards are provided to the speaker.

42
Q

1st amendment protections

A
  1. expression
  2. press
  3. association
  4. religion
43
Q

freedom of expression:

A

right to communicate information and ideas through speech/conduct

44
Q

Freedom of the press:

A

prohibits gov from unduly restricting the right to publish

(a) lawfully obtained and
(b) truthful info about
(c) matters of public significance

strict scrutiny (must be narrowly tailored to further a compelling government interest)

45
Q

Loyalty oath:

A

Gov can require oath for public employment unless overbroad (infringes upon constitutionally protected behavior) or vague

46
Q

Protection against forced inclusion

A

Gov cannot interfere with org’s discriminatory policy unless (a) no significant burden on org’s mission and (b) necessary to achieve compelling interest

2022 MBE (18 decks)

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