Con Law - AMP

Question 1

A federal court refused to hear a challenge to a new state law because the plaintiff had not yet suffered any harm and there was no immediate threat of harm.
In other words, the case was dismissed because it was:

Answer 1

not ripe

Question 2

Difference between ripeness, mootness, and lack of redressability.

Answer 2

If a plaintiff had not been harmed and there was no immediate threat of harm, then the case was not ripe for filing in the federal courts. The Supreme Court has interpreted the case or controversy language in Article III as a limitation on federal court jurisdiction that prevents federal courts from hearing cases before someone is harmed or threatened with harm.

Ripeness bars consideration of claims before they have been developed; mootness bars their consideration after they have been resolved.

If a plaintiff’s injury cannot be remedied by a decision in her favor, it is not redressable, and the federal courts will not hear the case based on a lack of standing. However, the plaintiff in this question had not yet suffered any injury; thus, the case was dismissed because it was not ripe.

Question 2

There is a question as to whether a candidate for Congress meets the age and residency requirements for office. This constitutes a __________ question, and thus the Supreme Court __________ decide it.

Answer 2

Political; will not

Question 2

Political questions are . . .

Answer 2

issues committed by the Constitution to another branch of government, OR those inherently incapable of resolution and enforcement by the judicial process.

The Court will not decide political questions. A question as to whether a candidate for Congress meets the age and residency requirements for office is a political question because it is committed by the Constitution to the respective houses of Congress, and thus the Court will not decide it.

Question 2

The Eleventh Amendment bars federal courts from hearing certain actions against __________.

Answer 2

State governments for damages

Question 2

The Eleventh Amendment’s jurisdictional bar extends to the following:

Answer 2

1. Actions against state governments for damages;
2. Actions against state governments for injunctive or declaratory relief where the state is named as a party;
3. Actions against state government officers where the effect of the suit will be that retroactive damages will be paid from the state treasury or where the action is the functional equivalent of a quiet title action that would divest the state of ownership of land; and
4. Actions against state government officers for violating state law.

Question 2

The following cases may be heard by certiorari:

Answer 2

(i) Cases from the highest state courts where (a) the constitutionality of a federal statute, federal treaty, or state statute is called into question; or (b) a state statute allegedly violates federal law; and
(ii) All cases from federal courts of appeals.

NOTE: Decisions from a three-judge federal district court panel granting or denying injunctive relief CAN be appealed to the Supreme Court, but the appeal is mandatory rather than through discretionary certiorari review.

Question 2

Grant of a writ of certiorari requires the agreement of at least ____ Justices.

Answer 2

four

Question 2

A dealer in oriental rugs acquired an antique rug measuring 24 feet by 36 feet. A banker inspected the rug and orally agreed to buy it for the asking price of $65,000, provided he was successful in purchasing the house he was trying to buy, because it had a living room large enough to accommodate the rug. The sale agreement was later reduced to writing, but the provision concerning the purchase of the house was not included in the written agreement.If the banker is unsuccessful in acquiring the house he wants because the owner decided not to sell, and the dealer sues the banker for the purchase price. The banker will prevail b/c . . .

Answer 2

he was unable to acquire the house he wanted.In general, the parol evidence rule bars oral evidence contradicting a written agreement which was intended to be a final and exclusive embodiment of the parties’ agreement. However, one exception to this general rule provides that parol evidence is admissible to show a condition precedent to the existence of a contract.

Question 3

Decisions from a three-judge federal district court panel granting or denying injunctive relief CAN be appealed to the Supreme Court, but the appeal is _____ rather than through discretionary certiorari review.

Answer 3

Mandatory

Question 3

Is the 11th a bar if the action is against a state official and seeks prospective injunctive relief?

Answer 3

The Eleventh Amendment is not a bar. The Eleventh Amendment does not prohibit a federal court from hearing a claim for prospective injunctive relief against a state official.

Question 3

A case or controversy will exist in a suit seeking declaratory judgment if _____. Complainants must show that _____ and that _____.

Answer 3

there is an actual dispute between parties having adverse legal interests

they have engaged in (or wish to engage in) specific conduct

the challenged action poses a real and immediate danger to their interests

Question 3

A class action suit in which the named representative’s claim is moot can still be a case or controversy if _____.

Answer 3

some class members’ claims are viable.

Question 3

If the buyer became insolvent, the manufacturer could, under the U.C.C., require that . . .

Answer 3

the buyer pay cash upon delivery or give assurances of payment.

Question 4

Congress may eliminate _____ avenues for Supreme Court review as long as it _____.

Answer 4

specific

does not eliminate all avenues.

Question 4

In federal court, standing requires __________.

Answer 4

a concrete stake in the outcome.

A person has standing if she can demonstrate a concrete stake in the outcome of the controversy shown by an injury in fact—caused by the government—that can be remedied by a ruling in the plaintiff’s favor (i.e., causation and redressability).

Question 4

At least $75,000 in controversy is a requirement to _____.

Answer 4

establish diversity jurisdiction.

not standing

Question 4

The Contract Clause limits . . .

Answer 4

a state regarding legislation that retroactively impairs contract rights. The Contract Clause applies only to states, and only to legislation.

The choices involving a court making a ruling and private parties entering an agreement are incorrect, because a court ruling and a private agreement do not involve legislation.

Question 4

The Enabling Clause of the Fourteenth Amendment gives Congress the power to _____, but not to _____.

Answer 4

adopt legislation to enforce the rights and guarantees provided by the Amendment

expand or create rights

Question 4

A law adopted under the Enabling Clause in Section 5 of the Fourteenth Amendment will not be upheld unless Congress can point to a history or pattern of state violation of already recognized rights and the law is at least __________.

Answer 4

congruent and proportional to preventing or remedying the violation

Question 4

Laws enacted under the Enabling Clause of the Fourteenth Amendment must be _____. This standard is similar to the _____ test.

Answer 4

congruent and proportional to preventing or remedying the violation in question

intermediate scrutiny (“narrowly tailored”)

Question 4

under the M’Naghten rule, _______ is not a defense.

Answer 4

loss of control because of mental illness

Question 5

A law requiring less evidence to convict a person of a crime than that required at the time that the act was allegedly committed most likely is a violation of the _____.

Answer 5

Ex Post Facto Clause

Question 5

The Ex Post Facto Clause prohibits legislation that . . .

Answer 5

retroactively alters the criminal law in a substantially prejudicial manner so as to deprive a person of any right previously enjoyed for the purpose of punishing the person for some past activity. Requiring less activity to convict has been held to prejudicially alter the criminal law.

Question 5

Mere procedural changes in state law will not trigger the Ex Post Facto Clause if _____ and _____.

Answer 5

the defendant had notice of the possible penalty

the modified law does not increase the burden on the defendant

Question 5

The Thirteenth Amendment provides that . . .

Answer 5

slavery shall not exist in the United States, it empowers Congress to prohibit all acts that are considered “badges of slavery,” and it forbids private individuals from discriminating on the basis of race.

The Amendment applies to private as well as governmental action because it has no limiting language as to its effect. This is remarkable because most of the other constitutional limitations are solely on government action and are inapplicable to private citizens.

Question 5

The Thirteenth Amendment applies to . . .

Answer 5

The Amendment applies to private as well as governmental action because it has no limiting language as to its effect. This is remarkable because most of the other constitutional limitations are solely on government action and are inapplicable to private citizens.

Question 5

At common law, each person who took part in the planning of a crime was criminally liable for ______. However, if one of the conspirators “withdrew” from the criminal effort ______, he was not liable for _____. To successfully withdraw, the actor must _____; this must be done _____.

Answer 5

a. the crime of conspiracy and for each offense committed in furtherance of the conspiracyb. before the substantive crimes occurredc. the subsequent crimesd. notify all members of the conspiracy that he has withdrawne. in time for them to have an opportunity to abandon the planned crimes

Question 6

A deprivation of liberty (Due Process Clause) occurs if _____.

Answer 6

a person (i) loses significant freedom of action; or (ii) is denied a freedom provided by the Constitution or a statute.

Question 6

A person has a property interest in continuation of a government benefit if the person has _____.

Answer 6

a legitimate claim or entitlement to the benefit

The term property is broader here than personal belongings, realty, and chattels. But an abstract need or desire or a unilateral expectation of the benefit is not enough. There must be a legitimate claim or entitlement to the benefit based on state or federal law or policy.

Question 6

Because the Constitution generally prohibits only governmental infringements of individual rights, “state action” generally must be found to hold a particular deprivation of rights unconstitutional.

Purportedly private action be given state action status where _____.

Answer 6

Where the activities of a state and a private entity are greatly intertwined

Private activities will not be attributed to the state merely because a business is heavily regulated by the state, the state provides essential services to a private entity, or the state has granted a monopoly to a business.

Question 6

Under the rules the Supreme Court currently uses to determine whether an abortion regulation is valid _____.

Answer 6

, BEFORE viability, the government may not impose an undue burden on a woman’s ability to obtain an abortion.

The choices involving trimesters are incorrect. The Supreme Court formerly differentiated its approach to abortion regulation based on the trimester of pregnancy involved, but the Court no longer uses this approach.

Question 6

For equal protection purposes, the __________ standard is used to determine the constitutionality of a government action based on age.

Answer 6

rational basis

This is because age is not a suspect classification. Thus, discrimination will be upheld unless the challenger can show that it is not rationally related to a legitimate government interest.

Question 6

Under the rational basis test, discrimination will be upheld unless _____.

Answer 6

the challenger can show that it is not rationally related to a legitimate government interest.

Question 6

_____ applies to suspect classifications such as race, and intermediate scrutiny applies to _____ such as _____and_____. Recall that under those standards, _____usually has the burden of proof—_____ in the case of strict scrutiny, and in the case of intermediate scrutiny.

Answer 6

Strict scrutiny

quasi-suspect classifications

gender

legitimacy

the government

necessary to achieve a compelling interest

substantially related to an important government interest

Question 6

The federal government may/may not outlaw state-imposed literacy tests as a prerequisite to voting in a state election

Answer 6

may

Question 7

_____ is not itself sufficient to trigger strict or intermediate scrutiny on a claim that government action discriminates on the basis of a suspect or quasi-suspect classification.

Answer 7

Discriminatory effect

Question 7

Under the preemption doctrine federal laws can __________.

Answer 7

occupy an entire field and prevent any state laws in the field, whether conflicting or complementary

Question 8

Only _____ discrimination violates the Equal Protection Clause, and the mere fact that government action appears to have a discriminatory effect does not show a discriminatory intent.

Answer 8

intentional

Question 8

In order for the judgment of one jurisdiction to be given full faith and credit in another jurisdiction, the following requirements must be met . . .

Answer 8

1. The court that rendered the judgment must have had jurisdiction over the parties and the subject matter; 2. The judgment must have been on the merits, i.e., on the substance of the plaintiff’s claim rather than on a procedural issue, such as improper venue or running of the statute of limitations; and 3. The judgment must be final. NOTE: It is not required that a judgment be penal in nature

Question 9

_____ is are themselves sufficient to trigger strict or intermediate scrutiny on a claim that government action discriminates on the basis of a suspect or quasi-suspect classification.

Answer 9

facial discrimination
discriminatory application
discriminatory motive

Question 9

Before a state can sue the United States it . . .

Answer 9

as a consequence of sovereign immunity, a state may not sue the United States without obtaining consent. A state may sue the United States only with the consent of the United States.NOTE: A state may, however, sue another state without obtaining the state’s consent. Likewise, the United States can sue any state without obtaining the state’s consent.

Question 10

_____ can be proven even though the classification is not explicit and case example.

Answer 10

facial discrimination

For example, facial discrimination was found when a bizarrely drawn redistricting electoral map could not be explained in any way other than in terms of establishing a district in which racial minority persons would be the majority in the district.

Question 10

The doctrine of “field preemption” means that:

Answer 10

Under the doctrine of field preemption, federal laws can occupy an entire field and prevent any state laws in the field, whether conflicting or complementary. A state or local law may fail under the Supremacy Clause, even if it does not conflict with federally regulated conduct or objectives, if it appears that Congress intended to “occupy” the entire field, thus precluding any state or local regulation.

Question 11

Discriminatory application of a law or program to a certain individual or group of individual is sufficient to show discriminatory intent, even if _____. The classic example here is _____.

Answer 11

the program appears to be neutral on its face

a zoning ordinance that prohibits laundries in wooden buildings unless the owner is granted an exception, and exceptions are granted only to majority race members and denied to minority race members.

Question 11

What does the Fourteenth Amendment Privileges or Immunities Clause protect?

Answer 11

he Fourteenth Amendment Privileges or Immunities Clause prohibits states from denying their citizens the rights of national citizenship, such as the right to petition Congress for redress of grievances, the right to vote for federal officers, the right to enter public lands, the right to interstate travel, and any other right flowing from the distinct relation of a citizen to the United States Government.

Question 12

_____ that the government action has a discriminatory effect is not enough to show discriminatory intent or purpose.

Answer 12

Mere statistical evidence

Question 12

When the federal government acts within a state, the state ____________ impose non-discriminatory, indirect taxes on the federal government or its property _____________.

Answer 12

May; as long as they do not unreasonably burden the federal government

Question 13

__________ is not a fundamental right.

Answer 13

The right to international travel

Question 13

Redressibility is . . .

Answer 13

the part of standing that provides that a decision in the plaintiff’s favor must be able to remedy the harm.

Question 14

_____ all are considered fundamental rights, as are all other _____. Thus, government limitations on these rights, if challenged, generally will be held invalid unless _____.

Answer 14

The right to vote, the right of privacy, and the right of free speech

First Amendment rights

the government can prove that the limitation is necessary to achieve a compelling government interest (i.e., strict scrutiny).

Question 14

The federal courts will not hear a case unless the plaintiff can show a concrete stake in the outcome of the litigation.What is the name given to the standing concept that a decision in the plaintiff’s favor will eliminate the harm to the plaintiff?

Answer 14

Redressability

Question 15

The one person, one vote principle requires almost exact mathematical equality between _____. The standard for _____ districts is much more lenient than the almost exact mathematical equality standard. The variance from district to district may not be unjustifiably large, but a variance of even ____ has been found to be valid.

Answer 15

Congressional districts within a state

state and local government

16%

Question 15

Grant of a writ of certiorari requires the agreement of at least . . .

Answer 15

four justices

Question 16

_____are the three suspect classifications designated by the Supreme Court as requiring a strict standard of review (strict scrutiny) for a challenge to a government action or law on the basis of equal protection.

Answer 16

Race, national origin, and alienage

Question 16

Decisions from a three-judge federal district court panel granting or denying injunctive relief CAN be appealed to the Supreme Court, but the appeal is . . .

Answer 16

mandatory rather than through discretionary certiorari review.

Question 17

In determining whether punitive damages are excessive to the point of violating due process, what is important is whether _____. To this end, courts will consider _____ (factors).

Answer 17

the defendant had fair notice of the possible magnitude of the punitive damages arising from the defendant’s conduct

(i) The reprehensibility of the defendant’s conduct (e.g., whether the defendant caused physical harm rather than merely economic harm, whether the defendant acted with reckless disregard for harm, whether the conduct was repeated rather than isolated, and whether the harm resulted from intentional malice or deceit rather than from an accident);
(ii) The disparity between the actual or potential harm suffered by the plaintiff and the punitive award; and
(iii) The difference between the punitive damages award and the criminal or civil penalties authorized for comparable misconduct.

Question 17

A case holding that a state statute violates federal law is not appealable unless . . .

Answer 17

the case is being appealed from the highest state court.

Question 18

The First Amendment provides, among other things, that government may make no laws infringing the freedom of speech.
Under the First Amendment, a statute or ordinance that burdens speech based on its content generally must be __________ in order to pass constitutional muster.

Answer 18

necessary to serve a compelling state interest

Question 18

The Eleventh Amendment could bar a federal court from hearing an action for damages by _________ against __________.

Answer 18

A private party/ a state governmentAn action in federal court by a private party against a state is barred from being heard by a federal court under the Eleventh Amendment. The Eleventh Amendment does not bar actions against states by the United States Government or other state governments. Thus, an action by one state government against another is not barred from being heard by a federal court under the Eleventh Amendment. Nor would the Eleventh Amendment bar an action by the United States Government against a state government. An action by the United States Government against a local county is not barred from being heard by a federal court under the Eleventh Amendment. The Eleventh Amendment protects only state governments. Local governments (e.g., the government of cities or counties) are not protected. Furthermore, actions by the United States Government are not barred.

Question 19

The Supreme Court does not impose a bond requirement in every case seeking _____. The Court does impose a number of procedural safeguards to ensure that the restraint is justified, including _____.

Answer 19

a prior restraint

Standards must be narrowly drawn and definite; the restraining body must promptly seek an injunction; and there must be a prompt and final judicial determination of the validity of the restraint.

Question 19

Standing requires . . .

Answer 19

a concrete stake in the outcome of the suit comprised of an injury in fact and redressability. A citizen’s interest in seeing that the government acts constitutionally is too remote an interest on which to base standing.

Question 20

A prior restraint is _____.

Answer 20

any regulatory system, injunction, or other action by the government that serves to stop speech from reaching the public.

Question 20

Article III, Section 2 provides that . . .

Answer 20

The Supreme Court’s appellate jurisdiction is subject to such exceptions and regulations as Congress shall make.

Question 21

Courts are reluctant to allow prior restraints but may do so if the action is _____. There must be _____; otherwise our Constitution favors allowing the speech to join the marketplace of ideas.

3 examples of valid prior restraints are _____.

Answer 21

“narrowly drawn, reasonable, and definite.”

some special societal harm justifying the restraint

Maintaining discipline among troops and efficiency of operations on a military base is a sufficient interest on which to base a prior restraint. The Supreme Court, therefore, found that a base commander could require pre-approval of petitions to be circulated on the base.

A contractually agreed-to restraint between the government and an employee has also been found to be sufficient to justify the government’s requirement that a CIA agent allow the CIA to review a book he wrote regarding his job before it goes to print.

Obscenity is probably the most common justification for prior restraints.

Question 21

Congress may not take cases of the type traditionally heard by Article III courts and assign jurisdiction over them to Article I courts, because . . .

Answer 21

judges in such courts lack the protections of life tenure and against salary decreases that Article III judges enjoy (and so might be more likely to bend to outside pressure) and because some Article I judges also have administrative duties (which could raise separation of powers concerns if all Article III cases were heard by Article I judges).

Question 22

Material will be considered obscene if it meets a _____ part test that considers _____.
A _____ standard MAY be used to determine whether the material __________; a ______ MUST be used to determine whether the material __________.

Answer 22

three

whether the material appeals to the prurient interest in sex, portrays sex in a patently offensive way and lacks serious social value (serious literary, artistic, political, or scientific value).

contemporary community

national, reasonable person standard

appeals to the prurient interest in sex and portrays sex in a patently offensive way; lacks serious social value.

Question 22

An organization has standing to challenge government actions that cause an injury in fact to its members if the organization can demonstrate:

Answer 22

(i) An injury in fact to the members of the organization that would give individual members a right to sue on their own behalf; (ii) The injury to the members must be related to the organization’s purpose; and (iii) Neither the nature of the claim nor the relief requested requires participation of the individual members in the lawsuit.

Question 23

The Supreme Court has defined obscenity as . . .

Answer 23

a description or depiction of sexual conduct that, taken as a whole, by the average person, applying contemporary community standards,

(i) Appeals to the prurient interest in sex,
(ii) Portrays sex in a patently offensive way, and
(iii) Does not have serious literary, artistic, political, or scientific value.

Material designed for a clearly defined deviant sexual group is not part of the Supreme Court’s definition of obscenity.

Material that incites lust is also not part of the definition insofar as lust may include a normal interest in sex.

Question 23

Cases by three-judge federal district court panels that grant or deny injunctive relief fall within the ________ jurisdiction of the Supreme Court.

Answer 23

mandatory appellate jurisdiction

Question 24

To be valid, a time, place, and manner regulation of a limited public forum must be __________.

Answer 24

viewpoint neutral and rationally related to a legitimate government purpose

regulation of a limited public forum can be based on content, but it must not be based on viewpoint. For example, a school gym might be opened to the public to host a debate on a specific issue (e.g., whether the city should grant a permit to an abortion clinic). The school can prohibit people from raising other issues (e.g., whether the city needs new storm sewers) to regulate the content in the open forum during the debate, but the school cannot allow people against the clinic to speak while prohibiting those in favor from speaking, because that would not be viewpoint neutral.

Question 24

Cases from the highest state court that question the constitutionality of a federal treaty or statute, or a state statute _do/do not__fall within the mandatory appellate jurisdiction of the Supreme Court.

Answer 24

do notSuch cases may be appealed to the Supreme Court by writ of certiorari, but jurisdiction is within the Court’s discretion.

Question 25

As used by the Supreme Court in First Amendment cases, a(n) __________ prohibits substantially more speech or speech-related conduct than is necessary to achieve a legitimate government interest.

Answer 25

Overbroad regulation

Question 25

Cases from federal courts of appeal _do/do not__fall within the mandatory appellate jurisdiction of the Court.

Answer 25

do notJurisdiction in such cases is within the Court’s discretion.

Question 26

As used by the Supreme Court in First Amendment cases, an overbroad regulation prohibits _____.

Answer 26

substantially more speech or speech-related conduct than is necessary to achieve a legitimate government interest. An overbroad regulation that prohibits a substantial amount of protected speech, judged in relation to the regulation’s plainly legitimate sweep, is facially invalid and may not be enforced against anyone. However, if a regulation is not substantially overbroad, it can be enforced against persons engaging in activities that are not constitutionally protected.

Question 26

A political question is . . .

Answer 26

an issue committed to another branch of the federal government, and a federal court will not review such an issue. Political questions also include issues inherently incapable of resolution and enforcement by the judicial process.

Question 27

An overbroad regulation that prohibits _____, judged in relation to the regulation’s _____, is _____ and, therefore _____. However, if a regulation is not substantially overbroad, it can be enforced against _____.

Answer 27

a substantial amount of protected speech

plainly legitimate sweep

facially invalid

may not be enforced against anyone

persons engaging in activities that are not constitutionally protected

Question 27

Abstention is . . .

Answer 27

the concept that a federal court will not review a claim because it is based on an unsettled question of state law, involves a pending state criminal proceeding, or involves a pending state civil or administrative proceeding that concerns an important state interest. Under the doctrine of strict necessity, the federal courts will allow the state to decide the issue first, possibly avoiding the need for litigation in the federal court. Abstention does not involve an issue committed to another branch of the federal government.

Question 28

A vague regulation is _____ and will be held void for that reason. The concern is that _____.

Answer 28

one that does not give people reasonable notice of what speech or speech-related conduct is prohibited

if a person is afraid to speak because he does not know what is unlawful, constitutionally protected speech will be curtailed as well.

Question 28

Standing involves the claimant demonstrating . . .

Answer 28

a concrete stake in the outcome of a case.

Question 29

A law or government program must be _____ if it includes a preference for some religious groups over others. Government actions that include sect preferences must meet a ____ standard to be valid under the Establishment Clause.

Answer 29

narrowly tailored to serve a compelling government interest

strict scrutiny

Question 29

The Eleventh Amendment is . . .

Answer 29

a jurisdictional bar that modifies the judicial power by prohibiting a federal court from hearing a private party’s or foreign government’s claims against a state government.

Question 30

The employer may ask about _____ (membership). This is allowed because _____.

Answer 30

membership in any organization relevant to the employee’s position

the disclosure has a sufficient relationship to loyalty and competence.

Question 30

he Supreme Court will refuse to hear a case from a state’s highest court if __________.

Answer 30

Adequate and independent state grounds support the state court decisionIf the state grounds are fully dispositive of the case and do not depend on federal case law interpretation, federal review would be pointless because regardless of how any federal issue is resolved, the state law grounds would support the state judgment. But if the state grounds are not adequate to support the judgment or are not independent of federal law, the federal courts will hear the case.

Question 31

Regulations of core political speech are upheld if the __________ can show that they __________.

Answer 31

Government; are necessary to achieve a compelling government interest

Question 31

At least $75,000 in controversy is not a standing requirement. It is a requirement to . . .

Answer 31

establish diversity jurisdiction.

Question 32

Narrowly tailored to serve an important interest is a test for which standard?

Answer 32

intermediate scrutiny standard.

Question 32

Is an economic injury required for standing in federal court?

Answer 32

An economic injury is not required for standing in federal court. An impact on a person’s well-being or enjoyment of the environment has been found by the Supreme Court to be sufficient harm for standing.

Question 33

In Establishment Clause cases, the courts usually use the _____ part _____ test. The test is . . .

Answer 33

3

Lemon

1. The action has a secular purpose,
2. The action has a primary effect that neither advances nor inhibits religion, and
3. The action does not produce excessive government entanglement with religion.

Question 33

The Supreme Court must hear cases . . .

Answer 33

that come to it by appeal (i.e., mandatory jurisdiction). Mandatory appeal is available as to decisions made by three-judge federal district court panels that grant or deny injunctive relief.

Question 34

A government employer may ask a prospective employee about membership in any organization _____.

Answer 34

sufficiently relevant to the loyalty and competence of the prospective employee.

Question 34

The Supreme Court has complete discretion (but is not required) to hear cases that come to it by writ of certiorari. The following cases may be heard by certiorari:

Answer 34

(i) Cases from the highest state courts where (a) the constitutionality of a federal statute, federal treaty, or state statute is called into question; or (b) a state statute allegedly violates federal law; and (ii) All cases from federal courts of appeals.

Question 35

Although the Free Exercise Clause protects the freedom of belief, perhaps absolutely, a court may assess whether a person who says he acted based upon religious beliefs _____.

The Free Exercise Clause prohibits the courts from assessing the _____ of a particular religion’s beliefs.

Answer 35

actually held the beliefs claimed

For example, if a person says that he performed an act because “God told him to,” a court may assess whether the person really believes that “God told him to” so act.

veracity

Many religious beliefs are a matter of faith rather than fact, and the Free Exercise Clause prohibits the courts from weighing in on matters of faith.

Question 35

Federal taxes must be . . .

Answer 35

uniform among the states.NOTE: The federal taxing power does NOT allow Congress to tax exports. Neither Congress nor the state can tax exports to foreign countries.

Question 36

The Free Exercise Clause would prohibit the courts from requiring litigants to swear an oath on the Bible, although litigants may be _____.

Answer 36

permitted to so swear or given the choice to swear or affirm.

Question 36

Congress’s property power includes the power to legislate for . . .

Answer 36

the general welfare regarding federal property and territories. The power to legislate for the general welfare (e.g., the health, safety, and morals of the people) is called the general police power. The federal government is a government of limited powers and does not have a general police power. Instead, the general police power belongs to the states. However, the federal government does have police powers over federal lands and territories, military bases, and Indian territories.The property power includes both the power to dispose of property and the power of eminent domain.

Question 37

Religiously neutral laws of general applicability generally are valid under the Free Exercise Clause without religious exemptions with two historic exceptions _____.

Answer 37

The Amish must be exempted from mandatory schooling beyond eighth grade, and workers fired for refusing to perform tasks on religious grounds may not automatically be exempted from unemployment compensation.

Question 37

In Wickard v. Filburn (1942), Congress’s power to regulate interstate commerce was found by the Supreme Court to extend to local activities that by themselves or in combination with other activities have a “substantial economic effect upon,” or “effect on movement in,” interstate commerce.Under the “substantial economic effect” test, may Congress regulate local economic or commercial local activities?

Answer 37

Yes, if the court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce

Question 38

The First Amendment protects not only the freedoms of speech and religion, but also the freedom of _____ and the _____. These rights may be unconstitutionally burdened by a required loyalty oath that is _____. However, the Supreme Court has found that a loyalty oath requiring the affiant to support the Constitution is not _____ because it does not prohibit constitutionally protected activities and it is not _____.

Answer 38

belief

right to associate

overbroad or vague

overbroad

vague

Question 38

Under the affectation doctrine, if the activity regulated is not economic or commercial, it will be upheld only if . . .

Answer 38

Congress can factually show a substantial economic effect on interstate commerce. However, if the activity regulated is economic or commercial, such a showing by Congress is not necessary.

Question 39

When may Congress deny an enemy combatant habeas corpus review in an Article III court?

Answer 39

If there has been a meaningful substitute review

Question 40

A congressional tax generally will be upheld as long as . . .

Answer 40

it either bears some reasonable relationship to revenue production or the subject of the tax is within Congress’s enumerated powers.

Question 41

It is true that the President lacks the power to declare war but may . . .

Answer 41

unilaterally commit troops in actual hostilities.

Question 42

The power to declare war rests with . . .

Answer 42

Congress

Question 43

The Youngstown framework:

Answer 43

(i) Where the President acts with the express or implied authority of Congress, his authority is at its maximum and his actions likely are valid; (ii) Where the President acts where Congress is silent, his action will be upheld as long as the act does not take over the powers of another branch of the government or prevent another branch from carrying out its tasks; and (iii) Where the President acts against the express will of Congress, he has little authority and his action likely is invalid, at least if Congress has acted constitutionally.

Question 44

Treaties require . . .

Answer 44

the advice and consent of the Senate

Question 45

Presidential documents and conversations are __________ privileged, but the needs of __________ can outweigh the President’s executive privilege to prevent their disclosure.

Answer 45

Presumptively; the criminal justice system

Question 46

Both houses of Congress pass a bill and send it to the President for his signature.If the President does not sign a bill within 10 days, it:

Answer 46

Is vetoed if Congress is not in session (“pocket veto.” )If Congress is in session, an unsigned bill is not vetoed.

Question 47

In determining whether a federal program impliedly preempts the entire filed, courts often do consider:

Answer 47

(i) Whether preemption was the clear and manifest purpose of Congress; (ii) The comprehensiveness of the federal program or existence of a federal agency; and (iii) Whether the field regulated is traditionally within the power of the states.

Question 48

The negative implications (also called Dormant Commerce Clause) generally prohibit states from . . .

Answer 48

discriminating against out-of-state business or unduly burdening interstate commerce.

Question 49

The power to regulate interstate commerce is NOT exclusively federal; states DO have power to regulate aspects of interstate commerce, as long as they . . .

Answer 49

do not discriminate against out-of-state business or unduly burden interstate commerce and Congress has not preempted the field of regulations.

Question 50

It is true that a state tax may discriminate against interstate commerce if . . .

Answer 50

Congress authorizes the tax. Although the states generally are prohibited from imposing a tax that discriminates against interstate commerce, Congress may do so and may authorize the states to do so. Congress MAY prohibit the states from taxing a particular aspect of interstate commerce. The power to regulate interstate commerce is delegated to Congress under Article 2. When combined with the Supremacy Clause, the power includes the power to bar states from taxing aspects of interstate commerce that Congress does not want to be taxed. Finally, as indicated above, a state tax will be subjected to a balancing test (local benefit must outweigh burden on interstate commerce) if Congress has not acted and the state tax does not discriminate against interstate commerce.

Question 51

What is the standard for determining whether a nondiscriminatory state law that burdens interstate commerce will be upheld?

Answer 51

The law will be upheld if the burden on interstate commerce does not outweigh the promotion of legitimate local interests.A nondiscriminatory state law will be upheld under the negative implications of the Commerce Clause if the burden on interstate commerce does not outweigh the promotion of legitimate local interests. This is a balancing test.

Question 52

A sales tax and a use tax are . . .

Answer 52

Both sales taxes and use taxes may be valid under the Commerce Clause. A sales tax is a tax on sales made within a state, and a use tax is a tax on goods purchased out of state and brought into the state for use. Sales taxes generally do not discriminate against interstate commerce and are valid. Use taxes generally will not be held to discriminate against interstate commerce if they merely seek to equalize taxes on goods purchased out of state with those purchased within the state.

Question 53

The Twenty-First Amendment allows states to:

Answer 53

broadly control importation of liquor and the conditions under which liquor is sold or used within the state. States may even prohibit liquor sales within their borders. However, state liquor regulations that constitute only an economic preference for local liquor manufacturers may violate the Commerce Clause. Thus, a state could not prohibit out-of-state sellers from directly shipping to customers within the state while allowing in-state suppliers to do so. Despite the Twenty-First Amendment, a state may NOT adopt a law giving an economic preference to local liquor distributors over out-of-state distributors. Such a law would violate the Commerce Clause, and, as mentioned above, the Twenty-First Amendment does not trump the Commerce Clause. A state also may NOT prohibit interstate shipments of liquor to pass through the state. Although the Twenty-First Amendment gives the states wide latitude to regulate liquor sales, as discussed above, the states still may not violate the Commerce Clause. Prohibiting interstate shipments from traveling through a state unduly burdens interstate commerce in violation of the Commerce Clause.

Question 54

If Congress has not enacted laws with regard to a specific area of interstate commerce, a state may regulate a local aspect of this interstate commerce:

Answer 54

When the state’s regulation does not discriminate against out-of-state competition and the regulation does not unduly burden interstate commerce

Question 55

Regulations of core political speech are upheld if the __________ can show that they __________.

Answer 55

Government; are necessary to achieve a compelling government interest

Question 56

T/F. A law or government program that contains a preference for some religious sects over others must be necessary to serve an important government interest.

Answer 56

F

It must be narrowly tailored to serve a compelling government interest

Question 57

T/F. A requirement that a government employee take a loyalty oath “to support the Constitution of the United States” is valid under the First Amendment.

Answer 57

T

Question 58

T/F. A government employer may ask a prospective employee about membership in any organization sufficiently relevant to the loyalty and competence of the prospective employee

Answer 58

T

Question 59

Laws regulating the electoral process might impact on First Amendment rights of ______. What is the test the SC uses in determining whether a regulation of the electoral process is valid?

Answer 59

speech, assembly, and association

balancing test

if the restriction on First Amendment activities is severe, it will be upheld only if it is narrowly tailored to achieve a compelling interest, but if the restriction is reasonable and nondiscriminatory, it generally will be upheld on the basis of the states’ important regulatory interests.

Question 60

T/F. Posting of the Ten Commandments in a public school pursuant to legislature’s declaration that the posting is for a secular purpose is valid under the Establishment Clause.

Answer 60

F

Question 61

T/F. A voluntary moment of silent prayer or meditation at the beginning of the schoolday is valid under the Establishment Clause.

Answer 61

F

Question 62

T/F. A school policy whereby students themselves decide whether to hold a student invocation ceremony prior to athletic events is valid under the Establishment Clause.

Answer 62

F

Question 63

Under the Supreme Court’s balancing test for the validity of a regulation of the electoral process, if the limitation on First Amendment activities is severe, the regulation will be upheld only if _____.

Answer 63

Only if narrowly tailored to achieve a compelling interest

Question 64

A law or government program that contains a preference for one or some religious groups over others will be invalid unless __________.

Answer 64

it is narrowly tailored to serve a compelling government interest

Question 65

Under current Supreme Court precedent, the First Amendment Free Exercise Clause prohibits government from _____.

Answer 65

from punishing conduct just because it is religious

Question 66

T/F. Religiously neutral laws of general applicability generally are valid under the Free Exercise Clause without religious exemptions.

Answer 66

T

2 exceptions the Amish must be exempted from mandatory schooling beyond eighth grade, and workers fired for refusing to perform tasks on religious grounds may not automatically be exempted from unemployment compensation.

Question 67

A state law that excluded pursuit of a degree in devotional theology from a college scholarship program for all students violates the Free Exercise Clause.

Answer 67

F. Did not violate.

Although a school could provide such scholarships without violating the Establishment Clause (see infra), the Free Exercise Clause does not require such scholarships. The exclusion from scholarship eligibility does not show animus toward religion, but rather merely reflects a decision not to fund this activity. Moreover, the burden that the exclusion imposes on religion is modest, and there is substantial historical support against using tax funds to support the ministry. [Locke v. Davey, 540 U.S. 712 (2004)]

Question 68

The Free Exercise Clause cannot be used to challenge a law of general applicability unless _____.

Answer 68

it can be shown that the law was motivated by a desire to interfere with religion.

The Supreme Court has held that no religious exemption was required from the following religiously neutral regulations, even though certain groups objected because the regulation interfered with conduct inspired by sincerely held religious beliefs:

1) Prohibition against use of peyote;
2) Denial of tax exempt status to schools that discriminate on the basis of race [Bob Jones University v. United States, 461 U.S. 574 (1983)—challenged by religious school whose tenets require certain separations of races];
3) Requirement that employers comply with federal minimum wage laws [Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985)—challenged by employer that argued minimum wages interfere with members’ religious desires to work without compensation];
4) Requirement that employers pay Social Security taxes [United States v. Lee, 455 U.S. 252 (1982)—challenged by person whose religious beliefs prohibited payment and receipt of Social Security type payments]; and
5) Sales and use taxes [Jimmy Swaggart Ministries v. Board of Equalization of California, 493 U.S. 378 (1990)—challenged as applied to sales of goods and literature by religious group].

Question 69

T/F. A state can deny unemployment compensation merely because the applicant quit a job rather than work on a “holy day” on which religious beliefs forbid work.

Answer 69

F. They cannot.

religious exemption to rule of general applicability; free exercise clause

Question 70

T/F. A state cannot deny unemployment compensation merely because the applicant quit his job rather than work on production of military equipment after his factory converted from nonmilitary to military production.

Answer 70

T

religious exemption to rule of general applicability; free exercise clause

Question 71

T/F. A person does not have to be a member of a formal religious organization to receive the exemptions from unemployment compensation requirements.

Answer 71

T

All that is required is that the person sincerely hold religious beliefs that prevent him from working on a certain day or on military products.

Question 72

T/F. A person was fired from his job as a counselor at a private drug abuse clinic when it was discovered that he used peyote (at times when he was not at work) for religious reasons. All use of peyote was illegal in the state (even if the use was part of a religious ceremony). The Supreme Court held that unemployment compensation could properly be denied here.

Answer 72

T

The unemployment compensation cases do not give individuals a right to disregard criminal laws due to their religious beliefs. Thus, unemployment compensation laws may disqualify persons fired for “misconduct” (which includes any violation of criminal law).

Question 73

What test does the SC use when determining the validity of government action under the Establishment Clause when no sect preference is involved

Answer 73

Lemon

Question 74

Any regulatory system, injunction, or other action by the government that serves to stop speech from reaching the public is called __________.

Answer 74

prior restraint

Question 75

What is a public forum and a designated public forum and what is the test for government regulation to be valid?

Answer 75

Public property that has historically been open to speech-related activities (e.g., streets, sidewalks, and public parks) is called a public forum. Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or limited basis, by practice or policy (e.g., school rooms that are open for after-school use by social, civic, or recreation groups), is called a designated or limited public forum. The government may regulate speech in public forums and designated public forums with reasonable time, place, and manner regulations.

To be valid, government regulations of speech and assembly in public forums and designated public forums must:

(i) Be content neutral (i.e., subject matter neutral and viewpoint neutral);
(ii) Be narrowly tailored to serve an important government interest; and
(iii) Leave open alternative channels of communication.

Remember: Even if a regulation meets the above conditions, it might still be struck down on other grounds.

Question 76

Why did the Court hold invalid an ordinance allowing peaceful labor picketing near schools, but prohibiting all other picketing?

Answer 76

since it was a content-based restriction in a public forum. [Chicago Police Department v. Mosely, 408 U.S. 92 (1972)]

Question 77

A law may not forbid only those signs within 500 feet of a foreign embassy that are critical of the foreign government because _____.

Answer 77

content based restriction in a public forum

Question 78

A law requiring persons performing at a city’s theater to use the city’s sound equipment is permissible because ______.

Answer 78

A law requiring persons performing at a city’s theater to use the city’s sound equipment is narrowly tailored to the city’s interest in preventing excessive noise.

Question 79

To prevent fraud, an ordinance prohibited all canvassers from going onto private residential property to promote any cause without first obtaining a permit was not permissible because _____.

Answer 79

it was not narrowly tailored to the interest of preventing fraud because it included too much speech that was not likely to give rise to fraud (e.g., religious proselytization, advocacy of political speech, and enlisting support for unpopular causes). [Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150 (2002)]

Note: A regulation that is not narrowly tailored might also fail on overbreadth grounds

Question 80

A state law prohibited persons within 100 feet of a health care facility from approaching within eight feet of those seeking access to the health care facility for purposes of oral protest, education, or counseling. Permissible?

Answer 80

The Court found that the law was a content-neutral regulation of speech and a reasonable time, place, and manner restriction that served the important interest of preserving access to health care facilities. [Hill v. Colorado, 530 U.S. 703 (2000)—statute upheld against challenge by petitioners who wished to “counsel” women as they enter abortion clinics]

Question 81

What are limited public forums and non public forums and what is the test?

Answer 81

Other than streets, sidewalks, parks, and designated public forums, most public property is considered to be a limited public forum (e.g., government property opened up for expressive activities on a particular topic, such as a school gym opened on a particular night to host a debate on a particular topic) or a nonpublic forum. The government can regulate speech in such forums to reserve them for their intended use. Regulations will be upheld if they are:

(i) Viewpoint neutral; and
(ii) Reasonably related to a legitimate government purpose.

Question 82

T/F. Regulations on speech in nonpublic forums need not be content neutral; i.e., the government may allow speech regarding some subjects but not others.

Answer 82

T

Question 83

What’s the difference b/w viewpoint neutral and content neutral?

Answer 83

Regulations on speech in nonpublic forums need not be content neutral; i.e., the government may allow speech regarding some subjects but not others. However, such regulations must be viewpoint neutral; i.e., if the government allows an issue to be presented in a nonpublic forum, it may not limit the presentation to only one view.
Example: If a high school newspaper is a nonpublic forum, a school board could decide to prohibit articles in the paper regarding nuclear power. However, it may not allow an article in favor of nuclear power and prohibit an article against nuclear power.

Similarly, the government may discriminate based on the identity of the speaker in nonpublic forums (e.g., a school board might limit speakers to licensed teachers).

Question 84

T/F. The government may discriminate based on the identity of the speaker in nonpublic forums.

Answer 84

T

e.g., a school board might limit speakers to licensed teachers

Question 85

Why can a city constitutionally sell space for signs on the public buses for commercial and public service advertising while refusing to sell space for political or public issue advertising in order to minimize the appearance of favoritism and the risk of imposing on a captive audience.

Answer 85

city bus is not a public forum

need only be rationally related to a legitimate governmental objective and viewpoint neutral

Question 86

If a high school newspaper is a nonpublic forum, a school board could decide to prohibit articles in the paper regarding nuclear power. However, it may not allow an article _____.

Answer 86

in favor of nuclear power and prohibit an article against nuclear power

viewpoint neutral

Question 87

T/F. Military bases are public forums.

Answer 87

F

Military bases are not public forums; thus, on-base speech and assembly may be regulated, even during open houses where the public is invited to visit. [See United States v. Albertini, 472 U.S. 675 (1985)] However, if the military leaves its streets open as thoroughfares, they will be treated as public forums. [Flower v. United States, 407 U.S. 197 (1972)]

Question 88

T/F. Generally, schools and school-sponsored activities are not public forums.

Answer 88

T

Thus, speech (and association) in schools may be reasonably regulated to serve the school’s educational mission.

Question 89

T/F. Schools can control the content of student speeches or student newspapers for legitimate pedagogical concerns.

Answer 89

T

Generally, schools and school-sponsored activities are not public forums. Thus, speech (and association) in schools may be reasonably regulated to serve the school’s educational mission.
Examples: 1) Schools can control the content of student speeches or student newspapers for legitimate pedagogical concerns. [See, e.g., Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)—student suspended for sexually explicit speech at school assembly] Similarly, a school may prohibit student speech that may be interpreted as advocating or celebrating the use of illegal drugs (“BONG HiTS 4 JESUS”) during a school-supervised activity (e.g., a field trip). [Morse v. Frederick, 551 U.S. 393 (2007)]

Question 90

Why could a law school could deny funding to group that limited membership to persons who were willing to sign a statement of faith based on Christianity and excluded persons who supported homosexuality and premarital sex?

Answer 90

Generally, schools and school-sponsored activities are not public forums. Thus, speech (and association) in schools may be reasonably regulated to serve the school’s educational mission.

Question 91

T/F. A school was forbidden to prohibit the wearing of black armbands in the school (to protest government policies), because that prohibition was designed to suppress communication, i.e., not related to regulatory interest. [Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)]

Answer 91

T

even though school is non public forum.

Question 92

T/F. Neither a government workplace (including a court building and its grounds) nor a government-controlled charity drive constitutes a public forum.

Answer 92

T

Question 93

T/F. The government may conduct an annual fundraising drive that includes some charities but excludes others on some ideologically neutral basis (e.g., all charities that lobby).

Answer 93

T

However, it cannot exclude a charity merely because it disagrees with the organization’s political views. [Cornelius v. NAACP Legal Defense and Education Fund, Inc., 473 U.S. 788 (1985)]

Neither a government workplace (including a court building and its grounds) nor a government-controlled charity drive constitutes a public forum.

Question 94

T/F. In a public forum, the government can restrict the ability to participate in public speech on the basis of union membership.

Answer 94

F

Thus, the Court has held that a teacher cannot be constitutionally prohibited from speaking at a meeting of the school board that was open to the public. [City of Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission, 429 U.S. 167 (1976)]

Question 95

T/F. Sidewalks on postal service property are not public forums.

Answer 95

T

Although sidewalks generally are public forums, sidewalks on postal service property are not public forums.

Question 96

T/F. Airport terminals operated by a public authority are not public forums.

Answer 96

T

Thus, it is reasonable to ban solicitation within airport terminals, since it presents a risk of fraud to hurrying passengers. [International Society of Krishna Consciousness v. Lee, 505 U.S. 672 (1992)] However, it is not reasonable to ban leafletting within multipurpose terminals having qualities similar to a shopping mall [Lee v. International Society of Krishna Consciousness, 505 U.S. 830 (1992)]; although such leafletting can still be subject to reasonable time, place, and manner regulations.

Question 97

A public television station debate for congressional candidates from major parties or who have strong popular support is not a “_____” because _____.

Answer 97

public forum
such debates are not open to a class of speakers (e.g., all candidates), but rather to selected members of the class. Exclusion of candidates who are not from a major party and who lack popular support is permissible because these criteria are (i) viewpoint neutral and (ii) reasonable in light of the logistics for an educationally valuable debate. [Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998)]

Question 98

T/F. A letter/mailbox at a business or residence is a public forum.

Answer 98

F
A letter/mailbox at a business or residence is not a public forum. Thus, the government may prohibit the placing of unstamped items in post boxes to promote efficient mail service. [United States Postal Service v. Council of Greenburgh Civic Association, 453 U.S. 114 (1981)]

Question 99

T/F. In determining whether material appeals to a prurient interest in sex, a community standard may be used.

Answer 99

T

Question 100

T/F. Obscenity is protected speech.

Answer 100

F

Question 101

The Court has defined “obscenity” as a description or depiction of sexual conduct that, _______,______.

Answer 101

taken as a whole, by the average person, applying contemporary community standards:

(i) Appeals to the prurient interest in sex;
(ii) Portrays sex in a patently offensive way; and
(iii) Does not have serious literary, artistic, political, or scientific value—using a national, reasonable person standard, rather than the contemporary community standard.

Question 102

T/F. Only insensitive adults may be included in determining contemporary community standards for obscenity, but children may not be considered part of the relevant audience.

Answer 102

F. sensitive too

Question 103

T/F. A statewide standard is mandatory for obscenity.

Answer 103

F

A statewide standard is permissible but not mandatory. A juror may draw on knowledge of the community or vicinity from which he comes, and the court may either direct the jury to apply “community standards” without specifying the “community,” or define the standard in more precise geographic terms. [Hamling v. United States, 418 U.S. 87 (1974); Jenkins v. Georgia, 418 U.S. 153 (1974)]

Question 104

In determining whether a regulation of commercial speech is valid, the test to apply is _____.

Answer 104

it may be easiest to think about this as an initial question followed by a three-step inquiry. First, determine whether the commercial speech concerns a lawful activity and is not misleading or fraudulent. Speech proposing an unlawful transaction (e.g., “I will sell you this pound of heroin for X dollars”) and fraudulent speech may be outlawed. If the speech regulated concerns a lawful activity and is not misleading or fraudulent, the regulation will be valid only if it:

(i) Serves a “substantial” government interest;
(ii) “Directly advances” the asserted interest; and
(iii) Is narrowly tailored to serve the substantial interest. This part of the test does not require that the “least restrictive means” be used. Rather, there must be a reasonable fit between the legislation’s end and the means chosen. [Board of Trustees of State University of New York v. Fox, 492 U.S. 469 (1989)]
ex. A city could not prohibit the use of newsracks on sidewalks for the distribution of commercial publications (such as free publications advertising products or real estate for sale) if the city allowed sidewalk newsracks for the distribution of newspapers. There is no “reasonable fit” between the category of commercial speech and any substantial interest. Commercial newsracks do not cause any physical or aesthetic harm different from that caused by newspaper newsracks.

Question 105

Complete bans on truthful advertisement of lawful products are very unlikely to be upheld due to a lack of _____.

Answer 105

tailoring (commercial speech)

If the speech regulated concerns a lawful activity and is not misleading or fraudulent, the regulation will be valid only if it:

(i) Serves a “substantial” government interest;
(ii) “Directly advances” the asserted interest; and
(iii) Is narrowly tailored to serve the substantial interest. This part of the test does not require that the “least restrictive means” be used. Rather, there must be a reasonable fit between the legislation’s end and the means chosen. [Board of Trustees of State University of New York v. Fox, 492 U.S. 469 (1989)]

Thus, the Court has struck down total bans against advertising:

(i) Legal abortions;
(ii) Contraceptives;
(iii) Drug prices;
(iv) Attorneys’ services; and
(v) Liquor prices.

Question 106

Commercial speech is protected largely because of its value to consumers. Thus, the government may require commercial advertisers to make certain disclosures if _____

Answer 106

they are not unduly burdensome and they are reasonably related to the state’s interest in preventing deception.

If the speech regulated concerns a lawful activity and is not misleading or fraudulent, the regulation will be valid only if it:

(i) Serves a “substantial” government interest;
(ii) “Directly advances” the asserted interest; and
(iii) Is narrowly tailored to serve the substantial interest. This part of the test does not require that the “least restrictive means” be used. Rather, there must be a reasonable fit between the legislation’s end and the means chosen. [Board of Trustees of State University of New York v. Fox, 492 U.S. 469 (1989)]

Question 107

T/F. It is not necessary that the regulation be the least restrictive method of achieving the governmental interest in order for a court to uphold a regulation affecting speech in a public or designated public forum.

Answer 107

T

Is narrowly tailored to serve the substantial interest. This part of the test does not require that the “least restrictive means” be used. Rather, there must be a reasonable fit between the legislation’s end and the means chosen. [Board of Trustees of State University of New York v. Fox, 492 U.S. 469 (1989)]