Exam

Question 1

Acceptable commercial speech

regulations (4 basic kinds)

Answer 1

(1) Illegal activity regulations
(2) Regulation against false, deceptive,
misleading material
(3) Regulation against inherent risk of
deception (like in-person lawyer solicitation)
(4) Other government interests may rise to
this level, case-by-case

Question 2

Categorizations falling under

Rational Basis

Answer 2

Everything that isn’t gender,
non-marital children, race,
national origin, alienage

Question 3

Accommodation Theory

Answer 3

The Court should recognize the importance of
religion in society and accommodate its
presence in government.
The government violates the Establishment
Clause only if it literally establishes a church or
coerces religious participation.

Question 4

Categorizations falling under

Strict Scrutiny

Answer 4

Race, National Origin

Question 5

Balancing test for whether
organization may discriminate
to vindicate their rights to free
association (Jaycees and Boy
Scouts)

Answer 5

(1) How selective is the group? Private, intimate
associations may discriminate more. The more
public your membership, the less you can
discriminate.
(2) Will being prohibited from discriminating
affect the purpose of the organization? (Like the
KKK admitting non-white males)

Question 6

Campaign Finance Exception to
rule re. disclosure chilling free
association (Reason for
exception and sub-exception)

Answer 6

There is a compelling government interest to
prevent corruption and the public needs to
know where the candidates get funding.
Exception: Where there is reason to believe
the disclosure will chill contributions to a
minor party or candidate.

Question 7

Categorizations falling under Intermediate Scrutiny

Answer 7

Gender, Non-marital children,

alienage

Question 8

City of Cleburne holding re. level of scrutiny applied to mentally retarded

Answer 8

Laws impacting the mentally
retarded are not to be given
heightened constitutional
scrutiny.

Question 9

Collateral bar rule (as reason prior restraints are especially problematic)

Answer 9

A person charged with violating an unconstitutional prior
restraint may still be punished.
A court order (the restraint) must be obeyed until it’s set
aside and you cannot defend against a contempt charge
by saying it was unconstitutional.
Prior restraints therefore prevent speech from ever
entering the marketplace

Question 10

Compelled Association re. Unions (Abood)

Answer 10

Unions can compel labor dues for administrative
costs because nobody would pay for the union if
they could benefit without paying dues.
Counterpoint: Money is fungible so any support,
even when not commingled, may end up
supporting the entire group.

Question 11

Definition of “General

applicability” re. religion (Smith)

Answer 11

Object of law is not to prohibit
religious practices by a certain
group

Question 12

Definition of “Neutral law” re.

religion (Smith)

Answer 12

Object of law is not to infringe

or prohibit religious practice

Question 13

Definition of religion (3 part test)

Answer 13

(1) Must be a sincerely held belief
(2) Which plays a role which occupies
the space of religion in a person’s life
(ethics/philosophy)
(3) Don’t need to follow the established
rules of a sect to claim affiliation with a
particular religion

Question 14

Examples of Unconstitutional

types of gender classifications

Answer 14

(1) Statutes presuming greater male
competency (Reed)
(2) Statutes presuming women are
dependent
(3) Statutes presuming gender bias
(peremptory challenges)

Question 15

Exception to general rule that
government cannot regulate
merely profane or indecent
language…

Answer 15

From FCC v. Pacifica Foundation
- the government may regulate
merely indecent or profane
language over the broadcast
media.

Question 16

Fighting words test (Chaplinsky

and Cohen)

Answer 16

Words which by their very utterance
inflict injury or tend to incite an
immediate breach of the peace. Cohen
limited the doctrine by requiring the
words be directed toward a specific
person and be likely to provoke a violent
response

Question 17

Government as speaker General

Rule

Answer 17

If the government is speaking,
they're allowed to be subjectmatter
based but not viewpoint
based. (National Endowment for
the Arts)

Question 18

The government can pass a law
punishing/prohibiting
membership only if…

Answer 18

(1) It proves that a person actively
affiliated with a group
(2) knowing of its illegal objectives
(3) and with the specific intent to
further those objectives

Question 19

Government interests in
regulation of Obscenity (3 main
points)

Answer 19

Preserve quality of community
(i.e. via zoning porn theaters),
prevent antisocial behavior,
protecting children (i.e. child
porn)

Question 20

Holding from Allegheny re.

Establishment Clause

Answer 20

Generally, the government may not promote a
religion on public property. But, whether a
symbol promotes religion depends on its context.
If displaying X-mas Tree/Menorah/Whatever
together is sending a message of tolerance, then
the government may display, because the
religious overtones are diluted.