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

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

Answer 6

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

Question 7

Are tax exemptions for religious organizations constitutional?

Answer 7

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

Question 8

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

Answer 8

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

Question 9

Is posting the Ten Commandments in a classroom constitutional?

Answer 9

No

Question 10

Is displaying the Ten Commandments on public property constitutional?

Answer 10

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

Question 11

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

Answer 11

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

Question 12

What is the freedom of association?

Answer 12

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 13

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

Answer 13

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 14

What oaths can public employees be required to take?

Answer 14

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

Question 15

When can a candidate be denied admission to the bar?

Answer 15

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 16

Can the government require disclosure of group membership?

Answer 16

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

Question 17

Define

overbroad

Answer 17

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

Renders regulation void.

Question 18

Define

public forum

Answer 18

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

Question 19

Define

prior restraint

Answer 19

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 20

When is a prior restraint on speech allowed?

Answer 20

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 21

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

Answer 21

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 22

Define

fighting words

Answer 22

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

Question 23

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

Answer 23

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 24

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

Answer 24

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

Civil trials: Unclear

Question 25

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

Answer 25

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 26

Can the government restrict inmates’ free speech?

Answer 26

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 27

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

Answer 27

No, same rights public at large

Question 28

Can the government regulate broadcast TV?

Answer 28

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

Question 29

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

Answer 29

Strict scrutiny

Question 30

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

Answer 30

Intermediate Scrutiny

(e.g. “must carry” provisions)

Question 31

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

Answer 31

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 32

Define

commercial speech

Answer 32

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

Question 33

Are gag orders constitutional?

Answer 33

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 34

What does the First Amendment protect?

Answer 34

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

Question 35

What is unprotected commercial speech?

Answer 35

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

Question 36

Is profanity protected?

Answer 36

Yes unless:

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

Question 37

Are attempts to limit fighting words constitutional?

Answer 37

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 38

Define

content-based restriction

Answer 38

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 39

Define

viewpoint neutral restriction

Answer 39

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 40

Define

content-neutral restriction

Answer 40

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

Ex. time, place, or manner restriction

⭐️ Subject to intermediate scrutiny

Question 41

Distinguish traditional vs. designated public forum

Answer 41

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 42

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

Answer 42

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 43

Is there a right to picket a single residence?

Answer 43

No

Question 44

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

Answer 44

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 45

Define

non-public forum

Answer 45

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

Question 46

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

Answer 46

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

Question 47

Define

vagueness

Answer 47

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

Question 48

Define

symbolic speech

Answer 48

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

Question 49

When can the government regulate symbolic speech?

Answer 49

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 50

Are restrictions on the following constitutional:

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

Answer 50

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 51

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

Answer 51

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

Question 52

Are zoning restrictions on adult entertainment establishments constitutional?

Answer 52

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