MBE > MBE Constitutional Law > Individual Liberties > Flashcards

Individual Liberties Flashcards

- Establishment Clause - Free Exercise Clause - Freedom of Association - Freedom of Speech (52 cards)

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1
Q

Define

Free Exercise Clause

A

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

More info: Free Exercise Clause

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2
Q

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

A

Strict scrutiny

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3
Q

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

A

Rational basis review

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4
Q

Define

Establishment Clause

A

Prohibits the government from endorsing or supporting a particular religion

More info: Establishment Clause

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5
Q

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

A

Strict scrutiny

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6
Q

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

A

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

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7
Q

Are tax exemptions for religious organizations constitutional?

A

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

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8
Q

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

A

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

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9
Q

Is posting the Ten Commandments in a classroom constitutional?

A

No

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10
Q

Is displaying the Ten Commandments on public property constitutional?

A

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

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11
Q

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

A

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

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12
Q

What is the freedom of association?

A

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

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13
Q

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

A
  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
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14
Q

What oaths can public employees be required to take?

A
  1. Oath to support the Constitution; and
  2. Oath to oppose a legal or violent overthrow of government
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15
Q

When can a candidate be denied admission to the bar?

A

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

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16
Q

Can the government require disclosure of group membership?

A

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

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17
Q

Define

overbroad

A

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

Renders regulation void.

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18
Q

Define

public forum

A

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

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19
Q

Define

prior restraint

A

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

⚠️ Highy unfavored and presumptively unconstitutional except in extremely rare instances

More info: Prior Restraint

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20
Q

When is a prior restraint on speech allowed?

A

Only allowed in extremely rare circumstances such as:

  • During wartime or national security crisis to protect troops/citizens; or
  • To prevent incitement of violence
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21
Q

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

Study These Flashcards
A

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
22
Q

Define

fighting words

Study These Flashcards
A

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

23
Q

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

Study These Flashcards
A
  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.

24
Q

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

Study These Flashcards
A

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

Civil trials: Unclear

25
What 5 types of speech **can be regulated** on the **basis of content**? (i.e. unprotected speech)
1. Obscenity; 2. Incitement; 3. Fighting words; 4. Defamation; and 5. Commercial speech ## Footnote ⭐️ Can be regulated as long as statute is narrow, *does not need to meet strict scrutiny*
26
Can the government restrict **inmates'** free speech?
Yes, as long as the regulation is **rationally related** to a **legitimate penalogical** objective and an alternate way to express legitimate speech is available ## Footnote ⚠️ Note: This includes pretrial detainees, parolees, and those on probation
27
Does the **press** have more First Amendment rights than the general public?
No, same rights public at large
28
Can the government regulate **broadcast TV**?
Can only **fine** stations for airing "patently offensive and excretory speech"
29
**Content-based** regulations of **cable TV** are subject to what level of scrutiny?
Strict scrutiny
30
**Content-neutral** regulations of **cable TV** are subject to what level of scrutiny?
Intermediate Scrutiny ## Footnote (e.g. "must carry" provisions)
31
What is the **four-part test** to determine whether regulation of **commercial speech** is constitutional?
Must satisfy Central Hudson Test: 1. Speech is not **false, misleading, or illegal**; 2. Regulation serves **substantial government interest;** 3. Regulation **direct****ly advances interest**; and 4. Regulation is **not more extensive than necessary** to serve that interest ## Footnote *More info:* [Central Hudson Test](https://www.law.cornell.edu/wex/commercial_speech)
32
# Define commercial speech
Speech whose primary goal is **commerce** (e.g. commercial or advertisement for a product or service)
33
Are **gag orders** constitutional?
**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)
34
What does the **First Amendment** protect?
Freedom of religion, expression, speech, the press, the right to peaceably assemble, and the right to petition the government for a redress of grievances.
35
What is **unprotected** commercial speech?
Speech that is **misleading, false, or unlawful** and can be **regulated freely** by the government
36
Is **profanity** protected?
Yes unless: 1. Broadcast over public television; or 2. In public schools
37
Are attempts to **limit fighting words** constitutional?
Limitations will almost always fail for being either **overbroad**, **vague**, or **viewpoint-based** and thus failing strict scrutiny ## Footnote ⭐️ If you see a question on the MBE with a fighting word statute, it is extremely likely it will be too vague or overbroad
38
# Define content-based restriction
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**. ## Footnote ⭐️ **Subject to strict scrutiny ⭐️**
39
# Define viewpoint neutral restriction
One that restricts **entire categories** of speech, but not viewpoints within a category ## Footnote Ex. Restriction on all Second Amendment speech would be allowed, but restriction on only *anti-*Second Amendment speech would not be allowed
40
# Define content-neutral restriction
Applies neutrally to all content regardless of viewpoint or subject matter. ## Footnote Ex. time, place, or manner restriction **⭐️** Subject to **intermediate scrutiny**
41
Distinguish **traditional** vs. **designated** public forum
**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*
42
3 requirements needed for a valid **time, place, or manner** restriction in a public forum
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)
43
Is there a right to **picket** a single residence?
No
44
When will a regulation on speech in a ***designated* public forum** be upheld?
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** ## Footnote (same as test for traditional public forum)
45
# Define non-public forum
Public property that is not open to speech (e.g. schools, jails, airports)
46
When is a restriction on speech in a **non-public forum** valid?
1. **Viewpoint neutral** (\*\*does not need to be content neutral); and 2. Reasonably related to a **legitimate** government purpose
47
# Define vagueness
Restriction is void for vagueness if reasonable person does not understand what the law requires or prohibits
48
# Define symbolic speech
**Expressive conduct** meant to convey a particular message (e.g. wearing black arm bands in protest)
49
When can the government regulate **symbolic speech**?
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
50
Are **restrictions** on the following constitutional: 1. Flag burning 2. Public nudity 3. Leafleting 4. Cross burning
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
51
Is the media protected by the First Amendment for publishing a **lawfully obtained private fact?** (e.g. identity of a rape victim)
Yes, as long as story is matter of **public concern** (i.e. newsworthy)
52
Are zoning restrictions on **adult entertainment establishments** constitutional?
Yes, if zoning is to prevent **adverse "secondary effects"** caused by the business, such as increased neighborhood crime ("secondary effects doctrine")
MBE Constitutional Law
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