Barbri - Constitutional Law - MBE

Which of the following is not considered a type of "fighting words" that may be forbidden by statute? response - incorrect A Statements likely to incite physical retaliation. B Conduct undertaken with the intent to cause fear of bodily harm (e.g., cross burning). C Statements meant to place a person in fear of bodily harm. D "Abusive language."

"Abusive language." A statute that prohibits "abusive language" is overbroad and thus not an enforceable fighting words statute. Lots of language that is "abusive" is protected speech. Statements meant to place a person in fear of bodily harm and statements likely to incite physical retaliation are both classic examples of fighting words subject to government regulation. Conduct undertaken with the intent to cause fear of bodily harm (e.g., cross burning) is considered to be a form of fighting words, even though there is no actual spoken threat. This is because the conduct is intended to convey a message that is unprotected by the First Amendment.

A state enacted health care legislation to provide comprehensive insurance coverage on prescription drugs for all of its citizens. The legislation provided state reimbursement for the cost of all prescription drugs with one exception—a drug commonly known as the "abortion pill," which was prescribed to induce early term abortions without surgery. All other prescription drugs for pregnant women were covered. A pregnant woman who had received a prescription for the drug and was subsequently denied reimbursement filed suit in federal district court challenging the constitutionality of the legislation. Which of the following best describes the appropriate standard by which the court should review the constitutionality of the state legislation? response - correct A Because the state legislation does not improperly discriminate against a suspect class or burden a fundamental right, the woman will have to show that the legislation is not rationally related to any legitimate state interest. B Because the state legislation discriminates against women by not providing coverage for all of their prescription medications as it does for men, the state will have to demonstrate that the legislation is substantially related to an important government interest. C Because the state legislation impinges on a woman's constitutional right to choose whether to terminate her pregnancy, the state will have to show that the legislation does not constitute an undue burden on that right. D Because the state legislation discriminates against women seeking to exercise their fundamental right to terminate their pregnancy in favor of women incurring the regular expenses of pregnancy, the state will have to demonstrate that the legislation is necessary to vindicate a compelling state interest.

A Because the state legislation does not improperly discriminate against a suspect class or burden a fundamental right, the woman will have to show that the legislation is not rationally related to any legitimate state interest. The court should require the woman to show that the legislation is not rationally related to any legitimate state interest. The Supreme Court has held that the right of privacy includes the right of a woman to have an abortion under certain circumstances without undue interference from the government. However, neither federal nor state government is required to grant medical benefit payments for abortions, even if it grants benefits for childbirth services. The Court has held that a state's failure to provide funding for a woman's abortion decision does not constitute interference with her constitutional right to make that decision; hence, such legislation is valid unless the plaintiff can show that it is not rationally related to a legitimate state interest. [See Maher v. Roe (1977)] (B) is incorrect because the legislation does not create a gender-based classification that would require application of an intermediate scrutiny standard. The fact that the restriction applies to a drug prescribed only to women does not establish gender-based discrimination. [See Geduldig v. Aiello (1974)] (C) is wrong because, as discussed above, legislation excluding abortion-related expenses from government funding has been held not to constitute interference with a woman's constitutional right to choose to have an abortion. Therefore, the undue burden test does not apply. (D) is incorrect for the same reason as in (C), and also because it does not state the standard that the Court uses to evaluate abortion regulations. Regulations restricting pre-viability abortions will be invalidated if they constitute an "undue burden" on a woman's right to have an abortion. [Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)]

The police department of a small city has jurisdiction within the city limits and over a defined portion of the surrounding rural communities within the county. A farmer lives in one of the rural communities receiving police protection from the city. The farmer does not pay any tax to the city directly, but a portion of the farmer's county property tax is turned over by the county to the city in order to support the city's police department. The farmer's property was vandalized several times over the past several months, and the farmer became unhappy with the police protection that the city was providing. After his complaints to the police department and city hall did not improve the situation, the farmer wanted to vote against the mayor in the next election, but a city ordinance provides that only residents of the city may vote in city elections. If the farmer brings a suit to compel the city to allow him to vote in the city's mayoral election, is he likely to prevail? response - correct A No, because the resident voting limitation appears to be rationally related to a legitimate government interest. B No, but only if the city can prove that the resident voting limitation, which affects a fundamental right, is necessary to a compelling interest. C Yes, because the resident voting limitation violates the Privileges or Immunities Clause of the Fourteenth Amendment. D Yes, because the resident voting limitation constitutes an instance of taxation without representation.

A No, because the resident voting limitation appears to be rationally related to a legitimate government interest. (A) The farmer is not likely to prevail because the rational relationship test applies. Although the right to vote is a fundamental right, laws prohibiting nonresidents from voting are generally valid, provided that they meet the minimal scrutiny, or "rational basis," standard. Under this standard, a law will be upheld as long as it is rationally related to a legitimate government interest. Limiting the voters in a city's mayoral election to residents of the city serves the interests of efficiency and prevents persons with little personal interest in the city from voting. Thus, a court would likely uphold the ordinance. Answer (B) is incorrect because it sets out the strict scrutiny standard. While voting is a fundamental right and governmental action affecting fundamental rights generally is reviewed under strict scrutiny, that is not the case with laws limiting voting to residents. Answer (C) is incorrect. The Privileges or Immunities Clause of the Fourteenth Amendment prohibits a state from denying its citizens certain privileges or immunities of national citizenship. The voting restriction here does not affect any national right, except, perhaps, the right to travel. Even if that right is impacted here, as discussed above, the Supreme Court has approved limiting the right to vote to residents. Answer (D) is incorrect. While "no taxation without representation" was a rallying cry for the war of independence, it is broader than the constitutional doctrines applicable here.QUESTION ID: ML384

Which of the following statements is correct regarding government action challenged under the Due Process or Equal Protection Clause where no fundamental right or suspect or quasi-suspect classification is involved? response - correct A The law will be upheld unless it is arbitrary B The law must be the least burdensome means to achieve the legislative goal C The burden of proof is on the government to show that the law is necessary D The law is valid only if it is substantially related to a legitimate government purpose

A The law will be upheld unless it is arbitrary If government action is challenged under the Due Process or Equal Protection Clause, and no fundamental right or suspect or quasi-suspect classification is involved, the law will be upheld unless it is arbitrary or irrational. A rational basis standard applies. The law is valid if it is rationally related to a legitimate government purpose; it need not be substantially related to a legitimate purpose. The burden of proof is on the CHALLENGER to show that the law is unconstitutional, NOT on the government to show that it is necessary. The law need NOT be the least burdensome means to achieve the legislative goal. The rational relationship test does not require a tight fit between the goal sought and the law employed—just a rational connection.

Which of the following has not been held to be a fundamental right by the Supreme Court? response - incorrect A The right of privacy B The right of free speech and assembly C The right to vote D The right to international travel

A The right of privacy The right to international travel has not been held to be a fundamental right, although the right to interstate travel is a fundamental right. Thus, restrictions on the right to travel abroad (e.g., limitations on travel to Cuba), at least when imposed by the federal government, do not have to meet the strict scrutiny standard. The right of privacy, the right to vote, and the right of free speech and assembly all are considered fundamental rights, as are all other First Amendment rights. Thus, government limitations on these rights, if challenged, generally will be held invalid unless the government can prove that the limitation is necessary to achieve a compelling government interest (i.e., strict scrutiny).

The council of a city with a rich and diverse heritage established a city-run ethnic sculpture garden. City residents and groups were encouraged to erect statues and other displays in the garden depicting ethnic, cultural, and religious heritages. Many of the displays included religious symbols. The city maintained the property and administered the affairs of the garden. While the garden was paid for primarily by a small admission fee, the city contributed about $1,000 each year for the garden's upkeep from general city funds. If a local citizen brings an action in federal court challenging the city's funding of the garden, how should the court rule? response - correct A Find the funding constitutional, because the amount of city funds spent on the garden is de minimis. B Find the funding constitutional, because the garden also includes secular displays depicting the city's ethnic and cultural heritage. C Find the funding unconstitutional, because the city is helping to maintain religious symbols in violation of the First Amendment. D Find the funding unconstitutional, because the city does not have a compelling interest in running the garden.

B Find the funding constitutional, because the garden also includes secular displays depicting the city's ethnic and cultural heritage. The city may continue to operate the garden because the display is not primarily religious in nature. Government action challenged under the Establishment Clause will be found invalid unless the action (i) has a secular purpose, (ii) has a primary effect that neither advances nor inhibits religion, and (iii) does not involve excessive government entanglement with religion. This is known as the Lemon test. This test is met here: The secular purpose is to promote pride in heritage and perhaps to encourage people to learn about the heritage of others. The primary effect does not promote or inhibit religion, but merely acknowledges the religious backgrounds of the city residents. Finally, the maintenance and administration of the garden by the city does not constitute excessive entanglement between government and religion. Therefore, (B) is correct and (C) is incorrect. [See Lynch v. Donnelly (1984)—permitting government-maintained Christmas display that includes religious as well as nonreligious symbols] (A) is incorrect because if the garden did fail one of the above prongs, the fact that only a relatively small amount of municipal funds were used would not remedy the constitutional violation; de minimis is not a defense. (D) is incorrect because it states the wrong test. Establishment Clause cases not involving a sect preference are resolved under the above three-part test and not under the compelling interest test.

Pursuant to statute, a state's department of education provides model lesson plans to any school or school district in the state requesting such plans. A private religious school whose curriculum is more than 50% religious matters applied for and received model lesson plans for the nonreligious subjects taught in its classrooms. Which of the following is the best argument supporting the constitutionality of the state's statutory policy of providing model lesson plans to this private religious school? response - correct A The teaching of religious matters in private schools is not constitutionally prohibited. B The purpose and effect of the lesson plan program is secular and does not entangle government and religion. C Private religious schools fulfill an important educational function. D The state's refusal to provide lesson plans to private religious schools would violate the Free Exercise Clause of the First Amendment by discriminating against their students in favor of students in secular private and public schools.

B The purpose and effect of the lesson plan program is secular and does not entangle government and religion. The Establishment Clause prohibits the government from taking action respecting the establishment of religion. Where no sect preference is involved, government action will be upheld if it serves a secular purpose, its primary effect neither advances nor inhibits religion, and it does not produce excessive government entanglements with religion. (A) is a true statement—it is not unconstitutional to teach religious matters in private schools—but the Constitution prohibits government from providing much aid to such private schools. (C) is irrelevant for similar reasons—although private religious schools might fulfill an important educational function, they still will run afoul of the Constitution unless the above three-part test is met. (D) is incorrect because the state is compelled by the Establishment Clause not to provide certain types of aid to religious schools; in such cases, the Free Exercise Clause is not violated so long as the law is general in nature, which is the case here.

A church developed a sex education program for children of church members, ages 12 to 16. The program included lectures and slides, including some slides depicting explicit sexual activity between males and females. Parents would be required to give their consent before any child could participate. The program was conducted by the church board, consisting of the minister, a doctor, and a psychologist. The church board called the program "an integral part of involving the church in the real world of a teenager." A state statute provides in relevant part, "It is unlawful to sell, give, or display to any person under the age of 17 any lewd or obscene article, picture, or depiction." If the church board members are convicted of violating the above statute and they appeal, what is the likely outcome? response - correct A Their convictions will be reversed because the freedom to engage in conduct connected with one's religion is absolutely protected under the First and Fourteenth Amendments. B Their convictions will be reversed if it can be shown that the statute is being applied only to interfere with religion. C Their convictions will be upheld because the state's interest in regulating activities involving children necessarily outweighs any rights of the church board members under the Free Exercise Clause of the First Amendment. D Their convictions will be upheld because the members of the church board lack standing to challenge the statute on "free exercise of religion" grounds.

B Their convictions will be reversed if it can be shown that the statute is being applied only to interfere with religion. The convictions will be reversed if it can be shown that the statute is being applied only to interfere with religion. The Free Exercise Clause prohibits government from punishing religious belief. The Clause prevents government from punishing conduct merely because it is religious and from regulating conduct for the purpose of interfering with religion. However, the Clause does not prohibit government from regulating general conduct, even if the regulation happens to interfere with a person's ability to conform conduct to sincerely held religious beliefs. Thus, if it can be shown here that the statute is not really a regulation of general conduct but rather is being applied only to interfere with religion, the convictions will be reversed. (A) is incorrect because, as stated above, a person's conduct can be regulated by a generally applicable conduct regulation; religiously motivated conduct has very narrow protection. (C) is incorrect because it implies that the court will balance the interests involved in determining the validity of the application of the statute here. Since Employment Division v. Smith (1990), the Court has abandoned the balancing approach in favor of the approach discussed above. (D) is incorrect because the church board would have standing. All that is required is a concrete stake in the outcome of the litigation; having been prosecuted for violating the statute, the board's stake is about as concrete as it can get.

The state passed a law stating that "only persons living with their parents or guardians who are bona fide residents of the state shall be entitled to free public education; all others who wish to attend public schools within the state may do so, but they must pay tuition of $3,000 per semester." A 15-year-old girl moved in with her friend so that she could attend the public schools in the state, and the state legislature passed the tuition statute just as she completed her junior year. The girl wants to complete her senior year in the state high school, but cannot afford to pay tuition. If the girl sues in federal court to strike down the tuition statute, is the court likely to rule that the statute is constitutional? response - correct A Yes, provided that the state can show that the statute is necessary to promote a compelling state interest. B Yes, unless the girl can show that the statute is not rationally related to a proper state interest. C No, because it infringes on the girl's fundamental right to an education. D No, because it interferes with the girl's fundamental right to interstate travel.

B Yes, unless the girl can show that the statute is not rationally related to a proper state interest. The court is likely to rule that the statute is constitutional. A bona fide residence requirement, such as this statute, that is not based on a suspect classification and does not limit the exercise of a fundamental right, is judged by the rational basis test. Thus, (A) is incorrect. The statute provides free education for all children who are bona fide residents of the state. Thus, it uniformly furthers the state interest in assuring that services provided for its residents are enjoyed only by residents. (C) is incorrect because education is not a fundamental right. (D) is incorrect because this statute does not impair the right of interstate travel. Any person is free to move to the state and establish residence there. This statute does not deter people from moving into the state.

Under current Supreme Court precedent, the First Amendment Free Exercise Clause __________. response - incorrect A prohibits government regulations that interfere with religious practices unless the government can prove that the regulation is necessary to achieve a compelling government interest B prohibits government from punishing conduct just because it is religious C prohibits laws of general applicability unless they have an exception for religiously motivated conduct D prohibits government regulations that interfere with religious practices unless the government can prove that the regulation is narrowly tailored to achieve an important government objective

B prohibits government from punishing conduct just because it is religious The Free Exercise Clause prohibits government from punishing conduct just because it is religious. If the intent of the law is to interfere with religion, or if the law punishes conduct solely because it is religious, the law is invalid. For example, a law may not prohibit ritual slaughter of chickens while otherwise allowing the slaughter of chickens. The Free Exercise Clause does NOT prohibit laws of general applicability unless they have an exception for religiously motivated conduct. Religiously neutral laws of general applicability generally are valid under the Free Exercise Clause without religious exemptions with two historic 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. The Free Exercise Clause does NOT prohibit government regulations that interfere with religious practices unless the government can prove that the regulation is necessary to achieve a compelling government interest or that the regulation is narrowly tailored to achieve an important government objective. These choices reflect higher standards (strict scrutiny and intermediate scrutiny, respectively) than is currently used in Free Exercise cases. Older cases purportedly applied strict scrutiny, but the Supreme Court seemed often to have to stretch to find a compelling interest in such cases.

A state's constitution authorizes a state reapportionment board to redraw state legislative districts every 12 years. During the most recent reapportionment process, consultants had provided the board with two alternative plans for reapportionment. One plan provided for districts with less than a 3% difference in proportional representation between districts. The other plan was drawn up to conform state legislative districts as nearly as possible to county borders, resulting in differences in proportional representation between districts of up to 12%. The current apportionment of legislative districts results in differences of up to 15% between districts. The board ultimately selected the reapportionment plan based on county borders, and this plan was approved by the state legislature. A Caucasian resident and registered voter of the state brought a constitutional challenge to the reapportionment in federal court. His claim is based on the fact that, as a result of the plan that the board selected, the percentage of the African-American voting population in the district in which he lives increased from 45% to 55%. Had the other plan been selected, the percentage would have been unchanged in his district. In the absence of a federal statute applicable to the state, is the resident likely to prevail? response - correct A Yes, because an alternative plan with more equal apportionment is available. B Yes, because any legislative apportionment discriminating in favor of or against racial minority groups is subject to strict scrutiny, and there is no evidence of past discrimination or any other compelling state interest to justify adopting the plan. C No, because preserving political subdivisions is a legitimate state interest that justifies the plan's variance in representation. D No, because the reapportionment plan results in less of an overall variance between districts than the current legislative apportionment.

C No, because preserving political subdivisions is a legitimate state interest that justifies the plan's variance in representation. The resident will not prevail because the reapportionment plan does not violate the Equal Protection Clause of the Fourteenth Amendment. That provision has been interpreted to prohibit state dilution of the right to vote, so that whenever a governmental body establishes voting districts for the election of representatives, the number of persons in each district may not vary significantly. However, for the purpose of electing representatives to a state or local governmental body, the variance in the number of persons included in each district can be greater than that permitted for congressional districts. If the deviation from mathematical equality between districts is reasonable and tailored to promote a legitimate state interest, the law establishing the districts will likely be upheld. The Court has held that maintaining the integrity of local political subdivision lines when establishing legislative districts is a legitimate state interest, as long as the final apportionment is substantially based on population. [See Mahan v. Howell (1973)—16% variance upheld] Here, the reapportionment attempted to conform legislative districts as nearly as possible to county borders and had a maximum variance of 12%. Thus, it will probably withstand the resident's challenge. (A) is incorrect because the fact that an alternative plan has a lesser variance between the districts does not make the selected plan invalid. Because it satisfies the less stringent requirements for state and local governmental bodies discussed above, the plan does not violate the Equal Protection Clause. (B) is incorrect because race can be considered in drawing up new voting districts, even though it cannot be the predominant factor. If a plaintiff can show that a redistricting plan was drawn up predominantly on the basis of racial considerations (as opposed to the more traditional factors, such as compactness, contiguity, and community interest), the plan will violate the Equal Protection Clause unless the government can show that the plan is narrowly tailored to serve a compelling government interest (such as eliminating past discrimination). However, if a legislative redistricting map can be explained in terms other than race, the Court will not find that the law constitutes racial discrimination on its face. In such a case, the person attacking legislative districts as being based on racial classifications would have to show that district lines were drawn predominantly for a racially discriminatory purpose. Here, as discussed above, the state's interest in preserving political subdivisions (counties) is a legitimate government interest, and the resident will be unable to prove that this was not the predominant factor in the reapportionment. (D) is incorrect because the fact that the reapportionment plan reduces the existing population variance among districts does not make it constitutionally valid. The plan must satisfy the equal protection requirements established by the Court in apportionment cases.

Despite the Free Exercise Clause, if relevant to a particular case, a court may __________. response - correct A assess the veracity of a particular religion's beliefs B limit the term "religion" to belief systems involving a supreme being C assess the sincerity of a person's religious beliefs D require litigants to swear an oath on the Bible to tell the truth

C assess the sincerity of a person's religious beliefs A court MAY assess the sincerity of a person's religious beliefs when relevant to a particular case. 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 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. The Free Exercise Clause prohibits the courts from assessing the veracity of a particular religion's beliefs. 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. The Free Exercise Clause would prohibit the courts from requiring litigants to swear an oath on the Bible, although litigants may be permitted to so swear or given the choice to swear or affirm. Particular religious beliefs cannot be made prerequisites to testifying in court or holding public office. The Free Exercise Clause prohibits the courts from limiting the term "religion" to belief systems involving a supreme being. The Supreme Court has not adopted a definition of the term "religion," but it has made clear that belief in a supreme being is not a prerequisite.

Which of the following is considered protected speech under the First Amendment? response - incorrect A Speech creating a clear and present danger of imminent lawless action B Fighting words C Commercial speech D Obscenity

Commercial speech Commercial speech is protected by the First Amendment. However, false or misleading commercial speech is not protected by the First Amendment. Moreover, commercial speech can be regulated if the regulation serves a substantial government interest, directly advances that interest, and is narrowly tailored to serve that interest. Fighting words, speech creating a clear and present danger of imminent lawless action, and obscenity all are forms of unprotected speech, such that content-based restrictions are allowed.

Because of budget shortfalls, a state governor recently signed a bill shortening the period for which state unemployment benefits are available. The defendant gave a speech across the street from the governor's mansion, denouncing the law. In his speech, the defendant urged the crowd to rush across the street, drag the governor from his mansion, and show him how it feels to be homeless. A police officer who heard the defendant's speech arrested the defendant and he was charged with violating a state statute that makes it a crime to "make a threat against any state official in the performance of his duty." If the defendant defends on constitutional grounds, the court will likely find the statute: response - incorrect A Unconstitutional as a prior restraint. B Unconstitutional because it does not require clear and present danger of imminent lawless action. C Constitutional if limited to true threats. D Constitutional under the fighting words doctrine.

Constitutional if limited to true threats. The court will likely find the statute constitutional if limited to true threats. The Constitution does not protect true threats, defined as speech meant to communicate an intent to place a person in fear of bodily harm. (A) is incorrect. While prior restraints are disfavored under the First Amendment, because true threats are not protected speech, the statute does not constitute a prior restraint. (B) is incorrect. While a state may forbid speech that poses a clear and present danger of imminent lawless action, that is not the only type of unprotected speech under the First Amendment. (D) is incorrect because the law here does not appear to be a fighting words statute, e.g., personally abusive epithets inherently likely to incite an immediate response.

Which of the following activities involving public schools is valid under the Establishment Clause? response - correct A A voluntary moment of silent prayer or meditation at the beginning of the schoolday. B Posting of the Ten Commandments in a public school pursuant to legislature's declaration that the posting is for a secular purpose. C A school policy whereby students themselves decide whether to hold a student invocation ceremony prior to athletic events. D A program whereby, once weekly, the schoolday ends one hour early so that interested students may participate in voluntary religious classes in a separate location from the school.

D A program whereby, once weekly, the schoolday ends one hour early so that interested students may participate in voluntary religious classes in a separate location from the school. A program whereby, once weekly, the schoolday ends one hour early so that interested students may participate in voluntary religious classes in a separate location from the school is valid. (A similar program held in the school itself has been struck down, because turning the classrooms over to religious instructors was found to promote religion.) A voluntary moment of silent prayer or meditation at the beginning of the schoolday is invalid as promoting religion. It is irrelevant that the exercise is voluntary and that it is silent. Posting of the Ten Commandments in a public school pursuant to legislature's declaration that the posting is for a secular purpose is invalid. The Supreme Court ruled that this program clearly served a religious purpose in spite of the legislature's statement. A school policy whereby students themselves decide whether to hold a student invocation ceremony prior to athletic events in invalid. The policy promotes religion and allowing the students to vote does not negate the policy's effect.

Under the rules the Supreme Court currently uses to determine whether an abortion regulation is valid, the government may not impose an undue burden on a woman's ability to obtain an abortion __________. response - correct A After viability B During the first and second trimester C During the first trimester D Before viability

D Before viability Under the rules the Supreme Court currently uses to determine whether an abortion regulation is valid, the government may not impose an undue burden on a woman's ability to obtain an abortion before viability. The choices involving trimesters are incorrect. In the past, the Supreme Court differentiated its approach to abortion regulation based on the trimester of pregnancy involved, but the Court no longer uses this approach. After viability, the government may prohibit abortion unless the woman's health is threatened.

Which of the following is not a factor in the test for the validity of government action under the Establishment Clause when no sect preference is involved? response - correct A The action has a secular purpose. B The action has a primary effect that neither advances nor inhibits religion. C The action does not produce excessive government entanglement with religion. D The government action is narrowly tailored to promote a compelling interest.

D The government action is narrowly tailored to promote a compelling interest. "The government action is narrowly tailored to promote a compelling interest" is not part of the test for determining the validity of government action under the Establishment Clause. This strict scrutiny test is applied to determine the validity of government action that includes a sect preference under the Establishment Clause. The three-part Lemon test, applied in cases in which there is no preference for one religious group over another, is that: 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.

A state legislature enacted a statute requiring the parents of every child to have the child vaccinated for chicken pox before the child's second birthday. Failure to comply was a misdemeanor. A parent refused to have her child vaccinated, claiming that any injections or vaccinations violate the tenets and beliefs of her religion. If the state commences a criminal prosecution against the parent for violation of the statute, as to what issue may the state court constitutionally inquire? response - correct A Whether the tenets of the parent's religion are true. B Whether the parent's religion is a traditional, established one. C Whether the parent believes that the tenets of her religion are derived from a supreme being or are merely internally derived. D Whether the parent sincerely believes the tenets of her religion.

D Whether the parent sincerely believes the tenets of her religion. The sincerity of the parent's religious beliefs is a factor that can be inquired into as a way of determining whether she can avail herself of the protection of the Free Exercise Clause. The Free Exercise Clause of the First Amendment, applicable to the states through the Fourteenth Amendment, prohibits punishing people for their religious beliefs. When a person claims that she is being punished for her religious beliefs, the court may consider whether the person challenging the law sincerely holds those beliefs. Thus, the court may consider whether the parent's beliefs are sincerely held. (A) is incorrect because the First Amendment forbids a court from determining whether a person's religious beliefs are true. A court must respect a sincerely held religious belief, even if it appears to be illogical or incapable of proof. (B) is incorrect because the Free Exercise Clause protects all sincerely held religious beliefs, regardless of whether a specific religion is deemed to be "established" or "traditional." (C) is incorrect because religious beliefs need not be theistic to qualify for constitutional protection. An asserted religious belief must occupy a place in the believer's life parallel to that occupied by orthodox religious beliefs. Even an internally derived belief is entitled to protection.

Under the one person, one vote principle __________. response - correct A regarding state government districts, almost exact mathematical equality between districts is required B regarding state government districts, a variance of more than 3% is invalid C regarding congressional districts, a variance of 10% is permissible D regarding congressional districts, almost exact mathematical equality between the congressional districts within a state is required

D regarding congressional districts, almost exact mathematical equality between the congressional districts within a state is required Regarding congressional districts, almost exact mathematical equality between the congressional districts within a state is required under the one person, one vote principle. The rationale is that voting is a fundamental right, diluting one person's vote compared to another's raises equal protection concerns, and there is no compelling interest that would justify more than a couple of percentage points difference from district to district. Regarding state government districts, almost exact mathematical equality between districts is NOT required under the one person, one vote principle. In state government districts, the variance from district to district may not be unjustifiably large. But this is a much more lenient standard than the almost exact mathematical equality standard. Regarding congressional districts, a variance of 10% is NOT permissible. In congressional districts almost exact mathematical equality is required and a variance of even a couple of percentage points might be ruled invalid. Regarding state government districts, a variance of more than 3% is NOT invalid under the one person, one vote principle. The variance may not be unjustifiably large, but a variance of even 16% has been found to be valid.

A public high school publishes a weekly newspaper as part of its journalism class. The student editor-in-chief of the paper wrote an article supporting the legalization of marijuana and showed it to his faculty advisor. The advisor told the editor that while this issue was receiving a lot of media attention in their community, in order to discourage drug use, school policy prohibited the paper from including any drug-related articles. The advisor then told the editor not to include the article in any edition of the paper. A few days later, the editor and faculty advisor were preparing to upload the electronic files for the paper to their printer. The advisor was momentarily called away, and the editor quickly replaced an article on clothing styles with his article on the legalization of marijuana. When the paper came out, the article was the talk of the school. After a brief investigation, the student was removed from his position as editor-in-chief. The student brought suit against the school, claiming that his removal was a violation of his First Amendment rights under color of law. How should the court rule on this issue? response - incorrect A For the high school, because the newspaper involved was a public high school newspaper published as part of a journalism class. B For the high school, because students do not have constitutional rights while the school is acting as parens patriae. C For the student, because the issue involved a matter of public concern. D For the student, unless the school can establish that his removal was necessary to achieve a compelling interest.

For the high school, because the newspaper involved was a public high school newspaper published as part of a journalism class. The court should rule for the high school. The Supreme Court has held that curriculum-based public high school activities are not public forums. Content regulation of nonpublic forums is allowed as long as the regulation is viewpoint neutral and reasonably related to a legitimate government purpose. Here, school policy prohibited all discussion of drugs in the school newspaper and was therefore viewpoint neutral. Moreover, the school could argue that prohibiting discussion of drugs in the school paper discourages drug use, a legitimate school interest. Thus, the court should rule for the school. (B) is incorrect because it is overbroad. While students do not enjoy full constitutional rights within the school setting, they do have some protection. For example, the Supreme Court has held that students had a First Amendment right to wear black armbands in school in protest of the Vietnam War. [Tinker v. Des Moines Independent School District (1969)] (C) is incorrect because it is irrelevant. The fact that the legalization of marijuana is a public concern does not address the issue of whether speech about it may be banned from a nonpublic forum. (D) is incorrect because it implies the use of the wrong test. While generally content regulations of speech are permitted only if they are necessary to achieve a compelling interest, this is not true of time, place, and manner regulations. The appropriate test for such regulations depends on whether a public forum is involved, and, as discussed above, when a nonpublic forum is involved, a content regulation will be upheld if it is viewpoint neutral and reasonably related to a legitimate government purpose.

Among the categories of speech that are not protected by the First Amendment is "fighting words." Which of the following statements is not true when it comes to regulation of fighting words? response - correct A Fighting words—words or epithets that, when addressed to an ordinary citizen, are inherently likely to incite immediate physical retaliation—may be punished. B Fighting words statutes are often struck down for overbreadth. C True threats—statements meant to communicate an intent to place an individual or group in fear of bodily harm—may be punished. D Hate crime statutes may limit fighting words sanctions to cases in which the words seek to insult or provoke on the basis of race, religion, or sexual orientation.

Hate crime statutes may limit fighting words sanctions to cases in which the words seek to insult or provoke on the basis of race, religion, or sexual orientation. It is not true that hate crime statutes may limit fighting words sanctions to cases in which the words seek to insult or provoke on the basis of race, religion, or sexual orientation. Such a limitation means the sanction is based on viewpoint, and the Court will not tolerate such sanctions. The remaining statements all are true: True threats—statements meant to communicate an intent to place an individual or group in fear of bodily harm—may be punished; Fighting words—words or epithets that, when addressed to an ordinary citizen are inherently likely to incite immediate physical retaliation—may also be punished; and Fighting words statutes are often struck down for overbreadth. The overbreadth problem arises because of the difficulty in precisely describing what is or is not a "fighting word."

A group of students held a demonstration against the proliferation of weapons in space in one of the city's parks. The defendant spoke at the demonstration, and to make a point during her speech, she walked over to one of the trash barrels and dumped the contents out on the ground. As she did so, she told her listeners, "This is what outer space is starting to look like, cluttered with the trash of nuclear weapons." The meeting broke up 15 minutes later. The students left the park peacefully, but no one bothered to pick up the trash or right the overturned barrel. The defendant was arrested pursuant to the city's littering ordinance, which carried fines of up to $500 and was strictly enforced. She was convicted and fined $500. The defendant brings an appropriate appeal to have her conviction set aside on constitutional grounds. Is the defendant likely to succeed? response - correct A No, because the anti-littering ordinance furthers an important governmental interest and is not aimed at communication. B No, because the defendant was convicted for her conduct rather than for what she said. C Yes, because the defendant's conduct constituted symbolic speech. D Yes, unless the city can prove a compelling interest in its anti-litter laws.

No, because the anti-littering ordinance furthers an important governmental interest and is not aimed at communication. The anti-littering ordinance will be upheld because it furthers an important government interest unrelated to the content of the communication and is narrowly tailored to the furtherance of that interest. As a general rule, conduct that is intended to communicate is not immune from reasonable government regulation, even though it takes place in a public forum such as a park. The noncommunicative impact of speech-related conduct in a public forum can be regulated to further an important government interest independent of the speech aspects of the conduct as long as the incidental restriction on the ability to communicate that message is narrowly tailored to further the interest in question, so that alternative channels for communicating the message are available. The prevention of litter, as a means of maintaining public facilities in usable condition and protecting property values, is an important enough government interest to allow some type of regulation. The ban on littering is narrowly tailored to accomplish its purpose, unlike, for example, a ban on distributing leaflets that may end up on the ground. The regulation probably would not have precluded the defendant even from dumping the barrel if she had picked up the trash after her speech was over. (B) is incorrect because it is too broad; some speech-related conduct cannot be punished (e.g., burning a flag). The critical distinction is whether the offense relates to the communicative content of the conduct or to state interests independent of its communicative aspects. (C) is incorrect because the conduct aspect of symbolic speech can be regulated under the test indicated above. (D) is incorrect because the compelling interest standard only applies where the restrictions are based on the content of the message being communicated. Where the regulation is not based on content, the government need show only an important interest.

A city council passed a zoning ordinance banning the operation of adult-oriented businesses in any "residential" or "commercial" zone of the city. Such businesses were allowed to operate only in areas zoned "industrial." The ordinance was passed due to concerns about the "secondary effects" of adult bookstores, such as increases in petty crimes. The owner of a profitable chain of adult bookstores and video rental operations sought a zoning variance to allow the owner to locate a store in a commercial zone of the city. The variance was denied. The owner then filed suit in federal court, claiming the denial of the variance violated his free speech rights. Is the owner likely to prevail? response - correct A No, because speech-related activities may be regulated to prevent effects that are offensive to neighboring businesses and residents. B No, because the ordinance is designed to serve a substantial governmental interest and does not unreasonably limit alternative avenues of communication. C Yes, because the city is improperly regulating speech based on its content. D Yes, because the city has not established that the owner is selling obscene materials.

No, because the ordinance is designed to serve a substantial governmental interest and does not unreasonably limit alternative avenues of communication. The city is likely to prevail because the zoning ordinance is a constitutional restriction on the operation of adult-oriented businesses. The Supreme Court has held that businesses selling material that is sexually explicit, although not necessarily obscene, may be regulated through land use ordinances designed to reduce the secondary effects of such businesses. Thus, a zoning ordinance prohibiting the location of adult bookstores and theaters in areas close to residential zones and restricting such theaters to a limited area of the city is permissible if it is designed to promote substantial government interests (e.g., property interests) and does not prohibit all such entertainment in the community. [City of Renton v. Playtime Theaters, Inc. (1986)] Because the city's ordinance is a legitimate part of its zoning scheme and does not prevent the businesses from operating in other areas of the town, it will probably be upheld. (A) is incorrect because it is too broad. The type of regulation in this question cannot be based simply on what residents find "offensive"; only regulations that are based on substantial government interests and do not entirely prohibit the activity have been permitted by the Supreme Court. (C) is incorrect because the regulation here, even if it is arguably content-based, is permissible because it is based on the legitimate local interest of preserving property values from the secondary effects of such businesses. (D) is incorrect because a city may restrict the location of speech-related businesses under the circumstances here without having to establish that the content of the speech is obscene.

A city zoning board recently denied a request from the local library for a variance needed to expand the library building. An angry library patron went to the library, stood next to the front door, and handed each person entering a leaflet asking the person to contact each city zoning board member named in the leaflet and threaten to vote the member out of office unless the member changed his or her vote regarding the library's request for a zoning variance. The head librarian noticed the patron handing out the leaflets and asked her to stop, correctly explaining that the distribution was in violation of a city ordinance. The patron refused to comply, and the head librarian summoned the police. When an officer arrived, the librarian again asked the patron to stop distributing leaflets, but the patron again refused. The officer then arrested the patron for violating a city ordinance. At trial, the patron defended against the charges by claiming a violation of her First Amendment rights. Which of the following variations of fact would be most helpful to the patron's First Amendment claim? response - correct A The librarian did not repeat the "cease and desist" request in the police officer's presence. B The library is completely surrounded by public sidewalks. C The librarian has permitted some people to distribute leaflets at the front door of the library at all hours. D The leaflets also requested campaign contributions to be used to oppose board members who failed to change their vote.

The librarian has permitted some people to distribute leaflets at the front door of the library at all hours. The most helpful additional fact for the patron is that the head librarian allowed other people to distribute leaflets at all hours. Although the government may adopt reasonable time, place, and manner restrictions in public forums and designated public forums, such restrictions must be content-neutral. The head librarian's allowing some people to distribute leaflets at all hours shows that the restriction here is probably being used as a content regulation, which would be prohibited under these facts. Additionally, if the head librarian is allowing others to distribute leaflets at all hours, the discriminatory application of the ordinance might also violate the Equal Protection Clause. (A) is not very helpful because the fact that the patron was informed once of the rule would be sufficient to give her notice that she was violating the law. There is no requirement that persons be warned twice that they are violating speech regulations. (B) might help the patron because she could claim that because the library is surrounded by a public forum (sidewalks), the front door step also is a public forum. This argument will probably fail, however, because the Supreme Court has never made such a holding (and indeed has held that although the sidewalks around the Supreme Court building are public forums, the Supreme Court building itself is not a public forum). This fact might even hurt the patron, because it indicates that alternative public forums were readily available. (D) is not very helpful because political fundraising receives no more First Amendment protection than pure political speech; indeed, more regulation is allowed in the fundraising arena.

For a governmental regulation of speech in a public or designated public forum to be valid, which of the following is not necessary? response - correct A The regulation must be narrowly tailored to serve an important government interest. B The regulation must be the least restrictive method of achieving the governmental interest. C The regulation must be content neutral. D The regulation must leave open alternative methods of communication.

The regulation must be the least restrictive method of achieving the governmental interest. 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. It is enough that the regulation is narrowly tailored to serve the interest at issue. The regulation must be content neutral, the regulation must be narrowly tailored to serve an important government interest, and the regulation must leave open alternative methods of communication in order to be valid. Keep in mind, however, that even if these requirements are met, the regulation may be invalidated for other reasons, such as for being vague or overbroad.

After a state supreme court overturned the conviction in a murder case for failure to give proper Miranda warnings, a reporter asked the murder victim's father to comment on the case as he exited the supreme court building. The father made the following statement: "Each one of the so-called supreme court justices is worse than a murderer, because they make it possible for more sons and daughters to be murdered. I'd like to see every one of them strung up, like they should have done to the creep who was set free, and if someone will give me a rope I'll go in there and do it myself." A state statute proscribes, with criminal penalties, "the making of any threat to the life or safety of a public official for any act the official performed as part of the official's duties in office." Which of the following is correct regarding the statute? response - correct A The victim's father could constitutionally be punished under the statute, but only if the state supreme court justices heard the threats he made. B The victim's father could constitutionally be punished under the statute. C The victim's father could not be constitutionally punished under these circumstances, but the statute is constitutional on its face. D The statute is unconstitutional on its face.

The victim's father could not be constitutionally punished under these circumstances, but the statute is constitutional on its face. The statute is not unconstitutional. True threats are not protected by the First Amendment. Moreover, content-based restrictions on speech are permitted in cases where the speech creates a clear and present danger of imminent lawless action. A state can forbid advocating the use of force or of law violation if such advocacy (i) is directed to producing or inciting imminent lawless action, and (ii) is likely to produce or incite such action. Thus, a statute proscribing threats to the life or safety of a public official, such as the statute here, is valid. However, it cannot constitutionally be applied to the victim's father. It is doubtful that the father's words will be interpreted as a true threat of immediate harm. In context, the speech seems to be more a political commentary, which would be protected by the First Amendment. The father appeared to be merely venting his outrage. There was no indication that the father's words were inciting imminent lawless action or were likely to produce such action. It does not appear that the father was actually threatening the justices with harm or inciting anyone to storm into the court building. Thus, his speech was protected and (B) is incorrect. (A) is incorrect because the father cannot constitutionally be punished for the reasons stated above. Moreover, whether the justices actually heard the threats would be irrelevant if the threats were otherwise punishable. (D) is incorrect because the statute is valid on its face, as discussed above.

After the failure of a state bill granting gay and lesbian couples the right to marry, 30 students from a local university marched on the state capitol to protest, carrying signs with slogans such as "let gays marry" and "no religious tyranny." As they marched, about 15 people began following them, shouting anti-gay remarks. At the capitol building, they were met by 50 officers in full riot gear. The leader of the students addressed his followers in the park across the street, vigorously denouncing the legislature's actions, which caused the counter-protestors to become more vocal. The officer in charge told the leader that he must end his speech because a riot was about to start. The leader refused and was arrested and convicted of disorderly conduct. If the leader appeals his conviction on constitutional grounds, will the conviction be reversed? response - incorrect A Yes, because the leader's arrest constituted an interference with his First Amendment right to free speech. B Yes, because the leader's arrest constituted undue interference with the students' right to peaceably assemble under the First Amendment. C No, because the leader's speech caused an immediate and substantial threat to public order. D No, because the leader had a duty to obey the police officer since other avenues of communication likely were available.

Yes, because the leader's arrest constituted an interference with his First Amendment right to free speech. The speaker's conviction will be reversed. A park is a public forum. The government can limit rights of speech in such a forum only when there is a serious and imminent threat to the public order. It can restrict the speech of a speaker because of an unruly audience only in the rare case when the police are absolutely unable to control the crowd. [See Feiner v. New York (1951)] In this question, the conditions under which the police can prevent a speaker from continuing because of an unruly crowd have not been met. There were 50 police officers who would have been able to restrain or subdue anyone who appeared to be intent on committing violence. Hence, (C) is incorrect. (B) is incorrect. No one in the audience has raised any constitutional argument. The speaker probably cannot raise the audience members' First Amendment rights in this situation. (D) is incorrect. The state may not limit access to a public forum on the sole basis that there are other times and places where the right of free speech can be exercised. The state must show a more substantial reason.

A state statute makes it a felony for anyone in the corridors or on the grounds of any building in which a court may be in session to make a speech or carry a sign intended to improperly influence judicial proceedings. When the head of a street gang was on trial for murder, a gang member was arrested for carrying a sign on the steps of the courthouse warning that if the gang leader was not freed, "the judge will die." May the gang member be convicted of violating the state statute? response - correct A No, because the statute could apply to others whose speech is constitutionally protected. B No, unless he personally intended to harm the judge. C Yes, if there was a clear and present danger that the judge would be influenced by the sign. D Yes, because the statute does not violate the freedom of expression guaranteed by the First Amendment.

Yes, because the statute does not violate the freedom of expression guaranteed by the First Amendment. The gang member can be convicted because the statute does not violate the First Amendment. Certain public property (e.g., public streets or parks) is so historically associated with the exercise of First Amendment rights that speech thereon can be regulated only by content-neutral proscriptions. Other places controlled by the government, however, are not so historically linked to speech activities, and in such locations free speech might interfere with the intended use of such locations. Thus, the government can regulate access to these limited public forums and nonpublic forums based on the subject matter of the speech, as long as the regulation is reasonably related to the purpose served by the property and is not designed merely to suppress a particular point of view. A courthouse and its grounds are not a public forum. (The surrounding sidewalks are, but that is not in issue here.) The statute, although based on the subject matter of speech, is viewpoint neutral and reasonably related to the courthouse purpose of promoting a stable, orderly atmosphere in which judicial proceedings can take place, free of improper outside influence or coercion. Thus, the statute is valid and the gang member can be convicted for his actions. (A) is wrong because it is based on an overbreadth argument and the statute here is not overbroad. A regulation of speech that restricts substantially more speech than necessary is unenforceable, even if the speech in question could have been properly restricted by a narrower statute. This doctrine is inapplicable here because the statute is not overbroad: It reaches only speech in the courthouse or on its grounds and only that speech that might improperly influence the judicial proceedings; it does not limit all speech at that location. (B) is wrong because the gang member's personal intent to harm the judge is irrelevant. The statute makes it a crime to make a speech or carry a sign intended to influence the judicial proceeding. The statute does not require that the violator intend to harm anyone. Since the state is entitled to regulate speech or conduct in the courthouse or on its grounds that might interfere with the judicial proceedings, it is entitled to convict the gang member for his actions here regardless of his intent to harm the judge. (C) is wrong because it improperly applies the "clear and present danger" test to these facts. Under the current version of the "clear and present danger" test, a state cannot forbid advocating the use of force or violation of law unless such advocacy is (i) directed to producing or inciting imminent lawless action, and (ii) likely to produce such action. The state statute here does not purport to punish advocacy of force or lawlessness, but rather seeks to further the purpose of maintaining the stability and integrity of the judicial proceedings by regulating access to certain nonpublic areas. Therefore, the restrictions are constitutionally valid and the "clear and present danger" test is inapplicable.

The Supreme Court has ruled that a few categories of speech are not protected by the First Amendment. Among these categories is speech presenting a clear and present danger of imminent lawless action. In determining whether speech falls within this category, the Supreme Court applies the clear and present danger test. Under the clear and present danger test, speech may be sanctioned whenever it __________. response - correct A is patently offensive in affronting contemporary community standards B advocates lawless action, whether presently or in the future C advocates the use of force against the government, whether presently or in the future D is directed to producing or inciting imminent lawless action and is likely to produce such action

is directed to producing or inciting imminent lawless action and is likely to produce such action Speech may be punished or banned under the clear and present danger test whenever it is directed to producing or inciting imminent lawless action and is likely to produce such action. "Advocates the use of force against the government, whether presently or in the future" is incorrect because while such action would be lawless, this choice lacks the imminence requirement. That call to lawlessness has to be "now" and it must be under circumstances likely to produce the action in order to be unprotected speech. The choice "advocates lawless action, whether presently or in the future," is wrong for the same reason. The choice "is patently offensive in affronting contemporary community standards" is part of the test to determine whether something is obscene and is not part of the clear and present danger test.

In First Amendment free speech cases, public property that historically has been open to speech-related activity is called a __________. response - correct A community forum B public forum C limited public forum D designated public forum

public forum A public forum is public property that historically has been open to speech-related activity. Examples include sidewalks and public parks. A designated public forum is public property that usually is not used for speech-related activity, but that the government has opened for such activity at particular times (e.g., a public school gym that can be reserved by the public for use when not being used by the school). A limited public forum is public property that usually is not used for speech-related activity, but that the government has opened up for such activity for a particular purpose (e.g., a school gym that has been opened up to host a political debate). A community forum is not a term used by courts to describe forums for First Amendment purposes. However, there is a fourth forum designation: nonpublic forum, which is public property not open for speech-related activity. A county office building would be an example of a nonpublic forum except to the extent that it is specifically opened to the public for speech-related activities.

A regulation of speech on a particular topic in a nonpublic forum may not limit the speech to one position, to the exclusion of other positions. This rule reflects the fact that such a regulation must be __________. response - correct A narrowly tailored B content neutral C viewpoint neutral D necessary

viewpoint neutral Speech in a nonpublic forum or limited public forum may be reasonably regulated but the regulation must be viewpoint neutral—it cannot permit presentation of one side of an argument and exclude the other. The term content neutral refers to a regulation that is neutral as to subject matter as well as to viewpoint. The terms narrowly tailored and necessary refer to whether a regulation burdens or does not burden substantially more speech than is required to advance the particular government interest.

To be valid, a time, place, and manner regulation of a limited public forum must be __________. response - correct A content neutral and rationally related to a legitimate government purpose B viewpoint neutral and rationally related to a legitimate government purpose C viewpoint neutral and narrowly tailored to achieve an important government interest D content neutral and narrowly tailored to achieve an important government interest

viewpoint neutral and rationally related to a legitimate government purpose To be valid, a time, place, and manner regulation of a limited public forum must be viewpoint neutral and rationally related to a legitimate government purpose. "Viewpoint neutral and narrowly tailored to achieve an important government interest" is incorrect because regulations of limited public forums need not be narrowly tailored to achieve an important government interest—the standard is lower (rationally related to a legitimate government purpose) as indicated above. "Content neutral and rationally related to a legitimate government purpose" is incorrect because 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. "Content neutral and narrowly tailored to achieve an important government interest" is incorrect because, as discussed above, it states both parts of the test incorrectly.