Define
Free Exercise Clause
Prohibits the government from outlawing or preventing the exercise of religious beliefs
More info: Free Exercise Clause
Laws that intentionally target religious beliefs are subject to what level of scrutiny?
Strict scrutiny
Laws that only incidentally impact religion are subject to what level of scrutiny?
Rational basis review
Define
Establishment Clause
Prohibits the government from endorsing or supporting a particular religion
More info: Establishment Clause
Laws promoting a particular religion are subject to what level of scrutiny?
Strict scrutiny
What is the 3-part test to determine whether a law violates the Establishment Clause?
Note: This has been overruled, but still be prepared with the old test. See reverse side of card for more detail.
Lemon test:
- Action must have a secular (non-religious) purpose;
- Primary effect must neither advance nor inhibit religion; and
- Action does not excessively entangle the government with religion
⚠️ Action will only be upheld if it meets all 3 elements of the Lemon test and only regulates practice of religion; not belief (gov. can never regulate beliefs)
2023 NOTE: The Lemon test has been overruled by Kennedy. The MBE may still test it and it may not - be prepared for both situations. Barbri is continuing to test it.
When is government aid to private, religious schools allowed?
- Aid is for secular instruction/purpose; and
- Does not excessively entangle government (i.e. doesn’t require gov. to oversee programming/funding disbursement)
Are tax deductions given to parents of students in religious schools constitutional?
Yes, as long as they are also given to parents of students in secular schools
Are tax exemptions for religious organizations constitutional?
Yes, as long as they are also given to other non-profit organizations
Is allowing a religious organization to hold its meetings in a public school constitutional?
Yes, as long as there are a broad range of organizations using the facilities and none are given preferential treatment
What is the constitutionality of school prayer? A moment of silence designated for prayer?
Both unconstitutional*
*Note: Kennedy v. Bremerton School District, 597 U.S. (2022) essentially overturned the Lemon Test. This update will likely not be tested on the MBE, but be aware of both possible answers.
What is the constitutionality of student led prayer at a public high school football game?
Unconstitutional.
**This changed in the recent decision Kennedy v. Bremerton School Dist. (06/27/2022), but the MBE will likely not be updated to reflect this in July 2022.
Is posting the Ten Commandments in a classroom constitutional?
No
Is displaying the Ten Commandments on public property constitutional?
No, if the display has a “predominantly religious purpose.” If secular or historical purpose, may be considered constitutional
What is the constitutionality of religious holiday displays in public places (e.g. courthouse)?
Constitutional if surrounded by other holiday symbols that make it clear government is not promoting specific religion
What is the freedom of association?
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
When can someone be fired or prevented from gaining public employment for association with a group?
- D is active member of subversive organization;
- D knows about the group’s illegal activities; and
- D has specific intent to further illegal activities
What oaths can public employees be required to take?
- Oath to support the Constitution; and
- Oath to oppose a legal or violent overthrow of government
When can a candidate be denied admission to the bar?
On the basis of political affliation if candidate is:
- An active member of subversive organization;
- Knows about the group’s illegal activities; and
- Has specific intent to further illegal activities
Or if candidate interferes with investigation into qualifications
Can the government require disclosure of group membership?
Yes, but if the disclosure would have chilling effect, restriction must meet strict scrutiny.
Define
overbroad
Regulation that restricts substantially more speech than is constitutionally allowed (i.e. restricts unprotected and protected speech).
Renders regulation void.
Define
public forum
Places historically open to the public for expression (e.g. parks and sidewalks). Can be either traditional or designated.
Define
prior restraint
Blocks speech before it is expressed. Subject to strict scrutiny.
⚠️ Highy unfavored and presumptively unconstitutional except in extremely rare instances
More info: Prior Restraint
When is a prior restraint on speech allowed?
Only allowed in extremely rare circumstances such as:
- During wartime or national security crisis to protect troops/citizens; or
- To prevent incitement of violence
When can the government regulate speech that is incitement to violence?
Regulation must be narrowly tailored and only aimed at:
- Speech that promotes or directs imminent illegal action; and
- Creates a “clear and present danger” of such action
Define
fighting words
Substantially likely to provoke an immediate violent reaction (e.g. direct personal insult)
What is the 3-prong test to determine whether speech is obscene?
- Appeals to “prurient interests;” (community standard)
- Depicts or describes sexual conduct in a way that is patently offensive to community standards and applicable state law; and
- 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.
Do the public and press have a right to attend trials?
Criminal trials: Yes, but can be overruled upon showing of overriding interest
Civil trials: Unclear
What 5 types of speech can be regulated on the basis of content? (i.e. unprotected speech)
- Obscenity;
- Incitement;
- Fighting words;
- Defamation; and
- Commercial speech
⭐️ Can be regulated as long as statute is narrow, does not need to meet strict scrutiny
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
⚠️ Note: This includes pretrial detainees, parolees, and those on probation
Does the press have more First Amendment rights than the general public?
No, same rights public at large
Can the government regulate broadcast TV?
Can only fine stations for airing “patently offensive and excretory speech”
Content-based regulations of cable TV are subject to what level of scrutiny?
Strict scrutiny
Content-neutral regulations of cable TV are subject to what level of scrutiny?
Intermediate Scrutiny
(e.g. “must carry” provisions)
What is the four-part test to determine whether regulation of commercial speech is constitutional?
Must satisfy Central Hudson Test:
- Speech is not false, misleading, or illegal;
- Regulation serves substantial government interest;
- Regulation directly advances interest; and
- Regulation is not more extensive than necessary to serve that interest
More info: Central Hudson Test
Define
commercial speech
Speech whose primary goal is commerce (e.g. commercial or advertisement for a product or service)
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)
What does the First Amendment protect?
Freedom of expression (speech, press, assembly, & association)
What is unprotected commercial speech?
Speech that is misleading, false, or unlawful and can be regulated freely by the government
Is profanity protected?
Yes unless:
- Broadcast over public television; or
- In public schools
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
⭐️ If you see a question on the MBE with a fighting word statute, it is extremely likely it will be too vague or overbroad
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.
⭐️ Subject to strict scrutiny ⭐️
Define
viewpoint neutral restriction
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
Define
content-neutral restriction
Applies neutrally to all content regardless of viewpoint or subject matter.
Ex. time, place, or manner restriction
⭐️ Subject to intermediate scrutiny
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
3 requirements needed for a valid time, place, or manner restriction in a public forum
Restriction is:
- Content-neutral;
- Leaves open ample, alternative channels of communication; and
- Narrowly tailored to serve significant government interest (not compelling gov. interest)
Is there a right to picket a single residence?
No
When will a regulation on speech in a designated public forum be upheld?
When forum is open for speech and:
- Regulates time, place, or manner (i.e. is content-neutral);
- Is narrowly tailored to serve significant government interest; and
- Leaves open ample, alternative channels of communication
(same as test for traditional public forum)
Define
non-public forum
Public property that is not open to speech (e.g. schools, jails, airports)
When is a restriction on speech in a non-public forum valid?
- Viewpoint neutral (**does not need to be content neutral); and
- Reasonably related to a legitimate government purpose
Define
vagueness
Restriction is void for vagueness if reasonable person does not understand what the law requires or prohibits
Define
symbolic speech
Expressive conduct meant to convey a particular message (e.g. wearing black arm bands in protest)
When can the government regulate symbolic speech?
- Regulation furthers important gov. interest;
- Interest is unrelated to suppression of the message; and
- Impact on speech is no greater than necessary to achieve interest
Are restrictions on the following constitutional:
- Flag burning
- Public nudity
- Leafleting
- Cross burning
- Unconstitutional
- Constitutional b/c interest in harmful effects
- Constitutional b/c interest in littering
- Unconstitutional unless action is meant to threaten
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)
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”)
