Constitutional Law Ii

Front 1

Checks on Presidential Powers

Impeachment

Back 1

--The president, vice-president, judges, and“officers” of the U.S. may be impeached.

--The house “impeaches” (i.e., indicts) by amajority vote; the senate convicts by a 2/3 vote

--Impeachment may be for high crimes, misdemeanorsor treason, but these terms are defined exclusively by Congress, and suchissues are political questions

Front 2

Checks on Presidential Powers

President’s Pardon Power

Back 2

(1) President has the power to pardon andcommute sentences only for federal crimes, but not state crimes or civilliability

(2) President’s pardon power may not belimited by CongressThe president may not pardon a person for“crimes” for which he or she has been “impeached”

Front 3

State action

Back 3

Constitution applies only to governmentaction; private individuals and companies are not bound by theConstitution

Congress may, by statute, require privateindividuals to conform to constitutional standards

Front 4

There are some instances where private individuals and companies will be considered “state actors” subject to the 14th Amendment, what are these instances? (2 instances)

Back 4

(1) ifa private person or company is performing a traditional, exclusivegovernment function (e.g., operating a company town or conducting a primaryelection) (2) thegovernment affirmatively authorizes, encourages, or facilitates anunconstitutional activity

Front 5

What are examples of state action when the Gov. affirmatively authorizes, encourages, or facilitates an unconstitutional activity? (4 examples)

Back 5

(a) court enforcement of a racially restrictive covenant in a deed or lease; (b) race based peremptory challenges (civil and criminal); (c) the government leases space to a business that discriminates; (d) a private association that regulates high school athletics with mostly government members and funding

Front 6

A private company or association will not beconsidered a “state actor” solely because (6 instances)

Back 6

(1) The government provides its funding, even 99% of its funding;

(2) The government has licensed the company;

(3) The government has approved the company’s name and charter;

(4) The association has government members;

(5) The government regulates the company;

(6) The company is working under a government contract

Front 7

Insurance is provided in the State of Shoshoneonly by private companies. Although thestate insurance commissioner inspects insurance companies for solvency, thestate does not regulate their rates or policies. An insurance company charges higher rates forburglary insurance to residents of one part of the county in Shoshone than toresidents of another section of the same county because of the different crimerates in those areas. Foster is aresident who was charged the higher rate by the insurance company because ofthe location of her residence. Fostersues the insurance company, alleging that the different insurance ratesunconstitutionally deny her the equal protection of the law. Will Foster’s suit prevail?

Back 7

No, private company, not a state actor – onlyway this would be a state actor is if insurance company was owned by Gov.

Front 8

Incorporation

By it terms, the Bill of Rights applies only tothe federal government. The SupremeCourt, however, has held that all of the Bill of Rights have been incorporatedinto the 14th Amendment and thus made applicable to state and localgovernments, except for the: (2 Amendments)

Back 8

(1) Fifth Amendment’s right to a grand jury in a criminal case (e.g. some state that doesn’t provide this benefit and someone sues and states violation of rights)

(2) Seventh Amendment’s right to a jury in a civil case

Front 9

The Rational Basis Test:

Back 9

the challenger must prove that the law is not rationallyrelated to any legitimate government purpose (actual orconceivable); this is the default test in due process and equal protectioncases; “legitimate” means permissible

Front 10

Intermediate Scrutiny:

Back 10

The government must prove that the law is substantiallyrelated to an important government interest

Front 11

Strict Scrutiny:

Back 11

The government must prove that the law is necessaryto achieve a compelling government interest, and that there are noless restrictive alternatives (hence, the law is necessary)

Front 12

Due Process Clause

What are the 2 due process clauses in the Constitution?

Back 12

(1) Due process clause of the 5th Amendment applies to the federal government

(2) Due process clause of the 14th Amendment applies to state and localgovernments. The two clauses have beenconstrued identically.

Front 13

What are the 2 parts of the due process clause?

Back 13

(1) Procedural Due Process requires the government to use a fair process and procedures before depriving a person of life, liberty, or property;

(2) Substantive Due Process guarantees that laws will be reasonable and not arbitrary.

Front 14

Procedural Due Process

Back 14

Beforethe government may deprive a person of liberty (i.e., freedom from confinement)or property (e.g., government job, government benefits, government license),the government must give the person notice of termination (including thereasons for termination) and some form of hearing.

Front 15

7 examples of procedural due process cases:

Back 15

(1) Welfare benefits: notice and an evidentiary hearing priorto termination;

(2) Jobs: pre-termination opportunity to respond; post-termination evidentiaryhearing, unless the job was probationary or short-term;

(3) Suspension from school for more than 10days: notice and opportunity to explain(no evidentiary hearing required);

(4) Prejudgment attachment: preferably, prejudgment hearing, butpost-judgment hearing will suffice in emergencies with a bond;

(5) Driver’s license suspension: pre-suspension hearing, except for refusal totake a Breathalyzer;

(6) Termination of parental rights: pre-termination notice and hearingwith a clear and convincing evidence standard;

(7) Termination of business license: pre-termination notice and some form ofhearing

Front 16

Johnis a licensed barber in State A. TheState A barber licensing statute provides that the Barber Licensing Board mayrevoke a barber license if it finds that a licensee has used his or herbusiness premises for an illegal purpose. John was arrested by a federal narcotics enforcement agent on a chargeof selling cocaine in his barbershop in violation of federal laws. However, the local United States Attorneydeclined to prosecute and the charges were dropped. Nevertheless, the Barber Licensing Boardcommenced a proceeding against John to revoke his license on the ground thatJohn used his business premises for illegal sales of cocaine. At a subsequent hearing before the board, theonly evidence against John was affidavits by unnamed informants, who were notpresent or available for cross-examination. Their affidavits stated that they purchased cocaine from John in hisbarbershop. Based solely on thisevidence, the board found that John used his business premises for an illegalpurpose and ordered his license revoked. In a suit by John to have this revocation set aside, his bestconstitutional argument is that:

(1) John’sinability to cross-examine his accusers denied him a fair hearing and causedhim to be deprived of his barber license without due process of law;

(2) The administrative license revocation proceedingwas invalid, because it denied full faith and credit to the dismissal of thecriminal charges by the United States Attorney;

(3) Article III requires a penalty of the kindimposed on John to be imposed by a court rather than an administrative agency;

(4) The existence of federal laws penalizing theillegal sale of cocaine preempts state action relating to drug trafficking ofthe kind involved in John’s case.

Back 16

(1) John’s inability to cross-examine his accusers denied him a fair hearing and caused him to be deprived of his barber license without due process of law

Front 17

Substantive Due Process

Fundamental Rights

Back 17

Ifa law directly and substantially impairs a “fundamental right,” the court willapply Strict Scrutiny and the law will probably be invalidated.

Front 18

Fundamental Rights protected by the due process clauses:

Back 18

Right to/of:

(1) control the education andupbringing of one’s children

(2) acquire and use contraceptives(regardless of age)

(3) marry (including same-sexmarriages)

(4) procreate (i.e., thus, no forcedsterilization)

(5) custody of one’s children (e.g., agrandparent visitation law has been found to violate this right)

(6) family members to live together(includes extended family, but not unrelated persons)

(7) competent adult to refuse medicaltreatment, even life sustaining medical treatment (but not to commit suicide orfor assistance to commit suicide); a state may require clear and convincingevidence of the patient’s intent; a state may force parents to obtain medicalcare for children

(8) engage in adult, consensual sex inone’s home (probably)

Front 19

State A passes a law banning the sale of condomsto adults and minors in the state. In asuit brought by a party with standing, what standard would the court apply andwho has the burden of proof?

Back 19

This is one of the fundamental rights, so Gov. has burden to show compelling need narrowly tailored

Front 20

Substantive Due Process – Abortion

Back 20

Althougha woman has a constitutional right to decide to terminate a pregnancy, thatright is subject to its own form of scrutiny:

Front 21

Substantive Due Process – Abortion

Test for pre-viability regulations:

Back 21

does the regulation impose an undue burden(i.e., a substantial obstacle) on the woman’s right

Front 22

Substantive Due Process – Abortion

What regulation poses an undue burden?

Back 22

Spousalconsent or notification

Front 23

What regulations do NOT impose an undueburden (there are 3)?

Back 23

(1) 24-hour waiting period

(2) Requirement that abortions be performed by a licensed physician

(3) Parental notice/consent for a minor’s abortion, if the law contains a judicial bypass

Front 24

Test for post-viability abortions

Back 24

A state may ban such abortions, as long as thereare exceptions for abortions necessary to protect the life or health of themother

Front 25

Is there a right to government-subsidized abortions or requirementthat public hospitals perform abortions?

Back 25

No

Front 26

The legislature of State X enacts a statute thatit believes reconciles the state’s interest in the preservation of human lifewith a woman’s right to reproductive choice. That statute permits a woman to have an abortion on demand during thefirst trimester of pregnancy but prohibits a woman from having an abortion afterthat time unless her physician determines that the abortion is necessary toprotect the woman’s life or health. Ifchallenged on constitutional grounds in an appropriate court, this statute willprobably be held:

(a) Constitutional, because the state has made arational policy choice that creates an equitable balance between the compellingstate interest in protecting fetal life and the fundamental right of a woman toreproductive choice

(b) Constitutional, because recent rulings by theUnited States Supreme Court indicate that after the first trimester a fetus maybe characterized as a person whose right to life is protected by the dueprocess clause of the Fourteenth Amendment

(c) Unconstitutional,because the state has, without adequate justification, placed an undue burdenon the fundamental right of a woman to reproductive choice prior to fetalviability

(d) Unconstitutional, because a statuteunqualifiedly permitting abortion at one stage of pregnancy, and denying it atanother with only minor exceptions, establishes an arbitrary classification inviolation of the equal protection clause of the Fourteenth Amendment.

Back 26

(c) Unconstitutional,because the state has, without adequate justification, placed an undue burdenon the fundamental right of a woman to reproductive choice prior to fetalviability.

Front 27

SubstantiveDue Process – Default

Back 27

Ifthe government regulation does not interfere with a fundamental right (orabortion), the regulation will be subject to the rational basis test and thuswill probably be upheld.

Front 28

A statute in the state of East Dakota requireseach insurance company that offers burglary insurance policies in the state tocharge a uniform rate for such insurance to all of its customers residingwithin the same county in that state. Solong as it complies with this requirement, a company is free to charge whateverrate the market will bear for its burglary insurance policies. An insurance company located in East Dakotafiles suit in federal district court against appropriate East Dakota officialsto challenge this statute on constitutional grounds. The insurance company wishes to chargecustomers residing in the same county rates for burglary insurance policiesthat will vary because they would be based on the specific nature of thecustomer’s business, on its precise location, and on its past claimsrecord. In this suit, the court should:

(a) Hold the statute unconstitutional, because itdeprives the insurance company of its liberty or property without due processof law

(b) Hold the statute unconstitutional, because itimposes an undue burden on interstate commerce

(c) Holdthe statute constitutional, because it is a reasonable exercise of the state’spolice power

(d) Abstain from ruling on the merits until thestate courts have had an opportunity to pass on the constitutionality of thestatute

Back 28

(c) Hold the statute constitutional, because it is a reasonable exercise of the state’s police power

Front 29

What are the 2 fundamental rights protected by the equal protection clause?

Back 29

(1) Rightto Vote

(2) Rightto Travel

Front 30

Right to Vote

Back 30

There is a fundamental right to vote innational, state, and local elections; restrictions on voting, other than thosebased on age (18), residency, and citizenship, are generally invalid

Front 31

What restrictions are invalid impediments to the right to vote (there are 3)?

Back 31

(1) A requirement that voters have children in orderto vote in a school board election

(2) Poll taxes

(3) Property ownership (except for “water district”elections)

Front 32

What are the 2 VALID restrictions on the right to vote?

Back 32

(1) Presentation of picture I.D.s (too controversial– likely won’t be tested)

(2) Proof of residency for a short period (e.g.,30-50 days)

Front 33

One person-one vote rule (4 points):

Back 33

(1) Votes may not be diluted by re-districting

(2) Appointments of officials are valid

(3) At-large elections are valid as long as not usedto suppress minority voting power

(4) Racial gerrymandering must meet strict scrutiny

Front 34

Ballot fees and restrictions are subject towhat level of scrutiny

Back 34

strict scrutiny applies

Front 35

Racial restrictions on voting?

Back 35

Invalid under the 15th Amendment

Front 36

The state has a statute providing that anunsuccessful candidate in a primary election for a party’s nomination for electedpublic office may not become a candidate for the same office at the followinggeneral election by nominating petition or by write-in votes. Sabel sought her party’s nomination forgovernor in the May primary election. After losing in the primary, Sabel filed nominating petitions containingthe requisite number of signatures to become a candidate for the office ofgovernor in the following general election. The chief elections officer of the state refused to certify Sabel’spetition solely because of the above statute. Sabel then filed suit in federal district court challenging theconstitutionality of the statute. As amatter of constitutional law, which of the following is the proper burden ofpersuasion in this suit?

(a) Sabel must demonstrate that the statute is notnecessary to achieve a compelling state interest

(b) Sabel must demonstrate that the statute is notrationally related to a legitimate state interest.

(c) Thestate must demonstrate that the statute is the least restrictive means ofachieving a compelling state interest.

(d) The state must demonstrate that the statute isrationally related to a legitimate state interest.

Back 36

(c) The state must demonstrate that the statute is the least restrictive means of achieving a compelling state interest.

Front 37

Right to Travel

Back 37

There is a fundamental right to travelinterstate and to be treated like a long-term resident once becoming apermanent resident of a state

Front 38

Laws that prohibit entering or leaving a state must meet what level of scrutiny?

Back 38

must meet strict scrutiny

Front 39

Durational residency requirements must meet what level of scrutiny?

Back 39

strict scrutiny

Front 40

What durational residency requirements have been held VALID?

Back 40

One-yearfor a divorce

Front 41

What durational residency requirements have been held invalid (there are 2)?

Back 41

(1) One-yearfor welfare benefits

(2) One-yearfor subsidized medical care

Front 42

Benefits that distinguish between long-term andshort-term residents are subject to what level of scrutiny?

Back 42

strict scrutiny

Front 43

Federal restrictions on international travel (Fed Gov. says you can’t travel to acountry) are subject to what level of scrutiny?

Back 43

Rational Basis Test

Front 44

EqualProtection – Classifications (2 points):

Back 44

(1) The Equal Protection Clause guarantees thatsimilarly situated persons will be treated alike.

(2) If a law purposely discriminates againsta group, the law will be subject to the equal protection clause of the 14thAmendment (or the due process clause of the 5th Amendment for the federalgovernment).

Front 45

Thereare 3 classifications for equal protection:

Back 45

(1) Suspect classes

(2) Quasi-suspect classes

(3) All other classifications

Front 46

EqualProtection – Suspect Classes

Back 46

Discrimination in favor of or against suspectclasses is subject to strict scrutiny and will rarely be upheld.

Front 47

There are three suspect classes:

Back 47

(1) Race(2) National origin (ancestry)(3) Alienage (sometimes subject to strict scrutiny)

Front 48

Alienage: Laws that treat documented residents (legalresidents who are not U.S. citizens) differently than U.S. citizens aresometimes subject to strict scrutiny -- Federal Laws versus State Laws -- what level of scrutiny for each?

Back 48

(1) Federal laws: Rational Basis Test only

(2) State laws: Strict Scrutiny (e.g., license to practicelaw, welfare benefits, civil service jobs, notary public license)

Front 49

Exception to level of scrutiny applied with respect to alienage and state laws?

Back 49

Exception: state laws concerningself-government (voting, jury duty, elective office, police officers) and thedemocratic process (public school teachers, probation officers) are subject tothe Rational Basis Test

Front 50

WaterDistrict is an independent municipal water-supply district incorporated underthe applicable laws of the state of Green. The district was created solely to supply water to an entirely newcommunity in a recently developed area of Green. That new community isracially, ethnically, and socioeconomically diverse, and the community hasnever engaged in any discrimination against members of minority groups. The five-member, elected governing board ofthe newly created Water District contains two persons who are members of racialminority groups. At its first meeting,the governing board of Water District adopted a rule unqualifiedly settingaside 25% of all positions on the staff to the District and 25% of allcontracts to be awarded by the District to members of racial minoritygroups. The purpose of the rule was “tohelp redress the historical discrimination against these groups in this countryand to help them achieve economic parity with other groups in oursociety.” Assume that no federal statuteapplies. A suit by appropriate partieschallenges the constitutionality of these set-asides. In this suit, the most appropriate ruling onthe basis of applicable United States Supreme Court precedent would be that theset-asides are

(a) Unconstitutional,because they would deny other potential employees or potential contractors theequal protection of the laws.

(b) Unconstitutional, because they wouldimpermissibly impair the right to contract of other potential employees orpotential contractors.

(c) Constitutional, because they would assuremembers of racial minority groups the equal protection of the laws.

(d) Constitutional, because the function andactivities of Water District are of a proprietary nature rather than agovernmental nature and, therefore, are not subject to the usual requirementsof the Fourteenth Amendment.

Back 50

(a) Unconstitutional, because they would deny other potential employees or potential contractors the equal protection of the laws.

Front 51

EqualProtection – Quasi-Suspect Classes

Back 51

Discrimination in favor of or againstquasi-suspect classes is subject to intermediate scrutiny and willrarely be upheld.

Front 52

What are the 2 quasi-suspect classes?

Back 52

Gender & Non-marital children

Front 53

Quasi-Suspect Classes

Gender: Rule & Exception

Back 53

(1) thegovernment must show an “exceedingly persuasive justification” for laws thatintentionally discriminate based on traditional stereotypes. (2) Exception: But laws designed to remedy past discriminationagainst women (e.g., different methods used to calculate social securitybenefits or different periods for military promotions) are valid

Front 54

Quasi-Suspect Classes

Non-Marital Children

Back 54

A law that treats non-marital children (i.e.,those born out of wedlock) differently than marital children is subject toIntermediate Scrutiny.

Front 55

Example of a VALID law for non-marital children:

Back 55

a law that requires non-marital children toprove paternity before inheriting from their father is valid, because it treatssome non-marital children (i.e., those that can prove paternity) the same asmarital children

Front 56

Example of INVALID law for non-marital children:

Back 56

a law that prohibits all non-maritalchildren from inheriting from their fathers, but allows all marital children toso inherit, is invalid

Front 57

StateY has a state employee grievance system that requires any state employee whowishes to file a grievance against the state to submit that grievance for finalresolution to a panel of three arbitrators chosen by the parties from astatewide board of 13 arbitrators. Inany given case, the grievant and the state alternate in exercising the right ofeach party to eliminate five members of the board, leaving a panel of threemembers to decide their case. At thepresent time, the full board is composed of seven male arbitrators and sixfemale arbitrators. Ellen, a femalestate employee, filed a sexual harassment grievance against her male supervisorand the state. Anne, the state’s attorney,exercised all of her five strikes to eliminate five of the female arbitrators. At the time she did so, Anne stated that shestruck the five female arbitrators solely because she believed women, as agroup, would necessarily be biased in favor of another woman who was claimingsexual harassment. Counsel for Elleneliminated four males and one female arbitrator, all solely on ground ofspecific bias or conflicts of interest. As a result, the panel was all male. When the panel ruled against Ellen on the merits of her case, she filedan action in an appropriate state court, challenging the panel selectionprocess as a gender-based denial of equal protection of the laws. In this case, the court should hold that thepanel selection process is:

(a) Unconstitutional,because the gender classification used by the state’s attorney in this casedoes not satisfy the requirements of intermediate scrutiny.

(b) Unconstitutional, because the genderclassification used by the state’s attorney in this case denies the grievantthe right to a jury made up of her peers.

(c) Constitutional, because the genderclassification used by the state’s attorney in this case satisfies therequirements of the strict scrutiny test.

(d) Constitutional, because the genderclassification used by the state’s attorney in this case satisfies therequirements of the rational basis test.

Back 57

(a) Unconstitutional, because the gender classification used by the state’s attorney in this case does not satisfy the requirements of intermediate scrutiny.

Front 58

EqualProtection – All Other Classifications (rule & caveat)

Back 58

(a) All other classifications are subject to the RationalBasis Test, and thus will generally be upheld (includesclassifications based on age, wealth, education, disabilities, etc.)

(b) Such classifications, however, must be based on“legitimate” government interests.

Front 59

What has the Court held is not a "legitimate" Government interest?

Back 59

Courthas held that animosity toward a particular group (gays, lesbians) or societalfear or dislike of a particular group (the mentally retarded, children ofillegal aliens) is not a “legitimate” government interest.

Front 60

Astate statute provides that persons over the age of 60 must renew theirdriver’s licenses every 24 months. Thelegislature enacted this statute based on evidence that persons lose vision andreflexes around age 60. Persons underthe age of 60 must renew every 6 years. A, who is age 61, brings a suit against the state claiming the statuteviolates the equal protection clause. What standard would apply?

Back 60

Based on age so rational basis review is thestandard to be used and in this case, Gov. will likely win – He will have theburden to show not rationally related to legitimate Gov. interest

Front 61

Takings Clause

Back 61

(1) Federal,state, and local governments have eminent domain power.

(2) Governmentsmay take private property for public use, but the private landowner is entitledto just compensation.

Front 62

What are the 3 kinds of takings?

Back 62

(1) permanent, physical invasion of property;

(2) a government regulation diminished the useand/or value of private property;

(3) EXACTION: the government conditioned a building orconstruction permit on the owner’s agreement to grant an easement to thegovernment or the public or to set aside land for public or third party use

Front 63

Takings

(1) permanent, physical invasion of property

Back 63

(1) Governmentinvades, condemns, destroys or confiscates private property; or

(2) Governmentorders private landowner to permit public or third-party access

Front 64

Takings

(2) a government regulation diminished the use and/or value of private property

Back 64

(1) Alleconomically viable use = per se taking

(2) Otherwise,Ad Hoc Test

Front 65

Ad Hoc Test:

Back 65

(1) The character of the government action;

(2) The protection of reasonable, investment-backed expectations;

(3) The economic impact of the regulation on the particular owner

Front 66

(3) EXACTION: the government conditioned a building or construction permit on the owner’s agreement to grant an easement to the government or the public or to set aside land for public or third party use

Back 66

Test: Does the condition relate to alegitimate government interest and is there a “rough proportionality”between the permit and the condition? If not, it is a taking.

Front 67

If there has been a taking for public use, what must the Gov pay the owner?

Back 67

Just compensation: FMV (the loss to the owner, not the gain to the taker)

Front 68

Company wanted to expand the size of thebuilding it owned that housed Company’s supermarket by adding space for acoffeehouse. Company’s building was located in the center of five acres of landowned by Company and devoted wholly to parking for its supermarket customers. Cityofficials refused to grant a required building permit for the coffeehouseaddition unless Company established in its store a public child care centerthat would take up space at least equal to the size of the proposed coffeehouseaddition, which was to be 20% of the existing building. This action of Cityofficials was authorized by provisions of the applicable zoning ordinance. In asuit filed in state court against appropriate officials of City, Companychallenged this public child-care center requirement solely on constitutionalgrounds. The lower court upheld the requirement even though City officialspresented no evidence and made no findings to justify it other than a generalassertion that there was a shortage of public child care facilities in City. Companyappealed. The court hearing the appeal should hold that the requirement imposedby the City on the issuance of this building permit is

(a) Constitutional, because the burden was onCompany to demonstrate that there was no rational relationship between thisrequirement and a legitimate governmental interest, and Company could not do sobecause the requirement is reasonably related to improving the lives offamilies and children residing in City.

(b) Constitutional, because the burden was onCompany to demonstrate that this requirement was not necessary to vindicate acompelling governmental interest, and Company could not do so on these facts.

(c) Unconstitutional, because the burden was on Cityto demonstrate that this requirement was necessary to vindicate a compellinggovernmental interest, and City failed to meet its burden under that standard.

(d) Unconstitutional,because the burden was on City to demonstrate a rough proportionality betweenthis requirement and the impact of Company’s proposed action on the community,and City failed to do so.

Back 68

(d) Unconstitutional, because the burden was on City to demonstrate a rough proportionality between this requirement and the impact of Company’s proposed action on the community, and City failed to do so.

Front 69

What does the 1A prohibit Congress from doing?

Back 69

(1) Making any law abridging the freedom ofspeech or the press

(2) Making any law abridging the freedom ofreligion (Free Exercise Clause)

(3) Establishing a religion (EstablishmentClause)

Front 70

Do the 1A restrictions on Congress apply to state and local governments?

Back 70

Yes, therestrictions apply to state and local governments via the 14th Amendment

Front 71

Law regulating content of the speech (content-based):

Back 71

Ifthe law regulates the content of the speech, the law must satisfy StrictScrutiny.

Front 72

Content Neutral regulations

Back 72

Content-neutral regulations (e.g., no parades in town or no loud speakers)are subject only to Intermediate Scrutiny

Front 73

What are the 2 types of content based regulations?

Back 73

(1) Thosethat discriminate on the basis ofsubject matter (e.g., “all picketing is banned except for laborpicketing”);

(2) Thosethat discriminate on the basis ofviewpoint (e.g., “all picketing is banned except for pro-laborpicketing”)

Front 74

What are the categories of speech that are unprotected and may be regulated or banned based on content (there are 5)?

Back 74

(1) Clearand present danger

(2) Fightingwords

(3) Obscenity,pornography, and profanity

(4) Defamation

(5) Commercialspeech

Front 75

What about regulations other than 5 mentioned above that ban speech based on its content?

Back 75

All others subject to strict scrutiny

Front 76

Clear and present danger

Back 76

speech that (a)is directed to producing or inciting imminent lawless action, and (b) is likely to produce or incitesuch action, may be banned.

Front 77

Fighting words

Back 77

speech that is likely to incite a physicalretaliation may be banned, but, for the past 50 years, all fighting words lawshave been found to be either unconstitutionally vague (e.g., laws prohibiting“offensive, annoying, or abusive” language) or not view-point neutral (lawsprohibiting “hate speech”)

Front 78

Obscenity protected by 1A?

Back 78

Obscenity is not protected by the FirstAmendment.

Front 79

Obscenity defined as:

Back 79

Obscenity is defined as a depiction of sexualconduct that, taken as a whole, by an average person, applying contemporary community (state or local) standards:

(1) Appealsto the prurient (i.e., shameful or morbid) interest in sex;

(2) Portrayssex in a patently offensive way; and

(3) Doesnot, taken as a whole, have serious literary, artistic, political, orscientific value, using a national, reasonable person standard

Front 80

May the government ban material suitable foradults solely to protect children (reason they ban it is b/c kids can’t see it)?

Back 80

No

Front 81

May private possession of obscenity be outlawed?

Back 81

No

Front 82

Is Adult pornography—as opposed to obscenity—protected speech?

Back 82

Yes

Front 83

Child pornography:

Back 83

material depicting sexual conduct involvingactual minors may be completely banned, even if not “obscene”

Front 84

Adult entertainment establishments TEST:

Back 84

Adult book stores, adult theaters, and stripjoints may be limited to a particular part of the city by zoning ordinances if:

(1) the law is designedto promote a legitimate local interest (e.g., protect residential characterof neighborhood, avoid crime or parking problems) and

(2) The lawdoes not prohibit all such entertainment in the community (a zoning law maylimit it to a very small part of the city)

Front 85

Profanity (Rule & Exception):

Back 85

(1) Profane and indecent language is generally protectedby the First Amendment

(2) Exceptions: broadcast media (but not cable or the Internet) and high schools

Front 86

Defamation:

Back 86

(a) Defamatoryspeech is not protected by the First Amendment

(b) P may not use other torts, such asintentional infliction of emotional distress, to circumvent the restrictions ondefamation

Front 87

Privacy Torts/Crimes:

Back 87

Media may not be subject to criminal orcivil liability for publishing truthfulinformation about a matter of publicconcern that was either lawfullyobtained (e.g., from court records) orwas illegally obtained by someone other than the media

Front 88

Attending Gov. Meetings (Rule & Exception):

Back 88

(a) Neither the public nor the press has a right togovernment information or to attend federal government meetings, etc.,

(b) Exception:except for criminal trials (all important parts of a criminal trial must beopen to the public and the press)

Front 89

Commercial Speech

Back 89

False, misleading, and deceptive commercialspeech, as well as the advertisement of illegal activities, may be banned; allother commercial speech is protected by the First Amendment and may beregulated only if the government satisfies Intermediate Scrutiny

Front 90

What types of commercial speech laws have been invalidated?

Back 90

(a) Laws restricting the advertisement of abortions,contraceptives, prescription drug prices, alcohol prices;

(b) Laws banning news racks for “commercial”publications, but allowing news racks for newspapers;

(c) Laws banning tobacco ads within a 1000 feet ofschools

Front 91

Speech on Gov Property -- Public Forum RULE:

Back 91

For the government to regulate speech in suchpublic forums, the regulation must be (a)content-neutral, (b) areasonable time, place and manner restriction, and (c) must leave open alternative channels of communication.

Front 92

Speech on Gov Property -- Public Forum CAVEAT:

Back 92

The government is NOT required to use the least restrictive means of accomplishing its goals.

Front 93

Speech on Gov Property -- Public Forum: Prisons & Schools:

Back 93

(1) Speech may be regulated in prisons if reasonablyrelated to legitimate penological interests

(2) Speech may be regulated in schools if necessaryto prevent disruption to the educational process.

Front 94

Speech on Gov Property -- Designated (Limited) Public Forum RULE:

Back 94

(1) These are non-public forums that the governmenthas opened, by policy or practice, to speech

(2) Designated public forums are subject to the same rules as public forums,but the government may close the property entirely at any point.

Front 95

Speech on Gov Property -- Designated (Limited) Public Forum EXAMPLE:

Back 95

if a high school opens its classroom after hoursto community groups, it must allow access to all groups, including religiousgroups (i.e., it must be content-neutral).

Front 96

Non-Public Forums

Back 96

Allother government property is non-public. 1. The government may regulate speech in non-publicforums if the regulation is (a) viewpointneutral, and (b) reasonably relatedto a legitimate government purpose.

Front 97

Examplesof non-public forums (there are 10):

Back 97

(1) military bases,

(2) schools,

(3) government workplaces,

(4) courthouses (and grounds),

(5) prisons and jails (and grounds),

(6) post office sidewalks, street signs, etc. (no right to post signs),

(7) airport terminals (there is a right to distribute leaflets but not to solicit funds),

(8) political debates on public television,

(9) ad space on city buses,

(10) government radio stations.

Front 98

Private property:

Back 98

If privateproperty and owner objects to such use, there is no right to use another’s privateproperty (including his or her mailbox) for speech.

Front 99

Speech: Regulating Conduct:

Back 99

Gov may regulate symbolic conduct if:

(1) Theregulation furthers an important government interest;

(2) Thatis unrelated to the suppression of speech, and

(3) Theburden on speech is no greater than necessary.

Front 100

What conduct has been regulated?

Back 100

Draft-card burning, public nudity, nude dancing,littering

Front 101

What conduct is unregulated?

Back 101

Flag burning, cross burning (unless done with the intent tointimidate others), swastika painting, the wearing of black armbands bystudents.

Front 102

Prior Restraints

Back 102

Prior restraints on speech are rarelyconstitutional & strict scrutiny applies

Front 103

What are the 3 types of prior restraints?

Back 103

(1) judicial orders prohibiting speech;

(2) licensing & permit schemes;

(3) seizure

Front 104

Judicial orders prohibiting speech

Back 104

(1) For a court to enter an injunction or other order prohibiting speech, such as agag order on the press, thecourt must satisfy Strict Scrutiny, which it will rarely be able to do

Front 105

Collateral Rule Bar

Back 105

a person must comply with a court injunction even if it is unconstitutional. Failure to do so will result in contempt.

Front 106

Licensing and permit schemes

Back 106

Ifthere is an ordinance or other law requiring a person to obtain a permit orlicense to speak, march, etc., such system must provide (1) definite standards for the granting of the license or permit; (2) no discretion in the grantingofficial (including discretion to charge different amounts); (3) prompt issuance; and (4) prompt judicial review.

Front 107

If a licensing scheme is procedurally improper:

Back 107

the speaker may ignore the scheme andraise a First Amendment challenge in later proceedings

Front 108

If a licensing scheme is facially proper:

Back 108

the speaker must follow these procedures or heor she will be barred from raising First Amendment issues in a laterprosecution

Front 109

Seizure

Back 109

The government physically seizes the means ofspeech (e.g., printing press).

Front 110

Taxing the Press:

Back 110

The press may be subject to general businessregulations and taxes, but may not be singled out for special taxes

Front 111

Political Contributions:

Back 111

Government may limit the amount a person maygive to a particular candidate, but may not limit the amount a person or groupmay spend on an election or referendum

(1) Gov also may not limit the amount a person spends on his or her owncampaign.

Front 112

Loyalty Oaths (what may Gov. allow)

Back 112

Gov. may require a person to swear tosupport the constitutions (state and federal) or swear to oppose unlawfulattempts to overthrow the government to obtain government employment or becomea member of the bar

Front 113

Loyalty Oaths (what Gov. doesn't allow)

Back 113

Persons may not be required to “support the flag” or swear not to “advocate” an overthrow of the government as an abstract idea.

Front 114

Group Membership:

Back 114

A person may not be punished or precluded frompublic employment, etc. because of membership in an organization (e.g., thecommunist party), unless that person was a knowing and active member with thespecific intent to further the organization’s unlawful aims

(1) Lawsthat require groups to disclose membership are subject to strict scrutiny.

Front 115

Government Funding of Speech

Back 115

Government funding may be content-based, as longas it is view-point neutral (e.g., the government may choose artists, etc. towhich to give grants)

Front 116

Government Funding of Speech (Schools)

Back 116

(1) if a college gives financial support to student groups, it may not excludereligious groups

(2) Ifa government union or school requires its students or members to pay a due orstudent fee (part of which will be used to fund speech with which the studentor member disagrees), the due or fee is constitutional, unless its “primarypurpose” is to fund speech.

Front 117

Over broad and Vague:

Back 117

Laws that are vague or overbroad are notenforceable, and may be facially challenged (even by those whose speech wouldnot be protected). A law is overbroad ifit prohibits substantially more speech than required (e.g., “all liveentertainment”).

Front 118

Over broad:

Back 118

A law is overbroad if it prohibits substantially more speech than required (e.g., “all live entertainment”).

Front 119

Vague:

Back 119

Alaw is vague if a reasonable person would not know what speech is prohibited(e.g., “all First Amendment activities”).

Front 120

Right not to speak:

Back 120

1A protects a person’s rightnot to speak; moreover, a person has the right to speak anonymously

Front 121

Example right not to speak:

Back 121

a person may tape over the statement “Live Free or Die” on license plates and a person may not be forced to salute or pledge to the flag);

Front 122

An ordinance of Central City requires everyoperator of a taxicab in the city to have a license and permits revocation ofthat license only for “good cause.” The Central City taxicab operator’slicensing ordinance conditions the issuance of such a license on an agreementby the licensee that the licensee “not display in or on his or her vehicle anybumper sticker or other placard or sign favoring a particular candidate for anyelected municipal office.” The ordinance also states that it imposes thiscondition in order to prevent the possible imputation to the city council ofthe views of its taxicab licensees and that any licensee who violates thiscondition shall have his or her license revoked. Driver, the holder of aCentral City taxicab operator’s license, decorates his cab with bumper stickersand other signs favoring specified candidates in a forthcoming election formunicipal offices. A proceeding is initiated against him to revoke his taxicaboperator’s license on the sole basis of that admitted conduct. In thisproceeding, does Driver have a meritorious defense based on the United StatesConstitution?

(a) No,because he accepted the license with knowledge of the condition and, therefore,has no standing to contest it.

(b) No,because a taxicab operator’s license is a privilege and not a right and,therefore, is not protected by the due process clause of the FourteenthAmendment.

(c) Yes,because such a proceeding threatens Driver with a taking of property, hislicense, without just compensation.

(d) Yes, because the condition imposed ontaxicab operators’ licenses restricts political speech based wholly on itscontent, without any adequate governmental justification.

Back 122

(d) Yes, because the condition imposed on taxicab operators’ licenses restricts political speech based wholly on its content, without any adequate governmental justification.

Front 123

The King City zoning ordinance containsprovisions restricting places of “adult entertainment” to two specified cityblocks within the commercial center of the city. These provisions of theordinance define “adult entertainment” as “live or filmed nudity or sexualactivity, real or simulated, of an indecent nature.” Sam proposes to operate anadult entertainment establishment outside the two-block area zoned for suchestablishments but within the commercial center of King City. When his application for permission to do sois rejected solely because it is inconsistent with provisions of the zoningordinance, he sues the appropriate officials of King City, seeking to enjointhem from enforcing the adult entertainment provisions of the ordinance againsthim. He asserts that these provisions of the ordinance violate the FirstAmendment as made applicable to King City by the Fourteenth Amendment. In thiscase, the court hearing Sam’s request for an injunction would probably holdthat the adult entertainment provisions of the King City zoning ordinance are:

(a) Constitutional, because they do notprohibit adult entertainment everywhere in King City, and the city has asubstantial interest in keeping the major part of its commercial center free ofuses it considers harmful to that area.

(b) Constitutional,because adult entertainment of the kind described in these provisions of theKing City ordinance is not protected by the free speech guarantee of the Firstand Fourteenth Amendments.

(c) Unconstitutional,because they prohibit in the commercial area of the city adult entertainmentthat is not “obscene” within the meaning of the First and FourteenthAmendments.

(d) Unconstitutional,because zoning ordinances that restrict freedom of speech may be justified onlyby a substantial interest in preserving the quality of a community’sresidential neighborhoods.

Back 123

(a) Constitutional, because they do not prohibit adult entertainment everywhere in King City, and the city has a substantial interest in keeping the major part of its commercial center free of uses it considers harmful to that area.

Front 124

A statute of the state of Texona prohibits anyretailer of books, magazines, pictures, or posters from “publicly displaying orselling to any person any material that may be harmful to minors because of theviolent or sexually explicit nature of its pictorial content.” Violation ofthis statute is a misdemeanor. Corner Store displays publicly and sellsmagazines containing violent and sexually explicit pictures. The owner of thisstore is prosecuted under the above statute for these actions. In defending against this prosecution in aTexona trial court, the argument that would be the best defense for CornerStore is that the statute violates the:

(a) First Amendment as it is incorporated intothe Fourteenth Amendment, because the statute is excessively vague and over broad.

(b) FirstAmendment as it is incorporated into the Fourteenth Amendment, because a statemay not prohibit the sale of violent or sexually explicit material in theabsence of proof that the material is utterly without any redeeming value inthe marketplace of ideas.

(c) Equalprotection of the laws clause, because the statute irrationally treats violentand sexually explicit material that is pictorial differently from such materialthat is composed wholly of printed words.

(d) Equalprotection of the laws clause, because the statute irrationally distinguishesbetween violent and sexually explicit pictorial material that may harm minorsand such material that may harm only adults.

Back 124

(a) First Amendment as it is incorporated into the Fourteenth Amendment, because the statute is excessively vague and over broad.

Front 125

The Federal Family Film Enhancement Act assessesan excise tax of 10% on the price of admission to public movie theaters whenthey show films that contain actual or simulated scenes of human sexualintercourse. Which of the following is the strongest argument against theconstitutionality of this federal act?

(a) Theact imposes a prior restraint on the freedom of speech protected by the FirstAmendment.

(b) Theact is not rationally related to any legitimate national interest.

(c) Theact violates the equal protection concepts embodied in the due process clauseof the Fifth Amendment because it imposes a tax on the price of admission toview certain films and not on the price of admission to view comparable liveperformances.

(d) The act imposes a tax solely on the basisof the content of speech without adequate justification and, therefore, it isprohibited by the freedom of speech clause of the First Amendment.

Back 125

(d) The act imposes a tax solely on the basis of the content of speech without adequate justification and, therefore, it is prohibited by the freedom of speech clause of the First Amendment.

Front 126

A public high school publishes a weeklynewspaper as part of its journalism class. The student editor-in-chief of thepaper wrote an article supporting the legalization of marijuana and showed itto his faculty advisor. The advisor told the editor that while the issue wasreceiving a lot of media attention in their community, in order to discouragedrug use, school policy prohibited the paper from including any drug-relatedarticles. The advisor then told the editor not to include the article in anyedition of the paper. A few days later, the editor and faculty advisor werepreparing to upload the electronic files for the paper to their printer. Theadvisor was momentarily called away, and the editor quickly replaced an articleon clothing styles with his article on the legalization of marijuana. When thepaper came out, the article was the talk of the school. After a briefinvestigation, the student was removed from his position as editor-in-chief. Thestudent brought suit against the school, claiming that his removal was inviolation of his First Amendment rights. How should the court rule on this issue?

(a) For the high school, because the newspaperinvolved was a public high school newspaper published as part of a journalismclass.

(b) Forthe high school, because students do not have constitutional rights while theschool is acting as parens patria.

(c) Forthe student, because the issue involved a matter of public concern.

(d) Forthe student, unless the school can show that the removal was necessary toachieve a compelling interest.

Back 126

(a) For the high school, because the newspaper involved was a public high school newspaper published as part of a journalism class.

Front 127

A citizen who is unhappy about a recent decisionof his city council stood in front of city hall and gave an extemporaneousspeech belittling each member of the city council. During the diatribe, the citizen made thefollowing statement: “if there is a God, the city council members will surelyburn in hell forever." A state statute, enacted in 1898, prohibited “thepublic utterance of any blasphemy or sacrilege," and provided criminalpenalties for its violation. On hearing the citizen’s utterances, a policeofficer arrested him for violating the 1898 statute. The local districtattorney decided to proceed with prosecution of the case, only the thirdrecorded such prosecution in the state's history. Which of the followingarguments would not behelpful for the citizen’s defense?

(a) Applicationof the statute to the citizen infringes his freedom of speech in violation ofthe 14th amendment.

(b) Application of the statute to the citizendenies him equal protection of the law in violation of the 14th amendment.

(c) Thestatute violates the 14th amendment because it is an establishment of religion.

(d) Thestatute violates the 14th amendment because it is vague.

Back 127

(b) Application of the statute to the citizen denies him equal protection of the law in violation of the 14th amendment.

Front 128

After a state supreme court overturned theconviction 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 exitedthe supreme court building. The father made the following statement: “each oneof the so-called supreme court justices is worse than a murderer, because theymake it possible for more sons and daughters to be murdered. I'd like to seeevery one of them strung up, like they should have done to the creep who wasset free, and if someone will give me a rope I'll go in there and do itmyself." A state statute prescribes, with criminal penalties, “the makingof any threat to the life or safety of a public official for any act theofficial performed as part of the official’s duties in office." Which ofthe following is correct regarding the statute?

(a) Thevictim's father could constitutionally be punished under the statute, but onlyif the state Supreme Court justices heard the threats he made.

(b) Thevictim's father could constitutionally be punished under the statute.

(c) The victim's father could not beconstitutionally punished under these circumstances, but the statute isconstitutional on its face.

(d) Thestatute is unconstitutional on its face.

Back 128

(c) The victim's father could not be constitutionally punished under these circumstances, but the statute is constitutional on its face.

Front 129

A state statute makes criminal all “speech-making,picketing, or public gathering of any sort on the steps of the supremecourthouse Monday through Friday, between the hours of 8:30 a.m. and 4:30 p.m.,when the court is in session." A citizen is upset about a supreme courtdecision that was just released and stands on the steps of the courthouse atnoon, while court is in session, handing out leaflets and exhorting passersbyto vote the supreme court justices out of office. If the citizen is prosecutedfor violation of the statute, which of the following best describes theapplicable burden of proof?

(a) Thestate will have to show that there was a compelling need for the statute andthat no less restrictive alternatives existed to meet that need.

(b) Thestate will have to show that the statute was narrowly tailored to serve animportant government interest and leaves open alternative channels ofcommunication.

(c) Thecitizen will have to show that there was no compelling need for the statute andthat less restrictive alternatives were available to accomplish the same goals.

(d) The citizen will have to show that therewas no reasonable basis for enacting the statute.

Back 129

(d) The citizen will have to show that there was no reasonable basis for enacting the statute.

Front 130

Free Exercise Clause

Back 130

1A prohibits Congress from passing any law abridging the freedomof religion.

(a) 14th Amendment incorporates this clause,thus making it applicable to state and local governments.

(b) “Religion” includes any sincerely heldreligious-like beliefs.

Front 131

Free Exercise Clause (GENERAL Rule):

Back 131

(1) Free exercise clause may not be used to challenge a neutral law of generalapplicability

(2) If, however, a law was designed to interferewith religion, that law will be subject to strict scrutiny (e.g., the Courtinvalidated a law banning animal sacrifice that was motivated to exclude areligious sect from the city)

Front 132

Free Exercise Clause (SpecialRules):

Person who quits a job/fails to take a job:

Back 132

A person who quits a job or fails to take a jobbecause of sincerely held religious beliefs may not be denied unemploymentbenefits (e.g., refusing to work on Sabbath, refusing to produce armaments); aperson can, however, be denied such benefits if he or she is fired for a violationof the criminal laws (e.g., peyote use).

Front 133

Free Exercise Clause (Special Rules):

Religious oaths

Back 133

Religious oaths may not be required for government employment.

Front 134

Free Exercise Clause (Special Rules):

Amish children

Back 134

Amish children are exempt from mandatorysecondary education.

Front 135

A generally applicable state statute requires anautopsy by the county coroner in all cases of death that are not obviously ofnatural causes. The purpose of this law is to ensure the discovery andprosecution of all illegal activity resulting in death. In the 50 years sinceits enactment, the statute has been consistently enforced. Mr. and Mrs. Longare sincere practicing members of a religion that maintains it is essential fora deceased person’s body to be buried promptly and without any invasive procedures,including an autopsy. When the Longs’ son died of mysterious causes and anautopsy was scheduled, the Longs filed an action in state court challenging theconstitutionality of the state statute, and seeking an injunction prohibitingthe county coroner from performing an autopsy on their son’s body. In this action, the Longs claimed only thatthe application of this statute in the circumstances of their son’s death wouldviolate their right to the free exercise of religion as guaranteed by the Firstand Fourteenth Amendments. Assume that no federal statutes are applicable. Asapplied to the Longs’ case, the court should rule that the state’s autopsystatute is:

(a) Constitutional, because a dead individual is nota person protected by the due process clause of the Fourteenth Amendment.

(b) Constitutional,because it is a generally applicable statute and is rationally related to alegitimate state purpose.

(c) Unconstitutional, because it is not necessary tovindicate a compelling state interest.

(d) Unconstitutional, because it is notsubstantially related to an important state interest.

Back 135

(b) Constitutional, because it is a generally applicable statute and is rationally related to a legitimate state purpose.

Front 136

EstablishmentClause

Back 136

Congressshall make no law respecting the establishment of religion.

(a) 14th Amendment incorporates this clause,thus making it applicable to state and local governments.

Front 137

3 part test for Establishment Clause issues

Back 137

(1) The law’s primary purpose must be secular;

(2) The effect of the law must not be to advanceor inhibit religion (in other words, the government must not symbolicallyendorse religion)

(3) There must not be excessive governmententanglement with religion

Front 138

Unconstitutional? Government sponsored religious activities inpublic schools (elementary, middle and high school)

Back 138

yes

Front 139

Unconstitutional? School prayer and bible reading

Back 139

All school prayer (including voluntary, silent, and, student-ran) during school, at graduation, or at sporting events is unconstitutional; bible reading and the teaching of creationism (or the prohibition of teaching evolution) is unconstitutional

Front 140

Unconstitutional? Gov. aid to religious schools

Back 140

Gov. may give assistance to religious schools as long as the aid is not used for religious instruction

Front 141

Example of Constitutional aid to religious school:

Back 141

Free textbooks to all schools; transportation to and from school for allstudents; diagnostic tests; remedial education, guidance counseling

Front 142

Example of Unconstitutional aid to religious school:

Back 142

Transportation for field trips, payment ofteachers’ salaries, reimbursement for writing achievement tests

Front 143

May schools allow students to leave early to attend religious instruction off campus?

Back 143

Yes

Front 144

May state legislatures may have chaplain?

Back 144

Yes

Front 145

Unconstitutional? Holiday scenes?

Back 145

Holiday scenes are permissible if they includeboth religious and non-religious symbols (e.g., a snowman)

Front 146

Unconstitutional? The 10 Commandments on Gov. property

Back 146

The 10 Commandments may not be displayed ongovernment property, unless they are displayed with other historical documents(e.g., Magna Carta, Declaration of Independence) in an appropriate context

Front 147

Unconstitutional? Subsidies to religious schools & vouches to parents used for religious schools

Back 147

Direct subsidies to religious schools areimpermissible, but vouchers to parents, which may be used for religious andnon-religious schools, are constitutional

Front 148

Laws that discriminate among religions (e.g., Christianity, Islam) must meet what level of scrutiny?

Back 148

Strict Scrutiny

Front 149

The governor of the state of Green proposes toplace a Christmas nativity scene, the components of which would be permanentlydonated to the state by private citizens, in the Green Capitol Building rotundawhere the Green Legislature meets annually. The governor further proposes todisplay this state-owned nativity scene annually from December 1 to December31, next to permanent displays that depict the various products manufactured inGreen. The governor’s proposal is supported by all members of both houses ofthe legislature. If challenged in a lawsuit on establishment clause grounds,the proposed nativity scene display would be held:

(a) Unconstitutional, because the components of thenativity scene would be owned by the state rather than by private persons.

(b) Unconstitutional,because the nativity scene would not be displayed in a context that appeared todepict and commemorate the Christmas season as a primarily secular holiday.

(c) Constitutional, because the components of thenativity scene would be donated to the state by private citizens rather thanpurchased with state funds.

(d) Constitutional, because the nativity scene wouldbe displayed alongside an exhibit of various products manufactured in Green.

Back 149

(b) Unconstitutional, because the nativity scene would not be displayed in a context that appeared to depict and commemorate the Christmas season as a primarily secular holiday.

Front 150

TheHousing Code of the city of Brook Hills limits the occupancy of all dwellingunits to members of a single family. The Code defines "family" tomean a number of individuals related to the nominal head of the household or tohis/her spouse living as a single housekeeping unit in a single dwelling, butlimits that definition as follows: (i) Husband or wife of the nominal head of thehousehold; (ii) Married or unmarried children of the nominalhead of the household or his/her spouse, provided that such children have nochildren of their own living with them; (iii) Father or mother of the nominal head of thehousehold or his/her spouse. ------Jimlives in Brook Hills with his son Ike and Ike's two children, Jake andEdith. The city has informed Jim thatJake and Edith are illegal occupants of his home. In Jim's challenge to the constitutionalityof the Code provision, a court most likely will find the provision:

(a) Constitutional, because it furthers apermissible state objective.

(b) Constitutional, under the state's police power.

(c) Unconstitutional,because it violates the due process guarantee of the fourteenth amendment.

(d) Unconstitutional, because it constitutes ataking of Jim's property

Back 150

(c) Unconstitutional, because it violates the due process guarantee of the fourteenth amendment.

Front 151

TheCommonwealth of Transylvania has a statute providing that females convicted ofprostitution and sentenced to prison must serve their time in a minimum-securitypenal institution. The same statute provides that males convicted ofprostitution and sentenced to incarceration must serve their terms in a maximum-securityprison. Conditions at the maximum-security prison are far inferior to those atthe minimum-security facility. Bubba Convict, a male, has been sentenced toprison at a maximum-security institution, following his conviction forprostitution. Convict has instituted a challenge to his confinement on equalprotection grounds, alleging that it invidiously discriminates against him on thebasis of gender. Which of the following accurately summarizes the burden ofpersuasion on the constitutional issue?

(a) Convict must demonstrate that the classificationis not substantially related to an important state interest.

(b) Convict must demonstrate the lack of a rationalrelation between the scheme and a legitimate state interest.

(c) TheCommonwealth must demonstrate that the scheme is substantially related to animportant state interest.

(d) The Commonwealth must demonstrate that there isa rational relation between the classification and a legitimate state interest.

Back 151

(c) The Commonwealth must demonstrate that the scheme is substantially related to an important state interest.

Front 152

Congresspasses a statute requiring all trucks in the United States to use squaremud-flaps. The State of North Carolinahas a law requiring all trucks in North Carolina to use round mud-flaps. Mud-flaps are difficult and expensive tochange. CTS, Inc. transports goods by trucks in all 50 states and challengesthe North Carolina law. The North Carolina law is most likely:

(a) Constitutional because it does not unduly burdeninterstate commerce.

(b) Constitutional under the 10th Amendment.

(c) Unconstitutionalbecause it violates the Supremacy Clause.

(d) Unconstitutional because it violates theCommerce Clause.

Back 152

(c) Unconstitutional because it violates the Supremacy Clause.

Front 153

TheCounty of Guernsey adopted a Pure Milk and Dairy Act which provided that “nomilk products could be sold within the County which had not gone through apasteurization process in plants inspected by a licensed County inspector.” Thelocal inspectors had no authority to inspect pasteurization plants outside ofthe County. As a consequence, under the County ordinance, milk and dairyproducts from neighboring states were prohibited from sale within the Countyboundaries even though just as rigid pasteurization standards were employed inthose areas. In an action challenging the constitutionality of the Pure Milkand Dairy Act of Guernsey County, which of the following would have the beststanding?

(a) A Guernsey County milk and dairy inspector.

(b) A resident-consumer of Guernsey County.

(c) A milkproducer from a neighboring state.

(d) A Guernsey County milk producer.

Back 153

(c) A milk producer from a neighboring state.

Front 154

Assumethe same facts as the prior slide. If the ordinance is constitutionallychallenged in federal court by a plaintiff with proper standing, the courtwould most likely:

(a) Uphold the ordinance as a valid exercise of theCounty’s power to protect the local health interests of its residents.

(b) Invalidatethe ordinance as a discriminatory burden on interstate commerce.

(c) Uphold the ordinance under the 10th Amendment,which reserves to the states the power to protect the health and safety oftheir residents.

(d) Uphold the ordinance under the Ninth Amendment.

Back 154

(b) Invalidate the ordinance as a discriminatory burden on interstate commerce.

Front 155

Congressrecently passed, with the President's signature, the Smog Control Act. The lawcreates the Smog Alert Agency, and empowers the Agency to promulgate rules andregulations governing air quality standards for the nation. Shortly thereafter,the Agency issued a regulation requiring that every new motor vehicle operatingin the United States be equipped with a specified air/fuel control device. Inaccordance with the statute, the President is authorized to appoint six membersto the Agency. The other three positions are to be appointed by theSenate. Which of the following argumentsprovides the strongest constitutional challenge to the law?

(a) The President may not appoint a majority ofmembers to an administrative agency.

(b) Congressmay not vest in itself the appointment of inferior officers.

(c) An administrative agency may not promulgateregulations that unduly burden interstate commerce.

(d) An administrative agency that exercisesexecutive power may not have a majority of its members appointed by thePresident.

Back 155

(b) Congress may not vest in itself the appointment of inferior officers.