CAS Bar Constitutional Law 2 — Questions and Answers
Question 1: A city ordinance bans all political signs in residential neighborhoods to reduce visual clutter. Under First Amendment doctrine, this law must survive:
- Rational basis review
- Intermediate scrutiny
- Strict scrutiny (Correct answer)
- Heightened scrutiny only if viewpoint-based
Correct answer: Strict scrutiny
Content-based speech restrictions—targeting signs based on their political message—are presumptively unconstitutional and must survive strict scrutiny.
Question 2: Under the Lemon test, a government action violates the Establishment Clause if it:
- Has any incidental religious effect
- Lacks a secular purpose, primarily advances religion, or creates excessive government entanglement with religion (Correct answer)
- Endorses a specific religious denomination over others
- Compels religious observance by any person
Correct answer: Lacks a secular purpose, primarily advances religion, or creates excessive government entanglement with religion
Lemon v. Kurtzman (1971) set a three-pronged test: secular purpose, neutral primary effect, and no excessive entanglement with religion.
Question 3: The state action doctrine holds that:
- All private discrimination is prohibited by the Constitution
- Constitutional rights protections bind only government actors, not purely private parties (Correct answer)
- States must affirmatively protect citizens from private rights violations
- Federal law must preempt before states may restrict individual rights
Correct answer: Constitutional rights protections bind only government actors, not purely private parties
Constitutional protections for individual rights generally constrain only government conduct, leaving purely private conduct unregulated by the Constitution.
Question 4: Under Employment Division v. Smith, a neutral, generally applicable law that incidentally burdens religious practice:
- Is automatically unconstitutional
- Must survive strict scrutiny
- Need only satisfy rational basis review (Correct answer)
- Requires a compelling interest regardless of the law's neutrality
Correct answer: Need only satisfy rational basis review
Smith held that neutral, generally applicable laws pass constitutional muster under the Free Exercise Clause without requiring heightened justification.
Question 5: A prior restraint on speech is:
- Presumptively constitutional when national security is implicated
- Presumptively unconstitutional and subject to the heaviest burden of justification (Correct answer)
- Subject to intermediate scrutiny under all circumstances
- Prohibited only when the restricted speech involves a matter of public concern
Correct answer: Presumptively unconstitutional and subject to the heaviest burden of justification
Prior restraints—government action that suppresses speech before it occurs—carry a heavy presumption of unconstitutionality.
Question 6: The doctrine of unconstitutional conditions provides that:
- Governments may withhold benefits to compel waiver of constitutional rights
- Governments cannot condition a benefit on the recipient's surrender of a constitutional right (Correct answer)
- Conditions on government contracts are fully enforceable regardless of their subject matter
- Speech may be conditioned on government benefit receipt if a compelling interest exists
Correct answer: Governments cannot condition a benefit on the recipient's surrender of a constitutional right
The government cannot use benefit programs as leverage to coerce the relinquishment of constitutionally protected rights.
Question 7: Under Garcetti v. Ceballos and Pickering v. Board of Education, a public employee's speech receives First Amendment protection when:
- Made at any time, whether on-duty or off-duty
- The employee speaks as a citizen on a matter of public concern (Correct answer)
- The speech concerns terms and conditions of employment
- The employer has no legitimate efficiency interest in regulating it
Correct answer: The employee speaks as a citizen on a matter of public concern
Public employee speech is constitutionally protected only when the employee speaks as a citizen on a matter of public concern, not when speaking pursuant to official duties.
CAS Bar Constitutional Law 2
A city ordinance bans all political signs in residential neighborhoods to reduce visual clutter.
Under First Amendment doctrine, this law must survive: