Constitutional Law MBE Practice Test 2017
A group of women employed by a state government recently sued the state under Title VII of the Civil Rights Act of 1964, on the basis of allowing the creation of a hostile work environment against them. An amendment to that act extends coverage to the states as employers. The federal district court allowed an injunction to prevent further discrimination but refused to allow money damages and legal fees against the state on the basis of 11th Amendment sovereign immunity. The plaintiffs appealed. What should the Court of Appeals decide based on the established jurisprudence regarding sovereign immunity?
The Eleventh Amendment and the state sovereignty that it embodies are limited by the provisions of the Fourteenth Amendment, which grants Congress authority to enforce "by appropriate legislation" the provisions of the Fourteenth Amendment, which themselves are significant limitations on state authority. See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976).
A group of neighbors sued an industrial plant under the provisions of the federal Clean Water Act for discharging mercury and other poisons into a river near their properties. The group asked for an injunction and civil penalties to stop the discharges. The discharges were tested and exceeded the maximum amounts of several pollutants allowable under federal regulations. After the suit was filed, the industrial plant ceased the polluting activities and was able to get its discharges into compliance, and obtained a renewal of its permit. The company then asserted that the lawsuit was moot. What was the likely decision of the federal court?
A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. In this case that possibility of a resumption of illegal activities still existed. Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (1999).
A criminal defendant was convicted of robbery and sentenced to ten years in prison, starting on Jan. 1, 2000. Sec. 204 of the state penal code provided for early release for good behavior, and under that provision he would have been granted supervised release as of Jan. 1, 2007. On Feb. 1, 2006, the state legislature repealed Sec. 204 and passed Sec. 205a. It reduced the good time credits for anyone convicted from that date onward, and also for anyone in prison as of the date of the section’s passage. The new release date was calculated to be Jan. 1, 2009. The criminal defendant brought a habeas corpus action arguing that Sec. 205a was an unenforceable ex post facto law as to him. The state courts turned him down saying that good time credit was a privilege and not a vested right. The case ultimately came before the U.S. Supreme Court. Did the Supreme Court invalidate Sec. 205a as an unconstitutional ex post facto law?
The constitutional prohibition against ex post facto laws forbids punishment more severe than what was applicable when the criminal act occurred. Here it was retrospective and it made the criminal defendant’s punishment more onerous. The issue of being “vested” in good time right is irrelevant in an ex post facto analysis. See Weaver v. Graham, 450 US 24 (1981).
The owner of real estate neglected to pay his real estate tax bills. The county tax bureau sent a notice by certified mail to him at the property address informing that the property would be sold at a public sale if the taxes were not paid. Nobody was home to sign for the letter and nobody claimed it. It was returned to the county marked “unclaimed.” One year later the property was advertised in the local newspaper and exposed to public sale. Prior to completing the sale, the county sent another notice to the owner that came back “unclaimed.” The buyer at the sale tried to evict the owner. The owner filed a complaint against the county and the buyer claiming a taking of his property without due process. The state courts held that the procedure complied with due process notice. The case came before the U.S. Supreme Court. What was the likely decision of the Supreme Court regarding the method of notice provided here?
When a notice of a tax sale is returned as unclaimed, a State must take additional reasonable steps to attempt to provide notice to the owner prior to selling his property, if it is practicable to do so. In this case, a notice could have been posted on the front door, and the notice could have been sent also by regular mail. If the regular mail was not returned, that would indicate notice received. See Jones v. Flowers, 547 U.S. 220 (2006).
A law student and two friends were at a mall peacefully handing out fliers protesting the country’s military involvement in a Middle Eastern country. The mall owner called the police, who warned them to stop or they would be arrested. They returned the next day and continued to leaflet. The police came again and issued another warning. The law student left to avoid arrest, but his friends stayed and were arrested for criminal trespass and loitering. The law student, in an attempt to get an advance ruling on the constitutionality of the criminal ordinances and propriety of police actions, filed an action in federal court asking for declaratory relief. Based on Supreme Court precedent, how should the federal district court rule?
Federal declaratory relief may be allowed when no state prosecution is pending and a federal plaintiff shows a genuine threat of enforcement of a disputed state criminal statute. See Steffel v. Thompson, 415 U.S. 452 (1974). This is an actual controversy under Art. III of the Constitution; this is not imaginary or speculative, and petitioner need not expose himself to actual arrest or prosecution to make his constitutional challenge.
A grower based in one state grew and marketed corn nationwide. The U.S. Congress passed a law attempting to stabilize the price of corn by limiting the volume of corn produced by growers to a specified volume per each cubic acre, on a semi-annual basis. The Department of Agriculture fined the grower for exceeding the production volume. He only intended to use the excess for feeding his livestock and domestic purposes, but he was ordered to destroy it. The grower brought an action claiming that his substantive due process rights had been illegally interfered with. He asked for an injunction and reparations. What would be the most likely decision of the court?
The power to regulate interstate commerce includes the power to regulate the prices of the commodities that flow in commerce. The corn grown for home consumption could influence prices, both because it might creep into the market when prices rise, and even if never marketed, it supplies the need of the grower which would otherwise be met by his purchases in the open market. See Wickard v. Filburn, 317 U.S. 111 (1942).
A state law required that whenever a newspaper prints an editorial criticizing a candidate for office, his character or personal record on the issues, it must provide space for the opposing candidate to reply to the criticisms. A failure to do so is a second-degree misdemeanor. A candidate demanded space for responding to an editorial in a local newspaper that was critical to his character and his candidacy. The newspaper refused to comply. The candidate brought an action seeking declaratory and injunctive relief, and requesting actual and punitive damages. Based on U.S. Supreme Court precedent, what did the court likely decide?
The statute threatens the free expression of opinions by the newspaper. Newspapers might take the safe route and not comment to avoid controversy and the expense of printing a reply. The First Amendment protects the free discussion of governmental affairs, including of the candidates. Such regulation of the process is inconsistent with the guarantees of a free press. See Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974).
A state started conducting random vehicle stops at highway roadblocks to look for drugs. A young man was In a civil case in federal court between two pharmaceutical companies involving a dispute over the rights to an anti-HIV drug, one of the litigants exercised some of its peremptory strikes to keep gay persons off of the jury. The other company challenged and appealed the procedure on the basis of a denial of equal protection to the prospective jurors. What was the most likely ruling of a three-judge panel of the United States Court of Appeals?
The Supreme Court has made some landmark decisions upholding equal protection and due process for persons regardless of sexual orientation. In U.S. v. Windsor, 570 U.S. ______ (2013), the Court held that provisions of the Defense of Marriage Act were unconstitutional under federal due process principles. In the instant case, it is a denial of equal protection to deny a person a seat on a jury panel due to nothing other than sexual orientation. See Smith-Kline Beecham v. Abbott (9th Cir., No. 11-17357) (2014).
A high school student was running for president of the student council. He was a top scholar who had been selected to be the class valedictorian. Inexplicably, he gave a campaign speech at a school assembly that was filled with graphic stories and anecdotes about the imagined sexual adventures and prowess of certain teachers and students. Several teachers and students complained. The principal suspended him for five days and retracted the valedictorian honors. The student, with his parents, sued in federal court, seeking an injunction and damages based on denial of First Amendment free speech rights. The federal courts ruled for the student but the case came before the U.S. Supreme Court for final decision. Did the Supreme Court uphold the relief granted to the student?
The state has interests in teaching high school students how to conduct civil and effective public discourse and in avoiding disruption of educational school activities. In a high school setting, although political expression is generally not restricted, students do not have the same latitude given to adults. See Bethel School Dist. No. 403 v. Fraser, 478 US 675 (1986).
A city school board presented a bond issue to the public for $5 million to modernize some city schools. During the public debate on the proposal, a middle school teacher had published two “letters to the editor” criticizing the “duplicitous” practices of certain school board members in using “backroom politics” to try and get the vote approved. He doubted the need for new expenditures and criticized the superintendent of schools for trying to influence teachers on the issue. After the bond issue passed, the school district brought internal charges against the teacher, and after a hearing he was fired. He brought a state court action claiming an unconstitutional interference with his First Amendment free speech rights. The claim was rejected, and the highest state appellate court upheld the termination. After hearing the case on appeal, will the United States Supreme Court uphold the teacher’s firing?
The Supreme Court has held that the public interest in having free and unhindered debate on matters of public importance—the core value of the Free Speech Clause of the First Amendment—is so great that the speech is protected unless such statements are shown to have been made either with knowledge of their falsity or with reckless disregard for their truth or falsity, and there is no suggestion here of the comments being defamatory. See Pickering v. Board of Ed. of Township High School Dist. 205, Will County, 391 US 563 (1968). Additionally, the teacher was acting as a private citizen and not in the course of performing his duties, as distinguished by the Supreme Court's opnion in Garcetti v. Ceballos, 547 U.S. 410 (2006). Thus, the teacher's speech was duly protected by the First Amendment.
A state statute provides that any public official found guilty of misconduct in office by his superiors should be permanently banned from holding any state employment or being appointed to any state office at any time in the future. Would the statute pass constitutional muster and why?
A bill of attainder is a legislative act which inflicts punishment without a judicial trial. It applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial. Example: U.S. v. Brown, 381 U.S. 437 (1965).
A city park accepted a limited number of privately funded and donated monuments. One of them was a monument displaying the Ten Commandments, which the Kiwanis International donated in a campaign against juvenile delinquency 50 years ago. A non-denominational church organization recently demanded that the city provide space in the park for the church to erect a monument giving the seven precepts of the church. The city rejected the request, and the church sued the city requesting injunctive action to compel the city to provide space for its religious display. The church argued that the city was in violation of the religious establishment clause of the First Amendment by allowing the Ten Commandments. The church said that the monument was an establishment of religion and that all religions should be allowed to display equally or none should be allowed. Based on modern precedent, what will the court decide?
Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause. Van Orden v. Perry, 545 U. S. 677, 690 (2005) There is a sufficiently secular message of the Ten Commandments. They have undeniable historical meaning in the American heritage. A non-religious organization donated it for non-religious purposes, and it went unchallenged for 50 years. A reasonable observer, mindful of the history, purpose, and context, would not conclude that this passive monument conveyed the message that the State was seeking to endorse religion, even though it also had to be recognized that the Ten Commandments had religious significance. Id. at 545 U. S. 682-683. See also Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 845-846 (1995) (warning against the "risk [of] fostering a pervasive bias or hostility to religion, which could undermine the very neutrality the Establishment Clause requires").
A private organization applied annually for a parade permit to march in the Italian section of the city to celebrate Italian-American Immigration Day. A group of gay, lesbian and bisexual Italian-Americans applied for a permit to join in the parade. The state, pursuant to its public accommodations law, ordered the organization to allow the group in the parade. The organization filed suit, arguing that its right to free speech and expression would be interfered with by having a group with a message different from its own. Because the group was formed to celebrate the members’ sexual orientation, the organization objected to having that message included. What is the most likely decision of the court based on U.S. Supreme Court precedent?
A parade is a form of free speech. This use of the State's power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message. The government does not have the power to compel the speaker to alter the message by including one more acceptable to others. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. - 515 U.S. 557 (1995).
A state passed Public Health Law 2122(a), which provides for exemption from immunization for school age children if they are "...members of a recognized religious organization whose beliefs are opposed to immunizations..." A couple applied to the school district for an exemption from immunizations on behalf of their child. They were not members of a recognized religious organization; instead, they requested an exemption based on their personal spiritual beliefs against immunization. Will the courts declare the existing exemption to be invalid?
The state does not have to provide for an exemption, but where it does so provide, it cannot discriminate. Permissive accommodation of religious beliefs requires neutrality to religions and religious beliefs, or else the state becomes entangled in favoring a religion or type of religion in violation of the First Amendment's prohibition against the establishment of religion.
A church located in a western state was a branch of a church originating in a South American country. It received a large shipment from its home church of a special hallucinogenic tea that is used in the church’s sacramental religious services. The federal government seized the shipment, preventing the religious use of the tea. The church filed for an injunction requesting permission to import the tea for religious purposes and to prohibit any federal prosecutions. The government presented no evidence as to the dangers of the tea or reasons to outlaw it other than an analysis of its ingredients contained a natural chemical compound that was listed as a Schedule I prohibited substance. What is the most likely decision of the federal district court to the petition of the church?
The government was unable to detail the compelling interest in barring religious usage of a tea, especially when applying strict scrutiny as the RFRA demands of such interferences. The argument that because it’s a controlled substance it is per se a compelling government interest is incorrect, because for example, there are exceptions granted to Native Americans (American Indians) for the religious use of peyote. See Gonzalez v UDV, 546 U.S. 418 (2006).
A state law required voters to present a photo identification card at the time of voting. If they did not, they could cast a provisional vote and present an ID within 10 days or sign an affirmation that they were unable to afford one. Actually, ID cards were free at state agencies. Disgruntled voters sued to have the provision declared unconstitutional. What was the most likely decision of the courts?
Because the cards are free, the trouble of going to the Bureau of Motor Vehicles, gathering required documents, and posing for a photograph is not a substantial burden on most voters' right to vote, and is not a significant increase over the usual burdens of voting. See Crawford v. Marion County Election Board, 553 U.S. 181 (2008
A “disturbing the peace” ordinance passed by a city government prohibited the “sidewalk assembly of three or more persons who conduct themselves in a manner annoying to persons passing by . . . ." A group of three college students assembled on a busy and crowded sidewalk and gave speeches about the decline of democracy in America. They were arrested and prosecuted under the ordinance. Their appeals led to challenging the constitutionality of the provision in a federal district court. What is the likely decision of the federal court?
The ordinance makes it completely subjective as to what is prohibited. Laws must give the person of ordinary intelligence a reasonable chance to know what is prohibited, so that he may act accordingly. Second, to stop arbitrary and discriminatory enforcement, laws must provide explicit standards for enforcement. A vague law gives too much unbridled power to enforce the law indiscriminately, without defining parameters.
A state started conducting random vehicle stops at highway roadblocks to look for drugs. A young man was driving alone when he was pulled over with 12 other cars for a narcotics detection search. About 30 officers were involved in conducting the drug searches. After the stop, officers walked drug-sniffing dogs around the young man’s car and the other cars. An officer advised each motorist that this was a brief stop for a drug checkpoint, and asked the young man and the other drivers to produce a license and registration. The officer looked over the young man for signs of drug impairment and conducted an open -view examination of the car from the driver’s side window and the other windows. The young man was not arrested but he later filed an injunctive action in a United States District Court, demanding the police be prohibited from continuing the random drug searches. The lawsuit claimed Fourth Amendment violations based on unreasonable searches and seizures. The district court dismissed the case, but on appeal, the U.S. Circuit Court of Appeals reversed and ordered issuance of an injunction. On appeal to the U.S. Supreme Court, did the plaintiff prevail in his assertion that the procedure was unconstitutional?
This hypothetical is modeled after Indianapolis v. Edmond, 531 US 32, 41-42 (2000). A general-purpose roadblock for detecting narcotics violates the rule that searches and seizures be reasonable under the Fourth Amendment. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. See Chandler v. Miller, 520 U. S. 305, 308 (1997). The Edmond Court held that there were only limited exceptions to the general rule that a seizure must be accompanied by some measure of reasonable suspicion or probable cause against an individual motorist. The Court said it would not credit the "general interest in crime control" as justification for a regime of suspicionless stops. Because the primary purpose of these narcotics checkpoints was to uncover evidence of ordinary criminal wrongdoing, and not to assure highway safety or for border patrol purposes, the program contravenes the Fourth Amendment. If the court did not draw the line at roadblocks designed primarily to serve the general interest in crime control, such intrusions would become a routine part of American life. 520 U.S. at 42.
A single mother and her two children received welfare benefits, including cash grants, medical assistance and other programs. The state welfare agency sent a letter of notification of cessation of benefits. The letter said that the family was no longer eligible but did not say why. The mother filed an action in federal court asking for an injunction against the state agency for taking their benefits without due process of law. They argued that a pre-termination hearing at the least was necessary under procedural due process requirements. What will be the court’s likely ruling?
Welfare benefits are a matter of statutory entitlement, and procedural due process is applicable to their termination. The recipient’s interest in receiving assistance, which provides her with essential food, clothing, housing, and medical care, coupled with the State's interest that her payments not be erroneously terminated, clearly outweighs the State's competing fiscal concerns. The stakes are too high to allow termination of aid without first giving the recipient a chance to know the case against her, to contest it and to produce evidence in rebuttal. See Goldberg v. Kelly - 397 U.S. 254 (1970).
A regional planning commission ordered a temporary cessation of all construction in a large planned residential development in order to formulate a comprehensive land-use plan, and to study the environmental impact on a large natural lake adjoining the property. After some 24 months the moratorium still existed, and real estate developers sued, alleging that the moratorium constituted a taking of their property without due compensation in violation of the Fifth and Fourteenth Amendments. A lower federal court held a hearing, heard evidence, and ruled that the delay under these facts was not unreasonable and no taking occurred. How would the federal court of appeals most likely decide the issue?
At some point a regulatory intrusion can result in a taking that requires compensation but that does not apply to a temporary moratorium on building. The key is that this was temporary and not permanent. It could go on for so long that it would become a taking but that must be looked at under the facts of each case.
A group of college students published a monthly magazine with the purpose of challenging the laws of government and the values of society, and to thus stimulate creative thinking and expression. It criticized all religions, had drawings of public officials in sexual and corrupt activities, and mocked virtually all societal values. There was a flurry of frantic complaints to state legislators, who passed a law permanently enjoining the college from publishing the magazine without first getting the prior approval of designated state authorities for each new edition. The college brought an action to declare the law unconstitutional. Will the court strike down the statute?
Prior restraint on expression carries a 'heavy presumption' against its constitutionality. Even suspected untruth or malicious intent would be insufficient to impose prior restraints. There are remedies after the offensive material is published. The essence of censorship is to have the state approve everything before it can be published. See Near v. Minnesota, 283 U.S. 697 (1931); Patterson v. Colorado,205 U.S. 454, 462 (1907).
A law in one state forbids the transportation or sale of tomatoes in the state that have a more than 10% “genetic engineering factor.” The U.S. Department of Agriculture does not use or mention genetic engineering factors in its standards for the sale and transportation of tomatoes. Tomato growers in a second state wish to ship tomatoes for sale into the first state but its tomatoes are in compliance only with the federal standards. The tomato growers’ association in the second state brought an injunctive action in federal court against the agricultural department of the first state to enjoin enforcement of the genetic engineering rule on the basis of federal preemption. According to U.S. Supreme Court precedent, how will the courts decide the preemption claim?
The Supremacy clause (Article VI, clause 2) of the United States Constitution, declares the supremacy of federal laws over state laws that contradict them. The first state’s law did not contradict or frustrate the purpose of the federal law and was not preempted by it. There was no direct conflict between the federal and state statutes because it was possible to comply with both standards simultaneously. Furthermore, the federal law did not clearly set up an exclusive framework that excluded the genetic subject matter. There is a place for state consumer protection in a federal system. See Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963).
A state-funded military institute accepts only male students. The college-level school has a renowned history of producing military and government leaders. It is known for having a uniquely rigorous form of military training that builds strong character forged in the tribulations of adversity and military discipline. A woman with excellent scholastic and athletic achievements applied for admission and was turned down. She brought an injunctive action in federal court claiming a denial of equal protection guaranteed by the Fourteenth Amendment. The state offered to develop a parallel military school for women that would not be as physically demanding or as confrontational. Facilities and faculty would not be equal to the men’s institute because of initial budgetary restraints. In light of U.S. Supreme Court precedent, what should the federal district court rule?
The injunction must be granted – the school must accept the applicant. The idea of an alternative military school is similar to the discredited “separate but equal” argument. It is demonstrably unequal in that women do not have the same hard-core training, an equally accomplished faculty, or the prestige of graduating from the men’s institute. Parties who seek to defend gender-based government action must demonstrate an "exceedingly persuasive justification" for that action, which was not done here. There is no doubt that some women will be able to succeed and prosper in the demanding men’s institute. See United States v. Virginia, 518 US 515 (1996).
Several casinos located in a state where gambling was legal placed advertisements about hotel prices and casino activities in newspapers in neighboring states that did not allow casino gambling. One of those states had a statute that prohibited advertising of casino gambling in any form or manner. A casino sued the state claiming an abridgement of First Amendment rights to free speech. The state responded that the rights of commercial speech were highly restricted and could not be used to advertise something that is illegal in the state. What would be the likely decision of the federal court regarding the statute’s constitutionality?
Commercial advertising enjoys a degree of First Amendment protection. The ads conveyed information of potential interest and value to a diverse audience -- not only to readers interested in the services offered, but also to those with a general curiosity about, or genuine interest in, the subject matter or the law of another State, and to readers seeking change of the law in the state where the ad was published. Bigelow v. Virginia - 421 U.S. 809 (1975).
A state program granted tuition assistance to qualified low-income high school students to advance their educations in private schools of their choice. Most of the private schools participating in the program were affiliated with religious institutions. The parents applied the tuition vouchers independently without interference by the state. Choosing a religious school provided for a smaller amount than if a public-related charter or community school was chosen. Some parents sued the superintendent of the state schools to enjoin the program because it was an establishment of religion. What is the most likely decision of the court based on U.S. Supreme Court precedent?
The program had a valid secular purpose of advancing education for poor children in the district. This was a neutral program that directs aid to a broad class of students and lets the individuals choose their preferences. The state does not participate after it distributes the money. This was a program of true private choice and therefore not an establishment of religion. See Zelman v. Simmons-Harris - 536 U.S. 639 (2002).
Some disabled veterans sued a state government alleging that the state’s courthouses were inaccessible to disabled persons. They alleged that the state violated federal laws assuring access rights to people with disabilities. The state countered that the action violated the state’s sovereign immunity under the 11th Amendment. The plaintiffs argued that the enforcement clause of the Fourteenth Amendment allowed the federal government to apply anti-discrimination measures to protect the rights of disabled persons. What is the most likely decision of the federal court based on U.S. Supreme Court precedent?
The remedy was not unduly burdensome and was therefore 'congruent and proportional' to the harm intended to be remedied by the ADA. Congress had enough evidence to establish that the disabled were being denied fundamental rights that are protected by the Due Process clause of the Fourteenth Amendment, among those rights being the right to access a court. See Tennessee v. Lane, 541 U.S. 509 (2004).
A developer purchased two lots of ocean front property. He intended to build two single-family high-end homes like adjacent homes built in the surrounding areas. Two years later, the state passed a beachfront protection statute that prohibited the developer from building on his lots. The developer filed a claim in state court demanding compensation for a taking of his property under the Fifth and Fourteenth Amendments because the state denied all economic uses of the property. The trial court agreed that the property was now economically useless, and awarded compensation to the developer. However, on appeal the supreme court of the state reversed. The United States Supreme Court granted certiorari. Did the U.S. Supreme Court grant the developer’s plea for compensation based on an unconstitutional taking of his property by the state?
The Takings Clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, provides that private property shall not “be taken for public use, without just compensation.” Lingle v. Chevron USA Inc., 544 U.S. 528, 536-37. When the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking for which reasonable compensation must be paid. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019, 1027 (1992).
A law graduate applied for admission and licensing to a state bar committee. On the questionnaire she was required to complete a question that asked whether the applicant “had belonged to the Communist Party or any organization that advocated overthrow of the United States Government by force?.” It also asked for a list of all organizations joined in the past 10 years. The graduate refused to answer those two questions, citing First Amendment rights. She was denied her law license and sued the state committee. The case is accepted for review by the United States Supreme Court. What will be the most likely decision of the court?
It was a denial of her First Amendment rights to refuse her admission because she declined to answer questions about her beliefs and associations. This practice can have a chilling effect and cause law students to join only organizations that would be “safe.” Law students are thus encouraged to shun unpopular or controversial organizations. A person cannot be penalized for the organizations that she has joined. In Re Stolar, 401 U.S. 23 (1971); Baird v. State Bar of Arizona, 401 U.S. 1 (1971).
A state passed a statute that prevents the sale of violent video games to minors. The act prohibits video games being sold or rented to minors where the player may have a choice of killing, maiming, dismembering or sexually assaulting an image of a human being in a manner that appeals to a deviant or morbid interest of minors and offends prevailing community standards of what is suitable for minors. The Petitioners, representing various interests of the video game industry, brought an action in federal court to have the statute declared unconstitutional. The video game industry has a voluntary rating system (like the one relating to movies) to assist parents. The state did not present evidence showing a connection between violent videos and violence in children. Based on U.S. Supreme Court precedence, what is the most likely decision of the federal court?
See Brown v. Entertainment Merchants Ass'n, 131 S. Ct. 2729 (2011), pertaining to a very similar state statute. The Court held that minors have a “significant measure” of First Amendment rights, including the right to view video games. In addition, the First Amendment’s protections don’t vary when a new and different medium for communication appears. Id. at 2733. Free speech about violence is not obscenity, and it is obscenity that the Constitution permits to be regulated. Id. at 2735. The statute here might make more sense if the state could prove a connection between violent video games and violence in minors, but it has not done so. The industry’s rating system does give protection to minors and parents. The state has not proved the compelling governmental interest and the statute does not pass strict scrutiny. Id. at 2737.
A state’s voters approved an amendment to the state’s constitution that prevented any city, town, or county in the state from taking any legislative, executive, or judicial action to recognize gay and lesbian individuals as a protected class. The state’s highest court ruled that the measure could not pass strict scrutiny, and was a denial of equal protection for gays and lesbians. The proponents of the act appealed to the U.S. Supreme Court. What will the Court decide with respect to the validity of the law?
Although strict scrutiny is an appropriate test, the preliminary question to answer is whether the the amendment consists of any rational purpose that furthers a legitimate government interest. If the amendment or statute does not further a legitimate government interest because it has no rational basis, then you don't need to go to next step and analyze it from the perspective of "strict scrutiny." The first test to apply is the rational basis inquiry: the law is so outrageous that it does NOT have a legitimate government interest. It is based solely on malicious animosity toward a class of people. This law was born of the bare desire to harm an unpopular group of people. This cannot constitute a legitimate government purpose. See Romer v. Evans, 517 U.S. 620 (1996).
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