GA Bar Constitutional Rights and Liberties 2 — Questions and Answers
Question 1: A city ordinance prohibits all leafleting on public sidewalks to keep streets clean. Under First Amendment analysis, this regulation is most likely:
- Constitutional because litter control is a compelling government interest
- Unconstitutional as a content-neutral regulation that is not narrowly tailored and leaves no alternative channels (Correct answer)
- Constitutional because sidewalks are not traditional public forums
- Unconstitutional only if the leaflets contain political speech
Correct answer: Unconstitutional as a content-neutral regulation that is not narrowly tailored and leaves no alternative channels
A total ban on leafleting in a traditional public forum fails even content-neutral time/place/manner scrutiny because it leaves open no adequate alternative channels of communication.
Question 2: Under the O'Brien test, a law that incidentally burdens symbolic speech is constitutional only if it:
- Passes strict scrutiny with a compelling governmental interest
- Is within the constitutional power of the government, advances an important interest unrelated to suppressing expression, and the incidental burden is no greater than essential (Correct answer)
- Is a narrowly tailored content-neutral restriction with no alternative means of advancing the government's interest
- Satisfies rational basis review because symbolic speech receives less protection than pure speech
Correct answer: Is within the constitutional power of the government, advances an important interest unrelated to suppressing expression, and the incidental burden is no greater than essential
United States v. O'Brien (1968) established a four-part test requiring the law to be within government power, further an important non-speech interest, and restrict speech no more than necessary.
Question 3: The government seeks to enjoin a newspaper from publishing classified documents claiming national security harm. The strongest First Amendment doctrine protecting the newspaper is:
- The clear and present danger test
- The prohibition on prior restraints (Correct answer)
- The public figure actual malice standard
- The commercial speech doctrine
Correct answer: The prohibition on prior restraints
Prior restraints on publication carry a heavy presumption against constitutional validity, as reaffirmed in New York Times Co. v. United States (1971).
Question 4: Under the Miller v. California test, material is legally obscene only if all three prongs are met. Which of the following is NOT one of those prongs?
- The average person, applying contemporary community standards, finds the work appeals to prurient interest
- The work depicts or describes sexual conduct in a patently offensive way
- The work was produced with intent to arouse sexual desire in the viewer (Correct answer)
- The work lacks serious literary, artistic, political, or scientific value
Correct answer: The work was produced with intent to arouse sexual desire in the viewer
Miller's three prongs focus on community standards for prurient appeal and patent offensiveness, plus the objective SLAPS test — producer intent is not an element.
Question 5: A state applies strict scrutiny to a content-based restriction on speech in a traditional public forum. To survive, the government must show the restriction is:
- Rationally related to a legitimate government interest
- Substantially related to an important government interest
- Narrowly tailored to serve a compelling government interest (Correct answer)
- The least restrictive means of serving a significant government interest
Correct answer: Narrowly tailored to serve a compelling government interest
Content-based restrictions in any forum trigger strict scrutiny, requiring the law to be narrowly tailored to a compelling governmental interest.
Question 6: Fighting words doctrine established in Chaplinsky v. New Hampshire holds that the government may punish words that:
- Tend to incite imminent lawless action in a large audience
- By their very utterance inflict injury or tend to incite an immediate breach of the peace (Correct answer)
- Constitute a true threat of violence against an identifiable individual
- Express hatred toward a protected group based on race or religion
Correct answer: By their very utterance inflict injury or tend to incite an immediate breach of the peace
Chaplinsky (1942) defined fighting words as face-to-face words that by their very utterance inflict injury or incite an immediate breach of peace — such words are unprotected.
Question 7: Under the Central Hudson test, commercial speech receives First Amendment protection only if it:
- Concerns a lawful activity and is not misleading, and the government interest is compelling and the restriction narrowly tailored
- Concerns a lawful activity and is not misleading, the asserted government interest is substantial, the restriction directly advances that interest, and is not more extensive than necessary (Correct answer)
- Is truthful and relates to a matter of public concern with no adequate alternative restriction available
- Relates to a lawful product and is protected to the same degree as political speech
Correct answer: Concerns a lawful activity and is not misleading, the asserted government interest is substantial, the restriction directly advances that interest, and is not more extensive than necessary
Central Hudson Gas v. Public Service Comm'n (1980) established a four-part test: lawful/non-misleading activity, substantial government interest, direct advancement, and no more extensive restriction than necessary.
GA Bar Constitutional Rights and Liberties 2
A city ordinance prohibits all leafleting on public sidewalks to keep streets clean.
Under First Amendment analysis, this regulation is most likely: