Multistate Bar Exam Constitutional Law 5 — Questions and Answers
Question 1: A newspaper publishes a story falsely stating that a local public school teacher embezzled school funds. The teacher sues for defamation. Under the First Amendment, the teacher must prove:
- The statement was false and caused reputational harm
- The statement was false, caused harm, and was made with actual malice or negligence, depending on whether the teacher is a public or private figure (Correct answer)
- The statement was made with actual malice because the teacher is a public employee
- Only that the statement was false, as truth is a complete defense
Correct answer: The statement was false, caused harm, and was made with actual malice or negligence, depending on whether the teacher is a public or private figure
Whether a teacher is a public or private figure determines the fault standard: public figures must prove actual malice, while private figures need only show negligence under Gertz v. Robert Welch.
Question 2: Congress passes a joint resolution declaring that its authorization for military force against a foreign nation shall expire in 60 days unless Congress passes a concurrent resolution extending it. The President argues this automatic expiration is unconstitutional. The strongest argument supporting the President's position is that:
- The President has inherent authority to conduct wars indefinitely once begun
- A concurrent resolution cannot constrain the President because it does not go through Presentment (Correct answer)
- Congress cannot limit military operations once the President commits forces
- The War Powers Resolution conflicts with the Commander-in-Chief Clause
Correct answer: A concurrent resolution cannot constrain the President because it does not go through Presentment
A concurrent resolution (no Senate + House passage + presidential signature) does not meet the Presentment Clause requirements for legislation, and thus cannot constitutionally constrain the President's actions.
Question 3: A state law permits employers to fire workers who test positive for marijuana use, even if the use occurred off-duty and in compliance with state law. An employee challenges this under the right to privacy. The most likely outcome is:
- The law is unconstitutional under the federal constitutional right to privacy
- The constitutional right to privacy does not protect recreational drug use, so no federal constitutional violation exists (Correct answer)
- The law is preempted by federal marijuana law regardless of the privacy claim
- The law violates substantive due process because privacy extends to all lawful off-duty conduct
Correct answer: The constitutional right to privacy does not protect recreational drug use, so no federal constitutional violation exists
The constitutional right to privacy protects fundamental intimate decisions; recreational drug use has not been recognized as a fundamental right, so there is no federal substantive due process violation.
Question 4: A grand jury subpoenas a journalist to testify about the identity of a confidential source. The journalist refuses, claiming a First Amendment privilege. Under Branzburg v. Hayes, the journalist:
- Has an absolute First Amendment privilege not to reveal confidential sources to grand juries
- Has no First Amendment privilege to refuse to testify before a grand jury about criminal conduct (Correct answer)
- Has a qualified privilege that can be overcome only by proof of bad faith by prosecutors
- Has a privilege if the information sought is not essential to the investigation
Correct answer: Has no First Amendment privilege to refuse to testify before a grand jury about criminal conduct
In Branzburg v. Hayes, the Court held that the First Amendment does not give journalists a privilege to withhold the identity of confidential sources from grand jury investigations.
Question 5: A state university refuses to grant official recognition to a student religious organization because it limits membership to students who share its faith. The university's policy requiring all recognized groups to admit all students is challenged. Under Christian Legal Society v. Martinez, the policy is:
- Unconstitutional because it discriminates against religion
- Constitutional if it is a reasonable, viewpoint-neutral condition on access to a limited public forum (Correct answer)
- Unconstitutional because student organizations have a First Amendment right to expressive association
- Constitutional only if the university has a compelling interest in preventing discrimination
Correct answer: Constitutional if it is a reasonable, viewpoint-neutral condition on access to a limited public forum
In Christian Legal Society v. Martinez, the Court upheld an all-comers policy as a reasonable, viewpoint-neutral condition on access to a school-created limited public forum.
Question 6: A state passes a law giving in-state businesses a 10% price preference in all state government contracts over equally qualified out-of-state competitors. A rejected out-of-state bidder challenges this under the Dormant Commerce Clause. The state's strongest defense is that:
- The preference is rationally related to promoting the local economy, which is a legitimate state interest
- The state is acting as a market participant, not a regulator, and is free to prefer its own citizens in its purchases (Correct answer)
- The preference is not discriminatory because it applies uniformly to all state contracts
- The Supremacy Clause allows states to adopt preferences to offset federal trade advantages
Correct answer: The state is acting as a market participant, not a regulator, and is free to prefer its own citizens in its purchases
Under the market participant doctrine, when a state acts as a buyer or seller rather than a regulator, the Dormant Commerce Clause does not apply, and the state may favor its own citizens.
Question 7: A state law provides that only citizens may serve as public school teachers. A permanent resident alien who has lived in the US for 20 years is denied a teaching position. The law is challenged under Equal Protection. The court should apply:
- Rational basis because alienage classifications in political functions are permissible
- Strict scrutiny because alienage is a suspect classification, subject to a narrow political function exception (Correct answer)
- Intermediate scrutiny because alienage is only a quasi-suspect class
- Rational basis because education is not a fundamental right
Correct answer: Strict scrutiny because alienage is a suspect classification, subject to a narrow political function exception
Alienage is generally a suspect classification triggering strict scrutiny, but the Court recognizes a 'political function' exception—teachers who participate in the educational process of citizens may be subject to citizenship requirements under Ambach v. Norwick.
Multistate Bar Exam Constitutional Law 5
A newspaper publishes a story falsely stating that a local public school teacher embezzled school funds.
The teacher sues for defamation.
Under the First Amendment, the teacher must prove: