OR Bar Constitutional Rights and Liberties 2 — Questions and Answers
Question 1: Under the First Amendment, a content-neutral restriction on speech must satisfy which standard of review?
- Strict scrutiny requiring a compelling government interest
- Intermediate scrutiny requiring a significant government interest and narrow tailoring (Correct answer)
- Rational basis review requiring a legitimate government interest
- Absolute prohibition since content-neutral laws are per se unconstitutional
Correct answer: Intermediate scrutiny requiring a significant government interest and narrow tailoring
Content-neutral speech regulations are subject to intermediate scrutiny and must be narrowly tailored to serve a significant government interest while leaving open alternative channels of communication.
Question 2: The Establishment Clause is BEST understood to prohibit which of the following?
- Any government acknowledgment of religion in public settings
- Government action whose primary effect advances or inhibits religion without secular purpose (Correct answer)
- Only laws that formally designate an official state church
- Religious symbols on private property visible from public streets
Correct answer: Government action whose primary effect advances or inhibits religion without secular purpose
Under the Lemon test and subsequent doctrine, the Establishment Clause prohibits government action lacking a secular purpose or having the primary effect of advancing or inhibiting religion.
Question 3: A public employee is fired for posting on social media about a matter of public concern during off-duty hours. Under Garcetti v. Ceballos and Pickering, the court will weigh:
- Whether the speech was on government property at the time it was made
- The employee's free speech interest against the government's interest in efficient workplace operations (Correct answer)
- Only whether the speech was made anonymously or identified
- Whether the employee had prior disciplinary history
Correct answer: The employee's free speech interest against the government's interest in efficient workplace operations
The Pickering balancing test requires courts to weigh the employee's interest in commenting on matters of public concern against the government employer's interest in promoting efficient public services.
Question 4: Which doctrine holds that the government may not condition a benefit on the surrender of a constitutional right?
- The unconstitutional conditions doctrine (Correct answer)
- The overbreadth doctrine
- The vagueness doctrine
- The prior restraint doctrine
Correct answer: The unconstitutional conditions doctrine
The unconstitutional conditions doctrine prevents the government from using the leverage of withholding benefits to coerce the waiver of constitutional rights.
Question 5: Under the Free Exercise Clause, a neutral law of general applicability that incidentally burdens religious practice is subject to:
- Strict scrutiny because any religious burden requires compelling justification
- Rational basis review under Employment Division v. Smith (Correct answer)
- Intermediate scrutiny balancing religious burden against government interest
- Per se invalidity if it substantially burdens a sincere religious belief
Correct answer: Rational basis review under Employment Division v. Smith
Employment Division v. Smith held that neutral, generally applicable laws incidentally burdening religion need only satisfy rational basis review, not strict scrutiny.
Question 6: The 'public forum' doctrine provides that government restrictions on speech in traditional public forums like parks and sidewalks must be:
- Completely prohibited regardless of time, place, or manner
- Content-neutral, narrowly tailored, and leave open alternative channels (Correct answer)
- Limited to prior restraints approved by a neutral magistrate
- Justified by any reasonable government interest
Correct answer: Content-neutral, narrowly tailored, and leave open alternative channels
In traditional public forums, the government may impose content-neutral time, place, and manner restrictions that are narrowly tailored to serve a significant interest and leave open ample alternative means of communication.
Question 7: Which of the following is an example of an unprotected category of speech under the First Amendment?
- Offensive political satire targeting a public official
- True threats directed at a specific individual (Correct answer)
- Hyperbolic political rhetoric calling for general revolution
- Commercial advertising for a lawful product
Correct answer: True threats directed at a specific individual
True threats — statements where the speaker means to communicate a serious intent to commit unlawful violence against a specific person — are unprotected by the First Amendment.
OR Bar Constitutional Rights and Liberties 2
Under the First Amendment, a content-neutral restriction on speech must satisfy which standard of review?