MBE Constitutional Law - Individual Liberties

Prohibits the government from outlawing or preventing the exercise of religious beliefs

More info: Free Exercise Clause

Strict scrutiny

Rational basis review

Prohibits the government from endorsing or supporting a particular religion

More info: Establishment Clause

Strict scrutiny

Yes, as long as they are also given to parents of students in secular schools

Yes, as long as they are also given to other non-profit organizations

Yes, as long as there are a broad range of organizations using the facilities and none are given preferential treatment

No

No, if the display has a “predominantly religious purpose.” If secular or historical purpose, may be considered constitutional

Constitutional if surrounded by other holiday symbols that make it clear government is not promoting specific religion

Protects the right to participate in any club, gathering, or group.

Subject to strict scrutiny: can only infringe if there’s a compelling gov. interest

D is active member of subversive organization;

D knows about the group’s illegal activities; and

D has specific intent to further illegal activities

Oath to support the Constitution; and

Oath to oppose a legal or violent overthrow of government

On the basis of political affliation if candidate is:

An active member of subversive organization;

Knows about the group’s illegal activities; and

Has specific intent to further illegal activities

Or if candidate interferes with investigation into qualifications

Yes, but if the disclosure would have chilling effect, restriction must meet strict scrutiny.

Regulation that restricts substantially more speech than is constitutionally allowed (i.e. restricts unprotected and protected speech).

Renders regulation void.

Places historically open to the public for expression (e.g. parks and sidewalks). Can be either traditional or designated.

Blocks speech before it is expressed. Subject to strict scrutiny.

⚠️ Highy unfavored and presumptively unconstitutional except in extremely rare instances

More info: Prior Restraint

Only allowed in extremely rare circumstances such as:

During wartime or national security crisis to protect troops/citizens; or

To prevent incitement of violence

Regulation must be narrowly tailored and only aimed at:

Speech that promotes or directs imminent illegal action; and

Creates a “clear and present danger” of such action

Substantially likely to provoke an immediate violent reaction (e.g. direct personal insult)

Appeals to “prurient interests;” (community standard)

Depicts or describes sexual conduct in a way that is patently offensive to community standards and applicable state law; and

Lacks serious artistic, literary, political, or scientific value as determined by national standards

⚠️ Note: Sexual expression that is indecent but not patently offensive is protected by the First Amendment.

Criminal trials: Yes, but can be overruled upon showing of overriding interest

Civil trials: Unclear

Obscenity;

Incitement;

Fighting words;

Defamation; and

Commercial speech

⭐️ Can be regulated as long as statute is narrow, does not need to meet strict scrutiny

Yes, as long as the regulation is rationally related to a legitimate penalogical objective and an alternate way to express legitimate speech is available

⚠️ Note: This includes pretrial detainees, parolees, and those on probation

No, same rights public at large

Can only fine stations for airing "patently offensive and excretory speech"

Strict scrutiny

Intermediate Scrutiny

(e.g. "must carry" provisions)

Must satisfy Central Hudson Test:

Speech is not false, misleading, or illegal;

Regulation serves substantial government interest;

Regulation directly advances interest; and

Regulation is not more extensive than necessary to serve that interest

More info: Central Hudson Test

Speech whose primary goal is commerce (e.g. commercial or advertisement for a product or service)

Very rarely constitutional, unless they are the least restrictive means necessary to ensure D has a fair trial (usually alternatives such as better voir dire, venue change, or postponement are available)

Freedom of religion, expression, speech, the press, the right to peaceably assemble, and the right to petition the government for a redress of grievances.

Speech that is misleading, false, or unlawful and can be regulated freely by the government

Yes unless:

Broadcast over public television; or

In public schools

Limitations will almost always fail for being either overbroad, vague, or viewpoint-based and thus failing strict scrutiny

⭐️ If you see a question on the MBE with a fighting word statute, it is extremely likely it will be too vague or overbroad

Restriction based on subject matter of expression; i.e. disagreement with the viewpoint or message it contains. Can be either content-based on its face or as applied.

⭐️ Subject to strict scrutiny ⭐️

One that restricts entire categories of speech, but not viewpoints within a category

Ex. Restriction on all Second Amendment speech would be allowed, but restriction on only anti-Second Amendment speech would not be allowed

Applies neutrally to all content regardless of viewpoint or subject matter.

Ex. time, place, or manner restriction

⭐️ Subject to intermediate scrutiny

Traditional: traditional public areas (e.g. sidewalks, parks, etc.) that cannot be changed into nonpublic forums

Designated: Designated as public forums during certain hours or in general (e.g. municipal meeting rooms). Can be changed into nonpublic forums

Restriction is:

Content-neutral;

Leaves open ample, alternative channels of communication; and

Narrowly tailored to serve significant government interest (not compelling gov. interest)

No

When forum is open for speech and:

Regulates time, place, or manner (i.e. is content-neutral);

Is narrowly tailored to serve significant government interest; and

Leaves open ample, alternative channels of communication

(same as test for traditional public forum)

Public property that is not open to speech (e.g. schools, jails, airports)

Viewpoint neutral (**does not need to be content neutral); and

Reasonably related to a legitimate government purpose

Restriction is void for vagueness if reasonable person does not understand what the law requires or prohibits

Expressive conduct meant to convey a particular message (e.g. wearing black arm bands in protest)

Regulation furthers important gov. interest;

Interest is unrelated to suppression of the message; and

Impact on speech is no greater than necessary to achieve interest

Cross burning

Unconstitutional
Constitutional b/c interest in harmful effects

Constitutional b/c interest in littering

Unconstitutional unless action is meant to threaten

Yes, as long as story is matter of public concern (i.e. newsworthy)

Yes, if zoning is to prevent adverse "secondary effects" caused by the business, such as increased neighborhood crime ("secondary effects doctrine")