California Bar Examination Constitutional Law Flashcards

24 sample cards from the Constitutional Law deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. How are gender classifications analyzed, and what additional requirement applies?

   Intermediate scrutiny applies, but the government must provide an 'exceedingly persuasive justification' (VMI). The justification must be genuine, not based on overbroad generalizations or stereotypes about the sexes. Both intentional benign and burdensome gender classifications get this review.

2. How are classifications based on legitimacy (non-marital children) analyzed?

   Intermediate scrutiny applies. Laws that purport to punish non-marital children, or that are not substantially related to an important interest, are invalid; classifications designed solely to punish the child are unconstitutional.

3. Which classifications receive only rational basis review under Equal Protection?

   Age, disability, wealth/poverty, and sexual orientation (historically) receive rational basis. So do most economic and social classifications. Note: laws motivated by animus toward a group may still fail rational basis (Romer, Cleburne, Moreno).

4. Which fundamental rights, when burdened unequally, trigger strict scrutiny under Equal Protection?

   The right to vote, the right to interstate travel, and First Amendment rights. Unequal restrictions on these fundamental rights are reviewed under strict scrutiny (e.g., poll taxes, durational residency requirements for voting).

5. What is the framework for analyzing content-based vs. content-neutral speech restrictions?

   Content-based restrictions (subject-matter or viewpoint based) are presumptively invalid and get strict scrutiny. Content-neutral restrictions get intermediate scrutiny: narrowly tailored to serve a significant interest, leaving open ample alternative channels.

6. What is the test for time, place, and manner restrictions in a public forum?

   In a public/designated public forum, restrictions must be (1) content-neutral; (2) narrowly tailored to serve a significant government interest; and (3) leave open ample alternative channels of communication.

7. What categories of speech are unprotected or less protected by the First Amendment?

   Incitement to imminent lawless action (Brandenburg), fighting words, true threats, obscenity, defamation, and child pornography. Commercial speech gets intermediate protection; these categories may be regulated more freely.

8. State the Brandenburg test for incitement.

   Speech advocating illegal action may be punished only if it is (1) directed to inciting or producing imminent lawless action, and (2) likely to incite or produce such action.

9. State the Miller test for obscenity.

   Material is obscene if (1) the average person, applying contemporary community standards, finds it appeals to the prurient interest; (2) it depicts sexual conduct in a patently offensive way as defined by law; and (3) taken as a whole, it lacks serious literary, artistic, political, or scientific value (national standard).

10. What is the test for regulating commercial speech?

    The Central Hudson test: commercial speech that is truthful and not misleading about lawful activity may be regulated only if (1) the government interest is substantial; (2) the regulation directly advances that interest; and (3) it is narrowly tailored (reasonable fit). False/misleading or illegal commercial speech is unprotected.

11. What distinguishes a prior restraint, and what burden does it carry?

    A prior restraint stops speech before it occurs (injunctions, licensing). It bears a heavy presumption against constitutionality; the government must show special societal harm. Licensing schemes need narrow, definite standards and procedural safeguards.

12. What is the unprotected-speech standard for defamation of a public official or public figure?

    Under New York Times v. Sullivan, a public official/figure must prove the statement was false and made with 'actual malice'—knowledge of falsity or reckless disregard for the truth. Private figures on matters of public concern need only prove negligence (with actual malice required for presumed/punitive damages).

13. What is the difference between facial overbreadth and vagueness in First Amendment doctrine?

    Overbreadth: a law regulating speech is invalid if it restricts substantially more protected speech than necessary. Vagueness: a law is void if a reasonable person cannot tell what speech is prohibited, risking arbitrary enforcement and chilling protected speech.

14. How are the three types of forums (public, designated/limited, nonpublic) regulated for speech?

    Public forum (streets, parks) & designated public forum: content-neutral time/place/manner; content-based gets strict scrutiny. Limited public forum & nonpublic forum (e.g., airports, military bases): regulations need only be viewpoint-neutral and reasonably related to a legitimate purpose.

15. What does freedom of association protect, and what scrutiny applies to laws burdening it?

    It protects the right to associate for expressive purposes. Laws that significantly burden expressive association get strict scrutiny. A group may exclude members if forced inclusion would impair its message (Boy Scouts v. Dale).

16. When may the government punish membership in a group under freedom of association?

    Only if the person (1) is an active member, (2) has knowledge of the group's illegal aims, and (3) has the specific intent to further those illegal goals. Mere membership cannot be punished.

17. What test governs the Establishment Clause after Kennedy v. Bremerton (2022)?

    Government action must be consistent with the nation's historical practices and understandings (the history-and-tradition test), replacing the Lemon test. Government may not coerce religious participation or favor one religion over another.

18. What is the legacy Lemon test for the Establishment Clause?

    A law was valid if (1) it had a secular purpose; (2) its primary effect neither advanced nor inhibited religion; and (3) it did not foster excessive government entanglement with religion. The Supreme Court has since shifted to a history-and-tradition analysis.

19. How are sect preferences treated under the Establishment Clause?

    Government action that prefers one religious sect or denomination over others is subject to strict scrutiny. Religiously neutral laws that incidentally burden or benefit religion are judged by the history-and-tradition/coercion standard.

20. What does the Free Exercise Clause protect, and what is the rule for neutral, generally applicable laws?

    It protects the freedom to believe absolutely and to act subject to regulation. A neutral law of general applicability that incidentally burdens religion is valid under rational basis (Employment Division v. Smith); no religious exemption is constitutionally required.

21. When does a law burdening religion trigger strict scrutiny under the Free Exercise Clause?

    When the law is not neutral or not generally applicable—i.e., it targets religious conduct because of its religious nature, or contains secular exemptions but no religious one (Lukumi, Tandon). Then strict scrutiny applies.

22. Can the government deny generally available public benefits to religious entities solely because of their religious status?

    No. Excluding religious institutions from neutral, generally available public benefit programs based solely on religious status violates the Free Exercise Clause (Trinity Lutheran, Espinoza, Carson v. Makin).

23. Does the press have greater First Amendment rights than the general public?

    No. The press generally has no special right of access beyond the public. It may publish truthful, lawfully obtained information on matters of public concern, and prior restraints on publication face a heavy presumption of unconstitutionality (Pentagon Papers).

24. What is the rule on press liability for publishing truthful, lawfully obtained information?

    The press generally may not be punished for publishing truthful information lawfully obtained about a matter of public concern, absent a state interest of the highest order. There is no general constitutional reporter's privilege to refuse grand jury testimony (Branzburg v. Hayes).

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