First Amendment

As was last time, this exam will have 50 questions (two points each) for a total of 100 points. You have two hours to complete this exam. Remember, the exam is open notes (you can use a printed outline and/or you can use your computer) and I encourage you to work through the questions that I have listed below. If you can articulate responses to the questions below, you will be well prepared for the exam.

Again, I recommend that you meet with a peer from class if possible or, if not, to sit down with a friend to talk through each of these questions—or if you are studying by yourself, to articulate your thoughts aloud. This will help you to feel the connections between the different ideas more solidly. Once you have focused on the subject matter and have a clear idea as to the answer, you can type your responses. Then you can read and rework/edit your responses to make them more concise and easier to use once you take the exam. In preparing, draw upon the cases, my PowerPoint lecture, and online sources if you find them helpful. My intent with this study guide is to help you to understand the material and, therefore, to answer what I intend to be easy and straightforward multiple-choice questions. In short, if you do not study, you will not understand much on the exam, but if you use these questions as a guide, you will be in good shape for the exam.

Unit on Advertising and Corporate Speech

What is “commercial speech?” How is it different from other types of speech? What is the commercial speech doctrine? What issues are at stake in doctrine? What role does “paternalism” play in the Court’s thinking in this area? What interests does the government have in regulating commercial speech? How has commercial speech changed over the years? What is the role of the Federal Trade Commission in regulation? What is the distinction between commercial and non-commercial corporate speech? What are “vice products” and how does the law deal with their advertising? What role does federal preemption play in this legal framework? What test does the Court use for analyzing Government restriction on commercial speech and how has that test changed over the years?

Unit on Intellectual Property

Why do we have copyright laws? What interests do they serve? What authority exists for copyright laws? What types (or categories) of things are protected by copyright? What is the “work for hire” doctrine? What is the “fair use” doctrine? What are “moral rights” and what role do they play in the United States?

Unit on Pornography and Public Morality

What is the difference between obscenity, pornography, indecency, and blasphemy? What tests are involved and how have they have changed over time? What is the “prurient interest” and why does it matter? What exception exists for the possession of obscene material and the limitations of that exception? What is “variable obscenity” and how does it differ from ordinary obscenity? What role does scienter play in prosecutions for obscenity and/or child pornography? Does the law punish “virtual” child pornography (why or why not)? How does the law of zoning play out in this area (i.e., what zoning powers are permissible for cities to regulate the selling of non-obscene sexual expression? What is the “secondary effects” doctrine? What is “sexting” and what problems does it create for the law? Can pornography be banned because it dehumanizes women (or why not)? What are the arguments on both sides of the pornography issue? What difference does it make if sexual material is disseminated over the air, in print, or over the internet—do the rules change (why or why not)?

Unit on Religion and Public Life

What is the Establishment Clause of the First Amendment and how is it different from the Free Exercise Clause of that same document? How has each changed over the years? What kind of government aid to religious schools is permissible and why? What is the Religious Freedom Restoration Act, its history, and the controversy surrounding it? What test is used to determine whether aid to church schools is constitutional? Why is prayer in school prohibited but having “in god we trust” on our currency acceptable under the First Amendment? What is the belief/action distinction in this area of law and how has that changed in recent years? Why can there be prayers at university graduations but not at high school graduations? Does the role of nondenominational make a difference? Who can, under our constitution and case law, become a conscientious objector to war?


44 Liquormart v. Rhode Island

Bigelow v. Virginia

Campbell v. Acuff‑Rose Music

Central Hudson Gas and Electric Company v. Public Service Commission

Community for Creative Non‑Violence v. Reid

Eldred v. Ashcroft

Engel v. Vitale

FDA v. Brown & Williamson Tobacco

First National Bank v. Bellotti

Ginsberg v. New York

Harper & Row Publishers v. The Nation Enterprises

Hudnut v. American Booksellers

Lemon v. Kurtzman

Lorillard Tobacco v. Reilly

Miami Herald v. Tornillo

Miller v. California

National Endowment of the Arts v. Finley

New York v. Ferber

Nike v. Kasky (or Kasky v. Nike)

Osborne v. Ohio  

Pacifica Foundation v. FCC

Posadas de Puerto Rico v. Tourism Company of Puerto Rico

Red Lion Broadcasting v. FCC

Regina v. Hicklin

Reno v. ACLU

Renton v. Playtime Theatres

Roth v. U.S.

Stanley v. Georgia

Valentine v. Chrestensen

Virginia Citizens Consumer Council v. Virginia State Board of Pharmacy

Young v. American Mini‑Theatres

Optional Extra Credit Essay: A prompt will be provided from the unit on pornography and public morality.

Revised 03/21/2022

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