Business Law Today, Comprehensive: Text and Cases: Diverse, Ethical, Online, and Global Environment, 10th Edition solutions manual and test bank by Roger LeRoy Miller
Chapter 2
| N.B.: TYPE indicates that a question is new, modified, or unchanged, as follows. N A question new to this edition of the Test Bank. + A question modified from the previous edition of the Test Bank, = A question included in the previous edition of the Test Bank. |
true/false questions
1. A confederal form of government is a confederation of independent states with a central government of very limited powers.
ANSWER: T PAGE: 34 TYPE: +
BUSPROG: Analytic AICPA: BB-Critical Thinking
2. In a country with a federal form of government, the national government and the states share sovereign power.
ANSWER: T PAGE: 34 TYPE: N
BUSPROG: Analytic AICPA: BB-Critical Thinking
3. All powers not specifically delegated to the federal government are reserved to the states.
answer: T PAGE: 34 type: +
BUSPROG: Analytic AICPA: BB-Legal
4. The checks and balances in the U.S. Constitution prevent any one branch of government from exercising too much power.
ANSWER: T PAGE: 34 TYPE: =
BUSPROG: Analytic AICPA: BB-Legal
5. Under the Constitution, the judicial branch interprets the laws.
answer: T PAGE: 34 type: =
BUSPROG: Analytic AICPA: BB-Legal
6. Under the Constitution, the judicial branch is responsible for foreign affairs.
ANSWER: F PAGE: 34 TYPE: N
BUSPROG: Analytic AICPA: BB-Legal
7. The President determines the jurisdiction of the federal courts.
ANSWER: F PAGE: 34 TYPE: +
BUSPROG: Analytic AICPA: BB-Legal
8. The President appoints federal judges with the advice and consent of the Senate.
ANSWER: T PAGE: 34 TYPE: N
BUSPROG: Analytic AICPA: BB-Legal
9. The judicial branch has the power to hold actions of the other branches of government unconstitutional.
ANSWER: T PAGE: 34 TYPE: N
BUSPROG: Analytic AICPA: BB-Critical Thinking
10. Article I, Section 8, of the U.S. Constitution permits Congress to regulate interstate commerce.
ANSWER: T PAGE: 35 TYPE: N
BUSPROG: Analytic AICPA: BB-Legal
11. At least in theory, Congress can regulate every commercial enterprise in the United States.
ANSWER: T PAGE: 35 TYPE: =
BUSPROG: Analytic AICPA: BB-Critical Thinking
12. Under their police powers, states can regulate only public activities, such as political demonstrations.
ANSWER: F PAGE: 37 TYPE: =
BUSPROG: Analytic AICPA: BB-Critical Thinking
13. When there is a direct conflict between a federal and a state law, the state law is rendered invalid.
ANSWER: T PAGE: 38 TYPE: =
BUSPROG: Analytic AICPA: BB-Legal
14. Preemption occurs when Congress chooses to act exclusively in a concurrent area and a valid federal statue or regulation takes precedence over a conflicting state or local law.
answer: T PAGE: 38 type: N
BUSPROG: Analytic AICPA: BB-Critical Thinking
15. The Second Amendment to the U.S. Constitution reserves all powers not delegated to the national government to the states.
ANSWER: F PAGE: 38 TYPE: N
BUSPROG: Analytic AICPA: BB-Legal
16. The Bill of Rights protects individuals against types of interference by the federal government.
ANSWER: T PAGE: 38 TYPE: =
BUSPROG: Analytic AICPA: BB-Legal
17. The Fifth Amendment prohibits unreasonable searches and seizures of persons or property.
ANSWER: F PAGE: 38 TYPE: N
BUSPROG: Analytic AICPA: BB-Legal
18. The Eighth Amendment prohibits excessive bail and fines, as well as cruel and unusual punishment.
ANSWER: T PAGE: 38 TYPE: N
BUSPROG: Analytic AICPA: BB-Legal
19. Symbolic speech is defined as nonverbal expressions of belief and is protected by the First Amendment.
ANSWER: T PAGE: 40 TYPE: N
BUSPROG: Analytic AICPA: BB-Legal
20. A restriction on commercial speech is valid as long as it forbids only the expression of views on controversial issues.
ANSWER: F PAGE: 44 TYPE: N
BUSPROG: Analytic AICPA: BB-Legal
21. The First Amendment protects corporate political speech.
ANSWER: T PAGE: 44 TYPE: N
BUSPROG: Reflective AICPA: BB-Critical Thinking
22. The First Amendment protects defamatory speech.
ANSWER: F PAGE: 45 TYPE: +
BUSPROG: Reflective AICPA: BB-Critical Thinking
23. The Children’s Internet Protection Act requires public schools and libraries to use filtering software to block children’s access to adult contact on Web sites.
ANSWER: T PAGE: 46 TYPE: N
BUSPROG: Reflective AICPA: BB-Critical Thinking
24. The First Amendment requires a complete separation of church and state.
ANSWER: F PAGE: 47 TYPE: =
BUSPROG: Reflective AICPA: BB-Critical Thinking
25. The establishment clause of the U.S. Constitution prohibits the federal government from establishing a state-sponsored religion.
ANSWER: T PAGE: 47 TYPE: +
BUSPROG: Analytic AICPA: BB-Legal
26. A law that has any impact on religion is unconstitutional.
ANSWER: F PAGE: 47 TYPE: N
BUSPROG: Reflective AICPA: BB-Critical Thinking
27. The Fourteenth Amendment guarantees a right to due process of law.
ANSWER: T PAGE: 49 TYPE: N
BUSPROG: Analytic AICPA: BB-Legal
28. Procedural due process requires that any government decision to take a person’s property must be made fairly.
ANSWER: T PAGE: 49 TYPE: +
BUSPROG: Analytic AICPA: BB-Legal
29. Substantive due process focuses on the substance of legislation.
ANSWER: T PAGE: 50 TYPE: N
BUSPROG: Analytic AICPA: BB-Legal
30. The terms “due process” and “equal protection” mean the same thing.
ANSWER: F PAGE: 50 TYPE: =
BUSPROG: Analytic AICPA: BB-Legal
31. A law that limits only some persons’ exercise of a fundamental right is valid under any circumstances.
ANSWER: F PAGE: 50 TYPE: N
BUSPROG: Analytic AICPA: BB-Legal
32. A law that limits the liberty of all persons may violate substantive due process.
ANSWER: F PAGE: 50 TYPE: N
BUSPROG: Analytic AICPA: BB-Legal
33. A law that restricts people of a certain national origin from doing something will be carefully examined to make sure it promotes a compelling government interest before it is allowed to stand.
ANSWER: T PAGE: 50 TYPE: N
BUSPROG: Analytic AICPA: BB-Critical Thinking
34. Because the Constitution does not specifically a right to privacy, this right is denied to people.
ANSWER: F PAGE: 51 TYPE: N
BUSPROG: Reflective AICPA: BB-Critical Thinking
35. Individuals have a right to obtain access to information about them collected in government files.
answer: T PAGE: 52 type: N
BUSPROG: Analytic AICPA: BB-Legal
MULTIPLE-CHOICE questions
1. The Financial Institutions Association would like a certain law enacted, administered, interpreted, and enforced in the best interest of its members, which include banks. Under the Constitution, Congress
a. administers the laws.
b. enforces the laws.
c. interprets the laws.
d. makes the laws.
ANSWER: D PAGE: 34 TYPE: =
BUSPROG: Analytic AICPA: BB-Legal
2. The Constitution sets out the authority and the limits of the branches of the government. The term checks and balances means that
a. Congress writes checks and the other branches balance the budget.
b. each branch has some power to limit the actions of the others.
c. the courts balance their authority to the other branches’ checklists.
d. the president “checks” the courts, which “balance” the laws.
ANSWER: B PAGE: 34 TYPE: +
BUSPROG: Analytic AICPA: BB-Legal
3. Antonin, a federal judge, retires. The vacant position will be filled by a judge
a. appointed by the United States Supreme Court.
b. elected by voters.
c. appointed by the President.
d. appointed by Congress.
answer: C PAGE: 34 type: N
BUSPROG: Analytic AICPA: BB-Critical Thinking
4. The commerce clause of the U.S. Constitution is found in
a. Article I, Section 8.
b. Article I, Section 2.
c. Article VIII, Section 1.
d. Article II, Section 8.
answer: A PAGE: 35 type: N
BUSPROG: Analytic AICPA: BB-Legal
5. South Dakota, like other states, may regulate private activities to protect or promote the public order, health, safety, and general welfare under
a. the state’s police powers.
b. the dormant commerce clause.
c. the due process clause.
d. the free exercise clause.
ANSWER: A PAGE: 37 TYPE: +
BUSPROG: Reflective AICPA: BB-Legal
6. Tami’s Tasty Tacos, a fast food outfit, files a suit against the state of Texas, claiming that a Texas state law violates the commerce clause. The court will agree if the statute imposes a substantial burden on
a. a local government.
b. interstate commerce.
c. noneconomic activity.
d. the state.
answer: B PAGE: 37 type: N
BUSPROG: Reflective AICPA: BB-Legal
7. The commerce clause’s express grant of exclusive authority to regulate commerce that substantially affects trade and commerce among states is referred to as the
a. dormant aspect of the commerce clause.
b. positive aspect of the commerce clause.
c. negative aspect of the commerce clause.
d. exclusive aspect of the commerce clause.
answer: B PAGE: 37 type: N
BUSPROG: Analytic AICPA: BB-Legal
8. Congress enacts a law that sets out a rigorous medical-device premarket approval process for the U.S. Food and Drug Administration to follow. The law includes a preemption provision. Moe is injured by a device that underwent the process and files a claim under New Hampshire state law to recover for the injury. The court will most likely rule that
a. Moe’s state law claim preempts the federal law.
b. the federal law and state law claim are concurrent.
c. the federal and state law claim cancel each other out.
d. the federal law preempts Moe’s state law claim.
ANSWER: D PAGE: 38 TYPE: =
BUSPROG: Reflective AICPA: BB-Legal
9. Savers Mart, Inc., distributes its merchandise to retail outlets on an interstate basis. Under the commerce clause, Congress has the power to regulate
a. any commercial activity in the United States.
b. only activities that are in intrastate commerce.
c. only activities that are in local commerce.
d. only activities that are not in commerce.
answer: A PAGE: 38 type: =
BUSPROG: Analytic AICPA: BB-Legal
10. Congress enacts a law prohibiting toys made in China from being sold in the United States. The Hawaii state legislature enacts a law allowing the sale of Chinese-made toys. Hawaii’s law will most likely be struck down under
a. the commerce clause.
b. the equal protection clause.
c. the due process power.
d. the supremacy clause.
ANSWER: D PAGE: 38 TYPE: =
BUSPROG: Reflective AICPA: BB-Legal
11. Don, a U.S. citizen, is the owner of Egrets Unlimited, Inc. Egret’s competitors include Feathered Friends Company (FFC), which is owned by Greg and Huey. The Bill of Rights embodies a series of protections for Don against types of interference by
a. FFC and its other competitors only.
b. FFC, Greg, Huey, others, and the government.
c. Greg, Huey, and other private individuals only.
d. the government only.
answer: D PAGE: 38 type: =
BUSPROG: Reflective AICPA: BB-Legal
12. A federal law regarding the labeling of pesticides directly conflicts with a state law. The state law will be rendered invalid due to the
a. the supremacy clause.
b. the commerce clause.
c. the federal spending power.
d. the First Amendment.
answer: A PAGE: 38 type: N
BUSPROG: Analytic AICPA: BB-Critical Thinking
13. Martin, a U.S. citizen, feels that a recently enacted federal law is unfair. He assembles a group of friends and they write a petition to the government. Martin and friends then stand quietly in front of the White House with signs declaring their belief that the law is unfair. Under the First Amendment, Martin has a right to
a. petition the government, but not to assemble a group peaceably.
b. assemble peaceably, but not to petition the government.
c. both petition the government and assemble peaceably.
d. neither petition the government nor assemble peaceably.
answer: C PAGE: 38 type: N
BUSPROG: Analytic AICPA: BB-Critical Thinking
14. The police obtain a search warrant and search Dave’s apartment. After yelling obscenities at the officers, Dave confesses to a crime and implicates his friends. The Constitution protects against
a. obscene speech only.
b. others’ implication only.
c. unreasonable searches only.
d. obscene speech, others’ implication, and unreasonable searches.
answer: C PAGE: 38 type: =
BUSPROG: Reflective AICPA: BB-Legal
15. Bailey, the president of Carmichael Commodities Company, claims that certain actions by the federal government and by the state of Delaware infringe on rights guaranteed by the Bill of Rights. All of these rights limit
a. neither Delaware nor the federal government.
b. the federal government only.
c. Delaware and the federal government.
d. Delaware only.
ANSWER: B PAGE: 39 TYPE: =
BUSPROG: Reflective AICPA: BB-Critical Thinking
16. Mary creates a t-shirt design that expresses her support for a presidential candidate and distributes t-shirts to all her friends. The t-shirts are an example of
a. unprotected speech.
b. controlled speech.
c. symbolic speech.
d. illegal speech.
ANSWER: C PAGE: 40 TYPE: N
BUSPROG: Analytic AICPA: BB-Critical Thinking
17. Serenity City enacts an ordinance that bans the use of “sound amplifying systems” on public streets. Tyler wants to campaign for a seat on the city council by broadcasting his message through speakers mounted on a truck. In Tyler’s suit against the city, a court would likely hold the ordinance to be
a. an unconstitutional restriction of speech.
b. constitutional under the First Amendment.
c. justified by the need to protect individual rights.
d. necessary to protect national interests.
answer: B PAGE: 40 type: =
BUSPROG: Reflective AICPA: BB-Critical Thinking
18. George burns an American flag in his backyard. He films his actions and posts the video on YouTube.com. George’s actions are
a. expressly prohibited by the U.S. Constitution.
b. protected by the First Amendment of the U.S. Constitution.
c. considered to be a form of treason.
d. illegal in some states.
ANSWER: B PAGE: 40 TYPE: N
BUSPROG: Analytic AICPA: BB-Critical Thinking
19. Beachside City enacts an ordinance that bans the distribution of all printed materials on city streets. Carl opposes the city’s latest “revenue-enhancing” measure and wants to protest by distributing handbills. In his suit against the city, a court would likely hold the printed-materials ban to be
a. an unconstitutional restriction of speech.
b. constitutional under the First Amendment.
c. justified by the need to protect individual rights.
d. necessary to protect national interests.
ANSWER: A PAGE: 42 TYPE: =
BUSPROG: Reflective AICPA: BB-Legal
20. Reusable Energy Corporation regularly expresses opinions on political issues. Under the First Amendment, corporate political speech is
a. discouraged.
b. forbidden.
c. protected.
d. required.
ANSWER: C PAGE: 43 TYPE: N
BUSPROG: Reflective AICPA: BB-Legal
21. California enacts a statute to ban advertising in “bad taste.” This statute would likely be held by a court to be
a. an unconstitutional restriction of speech.
b. constitutional under the First Amendment.
c. justified by the need to protect individual rights.
d. necessary to protect national interests.
answer: A PAGE: 43 type: =
BUSPROG: Reflective AICPA: BB-Decision Modeling
22. Machismo Motor Sales Corporation regularly advertises its off-the-road vehicles, all-terrain vehicles, and other products. Under the First Amendment, these ads and other commercial speech are given
a. less extensive protection than noncommercial speech.
b. more extensive protection than symbolic speech.
c. no protection.
d. the same protection as defamatory speech.
ANSWER: A PAGE: 44 TYPE: =
BUSPROG: Reflective AICPA: BB-Critical Thinking
23. ViolentVideoGames, Inc. markets a variety of shooting, fighting and hunting video games. A state statue is enacted that requires all video game manufacturers to label any games with an option to kill something as “excessively violent.” A court would likely hold this regulation to be
a. an unconstitutional restriction of speech.
b. constitutional under the First Amendment.
c. justified by the need to protect individual rights.
d. necessary to protect national interests.
ANSWER: A PAGE: 44 TYPE: N
BUSPROG: Reflective AICPA: BB-Legal
24. In 2013, Congress enacts the Act to Restrict Commercial Speech (ARCS). The ARCS will be considered valid if it directly advances a substantial government interest
a. but goes no further than necessary to achieve its purpose.
b. without regard to how “far” it goes.
c. and the parties affected by it can elect how “far” to go in applying it.
d. and goes further than necessary to ensure full coverage.
answer: A PAGE: 44 type: +
BUSPROG: Reflective AICPA: BB-Legal
25. Julia is a U.S. citizen. She establishes a website that posts threatening messages about celebrities. Her website is
a. protected by the First Amendment.
b. not protected by the First Amendment.
c. protected by the Fifth Amendment.
d. protected by the Tenth Amendment.
answer: B PAGE: 45 type: N
BUSPROG: Reflective AICPA: BB-Critical Thinking
26. Brad stands in front of Rooster’s Round-Up Café, shouting “fighting words” that are likely to incite Rooster’s patrons to respond violently. The First Amendment protects such speech
a. all of the time.
b. none of the time.
c. only if it is noncommercial.
d. only if it is symbolic.
ANSWER: B PAGE: 45 TYPE: =
BUSPROG: Reflective AICPA: BB-Critical Thinking
27. Adult Shoppe in Bay City sells a variety of publications, including child pornography. Bay City enacts an ordinance prohibiting the sale of such materials. This ordinance is most likely
a. an invalid restriction of individuals’ privacy.
b. an unconstitutional restriction of speech.
c. a violation of adults’ rights to enjoy certain privileges.
d. constitutional under the First Amendment.
ANSWER: D PAGE: 45 TYPE: =
BUSPROG: Reflective AICPA: BB-Legal
28. Which of the following does not necessarily make material obscene?
a. The average person finds that it violates contemporary community standards.
b. The work taken as a whole appeals to a prurient interest in sex.
c. The work shows patently offensive sexual conduct.
d. The work shows animals mating.
answer: D PAGE: 45 type: N
BUSPROG: Reflective AICPA: BB-Decision Modeling
29. Oklahoma enacts a law requiring all businesses in the state to donate 10 percent of their profits to Protestant churches that provide certain services to persons whose income is below the poverty level. PriceLess Stores files a suit to block the law’s enforcement. The court would likely hold that this law violates
a. no clause in the U.S. Constitution.
b. the establishment clause.
c. the free exercise clause.
d. the supremacy clause.
answer: B PAGE: 47 type: =
BUSPROG: Reflective AICPA: BB-Decision Modeling
30. Marie claims that a Nebraska state statute infringes on her “procedural due process” rights. This claim focuses on
a. procedures used in making decisions to take life, liberty, or property.
b. the content of the statute.
c. the similarity of the treatment of similarly situated individuals.
d. the steps to be taken to protect Marie’s privacy.
ANSWER: A PAGE: 49 TYPE: =
BUSPROG: Reflective AICPA: BB-Legal
31. A Massachusetts state statute imposes a prison term, without a trial, on all street performers who operate in certain areas. A court would likely review this statute under the principles of
a. the commerce clause.
b. the equal protection clause.
c. the due process clause.
d. the First Amendment.
ANSWER: C PAGE: 49 TYPE: +
BUSPROG: Reflective AICPA: BB-Legal
32. Orin claims that a Pennsylvania state statute infringes on his “substantive due process” rights. This claim focuses on
a. procedures used to make decisions to take life, liberty, or property.
b. the content of the statute.
c. the similarity of the treatment of similarly situated individuals.
d. the steps to be taken to protect Orin’s privacy.
ANSWER: B PAGE: 50 TYPE: =
BUSPROG: Reflective AICPA: BB-Legal
33. Justice For All, a political organization, files a claim to challenge a Colorado statute that limits the liberty of all persons to broadcast “annoying” radio commercials. This claim is most likely based on the right to
a. equal protection of the law.
b. indictment.
c. procedural due process.
d. substantive due process.
ANSWER: D PAGE: 50 TYPE: =
BUSPROG: Reflective AICPA: BB-Legal
34. To reduce traffic, Harbor Town enacts an ordinance that allows only a few street vendors to operate in certain areas. A court would likely review this ordinance under the principles of
a. the commerce clause.
b. the equal protection clause.
c. the due process clause.
d. the First Amendment.
ANSWER: B PAGE: 51 TYPE: +
BUSPROG: Reflective AICPA: BB-Critical Thinking
35. Jon, a law enforcement official, monitors Kelsey’s Internet activities—e-mail and Web site visits—to gain access to her personal financial data and student information. This may violate Kelsey’s right to
a. equal protection of the law.
b. privacy.
c. procedural due process.
d. substantive due process.
answer: B PAGE: 54 type: N
BUSPROG: Reflective AICPA: BB-Risk Analysis
ESSAY questions
1. Jim operates Jim’s Fruits & Vegetables, a small market stocked entirely with produce grown on his adjacent farm. Under what clause of the Constitution can the federal government regulate Jim’s activities? What is Jim’s best argument against federal regulation of his farm and business?
ANSWER: Under the commerce clause, at least in theory, Congress has the power to regulate any activity—interstate or intrastate—that affects interstate commerce. Thus, under that clause, it could be argued that the farmer’s growing and selling of produce is subject to federal regulation because these activities affect interstate commerce. The farmer-vendor’s best argument against federal regulation of his farm and business in this problem might be that in his case these activities and their effects are purely local. But because of the economic character of these activities, and hence their effect on interstate commerce, however minimal and despite their local character, it is unlikely that a court would accept this argument.
PAGEs: 35–37 type: =
BUSPROG: Reflective AICPA: BB-Decision Modeling
2. The Arkansas state legislature enacts a statute that prohibits the advertising of video games “because the games might be harmful to minors.” Despite this new statute, the president of Games Marketing, Inc. (GMI), orders GMI marketers to place ads in various media. When a GMI ad appears on HDTV, a local television station, GMI and HDTV are charged with violating the statute. What is the defendants’ best defense against a conviction?
ANSWER: GMI and HDTV cannot be convicted because a state legislature cannot enact a statute that restricts commercial speech (in this problem, marketing video games) to this extent. The First Amendment protects commercial speech. Commercial speech does not receive as much protection as noncommercial speech, however, so states can place some restraints on the former. For example, to protect consumers, a state may ban certain kinds of marketing practices, such as deceptive or misleading advertising. Generally, a restriction on commercial speech will be considered valid as long as it (1) seeks to implement a substantial government interest, (2) directly advances that interest, and (3) goes no further than necessary to accomplish the objective. Here, the complete ban on ads for video games “because the games might be harmful to minors” is too restrictive: it goes too far in attempting to protect minors for an apparently unsubstantiated purpose.
PAGEs: 44–45 type: =
BUSPROG: Reflective AICPA: BB-Decision Modeling
Constitutional Law
Answers to Learning Objectives/ For Review Questions at the Beginning and the End of the Chapter
Note that your students can find the answers to the even-numbered For Review questions in Appendix F at the end of the text. We repeat these answers here as a convenience to you.
1A Structure of the government
The Constitution divides the national government’s powers among three branches. The legislative branch makes the laws, the executive branch enforces the laws, and the judicial branch interprets the laws. Each branch performs a separate function, and no branch may exercise the authority of another branch. A system of checks and balances allows each branch to limit the actions of the other two branches, thus preventing any one branch from exercising too much power.
2A Commercial activities
To prevent states from establishing laws and regulations that would interfere with trade and commerce among the states, the Constitution expressly delegated to the national government the power to regulate interstate commerce. The commerce clause—Article I, Section 8, of the U.S. Constitution—expressly permits Congress “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
3A Priority of laws
The supremacy clause—Article VI of the Constitution—provides that the Constitution, laws, and treaties of the United States are “the supreme Law of the Land.” This article is important in the ordering of state and federal relationships. When there is a direct conflict between a federal law and a state law, the state law is rendered invalid.
4A Bill of Rights
The Bill of Rights consists of the first ten amendments to the U.S. Constitution. Adopted in 1791, the Bill of Rights embodies protections for individuals against interference by the federal government. Some of the protections also apply to business entities. The First Amendment guarantees the freedoms of religion, speech, and the press, and the rights to assemble peaceably and to petition the government.
5A Due process clause
Both the Fifth and the Fourteenth Amendments to the U.S. Constitution provide that no person shall be deprived “of life, liberty, or property, without due process of law.” The due process clause of each of these constitutional amendments has two aspects—procedural and substantive.
Answers to Critical Thinking
Questions in the Features
Beyond Our Borders—Critical Thinking (Page 41)
Should U.S. courts, and particularly the United States Supreme Court look to the other nations’ laws for guidance when deciding important issues— including those involving rights granted by the Constitution? If so, what impact might this have on their decisions? Explain. U.S. courts should consider foreign law when deciding issues of national importance because changes in views on those issues is not limited to domestic law. How other jurisdictions and other nations regulate those issues can be informative, enlightening, and instructive, and indicate possibilities that domestic law might not suggest. U.S. courts should not consider foreign law when deciding issues of national importance because it can be misleading and irrelevant in our domestic and cultural context.
Adapting the Law to the Online Environment—Critical Thinking (Page 43)
How might the outcome of this case have been different if the girls had posted the photos on the high school’s public Web site for all to see? Presumably, such speech could reasonably be restricted by high school administrators. There would be no question that suggestive photos viewed on the high school’s public Web site could and would certainly be seen by most students, teachers, and parents.
Answers to Critical Thinking
Questions in the Cases
Case 2.1—Critical Thinking—Social Consideration (Page 42)
Could a state effectively enforce a law that banned all communication between minors and sex offenders through social media sites? Why or why not? The requirement of narrow tailoring may be satisfied so long as the state’s interest would be achieved less effectively without the statute. In other words, the Constitution tolerates some over-inclusiveness if it furthers the state's ability to administer the regulation and combat an evil. And a law that banned all communication between minors and sex offenders through social media would almost certainly enhance the safety of minors, and burden less speech than the statute at issue in the Doe case. But such a statute would nevertheless create problems. It would free most expression from regulation but still prohibit a substantial amount of harmless speech—for example, it would prohibit conversations between a parent and child if the parent is a sex offender.
Case 2.2—What If the Facts Were Different? (Page 45)
If Bad Frog had sought to use the label to market toys instead of beer, would the court’s ruling likely have been the same? Explain your answer. Probably not. The reasoning underlying the court’s decision in the case was, in part, that “the State’s prohibition of the labels . . . does not materially advance its asserted interests in insulating children from vulgarity . . . and is not narrowly tailored to the interest concerning children.” The court’s reasoning was supported in part by the fact that children cannot buy beer. If the labels advertised toys, however, the court’s reasoning might have been different.
Case 2.3—What If the Facts Were Different? (Page 49)
Suppose that Mitchell County had passed an ordinance that allowed the Mennonites to continue to use steel cleats on the newly resurfaced roads provided that the drivers paid a $5 fee each time they were on the road. Would the court have ruled differently? Why or why not? The Mennonites would still have been singled out for differential treatment under the law because of their use of steel cleats. Therefore, the court probably would have ruled similarly. Only if those who used snow chains and metal-studded snow tires were similarly asked to pay a fee would the court possibly have ruled otherwise.
Answers to Questions in the Reviewing Feature
at the End of the Chapter
1A. Equal protection
When a law or action limits the liberty of some persons but not others, it may violate the equal protection clause. Here, because the law applies only to motorcycle operators and passengers, it raises equal protection issues.
2A. Levels of scrutiny
The three levels of scrutiny that courts apply to determine whether the law or action violates equal protection are strict scrutiny (if fundamental rights are at stake), intermediate scrutiny (in cases involving discrimination based on gender or legitimacy), and the “rational basis” test (in matters of economic or social welfare).
3A. Standard
The court would likely apply the rational basis test, because the statute regulates a matter of social welfare by requiring helmets. Similar to seat-belt laws and speed limits, a helmet statute involves the state’s attempt to protect the welfare of its citizens. Thus, the court would consider it a matter a social welfare and require that it be rationally related to a legitimate government objective.
4A. Application
The statute is probably constitutional, because requiring helmets is rationally related to a legitimate government objective (public health and safety). Under the rational basis test, courts rarely strike down laws as unconstitutional, and this statute will likely further the legitimate state interest of protecting the welfare of citizens and promoting safety.
Answer to Debate This Question in the Reviewing Feature at the End of the Chapter
Legislation aimed at protecting people from themselves concerns the individual as well as the public in general. Protective helmet laws are just one example of such legislation. Should individuals be allowed to engage in unsafe activities if they choose to do so? Certainly many will argue in favor of individual rights. If certain people wish to engage in risky activities such as riding motorcycles without a helmet, so be it. That should be their choice. No one is going to argue that motorcycle riders believe that there is zero danger when riding a motorcycle without a helmet. In other words, individuals should be free to make their own decisions and consequently, their own mistakes.
In contrast, there is a public policy issue involved. If a motorcyclist injures him- or herself in an accident because he or she was not wearing a protective helmet, society ends up paying in the form of increased medical care expenses, lost productivity, and even welfare for other family members. Thus, the state has an interest in protecting the public in general by limiting some individual rights.
Answers to Issue Spotters in the ExamPrep Feature at the End of the Chapter
1A Can a state, in the interest of energy conservation, ban all advertising by power utilities if conservation could be accomplished by less restrictive means? Why or why not? No. Even if commercial speech is not related to illegal activities nor misleading, it may be restricted if a state has a substantial interest that cannot be achieved by less restrictive means. In this case, the interest in energy conservation is substantial, but it could be achieved by less restrictive means. That would be the utilities’ defense against the enforcement of this state law.
2A Suppose that a state imposes a higher tax on out-of-state companies doing business in the state than it imposes on in-state companies. Is this a violation of equal protection if the only reason for the tax is to protect the local firms from out-of-state competition? Explain. Yes. The tax would limit the liberty of some persons (out of state businesses), so it is subject to a review under the equal protection clause. Protecting local businesses from out-of-state competition is not a legitimate government objective. Thus, such a tax would violate the equal protection clause.
Answers to Questions and Case Problems
at the End of the Chapter
Business Scenarios and Case Problems
2–1A Freedom of speech
(BLTC page 40)
To protect citizens from those who would abuse the right to free expression, speech is subject to reasonable restrictions. But a restriction must aim at a social problem and not at the content of the speech. Thus, the court in this problem is likely to consider the reasonableness of the restriction on the posting of signs on public property in terms of its purpose and the means it uses to achieve that purpose.
Here, the purpose of the ordinance is to improve the appearance of public property. The posting of all signs—not just political campaign signs—is prohibited. There are alternatives to posting signs on public property for a candidate’s supporters to communicate their message. In other words, this prohibition on signs did not go so far as to ban political campaign speech altogether.
In the actual case on which this problem is based, the United States Supreme Court upheld a similar ordinance on the reasoning stated above.
2–2A Question with Sample Answer—The free exercise clause
Thomas has a constitutionally protected right to the free exercise of his religion. In denying his claim for unemployment benefits, the state violated this right. Employers are obligated to make reasonable accommodations for their employees’ beliefs that are openly and sincerely held, as were Thomas’s beliefs. By moving him to a department that made military goods, his employer effectively forced him to choose between his job and his religious principles. This unilateral decision on the part of the employer was the reason Thomas left his job and why the company was required to compensate Thomas for his resulting unemployment.
2–3A The equal protection clause
(BLTC page 50)
According to the standards applied to determine compliance with the equal protection clause, this ordinance’s classification—a gender-based distinction—is subject to intermediate scrutiny. Under this standard, the court could dismiss the plaintiffs’ complaint. Gender-based distinctions are acceptable in circumstances in which the two genders are not similarly situated. The city’s objectives of preventing crime, maintaining property values, and preserving the quality of urban life, are legitimate and important. Regulation of female, but not male, topless dancing, in the context of the overall regulation of sexually explicit commercial establishments, could reasonably be interpreted as substantially related to achieving these objectives. The court might point out, for example, that males are often topless on beaches, in sporting events, during performances at the ballet, and in magazine photos without sexual suggestiveness. Female breasts are rarely exposed in public venues without sexual overtones, however. This arguably makes it permissible for the law to regard female toplessness differently from male toplessness.
2–4A Spotlight on Plagiarism—Due process
To adequately claim a due process violation, a plaintiff must allege that he was deprived of “life, liberty, or property” without due process of law. A faculty member’s academic reputation is a protected interest. The question is what process is due to deprive a faculty member of this interest and in this case whether Gunasekera was provided it. When an employer inflicts a public stigma on an employee, the only way that an employee can clear his or her name is through publicity. Gunasekera’s alleged injury was his public association with the plagiarism scandal. Here, the court reasoned that “a name-clearing hearing with no public component would not address this harm because it would not alert members of the public who read the first report that Gunasekera challenged the allegations. Similarly, if Gunasekera’s name was cleared at an unpublicized hearing, members of the public who had seen only the stories accusing him would not know that this stigma was undeserved.” Thus the court held that Gunasekera was entitled to a public name-clearing hearing.
2–5A The commerce clause
(BLTC page 35)
Under the commerce clause, the national government has the power to regulate every commercial enterprise in the United States. The commerce clause may not justify national regulation of noneconomic conduct. Interstate travel involves the use of the channels of interstate commerce, however, and is properly subject to congressional regulation under the commerce clause. Thus, SORNA—which makes it a crime for a sex offender to fail to re-register as an offender when he or she travels in interstate commerce—is a legitimate exercise of congressional authority under the commerce clause.
In the actual case on which this problem is based, a federal district court dismissed Hall’s indictment. On the government’s appeal, the U.S Court of Appeals for the Second Circuit reversed the dismissal and remanded the case for further proceedings, based on the reasoning stated above.
2–6A Case Problem with Sample Answer—Establishment clause
The establishment clause prohibits the government from passing laws or taking actions that promote religion or show a preference for one religion over another. In assessing a government action, the courts look at the predominant purpose for the action and ask whether the action has the effect of endorsing religion.
Although here DeWeese claimed to have a nonreligious purpose for displaying the poster of the Ten Commandments in a courtroom, his own statements showed a religious purpose. These statements reflected his views about “warring” legal philosophies and his belief that “our legal system is based on moral absolutes from divine law handed down by God through the Ten Commandments.” This plainly constitutes a religious purpose that violates the establishment clause because it has the effect of endorsing Judaism or Christianity over other religions. In the case on which this problem is based, the court ruled in favor of the American Civil Liberties Union.
2–7A The dormant commerce clause
(BLTC page 37)
The court ruled that like a state, Puerto Rico generally may not enact policies that discriminate against out-of-state commerce. The law requiring companies that sell cement in Puerto Rico to place certain labels on their products is clearly an attempt to regulate the cement market. The law imposed labeling regulations that affect transactions between the citizens of Puerto Rico and private companies. State laws that on their face discriminate against foreign commerce are almost always invalid, and this Puerto Rican law is such a law. The discriminatory labeling requirement placed sellers of cement manufactured outside Puerto Rico at a competitive disadvantage. This law therefore contravenes the dormant commerce clause.]
2–8A Freedom of speech
(BLTC page 40)
No, Wooden’s conviction was not unconstitutional. Certain speech is not protected under the First Amendment. Speech that violates criminal laws—threatening speech, for example—is not constitutionally protected. Other unprotected speech includes fighting words, or words that are likely to incite others to respond violently. And speech that harms the good reputation of another, or defamatory speech, is not protected under the First Amendment.
In his e-mail and audio notes to the alderwoman, Wooden discussed using a sawed-off shotgun, domestic terrorism, and the assassination and murder of politicians. He compared the alderwoman to the biblical character Jezebel, referring to her as a “bitch in the Sixth Ward.” These references caused the alderwoman to feel threatened. The First Amendment does not protect such threats, which in this case violated a state criminal statute. There was nothing unconstitutional about punishing Wooden for this unprotected speech.
In the actual case on which this problem is based, Wooden appealed his conviction, arguing that it violated his right to freedom of speech. Under the principles set out above, the Missouri Supreme Court affirmed the conviction.
2–9A A Question of Ethics—Free speech
1. The answers to these questions begin with the protection of the freedom of speech under the First Amendment. The freedom to express an opinion is a fundamental aspect of liberty. But this right and its protection are not absolute. Some statements are not protected because, as explained in the Balboa decision, “they are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Defamatory statements are among those that are not protected.
Arguments in favor of protecting such statements include the perception of the right to freedom of speech as necessary to liberty and a free society. Arguments opposed to such protection include “the social interest in order and morality.” In between these positions might fall a balancing of both their concerns. Under any interpretation the degree to which statements can be barred before they are made is a significant question.
In the Balboa case, the court issued an injunction against Lemen, ordering her to, among other things, stop making defamatory statements about the Inn. On appeal, a state intermediate appellate court invalidated this part of the injunction, ruling that it violated Lemen’s right to freedom of speech under the Constitution because it was a “prior restraint”—an attempt to restrain Lemen’s speech before she spoke. On further appeal, the California Supreme Court phrased “the precise question before us [to be] whether an injunction prohibiting the repetition of statements found at trial to be defamatory violates the First Amendment.” The court held it could enjoin the repetition of such statements without infringing Lemen’s right to free speech. Quoting from a different case, the court reasoned, “The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment. An injunction that is narrowly tailored, based upon a continuing course of repetitive speech, and granted only after a final adjudication on the merits that the speech is unprotected does not constitute an unlawful prior restraint.” The court added that the injunction could not prevent Lemen from complaining to the authorities, however.
2. To answer this question requires a standard to apply to the facts. A different chapter in the text sets out two fundamental approaches to ethical reasoning: one involves duty-based standards, which are often derived from religious precepts, and the other focuses on the consequences of an action and whether these are the “greatest good for the greatest number.”
Under the former approach, a pre-established set of moral values founded on religious beliefs can be taken as absolute with regard to behavior. Thus, if these values proscribed Lemen’s name-calling as wrong, it would be construed as wrong, regardless of the truth of what she said or any effect that it had. Similarly, if the values prescribed Lemen’s conduct as correct, it might be unethical not to engage in it. A different duty-based approach grounded on philosophical, rather than religious, principles would weigh the consequences of the conduct in light of what might follow if everyone engaged in the same behavior. If we all engaged in name-calling, hostility and other undesirable consequences would likely flourish. A third duty-based approach, referred to as the principle of rights theory, posits that every ethical precept has a rights-based corollary (for example, “thou shalt not kill” recognizes everyone’s right to live). These rights collectively reflect a dignity to which we are each entitled. Under this approach, Lemen’s name-calling would likely be seen as unethical for failing to respect her victims’ dignity.
Finally, an outcome-based approach focuses on the consequences of an act, requiring a determination as to whom it affects and assessments of its costs and benefits, as well as those of alternatives. The goal is to seek the maximum societal utility. Here, Lemen’s behavior appears to have had little positive effect on herself or the objects of her criticism (the Inn, its employees, its patrons, and its business). The Inn’s business seems to have been affected in a substantial way, which in Lemen’s eyes may be a “benefit,” but in the lives of its owners, employees, and customers, would more likely be seen as a “cost.”
Critical Thinking and Writing Assignments
2–10A Business Law Writing
For commercial businesses that operate only within the borders of one state, the power of the federal government to regulate every commercial enterprise in the United States means that even exclusively intrastate businesses are subject to federal regulations. This can discourage intrastate commerce, or at least the commercial activities of small businesses, by adding a layer of regulation that may require expensive or time-consuming methods of compliance. This may encourage intrastate commerce, however, by disallowing restrictions, such as arbitrary discriminatory practices, that might otherwise impair the operation of a free market. This federal power also affects a state’s ability to regulate activities that extend beyond its borders, as well as the state’s power to regulate strictly in-state activities if those regulations substantially burden interstate commerce. This effect can be to encourage intrastate commerce by removing some regulations that might otherwise impede business activity in the same way that added federal regulations can have an adverse impact. A state’s inability to regulate may discourage small intrastate businesses, however, by inhibiting the state’s power to protect its “home” or “native” enterprises.
2–11A Business Law Critical Thinking Group Assignment
1. The rules in this problem regulate the content of expression. Such rules must serve a compelling governmental interest and must be narrowly written to achieve that interest. In other words, for the rules to be valid, a compelling governmental interest must be furthered only by those rules. To make this determination, the government’s interest is balanced against the individual’s constitutional right to be free of the rules. For example, a city has a legitimate interest in banning the littering of its public areas with paper, but that does not justify a prohibition against the public distribution of handbills, even if the recipients often just toss them into the street. In this problem, the prohibition against young adults' possession of spray paint and markers in public places imposes a substantial burden on innocent expression because it applies even when the individuals have a legitimate purpose for the supplies. The contrast between the numbers of those cited for violating the rules and those arrested for actually making illegal graffiti also undercuts any claim that the interest in eliminating illegal graffiti could not be achieved as effectively by other means.
2. The rules in this problem do not regulate the content of expression—they are not aimed at suppressing the expressive conduct of young adults but only of that conduct being fostered on unsuspecting and unwilling audiences. The restrictions are instead aimed at combating the societal problem of criminal graffiti. In other words, the rules are content neutral. Even if they were not entirely content neutral, expression is always subject to reasonable restrictions. Of course, a balance must be struck between the government’s obligation to protect its citizens and those citizens’ exercise of their right. But the rules at the center of this problem meet that standard. Young adults have other creative outlets and other means of artistic expression available.
3. Under the equal protection clause of the Fourteenth Amendment, a state may not “deny to any person within its jurisdiction the equal protection of the laws.” This clause requires a review of the substance of the rules. If they limit the liberty of some person but not others, they may violate the equal protection clause. Here, the rules apply only to persons under the age of twenty-one. To succeed on an equal protection claim, opponents should argue that the rules should be subject to strict scrutiny—that the age restriction is similar to restrictions based on race, national origin, or citizenship. Under this standard, the rules must be necessary to promote a compelling governmental interest. The argument would be that they are not necessary—there are other means that could accomplish this objective more effectively. Alternatively, opponents could argue that the rules should be subject to intermediate scrutiny—that the age restriction is similar to restrictions based on gender or legitimacy. Under this level of scrutiny, the restrictions must be substantially related to an important government objective. In this problem, the contrast between the numbers of those cited for violating the rules and those arrested for actually making illegal graffiti undermines any claim that the restrictions are substantially related to the interest in eliminating illegal graffiti. If neither of these arguments is successful, opponents could cite these same numbers to argue that the rules are not valid because there is no rational basis on which their restrictions on certain persons relate to a legitimate government interest.
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