CONSTITUTIONAL LAW

EXPLANATORY ANSWERS
 Constitutional Law Answers 1.

Constitutional Law Answers

Answer to Question 1

(B) The resident will prevail even if the matter is not decided until after the election, because the suit
is not moot and the residency requirement is unconstitutional. The resident’s suit is not moot even
if the matter will not be decided until after the election because other members of the class might
have a live controversy. Under the case and controversy requirement of the Constitution, there
must be a real, live controversy at all stages of the suit. If through the passage of time, the contro-
versy between the parties is resolved, the case is said to be moot. However, there are exceptions to
the mootness doctrine. In a class action, it is not necessary that the suit by the named plaintiff be
viable at all stages, as long as the claim is viable by some member of the class. Thus, the suit here
would not be moot. Moreover, the residency requirement here violates the resident’s fundamental
rights to vote and to interstate travel. A restriction on the right to vote is subject to strict scrutiny
and is valid only if it is necessary to achieve a compelling state interest (otherwise the restric-
tion violates the Equal Protection Clause by treating new residents differently from old residents).
Relatively short residency requirements (e.g., 30 days) have been upheld as being necessary to
promote the compelling interest of assuring that only bona fide residents vote. However, the
Supreme Court has struck down longer durational requirements for lack of a compelling justi-
fication. Thus, the one-year requirement here probably unconstitutionally impinges on the right
to vote. The residency requirement also impinges on the fundamental right to travel in the same
manner (i.e., it discourages people from migrating by denying them the right to vote without a
compelling reason). Thus, the requirement is invalid. (A) is incorrect because, as indicated above,
the case will not be moot since other members of the class might have a live controversy. (C) is
incorrect because it applies the wrong standard. Because fundamental rights are affected by the
residency requirement here, the government must show a compelling justification; a mere rational
or legitimate basis is not enough. (D) is incorrect because, as stated above, the Supreme Court has
found that there was no compelling interest for a one-year residency requirement in order to vote.

Answer to Question 2

(A) The federal court should not hear the case because it is not yet ripe for review. A federal court
will not hear a case unless there exists a “case and controversy.” This has been interpreted to
mean, among other things, that a plaintiff generally is not entitled to review of his claim unless
he has been harmed or there is an immediate threat of harm. This is to prevent the federal courts
from hearing unnecessary actions. There is no immediate threat of harm to the union here
because the law does not take effect for another two years. Before that happens, Congress might
change the law or repeal it altogether, or the school board may decide to keep the old contract
system after all. Thus, (A) is correct and (D) is incorrect. (B) is incorrect because the union would
have standing. An association has standing if (i) there is an injury in fact to its members that
would give them standing, (ii) the injury is related to the organization’s purpose, and (iii) neither
the nature of the claim nor the relief requested requires participation of the individual members in
the lawsuit. All three of the conditions are met here; thus, the union would have standing. (C) is
incorrect because the Contract Clause does not limit federal power, only state power, and because
the state would be acting pursuant to a federal law here, there would be no Contract Clause viola-
tion. Moreover, even if the Contract Clause limited the state’s actions here, it still is not clear
that there would be a constitutional violation. The Clause bans only substantial interference with
existing contracts (i.e., destruction of almost all of a party’s rights under a contract), and it is not
clear here that the impairments would be sufficiently substantial.
2. Constitutional Law Answers

Answer to Question 3

(B) The student has standing. A person challenging the constitutionality of a government action must
have standing to raise the issue. To have standing, a person must show that he is injured by a
government action (injury in fact) and that a favorable decision will eliminate the harm. Gener-
ally, a taxpayer does not have standing to challenge the way tax money is spent because any
alleged injury is too remote. However, here the student is not bringing suit as a taxpayer; rather he
is alleging that the state policy of providing financial aid only for residents who attend schools in
the state injures him by depriving him of such aid solely on the basis of attending a college outside
the state, thus violating his right to equal protection. A ruling in the student’s favor will eliminate
the harm to him. Therefore, the student has a concrete stake in the outcome of this controversy,
entirely independent of whether he has ever paid taxes in the state. Regarding (A), the Eleventh
Amendment prohibits a federal court suit against a state by a citizen of that state or by a citizen of
another state. However, the Eleventh Amendment does not bar a suit against a state official acting
pursuant to state law but allegedly in violation of the plaintiff’s constitutional rights. Here, the
student is seeking an order that a particular state official be compelled to act in conformity with
the student’s right to equal protection. The lawsuit is not brought against the state, nor does it seek
a retroactive recovery from state funds. The prospective payment of state funds that the student
seeks through the compelled granting of his application for aid is not prohibited by the Eleventh
Amendment. Thus, (A) is incorrect. Regarding (D), the doctrine of sovereign immunity refers to
the rule that a governmental entity may not be sued unless it consents to be sued (which consent
is generally afforded by statute). Here, the facts do not state whether the state has consented to
be sued. However, as detailed above, the student is not actually suing the state. He is suing a state
official who is allegedly enforcing an unconstitutional enactment, and is seeking to compel the
official to grant his application. Because the suit is not against the state, the doctrine of sovereign
immunity is not applicable. (C) is incorrect because it is only with regard to state criminal statutes
or prosecutions that a party seeking to enjoin such statutes or prosecutions must show irreparable
injury or exceptional circumstances (i.e., a showing of significant harm that could not be avoided
by state adjudication and appellate review of the proceedings). Here, there is no criminal statute
or prosecution at issue. Thus, there is no need to show “extraordinary circumstances.”

Answer to Question 4

(B) The woman must allege that she pays federal income taxes and that the use of federal funds in
this manner is improper under Congress’s taxing and spending power. In general, a taxpayer
has no standing to challenge the expenditure of federal funds. The major exception to this rule
is where the taxpayer alleges that the expenditure was enacted under Congress’s taxing and
spending power, and exceeds some specific limitation on that power, in particular the Establish-
ment Clause. Here, by providing federal tax money to parochial schools, there may be excessive
entanglement with religion and thus a violation of the Establishment Clause. Thus, the woman
would have standing to contest this federal expenditure. The woman would not have to have
children to make this challenge. However, she would have to be a taxpayer. Thus, (A), (C), and
(D) are wrong.

Answer to Question 5

(D) The best way to approach this question is to eliminate the wrong answers first. (A) is incorrect
because state constitutional provisions do not have to be interpreted exactly the same as federal
provisions; the federal Constitution provides the minimum rights that states must provide, but
states are free to grant broader rights. Thus, even though a 50-day delay may be constitutional
 Constitutional Law Answers 3.

under the federal Constitution, it can still be held unconstitutional under a state constitution. (B) is
incorrect because the facts make it clear that the state court was relying on federal case interpre-
tations. Moreover, if the Supreme Court could not decide whether the case was based on federal
or state grounds, it would not reverse the case, because a federal court will not hear a case that
can be based on adequate and independent state grounds; rather, it would dismiss the case or
remand it to the state for clarification. (C) is incorrect because the Eleventh Amendment gener-
ally prohibits federal courts from hearing actions by a private party or foreign government against
the state government; it does not bar a state from appealing a ruling from its own court system.
Thus, (D) is correct. The Supreme Court had jurisdiction to hear the case, because it has jurisdic-
tion to hear appeals from a state’s highest court concerning the constitutionality of a state statute,
and as indicated above, the state court’s decision was not based on independent state grounds; the
decision was based on federal case law interpreting an identical federal provision. Thus, jurisdic-
tion was proper and the Court could reverse the state court decision and hold that a 50-day delay
does not violate the federal Constitution. However, the case should be remanded so that the state
may decide whether the delay was too long under state law, since a state is free to provide its
citizens with more civil protection than is required by the federal Constitution.

Answer to Question 6

(C) To prevail, the parents will have to show that the statute does not meet the rational basis test.
Under that test, a law is presumed to be valid and will be upheld unless the challenger can make
the difficult showing that it is not rationally related to a legitimate state interest. Here, the statute
terminating the funds did not target a suspect class and did not burden a fundamental right, so
the rational basis test applies. (A) is incorrect because it is not enough to show that legislation has
a discriminatory effect on a suspect class; there must be an intent to discriminate. To establish a
racial, national origin, or ethnicity classification, the party challenging the law must show that (i)
the racial classification appears in the law itself (facial discrimination), (ii) the law was applied in
a purposefully discriminatory manner, or (iii) the law was enacted or maintained for a discrimi-
natory purpose. None of these situations appears to be indicated under these facts. (B) is incorrect
because it states the wrong standard. As that choice indicates, the Supreme Court has not held
education to be a fundamental right under the Due Process Clause, nor has it found classifica-
tions based on wealth to require strict scrutiny. Hence, the test that is applied is the rational basis
standard; the standard in (B) is an intermediate scrutiny test applied to gender and legitimacy
classifications. (D) is incorrect because it imposes the burden of proof on the wrong party. For a
statute that does not discriminate against a suspect class, the plaintiff bears the burden of proving
that the statute is not rationally related to a legitimate state interest.

Answer to Question 7

(B) The physician will succeed. The Privileges or Immunities Clause of the Fourteenth Amendment
prohibits states from denying their citizens the privileges and immunities of national citizenship.
This includes the right to travel, and the Court has held that the right to travel includes the right
of newly arrived citizens to enjoy the same privileges and immunities as are enjoyed by other
citizens of the state. A state law that distinguishes between new residents solely on the length
of their residency will serve no legitimate state interest. Thus, a law limiting medical licenses
to persons who have resided in the state for a year runs afoul of the clause. (A) is incorrect.
The Privileges and Immunities Clause of Article IV prohibits discrimination by a state against
nonresidents. Here, the physician is a resident of the state discriminating against him. Hence, the
Article IV privileges and immunities protection does not apply. (C) is not as good an answer as
(B) because the law here involves discrimination based on duration of residency—making the
4. Constitutional Law Answers

Privileges or Immunities Clause more direct. (D) is incorrect because duration of residency does
not impact the welfare of residents.

Answer to Question 8

(A) The strongest argument against the legislation’s constitutionality is that Congress cannot usurp
the courts’ authority to define the scope of the Equal Protection Clause. If the Equal Protection
Clause requires a remedy for past racial discrimination, then Congress could not constitutionally
interfere with the fashioning of a judicial remedy to achieve constitutionally required conduct. (B)
is wrong because the Privileges or Immunities Clause protects individual rights against infringe-
ment by state government; it does not limit the powers of Congress vis-à-vis the federal courts.
(C) is wrong because Congress may limit the jurisdiction of federal courts. (D) is wrong because
Congress may burden interstate commerce, because it has very broad power on that subject.

Answer to Question 9

(B) The state’s action would be reviewed under the rational basis standard. Although state classifi-
cations based on alienage are generally suspect, a state may reserve a government position for
citizens if it is related to self-governance, involves policymaking, or requires exercise of important
discretionary power over citizens. In these cases, only a rationality test is used. A public school
teacher at the primary and secondary school level performs an important governmental function
(e.g., he influences students’ attitudes about government, the political process, citizenship, etc.),
and therefore the exclusion of aliens is rationally related to the state’s interest in furthering educa-
tional goals. [Ambach v. Norwick (1979)] (C) is, accordingly, incorrect. The principle articulated
in (A) is correct, but has no bearing here, where the question is whether a distinction based on
alienage is permissible. (D) is true, but irrelevant; the state may deny the man’s application regard-
less of his ultimate intentions, so long as he remains an alien.

Answer to Question 10

(C) The resident will not prevail because the reapportionment plan does not violate the Equal Protec-
tion Clause of the Fourteenth Amendment. That provision has been interpreted to prohibit state
dilution of the right to vote, so that whenever a governmental body establishes voting districts for
the election of representatives, the number of persons in each district may not vary significantly.
However, for the purpose of electing representatives to a state or local governmental body, the
variance in the number of persons included in each district can be greater than that permitted for
congressional districts. If the deviation from mathematical equality between districts is reasonable
and tailored to promote a legitimate state interest, the law establishing the districts will likely be
upheld. The Court has held that maintaining the integrity of local political subdivision lines when
establishing legislative districts is a legitimate state interest, as long as the final apportionment is
substantially based on population. [See Mahan v. Howell (1973)—16% variance upheld] Here, the
reapportionment attempted to conform legislative districts as nearly as possible to county borders
and had a maximum variance of 12%. Thus, it will probably withstand the resident’s challenge.
(A) is incorrect because the fact that an alternative plan has a lesser variance between the districts
does not make the selected plan invalid. Because it satisfies the less stringent requirements for
state and local governmental bodies discussed above, the plan does not violate the Equal Protec-
tion Clause. (B) is incorrect because race can be considered in drawing up new voting districts,
even though it cannot be the predominant factor. If a plaintiff can show that a redistricting plan
was drawn up predominantly on the basis of racial considerations (as opposed to the more tradi-
tional factors, such as compactness, contiguity, and community interest), the plan will violate the
 Constitutional Law Answers 5.

Equal Protection Clause unless the government can show that the plan is narrowly tailored to
serve a compelling government interest (such as eliminating past discrimination). However, if a
legislative redistricting map can be explained in terms other than race, the Court will not find that
the law constitutes racial discrimination on its face. In such a case, the person attacking legislative
districts as being based on racial classifications would have to show that district lines were drawn
predominantly for a racially discriminatory purpose. Here, as discussed above, the state’s interest
in preserving political subdivisions (counties) is a legitimate government interest, and the resident
will be unable to prove that this was not the predominant factor in the reapportionment. (D) is
incorrect because the fact that the reapportionment plan reduces the existing population variance
among districts does not make it constitutionally valid. The plan must satisfy the equal protection
requirements established by the Court in apportionment cases.

Answer to Question 11

(D) The city’s requirement that the developer use the city’s redevelopment authority is constitutional
under the rational basis standard. When a city acts and the actions do not affect a fundamental right
or involve a suspect or quasi-suspect classification, the action will be upheld unless the challenging
party can prove that the action is not rationally related to a legitimate government interest. The
city’s desire to use its own work crews to do all redevelopment work in the warehouse district is
rationally related to many possible legitimate government interests; e.g., ensuring consistency and
quality, providing work for government employees, and even making a profit or recouping some
of the funds that the city expended to condemn the buildings. Moreover, the city does not classify
developers, treating some differently from others, so no suspect or quasi-suspect class is involved,
and as will be explained below, no fundamental right is involved either. (A) is incorrect because the
Privileges and Immunities Clause is not applicable here. The Article IV Privileges and Immunities
Clause prohibits states from discriminating against nonresidents regarding “fundamental” rights,
and the right to remodel a particular building using the labor force of one’s choice simply is not
a fundamental right. (B) is incorrect. It is based on the Taking Clause of the Fifth Amendment.
That clause prohibits government from taking private property without just compensation. It has
been held that under the clause, government may not condition a building permit on a landowner’s
conveying title to part of his land to the government or granting the public access to the property
unless the government can show that the condition relates to a legitimate government interest and
the adverse impact of the proposed development is roughly proportional to the loss caused to the
owner by the forced transfer. Here, the contractor does not own the building—the city is willing
to give it to the builder only if certain conditions are met. Thus, the conditions do not amount to
an exaction. (C) is incorrect. It also is based on the Taking Clause. That clause is not a source of
power. Thus, it cannot be a constitutional basis for upholding the city’s requirement.

Answer to Question 12

(C) The young man will prevail if the state cannot establish that the restriction is substantially related
to an important government interest. Classifications based on gender usually are tested against an
intermediate standard of review; i.e., the Supreme Court will strike down the classification unless
the government offers an exceedingly persuasive justification that the classification is substan-
tially related to an important government interest. Classifications intentionally discriminating
against men generally are invalid, and (C) states the proper standard for review. (A) and (D) are
substantially the same and incorrect because they state the standard to be applied to classifications
involving a suspect class or fundamental right. However, a gender-based distinction is character-
ized as a quasi-suspect classification. (B) is incorrect because it states the standard to be applied
when no fundamental right or suspect or quasi-suspect class is involved.
6. Constitutional Law Answers

Answer to Question 13

(D) The statute will likely be held constitutional because the attempt to compensate for past discrimi-
nation against women is substantially related to an important government objective. When
examining federal government action involving classifications of persons, the Supreme Court,
using the Due Process Clause of the Fifth Amendment, applies the same standards that it applies
to state actions under the Fourteenth Amendment Equal Protection Clause. When analyzing
government action based on gender classifications, the Court will apply an intermediate standard
and strike the action unless the government proves, by an exceedingly persuasive justifica-
tion, that the action is substantially related to an important government interest. Applying this
standard, the Court has generally upheld classifications benefiting women that are designed to
remedy past discrimination against women, because remedying past gender discrimination is
an important government interest. Here, the federal statute establishes a formula designed not
only to ensure current “gender equity” in funding of intercollegiate athletic programs but also to
correct specific past inequities, and the school’s required funding allocation in favor of women
is designed to correct inequitable allocations by the school in prior years. Hence, even though
the statute’s allocation requirement may discriminate against the student and other males at the
school, the government can satisfy its burden of showing a substantial relationship to an impor-
tant government interest. (A) is incorrect because classifications based on gender are subject to
an intermediate standard rather than a strict scrutiny standard; in other words, the government
need not show that the classification is necessary to achieve a compelling interest, only that it is
substantially related to an important interest. Furthermore, if the classification were one subject
to strict scrutiny, remedying past discrimination based on the classification would probably be
considered a compelling government interest. (B) is incorrect because Congress may “regulate”
states through the spending power by imposing conditions on the grant of money to state govern-
ments. Even if Congress lacked the power to directly regulate the activity that is the subject of
the spending program, attaching conditions on the spending does not violate the states’ Tenth
Amendment rights as long as the conditions are (i) clearly stated, (ii) related to the purpose of the
program, and (iii) not unduly coercive. (C) is incorrect because it imposes the burden of proof on
the wrong party and relies on the wrong standard. Because the statute results in gender discrimi-
nation, the government has the burden of proof, and that burden is to prove that the statute is
substantially related to an important government interest.

Answer to Question 14

(B) This situation presents a possible violation of the Equal Protection Clause. A state may not favor
established residents over new residents. To do so in an area that affects a person’s ability to
engage in his livelihood impedes migration from state to state. Interstate travel is a fundamental
right, and a classification that burdens it would trigger a strict scrutiny analysis. In any case, the
classification would be subjected to something more than the mere rationality test. (A) is incorrect
because this is not an area reserved to the states, and even if it were, the United States Constitu-
tion would take precedence over state law. (C) is wrong because the Fifth Amendment applies
only to federal, not state, government action. (D) is wrong because the Privileges and Immunities
Clause does not apply to aliens.

Answer to Question 15

(B) The textbook distribution is unconstitutional because it furthers segregation. State provision of
textbooks to the segregated private school violates the Equal Protection Clause by giving state
support to a racially segregated school. Here, the private school only admits Caucasian students
 Constitutional Law Answers 7.

and is thus segregated. (A) is wrong because a state may, under certain situations, aid a private
parochial school. (C) and (D) are parts of the test for violation of the Establishment Clause.
The Supreme Court has held that a state lending textbooks on secular subjects to all students,
including those at religious schools, does not violate the Establishment Clause. Thus, (C) and (D)
are incorrect.

Answer to Question 16

(B) The court will base its decision on its determination that the ordinance is narrowly tailored to
serve an important government interest and does not unreasonably limit alternative channels of
communication. While the First Amendment protects the freedoms of speech and assembly, the
government may reasonably regulate speech-related conduct in public forums through content-
neutral time, place, and manner regulation. To avoid strict scrutiny and be upheld, government
regulations on speech and assembly in public forums must be content neutral and narrowly
tailored to serve an important government interest, and must leave open alternative channels of
communication. Here, the ban on camping overnight in the park, a content-neutral regulation of
a public forum, would be evaluated by the court using the standard in choice (B). (A) and (D)
are incorrect because the rational relationship test is used for restrictions on free speech rights in
nonpublic forums. Here, because the park is a public forum, the more restrictive test stated in (B)
is used. (C) is incorrect because it misstates both parts of the standard.

Answer to Question 17

(B) The most damaging fact to the promoter’s First Amendment claims is that the fair’s rules clearly
prohibit leafleting except at designated hours other than the time the promoter was distributing
leaflets. The First Amendment freedom of speech is not absolute. To avoid chaos and to protect
other governmental interests, government is allowed to adopt reasonable time, place, and manner
regulations on speech in public forums and designated public forums. To avoid strict scrutiny and
be upheld, such regulations must be content-neutral, be narrowly tailored to serve an important
government interest, and leave open alternative channels of communication. The fact that the rule
here allows solicitation at specified times indicates that it is narrowly tailored and leaves open
alternative channels of communication. The rule also seems to be content-neutral and it serves the
government’s important interest of keeping the fair orderly. Therefore, the rule would probably
be valid if (B) is true. (A) would not be damaging to the promoter because the First Amendment
protects against infringement on speech by the government, regardless of whether the speech is on
private or public property; the fact that the fairgrounds are private property does not preclude the
property from being a public forum during the time that the county was leasing it and conducting
a fair on it. Hence, the fairgrounds would be considered to be government property for purposes
of application of the public forum rule. (C) is not damaging because the First Amendment protec-
tions extend to most forms of speech, including certain symbolic acts and the right not to speak.
It certainly also extends to leafleting. (D) is not very damaging because the First Amendment
protects commercial speech, although the standard for regulation differs from other speech—the
government may ban false or misleading commercial speech and may regulate (including content
regulation) other commercial speech with narrowly tailored regulations that directly advance a
substantial government interest. The regulation here appears to meet this standard.

Answer to Question 18

(D) The citizen will have to show that the statute was not reasonably related to a legitimate govern-
ment purpose. Other than streets, sidewalks, parks, and designated public forums, most public
8. Constitutional Law Answers

property (including a court building and its grounds) is considered to be a limited public forum
or a nonpublic forum. The government can regulate speech in such a forum to reserve the forum
for its intended use. Regulations will be upheld as long as they are (i) viewpoint neutral, and
(ii) reasonably related to a legitimate government purpose. Here, the statute prohibited public
gatherings on the steps of the courthouse at specified times while the court was in session, which
appears to be a reasonable, viewpoint neutral effort to preserve government property for its
intended use. The citizen would have the burden of proving that there was no reasonable basis
for the statute. (A) and (C) are incorrect because the strict scrutiny standard enunciated in those
choices applies only to content-based restrictions, and here the statute was not content-based. (B)
is incorrect because it states the test for restrictions on speech in public forums. Unlike sidewalks
and parks, a courthouse building and grounds are not a public forum even if they are open to the
public during specified times.

Answer to Question 19

(B) If the school’s action is valid, it will be because the state statute is the least restrictive means of
advancing the state’s compelling interest in ending discrimination by groups using public facili-
ties. While schools are generally not public forums, they may become a designated public forum
by being held open to student groups for meetings. In that case, the First Amendment may be
violated if a college restricts use of its classrooms based on the content of a student group’s
speech. To justify content-based regulation of otherwise protected speech, the government must
show that the regulation is necessary to achieve a compelling state interest that cannot be satis-
fied by less restrictive means. Similarly, the right to associate for expressive purposes is not
absolute. At the very least, the right may be infringed to serve a compelling government interest,
unrelated to the suppression of ideas, that cannot be achieved through means significantly less
restrictive of associational freedoms. Here, the state’s interest in not allowing its facilities to be
used by groups practicing discrimination of various types is compelling. [See Roberts v. United
States Jaycees (1984)] The denial of access to the student group based on the students’ religious
principles, while it may be viewed as content-based discrimination, is the most narrowly drawn
means of advancing the state’s interest. [See Bob Jones University v. United States (1983)] (A) is
incorrect because a school does not violate the Establishment Clause by permitting a religious
student group the same after-class access to its facilities that other student groups have. [Good
News Club v. Milford Central School (2001)] (C) is incorrect because the actions of administra-
tors of a state college in allowing or denying access to its facilities is clearly state action that
brings the Fourteenth Amendment into play. (D) is incorrect. While the right to join together for
expressive or political activity, which is protected by the First Amendment, may be less strong for
large organizations that engage in both commercial and expressive activity than for smaller and
more selective groups, it is still a recognized right. [See Roberts v. United States Jaycees, supra]
Furthermore, the student group’s discussion of business activity in this case is tied to its religion.
Hence, the association rights of the student group are based on freedom of religion as well as
freedom of expression. The state would probably have to show a compelling interest to support a
restriction on the group’s association rights.

Answer to Question 20

(A) The court should rule for the high school. The Supreme Court has held that curriculum-based
public high school activities are not public forums. Content regulation of nonpublic forums
is allowed as long as the regulation is viewpoint neutral and reasonably related to a legiti-
mate government purpose. Here, school policy prohibited all discussion of drugs in the school
newspaper and was therefore viewpoint neutral. Moreover, the school could argue that prohibiting
 Constitutional Law Answers 9.

discussion of drugs in the school paper discourages drug use, a legitimate school interest. Thus,
the court should rule for the school. (B) is incorrect because it is overbroad. While students do
not enjoy full constitutional rights within the school setting, they do have some protection. For
example, the Supreme Court has held that students had a First Amendment right to wear black
armbands in school in protest of the Vietnam War. [Tinker v. Des Moines Independent School
District (1969)] (C) is incorrect because it is irrelevant. The fact that the legalization of marijuana
is a public concern does not address the issue of whether speech about it may be banned from
a nonpublic forum. (D) is incorrect because it implies the use of the wrong test. While gener-
ally content regulations of speech are permitted only if they are necessary to achieve a compel-
ling interest, this is not true of time, place, and manner regulations. The appropriate test for
such regulations depends on whether a public forum is involved, and, as discussed above, when
a nonpublic forum is involved, a content regulation will be upheld if it is viewpoint neutral and
reasonably related to a legitimate government purpose.

Answer to Question 21

(C) The statute here unconstitutionally infringes on the commercial speech protections of the First
Amendment because it forbids truthful advertisement of a lawful product. Commercial speech
is protected by the First Amendment, but it can be subject to significantly more regulation than
noncommercial speech. In determining whether a restriction on commercial speech is valid, a
court first asks whether the speech concerns lawful activity and is not misleading or fraudulent.
The activity here is lawful, and nothing indicates fraud or falsity. Next, the court will determine
whether: (i) the government interest in the regulation is substantial; (ii) the regulation directly
advances that interest; and (iii) the regulation is narrowly tailored to the substantial interest. The
facts do not indicate what interest the government seeks to promote with this regulation. Preven-
tion of the country’s low birth rate might be one purpose; however, even assuming that this goal
is a significant government interest, the regulation still will not stand because it does not directly
advance that interest; i.e., it does not directly encourage having babies, but rather only limits one
method of advertisement of contraceptives. Thus, the restriction on commercial speech is invalid.
(A) is not the best argument against the statute because it is not as direct as (C). It is true that
the right to privacy is protected by the Constitution and the right to contraceptives is probably
included within that right, but the regulation here does not make contraceptives illegal (it merely
bans one form of advertisement), and limits can be placed on advertisements. Because advertise-
ment is commercial speech, the appropriate place to look for constitutional protection is the First
Amendment. (B) is incorrect because regulation will amount to a taking only when it unjustly
reduces the economic value of property, so that there cannot be a fair return on investment.
Nothing here indicates that the ban is unjust, but more importantly nothing indicates that makers
of contraceptives will not be able to obtain a fair return if they are prohibited from soliciting
through the mail. (D) is incorrect because while the statute indeed burdens interstate commerce,
Congress has the power to control interstate commerce in nearly any manner it desires (as long as
it does not violate some other constitutional provision). Only the states are prohibited from unduly
burdening interstate commerce.

Answer to Question 22

(D) The friend can constitutionally be convicted because the statute does not violate the First Amend-
ment. Certain public property (e.g., public streets or parks) is so historically associated with the
exercise of First Amendment rights that to avoid being subject to strict scrutiny, a restriction of
speech thereon must be content neutral. Other places controlled by the government, however, are
not so historically linked to speech activities, and in such locations free speech might interfere
10. Constitutional Law Answers

with the intended use of such locations. Thus, the government can regulate access to these
limited public forums and nonpublic forums based on the subject matter of the speech, as long
as the regulation is reasonably related to the purpose served by the property and is not designed
merely to suppress a particular point of view. A courthouse and its grounds are not public forums.
(The surrounding sidewalks are, but that is not in issue here.) The statute, although based on the
subject matter of speech, is viewpoint neutral and reasonably related to the courthouse purpose
of promoting a stable, orderly atmosphere in which judicial proceedings can take place free of
improper outside influence or coercion. Thus, the statute is valid and the friend can be convicted
for her actions. (A) is wrong because it is based on an overbreadth argument and the statute here
is not overbroad. A regulation of speech that restricts substantially more speech than necessary is
unenforceable, even if the speech in question could have been properly restricted by a narrower
statute. This doctrine is inapplicable here because the statute is not overbroad: it reaches only
speech in the courthouse or on its grounds and only that speech that might improperly influ-
ence the judicial proceedings; it does not limit all speech at that location. (B) is wrong because
the friend’s intent to harm the judge is irrelevant. The statute makes it a crime to make a speech
or carry a sign intended to influence the judicial proceeding. The statute does not require that
the violator intend to harm anyone. Because the state is entitled to regulate speech or conduct in
the courthouse or on its grounds that might interfere with the judicial proceedings, it is entitled
to convict the friend for her actions here regardless of her intent to harm the judge. (C) is wrong
because it improperly applies the “clear and present danger” test to these facts. Under the current
version of the “clear and present danger” test, a state cannot forbid advocating the use of force or
violation of law unless such advocacy (i) is directed to producing or inciting imminent lawless
action, and (ii) is likely to produce such action. The state statute here does not purport to punish
advocacy of force or lawlessness, but rather seeks to further the purpose of maintaining the
stability and integrity of the judicial proceedings by regulating access to certain nonpublic areas.
Therefore, the restrictions are constitutionally valid and the “clear and present danger” test is
inapplicable.

Answer to Question 23

(A) The court will likely find the legislation to be a constitutional regulation of obscenity. Obscenity,
which is not protected speech under the First Amendment, is defined by the Supreme Court as a
description or depiction of sexual conduct that, taken as a whole, by the average person, applying
contemporary community standards, appeals to the prurient interest in sex, portrays sex in a
patently offensive way, and—using a national reasonable person standard—does not have serious
literary, artistic, political, or scientific value. Thus, the legislation here is constitutional because it
uses a reasonable person standard, rather than a community standard, for determining the value
of the work. (B) is incorrect because while a statewide standard for determining whether the
material is patently offensive is permissible, it is not mandatory. A state may use a “community
standard” for making this determination. (C) is incorrect because, again, a statewide standard
for determining whether the material is patently offensive is permissible. Only the “social value”
element of the obscenity test requires a national standard. (D) is incorrect because the legislation
is valid regardless of whether it is necessary to achieve the state’s compelling interest in reducing
violent crime. Speech that falls within the definition of obscenity is unprotected speech; the
government does not need a specific compelling interest to ban it.

Answer to Question 24

(B) The city is likely to prevail because the zoning ordinance is a constitutional restriction on the
operation of adult-oriented businesses. The Supreme Court has held that businesses selling
 Constitutional Law Answers 11.

material that is sexually explicit, although not necessarily obscene, may be regulated through
land use ordinances designed to reduce the secondary effects of such businesses. Thus, a zoning
ordinance prohibiting the location of adult bookstores and theaters in areas close to residential
zones and restricting such theaters to a limited area of the city is permissible if it is designed to
promote substantial government interests (e.g., property interests) and does not prohibit all such
entertainment in the community. [City of Renton v. Playtime Theaters, Inc. (1986)] Because the
city’s ordinance is a legitimate part of its zoning scheme and does not prevent the businesses
from operating in other areas of the town, it will probably be upheld. (A) is incorrect because it is
too broad. The type of regulation in this question cannot be based simply on what residents find
“offensive”; only regulations that are based on substantial government interests and do not entirely
prohibit the activity have been permitted by the Supreme Court. (C) is incorrect because the
regulation here, even if it is arguably content-based, is permissible because it is based on the legit-
imate local interest of preserving property values from the secondary effects of such businesses.
(D) is incorrect because a city may restrict the location of speech-related businesses under the
circumstances here without having to establish that the content of the speech is obscene.

Answer to Question 25

(A) The reporter’s best argument is that the closure here is not necessary to preserve an overriding
interest because trials and pretrial hearings generally must be open to the public. The Supreme
Court has held, at least in the context of criminal cases, that trials and pretrial proceedings can
be closed only if closure is necessary to preserve an overriding interest and the closure order is
narrowly tailored to serve the overriding interest. While the Court has not yet established the
standard for civil matters such as the case here, several Justices and commentators have suggested
that the same standard will be applied in civil cases since they too have historically been open
to the public. (B) is a false statement of the law—freedom of the press is not absolute and does
not allow the press unlimited access to any hearing of interest to the public; the hearing may be
closed where an overriding interest in protecting the privacy of the parties is established. (C) is
not as good an argument as (A) because, while closure here would amount to a prior restraint (a
court order or administrative system that keeps speech from occurring), the prior restraint would
be justified if the government proves that it was narrowly tailored to achieve a compelling interest.
The argument in (A) negates this possibility and so is a better argument. (D) is incorrect because
the fairness doctrine is irrelevant to the issue of whether a hearing should be open to the public.
It was a rule of the Federal Communications Commission that required, among other things, that
the media give political candidates an opportunity to oppose candidates or views endorsed by the
media.