Constitutional Law is one of the most interesting classes in law school. Below is an attack sheet for handling these essay questions, as well as a sample essay.
1. Always discuss standing whether it is requested or not.
a. Individual has standing if they have suffered an injury, relationship between the injury suffered and the cause of action and addressing of the harm through the cause of action.
2. Then discuss State Action
a. State Action is required in order for 14th amendment applies only if there is an action by a state or local government, government officer or private person whose behavior meets the requirements for state action. State action can be found where the person or entity performs exclusive public functions or has significant state involvement in their activities.
3. Equal Protection
a. Equal protection analysis requires a two-part test facial discrimination or facially neutral but with a discriminatory intent or impact. Then you apply the level of scrutiny required.
b. In evaluating an equal protection clause violation the court will apply one of three standards in examining the governmental classification which discriminates against a certain group of people.
4. Privileges and Immunities
a. Forbid one state from arbitrarily discriminating against citizens of another state.
5. Interstate Commerce
a. If a law burdens IC, it is considered to be in violation of the DCC unless it is necessary to achieve an important government purpose.
b. Market Participant Exception- If the state acts as a market participant then it is exempt.
c. Dormant commerce clause you can regulate or burden IC so long as there is no discriminatory intent, balance, least burdensome and promotes a state interest.
A party will have standing if it can show that there is an injury in fact, that the harm was caused by the party, and that a favorable verdict will bring addressing issues. Here, the party brining the cause of action is an association representing various retailers who are impacted by the ordinance. In order for ARO to bring a cause for standing it will need to show that it has associational standing.
Associational standing requires a showing of (i). Members would independently have standing to sue; i(i). Germane to organizations purpose; and (iii). Neither claim nor relief requires participation of individuals.
Here, ARO can show that each of the individuals would have independent standing since there economic benefits were harmed as a result of the ordinance. The facts indicate that the ordinance “would cause hardship to store owners by depriving them of needed advertising revenue.” Thus, each store owner would have independent standing.
The association’s purpose is germane to the interest of the individuals. ARO was “formed to protect the economic interest of its member retailers” and its pursuit of the unconstitutionality of the ordinance would justify a germane purpose to the protection of such interest.
Participation of Individuals
Here, the members would not be required to take part in any manner to benefit from the outcome of the proceedings.
Thus, ARO would be able to set up standing through 3rd party or Associational Standing.
In order for a cause of action to be brought against a state it will require state action. Here, because the ordinance is drafted by the state this element will be satisfied.
Merits of 1st Amendment Claim
An ordinance will be void if it is vague. Legislators deem vagueness based on a reasonable person standard, where if a reasonable person could not understand its purpose then it is vague. Here, the ordinance specifically states that tobacco advertising will be banned on “billboards, store windows, any site within 1,000 feet of a school, and ‘any other location where minors under the age of 18 years traditionally gather.'”
The state will surely argue that this is rather specific and thus a reasonable person can and will understand its purpose. This argument will likely hold and thus, an attack for vagueness will likely fail.
A ordinance will be void if it over broad. Here, as stated supra the ordinance is very broad in terms of what can and can’t be done. The ordinance bans any type of advertising through almost all commercials mediums. Thus, it is likely that an attack for the ordinance being over broad will succeed.
Content Based Regulation
Speech which imposes regulations based on content will be deemed a violation of the 1st amendment if the speech is considered protected speech. Protected speech which is being regulated based on content will require a strict scrutiny analysis. Here, the regulation is not imposing a regulation on the content of the speech, but rather where it can be published i.e. time, way and place restrictions.
Content Neutral Regulation
Speech which does not regulate the content will be subject to time place and manner restriction analysis.
Time, Place and Manner Restriction
If an ordinance bans speech or regulates speech based on time, place and manner restrictions a 2 part test will be administered, whereby the party seeking to enforce the ordinance will be required to show i. That is serves a legitimate government purpose; ii. It is narrowly tailored with other avenues of communication are left open.
Legitimate government purpose
Here, the state will argue that the purpose of the ordinance serves to prevent children from purchasing or being influenced to smoke. However, although this may be an important interest it is not enough since there are other available methods of preventing this. As AOR argues, “the best way to discourage young people form smoking is by directly restricting access to tobacco and not by banning all tobacco advertising.” Thus although it is a legitimate government purpose there are less restrictive means of pursuing this initiative.
Narrowly tailored & Other avenues of communication
Here, the nature and language of the ordinance is very oppressive in terms of its regulations and is not narrowly tailored. Additionally, it does not leave open any other means of communication because it essentially blocks out any type of advertising.
Thus, it would fail as a time, place and manner restrictions.