SIMULATED ESSAY EXAM CONSTITUTIONAL LAW

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1 SIMULATED ESSAY EXAM CONSTITUTIONAL LAW SADS, a national college student organization, decided to conduct a campaign protesting government defense spending. SADS members at a university in City planned to distribute campaign literature within City to motorists stopped at major intersections and to patrons at a shopping center owned by Owen. For years, community service organizations have distributed literature in City to motorists stopped at intersections. There were several accidents causing serious injuries to persons engaged in such practices. For that reason, the City Council had been considering for several months a proposed ordinance that would prohibit pedestrians from approaching motorists stopped at intersections within City. Immediately after the SADS distribution plan was publicly announced, the proposed ordinance was passed out of committee and unanimously enacted by the City Council. SADS members have not yet attempted to deliver literature to motorists. City has a municipal ordinance making it a misdemeanor to trespass on private property, including shopping centers. Owen's shopping center is posted with signs stating that no tenant or visitor may distribute, on the premises, literature not directly related to the commercial purposes of businesses in the center, and that violators are subject to removal by the center's security guards and prosecution under the anti-trespass ordinance. SADS has filed two actions (in the appropriate federal district court). One action is against City, seeking a declaratory judgment that the recently enacted ordinance violates the rights of SADS members under the United States Constitution. The other action is against Owen, seeking a declaratory judgment that any action by Owen or his employees to stop SADS members from distributing campaign literature at his shopping center would violate the rights of free speech of SADS members under the United States Constitution. No SADS campaign literature has yet been distributed at Owen's shopping center, and no threat has been made to remove SADS members from the center or to have them prosecuted under the anti-trespassing ordinance should they attempt to distribute their literature on the center premises. City has filed its answer to the complaint in the first action and that case is set for trial. Owen has moved to dismiss the second action on the grounds that (a) the action is not ripe, and (b) the complaint fails to state a claim for relief because SADS members have no constitutionally protected right to distribute the campaign literature on private property. 1. What arguments should SADS make in support of its claim against City, and how should the court decide that claim? Discuss 2. How should the court rule on Owen's motions? Discuss.

2 Simulated Essay Exam - Constitutional Law Grading Guideline I. What arguments should SADS make in support of its claim against City and how should the court decide that claim? (70% total) A. Standing of Organizations (20% for standing, ripeness, state action) 1. Organizations have standing to challenge government action that causes injury to organization itself or to its members if: a. there is injury in fact to members that would give individual right to sue, b. injury is related to organization s purpose, and c. participation of individual members in action not required. 2. Yes, SADS has standing because it will suffer actual injury if members cannot approach cars at intersection and distribute their literature. Injury directly related to SADS purpose and the members are not required to participate in the action individually. B. Ripeness 1. Court will not hear case unless plaintiff has been harmed or there is immediate threat of harm. 2. Here, no controversy currently exists because SADS has not attempted to distribute anything in violation of ordinance; but possible sanctions for violation constitute threat of harm. 3. Thus, the action should be ripe for review. C. State Action: Yes, City s ordinance is state action. D. First Amendment Freedom of Speech (50% total) 1. Content vs. Conduct (10%) a. Presumptively unconstitutional for government to burden speech because of its content. Content based regulation of speech subject to strict scrutiny. b. Here, the ordinance does not regulate content of speech on its face. c. As applied to SADS, ordinance restricts access to communication as expression of free speech by restricting ability to approach motorists to hand out literature. d. Time, Place and Manner Restrictions (25%) 1. Here, street is a public forum; distributing literature is speech conveyed through physical action. TPM restrictions on such conduct are permitted if: a) Content-neutral. Here, ordinance prohibits all distribution to motorists, regardless of content, so it is content-neutral. b) Narrowly tailored to serve important government interest. Here, ordinance narrowly tailored to meet governmental interest in safety, because of danger to both motorists and pedestrians from leafleting in busy intersections, and c) Alternative channels of communication left open. Here, ordinance does not prohibit other channels of communication. d) Thus, TPM restriction will likely be upheld here. 2. Prior Restraint (5%) a. Any governmental action that would prevent a communication from reaching the public. b. Here, SADS claim that ordinance is prior restraint will fail because it does not prevent SADS literature from reaching public and other means exist. 3. Vague (5%) a. If ordinance fails to give people reasonable notice of what is being prohibited, it may violate Due Process. b. Here, ordinance not vague because it gives public clear notice of what is being prohibited, i.e. approaching motorists and distributing leaflets at intersections.

3 4. Overbroad (5%) a. If the ordinance prohibits substantially more speech than necessary, it will not be upheld. b. Here, ordinance not overbroad because only prohibits specific conduct; does not prohibit substantial amount of protected speech. E. Conclusion: SADS action against City will fail. II. How should the court rule on Owen s motions? (30% total) A. Ripeness (10%) 1. SADS has not yet attempted to distribute literature at shopping center. 2. However, genuine controversy exists due to possible criminal penalties, so case is ripe. B. Complaint Fails to State Claim for Relief - SADS Members Have No Constitutionally Protected Right to Distribute Campaign Literature On Private Property 1. Standing (5%): SADS has standing for same reasons as above. 2. State Action (15%) a. O argues state action not met because 14 th Amendment does not apply to private conduct; thus, he has right to limit distribution of literature at his privately owned shopping center. b. SADS must show O performing exclusive public function or significant state involvement. 1) Private mall not exclusive public function. 2) Enforcement of ordinance is state action, but there is no significant state involvement here. 3. Conclusion: No constitutional protections apply here, so O s motion to dismiss should be granted. NOTE: Students do not have to explain what Standing, Ripeness and State Action are twice, but each are issues in this case so they should carefully analyzed and not just treated summarily as stepping stones to get to the discussion of the First Amendment. For full credit, students should explain why the ordinance will not fail as a prior restraint or as overbroad or vague because the analysis under each is different.

4 SIMULATED ESSAY EXAM CONSTITIONAL LAW SAMPLE ANSWER 1. SADS v. City Standing of Organizations An organization has standing if (i) there is an injury in fact to members that gives them a right to sue on their own behalf, (ii) the injury is related to the organization s purpose, and (iii) individual member participation in the lawsuit is not required. SADS has standing as an organization, because the proposed ordinance was enacted and thus it will suffer actual injury if its members are not allowed to approach motorists at intersections to distribute its literature. That injury is directly related to SADS' purpose of campaigning against defense spending, and, lastly, SADS' members are not required to participate in the lawsuit. Ripeness A plaintiff is not entitled to review of a regulation before its enforcement unless the plaintiff will suffer some harm or immediate threat of harm. Because SADS has not yet attempted to distribute any literature in violation of City's ordinance, no controversy exists and the issue is not yet ripe for review. However, given the fact that the proposed ordinance was enacted and thus SADS' members face the prospect of likely criminal sanctions if they engage in the prohibited conduct, a real threat of harm exists and the court should hear the case. State Action Because the Constitution generally only applies to governmental action, to show a constitutional violation state action must be involved. Here, the state action limitation is met because City s lawmaking is state action. First Amendment Freedom of Speech SADS will argue that the ordinance violates the First Amendment's guarantee of freedom of speech. Content vs. Conduct It is presumptively unconstitutional to place burdens on speech because of its content. A content-neutral speech regulation is subject to intermediate scrutiny, i.e., it must advance important interests unrelated to the suppression of speech and must not burden substantially more speech than necessary to further those interests. A content-based speech regulation is subject to strict scrutiny, which requires the government to show that the regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. Here, the ordinance does not regulate speech on its face because it only prohibits pedestrians from approaching motorists. However, the ordinance affects speech as applied to SADS, because it restricts public access to communication. SADS may particularly argue that the City Council passed the ordinance after SADS announced that it would be distributing literature to motorists. Thus, the City Council acted for the purpose of preventing SADS from distributing its literature as an expression of speech.

5 Time, Place, and Manner Restrictions Conduct related to speech can be regulated by content-neutral time, place, and manner restrictions. The breadth of the government s power to regulate depends on whether the forum involved is a public or nonpublic forum. Public property that has historically been open to speech-related activities is called a public forum. Regulations in public forums must be content-neutral, narrowly tailored to serve an important government interest, and leave open alternative channels of communication. Here, distributing literature is speech conveyed through physical action, and thus qualifies as conduct related to speech. The street is a public forum because streets have historically been open to speech-related activities. As such, any regulation on this conduct must be content-neutral, narrowly tailored to serve an important government interest, and leave open alternative channels of communication. City will successfully defend on the grounds that the ordinance is content-neutral and is a reasonable time, place, and manner regulation because it does not prohibit or regulate the content of speech. The ordinance prohibits all distribution of speech to motorists, regardless of its content, and does not discriminate against certain kinds of speech. The ordinance is narrowly tailored to meet a significant governmental interest in ensuring public safety and leaves open other alternative channels of communication, such as leafleting or distribution to non-motorists, where the threat to public safety is minimal. Even if City is required to demonstrate a compelling state interest, it will likely prevail, because the purpose of the ordinance is to protect the community from unsafe driving. It is dangerous for both the motorists and pedestrians to permit leafleting in a busy intersection. City will point to the fact that several accidents have occurred from this practice, resulting in serious injuries, and that the ordinance is necessary to ensure that these accidents do not occur in the future. City will also be able to show that the ordinance is narrowly tailored to meet the objective it seeks. Thus, the time, place, and manner restriction will likely be upheld. Prior Restraint Prior restraints prevent speech before it occurs, rather than punish it afterwards. To justify a prior restraint, the government must show that some special societal harm will otherwise result. Here, SADS' claim that the ordinance constitutes a prior restraint will fail because the ordinance does not prevent SADS' literature from reaching the public. Other means and places of direct communication exist; thus, the ordinance does not qualify as a prior restraint. Vague If a regulation fails to give people reasonable notice of what is prohibited, it may violate the Due Process Clause. Here, the ordinance provides a person with clear, reasonable notice of the conduct prohibited because it specifically describes the prohibited conduct as pedestrians approaching motorists stopped at intersections. Thus, the ordinance is not vague. Overbroad If a regulation of speech or speech-related conduct punishes a substantial amount of protected speech in relation to its plainly legitimate sweep, the regulation is facially invalid. Here, the ordinance is not overbroad because it only prohibits specific conduct and does not prohibit a substantial amount of protected speech. In conclusion, SADS' action against City will fail.

6 2. Owen s Motions (a) Ripeness The case involving Owen is ripe for review for the same reasons stated above. Even though SADS has not attempted to distribute any literature at Owen's shopping center and no threat has been made to remove SADS members from the center or to have them prosecuted under the anti-trespassing ordinance, a genuine controversy exists due to the possible criminal penalties. (b) Complaint Fails to State a Claim for Relief - SADS Members Have No Constitutionally Protected Right to Distribute Campaign Literature On Private Property Standing State Action SADS has standing for the same reasons stated above. Owen will argue that he is permitted to prohibit leafleting on his premises because the Fourteenth Amendment does not apply to purely private conduct. In order for SADS to prevail, it must show that state action is involved because Owen is performing an exclusive public function or there is significant state involvement facilitating his private action. Operating a privately owned shopping mall is not an exclusive public function. While enforcement of the anti-trespassing ordinance is state action, the state is not significantly involved in the operation of the private shopping center and is not affirmatively facilitating, encouraging, or authorizing acts of discrimination. Thus, no constitutional protections apply because there is no state action, and Owen s motion to dismiss should be granted.