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 requested or not.
on. The individual has standing if he has suffered an injury, relationship between the injury sustained and the cause of action and the treatment of the damage through the cause of action.
2. Then discuss the state action
on. State action is required for the 14th Amendment to apply only if there is action by a state or local government, a government official, or a private person whose conduct meets the requirements for state action. State action can be found when the person or entity performs exclusive public functions or has a significant participation of the State in its activities.
3. Equal Protection
on. The equal protection test requires a two-part or facially neutral but discriminatory intent or impact test of facial discrimination. The required level of scrutiny is then applied.
B. In assessing a violation of the equal protection clause, the court will apply one of three standards when examining the government classification that discriminates against a certain group of people.
4. Privileges and immunities
on. Prohibit one state from arbitrarily discriminating against the citizens of another state.
5. Interstate Commerce
on. If a law taxes IC, it is considered to violate the DCC unless it is necessary to achieve an important government purpose.
B. Market Participant Exception: If the state is acting as a market participant, then it is exempt.
against Latent trade clause that can be regulated or taxed IC as long as there is no discriminatory intent, balance, less burdensome and promotes a state interest.
A party will have standing if it can show that there is actual damage, that the damage was caused by the party, and that a favorable verdict will bring about a solution to the problems. Here, the party bringing the cause of action is an association representing various retailers that are affected by the ordinance. In order for ARO to present a cause of legitimation, it must demonstrate that it has associative legitimacy.
The associative position requires a proof of (i). Members would have the right to sue independently; me (me). Related to the purpose of organizations; and (iii). Neither the claim nor the relief require the participation of individuals.
Here, ARO can show that each of the individuals would have an independent position since their economic benefits were impaired as a result of the ordinance. The facts indicate that the ordinance “would cause hardship for store owners by depriving them of needed advertising revenue.” Therefore, each store owner would have a separate position.
The purpose of the association is related to the interest of individuals. ARO was “formed to protect the economic interest of its retail members” and its finding that the ordinance is unconstitutional would justify a purpose related to the protection of that interest.
Participation of Individuals
Here, members would not be required to participate in any way to benefit from the outcome of the procedure.
Therefore, ARO could establish the position through the position of a third party or an association.
For a cause of action to be brought against a state, a state action will be required. Here, because the ordinance is drafted by the state, this element will be met.
Merits of 1St. Amendment Claim
An ordinance will be void if it is vague. Legislators consider vagueness to be based on a reasonable person standard, where if a reasonable person cannot understand its purpose, then it is vague. Here, the ordinance specifically states that tobacco advertising will be prohibited on “billboards, store windows, anywhere within 1,000 feet of a school, and ‘any other place where minors under the age of 18 traditionally gather.'”
The state will surely argue that this is quite specific and therefore a reasonable person can and will understand its purpose. This argument is likely to hold, and thus an attack for vagueness is likely to fail.
An ordinance will be invalid if it is too broad. Here, how do you say above the ordinance is very broad in terms of what can and cannot be done. The ordinance prohibits any type of advertising through almost all commercial media. Therefore, an attack on the fact that the ordinance is too broad is likely to succeed.
Speech that imposes content-based regulations will be considered a violation of the 1st Amendment if the speech is considered protected speech. Protected speech that is being regulated based on content will require close scrutiny analysis. Here, the regulation is not imposing a regulation on the content of the speech, but where it can be published, that is, restrictions on time, form and place.
Content Neutral Regulation
The speech that does not regulate the content will be subject to analysis of restriction of time, place and form.
Restriction of time, place and form
If an ordinance prohibits speech or regulates speech based on time, place, and manner restrictions, a two-part test will be administered, in which the party seeking to enforce the ordinance must show i. That serves a legitimate government purpose; ii. It strictly fits with other lines of communication that are left open.
legitimate purpose of government
Here, the state will argue that the purpose of the ordinance is to prevent children from buying or being influenced to smoke. However, although this may be of great interest, it is not enough as there are other methods available to prevent it. As the AOR argues, “The best way to deter youth from smoking is by directly restricting access to tobacco and not by banning all tobacco advertising.” Therefore, although it is a legitimate purpose of the government, there are less restrictive means to carry out this initiative.
Narrowly Adapted and Other Communication Pathways
In this case, the nature and language of the ordinance are very oppressive in terms of its regulations and are not strictly adapted. In addition, it does not leave any other means of communication open because it basically blocks any type of advertising.
Thus, it would fail as a restriction of time, place and manner.