You will see 25 scored Constitutional Law MBE questions on the Multistate Bar Exam — and many of them will cover free speech (a topic we will go over in this post).
This Constitutional Law MBE qusetion is one of several in our MBE tips series.. These posts of MBE tips and tricks will not only cover substantive law but also strategy. So each post covers one highly-tested area of substantive law as well as an important MBE strategy.
As mentioned above, today, we will review a Constitutional Law MBE question that tests a common Constitutional Law MBE issue–free speech! Do your best to answer this question (before even looking at the answer choices and before looking at the answer below!) Ask yourself: What is the subject? What is the legal issue? What is the rule and analysis? What is the conclusion? Try to answer these beginning questions before even reading the answer choices. Then, uncover the Constitutional Law MBE answer as well as read more about our MBE tip of the day.
Constitutional Law MBE Question
A city enacted an ordinance banning all flyers consisting of wholly commercial advertisements on utility poles on public sidewalks. The reason for the ordinance was to prevent litter on the public streets and sidewalks. However, the city continued to allow other kinds of flyers to be displayed on utility poles on public sidewalks. As a result of the ordinance, approximately 50 of the 500 flyers were removed from the utility poles since they consisted of wholly commercial advertisements.
Is the ordinance constitutional?
(A) Yes, because it is commercial speech and subject to a lesser scrutiny than other kinds of speech.
(B) Yes, because prohibiting litter is a substantial government interest and the ordinance is necessary to effectuate this interest.
(C) No, because prohibiting litter is not a compelling government interest.
(D) No, because there is not a reasonable fit between the law and the outcome desired by the city.
Legal Rule and Analysis: (If you need to look at your outline to find the legal rule, feel free to use it when you have not yet memorized the subject. Using your outline will help you actively learn and memorize your outline!)
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided.
Answer to Constitutional Law MBE Question
Common Mistake: Students forget that commercial speech is still protected (and has its own special test!) even if the standard is lower!
Subject: Constitutional Law
Legal Issue: Is the ordinance constitutional?
Legal Rule and Analysis: Commercial speech is protected only if it is lawful and not misleading. However, it is not protected as much as other kinds of speech. It may be regulated if the state shows: (1) A substantial governmental Interest (2) that the statute directly advances that interest; and (3) that the statute is narrowly tailored to that interest (which means it is a “reasonable fit”). This is considered to be “intermediate scrutiny.”
In this case, the speech appears lawful and not misleading (since no facts indicate otherwise). Preventing litter is a “substantial governmental interest” and the statute does advance that interest. However, it is not narrowly tailored. After all, if only 50 of the 500 flyers were removed, this is not truly a “reasonable fit” with the purported end goal–to reduce litter (since 450 of the 500 flyers will still be up!).
Conclusion: (D) is the correct answer because it recognizes that the statute is not narrowly tailored – or that there is no “reasonable fit” between the law and the desired outcome.
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:(D) is the correct answer. (A) is incorrect. While it is a true statement (commercial speech is technically subject to “intermediate scrutiny”), it does not recognize the issue – that the statute doesn’t actually meet the goal it is supposed to meet! (B) is accurate in that preventing litter is a substantial governmental interest; however, the means to prevent it must be tailored to the interest (and they are not in this case). (C) is incorrect. It is inaccurate because it the standard used is a “substantial” government interest and preventing litter is considered to further a substantial government interest.
MBE Tip – Last-Minute Tip for Those who Struggle with Timing: If you find yourself struggling with timing on the MBE, remember you should be answering 9 questions in 15 minutes. Then you would have about ten minutes left at the end to review your answers. If you are allowed to have a watch in your jurisdiction, set it to noon when you start the exam and make sure you are answering nine questions every fifteen minutes. Another idea is to skip the really long questions (i.e. the convulted mortgage questions!) and put a dash by the ones you skip. You can still fill in the bubble, but the dash will remind you to come back to it later. (I used to put this dash right on my score sheet even though they advise against it—make sure you delete any extra marks at the end if you do this.) Come back to the really long questions at the end. That way, you’ll ensure you get to most of the questions and you are not missing out on the short (and easier) questions!
Key Takeaways for the day:
Takeaway for the Law: Commercial speech is protected only if it is lawful and not misleading. However, it is not protected as much as other kinds of speech. It may be regulated if the state shows: (1) A substantial governmental Interest (2) that the statute directly advances that interest; and (3) that the statute is narrowly tailored to that interest (which means it is a “reasonable fit”). This is considered to be “intermediate scrutiny.”
MBE Tip: If you find yourself struggling with timing on the MBE, remember you should be answering 9 questions in 15 minutes. Then you would have about ten minutes left at the end to review your answers. If you are allowed to have a watch in your jurisdiction, set it to noon when you start the exam and make sure you are answering nine questions every fifteen minutes. Another idea is to skip the really long questions (i.e. the convulted mortgage questions!) and put a dash by the ones you skip. You can still fill in the bubble, but the dash will remind you to come back to it later.
Want to see Past MBE Tip of the Day posts?
If you would like to see “MBE tip of the day” posts from prior days, please check out all of our past MBE tip of the day archives here! We have several of them and we list them by subject!
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