MBE Strategies Blog Post Series: Welcome to our MBE tips and tricks blog post series — this post focuses on a Constitutional Law MBE tip. We started this MBE strategies series months ago and it was so popular that we are continuing it each bar exam administration.
You will see 25 scored Constitutional Law MBE questions on the Multistate Bar Exam.
Note that we have posted several MBE tips (which you can find links to at the bottom of this post) that focus on a specific multiple-choice questions that many students answer incorrectly. If you can master these questions, it could increase your MBE score by that many points if you see any of these issues tested again (which, by the way, you will!). 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. You can sign up to receive these posts directly to your inbox for the upcoming administration at the bottom of this page.
Do your best to answer this Constitutional Law MBE 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 answer as well as read more about our MBE tip of the day.
Constitutional Law MBE Question
A city allows concerts to be held in its city park stadium. However, after hearing complaints about the noise level, the city passes an ordinance that requires groups that rent out the city park stadium to use the city’s audio equipment found in the city park stadium. A particular band of a unique genre states that the city’s audio equipment found in the city park stadium is insufficient for the various songs it plans on performing. The city nonetheless insists that the band use the city’s equipment. The band sues for a violation of its First Amendment rights.
Will the band be successful?
(A) Yes, because the ordinance is not narrowly tailored to serve an important governmental interest.
(B) Yes, because although the ordinance is constitutional on its face, it is unconstitutional as applied to the band.
(C) No, because the ordinance serves an important governmental interest and there are no less restrictive means by which it can satisfy that interest.
(D) No, because the ordinance is rationally related to a legitimate government interest.
Legal Rule and Analysis:
Choose an answer choice that most closely matches your conclusion and explain why the others are incorrect:
Answer to the Constitutional Law MBE Question
Subject: Constitutional Law
Legal Issue: Does the ordinance violate the First Amendment?
Legal Rule and Analysis: A park is a public forum so ordinances regulating the time, place, or manner of speech are subject to a higher level of scrutiny.
Bar Exam Tip: Do not confuse a public forum with a public place. A public forum is a forum that is “historically associated with the free exchange of ideas” — like streets, sidewalks, and parks. Something like an airport is not a public forum (though it is a public place) because it is not historically associated with the free exchange of ideas. Keeping this in mind will help you answer these time, place, and manner questions correctly!
Any law regulating speech that takes place in a public forum must be content neutral (which it is as it does not discriminate based on content). It must be narrowly tailored and it must leave open alternative channels of communication.
The ordinance at hand serves important government interest (reducing the volume at concerts to protect its citizens) and the ordinance is tailored to meet that interest. It is also content neutral, as mentioned above and it leaves open alternative channels of communication as the band can still “speak” just not using their own equipment.
Conclusion: The ordinance does not violate the First Amendment.
Look at the answer choices provided. Choose an answer choice that matches your conclusion. Review the other answer choices provided. The answer is (C) for the reasons stated above. (D) is incorrect because (D) applies the non-public forum test. A park is a place where the free exchange of ideas historically takes place so it is a public forum. (A) is incorrect because this will be considered narrowly tailored to an important government interest. Remember that most interests are considered to be “important”, including interests like reducing noise, pollution, traffic, or increasing the aesthetics of the city. Thus, in this case, the question is whether the restriction is narrowly tailored. It is. In this case, the band can still be heard—it might just not be at the volume they want to be heard at! (B) is not correct because it is not unconstitutional as applied. The ordinance is valid on its face and thus constitutional even as applied to the band.
MBE Tip: With the bar exam being only a few days away, we recommend you read our last-minute MBE tips! These are great tips to keep in mind to help maximize your MBE score at the last minute.
Key Takeaways and MBE tips for the day
Takeaway for the Law: A park is a public forum so ordinances regulating the time, place, or manner of speech are subject to a higher level of scrutiny. Any law must be content neutral (which it is as it does not discriminate based on content). It must be narrowly tailored and it must leave open alternative channels of communication.
Constitutional Law MBE Tip: With the bar exam being only a few days away, we recommend you read our last-minute MBE tips! These are great tips to keep in mind to help maximize your MBE score at the last minute.
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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