MBE Tip of the Day: Constitutional Law

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.