How to Ace FYLSE/Constitutional Law Outline

Interstate activity Regulation

1. Channels of interstate commerce
2. Instrumentalities of interstate commerce
3. Persons and things moving in interstate commerce
4. Activities that substantially affect interstate commerce

Intrastate activity regulations

1. Commercial or economic activity
2. Noncommercial or noneconomic activity

State Action

In order to prevail in their constitutional action, P will need to show state action by State X in passing and enforcing the law against them.

The Mayo Christian Church (Church) is located in the city of Mayo, State X. The governing body of Church established Lawyer's Society (Society) as a State X nonprofit corporation, to increase the participation of Church in Mayo's community problems. Society is composed exclusively of Church members who are lawyers licensed to practice in State X, all of whom have agreed to work for Society without compensation. Society offers free legal services by its lawyer members to residents of Mayo who are "victims of racial or religious discrimination." Society is financially supported both by Church funds and by a grant of funds from Agency, which administers a State X program providing public funds to legal aid organizations.

—82Q2

 

A State X statute prohibits the retail sale of any gasoline that does not include at least 10 percent ethanol, an alcohol produced from grain, which, when mixed with gasoline, produces a substance known as “gasohol.” ***Oilco, however, has produced reliable evidence showing that, since the statute was enacted, its sales and profits in State X have decreased substantially because of its limited capacity to produce gasohol.

—F05Q1

City requires that all free-posted documents (on the bulletin board within the bus station) be in both English and Spanish because City’s population is about equally divided between English- and Spanish-speaking people. City refused to allow the America for Americans Organization (AAO) to use the bulletin board because AAO sought to post a flyer describing itself in English only.

—F12Q2

The Assembly, an unpopular religious organization in the City, is attempting to obtain building approval for its worship center on a one acre parcel of land. However, in response to the growth of the City and the strain on the City's infrastructure, the City enacted an ordinance that strictly limits growth, and affords priority largely on the basis of increasing affordable housing with preexisting facilities.

—F02Q5

State X’s legislature has enacted a statute creating the State Forestry Corps. The Corps drafts boys ages 15 to 18 who have dropped out of school. It sends them to camps located on public lands administered by the State Forest Service…Pete, age 15, has dropped out of school and, consequently, has been drafted into the Corps.

—J13Q2

Standing

Because of the requirement in Article III that federal courts only hear actual cases and controversies, the United States Supreme Court has imposed various requirements to determine whether a case is justiciable. When a plaintiff is suing a defendant in the federal court for violation of its constitutional rights, the plaintiff must first demonstrate that it has proper standing to bring its claim. The Constitution requires:

1. actual or certainly imminent injury-in-fact,
2. causation, and
3. redressability through judicial remedies.

The Assembly, an unpopular religious organization in the City, is attempting to obtain building approval for its worship center on a land in the City. However, in response to the growth of the City and the strain on the City's infrastructure, the City enacted an ordinance that strictly limits growth, and affords priority largely on the basis of increasing affordable housing with preexisting facilities.

—F02Q5

State X’s legislature has enacted a statute creating the State Forestry Corps. The Corps drafts boys ages 15 to 18 who have dropped out of school. It sends them to camps located on public lands administered by the State Forest Service. *** Pete, age 15, has dropped out of school and, consequently, has been drafted into the Corps. Pete and his parents have filed a declaratory relief action attacking the validity of the statute three provisions of the United States Constitution.

—J13Q2

In a recent statute, Congress authorized the United States Secretary of Transportation “to do everything necessary and appropriate to ensure safe streets and highways.” Subsequently, the Secretary issued the following regulations:

Regulation A, which requires all instructors of persons seeking commercial driving licenses to be certified by federal examiners. The regulation details the criteria for certification, which require a minimum number of years of experience as a commercial driver and a minimum score on a test of basic communication skills.

The State Driving Academy, which is a state agency that offers driving instruction to persons seeking commercial driving licenses, is considering challenging the validity of Regulation A under the United States Constitution.

—J09Q4

Alice, Bob, and Mac have each appealed their convictions, and their appeals have been consolidated in the State X appellate court. It has been stipulated that Alice, Bob, and Mac are indigent, that section 4 is not void for vagueness, and that the only issue on appeal concerns the validity of section 4 under the First Amendment to the United States Constitution.

—J04Q2

A State X statute prohibits the retail sale of any gasoline that does not include at least 10 percent ethanol, an alcohol produced from grain, which, when mixed with gasoline, produces a substance known as “gasohol.”

Oilco is an international petroleum company doing business in State X as a major retailer of gasoline.

(S)ince the statute was enacted, (Oilco’s) sales and profits in State X have decreased substantially because of its limited capacity to produce gasohol.

—F05Q1

State X amended its anti-loitering statute by adding a new section 4, which reads as follows: A person is guilty of loitering when the person loiters, remains, or wanders about in a public place, or on that part of private property that is open to the public, for the purpose of begging. Alice, Bob, and Mac were separately convicted in a State X court of violating section 4.

—J04Q2

Organizational standing

It is also important to note that the assembly has organizational standing, because its members are injured by the city's action, and it relates to the purpose of the organization (exercise of religious beliefs). Normally, courts do not allow plaintiffs to represent the rights of third parties. Organizations, however, fall under an exception to this general rule (as do doctors suing on behalf of patients, or accused criminals suing to enforce potential jurors’ right not to be per emptor in stuck due to their race).

City requires that all free-posted documents be in both English and Spanish because City’s population is about equally divided between English- and Spanish-speaking people. City refused to allow the America for Americans Organization (AAO) to use the bulletin board because AAO sought to post a flyer describing itself in English only. The flyer stated that AAO’s primary goal is the restriction of immigration. The flyer also advised of the time and place of meetings and solicited memberships at $10 each.

—F12Q2

City has adopted an ordinance banning tobacco advertising on billboards, store windows, any site within 1,000 feet of a school, and “any other location where minors under the age of 18 years traditionally gather.”

The purpose of the ordinance is to discourage school-age children from smoking.

The likely result of the ordinance will be to cause the removal of tobacco advertising from the vicinity of schools, day care centers, playgrounds, and amusement arcades.

The Association of Retailers (AOR) was formed to protect the economic interests of its member retailers. AOR had unsuccessfully opposed the adoption of the ordinance, arguing that it would cause hardship to store owners by depriving them of needed advertising revenue. AOR believes that the best way to discourage young people from smoking is by directly restricting access to tobacco rather than by banning all tobacco advertising.

AOR is considering filing a complaint for injunctive relief against City in federal district court claiming that the ordinance deprives its members of rights under the Free Speech Clause of the First Amendment.

—F07Q5

The National Highway Transportation and Safety Administration (NHTSA), a federal agency, after appropriate hearings and investigation, made the following finding of fact: “The NHTSA finds that, while motor vehicle radar detectors have some beneficial purpose in keeping drivers alert to the speed of their vehicles, most are used to avoid highway speed-control traps and lawful apprehension by law enforcement officials for violations of speed-control laws.” On the basis of this finding, the NHTSA promulgated regulations banning the use of radar detectors in trucks with a gross weight of five tons or more on all roads and highways within the United States.

State X subsequently enacted a statute prohibiting the use of radar detectors in any motor vehicle on any road or highway within State X. The State X Highway Department (Department) enforces the statute.

The American Car Association (ACA) is an association comprised of automobile motorists residing throughout the United States. One of ACA’s purposes is to promote free and unimpeded automobile travel. ACA has received numerous complaints about the State X statute from its members who drive vehicles there.

—F04Q5

Taxpayer Standing

Federal taxpayer standing has been granted where the plaintiff challenges aid to religion under the Establishment Clause.

The Mayo Christian Church (Church) is located in the city of Mayo, State X. The governing body of Church established Lawyer's Society (Society) as a State X nonprofit corporation, to increase the participation of Church in Mayo's community problems. Society is composed exclusively of Church members who are lawyers licensed to practice in State X, all of whom have agreed to work for Society without compensation. Society offers free legal services by its lawyer members to residents of Mayo who are "victims of racial or religious discrimination." Society is financially supported both by Church funds and by a grant of funds from Agency, which administers a State X program providing public funds to legal aid organizations.  

Soon after its establishment, Society "targeted" certain apparent instances of discrimination in Mayo as appropriate objectives for its services. Society members have directly approached various Mayo residents who appeared to be victims of discrimination, met with them, explained their legal rights, and then offered them free legal assistance in commencing litigation in State X courts aimed at redressing the apparent instances of discrimination. 

However, Society has begun to have legal problems of its own: 

a. An organization called "Mayo Taxpayers for Separation of Church and State" (Taxpayers), consisting of State X taxpayers who are resident of Mayo, has brought an action in federal court in State X against Church, Society, and Agency. The complaint challenges the property of the use of public funds by a church sponsored organization and seeks a judgment prohibiting Agency from granting funds to Society. 

b. Jay, a lawyer admitted to practice in State X, volunteered to join and work for Society without compensation. He was rejected because he was not a Church member, Jay has brought an action in federal court in State X against Church, Society, Agency, seeking a judgment requiring Society to admit him to membership. He alleges that his exclusion from membership in Society as an organization supported by public funds constitutes an unlawful discrimination in violation of the United States Constitution. 

c. The State X Bar Association (Bar), which is responsible for the enforcement of State X law regulating the practice of law, has charged that the solicitation practice of Society's members violate the State X attorneys' professional disciplinary code, which prohibits "direct solicitation" of clients and legal work by lawyers. Bar has instituted an action in State X court against Society and its members, seeking an injunction prohibiting any further "solicitation" activity by Society members.

—82Q2

Ripeness

Plaintiff's claim must also be ripe in order for the court to hear its claim. A suit is not ripe where the injury has not yet occurred or where the harm is speculative in nature or where the issues for the record are not fully developed or fit for adjudication. Ripeness: a court will not award pre-enforcement review for purposes of an advisory opinion.

Acme Brothers (Acme) operates a men's clothing store in a shopping center it owns in City, State X. Acme embarked on an advertising campaign that has been criticized as sexist. In its store windows Acme has life-size posters of a young woman wearing a bikini. The posters' captions portray her as saying things such as "I like to be treated rough by a man in an Acme suit." It is conceded that the posters are not legally obscene.

Members of a feminist coalition in City attempted to picket on the privately owned sidewalk in front of the Acme store to protest these posters, but were told by Acme's private security guards that the shopping center was private property and that the pickets were trespassing. Acme's security guards then physically removed all pickets from the shopping center premises.

The Acme store is part of a sixteen store chain of Acme outlets located in four states. Acme's advertising campaigns are planned in the home office in another state, and are sent to stores such as that in City. The stores have no choice under company policy but to use the advertising.

After removal of the pickets, the city council of City adopted an ordinance that provides in part:

"It shall be unlawful to display for commercial purposes any picture or to use any other advertising material that portrays any individual in a demeaning or sexist fashion."

Violation of this section of the ordinance is a misdemeanor punishable by a fine of up to $500.

The ordinance also provides:

"The right to picket peacefully, with due regard to pedestrian and vehicular traffic and the rights of all other citizens, shall remain inviolate. Such right shall extend to shopping centers and other areas where the title to sidewalks is privately owned but open to the public for access to retail sales outlets."

Since the adoption of the City ordinance, pickets have appeared in front of the Acme store during business hours. When asked to leave by the Acme store manager, the pickets have shown him a copy of the City ordinance, and have threatened to sue Acme if its security guards attempt to remove them physically.

City has filed a criminal complaint in the appropriate State X court charging that Acme's continuing display of the posters constitutes a violation of the "sexist advertising" section of the ordinance. Acme has also filed suit in State X court against City seeking a declaratory judgment that the picketing section of the ordinance is unconstitutional.

—F86Q3

City requires that all free-posted documents be in both English and Spanish because City’s population is about equally divided between English- and Spanish-speaking people. City refused to allow the America for Americans Organization (AAO) to use the bulletin board because AAO sought to post a flyer describing itself in English only. The flyer stated that AAO’s primary goal is the restriction of immigration. The flyer also advised of the time and place of meetings and solicited memberships at $10 each.

—F12Q2

A State X statute prohibits the retail sale of any gasoline that does not include at least 10 percent ethanol, an alcohol produced from grain, which, when mixed with gasoline, produces a substance known as “gasohol.” The statute is based on the following legislative findings: (1) the use of gasohol will conserve domestic supplies of petroleum; (2) gasohol burns more cleanly than pure gasoline, thereby reducing atmospheric pollution; and (3) the use of gasohol will expand the market for grains from which ethanol is produced. State X is the nation’s largest producer of grain used for making ethanol. There are no oil wells or refineries in the state.

Oilco is an international petroleum company doing business in State X as a major retailer of gasoline. Oilco does not dispute the legislative findings underlying the statute or the facts concerning State X’s grain production and lack of oil wells and refineries. Oilco, however, has produced reliable evidence showing that, since the statute was enacted, its sales and profits in State X have decreased substantially because of its limited capacity to produce gasohol.

—F05Q1

The Assembly, an unpopular religious organization in the City, is attempting to obtain building approval for its worship center on a one acre parcel of land. However, in response to the growth of the City and the strain on the City's infrastructure, the City enacted an ordinance that strictly limits growth, and affords priority largely on the basis of increasing affordable housing with preexisting facilities.

—F02Q5

13th Amendment

The 13th Amendment of the Constitution is one of the broadest amendments to the Constitution, applying not only to government actions, but also private actors. A regulation is unconstitutional under the Thirteenth Amendment if it compels one person to work for another, even if compensation is paid. It applies directly to states. Further, it was construed to allow Congress to pass laws which abolish the badges of slavery, which continue to linger, and which allows Congress to make prophylactic legislation to correct existing badges of slavery in the several states. Laws which force servitude to other individuals or the state are invalid absent an exception in federal case law or other federal authority.

State X’s legislature has enacted a statute creating the State Forestry Corps. The Corps drafts boys ages 15 to 18 who have dropped out of school. It sends them to camps located on public lands administered by the State Forest Service…Pete, age 15, has dropped out of school and, consequently, has been drafted into the Corps. Pete and his parents have filed a declaratory relief action attacking the validity of the statute three provisions of the United States Constitution: (1) the Thirteenth Amendment’s Involuntary Servitude Clause; (2) the Fourteenth Amendment’s Due Process Clause; and (3) the Fourteenth Amendment’s Equal Protection Clause.

—J13Q2

14th Amendment Due Process

There are two prongs to the Due Process Clause of the Fourteenth Amendment. The procedural due process prong strikes down any law that deprives a citizen of a fundamental right without proper procedural safeguards. On the other hand, the substantive due process prong strikes down any law that denies a citizen a fundamental right.

Procedural Due Process

Procedural due process requires the government to provide the proper procedural safeguards to prevent the erroneous deprivation of a fundamental right. Typically, procedural safeguards include notice, a hearing, and/or the right to have an attorney. he Assembly will argue that it did not receive procedural due process when its application was denied. Under procedural due process, before a plaintiff is deprived property or liberty right, it must receive reasonable due process (including a hear, right to present its side and argue its case). For property, a taking of property without due process only occurs if there was a property right, i.e., an entitlement to the benefit or property interest.

A State X statute prohibits the retail sale of any gasoline that does not include at least 10 percent ethanol, an alcohol produced from grain, which, when mixed with gasoline, produces a substance known as “gasohol.”

Oilco is an international petroleum company doing business in State X as a major retailer of gasoline.

(S)ince the statute was enacted, its sales and profits in State X have decreased substantially because of its limited capacity to produce gasohol.

—F05Q1

Paul, a student at Rural State University (“Rural”), wishes to sue Rural, a public school, for violation of his rights under the U.S. Constitution because Rural refused to select him for its cheerleading squad solely on the basis that he is a male. Paul is indigent, however, and cannot afford to pay the costs of suit, including filing and service of process fees.

State law permits court commissioners to grant a prospective state court litigant permission to proceed in forma pauperis, which exempts the litigant from any requirement to pay filing and service of process fees. Paul applied for permission to proceed in forma pauperis. At a hearing, the state court commissioner conceded that Rural’s refusal to select Paul was constitutionally discriminatory, but nevertheless denied Paul’s application on the ground that Paul’s prospective lawsuit “involves merely cheerleading.”

—F03Q5

The Assembly, an unpopular religious organization in the City, is attempting to obtain building approval for its worship center on a one acre parcel of land. However, in response to the growth of the City and the strain on the City's infrastructure, the City enacted an ordinance that strictly limits growth, and affords priority largely on the basis of increasing affordable housing with preexisting facilities.

—F02Q5

Substantive Due Process

The Constitution guarantees certain fundamental rights to individuals that they will not be deprived of life, liberty, or property without due process of law. The Supreme Court has interpreted the 5th Amendment, applied to the states via the 14th Amendment, to extend other fundamental privacy rights to individuals as well, which give them rights to procreate, have children, and to raise those children as they please without interference from the state as to that right. When a state infringes on fundamental rights of individuals, such as the right to liberty or the right to privacy, the state must show that the law is narrowly tailored to serve a compelling government interest, the highest judicial scrutiny under constitutional law. The burden is on the state to meet the strict scrutiny.

A State X statute prohibits the retail sale of any gasoline that does not include at least 10 percent ethanol, an alcohol produced from grain, which, when mixed with gasoline, produces a substance known as “gasohol.” The statute is based on the following legislative findings: (1) the use of gasohol will conserve domestic supplies of petroleum; (2) gasohol burns more cleanly than pure gasoline, thereby reducing atmospheric pollution; and (3) the use of gasohol will expand the market for grains from which ethanol is produced. State X is the nation’s largest producer of grain used for making ethanol.

Oilco is an international petroleum company doing business in State X as a major retailer of gasoline.

—F05Q1

Paul, a student at Rural State University (“Rural”), wishes to sue Rural, a public school, for violation of his rights under the U.S. Constitution because Rural refused to select him for its cheerleading squad solely on the basis that he is a male. Paul is indigent, however, and cannot afford to pay the costs of suit, including filing and service of process fees.

State law permits court commissioners to grant a prospective state court litigant permission to proceed in forma pauperis, which exempts the litigant from any requirement to pay filing and service of process fees. Paul applied for permission to proceed in forma pauperis. At a hearing, the state court commissioner conceded that Rural’s refusal to select Paul was constitutionally discriminatory, but nevertheless denied Paul’s application on the ground that Paul’s prospective lawsuit “involves merely cheerleading.”

—F03Q5

The Assembly, an unpopular religious organization in the City, is attempting to obtain building approval for its worship center on a one acre parcel of land. However, in response to the growth of the City and the strain on the City's infrastructure, the City enacted an ordinance that strictly limits growth, and affords priority largely on the basis of increasing affordable housing with preexisting facilities.

—F02Q5

Equal Protection

Where a state discriminates based on class either facially or actually and with intent to do so, this triggers equal protection. Laws that discriminate based on fundamental rights trigger strict scrutiny. Laws that discriminate based on sex must be narrowly tailored to serve an important interest with exceedingly persuasive justification. The burden is on the state.

The Mayo Christian Church (Church) is located in the city of Mayo, State X. The governing body of Church established Lawyer's Society (Society) as a State X nonprofit corporation, to increase the participation of Church in Mayo's community problems. Society is composed exclusively of Church members who are lawyers licensed to practice in State X, all of whom have agreed to work for Society without compensation. Society offers free legal services by its lawyer members to residents of Mayo who are "victims of racial or religious discrimination." Society is financially supported both by Church funds and by a grant of funds from Agency, which administers a State X program providing public funds to legal aid organizations.  

Soon after its establishment, Society "targeted" certain apparent instances of discrimination in Mayo as appropriate objectives for its services. Society members have directly approached various Mayo residents who appeared to be victims of discrimination, met with them, explained their legal rights, and then offered them free legal assistance in commencing litigation in State X courts aimed at redressing the apparent instances of discrimination. 

However, Society has begun to have legal problems of its own: 

b. Jay, a lawyer admitted to practice in State X, volunteered to join and work for Society without compensation. He was rejected because he was not a Church member, Jay has brought an action in federal court in State X against Church, Society, Agency, seeking a judgment requiring Society to admit him to membership. He alleges that his exclusion from membership in Society as an organization supported by public funds constitutes an unlawful discrimination in violation of the United States Constitution.

—82Q2

A State X statute prohibits the retail sale of any gasoline that does not include at least 10 percent ethanol, an alcohol produced from grain, which, when mixed with gasoline, produces a substance known as “gasohol.” The statute is based on the following legislative findings: (1) the use of gasohol will conserve domestic supplies of petroleum; (2) gasohol burns more cleanly than pure gasoline, thereby reducing atmospheric pollution; and (3) the use of gasohol will expand the market for grains from which ethanol is produced.

State X is the nation’s largest producer of grain used for making ethanol. There are no oil wells or refineries in the state. Oilco is an international petroleum company doing business in State X as a major retailer of gasoline. Oilco does not dispute the legislative findings underlying the statute or the facts concerning State X’s grain production and lack of oil wells and refineries. Oilco, however, has produced reliable evidence showing that, since the statute was enacted, its sales and profits in State X have decreased substantially because of its limited capacity to produce gasohol.

—F05Q1

Paul, a student at Rural State University (“Rural”), wishes to sue Rural, a public school,

for violation of his rights under the U.S. Constitution because Rural refused to select him for its cheerleading squad solely on the basis that he is a male. Paul is indigent, however, and cannot afford to pay the costs of suit, including filing and service of process fees. State law permits court commissioners to grant a prospective state court litigant permission to proceed in forma pauperis, which exempts the litigant from any requirement to pay filing and service of process fees. Paul applied for permission to proceed in forma pauperis. At a hearing, the state court commissioner conceded that Rural’s refusal to select Paul was constitutionally discriminatory, but nevertheless denied Paul’s application on the ground that Paul’s prospective lawsuit “involves merely cheerleading.”

—F03Q5

The Assembly, an unpopular religious organization in the City, is attempting to obtain building approval for its worship center on a one acre parcel of land. However, in response to the growth of the City and the strain on the City's infrastructure, the City enacted an ordinance that strictly limits growth, and affords priority largely on the basis of increasing affordable housing with preexisting facilities.

—F02Q5

Takings Clause

Under the Takings Clause of the Fifth Amendment, where the government takes or condemns private property, due process requires that it provide just compensation.

Any permanent physical occupation of private property by the government is a per se taking of the property. However, a statute which limits the productive uses of the property is considered a regulatory taking. In order for a regulatory taking to occur, the government's action must take away all reasonable use or value of the property. Otherwise, the government's action that impacts, but does not take away, the value or use of the property need not be compensated.

Acme Brothers (Acme) operates a men's clothing store in a shopping center it owns in City, State X. Acme embarked on an advertising campaign that has been criticized as sexist. In its store windows Acme has life-size posters of a young woman wearing a bikini. The posters' captions portray her as saying things such as "I like to be treated rough by a man in an Acme suit." It is conceded that the posters are not legally obscene.

Members of a feminist coalition in City attempted to picket on the privately owned sidewalk in front of the Acme store to protest these posters, but were told by Acme's private security guards that the shopping center was private property and that the pickets were trespassing. Acme's security guards then physically removed all pickets from the shopping center premises.

The Acme store is part of a sixteen store chain of Acme outlets located in four states. Acme's advertising campaigns are planned in the home office in another state, and are sent to stores such as that in City. The stores have no choice under company policy but to use the advertising.

After removal of the pickets, the city council of City adopted an ordinance that provides in part:

"It shall be unlawful to display for commercial purposes any picture or to use any other advertising material that portrays any individual in a demeaning or sexist fashion."

Violation of this section of the ordinance is a misdemeanor punishable by a fine of up to $500.

The ordinance also provides:

"The right to picket peacefully, with due regard to pedestrian and vehicular traffic and the rights of all other citizens, shall remain inviolate. Such right shall extend to shopping centers and other areas where the title to sidewalks is privately owned but open to the public for access to retail sales outlets."

Since the adoption of the City ordinance, pickets have appeared in front of the Acme store during business hours. When asked to leave by the Acme store manager, the pickets have shown him a copy of the City ordinance, and have threatened to sue Acme if its security guards attempt to remove them physically.

City has filed a criminal complaint in the appropriate State X court charging that Acme's continuing display of the posters constitutes a violation of the "sexist advertising" section of the ordinance. Acme has also filed suit in State X court against City seeking a declaratory judgment that the picketing section of the ordinance is unconstitutional.

—F86Q3

Paula has owned and farmed a parcel consisting of 100 acres for many years. Last year, in compliance with County regulations, she expended a substantial amount of money in determining the economic feasibility of developing 10 acres of the parcel that border the shore of a small lake. She recently submitted a development application to County seeking to construct 30 homes on those 10 acres. County then determined that the 10 acres constitute protected wetlands that, under a state law enacted recently, had to be left undeveloped to protect certain endangered species. On that basis, County denied the development application.

Paula brought an action claiming that County’s denial of the development application constituted a regulatory taking in violation of the U.S. Constitution. It was stipulated that the 10 acres are worth $4,000,000 if development is permitted and $200,000 if it is not. The trial court ruled that County’s denial of Paula’s development application did not constitute either (1) a total or (2) a partial taking.

—F10Q5

The Assembly, an unpopular religious organization in the City, is attempting to obtain building approval for its worship center on a one acre parcel of land. However, in response to the growth of the City and the strain on the City's infrastructure, the City enacted an ordinance that strictly limits growth, and affords priority largely on the basis of increasing affordable housing with preexisting facilities.

—F02Q5

First Amendment

Paul, a student at Rural State University (“Rural”), wishes to sue Rural, a public school, for violation of his rights under the U.S. Constitution because Rural refused to select him for its cheerleading squad solely on the basis that he is a male. Paul is indigent, however, and cannot afford to pay the costs of suit, including filing and service of process fees.

State law permits court commissioners to grant a prospective state court litigant permission to proceed in forma pauperis, which exempts the litigant from any requirement to pay filing and service of process fees. Paul applied for permission to proceed in forma pauperis. At a hearing, the state court commissioner conceded that Rural’s refusal to select Paul was constitutionally discriminatory, but nevertheless denied Paul’s application on the ground that Paul’s prospective lawsuit “involves merely cheerleading.”

—F03Q5

11th Amendment

The 11th Amendment prohibits cases in federal courts against the states.

A State X statute prohibits the retail sale of any gasoline that does not include at least 10 percent ethanol, an alcohol produced from grain, which, when mixed with gasoline, produces a substance known as “gasohol.” The statute is based on the following legislative findings: (1) the use of gasohol will conserve domestic supplies of petroleum; (2) gasohol burns more cleanly than pure gasoline, thereby reducing atmospheric pollution; and (3) the use of gasohol will expand the market for grains from which ethanol is produced.

State X is the nation’s largest producer of grain used for making ethanol. There are no oil wells or refineries in the state. Oilco is an international petroleum company doing business in State X as a major retailer of gasoline. Oilco does not dispute the legislative findings underlying the statute or the facts concerning State X’s grain production and lack of oil wells and refineries. Oilco, however, has produced reliable evidence showing that, since the statute was enacted, its sales and profits in State X have decreased substantially because of its limited capacity to produce gasohol.

—F05Q1

Commerce Clause- Preemption

In a recent statute, Congress authorized the United States Secretary of Transportation “to do everything necessary and appropriate to ensure safe streets and highways.” Subsequently, the Secretary issued the following regulations:

Regulation A, which requires all instructors of persons seeking commercial driving licenses to be certified by federal examiners. The regulation details the criteria for certification, which require a minimum number of years of experience as a commercial driver and a minimum score on a test of basic communication skills. Regulation B, which requires that every bus in commercial service be equipped with seatbelts for every seat. Regulation C, which provides that states failing to implement adequate measures to ensure that bus seatbelts are actually used will forfeit 10 percent of previouslyappropriated federal funds that assist states with highway construction. The State Driving Academy, which is a state agency that offers driving instruction to persons seeking commercial driving licenses, is considering challenging the validity of Regulation A under the United States Constitution. The Capitol City Transit Company, which is a private corporation that operates buses within the city limits of Capitol City, is considering challenging the validity of Regulation B under the United States Constitution. The State Highway Department, another state agency, is considering challenging the validity of Regulation C under the United States Constitution.

—J09Q4

In a recent statute, Congress authorized the United States Secretary of Transportation

“to do everything necessary and appropriate to ensure safe streets and highways.” Subsequently, the Secretary issued the following regulations: Regulation A, which requires all instructors of persons seeking commercial driving licenses to be certified by federal examiners. The regulation details the criteria for certification, which require a minimum number of years of experience as a commercial driver and a minimum score on a test of basic communication skills. Regulation B, which requires that every bus in commercial service be equipped with seatbelts for every seat. Regulation C, which provides that states failing to implement adequate measures to ensure that bus seatbelts are actually used will forfeit 10 percent of previouslyappropriated federal funds that assist states with highway construction. The State Driving Academy, which is a state agency that offers driving instruction to persons seeking commercial driving licenses, is considering challenging the validity of Regulation A under the United States Constitution. The Capitol City Transit Company, which is a private corporation that operates buses within the city limits of Capitol City, is considering challenging the validity of Regulation B under the United States Constitution. The State Highway Department, another state agency, is considering challenging the validity of Regulation C under the United States Constitution.

—J09Q4

Interstate Commerce Clause

A State X statute prohibits the retail sale of any gasoline that does not include at least 10

percent ethanol, an alcohol produced from grain, which, when mixed with gasoline, produces a substance known as “gasohol.” The statute is based on the following legislative findings: (1) the use of gasohol will conserve domestic supplies of petroleum; (2) gasohol burns more cleanly than pure gasoline, thereby reducing atmospheric pollution; and (3) the use of gasohol will expand the market for grains from which ethanol is produced. State X is the nation’s largest producer of grain used for making ethanol. There are no oil wells or refineries in the state. Oilco is an international petroleum company doing business in State X as a major retailer of gasoline. Oilco does not dispute the legislative findings underlying the statute or the facts concerning State X’s grain production and lack of oil wells and refineries. Oilco, however, has produced reliable evidence showing that, since the statute was enacted, its sales and profits in State X have decreased substantially because of its limited capacity to produce gasohol.

—F05Q1

Discrimination against out[-]of[-]state interests

The Dormant Commerce Clause prohibits a state from discriminating against out-of-state interests. Discrimination can appear on the face of a regulation, or it can be discriminatory in its impact on interstate commerce.

The National Highway Transportation and Safety Administration (NHTSA), a federal

agency, after appropriate hearings and investigation, made the following finding of fact: “The NHTSA finds that, while motor vehicle radar detectors have some beneficial purpose in keeping drivers alert to the speed of their vehicles, most are used to avoid highway speed-control traps and lawful apprehension by law enforcement officials for violations of speed-control laws.” On the basis of this finding, the NHTSA promulgated regulations banning the use of radar detectors in trucks with a gross weight of five tons or more on all roads and highways within the United States. State X subsequently enacted a statute prohibiting the use of radar detectors in any motor vehicle on any road or highway within State X. The State X Highway Department (Department) enforces the statute. The American Car Association (ACA) is an association comprised of automobile motorists residing throughout the United States. One of ACA’s purposes is to promote free and unimpeded automobile travel. ACA has received numerous complaints about the State X statute from its members who drive vehicles there. In response to such complaints, ACA has filed suit against the Department in federal district court in State X, seeking a declaration that the State X statute is invalid under the Commerce Clause and the Supremacy Clause of the United States Constitution. The Department has moved to dismiss ACA’s complaint on the ground that ACA lacks standing.

—F04Q5

Supremacy Clause

The statutes, treaties, and Constitution of the United States are supreme. Where a state law conflicts with either federal statutes, regulations, or the federal Constitution, the state law is invalid.

The National Highway Transportation and Safety Administration (NHTSA), a federal agency, after appropriate hearings and investigation, made the following finding of fact:

“The NHTSA finds that, while motor vehicle radar detectors have some beneficial purpose in keeping drivers alert to the speed of their vehicles, most are used to avoid highway speed-control traps and lawful apprehension by law enforcement officials for violations of speed-control laws.” On the basis of this finding, the NHTSA promulgated regulations banning the use of radar detectors in trucks with a gross weight of five tons or more on all roads and highways within the United States. State X subsequently enacted a statute prohibiting the use of radar detectors in any motor vehicle on any road or highway within State X. The State X Highway Department (Department) enforces the statute. The American Car Association (ACA) is an association comprised of automobile motorists residing throughout the United States. One of ACA’s purposes is to promote free and unimpeded automobile travel. ACA has received numerous complaints about the State X statute from its members who drive vehicles there. In response to such complaints, ACA has filed suit against the Department in federal district court in State X, seeking a declaration that the State X statute is invalid under the Commerce Clause and the Supremacy Clause of the United States Constitution. The Department has moved to dismiss ACA’s complaint on the ground that ACA lacks standing.

SPEECH

For many years, the Old Ways Fellowship, a neopagan religious organization, received permission from the City’s Building Authority to display a five-foot diameter symbol of the sun in the lobby of City’s Municipal Government Building during the week surrounding the Winter Solstice. The display was accompanied by a sign stating “Old Ways Fellowship wishes you a happy Winter Solstice.”

Last year the Building Authority adopted a new “Policy on Seasonal Displays,” which states: Religious displays and symbols are not permitted in any government building. Such displays and symbols impermissibly convey the appearance of government endorsement of religion. Previously, the Building Authority had allowed access to a wide variety of public and private speakers and displays in the lobby of the Municipal Government Building. Based on the new policy, however, it denied the Old Ways Fellowship a permit for the sun display. After it was informed by counsel that courts treat Christmas trees as secular symbols, rather than religious symbols, the Building Authority decided to erect a Christmas tree in the lobby of the Municipal Government Building, while continuing to prohibit the Old Ways Fellowship sun display. The Old Ways Fellowship contests the Building Authority’s policy and its decision regarding the Christmas tree. It has offered to put up a disclaimer sign explaining that the Winter Solstice greeting is not endorsed by City. The Building Authority has turned down this offer. The Old Ways Fellowship has filed suit claiming violation of the First Amendment to the United States Constitution.

—F14Q5

(T)he city council of City adopted an ordinance that provides in part:

"It shall be unlawful to display for commercial purposes any picture or to use any other advertising material that portrays any individual in a demeaning or sexist fashion."

Violation of this section of the ordinance is a misdemeanor punishable by a fine of up to $500. Acme will argue that the statute unlawfully restrains freedom of speech. The first issue is whether the law attempts to regulate speech. The ordinance specifically prohibits the display of picture of other advertising material that display persons in a certain fashion, and therefore attempts to regulate pictures, which is a form of speech.

Dan stood on the steps of the state capitol and yelled to a half-dozen people entering the front doors: “Listen citizens. Prayer in the schools means government-endorsed religion. A state church! They can take your constitutional rights away just as fast as I can destroy this copy of the U.S. Constitution. With that, Dan took a cigarette lighter from his pocket and ignited a parchment document that he held in his left hand. The parchment burst into flame and, when the heat of the fire burned his hand, he involuntarily let it go. A wind blew the burning document into a construction site where it settled in an open drum of flammable material. The drum exploded, killing a nearby pedestrian. A state statute makes it a misdemeanor to burn or mutilate a copy of the U.S. Constitution. It turned out that the document that Dan had burned was actually a copy of the Declaration of Independence, not of the U.S. Constitution, as he believed. Dan was arrested and charged with the crimes of murder and attempting to burn a copy of the U.S. Constitution. He has moved to dismiss the charge of attempting to burn a copy of the U.S. Constitution, claiming that (i) what he burned was actually a copy of the Declaration of Independence and (ii) the state statute on which the charge is based violates his rights under the First Amendment to the U.S. Constitution. 1. May Dan properly be found guilty of the crime of murder or any lesser-included offense? Discuss. 2. How should the court rule on each ground of Dan’s motion to dismiss the charge of attempting to burn a copy of the U.S. Constitution? Discuss.

—J07Q4

City recently opened a new central bus station.

Within the central bus station, City has provided a large bulletin board that is available for free posting of documents. City requires that all free-posted documents be in both English and Spanish because City’s population is about equally divided between English- and Spanish-speaking people. City refused to allow the America for Americans Organization (AAO) to use the bulletin board because AAO sought to post a flyer describing itself in English only. The flyer stated that AAO’s primary goal is the restriction of immigration. The flyer also advised of the time and place of meetings and solicited memberships at $10 each.

—F12Q2

Dan stood on the steps of the state capitol and yelled to a half-dozen people entering the

front doors: ?Listen citizens. Prayer in the schools means government-endorsed religion. A state church! They can take your constitutional rights away just as fast as I can destroy this copy of the U.S. Constitution.? With that, Dan took a cigarette lighter from his pocket and ignited a parchment document that he held in his left hand. The parchment burst into flame and, when the heat of the fire burned his hand, he involuntarily let it go. A wind blew the burning document into a construction site where it settled in an open drum of flammable material. The drum exploded, killing a nearby pedestrian. A state statute makes it a misdemeanor to burn or mutilate a copy of the U.S. Constitution. It turned out that the document that Dan had burned was actually a copy of the Declaration of Independence, not of the U.S. Constitution, as he believed. Dan was arrested and charged with the crimes of murder and attempting to burn a copy of the U.S. Constitution. He has moved to dismiss the charge of attempting to burn a copy of the U.S. Constitution, claiming that (i) what he burned was actually a copy of the Declaration of Independence and (ii) the state statute on which the charge is based violates his rights under the First Amendment to the U.S. Constitution.

—J07Q4

In an effort to “clean up Columbia County,” the County Board of Supervisors recently

passed an ordinance, providing as follows: “(1) A Review Panel is hereby established to review all sexually graphic material prior to sale by any person or entity in Columbia County. (2) Subject to subsection (3), no person or entity in Columbia County may sell any sexually graphic material. (3) A person or entity in Columbia County may sell an item of sexually graphic material if (a) the person or entity first submits the item to the Review Panel and (b) the Review Panel, in the exercise of its sole discretion, determines that the item is not pornographic. (4) Any person or entity in Columbia County that fails to comply with subsection (2) or (3) is guilty of a misdemeanor, and is punishable by incarceration in jail for one year or by imposition of a $5,000 fine, or by both.” Videorama, Inc., a local video store, has brought an action claiming that the ordinance violates the First Amendment to the United States Constitution.

—J06Q2

City recently opened a new central bus station.

Within the central bus station, City has provided a large bulletin board that is available for free posting of documents. City requires that all free-posted documents be in both English and Spanish because City’s population is about equally divided between English- and Spanish-speaking people. City refused to allow the America for Americans Organization (AAO) to use the bulletin board because AAO sought to post a flyer describing itself in English only. The flyer stated that AAO’s primary goal is the restriction of immigration. The flyer also advised of the time and place of meetings and solicited memberships at $10 each.

—F12Q2

Time, Place, & Manner Restrictions

One way a government may validly regulate speech is by controlling the time, place, and manner of the speech. These regulations are put under less scrutiny because they are not limiting what the people can say but rather how and where they can say it. While open to public speech, a limited public forum may only regulate the time, place, and manner of speech if:

1. Content neutral 2. Alternative channels of communication are available, and 3. Regulations are narrowly tailored to achieve a significant government interest.

Public Forum

A public forum is a place that is traditionally open to the public and allows somewhat unrestricted speech. These include parks, sidewalks, open fields.

State X amended its anti-loitering statute by adding a new section 4, which reads as follows:

A person is guilty of loitering when the person loiters, remains, or wanders about in a public place, or on that part of private property that is open to the public, for the purpose of begging.

Alice, Bob, and Mac were separately convicted in a State X court of violating section 4.

Alice was convicted of loitering for the purpose of begging on a sidewalk located outside the City’s Public Center for the Performing Arts in violation of section 4.

—J04Q2

Limited Public Forum

Limited public forums are not traditionally open to public speech, but the government opens them up to the public. Therefore, they receive the treatment of a public forum while open.

State X amended its anti-loitering statute by adding a new section 4, which reads as follows:

A person is guilty of loitering when the person loiters, remains, or wanders about in a public place, or on that part of private property that is open to the public, for the purpose of begging.

Alice, Bob, and Mac were separately convicted in a State X court of violating section 4.

Bob was convicted of loitering for the purpose of begging on a waiting platform at a stop on City’s subway system in violation of section 4.

—J04Q2

Private Forum

The state could not regulate what kind of speech could occur in a completely private building in a completely private setting. But in a setting where the private owners invite the public to their private space the state has the right to regulate speech.

State X amended its anti-loitering statute by adding a new section 4, which reads as follows:

A person is guilty of loitering when the person loiters, remains, or wanders about in a public place, or on that part of private property that is open to the public, for the purpose of begging.

Alice, Bob, and Mac were separately convicted in a State X court of violating section 4.

Mac was convicted of loitering for the purpose of begging in the lobby of the privately owned Downtown Lawyers Building located in the business district of City in violation of section 4.

—J04Q2

Prior Restraint

Under the 1st Amendment, speech cannot be enjoined before it occurs. With regard to licenses & review panels, which determine whether speech should be allowed befor[e] it occurs, they may be valid under certain circumstances. They do not violate the 1st Amendment when they: 1) are based on definite criteria and are not left up to the discretion of certain persons; and (2) are appealable.

Void for Vagueness

Due process requires that a statute be drafted so that a person of ordinary intelligence can understand what it prohibits.

(T)he city council of City adopted an ordinance that provides in part:

"It shall be unlawful to display for commercial purposes any picture or to use any other advertising material that portrays any individual in a demeaning or sexist fashion."

Violation of this section of the ordinance is a misdemeanor punishable by a fine of up to $500.

—F82Q3

City has adopted an ordinance banning tobacco advertising on billboards, store windows, any site within 1,000 feet of a school, and “any other location where minors under the age of 18 years traditionally gather.”

The purpose of the ordinance is to discourage school-age children from smoking. The likely result of the ordinance will be to cause the removal of tobacco advertising from the vicinity of schools, day care centers, playgrounds, and amusement arcades. The Association of Retailers (AOR) was formed to protect the economic interests of its member retailers. AOR had unsuccessfully opposed the adoption of the ordinance, arguing that it would cause hardship to store owners by depriving them of needed advertising revenue. AOR believes that the best way to discourage young people from smoking is by directly restricting access to tobacco rather than by banning all tobacco advertising. AOR is considering filing a complaint for injunctive relief against City in federal district court claiming that the ordinance deprives its members of rights under the Free Speech Clause of the First Amendment.

—F07Q5

Overbroad

A law is overly broad if it punishes speech that is constitutionally protected along with speech that is unprotected.

(T)he city council of City adopted an ordinance that provides in part:

"It shall be unlawful to display for commercial purposes any picture or to use any other advertising material that portrays any individual in a demeaning or sexist fashion."

Violation of this section of the ordinance is a misdemeanor punishable by a fine of up to $500.

—F82Q3

In an effort to “clean up Columbia County,” the County Board of Supervisors recently passed an ordinance, providing as follows:

“(1) A Review Panel is hereby established to review all sexually graphic material prior to sale by any person or entity in Columbia County. (2) Subject to subsection (3), no person or entity in Columbia County may sell any sexually graphic material. (3) A person or entity in Columbia County may sell an item of sexually graphic material if (a) the person or entity first submits the item to the Review Panel and (b) the Review Panel, in the exercise of its sole discretion, determines that the item is not pornographic. (4) Any person or entity in Columbia County that fails to comply with subsection (2) or (3) is guilty of a misdemeanor, and is punishable by incarceration in jail for one year or by imposition of a $5,000 fine, or by both.”

— J06Q2

State X amended its anti-loitering statute by adding a new section 4, which reads as follows:

A person is guilty of loitering when the person loiters, remains, or wanders about in a public place, or on that part of private property that is open to the public, for the purpose of begging.

—J04Q2

Free Exercise Clause

Out of a sense of patriotism, Charles enlisted in the United States Army. Charles had risen to the rank of Captain.

Shortly after that promotion, after serious reflection, Charles began to rethink his previous religious, philosophical, and political views. He modified the religious preference he listed on his Army records from “Christian” to “Belief in a Superior Principle of Noninterference with Others Who Have Not Harmed You.” Charles concluded that his belief did not prohibit his assignment to duty in Country A, but it did preclude his assignment to duty in Country B. Federal law requires military personnel to accept any assignment to duty, but when Charles was assigned to duty in Country B, he declined to go, and was charged with refusing to deploy. Since the charges were brought, Charles has frequently criticized American involvement in Country B. Charles wishes to raise a defense against the refusal to deploy charge based solely on (1) the Free Exercise Clause and (2) the Establishment Clause of the First Amendment to the United States Constitution.

—F11Q2

The Mayo Christian Church (Church) is located in the city of Mayo, State X. The governing body of Church established Lawyer's Society (Society) as a State X nonprofit corporation, to increase the participation of Church in Mayo's community problems. Society is composed exclusively of Church members who are lawyers licensed to practice in State X, all of whom have agreed to work for Society without compensation. Society offers free legal services by its lawyer members to residents of Mayo who are "victims of racial or religious discrimination." Society is financially supported both by Church funds and by a grant of funds from Agency, which administers a State X program providing public funds to legal aid organizations.  

Soon after its establishment, Society "targeted" certain apparent instances of discrimination in Mayo as appropriate objectives for its services. Society members have directly approached various Mayo residents who appeared to be victims of discrimination, met with them, explained their legal rights, and then offered them free legal assistance in commencing litigation in State X courts aimed at redressing the apparent instances of discrimination. 

However, Society has begun to have legal problems of its own: 

a. An organization called "Mayo Taxpayers for Separation of Church and State" (Taxpayers), consisting of State X taxpayers who are resident of Mayo, has brought an action in federal court in State X against Church, Society, and Agency. The complaint challenges the property of the use of public funds by a church sponsored organization and seeks a judgment prohibiting Agency from granting funds to Society. 

b. Jay, a lawyer admitted to practice in State X, volunteered to join and work for Society without compensation. He was rejected because he was not a Church member, Jay has brought an action in federal court in State X against Church, Society, Agency, seeking a judgment requiring Society to admit him to membership. He alleges that his exclusion from membership in Society as an organization supported by public funds constitutes an unlawful discrimination in violation of the United States Constitution. 

c. The State X Bar Association (Bar), which is responsible for the enforcement of State X law regulating the practice of law, has charged that the solicitation practice of Society's members violate the State X attorneys' professional disciplinary code, which prohibits "direct solicitation" of clients and legal work by lawyers. Bar has instituted an action in State X court against Society and its members, seeking an injunction prohibiting any further "solicitation" activity by Society members.

— 82Q2

Military Exception

Finally, another barrier to Charles's claim is the fact that he voluntarily enrolled in the army. Soldiers give up many of their constitutional rights, to the extent that they are inconsistent with important military functions. And as noted above the military has a strong interest in enforcing its requirement that soldiers accept all assignments. While conscientious objectors -- those who are religiously or philosophically opposed to all use of military force -- have traditionally been exempted from military service entirely, those who object to some but not all wars have never been exempted.

Out of a sense of patriotism, Charles enlisted in the United States Army. Charles had risen to the rank of Captain. Shortly after that promotion, after serious reflection, Charles began to rethink his previous religious, philosophical, and political views. He modified the religious preference he listed on his Army records from “Christian” to “Belief in a Superior Principle of Noninterference with Others Who Have Not Harmed You.” Charles concluded that his belief did not prohibit his assignment to duty in Country A, but it did preclude his assignment to duty in Country B. Federal law requires military personnel to accept any assignment to duty, but when Charles was assigned to duty in Country B, he declined to go, and was charged with refusing to deploy. Since the charges were brought, Charles has frequently criticized American involvement in Country B. Charles wishes to raise a defense against the refusal to deploy charge based solely on (1) the Free Exercise Clause and (2) the Establishment Clause of the First Amendment to the United States Constitution.

—F11Q2

Establishment Clause

The Establishment Clause prohibits the federal government from establishing an official religion or preferring religion over irreligion. A federal statute passes muster under this clause if it (1) has a secular purpose, (2) does not have the primary effect of promoting religion, and (3) does not excessively entangle the government in religious or ecclesiastical matters.

Secular purpose

As noted above, the federal statue has a valid secular purpose of promoting military readiness and troop discipline. Because this has nothing to do with religion, Charles will not prevail under this test.

Secular effect

The primary effect of this statute also does not seem to be promoting religion. The primary effect is to keep military units intact no matter where they are deployed. Religious and irreligious soldiers are treated the same way regardless of their belief. In fact, if the rule was to the contrary and religious soldiers could refuse particular deployments, that would at least raise serious Establishment Clause questions about whether the government was promoting particular religious beliefs (although most religious-accommodation statutes have been upheld against Establishment Clause challenges). Therefore, Charles is likely to lose under this test too.

Excessive entanglement

There is no real risk of entanglement between the government and religion under the statute. The statute does not require the government to make any quintessentially religious determinations because it applies equally to all regardless of religion or belief. Again, the rule Charles seeks would raise more difficult questions than this one does if it required the government to decide whether a person had a genuine religious belief precluding a particular deployment. Therefore, Charles will lose under this test too.

The Mayo Christian Church (Church) is located in the city of Mayo, State X. The governing body of Church established Lawyer's Society (Society) as a State X nonprofit corporation, to increase the participation of Church in Mayo's community problems. Society is composed exclusively of Church members who are lawyers licensed to practice in State X, all of whom have agreed to work for Society without compensation. Society offers free legal services by its lawyer members to residents of Mayo who are "victims of racial or religious discrimination." Society is financially supported both by Church funds and by a grant of funds from Agency, which administers a State X program providing public funds to legal aid organizations.  

Soon after its establishment, Society "targeted" certain apparent instances of discrimination in Mayo as appropriate objectives for its services. Society members have directly approached various Mayo residents who appeared to be victims of discrimination, met with them, explained their legal rights, and then offered them free legal assistance in commencing litigation in State X courts aimed at redressing the apparent instances of discrimination. 

However, Society has begun to have legal problems of its own: 

a. An organization called "Mayo Taxpayers for Separation of Church and State" (Taxpayers), consisting of State X taxpayers who are resident of Mayo, has brought an action in federal court in State X against Church, Society, and Agency. The complaint challenges the property of the use of public funds by a church sponsored organization and seeks a judgment prohibiting Agency from granting funds to Society. 

— 82Q2

State X amended its anti-loitering statute by adding a new section 4, which reads as follows:

A person is guilty of loitering when the person loiters, remains, or wanders about in a public place, or on that part of private property that is open to the public, for the purpose of begging. Alice, Bob, and Mac were separately convicted in a State X court of violating section 4. Alice was convicted of loitering for the purpose of begging on a sidewalk located outside the City’s Public Center for the Performing Arts in violation of section 4. Bob was convicted of loitering for the purpose of begging on a waiting platform at a stop on City’s subway system in violation of section 4. Mac was convicted of loitering for the purpose of begging in the lobby of the privately owned Downtown Lawyers Building located in the business district of City in violation of section 4. Alice, Bob, and Mac have each appealed their convictions, and their appeals have been consolidated in the State X appellate court. It has been stipulated that Alice, Bob, and Mac are indigent, that section 4 is not void for vagueness, and that the only issue on appeal concerns the validity of section 4 under the First Amendment to the United States Constitution.

—J04Q2

City recently opened a new central bus station.

Within the central bus station, City has provided a large bulletin board that is available for free posting of documents. City requires that all free-posted documents be in both English and Spanish because City’s population is about equally divided between English- and Spanish-speaking people. City refused to allow the America for Americans Organization (AAO) to use the bulletin board because AAO sought to post a flyer describing itself in English only. The flyer stated that AAO’s primary goal is the restriction of immigration. The flyer also advised of the time and place of meetings and solicited memberships at $10 each.

—F12Q2

Commercial Speech

That speech can be regulated if not false/misleading, directly advances substantial government interest, and narrowly tailored into it. (1) the speech concerns a lawful, non-fraudulent activity; (2) a substantial government interest exists; (3) the government action directly advance such interest; AND (4) the regulation is narrowly drawn and the means employed is reasonably fit to the ends sought.

(T)he city council of City adopted an ordinance that provides in part:

"It shall be unlawful to display for commercial purposes any picture or to use any other advertising material that portrays any individual in a demeaning or sexist fashion."

Violation of this section of the ordinance is a misdemeanor punishable by a fine of up to $500.

—F82Q3

City has adopted an ordinance banning tobacco advertising on billboards, store windows, any site within 1,000 feet of a school, and “any other location where minors under the age of 18 years traditionally gather.”

The purpose of the ordinance is to discourage school-age children from smoking. The likely result of the ordinance will be to cause the removal of tobacco advertising from the vicinity of schools, day care centers, playgrounds, and amusement arcades. The Association of Retailers (AOR) was formed to protect the economic interests of its member retailers. AOR had unsuccessfully opposed the adoption of the ordinance, arguing that it would cause hardship to store owners by depriving them of needed advertising revenue. AOR believes that the best way to discourage young people from smoking is by directly restricting access to tobacco rather than by banning all tobacco advertising. AOR is considering filing a complaint for injunctive relief against City in federal district court claiming that the ordinance deprives its members of rights under the Free Speech Clause of the First Amendment. What arguments could AOR reasonably make to show that it has standing, and that its First Amendment free speech claim has merit, and would it be likely to succeed? Discuss.

—F07Q5

City recently opened a new central bus station.

Within the central bus station, City has provided a large bulletin board that is available for free posting of documents. City requires that all free-posted documents be in both English and Spanish because City’s population is about equally divided between English- and Spanish-speaking people. City refused to allow the America for Americans Organization (AAO) to use the bulletin board because AAO sought to post a flyer describing itself in English only. The flyer stated that AAO’s primary goal is the restriction of immigration. The flyer also advised of the time and place of meetings and solicited memberships at $10 each.

—F12Q2

In an effort to “clean up Columbia County,” the County Board of Supervisors recently passed an ordinance, providing as follows:

“(1) A Review Panel is hereby established to review all sexually graphic material prior to sale by any person or entity in Columbia County. (2) Subject to subsection (3), no person or entity in Columbia County may sell any sexually graphic material. (3) A person or entity in Columbia County may sell an item of sexually graphic material if (a) the person or entity first submits the item to the Review Panel and (b) the Review Panel, in the exercise of its sole discretion, determines that the item is not pornographic. (4) Any person or entity in Columbia County that fails to comply with subsection (2) or (3) is guilty of a misdemeanor, and is punishable by incarceration in jail for one year or by imposition of a $5,000 fine, or by both.” Videorama, Inc., a local video store, has brought an action claiming that the ordinance violates the First Amendment to the United States Constitution.

—J06Q2

The Mayo Christian Church (Church) is located in the city of Mayo, State X. The governing body of Church established Lawyer's Society (Society) as a State X nonprofit corporation, to increase the participation of Church in Mayo's community problems. Society is composed exclusively of Church members who are lawyers licensed to practice in State X, all of whom have agreed to work for Society without compensation. Society offers free legal services by its lawyer members to residents of Mayo who are "victims of racial or religious discrimination." Society is financially supported both by Church funds and by a grant of funds from Agency, which administers a State X program providing public funds to legal aid organizations.  

Soon after its establishment, Society "targeted" certain apparent instances of discrimination in Mayo as appropriate objectives for its services. Society members have directly approached various Mayo residents who appeared to be victims of discrimination, met with them, explained their legal rights, and then offered them free legal assistance in commencing litigation in State X courts aimed at redressing the apparent instances of discrimination. 

However, Society has begun to have legal problems of its own: 

a. An organization called "Mayo Taxpayers for Separation of Church and State" (Taxpayers), consisting of State X taxpayers who are resident of Mayo, has brought an action in federal court in State X against Church, Society, and Agency. The complaint challenges the property of the use of public funds by a church sponsored organization and seeks a judgment prohibiting Agency from granting funds to Society. 

b. Jay, a lawyer admitted to practice in State X, volunteered to join and work for Society without compensation. He was rejected because he was not a Church member, Jay has brought an action in federal court in State X against Church, Society, Agency, seeking a judgment requiring Society to admit him to membership. He alleges that his exclusion from membership in Society as an organization supported by public funds constitutes an unlawful discrimination in violation of the United States Constitution. 

c. The State X Bar Association (Bar), which is responsible for the enforcement of State X law regulating the practice of law, has charged that the solicitation practice of Society's members violate the State X attorneys' professional disciplinary code, which prohibits "direct solicitation" of clients and legal work by lawyers. Bar has instituted an action in State X court against Society and its members, seeking an injunction prohibiting any further "solicitation" activity by Society members.

— 82Q2

Regulation of Speech

A State X statute prohibits the retail sale of any gasoline that does not include at least 10 percent ethanol, an alcohol produced from grain, which, when mixed with gasoline, produces a substance known as “gasohol.” The statute is based on the following legislative findings: (1) the use of gasohol will conserve domestic supplies of petroleum; (2) gasohol burns more cleanly than pure gasoline, thereby reducing atmospheric pollution; and (3) the use of gasohol will expand the market for grains from which ethanol is produced.

State X is the nation’s largest producer of grain used for making ethanol. There are no oil wells or refineries in the state. Oilco is an international petroleum company doing business in State X as a major retailer of gasoline. Oilco does not dispute the legislative findings underlying the statute or the facts concerning State X’s grain production and lack of oil wells and refineries. Oilco, however, has produced reliable evidence showing that, since the statute was enacted, its sales and profits in State X have decreased substantially because of its limited capacity to produce gasohol.

—F05Q1

Privileges and Immunities Clause of Article IV

The Privileges and Immunities Clause of Article IV prohibits states from discriminating against non-residents. The Clause does not protect against aliens or corporations. Here, Oilco is a corporation, and is not afforded protection under the Clause. Thus, any claim under the Privileges and Immunities Clause of Article IV will fail.

City recently opened a new central bus station.

Within the central bus station, City has provided a large bulletin board that is available for free posting of documents. City requires that all free-posted documents be in both English and Spanish because City’s population is about equally divided between English- and Spanish-speaking people. City refused to allow the America for Americans Organization (AAO) to use the bulletin board because AAO sought to post a flyer describing itself in English only. The flyer stated that AAO’s primary goal is the restriction of immigration. The flyer also advised of the time and place of meetings and solicited memberships at $10 each.

—F12Q2

Freedom of Association

The government may not punish individuals for joining any association unless the individuals knows of the 1) unlawful purpose of the association, 2) the individual actively participates, and 3) the individual intends to advance the illegal purpose. Here, AAO's primary goal is the restriction of immigration. This is not an unlawful purpose; therefore, the government may not punish anyone for their freedom to associate with the AAO. AAO will argue that it is violating its freedom of association by restricting its message. It will argue that the requirement is unconstitutional because the AAO is an intimate association and it would chill its expressive activities. However, this argument is unlikely to prevail as argued above, because AAO's message of anti-immigration can be communicated in multiple languages and would not violate its freedom of association rights.

Intergovernmental immunity/principles of federalism

In a recent statute, Congress authorized the United States Secretary of Transportation “to do everything necessary and appropriate to ensure safe streets and highways.” Subsequently, the Secretary issued the following regulations:

Regulation A, which requires all instructors of persons seeking commercial driving licenses to be certified by federal examiners. The regulation details the criteria for certification, which require a minimum number of years of experience as a commercial driver and a minimum score on a test of basic communication skills.

The State Driving Academy, which is a state agency that offers driving instruction to persons seeking commercial driving licenses, is considering challenging the validity of Regulation A under the United States Constitution.

—J09Q4

Improper delegation of legislative power

Congress may delegate its power to other branches, so long as intelligible standards are given and the power assigned is not uniquely confined to Congress (e.g., the power to declare war). It should be noted that although some intelligible standard is required, the United States Supreme Court has not struck down a delegation of legislative power in nearly 30 years.

In a recent statute, Congress authorized the United States Secretary of Transportation “to do everything necessary and appropriate to ensure safe streets and highways.” Subsequently, the Secretary issued the following regulations: Regulation A, which requires all instructors of persons seeking commercial driving licenses to be certified by federal examiners. The regulation details the criteria for certification, which require a minimum number of years of experience as a commercial driver and a minimum score on a test of basic communication skills.

The State Driving Academy, which is a state agency that offers driving instruction to persons seeking commercial driving licenses, is considering challenging the validity of Regulation A under the United States Constitution.

—J09Q4