Constitutional law is one of the most interesting classes in law school. Below is an attack sheet for handling these essay questions, as well as a sample essay.

ATTACK SHEET

1. Always discuss the standing position, whether it is requested or not.

For. The individual has legitimacy if he has suffered an injury, relationship between the injury suffered and the cause of the action and the treatment of the damage through the cause of the action.

2. Next, discuss the State Action

For. State Action is required for the 14th Amendment to apply only if there is an action by a state or local government, a government official, or a private person whose behavior meets the requirements for state action. State action can be found when the person or entity performs exclusive public functions or has significant state participation in its activities.

3. Equal protection

For. Equal protection testing requires a two-part or facially neutral facial discrimination test but with discriminatory intent or impact. Then apply the required level of scrutiny.

B. In assessing a violation of the equal protection clause, the court will apply one of three standards when examining the government classification that discriminates against a certain group of people.

4. Privileges and immunities

For. Prohibit one state from arbitrarily discriminating against citizens of another state.

5. Interstate commerce

For. If IC is taxed by a law, it is considered to be in violation of the DCC unless it is necessary to achieve an important government purpose.

B. Market Participant Exception: If the state acts as a market participant, then it is exempt.

vs. Inactive trade clause that can regulate or tax CI as long as there is no discriminatory intention, balance, less burdensome and promotes a state interest.

TEST EXAMPLE:

Permanent arguments

Standing

A party will have standing if it can show that, in fact, there is an injury, that the damage was caused by the party and that a favorable verdict will bring resolution problems. Here, the party presenting the cause of action is an association representing various retailers who are affected by the ordinance. In order for ARO to present a cause of legitimation, you must demonstrate that you have an associative reputation.

Associative situation

Associative status requires a proof of (i). Members would have the legitimacy to sue independently; I (i). Pertinent to the purpose of the organization; and (iii). Neither the claim nor the redress require the participation of individuals.

Independent situation

Here, ARO can show that each person would have an independent position as economic benefits were impaired as a result of the ordinance. The facts indicate that the ordinance “would cause difficulties for store owners by depriving them of the necessary advertising revenue.” Therefore, each store owner would have an independent position.

German purpose

The purpose of the association is related to the interest of the people. ARO was “formed to protect the economic interest of its member retailers” and its pursuit of the unconstitutionality of the ordinance would justify a purpose related to the protection of such interest.

Participation of individuals

In this case, the members would not be obliged to participate in any way to benefit from the outcome of the proceedings.

Therefore, ARO could establish a status through a third party or an associative status.

State action

For a cause of action to be brought against a state, a state action will be required. Here, because the ordinance is written by the state, this element will be enforced.

Merits of 1^{S t} Amendment claim

Wave

An ordinance will be void if it is vague. Legislators consider vagueness to be based on a reasonable person standard, where if a reasonable person cannot understand their purpose, then they are vague. Here, the ordinance specifically states that tobacco advertising will be prohibited on “billboards, storefronts, anywhere within 1,000 feet of a school, and ‘any other place where those under 18 traditionally gather.”

The state will surely argue that this is quite specific and therefore a reasonable person can and will understand its purpose. This argument is likely to stand, and therefore a vagueness attack is likely to fail.

Wider

An ordinance will be void if it is broader. Here as said above the ordinance is very broad in terms of what can and cannot be done. The ordinance prohibits any type of advertising through almost all commercial media. Therefore, an over-ordinance attack is likely to be successful.

Content-based regulation

Speech that enforces content-based regulations will be considered a 1st Amendment violation if the speech is considered protected speech. Protected speech that is regulated based on content will require close scrutiny analysis. Here, the regulation does not impose a regulation on the content of the speech, but rather where it can be published, that is, restrictions of time, form and place.

Content neutral regulation

The speech that does not regulate the content will be subject to analysis of restriction of time, place and form.

Restriction of time, place and manners

If an ordinance prohibits speech or regulates speech based on time, place, and form restrictions, a 2-part test will be administered, so the party seeking to enforce the ordinance must show i. That serves a legitimate government purpose; ii. It is closely adapted to other avenues of communication that remain open.

Legitimate purpose of the government

Here, the state will argue that the purpose of the ordinance is to prevent children from buying or being influenced to smoke. However, although this may be an important concern, it is not enough as there are other methods available to prevent it. As AOR argues, “the best way to deter youth from smoking is by directly restricting access to tobacco and not banning all tobacco advertising.” Therefore, although it is a legitimate government purpose, there are less restrictive means to carry out this initiative.

Tightly adapted and other avenues of communication

Here, the nature and language of the ordinance is very oppressive in terms of its regulations and it is not strictly designed. In addition, it does not leave any other means of communication open because it basically blocks any type of advertising.

Therefore, it would fail as constraints of time, place, and form.