MEE February 2013 Constitutional Law Essay – Answer and Self-Reflection
So, as you may be able to tell, I wasn’t having a good day yesterday. I decided to take most of today off to kind of relax and bring myself to a better place. I am feeling a bit better today.
In continuing with my essay series, here is my self-reflection on the answer I wrote for the February 2013 MEE on Constitutional Law. You can find the essay question here.
I decided to write the essay all over again, with the 30-minute time limit. I decided to model the structure and organization of my essay response in the same way that it appears on the rubric. I am doing this because so that it’s easier for the exam grader to give me points. I kind of like stating the conclusion first because I think it lets the exam grader know where I’m headed before I get there. I am liking the CREAC format. It’s an organizational format that I’d never used before.
One thing to remember is that there are always three issues on every MEE essay. Even if the question prompt only poses two questions or issues, there are actually three. I didn’t know this going into the exam, so I only wrote down two issues, even though in my analysis I actually did three. It would have been better to separate the three issues and analyze them individually, regardless of what the question prompt look like. If you look at the question prompt, it only poses two questions. What it’s missing is really the third issue which should be analyzed first, because the two issues listed there on the question prompt turn on how you answer the first issue. That first issue is: “When a privately owned company operates a town, should it be treated as if it were a state for the purpose of constitutional analysis?” I had addressed this in my analysis of the other two issues, but I should have given this issue its own analysis.
I think the examiners wanted me to fall into a trap and say that the 14th Amendment makes the Constitution’s provisions applicable to the states, and that AutoCo is not a state actor, so it is not obligated to uphold the Constitution like the states are. Luckily, I didn’t fall for that. How it turns out is that the AutoCo should be treated like a state due to the public function doctrine, the son’s expulsion was in violation of the 1st Amendment, and that the father’s trespass arrest violated the 1st Amendment.
I was spot on with the first two issues, but I completely missed the third issue. I thought that the anti-leaflet ordinance was just a time, place, and manner issue and since leafleting is just one of many ways to convey speech, the father would just have to pick another way to do it, like talking aloud, or holding up a banner. Now, I realize that my understanding of the time, place, and manner restrictions was wrong. A medium is a way of communicating speech. So leafleting is a way to communicate speech. Banning a way of communicating speech is not allowed. So, what we have here in this essay is a total and complete ban, and not a time, place, or manner restriction. Because it’s a total ban rather than a TPM restriction, then the analysis goes to intermediate scrutiny, and you never reach the TPM analysis altogether.
The intermediate scrutiny for 1st Amendment purposes is: i) the regulation must be narrowly tailored to achieve a significant government interest; and ii) the regulation must leave open ample alternative channels for expressive activity; and iii) the true purpose for the regulation may can’t be the suppression of ideas.
States can regulate the incidental effects of speech out in public if they do it on a content neutral basis. The government’s interest in keeping the sidewalks clear of litter just isn’t strong enough to justify a ban on leafleting. However, to sanction the person distributing the leaflets just because the people who received his leaflets were littering would be over extending that power to regulate. Also, the total medium ban on the leafleting isn’t narrowly tailored, and it eliminates an entire channel of expression meaning that there might not be enough alternative channels of communication open to the person who wants to communicate the speech.
It took me a while to understand why I hadn’t performed well on this essay. In my mind, TPM was the major argument for the father, yet, I didn’t have a handle on what TPM restrictions are all about. I had to call a colleague and discuss the essay. Now that I’ve got it all sorted out, I am feeling that my knowledge has grown a little.