ALWAYS BEGIN A CON LAW ESSAY WITH STANDING
Standing
In order for a person to bring a cause of action or claim in federal court there
must be injury, causation, and redressability.
Injury—the plaintiff must have suffered harm.
Here….
Thus (person) has suffered harm.
Causation—the government must be the cause of the injury to the
plaintiff.
Here…..
Thus the government is the cause of the injury.
Redressability – A decision in plaintiffs favor must be capable of
eliminating her grievance.
Here….
Therefore, Person/entity has standing to proceed with the claim.
Government Action
11th Amendment ALWAYS MENTION THIS IF A PARTY IS SUING
SUBDISION OF THE STATE( CITY, COUNTY, CITY PLANNER, ETC.)
The Eleventh Amendment prohibits federal courts from hearing a private
party’s claims against state governments, but actions may be brought against
subdivisions of that state.
Here, (entity) is a subdivision of that State.
Thus, person/entity has brought a proper claim.
First Amendment
The First Amendment prohibits Congress from establishing a religion or
interfering with the free exercise of religion, abridging the freedoms of speech
and the press, or interfering with the right to assembly
Freedom of Speech/Fourteenth Amendment
Here, the prohibition is applicable to the states through the Fourteenth
Amendment.
Content Based v. Content Neutral
Content Based – A restriction is content based if it restricts speech based
on its content.
Here (identify what government is trying to restrict), thus indicating it is the
content of the communication and not its mechanism that they are attempting to
restrict.
Standard of Review
Strict Scrutiny/Obscene MaterialFreedom of speech is a fundamental right that when restricted based on content
we judge by a strict scrutiny standard.
Strict Scrutiny- The ordinance must be narrowly tailored to serve a compelling
government interest.
Obscene Material – Speech is obscene if it describes or depicts sexual conduct
that, by the average person:
1) must appeal to the prurient interest (communities standards),
2) is patently offensive (community standards)
3) Lacks serious value (literary, artistic, political, or scientific) using a national
reasonable person standard.
Here…..
Thus under a strict scrutiny analysis this ordinance is/is not constitutional.
Content Neutral - A restriction is content neutral if it does restrict speech
not based on its content. If the ordinance is determined to be content neutral, it
will be held to an intermediate scrutiny standard.
Intermediate Scrutiny- The ordinance must be substantially related to an
important government purpose.
WHENEVER YOU TALK ABOUT ONE OF THESE “TESTS FOR
REAOSNABLENESS OF REGULATION” TALK ABOUT ALL OF THEM
Prior Restraint – Prevents speech before it occurs. NORMALLY
TESTED AS AN “APPROVAL” OR “LICENSE” THROUGH A BOARD OR
LICENSING AGENCY THAT MUST BE OBTAINED BEFORE SPEECH CAN
OCCUR.
Here….
A prior restraint is permissible;
1) narrowly drawn, reasonable and definite
2) injunction must be prompt; and
3) Have a final determination.
Here…..
Thus this is/is not a prior restraint.
Overbroad – An ordinance is overbroad if it substantially regulates
more speech than necessary.
Here….
Thus….
Vagueness—an ordinance is vague if there is no reasonable notice as
to what speech is prohibited.
Here….
Thus…..
Unfettered Discretion—A regulation must provide defined standards
as to how to apply the law to prevent regulating officials from having
broad discretion over speech. If a statute gives licensing officials
unbridled discretion, it is void on its face and speakers need not even
apply for a permit.
Here….
Thus….
Therefore the statute is/ is not constitutional.