Bar Exam — MBE (Multistate Bar Exam)Constitutional LawMedium
A state legislature, concerned about the potential for social unrest, passes a law prohibiting any public assembly of more than ten people without a permit. The law grants the chief of police broad discretion to deny permits for any reason deemed to be 'not in the public interest.' A local advocacy group, planning a peaceful protest against a new state tax, applies for a permit but is denied without explanation. The group challenges the permit denial in federal court. Which of the following is the most likely outcome?
- AThe law will be upheld because states have a compelling interest in maintaining public order.
- BThe law will be upheld if the state can demonstrate a rational basis for the permit denial.
- CThe law will be struck down because it targets a specific advocacy group.
- DThe law will be struck down as an unconstitutional prior restraint on speech.
Show answer & explanationAnswer & explanation
Correct answer: D. The law will be struck down as an unconstitutional prior restraint on speech.
The law grants the chief of police unbridled discretion to deny permits, which constitutes an unconstitutional prior restraint on speech. Such a law lacks objective standards and allows for content-based discrimination.
Why the other options are wrong
- A. While states have an interest in public order, this interest does not justify unbridled discretion that chills protected speech.
- B. A rational basis review is not applicable here; First Amendment rights require a higher standard of scrutiny.
- C. While targeting a specific group would be unconstitutional, the primary issue here is the lack of standards, not necessarily targeting in this scenario.
Prior Restraint on Speech
Governmental action that prohibits speech or expression before it can take place. It is subject to strict scrutiny and is generally disfavored under the First Amendment.
- Presumptively unconstitutional
- Government bears heavy burden to justify
- Must have clear, objective standards to avoid arbitrary enforcement
Memory trick: No 'Prior' approval for 'Speech' unless the rules are 'Restrained' and clear.