First Amendment Rights Exam: General Approach to Essay Questions

I. Alternative Arguments
In general, exam questions will be posed in terms of making arguments on behalf of the challenger/speaker as well as arguments on behalf of the government. In presenting these arguments, you will have to make alternative arguments that are available to support each side. These arguments will often use the techniques described below to argue for an appropriate standard of review and then apply the facts of the question to the standard. In identifying arguments that support each side, the person challenging the government restraint on speech is always trying to argue for the most demanding standard of review (usually strict or intermediate scrutiny) and the government, defending the restriction on speech, is always trying to argue for the least demanding standard of review (sometimes an argument that no First Amendment scrutiny is necessary since the speech is not protected by the First Amendment or, if protected, usually a standard of reasonableness or intermediate scrutiny).

A. Speaker Arguments
In arguing about the standard of review, we start with the proposition that there are four general methods available to the speaker to argue for a heightened level of scrutiny either based on one of these methods or a combination of methods. The speaker can make arguments based on: (1) the nature of the speech (for example, the speech is symbolic speech that satisfies the Spence test as modied by Hurley); (2) the nature of the regulation (for example, the regulation is content-based or substantially vague or overbroad or a standardless prior restraint scheme); (3) the place of the speech (for example, the place of the speech is a traditional public forum or a designated forum to which the speaker is entitled to access); and (4) the speaker or the medium of communication (for example, the speaker is a government employee whose speech is not official duty speech, but is speech about a matter of public concern). Using these four types of arguments, the speaker can argue that some form of rigorous scrutiny needs to be given to the restraint on speech. There are many other examples of these kinds of scrutiny-enhancing techniques and, if available, multiple forms of these types of arguments can be made by the speaker as alternative arguments in the same case.

Once an appropriate standard of review has been identified by the kinds of arguments described in the previous paragraph (for example, one of the varieties of intermediate scrutiny or strict scrutiny), you need to apply the facts to the standard. This almost always entails, at the least, a need to examine the nature of the governmental interest and the fit between the ends and means. It also usually involves a consideration of whether there are more narrowly tailored means available either because the government needs to use the least restrictive alternative under strict scrutiny or because an examination of alternatives can help to demonstrate that the means are substantially broader than necessary and thus do not qualify as narrowly tailored as required under intermediate scrutiny.

B. Government Arguments
The same four techniques described above can be employed by the government to argue for a reduced level of scrutiny: (1) the nature of the speech (for example, the speech falls within an unprotected category of speech and receives no First Amendment protection or is commercial speech and receives less protection than fully protected speech); (2) the nature of the regulation (for example, the regulation is a content-neutral time, place or manner restraint and therefore should be analyzed using intermediate scrutiny); (3) the place of the speech (for example, the location of the speech is government property that is classified as a nonpublic forum or is a designated forum not available to the speaker); and (4) the identity of the speaker or the means of communication (for example, the speaker is the government itself or a government employee engaged in official duty speech). There are many other examples of arguments of these types and, if available, more than one of these kinds of scrutiny-reducing techniques can be employed by the government as alternative arguments in the same case. As described in Section I.A., once an appropriate standard of review has been identified by an argument made on behalf of the government, you need to apply the facts to the applicable standard of review.  

II. Responses to Arguments
Since each exam question will likely ask you to make arguments on behalf of each party, your answer should be divided into challenger/speaker arguments and government arguments. Each side’s arguments should begin with the available affirmative arguments as described in Section I above. Some of these arguments, however, can also be viewed as responses to arguments made by the opposing party. For example, if the speaker argues they are seeking access to government property that is a traditional public forum and the government argues the property is a nonpublic forum, those two arguments are both affirmative arguments on behalf of each side and would be made even if the other side did not make an opposing argument, but they are also responses to an argument presented by the other side. You only need to present each argument once on behalf of a party even if it serves two purposes since points allocated on the exam will only give credit for an argument a single time.  

In addition to affirmative arguments that also can be characterized as responsive arguments, there are likely to be some arguments that respond to arguments presented by the other side which are not arguments the party would present as an initial argument on their behalf. In presenting each side’s arguments, these responsive arguments should also be presented. For example, if the government argues that the speech at issue is obscenity under the Miller test and receives no First Amendment protection, the speaker should respond to the government’s argument by arguing that the speech at issue is not obscenity because the speech does not satisfy one or more of the elements of the Miller test. This is not an argument the speaker would probably not present as an affirmative argument, but it should be presented responsively. Another example is if the speaker argues the regulation is content based and should be analyzed using strict scrutiny which it fails. The government can argue in response that it can satisfy the strict scrutiny test. In general, arguments that focus on what something isn’t rather than what it is are more likely to be responsive arguments rather than affirmative arguments, but they are still important arguments to present on behalf of each side.

III. Organization and Avoiding Duplication
Avoiding duplication of arguments that are both affirmative arguments as well as responsive arguments as described above is usually easy to avoid. One suggestion is that for both parties you should first present each side’s affirmative arguments. You can then identify any responsive arguments you have not already presented in the form of affirmative arguments and add those arguments to your analysis on behalf of each side. That will allow you to make all of the relevant arguments without duplication.
 
However, another form of duplication can occur as well. For example, if two different arguments for one of the parties require that the same standard of review should be applied, for example two arguments on behalf of the speaker that apply strict scrutiny, a similar issue arises. On the exam, if the argument you are making requires you to make the exact same argument you have already made both in terms of the law and the application of the facts to the legal standard, you should just refer to the earlier argument rather than presenting it a second time. In grading the exam, there will only be a single set of points for that strict scrutiny argument and not two different sets of points so there is no advantage to repetition. On the other hand, if some of the elements are unique, as can be the case with two different versions of intermediate scrutiny, make sure you present the unique elements, but you can still make a reference to earlier elements of the standard that are identical in both the legal standard as well as the application of the facts to that standard. When in doubt, feel free to repeat an argument since no points are deducted for repetition.