Essay Questions and Selected Answers July 2004

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A quasi-public forum faces a standard of scrutiny similar to the public forum. Here, thereis arguably a potential for danger to both Bob and the public. Subway platforms can becrowded places, and the subway trains typically approach at dangerous speeds in closeproximity to the waiting passengers. Furthermore, even the rails of the train are oftenelectrified. Finally, the crowds of people on subway trains are often hot, sweaty, in a hurry,tired, and thus more likely to have short tempers. For all these reasons, regulating begginghas more value in this forum than on the sidewalk. It is possible that the crowds mightpush or shove one another (or Bob) to get away from the beggar. Furthermore, allowingbegging on the platform would further congest an already dangerously congested area asother beggars moved in to beg in a beggar-friendly zone. Therefore, the state and cityhave reasonable justification to regulate begging on the subway platform (provided, ofcourse, the statute is not overbroad).Mac should lose his appeal:STATE ACTIONEven though Mac was arrested in a private building, he was arrested subject to stateaction, and state action is what is at issue in his case. The state passed the anti-loiteringstatute, and the state enforced that statute with its police powers.PRIVATE FORUM -- OPEN TO THE PUBLICThe Downtown Lawyers Building is a private building. The state could not regulate whatkind of speech could occur in a completely private building, in a completely private setting.But in a setting where the private owner(s) invite the public to their private space (e.g.bringing in employees, or, as here, a lobby open to the public) the state has the right toregulate speech.PUBLIC CONCERNMac should lose his appeal because there is a public concern at stake when a beggar begsin a private, customer-driven establishment. There is not the danger that inheres in thesubway platform, but there is a strong potential for a loss of revenue due to the begging.Customers will tire of the begging and may stop frequenting the lawyers building. Ifbeggars could beg in every establishment open to customers, the aggregated effect maybe that people will go out less and business, the economy, tax revenues and socialprograms will suffer. Therefore, the state has sufficient reason to regulate Mac’s type ofbegging (again, assuming that the statute is not overbroad).15
Answer B to Question 22)Validity of Section 4 Under the First AmendmentAlice, Bob and Mac have challenged their convictions under State X’s loitering statuteunder the First Amendment of the Constitution. Although Alice, Bob, and Mac are indigent,the only issue on appeal is whether their rights under the First Amendment have beenviolated. Thus, there is no issue on appeal of whether the statute violates their rights underthe Equal Protection Clause because they are indigent. There is also no issue of whetherthe statute is void for vagueness under the First Amendment because the parties havestipulated that is not void for vagueness.Incorporation of the First Amendment Against State GovernmentsTo challenge a statute on the basis that it violates their First Amendment rights, Alice, Bob,and Mac must demonstrate that there is some type of government action that has violatedtheir rights. Under the due process clause of the Fourteenth Amendment, the limitationsthat the First Amendment places on federal government action have also beenincorporated against the states.Constitutional StandingTo bring a constitutional claim, a plaintiff must have adequate standing. This requires ashowing of a personal injury; causation of that injury by state action; and redressability,which means that a favorable outcome in the case will result in the injury being redressed.Third party standing, which is the bringing of a suit by one person when another hassuffered an injury, is prohibited in most circumstances. Similarly, generalized grievancesare prohibited in most circumstances. A plaintiff must also show if she is seeking toprevent government action, that the controversy is ripe to be heard by the court, meaningthat there is adequate factual development and it is an appropriate controversy for thecourt to hear. Finally, a case can be dismissed for mootness if the court will not be ableto change the outcome, as a result of the Article III prohibition on courts issuing advisoryopinions.State X Government ActionAlice, Bob, and Mac must demonstrate that an arm of the State X government has takensome type of action which has violated their First amendment rights. Here, the state hasconvicted them of violating the anti-loitering statute. Thus, although it is unclear exactlywhat the penalty for conviction is, it is clear that Alice, Bob, and Mac have been penalizedin some way by State X. Thus, the conviction constituted state action sufficient to allowAlice, Bob, and Mac to challenge the statute.16
Page 1 and 2: CaliforniaBarExaminationEssay Quest
Page 3 and 4: TUESDAY MORNINGJULY 27, 2004Califor
Page 5 and 6: Answer A to Question 11)1. A. Dan -
Page 7 and 8: crime.Second Degree MurderDan is mu
Page 9 and 10: Here, Dan’s strongest argument is
Page 11 and 12: ecause the killing of Art took plac
Page 13 and 14: Here, there is no evidence that Chu
Page 15 and 16: Question 2State X amended its anti-
Page 17: invites abuse of indigent or undesi
Page 21 and 22: Alice’s CaseAlice’s StandingAli
Page 23 and 24: fulfill its duties in transporting
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Page 27 and 28: B. ANN’S CLAIM1. Omitted ChildAnn
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Page 31 and 32: the will. If, however, the presumpt
Page 33 and 34: 2. Fred’s ClaimFred (F)’s claim
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Page 37 and 38: Question 4Victor had been dating Da
Page 39 and 40: Hearsay is a statement made by the
Page 41 and 42: is to satisfy the prosecution’s b
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Essay Questions and Selected Answers July 2004

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