The questions on the MBE  often ask a yes or no question, and then provide two yes and two no answers.  The key is to not just get the right yes or no answer, but to know why the answer is yes or no.  With Con Law questions, the key is often in identifying the correct standard of review.  Look for the key words such as “rational” or “substantially related” or “narrowly tailored.”  Sometimes you may think the yes or no part of the question is a close call, but if you are sure of the standard of review, you may only have one choice – and then you’ll know it’s correct.  Take the following example from a released question from a previous year’s bar exam:

A city passes an ordinance that prohibits picketing in residential neighborhoods.  The ordinance provides an exception for picketing related to zoning issues, which are at the time of strong concern to the the city’s residents.  A group of citizens angry with a local businessman’s hiring practices wants to picket in front of his house, and sues to challenge the law.  Will the group prevail in their suit?

The potential answers were:

(A) No, because the ordinance is a content-neutral regulation of speech.

(B) No, because the ordinance regulates conduct rather than speech.

(C) Yes, because the ordinance irrationally discriminates between different types of protesters.

(D) Yes, because the ordinance is a content-based regulation of speech.

The answer is D.  How can you be sure that it is not C?   Because a content-based regulation of speech (which this is, because it restricts speech only on certain subject matters and not others) receives strict scrutiny.  The rationality of a statute or ordinance is immaterial to a strict scrutiny analysis.  Therefore C applies the wrong standard or review, and cannot be correct.

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