MBE Question of the Day – Answer

MBE Question of the Day – Answer

(B) is the correct answer.

Issue: Under what standard would a ban on the use of billboards by certain groups of people be

Rule: A restriction on speech may be either content based or content neutral. When the restriction
is content neutral – meaning it does not regulate the content of speech – the law is examined
under intermediate scrutiny (i.e., the state must show that the regulation is substantially related to
an important state purpose). For a restriction to be content neutral, the law must be both
viewpoint neutral and subject matter neutral.

Analysis: Here, the regulation appears to be content neutral as it does not restrict what is being
said by subject matter or by viewpoint. Therefore, it falls under intermediate scrutiny, where the
state must show that the law is substantially related to an important state purpose.
(B) is correct because the state must demonstrate that the restriction is substantially related to an
important government purpose under intermediate scrutiny. If there is no valid government
purpose, then the state cannot meet its burden.

(A) is incorrect because the city, under certain circumstances, can limit the content of expression
on a billboard. For example, commercial speech does have some First Amendment protection, but
the government may regulate commercial speech if the regulation directly advances a substantial
government interest and the regulation is narrowly tailored to serve the substantial interest.

(C) is incorrect because whether or not there are alternative channels to communicate information
is relevant for a time, place, and manner regulation. A time, place and manner regulation is upheld
when it serves a significant government interest and it leaves open ample alternative channels for
communication of the information. The regulation here does not regulate time, place or manner. It
regulates who may use a billboard.

(D) is incorrect because it is not the best argument. The regulation is not vague – it is very clear
who may and may not purchase a billboard. It might arguably be overbroad, but this is because the
entire restriction is possibly unconstitutional not because the law captures protected speech as well
as unprotected speech. (Recall that under the over-breadth doctrine, if a law restricts unprotected
speech and constitutionally protected speech, the law will be struck down for being
unconstitutionally overbroad.)