Kaplan Bar Exam Practice Question of the Day

Bar Practice Question for June 24th

When a state governor announces that he is going on a trade mission to promote the state's trade with a country ruled by a dictator who has had thousands of people killed, a human rights activist is furious. She decides to do whatever she can to persuade state residents to contact the governor's office to express their disagreement. She gets a bullhorn and stands in front of the state capitol, making a speech about the human rights horrors that are taking place in the other country and the importance of not having the governor give apparent approval to the regime. As she gets more upset, she shouts that the Governor is "an embarrassment to our state and should be tarred and feathered." She is charged with violating a state statute that provides: "No person shall clearly and definitively intimidate or threaten the health, safety or welfare of a public official for any reason related to the official acts or duties of said public official."

If the activist challenges the constitutionality of the state statute as applied to her, how is the court likely to rule?

The correct answer is: (B) The statute is valid on its face, but invalid as applied to the activist.

Where a statute regulates the content of communication, the burden is on the state to show that the statute is necessary to further a compelling state interest and that it is the least restrictive means of accomplishing that goal. Certainly, there is a compelling government interest in protecting public officials from intimidation and harm in the course of performing their duties and rendering decisions. However, the activist's statements that the Governor is "an embarrassment to our state and should be tarred and feathered" would most likely be considered hyperbole and do not constitute the clear and definitive intimidating or threatening speech meant to be proscribed by the statute.

(A) Incorrect. The statute is invalid on its face.

When defending a law that discriminates against the content of communication, the state must show that the law furthers a compelling state interest by the least restrictive means possible. The statute is arguably the least restrictive means to achieve the goal of ensuring that actions of public officials are not compromised. The statute might be saved from attacks of vagueness and overbreadth if it were intended to be applied in a manner that did not punish hyperbole, but only punished clear, articulable threats.

It is irrelevant whether the Governor heard the speech. If the activist violated the statute, it applies to her regardless of whether she threatened the Governor in person.

(D) Incorrect. The statute is valid as applied to the activist, because she has committed a punishable offense.

The activist's speech probably does not violate the statute. Her statements that the Governor is "an embarrassment to our state and should be tarred and feathered" would most likely be considered hyperbole and do not constitute the clear and definitive intimidating or threatening speech at which the statute was aimed.

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Bar Practice Question for June 24th

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