MBE Fast Fact: The First Amendment

If you've been working through Constitutional Law questions, it's likely you've come across those types of questions that involve providing discretion to public officials in deciding whether to grant a permit to a person or group looking to engage in some form of speech on public property. For the MBE, you should know the following:

There are two situations likely to appear on the exam. The first is where a statute provides an official with unfettered discretion to determine who may receive a permit. There, the statute is deemed facially void and the speaker need not even apply for the permit. In other words, the speaker can exercise his First Amendment rights on the public property without the permit.

The other situation is where a statute is valid on its face (rather than providing the official with unfettered discretion, the statute provides for standards that the official must follow when deciding whether to grant the permit). The difference to note here is that the person wanting to engage in speech must apply for the permit, and if the permit is denied, the applicant must appeal the adverse ruling (denying the permit) to the appropriate authority. In other words, when the statute is valid on its face, one may not violate the statute by engaging in speech after the permit is denied, and then later claim that the permit was denied improperly.