- A city enacted an ordinance that prohibits any person from picketing or demonstrating within 50 feet of any hospital entrance. The stated purpose of the ordinance is to ensure unimpeded access for patients and emergency vehicles and to maintain a tranquil environment for patient recovery. A group of anti-war activists, who had been peacefully demonstrating with signs just outside a local hospital, were arrested for violating the ordinance. The activists have filed a lawsuit challenging the ordinance's constitutionality.
Answer: The ordinance is likely constitutional because it is a reasonable, content-neutral time, place, and manner restriction that is narrowly tailored to serve a significant government interest.
The correct answer is C. The ordinance is a content-neutral time, place, and manner restriction. It does not target speech based on its message but applies to all picketing and demonstrating regardless of content. The sidewalks outside a hospital are traditional public forums. Such restrictions are constitutional if they (1) are content-neutral, (2) are narrowly tailored to serve a significant government interest, and (3) leave open ample alternative channels for communication. Here, the interests in unimpeded hospital access and patient tranquility are significant. A 50-foot buffer zone is likely seen as narrowly tailored, and it leaves open other areas for the activists to protest.
(A) is incorrect because the ordinance is content-neutral; it applies to all picketing, not just anti-war protests. Therefore, strict scrutiny does not apply.
(B) is incorrect because for time, place, and manner restrictions, the regulation need only be narrowly tailored, not the least restrictive means. 'Narrowly tailored' is a less stringent standard.
(D) is incorrect because public sidewalks, even those outside hospitals, are generally considered traditional public forums, not nonpublic forums. The government cannot ban all expressive activity in such a forum.
- A group of animal rights activists regularly protests outside a corporate headquarters located in a large, privately owned office park. The office park is open to the public for employees and visitors of the numerous tenant businesses and contains sidewalks, parking lots, and a central plaza. The owner of the office park has a policy prohibiting all protest activity on the property and calls the police to have the activists removed for trespassing. The activists claim a First Amendment right to be there.
Answer: The property owner will prevail because the First Amendment does not apply to private property, even if it is open to the public.
The correct answer is C. The state action doctrine requires that for the First Amendment to apply, there must be action by the government, not a private entity. The Supreme Court has held that a privately owned shopping mall (or, by extension, an office park) is not a state actor, and therefore its owners are not bound by the First Amendment's speech protections. The activists have no constitutional right to protest on the private property, even though it is generally open to the public. Some state constitutions may provide such rights, but the question is based on the US Constitution.
(A) is incorrect because the Supreme Court, in cases like Hudgens v. NLRB, has rejected the 'functional equivalent' of a public forum argument for privately owned shopping centers.
(B) is incorrect because the nature of the policy (content-based or content-neutral) is irrelevant if the First Amendment does not apply in the first place due to the lack of state action.
(D) is incorrect because the owner does not need to show disruption. As a private property owner, they can exclude individuals for trespassing without needing a justification that would be required of a government actor.
- A city passed an ordinance prohibiting the display of any sign on public property without a permit. The ordinance grants the city manager unfettered discretion to grant or deny permits based on whether the sign's message is 'in the public interest.' An environmental group was denied a permit to place signs in a public park promoting recycling because the city manager personally disagreed with the group's political affiliations. The group has filed a suit challenging the permit scheme.
Answer: The ordinance is an unconstitutional violation of the First Amendment because it lacks definite, objective standards for granting permits, inviting viewpoint discrimination.
The correct answer is B. A permit or licensing scheme that affects First Amendment activities must include definite, objective, and narrow standards to guide the licensing authority. A scheme that grants unbridled discretion to a government official is facially unconstitutional because it creates a risk of content-based or viewpoint-based discrimination. The standard 'in the public interest' is entirely subjective and fails this test.
(A) is incorrect because while the text of the ordinance might appear neutral ('any sign'), the discretionary standard for the permit allows for content-based application, which is what occurred here. The lack of standards is the core constitutional flaw.
(C) is incorrect because while the government can control speech on its property, its ability to do so in a public forum like a park is severely limited. It cannot use a licensing scheme with unbridled discretion to suppress disfavored viewpoints.
(D) is incorrect because the ordinance is facially invalid. A law that gives a government official unfettered discretion to restrict speech is unconstitutional on its face, not just as it was applied in a particular instance.
- A public high school allows student groups to use classrooms for meetings after school hours. The school permits a wide variety of groups, including a chess club, a political debate club, and a community service club. However, the school denies a request from a group of students who want to form a Christian prayer group and meet on school property, citing Establishment Clause concerns. The students sue the school district.
Answer: The school's action is unconstitutional viewpoint discrimination because by creating a limited public forum, it cannot exclude a group based on its religious perspective.
When you encounter a question about religious groups meeting at public schools, you're dealing with the intersection of the Establishment Clause and Free Speech Clause, not just one or the other. The key is recognizing what type of forum the school has created.
Here, the school created a limited public forum by opening classrooms to various student groups after hours. Once a government entity creates such a forum, it cannot engage in viewpoint discrimination—excluding groups based on their particular perspective on otherwise permissible topics. Since the school allows various clubs including political debate groups, it has opened the forum to student expression and discussion. Excluding the Christian prayer group solely because of its religious viewpoint constitutes impermissible discrimination.
Answer A is correct because this represents classic viewpoint discrimination in a limited public forum, which violates the Free Speech Clause.
Answer B incorrectly applies Establishment Clause analysis. The Supreme Court has held that equal access doesn't constitute endorsement when the school maintains neutrality among various groups.
Answer C misapplies the "entanglement" test. Simply allowing equal access to facilities doesn't create the type of government-religion entanglement the Establishment Clause prohibits.
Answer D focuses on Free Exercise, but this is primarily a Free Speech issue. While religious practice is involved, the constitutional violation stems from discriminatory exclusion from a public forum, not interference with religious exercise per se.
Study tip: When schools create forums for student groups, remember that viewpoint neutrality trumps Establishment Clause concerns—equal access is constitutionally required, not prohibited.
- A city enacted a zoning ordinance that prohibits 'adult entertainment businesses' from operating within 1,000 feet of any school, park, or place of worship. The ordinance defines such businesses as those where a substantial portion of their stock-in-trade includes materials depicting specified sexual activities. The city's stated purpose is not to suppress the content of the materials but to combat the negative 'secondary effects' associated with such businesses, such as increased crime and decreased property values. An adult bookstore, forced to relocate, challenges the ordinance.
Answer: The ordinance is analyzed as a content-neutral time, place, and manner restriction and is likely constitutional.
The correct answer is C. Under the 'secondary effects' doctrine established in Renton v. Playtime Theatres, zoning ordinances aimed at the negative secondary effects of adult businesses are treated as content-neutral, even though they single out businesses based on the content they sell. As content-neutral regulations, they are constitutional if they are designed to serve a substantial government interest and do not unreasonably limit alternative avenues of communication. Combating crime and protecting property values are substantial interests, and if the zoning scheme leaves other locations for the businesses to operate, it is likely constitutional.
(A) is incorrect because the secondary effects doctrine allows courts to treat these ordinances as content-neutral, subjecting them to a form of intermediate scrutiny rather than strict scrutiny.
(B) is incorrect because a prior restraint is a government action that prevents speech from occurring in the first place (e.g., a licensing scheme or injunction). A zoning ordinance that regulates where speech can occur is a time, place, and manner restriction, not a prior restraint.
(D) is incorrect because not all material in an adult bookstore is legally obscene under the Miller test. The ordinance regulates sexually explicit but constitutionally protected speech. Furthermore, this answer misstates the law; the fact that obscenity is unprotected does not obligate the city to ban it entirely.
- In response to privacy concerns, a state enacted a law that prohibits individuals from posting on the internet any photograph or video of another person taken in a public place without that person's written consent, if the person is identifiable. An amateur photographer who posts photos of street scenes on her blog is threatened with a lawsuit under this statute. She seeks a declaratory judgment that the law is unconstitutional.
Answer: The law is unconstitutional because it is an overly broad, content-based restriction on the publication of lawfully obtained, truthful information.
When you encounter a First Amendment question involving restrictions on speech or publication, you need to analyze the level of scrutiny the law will face and whether it can survive constitutional review.
This law fails constitutional scrutiny because it's a content-based restriction that's both overbroad and restricts publication of truthfully obtained information about matters of public concern. The Supreme Court has consistently held that the First Amendment strongly protects the right to publish truthful information lawfully obtained, especially when it involves public places where people have diminished privacy expectations. The law sweeps too broadly by potentially criminalizing legitimate journalistic activity, artistic expression, and documentation of public events simply because identifiable people appear in the images.
Answer A is wrong because while privacy may be compelling, the government cannot achieve this interest through such a broad restriction on protected speech. The means must be narrowly tailored. Answer B incorrectly suggests the commercial/non-commercial distinction is determinative here, but even non-commercial speech receives strong First Amendment protection, and content-based restrictions face strict scrutiny regardless. Answer C misapplies the time, place, and manner framework, which only applies to content-neutral regulations. This law is content-based because it specifically targets publication of identifiable images, making it subject to strict scrutiny, not the more lenient reasonableness standard.
Remember: Content-based speech restrictions almost always trigger strict scrutiny and are presumptively unconstitutional. Laws restricting publication of truthfully obtained information face an especially heavy burden, particularly when involving public spaces where privacy expectations are reduced.
- A state law prohibits liquor stores from displaying any advertisements, including price listings, that are visible from the street. The state's justification is to reduce demand for alcohol and prevent price wars that could lead to excessive consumption. A liquor store owner who wants to post a sign in her window advertising a sale on wine challenges the law's constitutionality.
Answer: The law is unconstitutional because it is a complete ban on truthful, non-misleading commercial speech about a lawful product.
The correct answer is B. This question involves commercial speech. The Supreme Court has held that a complete ban on truthful, non-misleading advertising of alcohol prices is unconstitutional. Applying the Central Hudson test, while the state's interest in reducing alcohol consumption may be substantial, a complete ban on price advertising is not sufficiently tailored. The Court has found that such bans do not directly advance the state's interest and are more extensive than necessary, as there are other ways to combat overconsumption.
(A) is incorrect because commercial speech (advertising) is protected by the First Amendment, even if the underlying activity can be regulated.
(C) is incorrect because while the Twenty-first Amendment gives states power to regulate alcohol, it does not permit them to violate other provisions of the Constitution, such as the First Amendment's protection of speech.
(D) is incorrect because commercial speech is subject to intermediate scrutiny under the Central Hudson test, not strict scrutiny. Although the law is content-based, the specific category of commercial speech receives a lower level of protection.
- State denies an application for a specialty plate whose slogan it finds offensive. This is:
Answer: Government speech; no claim
Specialty plates are government speech, not a forum for private expression. The state may reject slogans it finds offensive without triggering First Amendment review. The tempting error is viewpoint discrimination, but that applies only to restrictions on private speakers in a forum, not to the government's own message choices.
- A police officer posts, on his own time, that the mayor's crime plan is corrupt; he is fired. What test applies?
Answer: Garcetti, then Pickering
The officer spoke as a citizen on a matter of public concern (corruption in the mayor's crime plan), and not as part of his official duties. Under Garcetti, that threshold question comes first; if satisfied, Pickering balances his speech interest against the department's efficiency interest in disciplining him. Tinker is wrong because it governs student speech, not public employee discipline.
- During a heated and crowded public protest against a new dam project, a man stood on a crate and shouted to the crowd, 'The politicians who approved this will not listen to reason! The time for talk is over! We must go to the construction site tonight and burn the equipment to the ground!' Immediately after his speech, several protestors began to move towards the construction site a mile away, but they were stopped by police before any damage occurred. The speaker was arrested and charged under a state statute prohibiting incitement to riot.
Answer: The speaker's conviction is likely to be overturned because his speech was not directed to inciting imminent lawless action and was not likely to produce such action.
The correct answer is B. This fact pattern tests the modern standard for incitement from Brandenburg v. Ohio. For speech to be punishable as incitement, it must be (1) directed at inciting or producing (2) imminent lawless action and (3) be likely to incite or produce such action. Here, while the speaker advocated for lawless action ('burn the equipment'), the proposed action was 'tonight' and at a site 'a mile away.' This likely lacks the required imminence. The police were also able to intervene, which suggests the speech was not actually likely to produce the action.
(A) is incorrect because 'clear and present danger' is an older, less speech-protective standard that was replaced by the Brandenburg test.
(C) is incorrect because 'fighting words' are personally abusive epithets directed at a specific person in a face-to-face confrontation that are likely to provoke an immediate violent reaction. This speech was addressed to a crowd, not an individual, and was not a personal insult.
(D) is incorrect because the success of the incitement is not an element of the crime. The analysis focuses on the nature of the speech and the context in which it was said, not the ultimate result.
- A celebrity, who is widely known for his political activism and frequent public statements on controversial issues, sued a satirical website for defamation. The website published a fake interview in which it falsely quoted the celebrity making outrageous and absurd statements that were clearly intended as parody. The article contained a small-print disclaimer at the bottom labeling it as satire. The celebrity claims the article damaged his reputation.
Answer: The celebrity will likely lose because the statements were not reasonably believable as factual assertions.
The correct answer is B. A key element of a defamation claim is that a defendant made a false statement of fact. For public figures, the Supreme Court has held that parody or satire is protected speech unless a reasonable person would interpret the statements as factual assertions. Given that the statements were 'outrageous and absurd' and the article was labeled as satire, it is unlikely a reasonable person would believe the fake interview was real. Therefore, a core element of the defamation claim is missing.
(A) is incorrect because while 'knowledge of falsity' is part of the 'actual malice' standard for public figures, that standard only applies if the statement is a defamatory assertion of fact. If the statement cannot be reasonably interpreted as fact, the malice inquiry is irrelevant.
(C) is incorrect because the celebrity is a public figure, so he must prove 'actual malice' (knowledge of falsity or reckless disregard for the truth), not mere negligence.
(D) is incorrect because satire and parody do not receive absolute protection. If a satirical work could be reasonably interpreted as stating actual facts and was published with actual malice, it could be the basis for a successful defamation claim.
- A state law requires professional fundraisers for charitable organizations to disclose to potential donors, at the beginning of any solicitation call, the percentage of the donor's contribution that the fundraiser will retain as a fee. A professional fundraiser challenges the law, arguing that this compelled disclosure unconstitutionally burdens its ability to raise funds for its client charities, which is a form of protected speech.
Answer: The law is a constitutional regulation of speech because the state has a compelling interest in preventing charitable fraud.
The correct answer is C. The Supreme Court has held that while charitable solicitations involve protected speech, states have a significant interest in preventing fraud. Compelled disclosures in this context are treated differently from outright prohibitions on speech. Such laws are generally upheld if they are reasonably related to the state's interest in preventing fraud and are not unduly burdensome. The disclosure of the fundraiser's fee is factual information directly relevant to the state's anti-fraud interest.
(A) is incorrect because while the law is content-based (it compels a specific message), this type of compelled factual disclosure in a commercial/charitable context is not subject to the same strict scrutiny as other content-based regulations.
(B) is incorrect because the Supreme Court has distinguished charitable solicitations from purely commercial speech, often affording it higher protection. More importantly, the Court has upheld this type of disclosure requirement as sufficiently tailored to the state's interest in preventing fraud.
(D) is incorrect because the right not to speak is not absolute. The government can compel certain factual disclosures, particularly in commercial or quasi-commercial contexts, to protect the public from deception.
- A state legislature passed a law making it a crime to publish any information, true or false, about a candidate for public office within 30 days of an election, unless the candidate has given prior written consent. The state's attorney general defends the law as necessary to prevent last-minute smears that candidates cannot effectively rebut. A newspaper challenges the law after being threatened with prosecution for planning to publish an investigative report on a gubernatorial candidate 15 days before the election.
Answer: The law is an unconstitutional prior restraint on speech because it requires government pre-approval before publication.
The correct answer is B. The law is a classic prior restraint because it prohibits speech before it occurs and requires the speaker (the newspaper) to obtain permission from a third party (the candidate) before publishing. Prior restraints on speech are presumptively unconstitutional and face the highest level of scrutiny. The government's interest in preventing last-minute smears is not sufficient to overcome this heavy presumption, especially for core political speech.
(A) is incorrect because the law is not a time, place, and manner restriction. It is content-based (it applies only to speech about candidates) and functions as a direct ban, not a regulation of the 'how, when, or where' of speech.
(C) is incorrect because while the government has an interest in preventing defamation, this law is far too broad, covering true information as well. More importantly, its mechanism—prior restraint—is unconstitutional regardless of the truth or falsity of the speech it aims to suppress.
(D) is incorrect because even if the government interest is compelling, this law is not narrowly tailored. It is an extreme and overbroad measure that chills vital political speech. There are less restrictive means to combat election-related defamation, such as post-publication civil or criminal penalties.
- A city council passed an ordinance banning all billboards within city limits. The council's justification, based on extensive studies, was that billboards are aesthetically displeasing ('visual blight') and that they are a primary cause of driver distraction, leading to accidents. A company that owns numerous billboards challenges the ordinance as an unconstitutional restriction on speech.
Answer: The ordinance is a constitutional restriction on commercial speech because it is narrowly tailored to serve the city's significant interests in traffic safety and aesthetics.
The correct answer is B. The Supreme Court has addressed the regulation of billboards. Such regulations are typically analyzed under the framework for commercial speech. The government's interests in traffic safety and aesthetics are considered substantial. A complete ban on billboards has been found to be sufficiently tailored to these interests. The Court reasons that because billboards are a unique and intrusive medium, a complete ban may be the only way to achieve the city's goals.
(A) is incorrect because the ban applies to all billboards regardless of their message. It is a restriction on a medium, not on content, and is analyzed as a content-neutral regulation.
(C) is incorrect because under the Central Hudson test, the regulation must be narrowly tailored ('a reasonable fit'), but it does not need to be the least restrictive means possible.
(D) is incorrect because while the ordinance does foreclose an entire medium, the Supreme Court has upheld such bans, reasoning that other channels of communication (newspapers, radio, direct mail, etc.) remain available. The ban on a single, unique medium like billboards does not foreclose all speech.
- You are representing a client who was fired from her job as a data analyst for a county planning department. Your client made a post on her personal, private social media account criticizing the department head's recent zoning decisions as 'corrupt' and 'detrimental to the community.' An anonymous colleague took a screenshot of the post and sent it to the department head, who immediately terminated your client for insubordination and undermining department morale. Your client wishes to sue for wrongful termination, claiming a First Amendment violation.
Answer: Your client's claim will likely succeed because her speech was made as a private citizen on a matter of public concern.
The correct answer is A. This question involves the First Amendment rights of public employees. Under the Pickering balancing test, the court first determines if the employee spoke as a citizen on a matter of public concern. Here, the client was not speaking pursuant to her official duties, and allegations of corruption in government zoning decisions are clearly a matter of public concern. The burden then shifts to the government to show that its interest in an efficient workplace outweighs the employee's speech rights. While disruption is a factor, courts generally give strong protection to speech exposing potential government corruption.
(B) is incorrect because no speech is absolutely protected, and the fact that it was on a private account is a factor in the analysis but not determinative.
(C) is incorrect because government employees do have First Amendment protection for speech critical of their superiors, provided it is on a matter of public concern and their speech interest outweighs the employer's interests.
(D) is incorrect because, on these facts, it is unlikely a court would find the government's interest outweighs the high value of speech on public corruption. The disruption appears minimal and was caused by another employee sharing the private post.
- A city owns and operates a municipal theater. As part of a new program to encourage local arts, the city allows private theater groups to rent the stage for performances. The city's policy states that it will not rent the theater to any group whose proposed performance 'contains offensive or sacrilegious content.' A local satirical group is denied a rental contract for its play, which lampoons several major religions. The group sues the city.
Answer: The city's policy is unconstitutional viewpoint discrimination because by opening the theater to private groups, the city created a designated public forum.
The correct answer is C. When the government opens property that is not traditionally a public forum for use by the public for expressive activity, it creates a designated public forum. In such a forum, the government cannot engage in viewpoint discrimination. The policy of excluding performances with 'offensive or sacrilegious content' is a clear example of viewpoint discrimination, as it targets speech based on its message and perspective. The government cannot allow some views on religion while silencing others it deems 'sacrilegious.'
(A) is incorrect because this is not government speech. The city is not creating or commissioning the plays itself; it is providing a venue for private speakers. Therefore, the government speech doctrine does not apply.
(B) is incorrect because the policy is not viewpoint-neutral. It specifically targets 'offensive' and 'sacrilegious' viewpoints. Furthermore, by opening the venue to general use by private groups, the city likely created a designated public forum, not a nonpublic forum.
(D) is a true statement of law but an incomplete answer. The reason the policy is unconstitutional in this specific context is not just that sacrilegious speech is protected, but that the city is engaging in viewpoint discrimination within a designated public forum it created.
- A city ordinance makes it illegal to 'willfully and maliciously' burn a cross on public or private property. A man, angry at his neighbor over a property dispute, burns a small cross on his own front lawn, directly facing his neighbor's house, late at night. The neighbor sees the cross and is terrified. The man is prosecuted under the ordinance. He argues the ordinance is an unconstitutional content-based restriction on his symbolic speech.
Answer: The ordinance is constitutional because it targets only cross burning done with the intent to intimidate, which the state can prohibit.
When you encounter First Amendment questions about symbolic speech restrictions, focus on whether the government is regulating the message itself or the conduct associated with the expression, and whether the restriction is narrowly tailored.
The correct answer is D because the Supreme Court in Virginia v. Black established that governments can constitutionally prohibit cross burning when it's done with intent to intimidate. The key distinction is that this ordinance doesn't ban all cross burning - it specifically targets cross burning done "willfully and maliciously," which courts interpret as requiring intent to intimidate. Since true threats aren't protected speech, and the ordinance is narrowly focused on intimidating conduct rather than the symbolic message itself, it passes constitutional scrutiny.
Option A is incorrect because while content-based restrictions face strict scrutiny, not all symbol-specific laws are unconstitutional. The Supreme Court allows prohibitions on cross burning specifically when tied to intimidation because of the symbol's unique historical association with threats of violence.
Option B misapplies the "fighting words" doctrine. Cross burning typically isn't considered fighting words because it doesn't involve face-to-face confrontation likely to provoke immediate violence. The constitutional analysis here rests on true threats, not fighting words.
Option C overstates symbolic speech protection. While symbolic speech like flag burning does receive First Amendment protection, it's not the "highest level" - that would be pure speech. Moreover, even protected symbolic speech can be regulated when it constitutes true threats.
Remember: First Amendment questions often turn on narrow distinctions. Look for whether the law targets the message or the threatening conduct, and whether it's narrowly tailored to serve a compelling government interest.
- A law criminalizes any email that 'annoys' the recipient. Which ruling is best?
Answer: Void as vague and overbroad
Criminalizing any email that 'annoys' reaches far beyond unprotected speech like true threats or fighting words; 'annoy' is subjective and undefined, inviting arbitrary enforcement and chilling protected expression. So the law is void as vague and overbroad. The most tempting wrong answer is narrowing it to fighting words, but email is not face-to-face provocative speech and the statute cannot be saved by that label.
- A state bar association requires its members to join and pay annual dues. A portion of these mandatory dues is used by the bar association to lobby the state legislature on issues related to legal ethics and court funding. Another portion is used to lobby on controversial political issues unrelated to the legal profession, such as gun control and abortion. An attorney objects to her dues being used for this political lobbying and sues the bar association.
Answer: The attorney's claim will succeed to the extent that her dues are used for political activities not germane to regulating the legal profession or improving legal services.
The correct answer is D. This question involves the compelled subsidization of speech. In Keller v. State Bar of California, the Supreme Court held that a mandatory bar association cannot use its members' compulsory dues to fund political or ideological activities that are not germane to its purposes of regulating the legal profession and improving the quality of legal services. While the bar can use dues for activities related to legal ethics or court administration, it cannot compel members to subsidize its lobbying on unrelated, controversial political issues.
(A) is incorrect because while the bar association has a right to speak, it does not have the right to compel its members to fund speech with which they disagree, beyond the scope of its core mission.
(B) is incorrect because it is too broad. The bar association can use mandatory dues for speech that is germane to its regulatory purpose.
(C) is incorrect because a person cannot be required to waive their constitutional rights as a condition of practicing a profession.
- A federal law prohibits the broadcasting of any advertisement for casinos or lotteries. The law applies to all radio and television stations in the country. A television station located in a state where casino gambling is legal challenges the law, arguing that it has a First Amendment right to air commercials for its local, state-licensed casinos. The government argues the law is necessary to protect vulnerable individuals from the social costs of gambling.
Answer: The law is unconstitutional because it is not narrowly tailored, as it bans advertising in states where the activity is legal, and non-advertising alternatives exist.
The correct answer is C. This question applies the Central Hudson test for commercial speech. The law is a restriction on truthful, non-misleading speech about a lawful activity (in that state). While the government's interest in reducing gambling's social costs is substantial, the law is not narrowly tailored. A complete nationwide ban is too broad because it prohibits advertising even in jurisdictions where gambling is legal and heavily regulated. The existence of less restrictive alternatives (such as requiring warnings or funding problem gambling programs) indicates that a total ban is more extensive than necessary.
(A) is incorrect because the 'vice' argument has been largely rejected by the Supreme Court. If an activity is legal, truthful advertising about it receives First Amendment protection.
(B) is incorrect because the law fails the narrow tailoring prong of the Central Hudson test. A complete ban is overly broad.
(D) is incorrect because the challenge is based on the First Amendment, not federalism. While the law touches on an area also regulated by states, Congress has the power to regulate interstate commerce, which includes broadcasting.
