Practice question from Lesson 1: Understanding the Bar Exam — Structure, Format, and Strategy
A private company posts a policy prohibiting employees from discussing wages with each other, citing a desire to prevent workplace conflict. An employee claims this policy violates their First Amendment free speech rights. Which analytical step immediately resolves this claim? A. Determining whether wage discussion constitutes protected commercial speech under the Central Hudson test B. Applying intermediate scrutiny because wage information involves economic interests C. Recognizing that no state action is present, which is a threshold requirement for any First Amendment claim D. Evaluating whether the policy is content-based or content-neutral to determine the applicable tier of scrutiny E. Analyzing whether the restriction constitutes a prior restraint subject to heightened First Amendment protection
Answer
C
Explanation
The lesson flags the state action doctrine as a 'reliable MBE trap.' The First Amendment constrains only government actors. A private employer — regardless of how oppressive its speech policy — is not a government actor, so no First Amendment analysis is triggered at all. Options A, B, D, and E all reflect genuine First Amendment doctrines, but each assumes the threshold state action requirement has been satisfied. The analysis ends before those doctrines become relevant.