Essay playbook
The Aspen Data Ban
Work through The Aspen Data Ban as a public essay playbook with a fresh UBE / MEE-style fact pattern, scored issues, and a model answer.
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Fact pattern
Responding to rising summer electricity prices, the State of Aspen enacts the Aspen Resident Energy Protection Act (ARPA). The Act has four operative provisions: §1 — Any commercial data center operating within Aspen must reserve at least 75% of its computing capacity for Aspen-based customers between June 1 and September 15 each year. §2 — State-operated data centers (of which Aspen runs two for state agency records) are exempt from §1. §3 — A data center's operating license shall not be renewed if the Attorney General determines the center "hosts extremist religious content." The Act does not define "extremist." §4 — The Attorney General may bring a civil enforcement action and recover penalties of up to $50,000 per day for each violation of §1, and for each day a data center operates after its license has been denied or not renewed under §3. Northwind Cloud Inc., a Delaware corporation that operates a large Aspen data center serving customers in eighteen states, is notified that it is in violation of §1 and faces a potential $18 million penalty. Northwind sues the Attorney General in federal court seeking declaratory and injunctive relief. Separately, the Mount Revere Church maintains an Aspen-based archive of sermons and teachings on a subleased rack at the Northwind facility. The Attorney General notifies Northwind that its operating license will not be renewed under §3, citing a Mount Revere sermon in the archive hosted at the Northwind facility that described a rival denomination as "spiritually corrosive." The Church files its own suit. Finally, during unrelated surveillance, federal agent Vega copied several gigabytes of Northwind's client data without a warrant. Northwind sues Vega in his individual capacity for damages. Aspen includes a severability clause: "If any provision of this Act is held invalid, the remaining provisions shall continue in effect."
Scored issues to spot
Concrete injury (18M exposure + operational disruption), causal trace to §1 enforcement, redressable by declaratory/injunctive relief. Pre-enforcement challenge is ripe given imminent liability.
Subject: Constitutional Law | Points: 5
§1 facially discriminates against out-of-state customers by forcing reservation of 75% of capacity for Aspen customers. Facially discriminatory laws are virtually per se invalid. Aspen cannot show no non-discriminatory alternative (e.g. neutral energy-use limits, peak-demand rules, conservation incentives, or resident rate relief - note a capacity auction would regulate computing access without addressing electricity demand at all).
Subject: Constitutional Law | Points: 15
§2 exempts state-owned data centers. Even though Aspen runs its own centers, §1 regulates private centers — Aspen is acting as a regulator, not a market participant. The MP exception covers state preferences in its own buying/selling, not regulation of third parties.
Subject: Constitutional Law | Points: 10
§3 targets religious content specifically. Under Smith, neutral laws of general applicability receive rational basis, but §3 is facially not neutral - it singles out religious content, which alone triggers strict scrutiny. General applicability normally turns on the interest the government claims, which these facts do not state; IF Aspen claims an anti-extremism interest, its failure to reach comparable secular extremist content defeats that too. Strict scrutiny applies and the law cannot survive it.
Subject: Constitutional Law | Points: 15
§3 is facially CONTENT-BASED - it classifies by religious subject matter - and, through its "extremist" criterion and its application to the "spiritually corrosive" sermon, VIEWPOINT-based as well. Do not assume every religion-based subject classification is automatically viewpoint discrimination; it is the extremist qualifier and the application here that carry it. Presumptively unconstitutional; strict scrutiny. Even assuming preventing genuine violence or unlawful extremism is compelling, §3 is NOT NARROWLY TAILORED - its religion-specific, undefined standard reaches extensive protected speech. Keep the two steps of strict scrutiny separate rather than collapsing them.
Subject: Constitutional Law | Points: 15
Name the licensing problem first: §3 conditions RENEWAL of an operating licence on approval of the hosted speech by the Attorney General, under no defined standard. That FUNCTIONS AS A PRIOR RESTRAINT on continued hosting - continued speech depends on official approval under no defined criteria, and ARPA supplies no stated procedural safeguards - which also gives the official UNBRIDLED DISCRETION - an independent First Amendment defect that vagueness overlaps but does not fully name. On vagueness itself, "extremist" is standardless — it gives the Attorney General unbounded discretion and provides no fair warning to speakers. Void for vagueness under Due Process; independently supports striking §3.
Subject: Constitutional Law | Points: 10
Even assuming some "extremist" content could constitutionally be targeted, §3 sweeps protected advocacy and criticism of other faiths (the Mount Revere sermon is core religious speech). Do the COMPARISON the doctrine requires rather than asserting it: even ASSUMING §3 could validly reach knowing hosting of unprotected true threats or Brandenburg incitement (itself doubtful for an intermediary absent a knowledge requirement, defined standards and procedural safeguards), that legitimate sweep is narrow, while its undefined language reaches a far broader range of protected religious criticism and advocacy. Protected applications are therefore substantial relative to that legitimate sweep, which is what supports a facial challenge.
Subject: Constitutional Law | Points: 5
Against a federal agent, the claim vehicle is Bivens. The Supreme Court has declined to extend Bivens in recent terms (Ziglar v. Abbasi; Egbert v. Boule). A Fourth Amendment claim arising from warrantless copying of stored commercial data held by a cloud provider is a NEW Bivens context, and courts almost never extend Bivens to new contexts - but say WHY: a new context triggers the special-factors inquiry, and the novel policy questions around damages for federal access to commercial cloud data counsel leaving the remedy to Congress. Note the threshold question too: Fourth Amendment rights are personal, so Northwind must show the copying invaded ITS own rights rather than the rights of its customers. §1983 is unavailable — it reaches state, not federal, actors.
Subject: Constitutional Law | Points: 10
This is the ALTERNATIVE ground, not the primary one - the primary disposition is that the court should decline to extend Bivens. If the court does reach it: the question is whether the right was clearly established WHEN HE ACTED - and these facts cannot answer it, since they give no date, no account of how he obtained access, and no surveillance circumstances. Flag it as an alternative ground rather than deciding it. Do not resolve it on these facts: the scenario gives no date, no detail about how Vega obtained access, and no surveillance circumstances - and qualified immunity turns on what the law clearly established WHEN HE ACTED. Note he copied DATA, not servers. Treat it as an alternative issue that cannot be decided conclusively here.
Subject: Constitutional Law | Points: 5
Separate MERITS, SCOPE and SEVERABILITY. Merits: §1 falls under the dormant Commerce Clause and §3 falls on several First Amendment grounds, with overbreadth supporting a declaration of FACIAL invalidity. Scope: courts enjoin OFFICIALS, not sections, and a facial holding does not by itself justify protecting nonparties - absent a class, enjoin the Attorney General only so far as needed to redress Northwind and the Church (for §3, barring use of the content of the Church to deny or refuse renewal of the licence or impose penalties). A party-limited order simply does not reach nonparties; that is not a ruling that such enforcement is valid. Severability: neither §2 nor §4 is itself invalidated, but both become functionally inoperative wherever the underlying duties cannot be enforced: §2 is only an exemption from §1 and has no effect where §1 is unenforceable, and §4 only enforces §§1 and 3 so it gives no independent basis for penalties.
Subject: Constitutional Law | Points: 10