First Amendment Rights - Section 3
Final Examination
Professor Harpaz
December 12, 2006
Question I
(Suggested time: 60 minutes) (50 out of 150 total exam points)
Over the past several years, funerals in the City of
Springdale have been the target of protest activities by several
groups. The members of one group, the Survivors Network of those
Abused by Priests, or SNAP, protest at the funerals of Catholic priests
with messages on signs that include “Pedophile Priests Should Rot in
Hell” and “God Hates Pedophile Priests.” Another group,
Springdale Heterosexuals Against Marriage Equality, or SHAME, attend
the funerals of gays and lesbians with signs reading “Gays and Lesbians
Should Rot in Hell”and “God Hates Same Sex Marriage.”
Both SNAP and SHAME are careful to limit their
protest activities to city-owned property such as sidewalks outside of
funeral homes and cemeteries. In addition, group members are
instructed to protest silently using signs rather than spoken words to
avoid disruption of the funerals they protest. Moreover, the
members of both groups are instructed by group leaders not to confront
funeral attenders or exchange words with them.
Despite these instructions, one recent protest by
SHAME did result in a confrontation between a protestor and a mourner.
The protest took place several feet from a memorial service held in a
city park. The confrontation was sparked when a mourner grabbed a
sign from one of the protesters and tore it up. The protester
then said to the mourner: “You fags deserve to die.” After this
exchange, the mourner’s friends quickly led him away and the
confrontation ended. Other than this one incident, funeral
protests by SNAP and SHAME have not involved such
confrontations.
Residents of Springdale were outraged by the funeral
protests which received extensive coverage by the news media and
demanded action from the Springdale City Council. After hearing
testimony from family members who have attended funerals where protests
were staged, the Springdale City Council recently enacted an ordinance
barring such protest activities at funerals. It provides as
follows:
1. This section shall be known as the Protection of Funerals Act.
2. This ordinance is enacted to prevent violent confrontations at
funerals, protect the privacy of funeral attenders and prevent adding
to the emotional distress of grieving family members and friends of the
deceased.
3. It shall be unlawful for any person to engage in picketing or other
protest activities within two hundred feet of or about any location at
which a funeral is held, within one hour prior to the commencement of
any funeral, and until one hour following the cessation of any funeral.
Each day on which a violation occurs shall constitute a separate
offense. Violation of this section is a class B misdemeanor.
4. For purposes of this section, "funeral" means the ceremonies,
processions, and memorial services held in connection with the burial
or cremation of the dead.
The ordinance took effect immediately, but since its enactment no
funeral protests have taken place.
Shortly after the enactment of the Protection of
Funerals Act, both SNAP and SHAME filed a lawsuit challenging the
ordinance on First Amendment grounds. You are a law clerk to the
judge assigned to hear the case. The judge asks you to write a
memorandum describing the First Amendment arguments that can be made by
SNAP and SHAME in challenging the Protection of Funerals Act as well as
the First Amendment arguments
that can be made by the City of Springdale in defending the ordinance.
Question II
(Suggested time: 60 minutes) (50 out of 150 total exam points)
It is a crime in the State of Northeast to engage in
target shooting at human images. The law applies to target
shooting at licensed gun clubs as well target shooting in a place where
it is lawful to fire weapons by persons who are licensed to use
firearms. It outlaws “shooting at targets that depict human
figures, human effigies, human silhouettes or any human images thereof,
except by public safety and law enforcement personnel in training or
performing in line with their official duties.”
The State of Northeast enacted the ban several years
ago as part of an effort to reduce gun violence. The law was
enacted after the state legislature heard testimony that indicated that
shooting at targets of human images desensitizes gun users to the harms
of shooting at real people and trains them to more accurately hit human
targets.
A lawsuit challenging the human images ban was
recently filed by Simulated Human Outdoor Targets, Inc. (SHOT), a
company that distributes human images printed on targets. One of
its most popular targets has an image of Adolph Hitler on its front,
and an account of Hitler’s restrictions on firearms on the back.
SHOT argues that those who buy the target shoot at the image of Hitler
in order to express their opposition to tyranny and restrictions on gun
use. Other popular images sold by SHOT include Saddam Hussein and
Osama bin Laden. They are part of a series of Terrorist Targets
sold by SHOT that are popular at gun clubs who host “War on Terror
Tournaments” for their members. In addition to its targets
depicting tyrants and terrorists, SHOT also produces a line of sexually
explicit targets usually purchased by individual licensed gun
owners. Targets in this series, called the XXX Marks the Spot
series, include nude male and female figures that include graphic
depictions of their genitals.
SHOT has filed suit challenging the
constitutionality of the human images ban under the First
Amendment. You are a law clerk to the judge assigned to hear the
case. The judge asks you to write a memorandum describing the First
Amendment arguments that can be made by SHOT in challenging the human
images ban as well as the First Amendment arguments that can be made by
the State of Northeast in defending the ban.
Question III
(Suggested time: 60 minutes) (50 out of 150 total exam points)
The Springdale Public Library is interested in
serving the Springdale community in a variety of ways beyond the loan
of materials from its library collection. The Library provides
various services to its patrons including literacy classes, tax
preparation clinics and flu shots. It also distributes free
written material provided by various organizations. It makes this
material available on a Material Distribution Table dedicated to this
purpose.
Many of the pamphlets and other pieces of literature
on the table, including tax forms, course schedules for continuing
education courses offered at local community colleges, and health
information from the Springdale Municipal Hospital, are provided by
various government entities. In addition, several of the flyers
are provided by private non-profit organizations that serve the
community including information about fuel assistance programs and
shelters for victims of domestic abuse. The Library does not
accept material from for-profit businesses since it does not want to
appear to endorse such businesses and does not have the resources to
verify the quality of the goods and services such businesses provide.
In order to place written material on the Material
Distribution Table, the material must be approved by the Head
Librarian, who must accept or reject material for distribution within 7
days after the request is made. The Library rules provide
that: “To be eligible for distribution on the Material
Distribution Table, the material must be provided by (1) a federal,
state or local government department, agency or entity; or (2) a
private non-profit organization that provides services to the
Springdale community. The material must have educational value or
describe services that are available to residents of Springdale in
areas such as health, education, housing, food, job placement, and
counseling.” Since the Table only has room for approximately 20
different stacks of written material, the Head Librarian reserves the
right to rotate the available material as necessary to provide a varied
array of material to library patrons. The decision by the Head
Librarian to accept or reject written material is final, although
subject to judicial review.
Ann Adams (AA) is a resident of Springdale.
She operates a for-profit job placement agency in Springdale. She
has submitted copies of a brochure about her agency to the Springdale
Public Library for placement on the Material Distribution Table.
In addition to information about her agency’s services, the brochure
also provides information about resume drafting and successful
interviewing. AA recently learned that her brochure has been
rejected by the Head Librarian on the ground that AA does not operate a
non-profit job placement agency.
AA has filed suit challenging the rejection of her
brochure by the Head Librarian as violative of her First Amendment
rights. You are a law clerk to the judge assigned to hear the
case. The judge asks you to write a memorandum describing the First
Amendment arguments that can be made by AA in challenging the rejection
of her brochure as well as the First Amendment arguments that can be
made by the Springdale Public Library in defending the decision to
reject the brochure.
END OF EXAMINATION