First Amendment Rights - Section 3
Final Examination
Professor Harpaz
December 14, 2010
Question I
(Suggested time: 60 minutes) (50 out of 150 total exam points)
The State of Stone has recently enacted a law
limiting the use of in-car video screens. The law, referred to as the
Video Image Safety and Unwelcome Activity Limitation (VISUAL) Act, has
two parts. The first part limits the location of such screens within a
vehicle so that no in-car video screen can be placed in a location
where it is visible by the driver while the driver is operating the
vehicle. This restriction was designed as a traffic safety measure to
eliminate one source of driver distraction. It excludes global
positioning systems designed to assist drivers in reaching their
destination from the definition of in-car video screens.
The second restriction addresses a different
problem. It prohibits the display of sexually explicit images on an
in-car video screen when the screen can be seen from outside the
vehicle. The definition of “sexually explicit images” is “the graphic
depiction of sex, including the visual depiction of sexual activity and
lewd exhibitions of nudity, that appears on a video screen for more
than a fleeting moment.” The Stone legislature added the ban on
sexually explicit images seen from outside the vehicle to the new law
when it received a significant number of complaints from drivers who
were driving next to vehicles in which such material was visible to
them. The drivers complained that the sexual content displayed on such
screens is often offensive to them and to the members of their family,
including their children. The screens are visible when passing a
vehicle or when stopped next to a vehicle at a traffic light, and are
even more visible at night than in the daytime. The state enacted the
ban after concluding that no safe and effective “self-help” technique
to block out such images while driving was available.
Alan Avery (AA) is the owner of a vehicle with video
screens installed in multiple locations within his car including one
visible to him when he operates his vehicle. AA acknowledges that he
often plays videos on the screens installed in his car, including
videos that contain material that falls within the definition of
“sexually explicit images.” He has brought suit challenging the
constitutionality of the VISUAL Act as a violation of the First
Amendment.
You are a law clerk for the judge assigned to the
case. The judge asks you to write an analysis of the First Amendment
arguments that AA can make to challenge the VISUAL Act and the First
Amendment arguments that the State of Stone can make in defending the
Act against a First Amendment challenge.
Question II
(Suggested time: 60 minutes) (50 out of 150 total exam points)
Springdale Beach Park is a large public park that
contains various facilities including a lake with a sand beach along
its shore. It is located in the City of Springdale. While the park is
popular all year long, its largest crowds visit in the summer. It
attracts upward of 250,000 visitors each year, many from neighboring
states. The Park is administered by the Springdale Beach Park
Commission (SBPC), a city agency that manages the park.
The Park also contains a number of buildings. One
building is used most frequently by visitors to the beach. It contains
changing rooms, rest rooms, lockers, a souvenir stand, and a large
snack bar. In the lobby of the building is a sitting area that contains
several display racks of brochures. The brochures are placed there by
the SBPC and copies are available at no cost to park visitors.
The display racks contain a variety of brochures.
Some of them are produced by the SBPC itself and include guides to the
park, maps of the area, and warnings about safe usage of the park
including advice on water safety and insect bites. Other brochures are
submitted by area businesses. They advertise local restaurants, places
to stay, shopping, and area attractions such as an amusement park, a
museum, a miniature golf course, a theater, and other sites that might
interest tourists.
The display racks were added to the lobby several
years ago at the urging of the local Chamber of Commerce. The Chamber
hoped that other area businesses might benefit from visitors to the
park. Each brochure must be submitted to the SBPC for approval prior to
being included in the display racks. The SBPC has rejected only 4
brochures since the display racks were installed. Two were rejected
because they were too large to fit in the space available in the racks,
one because it sought to advertise a local strip club that the SBPC
thought was not consistent with the message the SBPC wanted to
communicate, that Springdale was a place for wholesome entertainment,
and the final one because it was an advertisement for a political
candidate and the SBPC said it did not accept political campaign
advertising. The SBPC has no written policy about access to the display
racks and makes decisions on a case by case basis.
Recently, the SBPC received a request from Citizens
for a Clean Environment (CCE), a group of local citizens concerned
about the environment, seeking to add a brochure prepared by the group
to the display racks. The brochure is entitled “Tips for Avoiding
Asbestos Contamination at Springdale Beach Park.” It warns that pieces
of asbestos have been found along the lake’s shore and in the sand over
the years, likely the result of the park's location close to a site on
which a company once manufactured building materials containing
asbestos. The tips for avoiding asbestos exposure include showering
thoroughly before leaving the beach, changing all of your clothes in
the changing room before leaving the beach, placing them in a separate
bag or container with other items used at the beach such as towels, and
laundering these items separately.
After reviewing the brochure, the SBPC refused to
place the brochure in the display racks on the ground that it would
discourage park visitors. It added that studies of the beaches by
federal and state agencies, while finding asbestos present at low
levels, had not found levels of asbestos sufficient to present a danger
to human health. It acknowledged that until 2006 the display racks had
included a “fact sheet” about asbestos in the park that had been
prepared by state environmental and health agencies. The fact sheet
acknowledged the presence of low levels of asbestos in the park's
beach, but denied that it was a health
hazard.
After the SBPC turned down CCE’s request to include
its brochure in the display racks, CCE filed suit claiming its First
Amendment rights were violated. You are a law clerk to the judge
assigned to the case. The judge asks you to write an analysis of the
First Amendment arguments that can be made by CCE to support its claim
that the SBPC violated the First Amendment when it rejected CCE’s
request to include its brochure in the display racks and the First
Amendment arguments that can be made by the SBPC to defend its decision
to reject the brochure.
Question III
(Suggested time: 60 minutes) (50 out of 150 total exam points)
Morgan Mikhail (MM) went to downtown
Springdale for the purpose of preaching the gospel of Jesus Christ. MM
stood on the edge of a sidewalk near a bar called Rogue’s. It was a
busy Friday night, around 10:00 p.m., with lots of people milling about
at the various restaurants and bars in downtown Springdale.
Prior to speaking, MM approached Police Officer
David Baskin and informed him that he would be preaching. Officer
Baskin told him that he first had to obtain a permit, but MM ignored
this advice and began preaching. After a little while, MM became loud
and several people approached Officer Baskin to complain that MM was
calling them sinners. Officer Baskin responded by telling MM not to
disturb people and to do what he said he was going to do; that is,
quote Scripture. Officer Baskin then left and walked about two blocks.
Next, several women came running up to Officer Baskin asking him to
return to Rogue’s. These women stated that one of their boyfriends was
going to “kill” MM and that MM was yelling at people and calling them
names. When Officer Baskin arrived, he saw MM pointing at people in the
crowd, loudly calling people “sinners,” “whores,” and “prostitutes.” A
crowd of about thirty to forty people had gathered around MM. The crowd
was large enough to block pedestrians from walking along the sidewalk
without pushing through the crowd. People in the crowd were muttering,
and Officer Baskin heard one woman shout “shut up asshole.” Officer
Baskin then observed one of the men in the crowd moving toward MM.
Believing that MM was about to be attacked, Officer Baskin approached
MM, informed him that he was causing a disturbance, and asked him to
stop. In response, MM started quoting from the New Testament to Officer
Baskin. Officer Baskin then said, “Look, you’re preaching to the wrong
guy. I’m Jewish. As far as I’m concerned, that’s a book of fiction.” MM
ignored Officer Baskin and continued preaching. Officer Baskin then
arrested him.
MM was charged with demonstrating without a permit
and breach of peace. The Springdale permit ordinance provides as
follows:
Sec. 21. Permits for street demonstrations and events:
(a) It shall be unlawful to organize, conduct or
participate in any demonstration or event on the streets of the city
unless a permit for such demonstration or event has been issued by the
city manager or his designee. A demonstration or event permit shall be
issued only after an application has been submitted on a form provided
by the city no later than 10 days prior to the date on which the
demonstration or event is proposed to be held.
(b) For purposes of this section, “demonstrations
and events” shall mean any parade, demonstration, special event,
festival, celebration, block party, or other large gathering having a
common purpose, design, or goal, which substantially inhibits the usual
flow of pedestrian or vehicular traffic.
(c) The city manager or his designee shall promptly
grant such permit for a particular location unless the planned
demonstration or event creates a substantial risk to public
safety.
The Springdale breach of peace ordinance makes it an offense to “engage
in conduct that incites or tends to incite an immediate breach of the
peace or use words which by their very utterance incites or tends to
incite an immediate breach of the peace.”
MM has filed a motion to dismiss the charges against
him on the ground that his sidewalk preaching was protected by the
First Amendment. He argues that the First Amendment does not require
him to obtain a permit before preaching and that the content of his
speech was protected by the First Amendment and cannot be punished as a
breach of the peace. You are a law clerk for the judge assigned to the
case. The judge has already ruled that the permit ordinance, as
previously interpreted by the state courts, applies to MM’s activities.
The judge asks you to write an analysis of the First Amendment
arguments that can be made by MM in arguing that each of the charges
against him should be dismissed on First Amendment grounds as well as
the arguments that can be made by the City of Springdale in arguing
that the First Amendment does not require the dismissal of the charges
it has brought against MM.