Professor Leora Harpaz
Sample Exam Answer
Note: This sample answer is an ideal answer that covers all of the issues for which points have been allocated. The answer is much more than would be necessary to receive an “A” grade for the question on the exam since typically an “A” grade for the question would only require that a student receive 30 or so points out of the available 50 points for the question.
Bad Frog will argue that its Bad Frog label design (including the frog giving the finger) is fully protected speech. The gesture is a traditional form of body language akin to speech itself and conveys a satiric attitude by juxtaposing a frog with a human gesture of defiance. In this sense the frog logo goes beyond commercial speech since it is not a product claim, but a satiric message that transcends the specific product it is attached to.
If the Bad Frog is fully protected speech as argued above, Bad Frog will argue that the government is regulating that speech because of its content because it claims exposure to the speech is harmful to children of tender years. Since it is a content-based regulation of fully protected speech, the ban would have to satisfy strict scrutiny review.
Under strict scrutiny, the government would be required to show it is using a narrowly tailored (the least restrictive) means to achieve a compelling governmental interest. In this case, the government’s interest is the protection of children, which is usually a compelling interest. However, Bad Frog will argue that it is not clear that exposure to the frog will be harmful to children. The extended finger on the frog logo will be meaningless except to children who are already familiar with the gesture. If they are, a little additional exposure won’t be harmful. If they aren’t, they may not notice the frog or understand what it means. If asked, a parent could simply say that the frog is making a rude gesture that the child shouldn’t make. Even if the interest is compelling, the means are not narrowly tailored because the ban is too broad. The government could allow sale from places that children are unlikely to be without an accompanying parent who can help them avert their eyes such as liquor stores and supermarkets (but not candy stores and toy stores). In addition, in all stores the government could require that Bad Frog candy be placed on a high shelf and out of the reach of children. All these regulatory methods would be less restrictive because they would interfere less with Bad Frog sales. For all these reasons, the government cannot satisfy strict scrutiny.
Bad Frog argues, in the alternative, that even if the speech is viewed as symbolic speech instead of fully protected speech, the ban should still be struck down. Under the Spence test, to be protected symbolic speech the frog logo must be intended to communicate a message and the message must be likely to be understood by its intended audience. In this case, the frog intends to communicate a particular message since that is what the company intended to accomplish by its choice of a logo which uses a very well known gesture and the message is understood which is why the frog is such a popular logo.
As protected symbolic speech, the regulation must satisfy the O’Brien test. Under that test, the government must show that the ban is designed to further a substantial interest, it is narrowly tailored to accomplish that interest and it must not be intended to suppress expression based on its content. In this case, Bad Frog argues that the regulation is specifically aimed at the expressive content of the communication because it is the rude message that the government is trying to keep children from seeing because the message is viewed as harmful to them. Because the regulation fails this prong of the O’Brien test, it must then satisfy strict scrutiny review which, as argued above, it cannot.
Bad Frog will also refute several of the government’s attempts to characterize the speech. First, if the government argues that the speech is obscene, Bad Frog will argue that despite the fact that giving the finger is a reference to a sexual act, it is not intended to appeal to the prurient interest and therefore cannot be viewed as obscenity just as Cohen’s jacket was not viewed as obscenity.
In addition, Bad Frog will argue that the speech is not fighting words because even though giving the finger could be a form of fighting words if part of a face to face exchange in which it was used as a personal insult, in this case the gesture is not intended as a personal insult and the gesture is not used by a living person who could be responded to violently.
Bad Frog will also argue that even if the speech is considered to be commercial speech, the government cannot satisfy the Central Hudson test because the regulation is designed to suppress a lawful and not misleading commercial message. Moreover, the ban is not narrowly tailored because it denies most adult access in the interests of protecting children and the government has not shown that exposure to the bad frog logo would be harmful to children. The logo is not pornography, does not use any specific profane word, and when encountered can be responded to by averting one’s eyes just as the Court suggested in Cohen v. California when the state argued that it needed to protect children from Cohen’s offensive jacket.
Bad Frog will also attack the form of the regulation. It will argue that the New York State Food Product Safety Authority (FPSA) is given the authority to act like a censor and that its ban operate like a prior restraint because it bans sale of the candy before it can be marketed. In addition, the FPSA appears to have unbridled administrative discretion to keep products off the market based on their labels. In addition, the criteria given for the decision to ban the product (“adversely effect the health, safety and welfare of young children”) is vague because no explanation is given of why exposure to the logo will have such adverse effects.
In response to all of Bad Frog’s arguments, the government will argue first that the speech is not protected by the First Amendment because it is a commercial identifier, but it does not communicate any information about the product it identifies and thus lacks the communicative content of an advertisement. However, in the alternative, the government will argue that if it is viewed as protected expression, it should be treated like commercial speech rather than fully protected speech because the logo is part of a commercial message used to identify and promote Bad Frog products, the motive of Bad Frog in utilizing the logo is economic, and it is used in connection with specific Bad Frog products. If it is characterized as commercial speech, it will be analyzed under the Central Hudson test.
Under the Central Hudson test used to analyze regulations of commercial speech, the government will concede that the logo is not false or misleading. However, it will argue that the regulation is designed to advance the substantial interests in protecting young children. It directly and materially advances that interest by preventing children from seeing the logo. Moreover, it is narrowly tailored since it allows the products to be sold to adults (who may give them to their children if they wish), but only prevents children from buying the products or seeing the products in places where candy is sold and where children may enter the store to buy candy.
The government will argue that even if the speech is not commercial speech that the logo is lesser value speech (profanity) that is on a product that is particularly aimed at a child audience. While a majority has not embraced the idea that restrictions on profanity should be analyzed under intermediate rather than strict scrutiny, there is precedent for such an approach. Much like the treatment of profanity on broadcast television, the restriction on the Bad Frog logo should be subjected to intermediate scrutiny. The logo is on a product that is marketed at a child audience and uses an animal (frog) that is particularly attractive to children and will attract them like favorite characters such as Kermit the Frog. Moreover, the government ban is not based on the message communicated (frog with an attitude), but on the manner used to communicate the message. For these reasons, the ban should be analyzed under intermediate scrutiny which it will satisfy, as seen above in the application of the Central Hudson test.
If the court considers the ban to be content-based and analyzed under strict scrutiny, the government will argue that the regulation satisfies that standard of review. The government has a compelling government interest because it is designed to protect the welfare of children and it is the least restrictive alternative because it only prevents young children from buying the candy and not adults and older children. Moreover, it only prevents the logo from being visible to children in stores where children are likely to be present. Adults and older children will have access to the candy in all places where it is currently sold and will be able to purchase it freely. The only inconvenience they will suffer is that they may have to ask for the product if it is behind the counter. Since there is nothing embarrassing about purchasing candy, this will not have a chilling effect on purchasers.
Finally, the government will argue that the ban is not a prior restraint. The candy can still be sold in a package with the Bad Frog logo in all locations and the regulation only alters the manner of its sale. Therefore, it is not a prior restraint. Moreover, the FPSA’s actions are not unconstitutionally vague since the agency clearly identified that it objects to the label because it contains profanity. This is a clear communication of the reason for the FPSA’s action.