First Amendment Rights - Section 1

Final Examination

Professor Harpaz

December 17, 2003


Question I

(Suggested time: 60 minutes) (40 out of 120 total exam points)


            The Granville Kiwanis Club sponsors an annual Thanksgiving Celebration in the Village of Granville, attracting a crowd estimated in the thousands. The celebration is in the “nature of a street fair” and occurs in a two-block area of downtown Granville over several days. Each year the Granville Kiwanis Club obtains a “street closing permit” to put on its Thanksgiving Celebration. During the Celebration, the two-block area is closed to vehicular traffic.


            Charles Chester characterizes himself as a “confrontational animal rights activist.” He travels around the country to heavily attended events that Mr. Chester believes involve cruelty to animals. When Mr. Chester speaks at these events, he positions himself in a central location and uses a provocative speaking style that invites audience participation. He also uses props including pictures of slaughtered animals.


            Last year Mr. Chester attended the annual Thanksgiving Celebration sponsored by the Granville Kiwanis Club. While there, he spoke at various locations in the two-block area. He drew significant crowds of observers. Many observers were angry at Mr. Chester for interfering with the festive Thanksgiving occasion and showing photos of slaughtered turkeys that could be seen by all attenders including young children. Village officials also became concerned that the crowds who stopped to listen to Mr. Chester obstructed the flow of pedestrian traffic in the area set aside for the Thanksgiving Celebration.


            After last year’s Thanksgiving Celebration, the Village of Granville enacted an ordinance which provides that during an assemblage for which a “street closing permit” has been obtained, the Village may, in order to reduce congestion, confine public speaking to a designated public speaking area. A person seeking to use the designated public speaking area must request a permit from the Village Manager by filing a request no later than 2 hours prior to the time the applicant wishes to speak in the designated area. The Village Manager shall grant all such permit requests, without discretion, on a first-come, first-serve basis, permitting only one speaker at a time to use the designated public speaking area. Permits shall be granted for specific periods of time, the time intervals to be designed to make sure that all persons requesting a permit shall be able to speak for an equal amount of time. When an area has been closed pursuant to a street closing permit and a public speaking area has been designated, anyone who engages in public speaking outside the designated public speaking area may be prosecuted for disorderly conduct after receiving an initial warning.


            As it had in the past, this year the Granville Kiwanis Club applied for and received a street closing permit so it could conduct its annual Thanksgiving Celebration. The Granville Village Manager designated a roped-off area on the easternmost edge of the two-block area set aside for the Thanksgiving Celebration as the designated public speaking area. No one requested a permit to speak in the designated area. During the Celebration, Mr. Chester arrived in Granville. He did not apply for a permit to use the designated public speaking area. He ignored the area and began to speak in a location that was close to the center of the Thanksgiving Celebration and where a large number of people had gathered. Shortly after Mr. Chester began to speak, he was warned that he could not speak outside the designated speaking area, but he continued to speak anyway. He was in the process of informing the crowd that Thanksgiving should be renamed “Cruelty to Turkey Day,” a comment that was greeted with laughter by the crowd that had gathered to hear him, when he was arrested and charged with disorderly conduct.


            Mr. Chester has raised a First Amendment defense to the disorderly conduct charge. You are a law clerk to the judge assigned to the case. The judge has asked you to write a memorandum of law describing the First Amendment arguments available to Mr. Chester in defending against the disorderly conduct charge and the First Amendment arguments available to the City of Granville in refuting those arguments.


Question II

(Suggested time:75 minutes) (50 out of 120 total exam points)


            The City of Springdale, through its Springdale Arts Commission (SAC), decided to organize a public art exhibit. The purpose of the exhibit was to “showcase the whimsical and imaginative side of public art, to increase tourism and to have fun.” The exhibit was to feature 100 polyurethane animals in the shape of lions and tigers. The animals were to be displayed throughout the Springdale downtown business area. Each animal was four feet tall and five feet long. The Commission asked artists and anyone else wishing to participate in the planned display to submit a drawing of the design they would paint on one of the lions or tigers. The designs were to be publicly displayed and members of the public could vote on their most favorite and least favorite designs. However, the public vote was advisory only and the final selections were to be made by the members of SAC. Once the selections were made, local residents and businesses would be asked to sponsor the animals. The cost of sponsorship was $1000 per animal. Each sponsor would be recognized with a small bronze plaque that would be placed on the base of the animal.


            The design guidelines for submissions specified that the designs “could not contain direct advertising or promotion of any product, service, or company name.” SAC did not want the artistic purity of the competition to be sullied by turning the lions and tigers into commercial billboards for product advertisements. In addition, SAC was worried that it would appear to be promoting particular products. Furthermore, SAC did not want to either discourage potential sponsors from signing up by having the animals used as promotions for competing products and businesses or encourage potential sponsors to believe they could sponsor an animal on the condition it would advertise their business. In addition to the advertising ban, the designs were limited to “expression protected by the First Amendment to the United States Constitution.” Once a design was found to comply with the design guidelines, it would be considered based on its artistic merit, creativity, and whimsy.


            Over 500 designs were received by the deadline for submissions. All of the submissions were placed on display so the public could vote on their most and least favorite designs. Since public interest in the designs was high, thousands of votes were cast. After the public display period ended, SAC reviewed the designs to eliminate those that failed to comply with the design guidelines. It then made its final selections from the remaining designs and announced the 100 winning designs.


            Bob Brandon is a local Springdale artist. He submitted a drawing of a design he proposed for one of the tigers. His design, called “American Icon,” was decorated to look like Tony the Tiger, a figure that has been used by the Kellogg Company since 1952 to advertise its Frosted Flakes brand of cereal and for other promotional purposes. Mr. Brandon received permission from the Kellogg Company to incorporate Tony the Tiger in his design submission. Tony is one of the most recognized and best loved advertising icons in the history of the advertising business. In Mr. Brandon’s design, the tiger has a box of Frosted Flakes cereal with his picture on the box in his paw and is pouring a bowl of cereal while he mouths his famous line - They’re Gr-r-reat! A group of neatly dressed children, painted to look like children in a classic television show from the 1960's, are looking admiringly at Tony and his bowl of cereal. The box of cereal that Tony is holding in Mr. Brandon’s design is an exact replica of the Frosted Flakes box.


            When Mr. Brandon’s design was not among the 100 winning designs, he contact SAC. He was told that his design was excluded because it violated one of the competition guidelines which specified that a design “could not contain direct advertising or promotion of any product, service, or company name.” SAC did, however, acknowledge that his design was one of the most popular with the voting public. It also acknowledged that some of the winning designs incorporated public health themes such as the “L-Cool Lion” who is painted wearing sunglasses and hip-hop clothing and rapping: “Smoking ain’t cool, it makes you sick. It’s just for fools, not those who click.”


            Mr. Brandon has filed suit challenging the exclusion of his design on First Amendment grounds. You are a law clerk to the judge assigned to the case. The judge asks you to write a memorandum of law detailing the First Amendment arguments that can be made by Bob Brandon in challenging the exclusion of his design from the public art exhibit sponsored by SAC as well as the arguments that can be made by SAC in defense of the exclusion of Mr. Brandon’s design.


Question III

(Suggested time: 45 minutes) (30 out of 120 total exam points)


            In answering this question, you should assume the same facts as in Question II above. In addition to those facts, SAC also excluded two other designs on the ground that they did not contain “expression protected by the First Amendment to the United States Constitution.” Those designs were:


(1) a design for a “Terrorist Tiger.” In the design, the tiger is painted wearing the outfit of a suicide bomber with explosives strapped to his chest. The tiger’s back contains the following text: “Do not touch me. If you do, I will explode and you may be killed.”


(2) a design for a “Lustful Lion.” In the design, the lion is painted with his genitals in a state of arousal. A bubble near his head visualizes his thoughts. It contains a painting of a nude woman masturbating while staring at the picture of a lion.


            The artists of both designs have also brought suit against SAC. You are a law clerk to the judge assigned to both cases. The judge has asked you to present her with arguments in favor of the Terrorist Tiger and the Lustful Lion being expression protected by the First Amendment as well as arguments that the Terrorist Tiger and the Lustful Lion are not expression protected by the First Amendment.


END OF EXAMINATION