First Amendment Rights
Final Examination
Professor Harpaz
May 2, 2012

Question I
(Suggested time: 60 minutes) (1/3 of total exam points)

    On December, 11, 2011, Andrea Atwood (AA) was arrested while participating in an Occupy Springdale demonstration that took place in an area known as “the Plaza.” The Plaza is across the street from the Springdale City Hall in downtown Springdale and is a small public park consisting of concrete walkways and sidewalks surrounding a grassy area. Benches line some of the walkways. The members of Occupy Springdale have protested peacefully in the Plaza holding signs on numbers of occasions without any arrests. On all of these occasions, including on December 11, Occupy Springdale has applied for and received a permit that the City requires to hold a demonstration consisting of more than 50 people in the Plaza.

    AA’s arrest on December 11 was due to the fact that she wrote in sidewalk chalk on one of the Plaza’s sidewalks. The message she wrote in red and green sidewalk chalk was “All I want for Christmas is a revolution.” She was observed writing the message by a Springdale police officer and was charged with violating Section 43 of the Springdale City Code. Section 43 prohibits the “writing, printing, marking, painting, stamping, or pasting any sign, message, notice, or advertisement upon the surface of any sidewalk or paved street in the City.”

    AA’s lawyer and the Springdale City Attorney agreed to allow AA to plead guilty to violating Section 43 and pay a small fine while preserving her First Amendment challenge to the constitutionality of Section 43 both on its face and as applied to AA. AA’s lawyer has presented evidence to show that no other person has ever been arrested or charged under Section 43 since it went into effect in 1985 despite the fact that there have been several examples of chalk art on city sidewalks that have been permitted and even promoted by the City. For example, for the last three years the Springdale Rotary Club has received a permit to conduct an annual sidewalk chalk art festival. At the Rotary Club festivals, the Club invites a limited number of artists to draw in sidewalk chalk on City sidewalks within the festival area, which has included the Plaza. The best chalk drawing receives the “Mayor's Award,” selected by the Mayor’s staff, and awarded by the Rotary Club. None of the artists who have participated in the Rotary Club’s art festivals have been arrested for violating Section 43.
    In addition, in 2009, when a Springdale sports team competed in post-season playoff games, the Office of the Mayor issued two press releases encouraging downtown businesses to showcase their community spirit and pride for the team by using sidewalk chalk to decorate the sidewalks in front of their business entrances with artwork in the team’s red and blue colors. While many businesses participated in this community pride activity, no one was arrested.  

    The City argues that AA’s chalk message violated Section 43 and that Section 43 does not violate the First Amendment either on its face or as applied to AA. The City has presented evidence that the City has made significant efforts to keep its streets clean in order to maintain the attractiveness of the City. Section 43 was enacted as part of a city beautification effort. It was enacted after a number of businesses wrote advertisements on the city streets and gang graffiti began to appear on city sidewalks. The City argues it has an adequate justification for regulating this manner of expression.

    The City also argues that the examples offered by AA’s lawyer of sidewalk chalk drawings did not result in arrests because they were temporary installations that were part of the City’s economic development efforts and were activities designed to attract residents and tourists to the downtown area of the City. Both the Rotary Club and the local businesses agreed to thoroughly clean the sidewalks at the conclusion of the activities. The City argues that the examples of permitted chalk drawings offered by AA’s attorney should either be considered government speech or speech in limited temporary public forums that are no longer in existence.

    You are a law clerk to the judge now hearing AA’s First Amendment challenge. The judge has asked you to write an analysis of the legal arguments that AA’s lawyer can make in arguing that Section 43 violates the First Amendment both on its face and as applied as well as the arguments that the City can make to defend Section 43.

Question II
(Suggested time: 60 minutes) (1/3 of total exam points)

    Chris Canter (CC) was walking on public sidewalks and distributing flyers in a residential neighborhood in the City of Springdale one day last month. The flyers said “Dead children are the best kind” and included pictures of several dead children who had been shot. The pictures were from news photos. A man who lived in the area told CC that he was upsetting his children and that CC should leave. CC replied that it was a free country and continued to distribute the flyers. The man then told CC that he was going to call the police if he didn’t leave. CC said to the man, “Up yours, you better watch out or I’ll break your neck.” After making this comment, CC ignored the man and continued walking down the street.

    A crowd began to gather and started shouting “leave, you pervert” at CC. Someone called the police and two police officers came to investigate. People in the crowd told the officers that CC was frightening their children, but refused to leave when he was asked to and that someone better get him out of the neighborhood. When the police officers spoke to CC, he told the officers that he had a right to be there and they should just leave him alone since he wasn’t breaking any laws. The officers told CC that they had received complaints about CC’s presence in the neighborhood and that it would be better if he left the area. CC replied, “It’s a free country. Get the hell away from me.” The officers arrested CC.

    The Springdale District Attorney’s Office is considering bringing criminal charges against CC, but the District Attorney is concerned that some or all of CC’s speech may be protected by the First Amendment. Possible charges against CC include charging him with breach of the peace, incitement to riot, fighting words, and criminal threats, all of which are crimes under state law.

    You are a law clerk in the D.A.’s Office. You have been asked to describe the arguments that are available to the City to argue that CC can be punished for the content of his speech without violating the First Amendment because his speech falls within one of the unprotected categories of expression as well as the arguments that can be made by CC to show that punishing him for the content of his speech would violate the First Amendment because his speech is protected by the First Amendment. Please be sure to separately consider the First Amendment status of all of CC’s speech in your analysis including the contents of the flyer he distributed, CC’s comments to the man who asked him to leave the neighborhood, and CC’s conversation with the police officers who arrested him. 

    You should assume for purposes of your analysis that the state laws that could be used to prosecute CC do not violate the First Amendment and that none of them can be subject to a successful facial attack. Therefore, the only issues in the case are whether these laws could be applied to any of CC’s speech without violating the First Amendment.

Question III
(Suggested time: 60 minutes) (1/3 of total exam points)

    Digital billboards have been gradually replacing conventional billboards throughout the country. Digital billboards are built, sized, and placed like traditional billboards. However, instead of consisting of an ad printed on a piece of vinyl, digital billboards have an LED display screen and ads are loaded into the billboard’s electronic memory. Each ad is displayed for anywhere from 6-10 seconds and rotates with other ads on the same billboard. Therefore, 6 to 10 ads are displayed in rotation in a single minute. The ads are also much brighter than printed ads because the screen is brightly lit with LEDs (light-emitting diodes).

    Digital billboard advertising is more expensive than conventional billboard advertising and does not provide an exclusive display for an advertiser. Nevertheless, advertisers increasingly prefer digital billboards. Ads can be changed frequently by just uploading a new ad, the ads are more eye catching during the day as well as at night, and digital billboards have the ability to display anything which a television or computer monitor can, including “moving images.” Thus far, commercial advertisers are the principal users of digital billboards.

    Digital billboards began appearing in the City of Springdale about two years ago. After a series of traffic accidents, the Springdale City Council became concerned that the recent appearance of digital billboards in the City to replace conventional billboards was responsible for the spike in traffic accidents. Two properties of the digital billboards raised concerns: the intense brightness of the display and the movement associated with the ads, either because the ads change frequently or because individual ads include motion. As a result, the City Council conducted an investigation into the safety hazards associated with this new type of billboard.

    First, the City Council appointed a study committee to review existing studies of digital billboards. It learned that studies conducted by the billboard industry had concluded that digital billboards are as safe as conventional billboards. Nevertheless, the Code of Industry Practices of the Billboard Association, a trade group representing the billboard industry, now states that full-sized billboards should not feature animation, flashing lights, scrolling, or full-motion video. The Code also recommends billboard brightness limits. The study committee also learned that in 2009 the federal government reviewed the scientific studies that had been conducted by the billboard industry as well as by independent scientists and concluded that the scientific literature is inconclusive as to the safety issues created by digital billboards. The Federal Highway Administration began conducting its own study in 2011, but no results have been announced.      

    In light of this inconclusive data, the City conducted its own study. It compared accident data in the vicinity of three digital billboards with data from those same locations before digital billboards replaced conventional billboards. In each of the three locations, accidents rates increased by 35 percent. The study also tried to eliminate from the data accidents with some other known cause, such as drunk driving or mechanical failure. This revised data showed an even higher rate of increase in the number of accidents after digital billboards were installed. 

    As a result of this study, the City Council adopted a new ordinance. The ordinance provides that “No commercial advertisements may be posted on billboards visible from public roads if those billboards contain changing digital displays.” Violations of the new ordinance are punishable by a fine of up to $10,000.

    Bob’s Billboards, Inc. (BB), a company that has erected 5 digital billboards in the City of Springdale, has filed suit against the City arguing that the digital billboard ordinance violates the First Amendment. 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 BB as well as the arguments that can be made by the City of Springdale to argue that the ordinance does not violate the First Amendment.