First Amendment Rights - Section 3                                      Final Examination

Professor Harpaz                                                                    December 14, 2000



Question I

(Suggested time: 60 minutes) (50 out of 150 total exam points)


            Under Section 97 of the Municipal Code of the City of Plainsville, it is a crime to engage in public profanity or drunkenness. Section 97 provides:

     

If, in any public place, any person shall profanely swear or curse, or use vulgar and indecent language, or be drunk, in the presence of two (2) or more persons at least one of which shall be a minor under 15 years of age, he shall, on conviction thereof, be fined not more than one hundred

dollars ($ 100.00) or be imprisoned in the county jail for not more than thirty (30) days or both.


            The ordinance was enacted in 1903. At the time, Plainsville was being transformed from a rough and tumble frontier town to a more sophisticated city. The limited legislative history available reveals that the ordinance was enacted to protect children from offensive public behavior and to raise the level of decorum and civility in public places in the city in order to establish a more refined moral tone for the community.


            Recently, Marion Lenox was distributing leaflets on the city streets of Plainsville. The leaflets protested a tax hike proposed to raise the salaries of city employees, including the police. As she distributed her leaflets, a police officer stopped her and asked her what the leaflets said. Ms. Lenox responded to the officer, “The leaflets say you’re not worth shit and oppose that fucking pay raise.” The confrontation between Ms. Lenox and the police officer was overheard by a man and his two young children, ages 6 and 8.


            Ms. Lenox has been charged with violating Section 97 of the Plainsville Municipal Code because she engaged in public profanity in violation of the ordinance. In defending the charges filed against her, she is challenging the constitutionality of the ordinance both on its face and as applied as violative of the First Amendment to the United States Constitution.


            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 Marion Lenox in challenging the constitutionality on First Amendment grounds of Section 97 both on its face and as applied to her as well as the arguments that can be made by the City of Plainsville in defending the ordinance both on its face and as applied to Marion Lenox.




Question II

(Suggested time: 60 minutes) (50 points out of 150 total exam points)

 

            The State University of Northeast School of Law is a state-operated law school in the State of Northeast. Since 1985, the law school has had a policy which provides that at the beginning of every academic year each official student group is entitled to apply for a bulletin board in the law school for its exclusive use and under its exclusive control. In order to qualify for a bulletin board, a student group must file an application stating the names, signatures, and student identification numbers of at least ten students who are members of the group. The application also must include the name of a faculty advisor and a copy of the group's constitution. Each official student group is then assigned a bulletin board identified by the name of the group. The assigned group has exclusive control over what information is posted on its bulletin board. Among the official student groups that currently have been assigned a bulletin board are the Federalist Law Society, the National Lawyers Guild, the Multicultural Law Student Association, the Gay and Lesbian Law Student Association, the Environmental Law Society, the International Law Society, and the Women’s Law Association.


            In additional to the specific bulletin boards assigned to official student groups, the law school also provides a general notice bulletin board where individual students can post notices pertaining to items for sale, apartments for rent, car pool requests and other commercial and informational notices that are not issue-oriented and do not contain political advocacy.


            Recently, members of the Women’s Law Association (WLA) participated in a rally in support of abortion rights. The rally was prominently promoted on the Women’s Law Association bulletin board. In response to the pro-choice rally, Bill Boxer, a law student who is not a member of any official student group, sought permission to post a notice about a pro-life anti-abortion rally on the Women’s Law Association bulletin board. The WLA rejected the request. Bill Boxer then asked the Dean of the School of Law to overrule the WLA, but was told that official student groups had been delegated absolute control over their bulletin boards by the law school. Mr. Boxer then sought permission from the Dean to post his notice on the general notice bulletin board, but was turned down because the notice was issue-oriented and contained political advocacy.


            Bill Boxer has filed a lawsuit against the State of Northeast School of Law claiming that the decision of the law school to not allow him to post his notice about the anti-abortion rally on either the WLA bulletin board or the general notice bulletin board violated his rights under the First Amendment to the United States Constitution.


            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 available to Bill Boxer to challenge the law school’s rejection of his anti-abortion notice on both the WLA bulletin board and the general notice bulletin board as well as the First Amendment arguments available to the law school in defense of its decision.



Question III

(Suggested Time: 60 minutes) (50 points out of 150 total exam points)


            In recent months, the Pinewood neighborhood of the City of Springdale has been the site of community protests against the police. The protests are in response to three recent shootings of residents of the Pinewood neighborhood by Springdale police officers. The officers claim they acted in self defense. However, the community claims the officers overreacted based on unjustified racial stereotypes. The protests have been organized by a local citizen advocacy group called Pinewood Opposition to Insensitive Neighborhood Treatment (POINT). The president of POINT is Carl Clement.


            Last Sunday, POINT, spearheaded by Carl Clement, organized another protest against police behavior. The protest was called the “Bloody Sunday March.” On that day, approximately 100 protesters marched in a single file through the sidewalks of the Pinewood neighborhood to the Pinewood Police Station. POINT gave each marcher a large bag of crumbled up balls of bright red paper. The bag was black with bright red drops and bore the words, “Our blood is on your hands.” Carl Clement instructed the marchers to drop the red balls of paper on the sidewalk as they marched along leaving a trail of red paper balls on the streets. When the marchers arrived at the police station, they continued to drop balls of paper on the sidewalk in front of the police station until the sidewalk was almost completely covered with red paper balls. Carl Clement then addressed the marchers as well as a crowd of approximately 200 onlookers and spoke against the police. The protest ended peacefully.


            Several days after the Bloody Sunday March, Carl Clement, as president of POINT, was charged with two misdemeanors: public littering and failing to obtain a special event permit. The City of Springdale anti-littering ordinance makes it a misdemeanor punishable by fine to “To knowingly cast or place in the streets of the city, the footways thereof, or any public area, any item including but not limited to food, food wrapper or container, tobacco product, paper or paper product, or other waste.” Violation of the ordinance results in a fine of twenty (20) dollars for each and every offense. A separate offense is committed for each item of waste disposed of in violation of the ordinance. POINT estimates that marchers dropped approximately 5000 red paper balls on the sidewalks during their protest. If each red paper ball is a separate offense, Carl Clement and POINT could be fined as much as $100,000 under the anti-littering ordinance.


            POINT has also been charged with failing to obtain a special event permit. Under city ordinances, “a person or group of people who engage in conduct which has the effect, purpose or propensity to draw a crowd of onlookers” is required to apply for a special event permit at least 10 days in advance of the event. The city can refuse to issue a permit only if (1) another event has already been scheduled for that same time and place, (2) the city would be unable to provide adequate police protection for the event to guarantee the security of its citizens, or (3) the location of the event is unsuitable because the proposed event is of such a nature or duration that it cannot reasonably be accommodated in that location. The city is required to grant or refuse the permit request no more than 5 days prior to the event. If the city rejects the request for a permit, judicial review is available on an emergency basis. In that review, the burden is on the city to justify its decision to deny a special event permit based on the criteria enunciated in the ordinance. POINT admits that it did not apply for a special event permit before holding the Bloody Sunday March.


            Carl Clement and POINT have filed suit against the City of Springdale. Their lawsuit claims that (1) the application of the Springdale anti-littering ordinance to the Bloody Sunday March violates their First Amendment rights and (2) the special event permit law is unconstitutional on its face in violation of the First Amendment.


            You are a judge assigned to the case. The judge has asked you to write a memorandum of law detailing the First Amendment arguments available to Carl Clement and POINT in challenging both the application of the anti-littering ordinance to the Bloody Sunday March as well as the facial validity of the special event permit ordinance. Your memorandum should also describe the First Amendment arguments available to the City of Springdale in defense of the application of the anti-littering ordinance to the Bloody Sunday March as well as its arguments for upholding the facial validity of the special event permit law.

 


END OF EXAMINATION