First Amendment Rights - Section 1

December 12, 2001

Professor Harpaz

Final Examination



Question I

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


 In the wake of the September 11th terrorist attacks on the Pentagon and the World Trade Center, a group called Defense of America (DOA) was formed. The group advocates deportation of all non-citizen Arabs who reside in the United States, even those who are permanent residents.


 DOA has held a series of rallies urging the government to take aggressive action against non-citizen Arab residents including rounding up and imprisoning all non-citizen Arabs pending deportation. At a recent rally in a public park in the City of Springdale, Tom Morgan, the head of DOA, gave a speech before an audience of approximately 400 people. The audience contained hundreds of members of DOA and an equal number of nonmembers curious about what Morgan had to say. Ten police officers were also present to observe the rally.


 Tom Morgan’s speech at the rally detailed DOA’s political philosophy and included the following remarks:


Non-citizen Arabs residing in the United States boarded and flew the planes that attacked America. We must make sure that nothing like that ever happens again. If the government isn’t able to protect us from further attacks, we must protect ourselves. I would be proud of any American who took up arms to defend America from the enemies who have invaded our homeland. Attacks on non-citizen Arabs have occurred and more must occur if we are to make America safe again. Liberals in this country whine about the loss of civil rights when the government takes our enemies into custody. The only civil right that matters is the right to defend ourselves against the enemy within. I urge you all to take action to defend our country. Join with DOA in our fight for America’s future.


 Towards the end of the speech a man in the audience stepped forward to make a statement. He announced that he was an Arab who had lived in the United States for 20 years and that he had just as much right to be in the United States as anyone else. Mr. Morgan responded to his comment by saying “It’s damned Arabs like you that are attacking America. You should go back to where you belong and DOA will make sure that you leave the country, in the words of President Bush, dead or alive.”


 After this exchange, a few members of the crowd began to boo and hiss, the crowd grew noisier and some scuffling occurred. At this point the police intervened. They asked Mr. Morgan to cease his remarks, they attempted to control the crowd and they called for additional police to come to the scene of the rally. When Mr. Morgan refused the police request to cease speaking, the officers forcibly removed him. After he was removed, the police were able to get the audience to calm down and disperse without any further problems.


 You are a research assistant to the Springdale District Attorney who is considering whether or not to indict Mr. Morgan and charge him with various offenses including disorderly conduct (“a person shall be guilty of disorderly conduct if he or she does any act in such an unreasonable manner as to alarm another and threaten a breach of the peace”), fighting words (“it shall be a crime to utter words directed at a particular person, such as epithets and personally abusive language, in a face-to-face exchange in a public place which words are likely to cause an average addressee to resort to violence”) and advocacy of lawlessness (“it shall be a crime to advocate the duty, necessity or propriety of imminent lawless action as a means of accomplishing political reform where such action, if it occurs, will result in serious injury to persons or property”). The District Attorney tells you that before she makes her decision about whether to indict Mr. Morgan she would like to know whether Mr. Morgan’s speech at the rally, including his remarks to the crowd and his response to the audience member, can be punished consistent with the First Amendment to the United States Constitution.


 She asks you to write a memorandum of law detailing the First Amendment arguments available to Mr. Morgan to support his claim that his speech was fully protected and cannot be punished consistent with the First Amendment, as well as the arguments available to the City to support the City’s claim that Mr. Morgan’s speech was not protected by the First Amendment and that he can be punished for his speech without violating the First Amendment.



Question II

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


 Several years ago, the City of Springdale adopted a Street Closing Ordinance. The Ordinance provides as follows:


(A) Permit Required. It shall be unlawful for persons to assemble or congregate in crowds in such numbers as to block the use of any sidewalk or street of the city without a permit from the city manager issued pursuant to this section.

 

(B) Grant or Denial of Permit. The city manager shall grant the requested permit within 5 business days of receipt of the permit application if the event or activity for which it is requested satisfies the following conditions:

 

(1) It will not unreasonably interfere with the flow of vehicular or pedestrian traffic;

(2) It will not unreasonably deny access to any properties or areas of the city by either vehicular or pedestrian traffic;

(3) It will not cause disruption of ordinary commercial and recreational activities in surrounding areas; and

(4) It will not cause imminent danger or health hazard to any person and will not damage any public or private property.

 

(C) If the city manager finds the planned event or activity violates any of the above conditions, he or she shall inform the applicant that the permit will not be granted and request the city attorney immediately to apply to the superior court for an order enjoining the applicant and other interested persons from conducting the planned event or activity. The city attorney shall make every reasonable effort to assure that such judicial review is conducted on an expedited basis.


 Last month, Spencer Tunick, an internationally recognized photographer, planned to photograph 100 nude models, 50 adult men and 50 adult women, shortly after dawn on a street in the business district of the City of Springdale. The nude models were to be arranged in the design of an American flag. They were to have their bodies shaved and painted either red, white or blue from head to toe, as required by the design.

 

To carry out his plan, Mr. Tunick applied for a Street Closing Permit for a period of 2 hours from 5 to 7 A.M. on a Monday morning in November. The City Manager denied Mr. Tunick’s request for a permit on the ground that his request did not satisfy Sections (B) (3) and (4) of the Street Closing Ordinance. The City Attorney, pursuant to Section (C) of the ordinance, thereafter immediately filed an action in the superior court for an order enjoining the taking of the photograph. While that action was pending in the superior court, Mr. Tunick filed suit in federal district court challenging the constitutionality of the Street Closing Ordinance both on its face and as applied to him.


 You are a law clerk to the judge assigned to Mr. Tunick’s lawsuit challenging the constitutionality of the Street Closing Ordinance on First Amendment grounds. The judge asks you to write a memorandum of law detailing the First Amendment arguments available to Spencer Tunick in challenging the constitutionality of the Street Closing Ordinance both on its face and as applied to him, as well as the First Amendment arguments available to the City of Springdale in defense of the facial validity of the ordinance and the application of the ordinance to Mr. Tunick.



Question III

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


 Five years ago, the Board of Education of the City of Springdale passed a resolution entitled “Educating for Diversity.” The resolution specified that the Springdale school district’s multicultural and human relations education policy guarantees that “each student has equal access to a quality education and opportunity to participate fully in the academic and social activities of his or her public school and school policies and practices shall foster a climate that reduces fears related to difference and deters name calling and acts of violence or threats motivated by hate and bigotry.” In keeping with its policy, the Board designated October of each year as Gay and Lesbian Awareness Month.


 As part of the recognition of Gay and Lesbian Awareness Month, the principal of Springdale High School, a public high school that is part of the Springdale school district, created a Gay and Lesbian Awareness bulletin board. The board was for the use of teachers at Springdale High, who were encouraged to post materials on the board that promoted the themes of Educating for Diversity and Gay and Lesbian Awareness Month. Teachers were permitted to post items on the board without the prior approval of the school principal. However, the principal, Mary Crosby, had the ultimate authority over the content of the Gay and Lesbian Awareness bulletin board, as well as other bulletin boards throughout the school.


 Throughout the month of October, teachers at Springdale High posted a variety of items on the Gay and Lesbian Awareness bulletin board. These items included a poster titled “Diversity is Beautiful,” a flyer explaining gay and lesbian symbols including the pink triangle and the Greek letter Lambda, a bar chart reflecting statistics on hate crimes, a laminated felt rainbow flag with the Greek letter Lambda, a newspaper article describing the approval of domestic partner benefits by the City of Springdale, a sheet of paper identifying famous gays and lesbians in history and the text of the “Educating for Diversity” resolution.


 Robert Downs is a teacher at Springdale High School. Mr. Downs objected to the recognition of Gay and Lesbian Awareness Month. To reflect his views, he posted three items on the Gay and Lesbian Awareness bulletin board. They included an article stating that 60 percent of Americans believe that homosexuality is immoral, a sheet of paper describing anti-sodomy laws throughout the United States and a newspaper editorial condemning same-sex marriage.


 Shortly after Mr. Downs posted the three items on the bulletin board, the school principal received several complaints from students and teachers about his postings. After examining the three items, the principal removed the three items on the ground that they were inconsistent with the purpose of the Gay and Lesbian Awareness bulletin board. No other items posted on the board were removed by the principal.

 

Mr. Downs has filed a lawsuit against the Board of Education of the City of Springdale, Springdale High School and Mary Crosby, the high school principal. His suit alleges that the removal of the three items he posted on the Gay and Lesbian Awareness bulletin board violates 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 describing the First Amendment arguments that can be made by Mr. Downs in challenging the removal of the three items from the bulletin board, as well as the First Amendment arguments that can be made by the Board of Education, Springdale High School and Mary Crosby in defense of her actions in removing the three items.


END OF EXAMINATION