First Amendment Rights- Section 3

December 19, 2002

Professor Harpaz

Final Examination



Question I

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

 

In the wake of complaints from constituents about the increasing aggressiveness and persistence of persons making telephone solicitation calls, the State of Northeast recently enacted a statute that regulates telephone solicitations. Under the terms of the statute, the Northeast Call Annoyance Limitation Legislation (NOCALL), a person placing an unsolicited telephone call to a Northeast resident to solicit a contribution on behalf of a charity or non-profit organization or to offer any commercial product or service for sale must first identify the caller and the organization or business on whose behalf the call is being made, state the purpose of the call, and briefly describe the charity or cause on whose behalf funds are being solicited or any product or service being offered for sale. Thereafter, if the person receiving the telephone call indicates that he or she does not want to hear about the charity, cause, goods, or services, the caller shall not attempt to provide additional information during the conversation about the charity, cause, goods, or services, but shall instead terminate the call immediately.

 

The statute also contains restrictions on future calls. In the case of calls to offer any commercial product or service, if the recipient of the call requests that he or she not receive any future calls, the caller and the business on whose behalf the call is being made must not call that telephone number again for a period of one year from the date of the call. In the case of solicitations on behalf of charities or non-profit organizations, if the recipient of the call requests that he or she not receive any future calls, the caller and the charity or non-profit organization on whose behalf the call is being made must not call that telephone number again for a period of six months from the date of the call. A violation of the statute is a Class A misdemeanor and an unfair and deceptive act or practice for purposes of the Northeast Deceptive Trade Practices Act.

 

Shortly after the enactment of NOCALL, a facial challenge to the legislation was instituted by a group of plaintiffs including: (1) the Northeast Coalition for the Homeless, a Northeast charity that solicits contributions over the telephone to help it feed and house homeless persons in the state; (2) Kerry for President, a Political Action Committee that is raising funds to support John Kerry’s candidacy; (3) Allied Carpetcleaning, Inc., a business that regularly advertises its services through telephone solicitations; and (4) Harold Moore, a Northeast resident who wishes to be solicited without government interference. The plaintiffs claim that the statute violates their 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 available to the Northeast Coalition for the Homeless, Kerry for President, Allied Carpetcleaning and Harold Moore in challenging NOCALL and the First Amendment arguments available to the State of Northeast in defending the constitutionality of the statute on First Amendment grounds.

 


Question II

(Suggested time: 105 minutes) (70 points out of 120 total exam points)

 

Last year on November 19, 2001, an employee of the Springdale City Clerk’s Office who had recently been dismissed, entered the crowded lobby of the Springdale City Hall Building and shot 25 people, killing 10 of them and seriously injuring the rest. The traumatic event resulted in the closing down of the City Hall Building for one year. The building is soon to reopen after extensive renovations to change the appearance of the building so that citizens and employees entering the building will be less likely to experience flashbacks of the attack or be reminded of the tragedy.


As part of the renovation and renewal project, the city instituted a tile painting project. Citizens of Springdale, families of the victims and rescue workers who responded to the shooting were invited to come to come to the City Hall Building prior to its reopening to paint a decorative tile that will adorn the walls of the lobby area and other public spaces within the building. The tile painting project was initiated so that the City Hall Building would be reflective of the members of the Springdale community and each community member who participated would feel a positive, personal connection with the building.

 

A total of 25,000 people participated in the tile painting project. Tile Painting Guidelines for the painting project including the following limitations: (1) the tiles were to be painted only with paints provided by the city; (2) the tiles were to be painted with designs only and could not include any letters, words or numbers; (3) the tiles could not contain any obscene or offensive designs including graphic depictions of nudity; (4) the tiles could not contain references to the shooting; and (5) the tiles could not depict controversial subjects. The Guidelines were distributed to all participants in the project in advance of the tile painting.

 

Before the tiles were hung in the lobby, a group of City Hall employees selected by the Mayor were asked to serve on a Tile Review Committee whose job was to review the tiles to eliminate any tiles that did not comply with the Tile Painting Guidelines. The Tile Review Committee identified 100 tiles to be eliminated. Most of the eliminated tiles violated Guideline 2 because they contained letters, words or numbers containing various messages reflecting a wide array of sentiments from the sacred to the profane. Three of the eliminated tiles violated Guideline 3 including 2 paintings of anatomically correct nude figures and a painting of a hand with a raised middle finger. Ten of the tiles were scenes of the November 19 shooting in violation of Guideline 4. Finally, 4 tiles violated Guideline 5 including a painting of a group of homeless persons huddled in doorways using American flags for blankets, a painting of dead soldiers and civilians on a battlefield in what appeared to be a middle eastern country, a painting of a wooden mannequin resembling George Bush sitting on Dick Cheney’s lap, and a painting of a speaker on a soap box being muzzled by the Mayor of Springdale.

 

After the tiles were hung in the lobby, the persons who painted the excluded tiles were informed by the city that their tiles would not be used in the City Hall Building because they violated the Tile Painting Guidelines. A group of plaintiffs representing all of the categories of excluded tiles have filed suit against the city challenging the facial validity of the tile painting guidelines and arguing that the exclusion of their tiles violated their First Amendment rights under 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 the plaintiffs in challenging the Tile Painting Guidelines and the City’s decision not to use the excluded tiles in the City Hall Building as well as the First Amendment arguments that can be made by the City of Springdale in defense of the Tile Painting Guidelines and the decision not to use the excluded tiles.

 

END OF EXAMINATION