First Amendment Rights - Section 1

Final Examination

Professor Harpaz

May 3, 2000


Question I

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

            Bad Frog is a Michigan Corporation that manufactures and markets several different types of candy under its “Bad Frog” trademark. In addition to carrying the Bad Frog name, its product labels feature an artist’s rendering of a frog holding up its four-“fingered” right “hand,” with the back of the “hand” shown, the second “finger” extended, and the other three “fingers” slightly curled. The membranous webbing that connects the digits of a real frog’s foot is absent from the drawing, enhancing the prominence of the extended “finger.” Bad Frog does not dispute that the frog depicted in the label artwork is making the gesture generally known as “giving the finger” and that the gesture is widely regarded as an offensive insult conveying among other things, the message “fuck you.” Versions of the label on different candy products, such as lemon drops and gummy frogs, feature slogans such as “An amphibian with an attitude,” “The candy so good ... it’s bad,” and “He just don’t care.”

 Bad Frog products are sold in most states without objection. Several months ago, Bad Frog began to try to distribute its candy products throughout New York State. The New York State Food Products Safety Authority refused to allow any product with the extended-“finger” frog on its label to be sold in grocery and convenience stores, or in any other location where the labels could be seen by children under the age of 13. The authority also banned the sale of products with the extended-“finger” frog on their label to children in this same age range. The Authority ruled that “exposure to the label would tend to adversely affect the health, safety and welfare of young children by exposing them to profane and vulgar advertising unsuitable for children of tender years.” In its ruling, the Authority made it clear that the products could be sold: (1) at locations where children would not be present, such as adult businesses, (2) from behind a counter where they could not be seen by young children, (3) if sold with a different wrapper, and (4) if sold with the extended-“finger” covered up.

 Bad Frog has filed suit challenging the New York State Food Products Safety Authority ruling. It claims that the ruling violates its rights under the First Amendment. You are a law clerk to the judge assigned to the case. The judge asks you to write a memorandum detailing the First Amendment arguments available to Bad Frog in challenging the Authority’s ruling as well as the First Amendment arguments available to the Authority in defense of its ruling.


Question II

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


The City of Denver is justifiably proud of its Denver Performing Arts Complex (DPAC). The complex is owned and operated by the City of Denver and includes four theaters, a parking garage and an area known as the Galleria. The Galleria is an open air, glass-covered pedestrian walkway approximately 600 feet long with a width ranging between 32 and 40 feet. The Galleria, which was formerly a public street, is bounded on one side by two large theaters and on the other side by a third theater and a parking garage. Fourteenth Street, a public right of way which carries vehicular and pedestrian traffic, lies at one end of the Galleria and a fourth theater lies at the other. The Galleria, which is generally open to the public, serves as the exclusive means to enter and leave from DPAC events taking place in the surrounding theaters. It is possible to enter and leave the Galleria either from the parking garage or from the Fourteenth Street entrance. About half of the people who enter the Galleria enter from the parking garage and the other half from Fourteenth Street.

 In addition to serving as an entryway to the performing arts complex, the Galleria also acts as a place for theater patrons to congregate before performances and during intermissions, in effect serving as an extended lobby for the four theaters. The theaters have a combined seating capacity of 9,300. When performances are scheduled for several of the theaters on the same evening, the Galleria can become extremely congested. Ticket sales also occur at box offices in the Galleria, with lines often stretching across the walkway. In addition to the theaters and the parking garage, the Galleria also contains three commercial establishments that lease space from the City. The three businesses are two restaurants and a store called Scene-to-Scene. Scene-to-Scene sells merchandise and souvenirs relating to productions appearing at the DPAC and is only open in conjunction with performances.

 One of the four theaters in the complex is leased by the city to the Denver Ballet Company. Recently the musicians that comprise the Denver Ballet Orchestra (DBO) were told by the Denver Ballet that their services would no longer be needed. Instead of a live orchestra, the ballet intended to use recorded music during future performances. The musicians were angered by this decision and decided to protest the Denver Ballet’s decision. On the opening night of the next ballet production, the ballet Romeo and Juliet, orchestra members came to the Galleria with their instruments. Beginning one hour before the performance, as the Galleria began to fill with theatregoers, 10 orchestra members began to play music from the ballet. A banner was held by several members of the orchestra which said “Is it live or is it the Denver Ballet Company?” Other orchestra members distributed leaflets highly critical of the Denver Ballet’s decision to people walking through the Galleria, many of whom had tickets to attend that evening’s performance of Romeo and Juliet. The DBO members intended to continue playing until the performance began at which time they would end their protest. They intended to return for the next evening’s performance and for every performance thereafter.

 Shortly after the orchestra members began to play, the Galleria Manager, a city employee, asked the orchestra members to leave immediately. He informed them that the Galleria was not available to be used for protest activities and they would have to leave the Galleria and continue playing outside on Fourteenth Street or another public way. Before ending their protest, the orchestra members asked to see a copy of the Galleria’s regulations on permissible uses of the property. The Galleria Manager showed them a copy of a city regulation which read as follows:

The Galleria is designed as a means of access to the DPAC theaters or other commercial establishments located within the Galleria. It may not be used by members of the public as a forum for expressive activities including distribution of leaflets, picketing, solicitation and other forms of expression that will interfere with its use as a walkway, disrupt theatrical events, and interfere with the safety, convenience and aesthetic pleasure of other users of the Galleria.

After reading the regulation, the DBO members ended their protest and left the Galleria.

The protesting members of the DBO claim the City has violated their First Amendment rights by not allowing them to use the Galleria as a forum for their protest activities. They have filed suit seeking to enjoin the City of Denver and the Galleria Manager from preventing them from protesting future ballet performances from inside the Galleria.

 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 that could be made on behalf of the DBO members as well as the arguments that could be made on behalf of the City in defending its decision to exclude the DBO members from the Galleria.

Question III

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


Last year the Mayor of Springdale began to receive complaints from a number of city residents complaining about the proliferation of lawn signs in their neighborhoods. The city reviewed the problem and decided that lawn sign proliferation in residential neighborhoods interfered with both traffic safety, by blocking visibility, and the attractiveness of neighborhoods. Shortly thereafter the Springdale City Council adopted an amendment to its zoning ordinance that restricted the use of lawn signs in residential neighborhoods. The lawn sign ordinance provides as follows:

(1) No lawn sign may be larger than two (2) feet by two (2) feet in area.


(2) No single family residence may display more than two (2) lawn signs at one time. Multiple family dwellings may display up to two (2) signs per unit.


(3) A temporary lawn sign may not be displayed for more than 15 days after the occurrence of the event that it seeks to publicize. Temporary lawn signs include signs advertising that a home is for sale or rent, tag sale signs, signs publicizing athletic events, signs in recognition of a holiday, birthday, anniversary or other significant event, signs supporting a candidate or ballot issue in an upcoming election and other signs used for related purposes. Residents seeking to display their lawn sign(s) beyond the 15 days are required to seek permission from the City Zoning Officer who may extend the period for good cause.

 Shortly after the enactment of the lawn sign ordinance, several homeowners who reside in residential neighborhoods in the City of Springdale filed suit challenging the constitutionality of the lawn sign ordinance as violative of the First Amendment. Prior to the adoption of the ordinance, the homeowners had displayed more than two lawn signs at a time measuring more than 2 feet by 2 feet in support of political candidates running for office and had displayed those signs for longer than 15 days after the election. The homeowners assert in their suit that they desire to continue to display lawn signs in this manner and are prevented from from doing so by the lawn sign ordinance.

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 the homeowners in challenging the lawn sign ordinance as well as the arguments available to the City of Springdale in defense of the ordinance.