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.