First Amendment Rights - Section 3

Final Examination

Professor Harpaz

December 6, 2004

Question I

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

            Carl Carroll (CC) is a 66 year-old resident of New York. For 20 years, CC has mailed written materials about religious and political issues to thousands of people. The mailings include CC’s handwritten and typed statements as well as photocopies of articles taken from general circulation newspapers. CC mails the materials to members of the Jewish religion in order to alarm them about current world events that have been prophesied in the Bible. CC has never engaged in any physical violence directed at anyone and has no criminal record. He does not belong to any organized political or religious movement, but acts out of personal conviction.

            In July, CC sent his religious and political materials to Barbara Bergman (BB), a Jewish candidate for New York State Lieutenant Governor. The envelope contained a handwritten note and photocopies of newspaper articles. The note stated that “Jews shall perish from this earth as the Bible prophesies.” The note was signed by CC and also contained his return address. The photocopies were copies of four newspaper articles about Jews in various parts of the world who had been killed in terrorist attacks. The copies of the articles were not personalized in any way.

            BB was alarmed when she read the materials sent to her by CC and she contacted the police. After an investigation, CC was arrested and charged with a violation of Section 240 of the New York Penal Law. Section 240 states that “a person is guilty of aggravated harassment when, with intent to harass, annoy, threaten or alarm another person, he or she communicates with a person by telephone, telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm.” A violation of Section 240 is punishable by up to 5 years in jail. In addition, a person who receives communications that are the subject of a Section 240 indictment (the recipient) may go to court, immediately upon the filing of the indictment, to seek an injunction in the form of a protective order barring the person making the harassing communication from making any further communications directed at the recipient.

            CC’s lawyer has filed a motion to dismiss the indictment on the ground that Section 240 violates the First Amendment both on its face and as applied to CC. In addition, the District Attorney’s Office, acting on behalf of BB, has filed a motion seeking a protective order barring CC from sending BB any further communications.

            You are a law clerk to the judge assigned to hear both motions. The judge asks you to write a memorandum describing the First Amendment arguments that can be made by CC in support of CC’s motion to dismiss the indictment and in opposition to the protective order sought by BB as well as the First Amendment arguments that can be made by the District Attorney’s Office in opposition to the motion to dismiss the indictment and in support of BB’s request for a protective order.

Question II

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

            The City of Havenwood has recently experienced several blows to its economic well-being including the bankruptcy of two prominent local businesses and a suspicious fire that destroyed a large shopping center. In order to boost the morale of city residents, the Mayor and City Council decided to organize a large parade to celebrate Havenwood’s history and accomplishments. The parade was to be called the CHEER (Celebrate Havenwood - Eighty-Eight Reasons) Parade. It was to consist of eighty-eight floats with each one celebrating a different historical event or accomplishment.

            The Mayor appointed a CHEER Parade Committee consisting of community leaders, and the Committee solicited applications from community groups to participate in the Parade by designing and building a float. The floats could be sponsored by local businesses as well as non-profit charitable, cultural and educational organizations. However, floats sponsored by local businesses could not contain commercial advertising content. Commercial sponsors were limited to placing their names on the bottom of the float they sponsored in a sign that was no larger than 12 inches high by 60 inches long. If applications were received for fewer than 88 acceptable floats, the Committee was to create any additional floats needed using money donated by the city.

            The CHEER Parade Committee received 80 applications and approved 78 of them. It rejected a float design submitted by the Havenwood Homeless Coalition (HHC). The HHC float would have included a miniature tent city full of miniature homeless people. The HHC application explained that the float was in honor of the fact that Havenwood had the largest homeless population of any city in the state. The float would have included a sign reading “Havenwood - Number One in Homelessness.” The Committee rejected the application on the ground that the float did not celebrate one of Havenwood’s accomplishments.

            The Committee also rejected an application from the Top Toy Company, a local toy company that has won many awards for its educational toys. The Top Toy float design contained giant replicas of dozens of Top Toy’s award-winning toys with signs listing the awards that each toy has received. The float had a large sign attached to the top of the float that read “Havenwood - the Educational Toy Capital of America.” On the bottom of the float was a sign with the name of the Top Toy Company. The Committee rejected the design on the ground that it included commercial advertising content.

            Both the HHC and the Top Toy Company have filed suit against the City of Havenwood and the CHEER Parade Committee (hereinafter Havenwood) arguing that their First Amendment rights were violated when their applications for a float design were rejected. Havenwood has responded to the suits by claiming that the city was entitled to reject the designs and that its actions did not violate the First Amendment.

            You are a law clerk to the judge assigned to the cases filed by the HHC and the Top Toy Company. The judge has asked you to write a memorandum describing the First Amendment arguments that can be made by the HHC and the Top Toy Company in challenging the rejection of their float designs as well as the First Amendment arguments that can be made by Havenwood in defending its actions on First Amendment grounds.

Question III

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

            Exotic Restaurants, Inc. (ER) operates a chain of restaurants that are “upscale” facilities serving food along with “theme dancing” and “artistic performances.” The restaurants range from Moulin Rouge which serves French food and showcases Can-Can dancing to Arabian Nights which serves Middle Eastern food and features belly dancing. The female dancers in ER’s restaurants are often scantily clad, but are never nude. At a minimum they wear opaque clothing, such as a bikini, that covers their breasts, pubic region and buttocks. Additional parts of their costumes may be transparent or semi-transparent.

            ER leased commercial property on Main Street in the City of Springdale with the intention of opening an Arabian Nights restaurant at that location. When ER sought permission to operate its restaurant from the Springdale Zoning Board, it received a letter from the Board explaining that a newly adopted ordinance would prevent ER from opening Arabian Nights in that location. The new ordinance limits the locations of “Exotic Dancing Establishments.”


            Under the ordinance, an Exotic Dancing Establishment is defined as:

A business establishment at which one or more exotic dancers perform or provide entertainment to a patron or patrons. Exotic dancer means any person, whether compensated or not, who dances, performs, or entertains by doing an erotic dance or other movements which include the performer touching their breasts or pubic area, or performing any movements simulating sexual activity while wearing fully opaque clothing covering the genitalia, pubic region, buttocks and, if the person is female, the portions of the breast below the top of the areola.

The ordinance provides that Exotic Dancing Establishments are prevented from operating within 1000 feet "of a church, school, residential district or another exotic dancing establishment." The Main Street property leased by ER is positioned within 1000 feet of another exotic dancing establishment.

            The creation of a zoning ordinance to separately define Exotic Dancing Establishments was designed to supplement Springdale’s existing zoning laws which separately define “Adult Entertainment Establishments” and control their locations in a similarly restrictive manner. Adult Entertainment Establishments that feature live dancing are limited to those establishments that feature nude rather than scantily-clad dancers. Therefore, Arabian Nights would not be defined as an Adult Entertainment Establishment, but is defined as an Exotic Dancing Establishment. ER does not dispute that the entertainment provided at Arabian Nights falls with the definition of an Exotic Dancing Establishment under the Springdale zoning ordinance.

            When Springdale adopted its Adult Entertainment Establishment zoning ordinance, it did so in order to avoid the higher crime rates and lower property values often associated with the presence of a concentrated number of adult entertainment businesses in a neighborhood. While Springdale did not conduct a study of the impact of such businesses in Springdale, the Springdale Zoning Board did review data from a study conducted in nearby Greenmeadow, a similarly-sized community that had experienced a sudden influx of adult entertainment establishments which had located close to each other. The Greenmeadow data showed both an increase in crime rates and lower property values in the area populated with adult entertainment businesses.

            Springdale’s recent decision to separately define and regulate the location of Exotic Dancing Establishments followed the arrest of several drug dealers who were congregating on a street corner near a nightclub that featured Middle Eastern dancing, but no nudity. The Springdale Zoning Board concluded that the incident suggested a possible correlation between establishments that feature scantily-clad exotic dancers and adverse secondary effects such as increased criminal activity. The Board conceded that it had no proof of such a correlation beyond the single incident.

            ER has filed a law suit challenging the constitutionality of the Exotic Dancing Establishment zoning ordinance on the ground that it violates the First Amendment. You are a law clerk to the judge assigned to the case. The judge has asked you to write a memorandum describing the First Amendment arguments that ER can make in challenging the zoning ordinance and the First Amendment arguments that the City of Springdale can make in defending the zoning ordinance.