First Amendment Rights - Section 3
Final Examination
Professor Harpaz
December 12, 2006

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

    Over the past several years, funerals in the City of Springdale have been the target of protest activities by several groups.  The members of one group, the Survivors Network of those Abused by Priests, or SNAP, protest at the funerals of Catholic priests with messages on signs that include “Pedophile Priests Should Rot in Hell” and “God Hates Pedophile Priests.”  Another group, Springdale Heterosexuals Against Marriage Equality, or SHAME, attend the funerals of gays and lesbians with signs reading “Gays and Lesbians Should Rot in Hell”and “God Hates Same Sex Marriage.”

    Both SNAP and SHAME are careful to limit their protest activities to city-owned property such as sidewalks outside of funeral homes and cemeteries.  In addition, group members are instructed to protest silently using signs rather than spoken words to avoid disruption of the funerals they protest.  Moreover, the members of both groups are instructed by group leaders not to confront funeral attenders or exchange words with them.

    Despite these instructions, one recent protest by SHAME did result in a confrontation between a protestor and a mourner. The protest took place several feet from a memorial service held in a city park.  The confrontation was sparked when a mourner grabbed a sign from one of the protesters and tore it up.  The protester then said to the mourner: “You fags deserve to die.”  After this exchange, the mourner’s friends quickly led him away and the confrontation ended.  Other than this one incident, funeral protests by SNAP and SHAME have not involved such confrontations.    
    Residents of Springdale were outraged by the funeral protests which received extensive coverage by the news media and demanded action from the Springdale City Council.  After hearing testimony from family members who have attended funerals where protests were staged, the Springdale City Council recently enacted an ordinance barring such protest activities at funerals.  It provides as follows:

1. This section shall be known as the Protection of Funerals Act.

2.  This ordinance is enacted to prevent violent confrontations at funerals, protect the privacy of funeral attenders and prevent adding to the emotional distress of grieving family members and friends of the deceased.

3. It shall be unlawful for any person to engage in picketing or other protest activities within two hundred feet of or about any location at which a funeral is held, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral. Each day on which a violation occurs shall constitute a separate offense. Violation of this section is a class B misdemeanor.

4. For purposes of this section, "funeral" means the ceremonies, processions, and memorial services held in connection with the burial or cremation of the dead.

The ordinance took effect immediately, but since its enactment no funeral protests have taken place.

    Shortly after the enactment of the Protection of Funerals Act, both SNAP and SHAME filed a lawsuit challenging the ordinance on First Amendment grounds.  You are a law clerk to the judge assigned to hear the case. The judge asks you to write a memorandum describing the First Amendment arguments that can be made by SNAP and SHAME in challenging the Protection of Funerals Act as well as the First Amendment arguments that can be made by the City of Springdale in defending the ordinance.

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

    It is a crime in the State of Northeast to engage in target shooting at human images.  The law applies to target shooting at licensed gun clubs as well target shooting in a place where it is lawful to fire weapons by persons who are licensed to use firearms.  It outlaws “shooting at targets that depict human figures, human effigies, human silhouettes or any human images thereof, except by public safety and law enforcement personnel in training or performing in line with their official duties.”
    The State of Northeast enacted the ban several years ago as part of an effort to reduce gun violence.  The law was enacted after the state legislature heard testimony that indicated that shooting at targets of human images desensitizes gun users to the harms of shooting at real people and trains them to more accurately hit human targets.   
    A lawsuit challenging the human images ban was recently filed by Simulated Human Outdoor Targets, Inc. (SHOT), a company that distributes human images printed on targets.  One of its most popular targets has an image of Adolph Hitler on its front, and an account of Hitler’s restrictions on firearms on the back.  SHOT argues that those who buy the target shoot at the image of Hitler in order to express their opposition to tyranny and restrictions on gun use.  Other popular images sold by SHOT include Saddam Hussein and Osama bin Laden.  They are part of a series of Terrorist Targets sold by SHOT that are popular at gun clubs who host “War on Terror Tournaments” for their members.  In addition to its targets depicting tyrants and terrorists, SHOT also produces a line of sexually explicit targets usually purchased by individual licensed gun owners.  Targets in this series, called the XXX Marks the Spot series, include nude male and female figures that include graphic depictions of their genitals.   

    SHOT has filed suit challenging the constitutionality of the human images ban under the First Amendment.  You are a law clerk to the judge assigned to hear the case. The judge asks you to write a memorandum describing the First Amendment arguments that can be made by SHOT in challenging the human images ban as well as the First Amendment arguments that can be made by the State of Northeast in defending the ban.

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

    The Springdale Public Library is interested in serving the Springdale community in a variety of ways beyond the loan of materials from its library collection.  The Library provides various services to its patrons including literacy classes, tax preparation clinics and flu shots.  It also distributes free written material provided by various organizations.  It makes this material available on a Material Distribution Table dedicated to this purpose.

    Many of the pamphlets and other pieces of literature on the table, including tax forms, course schedules for continuing education courses offered at local community colleges, and health information from the Springdale Municipal Hospital, are provided by various government entities.  In addition, several of the flyers are provided by private non-profit organizations that serve the community including information about fuel assistance programs and shelters for victims of domestic abuse.  The Library does not accept material from for-profit businesses since it does not want to appear to endorse such businesses and does not have the resources to verify the quality of the goods and services such businesses provide.  

    In order to place written material on the Material Distribution Table, the material must be approved by the Head Librarian, who must accept or reject material for distribution within 7 days after the request is made.  The Library rules provide that:  “To be eligible for distribution on the Material Distribution Table, the material must be provided by (1) a federal, state or local government department, agency or entity; or (2) a private non-profit organization that provides services to the Springdale community.  The material must have educational value or describe services that are available to residents of Springdale in areas such as health, education, housing, food, job placement, and counseling.”  Since the Table only has room for approximately 20 different stacks of written material, the Head Librarian reserves the right to rotate the available material as necessary to provide a varied array of material to library patrons.  The decision by the Head Librarian to accept or reject written material is final, although subject to judicial review.

    Ann Adams (AA) is a resident of Springdale.  She operates a for-profit job placement agency in Springdale.  She has submitted copies of a brochure about her agency to the Springdale Public Library for placement on the Material Distribution Table.  In addition to information about her agency’s services, the brochure also provides information about resume drafting and successful interviewing.  AA recently learned that her brochure has been rejected by the Head Librarian on the ground that AA does not operate a non-profit job placement agency.

    AA has filed suit challenging the rejection of her brochure by the Head Librarian as violative of her First Amendment rights.  You are a law clerk to the judge assigned to hear the case. The judge asks you to write a memorandum describing the First Amendment arguments that can be made by AA in challenging the rejection of her brochure as well as the First Amendment arguments that can be made by the Springdale Public Library in defending the decision to reject the brochure.