First Amendment Rights - Section 3
Final Examination
Professor Harpaz
December 11, 2008

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

    In support for peace in Iraq, the members of HOPE (Horns of Peace Effort) participate in a Vigil on the corner of Chestnut Avenue and Maple Road, a busy intersection in the downtown business district of the City of Springdale.  The HOPE Vigil is held on Monday evenings from 7 p.m. to 10 p.m. and has been going on for one year.  Vigil participants hold signs stating "Honk for Peace."   They stand at the edge of the sidewalk so their signs can be seen by cars driving by the intersection.  Over the one year period of the Vigil, hundreds of motorists have responded to the signs by honking their horns as they drive by the HOPE Vigil and see the signs.

    For the first 9 months of the Vigil, there were no traffic problems associated with the Vigil. However, on several occasions over the last 3 months, other groups have demonstrated at the same intersection causing congestion at the intersection.  In addition some Vigil participants have been seen leaning into traffic so that their signs are more visible to oncoming traffic.  The Springdale Police Chief has concluded that the Vigil participants and the honking they incite are creating safety problems.   However, there have been no traffic accidents at the intersection since the Vigil began.  

    The Springdale Police Chief and the Springdale District Attorney recently warned participants in the HOPE Vigil as well as the drivers of cars that respond to the signs by honking their horns that they will be charged with violating the State Breach of the Peace Statute if they continue their demonstration.  The State Breach of the Peace Statute provides as follows:

It shall be unlawful  for any person to disturb, tend to disturb, incite or aid in disturbing the public peace by loud, violent, tumultuous, offensive, or obstreperous conduct, or to make or participate in making any unreasonable noise, disturbance, riot or breach the peace, or to engage in any illegal or unreasonable act.

In addition to charges under the Breach of the Peace Statute, the Police Chief and District Attorney also warned that the honking violates a provision of the State Motor Vehicle Code, referred to as the “Honk Statute.”  It provides that "the driver of a motor vehicle shall when reasonably necessary to insure safe operation give audible warning with his or her horn, but shall not otherwise use the horn when driving."  Violation of the Honk Statute is a misdemeanor under state law and is punishable by fine.

    A group of participants in the HOPE Vigil as well as drivers who have honked at the intersection in response to the signs and would like to continue to do so, have come to you for legal advice.  They would like to know if the First Amendment would protect their activities if the District Attorney charged them with criminal violations under the Breach of the Peace Statute and the Honk Statute.

    Your job is to provide them with legal advice.  Please analyze their situation under the First Amendment.  What First Amendment arguments could you make on their behalf if the District Attorney charged them under the Breach of the Peace and Honk Statutes?  In addition, what First Amendment arguments could the District Attorney make in response to your arguments?

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

    The City of Springdale is sponsoring an Inaugural Celebration on January 20th at noon, the same day and time as Barack Obama will take the presidential oath of office.  The City intends to hang large monitors around the City Hall lawn so that participants will be able to view the inauguration as part of the City’s Celebration.  There will also be free food and entertainment provided.
    As part of its Inaugural Celebration, the City is asking residents of the city to contribute artwork for a mural to be erected on the lawn in front of City Hall.  Each piece of art can be no larger than 16 inches by 20 inches and it must incorporate the letter “O” in the design in some fashion.  The submitted artwork is to be judged by a committee of city residents, the Springdale Artwork Committee (SAC), appointed by the mayor.  The SAC is to choose among the submitted work and select pieces of art “that best reflect the spirit of the Inaugural Celebration” to be included in the mural.  Schoolchildren as well as adults have been invited to make submissions.

    Thus far over 5000 pieces of artwork have been submitted that are of suitable size and incorporate the letter “O” in some fashion.  The SAC estimates that no more than 500 pieces of artwork will be able to be incorporated in the mural’s design.  As part of its selection process, the SAC has decided to post images of all the submitted artwork on the City’s website and allow visitors to the site to vote for their favorite submissions.  Once the 500 pieces of artwork have been selected, they will be turned over to a local artist who will incorporate them into a mural on a large piece of canvas that will be erected on the City Hall lawn.  After the Inaugural Celebration ends, the mural will be displayed inside City Hall for several months.  
    Shortly after the submissions were made available for viewing online, complaints started pouring in to the Mayor’s Office at City Hall about 3 of the submissions.  One of the submissions complained about incorporates a large “O” as part of the word “Obscenity” and displays a drawing of a naked Barack Obama.  Another series of calls focused on a submission that includes a large “O” and includes a drawing of Barack Obama’s head on an orangutan’s (a species of great ape) body.  Other callers complained about a submission with the phrase ObamaNation that called Barack Obama the abortionist-in-chief and included a picture of a dead fetus.  The city soon removed all 3 of the submissions that were the subject of complaints.  It also posted a notice on its website that stated that the City of Springdale reserves the right to remove any submitted artwork that is deemed offensive.

    A local group called AFUC (Artists For Unfiltered Content), whose members include the artists who crafted the 3 submissions removed from the City website, have complained to the Mayor about both the criteria to be used by the SAC for selecting artwork for the mural and the decision to remove the 3 submissions from the City’s website.  AFUC has threatened to sue the City of Springdale for violating the First Amendment.

    You are the lawyer for the City of Springdale.  The Mayor has come to you for legal advice.  He wants to know if the City can successfully defend itself against a lawsuit brought by  AFUC.  Your job is to describe for the Mayor the First Amendment arguments that can be made by AFUC in challenging the process used by the city to select artwork for the mural as well as the decision to remove the 3 submissions from the City’s website.   In addition, you need to describe for the Mayor the First Amendment arguments that can be made by the City of Springdale to defend itself against AFUC’s First Amendment arguments.    

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

    Roger Reynolds (RR), the owner of a gun shop in Springdale, recently put a sign outside his store to advertise a sale which reads: "Pre-Osama bin Biden sale! All GUNS on Sale.  Sale starts today and ends on January 20th when the new administration of Barack Hussein Obama will take away your right to own a gun.  Buy NOW while you still can.”

    John Jeffers (JJ) recently filed a lawsuit against RR under the State Truth-in-Advertising Statute.  The purpose of the Statute is to protect both consumers and competitors by eliminating deceptive promotional practices in commercial markets for goods and services.  Under the terms of that Statute, a consumer has standing to sue if the consumer can show that an advertisement or other promotional material contains “any unlawful, unfair, deceptive, untrue or misleading content.  The remedies available under the statute include the removal of the advertisement or other promotional material and/or damages.

    JJ’s lawsuit argues that the sign outside RR’s gun shop violates the Truth-in-Advertising Statute because it contains content that is unfair, deceptive, untrue, and misleading.  JJ seeks both removal of the sign as well as damages as remedies.  RR is defending against the suit by arguing that he has a right to post the sign outside his store under the First Amendment.

    You are a law clerk to the judge assigned to the case.  The judge asks you to analyze the First Amendment arguments available to RR to demonstrate that the application of the Truth-in-Advertising Statute to the sign outside his store would violate his rights under the First Amendment as well as the arguments available to JJ to demonstrate that the Truth-in-Advertising Statute can be applied to RR’s sign without violating the First Amendment.