First Amendment Rights - Section 3
Final Examination
Professor Harpaz
December 14, 2010
Question I
(Suggested time: 60 minutes) (50 out of 150 total exam points)

    The State of Stone has recently enacted a law limiting the use of in-car video screens. The law, referred to as the Video Image Safety and Unwelcome Activity Limitation (VISUAL) Act, has two parts. The first part limits the location of such screens within a vehicle so that no in-car video screen can be placed in a location where it is visible by the driver while the driver is operating the vehicle. This restriction was designed as a traffic safety measure to eliminate one source of driver distraction. It excludes global positioning systems designed to assist drivers in reaching their destination from the definition of in-car video screens.

    The second restriction addresses a different problem. It prohibits the display of sexually explicit images on an in-car video screen when the screen can be seen from outside the vehicle. The definition of “sexually explicit images” is “the graphic depiction of sex, including the visual depiction of sexual activity and lewd exhibitions of nudity, that appears on a video screen for more than a fleeting moment.” The Stone legislature added the ban on sexually explicit images seen from outside the vehicle to the new law when it received a significant number of complaints from drivers who were driving next to vehicles in which such material was visible to them. The drivers complained that the sexual content displayed on such screens is often offensive to them and to the members of their family, including their children. The screens are visible when passing a vehicle or when stopped next to a vehicle at a traffic light, and are even more visible at night than in the daytime. The state enacted the ban after concluding that no safe and effective “self-help” technique to block out such images while driving was available. 

    Alan Avery (AA) is the owner of a vehicle with video screens installed in multiple locations within his car including one visible to him when he operates his vehicle. AA acknowledges that he often plays videos on the screens installed in his car, including videos that contain material that falls within the definition of “sexually explicit images.” He has brought suit challenging the constitutionality of the VISUAL Act as a violation of the First Amendment.

    You are a law clerk for the judge assigned to the case. The judge asks you to write an analysis of the First Amendment arguments that AA can make to challenge the VISUAL Act and the First Amendment arguments that the State of Stone can make in defending the Act against a First Amendment challenge.

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

    Springdale Beach Park is a large public park that contains various facilities including a lake with a sand beach along its shore. It is located in the City of Springdale. While the park is popular all year long, its largest crowds visit in the summer. It attracts upward of 250,000 visitors each year, many from neighboring states. The Park is administered by the Springdale Beach Park Commission (SBPC), a city agency that manages the park.

    The Park also contains a number of buildings. One building is used most frequently by visitors to the beach. It contains changing rooms, rest rooms, lockers, a souvenir stand, and a large snack bar. In the lobby of the building is a sitting area that contains several display racks of brochures. The brochures are placed there by the SBPC and copies are available at no cost to park visitors.

    The display racks contain a variety of brochures. Some of them are produced by the SBPC itself and include guides to the park, maps of the area, and warnings about safe usage of the park including advice on water safety and insect bites. Other brochures are submitted by area businesses. They advertise local restaurants, places to stay, shopping, and area attractions such as an amusement park, a museum, a miniature golf course, a theater, and other sites that might interest tourists.

    The display racks were added to the lobby several years ago at the urging of the local Chamber of Commerce. The Chamber hoped that other area businesses might benefit from visitors to the park. Each brochure must be submitted to the SBPC for approval prior to being included in the display racks. The SBPC has rejected only 4 brochures since the display racks were installed. Two were rejected because they were too large to fit in the space available in the racks, one because it sought to advertise a local strip club that the SBPC thought was not consistent with the message the SBPC wanted to communicate, that Springdale was a place for wholesome entertainment, and the final one because it was an advertisement for a political candidate and the SBPC said it did not accept political campaign advertising. The SBPC has no written policy about access to the display racks and makes decisions on a case by case basis.

    Recently, the SBPC received a request from Citizens for a Clean Environment (CCE), a group of local citizens concerned about the environment, seeking to add a brochure prepared by the group to the display racks. The brochure is entitled “Tips for Avoiding Asbestos Contamination at Springdale Beach Park.” It warns that pieces of asbestos have been found along the lake’s shore and in the sand over the years, likely the result of the park's location close to a site on which a company once manufactured building materials containing asbestos. The tips for avoiding asbestos exposure include showering thoroughly before leaving the beach, changing all of your clothes in the changing room before leaving the beach, placing them in a separate bag or container with other items used at the beach such as towels, and laundering these items separately.

    After reviewing the brochure, the SBPC refused to place the brochure in the display racks on the ground that it would discourage park visitors. It added that studies of the beaches by federal and state agencies, while finding asbestos present at low levels, had not found levels of asbestos sufficient to present a danger to human health. It acknowledged that until 2006 the display racks had included a “fact sheet” about asbestos in the park that had been prepared by state environmental and health agencies. The fact sheet acknowledged the presence of low levels of asbestos in the park's beach, but denied that it was a health hazard.         

    After the SBPC turned down CCE’s request to include its brochure in the display racks, CCE filed suit claiming its First Amendment rights were violated. You are a law clerk to the judge assigned to the case. The judge asks you to write an analysis of the First Amendment arguments that can be made by CCE to support its claim that the SBPC violated the First Amendment when it rejected CCE’s request to include its brochure in the display racks and the First Amendment arguments that can be made by the SBPC to defend its decision to reject the brochure.

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

    Morgan Mikhail (MM) went  to downtown Springdale for the purpose of preaching the gospel of Jesus Christ. MM stood on the edge of a sidewalk near a bar called Rogue’s. It was a busy Friday night, around 10:00 p.m., with lots of people milling about at the various restaurants and bars in downtown Springdale.

    Prior to speaking, MM approached Police Officer David Baskin and informed him that he would be preaching. Officer Baskin told him that he first had to obtain a permit, but MM ignored this advice and began preaching. After a little while, MM became loud and several people approached Officer Baskin to complain that MM was calling them sinners. Officer Baskin responded by telling MM not to disturb people and to do what he said he was going to do; that is, quote Scripture. Officer Baskin then left and walked about two blocks. Next, several women came running up to Officer Baskin asking him to return to Rogue’s. These women stated that one of their boyfriends was going to “kill” MM and that MM was yelling at people and calling them names. When Officer Baskin arrived, he saw MM pointing at people in the crowd, loudly calling people “sinners,” “whores,” and “prostitutes.” A crowd of about thirty to forty people had gathered around MM. The crowd was large enough to block pedestrians from walking along the sidewalk without pushing through the crowd. People in the crowd were muttering, and Officer Baskin heard one woman shout “shut up asshole.” Officer Baskin then observed one of the men in the crowd moving toward MM. Believing that MM was about to be attacked, Officer Baskin approached MM, informed him that he was causing a disturbance, and asked him to stop. In response, MM started quoting from the New Testament to Officer Baskin. Officer Baskin then said, “Look, you’re preaching to the wrong guy. I’m Jewish. As far as I’m concerned, that’s a book of fiction.” MM ignored Officer Baskin and continued preaching. Officer Baskin then arrested him.

    MM was charged with demonstrating without a permit and breach of peace. The Springdale permit ordinance provides as follows:

Sec. 21. Permits for street demonstrations and events:

    (a) It shall be unlawful to organize, conduct or participate in any demonstration or event on the streets of the city unless a permit for such demonstration or event has been issued by the city manager or his designee. A demonstration or event permit shall be issued only after an application has been submitted on a form provided by the city no later than 10 days prior to the date on which the demonstration or event is proposed to be held.

    (b) For purposes of this section, “demonstrations and events” shall mean any parade, demonstration, special event, festival, celebration, block party, or other large gathering having a common purpose, design, or goal, which substantially inhibits the usual flow of pedestrian or vehicular traffic.

    (c) The city manager or his designee shall promptly grant such permit for a particular location unless the planned demonstration or event creates a substantial risk to public safety. 

The Springdale breach of peace ordinance makes it an offense to “engage in conduct that incites or tends to incite an immediate breach of the peace or use words which by their very utterance incites or tends to incite an immediate breach of the peace.”

    MM has filed a motion to dismiss the charges against him on the ground that his sidewalk preaching was protected by the First Amendment. He argues that the First Amendment does not require him to obtain a permit before preaching and that the content of his speech was protected by the First Amendment and cannot be punished as a breach of the peace. You are a law clerk for the judge assigned to the case. The judge has already ruled that the permit ordinance, as previously interpreted by the state courts, applies to MM’s activities. The judge asks you to write an analysis of the First Amendment arguments that can be made by MM in arguing that each of the charges against him should be dismissed on First Amendment grounds as well as the arguments that can be made by the City of Springdale in arguing that the First Amendment does not require the dismissal of the charges it has brought against MM.