First Amendment Rights - Section 3
December 7, 2012
(Suggested time: 60 minutes) (50 points out of 150 total exam points)
Once a month the Springdale City Council, the
city’s legislative body, holds a public meeting to discuss issues being
debated by the Council. In advance of the meeting, the Council
publishes an agenda. Each meeting lasts for 3 hours and 1 hour of that
time is devoted to a Public Debate Hour (PDH). During the PDH, members
of the public can make comments about issues on the Council’s agenda.
Speakers may talk for a maximum of 3 minutes, allowing about 20
speakers during each PDH. There are also other restrictions on what can
be said during the PDH. These restrictions are contained in Section
2-60 of the Springdale Municipal Code which provides:
(a) The presiding officer at City
Council meetings may in his or her discretion bar from further
speaking, or have removed from the council chambers, any person who
commits disorderly, insolent, disrespectful or disruptive behavior,
including but not limited to, the actions set forth in (b) below.
(b) It shall be unlawful for any person while addressing the City
Council at a council meeting to violate any of the following rules:
(1) No person shall make any personal, impertinent, profane, insolent,
disrespectful, or slanderous remarks.
(2) No person shall yell at the council in a loud, disturbing voice.
(3) No person shall speak without being recognized by the presiding
(4) No person shall continue to speak after being told by the presiding
officer that his allotted time for addressing the council has expired.
(5) Every person shall obey the lawful orders of the presiding officer.
(6) No person shall, by disorderly, insolent, disrespectful, or
disturbing action, speech, or otherwise, delay, interrupt, or disturb
the proceedings of the council.
At the Springdale City Council’s November
meeting, Barry Brown (BB) was recognized to speak. BB, a member of a
local group called Citizens Lobby Against Depravity (CLAD), spoke in
opposition to a proposal to allow a business called Fantasy League, a
store selling sex toys, to be located in a commercial area of the city.
About 2 minutes into his remarks, BB stated:
Sarah Marks, who wants to open Fantasy
League, is no better than a madam who wants to open a whorehouse in
Springdale. The City Council can’t turn Springdale into a place where
fuck shops are free to open throughout the city.
After BB made this comment, the presiding officer of the City Council
told BB to stop speaking immediately because he was in violation of
Section 2-60. BB refused to stop speaking and he was then removed from
the meeting by a Springdale police officer.
BB has filed a lawsuit against the City of
Springdale challenging the constitutionality of Section 2-60 both on
its face and as applied to him at the November City Council meeting.
You are a law clerk for the judge assigned to the case. The judge has
asked you to analyze the First Amendment arguments that BB can make to
challenge Section 2-60 both on its face and as applied to him as well
as the First Amendment arguments that the City of Springdale can make
in defense of Section 2-60 both on its face and as applied to
(Suggested time: 60 minutes) (50 out of 150 total exam points)
After the 2012 presidential election, angry at
the outcome of the election and the upcoming implementation of the
individual mandate provision of the Affordable Care Act, a group of
City of Springdale residents formed an organization called Springdale
Sons of Liberty. It was named after a group in colonial America, headed
by Samuel Adams, that was formed to protect the rights of the colonists
and to protest the taxes imposed by the British government after 1766.
The Sons of Liberty organized the Boston Tea Party in 1773.
The Springdale Sons of Liberty have held a
number of rallies to publicize their cause. Their spokesperson is a man
who uses the name Samuel Adams, but whose legal name is Ely Edwards
(EE). At a recent rally on a public street in front of the headquarters
of the Springdale Democratic Party, EE gave a speech before a crowd of
about 100 people in which he said:
an assault on our liberty. If we refuse to pay the fine for not buying
health insurance out of principle, we will be jailed. They will send
the IRS to take us away. This arrogant elite pretends that this
oppression is for our own good, while everyone else understands that
this is about their insatiable appetite for control over our liberty,
our money, our property and our lives.
The Imperial Democrats do not care what you
think. They are every bit as arrogant as King George the Third. And
yet, if we are to avoid civil war, we must get their attention BEFORE
the IRS thug parties descend upon us. We are law-abiding, but when the
"law" is twisted into an unconstitutional means of oppression, it is
not "law" at all, but mere illegitimate force.
We can emulate the Sons of Liberty of old.
When the Sons of Liberty wanted to express their opposition to the
actions of the King's ministers, they would gather in front of the
homes and offices of his government officials and break their windows.
Glass was expensive. The Sons of Liberty hit them in their pocketbooks.
Most importantly, however, was the message to the royal functionaries
that there are consequences for oppressing your fellow citizens. This
is the message that modern Sons of Liberty should get across to today's
Royalists. Now. Before we have to resort to rifles to resist their
In virtually every city and county, there is a
local headquarters of the Democrat Party. These headquarters have
windows. So, if you wish to send a message that Obama, Pelosi, and Reid
cannot fail to hear, break their windows. Break them NOW. Break them
under cover of night. Break them in broad daylight. Break them with
rocks. Break them with baseball bats. BREAK THEM. The time has come to
take your life, your liberty into your own two hands and ACT. And if we
break the windows of hundreds of Democratic Party headquarters across
this country, we might just wake up enough of them to make defending
ourselves at the muzzle of a rifle unnecessary. Sons of Liberty, this
is your time. Break their windows. Break them NOW.
Midway through EE's speech, two members of the
crowd startling heckling EE. One man (FF) shouted, "You're the ones
that want to take away our liberty. If you don't stop talking, I'll
break your window." Another man (GG), chimed in, "Shut up you Fascist
Five Springdale police officers attended the
rally after the police were called by the owner of a nearby store. The
police officers heard the entire speech as well as the heckling. They
waited till EE finished speaking and then one officer spoke to the
crowd using a bullhorn. He said, "You've had your say. Now break up
this rally before anyone gets hurt." With some more encouragement from
the police, the rally ended. Later that night, the windows at the
Democratic Party headquarters were shattered when rocks were thrown. A
flaming torch was then thrown through the window which started a fire.
Luckily, firefighters extinguished the fire without anyone getting hurt
and with only a small amount of damage to the the headquarters.
The Springdale District Attorney has now
reviewed a video recording of the rally. She is considering whether to
file criminal charges against EE, FF, and GG based on what they said at
the rally. However, the DA is concerned that their statements may be
considered protected expression under the First Amendment. The DA asks
you to write an analysis detailing the First Amendment arguments that
can be made to argue that their words are protected speech as well as
the First Amendment arguments that can be made by the DA to argue that
their words are unprotected and can subject them to criminal liability
consistent with the First Amendment. Please analyze separately the
statements made by each of the 3 speakers.
(Suggested time: 60 minutes) (50 out of 150 total exam points)
The City of Springdale is currently
considering proposals to build a casino in the city. To generate
enthusiasm for the project, the City is sponsoring a public art project
called the Gaming Machine Art Project (GMAP) to consist of 100 roulette
wheels or slot machines to be decorated by local artists and displayed
throughout the city. The Springdale Arts Commission (SAC), a municipal
agency, invited artists to submit designs for inclusion in GMAP. The
GMAP invitation allowed designs to be sponsored by businesses and
organizations, and did not contain any guidelines or restrictions. SAC
was exclusively responsible for selecting the winning designs and over
500 designs were submitted for the Commission's consideration.
SAC selected 100 designs and the winning
artists will reproduce their designs on polyurethane replicas of
roulette wheels and slot machines provided by the city. A local group,
SAG (Springdale Against Gaming) had two of its members submit designs.
Neither of the SAG designs were selected as among the 100 winning
designs. One of the SAG designs shows a slot machine with a bloody arm
as the lever, skull and crossbones designs in the 3 windows on the
payline, dead bodies decorating the front and sides of the machine, and
the slogan "Casinos Kill" written across the front. The other design
shows a roulette wheel with beggars holding tin cups in place of the
numbers, and a painting of a line of poor people handing over their
money to a rich man who resembles Donald Trump standing in front of a
casino decorating the wheel's center.
After SAG's designs were not chosen by SAC,
SAG wrote to SAC to ask why its two designs were rejected. In reply,
SAG received a letter that stated: "There were many fine designs
submitted for inclusion in GMAP. Unfortunately we could not select them
all. We selected the designs that were the most appropriate
representatives of the GMAP theme and were suitable for display in
public spaces throughout Springdale." After receiving this letter, SAG
brought suit claiming that the First Amendment rights of its members
were violated by SAC.
Since filing its lawsuit, SAG has learned that
the winning designs included a roulette wheel covered with smiling
children with the slogan "Casinos are Fun" sponsored by one of the
companies bidding to locate a casino in Springdale, a slot machine
covered with dollar signs and the slogan "Casinos Cut Taxes" sponsored
by a local group that advocates for lower taxes, and a roulette wheel
with a pirate theme that includes pirate flags displaying a skull and
crossbones. SAG has also learned that SAC rejected a number of designs
that included nude or scantily clad showgirls as well as a design with
the slogan "Say NO to Casinos."
You are a law clerk for the judge assigned to
SAG's lawsuit. The judge has asked you to write an analysis of the
First Amendment arguments that SAG can make to argue that SAC's
rejection of the 2 designs submitted by SAG members violated their
First Amendment rights as well as the arguments that SAC can make that
the rejection of the 2 designs did not violate the First