First Amendment Rights - Section 3
Final Examination
Professor Harpaz
December 7, 2012

Question I
(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 officer.
(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 BB.            

Question II
(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:

     Obamacare is 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 tyranny.

     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 asshole."

     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.

 Question III
(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 Amendment.