Final Examination

First Amendment Rights - Section 1

Professor Harpaz

May 3, 2006

Question I

(Suggested time: 70 minutes) (70 out of 180 total exam points)

            Over the past 6 months, an anti-war group called the Bush Bashing Brigade (BBB) has staged a series of anti-war events to coincide with speeches by members of the Bush administration. The BBB anti-war events present a series of “tableaus” or scenes in which members of the group pose in ways that mirror news photos associated with the Iraq War. Some of the scenes depict dead and injured soldiers. Two tableaus that BBB members stage are based on the photos of abuses at Abu Ghraib prison. In one tableau, a group of 7 men who appear to be naked are posed in a pyramid with 4 men on the bottom and 3 men perched on top of them. Each of the men has the jacket of an army uniform draped over his head. In a related tableau, a naked man with a dog collar and leash around his neck is being pulled by a women dressed in an army combat uniform who is holding the leash. All of the naked men are actually wearing tight-fitting flesh-colored thongs that cover their genitals. The thin material of their thongs unmistakably displays the contours and movement of their genitals. From the rear, the men appear to be entirely naked. BBB designed their Abu Ghraib tableaus to recreate nudity as closely as possible.

            BBB stages its events in various public places as close to the location of the speech it is protesting as possible. A recent BBB event was held in the City of Springdale at 2 p.m. on a Saturday afternoon to coincide with a speech given at the Springdale Convention Center by a high ranking member of the Bush administration. Thirty minutes before the speech, 20 members of BBB gathered on a public street outside the Convention Center to stage some of their anti-war tableaus including the 2 Abu Ghraib tableaus. The antiwar demonstrators attracted a large crowd of onlookers, some reacted with amusement, others with puzzlement and some applauded the displays. While many people walking by the Convention Center stopped to watch the tableaus, others averted their eyes and walked by quickly. At least one mother walking with a small child crossed the street to avoid the exposing her child to the tableaus.

            During the demonstration, the police arrived. They told the 8 demonstrators who were nude aside from wearing flesh-colored thongs that they were being arrested and charged with a violation of a state statute, Section 55 of the Criminal Code, that outlaws lewd acts. The text of Section 55 reads as follows: "[a] person commits a misdemeanor of the third degree if he does any lewd act which he knows is likely to be observed by others who would be affronted or alarmed." Section 55 defines a lewd act as "an act of gross and open indecency," in violation of "community standards in respect to sexuality or nudity in public."

            After their arrest, the Springdale District Attorney charged the 8 members of BBB who wore only flesh-colored thongs while participating in the 2 Abu Ghraib tableaus with violating Section 55. In response to the indictments, BBB’s lawyer has filed a motion to dismiss the indictments on the ground that Section 55 violates the First Amendment both on its face and as applied to the members of BBB.

            You are a law clerk to the judge assigned to hear the motion to dismiss. The judge asks you to write a memorandum describing the First Amendment arguments that can be made by BBB in support of BBB’s motion to dismiss the indictments as well as the First Amendment arguments that can be made by the Springdale District Attorney in opposition to the motion to dismiss the indictments.

Question II

(Suggested time: 70 minutes) (70 out of 180 total exam points)

            Survivors is a pro-life organization that compares abortion clinics to Nazi concentration camps. Members of Survivors hand out leaflets about their cause on college campuses. Recently, they sought permission from Springdale University (SU), a state university campus located in the City of Springdale, to demonstrate on the University campus on Friday, April 7.

            Survivors contacted David Dwyer (DD), the manager of campus facilities at SU, to seek permission to distribute leaflets on campus. In response, DD sent Survivors a form requesting information from them. The form asked Survivors to list the time and date of their requested campus visit, the number of persons they intended to bring on campus, whether they were visiting at the invitation of a student group and whether any students at SU would be participating in their activity. The form also included a map of the campus and asked Survivors to identify the specific location they were requesting permission to use. In filling out the form, Survivors made clear that no SU students were part of their organization and that they had not been invited to campus by any student organization. In addition, since the members of Survivors were unfamiliar with the campus layout, they did not request a specific location, but instead asked for a location that would "maximize" the group's exposure or be in a "high traffic area."

            DD responded to their request by informing Survivors that campus regulations treated student and nonstudent groups differently in order to preserve the campus for its primary purpose of educating its student body. The regulations also distinguished between student sponsored nonstudent groups and unsponsored nonstudent groups. Survivors were informed that as an unsponsored nonstudent group they were entitled to limited access to campus facilities, but that an area of campus called the Plaza would be available to them. The Plaza is a small grassy area in front of the Plaza Building. It is located on the north side of the Lawrence Street Mall, a pedestrian walkway that bisects the campus.

            When Survivors arrived on campus on Friday, April 7 they were directed to the Plaza. Survivors followed the instructions they had been given and stood with signs they had brought with them and handed out leaflets to students passing by. Unfortunately, there was not much foot traffic in the Plaza. By contrast, Survivors identified an area at the other end of campus near a flagpole where many more students were gathered. They proceeded to walk across campus to the new location and continue to distribute leaflets.

            The new location selected by Survivors is called the flagpole area. It is an area where the Lawrence Street Mall intersects the Tenth Street Mall, a second pedestrian walkway which also bisects the campus. At the flagpole area there is a wide concrete space, sufficiently large to accommodate tables for persons handing out information, or engaged in other activities, without impeding the flow of pedestrian traffic. There is also an abutting area where pushcart vendors are permitted to sell goods on campus. The vendors typically stock items of interest to students including food, clothing, jewelry and items to decorate dorm rooms. The campus provides the pushcarts which are of uniform appearance and painted in the school colors and the vendors pay a monthly rental fee to the University for the right to rent a pushcart.

            When Survivors relocated to the flagpole area, they encountered a small group of students distributing literature from a small folding table set up in that location. The students, who were members of the Student Coalition Against Republican Evangelicals (SCARE), were distributing flyers informing students about a pro-choice abortion rally that would be held at an off-campus location the next day. The members of Survivors did not interfere with the activities of SCARE, but chose a location on the other side of the flagpole area to distribute the Survivors’ leaflets.

            Shortly after Survivors arrived at the flagpole area and started to distribute leaflets, a student who had been given one of their flyers showed it to the student members of SCARE. The students contacted the campus police to complain about the presence of Survivors in the flagpole area. The campus police arrived on the scene and told Survivors that they could not remain in the flagpole area, but could only distribute literature from the Plaza. Rather than return to the Plaza, the members of Survivors left the campus.

            Survivors has now filed a lawsuit claiming that SU violated its First Amendment rights by refusing to allow Survivors to distribute leaflets in the flagpole area. You are a law clerk to the Judge assigned to the case. The judge has asked you to analyze the First Amendment arguments that can be made by Survivors in support of its right to distribute leaflets in the flagpole area as well as the arguments that can be made by Springdale University in arguing that it was entitled to limit the leafletting activities of Survivors to the Plaza.


Question III

(Suggested time: 40 minutes) (40 out of 180 total exam points)

            In answering this question, you should assume the same facts as in Question II above. In addition to those facts, the following events occurred when the members of Survivors left the campus:


            As the members of Survivors left the campus, several student members of SCARE followed them. The students caught up with members of Survivors several blocks away from the SU campus. One of the students, Alan Anders (AA), began to taunt the members of Survivors. He said, “You right wing crazies, you’re the Nazis trying to control everyone’s behavior.” One of the members of Survivors, Barbara Bennett (BB), turned to Alan Anders and said: “We’ll make sure that you can’t spread your evil ideas anymore. I wouldn’t be surprised if that pro-choice abortion rally tomorrow turned into a gas chamber.”

            Several city police officers witnessed the confrontation between the members of Survivors and the members of SCARE. The police officers quickly intervened and dispersed the two groups. This series of events was filmed by a camera crew from a local television station who was in the area on another assignment. The videotape of the confrontation has been aired by the station several times and has provoked public outcry, with some people supporting the students, some supporting the members of Survivors and some condemning both groups.

            The Springdale District Attorney is considering bringing charges against AA and BB based on the words they used when they confronted each other. She is reviewing two criminal statutes as the basis of possible charges. The first is Section 65. Section 65 makes it a crime to “utter fighting words in a face to face exchange in a public place which words, in the form of personal insults or epithets, are likely to cause the average person to whom the words are addressed to respond with violence directed at the person who utters the fighting words.” The second statute is Section 75. Section 75 provides that it is a crime “to advocate imminent lawless action that threatens the health or safety of any person in a circumstance where such advocacy is either likely to incite such action or is done with the intent of placing the victim in fear of bodily harm or death.”

            The Springfield District Attorney has asked you for advice as to whether she can bring charges against AA and BB relying on either Section 65 or Section 75 or both consistent with the First Amendment. In providing her with advice, consider whether the statements made by AA and BB are speech protected by the First Amendment or whether they fall within one of the unprotected categories of expression that the government is free to proscribe.

                                                END OF EXAMINATION