First Amendment Rights - Section 1
Final Examination
Professor Harpaz
May 3, 2010

Question I
(Suggested time: 90 minutes) (1/2 of total exam points)

    A significant percentage of the population of the Town of Springmeadow, approximately 25 percent, are Jewish, and many have family members who died in Nazi concentration camps. In 2000, the town erected a Holocaust Memorial in Springmeadow Park, a large park owned by the town. The purpose of the Memorial is to pay tribute to those that perished in the Holocaust and to remind the community what can happen when racism and prejudice go unanswered. The Memorial includes a monument and, immediately in front of the monument, an eternal flame. The area occupied by the Memorial is marked off with a decorative wrought iron fence. It is entered by a gate in the fence. Once inside the gate, a path with large grassy areas on each side leads directly to the eternal flame and the monument. The two grassy areas extend from the monument to the fence that marks the outer boundary of the Memorial.  

    Every year since the Memorial was built in 2000, the Springmeadow chapter of the Organization of Jewish Survivors (OJS) has held an afternoon vigil at the Holocaust Memorial on Holocaust Remembrance Day, an internationally recognized day of remembrance marking the anniversary of the Warsaw ghetto uprising. The vigil has been permitted under a regulation that allows park property to be used for special events if the event sponsor first obtains a permit from the Parks Department. In addition to the vigil, several other events have been held at the Holocaust Memorial including a ceremony sponsored by a local civil rights organization in honor of International Day for Tolerance on November 16 and events sponsored by local synagogues on Holocaust Memorial Day which is celebrated each year on January 27, the anniversary of the day when the Auschwitz-Birkenau concentration camp was liberated in 1945. Special event permits were obtained for each of these events.

    The permit requirement is imposed in order to ensure the physical integrity of park property, preserve park property for its intended uses, and protect the safety of park visitors. Under the regulation, a special event permit is required for events held on park property owned by the Town of Springmeadow if the event is likely to be attended by 50 or more people. The Parks Department calculates the 50 person threshold by including persons likely to be directly participating in the event, as described on the permit request form, as well as the number of likely onlookers based on the nature of the event and the size of similar events in the past. Applicants for a special event permit must apply for a permit by filing a permit request form at least 7 days in advance of the event. Under the regulation, the Parks Department can refuse to issue a permit “only if (1) another event has already been scheduled for that same time and place, (2) the Parks Department would be unable to provide adequate police protection for the event to guarantee the security of park visitors, or (3) the size, nature or duration of the event is inappropriate for the specific location requested because the proposed event would be disruptive of or incompatible with the use of the designated area.”

    After receiving a permit request, the Parks Department is required to grant or refuse the permit request no fewer than 3 business days prior to the event or 5 business days after the permit request is filed, whichever is sooner. The Parks Department must provide an explanation for its action if it denies a special event permit. In addition, if the Parks Department rejects the request for a permit, judicial review is available on an emergency basis. In that review, the burden is on the Parks Department to justify its decision to deny a special event permit.

    The OJS vigil to mark Holocaust Remembrance Day was held at the Holocaust Memorial without incident from 2000 to 2008. During the afternoon vigil, vigil participants, who usually number about 100, occupy the path leading to the Memorial and the grassy areas to the left and right of the path. In 2009, a small group of protestors showed up at the vigil for the first time. They were members of a Holocaust defenders organization called the Holocaust Defense Squad (HDS) whose mission is to publicize their view that the Holocaust was justified. During the vigil they stood just outside the fence surrounding the Holocaust Memorial wearing military uniforms with red armbands displaying a swastika and chanting “Jews deserved to die,” “Hitler was right,” “Death to the Jews,” and “Let’s finish what Hitler started.” The presence of the HDS caused the 2009 vigil to end quickly because participants in the vigil were so upset at the unexpected and unwelcome presence of the protestors. Although some angry words were exchanged between vigil participants and members of the HDS, thanks to the prompt arrival of the Park Police no violence occurred and no arrests were made.

    In March, 2010, the Parks Department received two requests for permits to use park property for special events on Holocaust Remembrance Day which was to take place on Sunday, April 11. The first request was from the HDS who requested a permit to hold an afternoon rally at the Holocaust Memorial on the grassy area between the monument and the fence that surrounds the Holocaust Memorial to object to the recognition of Holocaust Remembrance Day and to publicize its viewpoint that Hitler’s actions were justified. The HDS estimated that 60 people would participate in its rally. The second request was from the OJS who once again requested permission to hold an afternoon vigil at the Holocaust Memorial.

    The Parks Department granted the permit request made by the OJS to hold its annual vigil at the Holocaust Memorial. However, it denied the request made by the HDS based on both the second and third criteria listed in the Parks Department regulation. On March 16, it informed the HDS that it denied the permit request stating: “We first conclude that the nature of the event is inappropriate for the specific location requested because the proposed event would be disruptive of and incompatible with the use of the designated area for its intended purpose. Second, in light of events that took place at the Holocaust Memorial on Holocaust Remembrance Day in 2009, we conclude that the Parks Department would be unable to provide adequate police protection for your event to guarantee the security of park visitors.” As far as anyone can recall, the refusal to grant a permit to the HDS was the first time that a permit request to hold an event at the Holocaust Memorial had been denied.  However, permits to use other park property have been denied on numerous occasions and for all of the 3 reasons listed in the regulation.

    Immediately after the HDS learned that its request for a special event permit was denied by the Parks Department, it filed a lawsuit. In its complaint, the HDS argues that the special event permit regulation is unconstitutional both on its face and as applied because it violates the First Amendment. The HDS also filed a motion for a preliminary injunction to require the Parks Department to either grant permits to both the OJS and the HDS or to neither organization. The judge refused to issue a preliminary injunction, thereby allowing the OJS vigil to occur as scheduled. On April 11, the OJS vigil was held without incident. While several members of the HDS showed up at Springmeadow Park with black tape over their mouths, they did not go anywhere near the Holocaust Memorial and did not disrupt the vigil.

    Having denied the request for a preliminary injunction, the judge must now rule on the merits of the case. 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 the HDS can make in challenging the special event permit regulation both on its face and as applied to the HDS as well as the First Amendment arguments that can be made by the Town of Springmeadow Parks Department in defense of the regulation.          

Question II
(Suggested time: 90 minutes) (1/2 of total exam points)

    Prior to the Supreme Court’s decision in City of Ladue v. Gilleo, the City of Springdale had a sign ordinance that prohibited many forms of lawn signs in residential neighborhoods. After the decision, the lawyer for the city informed the Mayor and the City Council that the ordinance was unconstitutional in light of the decision. As a result, the City Council repealed the ordinance and replaced it with an ordinance that only regulated lawn signs based on their size and the percentage of lawn area they occupied, but not their content. This ordinance was enacted in 1995 and has been in effect until recently.    

    Six months ago a dispute between George Granger and Michael Mason, two neighbors in a residential area of Springdale, escalated into a war of competing lawn signs. The first signs were fairly harmless with messages such as “An idiot lives in the house next door” and “My neighbor is a stupid jerk.” However, before long the signs degenerated from mild insults to profanity with messages such as “George Granger is a Fucking Idiot” and “Michael Mason is a Piece of Shit.” After this last pair of signs appeared, several other residents of Springdale who were amused by the signs decided to copy the idea. Soon additional signs could be seen on lawns in several residential neighborhoods in the city including “The Mayor is an Asshole,” and “Message to the Tax-Loving City Council: Fuck You.”

    Many residents of Springdale were not amused by the proliferation of these offensive signs in residential neighborhoods and petitioned the City Council to prohibit such signs. The City Council responded by enacting a new sign ordinance. The new ordinance continues the size and area limits of the 1995 ordinance so that no lawn sign can be larger than 2 feet by 2 feet and the total volume of signs on a lawn at any one time may not occupy more than 20 percent of the available lawn area. In addition, the ordinance prohibits obscene and indecent lawn signs. The provisions of the new ordinance related to the prohibition on obscene and indecent lawn signs in residential neighborhoods provide as follows:

Prohibition of Obscene and Indecent Lawn Signs in Residential Neighborhoods

Section 1.  Statement of Purpose:
Lawn signs are an important part of free speech. However, lawn signs in residential neighborhoods must take account of community values and should not be unnecessarily offensive in the manner of expression or unsuitable for the many children who live in our residential neighborhoods and cannot escape the words on a lawn sign without becoming prisoners in their own homes. Therefore, we hereby adopt the limits on lawn signs in residential neighborhoods described in Section 2.

Section 2.  Prohibited Signs:
Signs may not use obscene or indecent words or images which depict or describe sexual or excretory organs or sexual or excretory activities. The prohibition in this ordinance does not refer to the idea being communicated, but only to the manner in which the message is communicated.

Section 3. Exception:
In exceptional circumstances where a particular message cannot be communicated without the use of one or more indecent words and no one living in the immediate vicinity of the lawn sign objects, the Zoning Board may grant an exception to this prohibition.

    Shortly after the new ordinance was enacted, George Granger (GG) put 3 new signs on his lawn. One sign contains a picture of a man’s bare buttocks photographed while he was bending over in a pose called “mooning” with a caption that says “My reply to the City Council.”  The picture does not reveal the man’s genitals, but only his backside. The second sign says “Remember George Carlin’s Words: Shit, Piss, Fuck, Cunt, Cocksucker, Motherfucker, and Tits.” The third sign says “A Man’s Home is His Fucking Castle.” The Springdale Zoning board has notified GG that he must remove all 3 signs because they violate the new sign ordinance. GG responded to the notice by filing a lawsuit that challenges the constitutionality of the new Springdale lawn sign ordinance both on its face and as applied. You are a clerk to the judge assigned to the case. The judge asks you to write an analysis of the First Amendment arguments that GG can make in challenging the constitutionality of the new sign ordinance and the First Amendment arguments that the City of Springdale can make in defending the ordinance.