Hypothetical Number 1

Last month, Spencer Tunick, an internationally recognized photographer, photographed 100 nude models, 50 adult men and 50 adult women, at 3 a.m. on a street in the downtown business district of the City of Springdale. The nude models were arranged in the design of an American flag. They had their bodies shaved and painted either red, white or blue from head to toe, as required by the design. Despite the fact that there was no traffic on the street when Mr. Tunick took his photo, the City has arrested him and charged him with creating a traffic hazard. Mr. Tunick wants to raise a First Amendment defense to the charges brought against him. What kind of First Amendment claim can he assert? Is he likely to be successful in asserting a First Amendment defense?

Hypothetical Number 2

Recently, in order to assure the cleanliness of its trains, the Springdale Transportation Authority Rapid Transit (START) adopted a new rule banning eating and drinking on the subway trains. A group of passengers, angered by the new restriction, formed a non-profit political action group called STOP (Stop Tyranny of Passengers). Members of STOP have begun a campaign, under the slogan STOP START, to bring pressure on the Authority to repeal its ban on eating and drinking in the trains. Members are circulating petitions for signatures, distributing literature announcing their campaign, selling STOP START buttons and distributing free candy bars. The candy bar wrapper, in addition to including the STOP START name, also states: "Please eat this candy bar on the train in order to protest START's ban on eating and drinking on the trains."

START is threatening to assess fines against the members of STOP as a result of their eating the candy bars on subway trains. Can STOP successfully challenge the constitutionality of the eating ban as applied to their campaign against the ban?