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CREIGHTON UNIVERSITY SCHOOL OF LAW
FIRST AMENDMENT FREEDOM OF SPEECH FALL SEMESTER EXAMINATION
Professor Fenner Thursday, December 16, 2004
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INSTRUCTIONS: THIS IS A CLOSED BOOK EXAMINATION. THERE IS AN ATTACHMENT TO THIS EXAM—A LINEAR SCALE—THAT YOU MAY USE. IT IS STAPLED TO THIS EXAM AFTER THE FINAL PAGE OF QUESTIONS. FEEL FREE TO TEAR IT OFF AND USE IT.
PLACE YOUR EXAM NUMBER, PROFESSOR'S NAME, AND COURSE TITLE ON EACH ANSWER BOOK. IF YOU USE MORE THAN ONE BOOK, NUMBER THEM 1 OF 2, 2 OF 2, ETC.
THIS EXAM CONTAINS FIVE QUESTIONS, ON SIX PAGES, PLUS THE ATTACHMENT MENTIONED ABOVE.
YOU WILL HAVE TWO HOURS TO COMPLETE THIS EXAM. READ EACH QUESTION CAREFULLY, AND BE SURE THAT YOU ANSWER THE QUESTION ASKED.
PAY ATTENTION TO THE SUGGESTED TIMES, BUT YOU NEED NOT BE WEDDED TO THEM. SOME OF THE ANSWERS MAY TAKE LONGER THAN OTHERS. DO NOT GET STUCK ON ONE QUESTION AT THE EXPENSE OF OTHERS. DO NOT GET STUCK ON ONE PART OF THE ANALYSIS OF ONE QUESTION AT THE EXPENSE OF OTHER PARTS.
UNLESS SPECIFICALLY ASKED TO DO SO, DO NOT CONFINE YOUR ANSWER TO ONE ISSUE OR TO ONE PART OF ONE ISSUE JUST BECAUSE YOU BELIEVE RESOLUTION OF THAT POINT MIGHT BE DISPOSITIVE IN ACTUAL LITIGATION.
AVOID RELYING ON CONCLUSORY STATEMENTS. UNLESS OTHERWISE STATED, I AM LOOKING FOR ANALYSIS—LEGAL AND FACTUAL. FOLLOW THROUGH ON YOUR ARGUMENTS, ROOTING THEM IN THE FACTS GIVEN AND THE RELEVANT PRINCIPLES OF CONSTITUTIONAL LAW.
Professor Fenner Thursday, December 16, 2004
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QUESTION NO. 1: (Suggested time, 10 minutes)
Use no more than one page—two pages, if you are writing on every other line—to answer this question.
A statute or an ordinance (hereinafter “statute”) that appears substantially overbroad on its face, and therefore appears to be unconstitutional, can be saved by a narrowing interpretation. Courts sometimes interpret statutes that otherwise would be substantially overbroad as “fighting words” statutes. That is, they give the statute a narrowing interpretation as a fighting words statute.
What does it take to make a statute a fighting-words statute?
QUESTION NO. 2: (Suggested time, 10 minutes)
Use no more than one page—two pages, if you are writing on every other line—to answer this question. You have time to think about this a bit before beginning to use up your page (or two).
For purposes of First Amendment analysis, is Internet access from computers in a public library a public forum? Why or why not?
QUESTION NO. 3: (Suggested time, 10 minutes)
Use no more than one page—two pages, if you are writing on every other line—to answer this question.
Eugene Volokh, who, next semester, will present the First Amendment James L. Koley Lecture here at Creighton, published an op-ed piece in the December 2, 2004 edition of the New York Times. It begins as follows:
Say that an I.R.S. agent leaks a politician’s income tax return to a newspaper reporter, an act that is a federal felony. The newspaper may have a First Amendment right to publish the information, especially since it bears on a matter of public interest. The government, meanwhile, is entitled to punish the agent, to protect citizens’ privacy and ensure a fair and efficient tax system.
To punish the agent, prosecutors may need to get the leaker’s name from the reporter; but if the reporter refuses to testify because of a “journalist’s privilege” to protect confidential sources, the agent may never be caught. Such a pattern is evident in the Valerie Plame matter, where an independent prosecutor is trying to learn who leaked the name of Ms. Plame, a C.I.A. operative, to the press. Uncooperative journalists, including those at The Times, may face jail.
Professor Fenner Thursday, December 16, 2004
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event. There is a provision allowing CSRAB to waive the 15-days-before-the-rally requirement “for good cause shown.” The application must include the name, address, and phone number of a person responsible for organizing the event and must be accompanied by a $20 fee “to cover the administrative cost of issuing a permit.”
The regulations require that, as a general rule, CSRAB issue permits on a first-come, first-served basis. They do allow CSRAB, however, to deny permits if, in its discretion, it finds that the planned activity fails to meet one of five criteria. The part of the regulation stating the five criteria reads as follows:
Capitol buildings or grounds are available for use by the public for purposes of governmental business, public meetings for free discussion of public questions, or for activities of a broad public purpose, provided the authorized procedure has been followed and appropriate approvals have been received, if such use:
(1) Does not interfere with the primary use of the capitol buildings or grounds;
(2) Is appropriate to the physical context of the capitol buildings or grounds;
(3) Does not unduly burden the managing authority;
(4) Is not a hazard to the safety of the public or state employees; and
(5) Does not expose the state to the likelihood of expenses and/or damages which cannot be recovered.
CSRAB review timely filed applications and generally grants a permit unless a permit for a conflicting use has already been issued or the use of the space threatens to violate one or more of the five criteria set out just above.
Parks has filed suit in United States District Court. He asks that the permit requirement declared unconstitutional and that its application to him enjoined.
You are Parks’ attorney. Make the best argument or arguments you can for your client in the short amount of time you have.
QUESTION NO. 5: (Suggested time, 45 minutes)
(You are a state appellate-court judge. What follows this introductory paragraph is the beginning of your opinion. (This question is based on Vlasak v. Superior Court of California, 329 F.3d 683 (2003).) Please complete your opinion.)
Pierce College is a publicly owned and operated community-college in Los Angeles. Pierce College invited Circus Vargas to perform on campus.
Professor Fenner Thursday, December 16, 2004
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Pamelyn Vlasak is an actor, registered nurse, and self-described animal rights educator. Ms. Vlasak went with her husband to the campus to “educate the public to the cruelty that goes on behind the big top.” As part of a planned teach-in, the Vlasak brought signs, photographs, videotapes, leaflets, and press releases intended for circus goers. They also brought with them a bull hook. A bull hook is a large piece of wood with a metal hook on the end. They brought it as an example of a training device used to gain obedience from elephants.
The Vlasak joined a group of demonstrators gathered on both sides of the entrance to the parking area. A community college police officer saw the bull hook leaning against a sign pole. He yelled “I’ve got a weapon here” and called for backup. A scuffle ensued between campus police and demonstrators. The campus police seized the bull hook, determined that Ms. Vlasak was the one who had brought it to the demonstration, and arrested her for violation of Los Angeles Municipal Code (hereinafter “LAMC”) § 55.07. Section 55.07 prohibits the carrying or possession of certain “demonstration equipment.” The prohibited demonstration equipment includes “rectangular wooden pieces more than ¼ inch thick and 2 inches wide, or nonrectangular pieces thicker than ¾ inch.
The trial court determined that Vlasak’s bull hook was oval shaped and 1½ inches thick, exceeding the dimensions permitted for nonrectangular pieces. The trial court found her guilty of violating LMAC § 55.07 and sentenced her to 30 days in jail.
LMAC § 55.07 reads as follows:
An ordinance to prohibit the use of certain devices in demonstrations, rallies, picket lines, and public assemblies.
DEMONSTRATION EQUIPMENT PROHIBITED
(a) No person shall carry or possess while participating in any demonstration, rally, picket line, or public assembly, any length of lumber, wood. Or wood lath unless that object is one-fourth inch or less in thickness and two inches or less in width, or if not generally rectangular in shape, such object shall not exceed three- quarters inch in its thickest dimension.
This ordinance is necessary for the immediate preservation of the public peace, health, and safety, and shall go into effect upon publication. The reason for this urgency is that street demonstrations have occurred where heavy staffs used for carrying placards have been used as weapons, and have injured members of the police force enforcing laws relating to public assemblies. It is known that additional demonstrations are planned, and in order to protect the police, the general public, and parsons taking part in the demonstration, this ordinance must go into immediate effect.
