Spring 1998 The First Amendment Law Exam

       
   

YALE LAW SCHOOL

Spring Term 1998 Examination

The First Amendment

May, 1998

(Self-Scheduled– Twenty Four Hours)

Professor Balkin

Instructions

 

1. This examination consists of three essay questions.  Each has equal weight in determining your grade.  Your answers to the three questions combined should total no more than 5,000 words.

 

2. Please read each question carefully and pay attention to what you are being asked to do. Note that in Question Two you have a choice of two different questions. Answer one or the other but not both.

 

3. If anything about a question is ambiguous, decide what you think is meant, tell me what you think is meant, and answer the question accordingly.  No reasonable resolution of an ambiguity will be penalized. If you need to assume additional facts in order to answer a question, state what those facts are and how they affect your answer.

 

4. You may either type your exam (which I prefer) or use blue books. If the latter, please use a separate blue book for each question.  Mark the number of the question on the front of the blue book.  If you need more than one blue book for a question, that is fine, but indicate on each blue book which question it answers and in what order it is to be read. Write on only one side of the page.  Skip every other line.  The easier your answer is to read, the more appeal it will have when it is viewed at 2:00 in the morning.

 

5. Think before you write.  Organize your answer.  You get extra points for clarity and succinctness.  You get penalized for an answer which is disorganized and confusing.

 

6. This exam is open book, with one exception: You may not use Lexis, Westlaw, or other electronic databases.

 

7. Good luck.

   
   

Question One

(One Third)

In December of 1996, Congress passed the Military Honor and Decency Act, which prohibits the sale or rental of “sexually explicit materials” by military personnel acting in an official capacity, including sale or rental of materials by “military exchanges.” Military exchanges, which are often located on military bases, include retail stores, garages, restaurants, beauty shops, laundry facilities, newsstands, storage facilities, and recreational facilities. The exchanges are authorized to sell toiletries, stationery, clothing, jewelry, housewares, sporting goods, and automotive products, in addition to books, periodicals, and audio and video tapes.

The act provides in relevant part:

(a) PROHIBITION OF SALE OR RENTAL. – The Secretary of Defense may not permit the sale or rental of sexually explicit material on property under the jurisdiction of the Department of Defense.

(b) PROHIBITION OF OFFICIALLY PROVIDED SEXUALLY EXPLICIT MATERIAL. – A member of the armed forces or a civilian officer or employee of the Department of Defense acting in an official capacity may not provide for sale, remuneration, or rental of sexually explicit material to another person.

(c) REGULATIONS. – The Secretary of Defense shall prescribe regulations to implement this section.

(d) DEFINITIONS. – In this section:

(1) the term “sexually explicit material” means an audio recording, a film or video recording, or a periodical with visual depictions, produced in any medium, the dominant theme of which depicts or describes nudity, including sexual or excretory activities or organs, in a lascivious way.

Simultaneous with the effective date of the Act, the Department of Defense issued regulations in the form of a “directive-type-memorandum” outlining appropriate compliance policies for DoD and military officials. This memorandum, dated Dec. 26th, 1996, contains the following additional definitions:

1. Material. An audio recording, a film or video recording, or a periodical with visual depictions, produced in any medium.

2. Sexually Explicit Material. Material the dominant theme of which is the depiction or description of nudity, including sexual or excretory activities or organs, in a lascivious way.

3. Dominant Theme. A theme of any material that is superior in power, influence, and importance to all other themes in the material combined.

4. Lascivious. Lewd and intended or designed to elicit a sexual response.

The December 26th memorandum also provided that “material shall not be deemed sexually explicit because of any message or point of view expressed therein.”

Finally, the memorandum established the “Resale Activities Board of Review”. The Board reviews material currently offered for sale or rental on military property to determine whether such material is sexually explicit. Any material that the Board finds to be “sexually explicit” must be withdrawn from military retail outlets.

Defenders of the Act argued that it was necessary to preserve the military’s image of honor, professionalism, and proper decorum. In their view, although soldiers and sailors may purchase or rent sexually explicit materials in other locations, receive them by mail, possess, read and watch them, the military itself should not be in the business of selling or renting such items to its soldiers and sailors. Allowing sale or rental of these materials in military exchanges, the bill’s supporters argued, would create the appearance that the military endorses these materials.

A group of publishers and producers of sexually explicit materials have brought a law suit in federal district court seeking an injunction barring enforcement of the Military Honor and Decency Act and a declaratory judgment that the act is unconstitutional.

Discuss the constitutional issues raised by the lawsuit.

   
   

Question Two

(One Third)

Please answer either A or B:

Question A

Responding to a continuing pattern of blockades, vandalism, and violence aimed at abortion clinics and their patients and employees, the State of Confusion enacted the Freedom of Access to Clinic Entrances Act, 43 Confus. Stat. Rev. § 248 (1998). The Act provides in relevant part:

(a) Prohibited Activities. Whoever–

(1) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with any person because that person is or has been obtaining or providing reproductive health services, or

(2) in order to intimidate such person or any other person or any class of persons from obtaining or providing reproductive health services, intentionally damages or destroys the property of a facility, or attempts to do so, because such facility provides reproductive health services; or

(3) threatens or harasses a person, or attempts to threaten or harass a person, in order to prevent them from entering a facility that provides reproductive health services,

shall be subject to criminal penalties as provided in section (e) below, except that a parent or legal guardian of a minor shall not be subject to any penalties or civil remedies under this section for such activities insofar as they are directed exclusively at that minor.

 

(b) Regulation of picketing near reproductive health centers. No person or group of persons shall picket within 50 feet of the entrance to a facility that provides reproductive health services.

(c) Regulation of “sidewalk counselling” services. All person engaged in forms of protest other than picketing within 100 feet of a facility that provides reproductive health services and who seek to dissuade individuals from entering the facility, to counsel individuals about alternative forms of reproductive health services, or to distribute literature to persons entering or leaving the facility must stand at least 35 feet away from the entrance to the facility.

(d) Definitions. The term “physical obstruction,” means rendering impassable ingress to or egress from a facility that provides reproductive health services or rendering passage to or from such a facility unreasonably difficult or hazardous.

The term “reproductive health services” includes medical services for abortion or prenatal care.

(e) Penalties. Violation of this Act is a Class A misdemeanor punishable by a fine of up to $500 and up to 30 days in jail.

 

The day after the Act was signed into law, Stop Abortion Now, a political advocacy group, filed a law suit in federal court in the District of Confusion challenging the constitutionality of the Act both on its face and as applied to their activities.

Stop Abortion Now’s membership includes anti-abortion activists from New York, Virginia, Ohio, and the District of Columbia, whose protest activities take place in many different states, including the State of Confusion. SAN members picket abortion clinics, distribute literature, offer “sidewalk counseling” to women entering abortion facilities, and lead anti-abortion protesters in public prayer and slogan chanting. A standard practice at rallies in front of abortion facilities is to engage in sit-ins which temporarily block access to abortion facilities, and which usually require police to escort, or, in many cases, carry protesters from the ground to clear pathways for pedestrians and vehicles. SAN insists that all of its activities are completely nonviolent and adhere to principles of nonviolent resistance to unjust laws.

Discuss the constitutional issues raised by the lawsuit.

   
   

Question B

Confusion Stat. Rev. § 106-16 regulates the practice of “fortune telling.” The statute provides, in relevant part:

106-16. Regulation of fortune telling services.

1. Prohibition. It shall be illegal to engage in fortune telling services in the City of Confusion.

(a) “fortune telling services” means the provision of personal services through which a person promises to or attempts

(1) to tell fortunes, to overcome evil influences and bad luck, to treat the sick or ailing, to find or restore lost or stolen property, to locate gold, silver, or other valuable natural resources; to restore lost love or friendship or affection, to unite or procure lovers, husbands, wives, lost relatives or friends,

(2) by means of claimed occult or psychic powers, clairvoyance, mediumship, astrology, palmistry, necromancy, tarot cards, talismans, charms, potions, use of magnetized articles, numerology or magic of any kind.

2. Prohibition of Advertisements. No person shall advertise by sign, circular handbill, or in any newspaper, periodical or other publication, or by any other means, fortune telling services within the City of Confusion.

3. Exemption for bona fide religious practices. The provisions of sections 1 and 2 above shall not be construed to include, prohibit or interfere with the exercise of

(a) any religious or spiritual function of any priest, minister, rector, rabbi or any accredited representative of any bona fide church, synagogue or religion,

(b) when such priest, minister, rector, rabbi or accredited representative holds a certificate of credit, commission or ordination under the ecclesiastical laws of a religious corporation incorporated under the laws of any state or territory of the United States of America, or any voluntary religious association, and

(c) who conforms to the rites and practices prescribed by the supreme conferences, convocation, convention, assembly, association or synod of the system or faith with which such priest, minister, rector, rabbi or accredited representative is affiliated;

(d) provided, however, that any church or religious organization which is organized for the primary purpose of conferring certificates of commission, credit or ordination for a price, and not primarily for the purpose of practicing a religious doctrine or belief, shall not be deemed to be a bona fide church or religious organization.

4. Penalty. Every person who violates this ordinance shall be punished by a fine of not less than $1 and not exceeding $500 or by imprisonment for up to 30 days.

5. Severability. If any portion or portions of this statute are held unconstitutional, the court is authorized to sever the offending portion or portions and preserve as much of the statute as possible.

Sandra Starstruck has been a full-time practicing astrologer in the State of Confusion since 1970. She has appeared on a local cable access show in Confusion City and advertises for clients in the Confusion City Yellow Pages.

To practice her craft, Starstruck relies on the subject’s date, time, and place of birth, and a computer program that calculates star charts. Starstruck personally analyzes the meaning of these charts for her clients, offers advice about what to do or refrain from doing, and predicts the likelihood of certain events. For example, based on the client’s horoscope, Starstruck might advise that the client will be vulnerable to illness or accident-prone or that the client soon will meet a potential spouse or lover or get married.

Starstruck insists that she tells all of her clients that her advice does not rest upon predictions of what will actually happen. She claims that although astrological forces make certain results possible and even probable, the client retains free will to choose what to do.

Until 1997, Starstruck participated in a yearly town fair held on Memorial Day weekend in which she maintained a tent on the town green, with a large sign advertising her services. She charged $15 for a reading. In 1997, she was informed by a Officer Thomas Doubting of the Confusion City Police Department that she was in violation of Confus. Rev. State § 106-16 and that if she continued to practice astrology within the city limits she would be arrested.

James Robert (Jimmy Bob) Johnson is a preacher and faith healer who was raised as a member of a pentecostal sect but who broke away after being dissatisfied with the teachings of the denomination. He currently is associated with no organized church and has never been ordained by any denomination but refers to himself as a Minister for Christ and several of his followers refer to him as “Reverend Johnson.” He holds public prayer meetings at which he asks if any person in the audience needs to be healed. Worshipers often come to him asking him to help them with their health problems. He says prayers over them and lays hands on them. Some but not all of these worshipers report physical or emotional improvements as a result of these faith healing sessions. Johnson believes that when his faith healing works it is because it releases demons that have taken refuge inside people’s bodies and are forced out when Christ’s name is mentioned. Over the years he has developed elaborate theories about demons and demonology that he claims form the basis of his faith healing work. These beliefs led ultimately to his theological break with the pentecostal sect in which he was raised. During and after his prayer sessions, Johnson asks the audience for contributions. Most of his income derives from these contributions.

After hearing about Reverend Johnson’s faith healing sessions, Officer Doubting approached Johnson and asked if he was an ordained minister. When informed that he was not ordained by any church, Doubting informed him that he was in violation of Confus. Rev. State § 106-16 and asked him to cease and desist from advertising his prayer meetings.

Both Starstruck and Johnson have approached you about bringing an action to enjoin enforcement of the statute and seeking a declaration that the statute is unconstitutional.

Discuss the constitutional issues raised by the lawsuit.

Question Three

(One Third)

Write an essay explaining how the rise of the welfare state and its associated technologies of governance– including licenses, tax incentives, subsidies, and statutory entitlements– have affected and complicated our understanding of the protections afforded by the Free Speech, Establishment, and Free Exercise Clauses. Give concrete examples drawn from the cases we have studied in this course. How does the welfare state affect traditional libertarian arguments for government noninterference or governmental neutrality? Are there any important lessons to be learned about how to reconcile the first amendment’s guarantees of religious and expressive liberty with the welfare state?

END OF EXAMINATION