Spring 2001 The First Amendment Law Exam

       
   

YALE LAW SCHOOL

Spring Term 2001 Examination

The First Amendment

May, 2001

(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 6,000 words.

2. Please read each question carefully and pay attention to what you are being asked to do.

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)

Every year, Manic High School in Confusion City, a public high school, conducts a formal graduation ceremony. Since 1968 the program has been roughly the same: Welcoming remarks by the principal, the singing of the National Anthem, vocal selections, a graduation speech by the valedictorian, presentation of the class and diplomas, and a recessional.

Beginning in 1995, all student speeches and invocations for graduation have been reviewed by the principal, who has the final say regarding their content. Until the class of 2001 graduation, the principal had needed to change the content of speeches only for grammatical errors. The District requires all students to sign a contract obligating themselves to act and dress in accordance with school instructions at the graduation ceremony. However, a student does not have to attend the ceremony to obtain a diploma.

Although Manic High’s policy does not specifically enumerate what types of content are permitted or prohibited, faculty advisors assisting in planning the graduation in recent years have repeatedly told students to make their presentations “nondenominational” and “inclusive of all beliefs.”

Shortly after the beginning of 2001, Patricia Pious was named valedictorian of her high school class. Pious submitted her proposed remarks to the Manic High principal, Orville Oversight, at the beginning of April. Pious’ speech was a detailed discussion of how Jesus Christ had entered her life and helped her get over the grief caused by her parent’s very messy and public divorce. It concluded with the exhortation that “we are all God’s children. We must accept that God created us, and that all of our plans will come to naught unless we accept Jesus Christ as our personal savior and pattern our lives after His example.” Principal Oversight told Pious that the speech was unacceptable because it was “no more than a sermon” and contained “private matters that were not appropriate in a graduation ceremony.” Pious submitted a new version with an introduction stating that she was going to refer to Jesus Christ repeatedly, and that if any one was offended they were not required to remain. Principal Oversight rejected this version as well.

Pious has filed a petition for an injunction asking the court to order the school district and Principal Oversight to allow her to present her speech at graduation on the grounds that the refusal to allow her to deliver her address violates her free speech and free exercise rights. At the same time, a group of parents has filed a request for an injunction seeking to prevent the school from accepting Pious’ speech and permitting it to be delivered at the graduation on the grounds that this would violate the Establishment Clause. The district court has consolidated the two requests together. How should it rule, and why?

   
   

Question Two

(One Third)

The State of Confusion requires that all motor vehicles be registered with the Department of Revenue (DOR). To legally operate a vehicle on the roads, the owner must obtain a valid Confusion State license plate and attach it to the vehicle. The standard Confusion State license plate is a green, white and blue plate with a configuration of six characters: three numbers and three letters with a space in between the first three and last three characters.

In 1985, the State of Confusion passed Confus. Rev. Stat. §31.1003 which allowed for personalized (“vanity”) license plates. Individual vehicle owners may, for an additional $15.00 a year fee, have a license plate with any combination of eight characters, whether numbers or letters. The only limitations placed on the content of the plate are that the DOR may issue no duplicate plates, and that “no personalized license plates shall be issued containing any letters, numbers or combination of letters and numbers which are obscene, indecent, profane, or inflammatory.” Confus. Rev. Stat. § 31.1003(a)(2)(West 1999). The vanity plate program generates roughly $2.3 million annually in revenue for the State of Confusion.

According to an internal memorandum describing the DOR’s practices, when the DOR receives an application, a clerk reviews it to determine whether the requested configuration is already taken or is on a list of impermissible configurations that have been denied in the past. This clerk also reviews the requested configuration to determine whether the plate is “clearly and without question, obscene, indecent, profane or inflammatory.” If the clerk deems the configuration unacceptable for any of these reasons, she will request a determination from a three person review board, which will assess the application to decide whether to uphold the clerk’s determination. If the clerk’s determination is upheld and the application is denied, the clerk will then review any other alternative configurations submitted by the applicant. If the applicant has submitted no other configurations, the clerk will return the application and fee with a letter explaining the reasons for denial. However, if the review committee finds that the requested configuration is not obscene, indecent, profane or inflammatory, the plate will be manufactured and issued to the applicant.

From time to time, the DOR receives complaints regarding particular vanity plates that have been issued. When the DOR receives such a complaint, the General Counsel of the DOR reviews both the complaint and the configuration. The General Counsel then consults with the three person review board and makes a decision as to whether or not to recall the plate because it violates the statute as being obscene, indecent, profane or inflammatory.

In January of 2000, Rufus Rabblerouser submitted an application to the DOR requesting the licence plate JEWSDIE. His second choice was ARYAN1, and his third choice was HITLER. The clerk who reviewed the request did not find Rabblerouser’s first choice to be clearly in violation of the statute, and issued a licence plate with the letters JEWSDIE. Two months, later, the DOR received more than two dozen complaints from citizens in Rabblerouser’s hometown of Confusion City, requesting that the plate be recalled. The General Counsel of the DOR reviewed the application and conferred with the three person review board. The General Counsel then wrote to Rabblerouser requesting him to surrender the license plate on the grounds that the plate was in violation of § 31.1003(a)(2) because it was inflammatory and might lead to acts of “road rage.” Rabblerouser refused and brought a declaratory judgment action in federal court seeking to establish his right to retain the license plate.

The same day that Rabblerouser was given his plate, Richard Rambunctious received a letter from the DOR stating that it had refused to issue him the requested license plate BIGDICK, on the grounds that the plate was “indecent” and “profane”; it explained that the requested message was “harmful to minors, and would clearly offend parents of small children.” Rambunctious subsequently brought an action in federal court demanding that the DOR issue a plate with those letters.

Discuss the first amendment issues raised by these two lawsuits.

   
   

Question Three

(One Third)

Please write an essay that answers the following questions:

A standard justification of the free speech principle is that freedom of speech promotes democracy.

(1) Given the cases that we have studied in this course, and the shape of doctrine as it actually exists today (as opposed to the way that you would ideally want the cases to be decided or the doctrine to be structured) to what extent is this true? To what extent is existing doctrine actually serving other values? Are all of these values normatively attractive?

(2) “Democracy” is a contested term. There are many different versions of “democracy.” What conception of “democracy” is implicit in the cases you have studied in this course? What, if anything, is wrong with this conception?

END OF EXAMINATION