Spring 2003 The First Amendment Law Exam

       
   

YALE LAW SCHOOL

Spring Term 2003 Examination

The First Amendment

May, 2003

(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)

Irving Cliff is the author of a self-published book entitled “Pay No Taxes: End the Federal Government’s Extortion.” In the book, Cliff argues that “there is no law requiring Americans to pay taxes,” and that “IRS agents have as much authority to audit you as you have to audit them.” He continues:

If you’ve been worrying about taxes every April 15th, you can stop worrying now! Legally you don’t “owe” the government one dime, because there is no law on the books requiring anyone to pay income tax. Ever. It’s all a colossal fraud perpetrated by the military industrial complex. For income tax purposes, you can legally report “zero” income and pay no income taxes regardless of how much you might have earned.

The 16th Amendment to the United States does not permit the federal government to compel citizens to pay income taxes. Why? Because a mandatory income tax would be an unconstitutional direct tax under Article I, sections 2 and 9 of the U.S. Constitution, which state that direct taxes must be apportioned among the states by population. Those sections were left unaffected by the 16th Amendment, as the Supreme Court has repeatedly found! So although the Federal government can ask you nicely to pay income taxes, you never have to pay if you don’t want to!

The book explains how to file a tax return that states that a person owes no taxable income, and asserts that Cliff has done so for the past thirteen years without any harmful legal consequences.

Mr Cliff advertises his book on a website, www.paynotaxever.com and through advertisements in various alternative newspapers. He prints the book through a contractual arrangement with a local printing company and sells the book from his own house. He also gives a series of seminars around the country at which he charges $1,000 per person. During these seminars he repeats the arguments of his book, explaining why the 16th Amendment did not legalize mandatory income taxes, why Americans are free to report zero legally taxable income on their tax returns, and showing in detail how to file a return that achieves this goal. He concludes his seminars urging the participants to report zero taxable income using the methods described in his book, arguing that “You’re a chump if you don’t follow my advice!”

The Internal Revenue Service reports that thousands of people, acting in accordance with Cliff’s assertions, have filed false tax returns claiming that they owe the federal government no income, leading to a series of costly investigations and audits, and, in some cases, federal prosecutions for tax evasion.

The federal government regards Mr. Cliff’s activities as fraudulent and his legal theory about income taxation as completely without basis in law. It would like to prosecute Cliff for (1) advertising his book, (2) selling the book, and (3) giving seminars on how to avoid paying taxes using the theories contained in the book. It plans to prosecute him both under federal laws against false and misleading advertising and under federal laws which make it a crime to aid and abet the commission of a federal crime. It also seeks to obtain an injunction against Cliff, ordering him to cease and desist immediately (1) advertising the book, (1) selling the book, and (1) giving seminars at which he counsels people how to avoid paying taxes using his fraudulent theories.

Discuss the First Amendment issues involved.

   
   

(Question Two)

Following the terrorist attacks on September 11th, 2001, citizens in the State of Confusion spontaneously began to hang American flags from highway overpasses. Late in October 2002, during the debate over the war with Iraq, Peter Peacenik hung a series of anti-war banners from highway overpasses, with messages such as “No War for Oil,” “Bush is a Bully,” and “Say No to American Imperialism.” Confusion State Highway patrolmen removed these signs within 24 hours after they were put up. Incensed at Peacenik’s tactics, Boris Bellicose responded by hanging a series of American flags with a large cross superimposed on them and the words “God Loves America; God Hates Radical Islam.” The Confusion State Highway Patrol removed these signs as well.

Peacenik and Bellicose demanded to know why their signs had been removed when other hangings of American flags had not. A spokesman for the Confusion State Highway Patrol informed them that (1) the highway overpasses were the property of the State of Confusion, (2) that all banners on highway overpasses required a permit from the State Highway Patrol, and (3) that permits are available only for signs designating turnoffs for special events like community picnics or concerts. The reason for the permit requirement is that the Highway Patrol wants to ensure that highway overpasses are not clogged with displays that might distract traffic. In addition the Highway Patrol is concerned about accidents and injuries that might occur from hanging or removing the banners on a highway overpass, as well as the possibility that the banners might accidentally fall onto the highway and cause a traffic accident.

Although the Highway Patrol acknowledged that some banners have been hung over the years that do not fall into the permitted categories, this has occurred without the permission of the Highway Patrol and all such banners have been removed as soon as the Highway Patrol was notified of their presence. Nevertheless, following the terrorist attacks of September 11th the Highway Patrol decided not to require permits for hanging American flags from highway overpasses. Bellicose’s banners, however, were not, in the spokesman’s words, “pure flags.” They contained additional messages and therefore did not fall into the exception for the display of American flags.

Protester and Bellicose come to you seeking legal relief. Discuss the First Amendment issues involved.

   
   

(Question Three)

Following the terrorist attacks of 9/11, on September 13th, 2001, President Bush called for a National Day of Prayer and Remembrance for victims of the 9/11 bombing to be held on September 14th, 2001. In his Sept. 13 proclamation, Bush stated:

Scripture says: “Blessed are those who mourn for they shall be comforted.” I call on every American family and the family of America to observe a National Day of Prayer and Remembrance, honoring the memory of the thousands of victims of these brutal attacks and comforting those who lost loved ones. We will persevere through this national tragedy and personal loss. In time, we will find healing and recovery; and, in the face of all this evil, we remain strong and united, “one Nation under God.”

NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim Friday, September 14, 2001, as a National Day of Prayer and Remembrance for the Victims of the Terrorist Attacks on September 11, 2001. I ask that the people of the United States and places of worship mark this National Day of Prayer and Remembrance with noontime memorial services, the ringing of bells at that hour, and evening candlelight remembrance vigils. I encourage employers to permit their workers more time off during the lunch hour to attend the noontime services to pray for our land. I invite the people of the world who share our grief to join us in these solemn observances.”

On September 14th, President Bush attended a service at the National Cathedral in Washington along with many American political leaders, including four former presidents (Clinton, Bush, Carter and Ford). At the service, President Bush told the crowd,

This nation is peaceful, but fierce when stirred to anger. This conflict was begun on the timing and terms of others; it will end in a way and at an hour of our choosing.

Our purpose as a nation is firm, yet our wounds as a people are recent and unhealed and lead us to pray. In many of our prayers this week, there’s a searching and an honesty. At St. Patrick’s Cathedral in New York, on Tuesday, a woman said, “I pray to God to give us a sign that he’s still here.” Others have prayed for the same, searching hospital to hospital, carrying pictures of those still missing.

God’s signs are not always the ones we look for. We learn in tragedy that his purposes are not always our own, yet the prayers of private suffering, whether in our homes or in this great cathedral are known and heard and understood.

There are prayers that help us last through the day or endure the night. There are prayers of friends and strangers that give us strength for the journey, and there are prayers that yield our will to a will greater than our own.

This world He created is of moral design. Grief and tragedy and hatred are only for a time. Goodness, remembrance and love have no end, and the Lord of life holds all who die and all who mourn.

The President concluded:

On this national day of prayer and remembrance, we ask almighty God to watch over our nation and grant us patience and resolve in all that is to come. We pray that He will comfort and console those who now walk in sorrow. We thank Him for each life we now must mourn, and the promise of a life to come.

As we’ve been assured, neither death nor life nor angels nor principalities, nor powers nor things present nor things to come nor height nor depth can separate us from God’s love.

May He bless the souls of the departed. May He comfort our own. And may He always guide our country.

God bless America.

The service at the National Cathedral opened with prayer from religious leaders, including: Dr. Muzammil Siddiqi, imam for the Islamic Society of North America; Rabbi Joshua Haberman, rabbi emeritus of the Washington Hebrew Congregation; and Cardinal Terrence McCarrick, archbishop of Washington. Siddiqi read a verse from the Koran, Islam’s holy book, which says, “Those that lay the plots of evil, for them is a terrible penalty, and the plotting of such will not abide.” Evangelist Billy Graham delivered the sermon during the service at the National Cathedral. He said, “We come together today to affirm our conviction that God cares for us, whatever our ethnic, religious or political background may be. The Bible says that He is ‘the God of all comfort, who comforts us in all our troubles.’”

Do any of the activities described in this account violate the Establishment Clause of the First Amendment? Explain. What theory of the Religion Clauses justifies your position?

END OF EXAMINATION