Spring 1996 The First Amendment Law Exam
YALE LAW SCHOOLSpring Term 1996 ExaminationThe First AmendmentMay, 1996(Self-Scheduled– Twenty Four Hours)Professor BalkinInstructions1. 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. 7. Good luck. |
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Question One From approximately 1985 through 1993, Lubavitch of Confusion City, Inc., an Orthodox Jewish Organization (“Lubavitch”), had received annual permission to display a menorah in the lobby of the City Hall in Confusion City in the State of Confusion during the Jewish festival of Chanukah. A menorah, a religious symbol associated with Chanukah, is a candelabrum that is lit during each of the eight nights of the festival. Lubavitch’s menorah display was accompanied by a sign stating “Lubavitch wishes you a Happy Chanukah,” and members of the organization were permitted to light candles on the menorah. The City Hall Building in downtown Confusion City is administered by the Confusion City Building Authority, a municipal corporation. The tenants of the building include many of the offices, agencies and departments of the City. The lobby of the building is open to the public during business hours. Mr. Melvin Manager, General Manager of the Building Authority, is responsible for granting or denying requests to use lobby space in the building. For many years, the Building Authority has allowed broad access to the lobby to a wide variety of public and private speakers. Requests to use the lobby and to place displays or exhibits in the lobby are usually made in writing, addressed to the Building Authority. Of the 117 written requests made by public and private groups from 1990 through September 22, 1995, all were granted, except five requests for sales or fundraising activities, one request for use by the same party a third time within the same month, and, in 1994 and 1995, Lubavitch’s requests to display their menorah at Chanukah. There does not appear to have been a clear policy against the sale of goods in the lobby, because requests were approved for use of the lobby for the sale of Girl Scout cookies and tickets for the Confusion State Bar Association’s Annual Banquet and Awards Ceremony. Notations made by Mr. Manager on the written requests for space indicated that decisions were made on the basis of availability of space. During Chanukah 1993, the Building Authority received complaints that the display of the menorah in the lobby violated the Establishment Clause of the Constitution. Thereafter, at its October 4, 1994 meeting, the Building Authority considered and unanimously adopted a “Policy on Seasonal Displays,” which stated: Religious displays and displays of religious symbols are not permitted in the City Hall Building. Regardless of the technical legal status of such displays, it is the opinion of the Building Authority that the display of seasonal religious symbols in the halls of government inevitably conveys the appearance of governmental endorsement of religion which is in violation of the spirit if not the letter of Establishment Clause. The Building Authority also wishes to avoid unnecessary sectarian strife and controversy and the problems surrounding the design and implementation of disclaimers that would otherwise be necessary for the display of religious symbols. This policy shall not extend to display of secular symbols in the City Hall lobby. Moreover, the Building Authority reserves the right to limit the use of lobby to specific subject matters in the future on a viewpoint neutral basis. In particular, it is specifically not the intention of the Building Authority that the City Hall lobby shall be held open as a designated public forum for the discussion of all subjects or the display of all materials. In November of 1994 the Building Authority prohibited both the menorah and a Christmas tree in its lobby. However, once it was informed by counsel that courts treat a Christmas tree as a secular, rather than religious, symbol, the Building Authority Board decided in its December 1, 1994 meeting that a Christmas tree in the lobby was consistent with its policy. It erected its own Christmas tree in the lobby, but continued to prohibit display of the menorah on the ground that its Policy on Seasonal Displays forbade religious displays and symbols in the lobby. Lubavitch did not pursue its efforts to present its display in 1994. In 1995, however, after it again was denied permission to display its menorah on the same grounds, the plaintiffs filed a complaint, seeking declaratory and injunctive relief against the Building Authority and Mr. Manager in his official capacity. Discuss the relevant first amendment issues. Is the Building Authority’s policy constitutional? How should the court rule on any request for injunctive relief? |
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Question Two For some time merchants in the downtown area of Confusion City have complained about two problems. The first is the large number of homeless people lying on the streets, often begging for money or food. The second is the number of people peddling T-shirts and other wares on the streets. In order to meet these concerns, the Confusion City Council passed the Omnibus Safe Streets Act of 1996. The Act contained two major parts, commonly referred to as the “sitting ordinance” and the “peddling ordinance:” Section 15.48.040 Sitting or lying down on public sidewalks in downtown and neighborhood commercial zones prohibited: A. Prohibition. No person shall sit or lie down upon a public sidewalk, or upon a blanket, chair, stool, or any other object placed upon a public sidewalk, during the hours between 7:00 a.m. and 9:00 p.m. in the following zones: 1. The Downtown Zone, defined as the area bounded by the Jackson Street on the West, Bennington Street on the South, Route 15 on the East, and Broad Avenue on the North. 2. All Neighborhood Commercial Zones, defined as areas zoned as Commercial 1 (C1), Commercial 2 (C2), Neighborhood Commercial 1 (NC1), Neighborhood Commercial 2 (NC2), and Neighborhood Commercial 3 (NC3). B. Exceptions. The prohibitions contained in Subsection A shall not apply to any person: 1. sitting or lying down on a public sidewalk due to a medical emergency; 2. who, as the result of a disability, utilizes a wheelchair, walker, or similar device to move about the public sidewalk; 3. operating or patronizing a commercial establishment conducted on the public sidewalk pursuant to a street use permit; 4. participating in or attending a parade, festival, performance, rally, demonstration, meeting, or similar event conducted on the public sidewalk pursuant to a street use permit or other applicable permit; 5. sitting on a chair or bench located on the public sidewalk which is supplied by a public agency or by the abutting private property owner; or 6. sitting on a public sidewalk within a bus stop zone while waiting for public or private transportation. Section 15.48.050 Peddling of Wares Prohibited: A. Prohibition. It shall be illegal to sell or offer for sale goods, wares, merchandise, foodstuffs, refreshments or other kinds of property or services upon the public streets, alleys, sidewalks, public malls, parks, beaches and other public places in Confusion City. B. Exceptions. The prohibitions contained in section A shall not apply to the sale of: 1. Newspapers and magazines of general circulation. 2. Duly authorized concessions at public sporting events. 3. Buttons, t-shirts, and souvenir items sold in conjunction with a lawful parade. In a preamble to the Omnibus Safe Streets Act, the Confusion City Council declared that: In some circumstances people sitting or lying on the sidewalks deter many members of the public from frequenting commercial areas, which contributes to undermining the essential economic viability of those areas. Business failures and relocations can cause vacant storefronts which contribute to a spiral of deterioration and blight. Many visitors and local residents have also complained about the proliferation of T-shirt vendors who set up tables on some of the busiest commercial streets in Confusion City. These T-shirt tables are not only an obstruction and a visual eyesore, they also draw tourist business away from storefront merchants. Because street vendors lack the same overhead costs, they unfairly compete with storefront merchants and threaten to drive them out of business, contributing to the deterioration of important commercial areas. During debate over the ordinance, civil rights activists complained bitterly that the ordinance would greatly hamper the constitutionally protected activities of homeless people, street artists, and other citizens. In their view, the ordinance would make it illegal for people to communicate, meet, protest, sleep, beg, solicit alms, or engage in other First Amendment activities on sidewalks of Confusion City whenever sitting or lying was involved. They further complained that the ordinance is targeted at expressive activity because its exceptions exempt large numbers of non-expressive activities. The ordinance was also opposed by non-profit organizations selling T-shirts on the streets of Confusion City. These T-shirts contained political, religious, and philosophical messages. Many of the T-shirts also featured colorful depictions of local scenery similar to those featured in retail stores and catering to tourists. The non-profit organizations argued that selling T-shirts is a particularly effective way to communicate because those who buy and wear the T-shirts help spread the messages displayed on them. You have been approached by members of Shelter, Inc., an advocacy organization representing the interests of the homeless, and Joe and Eddie’s New World Order, a non-profit spiritual organization devoted to spreading the message that peaceful meditation and spiritual development will solve many of the most pressing problems facing the planet. Before passage of the ordinance, New World Order had regularly operated a T-shirt table on Grandiose Avenue. Their T-shirts featured various philosophical and inspirational messages, such as “Imagine Peace,” “Just Chill Out, Dude,” “Meditation is Mediation” and “Don’t Get Mad, Get Even Tempered.” Shelter, Inc., has sought to protect the legal rights of the homeless to beg in the streets, and has encouraged homeless persons and others to sit silently in conspicuous areas of downtown Confusion City while holding or wearing signs critical of Federal and State policies regarding the homeless. Both organizations would like to sue the City for declaratory and injunctive relief, on the grounds that the Omnibus Act violates their First Amendment Rights. How would you advise them? |
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Question Three Consider the following quote: (1) R.A.V. v. City of St. Paul END OF EXAMINATION |
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