Spring 1995 The First Amendment Law Exam

       
   

YALE LAW SCHOOL

Spring Term 1995 Examination

The First Amendment

May 9th, 1995

(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.

7. Good luck.

   
   

Question One
(One Third)

In May of 1993, the Confusion City Council adopted the Freedom of Access Act. The Act was designed to regulate protest activity outside medical clinics and places of worship.

The Ordinance was passed in the wake of complaints by individuals and organizations about the conduct of anti-abortion protestors. For example, a representative of a local Planned Parenthood clinic complained that protestors were disrupting traffic, impeding access to the clinic, and confronting patients and staff members in a harassing fashion. There were also complaints that protestors had confronted abortion providers at their churches.

The text of the Ordinance read as follows:

Section 311.4 Freedom of Access Act

Section 311.41 Impeding Access Prohibited

A. DEMONSTRATION ACTIVITY - OBLIGATION TO WITHDRAW. No person, in the course of demonstration activity within the access area of a health care facility or place of worship, acting alone or in concert with others, shall impede or hamper the free access to or departure from any health care facility or place of worship; and any such person who so impedes or hampers such free access or departure shall withdraw immediately to a distance of at least ten (10) feet away from any person who has requested such withdrawal. For the purposes of this Section, the words “impede or hamper” mean to obstruct, hinder or delay.

B. WITHDRAWAL. For the purposes of this Section, withdrawal may be requested by a person verbally, or by carrying or wearing a visible sign clearly indicating such withdrawal request. Statements by a person, or signs carried or worn by a person displaying words or symbols which to a reasonable person would suggest a request for withdrawal, or such as or similar in effect to “stop,” “stop it,” “withdraw,” “back off,” “get away,” or “leave me alone” shall be sufficient to constitute a demand for withdrawal. However, mere statements of opinion or disagreement made in the absence of a request to withdraw shall not be construed to be a request under this Section.

C. DISTANCE. Distance under this Section shall be measured from that part of the closest demonstrator’s body that is nearest to the closest part of the requesting person’s body. For purposes of the preceding sentence, the term “body” shall include any natural or artificial extension thereof, including, but not limited to, and outstretched arm or handheld sign.

Section 311.42 Access to Driveway Areas

No person shall conduct any demonstration activity within the driveway area or within ten (10) feet of the driveway area of a health care facility or place of worship, provided however that it shall be lawful for a person to use a public sidewalk or street right-of-way adjacent to a health care facility or place of worship in order to traverse a driveway area. No person shall impede access to a driveway entrance of a health care facility or place of worship by any conduct which delays or impedes the flow of pedestrian or vehicular traffic in or out of such facility.

Section 311.43 Definitions

As used in this Chapter, the following terms and phrases shall have the following meanings:

  • A. ACCESS AREA. Any portion of a public street or other public place or any place open to the public within one hundred (100) feet of the premises of a health care facility or place of worship.

  • B. HEALTH CARE FACILITY. Any medical or health facility, hospital or clinic within the City which is licensed under State law or any building, office or other place within the City regularly used by any health care provider licensed under State law to provide medical, nursing, or health care or advice to patients. A health care facility includes but is not limited to any buildings, appurtenances and grounds, entrances, parking facilities, and driveways.

  • C. PLACE OF WORSHIP. A place of worship includes but is not limited to any buildings, appurtenances and grounds, entrances, parking facilities, and driveways where persons gather to worship when the same are used solely and exclusively for religious worship.

  • D. DEMONSTRATION ACTIVITY. Picketing, congregating, shouting, soliciting, distributing literature, blocking, forming a human chain, or lying down on the ground in order to obstruct the flow of vehicular or personal traffic.

  • E. DRIVEWAY AREA. That portion of a street right-of-way (including a sidewalk) generally improved for the purposes of providing a vehicular access to adjacent private property. At the request of a health care facility or place of worship, the City of Confusion City will indicate (such as through the use of painted lines) the perimeter boundaries of a driveway area.

At the City Council meeting at which the Ordinance was debated, both anti-abortion protesters and representatives from Planned Parenthood made speeches. A representative from Rescue U.S.A., an anti-abortion group which had engaged in most of the protests being complained of, argued that “this ordinance is nothing more than a transparent attempt to silence anti-abortion protesters.” Other members of Rescue U.S.A argued that they would be afraid to engage in any communicative activities within ten feet of a clinic driveway. Moreover, they would be unable to engage in one-on-one counseling sessions, which they claimed were the most effective ways of dissuading women from obtaining abortions and gaining new converts.

Councilman Len Loudmouth, a proponent of the ordinance, argued that “we need this ordinance to keep these anti-abortion crazies away from law abiding citizens. If they want to lie on the ground so much, let’s see how they like lying on the floor of a jail cell!” Councilman William Wavering argued that he had doubts about the constitutionality of the ordinance with respect to churches, but thought that it might be constitutional if it were also extended to protests at schools. However, he eventually voted for the ordinance, saying “I don’t want my vote to be interpreted as either being for abortion or against abortion. I am voting on this issue on the basis that it is an access issue.” The Ordinance passed by a vote of 5-2 with two abstentions.

Since the passage of the ordinance, 97 out of 101 persons cited for violations have been anti-abortion protesters. When asked about the application of the Ordinance in an newspaper interview, Chief of Police Brian Knightstick said “We only go after the troublemakers, the people who are causing a ruckus. If somebody’s singing a folk song on a guitar and they’re just standing in the path of a person going into a church or hospital, we’re not going to arrest them for that. But if someone’s singing an anti-abortion song and chasing after a woman who’s entering a clinic, we’ll pick’em up if the woman tells them, “get away from me,” and they don’t leave her alone. We know who’s causing trouble and who isn’t.”

Doris Demonstrator and Peter Protester have each been arrested for violations of the ordinance. Doris was arrested after she lay in the driveway outside an abortion clinic and refused to move when cars tried to enter the driveway; instead she sang religious hymns loudly. Peter approached a woman who was going into a church and asked her if she would like to read a pamphlet on the evils of abortion. After she said “please, I don’t want to, please leave me alone,” he replied, “Come on, it’ll only take a minute, and it would mean so much.” At that point he was arrested.

The two defendants believe that, because of the First Amendment, they cannot constitutionally be prosecuted under this ordinance. Are they right? Discuss the First Amendment issues raised by the ordinance and how they might affect the prosecutions of these two defendants.

   
   

Question Two
(One Third)

A recently introduced anti-terrorism measure (1995 H.R. 896; 104 H.R. 896, March 22, 1995, Version 2) would permit the President to label an organization as a “terrorist organization” if the President finds that the organization in question is engaged in or has engaged in terrorist activities. The bill would make it a crime to contribute money to or engage in fundraising activities on behalf of a designated “terrorist organization” without prior permission of the Treasury Department. It would also require disclosure of records relating to any such contribution. The relevant text of the legislation is given below.

Discuss the First Amendment problems are raised by this bill. In what ways, if any, could the courts interpret the bill to avoid these problems?

TITLE III-CONTROLS OVER TERRORIST FUND-RAISING

SEC. 301. TERRORIST FUND-RAISING PROHIBITED.

(a) Chapter 113B of title 18, United States Code, is amended by adding at the end thereof the following new section:

“2339B. Fund-raising for terrorist organizations

….

“(c) DESIGNATION.-

  “(1) [T]he President is authorized to designate any foreign organization based on finding that-

  “(A) the organization engages in terrorism activity as defined [below]; and

  “(B) the organization’s terrorism activities threaten the national security, foreign policy, or economy of the United States.

  “(2) [T]he President is also authorized to designate persons which are raising funds for, or acting for or on behalf of, any organization designated pursuant to subsection (c)(1) above.

  “(3) If the President finds that the conditions which were the basis for any designation issued under this subsection have changed in such a manner as to warrant revocation of such designation, or that the national security, foreign relations, or economic interests of the United States so warrant, he may revoke such designation in whole or in part.

  “(4) Any designation, or revocation thereof, issued pursuant to this subsection shall be published in the Federal Register and shall become effective immediately on publication.

  ….

  “(6) Any finding made in any designation issued pursuant to paragraph (1) of this subsection that a foreign organization engages in terrorism activity shall be conclusive. No question concerning the validity of the issuance of such designation may be raised by a defendant in a criminal prosecution as a defense in or as an objection to any trial or hearing if such designation was issued and published in the Federal Register in accordance with this subsection.

 ”(d) PROHIBITED ACTIVITIES.-

  “(1) Except as authorized pursuant to the procedures in subsection (e), it shall be unlawful for any person within the United States, or any person subject to the jurisdiction of the United States anywhere, to directly or indirectly, raise, receive or collect on behalf of, or furnish, give, transmit, transfer or provide funds to or for an organization or person designated by the President under subsection (c), or to attempt to do any of the foregoing.

  “(2) It shall be unlawful for any person within the United States or any person subject to the jurisdiction of the United States anywhere, acting for or on behalf of any organization or person designated under subsection (c),

  (A) to transmit, transfer, or receive any funds raised in violation of subsection (d)(1), or

  (B) to transmit, transfer or dispose of any funds in which any organization or person designated pursuant to subsection (c) has an interest.

“(e) AUTHORIZED TRANSACTIONS.-

  “(1) The Secretary [of the Treasury] shall publish regulations, consistent with the provisions of this subsection, setting forth the procedures to be followed by persons seeking to raise or provide funds for an organization designated under subsection (c)(1).

  “(2) Any person within the United States, or any person subject to the jurisdiction of the United States anywhere, who seeks to solicit funds for or to transfer funds to any organization or person designated under subsection (c) shall, regardless of whether it has an agency relationship with the designated organization or person, first obtain a license from the Secretary and may thereafter solicit funds or transfer funds to a designated organization or person only as permitted under the terms of a license issued by the Secretary.

  “(3) The Secretary shall grant a license only after the person establishes to the satisfaction of the Secretary that-

  “(A) the funds are intended to be used exclusively for religious, charitable, literary, or educational purposes; and

  “(B) all recipient organizations in any fund-raising chain have effective procedures in place to ensure that the funds

  (i) will be used exclusively for religious, charitable, literary, or educational purposes, and

  (ii) will not be used to offset a transfer of funds to be used in terrorist activity.

  “(4) Any person granted a license shall maintain books and records, as required by the Secretary, that establish the source of all funds it receives, expenses it incurs, and disbursements it makes. Such books and records shall be made available for inspection within two business days of a request by the Secretary. Any person granted a license shall also have an agreement with any recipient organization or person that such organization’s or person’s books and records, wherever located, must be made available for inspection of the Secretary upon a request of the Secretary at a place and time agreeable to that organization or person and the Secretary.

….

“(h) RECORDKEEPING AND REPORTING; CIVIL PROCEDURES.-

  “(1) Notwithstanding any other provision of law, in exercising the authorities granted by this section, the Secretary and the Attorney General may require any person to keep a full record of, and to furnish under oath, in the form of reports or otherwise, complete information relative to any act or transaction referred to in this section either before, during, or after the completion thereof, or relative to any funds referred to in this section, or as may be necessary to enforce the terms of this section. In any case in which a report by a person could be required under this subsection, the Secretary or the Attorney General may require the production of any books of account, records, contracts, letters, memoranda, or other papers or documents, whether maintained in hard copy or electronically, in the control or custody of such person.

….

“(i) PENALTIES.-

  “(1) Any person who knowingly violates subsection (d) shall be fined under this title, or imprisoned for up to ten years, or both.

  “(2)(A) Any person who fails to maintain or to make available to the Secretary upon his request or demand the books or records required by subsection (e), or by regulations promulgated thereunder, shall be subject to a civil penalty of $50,000 or twice the amount of money which would have been documented had the books and records been properly maintained, whichever is greater.

  ….

  “(C) Except as otherwise specified in this section, any person who violates any license, order, direction, or regulation issued pursuant to this section shall be subject to a civil penalty of $50,000 per violation, or twice the value of the violation, whichever is greater.

  “(3) Any person who intentionally fails to maintain or to make available to the Secretary the books or records required by subsection (e), or by regulations promulgated thereunder, shall be fined under this title, or imprisoned for up to five years, or both.

  “(4) Any organization convicted of an offense under (h) (1) … of this section shall, upon conviction, forfeit any charitable designation it might have received under the Internal Revenue Code.

“(j) INJUNCTION.-

  “(1) Whenever it appears to the Secretary or the Attorney General that any person is engaged in, or is about to engage in, any act which constitutes, or would constitute, a violation of this section, the Attorney General may initiate civil action in a district court of the United States to enjoin such violation.

….

“(m) DEFINITIONS.-As used in this section, the term-

….

  “(3) ‘funds’ includes coin or currency of the United States or any other country, traveler’s checks, personal checks, bank checks, money orders, stocks, bonds, debentures, drafts, letters of credit, any other negotiable instrument, and any electronic representation of any of the foregoing;

  “(4) ‘national security’ means the national defense and foreign relations of the United States;

  “(5) ‘person’ includes an individual, partnership, association, group, corporation, or other organization;

….; and

  “(7) ‘United States’, when used in a geographical sense, includes all commonwealths, territories, and possessions of the United States.”

SEC. 202. CHANGES TO THE IMMIGRATION AND NATIONALITY ACT TO FACILITATE REMOVAL OF ALIEN TERRORISTS. [Includes relevant definitions of terrorism and terrorist activities]

(a) Section 212(a)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)) is amended to read as follows:

  “(B) TERRORISM ACTIVITIES.

  ….

  “(ii) TERRORISM ACTIVITY DEFINED.-As used in this Act, the term “terrorism activity’ means any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State), and which involves any of the following:

  “(I) The hijacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle).

  “(II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.

  ….

  “(IV) An assassination.

  “(V) The use of any-

  “(aa) biological agent, chemical agent, or nuclear weapon or device, or

  “(bb) explosive, firearm, or other weapon (other than for mere personal monetary gain), with intent to endanger, directly, or indirectly, the safety of one or more individuals or to cause substantial damage to property.

  “(VI) A threat, attempt, or conspiracy to do any of the foregoing.

  “(iii) ENGAGE IN TERRORISM ACTIVITY DEFINED.-As used in this Act, the term ‘engage in terrorism activity’ means to commit, in an individual capacity or as a member of an organization, an act of terrorism activity or an act which the actor knows, or reasonably should know, affords material support to any individual, organization, or government which the actor knows or reasonably should know has committed or plans to commit terrorism activity, including any of the following acts:

  “(I) The preparation or planning of terrorism activity.

  “(II) The gathering of information on potential targets for terrorism activity.

  “(III) The providing of any type of material support, including a safe house, transportation, communications, funds, false documentation or identification, weapons, explosives, or training.

  “(IV) The soliciting of funds or other things of value for terrorism activity or for any terr orist organization.

  “(V) The solicitation of any individual for membership in a terrorist organization, terrorist government, or to engage in a terrorism activity.

  “(iv) TERRORIST ORGANIZATION DEFINED.-As used in this Act, the term ‘terrorist organization’ means any organization engaged, or which has a significant subgroup which engages, in terrorism activity, regardless of any legitimate activities conducted by the organization or its subgroups.

  “(v) TERRORISM DEFINED.-As used in this Act, the term ‘terrorism’ means premeditated, politically motivated violence perpetrated against noncombatant targets.”

   
   

Question Three
(One Third)

Consider the following quotation:

“The rights of free speech and free exercise of religion are, and always have been, negative liberties rather than affirmative ones. They protect individuals against oppression by the State, but they most assuredly do not guarantee any form of subsidy, or any affirmative obligations of the State towards individuals. Much less do they justify special treatment for some individuals that is not given to others, or attempts to limit the liberty of some to equalize it with the liberty of others. Such attempts, well intentioned though they may be, inevitably conflict with the State’s primary obligation of removing state imposed constraints on individual freedom.

“These arguments are, if anything, even more compelling in the area of free exercise because of the command of the Establishment Clause. Constitutionally mandated requirements of exemptions inevitably pose serious Establishment Clause problems. For example, the claim that the Free Exercise Clause encompasses an affirmative duty to further religious liberty (as opposed to a negative duty to refrain from burdening religion) leads inevitably to the possibility that government must fund religious education and religious practices, something which is directly forbidden by the Establishment Clause.”

What is your reaction to this position? Use the cases and hypotheticals studied in this course to formulate your own view.

END OF EXAMINATION