Fried ConLaw (1st) 2011F Exam DS

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Institution Harvard Law School Exam Mode TAKEHOME Extegrity Exam4 > 11.2.8.0
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Course / Session Fried-C-Con Law 1st Amendment NA 59555-F.-12-1 Section All Page 1 of 12
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Institution Harvard Law School Printed on February 3, 2012 Course Fried-C-Con Law 1st Amendment Instructor NA Exam Mode TAKEHOME
Exam ID 59555
Count(s) Section 1 Section 2 Total
Word(s) 1110 1389 2499
Char(s) 6157 7837 13994
Char(s) (WS) 7265 9225 16490
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Answer-to-Question-_1_
Section 1 is likely unconstitutional because it covers protected speech as well as speech that would fall within categories that may be constitutionally proscribed. A government regulation seeking to suppress speech because of its communicative effect must jump through tight hoops and generally will be struck down on First Amendment grounds unless it limits speech in one of the unprotected Chaplinksy categories, e.g., incitement to violence, fighting words, obscenity. The two doctrines applicable to Section 1 are the Brandenburg test and the true threats doctrine.
To meet Brandenburg, the statute can only proscribe advocacy of force and violence, directed to inciting or producing imminent lawless action, which is likely to incite or produce such action. Brandenburg. In NAACP v. Claiborne Hardware, the Supreme Court applied Brandenburg and said mere advocacy of use of force or violencem does not remove speech from the protection of the First Amendment. The Ames statute proscribes some speech made with the intent to place a targeted person in imminent fear of death or bodily injury. Thus, because the intent proscribed is the intent to cause imminent fear, not the intent to incite or produce imminent lawless conduct such as killing, the statute fails Brandenburg.
However, lower courts have sometimes upheld such "threat statutes" on the basis of the true threats theory, which holds that true threats are outside the purview of First Amendment protection. In Planned Parenthood v. ACLA (9th Cir. 2002), a divided court said civil liability could be imposed on whoever by "threat of force intentionally
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intimidates any person because that person is or has been providing reproductive health service." The majority said, while advocating violence is protected, threatening a person with violence is not, and distinguished Claiborne by saying in that case advocacy of violence was not directed at specific individuals and there was no context that gave the implication of authorizing or directly threatening unlawful conduct. The majority applied a "true threats" test, which allowed speech to be proscribed if the actor spoke with specific intent of putting victim in fear. The dissent argued that this was too broad, and that a compelling government interest that justified proscribing the speech only existed when a threat warns of harm that the speaker can control. Although the Ames statute would fall within the majority's true threats test, three factors counsel against assuming its constitutionality: the Ames statute makes true threats a criminal offense, while FACE merely imposed civil liability; the statute was related to the abortion debate, which is "special" and often skews constitutional doctrine; and it's a closely divided circuit court decision and not controlling. Because of these differences, I believe the Supreme Court would adhere to its narrow interpretation of the Brandenburg test and strike Section 1 down as encompassing protected speech.
Section 2 does not abridge speech on its face, but because it sideswipes expression/symbolic speech, the Supreme Court would apply the O'Brien test, which states that government regulation is justified if speech and nonspeech elements are combined in similar course of conduct; the regulation furthers a sufficient government interest in regulating the nonspeech element and is unrelated to the suppression of free expression, and the incidental restriction on First Amendment freedoms is no greater than essential to the furtherance of that interest. Section 2 proscribes conduct directed at a
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specific person over a period of time that alarms that person and would cause a reasonable person to suffer substantial emotional distress. Applying O'Brien to a hypothetical violation of the statute -- leaving depictions of bloodied body parts on someone's front stoop - the expression (the depictions) and the nonspeech (repeatedly leaving them on a specific porch) are intertwined; the regulation furthers a sufficient government interest under the state's police powers in maintaining a safe and orderly environment (cf. Barnes, where public morality was deemed a sufficient government interest); the regulation is unrelated to the suppression of expression, as it outlaws any persistent conduct that would cause a reasonable person to suffer substantial emotional distress; and the incidental restriction on First Amendment freedom is no greater than essential to further public safety because the statute enacts safety valves against sweeping in symbolic speech held to be protected in other cases. For instance, although Cohen's "Fuck the Draft" jacket may "seriously alarm" one person, it wouldn't fall under the statute because wearing a jacket that says "fuck" wouldn't cause a "reasonable person to suffer substantial emotion distress" nor is it an ongoing pattern of conduct. For these reasons, Section 2 is constitutional.
Section 3 has two provisions that I'll consider separately. The first provision makes it a crime to contact (directly or indirectly) a person by telephone or electronic communication repeatedly for the sole purpose of harassing or annoying the person. This isn't a total medium ban (as in Struthers, Schneider) because it prohibits only certain communication facilitated by those mediums. It resembles Kovacs, which upheld an ordinance prohibiting sound trucks/loud speakers emitting loud/raucous noises. The restriction was justified in part by a public interest in tranquility. The Ames provision is
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similarly narrowly tailored: it ensnares repeated phone or electronic communications whose sole purpose is to harass or annoy the recipient. The restriction is justified by a public interest in preserving the sanctity and privacy of the home (Pacifica, Stanley), and as such, this provision would be upheld.
The second provision makes it a crime to use a telephone or electronic communication and use indecent or obscene language to the person. This provision fails on vagueness and overbreadth grounds. It enacts a total medium ban on the use of indecent speech protected under the First Amendment. Eroznik, Schad. Although the Court has upheld the zoning of indecency in public spaces (Renton-Playtime) and in media that invades the home (Pacifica), it often strikes down laws not narrowly tailored to further a government interest in protecting children or sanctity of the home (Reno v. ACLU). The Ames provision doesn't tailor to protect minors; instead, it bans adult transmission of constitutionally protected speech like the CDA struck down in Reno. Under the statute's plain language, two adults could be punished for sending sexually explicit texts or emails to eachother and would outlaw the dial-a-porn services upheld in Sable. Because there's narrowing component, such as limiting the statute to prohibiting the transmission of indecent language by phone or electronic communication to individuals who've notified they don't want to receive the speech(similar statute upheld in Rowan v. US Post Office), the indecency ban is unconstitutional.
Obscenity is a speech category without First Amendment protection; however, to meet the Miller test, obscenity bans must set out in detail what can't be depicted. This doesn't, so it fails.
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Answer-to-Question-___2
Evaluation of the 2d.Cir Decision: The Second Circuit erred in deciding that the Board of Education's exclusion of "religious worship services" was not viewpoint discrimination, and it ignored relevant Supreme Court caselaw in determining the exclusion was reasonable (and thus allowed) because the Board wanted to avoid violating the Establishment Clause.
The NYC schools are a limited public forum because they were opened up for afterhours use for social, civic, and recreational meetings, and other community uses, as long as the uses were nonexclusive and open to the public (See Perry, Good News, Rosenberger). The purpose of the forum was to "maximize educational, cultural, artistic and recreational opportunities for children and parents" and "enhance community support for the school." (Walker-dissent at 54). The Boy Scouts and Legionnaire Greys Program, secular youthoriented leadership development programs that engage in formal ceremonial activities, may use the space. A regulation, SOP 5.11, prohibits the grant of a permit for "religious worship services, or otherwise using a school as a house of worship," although student religious clubs are permitted.
Under limited public forum doctrine, the operator of such a forum may engage in content discrimination, but its restrictions "must be reasonable in light of the purpose served by
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the forum" and it can't engage in viewpoint discrimination (directed against speech otherwise within the forum's limitations). Cornelius, Rosenberger. Applying this test, the Court should turn first to whether the exclusion constituted viewpoint discrimination.
To constitute viewpoint discrimination, the exclusion of "religious worship services" would have to fall outside the purposes and activities permitted by the forum; it cannot discriminate against speakers for whom the forum was created and who want to cover a topic within its purpose. Lamb's Chapel. The schools' limited public forum is broad; it allows activities with some sort of civic and developmental value that enrich parents and children, as well at the community support for schools. Because the school has opened its property up so broadly, the forum must be open to community members who want to engage in a developmental activity that will teach and enrich the audience. Bronx Household's worship services are such an activity. The schools have rejected the celebration of morals and values because they are presented in a formalistic religious manner, even though such instruction and celebration are permitted in connection with secular organizations and religious instruction may be presented in a more casual manner. This is impermissible viewpoint discrimination. (See Good News, the distinction between the medium or manner of presentation is "inconsequential"). The majority ignores the Good News pronunciation and attempts to characterize the exclusion of "religious worship services" as content-based because it excludes the "conduct of an event or activity." The majority struggles to find a definition of such event that would materially distinguish a worship service from permissible religious instructions or ceremony-laden meetings of the Legionnaires or Boy Scouts. Such a material distinction cannot be made,
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as religious worship combines aspects of both these activities - the Bible study and songsinging of instruction as well as the solemnity and formality of the Scouts and Legionnaire rituals. Combining aspects of two allowable activities does not transform the combination activity into one that may be proscribed based on its content. Unlike the content of a livestock show (which the majority says may be proscribed in a contentbased manner), religious worship services do not introduce harmful, already proscribed conduct (the parading of large, unpredictable farm animals) into city school building. The characteristics of "religious worship service" activity are already allowed in the school's limited public forum through meetings that include religious instruction and ones that emphasize solemn, repetitive ceremonies. The school cannot be making a content-based distinction between "worship services" and permissible activities; it' discriminating against the activities because of the religious viewpoint expressed.
The Second Circuit also erred in determining the Board's wish to avoid violation of the Establishment Clause was "reasonable." As the majority says, it's only "reasonable" if the "Board has a strong basis for concern that permitting use of a public school for the conduct of religious worship services would violate the Establishment Clause." Relevant facts here include: the services are held after school hours and no fees are charged to use the space. The Second Circuit applies the Lemon Test (government action (1) must have a secular purpose; (2) must have a principal or primary effect that neither advances nor inhibits religion and (3) must not foster an excessive government entanglement with religion)) and concludes that worries about the second and third Lemon prongs provide a strong basis for concern regarding an Establishment Clause violation. This analysis is misplaced.
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The Second Circuit says the second prong must ask whether the government conveys a message of endorsement. It concludes that allowing services during non-school hours conveys government endorsement because of (1) long-term weekly use of schools for religious services that young children might perceive to be endorsement and (2) the happenstance that schools are not in session on Sundays allows more Christian religions to use the buildings and thus conveys endorsement of the Christian religion in particular. The first concern was brushed away by Good News ("whatever significance we may have assigned in the Establishment Clause contextwe have never extended our Establishment Clause jurisprudence to foreclose private religious conduct during nonschool hours merely because it takes place on school premises where elementary school children may be present"). As to the second concern, a government practice where Sundays are used as for a secular purpose, such as a day of rest (as they are here, where children are off of school), hasn't been held to be a violation of the Establishment Clause or the Free Exercise Clause, despite an indirect burden on others. (McGowan, Braunfeld).
The Second Circuit says the Board has a valid concern that allowing religious worship services would "substantially subsidize" churches by providing aid in the form of room space and that this would violate the Lemon entanglement prong. The Supreme Court has OK'ed regimes where neutral aid is given directly to a broad range of groups, including religious institutions (Walz), and has emphasized that neutral programs are OK if they happen to benefit religious organizations and there is no public fund flow directly to the institution's coffers (Rosenberger)The Court has never considered financial aid within the
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third prong of the Lemon test; rather, it looks to see if the government can provide such aid without intricate monitoring. (Mueller, Bowen). The assessment that Lemon provides a strong basis for concern regarding an Establishment Clause violation doesn't comport with Supreme Court application of the test.
Likelihood of reversal:
I believe it's likely the Supreme Court will reverse. Because of the aforementioned analysis, the Supreme Court should find that the Board's exclusion of religious worship services is unconstitutional viewpoint discrimination in a limited public forum. If found to be viewpoint discrimination, the Court "need not decide whether it is unreasonable in light of the purposes served by the forum" (Good News). The viewpoint discrimination can only be continued if it's justified by a compelling state interest and narrowly tailored to address that interest.
Although the Court has said avoidance of an Establishment Clause violation "may be characterized" as compelling (Widmar), it's unclear whether a government interest in avoiding an Establishment Clause violation would justify viewpoint discrimination (Good News, Part IV). The Supreme Court doesn't need to decide that issue if it concludes the school has no valid Establishment Clause interest (Good News). Applying the Lemon Test, a neutral school-use policy passes prong one because it has the secular purpose of promoting civic values and the development of the community. As to Prong Two, the Court would say a reasonable observer would not conclude that allowing the use of school buildings constitutes endorsement, because like the religious programs in
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Good News and Lamb's Chapel, the services are afterhours, not sponsored by the school, and are open to the public (citing the record in Walker's dissent). As for prong 3, a completely neutral policy would not be entangled with religion, because there would be no excessive monitoring involved, only the grant of permits to groups that meet the schools' broader limited public forum requirements (Bowen, Mueller). Thus, the Supreme Court would likely conclude the school has no valid Establishment Clause interest, and cannot justify its viewpoint discrimination to exclude "religious worship services."

Fried ConLaw (1st) 2011F Exam DS

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Fried ConLaw (1st) 2011F Exam DS

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59555

Count(s) Section 1 Section 2 Total

Word(s) 1110 1389 2499

Char(s) 6157 7837 13994

Char(s) (WS) 7265 9225 16490

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