Fried ConLaw(1st) 2011F Exam DS

59555 *59555-F.-12-1* 59555Institution Harvard Law School Course / Session Fried-C-Con Law 1st AmendmentExam Mode TAKEHOME NAExtegrity Exam4 > 11.2.8.0 59555-F.-12-1 Section All of 12

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Institution Harvard Law SchoolPrinted on February 3, 2012

Course Fried-C-Con Law 1st Amendment

Instructor NA

Exam Mode TAKEHOME

Exam ID 59555

Count(s) Word(s) Char(s) Char(s) (WS)

Section 1 1110 6157 7265 Section 2 1389 7837 9225 Total 2499 13994 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 e-

mails 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 youth-

oriented 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 song-

singing 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 content-

based 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 context…we 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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