Constitutional Law Learning Questions Set 7

A group of students held a demonstration against the proliferation of weapons in space in one of the city's parks. The defendant spoke at the demonstration, and to make a point during her speech, she walked over to one of the trash barrels and dumped the contents out on the ground. As she did so, she told her listeners, "This is what outer space is starting to look like, cluttered with the trash of nuclear weapons." The meeting broke up 15 minutes later. The students left the park peacefully, but no one bothered to pick up the trash or right the overturned barrel. The defendant was arrested pursuant to the city's littering ordinance, which carried fines of up to $500 and was strictly enforced. She was convicted and fined $500. The defendant brings an appropriate appeal to have her conviction set aside on constitutional grounds. Is the defendant likely to succeed? A. No, because the anti-littering ordinance furthers an important governmental interest and is not aimed at communication. B. No, because the defendant was convicted for her conduct rather than for what she said. C. Yes, because the defendant's conduct constituted symbolic speech. D. Yes, unless the city can prove a compelling interest in its anti-litter laws.

A The anti-littering ordinance will be upheld because it furthers an important government interest unrelated to the content of the communication and is narrowly tailored to the furtherance of that interest. As a general rule, conduct that is intended to communicate is not immune from reasonable government regulation, even though it takes place in a public forum such as a park. The noncommunicative impact of speech-related conduct in a public forum can be regulated to further an important government interest independent of the speech aspects of the conduct as long as the incidental restriction on the ability to communicate that message is narrowly tailored to further the interest in question, so that alternative channels for communicating the message are available. The prevention of litter, as a means of maintaining public facilities in usable condition and protecting property values, is an important enough government interest to allow some type of regulation. The ban on littering is narrowly tailored to accomplish its purpose, unlike, for example, a ban on distributing leaflets that may end up on the ground. The regulation probably would not have precluded the defendant even from dumping the barrel if she had picked up the trash after her speech was over. (B) is incorrect because it is too broad; some speech-related conduct cannot be punished (e.g., burning a flag). The critical distinction is whether the offense relates to the communicative content of the conduct or to state interests independent of its communicative aspects. (C) is incorrect because the conduct aspect of symbolic speech can be regulated under the test indicated above. (D) is incorrect because the compelling interest standard only applies where the restrictions are based on the content of the message being communicated. Where the regulation is not based on content, the government need show only an important interest.

A public high school publishes a weekly newspaper as part of its journalism class. The student editor-in-chief of the paper wrote an article supporting the legalization of marijuana and showed it to his faculty advisor. The advisor told the editor that while this issue was receiving a lot of media attention in their community, in order to discourage drug use, school policy prohibited the paper from including any drug-related articles. The advisor then told the editor not to include the article in any edition of the paper. A few days later, the editor and faculty advisor were preparing to upload the electronic files for the paper to their printer. The advisor was momentarily called away, and the editor quickly replaced an article on clothing styles with his article on the legalization of marijuana. When the paper came out, the article was the talk of the school. After a brief investigation, the student was removed from his position as editor-in-chief. The student brought suit against the school, claiming that his removal was a violation of his First Amendment rights under color of law. How should the court rule on this issue? A. For the high school, because the newspaper involved was a public high school newspaper published as part of a journalism class. B. For the high school, because students do not have constitutional rights while the school is acting as parens patriae. C. For the student, because the issue involved a matter of public concern. D. For the student, unless the school can establish that his removal was necessary to achieve a compelling interest.

A The court should rule for the high school. The Supreme Court has held that curriculum-based public high school activities are not public forums. Content regulation of nonpublic forums is allowed as long as the regulation is viewpoint neutral and reasonably related to a legitimate government purpose. Here, school policy prohibited all discussion of drugs in the school newspaper and was therefore viewpoint neutral. Moreover, the school could argue that prohibiting discussion of drugs in the school paper discourages drug use, a legitimate school interest. Thus, the court should rule for the school. (B) is incorrect because it is overbroad. While students do not enjoy full constitutional rights within the school setting, they do have some protection. For example, the Supreme Court has held that students had a First Amendment right to wear black armbands in school in protest of the Vietnam War. [Tinker v. Des Moines Independent School District (1969)] (C) is incorrect because it is irrelevant. The fact that the legalization of marijuana is a public concern does not address the issue of whether speech about it may be banned from a nonpublic forum. (D) is incorrect because it implies the use of the wrong test. While generally content regulations of speech are permitted only if they are necessary to achieve a compelling interest, this is not true of time, place, and manner regulations. The appropriate test for such regulations depends on whether a public forum is involved, and, as discussed above, when a nonpublic forum is involved, a content regulation will be upheld if it is viewpoint neutral and reasonably related to a legitimate government purpose.

In First Amendment free speech cases, public property that historically has been open to speech-related activity is called a __________. A. community forum B. public forum C. limited public forum D. designated public forum

B A public forum is public property that historically has been open to speech-related activity. Examples include sidewalks and public parks. A designated public forum is public property that usually is not used for speech-related activity, but that the government has opened for such activity at particular times (e.g., a public school gym that can be reserved by the public for use when not being used by the school). A limited public forum is public property that usually is not used for speech-related activity, but that the government has opened up for such activity for a particular purpose (e.g., a school gym that has been opened up to host a political debate). A community forum is not a term used by courts to describe forums for First Amendment purposes. However, there is a fourth forum designation: nonpublic forum, which is public property not open for speech-related activity. A county office building would be an example of a nonpublic forum except to the extent that it is specifically opened to the public for speech-related activities.

For a governmental regulation of speech in a public or designated public forum to avoid strict scrutiny and be upheld, which of the following is NOT necessary? A. The regulation must be narrowly tailored to serve an important government interest. B. The regulation must be the least restrictive method of achieving the governmental interest. C. The regulation must be content neutral. D. The regulation must leave open alternative methods of communication.

B It is not necessary that the regulation affecting speech in a public or designated public forum be the least restrictive method of achieving the governmental interest. It is enough that the regulation is narrowly tailored to serve the interest at issue. To avoid strict scrutiny and be upheld, a regulation must be content neutral and narrowly tailored to serve an important government interest, and it must leave open alternative methods of communication. Keep in mind, however, that even if these requirements are met, the regulation may be invalidated for other reasons, such as for being vague or overbroad.

To be valid, a time, place, and manner regulation of a Limited Public Forum MUST be __________. A. content neutral and rationally related to a legitimate government purpose B. viewpoint neutral and rationally related to a legitimate government purpose C. viewpoint neutral and narrowly tailored to achieve an important government interest D. content neutral and narrowly tailored to achieve an important government interest

B To be valid, a time, place, and manner regulation of a limited public forum must be viewpoint neutral and rationally related to a legitimate government purpose. "Viewpoint neutral and narrowly tailored to achieve an important government interest" is incorrect because regulations of limited public forums need not be narrowly tailored to achieve an important government interest-the standard is lower (rationally related to a legitimate government purpose) as indicated above. "Content neutral and rationally related to a legitimate government purpose" is incorrect because regulation of a limited public forum can be based on content, but it must not be based on viewpoint. For example, a school gym might be opened to the public to host a debate on a specific issue (e.g., whether the city should grant a permit to an abortion clinic). The school can prohibit people from raising other issues (e.g., whether the city needs new storm sewers) to regulate the content in the open forum during the debate, but the school cannot allow people against the clinic to speak while prohibiting those in favor from speaking, because that would not be viewpoint neutral. "Content neutral and narrowly tailored to achieve an important government interest" is incorrect because, as discussed above, it states both parts of the test incorrectly.

A regulation of speech on a particular topic in a nonpublic forum may NOT limit the speech to one position, to the exclusion of other positions. This rule reflects the fact that such a regulation must be __________. A. narrowly tailored B. content neutral C. viewpoint neutral D. necessary

C Speech in a nonpublic forum or limited public forum may be reasonably regulated but the regulation must be viewpoint neutral-it cannot permit presentation of one side of an argument and exclude the other. The term content neutral refers to a regulation that is neutral as to subject matter as well as to viewpoint. The terms narrowly tailored and necessary refer to whether a regulation burdens or does not burden substantially more speech than is required to advance the particular government interest.

A city zoning board recently denied a request from the local library for a variance needed to expand the library building. An angry library patron went to the library, stood next to the front door, and handed each person entering a leaflet asking the person to contact each city zoning board member named in the leaflet and threaten to vote the member out of office unless the member changed his or her vote regarding the library's request for a zoning variance. The head librarian noticed the patron handing out the leaflets and asked her to stop, correctly explaining that the distribution was in violation of a city ordinance. The patron refused to comply, and the head librarian summoned the police. When an officer arrived, the librarian again asked the patron to stop distributing leaflets, but the patron again refused. The officer then arrested the patron for violating a city ordinance. At trial, the patron defended against the charges by claiming a violation of her First Amendment rights. Which of the following variations of fact would be most helpful to the patron's First Amendment claim? A. The librarian did not repeat the "cease and desist" request in the police officer's presence. B. The library is completely surrounded by public sidewalks. C. The librarian has permitted some people to distribute leaflets at the front door of the library at all hours. D. The leaflets also requested campaign contributions to be used to oppose board members who failed to change their vote.

C The most helpful additional fact for the patron is that the head librarian allowed other people to distribute leaflets at all hours. Although the government may adopt reasonable time, place, and manner restrictions in public forums and designated public forums, such restrictions must be content-neutral, or else they will be subject to strict scrutiny. The head librarian's allowing some people to distribute leaflets at all hours shows that the restriction here is probably being used as a content regulation, meaning that the restriction would be subject to strict scrutiny and likely invalidated. Additionally, if the head librarian is allowing others to distribute leaflets at all hours, the discriminatory application of the ordinance might also violate the Equal Protection Clause. (A) is not very helpful because the fact that the patron was informed once of the rule would be sufficient to give her notice that she was violating the law. There is no requirement that persons be warned twice that they are violating speech regulations. (B) might help the patron because she could claim that because the library is surrounded by a public forum (sidewalks), the front door step also is a public forum. This argument will probably fail, however, because the Supreme Court has never made such a holding (and indeed has held that although the sidewalks around the Supreme Court building are public forums, the Supreme Court building itself is not a public forum). This fact might even hurt the patron, because it indicates that alternative public forums were readily available. (D) is not very helpful because political fundraising receives no more First Amendment protection than pure political speech; indeed, more regulation is allowed in the fundraising arena.

A state statute makes it a felony for anyone in the corridors or on the grounds of any building in which a court may be in session to make a speech or carry a sign intended to improperly influence judicial proceedings. When the head of a street gang was on trial for murder, a gang member was arrested for carrying a sign on the steps of the courthouse warning that if the gang leader was not freed, "the judge will die." May the gang member be convicted of violating the state statute? A. No, because the statute could apply to others whose speech is constitutionally protected. B. No, unless he personally intended to harm the judge. C. Yes, if there was a clear and present danger that the judge would be influenced by the sign. D. Yes, because the statute does not violate the freedom of expression guaranteed by the First Amendment.

D The gang member can be convicted because the statute does not violate the First Amendment. Certain public property (e.g., public streets or parks) is so historically associated with the exercise of First Amendment rights that speech thereon can be regulated only by content-neutral proscriptions. Other places controlled by the government, however, are not so historically linked to speech activities, and in such locations free speech might interfere with the intended use of such locations. Thus, the government can regulate access to these limited public forums and nonpublic forums based on the subject matter of the speech, as long as the regulation is reasonably related to the purpose served by the property and is not designed merely to suppress a particular point of view. A courthouse and its grounds are not a public forum. (The surrounding sidewalks are, but that is not in issue here.) The statute, although based on the subject matter of speech, is viewpoint neutral and reasonably related to the courthouse purpose of promoting a stable, orderly atmosphere in which judicial proceedings can take place, free of improper outside influence or coercion. Thus, the statute is valid and the gang member can be convicted for his actions. (A) is wrong because it is based on an overbreadth argument and the statute here is not overbroad. A regulation of speech that restricts substantially more speech than necessary is unenforceable, even if the speech in question could have been properly restricted by a narrower statute. This doctrine is inapplicable here because the statute is not overbroad: It reaches only speech in the courthouse or on its grounds and only that speech that might improperly influence the judicial proceedings; it does not limit all speech at that location. (B) is wrong because the gang member's personal intent to harm the judge is irrelevant. The statute makes it a crime to make a speech or carry a sign intended to influence the judicial proceeding. The statute does not require that the violator intend to harm anyone. Since the state is entitled to regulate speech or conduct in the courthouse or on its grounds that might interfere with the judicial proceedings, it is entitled to convict the gang member for his actions here regardless of his intent to harm the judge. (C) is wrong because it improperly applies the "clear and present danger" test to these facts. Under the current version of the "clear and present danger" test, a state cannot forbid advocating the use of force or violation of law unless such advocacy is (i) directed to producing or inciting imminent lawless action, and (ii) likely to produce such action. The state statute here does not purport to punish advocacy of force or lawlessness, but rather seeks to further the purpose of maintaining the stability and integrity of the judicial proceedings by regulating access to certain nonpublic areas. Therefore, the restrictions are constitutionally valid and the "clear and present danger" test is inapplicable.