Essay Problem 1-- First Amendment Law 2004

Alan Aerts gestures as he talks about his 10-foot-tall singing Grinch in front of his stately French tudor home in Monte Sereno, Calif. (AP Photo/Paul Sakuma)

MONTE SERENO, Calif. (AP) - For six years, Alan and Bonnie Aerts transformed their Silicon Valley home into a Christmas wonderland, complete with surfing Santa, jumbo candy canes and a carol-singing chorus of mannequins.

Visitors loved it. Last year, more than 1,500 cars prowled the Aertses' cul-de-sac in this upscale San Jose suburb each night.

This year, though, the merry menagerie stayed indoors. Instead, on the manicured lawn outside the couple's Tudor mansion, stands a single tiding: a three-metre-tall Grinch with green fuzz, rotting teeth and beet-red eyeballs.

The Aertses erected the smirking giant to protest the couple across the street - 16-year residents Le and Susan Nguyen, who initiated complaints to city officials that the display was turning the quiet neighbourhood into a Disneyesque nightmare.

Alan Aerts, who makes sure the Grinch's spindly finger points directly to the Nguyens' house, says the complaints killed the exhibit. They also violated the Christmas spirit, he said.

"When I grew up, people decorated everything - it was wonderful to be a kid," said the 48-year-old soft drink distributor and philanthropist. "If you can't even put up a display these days, what kind of people have we become?"

The Nguyens say that even after the Aertses hired a security guard to help direct traffic, the commotion kept them from having friends over for their own lower-key celebrations.

"We wake up to Christmas for about 45 days of the year," said Le Nguyen, 55. "You ever seen the movie Groundhog Day? It's just like that."

The exhibition's death knell came last year, when the Nguyens collected 90 signatures of protest from residents and the city council voted to require a permit for any exhibit lasting longer than three days.

Mayor Erin Garner voted against it, saying he thought the Aertses provided a community service.

"It will be a crying shame if (Alan) doesn't put his holiday lights up this year," he told the San Jose Mercury News.

After studying the application process, the Aertses decided the usual display wasn't worth the hassle.

So Alan Aerts, a six-foot-three amateur body builder, commissioned the $2,500 motorized Grinch statue, which waves its arms and emits steam as a raspy tenor belts out, "You're a Mean One, Mr. Grinch."

Susan Nguyen, 52, is unmoved.

"It was oppressive," she said. "Maybe not if you just spent 10 minutes admiring it from your car, but if you lived next door, it was definitely oppressive."

Read the article to the left (an actual newspaper story from 11/30/2004), then answer the following questions.  Your answers should appear in your bluebook in the same order as the questions below.  Your answers for all four questions must fit within a single bluebook.

1.  Is the Monte Sereno ordinance, passed in response to Alan Aerts's holdiday display, a violation of the First Amendment?  The ordinance prohibits any resident from keeping on his or her property a lighting display for more than three days.

2.  Assume that Aerts reprograms his Grinch statute to point a giant middle-finger at his complaining neighbors, the Nguyens, while a recording plays, in a Grinch-like voice, "You sons-of-bitches!"  Could Monte Sereno arrest Aerts for violation of a law prohibiting "threatening or verbally harrassing another person"?

3.  Assume that the Monte Sereno City Council, in an apparent response to Aerts's placement of the 10-foot singing Grinch statue in his yard, passes a new ordinance.  The new law prohibits homeowners from keeping in their yards any statute more than eight feet in height or any device programmed to play a song or read a message loud enough to be heard on the property of another person.  Is the new ordinance consistent with the First Amendment?

4.  Assume that the council members supporting the decorative lighting ban are thrown out in a new election.  The new city council votes to authorize residents to operate lighting displays on their property, but only during the period from Thanksgiving to January 15.  Miaow Ching, a practioner of the Xanadu religion, is fined for violation of the new ordinance.  Ching had  installed in her front yard a 3,000-light display in May (in the shape of a giant twinkling test tube emitting  colored smoke) in celebration of Holy Xanadu Day on May 22, the day Ching and other Xanaduians believe Xanadu received from God the sacred potient that made him the all-seeing, all-knowing prophet that he became.  Does Ching have a First Amendment right to keep her display?  Is the new ordinance constitutional?

Alan Aerts's holiday display, as seen in 2003.


Metropolis owns and operates 20,000-seat Lois Lane Arena.  Lane Arena is surrounded by a large parking lot.  Entrance to the parking lot and arena is possible only through four admission gates, one on each side of the arena.

Metropolis, through a municipal arena authority, rents Lane Arena to a professional basketball team, concert promoters, organizations that sponsor conventions, and other private groups or companies willing to pay the asked-for rental fee.  The city’s official rental policy, as stated in a resolution adopted by the Metropolis City Council, is that Lane Arena be available for rent by any individual, group, or entity for “any purpose that does not dishonor Metropolis or offend the sense of decency of its citizens.”

Two recent actions by the Metropolis Arena Authority concerning Lane Arena generated considerable controversy.

The first controversy concerned the actions of Metropolis police in arresting demonstrators at a recent “Promise Weepers” rally at Lane Arena.  The Promise Weepers is an organization that promotes conservative Christian “pro-family” views to male-only members.  Promise Weepers rallies include inspirational speeches, songs, Bible readings, prayer, hand-holding, and a lot of crying (crying is thought by the Promise Weepers to cleanse the soul).  In April, a Unitarian group believing the Promise Weepers to be “anti-gay” and “anti-feminist,” sent protesters to a rally at Lane Arena.  The protesters entered through the admission gates and paid the required $5 parking fee.  Several dozen of the protesters began marching around an asphalt concourse that immediately surrounds Lane Arena.  They peacefully carried placards bearing such messages as “Promise Weepers = Jesus Creepers” and “Weepers are Bigots!”  When several Promise Weepers threatened to grab and destroy the offending signs, police stepped in and arrested the demonstrators.  The Unitarian protesters were charged with violating a Metropolis ordinance that prohibits “displaying any signs within one-hundred feet of Lane Arena without permission of the City or of the arena lessee (event sponsor).”  In addition, three other Unitarian protesters were arrested in Lane Arena when they began loudly heckling a speaker who was expressing the view that man “was intended by God to be the benevolent protector and defender of women.”  The three were charged with “disorderly conduct” and “disturbing the peace.”

The second controversy involving Lane Arena concerned the decision of the Metropolis Arena Authority to reject a request by the XHL (“The Xtreme Hockey League”) to rent Lane Arena for a new professional hockey franchise, the Metropolis Puckers. In rejecting the request, the city cited the Puckers’ plan to post on the scoreboard “body counts” (counts of opposing players disable by the rough play of the Puckers), its sponsorship by “Rot Gut Whiskey,” and its plan to have topless cheerleaders entertain fans between periods.

(A)  The Unitarian protesters contend that their arrests, both outside and inside Lane Arena, violate the First Amendment.  Are they right?  Analyze.

 (B)  The XHL contends that the decision of Metropolis to reject its request to rent Lane Arena violates the First Amendment.  Does it?  Analyze. 


First Amendment Essay Problem


Over after-work cocktails one day, Harry Ham and Sally Lamb were sharing their thoughts that the “Me Too” movement was taking things too far.  Sally, as she played with Harry’s toes under the table, said, “These folks are going to make flirting a federal crime, if they have it their way.”  Harry responded, as he tickled Sally’s ear, “Hey, I’ve got a great idea!  We should form an organization called ‘Flirting is No Crime’ (FINC).  Besides flirting at our meetings, we can work to stop some of these so-called sexual harassment cases that involve only words exchanged at work.  If someone’s making unwanted sexual contact, that’s one thing.  But words are just words.  What’s the big deal?”  And just to make it clear we’re not a bunch of marriage-breakers, we should limit membership to single people only.”


Before long, Harry and Sally had formed FINC and began recruiting members.  The organization seemed to find a receptive audience, especially among men, and soon grew to have over 3,000 members in several chapters around the Midwest. 


One wealthy member, who had once been the victim of what he called “a totally bogus” sexual harassment suit, donated $3 million to the association which, he said, could be used for FINC-sponsored events and to promote “sane policies” regarding workplace interactions.  FINC has subsequently advertised and lobbied to rollback or revise certain provisions of Title 7, the law governing discrimination and harassment in the workplace on the basis of sex. 




Steamy Stevens is a sociology professor at Western Dakota State, a public university in North Dakota.  Steamy is single and is a chapter president of FINC.  She frequently teaches her sociology classes while wearing a FINC button, which displays a pair of pink winking eyes with the motto below, “Flirting is No Crime.”  


Steamy’s research assistant is a 23-year-old graduate assistant, Stud Wannabe.  Steamy frequently critiques Stud’s choice of dress.  When he came into Steamy’s office one day with research for her paper on sexual promiscuity in the Fiji Islands, Stud was wearing a pair of tight-fitting jeans.  Steamy smiled at Stud and said, “Now that’s more like it.  You show very well.”  On another occasion, Steamy suggested that Stud find a pair of Speedos to wear to the Sociology Department’s annual pool party. 


When Stud reported Steamy’s comments to the Human Relations Director at Western Dakota State, an investigation was launched.  The resulting report led to a decision to terminate Steamy Stevens.   Western Dakota State told Steamy she was being fired because: (1) she wore her ”flirting is no crime” button while teaching classes; and (2) she made “sexually suggestive” comments to a research assistant. 

Steamy challenges the decision to fire her in federal court, alleging that her dismissal violated her rights under the First Amendment.  Please discuss potential First Amendment issues raised by her suit.




Don Juan is a married man who likes to flirt.  Don applied for membership in the Western Dakota chapter of FINC but was denied membership because of the FINC policy that limits membership to unmarried people. 


Don Juan sued, arguing that FINC’s policy is in violation of a North Dakota law that prohibits discrimination in places of public accommodation to persons on the basis “of marital status.” The North Dakota Supreme Court upheld Don’s claim and ordered the FINC chapter to accept Don as a member.  FINC has appealed the decision in federal court, arguing that North Dakota has violated FINC’s “freedom of association” rights under the First Amendment.  Please discuss the First Amendment issues raised by Don’s suit.




The town of Pescalua, Mississippi celebrates Heritage Day each June.  The highlight of the event is a parade down the town’s main street sponsored by the Sons of the Confederacy, a private organization dedicated to commemorating the bravery of Confederate soldiers during the Civil War. The Sons of Confederacy conducts the parade under a permit issued by the town of Pescalua.  (The town grants several parade permit requests each year, including permits to the local VFW for a Veteran’s Day parade and to the Chamber of Commerce for a Christmas Shopping Season parade.)   The Sons of Confederacy parade includes invited local high school bands, floats, and marching figures dressed as Confederate heroes such as Jefferson Davis and Robert E. Lee.   Floats in the parade are sponsored by a wide variety of corporations and organizations, ranging from NASCAR to Red Man Chewing Tobacco to the all-white True Americans Club.  The Sons of Confederacy march in their Civil War-era gray uniforms carrying confederate flags.  Confederate flags are also featured prominently on many of the floats and on the white Cadillac carrying the parade’s grand marshal, Talledega G. Knight, mayor of Pescalua and a former leader in the Mississippi KKK.

Citizens for a Progressive Mississippi (CPM) sought permission to enter a float in the Heritage Day Parade.  CPM’s request was denied by the Sons of Confederacy on the grounds that CPM’s proposed float was “inconsistent with the message and spirit of the parade.”  CPM’s proposed float would have featured persons dressed as Abraham Lincoln and Ulysses S. Grant dancing joyfully with African-Americans depicted as newly freed slaves.

Angry at their exclusion from the parade, a number of members of CPM announced a counter-protest in a public park that bordered the parade route.  On the day of the parade, about twenty CPM members showed up in the park with signs and flags.  The signs carried messages such as “You Lost!—Get Over It!” and “F--k Mayor Knight!”  Another sign showed a confederate flag next to an “=” and the word “Racism.”  When the parade approached the park, CPM demonstrators began loudly chanting, “No More Racism!” and then set fire to three confederate flags.  As a passing band tried to play “Dixie” over the demonstrators’ loud chanting, irritated parade attendees turned on the demonstrators and began punching them and pelting them with candy.

Pescalua police quickly swept in, rounding up the demonstrators and throwing them into squad cars.  They were later booked and charged with several violations of law, including “making statements intended to provoke a violent reaction,” “disturbing the peace,” “burning without a permit,” “displaying indecent language in letters more than one-foot high,” and “destruction of a sacred symbol, specifically the confederate flag.”

Please write a memo analyzing whether Pescalua can, consistent with the First Amendment, prosecute CPM members for the violations of law referred to above.  Also, analyze whether CPM’s First Amendment rights might have been violated when they were denied permission to enter a float in the Heritage Day parade.



Gene Sislit was recently fired from his position as a biology teacher at Kennedy High in Tacoma, Washington.  Sislit’s sins, according to Char Lesdar of the Tacoma School Board, were (1) raising dubious questions about the theory of evolution in class (Sislet told students that there were “too many missing links in the fossil records for evolution to be true”), (2) suggesting to his students that only a supernatural force could have creating a specie as complex as man (Sislet said in class that “the best evidence indicates that a divine plan has been at work”), (3) criticizing students who attempted to defend Darwin’s theory (Sislet told a student who offered a theory as to how an eye might evolve that “only a moron could believe that evolution could create an eye”), and (4) writing a letter to the editor of the Tacoma Press ridiculing the theory of evolution and promoting Scientific Creationism as an explanation for the diversity of life. Lesdar said that the Board concluded that Sislit’s actions brought ridicule to the school system and threatened the ability of his students to perform well on Biology AP tests and in college.  


A.  Sislet argues that the Board’s decision to fire him violates his First Amendment rights and has sued the School District for reinstatement and back pay.  What result?


Following Sislit’s firing, several parents of Christian Fundamentalist students at Kennedy High asked the principal to excuse their kids from any biology classes in which the theory of evolution would be taught.  They argued that the instruction in evolution undermined their children’s belief in the literal truth of the Bible, especially the story of creation told in Genesis chapter 1.  When Principal Sue Secullow refused their request, the parents brought an action in federal district court arguing that under the Free Exercise Clause students had a right to be excused from classes in which the theory of evolution is taught.  Moreover, they argued, the students had a right not to have their biology class grades affected by their refusal to answer any exam questions relating to evolution.


B.   Following Principal Secullow’s decision, the parents of the affected students sued in federal district court, arguing that their First Amendment rights have been denied. What result?





Duane Benson, a soldier from Lake Wobegon, Minnesota, was killed in June by an IED in Iraq.  His body was returned to Minnesota and Duane’s parents announced plans in the local paper, the Lake Wobegon Herald, for a funeral at the Lutheran church with burial to follow at the town’s lakeside cemetery.

Less than twenty-four hour after the announcement of funeral plans for Duane Benson, the Reverend Fred Phelps of the Westboro Baptist Church in Topeka posted notice on the church’s website that members of the congregation planned to travel to Minnesota to protest at the Benson burial ceremony.  The notice came as no surprise.  The Westboro Baptist group engages in protests at funeral and burial ceremonies for many soldiers killed in combat to show its hatred of America’s alleged tolerance of homosexuality.  The Westboro group views homosexuality as an abomination condemned by the Bible.

When word got out the Westboro gang was coming to Lake Wobegon, a group of townspeople met to plan a counter-demonstration designed to show their disgust with Phelps and his group’s agenda.

Duane’s funeral took place on a beautiful July afternoon.  After a service at the church that brought most of the hundred or so funeral-goers to tears, a motorcade drove the mile to Lake Wobegon Lakeside Cemetery.  What they saw as they proceeded through the cemetery gates made the mourners cringe.  Gathered on a public sidewalk bordering the cemetery were about a dozen protesters carrying signs that read “God Hates America,” “God Hates Fags,” “Thank God for IEDs,” and “Duane, Rot in Hell!”  The group included two children, including a toddler wearing a diaper made out of an American flag and a seven-year-old who, following the commands of an adult, was dumping pig manure on an American flag.

Duane’s burial plot was about 200 feet from the protest.  As Pastor Ingkvist said prayers and the coffin was lowered into the ground, mourners could hear in the background the Westboro demonstrators chanting, “Welcome to Hell, Duane!”  The mourners were also surprised to see, at the same time, a pontoon boat full of Lake Wobegonians cruise by the cemetery, about 100 feet from shore.  The boat was decked with a banner reading, “We Love You, Duane!”  Seven members of the local barbershop quartet, assembled on the pontoon, broke into a stirring rendition of “Amazing Grace” in an attempt to drown out the chanting of the Westboro demonstrators gathered by the cemetery fence.

The adult members of the Westboro protest group were arrested after the burial service by Lake Wobegon’s police chief, Darryl Tolvesrud.  Chief Tolvesrud charged the group with: (1) disturbing the peace (chanting during service), (2) flag mutilation (diaper wearing and dumping manure on flag), (3) child abuse (ordering child to dump manure on flag), (4) creating a public nuisance (based on the dumping of the pig manure), and (5) conducting a demonstration during a funeral or burial service.  The latter charge was based on a Minnesota statute, enacted in response to previous Phelps protests, that prohibits “any demonstration with 300 feet of a church, cemetery, or other place in which a funeral or burial service takes place in the period from one hour before the service to one-half hour after the service.” 

No charges were brought against any of the persons on the pontoon demonstrating their support for the Benson family.

One month later, the Benson family filed suit against Phelps.  The suit sought damages of $5 million for intentional infliction of emotional distress.

Please discuss the First Amendment issues raised by the criminal charges and civil lawsuit brought against Westboro Baptist members.  Consider possible defenses for Westboro, including whether they might have a Free Exercise claim.

Pedro Pomeroy was an art professor at Western Idaho State University (WISU), a taxpayer-supported college.   In the spring of 2005, Pomeroy exhibited thirty of his recent paintings in the J.C. Hall Gallery at WISU’s Student and Alumni Center.  The Hall Gallery is open to the public from 8 to 5 every day, and no admission is charged.  Exhibits in the gallery change monthly, and generally feature recent works of either WISU art faculty or students enrolled in WISU’s arts program.

Many of Professor Pomeroy’s paintings contain strong political messages.  Some paintings contain obvious anti-war messages, while others seem to criticize the Bush Administration’s environmental policy, such as one painting depicting a can of oil spilling down a stylized map of Alaska.  One particular painting in the exhibit, however, proved especially controversial.  The painting, titled “Rape of Lady Liberty,” depicted George Bush, wearing a cowboy hat and naked from the waist down, forcibly having sex with a horizontal Statue of Liberty.

Jonus Q. Hall, a wealthy alumnus of WISU and a generous donor to the university, saw Pomeroy’s “Rape of Lady Liberty” in the Hall Gallery on a recent visit to his alma mater.  Hall was outraged.  He immediately showed up in the office of WISU President Zygmunt Pedigree, threatening to terminate his support for the university unless the painting was removed from the gallery.  “Remove it today, or you’ve seen my last check,” Hall told the President.  President Pedigree complied with Hall’s demand, and ordered a university employee to remove the painting and return it to Professor Pomeroy.

When Professor Pomeroy learned that “Rape of Liberty” had been taken down on the orders of the President, he flew into a rage.  Pomeroy called a local radio station and complained on the air, “President Pedigree is engaging in blatant censorship.  He doesn’t give a shit about free speech, and is nothing but the toadie of a few wealthy contributors.”

When the semester ended three weeks later, Professor Pomeroy, who was untenured, was informed that his employment contract would not be renewed.  In a letter to Pomeroy explaining his decision, President Pedigree cited as reasons for Pomeroy’s termination (1) his “abysmally poor judgment” in including such a “highly controversial painting” as “Rape of Liberty” in his public exhibit, (2) his criticism on a radio broadcast of the decision to remove the painting, and (3) his use of “profanity” in his radio interview.

 Please write a memo evaluating the First Amendment issues raised by:

    1. The decision to remove “Rape of Liberty” from the art exhibit, and
    2. The decision not to renew Professor Pomeroy’s teaching contract.

Essay Problem 8 (2008)

ummum monument proposed for Pleasant Grove park

In 1971, Pleasant Grove City, Utah allowed the Fraternal Order of Eagles to place an seven-foot high stone monument enscribed with the Ten Commandments on a grassy area in a town park.  The park contains no other monuments.

Corky Ra, founder of Summum, claims to have had a series of telepathic encounters with divine beings called Summa Individuals.  From these encounters, Corky learned the Seven Aphorisms which became the basis for Summum teachings.  Followers of the Summum religion wished to place a stone monument in the Pleasant Grove park that is enscribed with the Seven Aphorisms.  The monument would have been similar to the Ten Commandments monument in size.  The Summum church offered to pay the city any costs associated with installation of the monument.

The city declined the Summum church's offer, suggesting that allowing the monument to be installed would give them no choice but to allow all other groups to install monuments.

1.  Please analyze the First Amendment issues raised by the city's decision to refuse installation of the Summum monument.

2.  Assume that Pleasant Grove relented and allowed the Summum monument to be installed in the city park.  Could the city refuse to allow the Mrs. Fields Company to install in the park its proposed monument extolling the virtues of chocolate chip cookies?

3.  Assume that Corky Ra declares that the Summa Individuals will soon beam down to Pleasant Grove City park and take whatever faithful Summum followers are gathered there at that time to a beautiful planet where they will live eternally in a rapturous existence.  A dozen or so Summum followers respond by moving into the park, spending nights in sleeping bags.  After the overnight vigils begin, Pleasant Grove passes an ordinance that makes it illegal to be in the city park from 10 pm to 5 am. Does the First Amendment allow Pleasant Grove officials to criminally punish Summum followers if they refuse to comply with the curfew?

Please confine your answer to a single bluebook.




Simon Leafgreen was a biology teacher at Tacoma Central High School in Tacoma, Washington.  Leafgreen is one of a relatively small number of biology teachers who does not subscribe to Darwin’s theory of evolution, which he has described as “a giant fraud perpetrated by atheists.”  In his biology class at Tacoma Central High, Leafgreen spent the better part of a week ridiculing the theory of evolution and offering reasons why he thought the theory was rubbish.  He told students, for example, that there is “no way an eye could ever evolve” and that if people and the great apes had a common ancestor “they surely would have found the missing link by now.”  When students attempted to argue in support of the theory of evolution, Leafgreen would routinely cut them short, often calling them “ignorant” or telling them they had “been brainwashed by the liberal media.” Leafgreen did not spend a lot of time explaining how the species that now populate the earth did get here, but did argue on a couple of occasions that is was “pretty obvious” they had to have been created as distinct species by a creator.


Several students complained to Principal Trevor Woods about Leafgreen’s “proselytizing,” his “ridiculing students,” and his failure to cover in an even-handed way the theory of evolution, Principal Woods decided to terminate Leafgreen at the end of the quarter.  In a letter to Leafgreen, Woods cited as reasons for his decision “an inadequate grasp of basic biological principles,” “advocating religion in the classroom,” and “showing disrespect for the divergent views of students.” 


When word leaked to students of Leafgreen’s firing, a number of his student and community supporters announced they would protest the decision.  Reverend Jeremiah Daniels, a local preacher, urged other students and members of his fundamentalist congregation to “Occupy the Field,” by bringing tents and sleeping bags to the high school football field and remaining there indefinitely. For two days, school officials and local police pondered what to do about the protesters, who numbered about 50 students and 25 community members.  (Reverend Daniels did not participate in the protest, but continued to urge others to join in.)  Finally, concerned about damage to the turf and growing sanitation problems, police announced they would clear the field.  Most demonstrators packed up and left when the police informed them that they had ten minutes to leave the field, but a handful of hard-core protesters remained and were forcibly evicted. 


Reverend Daniels was arrested for inciting trespass. Three students who refused to leave the field were charged with refusing to comply with a police order and notified by Principal Woods that they faced a ten-day suspension from school.  Other students who participated in the protest, but who left the field when the police requested that they do so, were given two-day suspensions for “disrupting school activities.”


Please discuss each of the following questions.  Confine your discussion to a single bluebook, or a maximum of 10,000 characters if you are using ExamSoft.


(A)    Did the decision to terminate Simon Leafgreen violate his First Amendment rights?

(B)    Did the protestors have a First Amendment right to occupy the football field?

(C)    Does Reverend Daniels have a valid First Amendment defense to the charge he faces?

(D)    Does the decision to suspend the protesting students violate their First Amendment rights?


Recently, the Supreme Judicial Court of Massachusetts ordered the state legislature to authorize same-sex marriages within sixty-days.  In opposition to this ruling, an organization formed calling itself Save the Institution of Marriage (SIM).  Most of the members of SIM are religious conservatives, motivated by their belief that the Bible declares both marriage to be a holy institution and homosexuality to be an abomination.

After its first meeting, SIM announced plans to actively oppose legislation implementing the Court's ruling and, failing that, take "all steps necessary to discourage these unholy unions."  Specifically, SIM said that it would deploy picketers on "church steps, courthouse steps, or wherever else these so-called marriages take place."  Moreover, SIM declared, we will picket the homes of gay newlyweds.

Exactly what form the protests will take remains unclear.  Reports from the SIM meeting indicate that members favored signs with such slogans as " "Support Amendment to Save Marriage!", "SIM!," and "The Bible Says No!"

The city of Cambridge is now considering legislation designed to restrict SIM protests before they begin occurring.  Council members expressed the fear that such protests will "spoil what's supposed to be a happy day" and cause great pain to the wedding participants, relatives, and friends.  An ordinance proposed by one councilwoman reads as follows:

No protests shall occur during the period from one hour before until one hour after any same-sex marriage ceremony performed in any public building or place of religious worship.  This prohibition shall apply to protests within 100 yards of any such place where the marriage ceremony is performed.

Another ordinance drafted by a second councilman would ban certain forms of residential picketing:

It shall be unlawful for any person to picket or engage in any sort of protesting in a residential neighborhood, except on one's own property.

You are the city attorney for Cambridge.  You have been asked to evaluate the constitutionality of the two proposed ordinances and to suggest changes, if necessary, that would increase the probability that the ordinance might pass constitutional muster.  Write the memo addressing the relevant constitutional issues.



In recent years, hundreds of Muslims, many of them recent immigrants from Somalia, have settled in Eagle Landing, Michigan. The growing Muslim population has caused consternation among some long-term residents, who see the new residents as competitors of jobs, responsible for increased crime, and a threat to their traditions. 


In the Eagle Landing High School, Muslims students—especially girls—are rarely fully integrated into the school community.  They tend to eat separately in the school cafeteria, socialize mainly among themselves, and rarely participate in school-sponsored extra-curricular events. 


When the Eagle Landing School Board met in November 2010, the issue of Muslim students, and their lack of assimilation, was a hot topic of debate.  Phyllis Schafney, a member of the Board, said, “These Muslims are nothing but trouble and all should be sent back to where they came from.”  Schafney proposed a new school regulation that would prohibit students from wearing any sort of headscarf in class or at any school-sponsored event.  The ban would apply to head and neck scarves (such as the hijab, favored by many Muslim women), partial veils (niqabs) and full veils (burqas).  Schafney said that such the headscarf ban, if adopted, would send the message to Muslims “that they are no longer welcome here and should move somewhere else.”  Morris Sontag, another Board member, said that he also favored the headscarf ban, but for a different reason.  “Headscarves set the girls apart,” he said, “and are an affront to their dignity.”  If we adopt this ban, he said, the girls would be more accepted by their classmates and the school will function as it should—“without all these cliques and factions.”  A third member of the Board, Francis Hamm, denounced the proposed rule.  “This is just blatant discrimination against a religious minority!” she complained.  Schafney said the rule was just fine because it applies to anyone—including boys who just want to wear their winter scarves in class.  When debate ended, the Board voted 5 to 2 to approve the ban on headscarves.


Last month, when the headscarf ban went into effect at Eagle Landing High, seven Muslim girls were told that they must remove their headscarves or face suspension from school.  The girls refused, saying that their religion required such modesty in public places.  Principal Helmsly said he understood their position, but that “a rule is a rule” and suspended them from school indefinitely.  He told them they could only return to school once they have agreed not to wear headscarves.


The suspension of the “Headscarf Seven” prompted a number of students at Eagle Landing High to stage a protest in support of their Muslim classmates.  Several showed up wearing T-shirts that said, “End Religious Bigotry.”  The T-shirt wearing students passed out flyers in the hallways between classes that announced a boycott, scheduled for the following Tuesday, of classes to protest “religious bigotry in Eagle Landing and to support religious freedom for all students.”  When Principal Helmsly saw the flyers, he told them that urging a boycott of classes was a violation of school rules.  As punishment, Helmsly ordered the students to prepare a large sign reading “ATTEND CLASSES AND SUPPORT THE SCHOOL BOARD” and to hold the sign up on the a sidewalk leading to the school parking lot for three days from 3:00 to 4:00.  If they refused to do so, he said, they would be suspended from school for a week.  He also told the students that under school regulations “no political statements” are allowed on clothing and that when they come back tomorrow, “they should lose those controversial T-shirts.”


(A)    Does the Eagle Landing School Board regulation that bans headscarves in schools violate the First Amendment?  Discuss.


(B)     Did the decision to order the protesting students to prepare and hold a sign in punishment for distributing their flyers violate the students’ First Amendment rights?  Discuss.


(C)     Does Eagle Landing have the right to prohibit students from wearing T-shirts that address controversial issues?  Discuss.


Your answers should be contained within a single bluebook.



A diverse collection of disappointed seekers of personalized license plates have asked your opinion as to whether they have a strong First Amendment claim against the Missouri Department of Motor Vehicles.  In each case, the Department refused to issue a requested plate, citing a law that authorizes it to ban or deny plates that “are contrary to public policy.”

The denied plates include “NAZIFAN”, “SHTHPNS”, “ROMANS5”, and “KILL-EM”.  The Department said the “NAZIFAN” plate could provoke a violent reaction from other drivers.  It said “SHTHPNS” was indecent.  (Your client points out that the plate could as easily be read as short for “Shout Happiness!”) It refused to issue the scriptural plate “ROMANS5” citing a policy that prohibits references to religion or a deity.  Finally, it denied the plate “KILL-EM," concluding that it promoted violence.

Does the state have the power, consistent with the First Amendment, to ban the requested license plates?

[Note: In 2001, the Eighth Circuit found Missouri's refusal to issue a license plate "ARYAN-1" to be unconstitutional. 
See: Lewis v Wilson (8th Cir. 2001).]


     A group of Fundamentalist parents are upset with required readings in classes at a public school in Tennessee.  Specifically, they believe that certain required readings promote secular humanism and undermine the religious beliefs of their children.  They complain that Harry Potter books required in the seventh-grade favorably portray witchcraft.  They complain that a senior-high physics book suggests that the Big Bang provides a credible explanation of the origin of the universe.  Finally, they complain that biographies required in a tenth-grade history class promote feminism and the notion that women should find work outside the home.

     The Fundamentalist parents wonder whether the required readings violate either the Establishment Clause or the Free Exercise Clause.  They would either like to have a court order the curriculum be changed or that their students be exempted from objectionable required reading and instruction.  What do you tell them?


     Bogwon Bob is the charismatic leader of a religious cult called the "Eden's Garden Movement."  In 1997, Bogwon Bob announced that an isolated valley in southern California's Mojave Desert was "the new Garden of Eden," and urged his hundreds of followers to join him in settling in the small valley town of Jackolope.  Within a year, nearly 700 Eden's Garden Movement members had moved to Jackolope, outnumbering the resident population of about 600.

     In November, 1998, Eden's Garden Movement members captured the office of mayor in Jackolope, plus three of the five town council seats.  Soon the council began adopting, always on 3 to 2 votes, a number of  ordinances proposed and supported by Bogwon Bob.

     The first ordinance to be adopted by the Jackolope Town Council changed the official town seal and motto from one with a rattlesnake encircled by the  words "Don't Tread On Me" to a silouette of a couple copulating encircled by the words "Make Love, Not Enemies". The seal was designed by Bogwon Bob and reflects his free love beliefs and practices, but the motto is not one with special religious significance for the Eden's Garden Movement. An eight-foot in diameter official seal was placed on the Town Hall, directly above the main public entry to the building.

     A second ordinance adopted by the Town Council declared the month of November to be "Freedom Month".  The ordinance prohibited the wearing of any clothes during the month of November in Freedom Park, the newly renamed town square.  Bogwon Bob has urged Eden's Garden Movement members to shed their clothes whenever temperatures allowed.  Bogwon Bob believes that Genesis tells us that God intended that his children be naked and feel no shame. Eden's Garden worship services, where members sip communion wine and are offered--but emphatically reject-- apples,  are conducted in the nude.  Bogwon Bob teaches that clothes are an unfortunate manifestation of our self-pride and materialistic ways.  Supporters of the Freedom Park measure also noted that nakedness breeds egalitarianism and feelings of fellowship and openness.  Wearing clothes, according to another council member, "is just plain immoral".

     A third controversial decision of the Town Council was to appropriate $1000 for the purchase of books about Bogwon Bob and the Eden's Garden Movement.  The books included an autobiography by Bogwon Bob, a collection of Bogwon Bob's favorite jokes, an Eden's Garden hymnal, and "The Yellow Book," a compilation of the sacred wisdom of Bogwon Bob.  The purchased books were placed in the Town Library in the "Religion" section.  (Books that were previously in the Religion section of the Library, including the Bible, the Koran, and books about other religions, were left on the shelves.)

     Needless to say, the 600 or so residents of Jackolope who are not members of the Eden's Garden Movement are up in arms over the new ordinances.  On November 15,  three Jackolope residents, finding the Freedom Park ordinance to be more than they could bear, marched, fully clothed, through the park carrying signs reading "Nudism is for Animals," "Go to Hell, Bogwon," and "Nudes are Nuts." They soon found themselves in shouting matches with Eden's Garden followers who objected to their signs and clothes. They were arrested for violating the town's ban on clothes wearing and for inciting a breach of the peace by carrying offensive signs.

(A)  Discuss the constitutionality of the town seal and motto and its placement on Town Hall.

(B)  Discuss the constitutional issues that might be raised by "The Jackolope Three" in an appeal of their convictions in municipal court for wearing clothes and inciting a breach of the peace.

(C)  Discuss the constitutional issues raised by the Town Council's appropriation of funds for new library books.


Tanya Bell is a senior at Liberty North High School.  When her application to edit the Liberty High school newspaper, The Weekly Voice, was rejected in favor of that of another student, Tanya decided to publish her own online school news blog.  She did all of the writing for what she called “Bell’s Liberty News” on her home computer.  The online paper became popular and was regularly read by half or more of the students at Liberty High School.

Although Bell’s Liberty News was popular with students, it was much less so with school administrators.  Several items in the online newspaper were of special concern to school officials. One was Bell’s “Teachers Rated” feature, which allowed students to rate their high school teachers on a “1 to 5” scale.  Needless to say, teachers with especially low ratings were most concerned, and complained that they overheard students making fun of them behind their backs.  Also of concern to school administrators was Bell’s call for a boycott of Sam Adams’ history class next Wednesday (November 22).  In her paper, Bell accused Adams of making disparaging comments in the lunchroom about the attractiveness of Liberty High’s female students.  (Adams disputes the claim).  Finally, officials objected to an animated cartoon which Bell posted on her paper which depicted the school mascot, a gopher, apparently having simulated sex with the mascot of an arch-rival, a badger. Officials thought the cartoon video was pornographic and also worried that the video both ridiculed Liberty North’s school mascot (potentially dampening school spirit) and showed disrespect for the opposing school.

On November 20, Principal Ferd Choplick summoned Tanya Bell to his office.  Choplick gave Bell a choice: either she must agree to remove certain offending features on her Liberty News website or she would be suspended from school indefinitely.  Asked what features Choplick had in mind, he specifically identified the “Teachers Rated” feature, her call for a boycott of history class, and her mascot sex video.  Bell politely refused to remove the features. Choplick told her that she shouldn’t bother coming to school the next day.

The suspension of Tanya Bell soon became a big issue at Liberty North High.  On November 21, students mounted a protest on the school playground during the lunch hour.  Many students held up signs reading “No censorship!” or “We Believe in Bell.”  One teacher, Donna Redding, also appeared at the protest.  She gave a short speech urging the students to continue supporting the cause of free speech and expressing agreement with the protestors’ position on the Bell suspension.  “This is a blatant free speech violation,” Redding told the students, “and I commend you for fighting it.”

The next week, Donna Redding was informed that her contract would not be renewed next year.  When she asked why, Choplick said the reason was “insubordination,” citing her appearance at the pro-Bell noon hour rally.

  1. Did the decision to suspend Tanya Bell violate her First Amendment rights?  Please discuss First Amendment issues raised by each of Bell’s controversial expressions.

   B.   Did the decision to not renew Donna Redding’s teaching contract violate her First Amendment rights?  Please discuss.


Pastor Hamblin of Tabernacle Church
of God in LaFollette, Tenn.

Tennessee demonstrator protesting arrest of snake-handling pastor


New York Times story excerpt (Nov. 16, 2013)

Tennessee Pastor Disputes Wildlife Possession Charge by State

JACKSBORO, Tenn. — In a mix of old-time religion, modern media and Tennessee law, a 22-year-old preacher who has become a reality television star because of his experience in handling poisonous snakes pleaded not guilty on Friday to illegally keeping dozens of them that he and his congregants routinely touch during worship services.

Members of Mr. Hamblin’s Tabernacle Church of God turned out to support him at his arraignment Friday in the Campbell County Courthouse.

Andrew Hamblin, pastor of the Tabernacle Church of God in nearby LaFollette and a star of “Snake Salvation,” a recent series on the National Geographic Channel, said he hoped to turn the case against him in Campbell County General Sessions Court into a new front in the battle for religious liberty.

“This ain’t no longer just a fight for snake handling,” Mr. Hamblin, the father of five, told a group of supporters wearing red — to symbolize the blood of Christ — before his arraignment on a misdemeanor wildlife possession charge. “This is a fight for freedom of religion.”

As Mr. Hamblin, holding a Bible, spoke from the third step of the Campbell County Courthouse, several women cried and shook.

Members of Mr. Hamblin’s two-story brick church, which sits along a gravel road, have made no secret of their status as one of the country’s estimated 125 snake-handling congregations. It came as little surprise when Tennessee Wildlife Resources Agency officials showed up on Nov. 7.

During the raid, the officers seized about 50 snakes from the church’s Snake Room, including copperheads, timber rattlesnakes and cottonmouths, and cited Mr. Hamblin on one count carrying a possible punishment of a $2,500 fine and nearly a year in prison. Mr. Hamblin, who is to return to court next month, has not yet been charged with violating Tennessee’s 1947 ban on snake handling.

“We don’t allow anybody other than permitted individuals in schools and zoos to possess venomous snakes,” said Matthew Cameron, a spokesman for the wildlife agency. “We don’t view him as any different from anyone else in the general public who has a king cobra in his room.”

And although church members say Mr. Hamblin takes care to keep the snakes secure, the chief prosecutor for Campbell County, a rural area just north of Knoxville, has described them as a “significant public safety hazard.”

But to Mr. Hamblin and his supporters, the case is little more than state-instigated discrimination against a religious practice that has been present in East Tennessee for more than a century.

“When those officers entered the house of God, that cooked it with me,” said James Slusher, who attends Mr. Hamblin’s church..

Mr. Hamblin’s legal troubles have attracted widespread attention in Campbell County, and they have revived a longstanding debate here about whether the Constitution offers protections for Christians who, as the Gospel of Mark puts it, “pick up snakes with their hands....”

Snake-handling has long been a part of religious services in certain Pentecostal churches in Appalachia and the South.  Unsurprisingly, the practice has resulted in a number of deaths of ministers and their snake-handling parishioners. The practice is inspired by a passage in the Book of Mark 15:16-17: "And these signs shall follow them that believe: In my name shall they cast out devils; they shall speak with new tongues. They shall take up serpents; and if they drink any deadly thing, it shall not hurt them; they shall lay hands on the sick, and they shall recover."  Handling snakes is seen by some believers as a test of the strength of one's faith in God.

In 1947, the Tennessee legislature made it illegal "for a person to display, handle, or use a poisonous or dangerous snake in such a manner as to endanger the life or health of any person."  The act, which followed a rash of deaths in snake-handling churches, specifically excluded from its coverage any employee handling or using snakes in a "school or zoo."  The sponsor of the 1947 law argued, "Tennessee has a right to guard against the unnecessary creation of widows and orphans.  These churches are out of harmony with modern notions of morality."


In protest of Pastor Hamblin's arrest on snake-handling charges, ten members of his congregation marched to the Tennessee Capitol Building in Knoxville to demand repeal of the 1947 law.  Each protestor draped a life-like, battery operated poisonous snake (some chose cottonmouths and some chose copperheads) around their neck.  As the ten protestors walked down a public sidewalk towards the Capitol with their life-like neck decorations, the toy snakes rattled, hissed, and sometimes moved their heads in the direction of passers-by, several of whom shrieked or ran to the other side of the street.  Responding to a citizen complaint, two Knoxville police officers showed up on the scene and promptly arrested the ten demonstrators, charging them with "disturbing the peace."  The protestors claim that their toy snakes posed no real danger and that they were engaged in a peaceful protest protected by the First Amendment.


Please confine your answer to these two questions to a single blue book, or a maximum of 10,000 characters if you are using ExamSoft.

Essay Problem (Fall, 2016)

In the recent election, “fake news” sites might have influenced voters in the presidential election.  Unlike the popular satirical site “The Onion,” these sites post news stories that seem are somewhat plausible.  The fake news sites present false stories as real with the intent of deceiving gullible viewers and influencing their behavior.  In the 2016 election, fake news stories were often written with the deliberate intent to persuade voters to support or oppose a particular candidate.  Most of these stories were written by politically active Americans and, after the election, a few credited themselves with having helped win the election.  Also in 2016, paid Russian “trolls” echoed and amplified the news through social networks in ways that undoubtedly influenced at least some voters.


Stories that appeared in the closing days of the campaign reported, for example, “Thousands of Fraudulent Ballots Marked for Clinton Found in a Warehouse in Ohio,” “FBI Confirms Evidence of Huge Clinton Pedophile Sex Ring,” “FBI Leaker in Clinton E-Mail Probe Found Dead in Apparent Murder-Suicide,” “In a Surprise, Pope Endorses Trump.”  Many of these stories, as you might imagine, grabbed attention and were shared and re-shared on Facebook and other social media platforms.   While the vast majority of fake news stories in 2016 seem to have been designed to win support for Donald Trump, obviously the tables could be turned.  For example, a Clinton supporter might have published a lurid story under the headline, “Sixteen-year-old Provides Proof Trump Raped Her in 1998.”


Assume that Congress passes the “Truth in Electioneering Act of 2017” which, among other provisions, makes it a crime punishable by a fine of up to $20,000 and imprisonment of up to one year” to “publish a news story within 30 days of a general election, with the intent of influencing that election, that is known by the publisher to be false.”


Brickbat News is a corporation which offers to write and place false stories about a candidate’s opponent.  In its advertising, Brickbat says it can write and circulate “False stories about your opponent that can mean the difference between winning and losing an election.”  It claims to be able to write stories in “less than 24 hours that will shake even the most formidable opponent.”


Brickbat believes the Truth in Electioneering Act of 2017 violates the First Amendment and sues in federal court to prevent its enforcement. 


Please discuss the issues raised by Brickbat’s lawsuit.  If the court sides with Brickbat and invalidates the Act, is there any check on at least some false stories that could survive a First Amendment challenge?  If so, what might that be?



1. What explanation did the Court give for its decision in Roberts v U. S.  Jaycees upholding the Minnesota law requiring the Jaycees to open their membership to women?

(A) The Jaycees exclusion of women violated the Equal Protection Clause.
(B) The Minnesota law had a rational basis.
(C) The Minnesota law served a compelling interest of ensuring the equal access of women to important economic privileges.
(D) The Jaycees were a “predominantly commercial” organization and, therefore, has no freedom of association claim under the First Amendment.

2. In Schenk v. U.S. (1919), involving socialist leaflets sent to draftees during the First World War, the Court did which of the following?

(A) The Court reversed Schenk's conviction using the “clear and present danger” approach.
(B) The Court reversed Schenk’s conviction under the Espionage Act applying a “direct incitement” test.
(C) The Court reversed Schenk's conviction, holding that the government had no compelling interest to prohibit the leafletting.
(D) The upheld Schenk’s conviction applying a weak form of the “clear and present danger” test.

3. The Court has held which of the following to be protected by the First Amendment?

(A) Racist and anti-Semitic statements made at a KKK rally.
(B) Leaflets during wartime urging draftees to resist conscription orders.
(C) A wartime speech by a socialist urging draft resistance.
(D) Wartime leaflets from anarchists urging workers to launch a general strike.

4.  What First Amendment principles apply to government funding of private speech, as elucidated in such cases as Rust (funding of family planning), Finley (funding of art), and Legal Services Corp. (funding of representation for indigents)?

(A) When the government is using its own money to subsidize private speech, it may favor any speech--including the expression of a favored viewpoint--that it pleases.
(B)  The government must be content-neutral in its decisions to fund private speech.
(C)  The government may restrict speech that does not further the legitimate purpose of a spending program, but it may not use its spending power to favor particular viewpoints.
(D) The government has a First Amendment right just as private individuals do, and can use its right to promote any views that it chooses.

5.  What factors are most likely to guide the Court's determination as to whether a prayer in an educational setting violates the Establishment Clause?
(A)  Any prayer in a school setting is a per se violation of the Establishment Clause.
(B)  Prayers that are drafted or compelled by school officials will be found to violate the Establishment Clause, but any prayers initiated by students are constitutional.
(C)  Prayers will not be found to violate the Establishment Clause so long as students are not compelled to recite them.
(D)  Prayers will not be found to violate the Establishment Clause so long as students are not compelled to recite them or listen to them.
(E)  Prayers in the school setting will be found to violate the Establishment Clause whenever they are seen as  endorsement by the state of religion, or as direct or indirect coercion on students to participate in religious activity.

6.  What is not part of the analysis for evaluating time, place, or manner restrictions on expression?
(A)    The government must demonstrate a compelling reason for its regulation.
(B)    The government must show that the regulation was not a disguised attempt to suppress speech because of its message.
(C)    The government must show the regulation was tailored to not unnecessarily restrict speech.
(D)    The government must how that there are ample alternatives for the speaker to communicate his desired message.

7.   Which of the following statements most accurately describes the Supreme Court’s First Amendment “overbreadth” doctrine?  
(A)    When a statute reaches substantially more protected speech than unprotected speech, it might be challenged even by someone engaging in otherwise unprotected speech.
(B)    When a statute might be construed to be enforceable against protected speech, then it can be challenged by someone engaging in otherwise unprotected speech.
(C)    When a statute applies only to unprotected speech, then it is considered “overbroad” and should be struck down.
(D)    Under the Court’s new, narrower approach to overbreath, only persons shown to be engaged in protected speech activities can raise First Amendment arguments.  
8.       Which of the following associations is not likely to have its “freedom of association” claim upheld?  
(A)    The KKK, when is asserts its right to discriminate with respect to race in its membership policies.
(B)    A private corporation, when it asserts its right to hire only Christians as employees.
(C)    The Boy Scouts, when it asserts its right to exclude gay scoutmasters.
(D)    The Catholic Church, when it asserts its right to refuse to ordain women as priests.

Answers: 1. (C); 2. (D); 3. (A); 4. (C); 5. (E), 6.(A); 7.(A); 8. (B).