Essay Problem -- 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.


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.

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.


     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.


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.

Answers: 1. (C); 2. (D); 3. (A); 4. (C); 5. (E).