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.
ESSAY PROBLEM 4 (2014)
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?
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 5 (2007)
Duane Benson, a soldier from , , was killed in June by an IED in . His body was returned to 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 in posted notice on the church’s website that members of the congregation planned to travel to 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 ’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 , 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 . 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 ’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.
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 . 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:
- The decision to remove “Rape of Liberty” from the art exhibit, and
- The decision not to renew Professor Pomeroy’s teaching contract.
Essay Problem 7 (2008)
Summum 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.
ESSAY PROBLEM 9
STUDENT A's QUESTIONS (Do not show these to Student B.)
|(1)||What is freedom of speech?|
|(2)||How does freedom of speech improve a society?|
|(3)||Should there be some limits on what we are free to say?|
|(4)||Should people be free to spread hatred, incite violence and ridicule others’ religions and nations?|
|(5)||Is pure freedom of speech is undesirable in today’s world?|
|(6)||Should you be free to tell an enemy your country’s national secrets?|
|(7)||Some countries forbid school teachers from introducing subjects like homosexuality in their classes. Is this denying free speech?|
|(8)||Does the Internet open up the possibilities of totally free speech and freedom of expression?|
|(9)||Many countries censor websites to control what their citizens can and cannot see. Is this dangerous?|
|(10)||When do you have to be careful what you say?|
STUDENT B's QUESTIONS (Do not show these to Student A.)
|(1)||Is freedom of speech important?|
|(2)||Does freedom of speech include spreading lies about people?|
|(3)||A Danish newspaper angered the world’s Muslims by publishing cartoons of the Prophet Mohamed. Is this freedom of speech?|
|(4)||How important is freedom of the press?|
|(5)||"I disapprove of what you say, but I will defend to the death your right to say it." (Evelyn Beatrice Hall) Do you agree with this?|
|(6)||Are there things you’d love to talk or write about that you daren’t?|
|(7)||Has freedom of speech suffered with the war on terrorism?|
|(8)||Do children and teenagers also have rights to freedom of speech?|
|(9)||What do you think “gripe sites” are?|
|(10)||Have you ever been told to be quiet?|