Southern California Institute of Law
QUESTION 1Derek lives in Bloomingdale and works as a senior manager for the New Jersey Transit Corporation (NJTC), a public body charged with providing efficient and responsive public transportation to New Jersey citizens. NJTC has employees of diverse religious beliefs working for them. There has been some controversy over a site chosen for a proposed Islamic Center on Park 51 near ground zero in Manhattan. While commemorating the anniversary of 9/11, on a Saturday, Derek went to Park 51 and while on his own time, wearing civilian clothes on a sidewalk across from the center, he tore pages from a copy of the Koran and burned them in public. The incident was covered in the media. He was arrested and charged in a New Jersey state court with violating a state statute that made it a misdemeanor “to burn or attempt to burn any object or to tear up books or papers on a public street or sidewalk.”Immediately upon returning to work on the following Monday, Derek received a letter of dismissal stating he was fired for violating his trust as a senior state employee. Derek sues NJTC in federal district court claiming a violation of 42 USC §1983 for violation of his rights of free speech and a property interest in his job.Derek has a son, Jim, who is a senior at Bloomingdale High School (BHS). The school has a policy of allowing its property to be used on weekends for social and charitable fundraising activities by parents and their students. Jim sought permission from BHS to organize a meeting of supporters of his Dad who set up a non-profit group to raise awareness of free speech rights and raise monies to fund his defense for violation of the above referenced state statute and for his litigation against NJTC. Several faculty and students objected to this on the ground that it would inflame the Koran burning controversy on campus and disrupt the academic program of the school. BHS refused Jim’s request. Jim files a separate suit against BHS for denial of his free speech rights in federal district court.Assuming standing has been established by Derek and Jim, discuss the basis and merits of the respective lawsuits and any applicable defenses QUESTION 2Texas has a law that permits its DMV to issue specialty license plates that motorists may purchase for $50.00. Prior to approval, the Texas DMV reviews proposals for designer plates by sponsors who must submit $5000 which is refunded to their preferred non-profits after 500 such plates are sold and thereafter part of the sale proceeds will be used to fund the non-profit. So long as the frames do not include vulgar or profane text vanity plates are allowed. Texas DMV approved a plate that reads “one State Under God-that features images of the Crosses at Calvary, the Site of Jesus’ Crucifixion” (See image at bottom of question), with portion of the profits going to groups that work with at-risk children helping them buy books and school supplies. Donna purchased one of these plates from a local DMV Office. On the walls of the DMV hung framed copies of the US and Texas constitutions and a version of the Ten Commandments. While driving around the city streets of Houston Donna was pulled off onto a shoulder, and properly stopped for a speeding violation. After issuing her a traffic ticket, the trooper told Donna, “You Christian fundamentalists think you own the damn roads here, don’t you?” Donna, then turned around to the trooper of Pakistani descent and said: “You are an Asian, racist, anti-religious bigoted bastard and you need to have your head knocked off” and began to drive off when she was again stopped, and this time arrested, and charged with a breach-of-the-peace misdemeanor under a provision of the City of Houston municipal ordinance referenced below. The relevant section of the ordinance under which Donna was charged reads “it is unlawful for any person in any manner to interrupt any police officer in the execution of his/her duty or use insulting language or words that arouses or gives cause for hatred or violence based on the race, color, creed, religion, or gender of the officer.” The ACLU files suit in federal district court against the Texas DMV claiming that the picture of the Ten Commandments and the selling of these plates violate the Establishment Clause of the First Amendment contending that while motorists are free to use their own bumper stickers to advance individual religious beliefs the government may not promote them. Discuss.In City of Houston v. Donna, in her defense Donna claims the statute under which she is charged is unconstitutionally content-based, facially overbroad, and violates her rights of free speech while on a public highway. Discuss.Assume standing has been met in both suits. ISSUE SHEET-CON LAWQuestion 1Derek would claim a violation of his right of symbolic free speech under the 1st Amendment that is made applicable to the states through the liberty phrase of the due process clause of the 1st and 14th Amendments. This includes all of the 1st Amendment on the basis that such rights lie at the base of all our civil and political institutions and hence are incorporated into the states. NJ v. DerekCourts have used a four-part test to evaluate the constitutionality of symbolic speech on public streets.Is the regulation within the constitutional power of government? NJ may make valid content neutral laws pertaining to safety based on reasonable time, place and manner restrictions. The law does not target any particular speech, it’s on sidewalks used by pedestrians and fires can cause injuries to them.Does the law further an important substantial interest? Insuring the safety of people and property occupying public streets against fires is a substantial interest.Is the government interest unrelated to the suppression of free speech? Like the draft card case (US v. O’Brien), the law here is aimed at insuring the safe use of streets and sidewalks against damage to either person or property from fires. Is any incidental restriction on free speech freedoms no greater than what is essential to the furtherance of that interest? While prohibiting the burning of objects unrelated to the suppression of free speech is a reasonable fit, the blanket ban on tearing of books and papers may exceed the substantial interest in the safety of people and property since littering on public streets is a crime anyway. Thus based on this fourth prong, Derek may claim a symbolic free speech violation.Derek v. NJTCWhile public employees have a constitutionally protected interest in freedom of expression, the courts have required that a balance be struck between the interests of the employee, as a citizen, in commenting upon matters of legitimate public concern and the interests of the state, as an employer, in promoting the efficiency of the public services it performs through its employees. (The “Pickering” balance) Assuming, Derek had a right of (symbolic) free speech, while on a public street wearing civilian clothes on a weekend expressing his opposition to matter of major national interest, the question remains whether his off-duty actions as a senior manager of NJTC that employs workers of diverse religious beliefs would violate the trust of his office to act without appearing to compromise its neutrality on controversial public issues. (A student may discuss this either way)Basis of ClaimUnder the due process clause of the 14th no state shall deprive any person of life, liberty, or property with due process. Liberty interests include the right of free speech. Under the “Pickering” balance, Derek will claim he has a liberty interest in free speech exercised on a public street as an off duty employee of NJTC. Property interests are not defined in the U.S. constitution but may be found in state law, common law, or in state constitutions. Courts have found a property interest among employees who have a legitimate expectation to continued employment. Being a senior manager, Derek had property interest protected by procedural due process. Process DueThe process due is governed by weighing the three-part Matthews v. Eldridge formulation.The nature of the private risk affected by the official action. This risk of deprivation involves Derek’s job and livelihood supporting a teenaged son. The risk of an erroneous deprivation of such rights based on the procedures used. Derek was summarily discharged with only a statement of reason and was not allowed either to assert his rights of free speech or property or rebut the basis of a trust violation. The government interest in the fiscal and administrative burdens resulting from the need for substantive procedures. Here, it would not be administratively or fiscally burdensome to allow for use of employee grievance procedures that are in place for many state employees. 42 USC §1983The deprivation of a civil right “under color of” state law allows for reinstatement and damage remedies including attorney fees. NJTC is a governmental actor and violation of due process will allow for a §1983 lawsuit. Jim v. BHSPublic students do have rights of free speech but their rights are not co-extensive with those of adults in public. Proper content neutral rules of discipline, inculcating civic virtues, and rules prohibiting the advocacy of criminal conduct or the use of profane and vulgar language in the classrooms, student assemblies, offices and corridors are all valid restrictions. And any speech, without reference to content, that may cause a disruption of academic studies, a central mission of the school, may be validly prohibited. Since this involves a the opening of a forum (designated or limited public form) for limited weekend use relating to particular content- social and charitable fundraising activities and its proper use- an appropriate forum analysis is required. The permissible scope of the speech depends on the character of the forum. Three types of fora have been identified. In traditional fora (streets, sidewalks, and parks) any content-based restriction is subject to strict scrutiny whereby government must show a compelling state interest to justify such content prohibition (Schenck: “Clear and Present” Danger Test and Brandenberg: “Incitement to imminent Lawless Action” Test) and the means used must be narrowly tailored to advance this purpose. If the restriction is content-neutral, it must be (a) reasonable with respect to time, place, and manner; (b) there must be a significant government interest that is being served; (c) it must be a narrowly tailored to achieve such an objective, and (d) there must be ample alternative channels of communication. *This is not in issue here because it is not speech in a traditional forum. (NOTE: Students are not required to write on this).In Non-Public Fora, selective access is accorded to speakers and any reasonable restriction compatible with the use of the forum and one that is unrelated to viewpoint is allowed. (Example:-airports) *This is not in issue here because it is speech that does not involve a “non-public forum.” (NOTE: Students are not required to write on this).In Designated or Limited Public Fora government allows for general access that may be limited to subject-matter or speaker identity. In such instances, absent viewpoint discrimination, access to the forum is entitled to all speakers within the class of those eligible to use it.The issues here are: Whether or not, raising awareness of first amendment rights will qualify for the proper weekend use of school property. Put differently, would Jim and his supporters fall within the class of speakers allowed for the designated weekend use of school property at BHS? Since non-profit fundraising activities are allowed and Jim and his Dad qualify as those entitled to access school property on weekends for this purpose, they would fall within the class of speakers entitled.Is the refusal to grant Jim’s non-profit group permission to raise monies to fund his Dad’s litigation based on the viewpoint or is it on the effect of a controversy that would disrupt the learning environment of the school, which is its paramount mission?Jim’s argument is that permission is denied based on viewpoint pure and simple. If alumni of the school sought to help the litigation expenses of the school they would likely be allowed. BHS will produce evidence of students and faculty that an off-campus controversy ought not to be further inflamed in the school creating splits between faculty and students that in turn would make for a threatening and hostile learning environment. Because learning a core mission of a school that unlike colleges and universities, less leeway is allowed in a designated high school forum, a stronger argument may be made to uphold the refusal of permission on the basis it is likely to cause serious academic disruption. ISSUE SHEET - CON LAWQuestion 2ACLU v. Texas DMV(Ten Commandments) Under the First Amendment Congress shall make no law “respecting an establishment of religion” and all of the First Amendment has been made applicable to the states through the doctrine of selective incorporation discussed in the answer to Q#1.Courts have used a three-part (Lemon Test) inquiry.The contested law or practice must have a secular purposeThe principal or primary effect of the law must be one that neither advances nor inhibits religion; andThe statute must not foster “an excessive entanglement with religion.”With respect to religious displays on the walls of the DMV, two principles guide constitutional analysis on whether or not the practice meets the “secular” prong of the Lemon Test. The “secular” prong is not satisfied if the particular physical setting of the display has the effect on a reasonable observer who, aware of the history and context of the forum or governmental property, will perceive the display as an endorsement of religious beliefs. The requirement of a secular purpose is not violated if passive religious displays have a historical purpose even if they include a message consistent with a religious screed. The contextual setting is central to these inquiries. To the extent that the Ten Commandments is part of the Judeo-Christian heritage of our nation’s history and traditions, when flanked by pictures of state and US Constitutions, a reasonable observer may not view it as an official endorsement of religion. However, Courts will inquire on the intent and history of the display and that a captive audience may be involved here as well with respect to those waiting in line to transact DMV related business. [NOTE: A student may validly argue for either conclusion] With respect to passive displays, if the first prong is not violated, an Establishment Clause violation will generally not be found unless despite a secular objective, the nature of the practice/law would appear to advance a religious belief. ACLU v. Texas DMV (License Plates) As per the earlier forum analysis in the answer to Q#1, the DMV has opened up a designated or limited forum on state issued license plates with general access to all motorists. If government establishes a designated forum open to all motorists on equal terms, it may not discriminate based on viewpoint which includes religious speech. So long as atheists and religious believers may use the frames and purchase is voluntary, the DMV will not be found to violate the Establishment Clause. But if the purpose is secular, government may neither advance nor inhibit a religious exercise. ACLU will argue that if large numbers of Texas motorists use the religious plate, it will appear to a reasonable observer that the Texas DMV advances Christian religious beliefs in violation of the second prong of the Lemon Test. Yet the license frame, as a designated forum does not discriminate on the basis of viewpoint between either religious or anti-religious free speech, a constitutional violation may not be found. City of Houston v. Donna: (Facial Over-breadth and Content-Based Free Speech Prohibitions in a Traditional Forum) Facial Over-BreadthUnder the doctrine of facial over-breadth, statutes while validly regulating or prohibiting certain (unprotected) speech or conduct proscribes a broad range of protected speech and conduct as well. Such a law may be invalidated for facial over-breadth only if the law taken as a whole is substantially over-broad in relation to its plainly legitimate sweep. The Houston law is aimed at prohibiting speech that interrupts a police officer in the execution of his duties. Examined this way, the law does not appear to be facially overbroad. But since it encompasses “insulting” language this may include both unprotected “fighting words” (words likely to incite an imminent breach of the peace) as well as a broad range of protected speech that an officer may find unwelcome such as being called a “bastard,” “bigoted,” or “racist.”Traditional Forum AnalysisAs discussed in the answer to question #1, any content-based restriction of free speech in a traditional forum like a public street is subject to strict scrutiny. Since only some types of insulting language are singled out for protection such as “race, color, creed, religion, or gender of the officer,” this is a content-based restriction. The City of Houston will contend that these are particularly odious words and are either unprotected “fighting words” or are unprotected as intimidating speech. Fighting WordsBut if words used by Donna are “fighting words,” a law may not validly single out only some fighting words for protection and not others. (RAV v. City of St. Paul) Since the City has not submitted any compelling reasons on why only these particular words were chosen for being prohibited, this law will be found unconstitutional. IntimidationWhen an entire class of speech is unprotected –like criminal intimidation- it is constitutional to proscribe only a sub-set of this class such as emphasizing the manner of intimidation by so-called hate speech terms or symbols (Virginia v. Black).City will seek to uphold the ordinance on the basis that all hate speech is in the nature of a criminal threat. But without a threat of physical harm or fear of some kind this is simply untrue. The question becomes whether the Ordinance can be limited only to true threats of intimidation that is confined only to statements that may induce fear or harm in a reasonable officer. One may argue that Donna’s language directed at the officer after he had ticketed her and while she was driving off: “You are an Asian, racist, anti-religious bigoted bastard” does not approach a level of a criminal threat that includes an intent to cause fear or harm in the mind of a reasonable police officer. But her statement about wishing the office having his head “knocked off” may be a basis to show that this was a true threat of intimidation. Accordingly, the City ordinance will fail on a facial over-breadth or traditional forum analysis of free speech. Or, it may be upheld if the Ordinance is given a limiting construction and is confined only to fighting words that involve threats of intimidation. ................
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