Mercer University School of Law
Hugh Lawson III Memorial
1L Intramural Moot Court Competition
Spring 2012 Problem
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Tips and Things to Keep in Mind:
** You must create an argument for both the Petitioner (Descend Upon Mercer) and the
Respondent (State of Mercer).
** Allow yourself plenty of time to read and analyze the problem and cases and to develop
your arguments. This is not something that can be prepared for the day before your first
argument. Also, those participants who continue to revisit and refine their arguments as
the competition progresses will likely make it farther in the competition than those who
don’t.
** Remember, no outside research is required or allowed.
** All work and preparation must be done solo. It is an honor code violation to do any
work with anybody else on this competition, either for your benefit or theirs.
** Be prepared to argue all of the cases (cited in the problem) on both sides.
** These arguments are taking place in the United States Supreme Court. Because this is
the Supreme Court, consider policy arguments.
** For the purposes of this problem, we are limiting the issue to one question- the issue on
certiorari. In real life, the Court would potentially examine other areas of law as well but
for the purpose of this competition only evaluate the issue presented before you. Some of
the cases provided may discuss things like standing, justiciability, unconstitutionality for
vagueness, unconstitutionality for overbreadth, facial unconstitutionality, content-based
laws, attorneys fees, or other legal issues NOT discussed in the problem below. Please
IGNORE these issues. They are NOT part of the competition and you will not be expected
to address them.
** BE PREPARED TO TALK ABOUT MORE THAN JUST THE MAJORITY
OPINIONS IN EACH CASE. THERE MAY BE SOME VALUABLE ARGUMENTS TO
BE FOUND IN CONCURRING OR DISSENTING OPINIONS.
If you have any questions or want any advice about the competition, please refer to the
Lawson TWEN page. You may ask questions there (or find that someone else has already
asked the same question). However, to ensure the fairest way of getting the same
information to everyone, Michael and Ashley cannot answer general questions either in
person or over e-mail.
If you have a personal question that doesn’t involve general competition procedure or
advice, then please send an e-mail to BOTH Michael (mmcneill12@lawmail.mercer.edu)
and Ashley (apruitt12@lawmail.mercer.edu) and we will get back to you.
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Cases:
U.S. v. O’Brien, 391 U.S. 367 (1968)
Spence v. State of Washington, 418 U.S. 405 (1974)
Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984)
Bay Area Peace Navy v. United States, 914 F.2d 1224 (9th Cir. 1990)
*NOTE: To the extent that Ward v. Rock Against Racism, 491 U.S. 781 (1989) is referenced in
the Peace Navy case, you may cite to Ward in your arguments if necessary. You are NOT
required to read Ward, and are not permitted to cite to Ward EXCEPT as it is discussed in Peace
Navy – everything you need to know about the Ward case is in the Peace Navy opinion.
You should look up the listed cases and either print or download them. You
will be responsible for reading these cases. However, no other outside
research is necessary or allowed. In your arguments, you may refer to other
cases discussed within the cases above only to the extent that these cases talk
about any other cases. There is no need to actually look any other cases up, or
to cite directly to them.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE TWELFTH CIRCUIT
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DESCEND UPON MERCER
Appellant,
VS.
STATE OF MERCER
Appellee.
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Case No. 12-0001
Appeal from the United States District Court
For the District of Mercer
Argued: December 20, 2011
Decided: January 17, 2012
Affirmed by Published Opinion
PER CURIAM:
I.
FACTUAL BACKGROUND
Appellant Descend Upon Mercer is an unincorporated, informally-organized protest
group, loosely affiliated with the “Descend Upon Times Square” movement that began in New
York City last year, along with the numerous other “Descend Upon” groups that have since
appeared throughout the nation. According to the appellant, anyone who joins in Descend Upon
Mercer’s protesting efforts is freely welcomed into the group as a new member. Descend Upon
Mercer was first organized on October 1, 2011, when approximately thirty people gathered at
Coleman Hill, a public park immediately adjacent to the State of Mercer Capitol Building. The
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group’s purpose is “to protest economic and social injustices by bringing public awareness to the
influence that commercial enterprises and the wealthy have over the political process.” Members
insist that the only appropriate way to demonstrate the “descent upon and unrelenting seizure of
the political process by corporations” is to themselves literally descend upon and congregate in
public spaces adjacent to centers of political power, and to maintain a peaceful, but unrelenting,
24-hour presence therein.
In carrying out its mission, members of Descend Upon Mercer went to the Mercer
Capitol Parks Bureau on September 30, 2011, for the purpose of staging protests through the
remainder of the year. However, Mercer Capitol Parks Bureau maintains limited park hours, so
that public visitors are not allowed to be in the Coleman Hill area between the hours of 9 P.M.
and 5 A.M.. The Mercer Capitol Parks Bureau provides no mechanism for applying for either a
waiver of park hours limitations or a permit for events scheduled beyond the 9 P.M. closing time.
Nonetheless, Descend Upon Mercer descended upon Coleman Hill and immediately
began maintaining a round-the-clock presence. In addition to simply being present at the park,
protesters brought signs displaying various messages such as “No such thing as too big to fail.”;
“A $1 Million bonus takes away 30 jobs.”; and “Corporations are NOT people.”. Protesters also
brought equipment to the park to help maintain their continuous presence on-site, including tents,
tarps, sleeping bags, pillows, portable gas stoves, space heaters, limited food supplies, and
personal items such as changes of clothing. By bringing such items to Coleman Hill, many
protesters were able to remain “descended upon Mercer” for several days at a time. Descend
Upon Mercer has been successful in recruiting new members to its cause, and the group on
Coleman Hill has grown from 30 people on October 1, 2011, to approximately 250 as of
December 1, 2011.
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Appellee, the State of Mercer, is a sovereign state within the United States. Its capital,
Mercer City, sits roughly in the geographic center of the state. The Mercer Capitol Building,
which houses both the state legislature and the governor’s office, sits at the top of a hill. Just
north of the Capitol Building sits the Woodruff Judicial Building, which is home to Mercer’s
Court of Appeals and Supreme Court. To the east of the Capitol and Judicial Buildings lies
Coleman Hill, a space that has long been used and appreciated by members of the community for
its pleasing aesthetics and delightful views overlooking downtown Mercer City. Because of its
proximity to the highest seats of Mercer’s government, Coleman Hill also has a rich and colorful
tradition as being the favored site for political and social protests within the state. Coleman Hill,
the Capitol Building, and the Woodruff Judicial Building, combined, make up the Mercer
Capitol Complex, the entire grounds of which are maintained and policed by the Mercer Capitol
Parks Bureau.
Since the 1980s, Mercer Capitol Parks Bureau has enforced closing times, after which no
one other than Capitol Complex employees is allowed to remain at or enter any of the buildings
in the Capitol Complex. Additionally, after closing time, no persons except for Capitol Parks
Bureau agents on patrol are allowed in the Coleman Hill area. These closing times, promulgated
as Capitol Parks Bureau Regulations (“CPBR”) § 1, were originally enacted in response to
concerns over the “crack epidemic” of the 1980s, and initially ran from 6:00 P.M. until 7:00
A.M.. In 2000, citing a desire to increase public access to the Capitol Complex, the Parks Bureau
promulgated regulations relaxing Complex closing times to their current 9 P.M. to 5 A.M..
Though the Capitol Parks Bureau has express authority to issue other regulations concerning the
use of the Capitol Complex properties, none were in place prior to the events giving rise to this
litigation.
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For reasons unknown, the Capitol Parks Bureau did not enforce the Coleman Hill closing
times (9 P.M. to 5 A.M.) between the initial “descent upon Mercer” on October 1, 2011 and
December 1, 2011. During and after this period, Descend Upon Mercer protesters have been
vigilant about keeping the park area clean; refraining from damaging or altering any surfaces,
terrain, or structures at Coleman Hill; and altogether attempting to minimize the impact the
group’s continuing presence might have on the property. Likewise, there have been no reported
instances of violence, theft, drug use, or any illegal conduct other than the peaceful refusal to
follow the Capitol Parks Bureau Regulations. Nonetheless, on November 20, 2011, Governor
Jerry Simson issued an executive order requiring the Capitol Parks Bureau to begin enforcing the
park closing times as of December 1st, and directing the Capitol Parks Bureau to promptly
convene for the purpose of promulgating other emergency regulations.
As directed, on December 1, 2011, the Capitol Parks Bureau announced emergency
regulations reaffirming the 9 P.M. to 5 A.M. closing times for the park, as found in CPBR § 1.
The Capitol Parks Bureau simultaneously announced the passing of CPBR § 2, which states:
[i]n furtherance of the objectives of enforcing the closing times listed in CPBR §
1, it shall be prohibited, effective immediately, for any person to maintain, erect,
construct, or utilize any form of temporary or permanent man-made shelter,
including but not limited to tents, lean-tos, tarpaulins, and the like, anywhere
outdoors on any Capitol Complex property, specifically including the Coleman
Hill area.
The Capitol Parks Bureau also announced the passing of CPBR § 3, which reads:
[i]n furtherance of the objectives of enforcing the closing times listed in CPBR §
1, it shall be prohibited, effective immediately, for any person to sleep, for any
amount of time, anywhere outdoors on any Capitol Complex property,
specifically including the Coleman Hill area. The prohibitions found in CPBR §§
2 and 3 shall be effective at all times of the day, both during public access hours
and while the Capitol Complex is closed. Furthermore, any person found to be in
violation of CPBR §§ 1, 2, or 3 will be subject to removal from the Capitol
Complex property and a maximum $250 fine per violation.
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Capitol Parks Bureau officers then dispersed throughout the Descend Upon Mercer
crowd at about 3 P.M., handing out and posting notices of the new regulations, and stating that
anybody violating the regulations after 9:00 that night would be cited. Most members of the
crowd peacefully packed up their belongings and left the park before 9:00 without incident.
However, roughly 40 of the 250 protesters present that day remained after hours, about half in
tents, and approximately 10 out of that 40 had gone to sleep inside of the tents by that time, in
direct violation of all three Capitol Parks Bureau Regulations. All forty protesters were cited for
violating CPBR § 1, those in tents were also cited for violating CPBR § 2, and those found
sleeping were cited for violating CPBR § 3 as well.
The next day, this action was filed by Descend Upon Mercer in United States District
Court for the District of Mercer, seeking a declaratory judgment that CPBR §§ 1, 2, and 3 are
unconstitutional as applied. The district court granted a preliminary injunction prohibiting the
enforcement of the CPBR sections, pending litigation. Following a short trial on the merits, the
district court denied the appellant’s request for declaratory judgment. However, noting the
potentially significant First Amendment concerns implicated by this decision, the court entered a
second order continuing the effect of its preliminary injunction and staying its denial of
declaratory judgment pending any appeals. Descend Upon Mercer timely filed this appeal, and
we heard oral arguments on December 20, 2011.
II.
DISCUSSION
A. Limitation of Issue on Appeal
The allegation in this case is that CPBR §§ 1, 2, and 3 are unconstitutional as applied to
the Descend Upon Mercer protesters specifically. A regulation is unconstitutional as applied if
the regulation section has some constitutional application, but unconstitutionally violates the
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rights of the Descend Upon Mercer members as applied to them. Then, only that application of
the rule is invalidated. See, e.g., Spence v. Washington, 418 U.S. 405, 414 (1974). It is important
to note that the parties have stipulated, or agreed, that the Mercer Capitol Parks Bureau has
lawful authority to pass regulations dealing with the operation and use of the Capitol Complex
area, as well as the general authority to enforce those regulations. The parties also agree that all
three regulations at issue in this case are facially content-neutral. That is, neither party is arguing
that any of the regulations target speech based on its message.
Because the protesters who initiated this lawsuit were all cited by the Capitol Parks
Bureau, there are no issues of justiciability or standing in this case. Likewise, there is no
requirement here for the protesters to first exhaust state review of the previous citations, and
there is no question that this Court has proper jurisdiction over the matter. The only question on
appeal is whether these regulations, as applied to Descend Upon Mercer, violate these protesters’
constitutional rights. It is not at issue in this case to decide whether CPBR §§ 1, 2, or 3 violate
the rights of any other person or group.
B. Applicable Legal Standards
1. Whether conduct can be classified as “speech” under the First Amendment
While the most common form of expression protected by the First Amendment is the
communication of ideas through printed or spoken words, the same protection is afforded to
certain types of conduct or activity that can be accurately characterized as communicative. It has
long been recognized that such communications can themselves be a more powerful means of
conveying a message than spoken or written words alone. See Spence, 418 U.S. at 410
(discussing the symbolic speech inherent in the American flag); Clark, 468 U.S. at 293
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(discussing the symbolic use of a vacant tent city as a means of communicating a message). At
the same time, it is possible to find some element of expression in nearly every activity a person
undertakes, such as walking down the street or meeting a friend for lunch – but this is
insufficient to bring the activity within the protection of the First Amendment. See O’Brien, 391
U.S. at 376 (“We cannot accept the view that an apparently limitless variety of conduct can be
labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an
idea.”)
Accordingly, this Court uses the two-factor test set forth in Spence v. Washington to
determine whether a particular type of conduct falls within the scope of protected expression. If
(1) the conduct or activity is carried out with an intent to convey a particularized message, and,
(2) given the context of the conduct, there is a great likelihood that the message will be
understood by those viewing it, then the act may properly be classified as “symbolic speech,”
which is protected by the First Amendment. Spence, 418 U.S. at 410-11. On the other hand, if
the conduct cannot be fairly classified as “symbolic speech,” then the First Amendment offers no
protection from government regulation, and any challenge to the regulation brought under the
First Amendment must fail. Clark, 468 U.S. at 293, n. 5.
2. Government regulation of protected speech
Symbolic speech may be regulated or restricted by the government even if a regulation
has the incidental effect of limiting some First Amendment freedoms. In United States v.
O’Brien, 391 U.S. 367, 377 (1968), the Supreme Court formulated a test for evaluating the
constitutionality of a law which is alleged to have violated the First Amendment. The test
consists of four elements that must each be satisfied in order for a government regulation
limiting free expression to be upheld: (1) the enacting body has legislative authority to establish
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the law, (2) the law furthers a “substantial government interest,” (3) the government interest at
stake is unrelated to the free expression of ideas, and (4) any incidental limitations on First
Amendment freedoms are no greater than is essential for the government to protect its interests.
Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (applying the O’Brien test).
If the government fails to satisfy any one of these elements, then the regulation will be held
unconstitutional. O’Brien, 391 U.S. at 377.
3. Standard of review
Because this is a question of constitutional law, this Court will review the matter de novo,
with no deference to the findings of law below.
C. Analysis
First, we must decide whether the types of conduct being regulated – remaining in the
Coleman Hill park after closing hours, using tents and other types of shelter, and sleeping in the
park – constitute “speech” under the meaning of the First Amendment. Spence, 418 U.S. at 410
Descend Upon Mercer asserts that all three are forms of symbolic speech. Appellant and related
groups have nationally taken on a modus operandi of using public spaces adjacent to centers of
political power as a means of literally staging what group members perceive as the figurative
descent upon and seizure of the political process by corporations and the wealthiest members of
society. Applying the Spence test to each of the three forms of conduct at issue, we find that two
of the three acts constitute symbolic speech.
Staying in the park on a round-the-clock basis is conduct that is carried out for the
purpose of conveying a particularized message, and in the context of the widespread media
attention that has been given to Descend Upon Mercer and similar groups, that message is likely
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to be understood by those viewing the demonstration. Likewise, tents and tarps are used because
they increase the visibility of Descend Upon Mercer’s demonstration and further emphasize the
degree of “descent upon” the political process which aggrieves the individual group members.
We also find that this message is likely to be readily understood by viewers.
As for the act of sleeping on Coleman Hill, this Court finds that the demonstrators are
purposefully sleeping on-site to communicate further the depth of the corporate “descent upon”
the political system. We find it unlikely, however, that such a message would be readily received
by onlookers. To the reasonable observer, the same message would be communicated by viewing
the assembled protesters, particularly after park hours, whether those protesters were awake or
asleep. Because this Court cannot find that any asserted symbolism behind sleeping on site
would be understood by onlookers, we hold that sleeping in the park, in this case, is not a form of
speech and is not entitled to First Amendment protection.
We will now move on to analyze the remaining sections, CPBR §§ 1 and 2, under the
O’Brien test. Capitol Parks Bureau’s authority to promulgate these regulations is not at issue, so,
by stipulation, the first element of the test is satisfied. With regard to the second element, the
State of Mercer has put forth a number of important interests, including protecting the Coleman
Hill area from damage or unreasonable wear and tear, ensuring equal access and enjoyment of
public facilities, and protecting members of the public from the potential danger that would arise
if the crowd of 250 protesters were to become unruly, among other interests. Where the State of
Mercer would only need one such interest in justification of the regulations, we find them ample.
See Clark, 468 U.S. at 296; Bay Area Peace Navy v. United States, 914 F.2d 1224, 1233 (9th Cir.
1990).
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Because the regulations at issue target specific forms of conduct, without reference to
whether that conduct is being used to communicate a message, we find that the government’s
interests at stake are unrelated to the expression of free ideas. Clark, 468 U.S. at 299. In other
words, since the government has identified a number of substantial interests which are all
something other than the suppression of free speech, the third O’Brien element is met.
Finally, we find that the regulations leave open ample opportunity for protesters to
gather, awake and without tents, between the hours of 5 A.M. and 9 P.M. for the purpose of
spreading their message. A sixteen-hour-a-day allotment for the airing of grievances is
constitutionally sufficient. Thus, the regulations are narrowly tailored to serve the State of
Mercer’s significant interests without unnecessarily infringing on appellant’s right to express the
group’s message. Peace Navy, 914 F.2d at 1235.
III.
CONCLUSION
We therefore uphold all three regulations at issue as constitutional. Specifically, CPBR §
3 is upheld because we find that, in this case, sleeping is not a form of speech under the First
Amendment. Furthermore, CPBR §§ 1 and 2 are upheld because the government has satisfied its
burden of meeting all four elements under the O’Brien test. We order the preliminary injunction
to be lifted. The decision of the district court is AFFIRMED.
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McNEILL, J., with whom PRUITT, J. joins, Dissenting.
I find myself compelled to dissent to the Court’s poorly- and hastily-reasoned opinion
today, beginning with the Court’s classification of the actions that we are addressing in this case.
The Court accurately recounts Descend Upon Mercer’s reasons for wishing to remain in
on Coleman Hill at all hours, but then completely misses the mark by describing the nature of the
protesters’ tents. While it is true that a tent city adds to the visibility of these protests, this is no
mere amplification mechanism. The fact that these people are willing to leave the comfort of
their own homes in favor of laboring in the bitter autumn (or winter) air simply to have their
voices heard is itself a separate message showing the group’s resolve. Clark, 468 U.S. at 302-04
(Marshall, J., dissenting). Not only do the protesters in this case want people to be aware of the
corruption they perceive in the political process, but they want onlookers to be so stricken by this
showing of unanimity and dedication that the onlookers themselves will join the cause.
Likewise, in sleeping on the hill, protesters show their presence, show their resolve, and
further communicate that this is not a problem that will correct itself. See id. In this case,
sleeping at the protest site, by its very nature, tells onlookers that this is a cause that must be
fought for from the first moment of waking until the day’s last conscious thought. Even though
the Court does not accept these basic assertions of the seriousness of the protesters’ cause, there
is no constitutional requirement that every individual action must communicate a different
message. For example, a protester who carries a sign reading “A $1 Million bonus takes away 30
jobs.” while verbally chanting the exact same message is constitutionally protected in his right to
express his views in both verbal and written form. In fact, in this day of widespread multimedia
marketing, it is frequently those who find the greatest number of channels through which to
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communicate a message that find the most success in doing so. Therefore, the Court should
adamantly hold that all three of the contested forms of conduct are speech.
I also take issue with the Court’s cursory analysis of the third O’Brien factor. Merely
looking at the face of the government’s asserted interest is not enough to consider whether that
interest is unrelated to the suppression of free speech. Clark, 468 U.S. at 309 (Marshall, J.,
dissenting). The question is whether the government has an interest in abridging the right to this
conduct when it forms a part of a protest movement. See O’Brien, 391 U.S. at 381-82; Clark, 486
U.S. at 309 (Marshall, J., dissenting). By avoiding this question altogether, the Court today has
glossed over the true nature of the constitutional violations alleged in this case, which I will now
attempt to address.
The Court overstates the government’s interests in controlling the activities at Coleman
Hill. In the entire first two months of this protest, prior to the December 1st crackdown, there was
not a single arrest or citation of any protester for any violation of law. Nor was there ever a
deployment of additional police force to the Coleman Hill area out of apprehension that the
crowd might become unruly or mob-like. In fact, the Descend Upon Mercer protesters had been
vigilant in taking care of the park area where they had set up camp. While tents themselves
might create sporadic and insignificant divots in the surface of the grass, these protesters have
universally taken responsibility for disposing of all garbage properly, moving their tents around
enough to avoid killing off grass, and generally treating the park better than many nonprosecuted patrons, such as those who might use it for a pick-up sports contest. To say that these
interests need protecting from Descend Upon Mercer is to say that Descend Upon Mercer is a
threat to the interests at stake. The fact that no harm has befallen Coleman Hill in a full two
months of tenancy should be conclusive proof to the contrary, though the Court has chosen to
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remain willfully blind to these facts. See Spence, 418 U.S. at 412-13 (discussing the possible
invalidity of asserted state interests).
Because the State of Mercer has not shown a genuine need to protect its various interests
in operating and maintaining the Coleman Hill park area, I cannot agree with the Court’s
findings that the limitations imposed on the First Amendment rights of the Descend Upon
Mercer protesters are merely “incidental,” or that the regulations involved are narrowly tailored
to avoid excessive infringement of those rights. See id.
I also disagree that these regulations allow for ample opportunity for Descend Upon
Mercer to communicate its message in alternate ways. Coleman Hill is, and historically has been,
the single best location for protesting in the state of Mercer, as a result of its proximity to the
centers of power for all three branches of the Mercer state government. By limiting protesters to
a 5 A.M. to 9 P.M. schedule, Descend Upon Mercer is directly prohibited from conveying its
message concerning the degree of “descent upon and unrelenting seizure of the political process
by corporations.” By protesting for sixteen hours a day, protesters can symbolically suggest that
corporations or the wealthiest citizens control the political process for sixteen hours a day.
However, that is not their message at all. This message is one which requires continuous
demonstration in order to be fully conveyed. While there may be other parks which are not under
the authority of the Capitol Parks Bureau, and therefore not subject to the 9 P.M. to 5 A.M.
closing times, Coleman Hill is the one unique location that is best-suited for this protest, and
relocation is not an option. See Peace Navy, 914 F.2d at 1229. In the same vein, limiting the
hours that Descend Upon Mercer may access Coleman Hill is likewise not an option. See, id.
I would reverse the district court and grant the declaratory judgment sought by appellants
as to all three regulations. For the foregoing reasons, I respectfully dissent.
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SUPREME COURT OF THE UNITED STATES
DESCEND UPON MERCER,
Petitioner,
VS.
STATE OF MERCER,
Respondent.
No.: 12-0123
February 1, 2012
Petition for writ of certiorari to the United States Court of Appeals for the Twelfth Circuit
is GRANTED. The issue before the Court is:
(1) Whether any of the State of Mercer’s Capitol Parks Bureau Regulations §§ 1, 2, or
3 are unconstitutional as applied to Descend Upon Mercer, for violating the First
Amendment rights of Descend Upon Mercer.
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