CREIGHTON UNIVERSITY SCHOOL OF LAW
FIRST AMENDMENT FREEDOM OF SPEECH
Professor Fenner
FALL SEMESTER EXAMINATION
Thursday, December 7, 2000
Page 1 of 5
INSTRUCTIONS: THIS IS AN OPEN-BOOK EXAMINATION. PLACE YOUR EXAM
NUMBER, PROFESSOR'S NAME, AND COURSE TITLE ON EACH ANSWERBOOK. IF
YOU USE MORE THAN ONE BOOK, NUMBER THEM 1 OF 2, 2 OF 2, ETC.
THIS EXAM CONTAINS THREE QUESTIONS, ON FIVE PAGES.
YOU WILL HAVE TWO HOURS TO COMPLETE THIS EXAM. READ EACH
QUESTION CAREFULLY, AND BE SURE THAT YOU ANSWER THE QUESTION
ASKED.
PAY ATTENTION TO THE SUGGESTED TIMES. DO NOT GET STUCK ON ONE
QUESTION AT THE EXPENSE OF OTHERS. DO NOT GET STUCK ON ONE PART OF
THE ANALYSIS OF ONE QUESTION AT THE EXPENSE OF OTHER PARTS.
UNLESS SPECIFICALLY ASKED TO DO SO, DO NOT CONFINE YOUR ANSWER TO
ONE ISSUE OR TO ONE PART OF ONE ISSUE JUST BECAUSE YOU BELIEVE
RESOLUTION OF THAT POINT MIGHT BE DISPOSITIVE IN ACTUAL LITIGATION.
AVOID RELYING ON CONCLUSORY STATEMENTS. UNLESS OTHERWISE
STATED, I AM LOOKING FOR ANALYSIS — LEGAL AND FACTUAL. FOLLOW
THROUGH ON YOUR ARGUMENTS, ROOTING THEM IN THE FACTS GIVEN AND
THE RELEVANT PRINCIPLES OF CONSTITUTIONAL LAW.
QUESTION NO. 1 BEGINS ON THE NEXT PAGE.
FIRST AMENDMENT FREEDOM OF SPEECH
Professor Fenner
FALL SEMESTER EXAMINATION
Thursday, December 7, 2000
Page 2 of 5
QUESTION NO. 1: (Suggested Time, 40 Minutes)
Plaintiff Cannabis Actio n Network (CAN) challenges the constitutionality of an
Ordinance of the City of Gainesville, Florida. CAN is a group of self-described “political
activists who seek to challenge the laws of the United States and the individual states prohibiting
the possession and distribution of marijuana.” CAN regularly conducts political rallies in public
areas around the country to educate the public on the medicinal, industrial, and food uses of
marijuana and to protest the current state of the law.
CAN applied for a permit to conduct a rally in a public space in Gainesville called the
Downtown Plaza and a permit to use sound amplification devices. The permit to use sound
amplification devices was denied.
CAN challenges the constitutionality of Sections 15-3 and 15-4 of the Gainesville
Code—the Sound Ordinance. Section 15-3 prohibits the use of amplified sound at special events.
(As defined elsewhere in the Code, the kind of rally CAN wishes to conduct is a "special event.")
Section 15-4 allows the city manager or his or her designee to exempt special events from the
general prohibition on the use of amplified sound. The exception in Section 15-4, entitled
“Special Permits,” reads:
Applications for a special permit for relief from the maximum sound level limits
designated in this chapter … may be made in writing to the city manager [or to his
or her designee]. Any permit granted by the city manager or designee hereunder
must be in writing and shall contain all conditions upon which the permit shall be
effective. The city manager or [his or her designee] is authorized to grant the relief
as applied for under the following conditions:
(1) Authority to prescribe special requirements. The city manager or designee may
prescribe any reasonable conditions or requirements [he or she] deems necessary to
minimize noise disturbances upon the community or surrounding neighborhood,
including use of mufflers, screen or other sound-attenuating devices.
….
(3) Other permits. Special permits for nonentertainment special purposes, other
than for emergency work … may be issued under the following conditions:
(c) The special permit may be issued only for hours between 7:00 a.m. and 11:00
p.m. the same day on weekdays, and
(d) Special permits may be issued for no longer than one week….
QUESTION NO. 1: (Continued)
FIRST AMENDMENT FREEDOM OF SPEECH
Professor Fenner
FALL SEMESTER EXAMINATION
Thursday, December 7, 2000
Page 3 of 5
As stated above, CAN was denied a “special permit.” Who wins, CAN or Gainesville
and, of course, more importantly, why? Explain as fully as possible in the limited amount of time
you have. In my experience, the greatest danger presented to students by open-book exams is
that they spend too much time on some questions and have too little time left for others. Do not
spend too much time on this question at the expense of others.
QUESTION NO. 2: (Suggested Time, 50 Minutes)
In 1996, a federal statute barred the Legal Services Corporation and all of its lawyers
from making any “effort to amend or otherwise challenge existing law” in welfare cases. At the
end of this question, you will be asked to write an opinion on the constitutionality of this statute
and given further details regarding how you are to do this. Let me just say this up front, so there
is no mistake and so that you can have it in mind as you read the question: In the process of
deciding this case, you are not allowed to overrule any opinion of the United States Supreme
Court.
The Legal Services Corporation (LSC) was established in 1974. It was established to
fund legal assistance to indigent clients in noncriminal matters. From the beginning, use of LSC
funds has been prohibited for certain purposes, such as assisting political parties or providing
legal assistance in proceedings relating to nontherapeutic abortions or school desegregation.
In 1996, Congress enacted additional restrictions on LSC funds recipients’ activities.
Among other things, the 1996 statute barred recipients of LSC funds from participating in
litigation, lobbying, or rulemaking “involving an effort to reform a Federal or State welfare
system.” Recipients of LSC funds are permitted to represent individual clients seeking relief
from a welfare agency, including seeking welfare benefits, so long as the representation of such a
client “does not involve an effort to amend or otherwise challenge existing law in effect on the
date of the initiation of the representation.” Furthermore, LSC grantees are also barred from
using non- federal funds for these prohibited activities, that is, they are not allowed to get both
federal and private money, segregate the federal and private money into two different accounts,
and engage in the forbidden activity using only the non- federal money.
A number of lawsuits have been filed challenging these restrictions on the use of LSC
funds. The plaintiffs include LSC lawyers and LSC clients. The lawsuits allege a number of
constitutional violations, but the only one that concerns you is the allegation that this legislative
scheme is a violation of the Freedom of Speech Clause of the First Amendment.
FIRST AMENDMENT FREEDOM OF SPEECH
Professor Fenner
FALL SEMESTER EXAMINATION
Thursday, December 7, 2000
Page 4 of 5
QUESTION NO. 2: (Continued)
One district court rejected the free speech challenge, under the theory that the federal
government is allowed to spend its money as it chooses. The Ninth Circuit Court of Appeals has
upheld the statute. The Second Circuit Court of Appeals upheld part of the statute and struck
down part of it. There is, then, a partial conflict among the Circuits. The United States Supreme
Court has taken certiorari. In fact, the case has been argued and is awaiting decision.
I am asking you to decide this case. I am not asking you to predict how the United States
Supreme Court will decide it, but to decide it for yourself. I am, however, asking for a decision
that takes into account the existing case law of the First Amendment. That is, I am not interested
in what you think of this statute, or how you would decide it in some abstract or parallel
universe, but how you will decide it in this universe, in light of existing case law. As I noted
above, there is this one limitation: YOU ARE NOT ALLOWED TO OVERRULE ANY
UNITED STATES SUPREME COURT OPINION IN THE PROCESS OF DECIDING THIS
CASE.
Fully discuss your answer—as fully as you can in the limited amount of time you have.
In my experience, the greatest danger presented to students by open-book exams is that they
spend too much time on some questions and have too little time left for others. Do not spend too
much time on this question at the expense of others.
QUESTION NO. 3 BEGINS ON THE NEXT PAGE.
FIRST AMENDMENT FREEDOM OF SPEECH
Professor Fenner
FALL SEMESTER EXAMINATION
Thursday, December 7, 2000
Page 5 of 5
QUESTION NO. 3: (Suggested Time, 30 Minutes)
The plaintiff was employed by the small town of Beldon, Missouri, as an assistant city
administrator. Rumors circulated that a new employee and the plaintiff’s supervisor were having
an extramarital affair. Plaintiff saw a bill for health insurance, which she believed showed that
the new employee was receiving benefits inappropriate to her employment status. Plaintiff sent a
memo to her supervisor expressing her concerns, but was rebuffed. Plaintiff then spoke privately
with a member of defendant city's board of aldermen. A month later, her supervisor, acting with
the acquiescence of the board of aldermen, fired plaintiff from the position of assistant city
administrator.
Plaintiff filed a § 1983 (42 U.S.C. § 1983) lawsuit alleging violation of her First
Amendment rights. A jury was waived. The trial court fo und in favor of the plaintiff. The trial
court found that as a matter of fact she was fired because of what she had said to the alderman,
that what she said to the alderman was protected by the First Amendment and that her firing
violated her First Amendment rights. The trial court awarded her $1.1 million in damages.
The case is on appeal. You are the appellate judge. The City argues that the trial court
committed error because plaintiff’s speech was not protected and, alternatively, if her speech was
protected, her firing did not violate the First Amendment.
Do you affirm or reverse the judgment below and, of course, and more importantly, why?
Explain as fully as possible in the limited amount of time you have. In my experience, the
greatest danger presented to students by open-book exams is that they spend too much time on
some questions and have too little time left for others. Do not spend too much time on this
question at the expense of others.