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J385-Communication Law Key - MIDTERM #1 - Spring 1996
There are three questions, each worth 10 points (30 points total).
These are model answers and are more detailed than we would expect in an exam answer. At the end of each answer is a grading key for the question. 1. Save the Forest! demonstrators on a United States Forest Service logging road in the North Kalmiopsis area of the Siskiyou National Forest who chained themselves to logging equipment, hung a large banner from privately owned logging equipment, made statements, sang songs, and chanted slogans relating to their beliefs about the need for greater environmental protection were arrested and convicted of criminal mischief in the third degree. The demonstrators claimed the arrest and conviction were unconstitutional under Art. I, Sec. 8 of the Oregon Constitution because they because they were engaged in "expressive conduct." Will the constitutional challenge to the arrest and conviction be successful? YES or NO? EXPLAIN YOUR ANSWER. NO The demonstrators are claiming that their conduct is "expressive conduct" protected under the free speech provision, Art. I, Sec 8 of the Oregon constitution. Art. 1, Sec. 8 protects the "free expression of opinion" and the right "to speak, write, or print freely on any subject." The state prosecuted the demonstrators for what it believes are illegal acts that are not protected by Art. I, Sec 8. If the demonstrators' appeal is to succeed, they will have to successfully argue that the act component of the "expressive conduct" was secondary to the expressive component and that the state prosecuted the demonstrators for their expression, not their actions. The demonstrators face a difficult challenge as a result of the Oregon Court of Appeals decision in Huffman and Wright Logging Co. v. Wade, 317 Ore. 445; 857 P.2d 101; 1993 Ore. LEXIS 132 (Or. 1993). In that case the court upheld Earth First! demonstrators' convictions for nearly identical acts. In rejecting a similar "expressive conduct" claim the court said that "speech accompanying punishable conduct does not transform conduct into expression under Article I, section 8." While the court did not doubt that the demonstrators' actions were motivated by a desire to protest timber policy and the actions of timber companies, it rejected the argument that a motive to speak transformed the illegal acts into constitutionally "expressive conduct." Based on Huffman and Wright Logging Co., it is unlikely that the Save the Forest! demonstrators' appeal will succeed. If we assume that Save the Forest! did succeed on its expressive conduct claim, the question would then turn on the type of forum and the government's regulation of expression in that forum. Based on the available information -- a logging road in a national forest -- the forum is arguably a "non-public forum, that is, public property which is not by tradition or designation a forum for public communication." In such a forum, government regulation of speech must serve a compelling state interest and be narrowly drawn to serve that interest. (web site) Absent information about what if any restrictions were in place or what if any arrangements were in made to allow demonstrations and at the same time address appropriate health and safety concerns and protect designated activities in the forum, it is not possible to evaluate the constitutionality of the regulations. However, it is safe to assume that the conduct of the demonstrators that interfered with the designated activity in the forum (i.e. logging) and placed the demonstrators in danger of being injured by operating equipment would be in conflict with constitutional time, place and manner restrictions. Point Values:
Note: If speech/action is determinative, then forum analysis is not necessary.
2. Sally Scoop, ace reporter, filed a FOIA request with the Department of the Navy for "all documents concerning the 1996 investigation into allegations of cheating at the U.S. Naval Academy." The Department refused to provide any documents saying that all of the documents are exempt under Exemption #6, the Personnel, Medical and Similar file exemption. The Navy claims that release of the material would constitute an unwarranted invasion of privacy. Scoop challenges the denial of her request. Does her challenge have a strong likelihood of success? YES or NO? EXPLAIN YOUR ANSWER. Yes or qualified Yes Sally Scoop filed a FOIA request for all documents concerning an investigation into cheating at the U.S. Naval Academy. The Academy is part of a "military department;" and as such is an agency under the FOIA (note Pember's citing of Dept. of the Air Force v. Rose, p 301). Since the request is for information directly related to gaining a better understanding of the operation of a government agency, it clearly meets the intent of the FOIA. Scoop's sweeping request covers a wide range of documents, from official policy statements of the academy's academic honesty policy and enforcement mechanisms to the records of individual students. The Academy's denial is equally sweeping and cites Exemption #6, the Personnel, Medical and Similar file exemption. Under this exemption the agency is required "to strike a balance between an individual's privacy interest and the public's right to know." The agency may withhold records when
Clearly, some of the material concerning the investigation into cheating may identify specific individuals and be "as highly personal in nature--as [the material] contained in personnel or medical files." (Pember, p 301 quoting Kurzon v. Health and Human Services). If this material then meets the "clearly unwarranted" standard, it could be withheld (see Pember, p 301-302). However, the agency is obligated to review the records and delete the exempt material and then release the redacted record. (see Pember, p 302, discussion of State Dept. v. Ray). It should also be noted that some of the requested information may fall into the category of Buckley Amendment "student records" (Pember p. 318) and be exempt under FOIA Exemption #3; however, we are not asked to address those records here. Given that some of the requested material would fall under Exemption #6, Scoop is not going to get all of the material she requested; however, the Academy's use of the exemption to withhold all documents oversteps the permissible scope of this exemption. The Academy will be required to review all documents concerning the investigation and to release all material that does not fall under the Personnel, Medical and Similar file exemption. Point Values:
Release of "redacted" documents = 4 points 3. The First Amendment begins "Congress shall make no law," yet the First Amendment governs the states as well as the federal government. In a brief essay (one page) explain the apparent contradiction between the language of the First Amendment and its application to the states. The apparent contradiction is between the literal text of the First Amendment which clearly says "Congress shall make no law..." and its application to the states. If judicial interpretation of the Constitution was limited to only a literal reading of the text of each sentence of the Constitution, then it would be very difficult to explain how the U.S. Supreme Court was able to apply the First Amendment to the states.
In developing what we now call the "Doctrine of Incorporation," the Supreme Court moved beyond a literal reading of the First Amendment in isolation. Instead the Court accepted the argument made in Gitlow v. New York (1925) that the First Amendment should apply to the states because the Fourteenth Amendment (1868) prohibited the states from restricting any person's "life, liberty, or property without the due process of law." "Freedom of speech and press--which are protected by the first amendment from abridgment by congress," the court said, "are among the fundamental personal rights and 'liberties' protected by the due process clause of the fourteenth amendment from impairment by the states."
In focusing on the meaning of liberty and using the First Amendment to help define the "bundle of rights" that define liberty in the Fourteenth Amendment, the Court recognized that concepts such as "liberty" and "freedom" are not static. Point Values:
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