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Midterm #1 - Winter 2000 - Key |
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The answers below are model answers. Given the complexity of the issues addressed, it is possible that other good strategies exist for answering the questions. In grading your answers, we evaluate your use of relevant and appropriate material to address the legal issues raised in the questions.
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1. Dear Ms. Scoop:
You request "all student graduation records for the years 1996 to 1999." The release of student records held by the University of Oregon is governed by the Oregon Public Records Act (ORS 192.420-192.502) and by the federal Family Education and Privacy Act. (Pember, p. 348 and class discussion)
Oregon’s public records law requires the release of all public records held by the university, unless the record falls into an exempt category defined in the public record law. Your request for student records appears to ask for information that is exempt from disclosure under the unconditional "exempt by other statute" exemption in the public records law.
In this case, the "other statute" is the federal Family Education and Privacy Act, which is frequently called the "Buckley Amendment." The university is prohibited from releasing "personally identifiable information," except for "directory data." (Pember, p. 348)
The university is able to provide you with directory data, including the names, attendance records, field of study and degrees of all students who have not requested the non-release of directory information. [I do not expect this information in your answer since it is not detailed in Pember and we did not provide you with a complete list in class]. Because several thousand students graduate each academic year, this list will contain a large number of records and it will take time and staff resources to compile the list. Under the public records law, you will be charged for the "actual cost" of the search, review, copying, and inspection supervision. (class discussion)
If directory data will meet your needs, please contact me and we can provide an estimate of the actual cost of providing the requested records. If these data will not serve your needs, please be aware that the university is unable to provide any other student record information. If the focus of your request is aggregate data, such as, student graduation rates or time to degree statistics, that do not include personally identifiable information, may I suggest that you redefine and better focus your search request. (class discussion)
Sincerely yours,
Carl Custodian
2. An injunction prohibiting any future publication of a newspaper is a prior restraint. Pember tells us that in the United States "prior censorship is permitted only in very unusual circumstances." (p. 66)
In this case, the facts given in the question are very similar to the facts in the case of Near v. Minnesota. (Pember p 65-66) As in Near, a public nuisance law was used by government officials to enjoin the publication of a newspaper that was publishing libelous material. In Near, the U.S. Supreme Court found the nuisance law to be a violation of the First Amendment.
No. The injunction will be overturned on appeal because based on the precedent of Near v. Minnesota it is a violation of the First Amendment.
3. The Marketplace of Ideas is the dominant metaphor in 20th century interpretation of freedom of speech and press. Writing in dissent in Abrams v. United States, Justice Oliver Wendell Holmes said, [W]hen men have realized that time has upset many fighting faiths, they may come to believe...that the ultimate good desired is best reached by free trade in ideas--that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution."
The marketplace of ideas concept assumes that the government should play a limited role in regulating speech and that the public should be the final arbiter of the truth or falsity of ideas. Pember (pp. 43-46) tells us that the courts have used a variety of theories to attempt to define the meaning of the First Amendment, from the absolutist theory of Justice Hugo Black to the self-governance theory of Alexander Meiklejohn. (also see discussion on web site) While each of the theories discussed in Pember and on the web site presented a different view on the First Amendment, each is grounded in the liberal assumptions of the marketplace of ideas. (class discussion)
Critical theorists challenge many of the core assumptions found in the marketplace of idea concept. Some of the challenges found in critical theory include:
That the first amendment instead of helping to achieve healthy and robust debate actually serves to preserve the status quo, with that status quo containing major inequities.
[Note: A good answer would summarize some or all of the assumptions listed here and would include a brief closing paragraph contrasting the marketplace of ideas and critical theory. Rather than provide a closing for the "model answer" I listed all the assumptions Chris noted in her lecture. A "best answer" would identify key differences and briefly discuss and contrast them rather than simply listing all the assumptions discussed in class.]
4. NO. Bang the Drum does not have a strong First Amendment claim against the Anywhere, Or. Performing Arts Center (APAC). APAC is a city owned-and-operated performing arts center. It is a designated limited public forum; that is, it is "public property which the state has opened for use by the public for expressive activity. In a limited public forum, the state may reserve the forum for its intended purpose. Content-based, but not viewpoint-based restrictions are permitted where the restriction is related to the intended use of the forum. " (also see, Pember pp. 102-107 and class discussion)
The APAC scheduling committee has established a theme for its summer concert series based on market research. Unfortunately for Bang the Drum, its style of music does not fit the theme. This, as we discussed in class, is a permissible content-based discrimination. Had APAC refused to book Bang the Drum because of the band’s political or social views, the band would have a stronger claim.
