Midterm 1

1. Yes

The EMU is a traditional public forum, therefore any regulation of speech must be content neutral. Hattop's sign and leaflets would be offensive to many in the audience, but under the First Amendment, he has the right to speak even if the speech is offensive so long as he does not engage in illegal conduct (Cohen v. California). While Hattop's speech attracted a large and unruly crowd, which resulted in traffic congestion and a public disturbance, he was speaking in a traditional public forum and there is no evidence that he engaged in illegal actions.

The prosecution argued that his speech fell into the constitutionally unprotected categories of "fighting words" and "incitement to violence." Neither claim will be successful:

Fighting Words: Fighting words are "[W]ords...which by their very utterance inflict injury or tend to incite an immediate breach of the peace." (Chaplinsky v. New Hampshire). In evaluating speech, the court must "consider carefully the actual circumstances…and ask whether "the expression 'is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.'" (Hayward v. United States)

While Hattop's ideas would offend many in the audience, he was advocating ideas, not directly confronting any individual or group of individuals. In certain circumstances, such as the pending case in New York City, one might argue that the expression of support for bin Laden in close proximity to "Ground Zero" might rise to the level of fighting words, but it would be difficult to make that argument here.

Incitement to violence: Hattop's advocacy of ideas may drive some in the audience to action, but the advocacy of ideas —even where the speaker is advocating illegal actions — is protected speech. The state must show that the "words were intended to produce, or were likely to produce, imminent disorder." (Middleton, pp. 39-40)

2. False
In Near v. Minnesota, the U.S. Supreme Court held that a Minnesota law allowing prepublication restraints was unconstitutional because the guarantee of freedom or the press in the First Amendment to the U.S. Constitution significantly limits government's power to exercise prior restraints. (Middleton, pp. 58-59)

3. True.
In Tinker v. Des Moines Indpt. School Dist., the court said that students' First Amendment rights "do not stop at the school house gate;" but the court held that student speech is not protected if it is disruptive, obscene or violative of other students' rights. (Middleton, p., 52) This is a much weaker standard than the standard for adult speech. Student First Amendment protection was further eroded in Hazelwood v. Kuhlmeier, a high school newspaper case in which the court held that "a school cold impose virtually any reasonable regulation on school-sponsored expression. (Middleton, pp.52-54)

4. No
The Oregon Supreme Court is the court of last resort regarding interpretation of the state's laws and the Oregon constitution. As Middleton states, "Each state supreme court is the final arbiter of its own state constitution, provided there is no conflict with the federal constitution. A losing party is a state supreme court may have recourse before the U.S. Supreme Court only if a substantial federal question is involved." (Middleton, p. 13). Had Treesitter raised a federal question at trial, (e.g., argued that the camping protest was speech protected by the First Amendment of the federal constitution) she might have preserved the right to appeal the state supreme court's decision to the U.S. Supreme Court.

5. Dear Editor:

While our paper may believe that the names of sexual assault victims should not be published, the U.S. Supreme Court established a high barrier against the government prohibiting the publication of this information. In Florida Star v. BJF, a case challenging a state statute banning the publication of sexual assault victims' names, the Supreme Court held that "where a newspaper publishes truthful information about a matter of public significance...state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order." This standard requires a case-by-case analysis to determine if a "state interest of the highest order exists." Clearly the state has a privacy interest in keeping these names out of our newspaper; however it is less certain that the interest rises to the level of "highest order" required by Florida Star.

The Court consistently has held that the public interest in legally obtained truthful information outweighs the government's interest in keeping confidential information secret once the information is leaked or provided to the media. (Middleton, pp 65-66) The case precedent strongly suggest that we have a legal right to publish the names in confidential files concerning the prosecution of violent sexual crimes against women under the age of 18 in Lane County for the years 1995 to 2001.

Midterm #1 - Winter 2002 - Key