Midterm 1

1. Did the mayor and the city council violate the Oregon Public Meetings Law? YES or NO. Explain your answer.
Yes. (2 points)
The meeting is a public meeting under the Oregon Public Meetings law: “Any meeting of a state or local governmental board, commission, council, committee or subcommittee consisting of two or more members...at which there [is]...a quorum, when the purpose of the meeting is to decide or deliberate on public matters." (class website)
— The council is a governing body.
— A quorum is present since Four of the five members are present.
— The body is discussing public matters
— The location is not relevant (8points)
Note: While the council may discuss real estate acquisition in executive session, it must be in a properly noticed public meeting prior to entering executive session and the agenda for the executive session must be part of the public meeting record; therefore the meeting in this question would not be a legal executive session.

2. Explain how the Supreme Court could reach different decision in two cases that both concern free speech claims and cross burning.

In R.A.V., the majority held that the state could not make content- or view-point based distinctions in prohibiting or punishing speech, even if the speech fell into an unprotected category of speech, such as fighting words. The statute in Black did not make a content- or view-point based distinction. It prohibited cross burning without reference to race, gender, creed, etc. when done for purposes of intimidation.
“The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning’s long and pernicious history as a signal of impending violence....”

Unlike the statute at issue in R. A. V., the Virginia statute does not single out for opprobrium only that speech directed toward “one of the specified disfavored topics.” Id., at 391. It does not matter whether an individual burns a cross with intent to intimidate because of the victim’s race, gender, or religion, or because of the victim’s “political affiliation, union membership, or homosexuality.” Ibid. Thus, just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm.” Virgina v. Black

3. (a) Does the First Amendment protect the students’ right to publish the story? YES or NO? Explain your answer.
Yes or most likely (2 points)
The students do have first amendment protection, however the scope of that protection is not entirely clear. In Hazelwood, a case dealing with high school student speech, the court was silent on the question of college student speech. In Kincaid v. Gibson, a federal appeals court affirmed that college students have greater first amendment rights than high school students, but in Hosty v. Carter, another appeals court held that college newspapers may be regulated in the same way as high school papers if the paper is not a public forum (Middleton, p. 62.) (5 points)

While The Daily Crusade is part of the curriculum, the university publication policy gives editors editorial control and prohibits the advisor from engaging in prior review. Under Hazelwood, these factors would support a finding that the paper was a public forum for student expression, thus creating first amendment protection for the paper. (1 point)

(b) If Western State University is a private university do the students have a First Amendment claim? YES or NO? Explain your answer.
No In order to have a first amendment claim, there must be state action. A private university is not part of the government, therefore it is unlikely that the students could show state action. It is even less likely if the private university is sectarian. The religion clauses in the First Amendment create rights for religious institutions to prohibit speech that is in conflict with the institution’s religious beliefs.

4.
(a) Has Treesitter preserved her right to appeal to the federal Supreme Court? YES or NO. Explain your answer.
Yes (1 point)
Because the first amendment claims were made at trial, the right to appeal exists.
(2 points)

(b) Assuming she can appeal, is it likely that her appeal will be successful? YES or NO. Explain your answer.
NO. (2 points)
The Oregon Supreme Court would have relied on Huffman and Wright Logging Co. v. Wade in rejecting the protesters free speech argument under Article 1, Sec. 8. At the U.S. Supreme Court it is likely the court would again distinquish the expressive acts from the regulated conduct and find that the conviction was based on the violation of the no camping regulation. The park was not a designated or traditional public forum. (see speech/action and public forums on website) (5 points)

5.
(a) Feelgood claims that he has been defamed. Can he prove defamation? YES or NO. Explain your answer.
Yes. Implies professional misconduct and unethical behavior. (5 points)

(b) GoodStory PR claims that the press release is based on privileged information because it is part of a legal action, and therefore there is no basis for a libel suit even if the press release defamed Feelgood. Will the defense be successful? YES or NO. Explain your answer.
No. No lawsuit has been filed so no privileged source. (5 points)

Midterm #1 - Winter 2006 - Key