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Midterm #1 - Winter 99 - 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 will evaluate your use of relevant and appropriate material to address the legal issues raised in the questions.
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1. The Hateful Young College Student Alliance (HYCSA) demonstrators gathered on a city street in front of a public building to give speeches and hand out leaflets in support of their cause. The protesters were peaceful and to the best of our knowledge did not block access to the building or impede traffic flow. The use of a loudspeaker and the noise of the rally may have disturbed people in Johnson Hall and in nearby buildings, but the rally was not stopped because of noise.
The area in front of Johnson Hall along 13th St. frequently is the scene of demonstrations. It is a traditional public forum. In a traditional public forum, the government may regulate the time, place and manner of speech so long as the regulation is content neutral, it serves a substantial state interest, it is not a total prohibition, and it is narrowly drawn.
The OPS officers stopped the rally because OPS had received "complaints from students who were offended of the group's message." Not only is this a content-based regulation, it is a viewpoint-based regulation. The officers are suppressing the views of one group of speakers in favor of the views of others. The First Amendment prohibits government from this kind of regulation of speech. As Justice Sueter wrote in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, "Our tradition of free speech commands that a speaker who takes to the street corner to express his views… should be free from interference by the State based on the content of what he says."
The second reason given for stopping the rally is that the officers were "afraid the rally may become violent;" however, none of the provided facts suggest that the demonstrators were advocating violence, let alone inciting it.
Even in a public forum, the state may prohibit speech when the speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such actions." Brandenburg v. Ohio (1969). Both the officers' stated reason for stopping the rally and the available facts concerning the actions and speech of the demonstrators fall far short of the incitement standard of Brandenburg.
The protestors' First Amendment claims will be successful.
2. The Register-Guard possesses copies of classified documents pertaining to recent terrorist activities against an American embassy in Kenya. The documents are critical of the president of the United States and contain specific information about security at U.S. installations. The government attempts to prevent the publication of stories based on the documents claiming that publication would damage the national security. The paper argues that the government is attempting to enforce an unconstitutional prior restraint.
The "government bears a heavy burden to justify" the prior restraint of a publication (Pember at 67, discussing The Pentagon Papers case). In this case, the government's burden is to show that publication of a story based on classified documents would present a serious threat to the national security of the United States. The government's claim is based on two different kinds of material: (1) criticism of the president; and (2) information about security plans for embassies.
The national security exemption is not designed to protect information because the information is embarrassing to the government (see, E.O. 12958). Efforts to suppress the publication of the information based on this part of the government's claim should fail
In the Pentagon Papers case, New York Times v. United States 713 U.S. 403 (1971), the Supreme Court found that the government did not meet its burden, in part, because the documents in the Pentagon Papers were of historical interest. In contrast, the classified documents in this case concern current strategies for protecting U.S. embassies. It is much more likely that a court would be persuaded by the governments claim that publication of current security strategies could threaten the lives of embassy employees and residents. The Progressive Magazine case (see Pember at 69-71) illustrates the "fragile nature" of the court's ruling in the Pentagon Papers case.
It is possible, if not likely, that a court would find that this information is properly classified (see, E.O. 12958) and that the government would be able to show a significant threat to the national security.
Yes, the government's request to enjoin publication of stories based on the classified documents will be successful.
3. Larry Laugh will not get the last laugh in this case. The Oregon Supreme Court is the court of last resort regarding interpretation of the state's laws and the Oregon constitution. As Pember states, a state supreme court "is the final authority regarding construction of state laws and interpretation of the state constitution." Had Laugh raised a federal question at trial, (e.g., argued that the state's harassment statute or the state court's interpretation of Article I, Sec. 8 of the state constitution violated the First Amendment of the federal constitution) he might have preserved the right to appeal the state supreme court's decision to the U.S. Supreme Court.
Laugh's attempt to appeal the case to the U.S. Supreme Court will fail.
4. False. The U.S. Supreme Court first enunciated the clear and present danger test in Schenck v. United States (1919). Justice Oliver Wendell Holmes wrote "The question in every case is whether the words used, are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the right to prevent. It is a question of proximity and degree." The test did not severely limit the government's authority to regulate speech. Pember notes that some scholars have criticized the test as being "naïve and uninformed," and that Holmes "changed his mind" in favor of a stricter standard six month later (Pember at 53).
In Yates v. U.S., the Supreme Court, Pember tells us, "ignored clear and present danger and clear and probable danger." Justice Harlan, writing for the Court, distinguished the advocacy of abstract doctrine from the "advocacy of action toward the forcible overthrow of government." (Pember at 55)
In 1999, neither the clear and present danger test, nor the standards of Yates v. U.S. define the government's authority to suppress seditious speech. In Brandenburg v. Ohio (1969), the Court said the First Amendment requires that the government show that the speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such actions." (Pember at 55)
In short, the statements in the question are false because they garble the history of the law of sedition from 1919 to the present.
