Deck 5: Constitutional Law and the Bill of Rights

Question 1

What reasoning was offered by Justice Stevens to support the majority view that the New London development complied with due process requirements

Answer 1

The city had determined that the area was sufficiently distressed to justify a program of economic rejuvenation. It carefully formulated its plan, which it believes will provide appreciable benefits to the community including "new jobs and increased tax revenue." "Given the plan's comprehensive character, the thorough deliberation that preceded its adoption, and the limited scope of this Court's reviw in such cases, it is appropriate here … to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged her satisfy the Fifth Amendment."

Question 2

A letter to the Buffalo News objecting to the Bad Frog decision:
…The U.S. Court of Appeals' reasoning was that "vulgar materials enjoy wide currency in society today-including comic books for children." Therefore, while offensive it is not illegal. I guess this means the sickies of the world can show us anything they want, even if we don't want to see it. They have the right to offend us, but we have no rights not to be offended.
We all know what the extended middle finger means. I personally get offended when this gesture is directed at me, whether by humans or cartoon animals. I would like to show the Court of Appeals my opinion of their decision by extending my middle finger in their direction. I hope they enjoy this gesture. After all, it's not illegal. But maybe it should be. 11
a. Do you agree with the letter writer that Bad Frog is an unwise decision Explain.
b. Should "the finger" be an illegal gesture Explain.

Answer 2

a.Discussion b.Note that "the finger" clearly constitutes expression. That expression may often be regarded as a political commentary (such as when the letter writer suggests it be used to express to the court what the writer thinks of its opinion) or public discussion of a sort. Note the difficulty of enforcing any ban on gestures like "the finger." Remember that "fighting words" can be restrained when violence is imminent.

Question 3

Two Rhode Island statutes prohibited all price advertising on liquor in the state, except for price tags and signs within a store itself which were not visible on the street. The state sought to reduce alcohol consumption. Two licensed liquor dealers challenged the statutes' constitutionality.
a. How would you rule on that challenge Explain.
b. Why would the elimination of price advertising arguably contribute to reduced alcohol consumption See 44 Liquormart, Inc. v. Rhode Island, 116 S.Ct. 1495 (1996).

Answer 3

a.The court there expressed the view that: (1) Regulations that entirely suppress commercial speech in order to pursue a policy unrelated to consumer protection must be reviewed with "special care," and such blanket bans should not be approved unless the speech itself is deceptive or related to unlawful activity; (2) where a state entirely prohibits the dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process, there is little reason to depart from the rigorous review that the First Amendment generally demands; (3) Rhode Island's advertising ban could not survive the applicable "special care" review standard, as the ban did not directly advance the state's substantial interest in promoting temperance and was more extensive than necessary to serve that interest. b.Advertising should drive down prices and, thus, permit more drinking.

Question 4

Fifteen-year-old Natalie Young, a lesbian, was sent to her New York City principal's office for wearing to school a T-shirt that said "Barbie is a lesbian." Young was suspended, and she sued the school.
a. Was the suspension lawful Explain.
b. Could Young wear a shirt saying the war in Iraq is wrong
c. What about a shirt praising Osama bin Laden Explain.

Question 5

Is speech that consists merely of entertainment without benefit of meaningful ideas protected by the First Amendment Explain.

Question 6

Several city ordinances in Arkansas made it illegal for "any person to place a handbill or advertisement on any other person's vehicle parked on public property within city limits." Church members contested the constitutionality of the ordinances, which prevented them from lawfully placing religious handbills on parked cars. Decide. Explain. See Krantz v. City of Fort Smith, 160 F.3d 1214 (8th Cir. 1998).

Question 7

Colorado School of Law Professor Pierre Schlag, summarizing the central theme raised by Ronald K. L. Collins and David M. Skover in their book The Death of Discourse:
Stated most broadly, the predicament is this: with the perfection of communications technology, the refinement of capitalist rationality, and the intensification of marketcreated desire, the resulting culture is one that renders its own ostensible steering mechanism-namely, reasoned discourse-impossible. This broad scale rendition of the predicament is quite bleak, for there is no exit; everyone is included. We are all living in a culture that is, quite literally, doing itself in, mindlessly devoting itself to frivolous self-amusement: the unbridled pursuit of thrills, chills, titillations, fun, and ultimately, death. 41
Do you agree with the argument that reasoned discourse is now impossible in our culture of advanced communications and obsessive, market-induced desire for pleasure Explain.

Question 8

The sons of a murder victim brought a wrongful death/negligence action against a magazine, Soldier of Fortune, alleging that it had published an ad creating an unreasonable risk of violent crime. A former police officer had placed the ad offering his services as a bodyguard under the heading "Gun for Hire." The ad resulted in the officer being hired to kill the plaintiffs' father. The ad included the phrases "professional mercenary," "very private," and a statement indicating that "all jobs" would be considered, but it also included a list of legitimate jobs that involved the use of a gun. The plaintiffs won the negligence action and were awarded a $4.3 million judgment. Soldier of Fortune appealed on First Amendment grounds. Decide. See Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110 (11th Cir. 1992); cert. den. 113 S.Ct. 1028 (1993).

Question 9

As you interpret the Second Amendment, did the Supreme Court reach a correct decisions in the Heller case Explain.

Question 10

Decide the case. Explain.

Question 11

If scholarly studies ultimately demonstrate that homosexuality and lesbianism are substantially commanded by genetic characteristics, would we be morally required to permit same-sex marriage

Question 12

Describe the constitutional claim raised by the plaintiffs.

Question 13

Can the police lawfully search an individual's garbage once it has been placed at the curb for disposal A Connecticut resident, Paul DeFusco, was convicted of drug trafficking based on evidence found in his home. The police conducted the home search with a warrant secured on the basis of an informant's information as well as evidence (some short cut straws, glassine baggies, and prescription bottles) turned up in sifting through DeFusco's garbage.
b. Explain the central issue in this case. See State of Connecticut v. Paul DeFusco, 620 A.2d 746 (Conn. S.Ct. 1993).

Question 14

Tina Bennis sued when Wayne County (Detroit), Michigan, authorities took the car she jointly owned with her husband after police arrested him for receiving oral sex from a prostitute while parked in the car. A 1925 antinuisance law permitted the seizure, but Tina Bennis claimed it amounted to an unconstitutional taking because she was an innocent half owner of the 1977 Pontiac for which the couple had paid $600. Bennis's claim eventually reached the U.S. Supreme Court. Decide the case. Explain. See Bennis v. Michigan, 116 S. Ct. 994 (1996).

Question 15

Santa Rosa, California high school student Rebekah Rice was teased by classmates about her Mormon family. On one occasion, Rice was asked if she had 10 mothers, to which she responded, "That's so gay." Rice was sent to the principal where she received a warning and a notation was put in her file. Her family filed suit in the Sonoma County Superior Court claiming a violation of Rice's First Amendment free speech rights. How would you rule on Rice's claim

Question 16

If the American people ultimately favor gay and lesbian marriage, could we then consider it a morally defensible practice

Question 17

S. statute forbade the mailing of unsolicited advertisements for contraceptives. Youngs, which sold contraceptives, mailed contraceptive ads to the public at large. The ads included information regarding the public health benefits of contraceptives (such as family planning and prevention of venereal disease).
a. Do the ads constitute commercial speech Explain.
b. Does the government have a "substantial interest" in preventing the mailings where the statute shields citizens from material that they are likely to find offensive and where the statute helps parents control their children's access to birth control information Explain. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983).

Question 18

Explain Smith's First Amendment response to Wal-Mart's legal claims against him.

Question 19

Joseph Burger owned and operated an automobile junkyard where, among other things, he dismantled autos and sold the parts. A New York statute permitted police to conduct warrantless inspections of auto junkyards. Without objection by Burger, police conducted a warrantless inspection of his business. The inspection revealed stolen vehicles and stolen parts. Burger was charged with possession of stolen property. In court, Burger moved to suppress the evidence arising from the search on the grounds that the New York statute under which the search was conducted was unconstitutional.
a. Does the statute violate the Fourth Amendment's prohibition of unreasonable searches and seizures Explain.
b. Why do many states, including New York, explicitly permit the warrantless inspection of automobile junkyards See New York v. Joseph Burger, 482 U.S. 691 (1987).

Question 20

The Labor Department conducts regular investigations of business records to ensure compliance with the wages and hours provisions (such as higher pay for overtime) of the Fair Labor Standards Act. When a compliance officer sought to inspect certain financial records at the Lone Steer restaurant/motel in Steele, North Dakota, the restaurant declined his admittance until the government detailed the scope of the investigation. Not receiving a satisfactory response, the Lone Steer demanded a search warrant prior to inspection. As provided for under the FLSA, the government secured an administrative subpoena, which, unlike a search warrant, does not require judicial approval. Once again, Lone Steer denied admission. The government then filed suit. Decide. Explain. See Donovan v. Lone Steer, 464 U.S. 408 (1984).

Question 21

Why did the Court of Appeals rule in Bad Frog's favor

Question 22

From the dissenting point of view, what harm is likely to emerge from this decision

Question 23

Timothy Boomer's canoe hit a rock in Michigan's Rifle River, and he fell in. A passing mother and her young children heard Boomer cuss repeatedly (they said) or once or twice (his lawyer said). A 102-year-old Michigan law forbids swearing in front of children. Boomer was ticketed and tried.
a. Did Boomer violate the statute
b. Does the First Amendment protect Boomer's outburst

Question 24

The American Civil Liberties Union of Ohio challenged the constitutionality of Ohio's state motto, "With God, All Things Are Possible."
a. Explain the nature of that constitutional challenge.
b. Decide the case. Explain. See American Civil Liberties Union of Ohio v. Capitol Square Review and Advisory Board, 243 F.3d 289 (6th Cir. 2001).

Question 25

Should racist/sexist remarks be forbidden in college classrooms
b. As noted, the Stanford University speech code, as set out above, was ruled unconstitutional. The Superior Court judge in that case said, among other things, that the code was "overbroad." What did he mean
c. Do we give too much attention to freedom of speech at the expense of community civility Explain.

Question 26

This chapter noted a number of decisions affording protection to commercial speech. Why are corporations unlikely to begin using their vast resources to speak out on the wide range of public issues from abortion to organized prayer in schools to the death penalty Explain.

Question 27

Why did the Court of Appeals conclude that the Bad Frog label constituted commercial speech
b. What is the significance of that decision

Question 28

Defend Glendale.

Question 29

Decide the case. Explain.

Question 30

An Erie, Pennsylvania, public indecency ordinance prohibited knowingly or intentionally appearing in public in a "state of nudity." Pap's, the owners of Kandyland, an Erie establishment featuring totally nude dancers, challenged the constitutionality of the ordinance.
a. Explain the nature of that constitutional challenge.
b. Decide the case. Explain. See City of Erie v. Pap's A.M., 529 U.S. 277 (2000).

Question 31

The U.S. Supreme Court in 2007 addressed another school speech case. Joseph Frederick, a Juneau, Alaska high school senior, and some friends unfurled a large banner reading "Bong Hits 4 Jesus." Frederick was across the street from his school with many other students watching, with school permission, an Olympic torch parade. The banner was a prank designed to attract attention from television cameras. The school principal, Deborah Morse, told Frederick to lower the banner. He refused, and he was suspended from school. Frederick sued. Does the First Amendment protect Frederick

Question 32

Police stopped and arrested McFadden for riding a bicycle on a sidewalk in violation of New York City code. A search incident to the stop revealed a firearm. McFadden was later convicted of the crime of being in possession of a firearm by a previously convicted felon. McFadden appealed, claiming the search was unconstitutional. Was he correct Explain. See United States v. McFadden, 238 F.3d 198 (2001); cert. den. 122 S.Ct. 223 (2001).

Question 33

Robert Levy, a constitutional law expert, objecting to the current First Amendment treatment of commercial speech:
Inexplicably, advertising remains second-class speech, with less First Amendment protection than Ku Klux Klan vitriol, flag burning, even "gangsta rap." The upshot is that Time Warner can peddle rapper Ice-T's "Cop Killer" to its teen clientele. But if R. J. Reynolds were to produce a TV commercial for an adult audience featuring Tiger Woods wearing a sport coat with a Joe Camel emblem, the boot of government would come down hard on the company's neck. 12
Comment.

Question 34

An individual and a group applied to the Chicago Park District for permits to hold rallies advocating the legalization of marijuana. The Park District, a municipal agency, required a permit to conduct a public assembly, parade, or other event involving more than 50 individuals. Applications for permits had to be processed within 28 days, and denials had to be clearly explained. Denials could be appealed to the general superintendent and then to the courts. The Park District denied some of the permits for pro-marijuana rallies. Those denied filed suit, claiming the Park District permit rules were unconstitutional.
a. What constitutional challenge was raised by the plaintiffs
b. Decide the case. Explain. See Thomas and Windy City Hemp Development Board v. Chicago Park District, 534 U.S. 316 (2002).

Question 35

Members of the Jefferson County High School, Tennessee varsity football team circulated a petition that said: "I hate Coach Euvard [sic] and I don't want to play for him." Thereafter, all team members were asked if they were involved. Euverard dismissed four players who admitted they signed the petition and refused to apologize for doing so. The players who signed the petition but apologized were retained on the team. The four dismissed players filed suit. (a). Explain their primary legal claim. (b). Decide the case. Explain. See Lowery v. Euverard, 497 F.3d 584 (6th Cir. 2007).

Question 36

Is a civil union arrangement like the one in Vermont an acceptable "middle ground"

Question 37

The Georgia Outdoor Advertising Control Act, in essence, prohibits any off-premises outdoor advertising of commercial establishments where nudity is exhibited. Cafe Erotica lawfully provides food and adult entertainment, including nude dancing, and advertises those services on billboards. Cafe Erotica challenged the constitutionality of the Advertising Control Act. Decide. Explain. See Georgia v. Café Erotica, 507 S.E.2d 732 (Ga. S. Ct. 1998).

Question 38

Tanner and others sought to distribute hand bills in the interior mall of the Lloyd Corporation shopping center. The literature concerned an anti-Vietnam War meeting. Lloyd Corporation had a strict rule forbidding handbilling. When security guards terminated distributions within the center, Tanner, et al. claimed a violation of their First Amendment rights. Both the district court and the Court of Appeals found a violation of constitutional rights. The decision was appealed to the U.S. Supreme Court. Decide. Explain. See Lloyd Corporation v. Tanner, 407 U.S. 551 (1972).

Question 39

What constitutional challenge was Pagan raising

Question 40

What reasoning and evidence supported the Gawrysiak court's conclusion that the magistrate had probable cause to issue the warrant

Question 41

An informant told the police that a man, whom the informant described, was selling narcotics from the trunk of his car at a particular location. Police drove there, saw the car, and later stopped the car and arrested the driver who matched the informant's description. An officer opened the car's trunk, saw a brown bag, opened it, and found glassine bags of heroin. The car was then driven to police quarters, where another warrantless search of the trunk produced a leather pouch containing money. At trial, may the heroin and cash lawfully be introduced as evidence Explain. See United States v. Ross, 456 U.S. 798 (1982).

Question 42

Lancaster, California, located about 45 miles from Los Angeles, was trying to build its local economy but was tripped up by the United States Constitution. Costco, a big-box retailer, wanted to expand into next-door space leased to 99 Cents Only Stores. Costco told the city it would move to Palmdale if it could not expand. Lancaster tried to buy 99 Cents' lease, but the company refused. Lancaster then used its power of eminent domain to condemn the 99 Cents property for the purpose of making it available to Costco. The city noted that blight might follow if Costco left, and the city contrasted 99 Cents' under $40,000 per year in sales taxes generated with Costco's more than $400,000. 99 Cents then sued the city seeking an order blocking the effort to take the 99 Cents property.
a. How would you have ruled on the case when it was tried in 2001 Explain.
b. Would the result be any different today after the Supreme Court's 2005 decision in the New London, Connecticut, case Explain. See 99 Cents Only Stores v. Lancaster Redevelopment Agency, 237 F. Supp. 2d 1123 (C.D. Cal. 2001). Appeal dismissed, 2003 U.S. App. LEXIS 4197.

Question 43

At the First Amendment Center, read "About the First Amendment" http://www.firstamendmentcenter.org/about.aspxitem=about_firstamd ]. Explain the importance of the First Amendment and why Americans are divided about its application.

Question 44

What was the issue, the central question, in this case and how did the majority answer that question
b. How would you expect the dissent to answer that question

Question 45

The 2000 United States census indicated that approximately 1 million children are being raised by same-sex couples, and 47 states allow gays and lesbians to adopt children. 40 Are those children at moral risk

Question 46

Long Island, New York, resident Stephanie Fuller was secretly videotaped by her landlord, who had installed a video camera in the smoke detector above her bed. Fuller's landlord was found guilty of trespassing and was fined $1,500 and sentenced to 280 hours of community service.
a. Why was the landlord not charged with a more serious felony offense
b. After Fuller's experience, New York enacted a criminal unlawful surveillance statute; the statute includes language forbidding secret surveillance in places where the victim has "a reasonable expectation of privacy." What significance attaches to that language

Question 47

A local citizen told police that Wilson was growing marijuana in a small, roofless shed at his residence. The police flew over the shed in a small plane at a legal altitude of 500 feet and observed what they believed to be marijuana growing in the shed. The secured a warrant, conducted a search, and seized marijuana plants. Wilson moved to suppress the evidence, claiming the search was illegal. Is he correct Explain. See State v. Wilson, 988 P.2d 463 (Ct. App. Wash. 1999).

Question 48

Explain the Court's conclusion that the fraternity skit met the Texas v. Johnson test of "an intent to convey a particularized message" and a great likelihood "that the message would be understood by those who viewed it."

Question 49

Occupational Safety and Health Administration (OSHA) inspectors received permission from the Army Corps of Engineers to inspect a federal construction site where an accident had occurred. The contractor declined consent, but OSHA secured a federal district court order allowing inspection. OSHA found some obvious violations, but others were apparent only after initial observations led to followup interviews with employees and closer looks at equipment. The contractor objected to the search on Fourth Amendment grounds.
a. Explain the nature of that objection.
b. Decide the case. See National Engineering Contracting Co. v. Occupational Safety and Health Administration, 928 F.2d 762 (6th Cir. 1991).

Question 50

A California sales and use tax of 6 percent on all personal property sales was applied to the distribution of religious materials by religious organizations. The Jimmy Swaggart Ministries challenged the tax on constitutional grounds.
a. What constitutional issue was raised by the plaintiff
b. Decide. Explain. See Jimmy Swaggart Ministries v. Board of Equalization of California, 493 U.S. 378 (1990).

Question 51

What issues should one consider in deciding whether gay marriage is morally defensible

Question 52

As a matter of public policy, did the Supreme Court reach a wise decision in the Heller case Explain.

Question 53

Marilyn and James Nollan applied for a permit to replace their beachfront home with a larger structure. The California Coastal Commission agreed on the condition that the Nollans grant an easement on their beach that would allow the public to cross that property and thus facilitate movement between the public beaches that lay on both sides of the Nollan beach. The Nollans sued, claiming a violation of the Takings Clause. Decide. Explain. See Nollan v. California Coastal Commission, 483 U.S. 825 (1987).

Question 54

Milwaukee prostitutes, who had been arrested on multiple occasions, sued to block the city from enforcing a court-ordered injunction that permanently enjoined them from engaging in certain specified activities in certain specified areas of the city. They were prohibited from "engaging in, beckoning to stop, or engaging male or female passersby in conversation, or stopping or attempting to stop motor vehicle operators by hailing, waving of arms or any other bodily gesture, or yelling in a loud voice" and other such activities. The women challenged the order on constitutional grounds.
a. Explain the nature of that constitutional challenge.
b. Decide the case. Explain. See City of Milwaukee v. Burnette, 637 N.W.2d 447 (Wis. App. 2001); 638 N.W.2d 590 (Wis. S. Ct. 2001).

Question 55

What reasoning and evidence allowed the Court to conclude that the warrant in Gawrysiak was sufficiently particularized as to meet constitutional requirements

Question 56

Criticize the Ames' standards for achieving its housing goals.

Question 57

W., a minor, was suspended from school for three days after he drew a picture of a Confederate flag on a piece of paper. The Kansas school, Derby Unified, suspended T.W. because it believed he had violated the district's "Racial Harassment or Intimidation" policy, which prohibits students from possessing at school "any written material, either printed or in their own handwriting, that is racially divisive or creates ill will or hatred." Confederate flags were included in a list of prohibited items. The Court found that Derby Unified had a history of racial harassment. Were T.W.'s First Amendment rights violated Explain. See West v. Derby Unified School District # 260, 206 F.3d 1358 (10th Cir. 2000); cert. den. 531 U.S. 825 (2000).

Question 58

Milagros Irizarry lived with the same man for more than two decades, during which time they raised two children. Irizarry, an employee of the Chicago public school system, received health benefits, but her male partner did not because the couple had not married. The school system provided health benefits to domestic partners of the same sex, but not to those of the opposite sex. Irizarry raised a constitutional challenge to the denial of benefits to her male partner.
a. Explain the nature of that constitutional challenge.
b. Decide the case. Explain. See Irizarry v. Board of Education of the City of Chicago, 251 F.3d 604 (7th Cir. 2001).