Exam Q & A Session

On Tuesday December 7, we will have a Q & A session at 6 PM in Room 125. It is, of course, optional. But if you have questions, please come and I will try to answer them.

Concluding Question: Politically-motivated Violence

 As we wind down our study of the First Amendment, let me ask you this question: Is violent political protest--burning buildings, looting stores and shops, and assaulting those who disagree with you--a legitimate form of political protest? Ever? Sometimes? When? When protesting the violent death-by-abortion of 60 million unborn children? To protest police brutality and racism when an unarmed suspect is killed by police?

 Should government stand down, stand by, and allow such politically-motivated violence to take place? 

This is a question that must be posed in contemporary America. Please think about it as you prepare to become inclusive leaders protecting the rule of law and  justice-for-all.

Corporations as Persons Protected by Law

After Hobby Lobby, and as we read Citizens United, consider this statement from Prof. Paul Salamanca:

"If corporations don't have souls, why does a Google search for 'corporate greed' yield 1.85 million hits."

The Free Speech Clause would be largely meaningless if it did not protect corporate newspapers, publishers, television networks, filmmakers, and other corporations that print, speak, publish, transmit, and blog about politics, culture, and other matters of public concern.

And when we protect corporate speakers, the real beneficiaries are the individual persons who compose the willing audience for their speech. You and I are the real beneficiaries because we want to read, and listen to, and watch newspapers, books, movies, podcasts, and tweets published by the New York Times, and MSNBC, and Fox News, and Hollywood, and Citizens United.

When the NYT defends it's freedom of the press, it usually speaks about "the public's right to know." The right to receive speech, the right to read the NYT or to view the movie Hillary, is the real reason why we need to protect the First Amendment rights of corporations.

CLS Forced to Choose Between Two First Amendment Rights

You can have one or the other, but not both. Here is the key language in CLS:

 

Three observations lead us to conclude that our limited-public-forum precedents supply the appropriate framework for assessing both CLS's speech and association rights.

     First, the same considerations that have led us to apply a less restrictive level of scrutiny to speech in limited public forums as compared to other environments, apply with equal force to expressive association occurring in limited public forums. As just noted, speech and expressive-association rights are closely linked. When these intertwined rights arise in exactly the same context, it would be anomalous for a restriction on speech to survive constitutional review under our limited-public-forum test only to be invalidated as an impermissible infringement of expressive association....

     Second, and closely related, the strict scrutiny we have applied in some settings to laws that burden expressive association would, in practical effect, invalidate a defining characteristic of limited public forums--the State may "reserv[e] [them] for certain groups...."

     Third, this case fits comfortably within the limited-public-forum category, for CLS, in seeking what is effectively a state subsidy, faces only indirect pressure to modify its membership policies; CLS may exclude any person for any reason if it forgoes the benefits of official recognition. The expressive-association precedents on which CLS relies, in contrast, involved regulations that compelled a group to include unwanted members, with no choice to opt out.

     In diverse contexts, our decisions have distinguished between policies that require action and those that withhold benefits. Application of the less-restrictive limited-public-forum analysis better accounts for the fact that Hastings, through its RSO program, is dangling the carrot of subsidy, not wielding the stick of prohibition.

     In sum, we are persuaded that our limited-public-forum precedents adequately respect both CLS's speech and expressive-association rights, and fairly balance those rights against Hastings' interests as property owner and educational institution. We turn to the merits of the instant dispute, therefore, with the limited-public-forum decisions as our guide.

CLS: Hoisted on Its Own Stipulation of Facts

 

 [From Ct's  opinion p. 3:" Before considering  the merits of CLS's constitutional  arguments, we must resolve a preliminary issue: CLS urges us to review the Nondiscrimination Policy as written--prohibiting discrimination  on several enumerated bases, including religion and sexual orientation--and  not as a requirement that all RSOs accept all comers. The written terms of the Nondiscrimination Policy, CLS contends, "targe[t] solely those groups whose beliefs are based on religion or that disapprove of a particular kind of sexual behavior," and leave other associations  free to limit membership and leadership to individuals  committed to the group's ideology. For example, "[a] political ... group can insist that its leaders support its purposes and beliefs," CLS alleges, but "a religious group cannot."

CLS's assertion runs headlong into the stipulation of facts it jointly submitted with Hastings at the summary-judgment stage. In that filing, the parties specified:

"Hastings requires that registered student organizations allow any student to participate, become a member, or seek leadership positions in the organization, regardless of [her} status or beliefs. Thus, for example, the Hastings Democratic Caucus cannot bar students holding Republican political beliefs from becoming members or seeking leadership positions in the organization.... '

 In light of the joint stipulation, both the District Court and the Ninth Circuit trained their attention on the constitutionality of the all-comers requirement, as described in the parties' accord. We reject CLS's unseemly attempt to escape from the stipulation and shift its target to Hastings' policy as written. This opinion, therefore, considers only whether conditioning access to a student-organization forum on compliance with an all-comers policy violates the Constitution."]

 

Justice Alito demonstrates why this stipulation probably denied CLS a victory:

   "The Hastings Nondiscrimination Policy, as interpreted by the law school, ...discriminated on the basis of viewpoint regarding sexual morality. CLS has a particular viewpoint on this subject, namely, that sexual conduct outside marriage between a man and a woman is wrongful. Hastings would not allow CLS to express this viewpoint by limiting membership to persons willing to express a sincere agreement with CLS's views. By contrast, nothing in the Nondiscrimination Policy prohibited a group from expressing a contrary viewpoint by limiting membership to persons willing to endorse that group's beliefs. A Free Love Club could require members to affirm that they reject the traditional view of sexual morality to which CLS adheres. It is hard to see how this can be viewed as anything other than viewpoint discrimination....."

 Justice Alito is correct that in reality Hastings discriminated against CLS on the basis of viewpoint. However, for reasons that I jhave never been able to understand, CLS's lawyers stipulated that Hastings was enforcing a viewpoint neutral "all-comers" policy.

 

 

Exam Instructions

  

Final Examination

 

December 9, 2021                                                                    

   

Three (3) Hours                                                                                     

 

 

INSTRUCTIONS

 

1.                 This is a 3 hour closed book examination. You may not have any written or printed materials with you while taking the examination nor may you consult any written or printed materials before turning in all portions of the examination.

 

No cell phones or other electronics, other than the laptop you are taking this exam on, are allowed in this exam room.

 

2.                 Be sure that you have all pages of the examination question sheet.

 

3.                 Place your examination number (not your name) on page 1 of this question sheet.

 

4.                 This examination will count for 225 points, including 25 points based upon regular attendance.

 

5.                  These questions must be answered on a computer using Exam 4 software in CLOSED Mode, which you must have previously downloaded. Your Exam ID is your 3-digit exam number. If you experience computer problems, switch to writing immediately.

 

6.                 Please limit the length of your answers as specified in each question. Click on the box on the right side of your screen to toggle on and off the word count (“Show/Hide Doc Stats”). Click on “Insert Answer Separator” at the end of each question to create a word count for each question.

 

7.                  You must take the exam in this room unless previous arrangements have been made. Remember that

(1)  time will only be called in this room, and (2) when time is called, you must either be physically present in this room or have already turned in your exam.

 

9.                 If you finish the exam more than five minutes early, you can turn in your exam in the Dean's Office. Otherwise, you must turn in your exam in this room.

 

10.               You must return the exam questions and all used scratch paper, however nothing written on this exam or on any scratch paper will be graded. Remember to close down Exam 4 completely before leaving the exam room.

 

11.               It is an Honor Code violation to reproduce or retain a copy of the question sheet, your answers, or any portion of this exam.

 

 

GOOD LUCK!

NAACP v. Alabama (p. 1597)

             

                             1956 – NAACP is active in the State of Alabama. What is it like to be a known member of the NAACP in Alabama in 1956?

             

         What is the Constitutional basis for the right to expressive association found by the Court in this case?

             

         Is the NAACP a person or a corporation?

The idea is that effective advocacy of a particular point of view is “undeniably enhanced by group association.”  Thus, the freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of freedom of speech. A, B, and C have the right to speak as individuals as well as the right to come together and speak as a group.            

O.K.  But in this case the state was not interfering with anyone’s right to join the NAACP.  All the state wanted, as part of discovery in a lawsuit, was the membership list of the NAACP.  How does that interfere with the right of association? [State was simply trying to monitor corporate activity in the state].              

Disclosure of members in the past had resulted in various forms of reprisal (loss of employment, physical coercion, etc.).  Thus, protecting anonymity was essential to preventing a chilling effect on group membership. 

          [Edited: “State action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny."]

  What do you think?  Should the First Amendment protect the right of anonymity for members of groups engaged in political advocacy? 

What about anonymity for persons who donate funds to organizations involved in political advocacy? 

See AMERICANS FOR PROSPERITY FOUNDATION v. BONTA, ATTORNEY GENERAL OF CALIFORNIA (SCOTUS 2021) (protecting donor anonymity)

 In Talley v. California 362 U.S. 60 (1960), the Supreme Court struck down a state law that prohibited anonymous handbills.  The Court recognized the long and important history of anonymous “pamphlets, leaflets, brochures” and other publications, including the Federalist Papers.  “Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.”  362 U.S.  at 64.