CONSTITUTIONAL LAW II - Professor Moskovitz - Fall, 2002
FINAL EXAMINATION
OUTLINE OF ISSUES
Section 1
I. Directed at speech (similar to ordinance in R.A.V), so strict scrutiny applies,
requiring a compelling interest to justify it.
II. Does ordinance apply only to recognized compelling interests? If not, it is
overbroad and will be invalidated.
A. "Profanity" in public is protected speech. Cohen v Calif.
FCC v. Pacifica created exception where profanity broadcast over
airways into homes where kids could hear it.
But fact that kids can see signs would probably not be enough to justify
banning profanity, as kids could see jacket in Cohen.
But perhaps ban might be upheld if limited to places kids most likely
to see signs, e.g., across from schools & playgrounds.
B. "Nudity"?
1. Not always obscene under Miller test.
Note that if we redraft ordinance to limit ban to obscenity,
ordinance must spell out things, that cannot appear on signs.
Miller
2. Barnes upheld ban on nude dancing.
a. Is Barnes distinguishable by fact that signs show pictures rather
than live nudes?
b. Is Barnes distinguishable by fact that signs concern
political speech?
c. But is this ban more justifiable than ban in Barnes because
here nude pictures are outside and can be seen by kids?
C. "Falsity"? Too broad under NY Times v. Sullivan, which held that false
statements about a public figure (which a candidate is) may be punished only if
made with "malice."
D. "Is likely to provoke a violent reaction" is too broad under Brandenberg v.
Ohio, which held that speech may be restricted only where D intends his speech to
provoke violence (and is likely to do so).
III. Ordinance is also "underbroad." Even if definition of "inappropriate" is narrowed to
include only prohibitable categories, limitation to "political" speech within these categories
would cause entire section to fall. R.A.V. v. St. Paul.
[IV. Can city enact any ord. that forbids signs on outside of buildings? Maybe not.
City of
Ladue, p. 663, held that City may not ban all lawn signs, which are a traditional way of
communicating. But we did not go over this case in class.]
Common errors:
1. Some students discussed distinctions between public & non-public forums.
This is not relevant to Section 1, which is a general regulatory statute, not an
effort to regulate public property.
2. Some students overlooked the "call of the question":
a. Some students analyzed whether the various signs discussed in the facts
were protected speech, rather than analyzing the words of the Ordinance (which was the call of the question).
b. Some students missed the instruction to redraft the Ordinance.
Section 2
Not directed against speech, but to conduct, so to see if it could properly be applied to political signs, use O'Brien's 4-part test:
Reg must (1) be within Constitutional
power of govt., (2) further important or substantial govt. interest, which is (3) unrelated to
suppression of free expression, and (4) incidental restriction on speech is no greater than
essential to furtherance of that interest. Seems OK.
Section 3
1. Parking meter. This is govt's own property.
a. Is parking meter a "public forum"? No, .as not traditionally used for speech.
Therefore, govt. may establish reasonable regs, and it seems reasonable to
prohibit signs on parking meters (because signs might obstruct instructions and
are unsightly).
b. Perry held that in a nonpublic forum, "govt. may impose any reasonable regulation, so long as it
does not discriminate on basis of viewpoint." This reg does not discriminate re viewpoint, but
limitation to "political" should be deleted, as discrimination re content might not be "reasonable" here,
as it furthers no legitimate interest of City.
2. Sidewalk. This too is govt.'s own property.
a. A sidewalk is a "public forum" (U.S. v. Grace), but city may regulate "time,
place, & manner." Perry. Arguably, this restriction reasonably regulates "place"
and "manner," because people might trip over signs placed on pavement.
b. But Perry held that govt. may not regulate content in a public forum, so
limitation to "political" should be deleted.