GVPT339A: Politics of the 1st Amendment

McIntosh

Fall 1998

FINAL EXAM REVIEW QUESTIONS

For the final exam, you will be asked to answer two of the following questions. Be sure that you respond to them in coherent and unambiguous terms and that you thoroughly discuss appropriate case precedent. Good luck!

1. Among the perennial liberal dilemmas is the problem of balancing freedom and order. Using at least three of the cases we have discussed, demonstrate how this dilemma manifests itself in First Amendment litigation.

2. In your opinion, what is the core purpose of the First Amendment? Having articulated a purpose, what judicial opinions support your understanding? Explain.

3. Following the considerable political uproar that accompanied the Court's decision in Texas v. Johnson, Congress passed the Flag Protection Act of 1989. The Act criminalized the conduct of anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon" a U.S. flag, except conduct related to the disposal of a "worn or solied" flag. Pretend that you are one of the members of the Texas v. Johnson Court (either the majority or dissent). Would you uphold the Act? Why or why not?

4. In the course of moving from the District Court to the Circuit Court panel to the Supreme Court, the battle between Jerry Falwell and Larry Flynt took on a number of different legal permutations. Describe and assess the legal strategies and arguments of both sides during each step of the process. In your opinion, was the balance between freedom and order well-served by the outcome of this case?

5. In the 16 years that elapsed between the Court's decision in Roth v. U.S. and its decision in Paris Adult Theatre v. Slaton, Justice Brennan had a substantial change of jurisprudential heart. Review the rulings in each of the cases we considered from Roth to Slaton. Then, assess Brennan's Slaton dissent. Do you agree or disagree with his concerns? Why or why not?

6. Discuss and trace the evolution of the "clear and present danger" standard (or test) in First Amendment jurisprudence. How is the test applied today?

7. You are a Justice of the U.S. Supreme Court presented with a case involving a computer game marketed for adults only in which the object of the game is to stalk and rape a victim of your choice. The player is given more points depending upon the victim's age (younger the victim, the more points one receives) and upon the cleverness of the approach (use of a gun is awarded the fewest points). All images are computer-generated, so that no live people are depicted in the course of the game. Larry Flynt has been charged with violation of anti-pornography statutes for producing and marketing the product. The prosecution, led by Katherine MacKinnon, argues that the game has no redeeming value whatever and only encourages violence against women and children. In addition, her position is that the material in question fails all three prongs of the Miller test, regardless of where prosecution might take place.

Flynt counters that no-one is hurt by his game, and in fact it discourages violence, that it represents a true art form, the game requires critical thinking and strategizing in order to play successfully (so it is really educational), and that the value of the ideas imbedded in this form of expression is self-evident (for example, the scenery and back-ground music are beautiful and captivating, and people simply enjoy playing the game). Finally, he argues that, because all characters are computer-generated images and some of the sequences are, to his thinking, comical, the game is really a parody of live-action pornography.

How would you approach this conflict and resolve the issues?

8. A young skinhead, John Doe, has been charged with burning a cross on a hill overlooking the home of a black family in violation of Virginia's statute that makes such a burning a criminal offense. Doe's lawyer argues that his client has only engaged in symbolic speech and that it should actually be granted greater protection than much of what passes as political speech today, because it is far more informative. She asks the Court to compare, for example, Doe's clear political message with that expressed in most political campaign speech, which is generally void of useful information. The government should not, she argues, be in the business of regulating cross burning and the speech expressed by it, because this places government in the unwanted position of a big brother who makes decisions for us regarding what messages are good and which are not.

This means that there is no such thing as undesirable speech; all of it serves a useful purpose. Respond to this lawyer's position with an argument of your own, based upon your understanding of First Amendment theory and case precedent.