For the mid-term 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. From a legal standpoint, assess the following statement: "Public sidewalks and streets were constructed for the purpose of serving the public's interest in moving from one place to another -- walking, driving, leisurely or to conduct business. This is their purpose. They were not constructed so that street artists and musicians, beggars and panhandlers, can hang out and ask for donations. Nor were they constructed to serve the interests of anti-government types who want to pace up and down wearing sandwich boards protesting one policy or another."
 

3. Thoroughly evaluate the following statement: "I . . . believe that the distinction [between contributions and expenditures] has no constitutional significance." FEC v. NCPAC, Thurgood Marshall, dissenting. Do you agree or disagree with Justice Marshall?
 

4. Discuss and trace the evolution of the "clear and present danger" standard (or test) in First Amendment jurisprudence.
 

5. With time, the rights of public employees to voice their opinions in the workplace have

evolved. In 1968 the Supreme Court determined that speech regarding matters of public concern by a public employee is safeguarded by the First Amendment (Pickering v. Board of Education). In Connick v. Myers, the Supreme Court ruled that
 

"when a public employee speaks not as a citizen upon matters of public concern, but
instead as an employee upon matters only of personal interest, absent the most
unusual circumstances, a federal court is not the appropriate forum in which to review
the wisdom of a personnel decision taken by a public agency allegedly in reaction to
the employee's behavior." (Connick v. Myers p 147).
 

There are far more people working in the private sector than in the public sector. The question is whether this principle established by the Supreme Court should apply to free speech in the private sector of the workplace as well. The distinction made by the Court between private and public sector workplaces arises from the fact that governmental officials are elected or appointed by a democratic system and that this does not hold true for the private sector. Therefore, private businesses should not be subject to the same standards because of this distinction. This is equivalent to saying that the free exchange of ideas in the private sector would not positively affect society in a significant way. Are private businesses to be regarded as sovereign states, exempt from the Constitution?
 

6) In Dennis v. U.S., Justice Black dissented, stating

I have always believed that the First Amendment is the keystone of our Government, that the freedoms it guarantees provide the best insurance against destruction of all freedom.... So long as this Court exercises the power of judicial review of legislation, I cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress' or our own notions of mere "reasonableness." Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress. The Amendment as so construed is not likely to protect any but those "safe" or orthodox views which rarely need its protection....
 

Justice Frankfurter, in his concurring opinion felt differently:

But how are competing interests to be assessed? Since they are not subject to quantitative ascertainment, the issue necessarily resolves itself into asking, who is to make the adjustment? Who is to balance the relevant factors and ascertain which interest is in the circumstances to prevail?
 

Frankfurter's position was that it is undemocratic for a handful of non-elected officials to overturn the interpretations of a freely elected Congress, arguing that if the majority, through Congress' representation of the people, decided what liberties to be afforded, then no Court or law could or should change the belief of the people.
 

Do you agree with either of these Justices? If so, explain your reasoning. If you hold a different position, discuss and, again, explain your reasoning.
 
 

7. Assuming the role of a Supreme Court justice, write an opinion to answer the 1st Amendment question(s) presented in the following case:

NATURIST BUFFS, INC. v. GRAHAM
 

The Naturist Buffs, Inc., is a Maryland corporation that advocates a "clothing optional" lifestyle and educates the public through writings, lectures, and public demonstrations. Ms. T.A. Wyner is a Florida resident who has belonged to the Buffs as a member since 1987. The Buffs meet as both a local and national organization several times a year.
 

On June 29, 1997, the plaintiffs contacted John Graham, the park manager for the John D. MacArthur Beach State Park and advised him that the Buffs wished to demonstrate at the park. Wyner requested permission for Buffs members to approach park visitors and distribute literature, to display a two-foot by four-foot sign with the phrase "Sunnier Palms," to exhibit nude sculptures, and to appear nude or with minimal clothing. On July 6, 1997, defendant Graham issued a permit allowing the Buffs to distribute printed literature within the park. The permit allowed the plaintiffs to demonstrate at the park on Saturday, July 9, 1997, during the peak visiting hours of 10:00 a.m. to 1:00 p.m. The plaintiffs were allowed to protest from a fixed location, approximately one hundred yards north of the park's entrance, and to utilize a table for their materials. However, defendant Graham directed the plaintiffs not to approach park visitors directly on the beach and not to display the requested banner and nude sculptures.

On July 14, 1997, plaintiff Wyner wrote a letter to defendant Graham to confirm the various conditions which had been placed on the demonstration. The defendant promptly responded by letter dated July 22, 1997, in which he cited to the various portions of Florida Administrative Code, Chapter 16D-2, which provided him with the legal authority to curtail the plaintiffs from directly approaching visitors on the beach, from appearing in inappropriate beach attire, and from displaying banners and nude sculptures on the beach.
 

On Saturday, July 9, 1997, in accordance with the permit, the Naturists appeared at the park and demonstrated. Approximately thirty persons attended. At the demonstration, Ms. Wyner was fully attired in a long dress and there is no allegation that the group appeared nude. The group did not bring signs, banners, or artwork because of the limitations imposed by Graham. There is no evidence of how many visitors stopped at the demonstration.
 

The state argues that the state park is not a public forum and that it therefore has the right to determine proper use of the facilities and to place restrictions on speech activities that are consistent with its functions. The Naturists challenge various provisions of the regulations governing conduct in Florida state parks. Count I of their complaint alleges that a state park should be considered a public forum for the purposes of First Amendment analysis. Therefore, Rule 16D-2.007(1)(a)-(h) is unconstitutional on its face and as applied to the plaintiffs, and that defendant Graham's conduct enforcing the rule violated clearly established law. Count II argues that the regulations are not content neutral, that they grant park administrators too much discretion in determining what activities are permissible on public grounds, thus violating the First Amendment.
 
 

Rule 16D-2.007(1)(a)-(h) provides:

(a) The sale or distribution of printed matter is permitted within the park areas, provided a permit to do so has been issued by the manager and provided further that the printed matter is not solely commercial advertising.
 

(b) Any application for such a permit shall set forth the name of the applicant; the name of the organization, if any; the date, time, duration, and location of the proposed sale or distribution; and the number of participants.
 

(c) The manager shall, without unreasonable delay, issue a permit on proper application unless: (1) a prior applicant for a permit for the same time and location has been or will be granted a permit and the activities authorized by that permit do not reasonably permit multiple occupancy of the particular area; (2) the sale or distribution will present a clear and present danger to the public health or safety; (3) the number of persons engaged in the sale or distribution exceeds the number that can reasonably be accommodated in the particular location applied for; (4) the location applied for has not been designated as available for the sale or distribution of printed matter; (5) the activity would constitute a violation of an applicable law or regulation. If an applicant for a permit is denied, the applicant shall be so informed in writing, with the reason(s) for the denial clearly set forth.

(d) The manager shall designate on a map, which shall be available for inspection in the Office of the Manager, the locations within the park area that are available for the sale or distribution of printed matter.
 

(e) The permit may contain such conditions as are reasonably consistent with protection and use of the park area.

(f) No permit shall be issued for a period in excess of 14 consecutive days, provided that permits may be extended for like periods, upon a new application.
 

(g) Persons engaged in the sale or distribution of printed matter under this section shall not obstruct or impede pedestrians or vehicles, harass park visitors with physical contact or persistent demands, misrepresent the purposes of affiliations of those engaged in the sale or distribution, or misrepresent whether the printed mater is available without cost or donation.

(h) Sale or distribution of printed matter without a permit, or in violation of the terms or conditions of a permit is prohibited.