The First Amendment-- 2006 Final Exam Professor Balkin

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YALE LAW SCHOOL

Spring Term 2006 Examination

The First Amendment

May, 2006

(Self-Scheduled-- Twenty Four Hours)

Professor Balkin

Instructions

1. This examination consists of three essay questions. Each has equal weight in determining your grade. Your answers to the three questions combined should total no more than 6,000 words.

2. Please read each question carefully and pay attention to what you are being asked to do.

3. If anything about a question is ambiguous, decide what you think is meant, tell me what you think is meant, and answer the question accordingly. No reasonable resolution of an ambiguity will be penalized. If you need to assume additional facts in order to answer a question, state what those facts are and how they affect your answer.

4. You may either type your exam (which I prefer) or use blue books. If the latter, please use a separate blue book for each question. Mark the number of the question on the front of the blue book. If you need more than one blue book for a question, that is fine, but indicate on each blue book which question it answers and in what order it is to be read. Write on only one side of the page. Skip every other line. The easier your answer is to read, the more appeal it will have when it is viewed at 2:00 in the morning.

5. Think before you write. Organize your answer. You get extra points for clarity and succinctness. You get penalized for an answer which is disorganized and confusing.

6. This exam is open book, with one exception: You may not use Lexis, Westlaw, or other electronic databases.

7. Good luck.

Question One
(One Third)

	On April 20, 2006, Assistant Attorney General William E. Moschella sent a letter to the Speaker of the House J. Dennis Hastert, announcing that the Bush Administration had transmitted to Congress a new legislative proposal, the Child Pornography and Obscenity Prevention Amendments of 2006. As explained by the letter, Section 4 of the proposed legislation "requires all websites that are operated primarily for commercial purposes to include specific marks and notices on every page of the website that contains sexually explicit material. The legislation also requires that the material initially viewable by any individual on a website not contain any sexually explicit material absent further actions (e.g., an additional click) by the viewer. " Section 5 makes it a crime to "hid[e] innocuous terms in a website's hypertext markup language so that a search for those terms on the Internet yields links to the sexually explicit websites. For example, the owner of a website called, say, "pomphotos.com", can hide the words, "Disney," "Bob the Builder," and "Barbie" in the computer code used to program the website, so that a search through Google for sites about Disney, Bob the Builder, or Barbie would bring up "pomphotos.com" in addition to "disney.com," "bobthebui1der.com" or "Barbie.com." A child or other individual who was not interested in or expecting to come across pornography would then unwittingly be directed to such material."

The proposed legislation provides in relevant part:

SEC. 4. REQUIRING THAT WARNING LABELS BE PLACED ON COMMERICAL WEBSITES CONTAINING SEXUALLY EXPLICIT MATERIAL

Title 15 of the United States Code is amended by adding the following-

§ 7801. Requirement to place warning labels on commercial websites containing sexually explicit material.

(1) In general

No person who operates a website located on the Internet where such website is primarily operated for commercial purposes, in or affecting interstate or foreign commerce, may knowingly, and with knowledge of the character of the material, place on that website sexually explicit material, and-

(A) fail to include on each page of the website that contains sexually explicit material, the marks and notices prescribed by the Commission under this subsection; and

(B) fail to provide that the matter on the website that is initially viewable, absent any further actions by the viewer, does not include any sexually explicit material.

(2) Prescription of marks and notices

Not later than 90 days after the enactment of this section, the Commission shall, in consultation with the Attorney General, provide by regulation clearly identifiable marks or notices to be included in the code, if technologically feasible, or if not feasible on the

pages, of websites that contain sexually explicit material in order to inform the viewer of that fact and to facilitate the filtering of such pages.

(3) Inapplicability to carriers and other service providers

This section shall not apply to any person to the extent that person is-

(A) a telecommunications camer engaged in the provision of a telecommunications service;

(B) a person engaged in the business of providing an Internet access service;

(C) similarly engaged in the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication made by another person, without selection or alteration of the content of the communication, except that such person's deletion of a particular communication or material made by another person in a manner consistent with any applicable law or regulation shall not constitute such selection or alteration of the content of the communication.

(4) Definitions

For the purposes of this section, the tern-

(A) "Commission" means the Federal Trade Commission;

(B) "website" means any collection of material placed in a computer serverbased file archive so that it is publicly accessible, over the Internet, using hypertext transfer protocol or any successor protocol except that the term does not include any collection of material where access to sexually explicit material is restricted to a specific set of individuals through the provision of a password or through another access restriction mechanism;

(C) "sexually explicit material" means any material that depicts sexually explicit conduct (as that term is defined in subsection (2)(A) of section 2256 of title 18), unless the depiction constitutes a small and insignificant part of the whole, the remainder of which is not primarily devoted to sexual matters; [18 U.S.C. sec. 2256(2)(A) states that "sexually explicit conduct" means actual or simulated—

(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(ii) bestiality;

(iii) masturbation;

(iv) sadistic or masochistic abuse; or

(v) lascivious exhibition of the genitals or pubic area of any person;]

(D) "Internet" means the combination of computer facilities and

electromagnetic transmission media, and related equipment and software,comprising the interconnected worldwide network of computer networks that employ the Transmission Control Protocol/Internet Protocol or any successor protocol to transmit information;

(E) "Internet access service" means a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers. Such term does not include telecommunications services.

(5) Penalties

(A) Whoever violates paragraph (1) shall be fined under title 18, or imprisoned not more than 5 years, or both.

SEC. 5. PROHIBITING THE EMBEDDING OF WORDS OR IMAGES ON A WEBSITE IN ORDER TO DECIEVE INDIVIDUALS INTO VIEWING OBSCENITY OR MATERIAL HARMFUL TO MINORS.

Title 18 of the United States Code is amended by adding the following-

§ 2252C. Misleading Words or Digital Images on the Internet.

(a) Whoever knowingly embeds words or digital images into the source code of a website with the intent to deceive a person into viewing material constituting obscenity shall be fined under this title or imprisoned not more than 2 years, or both.

(b) Whoever knowingly embeds words or digital images into the source code of a website with the intent to deceive a minor into viewing material harmful to minors on the Internet shall be fined under this title or imprisoned not more than 4 years, or both.

(c) For the purposes of this section, a word or digital image that clearly indicates the sexual content of the site, such as "sex" or "porn", is not misleading.

(d) For the purposes of this section, the term "material that is harmful to minors" means any communication, consisting of nudity, sex, or excretion, that, taken as a whole and with reference to its context

(1) predominantly appeals to a prurient interest of minors;

(2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors: and

(3) lacks serious literary, artistic, political, or scientific value for minors.

(e) For the purposes of subsection (d), the term "sex" means acts of masturbation, sexual intercourse, or physical contact with a person's genitals, or the condition of human male or female genitals when in a state of sexual stimulation or arousal.

(f) For the purposes of this section, the term "source code" means the combination of text and other characters comprising the content, both viewable and non-viewable, of a web page, including but not limited to any website publishing language, programming language, protocol or

functional content, as well as any successor languages or protocols.

* * * * *

Discuss the constitutional issues raised by the proposed legislation. If you conclude that any part of the proposed legislation is unconstitutional, how might the law be altered to solve the constitutional difficulties?

Question Two
(One Third)

The State of Confusion’s Fair Housing Law, Confus. Rev. Stat. § 364 provides in relevant part:

Section 364. Discrimination in the sale or rental of housing and other prohibited practices.

It shall be unlawful--

(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, sexual orientation, or national origin.

(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, sexual orientation, or national origin.

(c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, sexual orientation or national origin, or an intention to make any such preference, limitation, or discrimination.

(d) To represent to any person because of race, color, religion, sex, handicap, familial status, sexual orientation, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.

In July 2005, after considerable debate and public protest, the Confusion State Legislature amended its fair housing law to include sexual orientation as a protected category. The statute gives the Confusion Housing Commission the power to issue fines for violations of the act.

Larry Landlord operates an apartment complex in Confusion City. According to his religious beliefs he believes that homosexuality is sinful and contrary to divine command. Shortly after the passage of the 2005 amendment, he placed a large sign in the apartment manager’s office which states: “BE ASHAMED, OUR LEGISLATURE HAS EMBRACED WHAT GOD HAS CONDEMNED– HOMOSEXUALITY IS SHAMEFUL.”

Landlord placed the sign prominently so that all persons who enter the apartment complex to inquire about rentals and to obtain an application form would see the sign. Next to a pile of application forms Landlord placed a petition for interested persons may sign. The petition asks for a referendum that would repeal the extension of the Fair Housing law to discrimination based on sexual orientation.

Paula Plaintiff is a lesbian who sought to rent an apartment in Landlord’s building for herself and her partner. Upon seeing the sign and the petition, she complained to the Confusion State Housing Commission, which ordered Landlord to remove both the sign and the petition from the apartment manager’s office. Landlord refused, and installed another, larger copy of the sign on the lawn immediately in front of the apartment building facing the street. The Housing Commission then ordered him to remove the sign in front of the building as well.

* * * * *

(1) discuss the relevant First Amendment issues raised by this set of facts.

(2) Suppose the Confusion State Legislature amends the state’s fair housing law as follows:

(e) “The prohibitions and requirements of subparts (a)-(d) of this section with respect to sexual orientation shall not apply to any person who objects in good faith as a matter of conscience on religious grounds.”

Discuss the First Amendment issues raised by the proposed amendment.

Question Three
(One third)

Throughout this course we have viewed First Amendment doctrine in terms of “information policy” or “knowledge policy.” On the one hand, we have noted that First Amendment doctrine is designed in part to serve the promotion, spread, and growth of knowledge and information and to promote and protect the ability of individuals and communities to access, share, build on, and use knowledge and information. On the other hand we have noted how the interests of information or knowledge policy seem to go beyond what courts are either willing or able to protect through First Amendment doctrine.

(1) Give three examples of issues we have discussed in class where, in your view, the First Amendment, as currently construed by courts, either fails to serve or is inadequate to the goals of a sound information policy. In each case, explain what you think the appropriate goals of “information policy” (or “knowledge policy”) should be. Is the expression “information policy” adequate to describe the sorts of considerations you have in mind or would you offer an alternative term?

(2) To what extent can these failures, to the extent they exist, be altered by practical changes in judicial doctrine and to what extent must information policy rely on legislative, administrative, or technological solutions?

(3) Are there any lessons we can draw from these examples about the limits of judicial enforcement of the First Amendment to promote “information policy” (or your alternative terminology)?

END OF EXAMINATION

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		Back to Syllabi Online YALE LAW SCHOOL Spring Term 2006 Examination The First Amendment May, 2006 (Self-Scheduled-- Twenty Four Hours) Professor Balkin Instructions 1. This examination consists of three essay questions. Each has equal weight in determining your grade. Your answers to the three questions combined should total no more than 6,000 words. 2. Please read each question carefully and pay attention to what you are being asked to do. 3. If anything about a question is ambiguous, decide what you think is meant, tell me what you think is meant, and answer the question accordingly. No reasonable resolution of an ambiguity will be penalized. If you need to assume additional facts in order to answer a question, state what those facts are and how they affect your answer. 4. You may either type your exam (which I prefer) or use blue books. If the latter, please use a separate blue book for each question. Mark the number of the question on the front of the blue book. If you need more than one blue book for a question, that is fine, but indicate on each blue book which question it answers and in what order it is to be read. Write on only one side of the page. Skip every other line. The easier your answer is to read, the more appeal it will have when it is viewed at 2:00 in the morning. 5. Think before you write. Organize your answer. You get extra points for clarity and succinctness. You get penalized for an answer which is disorganized and confusing. 6. This exam is open book, with one exception: You may not use Lexis, Westlaw, or other electronic databases. 7. Good luck. Question One (One Third) On April 20, 2006, Assistant Attorney General William E. Moschella sent a letter to the Speaker of the House J. Dennis Hastert, announcing that the Bush Administration had transmitted to Congress a new legislative proposal, the Child Pornography and Obscenity Prevention Amendments of 2006. As explained by the letter, Section 4 of the proposed legislation "requires all websites that are operated primarily for commercial purposes to include specific marks and notices on every page of the website that contains sexually explicit material. The legislation also requires that the material initially viewable by any individual on a website not contain any sexually explicit material absent further actions (e.g., an additional click) by the viewer. " Section 5 makes it a crime to "hid[e] innocuous terms in a website's hypertext markup language so that a search for those terms on the Internet yields links to the sexually explicit websites. For example, the owner of a website called, say, "pomphotos.com", can hide the words, "Disney," "Bob the Builder," and "Barbie" in the computer code used to program the website, so that a search through Google for sites about Disney, Bob the Builder, or Barbie would bring up "pomphotos.com" in addition to "disney.com," "bobthebui1der.com" or "Barbie.com." A child or other individual who was not interested in or expecting to come across pornography would then unwittingly be directed to such material." The proposed legislation provides in relevant part: SEC. 4. REQUIRING THAT WARNING LABELS BE PLACED ON COMMERICAL WEBSITES CONTAINING SEXUALLY EXPLICIT MATERIAL Title 15 of the United States Code is amended by adding the following- § 7801. Requirement to place warning labels on commercial websites containing sexually explicit material. (1) In general No person who operates a website located on the Internet where such website is primarily operated for commercial purposes, in or affecting interstate or foreign commerce, may knowingly, and with knowledge of the character of the material, place on that website sexually explicit material, and- (A) fail to include on each page of the website that contains sexually explicit material, the marks and notices prescribed by the Commission under this subsection; and (B) fail to provide that the matter on the website that is initially viewable, absent any further actions by the viewer, does not include any sexually explicit material. (2) Prescription of marks and notices Not later than 90 days after the enactment of this section, the Commission shall, in consultation with the Attorney General, provide by regulation clearly identifiable marks or notices to be included in the code, if technologically feasible, or if not feasible on the pages, of websites that contain sexually explicit material in order to inform the viewer of that fact and to facilitate the filtering of such pages. (3) Inapplicability to carriers and other service providers This section shall not apply to any person to the extent that person is- (A) a telecommunications camer engaged in the provision of a telecommunications service; (B) a person engaged in the business of providing an Internet access service; (C) similarly engaged in the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication made by another person, without selection or alteration of the content of the communication, except that such person's deletion of a particular communication or material made by another person in a manner consistent with any applicable law or regulation shall not constitute such selection or alteration of the content of the communication. (4) Definitions For the purposes of this section, the tern- (A) "Commission" means the Federal Trade Commission; (B) "website" means any collection of material placed in a computer serverbased file archive so that it is publicly accessible, over the Internet, using hypertext transfer protocol or any successor protocol except that the term does not include any collection of material where access to sexually explicit material is restricted to a specific set of individuals through the provision of a password or through another access restriction mechanism; (C) "sexually explicit material" means any material that depicts sexually explicit conduct (as that term is defined in subsection (2)(A) of section 2256 of title 18), unless the depiction constitutes a small and insignificant part of the whole, the remainder of which is not primarily devoted to sexual matters; [18 U.S.C. sec. 2256(2)(A) states that "sexually explicit conduct" means actual or simulated— (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person;] (D) "Internet" means the combination of computer facilities and electromagnetic transmission media, and related equipment and software,comprising the interconnected worldwide network of computer networks that employ the Transmission Control Protocol/Internet Protocol or any successor protocol to transmit information; (E) "Internet access service" means a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers. Such term does not include telecommunications services. (5) Penalties (A) Whoever violates paragraph (1) shall be fined under title 18, or imprisoned not more than 5 years, or both. SEC. 5. PROHIBITING THE EMBEDDING OF WORDS OR IMAGES ON A WEBSITE IN ORDER TO DECIEVE INDIVIDUALS INTO VIEWING OBSCENITY OR MATERIAL HARMFUL TO MINORS. Title 18 of the United States Code is amended by adding the following- § 2252C. Misleading Words or Digital Images on the Internet. (a) Whoever knowingly embeds words or digital images into the source code of a website with the intent to deceive a person into viewing material constituting obscenity shall be fined under this title or imprisoned not more than 2 years, or both. (b) Whoever knowingly embeds words or digital images into the source code of a website with the intent to deceive a minor into viewing material harmful to minors on the Internet shall be fined under this title or imprisoned not more than 4 years, or both. (c) For the purposes of this section, a word or digital image that clearly indicates the sexual content of the site, such as "sex" or "porn", is not misleading. (d) For the purposes of this section, the term "material that is harmful to minors" means any communication, consisting of nudity, sex, or excretion, that, taken as a whole and with reference to its context (1) predominantly appeals to a prurient interest of minors; (2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors: and (3) lacks serious literary, artistic, political, or scientific value for minors. (e) For the purposes of subsection (d), the term "sex" means acts of masturbation, sexual intercourse, or physical contact with a person's genitals, or the condition of human male or female genitals when in a state of sexual stimulation or arousal. (f) For the purposes of this section, the term "source code" means the combination of text and other characters comprising the content, both viewable and non-viewable, of a web page, including but not limited to any website publishing language, programming language, protocol or functional content, as well as any successor languages or protocols. * * * * * Discuss the constitutional issues raised by the proposed legislation. If you conclude that any part of the proposed legislation is unconstitutional, how might the law be altered to solve the constitutional difficulties?
		Question Two (One Third) The State of Confusion’s Fair Housing Law, Confus. Rev. Stat. § 364 provides in relevant part: Section 364. Discrimination in the sale or rental of housing and other prohibited practices. It shall be unlawful-- (a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, sexual orientation, or national origin. (b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, sexual orientation, or national origin. (c) To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, sexual orientation or national origin, or an intention to make any such preference, limitation, or discrimination. (d) To represent to any person because of race, color, religion, sex, handicap, familial status, sexual orientation, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available. In July 2005, after considerable debate and public protest, the Confusion State Legislature amended its fair housing law to include sexual orientation as a protected category. The statute gives the Confusion Housing Commission the power to issue fines for violations of the act. Larry Landlord operates an apartment complex in Confusion City. According to his religious beliefs he believes that homosexuality is sinful and contrary to divine command. Shortly after the passage of the 2005 amendment, he placed a large sign in the apartment manager’s office which states: “BE ASHAMED, OUR LEGISLATURE HAS EMBRACED WHAT GOD HAS CONDEMNED– HOMOSEXUALITY IS SHAMEFUL.” Landlord placed the sign prominently so that all persons who enter the apartment complex to inquire about rentals and to obtain an application form would see the sign. Next to a pile of application forms Landlord placed a petition for interested persons may sign. The petition asks for a referendum that would repeal the extension of the Fair Housing law to discrimination based on sexual orientation. Paula Plaintiff is a lesbian who sought to rent an apartment in Landlord’s building for herself and her partner. Upon seeing the sign and the petition, she complained to the Confusion State Housing Commission, which ordered Landlord to remove both the sign and the petition from the apartment manager’s office. Landlord refused, and installed another, larger copy of the sign on the lawn immediately in front of the apartment building facing the street. The Housing Commission then ordered him to remove the sign in front of the building as well. * * * * * (1) discuss the relevant First Amendment issues raised by this set of facts. (2) Suppose the Confusion State Legislature amends the state’s fair housing law as follows: (e) “The prohibitions and requirements of subparts (a)-(d) of this section with respect to sexual orientation shall not apply to any person who objects in good faith as a matter of conscience on religious grounds.” Discuss the First Amendment issues raised by the proposed amendment.
		Question Three (One third) Throughout this course we have viewed First Amendment doctrine in terms of “information policy” or “knowledge policy.” On the one hand, we have noted that First Amendment doctrine is designed in part to serve the promotion, spread, and growth of knowledge and information and to promote and protect the ability of individuals and communities to access, share, build on, and use knowledge and information. On the other hand we have noted how the interests of information or knowledge policy seem to go beyond what courts are either willing or able to protect through First Amendment doctrine. (1) Give three examples of issues we have discussed in class where, in your view, the First Amendment, as currently construed by courts, either fails to serve or is inadequate to the goals of a sound information policy. In each case, explain what you think the appropriate goals of “information policy” (or “knowledge policy”) should be. Is the expression “information policy” adequate to describe the sorts of considerations you have in mind or would you offer an alternative term? (2) To what extent can these failures, to the extent they exist, be altered by practical changes in judicial doctrine and to what extent must information policy rely on legislative, administrative, or technological solutions? (3) Are there any lessons we can draw from these examples about the limits of judicial enforcement of the First Amendment to promote “information policy” (or your alternative terminology)? END OF EXAMINATION Back to Syllabi Online