First Amendment Midterm

Respond fully in essay form to the question below. 

The mayor of Goldbergia, Ferica Foldberg, wishes to promote the eating of cheese in addition to instating a city beautification project.  Ferica believes that cheese is a low-carb, enjoyable snack that is aesthetically pleasing and can cause residents of Goldbergia to be friendlier to one another, reducing crime.  Ferica convinces the Goldbergia legislature to enact the following statute:

“Every resident of Goldbergia is entitled to $1,000 off of their state income taxes, but only if they use the money to create beautiful pictures placed on their lawns highlighting the virtues of cheese.  Further, no resident of Goldbergia is permitted to place obscene signs on their lawn, depicting patently offensive sexual content, unless the obscene signs portray humans embracing the sensuality of cheese.”

Vargas, a vegan, challenges both provisions of the law as violating the First Amendment.  Do not worry about standing – just look at the statute.  What is a court likely to rule?  Proceed through the analysis the way a court would, analogizing or disanalogizing to cases on point for the more difficult, open questions.  Think about Goldbergia’s and Ferica’s best arguments when doing your analysis.

Provision One

  • Facially, the statute is overbroad, because it has substantial applications to constitutionally protected speech.
  • Although Provision One doesn’t penalize speech, it does appear to place an unconstitutional condition (the receipt of $1000 benefit of a tax refund) on a viewpoint-based compelled speech requirement.
  • Goldbergia is likely to say this is government speech like in Summum, and therefore viewpoint-based restrictions are permissible. However, the impermanence of drawn lawn signs is quite distinct, and are not connected to traditional promotion of the government’s message.
  • Goldbergia might also argue that this speech is funding a government program. Goldbergia will say that just like in Rust, where the government could allocate money only for family planning that did not include abortion, here Goldbergia is funding only its positive promotional message in favor of supporting cheese.
  • However, this looks a lot more like the funding of private speech, like in NEA v. Finley, since individuals will draw the pictures and display them on their front lawns. That said, like in Rust, the individuals may criticize cheese elsewhere – they just cannot use government money to do so or put the criticisms on their front lawns.  Still, this speech looks much more private in nature than a government program and will occupy an important part of the individual’s life, not just when the individual is using government money.
  • Given that this is a funding of private speech, not a government program, the viewpoint-based compelled unconstitutional condition is likely unconstitutional. The government’s interest is certainly not as compelling as in Holder.  The statute is somewhat narrowly tailored to beautify lawns, but there is no real link between cheese promotion and a reduction of crime.  The statute likely will not survive strict scrutiny, given that viewpoint-based distinctions on speech are the most suspect under the First Amendment.

Provision Two

  • Provision Two is also overbroad. It is a content- and likely viewpoint-based restriction on speech, because only positive sensual depictions of cheese are permitted.
  • Although Provision Two covers obscenity, an unprotected category of speech, the Court in RAV v. City of St. Paul held that the government generally cannot make content-based distinctions even within unprotected categories of speech.
  • RAV contained a few limited exceptions, such as making content-based distinctions for the very reason the category is unprotected in the first place. Sensual depictions of cheese is not the most prurient or meritless type of obscenity, so Provision Two is likely unconstitutional.