FINAL EXAMINATION
CONSTITUTIONAL LAW--LIBERTIES
Professors Kenneth Kirwin & Ann Iijima
Thursday, May 19, 1994 - 6:30-9:30 p.m.
3 Hours - Open Book, Notes
1. For anonymity, use your assigned test number which was mailed to you.
2. Put your test number on this page and on all bluebooks.
3. If you do not know your test number, you may obtain it at the Communication Center or in the Records Office (Cindy Egeness) during the first 30 minutes of the exam period.
4. If you do not use your test number, you will be deemed to have waived your privilege of anonymous grading.
5. TURN IN YOUR BLUEBOOKS AND THIS EXAM AT THE END OF THE PERIOD.
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STUDENT CONDUCT CODE
IT IS A VIOLATION OF THE CODE:
1. To use any sources which are forbidden by the instructor to complete an exam.
2. To submit as one's own work the work of another.
3. To engage in any conduct which tends to give an unfair advantage to any student in any
academic matter.
Knowledge of any violation should be promptly reported.
VIOLATION OF THE STUDENT CONDUCT CODE MAY RESULT IN EXPULSION
OR SUSPENSION FROM THE COLLEGE OR DISMISSAL FROM THE CLASS.
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GRADUATING SENIORS: IF YOU ARE A GRADUATING SENIOR, NOTE THIS FACT
ON ALL BLUEBOOKS AND THIS EXAM PAPER. DO SO CONSPICUOUSLY.
TYPING AREA: If you are going to type your examination, the typing area is located in Room 107. You must return the exam to this room at the conclusion of the exam period.
GENERAL INSTRUCTIONS
This is a closed-book, open-notes exam with one one-hour question and one two-hour question.
You may use any written, typed, or word-processed materials you have prepared, but no books,
pamphlets, handouts, or other printed or photo-copied materials.
The answer to each question will be graded separately. Therefore, please make sure that each
answer stands by itself and does not rely upon or refer to anything included in your answer to the
other question.
You will have three hours to complete the exam. Please take the time to read each question
carefully and outline your analysis before you begin to write the answer. If you make notes or
outlines to organize your answer, please put them on your exam paper or in a separate bluebook
marked "SCRATCH." Only material written in essay form will be considered in grading.
If you think that, with respect to any particular issue, there are insufficient facts to warrant
drawing any conclusion, please indicate what kinds of additional facts would be relevant and why.
Similarly, if you think that any of the statements of fact contain an ambiguity, please resolve the
ambiguity for yourself, indicating briefly the nature of the ambiguity and your resolution.
Please discuss all issues reasonably presented, even if resolution of some would alone dispose of
the problem. Specify all grounds and reasons which support your conclusion, including
alternative grounds, and discuss possible contrary arguments.
Please write legibly.
QUESTION I (one hour)
Suggested time: 6:30-7:30
In an address to the Senate Commerce Committee, which was considering three bills that would
regulate television violence, Attorney General Janet Reno stated that the entertainment industry
itself needed to address the problem. She warned that if "immediate voluntary steps are not taken
and deadlines established, government should respond, and respond immediately."
In order to forestall the threatened governmental regulation, the National Association of
Broadcasters ("NAB"), an association of radio and television broadcast stations, decided to
undertake self-regulation. The executive committee of NAB adopted the following policy:
(1) Between the hours of 5 a.m. and 11 p.m., there shall be no broadcast of scenes involving violence or cruelty intermingled with sexual activity.
(2) Any member of NAB that violates the provisions of paragraph (1) shall be suspended from membership in NAB for one year.
(3) Any member of NAB that violates the provisions of paragraph (1) shall be permanently
expelled from membership in NAB if the scenes broadcasted in violation of paragraph (1) can
fairly be said to dehumanize women.
It was known by the NAB Executive Committee and all NAB members that expulsion from NAB
automatically triggered a Federal Communications Commission ("FCC") review of the
broadcaster, which could result in the suspension or cancellation of the broadcaster's license.
On its evening news show, broadcast station WMCL reported on a local bar that offered live sex
shows to its patrons. This bar had just opened up three blocks from a junior high school.
WMCL's taped footage of one of the bar's shows aired at 10:30 p.m. The tape depicted a violent
rape. Although the violence involved in the bar's show was staged, the sexual acts themselves
were real, and in full view of the bar's patrons and, later, WMCL's broadcast audience. Before
WMCL ran the tape, the news anchor warned the broadcast audience, "We are about to show a
tape of a live sex show at a local bar. The tape shows actual sexual acts and realistically-simulated violence. Children should not be permitted to watch this segment. Sensitive persons
who do not wish to watch this segment should turn the TV off or to a different channel until our
news is over at 10:35."
Receiving complaints about WMCL's program, NAB held a full hearing on the circumstances and
expelled WMCL from membership in NAB under paragraph (3).
WMCL brought an action in federal district court, challenging NAB's policy under the United States Constitution. Please discuss the viability of any issues covered in Constitutional Law Liberties.
QUESTION II (two hours)
Suggested time: 7:30-9:30
Congress enacted 10 U.S.C. § 654, entitled Policy Concerning Homosexuality in the Armed
Forces, effective February 28, 1994. Section 654(b) provides, in pertinent part, that a member of
the armed services "shall be separated" from the armed services if any one of the following is
found:
(1) That the member has engaged in, attempted to engage in, or solicited another to engage in a homosexual act or acts unless there are further findings . . . that the member has demonstrated that . . . the member does not have a propensity or intent to engage in homosexual acts.
(2) That the member has stated that he or she is a homosexual or bisexual, or words to that effect, unless there is a further finding . . . that the member has demonstrated that he or she is not a person who engages in, attempts to engage in, has a propensity to engage in, or intends to engage in homosexual acts.
(3) That the member has married or attempted to marry a person known to be of the same
biological sex.
Section 654(f)(3)(A) provides that the term "homosexual act" includes "any bodily contact
. . . between members of the same sex for the purpose of satisfying sexual desires."
Section 654(a), the "findings" subsection, states that "[t]he presence in the armed forces of
persons who demonstrate a propensity or intent to engage in homosexual acts would create an
unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion
that are the essence of military capability." In Congress, the sponsor of the bill asserted that
condemnation of homosexual acts is firmly rooted in Judeo-Christian moral and ethical standards,
that homosexual sodomy was a capital crime under Roman law, and that allowing homosexual
acts would cast aside thousands of years of moral teaching. The bill included a provision stating
that "[i]t is the sense of Congress that . . . the suspension of questioning concerning
homosexuality as part of the processing of individuals for accession into the Armed Forces under
the interim policy of January 29, 1993, should be continued."
Jane and Bob brought suit in federal district court against William Perry, Secretary of Defense,
seeking a declaration that section 654 violates the United States Constitution, and seeking an
injunction against its enforcement. Their challenges were against section 654 on its face and as
applied to Jane.
In their Complaint, Jane and Bob stated that they are lesbian and gay members of the United
States armed services. Although her state of residence does not officially recognize same-sex
marriages, Jane and her lover, another woman, registered themselves with the state as domestic
partners and consider themselves married. Jane's state allows any two persons to register as
domestic partners, and provides domestic partners the same rights as spouses under state laws
relating to inheritance, property, and taxation. On March 1, 1994, Jane's commanding officer sent
her a Notice entitled "Notification of Administrative Discharge by Reason of Unsuitability Due to
Homosexuality." In the Notice, Jane's commanding officer recommended Jane's discharge based
on section 654(b)(3).
On March 10, 1994, immediately after Jane and Bob filed their Complaint, Bob also received a
Notification of Administrative Discharge by Reason of Unsuitability Due to Homosexuality. In
this Notice, Bob's commanding officer recommended that Bob be discharged under section
654(b)(2), on the basis of his declaration in the Complaint that he is a homosexual. Jane and Bob
subsequently amended their Complaint to challenge the discharge proceedings against Bob as well
as those against Jane.
Do Jane and Bob have any viable claims under the United States Constitution? Please discuss
only issues covered in Constitutional Law Liberties. Do not discuss any issues related to gender.
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GOVT ACTION I
A NOT GOVT OFF PURP
NOT GOVT FUNCTION
Not trad/only
GOVT SUFF INVOLVED?
Requiring?
AG warning
Not specif auth/approv
Suff entwined?
Expul trigs review
Nature/extent of govt's action
Nature/alleged unconstlity
Free expr
DP arb sanctions
A prot by constl rt?
DISC
VAGUENESS
STANDARD
SCENES INV VIOL/CRUEL
Intermingled w/
Sexual activity
Fairly be said to
Dehumanize women
STANDING?
DISC
OVERBREADTH
REACHES PROT EXPR
Non-obscene
Disc
Indecent?
Pat off/sex activ
11 p.m. too late?
Disc
DOESN'T REACH CONDUCT
SUBST OVERBROAD?
DISC
FREE EXPR
TARGET VIOL INDEC EXPR
Content discrim
Most patently off?
EXPUL IF DEHUMANIZE WOMEN
Enhance penalty
For punishable expr
Indianapolis ord
Disc
GENDER DISCRIM
DISC
OTHER