BEST ANSWER TO QUESTION #1

The first question that must be addressed is whether the NAB policy is considered "state action." The Constitution (Const.) only protects government action, not private action. According to the facts, NAB is a private association so, in order to have the Const. apply, there must be some other government action. To do this, WMCL can argue that the agency is in fact a government official purporting to act as such, but it doesn't appear to be. It can also argue that the agency is doing a government function that is traditionally and exclusively done by the government. This may be a viable argument in that generally, the FCC, a government body takes are of such regulation. Or, WMCL can argue that the government is sufficiently involved in the allegedly unconstitutional act by either requiring, specifically authorizing and approving, or being sufficiently entwined with it. This is WMCL's best argument. The government, through Janet Reno, is requiring immediate action and in response, in order to keep its licenses, WMCL and others must follow the resultant regulations of NAB. The state of course would argue that as in liquor license cases, it is not enough that they have regulations, but there needs to be more.

If there is no state action, WMCL would have no constitutional case. So assuming there is state action, the next issue is whether NAB's regulations would be considered violation of the 1st Amendment freedom of expression.

In addressing this, it must first be determined whether the regulations are restricting speech or expression or something else. Here, as in the nude dancing cases, the live sex shows may be considered a form of expression, but is mot likely considered symbolic expression. The scope of the freedom of speech includes symbolic speech. But the question then becomes whether the regulation is restricting conduct or the content of the expression.

First WMCL must establish that the sex shows are intended to communicate a message and are likely to be understood. In this case it would likely be as nude dancing has been found to be, but only marginally so. Then WMCL must establish that the acts have only communicative impact. Here they would likely fail because as with obscenity (to be addressed later) other effects come from this such as the evil of public nudity, resultant conduct of the viewers, prostitution, and other secondary effects. The regulations are not related only to the suppression of expression therefore and thereby, the acts are not going to be given the same protection as pure speech. If they were, the government would have to meet the strict scrutiny test. But since they aren't, it is an indirect abridgement and the government must show the restriction is necessary to serve a substantial government interest and that adequate alternatives for the expression are left. The government could most likely meet this standard as with the nude dancing cases.

Another issue is whether these regulations restrict freedom of the press. The regulations are considered prior restraint since they chill speech before it occurs. The press cannot be prior restrained unless the speech will surely result in immediate irreparable harm to the country or its people. We don't have that here--especially if the Pentagon Papers couldn't meet the test.

However, sufficient governmental interests for prior restraint have been found for national security reasons, preserving a fair trial, if it was contracted for, and if it is obscenity.

So the next question would then be if WMCL was broadcasting obscenity. Obscenity is defined in the Miller case as:

(a) Appeals to prurient interests. This means that it tends to excite shameful or morbid interest in sex in an unhealthy way. This is per the average person applying contemporary community standards. This would likely be met in this case.

(b) The work depicts or describes in a patently offensive way, sexual conduct defined by community standards. Per the facts this is also present.

(c) The last element in the definition is that taken as a whole, it lacks serious, literary, artistic, political, or scientific value. At this juncture, as argued under symbolic speech, WMCL would argue that it is artistic expression and follow the argument outlined above.

If all 3 elements are met, the show would be depicting obscenity, which is unprotected speech, and WMCL would then have the burden of establishing the rational basis standard that the regs are not rationally related to a legitimate state interest. Here there is great deference to the legislature and WMCL would likely lose because of the state's interest in preventing greater harms such as crime, quality of community, and morality.

Even if obscenity is found, the regulations may still be unconstitutional under a statutory validity analysis.

First, whether the regulations are vague. To determine this, the court asks whether persons of common intelligence must guess at the statute's meaning. Regulation 1 is likely vague as it is unclear what would be prohibited as "involving violence or cruelty intermingled with sexual activity." What is violent, who will decide? What is cruelty? What is sexual activity?

Regulation 2 is most likely not vague.

Regulation 3 is equally vague in that it is not clear what "dehumanize women" means! How will any broadcaster decide whether they are violating the regs.

Also, where a statute is so vague, there will be a procedural due process notice problem because they will not have notice as to what is unlawful.

The only way the regs wouldn't fail under vagueness is if WMCL falls withing the hard core of the regs. If it did, it would lack standing to challenge it. If not, it could challenge it. Because the terms of the regs are so unclear, WMCL will likely have standing because it is hard to tell who would be in its hard core. But the state will argue that the scenes shown by WMCL clearly were in the hard core! WMCL has no standing.

The regs can also be challenged under overbreadth. This is where the regulations reach protected expression. If it does, the regs will be unconstitutional. Particularly where the regs reach conduct, not just speech as here, the overbreadth must be substantial in relation to the regs plainly legitimate sweep. Whether the regs reach protected speech was addressed above. Over breadth would be an argument that WMCL could win on if it was considered protected speech or conduct.

The regulations are also problematic in that they are content discriminatory. The government can make regulations that proscribe or restrict an area, but it cannot make the further content discrimination of proscribing, for example, here, only violent or cruel intermingled with sexual activity or those that dehumanize women.

The state can argue that the whole purpose behind restricting obscenity is the physical reaction that it causes in people and their actions following viewing of obscurity. It could argue that violent sexual behavior has the same consequence as does dehumanizing of women--that this causes increased rapes, wife beating, etc. This would be a strong argument especially because it is connected with obscenity.

Another problem is with the increased penalty of #3 for dehumanizing women. This would likely be a violation because it is arguably content-based enhancement of penalty. WMCL should argue that it is going to only speech and not conduct. If that were the case, WMCL would prevail because the government cannot enhance penalties when based on speech, but can when based on conduct.

Lastly, the showing can be regulated as to time, place, and manner because of its at least offensive or indecent representations. The state has an interest, especially when TV goes into the privacy of the home, in regulating this type of "speech." The regulations as to the time and place and the warning by the broadcaster is probably sufficient protection by WMCL.

BEST ANSWER TO QUESTION # 2

The 5th and 14th Amendments prevent both federal and state governments from depriving any person of "life, liberty, or property without due process of law." The government may not act as arbitrarily and unfairly as it wants. The Due Process Clause only applies when life, liberty, or property are taken. "Liberty" encompasses freedom from bodily restraint, right to contract, right to engage in lawful occupations, right to marry, freedom of religion, and the right against self-incrimination. Jane and Bob's strongest argument would fall under the right to engage in lawful occupation.

The factors that the court will consider are (1) whether the interest of the parties is protected; (2) the breadth of the injury; and (3) the state's prior characterization (by statute) of the interest as an interest in liberty or property. Due process is a right to be heard. The procedure implemented to preserve this right is determined by the amount of information needed to ensure that erroneous deprivations will not be made. The Court usually applies a balancing test, considering the strength of private interests in jeopardy multiplied by the risk of erroneous deprivation of that interest and the grievousness of the potential loss to the recipient versus the governments interest (the fiscal and administrative expense of the procedural requirement).

There are two exceptions to the due process requirements: (1) waiver; and (2) exclusionary proceedings. In order to constitute waiver, a person must first be informed of his/her rights. Here, the statute could constitute a notice, even if it is merely constructive. The exclusionary policy does not apply in this case.

I don't believe that Jane's rights have been violated with respect to the Due Process Clause. Bob's rights, on the other hand, have been because he should have been given an opportunity, pursuant to 654(b)(2) to "demonstrate that he . . . is not a person who engages in, attempts to engage in . . . homosexual acts."

Substantive due process is used to protect fundamental rights to privacy and personal freedom. Government action is usually evaluated in terms of its reasonableness as a means of effectuating a legitimate state objective. A state regulation must be evaluated in terms of means, ends, and effect. The means employed must bear a substantial relation to the objective of the legislature. The ends or objectives must be legitimate and substantial. Finally, if the effect of legislation is to substantially infringe upon liberty or property interests, then the law may violate due process. The 14th amendment protects both economic and non-economic rights such as the right to privacy and personal freedom. These non-economic rights are not explicit and emanate from the 1st, 4th, 5th, and 9th amendments, and in the concept of liberty guaranteed by the 14th amendment. Liberty is a "unitary concept embracing all interests valued by sensible men." The Court must first determine that constitutionality of the infringement on a person's liberty and the degree of justification that must be shown to successfully defend that infringement.

However, not all personal freedoms are protected by the Due Process Clause. The 14th Amendment only guarantees personal rights that can be deemed fundamental rights or rights "implicit in the concept of ordered liberty." For example, this guarantee of personal privacy includes marriage and the right to raise children and acquire knowledge. The courts have generally refused to protect the pursuit of unconventional lifestyles like homosexual and adulterous relationships. A state's showing of a rational connection between the regulation and the promotion of safety to persons and property is sufficient to withstand a right to privacy attack. Taking these factors into consideration, it is unlikely that a substantive due process claim will succeed.

Bob and Jane's rights may have been violated under the Equal Protection Clause. The class that the statute is discriminating against is not a traditional suspect class or even semi-suspect class (race, national origin, gender, and alienage). Although courts are very reluctant to expand the list of suspect classification, it, may be a possible argument. The factors for determining whether a classification is suspect are: (1) whether the classified group is frequently the object of discrimination such that the group is deemed a "perennial loser in the political struggle"; and (2) whether the discrimination was intentional. The statute at issue here is facially discriminatory against practicing homosexuals. The court must decide whether homosexuals are usually discriminated against. Purposeful discrimination may be inferred from a community's prior acts of discrimination, legislative history of statute, absence of other reasons for passing statute, or departure from normal procedures in passing the statute. Again, it is extremely unlikely that the Court will expand its list of suspect classifications to include homosexuals. I don't think that they can be considered a discrete insular minority under these circumstances.

Since a fundamental right also has not been violated, the appropriate standard of review in this case is the mere rationality standard. Under this standard, the statutory classification will be upheld if it could conceivably bear rational relationship to a permissible governmental objective. The regulation cannot be purely arbitrary and the governmental objective must be legitimate. Bob and Jane's claim under the Equal Protection Clause is going to fail.

There may also be a violation of the Establishment Clause because of the sponsor's obvious imposition of his religious beliefs. The Lemon test provides that (1) the primary or principal effect must neither advance nor inhibit religion; (2) the state action must have a legitimate purpose; and (3) there must be no excessive government entanglement with religion. Here, the purpose of the statute seems to be to impose the sponsor's moral and religious beliefs on the military. The government must demonstrate a legitimate purpose. The adoption of the sponsor's philosophy may also be seen as an endorsement of the particular view. This argument may have a chance of succeeding.

The Free Exercise Clause may also be violated.