Question 1:
Metropolis owns and operates 20,000-seat Lois Lane Arena. Lane Arena is surrounded by a large parking lot. Entrance to the parking lot and arena is possible only through four admission gates, one on each side of the arena. Metropolis, through a municipal arena authority, rents Lane Arena to a professional basketball team, concert promoters, organizations that sponsor conventions, and other private groups or companies willing to pay the asked-for rental fee. The city’s official rental policy, as stated in a resolution adopted by the Metropolis City Council, is that Lane Arena be available for rent by any individual, group, or entity for “any purpose that does not dishonor Metropolis or offend the sense of decency of its citizens.”
A recent action by the Metropolis Arena Authority concerning Lane Arena generated considerable controversy. The controversy involving Lane Arena concerned the decision of the Metropolis Arena Authority to reject a request by the XHL (“The Xtreme Hockey League”) to rent Lane Arena for a new professional hockey franchise, the Metropolis Puckers. In rejecting the request, the city cited the Puckers’ plan to post on the scoreboard “body counts” (counts of opposing players disabled by the rough play of the Puckers), its sponsorship by “Rot Gut Whiskey,” and its plan to have topless cheerleaders entertain fans between periods.
The XHL contends that the decision of Metropolis to reject its request to rent Lane Arena violates the First Amendment. Does it? Analyze:
a. First, what are the protections under the First Amendment?
b. Can you cite any case law that would have set precedent for your argument to support or reverse the rejection of the Puckers request?
b. Analysis of the Case and Precedent
The question of whether Metropolis's rejection of the XHL's request violates the First Amendment hinges on whether Lane Arena is considered a public forum and whether the city's policy is a constitutionally permissible restriction on speech.
The city’s official rental policy states that the arena is available for rent for “any purpose that does not dishonor Metropolis or offend the sense of decency of its citizens.” This policy is problematic from a First Amendment standpoint because it gives a government entity (the Metropolis Arena Authority) the power to regulate speech based on its content and the "decency" of its message. The city is not rejecting the Puckers' request based on neutral criteria like a lack of available dates or a failure to meet safety requirements. Instead, it is specifically citing the content of their proposed expression: "body counts," whiskey sponsorship, and topless cheerleaders. This makes the city's action a content-based restriction, which is subject to a very high level of judicial scrutiny.
The most relevant case law to support the XHL's argument is likely to be:
Cornelius v. NAACP Legal Defense & Educational Fund, Inc. (1985): While not directly related to a public arena, this case provides the legal framework for analyzing different types of government forums. The Supreme Court categorized forums into three types:
Traditional Public Forums (e.g., public streets and parks).
Designated Public Forums (public property the government has opened for expressive activity).
Non-Public Forums (public property not open to the public for speech).
Southeastern Promotions, Ltd. v. Conrad (1975): This case is a direct precedent. A municipal board denied a promoter the use of a city auditorium for the musical Hair, citing the play's obscene content. The Supreme Court ruled in favor of the promoter, stating that the board's decision was an unconstitutional prior restraint because it was not based on a valid ordinance containing neutral criteria. The Court found that the auditorium was a public forum and that the city could not deny access based on the content of the expression. This case is a powerful precedent for the XHL's argument. The Metropolis Arena is a public facility, and the city's denial of access to the XHL based on the content of their proposed "show" is a direct parallel to the Southeastern Promotions case.
In summary, the XHL has a strong argument. The Metropolis Arena, as a designated public forum, cannot be used to discriminate against speech based on its content, especially under such vague and subjective criteria as "dishonor" and "decency." The city's policy and its application to the Puckers' request constitute an unconstitutional content-based restriction on speech, and under the precedent of cases like Southeastern Promotions, the rejection of the XHL's request would likely be found to be a violation of the First Amendment.
Sample Answer
a. Protections Under the First Amendment
The First Amendment to the United States Constitution provides several fundamental protections, often referred to as the five freedoms: freedom of speech, freedom of the press, freedom of religion, freedom of assembly, and the right to petition the government. These protections are not absolute and are subject to certain limitations.
The freedom of speech is particularly relevant here. It protects not only spoken words but also various forms of expression, including symbolic speech, art, and commercial speech. The government is generally prohibited from enacting laws or policies that suppress or regulate speech based on its content. However, the level of protection can vary depending on the type of speech and the forum where the speech takes place.