McGahan v
Gulfport
- Step 1 --
Decision 1: The law is probably not overbroad since it seems
fairly specifically directed at prohibiting only material of a sexual
nature as to be obscene (under
Gulfport law) and, therefore, would not be used to prosecute other sorts of
protected speech. It is probably vague
(under Connally v. General Construction 1926) because of the undefined
term "implies sexual activity." (This decision could go either
way with an appropriate explanation.)
- Step 2 --
Decision 2: Under Chaplinsky v
N.H. 1942, this is the heart of
the matter. Is the picture obscene? (The appropriate category under Chaplinsky guidelines) The evaluation of this case (go down on the chart)
involves testing whether or not the picture can be restricted as
"worthless speech?"
- Step 3 --
Testing the case against precedent: Using the precedent
case of Miller v California - test
1: a shower scene does not seem erotic enough to be classified
as "appealing to the prurient interest." [thus, not obscene]
test 2:
Under Jenkins v Georgia 1974, mere nudity is not enough to be considered
"patently offensive and, thus, it is not obscene. test 3:
Using the SLAPS test and the fact that the photographer is an award
winner, this work likely has redeeming artistic value. Thus, by
failing at least one of the Miller tests, the
work is not obscene and deserves 1st amendment protection. [
You needed to cite Miller v California. Citing one or more of
the other cases is not required but does earn you some bonus
consideration.]
Resulting
decision
- Due to vagueness the law
is unconstitutional (This could go either way with an appropriate explanation)
- The work is not obscene under
Miller -- so (either way) McGahan's conviction is overturned.
Trudison v CIA
- Step 1 --
Decision 1: The contact language
Trudison signed (effectively the "law" to be judged in this case) is not
vague. It seems quite clear as to what the "rules" are.
While the language is broad in that it restricts any material
concerning U.S. Government Activities, since it is in a contract
Trudison voluntarily signed, that question should probably have been
raised long ago by Trudison. In any case, because it restricts discussion of
activities but not opinions on public policy the court would not overturn the
injunction based on over breadth. (This decision could go the other
way if you present a good justification.)
- Step 2 -- Decision 2: The book in question
is certainly "worthwhile speech" since it deals with matters of clear
public concern in the administration of government activities. There
is no indication of lewd, obscene, defamation or fighting words
being at issue (as required under Chaplinsky). Go up on the chart
to "testing."
- Step 3 -- Testing the case against precedent: The appropriate
level one test is #2 - Balancing. Is there sufficient government
interest in national security to justify prohibiting the book?
Under Snepp v United States 1980, SCOTUS affirmed that secrecy
agreements signed by government employees are binding and First
Amendment protections cannot save the expression that is restricted under a
valid contract. In essence, the court in Snepp confirmed the lower court
decision in United States v Marchetti 1972 that treated such conflicts
as matters of contract dispute NOT free expression.
Resulting decision
- The injunction
prohibiting publication is sustained. [You need to cite Snepp v
U.S. or at least U.S. v Marchetti.]
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