Question

There is a both a science and an art to thinking like a lawyer, but the first skill set that you have to develop is critical thinking. And critical thinking is a science, which means that anyone can master it, if they will take the time to learn how.

In their book Think Critically, Facione and Gittens offer a simple mnemonic device that can help you think critically. They advocate the IDEA model:

Identify the problem and set priorities

Deepen understanding and gather relevant information

Enumerate options and anticipate consequences

Assess the situation and make a preliminary decision The IDEA model is actually a great way to think critically about the law. This exercise will provide two scenarios which present legal problems, and then use the IDEA model to help analyze the first one. Your task will be to use the IDEA model to analyze the second one on your own.

Scenario 1:

Gomez owns 10 acres of land, with highway frontage, on the road between Deming and Las Cruces. The land isn’t good for much, but he has made some income over the years by renting three billboards he has put on his land.

Recently, the county held some meetings about signage. A number of people expressed concern that their community was far too commercialized with signage. Some people argued that the value of property would increase if there was less signage. Finally, a third group expressed concern that all the signage was distracting to drivers, and presented a danger to the community. In response to these concerns, the County passed a regulation that prohibits signage except to advertise events and business which are on the land where the advertisement is. In other words, McDonalds could have a sign on its land, but could not have a billboard sign a mile away. The ordinance is to be effective soon, and Gomez is worried about losing the income that he gets from billboards. He has three billboards that are leased to three different customers; one is advertising a restaurant, one proclaims the religious beliefs of a customer, and the third is a political ad for a candidate in an upcoming election. Gomez has approached his lawyers, asking what rights, if any, he might have to continue to lease the billboards.

Note: Ignore any potential constitutional "takings" issues.

Identify the problem and set priorities

The obvious problem is that Gomez will be in violation of the law if he continues to have his billboards up after the ordinance goes in to effect. But we need to dig a bit deeper, and figure out more specifically what the problem is.

Sometimes you determine what the precise issue is by eliminating things that aren’t at issue. We know, for example, that Gomez doesn’t have a contract with the county that allows him to have billboards, so we can eliminate contract law as an issue. The First Amendment right to free speech immediately comes to mind, since the First Amendment limits the government’s right to interfere with what people want to say. So, the issue seems to be “can the government limit the right to free speech by prohibiting off-premise signage?”

Deepen understanding and gather relevant information

Once we know what the issue is, we have to conduct some research to figure out how to think about the problem. The First Amendment says that “Congress shall make no law … abridging the freedom of speech ….” The ordinance isn’t a law that Congress made, but a local ordinance, but we know that the First Amendment is interpreted to mean “the government shall make no law … abridging the freedom of speech.” And, of course, this law abridges the right of free speech.

But certainly the government can make laws that limit what people can say. The government could, for example, pass a law that says you cannot falsely yell “fire” in a crowded theater. So, that means that the First Amendment is interpreted “the government shall make no law … abridging the freedom of speech unless it is reasonable to do so under the circumstances.”

When is it reasonable for the government to limit the right to speak freely? Well, the law provides that the government may regulate the time, manner, and place of speech for the common good, but it treats speech about political and religious matters differently than it treats speech about commercial matters. It can, for example, regulate the time, place and manner of commercial speech whenever the rules are reasonably related to a legitimate goal. It can regulate the time, place and manner of speech about political and religious matters only when the speech is likely to immediately cause lawless action or presents an immediate harm.

Enumerate options and anticipate consequences

Sometimes we tend to think in absolutes. For example, it might be easy to think that the ordinance is either valid or it isn’t valid. But sometimes, the absolutes aren’t the only options. For example, there are a number of options here.

1,)The entire ordinance is valid.

2.)The ordinance is valid as it pertains to one of the billboards, but not the other two.

3.)The ordinance is valid as it pertains to two of the billboards, but not the other one.

4.)The entire ordinance is invalid.

That requires us to think about why we might treat one billboard differently from the others. What meaningful differences are there about these billboards? Well, one of the billboards is an advertisement for a restaurant, which is pure commercial speech. Another is about a religious message. The third is about a political issue. As we learned when we were gathering information, a government is much more free to regulate commercial speech than it is to regulate speech about religious and political matter.

Assess the situation and make a preliminary decision

The government can regulate the time, place, and manner of commercial speech whenever the rules are reasonably related to a legitimate goal. Regulating billboards is a form of regulating the manner of speech; the government is not prohibiting the commercial speech, it is only saying that the speech cannot be on billboards. The county has a legitimate goal of raising property values, of making the county look better, and of eliminating things that might distract drivers, and getting rid of billboards is reasonably related to those goals. So, I conclude that the County can lawfully outlaw billboards used for commercial advertising.

The government is prohibited from the regulating time, place, and manner of speech pertaining to religious and political matters unless the speech is likely to immediately cause lawless action or presents an immediate harm. There is nothing about billboards with a religious message or about a political candidate that is likely to immediately cause lawless action or presents an immediate harm. So, I conclude that the County cannot lawfully outlaw billboards used for a religious message or about a political candidate.

I will encourage Gomez to take down the billboard for the restaurant, but to challenge the County’s right to enforce the ordinance for the other two billboards. Now it is your turn:

Scenario 2

New Mexico High School is a public high school. Dyson Stevens, a senior at the high school, is point guard for the basketball team; Pauline Williams is a cheerleader. Last year, Pauline called the police, and claimed that she had been sexually assaulted by Dyson. She told the police that she and Dyson were at the same party, but not together. He cornered her in the bathroom, groped her, and began ripping her clothes off when someone came into the bathroom; Dyson fled. Dyson denied the charge, and said that they were initiating consensual sexual contact when they were interrupted. No charges were brought against Dyson.

A problem arose during the first basketball game of the season this year. Dyson had been fouled, and was at the free throw line. As was the custom, the cheerleaders were yelling him on, except for Pauline. She stepped back from the rest of the cheerleaders, turned her back to the court, and crossed her arms. Dyson took his shots, making the first one and missing the second.

Immediately afterwards, the basketball coach talked with the cheerleading coach, who then talked with Pauline. Pauline said that she was not going to cheer for someone who had tried to rape her. The coach said that she had to cheer for all of the players.

A few minutes later, Dyson was again fouled, the scene described above repeated itself; while Dyson took his free throw shots, Pauline stepped back from the rest of the cheerleaders, turned her back to the court, and crossed her arms.

Again, the cheerleading coach, this time joined by the high school principal, talked with Pauline. Again, she said that was not going to cheer for someone who tried to rape her. Again, the coach said that she had to cheer for all of the players. The principal then told her that unless she was going to cheer for all the players, including Dyson, she had no place on the cheerleading squad. She repeated that she would not cheer for Dyson. The coach then told her that she was cut from the team.

Pauline has now gone to meet with some lawyers, asking whether she can be cut from the high school cheerleading squad for refusing to cheer under the circumstance.

Your task is to work your way through the IDEA model. As this is not an exercise in legal research, I am not expecting you to conduct your own independent legal research. Instead, I am providing some excerpts from 3 separate cases that may inform your analysis. They are saved in a .pdf file under the "Files" tab. These cases provide the legal precedent or law that should be used in your analysis. As you read these materials, please keep in mind that the entire cases have not been provided rather a substantially edited version so that you have less reading.

To complete this assignment, please prepare a written analysis which should be set up using the following format and include the appropriate discussion. Identify the legal issue (This is the

1.)I - Identify in the IDEA Model) 20 points

2.)Identify both sides of the legal issue; remember, each and every legal issue is seen/argued differently depending on what side of the issue you are on. Here you need to argue all sides of the issue. (This corresponds with the D -Deepen Understanding in the IDEA Model) 20 points

3.) Analyze both sides of the issue based on the legal precedent provided; please cite the cases you used in the analysis.[1] (This corresponds with the E-Enumerate options section of the IDEA Model) 20 points

4.)Conclude the discussion by describing what you believe the outcome of the situation should be (This corresponds with the A-Assess the situation and make a preliminary decision section of the IDEA Model) 20 points

5.)Writing and presentation of analysis 20 points Total 100 Points Be thorough and pay attention to detail!

[1] Cite the cases as follows: Tinker et al v. Des Moines Independent Community School District et al; 393 U.S. 503 (1969); Hazelwood School District et al v. Kuhlmeier et al; 484 U.S. 260 (1988); Sissy Littlefield et al v. Forney Independent School District et al; 268 F.3d 275 (5th Cir. 2001).

Answer 1

1. Identify the legal issue:

The issue is that Pauline will be out from the cheerleading squad as principal and coach have the same opinion.

2. Identify both sides of the legal issue:

From Pauline point, her freedom to expression granted by First amendment has been violated. Given the past incident with Dyson, she should have her say in cheering in case of Dyson. She and Dyson were never together as had been claimed by her so her actions should not affect him in any manner.

From Dyson point of view, sexual act with Pauline was with mutual consent. Further Pauline never pressed charges against Dyson on his denial of the attempted rape. So now the actions of Pauline was considered by him more of a personal grudge. Her backing out on cheering distracted him and he missed the shot in the game.

3. Analyze both sides of the issue based on the legal precedent provided; please cite the cases you used in the analysis:

In Tinker v. Des Moines case, the Court ruled that the First Amendment applied to public schools. So in this case too it applies as New Mexico High School is a public high school. Further in their ruling, the court said that school officials can’t put checks on student speech/ expression if it did not hamper the educational process. The Hazelwood ruling also applies here as it stated “A school need not tolerate student speech that is inconsistent with its basic educational mission”. In this case, nothing like this was disrupted. It was only a sports activity. So Pauline could be allowed not to cheer.

But as this basketball game was played by students with permission of school authorities and Dyson was not an not independent entry on his own, according to Hazelwood case, school officials might put reasonable do’s and don’ts on the speech / expression of their students. So Pauline may not be allowed.

But in case of Littlefield et al v. Forney Independent School District there was an opt out clause that stated parents of students can request exemption from adhering to school policy on philosophical or religious reason. Here the reason definitely relates to philosophical as Pauline has a valid reason for asking exemption to cheer for Dyson. As it is quite possible that Dyson lied out of fear of punishment to the allegations of Pauline, and he truly was guilty of attempted rape. Pauline might not have pressed charges as she did not had evidence to support her case or may be under family pressure for not stretching it. So given her previous harassment claims, she should be allowed not to cheer and be on the team.

Options can be Dyson was true and Pauline tried to entrap him for ruining his performance with support of her friends who made the entry when the sexual act was initiated by Dyson.

4. Conclude the discussion by describing what you believe the outcome of the situation should be:

Court should look into veracity of Pauline’s objections and if found true should dismiss Dyson from game. But if those are found false, it should allow the school authorities to drop Pauline from Cheerleading team. Meanwhile school should ask both of them to stay out from the game till investigation gets over.