Semester Project Overview

For this assignment, you will write a bench memo that identifies a  CURRENT  constitutional problem, gives facts of the situation, analyzes at least two views on the issue, analyzes the question using at least two judicial interpretation styles, identifies the impact of either party succeeding in having their view adopted, what you would decide.

You MUST have my approval for your topic.  You must submit a proposal in writing to Blackboard before the deadline listed in the course schedule.   If you do an unapproved proposal you will receive a zero for the final project.

In your proposal and paper you will make identify an open constitutional question and analyze it using sound legal analysis techniques.  You must include at least two any opposing points of view.  You must argue that a problem exists, that the problem warrants your claim, and that your solution solves the problem. A descriptive paper or extended literature review will not meet the standards of research and argument sought here.

You may use readings assigned in class to construct the arguments; however, you must also use outside sources.

Basic Structure:  See examples of bench memos posted to Blackboard 

Be sure your paper contains the following parts:

  1. State the issue(s) in the case;
  2. State the facts of the case
  3. Describe what the current law is based on the holdings of cases you have read for the course. Cite cases by name and restate holdings; Be sure to include standard of review—if in dispute identify all standards applicable.
  4. Apply the law to the fact situation stating each party’s arguments and the law they use to support their argument (Note you will have at least two separate opposing sections here)
  5. Describe differences between the fact situation you are analyzing and the fact situation in the cases you cited which might lead to a different outcome than what you indicated in step 3;
  6. Discuss the fundamental nature of the legal conflict, the public policy issues involved, the outcome using at least two interpretive styles.
  7. State how you would decide the case if you were the judge.

A very basic example: (Copied from  with  changes made)

Facts: Benny Boffo, a disabled Vietnam Vet, sculpts large, gruesome anti-

war statues. In the front yard of his house at the corner of

19th and Holloway Avenues he erects a 20′ statue of a wounded

soldier holding a banner with the word “Why?” on it. The following

month he erects another 20′ statue of another wounded soldier with

a banner which says “Never again”. Each month thereafter he erects

another similar statue. A year later the S.F. Board of supervisors

enacts a law prohibiting the erection of political sculptures over

5′ high in front yards in San Francisco. When Boffo refuses to take

down the sculptures he is criminally prosecuted under the new law.

Based on class readings analyze this fact situation.


  1. The issue

Does the SF ordinance unconstitutionally infringe on Boffo’s  first amendment right of free expression.

  1. Facts
  2. The law

The first amendment of the U.S. constitution prohibits the federal government from making any law abridging the freedom of speech. This prohibition has been applied to the states (and their political subdivisions such as cities) via the due process clause of the fourteenth amendment. So generally courts look with disfavor on any law which abridges the freedom of speech. “Speech” has been interpreted to include non-verbal expression, so a sculpture — particularly one with a written word or words on it would constitute speech. However freedom of speech is not absolute.

Courts have held that the first amendment does not protect people who use speech to incite violence or cry “fire” in a crowded theater. In the Stover case the NY court of appeals held that hanging rags and scarecrows on multiple clotheslines in the defendant’s front yard to protest taxes was not a form of speech protected by the first amendment and that a city may prohibit locating clotheslines in a front yard without violating the first amendment. They viewed this as “bizarre” behavior whose value lay in its form rather than its content. Just as cities may reasonably regulate the time, place, and manner of parades or speeches, they should arguably be able to reasonably regulate the “manner” of communication. Since there were other avenues open to defendants to express their ideas the court permitted the law to stand.

  1. Applying the law to these facts

Boffo claims freedom of speech …..  His sculptures are a form of political speech so receive strict scrutiny protection and the city has not shown a compelling interest in having the statues removed.

The City asserts … not. This situation is similar to Stover in that Boffo’s actions are arguably “bizarre”, his form of speech offensive to community standards, and there are other avenues of communication open to him. Limiting such statues to five feet is arguably a reasonable regulation.

  1. Differences between these facts and facts of the cases that might

lead to a different outcome.

There are some important differences between these facts and the Stover case which might lead a court to decide against the city and in favor of Boffo. If the ordinance just regulates “political” sculptures it is not content neutral and should be struck down. Boffo’s sculptures of wounded soldiers are more directly connected to his anti-war message than Stovers’ rags were to a protest against high taxes. Unlike Stover Boffo’s sculptures contain verbal communication — written words which arguably should receive greater protection than abstract non-verbal communication. Unlike the Stover ordinance, there is no procedure for a hardship appeal in the San Francisco ordinance. Since Boffo is disabled he may have fewer avenues of communication open to him; for example his disability might make it impossible to picket or make speeches. One or more of these differences might make a court to decide in Boffo’s favor.

  1. The fundamental nature of the legal conflict, the public policy issues

involved and what the law should be.

This situation presents a conflict between an individual property owner’s right to express his opinion, even in an unconventional way, versus society’s interest in an aesthetically pleasing built environment free from bizarre and jarring artifacts. On the one hand society should protect “the right to be different” and allow people to use their own property as they see fit so long as it does not affect other people’s health, safety (and perhaps welfare or morals). The more we let majority opinion govern how people may use their property the less free our society becomes. We stifle individuality, creativity, and the clash of competing points of view. Political discourse is often jarring. Unpopular points of view by their very nature are upsetting to some people.

Use two different interpretative styles to analyze the case:

Using  Originalist review……

Using Pragmatic review ……

  1. Act as judge and make your own decision citing the law and facts which you find persuasive.

If I am the judge on the case I would rule … uphold the ordinance because ……..  Even though Boffo’s sculptures may be jarring and offensive the overriding value of protecting individual freedom must take precedence here. The ordinance should be struck down.

General Requirements

Content and Length

  • Focused, specific, well-organized information, sound reasoning, and evidence used to support a claim
  • Adequate development and coverage
  • Length: 8-12 typed pages (8 pages is about 2000 words)
  • Minimum: 3,000 words-It is highly unlikely that a paper of this length will get a high grade.
  • Title page or bibliography do not count toward the page or word requirement.
  • The paper is to be in 12 pt Times New Roman font, double spaced with 1 inch margins. Use of larger type, spacing or margins to stretch your paper will receive a 50 % grade deduction.
  • A Bibliography must be included with the final paper submission.
  • You are to use footnote OR endnote reference style. Parenthetical citation format is NOT acceptable. You are to use Chicago style citations.  The Chicago style manual is available for free on the web at    The Writing Center webpage has tutorials on citation formatting.
  • Footnotes/endnotes do not count toward the word requirement. Properly inserted footnotes or endnotes can be deleted from word count function in word processing programs. Be sure you properly insert footnotes or endnotes to avoid a word/length issue with your paper.   All word processing programs have free tutorials on the web.


  • Minimum of 7 cases cited in paper by footnote/endnote
  • You may also use a variety of government, scholarly or reputable news sources. See source suggestions and requirements below.   If you are unsure if the source qualifies, speak to me.
  • Citation by Chicago style manual.
  • Correct Bibliography must be submitted with your final paper.


You must submit the final draft of your paper through Blackboard under Semester Project submission and it must be reviewed by TurnItIn.  When you submit your paper through the assignment listed on Blackboard  TurnItIn will automatically review your paper.  TurnItIn only accepts Word or pdf format.  If you do not know how to use TurnItIn see the tutorials on Blackboard. DO NOT submit your paper through

Source Suggestions

  • It is best to keep a detailed bibliographic record from the beginning of your research. Note: You may find Zotero or other available citation source helpful.  See
  • Also, begin to keep a record (note cards, note pages, notebook) of information you find and its location in a specific source as soon as you begin reading about your topic.

Source Requirements

  • Use Internet sources only if you can prove the credibility of the source. [This refers to sources written for and found only on the Internet, not to copies of articles appearing in print and presented on a publication web site or to official government websites.]
  • Your major sources should be SCOTUS case law.
  • If you use sources other than case law. Do not rely on only one type of source for your information. Minimize use of newspapers and popular periodicals. Look for scholarly journals and books (helpful for background analysis), government documents, speeches, and interviews.
  • Wikipedia, encyclopedia, or other general reference work do not count as a source. Chat rooms and article comments do not count as sources.
  • Do not rely on only one or two sources for the majority of your information. For example, do not use three sources for 90 percent of the information in your paper and then add one-sentence notes from three other sources just to meet the requirement.
  • Different cases, or articles from on-line symposiums or government agencies/officials count as separate sources if they offer differing viewpoints.

What to consider in evaluating your non-SCOTUS case law sources:

  • Publisher:

Government sources, major publishing houses, university presses, recognized news services

date (relevance and timeliness)

acknowledged or observable bias of entire publication

  • Author:

qualifications and related experience

prior publications

acknowledged or observable bias

  • Content:

primary or secondary source?

types of evidence presented: statistical, factual, expert opinions, personal opinions, logically explained and supported arguments, examples, illustrations.

  • Audience: intended audience and its special interests or objectivity.
  • Evaluating Internet sources: Besides the above information,
  • look at the website address for hints. (gov = government, org = organization, edu = educational institution)
  • look at links, bibliography, any source information offered.
  • look at the quality of presentation & do not use chat rooms as sources.

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