MEMORANDUM

TO: President Spike of Saratoga State College

FROM: Joseph Wolf, Lead Counsel for Saratoga State College
DATE: 2/2/18
RE: Saratoga State Young Americans and Mr. Dick Spengler

Questions Presented
1. What are the legal implications of denying the Saratoga State Young
Americans’ request to host Dick Spengler at the College? Would a
denial be in violation of the First Amendment of the United States
Constitution?
2. If the College grants the request, what are the legal implications of
prohibiting protests of Dick Spengler?
3. If the College grants the request, what are the legal implications of
charging the Saratoga State Young Americans a fee for added security
surrounding the event?
Short Answer
For the reasons set for in the following memorandum, it is respectfully
submitted the College (1) allow the Saratoga State Young Americans to
host Mr. Dick Spengler on campus, (2) allow counter-protests on
campus, and (3) not require the Saratoga State Young Americans to pay
fees for police protection.
Facts
The Saratoga State Young Americans (herein SSYA) request to host Mr.
Dick Spengler during an event on campus. Mr. Spengler is a well-known
“American Nationalist.” Included under his penumbra of beliefs is that
the United States should be only for “Americans,” as well as the belief
that the Nanoo’s religion is the true root of violence undertaken by the
“Nanoos Against Tar Oil” splinter cell. He espouses these beliefs during
his events, often rousing both supporter and protestor clashes. Some
protestors and supporters have taken to wearing body armor and
carrying non-lethal weapons.
Saratoga State College is part of academia, thereby involving “delicate
issues concerning the academic community.”1 These concerns include

1
Feiner v. New York, 340 U.S. 315, 71 S. Ct. 303, 95 L. Ed. 295 (1951).
“the mutual interest of students, faculty members, and administrators,”2
none of whom “shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.”3 These rights, embodied by the First
Amendment of the United States Constitution, ensure “Congress shall
make no law… abridging the freedom of speech… or the right to
peaceably assemble.”4 Saratoga State College acts as the
“instrumentality of the State”5 when providing State-funded education,
and is therefore subject to the strictures and protections of the First
Amendment; provisions which apply in the questions at bar today.

Discussion
1. What are the legal implications of denying the Saratoga State Young
Americans’ request to host Dick Spengler at the College? Would a denial
be in violation of the First Amendment of the United States
Constitution?
Mr. Spengler’s views, while hurtful to some and abhorrent to others,
enjoy full First Amendment protection. Mr. Spengler’s speech falls
under the doctrine of “public speech;”6 defined as speech which can be
“fairly considered as relating to any matter of political, social, or other
concern to the community.”7 As such, Mr. Spengler’s speech “occupies
the highest rung on the hierarchy of First Amendment values.”8 So much
so it is entitled to “special protection,”9 and “cannot be restricted simply
because it is upsetting or arouses contempt,”10 regardless of the
“inappropriate or controversial character”11 of the statement.
This special protection can be washed away amid speech that
“materially and substantially disrupt[s] the work and discipline of the
school,”12 as well as speech falling under the doctrine of “fighting words.”
A “fighting words” statement is a “personally abusive epithets which,

2
Feiner v. New York, 340 U.S. 315, 71 S. Ct. 303, 95 L. Ed. 295 (1951).
3
Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S. Ct.
733, 21 L. Ed. 2d 731 (1969).
4
U.S. Const. am. 1.
5
Healy v. James, 408 U.S. 169, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972).
6
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
7
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
8
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
9
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
10
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
11
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
12
Healy v. James, 408 U.S. 169, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972).
when addressed to the ordinary citizen are, as a matter of common
knowledge, inherently likely to provoke violent reaction.”13
As a College subject to the strictures of the First Amendment, assuming
this exchange of ideas would lead to a material and substantial
disruption, and banning speech as a result, is an unconstitutional
overstep. This is because “the mere presumed presence of unwitting
listeners or viewers does not serve automatically to justify curtailing all
speech capable of giving offense,”14 since “undifferentiated fear or
apprehension of disturbance is not enough to overcome the right to
freedom of expression.”15 Rather, these protests and counter-protests are
symptoms of a healthy “marketplace of ideas”16 marked by students
being exposed to an “exchange of ideas.”17 Indeed, “there may be some
persons about with such lawless and violent proclivities”18 but that form
of protest “is an insufficient base”19 with which to ban his message.
Regarding the fighting words doctrine, much like the case Snyder v.
Phelps, in which the Supreme Court held “there can be no serious claim
that Westboro's picketing did not represent its "honestly believed" views
on public issues,”20 there can be no serious claim that Mr. Spengler does
not truly abide by his beliefs which he espouses as events across the
country. There is no “pre-existing relationship or conflict”21 between Mr.
Spengler and the people he speaks about that might suggest his
speeches are “mask[ed]”22 as “an attack.”23 Rather, his speech is said
peacefully, and is “the mere abstract teaching”24 of a moral philosophy
or call to action which is not acutely “directed to the person of the
hearer”25 with the intention of being a “personal insult.”26 Since Mr.
Spengler’s speech can be “fairly considered as relating to any matter of

13
Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971).
14
Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971).
15
Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S. Ct.
733, 21 L. Ed. 2d 731 (1969).
16
Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S. Ct.
733, 21 L. Ed. 2d 731 (1969).
17
Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S. Ct.
733, 21 L. Ed. 2d 731 (1969).
18
Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971).
19
Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971).
20
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
21
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
22
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
23
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
24
Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969).
25
Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971).
26
Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971).
political, social, or other concern to the community,”27 entitling it to
“special protection,”28 and is not “mask[ed]”29 as “an attack,”30 the
fighting words doctrine does not apply.
While Mr. Spengler has a right to speak his message, the College does
also have “the power to protect itself and its property.” 31 This can be
done by expecting “students adhere to generally accepted standards of
conduct,”32 as well as ensuring appropriate “time, place, or manner
restrictions”33 regarding the event. Considering the ability for a College
to prevent associational activities which “infringe on reasonable campus
rules,”34 it would be well within the purview of the police power of the
College to ask SSYA to “affirm in advance its willingness to adhere to
reasonable campus law.”35 This advanced agreement between the
College and the group was upheld by the United States Supreme Court
in Healy v. James, and it ensures “an agreement to conform with
reasonable standards respecting conduct.”36 This enables the College to
adequately prepare for Mr. Spengler, his supporters, and his protestors.
If, upon an inspection of campus rules, non-lethal weapons such as
pepper spray are banned, along with the wearing of body armor, it would
be reasonable to ask the group to ensure such weapons will not be
brought to the event, as well as asking to ensure mass assault and
unrest will not occur.

2. If the College grants the request, what are the legal implications of
prohibiting protests of Dick Spengler?
Protest is undoubtedly a form of speech, as exhibited by Snyder v.
Phelps, where the United States Supreme Court held that members of
the Westboro Baptist Church were lawfully exercising their First
Amendment rights even whilst protesting a funeral by using offensive
and directed signs. Furthermore, by protesting in opposition to the

27
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
28
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
29
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
30
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
31
Healy v. James, 408 U.S. 169, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972).
32
Healy v. James, 408 U.S. 169, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972).
33
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
34
Healy v. James, 408 U.S. 169, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972).
35
Healy v. James, 408 U.S. 169, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972).
36
Healy v. James, 408 U.S. 169, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972).
views of Mr. Spengler, the protestor’s speech falls into the category of
speech that is a matter of public concern.
A public College’s campus is certainly a public place in the context of
First Amendment considerations. Specifically, a public College on public
streets, is “a traditional public forum”37 commonly “used for public
assembly and debate.”38 Moreover, considering the nature of a College,
where “the classroom is peculiarly the marketplace of ideas,” 39 “the
vigilant protection of constitutional freedoms is nowhere more vital.” 40
Student’s require “wide exposure to that robust exchange of ideas which
discovers truth out of a multitude of tongues, rather than through any
kind of authoritative selection.”41 Thus, it is evident that a public college
campus is a public place requiring free speech protections.
Therefore, since the protest would be occurring in a public place and
dealing with a matter of public concerns the protest would be entitled to
“special protection”42 under the First Amendment. These special
protections prevent speech from being restricted “simply because it is
upsetting or arouses contempt.”43 Indeed, “there may be some persons
about with such lawless and violent proclivities, but that is an
insufficient base”44 with which to base a ban on the protestors ability to
speak and associate.
While banning the protests is unconstitutional, SSU can limit possible
protestor and speaker conflicts in a variety of ways. The first important
way is to work with the protestors ahead of time, and ask the protestors
to “adhere to generally accepted standards of conduct,”45 as upheld by
the United States Supreme Court in Healy v. James. This could include
asking to not bring weapons which may violate the College code of
conduct. Additionally, ensuring the protestors adhere to well

37
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
38
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
39
Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S. Ct.
733, 21 L. Ed. 2d 731 (1969).
40
Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S. Ct.
733, 21 L. Ed. 2d 731 (1969).
41
Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S. Ct.
733, 21 L. Ed. 2d 731 (1969).
42
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
43
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
44
Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971).
45
Healy v. James, 408 U.S. 169, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972).
established “time, place, or manner restrictions”46 will assist the police
in maintaining order.
These “time, place or manner restrictions”47 enable the University to
utilize “protest zones” where “the picketing could be staged.”48 This form
of limitation can be seen in the case Snyder v. Phelps, where the
Westboro Baptist Church was required to protest in designated protest
areas. Much like those protest zones, designated areas on this College
campus providing space for the protestors would, with police assistance,
prevent conflict between the groups, all the while ensuring the
protester’s right to speak and associate is upheld.

3. If the College grants the request, what are the legal implications of
charging the Saratoga State Young Americans a fee for added security
surrounding the event?
Requiring SSYA to pay an additional fee for added security during the
event “is a prior restraint of speech.”49 In order to survive Constitutional
muster, a prior restraint must “not be based on the content of the
message, must be narrowly tailored to serve a significant governmental
interest, and must leave open ample alternatives for communication.”50
Charging SSYA additional fees for police involvement due to “the mere
presumed presence of unwitting listeners or viewers” 51 is a content-
based restriction, thereby failing Constitutional muster. These police
costs are “associated with the public’s reaction to the speech”52 which “is
not a content neutral basis for regulation.”53 For example, in Forsyth
County v. Nationalist Movement, the United States Supreme Court
struck down, on grounds of prior restraint, a provision which allowed a
governmental official to impose a fee based on police involvement.
Similarly, here, Saratoga State cannot require the student group to pay

46
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
47
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
48
Snyder v. Phelps, 131 S. Ct. 1207, 562 U.S. 443, 179 L. Ed. 2d 172 (2011).
49
Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed.
2d 101 (1992).
50
Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed.
2d 101 (1992).
51
Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971).
52
Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed.
2d 101 (1992).
53
Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed.
2d 101 (1992).
towards the cost of security, since that too would function as a restraint
on speech.
This is because “speech cannot be financially burdened, any more than
it can be punished or banned, simply because it might offend a hostile
mob.”54 This form of prior restraint “cannot be tolerated under the First
Amendment”55 and cannot be saved simply by arguing the need for
“raising revenue for police services”56 “in the pursuance of necessary and
reasonable protection of persons.”57 A fee of any price, even a nominal
one, that hinges on the “public’s reaction to the speech”58 is
unconstitutional, since “a tax based on the content of speech does not
become more constitutional because it is a small tax.”59

Conclusion
The special considerations involved in “delicate issues concerning the
academic community”60 demands certain rights be upheld, since “the
classroom is peculiarly the marketplace of ideas.”61 This important
marketplace requires “vigilant protection of constitutional freedoms” 62
embodied in The First Amendment; a cornerstone of our Constitution.
Indeed, “the mere presumed presence of unwitting listeners or viewers
does not serve automatically to justify curtailing all speech capable of
giving offense,”63 since “undifferentiated fear or apprehension of
disturbance is not enough to overcome the right to freedom of
expression.”64 Rather, “as a nation we have chosen a different course- to

54
Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed.
2d 101 (1992).
55
Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed.
2d 101 (1992).
56
Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed.
2d 101 (1992).
57
Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed.
2d 101 (1992).
58
Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed.
2d 101 (1992).
59
Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed.
2d 101 (1992).
60
Feiner v. New York, 340 U.S. 315, 71 S. Ct. 303, 95 L. Ed. 295 (1951).
61
Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S. Ct.
733, 21 L. Ed. 2d 731 (1969).
62
Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S. Ct.
733, 21 L. Ed. 2d 731 (1969).
63
Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971).
64
Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S. Ct.
733, 21 L. Ed. 2d 731 (1969).
protect even hurtful speech on public issues to ensure that we do not
stifle public debate.”65
For the reasons set for in the above memorandum, it is respectfully
submitted the College (1) allow the Saratoga State Young Americans to
host Mr. Dick Spengler on campus, (2) allow counter-protests on
campus, and (3) not require SSYA to pay increased fees for police
protection.

Sincerely,

____________________________
Joseph Wolf
Lead Counsel for Saratoga State College

65
Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S. Ct.
733, 21 L. Ed. 2d 731 (1969).