In the District Court

For the County of Midway in the State of Bliss

AYE LAWLESS, )
Plaintiff )
)
v. ) Case Number CV-21-1234
)
CITY OF BLIGHT, )
Defendant )

Memorandum of Law in Opposition to the Appeal

The city of Blight has not infringed upon Mr. Lawless’s First or Second Amendment

rights. Lawless’s speech combined with nonspeech conduct when he held the ceremonial

burning of masks. The open fires ordinance charged against Lawless passes the O’Brien’s

test. Thus, the ordinance is constitutional. Additionally, the permit requirement for groups

over twenty people meets the demands of a time, place, and manner restriction outlined in

both Clark v. Community for Creative Nonviolence and Forsyth County, v. Nationalist

Movement. Lastly, the semi-automatic rifles that Lawless held at the event fall under

“dangerous and unusual weapons.” Under the District of Columbia v. Heller precedent, the

city of Blight may restrict such weapons.

The Court must decide in favor of the city of Blight by determining that Lawless’s First

Amendment and Second Amendment rights were not violated. Therefore, the Court must

affirm Mr. Lawless’s four convictions.

A. Case Facts

Five years ago, a new mayor and city council decided to change the image of Blight, a

small-town suburb. In order to improve the eyesore of Blight and attract individuals from the
city, the mayor and city council passed several ordinances aimed at stopping the civil unrest

that caused Blight’s terrible decline.

One ordinance prohibits the public display of firearms. Individuals of Blight were

permitted to have firearms. However, the open carrying of firearms is prohibited. Firearms

always have to be stored in a locked container unless the owner is cleaning or firing the

weapon at a range.

The second ordinance was enacted to disperse the growing homeless communities that

scattered around Blight. The homeless were known to set open fires in metal drums

underneath overpasses of several busy highways. Thus, the ordinance banned open fires.

The final ordinance held two main purposes: reduce the homeless communities and

prevent civil unrest. The ordinance required groups of 20 or more people to apply for a

permit. Through an application, the group must identify all participants and the purpose for

the gathering. The city charges a flat $250 fee for all groups of over 20 people to covering

processing costs, security, and post-event cleanup.

The following actions resulted in Aye Lawless, the owner of Aye’s Speakeasy, receiving

citations for violating all three mentioned Blight ordinances. On March 8, 2021, Lawless

became aware of the district court’s injunction of President DeLaw’s mask mandate.

Consequently, Lawless planned a celebration event in the parking lot of Aye’s Speakeasy.

In preparation for the event, Lawless built a stage, where he placed a podium, two semi-

automatic rifles, and a metal drum. Lawless claims he had the rifles to prevent a violent

outburst and personal protection. Additionally, Lawless planned to start a fire in the metal

drum for all attendees to burn their masks to show the groups distastes for the current
government. While Lawless took the time to plan the event, he did not apply or obtain a

permit for the event.

On March 10, 2021, twenty-three people arrived at the event. At approximately 8:00 pm,

Lawless took the stage to speak to the crowd. He delivered a tirade for ten minutes on the

mask mandate, and his feelings that the government was attempting to take away citizen’s

freedoms. Lawless then, with a rifle over his head, encouraged the crowd to show their

distaste for the government by throwing their masks into the fire.

In response to Lawless’s speech, the crowd began chanting “Ignite Blight.” People in

attendance began lighting trash and other items on fire. Eventually, the group lit two cars on

fire, causing the fire and police departments to arrive on the scene. Subsequently, Lawless

was cited for violating all three ordinances outlined above, and for a separate ordinance that

prohibited inciting a riot.

On March 17, the municipal judge found Lawless guilty of all charges, including an

additional charge for inciting a riot, and the judge fined Lawless $1000. On appeal, Lawless

claims the ordinances, as applied, violated his rights under the First and Second Amendments

through the Fourteenth Amendment.

B. The city of Blight’s open fire prohibition passes the O’Brien’s test; thus, the

ordinance is a justifiable restriction on the First Amendment.

Aye Lawless asserts that the city of Blight’s restriction on open fires, as applied, violated

his First Amendment rights. However, the open fires ordinance passes the O’Brien’s test and

is constitutional.

In Texas v. Johnson, the Court states, where “speech and nonspeech elements are

combined in the same course of conduct, a sufficiently important governmental interest in

regulating the nonspeech element can justify incident limitations on the First Amendment.”

In the current case, Lawless’s speech regarding his contempt with the mask mandate and the

current government combined with the ceremonial burning of masks. Therefore, this case

presents a situation in which speech and nonspeech elements are combined in the same

conduct.

To determine if a restriction on speech by a nonspeech regulation is constitutional, the

O’Brien’s test may be employed. However, the Court specifies in Texas v. Johnson that the

O’Brien’s test is limited to cases in which the government interest is “unrelated to the

suppression of free expression.” Here, the city of Blight’s interest in prohibiting open fires is

to disperse the growing homeless population that commonly burns open fires under the

overpasses. The prohibition has no connection to the “suppression of free expression.” Thus,

the O’Brien’s test should be used in this case.

The first part of the O’Brien’s test requires the state to have a legitimate non-speech

reason for the regulation. The major and city council has a strong interest in disbanding the

growing homeless communities to improve the image of Blight. In order to improve the

image of Blight and attract new residents from the larger city, Blight needs to disperse the

homeless communities. Clearly, the city of Blight has a legitimate non-speech reason for

prohibiting open fires.

Secondly, the regulation must be narrowly tailored to meet the intended goal. The open

fire prohibition is narrowly tailored. The ordinance makes no mention of speech or other

conduct. It only prohibits open fires.

The open fire prohibition holds up against the O’Brien’s test. The city of Blight’s has a

legitimate non-speech interest in prohibiting open fires and is narrowly tailored. Therefore,
the city’s interest in regulating the nonspeech conduct justifies the incidental restriction on

the First Amendment. Accordingly, the court must affirm Mr. Lawless’s conviction under the

open fires ordinance.

C. The permit requirement for groups of twenty or more people meets the

requirements of a time, place, and manner restriction; thus, the ordinance is

constitutional.

Lawless also claims that Blight’s requirement of a permit for groups of 20 or more people

violates his First Amendment rights. The group’s ceremonial burning of their masks does

constitute symbolic speech. However, the restriction on symbolic speech imposed by the

ordinance is constitutional under the time, place, and manner restrictions outlined in Clark v.

Community for Creative Nonviolence.

The first prong of the test is the regulation must be content-neutral. The city of Blight’s

ordinance regulates all groups totaling over twenty people. It does not allow one group of

people to gather while prohibiting a different group of people. Additionally, it does not make

a distinction on the content of the group’s message. For example, a group over twenty

supporting the government is just as regulated as a group that opposes the government.

Therefore, the ordinance is content-neutral.

Lawful time, place, and manner restrictions also require the law to be narrowly tailored to

serve the government’s substantial interest. The city of Blight enacted this particular

ordinance in order to reduce the growing homeless communities and reduce civil disorder. It

had become a common practice among young adults to gather and throw rocks into passing

cars, which created unrest in the community. The ordinance certainly is narrowly tailored to

address this substantial governmental interest. The requirement of a permit for groups larger
than twenty allows the government to prevent such groups from gather and causing civil

unrest.

Lastly, the ordinance must allow other forms of communicating the same message. The

purpose of Lawless’s gathering was to celebrate the enjoining of the mask mandate and to

show contempt for the current government. Lawless and the attendees could have conveyed

this message in several different ways. For example, the group could have placed signs

outside of Aye’s Speakeasy showing support for the end of the mask mandate and their

disgust for the government’s actions. They also could have passed out flyers or called their

local representatives. Clearly, the group had other means by which they could have conveyed

their message.

The ordinance meets all of the requirements of a time, place, and manner restriction.

Thus, the ordinance is a constitutional restriction. Additionally, Lawless may argue that the

permit fee is unconstitutional, but that is not the case. In Forsyth County v. Nationalist

Movement, the Court recognizes that the government “may impose a permit requirement for

those wishing to hold a march, parade, or rally.” Any permit requirement controlling the

time, place, and manner of a march, parade, or rally must be content-neutral, connected to a

government interest, and allow ample alternatives.

It has already been established that the ordinance is content-neutral. Additionally, the fee

is a flat rate imposed on all groups, regardless of the message. The fee is also connected to

Blight’s interest in reducing civil disorder. The fee covers the cost of any necessary security

and clean-up after an event. Without imposing the $250 fee, the city of Blight would not be

able to control crowds, which could lead to unrest in the city. Lastly, we have already

asserted the various other means the group could have used to convey their message.
 Again, the ordinance requiring a permit for groups over twenty people meets all of the

requirements of a time, place, and manner restriction. Therefore, Lawless’s First Amendment

rights have not been abridged, and the court must affirm Mr. Lawless’s conviction.

D. The city of Blight’s ordinance prohibiting the open carry of a firearm does not

violate the Second Amendment following the precedent of District of Columbia v.

Heller.

The Second Amendment states, “A well regulated Militia, being necessary to the security

of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In

District of Columbia v. Heller, the Court analyzed the Second Amendment’s prefatory and

operative clauses. The Court determined that the prefatory clause, a well regulated Militia,

does not “limit or expand the scope of the operative clause.” Therefore, the Court focused

much of their analysis of a District of Columbia law prohibiting handguns on the operative

clause.

By analyzing the operative clause, the Court asserted that the Second Amendment

guarantees the right to “possess and carry weapons” in cases of self-defense to the individual.

In McDonald v. Chicago, the Court further established that the Second Amendment applied

to the states through the Fourteenth Amendment because the right to self-defense is a

fundamental right of the people.

In the present case, the city of Blight prohibits the public display of firearms. The

ordinance requires that all firearms be properly stored in a locked container except when the

weapon is used at a firing range or being cleaned. Lawless argues this ordinance violates the

Second Amendment. Although the Court, in District of Columbia v. Heller, established that
the Second Amendment guarantees the individual right to possess and carry firearms, the

Court specifically states this is not an unlimited right.

The Court supports prohibitions on felons and the mentally ill possessing firearms, laws

prohibiting firearms in sensitive places, and certain restrictions on the commercial sale of

weapons. Even more important to this case, the Court maintains that prohibitions of

“dangerous and unusual weapons,” like military-grade firearms, are constitutional. Lawless

had two semi-automatic rifles on each side of the stage, even holding one above his head

during the event. Semi-automatic rifles are certainly dangerous and unusual weapons, which

allows Blight to prohibit the open carrying of such a weapon.

Additionally, the Heller case specifically points to the right to bear arms “in case of

confrontation.” The facts of this case do not support the notion that Lawless was protecting

himself or his business in a case of confrontation. Lawless was not in any danger when he

placed the semi-automatic rifles on the stage or when he held one over his head. Therefore,

his right to possess and carry a firearm is not protected.

The city of Blight has not put a ban on all weapons. Rather, the Blight ordinance is a

constitutional restriction on the right to possess and carry a firearm. Therefore, Lawless’s

Second Amendment right has not been violated, and the Court must affirm Mr. Lawless’s

conviction under the open carry ordiance.

E. Mr. Lawless’s speech created a clear and present danger of imminent unlawful

action. Therefore, Blight can restrict such speech under the Constitution.

Mr. Lawless was additionally charged under a fourth ordinance for inciting a riot. In

Schenck v. United States, the Court established the clear and present danger test. Justice

Holmes asserted, “the question…is whether the words used are used in such circumstances
and are of such a nature as to create a clear and present danger that they will bring about the

substantive evils that Congress has a right to prevent.”

The Court expanded upon the clear and present danger test in Brandenburg v. Ohio by

stating the government cannot limit the “advocacy of the use of force or of law violation

except where such advocacy is directed to inciting or producing imminent lawless action and

is likely to incite or produce such action.” Essentially, the government can restrict speech if

the speech incites or produces imminent illegal conduct.

Following Lawless’s speech at the event at Aye’s Speakeasy, Lawless told the crowd to

burn their masks. In response, individuals began chanting “Ignite Blight.” Then, the group of

people began lighting trash and other items on fire, which were subsequently used to set two

cars on fire. Mr. Lawless’s speech was the direct cause of the crowd burning masks and

setting two cars on fire. Lawless’s words produced a clear and present danger, along with the

imminent illegal conduct. Therefore, Mr. Lawless’s conviction of inciting a riot must be

affirmed.

F. Conclusion

The city of Blight did not violate Lawless’s First Amendment or Second Amendment

rights. The open fires ordinance undoubtably passes the O’Brien’s test. Additionally, the

required permit ordinance clearly meets all of the requirements of a time, place, and manner

restriction. Third, Lawless’s semi-automatic rifle was not used for self-defense and falls into

the dangerous and usual weapon category and thus does not violate the Second Amendment.

Lastly, Mr. Lawless speech created a clear and present danger of inciting a riot. Thus, Blight

has every right to regulate such conduct. For the asserted reasons, the court must rule in favor

of the city of Bight and affirm Mr. Lawless’s four convictions.