Memorandum Of Law In Support Of . Defendant’S Motion To

1163 WordsFeb 24, 20175 Pages
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS ARGUMENT The Motion to Dismiss should be allowed because Stacey Smith’s (“Plaintiff”) conduct does not constitute expression and the Board of Education of the Town of Douglassville’s (“Douglassville”) dress code is constitutional. Nonverbal conduct constitutes expression when there is intent to convey a particularized message through the conduct, and that particularized message is likely to be understood by others. Spence v. Washington, 418 U.S. 405, 410 (1974); Texas v. Johnson, 491 U.S. 397, 401 (1989). In the present case, Plaintiff has established that she intended to convey a message of support for her friend, Fatima Ahmed, and the religion of Islam by wearing the…show more content…
I. THE COURT SHOULD GRANT THE MOTION TO DISMISS BECAUSE PLAINTIFF’S VAGUELY EXECUTED MESSAGE OF SOLIDARITY WITH HER FRIEND WAS NOT LIKELY TO BE UNDERSTOOD AS EXEMPLIFIED BY STUDENTS’ MISTAKEN BELIEF THAT PLAINTIFF WAS SUPPORTING TERRORISM. In determining whether others would be likely to comprehend the intended message the factual context in which the alleged expressive conduct occurs is paramount. Spence, 418 U.S. at 410; Johnson, 491 U.S. at 397. Other factors that influence whether the viewer is likely to understand the message includes, the timing of the conduct, the political or social conditions surrounding the conduct, and the viewer’s personal knowledge. Spence, 418 U.S. at 410. In Spence, the defendant affixed a peace sign to an American flag, which he hung upside down outside his window to protest the United States invasion of Cambodia and the Kent State killings. Id. The Court held that defendant’s conduct was likely to be understood because the activity was concurrent with the aforementioned events, which made it unlikely “for the great majority of citizens to miss the drift of [defendant’s] point at the time that he made it.” Id. Similarly, in Johnson, the Court held that the defendant’s conviction for burning the American flag in political protest violated his First Amendment right to free speech. Johnson, 491 U.S. at 397. The Court held that defendant’s burning of the flag was expressive conduct covered by
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