I am posting this feedback memorandum earlier than usual, because I will be away on a research leave and sabbatical, respectively, for the entire Summer and Fall terms for 2002. I shall not return to Gainesville until the start of the Spring 2003 semester, in January, and I will thus not be available for exam review until then. Accordingly, I will provide some comments on the overall compliance with the exam rules, and on the substance of the answers.
DUE DATE. This was not a problem.
WHAT MUST BE TURNED IN?: Everyone turned in their diskette and hard copy. Only one person made an error and saved a blank file instead of their exam.
PROBLEMS. There do not appear to have been any problems with the exam. I received exams for all the students who were active in the class throughout the semester.
USE EXAM NUMBERS ONLY. This was not a problem either in the printed copies or in the computer files. Only one student made an error with their exam number and the Office of Student Affairs quickly figured it out (this is pretty typical, one student usually uses an old exam number).
GRADUATING SENIORS. Five graduating seniors received grades, which were posted early during the grading period.
HONOR CODE. None of which I am aware.
LIMITED LENGTH OF ANSWER. Despite the instructions' prohibition of footnotes, several students used them. I was lenient on this, as long as the footnotes were included in the word count. One student failed to include endnotes in the length certification, and thus went over the length limit by almost 700 words! But this was the only case in which the length limit was violated. Otherwise, the limited length rule did not generally appear to be a problem for the overwhelming majority of students. Additionally, all but one student provided the required certification and the diskette for easy double-checking of the length.
TIME. Obviously, this did not seem to be a problem, given that this was a take home exam, that was handed out weeks prior to the end of the course.
ANSWERS GENERALLY. I discuss this below, but remember the general guidelines, you were expected to:
1) Show that you have a command of the material we covered in class that is pertinent to your answer.
2) Show that you can identify analogous American legal concepts and materials that are the proper subject of comparative analysis.
3) Finally, you should discuss the factual or legal factors disclosed by your research in a thoughtful and original manner that shows your command of the material related to our course. This last part is especially important if you wish to earn a high grade.
It is important to note, however, that this meant covering all three topics in an interesting essay. Incorporated all three types of analysis throughout, rather than as separate sections was a much more effective method of writing the answer.
QUESTION
On April 26, 2002, the French Parliament approved a bill that amends the French Penal Code by inserting the following new Article:
Article 315b
(a) Any person who artificially produces any visual depictions of any minor appearing to engage in, or appearing to assist any other person to engage in, any sexually explicit conduct, shall be punished as provided under sub-article (c).
(b) "Artificially produces" means that the sex acts that appear in the visual depiction did not actually occur, but rather existing graphics were manipulated, or completely "virtual" graphics were generated, by electronic means, or that actual individuals were "posed" in order to create the impression that the generated visual does in fact depict a sex act of the kind described in sub-article (a).
(c) Any individual who violates, or attempts or conspires to violate, this article shall be fined under this Code or imprisoned not less than 10 years nor more than 20 years, or both, but if such person has one prior conviction for a crime relating to the sexual exploitation of children, such person shall be fined under this Code and imprisoned for not less than 15 years nor more than 30 years, but if such person has 2 or more prior convictions relating to the sexual exploitation of children, such person shall be fined under this Code and imprisoned not less than 30 years nor more than life.
(d) Any organization that violates, or attempts or conspires to violate, this article shall be fined under this Code.
You represent the director (an individual) and the production
company (a corporation) of the yet-to-be distributed 2001 French
movie Lolita. They wish to file (or to cause the filing
of) a complaint or petition in an appropriate body to challenge
the constitutionality of this law. Assume that for both legal
and practical reasons, it would be best for the holder of the
copyright over the movie to pursue, by whatever means available,
the filing of this constitutional complaint
Assuming that only French law applies to this situation, prepare
a memorandum that explains how such constitutional review would
take place in France and what the possible results of such procedure
would be. Your discussion should address at least the following
issues: (a) who can file the complaint; (b) which French governmental
body has jurisdiction over such a complaint and why; (c) when
must the complaint be filed and when is it likely to be resolved;
(d) what procedure and law would generally be followed in filing
the complaint and resolving it; (e) assuming that the complaint
is successful, what effect would the judgment have.
Compare the French process to how such a matter might be handled
by the federal court system in the United States.
You may find the text of the French Constitution at:
http://www.assemblee-nationale.fr/english/8ab.asp
The total exam score was 480 points. I deducted points (about 5% of the score) for failure to certify the word count and for other procedural errors. Deductions for going over the length requirement could be as high as the percentage by which the word count is exceeded.
Overall, I expected a memo or essay to be drafted which incorporated comparative US/French discussion everywhere, rather than in separate sections. That is what provides a better comparative context for the discussion. Moreover, I was looking for strong, interesting essays discussing the factual pattern and the relative qualities of the French and American constitutional review systems.
Initially, you had to identify the copyright holder by making reference to the readings on Huston v. Societè (the colorization case that we studied). The readings here clarify that the holder of the copyright under US law is the producer, but under French law the director, and his or her legal heirs, have those rights, including those to the artistic integrity of the work. There is also an interesting question of who would be prosecutable under the statute (probably everyone). There is also the technical question of statutory interpretation about 315b(c) or (d) applying depending on your answer to this question. This one was really designed to test whether you were paying attention during different parts of the readings, and to see how you resolved the many standing questions raised by the fact-pattern that make the matter different from a traditional U.S. case.
I thought it reasonable to assume that the production company would have the economic rights to the film, whereas the director would keep the moral rights to the artistic integrity of the work.
(a) Nevertheless, because of the special constitutional rules in French law, the individuals, be they persons or corporations, lack standing to file the Constitutional complaint. So, while it would be best for the director to pursue it under my convoluted factual set-up, lobbying their government is essentially the only remedy available at this stage, as the fact-pattern is set up.
Lobbying against passage, as you would do in the US, has not worked, therefore, you have to convince any of the privileged persons under Article 61 of the French Constitution to file: the President, Prime Minister, Presidents of the Chamber of Deputies or Senate or any sixty parliamentarians (the 1974 reform).
Here some students constructed good discussions about lobbying against passage in the U.S. and then lobbying the President to veto the bill. In France, lobbying would be used by the producer to get one of the persons who are allowed to file or the sixty parliamentarians to file the complaint with the constitutional council (the "referral" under French law).
(b) The Constitutional Council has jurisdiction over this complaint because it is still in the time between approval by the legislature and final signature by the President. Here you could have explained the composition and role of the council under the 1958 Constitution. Here, or in discussion of the substance of the complaint, you could discuss the changing role of the council from protector of the prerogatives of the President, vis a vis the legislature, to a protector of individual rights against legislative encroachment. Unlike this abstract norm control, in the U.S., the only choice would be concrete norm control and thus the filing of suit. You might file a declaratory judgment action preemptively, or you might wait until being prosecuted for violation of the law. There is an important difference in that in France you have only one body that can do this, but in the U.S. you have both the Federal and State court systems with full power to adjudicate constitutional complaints. This one would belong in the Federal system, if a Federal criminal statute is involved. This discussion would include Article III of the U.S. Constitution. In France, there would be some concrete norm control in a rather circuitous manner in either the ordinary courts (upon criminal prosecution) or the administrative courts (upon some executive action). Interestingly, the type of declaratory judgment actions on the basis of overbreath, are in many ways an abstract form of norm control inasmuch as the court has to speculate about possible application of the statute. Nevertheless, to the extent that actual parties are participating, they will argue how the law could be applied to their actions.
(c) The complaint must be filed in the 15 day period between passage and forwarding to the President and signature. (Article 10 of the French constitution). I am not sure if there is usually some delay between passage and actual forwarding to the President. In the U.S. there is some such delay. And the article states "and upon its transmission to the government." In the U.S., the complaint was filed soon after passage and signature by the President. The coalition represented people to whom the law might be applied, and thus had proper standing under U.S. law.
The complaint must be resolved within 30 days of filing (art. 61) though that time may be expedited to 8 days. Compare this to the six to seven years the Free Speech Coalition case took to reach the Supreme Court.
(d) The procedure is written submissions and secret deliberations by the Council and resolution of the dispute. In the U.S., the entire case is heard at the trial level, then appealed to the Court of Appeals and then to U.S. Supreme Court, although it might end at any of these stages, and in fact most cases do, since only a tiny number of cases actually have cert granted by the Supreme Court.
(e) If successful, the law cannot take effect, without modifications that would allow it to comply with the constitutional interpretation given by the council. (Art. 62). If unsuccessful, the law becomes law and that leaves the individuals to litigate when and if the law is applied to them. If the application is in the form of a criminal prosecution, it would go to the ordinary courts. If the application is some type of administrative action, such as confiscation of the film or a prohibition to show it, it would likely belong in the administrative adjudication system. In either case, the individual could defend against the application of the law as being without constitutional basis. While the ordinary courts, and the council of state administrative court system lack the power to declare a law generally unconstitutional, they can declare its individual application to be without constitutional authority. The council of state is much more likely to do this than the ordinary courts, but there is precedent for such action within both systems. In the U.S., a successful court challenge, at any level of the court system, will result in a declaration of unconstitutionality and in a permanent injunction against enforcement. In the U.S., you can discuss Article III and the effect of the decisions of the Federal Courts at different levels, and assuming it got to the Supreme Court, the effect of those decisions. Marbury v. Madison, and the general power of the U.S. courts could be discussed here as well.
Before breaking down into the specific question addressed above, the question asked about the possible substantive resolution. Here I saw some good arguments, constructed with the Declaration of the Rights of Man and the Citizen, and the discussion of cases in the book, especially the Freedom of Association case.
Initially, the Constitutional Council was designed to arbitrate disputes between the executive and the legislative powers regarding their respective competence (areas of jurisdiction and authority). Given the Vth Republic's constitutional allocation of great law-making power to the executive, the Council was in fact designed to limit the sphere of competence of the legislative vis a vis the President.
Therefore, at least initially, the council would look to see if this is an area in which the parliament has the authority legislate. Article 34 of the 1958 Constitution specifically allocates to the legislature authority over the "determination of serious crimes" which child pornography would be.
Then, the Council taking on its more contemporary role as protector of civil liberties, especially when the French the government is divided, would take a look at this statute.
Although the right to free speech might be found to be implicit in many of the provisions of the declaration of the rights of man, clearly Article 11 expressly articulates a right to free speech. However, in an excellent opportunity to discuss evolutive interpretation, it does not expressly refer to graphic or movies.
It could be considered a basic "human right" in a democratic society described in the introductory paragraph of the declaration. It could be a basic part of "freedom" and the "right to resist oppression" of Article 2. It could be part of the right to have influence in legislation and to demand accounts from public officials.
Some students also made very good arguments using Houston v. Societe to establish the importance of the artistic integrity of work, and France's great respect for the rights of the director of a film to the protect it. This could be turned into a zone of free speech protection for artistic work that would constitutionally insulate them from such prosecution. Nicely done.
In fact, many of the same arguments might have taken directly from Free Speech Coalition v. Ashcroft, which I think provided a plethora of information about the U.S. constitutional approach in general and in the area of the First Amendment in particular.
I was pretty liberal in allowing many interpretations of the statute. However, I was very surprised that the majority of students assumed that an adult actress would play Lolita. Keep in mind that the statute does refer to portrayals of minors who are posed. Students talked about adult actors, but few raised the possibility of a child actress playing Lolita and being portrayed (posed) as engaging in sex acts with an adult. (The last movie version in fact used a minor to play the role, without any actual sexual encounter, of course).
Other interesting uses of the Declaration of the Rights of Man and the Citizen were of Article 8, essentially cruel and usual punishment. These arguments were interesting, given the harsh penalties of the statute, which I believe would generally shock Europeans.
Property rights arguments were also made, treating the movie and property rights related to it as having being "taken" by the law. These could be supplemented by similar provisions in the Civil Code that we discussed in class.
Generally speaking, the essays were not forced or artificial in their length, and the quality was generally good.