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| Schenck v US (1919) - Socialist party, leaflets, oppose military draft. People believed it violated 13th amendment (slavery). uphold conviction: "If the language poses a clear and present danger of some event or occurrence, and congress has the right to prevent, the language is then punishable" |
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| Leaflets, draft, opposition. The importance of the context of schenck. Trying to recruit people for WWI. Could mean national security issue |
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| "Bad Tendency Test" - Abrams v. US: violation of sedition act of 1917. said Abrams was issuing a general strike. Upheld conviction. Holmes and Brandeis dissent - clear and present danger test. Free marketplace of ideas. Bad Tendency test - if language incites violence. |
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| anarchy lay of 1902 - criminalized advocating against the government |
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What is a “public forum?”
Involves streets/public places, Any property that the govt. has opened to use by the public for expressive activity is considered to be a public forum, Sidewalks surrounding the supreme court ware public forum
Important during civil rights movement |
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| Edwards V. South Carolin (Public forum) |
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| students convicted of disturbing the peace, overturned by the supreme court b/c its a public forum |
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| Supreme court upheld conviction b/c it was out of the warren court's tolerance |
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Speech which is intended from preventing govt. from performing their daily actions
Borders on treason
this was only in existence til 1801
it was never challenged because it wasn’t around that long
Jefferson became president he pardon those who had been convicted under the sedition act |
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| different tests: Prurient interest, miller test, hicklin test, prudent test |
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Term
| Prurient interest (hicklin test) |
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| Roth v. US (1957) - whether the material, in eyes of an average person applying community standards, appeals to a prurient interest (also what is community) |
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Miller v. California (1973) -a. An average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
b. The work depicts or describes, in a patently offensive way, sexual conduct, and the applicable state law specifically defines what depictions or descriptions are prohibited; and
c. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value |
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| Reno v. ACLU (1997) - the interest in encouraging freedom of expression in cyberspace should not be infringed upon because it is being regulated |
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Regina v. Hicklin (1868)
Does the material have the tendency to deprave and corrupt those whose minds are open to such immoral items (so children)
Heavily regulated artwork as well (far too restrictive) |
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| Penumberal right - not expressively written in the constitution |
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| Scales v. Us (1961) - freedom of political association |
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Definition
1. Decided against the defendant
a. Section II of the Smith act made it illegal to even belong to the Communist party
b. Supreme court – found in favor of the government (prosecution was upheld)
c. Narrowly interpreted section II to only be used against those currently involved in the organization – only active members |
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| NAACP v. Alabama 1958 (freedom of association) |
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Definition
| Supreme court decided against Alabama - No government interest in having those names. Against freedom of association |
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| Bryant v. Zimmerman 1928 (freedom of association) |
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| KKK - government wanted names of klan, court upheld statute because it was terrorist group and was in the interest of the government to protect the people |
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| Added women into these private "mens only" clubs because of political gains. See more and more groups being forced to add women. |
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| Dale v. Boy Scouts (2000) |
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Definition
Disallowing gay troop masters from being allowed in the organization
Supreme court: it’s their right to discriminate against gay scout masters
Freedom to associate with just heterosexual scout masters |
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| Published papers urging the destruction of the government - passed bad tendency law and the court upheld the conviction. "revolutionary spark" |
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Freedom of speech as “the indispensable condition” of constitutional liberties
By 1940- justices assigned a preferred position
It is so important (freedom speech) that it is elevated from all other
The warren court & freedom of speech (1953-1969) |
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Term
| Madsen v. Womens health center |
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Definition
The US Supreme court upheld a florida court’s injunction that prohibited anti-abortion protesters to have a 30ft zone to where they can protest
Buffer zone was a rational choice
Protestors were preventing people from getting into the building, harassing patients, etc.
Held on constitutional grounds – no violation |
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| “Pure speech”: didn’t extend to “expressive conduct” - believed that speech should never be censored |
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Term
| Time, Place, and Manner restrictions |
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Definition
b. Government can always have “reasonable” time place and manner regulations
i. Must also be narrowly drawn – target a kind of speech that should be oppressed
ii. Content neutral:
1. If the gov’t is making one of these arguments to restrict speech (apply least restrictive test) – the reasonable test |
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| Power of the FCC over the radio stations - permit/license renewal problems (basically FCC can create their own rules for radio |
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a. The Scarcity test (the justification for the different treatment)
i. Finite supply – so gov’t must allocate this resource to serve the public interest
1. Despite the growth of cable television and radio – the gov’t still adheres to the scarcity theory |
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| William Blackstone believed that prior restraint, in press, should be banned |
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| Near v. Minnesota (prior restraint) |
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ii. US Supreme court strikes down Minnesota prior restraint law
1. Believes that it violates the first amendment – uses the idea of selective incorporation through the 14th amendment due process clause to apply this to the states
2. Majority opinion: believes that in some cases prior restraints were okay (did not take an absolute position against prior restraints) |
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| Pentagon Papers (prior restraint) |
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Term
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| High school Principle censoring student newpaper - it is allowed because there is less protection given to them. |
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| can a journalist be prosecuted for publishing classified information? usually based on freedom of press v national security |
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| Commercial Speech (Central Hudson Gas v Public service of NY (1980)) |
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Definition
ii. 4-part test (less restrictive means test)
1. Object of the advertisement must be a lawful activity and must not be misleading
2. Is the asserted government interest in regulating speech valid?
3. Does the regulation directly advance the asserted government interest?
4. Is the regulation more extensive than necessary to achieve that purIf any of these are “No” the regulation is struck down |
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Term
| Whitney v. California (1927) |
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Definition
| applied bad tendency test to uphold conviction of defendant. charged under criminal syndicalism |
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Term
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| Criminal syndicalism is any doctrine advocating crime, sabotage, violence or other unlawful methods of terrorism as a means of accomplishing industrial or political reform. The advocates of this doctrine believe that unions should run the nation’s economy. |
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| Brandenburg v Ohio (1969) |
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| KKK rally - Televised. Brandenburg standard: Action must be imminent lawless action and likely to incite such action , The govt. is justified under the police power in controlling and regulating such speech by criminalizing it, Govt. has an empirical burden to prove with evidence that the speech is seeking to incite imminent lawless actions |
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| Chaplinsky v New Hampshire |
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Definition
i. View before 1960s: the chaplinsky notion of “fighting words”
1. Jehovah’s witness was out in public canvasing his religion and people started to insult him.
2. A cop intervened and tried to intimidate the witness
3. Chaplinsky (the witness) calls the cop a fascist
4. He was charged with breaching the public order – convicted
5. US uphold the convictions based on the right to express his attitude to the public –if it inflicts injury or creates a danger that the person being addressed by the speech will result in violence
6. Speech can be punished |
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Term
| Fighting words - Cohen v California |
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Definition
guy with "F the draft" on a jacket
1. Agrees that the message is profane, but is the person with the jacket directing the message to any one person.
2. Because its not directed to any one person than no one can perceive the message as a personal insult
a. No resort to violence, so the speech should be protected |
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