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POL S 361 Midterm #1
I love this class with a passion and wish that I could read case law all day.
43
Political Studies
Undergraduate 2
04/25/2011

Additional Political Studies Flashcards

 


 

Cards

Term

Background/Themes

Const. Myths & Realities

Definition

  • The Constitution does not guarantee rights unless the gov. & soc. decide to grant those rights and NOT systematically violate them!
  • Legal protections for rights are often very limited - right must be est.ed in law/Const. & have the resources to mobilize against it
  • Rights are not immutable, usually about balancing values
  • SC does not exist to protect the rights of minorities, and has historically done a worse job of doing so than Congress & state legislatures

Term

Background/Themes

Core Constitutional Principles (3)

Definition

  • Separation of powers
  • Federalism
  • Limits of gov. interference w/individual rights & liberties

  • not specific/silent on many issues - many Federalists wanted the STATES to decide on disputes- FUNDAMENTAL disagreements at the federal level
  • Court has only gradually assumed more power (judicial review, interpreter of Const....)

Term

Background/Themes

Judicial Review

Structural Limits on Judicial Power

Definition

  • Solidified by Marbury v. Madison, but that only put in on paper - long, gradual process

  • Jurisdiction
  •  - Only appellate jurisdiction, cannot rule on meaning of state law
  •  - Exceptions clause: CONGRESS changes its jurisdiction by passing laws making exceptions
  • Can't offer advisory opinions, collusive suits (w/out conflict of int.s), moot cases (conflict resolved), cases w/out standing ("injury in fact")
  • Legislature can overrule through Const. amendments, statute, political appt. process, # of justices, jurisdiction changes

  • Can only persuade, and, well... justify
  • Text does not always provide clear meanings (has to be judged)

Term

Background/Themes

 - Stare Decisis

 - Intent of the Framers / Originalism

Definition

  • "let the decision stand" - expectation of consistency, can be check on judge's personal values & provide guidance to members of other branches
  • not a good starting point, but the idea is to announce interpretive princip.s
  •  - Limit 1: Judges have to decide whether a precedent applies
  •  - Limit 2: SC can overturn its precedents

  • Compelling & commonsense way to interpret a text, supposedly limits "activist" judges, but...
  •  - Limit 1: Framers were collective body in constant disagreement (+ amendments change certain parts w/out really explaining why)
  •  - Limit 2: Judges are not necessarily good historians
  • best understood as rhetorical tool of persuasion rather than description of how judges do/should make decisions...

Term

Barron v. Baltimore

Facts

Question

Holding

Definition

  • 1833, co-owner of whard made $, city made street changes - waters shallow, couldn't use wharf any more
  • Barron sues on 5th Am., won $5400, reversed by appellate court and brought to SC
  • SC didn't even hear Barron's side of the story

  • Question: Is the 5th Amendment applicable to states?
  • Holding: No, it is not applicable to the states.

Term

Barron v. Baltimore

Reasoning

Precedents

Definition

  • 9-1 in favor of Baltimore
  • Basically said they had no jurisdiction
  • Const. grants powers AND limitations to federal gov, not state gov.
  • If the Const. were supposed to apply at all to the state gov.s, it would say so
  • Precedent against incorporation until 14th Am.
  • Was never specifically, formally overturned - just changed the way they did things

Term

WV State Board of Ed. v. Barnette

Facts

Question

Holding

Definition

 

  • 1943: Barnette wanted injunction against flag salute - palm up, almost Nazi-style
  • FREE SPEECH (was free exercise of religion but dropped that b/c of sticky precedent issue w/Gobitis)
  • Punishment was to expel students + fine + jail time for parents!
  • Question: Is it a violation of the 1st Am. right to freedom of speech to require students to salute the flag or be punished?
  • Holding: Yes, it is a violation...

 

Term

WV State Board of Ed v. Barnette (1943)

Reasoning

Dissents
Notes

Definition

 

  • Reasoning: not participating not detrimental to other children who wanted to participate (no clear & present danger)
  •  - Jackson's opinion of Ct: Gobitis assumed state had the power to compel a salute, which was not necessarily true...
  • Silence & physical acts also count as speech
  • Formally overturns Gobitis
  • Nat. survival not an issue here, nat. unity can't be forced, 14th Am. applies to state & all its creatures

  • Dissent: due to unity of the state, they should be allowed to force you to salute it
  •  - only prob. is that it's like saluting a dictator
  •  - Frankfurter: WOULD side w/religious freedom, but felt that the Ct. was overstepping bounds - the legislature should decide because the Ct. doesn't have the power to be the guardian of liberty
  • Notes: Black, Douglas, and Murphy changed their minds - epidemic of violent attacks on JWs became a nat'l embarassment in WWII, part of Nazi propaganda

 

Term

Schenk v. US

Facts

Question

Holding

Definition

 

  • Sec. of CPUSA, spread pamphlets urging people to use their Const. rights against the draft
  • (During WWI, free speech more restricted)
  • Charged with Espionage Act of 1917
  • Q: Is it a violation of the 1st Am. right to free speech to forbid a pamphlet encouraging people to avoid the draft?
  • Holding: Is is not a violation...

 

Term

Schenk v. US

Reasoning

Precedent!

Definition

 

  • War time (bad tendency test)
  • No ACTUAL effect on draft consciprtion, but creates a clear & present danger, national sec. outweighs the right to free speech here
  • - depending on how you view it, they might has still used the bad tendency test (wording), even though they announce the clear & present danger precedent
  • Holmes OoC.: Congress had decided to target conspiracies, not just actual interference, so no interference need be shown

 

Term

Gitlow v. NY (1925)

Facts

Question

Holding

Definition

  • Different from Schenk b/c war is over, state not federal law (1st case to incorporate freedom of speech), statute did not target harms caused by utternace, but all utterance of a certain type, regardless of harms
  • NY Criminal Anarchy Act of 1902 prohibited advocacy of crim. anarchy, defined as efforts to overthrow gov. through violence
  • Charge w/publishing Left Wing Manifesto
  • State concedes that pamphlet did not lead to unlawful action!
  • Q: Was the NY Criminal Anarchy Act Constitutional (according to the 1st Am.'s protection of free speech)?
  • Holding: Not a violation of his free speech rights

Term

Gitlow v. NY (1925)

Reasoning

Dissent

Precedent

Definition

 

  • Sanford OoC: states can define certain types of speech as crim. if they decide such speech is harmful - once decided, ct.s should defer to legislature
  • Meaning, state does not have to prove the harm for every punished utterance - does not know which "spark" will lead to a "conflagration"
  • Gitlow's pamphlet has "language of direct incitment
  • Holmes dissent: no clear & present danger, no evidence that anybody actually tried to DO the actions advocated
  • Precedents: more restrictive application of clear & present danger - test kind of evolved to grave & probable danger through WWII & McCarthy era before they did away with it for being too restrictive
  • DID incorporate free speech through the 14th Am.

 

Term

Dennis v. US (1951, 6-2)

Facts

Question

Holding

Definition

 

  • Dennis & 11 other CPUSA were charged with violating Smith Act of 1940, making it illegal to conspire to advocate overthrow of gov. by force
  •  - gov felt the need to nip the threat in the bud - Dennis and the others were basically meeting in somebody's garage and talking about Communism
  •  - imp. to Just. Dept. to get convictions upheld
  • Question: Is the Smith Act a violation of the 1st Amendment right to free speech?
  • Holindg: No, speech can be regulated.

 

Term

Dennis v. US (1951, 6-2)

Reasoning - Vinson Plurality of Court

Definition

  • (No Ooc!)
  • No right to violent revolution in a democratic society - gov. has power to punish threats of violence (different than the American Revolution b/c that wasn't a democracy)
  • Smith Act goes after "advocacy," not "discussion"
  • Earlier cases: threats against gov. can be punished, even Holmes said that
  • No absolutes, all concepts are relevant - way of wiggling out of clear and present danger precedent (?)
  • Gov. can't wait until "putsch is about to be executed" (Read: until shit goes down...)

Term

Dennis v. US (1951, 6-2)

Vinson Plurality Opinion & Judge Learned Hand

Definition

 

  • Grave & probable danger - allows the gov. a lot more power, at least if clear and present danger is taken literally
  • Gravity of the harm discounted by the probability of success - depends not jsut on how likely things are to occur, but also how bad it is
  •  - even if something is not that likely, if it's really bad, you don't want it to exist at all
  • Includes prosecuting for advocacy of ideas that have even a small chance of producing a bad outcome (damn Commies!!)

 

Term

Dennis v. US (1951, 6-2)

Vinson & Role of Judges

Definition

  • "When facts are found that establish the violation of the statute, the protection against convinction afforded by the First Amendment is a matter of law."
  •  - jury initially finds the determination of those facts, apperals courts are not supposed to second-guess the facts, only make judgments about the law and whether it was applied correctly
  • Meaning: there is a 2nd judgment to be made by a judge, not if the statute was violated but if the conviction should be thrown out or not based on 1st Am. protection (type of danger posed)

Term

Dennis v. US (1951, 6-2)

Concurring Opinions

 - Frankfurter

 - Jackson

Definition

  • Frankfurter: Court cannot protect rights, only Congress can judge whether speech is harmful
  • Breaks w/Vinson on judicial role!
  • This disagreement will be on midterm!

  • Jackson: wants to narrown Vinson/Hand formula to Communism, which is a different kind of threat - old clear & present danger test isn't appropriate in this case

Term

Dennis v. US (1951, 6-2)

Dissenting Opinions

 - Black

 - Douglas

Definition

  • Black: no overt acts attempting to overthrow gov, only advocacy & abstract planning for some later date
  •  - Const. forbids prior restraints on speech (Blackstonian conception) -- Smith Act is preventing them for advocating ideas at all!
  • Framers knew unfettered speech was dangerous, but decided to take that risk as a matter of balance - danger of ideas is irrelevant
  • Bl. against Ff: Court has DUTY to reverse Congress if Congress interferes with free speech

  • Douglas: More Holmesian argument, no real risk here of these ideas taking hold & being put into action

Term

Brandenburg v. Ohio (1969)

Facts

Question

Holding

Definition

  • Symbolic of change in Ct. op. - generally more permissive political environment
  • State law case, KKK rally
  • Q: Does the Ohio (Criminal?) Syndicalism Act violate Brandenburg's rights to free speech under the 1st & 14th Amendments?
  • H: Yes, he had those rights...

Term

Brandenburg v. Ohio (1969)

Reasoning

 - Black

 - Douglas

Definition

  • state can't interfere w/speech advocating harmful action, has to be "incitement to imminent lawless action"
  • Black: no more clear & present danger - no balancing, you just take a risk of allowing dangerous speech
  • Douglas: Ct. made mistake in earlier cases, exaggerated "puny" threats, have to show overt acts causing harm

  • Formally overturned Whitney v. CA (1929)

Term

Free Speech Doctrines, post 1960's

(4)

Definition

 

  • Time/Place/Manner Restrictions
  • Speech & Conduct Cases
  • Categorical Approach
  • Overbreadth/Chilling Effects

  • no more content-based restrictions, w/very few, specific exceptions

 

Term

Time/Place/Manner Restrictions

Speech & Conduct Cases

Definition

  • OK if targeting the context in which the speechis made, not the CONTENT of it
  • Privacy of own home v. averting one's eyes (If you're in public, you're probably going to have to deal with it!)
  • Broadcast media treated as separate issue

  • Communication is also a form of action (e.g. protests, treat action AS speech, combining pure speech + action)
  • Some actions that communicate can be regulated
  • But, not supposed to be content based (blurry line, e.g. draft card burning/flag burning)
  • Threats blackmail, & conspiracies not protected (treated as conduct, not speech)

Term
Categorical Approach (3)
Definition

  • 1: Fighting words, 2: obscenity, 3: libel
  • A: Fighting words - directed at the person of the hearer (direct insult/provocation, AND likely to invoke immediate violent reaction
  • B: Obscenity - special, technical category (not just "dirty pictures")
  • Not just indecent, but patently offensive depcitions of sexual or excretory activities/organs
  • Obscene is worse - "no essential part of any exposition of ideas," "no social value" derived, "clearly outweighed by the social interest in order & morality" (-Justice Murphy, Chaplinksy v. NH, 1942)
  • C: Libel: defamation of character - speaking, print, or visual media
  • not really against the gov. at all, but they get invovled when there's a case, meaning the 1st Am. becomes relevant
  • Previously not a defense to say that it's true, but now if you KNOW its untrue, the target is about damaging someone through the miscommunication of ideas 

Term

Cohen v. CA (1971, 6-3)

Facts

Question

Holding

Definition

  • Defendant's jacket in court says "Fuck the draft"
  • Cohen given a 30 day sentence, desitrubing the peace - no actual evidence that he was disturbing the peace
  • Qu: is it a violation of the first amendment right to free speech to pubish a person for the workds used to convey a message?
  • Holding: Yes, it is a violation...

Term

Cohen v. CA (1971, 6-3)

Reasoning

 - Harlon OoC

Definition

  • Cohen's action does not fit in one of the proscribable categories
  •  - vulgar but not obscene, no offort to "conjure up... psychic stimulation"
  •  - not fighting words b/c it wasn't directed at any particular person
  • Does not count as invasion of privacy!
  •  - Courtroom not the home, can avert eyes
  • States can't stop expression of ideas in order to promote morality
  • Tumult, discord, offense are necessary side effects of a process of open debate
  • Emotive function of particular way of expressinve ideas protected by Const, not just cognitive function
  •  - anger is part of the system of free expression

Term

FCC v. Pacific Foundation (1978, 5-4)

Facts

Question

Holding

Definition

  • Radio station broadcasts George Carlin's "Dirty Words" at 2pm on a Tues. afternoon
  • Complaint leads to FCC finding against station, threat to license renewal
  • Qu: Is it a violation of the first am. right to free speech to regulate an offensive broadcast?
  • Holding: No...

Term

FCC v. Pacifica Foundation (1971, 6-3)

Reasoning

 - Stevens plurality opinion

 - Powell & Blackmun, concurring in part

Definition

 

  • Stevens: partly offensive but not obscene
  • Still OK to regulate b/c proadcast protections limited
  • 1. Uniquely pervasive media - enters ppls' heads and lives, can't avert eyes - privacy issue
  • 2. Uniquely accessible to children

  • Powell/Blackmun: Stevens only sees it as shock value, no actual value - value is irrelevant, focus on time of day

 

Term

FCC v. Pacifica Foundation (1971, 6-3)

Dissents

Definition

 

  • turn off radio
  • no erotic appeal to prurient interests of children
  • can ban obscene but not offensive speech!

 

Term

Morse v. Frederick (2007)

Facts

Question

Holding

Definition

 

  • sort of a modern equivalent of Tinker
  • happened outside of school itself, though this doesn't seem to be important to the Ct.
  • Bong hits for Jesus, parade in Alaska, students were outside of the school building
  • Qu: Is it a violation of the First Am. right to free speech to regulate student speech outside of the school building?
  • Holding: No, it is not... Schools can take steps to safeguard students from speechthat can be reasonablt yaken to encourage illegal drug use

 

Term

Morse v. Frederick (2007)

Reasoning

 - Roberts OoC

 - Alito, w/Kennedy, concurrence

 - Thomas, concurrence

Definition

  • Roberts: Tinker: only suppress speech if it would disrupt work/discipline of school
  •  - but Fraser (1986), Ct. moved away fromt hat standard
  • Schools can infringe on rights when students are in school that could not be infringed outside the school
  •  - Ct. tends to make exceptions for drugs & related issues

  • Alito/Kennedy: cases where students comment on social/political issues would be different
  • Thomas: wants to overturn Tinker, orginialist understanding of 1st Amend. does not guarantee freedom of speech for students
  •  - NO free speech for student, schools have tremendous discretion in imposing punishments for rule violations

Term

Morse v. Frederick (2007)

Dissents

 - Stevens

 - Breyer

Definition

  • Stevens: taking down banner was OK, but it was silly & ambiguous, not actually advocating drug use
  • Beyer: no need to invent an exception to 1st Am. - single out drug advocacy = content based restriction

Term
Overbreadth/Chilling Effects
Definition

 

  • Overly broad laws have "chilling effects" on speech
  •  - chills people - makes them afraid, conduct regulated by law not defined precisely enough
  •  - if you make people afraid to speak, it impacts the system of free speech/exchange of ideas
  • law can be invalid if it sweeps broadly & raises questions about whether it interferes with protected speech
  • overbroad = creates reasonable FEAR of prosecution that will make ppl afraid to speak out
  • overbroad laws can be challenged pre-emptively (after enactment but before prosecution)
  •  - threat to free expression = less of a need for standing (conduct is still affected by law)
  •  - can also trike down laws even if the person charged did something outside of the 1st Amendment

 

Term

RAV v. St Paul, MN

Facts

Question

Holding

Definition

  • Fighting words & overbreadth
  • Crime in St. Paiul to display symbol/object that "arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender"
  • Cross burning in yard of only black family in town, not isolated incident
  • State SC ruled that it ONLY applied to fighting words (back the US SC into a corner, not supposed to reinterpret state law)
  • Question: Does speech in proscribable categories receive content-based protection?
  • Holding: Yes...
  •  - all agreed that RAV was guilty but disagreement about the law

Term

RAV v. St Paul, MN (9-0)

Reasoning

 - 2 possible responses

 - Scalia

Definition

  • Response 1: strategy in concurrence - say law should stillbe struck down for overbreadth - applies to many cases not protected by Const., but wording too broad, may chill other Cont.-protected speech
  •  - fairly straightforward way of ruling law unconst., no need to overturn precedent
  • Response 2: Strategy in maj. op. by Scalia - extend "content" protections to hate speech, abandon long line of precedents, allows maj. to creat broader const. prot. for hate speech
  • Scalia: categorical approach in precedent must be taken in context, not literally true
  •  - can ban ALL proscribable speech in a cat. (fighting words), but not content based (all or nothing)
  •  - in St. Paul, 1 side of debate has free reign but the other subject to arrest - seeking to handicap expression of particular ideas
  •  - HOWEVER: this isn't about the free exchange of ideas, but using 1 form of speech to silence somebody else

Term

RAV v. St. Paul, MN (9-0)

Reasoning

 - White, "concurrence"

Definition

  • MAJOR disagreement even though it was 9-0
  • Categorical approach firmly entrenched, majority revising it for no good reason
  • laws banning subset of fighting words restrict social evil of hate speech w/out creating danger of driving viewpoints from marketplace
  • Acc.rding to White, Scalia - "underbreadth"
  •  - elevates hate speech to debate!

Term

Wisconsin v. Mitchell (1993, 9-0)

Facts

Question

Holding

Reasoning

Definition

 

  • Legislators take a different approach to the same problem as in RAV: sentence enhancements for existing crimes
  • Good example of a legislature getting around a SC ruling indirectly, w/out a Const. Am.
  • Question: Is is a violation of the 1st Amendment right to free speech to enhance sentences for crimes involving hate speech?
  • Holding: It is not... (Court upheld law 9-0)
  • Rehnquist: still doesn't like hate crime laws, but has no choice in this case
  • Communities can make moral judgments about the motives & make that a basis for the severity of the punishment (and they do that all the time, based on what people said or what they think!)

 

Term

VA v. Black (2003)

Facts

Question

Holding

Definition

  • Jury instructions in law says that a factual finding that the defendant burned a cross established intimidation - defendant can introduce evidence to the contrary, but it places the burden of proof on the defendant
  • Question: Is the VA law that makes it a crime to burn a cross with "an intent to intimidate a person or group of persons" a violation of the first amendment right to free speech? (Overbreadth)
  •  - Note: threat & intimidations are not/never were protected under free speech
  • Holding: With the specific jury instructions, it is...

Term

VA v. Black (2003)

Reasoning

 - O'Connor for the Ct.

 - Stevens, concurring

 - Thomas, dissenting

 - Scalia, dissenting

 - Souter (dissenting? concurring?)

Definition

  • O'Connor: Law is unconstitutional WITH the jury instructions (b/c of burden of proof issue)
  •  - Fits w/RAV b/c cross burning is a particularly virulent form of communication (different than the broader forms in RAV)
  •  - State targets it for intimidation, not content
  • Stevens: joins O'Conor, but sticks to RAV dissent
  • Thomas: dissents - cross burning is ALWAYS intimidating
  • Scalia: dissent, nothing wrong with jury instructions
  • Souter: too much liek RAV - can be political message, not intimidation
  • Prima facie = convictions for expression that may not be intimidating

Term

Rust v. Sullivan (1991)

Facts

Question

Holding

Definition

  • Question: Can legislatures do something by use of funding that they couldn't do otherwise?
  • Holding: Yes... (e.g., drinking age by use of highway funds, federal funds for abortion as family planning)
  • Side issue regarding statutory interpretation: The Chevron Rule (1984)
  •  - When a statute is ambiguous, a new Pres. administration can change the meaning of the law w/out Cong. chaning the law
  •  - Judicial deference: Ct. can only get involved if the new interp contradicts the statute
  • Rust issue: Cong. said that no fund in Sect. 1008 shall be used in programs where abortion is a method of family planning
  •  - Reagan: this includes counseling concerning abortion, bans recipients from activities that encourage or promote it

Term

Rust v. Sullivan (1991)

Reasoning

 - Rehnquist for Court

 - Blackmun, dissenting

 - Stevens, dissenting

Definition

  • Rehnquist: goes very quickly over statutory issue - it's ambiguous & exec has broad discretion
  • Free speech: OK to set precedent to refuse to fund abortions
  •  - no rule that gov. subsidy of some speech means gov. must subsidize all speech (e.g., Nat. Endowment for Democracy)

  • Blackmun: Ct. has never before allowed content based suppression as condition for acceptance of pub. funds
  •  - effort to interfere w/providing truthful info, related to exercise of a Const. right (as defined by Roe v. Wade)
  • Stevens: focuses on statutory question - stated purpose of law passed was to provide better education about fam. planning opt.s 
  •  - language clearly directed at facilities that supply abortions
  •  - not ambiguous, gag rule contradicts law

Term

Citizens United v. FEC 

Facts

Question

Holding

Definition

  • US law prohibits corporations & unions from using their general treasury funds to make ind. expenditures for "electioneering communication" or for speech for/against a candidate
  •  - upheld by Ct. in McConnell v. FEC
  • Cit.s United a non-profit conserv. poli. org.
  • Made film about Hillary Clinton, shown in theaters...
  • Group filed lawsuit seeking declaration from lower Ct. that they were not subject to the aforementioned law
  •  - wanted a statutory ruling ("as applied" - otherwise Const. law cannot be used in particular instance)
  •  - SC asked for reargument to go beyond stat. ruling & overturn McConnell (facial challenge - law is unconst. on its face & can never be applied)

Term

Citizens United v. FEC

Reasoning 

 - Kennedy, OoC

 - Scalia, w/Alito & Thomas, concurring

 

Definition
Term

Citizens United v. FEC

Dissents

 - Stevens, (effing LONG) dissent in part

 

Definition
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