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POLS167 Constitutional Law
Midterm: Free Speech Cases
Political Studies
Undergraduate 4

Additional Political Studies Flashcards




Brandenburg v. Ohio (1968)

CASE: Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."

DECISION: 8 votes for Brandenburg, 0 votes against

IMPACT: The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.


Republican Party of Minnesota v. White (2001)


Campaigning of Judicial Candidates


CASE: The announcement clause of the Minnesota Supreme Court's canon of judicial conduct prohibits a candidate from announcing his or her views on disputed legal or political issues.  While running for associate justice of the Minnesota Supreme Court, Gregory Wersal filed suit, seeking a declaration that the announce clause violates the First Amendment and an injunction against its enforcement.

DECISION: 5 votes for the REpublican Party, 4 against

IMPACT: The Court reasoned that the announce clause prohibits speech based on its content and burdens a category of speech that is at the core of First Amendment freedoms - speech about the qualifications of candidates for public office. Moreover, the Court concluded that the clause did not serve to preserve the state judiciary's impartiality, its argued compelling state interest.


Doe v. Reed, Washington Secretary of State (2010)


Release of records of contributions




CASE: Plaintiffs sought a preliminary injunction in a Washington federal district court to prevent the state of Washington from making referendum petitions available under the state's Public Records Act ("PRA"). In response to a petition titled "Preserve Marriage, Protect Children," plaintiffs attempted to prevent the release of the names and contact information of individuals who signed the petition. The plaintiffs argued that, as applied to referendum petitions, the PRA violates the First Amendment because it is not narrowly tailored to serve a compelling government interest. The district court granted the injunction.

DECISION: 8 votes for Reed; 1 vote against

IMPACT: Court reasoned that an "exacting scrutiny standard" is the appropriate standard for determining First Amendment challenges in the electoral context. The standard requires a "substantial relation" between the disclosure requirement and a "sufficiently important" governmental interest. Here, the state met its burden in establishing that its disclosure requirement was constitutional.


Hazelwood School District v. Kuhmeier (1987)


Freedom of Speech in School Newspapers


CASE: The Spectrum, the school-sponsored newspaper of Hazelwood East High School, was written and edited by students. In May 1983, Robert E. Reynolds, the school principal, received the pages proofs for the May 13 issue. Reynolds found two of the articles in the issue to be inappropriate, and ordered that the pages on which the articles appeared be withheld from publication

DECISION: 5 votes for Hazelwood; 3 votes against

IMPACT: The Court held that schools must be able to set high standards for student speech disseminated under their auspices, and that schools retained the right to refuse to sponsor speech that was "inconsistent with 'the shared values of a civilized social order.'" Educators did not offend the First Amendment by exercising editorial control over the content of student speech so long as their actions were "reasonably related to legitimate pedagogical concerns."


New York Times v. Sullivan (1963)


"Actual Malice"


CASE: Decided together with Abernathy v. Sullivan, this case concerns a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. L. B. Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally.

DECISION: 9 votes for New York Times, 0 votes against

IMPACT: New Standard of "Actual Malice." The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity)


Curtis v. Butts (1966) and Associated Press v. Walker. 


Public Figure


CASE:   C v. B concerns an article published in the March 23, 1963 edition of The Saturday Evening Post alleging that former University of Georgia football coach Wallace Butts conspired with University of Alabama coach Paul "Bear" Bryant to fix a 1962 football game in Alabama's favor. The trial judge rejected the argument because Butts was not a public official. A v. W concerns dispatch reports of rioting that occurred on the campus of the University of Mississippi on September 30, 1962. The dispatches, authored by a correspondent on the scene, reported that Edwin A. Walker, a private citizen and political activist, had personally led a violent crowd attempting to prevent federal marshals from enforcing the court- ordered enrollment of an African-American. Walker denied the report, and filed a libel suit in the state courts of Texas. A jury found in Walker's favor, but the judge in the case refused to award punitive damages, finding that there was no malicious intent

DECISION: 5 votes for Butts, 4 votes against

IMPACT:   In particular, criticism of Butts or Walker, unlike a government official, could not be conflated with criticism of public policy. Thus, the Court reasoned that public figures who are not public officials may recover damages for libel stemming from false reports based on "highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers."


Gerts v. Robert Welsh Inc. (1973)


Defining a public figure


CASE: Gertz was an attorney hired by a family to sue a police officer who had killed the family's son. In a magazine called American Opinion, the John Birch Society accused Gertz of being a "Leninist" and a "Communist-fronter" because he chose to represent clients who were suing a law enforcement officer

DECISION: 5 votes for Gertz; 4 votes against

IMPACT: In the context of the opinion, Powell advanced many lines of reasoning to establish that ordinary citizens should be allowed more protection from libelous statements than individuals in the public eye. However, continued Powell, the actual malice standard did not lose all significance in cases involving ordinary citizens as he advised states to use it in assessing claims for punitive damages by citizens suing for libel.


Masson v. New Yorker Magazine (1990)




CASE: After Jeffrey Masson was fired from his position at the Sigmund Freud Archives, Janet Malcolm interviewed him for an article in the New Yorker magazine. Malcolm_s article included many long direct quotations from Masson. The article presented Masson as extremely arrogant and condescending; at one point, he was quoted as calling himself "the greatest analyst who ever lived." However, Malcolm fabricated many of the more distasteful quotations. Masson sued for libel.

DECISION: 7 votes for Masson, 2 votes against

IMPACT: Justice Anthony Kennedy's majority opinion also explained when a direct quotation can be considered false, and therefore potentially libelous. The First Amendment limits libel suits by public figures.


Herbert v. Lando (1979)


Interrogating the Press


CASE:Anthony Herbert was a retired Army officer who served in Vietnam. While in Vietnam, he accused superior officers of covering up atrocities that American troops had committed. The Columbia Broadcasting System (CBS) produced and broadcast a documentary of the petitioner's story. Herbert sued for libel arguing that the program falsely and maliciously portrayed his character, causing him financial loss. In order to prove libel under the "actual malice" standard, Herbert's attorneys deposed Lando as well as the producer and the editor of the documentary, attempting to deduce the editorial decisions that were made during the production of the program.

DECISION: 6 votes for Herbet; 3 votes against

IMPACT:The Court reversed the decision of the Court of Appeals and held that the privilege not to answer editorial inquiries is not absolute. Justice White argued that shielding editorial decision-making from inquiry would "substantially enhance the burden of proving actual malice," a burden which was already substantial in the Court's view


Huster Magazine v. Fallwell (1988)




CASE: A lead story in the November 1983 issue of Hustler Magazine featured a "parody" of an advertisement, modeled after an actual ad campaign, claiming that Falwell, a Fundamentalist minister and political leader, had a drunken incestuous relationship with his mother in an outhouse. Falwell sued to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress.

DECISION: 8 votes for Hustler Magazine; 0 votes against

IMPACT: In a unanimous opinion the Court held that public figures, such as Jerry Falwell, may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice." The Court added that the interest of protecting free speech, under the First Amendment, surpassed the state's interest in protecting public figures from patently offensive speech, so long as such speech could not reasonably be construed to state actual facts about its subject.


Cox Boradcasting Corporation v. Cohn (1974)


Rape/ murder victim privacy


CASE: Martin Cohn was the father of a seventeen-year old girl who was raped and killed in Georgia. After obtaining information from the public record, a television station broadcast the name of Cohn's daughter in connection with the incident. This violated a Georgia privacy statute which prevented members of the media from publicizing the names or identities of rape victims.

DECISION: 8 votes for Cox; 0 votes against

IMPACT: First, the news media is an important resource for citizens which allows them to scrutinize government proceedings. The commissions and adjudication of crimes are issues relevant to the public interest. Second, in the development of the privacy right, the Court has held that the interests of privacy "fade" in cases where controversial "information already appears on the public record."


Time Inc. v. Hill (1967)


"False Light" Privacy


CASE: In 1952, three escaped convicts took James Hill, his wife, and their five children hostage in their Whitemarsh, Pennsylvania, home. After nineteen hours, the family was released unharmed. The convicts were later apprehended in a violent clash with police during which two of them were killed. In 1953, Joseph Hays' published a novel based on the Hill family's ordeal. When the novel was subsequently made into a play, Life Magazine ("Life") printed an article about the play that mirrored many of its inaccuracies concerning the Hill family's experience. Alleging that it deliberately misrepresented his story, Hill sought damages against Life.

DECISION: 5 votes for Time Inc.; 4 votes against

IMPACT: The Court explained that absent a finding of such malicious intent on the part of a publisher, press statements are protected under the First Amendment even if they are otherwise false or inaccurate


Virginia Pharmacy Board v. Virginia COnsumer Council (1975)


Pharmacy Ads


CASE:  Acting on behalf of prescription drug consumers, the Virginia Citizens Consumer Council challenged a Virginia statute that declared it unprofessional conduct for licensed pharmacists to advertise their prescription drug prices.

DECISION: 7 votes for consumer council; 1 vote against

IMPACT: Gave people the righ tto listen, in addition to the right to speak.The Court noted that in cases of commercial speech, such as price advertising, freedom of speech protections apply just as they would to noncommercial speech. Even speech that is sold for profit, or involves financial solicitations, is protected. 


Central Hudson Gas and ELectric Corp. v. Public Service Commission of New York (1979)


Free Speech on Promotional Advertising


CASE: The Public Service Commission of New York (PSC), in the interest of conserving energy, enacted a regulation that prohibited electric utilities from promoting electricity use. The PSC's regulation distinguished promotional advertising from informational advertising, which was permitted. Central Hudson Gas and Electric challenged the regulation in a New York State Supreme Court, which upheld the regulation.


DECISION: 8 Votes for Central Hudson; 1 vote against


IMPACT: The 4 part test for the constitutionality of banning free speech. Established a 4-part test for the protection of commercial speech

1.     Must concern lawful activity and not be misleading

2.     Asserted government interest is substantial

3.     (If both yield positive answers) The regulation directly advances the governmental interest asserted

4.     Regulation is not more extensive than is necessary to serve that interest


44 Liquormart Inc. v. Rhode Island (1995)


Liquor Ads


CASE: Rhode Island passed a statute banning the advertisement of retail liquor prices in places where liquor is not sold. Petitioners filed suit claiming that the statute violated their First Amendment right to freedom of speech.

DECISION: 9 votes for Liquormart; 0 votes against

IMPACT:  In response to Rhode Island's claim that it passed the statutory ban to protect consumers from "commercial harms," Justice Stevens held that governmental impediments to truthful and accurate commercial messages rarely protect consumers. On the contrary, courts must take "special care" when considering such "protective" measures since they often hinder public choice and obstruct necessary debate over public policy issues. Furthermore, Rhode Island failed to show that its statutory ban would lower market-wide liquor consumption, must less alter alcohol consumption among abusive drinkers who are most in need of assistance.


Bates v. State Bar of Arizona (1976)


Advertising Legal Services


CASE: In regulating the Arizona Bar, the Supreme Court of Arizona restricted advertising by attorneys. Bates was a partner in a law firm which sought to provide low-cost legal services to people of moderate income who did not qualify for public legal aid. Bates and his firm would only accept routine legal matters (many of which did not involve litigation) and depended on a large number of patrons given the low financial return from each client. In assessing their concept of legal services, Bates's firm decided that it would be necessary to advertise its availability and low fees.

DECISION: 5 votes for Bates; 4 votes against

IMPACT: Justice Blackmun argued that commercial speech does merit First Amendment protection given the important functions it serves in society, such as providing consumers with information about services and products, and helping to allocate resources in the American system of free-enterprise.


Florida Bar v. Went For It Inc. (1994)


30 day solicitation rule


CASE: Went For It, Inc., (a lawyer referral service) and John T. Blakely (a Florida attorney) were sending targeted direct-mail solicitations to victims and their relatives who had been injured in an accident. According to Florida Bar rules, such direct and targeted mailings are prohibited for thirty days following an accident or disaster.

DECISION: 5 votes for Florida Bar; 4 votes against

IMPACT:  Under this "intermediate scrutiny," restriction on commercial speech is permissible if the government (1) asserts a substantial interest in support of its regulation; (2) establishes that the restriction directly and materially advances that interest; and (3) demonstrates that the regulation is narrowly drawn.
Justifications for Free Speech
  1. Search for Truth
  2. Self-Government
  3. Nature of Man
  4. Safety Valve
"Search for Truth" Justifiation for Free Speech
                                 i.     More openness in dialogue and debate the closer you get to the truth
                               ii.     Most relevant in science and scientific research
1.   Scientific method
2.   Scientists have faith that their method will get them closer to the truth
                              iii.     A critical element to this is that it remain open ended
1.   Even if you come to a conclusion, someone can still challenge it and look for different answers
                             iv.     Applies to social sciences as well
                               v.     You’re either pursuing the truth, or pursuing accuracy
1.   Example: Gravity is the truth. But the social aspect of it is much different.
2.   “All men are created equal,” what does equal mean?
                             vi.     John Stuart Mill (1859 On Liberty)
1.   Because society is always searching for the truth, you need a marketplace of ideas
2.   When you have a marketplace of ideas, the best ideas emerge victorious
3.   Even bad ideas may have a portion of the truth
4.   Bad ideas help the good ideas to be more acceptable because people compare and sharpen their own ideals
"Self Government" justification for Free Speech

                                 i.     When the Free Speech is about the democratic process

                               ii.     Courts should be willing to throw out laws and regulations if they impede an open and democratic process

                              iii.     “Checking Value”

1.   Putting a “check” on governmental power

2.   Freedom of Communication acts a check on potential governmental abuse

3.   If you didn’t make Free Speech an important principle in society, it allows for government to supercede their power

"Nature of Man" Justification of Free Speech

                                 i.     We need free speech in order to achieve self-realization

                               ii.     In order for human being to be truly human, we must be able to communicate because its in our human nature

                              iii.     Free Speech leads you to becoming a responsible person

                             iv.     The broadest of justification

                               v.     To repress freedom of speech is to deny people of their humanity

"Safety Valve" justification of Free Speech

                                 i.     Even if what a person has harmful ideas, its better for them to shoot their mouth of in place of shooting a gun.

                               ii.     Prevents an insurrection

                              iii.     Concepts dates back to the 19th century

                             iv.     We’re not sure how accurate the theory is; should we silence it in order to maintain stability?

1.   Does free speech actually make society more safe and more stable?

Contemporary Challenges to Theoretical Foundations of Free Speech

a.    Cyberspace

                                 i.     No “gatekeeper” (officials who decide what gets mass dissemination) to this flow of information

1.   The only thing remotely close to a “gatekeeper” is censorship.

                               ii.     Almost no borders, the internet is world wide.

1.   A particularly significant issue for cyberspace, even more so than TV or phones

                              iii.     Speed of the information is spread is very dramatic

1.   No one can keep up

2.   Doesn’t have to go through a second party in order to be printed and distributed

b.    Feminist Jurisprudence

                                 i.     The greatest challenge to constitutional analysis

1.   An approach to law that starts with women’s experience

2.   Looking at the role in women in the presentation of history

a.   Up until the 1980’s, history was presented as the stories of great men

                               ii.     State of nature vs. Community

1.   We’ve always lived in communities—where do freedom of speech issues fit within the community structure?

2.   State of nature theories are very individualistic

3.   What kinds of speech (categories) are positively necessary in a community? (This is the feminist theory)

a.   You not only have a right to free speech, but you also have a right to hear

4.   Justice Brennan was the only Justice to advocate for this

                              iii.     Rejects the distinction of public and private realm

1.   All constitutional rights are rights against the government, not your human rights

2.   What feminists say, lets look at real people’s lives. The public and private realm isn’t that critical.

                             iv.     Examines the Principles of Equality

                               v.     How do we determines what kinds of speech are protected?


Ordinary Level of Scrutiny 


(Constitutional Interpretation in Context)


1.   Minimal—not that its less moral or less good, the government has to choose one way to go or another

a.   Examples

                                                                                       i.     Driving on the right side of the road

                                                                                     ii.     Taxation

2.   No Individual Rights involved

3.   Has to be “reasonable” and “rational”

4.   If a case gets far enough in the courts, it had to do with someone’s rights (government does NOT have rights, it has powers)

5.   It comes up against individual rights claims

a.   Examples:

                                                                                       i.     Before Gender Discrimination, the claim of equal protection was never brought up in the supreme court.

1.   Hoyt vs. Florida—a woman was convicted of murdering her husband. She felt her due process was violated because she had no women on her jury. Florida law did not require women to be required to serve jury duty.

2.   REA vs. NY (1949)—trucks could only advertise their own business, not trucks for hire. 


Intermediate Level of SCrutiny


(Constitutional Interpretation Context)


1.   A constitutional protection interest is applied, even though nothing is directly at steak

2.   Example: Gender Equality—not a constitutional right, but a protected constitutional interest.

Strict Scrutiny ("Compellin State Interest")

1.   Applied to cases when either a fundamental constitutional right is at steak OR a suspect classification is being used in the law.

2.   The government can have these cases upheld as long as they meet 3 condidtions:

a.   Involves a compelling state interest, not an important state interest.

                                                                                       i.     It has to have an interest so overwhelming they have no choice to pursue it.

b.   The means they’re using will bring about that goal

The law be the least restrictive as possible

Applicable "Principles" of Free Speedch Interpretation
  1. "Firstness of the First" "Preferred Position"
  2. 2 levels of Government
  3. "Void of Vagueness"
  4. Undue Official Discretion
  5. Overbreadth
  6. Unconstitutional on its face vs. "as applied"
  7. Content or Viewpoint Neutrality
  8. Time, Place, Manner
"Firstness of the First" or "Preferred Position" Principle of Free Speech Interpretation

   The first amendment isn’t the first amendment for no reason, its in the “preferred position” There is a reason why they put this amendment at the top of the list. 

"2 levels of Govt." Principle of Free Speech Interpretation

                                 i.     John Marshall Harlan Jr.

                               ii.     When the court is faced with a policy limiting freedom of speech, they are more lenient to state and local government than federal government

1.   State and local government has to deal with more day to day things that may possibly be interfered with by freedom of speech.

"Void for Vagueness" Principle of Free Speech Interpretation

                                 i.     You can’t protest if its likely to occasion a breach peace (too vague)

"Time, Place, and Manner" Principle of Free Speech Interpretation

                                 i.     Any involvement that involves more than the written word (Written word doesn’t actually come up a lot in Free Speech SC cases)

                               ii.     How they characterize certain free speech policies, especially public forums

                              iii.     Where can people protest? When can they do certain demonstrations?

Manner is the most elastic: Are you allowed to sit-in the middle of the street? 

"Intentions of Framers" Approach to 1st amendment

                                 i.     Gives justices something else to draw on

1.   Example: Scalia considers himself to be an “originalist”

                               ii.     Displaces source of your decision on something else

1.   Would draw on framers writings, previous documents. However, presents a very limited and narrow approach

                              iii.     Problems: Who is a framer? How can you really know their intentions when there was no notes?

1.   There is historical evidence that the framers had only wanted to eliminate “prior restraint”

"Absolutism" approach to the 1st amendment

                                 i.     Emphasizes the fact that the amendments says “Congress shall make NO LAW abridging the freedom of speech or press”

                               ii.     That’s it, its clear cut, no boundaries, done!

"Literalism" approach to 1st amendment

                                 i.     Literalists look at exactly what kind of speech may be abridged, and if that counts under freedom of speech

1.   Is speech just spoken? The written word? Pictures? Symbolism? 

"2 tiers of speech" appraoch to the 1st amendment

                                 i.     Different than 2 level speech (state and federal)

                               ii.     Two tiers: 1st tier is speech that is always protected, and the 2nd tier is speech that is debated


"Balancing of Interests" (principles v. ad hoc balancing) approach to 1st amendment



                                 i.     Principled balance: typically involves the creation of an approach to freedom of speech that already builds in the elements of what will be balanced. What will be on the “scale” is already decided.

1.   Theory of Clear and Present Danger

                               ii.     Ad hoc balance: lets look at all the characteristics of the challenged law with its arguments and decide which one gets more weight.

1.   When newspapers are commenting on a criminal case (i.e., George Zimmerman)

Do we put a “gag order” on the press? Do we move the trial?

Public Spaces as "non" or "limited" fora (places where the government has the ability to limit freedom of speech because of their location)

                                 i.     Airports

1.   People soliciting money (Harry Krishna)

2.   Jews for Jesus Advocates—which lead airports to adopt policies that outlawed 1st amendment rights

a.   Overbroad—policies meant that you couldn’t read a book, talk to friends, etc (didn’t specify in policy)

3.   Most airports are publicly owned by government, or a combination of private/ public.

a.   Argument: government is not acting as a government in an airport, it’s a proprietor (therefore, 1st amendment need not apply)

                                                                                       i.     Also applies to political advertising on buses.

                               ii.     Post offices

1.   Quasi- public

2.   Mailboxes are government property

a.   You aren’t allowed to put something in a mailbox unless it  has a postage stamp

                              iii.     Polling places

1.   100 feet rule for electioneering

2.   “Ensures the sanctity of the Electoral Process”

3.   Otherwise, it means voters can be harassed when trying to vote

a.   Also prevents the spread of false information

4.   A new law prevents the ban of sales on the day of an election

                             iv.     Public schools

1.   Court have upheld ordinances saying you can’t make noise load enough to disrupt a school

2.   Morse v. Fredrick (“Bong hits for Jesus” case) upheld a student’s suspension because of the zero-tolerance policy for drug paraphernalia

                               v.     Health care facilities

1.   Public streets in front of the health care facility is the real issue

a.   Schenk vs. Western New York Pro-Choice advocates

                                                                                       i.     15 ft floating buffer to anyone who went in a health center (so if they move, you move too)

                                                                                     ii.     Changed to an 8 foot buffer in Hill v. Colorado

                             vi.     Residential streets

1.   Anti-abortion picketers going to a doctors home

a.   You cannot picket before or about a residence

b.   A residence is different than a business (left up to consideration if someone ran a business from their home)

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