Const. Development Test 3

are protections of 1st absolute?

"Congress shall make no law", SC has never taken the view that the First Amendment protections are absolute in character - Only a few justices who have served on the court have argued for an absolutist interpretation

Fighting words, chaplinsky v. New Hampshire

- "certain well defined and narrowly limited classes of speech - Prevention and punishment of which have never thought to raise any constitutional problem - Include the lewd and obscene, profane, libelous, and the insulting or fighting words - Those that inflict injury or tend to breach of the peace - Been determined that utterances are no essential part of any exposition of ideas - Are of such slight social value as a step to the truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality

hate speech

- 1980s number of areas adopted laws to protect African American and other minority groups from hate crimes v. saint Paul - Minnesota had a law that stated whoever places a symbol, object etc. including but not limited to a burning cross, Nazi symbol, etc., and knows it will cause anger will get a misdemeanor

cussing canoeist

- 1998, Tim Boomer fell into a river and yelled profanity. Convicted of uttering profanity in front of children, fined 75 dollars, four days of community service. He appealed his conviction. Court struck down the statute stating that the law "as drafted reaches constitutionally protected speech, and it operates to inhibit the exercise of First Amendment rights"

examples of time place and manner regulations

- 500 feet , traffic purposes, security purposes , school tells students it may not discuss politics during class, court may require that no one say anything in the court room unless they are an attorney or a witness at the stand

13th amendment

- Abolished slavery - Congress enacted the civil rights act of 1866, guaranteed that the new freed former slaves would not be denied basic economic freedoms and property rights or access to the courts to enforce these rights

Hugo opinion

- Best known and most forceful of the First Amendment absolutists - Believed that all speech and writing regardless of its purpose, content, or impact, should absolutely be protected against censorship or sanction - Believed that criminal laws prohibiting obscenity, profanity, and seditious speech were inherently unconstitutional - Believed that laws that permitted civil suits for libel or slander could not be reconciled with the First Amendment - His POV: first amendment gives everyone the right to say or write anything regardless of its impact on other individuals or society in general - He also believed that the protections were limited to pure speech and pure writing - Picketing and other forms of expressive conduct were not covered by the First Amendment ONLY SPEECH NOT EXPRESSION

time place and manner regulations

- Can justify the restriction of first amendment activities in the public forum - General rule: such regulations must be reasonable, narrowly drawn, and content neutral

United States v Seeger

- Case involving four men who claimed conscientious objector status in refusing to serve in the Vietnam war - Seeger was not a member of any such organized religion group - Sought conscientious objector status on religious grounds - When asked, "you could call it a belief in the supreme being or God. These just do not happen to be the words that I use - Court avoided political question. Stated " congress in using the expression supreme being rather that the designation God, was merely clarifying the meaning of religious tradition and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views" - Majority opinion: the test was whether "a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to the orthodox belief in God. - Court was persuaded that Seeger, Peter, and the others whose refusal to serve in Vietnam possessed such a belief and recognized them as conscientious objectors on religious grounds

1971, court significantly narrowed the fighting words exception

- Cohen v. California : court refused to classify as fighting words the message" **** the draft" on the back of a jacket. Worn by Paul Cohen in the corridors of the LA county courthouse - Reasoning: no individual present could have interpreted that as a direct personal insult

symbolic speech and expressive conduct

- Cohen v. California, R.A.V. St. Paul make clear: the protection of the First Amendment is not limited to pure speech only - Symbolic speech: is applied to a wide range of nonverbal communication that is subject to First Amendment protection - Of course, not every symbol is entitled to constitutional protection, it depends on the circumstances in which the symbol is displayed

history of 1st amendment religion

- Comes from Latin religare, means to "tie down" or "restrain" - Theological connotation - Davis v. Beason (1890)- the term religion has reference to ones view of his relations with his creator, and obedience to his will - By the 1960s, religion became more diverse

strict scrutiny

- Compelling government interest test - When a law or policy impinges on a right explicitly protected by the constitution such as a right to vote - The ordinary presumption of constitutionality is reversed, means that the challenged law or policy is presumed to be unconstitutional - Burden shifts to the government to show that the law or policy furthers a compelling government interest - Gov must show that the law is narrowly tailored to achieve this interest - Heavy burden for gov - Most laws to strict scrutiny are declared unconstitutional - Pornography case, the law served a compelling interest in protecting children from the abuse with the pornography industry

Unconventional Religious Practices

- Court has generally rejected arguments that the free exercise clause allows religious groups to engage in activities that are proscribed as detrimental to public health, safety, or morality - SC has upheld laws that limit practices in the name of religion, such as polygamy, drug use, and other unconventional practices - Example: 1975, court refused to review a lower court decision upholding Tennessee's law prohibiting the handling of poisonous snakes in religious ceremonies

Near v. Minnesota 1931

- Court struck down state law permitting public officials to seek an injunctin to stop publication of any "malicious scandalous and deframatory newspaper, magazine or other periodical - Invoked to suppress publication of a small paper (Saturday press) had strong anti-emitic overtones and maligned local political officials (chief of police) - State law stated that once a newspaper was enjoined, further publication was punishable as contempt of court - Hughes characterized this mode of suppression as the "essence of censorship" and declared it unconstitutional - Also with decision, court specifically incorporated the first amendment freedom of the press into the due process clause of the fourteenth amendment, making it fully applicable to the states - This restricton is not absolute

equal protection clause

- Desire to protect the rights of the former slaves - Does not limit the right to equal protection of the laws to any particular group - Plessy v. Ferguson- court seemed oblivious to oppressions, rejected an equal protection challenge to state law requiring racial segregation on trains - Brown v. Board of education- court invalidated compulsory racial segregating in public schools, and in a series of subsequent decision in which the court struck down other types of Jim crow laws - Since brown, federal courts have relied heavily on the EPC in advancing the civil rights not only of African Americans, but also of women and various minority groups - Have relied on it in seeking to ensure fundamental fairness in the political process

the lemon test

- Does not contain hard and fast criteria for judicial decision making - It is subject to some degree of manipulation by those who are predisposed to a particular result

Abrams v. United States

- Eight months after Schenk, clear and present danger standard was ignored by a court majority - Court affirmed the convictions of Jacob Abrams - He was a self-styled "anarchist socialist" and sever associates for distributing leaflets in NYC urging the workers of the world to resist among other things

Justice h clark for Abrams opinion

- Enough that Abrams was advocating a general "in the greatest port of our land" for the purpose of "curtailing the production of ordinance and munitions necessary and essential to the prosecution of the war" - Clarke accorded little importance to the free speech question, focusing instead on the possibility that Abrams's circular might in some way hinder the war effort - His opinion amounted to an endorsement of the traditional bad tendency test from common law

Separation of the church and state

- Establishment clause was adopted in contradiction to the proactive, of having official churches supported by taxation - Congress shall make no law rejecting an establishment of religion, indicates a broader restriction that mere prohibition of an established church - There is no consensus on how high or thick the wall of separation should be. Some believe that the gov must strictly be neutral in matters of religion and that any trace of governmental support for religious belief or practice must be expunged

clear and present danger doctrine

- Even though a specific instance of expression may not be censored prior to its utterance or publication, it may still be subject to sanctions after the fact - Indy. May me subjected to criminal prosecution or civil suit for instances of expression that violate specific legal prohibitions - Whether such instances of expression are protected by the first amendment depends on a number of factors, including the nature of the expression and context in which it takes place - - Traditional view of freedom of speech (grounded in English common law) : bad tendency test - Expression could be penalized if it had a tendency to harm the public welfare - PATTERSON V> COLORADO (1907) SC appeared to endorse this view with respect to const. - FOX V WASHINGTON (1915) court upheld a state law that explicitly adopted the bad tendency test by criminalizing publications "having a tendency to encourage or incite the commission of any crime, breach of the peace or act of violence"

universal military training and service act

- Exempted from combat duty anyone who by reason of religious training and belief is conscientiously opposed to participation in war in any form - Defined "religious training and belief" as training or belief in a relation to a supreme being involving duties superior to those arising from any human relation - Forest Peter (another man who refused to serve before Seeger) claimed that after considerable meditation and reflection "on values derived from the western religious and philosophical tradition" he determined that it would be "a violation of his moral code to take human life and that he considered this believe superior to any obligation to the state

everyone v. board of education 1947

- Explicitly adopted Thomas Jefferson's wall of separation metaphor as encapsulating the meaning of the establishment clause - The first case in which the SC applied the establishment clause to the states via the 14th amendment - Issue was whether a local school board could reimburse parents for expenses they incurred in transporting their children to and from catholic schools - Payments to parents of children in religious schools were part of a general program under which all parents of children in public and nonprofit private schools, regardless of religious affiliation, were entitled to reimbursement for transportation costs

preferred position historically first

- Has roots in the American colonial experience, especially during the decades immediately preceding the American Revolution - Media during the time period (small independent newspapers and pamphlet publishers) played a vital role in facilitating political debate and in disseminating information - Ratification of the Const. was vigorously debated not only in the state ratifying conventions but in the press - The Federalist Papers, and Anti-Federalists also made wise use of newspapers to oppose ratification

intermediate scrutiny

- Heightened scrutiny - Most important in reviewing claims of gender based discrimination under equal protection - Also applied in resoling 1st amendment issues in the field of commercial speech - Less rigorous than strict scrutiny but more demanding than the rational basis test

Douglas v. City of Jeanette 1943

- Held that police could not prohibit members of the Jehovah's witnesses from peaceable and orderly proselytizing on Sundays merely because other citizens complained - Tried to make pay for permit to go door to door, can't make someone pay for something that is const. guaranteed

issues w lemon test

- How can the purpose of a challenged law be determined with certainty by the courts? - How does one distinguish the principal or primary effects of a law from its secondary or tertiary effects? - How much entanglement between religion and government is excessive? - Court has moved away from a strict application of the lemon test but has stopped short pf repudiating it altogether . IT IS TOO BROAD

speech and the sc

- Idea of free speech is a largely modern notion that corresponds with the emergence of liberal democracy - Ancient and medieval worlds Freedom of speech was unthinkable - In England idea of FOS emerged gradually, coincident with the development of the parliament - Supreme court did not pay attention to the values of speech and press during the early days of the republic - Full force of the rights were curtailed by government - For a brief period, John Adams(pres at time) sought to suppress public criticism through enforcement of the Sedition Act (passed by congress in 1798) - Jefferson had partisans prosecuted under the act - Both feel that it is v important

profanity

- In Chaplinsky v. New Hampshire, the SC specifically enumerated profanity as being included in the categories of speech so lacking in value as not to merit First Amendment protection, however the view no longer prevails -Cohen v. California, the SC overturned the conviction of a man who entered a courthouse with "**** the draft" on the back of his jacket

14th amendment

- Legal status of former slaves? - Dred Scott- SC defended the institution of slavery but indicated that blacks were not citizens of the US and did not possess rights or privileges such as those who held power and the government might choose to grant them - Immunities Clause- citizens of each state shall be entitled to all privileges and immunities of citizens in the several states - Due process for the states

incorporation of religious clause

- Madison proposed that the state as well as federal establishments of religion be prohibited - first congress rejected, recommended states make their own decisions -1940, SC ruled that the religion clauses were of sufficient importance in a scheme of ordered liberty to warrant their application to the states through due proves

9th amendment

- Makes it clear that individuals retain a reservoir of rights and liberties beyond those listed in the constitution

during civil war and speech

- Number of limits were imposed on freedom of speech - Included newspaper censorship and the prosecution of some of the more vociferous critics of the Lincoln administration - No constitutional challenges raising the First Amendment issues reached the supreme Court

Fifteenth Amendment

- Prohibits states from engaging in racial discrimination with respect to voting rights

4th amendment

- Protects citizens from unreasonable searches and seizures conducted by police and other government agencies - Important : pervasiveness of crime, ongoing war on drugs, recent war on terrorism - Katz v. United States (1967)- SC expanded the scope of 4th to include wiretapping

8th amendment

- Protects person of accused crimes from being required to post excessive bail to secure pretrial release - Excessive fines, cruel and unusual punishment

symbolic speech during Vietnam era

- Protests created an number of controversies over symbolic speech UNITED STATES V. O'BRIEN(1968): - David Paul O'Brien burned his selective service registration certificate on the steps of the South Boston Courthouse - In presence of a sizable crowd - Convicted for a violation of a federal law providing that an offense was committed by any person who "forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any certificate" - Majority stated that congress had fill constitutional authority to prohibit the destruction of the draft cards, they are after all government property and not Mr. O'Brien's. - Court rejected the first amendment claim of a Vietnam war protester that publicly burned his draft card was a form of constitutionally protected speech

minimal scrutiny

- Rational Basis Test - A law that touches on a constitutionally protected interest must at minimum, be rationally related to furthering a legitimate government interest - Example: state law prohibiting performing surgery without a license, impinges on constitutionally protected interests by depriving laypersons of their right to make contracts freely and discriminating against those unwilling or unable to obtain a license - Yet, is a rational means of advancing the states legitimate interests in public health and safety - Rational basis test: courts begin with a strong presumption that the challenged law or policy is valid - Burden of proof is on the party making the challenge to show the law or policy is unconstitutional - Party must demonstrate that there is no relational basis for the law or policy - Difficult showing to make, application of the rational basis test leads to a judgement sustaining the constitutionality of the challenged law or policy

Due process 5th amendment

- Refers to the exercise of governmental power under the rule of law with due regard for the rights and interests of individuals - Can be traced from magna carta - Procedural due process: shorthand for the protection of life, liberty, and property by appropriate legal procedures, including fair notice and a fair hearing

Texas v. johnson

- Rehnquist court answered if flag burning was a form of symbolic speech protected by the first amendment - Took down the flag protection act Johnson burned the American flag outside a republican national convention. He was prosecuted under a Texas law prohibiting flag desecration. He was convicted at trial, conviction reversed by Texas court of criminal appeals, they held that Johnson's conduct was protected by the first amendment. -U.S. supreme court agreed 5-4. Controversial because conservatives joined majority and liberals joined dissent Opinion: Johnson was convicted for engaging in expressive conduct. State cannot support this because Johnson's conduct did not threaten to disturb the peace. Nor does the state's interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression Dissent: challenged the opinion, "flag burning is the equivalent of an inarticulate grunt or roar that... is most likely to be indulged in not to express any particular idea, but to antagonize others."

PENTAGON PAPERS

- Revisited the question of prior restraint on the press in the much heralded Pentagon papers case in the summer of 1971 - Fed gov tried to attempt to prevent the NY times and WA post from publishing experts from a classified study "History of U.S decision making process on Vietnam policy" - 6-3 vote, held that the government's effort to block publication of this material amounted to an unconstitutional prior restraint - Majority was not convinced that such publication after several years and events constituted a significant threat to national security

7th amendment

- Right to a jury trial in federal suits - Issue exceeds $20

2nd amendment

- Right to keep and bear arms - Also the need for a well-regulated militia - Columbia v. Heller- court decided that the 2nd amendment protects a personal right to keep and bear arms

3rd amendment

- Right to keep and bear arms - Also the need for a well-regulated militia - Columbia v. Heller- court decided that the 2nd amendment protects a personal right to keep and bear arms

5th amendment

- Rights of persons accused of a crime - Obtain an indictment from a grand jury before trying someone - Prohibits double jeopardy - Protects against self-incrimination - Eminent domain - Protects against gov't depriving a person of life, liberty, or property without due process of law

6th amendment

- Rights of the accused - Speedy and public trial, by an impartial jury - Trial by jury - Defendants the right to confront witnesses and to have compulsory process to require favorable witnesses to appear in court - Right to counsel (Gideon v. Wainwright 1963)

public forum

- SC has recognized legitimate community interests that may limit speech and assembly, but it has tended to favor the 1st amendment right of groups to assemble and express themselves in the public forum - Especially for the purpose of communicating a political message - Such expressive activities in the public forum are an essential part of the democratic process

zoning regulations

- Time, place, manner restrictions often take the form of local zoning requirements that have the effect of limiting freedom of expression Heffron v. international society for Krishna consciousness: majority of 5 justices upheld a Minnesota zoning restricton limiting solicitation at the state fair. It applied to an organization wishing to distribute and sell religious literature and request donations from fair patrons. Regulation applied to nonprofits at a first come first serve. Overall for touching freedom of expression judges must determine whether a given law is to be viewed as primarily a content neutral time, place, and manner restriction or as a deliberate attempt, under the guise of this rationale, to limit freedom of expression

Recognized in original constitution

- Trial by jury - Circumscribing the crime of treason - Prohibition of religious tests for public office - Protecting writ of habeas corpus - No ex post facto laws - Bills of attainder- legislative act that imposes punishment on a person without benefit of a trial in a court of law - Contracts clause

clear and probable danger test

- adopted by Chief Justice Frederick M Vinson -announcing the SC's judgement affirming the convictions -new standard in each case to ask "whether the gravity of the evil discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger"

4 criteria for modern decisions/ working definition of religion :

- belief in god - moral code -associational ties -demonstratable sincerity of belief 1.)must be a belief in God or some parallel belief that occupies a central place in the believer's life 2.) the religion must involve a moral code that transcends individual belief. It cannot be purely subjective 3.) Some associational ties must be involved. That is, there must be some community of people united by common beliefs 4.) Must be a demonstrable sincerity of belief. Under this criteria, even nontheistic creeds, such as Taoism or Zen Buddhism qualify as religions. But made up ones wont.

Schenk v. U.s. 1919

- clear and present danger - An official of the socialist party was convicted for conspiring to print and circulate leaflets urging resistance to the military draft - Leaflets urged resistance to the draft on the grounds that it violated the 13th amendment - Schenck's message was confined to the advocacy of peaceful measures, such as petition for repeal of the draft Unanimous supreme court believed that shank's activities amounted to a clear and present danger Schenk's prosecution occurred during world war 1 - First major supreme court decision interpreting the scope for free speech under the first amendment - Court moved away from the bad tendency test - Made a plan that there are instances in which speech that is normally subject to constitutional protection may be suppressed by the government - Upheld the suppression of dissident speech

Interprative foundations of the religion clauses

- equally broad disagreement about what the clauses require, permit, and forbid

3 prongs for lemon

- secular legislative purpose - cannot inhibit or advance religion -avoid excessive government entanglement with religion 1.) Must have a "secular legislative purpose" 2.) It must not have the principal or primary effect of "inhibiting or advancing religion" 3.) Must avoid an "excessive government entanglement with religion"

1st and the courts

-Because of the constitutional revolution of 1937, the SC moved away from the protection of private property rights and toward the enhancement of personal freedoms. -First Amendment was prominently the court's new emphasis -Members stated that the freedoms of speech and press enjoy a "preferred position" in relation to other constitutional guarantees -Court then abandoned the preferred freedoms language, freedom of expression was accorded high priority during Warren Court

R.A.V. st paul (1992)

-SC declared the ordinance unconstitutional , the ordinance is unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects speech addresses -Raised concerns to hate crime punishments, but people can get a criminal trespass, malicious mischief, vandalism, enhancing or extending criminal penalties based on characteristics of the crime or the victim

1st amendment

-congress cannot establish a religion -free exercise clause limits government from free exercise there of -religion clauses remain both important and controversial -protects freedom of expression (speech and press) -protects the right of the people peaceably to assemble and petition the government

Religious speech and expressive religious conduct

-highest degree of protection Cantwell v. Connecticut (1940)- court struck down a state law that prohibited door-to-door solicitation for any religious or charitable cause without prior approval of a state agency. Law was challenged by Newton Cantwell, a member of the Jehovah's witnesses, a sect committed to active proselytizing - Cantwell and sons went door to door and stopped people in the street to order a communicate a message that was highly critical of the Roman Catholic Church and other organized religions. Were arrested and charged with failure to obtain approval for solicitation under the state law, as well as with common law breach of the peace. Court reversed the breach of the peace conviction - Stated: in regard to religious faith and political belief, differences arise. One may need to persuade others to join, and they can resort to exaggeration to vilification of men who have been, or are, prominent in church and state and even to false statement . These liberties in the long view, are essential to an enlightened opinion and right conduct on the part of citizens of a democracy.

what constitutes a public forum?

-issue has been defining public forum -public forum: includes not only streets and parks but any property that government "has opened for use by the public as a place for expressive activity" U.S. v. Grace (1983): court recognized that the sidewalks surrounding the Court's own building in Washington D.C. qualified as a public forum and struck down the federal law forbidding use of that space for picketing or handing out leaflets

tinker v. des moines in

-less defiant form of symbolic speech in opposition to the Vietnam war -HS students john tinker and Christopher Eckhardt and tinker's sister Mary Beth, wore black armbands to school to protest the American involvement in the Vietnam war -school officials had adopted a policy that students refusing to remove such armbands would be suspended until they agreed to return to school without them -students refused to remove their arm bands and got sent home under suspension -bought suit to recover nominal damages and to enjoin school officials from enforcing the regulation -SC rejected the lower courts view that the action of the school officials was "reasonable" - concluded wearing the armbands was not disruptive conduct, and was pure speech which is entitled to protection under the first amendment -for it to invalidate, must prove there was a harm rather than an unpopular viewpoint

Majority Hugo Black for interpretations of establishment

-neither a state or the fed gov can set up a church. - Neither can pass laws which aid one religion, aid all religions, or prefer one religion over the other. -neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion -no person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance -no tax in any amount can be levied to support any religious activities or institutions -Neither a state or fed gov can openly or secretly participate in the affairs of any religious organizations or groups and vice versa -the clause against establishment of religion by law was intended to erect a wall of separation between church and state

How far does the first amendment allow the government to go in recognizing, endorsing, or accommodating religious beliefs?

-practice of congress and every state legislature of paying a chaplain to lead public prayer -"in god we trust" on American currency -SC and "god save the united states and this honorable court" -"one nation under god" pledge of allegiance -What about the rights of nonbelievers? The answer to the question is far from clear.

lemon test

1971, the court laid down a three pronged test for determining the constitutionality of polices challenged under the establishment clause. - Synthetized various elements of the court's establishment clause juris residence as it had evolved during the 1940s, 50s, 60s. - Has been applied to a broad range of issues involving separation of church and state - Must meet the following criteria in order to pass constitutional muster under the establishment clause

dissent for everson

: professing sympathy for the economic hardships involved in sending one's children to private, religious schools. Basically if your going to pay for private school you can pay for them to get to school

free exercise clause

A First Amendment provision that prohibits government from interfering with the practice of religion. - applied to the states in Cantrell v. conneticut - arguably incorporated in Hamilton v. Regents of the University of CA

Child Benefit Theory

A criterion used by the U.S. Supreme Court to determine whether services provided to nonpublic school students benefit children and not a particular school or religion.

Religion today

All levels of government, from local school boards to the U.S. congress are now required to abide by the strictures of the religion clauses

establishment clause

Clause in the First Amendment that says the government may not establish an official religion. -Everson v. Board of Education (1947)

summary of the history of first amendment

Const. freedoms of expression came of age in the 20th century -1920's and 1930's, SC incorporated freedoms of speech, press, and assembly into the Fourteenth Amendment -making them fully applicable to the states as well as the federal government -Majority of court has never regarded the First Amendment freedoms as absolyte, these freedoms have come to be regarded as fundamental rights essential to the preservation of a constitutional democracy

Examples, Flag Salute Controversy:

Minersville School District v. Gobits (1940), West Virginia State Board of Education v. Barnette (1943) Gobits: - Court upheld a local school board directive requiring public school students to salute the American flag as a part of the daily class routine - Then in the most rheumatic turnabout in the history of the core overruled this precedent three years later and the second flag salute case - In Barnett six-member majority recognize the right of schoolchildren who were members of Jehovah's Witnesses to refrain from participation the flag salute ritual - opinion: Jackson observes that "no official higher pretty can prescribe what Shelby Orthodox and politics nationalism religion or other matters of opinion or for citizens to confess bye word or after faith they're in."

others opinion

OTHERS-Court has never taken position that the protections of the 1st are absolute -court has recognized that certain types of expression including fighting words and defamation, are largely outside the scope of the first Amendment Fighting Words Defamation - Held that speech is normally protected by the Constitution might not be protected on the circumstances in which it takes place - Court has recognized that the protections of the First Amendment are not limited to pure speech and writing. Rather, the First amendment potentially protects communication of any kind (protests, demonstrations, performances, advertisements, and artistic endeavors) are all within the ambit of expression First Amendment protects communication, regardless of its nature or medium. Whether specific instances of expression merit First Amendment protection or may be censored or sanctioned by government depends on a number of factors.

boos v. Barry 1988

SC shut down a district of Columbia regulation that prohibited the display of signs within 500 feet of a foreign embassy if the message displayed on the signs brought the embassy's government into "disrepute" - At the same time, court sustained the regulation permitting police to disperse assemblies within 500 feet of embassies - Former regulation was a restriction on the content of a political message, the latter, if applied evenhandedly, was regarded as a legitimate time, place, and manner regulation

saia v. new york

SC struck down a local ordinance that gave unlimited discretion to the chief of police for forbidding or permitting the use of sound amplification devices, such as loud speakers

street v. new york 1969

STREET v. New York (1969) - Question addressed: whether the burning of the American flag is entitled to constitutional protection as symbolic speech - Court focused on the element of verbal expression presented - Effectively avoided the symbolic speech issue Facts: -Street learned that there was an assassination attempt on a civil rights leader - Then burned his American flag on a Brooklyn street corner, saying "we don't need no damn flag" - Convicted of malicious mischief - Opinion states: street may have been punished for his speech as well as for burning the flag. Concluded that he could not be constitutionally punished for his words alone. Didn't rule on the question for the flag burning, even though the burning was an act of protest

Time, Place and Manner regulations (religion)

The 1st amendment affords unlimited protection to freedom of belief per se - The actions of believers in proselytizing and soliciting contributions are also highly protected by the First Amendment, but any religious expression in the public forum is subject to reasonable time, place, and manner restrictions

slaughterhouse cases- 1873

adopted a very narrow view of the immunities clause. Held that it required the states to respect only the privileges and immunities of national citizenship, which the court defined to include the right of access to the seat of the Nat govt, the right to demand the fed govs protection on the high seas, the right to use the navigable waters, the privilege of habeaus corpus, and other rights - Purpose was- the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion in him

10th amendment

amendment - Delegated to the states - Applies to matters of federalism and is not directly related to individual rights and liberties

sanction

can punish someone after the fact

ad Hoc balancing test

case by case basis -Aftermath of Dennis, court moved away from clear and present danger and relied on ad hoc balancing -to determine the limits of first amendment protection in the area of internal security - amounted to a process of decision making rather than a clear, interpretive doctrine It is doubtful that a standard such as clear and present danger is, on close analysis, any more definite

immunities clause

citizens of each state shall be entitled to all privileges and immunities of citizens in the several states

Sherbert v. Verner (1963)

court said that freedom of religion is a fundamental right that could only be abridged only if necessary to protect a compelling government interest - Established a strong presumption in favor of the free exercise of religion

kovacs v. Cooper 1949

court upheld a narrowly interpreted ordinance prohibiting vehicles on the public streets from operating amplifiers or other instruments emitting "loud and raucous noises" - Requirement of content neutrality is not absolute, gov't cannot depart from it without meeting a heavy burden of justification

virginia v. black

cross burning - Upheld a Virginia law banning cross burning with "an intent to intimidate a person or group of persons" - Opinion: the "first amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation" - " Virginia may choose to regulate this subset of intimidating messages in light of cross burning's long and pernicious history as a signal of impending violence"

procedural due process

embodies the requirements of notice and hearing, requires fundamental fairness in governmental proceedings against individuals

prior restraint

emply censorship to prevent a specific instance of expression from reaching the public

1st amendment parts

expression, speech, press, assembly, association

substantive due process

holds that government is barred from enforcing policies that are irrational, unfair, unreasonable, or unjust, even if such policies do not run counter to the other specific constitutional prohibitions - Lochner v. New York court struck down a law setting maximum working hours in bakeries - Violated both the employers and employees liberty of contract

How did congress enforce the 14th amendment?

in section 5 of the amendment, it is stated that congress has the power to create and pass new laws in order for people to abide by the amendment

Everson v. Board of Ed 1947 Hugo opinion

justified the challenged payments on the theory that the school board was merely funding the state's legitimate interest in getting children "regardless of their religion, safely and expeditiously to and from accredited schools"

substantive due process definition

prohibits government from enforcing policies that are deemed unreasonable, unfair, or unjust, even if they do not violate specific constitutional prohibitions right of privacy can be seen as a contemporary manifestation of substantive due process

the chapilinsky v. New Hampshire case provides

the original statement of the fighting words doctrine - Speech could be punished if it inflicted injury or created a danger that the person addressed would resort to violence - Court underestimated social value of what some would regard as fighting words - No consideration was given to question of whether the police should be expected to exercise more restraint than the average person in responding to epithets - For many years, courts used the fighting words doctrine and the Chaplinsky precedent to justify prosecutions of intemperate street corner orators for incitement to riot or breach of the peace

general rule :

went back to bad tendency test under common law - if speech had bad tendency, it was allowed to be controlled by gov

opinion for clear and present danger

written by Oliver wendell Holmes junior flatly rejected an absolutist interpretation of the first amendment. What has become known as a stock phrase of the American political lexicon: Holmes observed "the most stringent protection of free speech would not protect a man falsely shouting fire in a theater, and causing a panic" He then went on mentioning the clear and present danger test saying that "the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent Example: Gov't has a right, indeed an obligation, to protect the national security If an instance of expression creates a clear and present danger to national security, then the government has the right to prohibit the speech or punish the speaker