J300 Ch. 3

What is categorical balancing? What is ad hoc balancing? How are they used in First Amendment law?

-Categorical balancing: The process through which courts reach judgments by weighing different broad categories, such as political speech, against other categories of interests, such as privacy -Ad hoc balancing: Making decisions according to the specific facts of the case under review rather than more general principles.

What concerns were raised by the Supreme Court's decision in Christian Legal Society v. Martinez? Contrast that decision with Rumsfeld v. Forum for Academic and Institutional Rights, Inc.

-Christian v. Martinez: ruled that school could deny funding/other benefits to an explicit religious student group whose members were required to sign a statement of faith. -Rumsfeld v. Academic: court ruled that federal gov could constitutionally withhold funding from universities if they refuse to give military recruiters access to school resources

How did the decision in Virginia v. Black differ from R.A.V.? Why?

-Court ruled that cross burning can be punished if its intent is to harm.

How has the Court treated college and university speech differently than high school speech?

-Court tends to protect free speech/press rights of university students as an essential part of the educational experience. Court viewed campus publications as forums for student expression in which universities may not control content.

What is the clear and present danger test? What Supreme Court justice created it, in what case?

-Doctrine establishing that restrictions on First Amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent harm. -Justice Oliver Wendell Holmes in Schenk v. United States

What are "fighting words"? In what case did the Supreme Court allow government to punish the utterance of fighting words?

-Words not protected by the First Amendment because they cause immediate harm or illegal acts. -Chaplinsky v. New Hampshire

What is symbolic speech?

-Actions that convey a message are protected. nonverbal expression (flag burning, lawn signs for candidates)

In regard to public forum law, how has the Supreme Court viewed public schools?

-Limited public forums; schools may impose reasonable content-neutral time, place and manner regulations on student speech activities to advance educational objectives.

What is a "chilling effect" on free expression?

-The discouragement of a constitutional right, especially free speech, by any practice that creates uncertainty about the proper exercise of that right.

What was the importance of the Seventh Circuit's decision in Hosty v. Carter? (The Governors State case.)

-Administrator called the printing plant for school newspaper and cancelled the articles unless he approved them. Printer called editor of school newspaper letting him know, paper editor got pissed. Court ruled 50-50 to paper/administration. Does violate 1st amendment but the administrator couldn't have known she was violating 1st amendment so no damages could be rewarded.

What is the incitement test? What case created it? How does it differ from the clear and present danger test?

-Allows punishment of "advocacy of illegal action" if the speech is 1)Directed toward inciting 2) Immediate violence or illegal action 3) Is likely to produce that action. -Bradenburg v. Ohio -For years, courts used the "clear and present danger" test, to determine the proper balance between freedom of speech and harmful incitement of lawless activity. Under this loose test, courts asked whether the words used had a tendency to create the kind of danger lawmakers might constitutionally prevent. In early 20th-century rulings, the Supreme Court used the test in several First Amendment cases and frequently upheld the constitutionality of laws that overtly constrained unpopular political speech. The test was fine-tuned over the years and eventually evolved into the current Brandenburg test. Under Brandenburg, the Constitution prohibits government punishment of advocacy of an idea unless the speech is meant to and likely to produce imminent illegal action.

What was the significance of Gitlow v. New York?

-Benjamin Gitlow was the business manager of a branch of the Socialist party. He oversaw publication and distribution of the party's literature: pamphlets, etc. There was no evidence that the pamphlets caused harm or disruption, but the Supreme Court upheld the conviction, saying that the pamphlets "endangered the foundations of organized government and threatened its overthrow by unlawful means." -However, the Doctrine of Incorporation was established from this case. Incorporation prevents state and federal governments from abridging protected First Amendment Rights.

What was the Supreme Court's decision in R.A.V. v. St. Paul? What was its reasoning?

-Burning a cross in the yard. Five justices said the law was too narrow, or underinclusive, because it punished only a specific subset of fighting words that the government found particularly objectionable. Thus, the law imposed unconstitutional viewpoint-based discrimination because it censored expression on the basis of the message expressed.

What was the Court's opinion in Cohen v. California? What was the case about?

-First Amendment protected both the content and the emotional value of a message. Information would have been lost, and Cohen's message would have been diluted, if he were forced to express his opposition to the war by declaring, "Please do not support the war." Meaningful protection for free speech went beyond the "cognitive content" of expression to protect its "emotive function" -It's not what you say, it's also how you say it. -Involved an anti-war protest by Paul Robert Cohen, who wore a jacket in the Los Angeles Courthouse bearing the phrase "**** the Draft." Convicted of disturbing the peace for "offensive conduct," Cohen appealed on First Amendment grounds, arguing that the conviction targeted his pure political speech.

What was the outcome of Texas v. Johnson? United States v. O'Brien? Why did the outcomes differ despite similar conduct by the defendants?

-Johnson burned the American flag at a republic convention in Texas where there is a state law that made it illegal to decimate the American flag. He appealed and SC agreed saying that the Texas law was unconstitutional and a violation of free speech and symbolic speech is protected in the first amendment. -The outcomes different bc when o'brien burned his draft card although it was symbolic speech, he was disrupting the function/efficiency of the drafting process. And Johnson was simply making a statement

What is the significance of Morse v. Frederick?

-Olympic torch was being run through the town & school got out early to cheer on torch bearers. Kid mad a banner that said "bong hits for jesus". SC ruled for school district. It was a pro drug message & school district had the right to protect students from pro drug message

What was the importance of Hazelwood v. Kuhlmeier? Why did the Court rule as it did?

-Principle took out 2 articles in schools newspaper, SC ruled in favor of the school district, a school newspaper isn't a public forum & therefore is more of a private activity that gave school greater latitude to censor what is said.

How did the Court rule in the Tinker case in regard to school speech?

-School administrators did not have authority to control the students' silent political expression unless that expression materially or substantially disrupted the school's educational activities, which it did not. -The school's decision to ban only the armbands but not other potentially disruptive expressive symbols suggested that the administration was attempting to exclude disfavored viewpoints.

What is incorporation, when we use the term in First Amendment law?

-The Fourteenth Amendment concept that most of the Bill of Rights applies equally to the states. Applies the Fourteenth Amendment's due process clause to limit the power of state and local governments to abridge the guarantees of the Bill of Rights. Prevents the states, as well as the federal government, from abridging protected First Amendment rights.