People and Concepts

Alien and Sedition Acts dual purpose

1. Dual purpose: revenge against France and protection for the incumbent party against the Republicans.

Alien and Sedition Acts are constitutional

2. The Supreme Court never ruled on the four laws, but lower courts ruled that they (at least the Sedition Act of 1798) did not violate the Constitution. Holmes and Brennan thought they did, that is, the Sedition Act was inconsistent with the First Amendment.

Alien and Sedition Acts Chilling Effect

3. These laws had a chilling effect upon aliens and American critics of the Federalist government.

What is a per curiam opinion? What were some of the arguments made by different justices in the decision?

A per curiam opinion is a court opinion without an identified author. Justice Hugo Black supported the majority opinion. Blackum along with Burger and Harlan also decry the 3-week injunction to Supreme Court timeframe stating that the NY Times had these documents for over 3 months and that it was not a breaking news situation since all events in the papers occurred at least 3 years prior to publication.

What happened in Time v. Sullivan and why is it considered a landmark case?

A political organization placed an advertisement in the New York Times called an advertorial. It sought out to raise funds to defend MLK Jr by describing actions against civil rights protestors in Alabama. They referenced L.B. Sullivan, a Public Safety Commissioner in Montgomery, Alabama, in the advertorial but did not state his name. Several statements in the ad were false and supposed to hurt Sullivan's reputation. Sullivan sued the newspaper, not the group who purchased the ad, for libel. Sullivan won a jury award of $500,000 and was upheld by the Alabama Supreme Court. U.S. Supreme Court finds negligence in the case but no actual malice so, they overturned the lower courts decisions on a 9-0 unanimous decision. This was not a story written by a NYT reporter, rather it was a paid-for advertisement that had defamatory language within the paper. The NYT advertising department should have caused the false facts, but the Court says that there is no actual malice. The core holding sets a new rule; Public Officials must prove actual malice in order to win anything in a libel case.

What was the problem with St. Paul's Bias-Motivated Crime Ordinance that caused the Court to overturn the teenagers' convictions in the RAV case?

At first, the court found that the law is overbroad in scope and content-based. But then the Minnesota Supreme Court upholds the law as constitutional because it is narrowly defined to reach only "fighting words". The U.S. Supreme Court reverses Minnesota Supreme Court saying that the law was an unconstitutional content based suppression of speech.

What major change in constitutional interpretation took place in the Gitlow case?

Benjamin Gitlow was a Socialist who was convicted for violating New York's criminal anarchy law He had published a manifesto advocating a Communist revolution and revolutionary actions (to destroy the state). Gitlow argued against the court of appeals by saying that the statue violated the due process clause of the 14th amendment. He lost because the statue was deemed constitutional. The First Amendment was binding upon the states. Holmes and Brandeis still argued for a more narrowly defined definition of the clear and present danger. A state may not violate a constitutional right.

What British jurist's writing argued that freedom of the press meant that there should be no prior restraints. Why is that enlightening?

Blackstone believed liberty required no prior restraint of press. He wrote, in volume 4 of the Commentaries, "The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no prior restraints upon publications, and not in freedom from censure for criminal matter when published".

What is the Brandenburg test?

Brandenburg v. Ohio. KKK in Ohio burns a cross. Brandenburg's test is a compromise between absolutism and balancing. The 3-part test recognizes the need for restrictions and provides practical guidelines for future cases. Rule of law that is used today. Part 1 - is the speaker calling for imminent lawless action. Part 2 - is the imminent lawless action likely to occur. Part 3 - imminent limitless action going to occur.

What impact did the Dennis case have on the clear and present danger test?

Convicted for violating the Smith act, specifically sections 2 and 3 (advocating and conspiring to overthrow the government). At stake is whether these sections violate the 1st and 5th amendment because of vagueness. Vinson believed that there was clear and present danger because of the conspiracy to teach and advocate the overthrow of the government by force and violence. The individuals believed that there was no clear and present danger, so they instead turned to the bad tendency test. There was clearly a difference of opinion between Vinson and Douglas/Black about the meaning of clear and present danger, therefore, there was plurality opinion. Taking the clear and present danger test and is weakening it, A clear PROBABLE danger test.

What happened in the 1735 John Peter Zenger case?

During this case, the two main types of speech that were suppressed were blasphemy and seditious libel. Zenger had written that New York Governor William Cosby was incompetent and was rigging elections. He was prosecuted for seditious libel. The jury was persuaded by Zenger's attorney (Andrew Hamilton, no relation to Alexander Hamilton) that truth was a defense. It was not: under British law truth was not a defense to the charge of seditious libel. The jury ignored the instructions of the judge and found Zenger not guilty. Hamilton argued that seditious libel did not exist if the published statements were true. The Zenger case would later establish the general common law precedent that truth could be a defense in seditious libel prosecutions, but did not create a precedent. It is important because it captured the imagination of the public. Everybody knew about it. It set a precedent in the court of public opinion.

How did the Gertz case change libel law?

During this case, they realized that the libel law is not clear. So they decided that private individuals now receive more protection than a public person and do not have to prove actual malice It requires that each state needs to establish a minimum degree of fault (negligence) for actions against media defendants and limits juries from awarding damages beyond compensatory damages unless actual malice is proven, No plaintiff suing the media can collect punitive damages without showing actual malice Each state is different in their definition of negligence, actual damages, etc. therefore, differences exist how these terms are defined and applied.

Have pre-publication review contracts signed by employees working for U.S. intelligence organizations generally been upheld or have they been found as violating the First Amendment?

Government can enforce pre-government publications. Yes, you can enforce them. US. v. Marchetti (1972). Former employees that worked for the CIA want to publish a book detailing the intelligence agencies. The government goes to court to enact a prior restraint book. The government obtains an injunction against publication. The court says that you have to submit your manuscript before you publish it. Snepp v. United States (1980), established that government employment agreements requiring employees to submit their publications for prior review do not violate public employees' free expression rights.

How does today's understanding of fighting words differ from that announced in Chaplinsky v. New Hampshire (1942) when the concept was introduced?

In the Chaplinsky case, people didn't like what he had to say. He felt as though he was talking about the true bible. He was convicted for speaking offensive and derisive language in public. The Supreme Court said that his speech had no value in terms of ideas or the discovery to spread the truth and that his speech threatened the peace of the community. This case narrowed the definition of what fighting words are. Worthless speech (or fighting words) now include lewd, obscene, profane, slander, libel, and fight-provoking speech.

What did the Court decide in Herbert v. Lando and why is it important to the concept of actual malice?

In this court case, Herbert sues for defamation because a producer said that Herbert lied in his novel. Herbert is a public figure, so he needs to prove actual malice. It is not a violation of the First Amendment for a libel plaintiff to inquire into the editorial process in deposition stage of a libel case. Lando doesn't initially answer any questions in the deposition stage. The Court says that Lando has to answer the questions because Herbert needs to prove actual malice. This is important because it shows that people need to have facts and information in order to prove actual malice. It would be impossible for plaintiffs to prove actual malice without the ability to explore such questions.

What was the position taken by Justice Holmes (joined by Brandeis) in his dissent in the Abrams case?

Justice Holmes and Brandeis argued that the words at issue posed no clear and present danger of inciting violent action. This case demonstrated greater protection of First Amendment rights in incitement to illegal conduct cases

What is the marketplace of ideas metaphor?

Justice Holmes used the metaphor of 'marketplace of ideas' in 1919, arguing that critics of the U.S. participation in World War 1 should have freedom of speech, even if a majority of Americans supported the war. He said the best of truth is the power of thought and the competition of the market". Holmes said that he owes much to John Milton's ideas who believed the truth will ultimately emerge in a free and open debate.

What was the decision of the Court in Near v. Minnesota?

Minnesota enacted a prior restraint law saying that any publisher or distributor that produces publications that are obscene, lewd, lascivious or malicious, scandalous, and defamatory is guilty of a nuisance. Near and his business "The Saturday Press", publishes scandalous stories about a number of public officials in 1927. The trial court ordered that Near and his business partners could not operate a publication under any name. The Minnesota Supreme Court hears two different appeals and rules the statute is constitutional in each appeal. The Supreme Court declares that Minnesota's Law is unconstitutional.

What does the Gertz opinion say about punitive damages when suing media organizations?

No plaintiff suing the media can collect punitive damages without showing actual malice.

How is qualified privilege to report on an official government meeting or record defeated by a defendant?

Qualified Privilege to report on an official governmental meeting or record (called qualified privilege for short) court cases, city council meeting, arrest reports, etc You lose the qualified privilege defense if your report is not substantially fair and accurate You lose the opinion defense if your published opinion is really a fact or if the statement is an opinion but implies underlying and defamatory statements of fact. Courts separate statements of fact versus statements of opinion primarily based on whether the statement can be verified (proven true or false). Facts are verifiable; opinions are not verifiable. In all but 12 states, it's up to the judge to decide

What U.S. Supreme Court decision introduced the clear and present danger test (and warned against falsely shouting fire in a theatre?)

Schenck v. United States. Justice Holmes writing for the unanimous court announced the concept of the clear and present danger, although the case was eventually decided on the bad tendency test. Charles Schenck was the general secretary of the Socialist Party. Schenck was charged with violating the Espionage Act of 1917, specifically to cause insubordination in the armed forces and obstruct the draft by circulating leaflets against the draft. The documents were sent to have an intended effect on the war. There were three counts. Schenck was convicted. Falsely shouting fire in a theatre (cannot do that, causes panic).

Why was Anita Whitney's conviction upheld in Whitney v. California? What had she done?

She was accused of violating the California Criminal Syndicalism Act. She was a member of the CLP (Communist Labor Party) but opposed the platform about the government takeover by class struggle. Any person who becomes a member of an organization advocating teaching criminal syndicalism can be punished. It was a unanimous decision. The statute is not vague or violated the equal protection clause. Her conviction was upheld. She was pardoned by the governor of California. The Court ruled that her CLP membership represented a menace to "the peace and welfare of the State."

What impact did the Butts and Walker cases have on which plaintiffs have to prove actual malice?

The Butts and Walker cases extended the actual malice rule to public figure plaintiffs.

What did the Court decide in Cohen v. California and how did it affect the fighting works doctrine?

The L.A. County Courthouse ruled that Cohen was guilty because of the words on his jacket. He did not say anything or create any disturbance at the courthouse. The Supreme Court reversed the conviction saying that if people didn't like what he had written on his jacket, they could just look away. There were 3 reasons for their reversal, 1. The government is not capable of setting standard of which words are okay and which ones are not, 2. Language used has important emotive content, 3. Forbidding certain words carries substantial risk that protected speech will be suppressed.

What did the U.S. Supreme Court decide in the Pentagon Papers case?

The Pentagon Papers showed the U.S. Government had been misleading its citizens regarding the conduct of the Vietnam War. Ellsberg's History of the U.S. Decision-Making Process on Vietnam Policy beings to be printed. Justice Department heads to federal court to get an injunction, In NY, the judge grants a temporary restraining order but later refuses to make the order permanent. The Court of Appeals reinstates the restraining order. In Washington, both the Federal District Court and the Court of Appeals reject a restraining order. With a conflict in two districts, the Supreme Court grants immediate review to resolve the issue. The Supreme Court ultimately lifts the restraining order which allows the publication of the Pentagon Papers. Per Curiam opinion states that the government had not met its burden of proof to show justification for prior restraint in this case.

What were the Alien and Sedition Acts (1798)?

The alien act: Authorized the President to deport aliens deemed "dangerous to the peace and safety of the United States" or suspected of "treasonable or secret machinations against the government" (expired in 1800).The Sedition Act: Made a crime subject to fine or jail time to publish "any false, scandalous and malicious" information against the government of the United States, Congress, and the President: politically motivated and a direct violation of the First Amendment. Federalists suspected Republicans of being irresponsible radicals bent on bringing to America the excess of the French revolution. Republicans were opposed the monarchy and aristocracy. More than two dozen men were convicted under this law.

What reason did the Court give for overturning Terminiello's conviction?

The court reverses conviction of a technicality. They said that the trial judge erred in definition of "breach of peace". The Court ruled that by permitting conviction for speech that "stirred people to anger, invited public dispute, or brought about a condition of unrest," the law "seriously invaded" the protection of speech afforded by the First Amendment. Justice Douglas said "Douglas wrote,"under our system of government is to invite dispute."

What is the rule about public officials established in the Time v. Sullivan case?

The rule now states that Public Officials must prove actual malice in order to win anything in a libel case.

What reasons did the Court give for why the rule was needed in the Time v. Sullivan case?

This rule is needed to protect a robust, wide open, marketplace of ideas, especially to protect sometimes caustic, vicious commentary about government officials and to avoid the media and others from censoring themselves because of fear of large libel judgments. The marketplace of ideas needs "breathing space" in order to survive.

What does the Gertz decision say about how to separate a public figure from private individual?

Two questions that separate a public officer from a private individual are; did they seek publicity... and how much access the individual has to tell the media their story.

Who was Sir William Blackstone and why is he important?

Wrote commentaries on the Laws of England. He said, "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published." The founding fathers read all of Blackstone's commentaries and believed that there should be no prior restraint. Believed that prior restraints should be rare and if a man publishes something improper then he has to take responsibility for his actions.

Why do we say the Yates case initiated a major change in defining the limits of free speech about the government?

Yates was convicted of teaching the necessity of the forcible overthrow of the government. Supreme Court remands the case to the trial court with orders to acquit some defendants and to retry others. Court led to the jury convicting Yates and others of advocating ideas rather than illegal action. Court changed its interpretation of the Smith Act. Thus, the advocacy of forcible overthrow of the government, as a mere abstract doctrine was protected under the 1st amendment.

Did the Zenger case change the law of seditious libel?

Yes, during colonial times, everyone knew about the case, so it set a precedent in the court of public opinion. After the Zenger trial, there would be no more seditious libel cases tried by royal judges in the colonies.

What did the Court decide about Virginia's cross-burning statute in Virginia v. Black (2002)?

the Supreme Court upheld a Virginia statute making it illegal to burn a cross in public with the intent to intimidate others. Virginia cross burning was constitutional - the Supreme court overturned it. But it says that burning a cross is always a form of threat. If hate speech is considered a fighting word/has a threat behind it then it is not protected.