Constitutional Law

Justice Scalia's Majority Opinion in RAV

"A State may choose to prohibit only that obscenity which is the most patently offensive in its prurience — i.e., that which involves the most lascivious displays of sexual activity. But it may not prohibit, for example, only that obscenity which includes offensive political messages. And the Federal Government can criminalize only those threats of violence that are directed against the President, since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the person of the President." "Although the phrase in the ordinance, "arouses anger, alarm or resentment in others," has been limited by the Minnesota Supreme Court's construction to reach only those symbols or displays that amount to "fighting words," the remaining, unmodified terms make clear that the ordinance applies only to "fighting words" that insult, or provoke violence, "on the basis of race, color, creed, religion or gender.""

Justice Kennedy's Majority Opinion in Citizens United

"If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech." Ruled that the Freedom of the Press clause of the First Amendment protects associations of individuals in addition to individual speakers, and further that the First Amendment does not allow prohibitions of speech based on the identity of the speaker. Corporations, as associations of individuals, therefore have free speech rights under the First Amendment.

Justice Breyer's Dissenting Opinion in Chicago

"In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense. There has been, and is, no consensus that the right is, or was, 'fundamental.'

Justice Marshall's Majority Opinion in Marbury (2)

"It is emphatically the province and duty of the Judicial Department to say what the law is." "If two laws conflict with each other, the courts must decide on the operation of each. ... If then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, [then] the constitution, and not such ordinary act, must govern the case to which they both apply."

Justice Black's Majority Opinion in Korematsu

"Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders—as inevitably it must—determined that they should have the power to do just this."

Justice Scalia's Majority Opinion in Brown

"Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection."

Justice Murphy's Dissent in Adamson

"Occasions may arise where a proceeding falls so far short of conforming to fundamental standards of procedure as to warrant constitutional condemnation in terms of a lack of due process despite the absence of a specific provision in the Bill of Rights."

Justice Kennedy's Majority Opinion in Citizens United (2)

"Prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation's political speech advances the corporation's interest in making profits, and citizens can see whether elected officials are "in the pocket" of so-called moneyed interests... This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages."

Justice Harlan's Dissenting Opinion in Duncan

"The States have always borne primary responsibility for operating the machinery of criminal justice within their borders, and adapting it to their particular circumstances. In exercising this responsibility, each State is compelled to conform its procedures to the requirements of the Federal Constitution. The Due Process Clause of the Fourteenth Amendment requires that those procedures be fundamentally fair in all respects. It does not, in my view, impose or encourage nationwide uniformity for its own sake; it does not command adherence to forms that happen to be old; and it does not impose on the States the rules that may be in force in the federal courts except where such rules are also found to be essential to basic fairness."

Justice Story's Majority Opinion in Martin

"The constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by 'the people of the United States.' There can be no doubt that it was competent to the people to invest the general government with all the powers which they might deem proper and necessary; to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority."

Justice Story's Majority Opinion in Martin (2)

"The constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not an impracticable, task. The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications, which, at the present, might seem salutary, might, in the end, prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom, and the public interests, should require."

Justice Holmes' Majority Opinion in Schenck

"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. ... 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. It is a question of proximity and degree."

Justice Marshall's Majority Opinion in Marbury

"The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written." He continued: "Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void."

Justice Steven's Dissenting Opinion in Chicago

"The so-called incorporation question was squarely and, in my view, correctly resolved in the late 19th century." In addition, he argued against incorporation, taking issue with the methodology of the majority opinions.

Justice Harlan's Majority Opinion in Barenblatt

"Where First Amendment rights are asserted to bar governmental interrogation, resolution of the issue involves a balancing of the competing private and public interests." Struck a balance in favor of the government: "That Congress has wide power to legislate in the field of Communist activity in this Country, and to conduct appropriate investigations in aid thereof, is hardly debatable. This power rests on the right of self-preservation, the ultimate value of any society." This governmental interest was found to outweigh Professor Barenblatt's First Amendment interest in studying, discussing, and associating with those interested in the theories of Communism. Professor Barenblatt claimed he never sought to overthrow the government through his discussions of Communism. Nevertheless, the Court deferred to Congress's power to investigate for legislative purposes.

Justice Brennan's Majority Opinion in Sullivan

Established the idea of actual malice in his decision. Also acknowledged that the actual malice standard may protect inaccurate speech, but that the "erroneous statement is inevitable in free debate, and ... it must be protected if the freedoms of expression are to have the 'breathing space' that they need to survive." The United States is founded on the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."

Adamson v. California (1947)

Adamson was convicted in California of murder in the first degree. During the trial, the prosecutor, in accordance with a California law, made comments to the jury which highlighted Adamson's decision not to testify on his own behalf. A divided Court found that the the Fourteenth Amendment's due process clause did not extend to defendants a Fifth Amendment right not to bear witness against themselves in state courts. Citing past decisions such as Twining v. New Jersey (1908), which explicitly denied the application of the due process clause to the right against self-incrimination, and Palko v. Connecticut (1937), Justice Reed argued that the Fourteenth Amendment did not extend carte blanche all of the immunities and privileges of the first ten amendments to individuals at the state level.

Justice Scalia's Concurrence Opinion in Citizens United

Addressed Justice Stevens' dissent, specifically with regard to the original understanding of the First Amendment. Scalia wrote that Stevens' dissent was "in splendid isolation from the text of the First Amendment... It never shows why 'the freedom of speech' that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form." He further considered the dissent's exploration of the Framers' views about the "role of corporations in society" to be misleading, and even if valid, irrelevant to the text.

Baron v. Baltimore

Baltimore wharf owner John Barron alleged that construction by the city had diverted water flow in the harbor area. He argued that sand accumulations in the harbor deprived Barron of deep waters, which reduced his profits. He sued the city to recover a portion of his financial losses. The trial court awarded him $4,500 in damages, which the state appellate court struck down. Found that the limitations on government articulated in the Fifth Amendment were specifically intended to limit the powers of the national government. Citing the intent of the framers and the development of the Bill of Rights (the first 10 amendments) as an exclusive check on the federal government, Marshall reasoned that the Supreme Court had no jurisdiction in this case since the Fifth Amendment was not applicable to the states.

Brandenburg v. Ohio (1969)

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." The Court's Per Curiam opinion held that the Ohio law violated the 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.

Korematsu v. United States (1944)

A Japanese-American man living in San Leandro, Fred Korematsu, chose to stay at his residence rather than obey the order to relocate. Korematsu was arrested and convicted of violating the order. He responded by arguing that Executive Order 9066 violated the Fifth Amendment. The Court ruled that the evacuation order violated by Korematsu was valid. The majority found that the Executive Order did not show racial prejudice but rather responded to the strategic imperative of keeping the U.S. and particularly the West Coast (the region nearest Japan) secure from invasion.

Branzburg v. Hayes (1972)

After observing and interviewing a number of people synthesizing and using drugs in a two-county area in Kentucky, Branzburg, a reporter, wrote a story which appeared in a Louisville newspaper. On two occasions he was called to testify before state grand juries which were investigating drug crimes. Branzburg refused to testify and potentially disclose the identities of his confidential sources. Similarly, in the companion cases of In re Pappas and United States v. Caldwell, two different reporters, each covering activity within the Black Panther organization, were called to testify before grand juries and reveal trusted information. Like Branzburg, both Pappas and Caldwell refused to appear before their respective grand juries. The Court found that requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the First Amendment. Justice White argued that since the case involved no government intervention to impose prior restraint, and no command to publish sources or to disclose them indiscriminately, there was no Constitutional violation. The fact that reporters receive information from sources in confidence does not privilege them to withhold that information during a government investigation; the average citizen is often forced to disclose information received in confidence when summoned to testify in court.

Justice Breyer's Dissenting Opinion in Holder

Agreed that the statute was not unconstitutionally vague. However, disagreed that the Constitution permits the government to prosecute the plaintiffs criminally for engaging in coordinated teaching and advocacy furthering the designated organizations' lawful political objectives. He reasoned that the government had not met its burden to show that the speech prohibited by the statute served a compelling governmental interest.

Justice Scalia's Dissenting Opinion in Boumediene

Argued that "the procedures prescribed by Congress in the Detainee Treatment Act provide the essential protections that habeas corpus guarantees; there has thus been no suspension of the writ, and no basis exists for judicial intervention beyond what the Act allows."[23] The commission of terrorist acts by some former prisoners at Guantanamo Bay after their release "illustrates the incredible difficulty of assessing who is and who is not an enemy combatant in a foreign theater of operations where the environment does not lend itself to rigorous evidence collection."

Justice Frankfurter's Concurrence Opinion in Adamson

Argued that incorporation of the Bill of Rights by the due process clause of the Fourteenth Amendment would "tear up by the roots much of the fabric of law in the several States, and would deprive the States of opportunity for reforms in legal process designed for extending the area of freedom." "It seems pretty late in the day to suggest that a phrase so laden with historic meaning should be given an improvised content consisting of some but not all of the provisions of the first eight Amendments, selected on an undefined basis, with improvisation of content for the provisions so selected."

Justice Alito's Dissenting Opinion in Walker

Argued that specialty license plates are more commonly regarded as a limited public forum for private expression, consisting of "little mobile billboards on which motorists can display their own messages". Therefore, rejecting the design basically amounts to viewpoint discrimination.

Justice Black's Dissent in Adamson

Argued that while the Court should not incorporate rights not specifically enumerated in the Bill of Rights, it should "extend to all the people of the nation the protection of [the specific enumerated rights of] the Bill of Rights." "I further contend that the 'natural law' formula which the Court uses to reach its conclusion in this case should be abandoned as an incongruous excrescence on our Constitution. I believe that formula to be itself a violation of our Constitution, in that it subtly conveys to courts, at the expense of legislatures, ultimate power over public policies...."

Justice Scalia's Dissenting Opinion in Hamdi

Asserted that based on historical precedent, the government had only two options to detain Hamdi: either Congress must suspend the right to habeas corpus, or Hamdi must be tried under normal criminal law. Wrote that the plurality, though well-meaning, had no basis in law for trying to establish new procedures that would be applicable in a challenge to Hamdi's detention - it was only the job of the Court to declare it unconstitutional and order his release or proper arrest, rather than to invent an acceptable process for detention.

Justice Scalia's Majority Opinion in Heller

Asserts in the Court's opinion that the "people" to whom the Second Amendment right is accorded are the same "people" who enjoy First and Fourth Amendment protection: "'The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.

Brown v. Entertainment Merchants Association (2011)

Associations of companies that create, publish, distribute, sell and/or rent video games brought a declaratory judgment action against the state of California in a California federal district court. The plaintiffs brought the claim under the First and Fourteenth Amendments seeking to invalidate a newly-enacted law that imposed restrictions and labeling requirements on the sale or rental of "violent video games" to minors. The district court found in favor of the plaintiffs and prevented the enforcement of the law. On appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed, holding that: (1) violent video games did not constitute "obscenity" under the First Amendment, (2) the state did not not have a compelling interest in preventing psychological or neurological harm to minors allegedly caused by video games, and (3) even if the state had a compelling interest, the law was not narrowly tailored enough to meet that objective. The Supreme Court upheld this decision.

Schenck v. United States (1919)

Charles Schenck and Elizabeth Baer distributed leaflets declaring that the draft violated the Thirteenth Amendment prohibition against involuntary servitude. The leaflets urged the public to disobey the draft, but advised only peaceful action. Schenck was charged with conspiracy to violate the Espionage Act of 1917 by attempting to cause insubordination in the military and to obstruct recruitment. Schenck and Baer were convicted of violating this law and appealed on the grounds that the statute violated the First Amendment. The Court held that the Espionage Act did not violate the First Amendment and was an appropriate exercise of Congress' wartime authority. The Court concluded that courts owed greater deference to the government during wartime, even when constitutional rights were at stake. Articulating for the first time the "clear and present danger test," Concluded that the First Amendment does not protect speech that approaches creating a clear and present danger of a significant evil that Congress has power to prevent.

Citizens United v. Federal Election Commission (2010)

Citizens United sought an injunction against the Federal Election Commission in the United States District Court for the District of Columbia to prevent the application of the Bipartisan Campaign Reform Act (BCRA) to its film Hillary: The Movie. The Movie expressed opinions about whether Senator Hillary Rodham Clinton would make a good president. The Supreme Court overruled Austin v. Michigan Chamber of Commerce and portions of McConnell v. FEC. (In the prior cases, the Court had held that political speech may be banned based on the speaker's corporate identity.) The majority held that under the First Amendment corporate funding of independent political broadcasts in candidate elections cannot be limited. The majority maintained that political speech is indispensable to a democracy, which is no less true because the speech comes from a corporation. The majority also held that the BCRA's disclosure requirements as applied to The Movie were constitutional, reasoning that disclosure is justified by a "governmental interest" in providing the "electorate with information" about election-related spending resources.

Justice Souter's Concurrence Opinion in Hamdi

Concurred with the plurality's judgment that due process protections must be available for Hamdi to challenge his status and detention, providing a majority for that part of the ruling. However, they dissented from the plurality's ruling that AUMF established Congressional authorization for the detention of enemy combatants.

Justice Black's Dissent in Barenblatt

Dissented on these grounds: First, that the term "Un-American" in the committee's mission was so vague as to make the committee's mandate void under the due process clause of the Fifth Amendment. Second, the Court's "balancing test" as to the applicability of First Amendment rights was not the way to determine the scope of freedom of speech, and if it were, the Court should have balanced the interest of society in "being able to join organizations, advocate causes and make political 'mistakes'" against the government's limited interest in making laws in the area of free speech..." Third, "the chief aim, purpose, and practice of the HUAC...is to try witnesses and punish them because they are or have been Communists or because they refuse or admit or deny Communist affiliations." Alsorejected the Court's balancing test: "I do not agree that laws directly abridging First Amendment freedoms can be justified by a balancing process... [The balancing test] completely leaves out the real interest in Barenblatt's silence, the interest of the people as a whole in being able to join organizations, advocate causes and make political 'mistakes' without later being subjected to governmental penalties for having dared to think for themselves."

Justice Brennan's Dissent in Barenblatt

Dissenting, wrote, "...no purpose for the investigation of Barenblatt is revealed by the record except exposure purely for the sake of exposure. This is not the purpose to which Barenblatt's rights under the First Amendment can validly be subordinated. An investigation in which the processes of law-making and law-evaluating are submerged entirely in exposure of individual behavior-in adjudication, of a sort, through the exposure process-is outside the constitutional pale of congressional inquiry."

Barenblatt v. United States (1959)

During hearings of the House Committee on Un-American Activities, Lloyd Barenblatt, a university professor, refused to answer questions concerning his political and religious beliefs along with his associational activities. He was found in contempt of Congress for failing to cooperate with the committee investigation. The divided Court found that the Committee's actions did not violate the First Amendment and, thus, upheld Barenblatt's conviction for contempt of Congress. Justice Harlan noted that the First Amendment does not protect a witness from all lines of questioning. As long as the Congressional inquiry is pursued to "aid the legislative process" and to protect important government interests, then it is legitimate.

Martin v. Hunter's Lessee (1816)

During the American Revolution, Virginia created laws allowing the state to seize property of Loyalists. In 1781, Denny Martin, a British subject, inherited land from his uncle, a Loyalist. The following year, the Virginia legislature voided the land grant and transferred the land back to Virginia. Virginia granted a portion of this land to David Hunter. A federal treaty dictated that Lord Fairfax was entitled to the property. The Virginia Supreme Court upheld Virginia's law permitting the confiscation of property, even though it conflicted with the federal treaty. The US Supreme Court reversed and remanded, holding that the treaty trumped state law. Article III, Section 2, Clause 2 of the US Constitution (the Supremacy Clause) gives federal courts the power to review state court decisions that interpret federal law or the Constitution. The Court rejected the claim that Virginia and the national government were equal sovereigns. Relying on the Supremacy Clause, Justice Story held that federal interpretations of federal law should supersede state interpretations. He reasoned that there should be uniform and predictable outcomes across all states.

New York Times v. Sullivan (1964)

During the Civil Rights movement of the 1960s, the New York Times published an ad for contributing donations to defend Martin Luther King, Jr., on perjury charges. The ad contained several minor factual inaccuracies. The city Public Safety Commissioner, L.B. Sullivan, felt that the criticism of his subordinates reflected on him, even though he was not mentioned in the ad. Sullivan sent a written request to the Times to publicly retract the information, as required for a public figure to seek punitive damages in a libel action under Alabama law. When the Times refused and claimed that they were puzzled by the request, Sullivan filed a libel action against the Times and a group of African American ministers mentioned in the ad. A jury in state court awarded him $500,000 in damages. The state supreme court affirmed and the Times appealed. To sustain a claim of defamation or libel, the First Amendment requires that the plaintiff show that the defendant knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate.

Justice Alito's Concurrence Opinion in McCullen

Filed an opinion concurring in the judgment, stating that the law blatantly discriminates based on viewpoint. He noted that while anti-abortion supporters criticizing the clinic may not enter the zone, clinic counselors or other employees may do so, giving them opportunities to talk to prospective clients.

Justice Kennedy's Majority Opinon in Citizens United (3)

Found that the BCRA §203 prohibition of all independent expenditures by corporations and unions violated the First Amendment's protection of free speech.[29] The majority wrote, "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."[30] Opinion also noted that because the First Amendment does not distinguish between media and other corporations, the BCRA restrictions improperly allowed Congress to suppress political speech in newspapers, books, television, and blogs.[8] The Court overruled Austin, which had held that a state law that prohibited corporations from using treasury money to support or oppose candidates in elections did not violate the First and Fourteenth Amendments. The Court also overruled that portion of McConnell that upheld BCRA's restriction of corporate spending on "electioneering communications". The Court's ruling effectively freed corporations and unions to spend money both on "electioneering communications" and to directly advocate for the election or defeat of candidates (although not to contribute directly to candidates or political parties). The majority ruled that the Freedom of the Press clause of the First Amendment protects associations of individuals in addition to individual speakers, and further that the First Amendment does not allow prohibitions of speech based on the identity of the speaker. Corporations, as associations of individuals, therefore have free speech rights under the First Amendment. Because spending money is essential to disseminating speech, as established in Buckley v. Valeo, limiting a corporation's ability to spend money is unconstitutional because it limits the ability of its members to associate effectively and to speak on political issues.

Justice Kennedy's Majority Opinion in Boumediene

Found that the constitutionally guaranteed right of habeas corpus review applies to persons held in Guantanamo and to persons designated as enemy combatants on that territory.[16][17][18][19] If Congress intends to suspend the right, the Court said that an adequate substitute must offer the prisoner a meaningful opportunity to demonstrate he is held pursuant to an erroneous application or interpretation of relevant law, and the reviewing decision-making must have some ability to correct errors, to assess the sufficiency of the government's evidence, and to consider relevant exculpating evidence. "To hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, 'say what the law is'."

Justice Reed's Majority Opinion in Adamson

Found that while Adamson's rights may have been violated had the case been tried in federal court, the rights guaranteed under the Fifth Amendment did not extend to state courts based on the due process clause of the Fourteenth Amendment. Stated succinctly, "It is settled law that the clause of the Fifth Amendment, protecting a person against being compelled to be a witness against himself, is not made effective by the Fourteenth Amendment as a protection against state action on the ground that freedom from testimonial compulsion is a right of national citizenship...."

Palko v. Connecticut (1937)

Frank Palko had been charged with first-degree murder. He was convicted instead of second-degree murder and sentenced to life imprisonment. The state of Connecticut appealed and won a new trial; this time the court found Palko guilty of first-degree murder and sentenced him to death. The Supreme Court upheld Palko's second conviction. In his majority opinion, Cardozo formulated principles that were to direct the Court's actions for the next three decades. He noted that some Bill of Rights guarantees--such as freedom of thought and speech--are fundamental, and that the Fourteenth Amendment's due process clause absorbed these fundamental rights and applied them to the states. Protection against double jeopardy was not a fundamental right.

Duncan v. Louisiana (1968)

Gary Duncan, a black teenager in Louisiana, was found guilty of assaulting a white youth by allegedly slapping him on the elbow. Duncan was sentenced to 60 days in prison and fined $150. Duncan's request for a jury trial was denied. The Court held that the Sixth Amendment guarantee of trial by jury in criminal cases was "fundamental to the American scheme of justice," and that the states were obligated under the Fourteenth Amendment to provide such trials. Petty crimes, defined as those punishable by no more than six months in prison and a $500 fine, were not subject to the jury trial provision.

Gitlow v. New York (1925)

Gitlow, a socialist, was arrested in 1919 for distributing a "Left Wing Manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under New York's Criminal Anarchy Law, which punished advocating the overthrow of the government by force. The Court concluded that New York could prohibit advocating violent efforts to overthrow the government under the Criminal Anarchy Law. Citing Schenck and Abrams, the Court reasoned the government could punish speech that threatens its basic existence because of the national security implications. Despite the small scale of Gitlow's actions, the majority was not persuaded that they were too insignificant to have an impact.

Justice Cardozo's Majority Opinion in Palko

Held that the Due Process Clause protected only those rights that were "of the very essence of a scheme of ordered liberty" and that the court should therefore incorporate the Bill of Rights onto the States gradually, as justiciable violations arose, based on whether the infringed right met that test.

Justice Marshall's Majority Opinion in Baron

Held that the first ten "amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them."

Dennis v. United States (1951)

In 1948, eleven Communist Party leaders were convicted of advocating the violent overthrow of the US government and for the violation of several points of the Smith Act. The Act made it unlawful to knowingly conspire to teach and advocate the overthrow or destruction of the United States government. The party members who had been petitioning for socialist reforms claimed that the Act violated their First Amendment rights. Party leaders were found guilty and lower courts upheld the conviction. The Court upheld the convictions of the Communist Party leaders and found that the Smith Act did not "inherently" violate the First Amendment. In the plurality opinion, the Court held that there was a distinction between the mere teaching of communist philosophies and active advocacy of those ideas. Such advocacy created a "clear and present danger" that threatened the government. Given the gravity of the consequences, the Court held that success or probability of success was not necessary to justify restrictions on the freedom of speech.

Texas v. Johnson (1989)

In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court. In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment. The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Near v. Minnesota (1931)

In a Minneapolis newspaper called The Saturday Press, Jay Near and Howard Guilford accused local officials of being implicated with gangsters. Minnesota officials sought a permanent injunction against The Saturday Press on the grounds that it violated the Public Nuisance Law because it was malicious, scandalous, and defamatory. The law provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was guilty of a nuisance, and could be enjoined from further committing or maintaining the nuisance. The state supreme court upheld both the temporary injunction and the permanent injunction that eventually issued from the trial court. The Court held that the statute authorizing the injunction was facially unconstitutional, meaning the decision was based on an analysis of the law's general applications, not the specific context of this case. The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the First Amendment. (The majority used the incorporation doctrine to apply the rights granted under the Bill of Rights to the states under the Fourteenth Amendment.) The Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding.

Justice Holme's Dissent in Gitlow

In dissent, held that Gitlow had not violated the clear and present danger test used in Schenck. Since Gitlow's call to action was abstract and would not resonate with a large number of people, concluded that there was not sufficient imminence to warrant punishing the speech.

Justice Thomas' Concurring Opinion in Citizens United

In order to protect the anonymity of contributors to organizations exercising free speech, wrote that he would have struck down the reporting requirements of BCRA §201 and §311 as well, rather than allowing them to be challenged only on a case-specific basis. Primary argument was that anonymous free speech is protected and that making contributor lists public makes the contributors vulnerable to retaliation, citing instances of retaliation against contributors to both sides of a then-recent California voter initiative.

New York Times v. United States (1971)

In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. This case was decided together with United States v. Washington Post Co. the Court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case.

Boumediene v. Bush (2008)

Lakhdar Boumediene and five other Algerian natives were seized by Bosnian police when U.S. intelligence officers suspected their involvement in a plot to attack the U.S. embassy there. The U.S. government classified the men as enemy combatants in the war on terror and detained them at the Guantanamo Bay Naval Base, which is located on land that the U.S. leases from Cuba. Boumediene filed a petition for a writ of habeas corpus, alleging violations of the Constitution's Due Process Clause, various statutes and treaties, the common law, and international law. In 2006, Congress passed the Military Commissions Act of 2006 (MCA). The Act eliminates federal courts' jurisdiction to hear habeas applications from detainees who have been designated (according to procedures established in the Detainee Treatment Act of 2005) as enemy combatants. When the case was appealed to the D.C. Circuit for the second time, the detainees argued that the MCA did not apply to their petitions, and that if it did, it was unconstitutional under the Suspension Clause. The Suspension Clause reads: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The Court stated that if the MCA is considered valid its legislative history requires that the detainees' cases be dismissed. However, the Court went on to state that because the procedures laid out in the Detainee Treatment Act are not adequate substitutes for the habeas writ, the MCA operates as an unconstitutional suspension of that writ. The detainees were not barred from seeking habeas or invoking the Suspension Clause merely because they had been designated as enemy combatants or held at Guantanamo Bay. The Court reversed the D.C. Circuit's ruling and found in favor of the detainees.

Ex parte Milligan (1866)

Lambden P. Milligan was sentenced to death by a military commission in Indiana during the Civil War for engaging in acts of disloyalty. Milligan sought release through habeas corpus from a federal court. The court held that trials of civilians by presidentially created military commissions are unconstitutional. Specifically, it is unconstitutional to try civilians by military tribunals unless there is no civilian court available. The military commission therefore did not have jurisdiction to try and sentence Milligan, and he was entitled to discharge.

Justice Breyer's Dissenting Opinion in Heller

Looks to early municipal fire-safety laws that forbade the storage of gunpowder (and in Boston the carrying of loaded arms into certain buildings), and on nuisance laws providing fines or loss of firearm for imprudent usage, as demonstrating the Second Amendment has been understood to have no impact on the regulation of civilian firearms. The dissent argues the public safety necessity of gun-control laws, quoting that "guns were responsible for 69 deaths in this country each day.'" "There simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas."

Justice Davis' Majority Opinion in Milligan

Martial rule can never exist when the courts are open" and confined martial law to areas of "military operations, where war really prevails," and when it became a necessity to provide a substitute for a civil authority that had been overthrown.

Justice Steven's Dissenting Opinion in Heller

Opinion rests on four main points of disagreement: that the Founders would have made the individual right aspect of the Second Amendment express if that was what was intended; that the "militia" preamble and exact phrase "to keep and bear arms" demands the conclusion that the Second Amendment touches on state militia service only; that many lower courts' later "collective-right" reading of the Miller decision constitutes stare decisis, which may only be overturned at great peril; and that the Court has not considered gun-control laws (e.g., the National Firearms Act) unconstitutional. "The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.... I could not possibly conclude that the Framers made such a choice."

District of Columbia v. Heller (2008)

Provisions of the District of Columbia Code made it illegal to carry an unregistered firearm and prohibited the registration of handguns, though the chief of police could issue one-year licenses for handguns. The Code also contained provisions that required owners of lawfully registered firearms to keep them unloaded and disassembled or bound by a trigger lock or other similar device unless the firearms were located in a place of business or being used for legal recreational activities. Dick Anthony Heller applied for a one-year license for a handgun he wished to keep at home, but his application was denied. Heller sued the District of Columbia. He sought an injunction against the enforcement of the relevant parts of the Code and argued that they violated his Second Amendment right to keep a functional firearm in his home without a license. The Court held that the first clause of the Second Amendment that references a "militia" is a prefatory clause that does not limit the operative clause of the Amendment. Additionally, the term "militia" should not be confined to those serving in the military, because at the time the term referred to all able-bodied men who were capable of being called to such service. To read the Amendment as limiting the right to bear arms only to those in a governed military force would be to create exactly the type of state-sponsored force against which the Amendment was meant to protect people. Because the text of the Amendment should be read in the manner that gives greatest effect to the plain meaning it would have had at the time it was written, the operative clause should be read to "guarantee an individual right to possess and carry weapons in case of confrontation."

Justice Breyer's Majority Opinion in Walker

Ruled that refusing the minor monument was a valid expression of government speech which did not infringe on the First Amendment's guarantee of free speech. Wrote that the inclusion of a message on a state-issued license plate implies government endorsement of that message, and that car owners "could simply display the message in question in larger letters on a bumper sticker right next to the plate."

Reno v. American Civil Liberties Union (1997)

Several litigants challenged the constitutionality of two provisions in the 1996 Communications Decency Act. Intended to protect minors from unsuitable internet material, the Act criminalized the intentional transmission of "obscene or indecent" messages as well as the transmission of information which depicts or describes "sexual or excretory activities or organs" in a manner deemed "offensive" by community standards. After being enjoined by a District Court from enforcing the above provisions, except for the one concerning obscenity and its inherent protection against child pornography, Attorney General Janet Reno appealed directly to the Supreme Court as provided for by the Act's special review provisions. The Court held that the Act violated the First Amendment because its regulations amounted to a content-based blanket restriction of free speech. The Act failed to clearly define "indecent" communications, limit its restrictions to particular times or individuals (by showing that it would not impact adults), provide supportive statements from an authority on the unique nature of internet communications, or conclusively demonstrate that the transmission of "offensive" material is devoid of any social value. The Court added that since the First Amendment distinguishes between "indecent" and "obscene" sexual expressions, protecting only the former, the Act could be saved from facial overbreadth challenges if it dropped the words "or indecent" from its text. The Court refused to address any Fifth Amendment issues.

McDonald v. Chicago (2010)

Several suits were filed against Chicago and Oak Park in Illinois challenging their gun bans after the Supreme Court issued its opinion in District of Columbia v. Heller. Here, plaintiffs argued that the Second Amendment should also apply to the states. The Supreme Court reversed the Seventh Circuit, holding that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states. The Court reasoned that rights that are "fundamental to the Nation's scheme of ordered liberty" or that are "deeply rooted in this Nation's history and tradition" are appropriately applied to the states through the Fourteenth Amendment. The Court recognized in Heller that the right to self-defense was one such "fundamental" and "deeply rooted" right. The Court reasoned that because of its holding in Heller, the Second Amendment applied to the states. Here, the Court remanded the case to the Seventh Circuit to determine whether Chicago's handgun ban violated an individual's right to keep and bear arms for self-defense.

R.A.V. v. City of St. Paul (1992)

Several teenagers allegedly burned a crudely fashioned cross on a black family's lawn. The police charged one of the teens under a local bias-motivated criminal ordinance which prohibits the display of a symbol which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The court held the ordinance invalid on its face because "it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses." The First Amendment prevents government from punishing speech and expressive conduct because it disapproves of the ideas expressed. Under the ordinance, for example, one could hold up a sign declaring all anti-semites are bastards but not that all Jews are bastards. Government has no authority "to license one side of a debate to fight freestyle, while requiring the other to follow the Marquis of Queensbury Rules."

Justice Alito's Majority Opinion in McDonald

Specified that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. He rejected Justice Clarence Thomas's separate claim that the Privileges or Immunities Clause of the Fourteenth Amendment more appropriately incorporates the Second Amendment against the states. Reasoned that rights that are "fundamental to the Nation's scheme of ordered liberty" or that are "deeply rooted in this Nation's history and tradition" are appropriately applied to the states through the Fourteenth Amendment.

Justice Chase's Concurrence Opinion in Milligan

Stated that Congress could "authorize trials for crimes against the security and safety of the national forces," and its authority to do so "may be derived from its constitutional power to raise and support armies and to declare war;" while the civil courts "might be open and undisturbed in their functions... yet wholly incompetent to avert threatened danger, or to punish, with adequate promptitude and certainty, the guilty conspirators."

Justice Scalia's Majority Opinion in RAV (2)

The Court concluded that "St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquess of Queensberry rules."[21] The Court further concluded, "Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire."

Justice Sanford's Majority Opinion in Gitlow

The Court concluded that New York could prohibit advocating violent efforts to overthrow the government under the Criminal Anarchy Law. Citing Schenck and Abrams, the Court reasoned the government could punish speech that threatens its basic existence because of the national security implications. Despite the small scale of Gitlow's actions, the majority was not persuaded that they were too insignificant to have an impact.

Justice Murphy's Dissenting Opinion in Korematsu

The exclusion of Japanese "falls into the ugly abyss of racism", and resembles "the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy." "Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States."

Holder v. Humanitarian Law Project (2010)

The KWP and LTTE engage in a variety of both lawful and unlawful activities. They sought an injunction to prevent the government from enforcing sections of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Section 302 authorizes the Secretary of State to designate a group as a "foreign terrorist organization." Section 303 makes it a crime for anyone to provide "material support or resources" to even the nonviolent activities of a designated organization. The Supreme Court held that the material support provision of the AEDPA is constitutional as applied to the particular forms of support that the plaintiffs seek to provide to terrorist organizations. The Court reasoned that, as applied, the provision in question is not vague. Here, the statutory terms at issue -- "training," "expert advice or assistance," "service," and "personnel" -- are not similar to terms like "annoying" and "indecent" that the Court has struck down as being too vague. The Court recognized that the statute may not be clear in every respect, but it is clear enough with respect to the plaintiffs in this case.

McCullen v. Coakley (2014)

The Massachusetts state legislature created a 35-foot buffer zone around the entrances, exits, and driveways of abortion clinics. The petitioners, individuals who routinely engage in "pro-life counseling" outside of state abortion clinics, sued in federal district court and argued that the law violated the First Amendment protection of free speech. The Court held that the Massachusetts law was content-neutral on its face because a violation depends not on the speech itself but on the location of the speech, and therefore does not need to be analyzed under strict scrutiny. However, the Court also held that the law is still not sufficiently narrowly tailored to serve a significant government interest because it places too great a burden on the petitioners' First Amendment Rights. By denying the petitioners the ability to engage in conversation and leafleting on public streets and sidewalks, the law prevents the petitioners from engaging in exactly the transmission of ideas the First Amendment is meant to protect.

Walker v. Texas Division, Sons of Confederate War Veterans, Inc. (2015)

The Texas division of the Sons of Confederate Veterans (Texas SCV), a non-profit organization that works to preserve the memory and reputation of soldiers who fought for the confederacy in the Civil War, applied to have a new specialty license plate issued by the Texas Department of Motor Vehicles (TDMV). The proposed license plate had two confederate flags on it: one in the organization's logo, and one faintly making up the background of the plate. The TDMV had a policy stating that it "may refuse to create a new specialty license plate if the design might be offensive to any member of the public." The board in charge of approving new specialty plates received multiple negative comments from the public regarding this plate and ultimately voted to deny Texas SCV's application. The Court held that the government choosing the content of its speech is not unconstitutional viewpoint discrimination because that expression is the product of the democratic electoral process. Based on the analysis from Pleasant Grove City v. Summum, Texas's specialty license plate is an example of such government speech (as opposed to a forum open for private expression) because Texas and other states have long used license plates to convey messages. Moreover, the public associates license plates with the State. Finally, Texas maintains direct control over the messages on its specialty plates from design to final approval.

Per Curiam Decision in Brandenburg

These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Justice Paul Steven's Majority Opinion in Reno

We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve. ... It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not "reduc[e] the adult population ... to ... only what is fit for children."

Marbury v. Madison (1803)

William Marbury had been appointed Justice of the Peace in the District of Columbia, but his commission was not delivered. Marbury petitioned the Supreme Court to compel the new Secretary of State, James Madison, to deliver the documents. Marbury, joined by three other similarly situated appointees, petitioned for a writ of mandamus compelling the delivery of the commissions. The Court found that Madison's refusal to deliver the commission was illegal, but did not order Madison to hand over Marbury's commission via writ of mandamus. Instead, the Court held that the provision of the Judiciary Act of 1789 enabling Marbury to bring his claim to the Supreme Court was itself unconstitutional, since it purported to extend the Court's original jurisdiction beyond that which Article III, Section 2, established. Marshall expanded that a writ of mandamus was the proper way to seek a remedy, but concluded the Court could not issue it. Marshall reasoned that the Judiciary Act of 1789 conflicted with the Constitution. Congress did not have power to modify the Constitution through regular legislation because Supremacy Clause places the Constitution before the laws. In so holding, Marshall established the principle of judicial review, i.e., the power to declare a law unconstitutional.

Justice Souter's Concurring Opinion in Boumediene

Wrote that "subsequent legislation eliminated the statutory habeas jurisdiction" over the claims brought by Guantanamo Bay detainees, "so that now there must be constitutionally based jurisdiction or none at all." Citing the Supreme Court's decision in Rasul v. Bush (2004), the opinion added that the ""[a]pplication of the habeas statute to persons detained at [Guantanamo] is consistent with the historical reach of the writ of habeas corpus." Justice Souter pointed to the lengthy imprisonments, some of which have exceeded six years, as "a factor insufficiently appreciated by the dissents."

Justice Scalia's Concurring Opinion in Citizens United

Wrote that Stevens' dissent was "in splendid isolation from the text of the First Amendment... It never shows why 'the freedom of speech' that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form." He further considered the dissent's exploration of the Framers' views about the "role of corporations in society" to be misleading, and even if valid, irrelevant to the text. Principally argued that the First Amendment was written in "terms of speech, not speakers" and that "Its text offers no foothold for excluding any category of speaker."

Justice O'Connors Plurality Opinion in Hamdi

Wrote that although Congress had expressly authorized the detention of enemy combatants in its Authorization for Use of Military Force (AUMF) passed after 9/11, due process required that Hamdi have a meaningful opportunity to challenge his enemy combatant status. "[W]e necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

Justice Scalia's Dissenting Opinion in Boumediene (2)

Wrote that the Court's majority's "analysis produces a crazy result: Whereas those convicted and sentenced to death for war crimes are without judicial remedy, all enemy combatants detained during a war, at least insofar as they are confined in an area away from the battlefield over which the United States exercises 'absolute and indefinite' control, may seek a writ of habeas corpus in federal court." Added that the Constitution allows suspension of the writ of habeas corpus only in cases of rebellion or invasion, both domestic disturbances; he asked "[i]f the extraterritorial scope of habeas turned on flexible, 'functional' considerations, as the [Court's majority] holds, why would the Constitution limit its suspension almost entirely to instances of domestic crisis?"

Justice Thomas' Dissenting Opinion in Hamdi

Wrote that the Court's rationale would also require due process rights for bombing targets: "Because a decision to bomb a particular target might extinguish life interests, the plurality's analysis seems to require notice to potential targets." Thomas also wrote that Congress intended that the AUMF authorize such detentions.

Justice Scalia's Concurrence Opinion in McCullen

Wrote that the law is content-based and therefore must be examined under strict scrutiny. A blanket prohibition of speech in areas where only one type of politically charged speech is likely to occur cannot be content-neutral. Also pointed out that the majority opinion did not address the question of whether Hill v. Colorado should be limited or overruled. Argued that the law was content-based and therefore subject to strict scrutiny, he wrote that Hill should be overruled because it contradicts First Amendment jurisprudence

Justice Robert's Majority Opinion in McCullen

Wrote that, "The buffer zones burden substantially more speech than necessary to achieve Massachusetts' asserted interests." He stated that Massachusetts failed to show that it tried less intrusive alternatives first: "Although respondents claim that Massachusetts 'tried other laws already on the books', they identify not a single prosecution brought under those laws within at least the last 17 years. And while they also claim that the Commonwealth 'tried injunctions', the last injunctions they cite date to the 1990s. In short, the Commonwealth has not shown that it seriously undertook to address the problem with less intrusive tools readily available to it. Nor has it shown that it considered different methods that other jurisdictions have found effective.."

Robert's Concurrence Opinion in Citizens United

Wrote to further explain and defend the Court's statement that "there is a difference between judicial restraint and judicial abdication." Explained why the Court must sometimes overrule prior decisions. Had prior Courts never gone against stare decisis (that is, against precedent), for example, "segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants". Recited a plethora of case law in which the court had ruled against precedent. Ultimately, Roberts argued that "stare decisis... counsels deference to past mistakes, but provides no justification for making new ones".

Justice Robert's Concurring Opinion in Citizens United

Wrote to further explain and defend the Court's statement that "there is a difference between judicial restraint and judicial abdication." Roberts explained why the Court must sometimes overrule prior decisions. Had prior Courts never gone against stare decisis (that is, against precedent), for example, "segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants". Roberts' concurrence recited a plethora of case law in which the court had ruled against precedent. Ultimately, Roberts argued that "stare decisis... counsels deference to past mistakes, but provides no justification for making new ones".

Hamdi v. Rumsfeld (2004)

Yaser Hamdi, an American citizen, was detained by the United States military in Afghanistan. He was accused of fighting for the Taliban against the U.S., declared an "enemy combatant," and was held in Guantanamo Bay. Upon learning he was an American citizen, he was transferred to a military prison in Virginia. The government countered that the Executive Branch had the right, during wartime, to declare people who fight against the United States "enemy combatants" and thus restrict their access to the court system. The Court wrote that although Congress authorized Hamdi's detention, Fifth Amendment due process guarantees give a citizen held in the United States as an enemy combatant the right to contest that detention before a neutral decisionmaker.

Justice Steven's Dissent in Citizens United

concurred in the Court's decision to sustain BCRA's disclosure provisions but dissented from the principal holding of the Court. He argued that the Court's ruling "threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution." He added: "A democracy cannot function effectively when its constituent members believe laws are being bought and sold."[38] Stevens also argued that the Court addressed a question not raised by the litigants when it found BCRA §203 to be facially unconstitutional, and that the majority "changed the case to give themselves an opportunity to change the law".[29] He argued that the majority had expanded the scope beyond the questions presented by the appellant and that therefore a sufficient record for judging the case did not exist. Stevens argued that at a minimum the Court should have remanded the case for a fact-finding hearing, and that the majority did not consider other compilations of data, such as the Congressional record for justifying BCRA §203. Also addressed issues of corruption within the legislature. At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.