CR RL Midterm

"It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."

AH Federalist 78 Judicial Review

7-2 Decision J. John H. Clarke wrote for the Majority. Facts: Jacob Abrams & other self professed rebels, revolutionists, anarchists and socialists (born in Russia) threw leaflets from a window in NYC denouncing the war and called for a General Strike. "The Russian Revolution cries: Workers of the World! Awake! Rise! Put down your enemy and mine! Yes friends there is only one enemy of the workers of the world and that is capitalism! Awake awake! You workers of the world! If they will use arms against the Russian people to enforce their standard of order, so will we use arms, and they shall never see the ruin of the Russian Revolution." Does it rise to sedition? Convicted 20yrs for violating the Sedition Act of 1918 & Appealed to SCOTUS Issue: Does the Sedition Act of 1918 violate the 1st Amendment? Holding: No. Affirmed conviction.

Abrams v. United States (1919)

"The Purpose of this obviously was to persuade the persons to whom it was addressed to turn a deaf ear to patriotic appeals in behalf of the Government of the United States, and to cease to render it assistance in the prosecution of the war." "These exerpts sufficiently show that... the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing, and, if possible, defeating the military plans of the Government in Europe."

Abrams v. United States (1919) Reasoning

"But, as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country." "A silly leaflet by an unknown man, without more, does not present any immediate danger to the success of the government."

Abrams v. United States (1919) Reasoning: J. Holmes' CPD Test (In Dissent)

Mid-1680's tensions with James II coming to throne.•--At the [Glorious] revolution, the British constitution was again restor'd to its original principles, declared in the bill of rights; which was afterwards pass'd into a law, and stands as a bulwark to the natural rights of subjects. Sam Adams; collective self preservation is to replace tyranny. We don't give up all NR, just some to have civil society, gov job should be to codify rights, and defend and expand rights.

Arms throw-off Tyranny

Facts: Convicted under The Child Pornography Prevention Act of 1996 that prohibited life subjects as well as virtual child pornography on the internet. Ninth Circuit reversed District Court Appealed to SCOTUS Issue: Did the CPPA violate the 1st Amendment (Federal law so no need for 14th)? Holding: Yes, was overly broad and violated 1st Amendment.

Ashcroft v. Free Speech Coalition (2002)

"As a general rule, pornography can be banned only if obscene, but under [NY v. Ferber, 1982], pornography showing minors can be proscribed whether or not the images are obscene.... [State has a] more compelling interest in prosecuting those who promote the sexual exploitation of children." But that being said, CPPA is overly broad b/c it also prohibits computer generated images; also, it did not meet obscenity test in Miller (b/c it also prohibited indecent but not obscene material)"

Ashcroft v. Free Speech Coalition (2002) Reasoning J. Anthony Kennedy

5-4 Decision CJ Rehnquist writes opinion Facts: The Boy Scouts, a private, not-for-profit organization, instills its values in young people (& believes that homosexual conduct is inconsistent with those values). James Dale, a volunteer assistant scoutmaster, left to attend Rutgers University, & became co-president of a Lesbian/Gay Alliance. Boy Scouts revoked Dale's membership (once that became known) Do the boyscouts or any other group, have a right to decide their own membership? Dale filed suit alleging that the Boy Scouts had violated the NJ statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation. The Chancery (equity) crt (trial court)granted summary judgment for the Boy Scouts b/c they were not "a place of public accommodation" & their view was First Amend. "freedom of expressive association." NJ Appeals Court reversed in part & remanded. NJ SCRT affirmed Issue: Did the application of the NJ public accommodations law violate the Boy Scouts' First Amendment freedom of expressive association. Holding: Yes. Reversed.

BOY SCOUTS OF AMERICA v. DALE (2000)

"Having determined that the Boy Scouts is an expressive association and that the forced inclusion of Dale would significantly affect its expression, we inquire whether the application of New Jersey's public accommodations law to require that the Boy Scouts accept Dale as an assistant scoutmaster runs afoul of the Scouts' freedom of expressive association. We conclude that it does." Boy scouts are a private organization, not a place of public accommodation, plus accommodations laws may not interfere with perceived unenlightened speech: '[Govt.] is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.'"

BOY SCOUTS OF AMERICA v. DALE (2000) Reasoning

SCOTUS held that the U.S. Bill of Rights did not apply to the states.

Barron v. Baltimore (1833)

Per curiam opinion - establishes test often used today in incitement cases Facts: Clarence Brandenburg, a Ku Klux Klan leader made a speech at a rally advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform" and assembling with those who did so. Convicted under Ohio criminal syndicalism law. Ohio appeals court affirmed. Appealed to SCOTUS. Issue: Did the Ohio criminal syndicalism law, which prohibited public speech advocating illegal activities, violate speech protected under the 1st and 14th amendments? Holding: Yes. Reversed. Act did not distinguish between mere advocacy and incitement of imminent lawless action. New test - for speech to be prohibited by a law it must be: Directed at inciting or producing imminent lawless action and Likely to incite or produce such action Otherwise the law is overly broad and prohibits speech protected under the said amendments.

Brandenburg v. Ohio (1969)

"We are here confronted with a statue which...purports to punish mere mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth First and Fourteenth Amendments.."

Brandenburg v. Ohio (1969) Reasoning

"When the courts will have a precedent before them of a court which extended its jurisdiction in opposition to an act of the legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly against it? and they are authorised to construe its meaning, and are not under any controul?"

Brutus No. 11 As much power as State Courts

"That the judicial power of the United States, will lean strongly in favour of the general government, and will give such an explanation to the constitution, as will favour an extension of its jurisdiction, is very evident from a variety of considerations."

Brutus No. 11 The power will allow fed crts to mold fed gov. to any shape.

"What, among other things, can appear more unworthy of credit than that, in an enlightened age, in a civilized and Christian country, in a nation so celebrated for humanity as well as love of liberty and justice as the English once justly were, a prince should arise who, by the influence of corruption alone, should be able to reduce them into a combination to reduce three millions of his most loyal and affectionate subjects to absolute slavery, under a pretence of a right, appertaining to God alone, of binding them in all cases whatever, not even excepting cases of conscience and religion?"

CJ Jay's charge to the Grand Jury of Ulster County, 1777 How secure is our liberty and constitution?

"The infatuated sovereign [Govt.] of Britain, forgetful that kings [Govt.] were the servants, not the proprietors, and ought to be the fathers, not the incendiaries of their people, hath, by destroying our former constitutions, enabled us to erect moe eligible systems of government on their ruins; and, by unwarrantable attempts to bind us in all cases whatsoever, has reduced us to the happy necessity of being free from his control in any."

CJ Jay's charge to the Grand Jury of Ulster County, 1777 Providence

"The Americans are the first people whom Heaven has favoured with an opprotunity of deliberating upon, and choosing the forms of government under which they should live. All other constitutions have derived their existence from violence or accidental circumstances, and are therefore probably more distant from their perfection, which, though beyond our reach, may nevertheless be approached under the guidance of reason and experience."

CJ Jay's charge to the Grand Jury of Ulster County, 1777 Sovereignty and Supremacy

A false, defamatory statement communicated to a third person that harms one's reputation or standing in the community or causes hatred or contempt towards the injured person. Types Slander (Verbal) Libel (written) Today largely a civil wrong (tort)

Defamation

Unanimous opinion written by J. Francis W. Murphy Facts: Walter Chaplinsky gave out Jehovah's Witness literature on a public sidewalk that attacked other religions and called the city marshal a racketeer and a Fascist and the whole local government Fascists. Convicted under a NH Statute "No person shall address any offensive derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business or occupation." NH SCRT affirmed; appealed to SCOTUS Issue: Was the NH law overly vague in violation of the Freedom of Speech applied to the states via the 14th? Holding: No. Conviction upheld. Insults were "fighting words," provoking a specific individual, the city marshal, to violence and thus, were unprotected by the 14th.

Chaplinsky v. New Hampshire (1942)

"fighting' words -- those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace [or violence]" were not protected speech. "It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." A state - can use its police power (under the Tenth Amendment) to curb such expression in the interests of maintaining order and morality.

Chaplinsky v. New Hampshire (1942) Reasoning

"the Colonies were without the Realm and Jurisdiction of Parliament."

Charles I

By Constitution - LTD Govt. (no Bill of Attainder, no ex post facto laws)•Thus, Courts of justice - have a duty to declare acts of govt. that are contrary void. Independence of courts allows them to do so.

Courts should have Judicial Review Power, why?

Facts: Gov. William Cosby - ( scoundrel and tyrant) He removed CJ Lewis Morris ( Chief Justice and grandfather of Guvenor morris) from the SCRT of the Province of NY for ruling against him in a case involving the governor's salary.( the gov becomes upset. He releases chief justice, and does it unitarily, simply because he doesn't like the judgment) Morris and his allies - set up an independent newspaper, the New-York Weekly Journal, to criticize the govt. Gov. Cosby (fed up) sought to - arrest and try the paper's printer, John Peter Zenger, for the crime of seditious libel. At this time, it did not matter if the writing was true or not...interesting but true that truth is not a defense to libel. (Zenger is printer. He puts articles in type. Did he write it? We don't think so, new immigrant, skills of press, but powerful individuals writing it, gov knows, but decides how to get at them. He thinks if I can shut down the printer, I can shut them all down. role of grand jury to review evidence state brings forth to see if it is sufficient to warrant indictment to try individual for charges Grand jury knows what's going on and refuse governor twice Cosby has Attorney General issue an information (dates back to star chamber. After failing twice to get an indictment from a grand jury - the Cosby had his AG issue an information - a legal procedure to try someone w/o grand jury review. (Gov goes after Zenger) pushes with this procedure, and arrests and tries Zenger. Issue: Was Zenger guilty of Seditious Libel? Holding: The writings were seditious. The Jury's task, ergo, was to simply determine whether Zenger published the statements. Zenger's legal team admitted he had, but urged the jury to nullify the bogus crime by a verdict of not guilty. Verdict: Not guilty. Liberty over tyranny; political but not legal precedent for free press.

Crown v. Zenger (1735)

Unanimous decision opinion written by Justice Holmes. Facts: The Espionage Act of 1917 made it a crime to "convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies." Eugene Debs, leader of Socialist Party, gave pro-socialism, Anti-WWI speech and praised those who had refused to serve and obstructed military recruiting. Charged with: Count 3: Causing and inciting insubordination, disloyalty, mutiny and the refusal of duty in the military & naval forces of the U.S., and Count 4: obstructing & attempting to obstruct the recruiting & enlistment service of the U.S. in violation of the said act. District court - convicted and sentenced him to 10 years for each count concurrently and disenfranchised him. Appealed to SCOTUS Issue: Did the Espionage Act of 1917 violate the 1st Amendment freedom of speech? Holding: No. Lower court affirmed; scotus again concentrated on count 4, not count 3 in its ruling because count 3 is harder to prove.

Debs v. United States (1919)

"The main theme of the speech was Socialism, its growth, and a prophecy of its ultimate success. With that we have nothing to do, but if a part or the manifest intent of the more general utterances was to encourage those present to obstruct the recruiting service, and if, in passages, such encouragement was directly given, the immunity of the general theme may not be enough to protect the speech... We are of the opinion that the verdict on the fourth count, for obstructing and attempting to obstruct the recruiting service of the United States, must be sustained."

Debs v. United States (1919) Reasoning

Court of the Star Chamber (Gone w/ civil war) Libel as a Crime, Civil Wrong, and Sin Seditious libel involved criticism of the crown that caused hatred discontent or contempt toward the monarch or crown officials. (Life in prison punishment) With the Commonwealth, libel cases were adjudicated by the Cl courts.

English Heritage of Defamation

"The proposed Constitution therefore...is in strictness neither a national nor a federal Constitution; but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the Government are drawn, it is partly federal, and partly national: in the operation of these powers, it is national, not federal. In the extent of them, again, it is federal; not national: And finally in the authoritative mode of introducing amendments, it is neither wholly federal, nor wholly national."

Federalist 39 JMAD Federal or National Constitution?

"The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State."

Federalist 45 JMAD Delegated Powers to General gov. and Reserved Powers to the States

"...the equal vote allowed to each state, is at once a constitutional recognition of the portion of sovereignty remaining in the individual states, and an instrument for preserving that residuary sovereignty. So far the quality ought to be no less acceptable to the large than to the small states; since they are not less solicitous to guard by every possible expedient against an improper consolidation of the states into one simple republic. Another advantage accruing from this ingredient in the constitution of the senate, is the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the [1] concurrence first of a majority of the people, and then of a [2] majority of the states.

Federalist 62 JMAD 1788

European countries "are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes (footnote:colonist thoughts of people in europe). But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force and of officers appointed out of the militia...it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it." "Let us not insult the free and gallant citizens of America (distinguished themselves recently in revolution) with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors."

Federalist No. 46 JMAD

"It is essential to the Being of Government that a Power should always exist which no other Power within such Government can have Right to withstand or controul: Therefore, when the word Power relates to the Supreme Authority of the Government it must be understood absolute and unlimited. "... and if you are still of Opinion that two Jurisdictions, each of them having a Share in the Supreme Power, are compatible in the same State, it can be to no Purpose to Reason or Argue upon the other Parts of your Message. Its enough to observe that this Disagreement in our Principles will have its Influence upon all the Deductions which are made from them." "...from the Nature of Government a Suprem[e] Legislative Power must always exist over all the Parts and all Affairs of every Dominion--that in absolute Monarchies the Legislative and executive Powers are united in the Prince or Monarch--that in the English Constitution there is, and always has been, a Legislative Power distinct from the regal or executive Power."

Gov. Thomas Hutchinson, 1773 (To Council & House of Representatives) American Federalism v. GB unitary govt

Unprotected speech Words which "by their very utterance, inflict injury or tend to incite an immediate breach of the peace."

Fighting Words

SCOTUS has recognized this right as non-explicit but protected as a fundamental right by the 1st and 14th amendments

Freedom of Association

The government can reasonably regulate the time, place, and manner of speech, but not the content.

General Rule for Regulating Protected Speech

Decided 7-2 opinion written J. Edward T. Sanford Facts: Socialist Benjamin Gitlow published & circulated copies of left-wing manifesto, which advocated strikes and the violent overthrow of the government. Convicted of criminal anarchy under a NY Criminal Anarchy Act that prohibited the overthrow of the government by force or violence. Issues: 1. Is the 1st Amendment Freedom of Speech incorporated into the 14th Amendment Due Process Clause? 2. Did the NY Criminal Anarchy Law violate the defendants liberty of expression incorporated in the 14th Amendment DPC? Holding: 1. Yes, it's "among the fundamental personal rights & liberties protected by the due process clause" 2. No, affirmed, there was still a "dangerous bad tendency," if not an immediate danger.

Gitlow v. People of the State of New York (1925)

"It is a fundamental principle... that the freedom of speech and of teh press... does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that... prevents the punishment of those who abuse this freedom." "That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical contrary to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to question. A State may penalize utterances which openly advocate the overthrow of the representative and constitutional form of government of the United States and the several States, by violence or other unlawful means. In short, this freedom does not deprive a State of the primary and essential right of self-preservation, which, so long as human governments endure, they cannot be denied."

Gitlow v. People of the State of New York (1925) Reasoning

"... I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. "Of Course, I am speaking only of expressions of opinion and exhortations, which were all that were uttered here..."

Gitlow v. People of the State of New York (1925) Reasoning: J. Holmes' Competition of the market (In Dissent)

"If what I think the correct test is applied, it is manifest that there was no clear and present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant's views. It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement." "If the publication of this document had been laid as an attempt to induce an uprising against the government at once, and not at some indefinite time in the future, it would have presented a different question."

Gitlow v. People of the State of New York (1925) Reasoning: J. Holmes' SCRT Should have applied new CPD test (In Dissent)

arms for defence "is 'a public allowance, under due restrictions, of the natural right of resistance and self preservation (foundation for right. 1st law of nature is right of preservation), when the sanctions of society and laws are found insufficient to restrain the violence of oppression.'"

Sam Adams; collective self preservation is to replace tyranny quoting Blackstone

"--How little do those persons attend to the rights of the constitution, if they know anything about them, who find fault with a late vote of this town, calling upon the inhabitants to provide themselves with arms for their defence at any time; but more especially, when they had reason to fear, there would be a necessity of the means of self preservation against the violence of oppression."

Sam Adams; collective self preservation is to replace tyranny.

"Such an action 'violate[s] the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say.'" David Souter for a unanimous court held:Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc." "Our holding today rests not on any particular view about the Council's message but on the Nation's commitment to protect freedom of speech." "Vets did not exclude homosexuals per se, just GLIB as its own parade unit carrying its own banner. Plus, vets speech (parade) was not a place of public accommodation."

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995)

Unanimous decision written by J. David Souter Facts: Boston has a long history recognizing St. Patrick that dates back to GW ( legislative history) choosing "St. Patrick" as the password to get through colonial lines during the revolutionary war evacuation of Boston. ( tied to our history, courts will recognize that fact) Every year since 1947, the South Boston Allied War Vets has received a permit to have a St. Patrick's Day-Evacuation Day Parade. The Vets Council refused to include Irish American Gay, Lesbian, & Bisexual Group (GLIB) at the parade. MA Trial Crt ordered Vets to include them (citing MA law that prohibits discrimination in public accommodations, including sexual orientation). State law that has to do with anti-discrimination. If you are involved with public accommodations, you have to abide by state law. A category of discrimination has to do with sexual orientation. Vets council asserted that the Parade expressed traditional religious and social values, and excluded groups with sexual themes across the board. Issue: Whether MA's mandate to require private citizens to include a group imparting a message it did not wish to convey violated the 1st and 14th amendments? Holding? Yes. violates the autonomy to choose the content of his own message.

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995)

For speech to be prohibited by a law it must be: Directed at inciting or producing imminent lawless action and Likely to incite or produce such action Otherwise the law is overly broad and prohibits speech protected under the 1st and 14th amendments.

Incitement test (Brandenburg v. Ohio (1969) Reasoning)

"Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral [reasonable] interests, but that it need not be the least restrictive or least intrusive means of doing so."

J. Kennedy, ward v. Rock against racism (1989) (Sound equipment in NY / noise disturbance case)

"Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American Constitutions, and suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles."

JMAD, Federal Constitutional Convention July 1787 Bicameralism

6-3 Decision opinion written by J. William Brennan Facts: Nico Jacobellis, Manager of Movie Theater, was convicted under OH law for possessing and exhibiting an obscene film. Appellate Court OH Affirmed. SRCT of OH Upheld. Appealed to SCOTUS Issue: Did the OH law violate the 1st and 14th amendments? Holding: Yes. Film was not obscene. Reverse conviction.

Jacobellis v. Ohio (1964)

"It is possible to read the Court's opinion in Roth v. United States...in a variety of ways. ...I have reached the conclusion...that, under the First and Fourteenth Amendments, criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."

Jacobellis v. Ohio (1964) Reasoning J. Potter Stewart Concurrence.

"America was not annexed to the Realm, and it was not fitting that Parliament should make laws for those Countries."

James I

Colonists too came from GB ancestors - who "transmitted the rights of men and the blessings of liberty to... their posterity." "Know then. That we consider ourselves, and do insist that we are and ought to be, as free as our fellow-subjects in Britain, and that no power on earth has a right to take our property from us without your consent."

John Jay Letter to People of GB, 1774 1

"When a nation, led to greatness by the hand of liberty, and possessed of all the glory that heroism, munificence, and humanity can bestow, descends to the ungrateful task of forgiving chains for her friends and children, and instead of giving support to freedom, turns advocate for slavery and oppression, there is reason to suspect she has either ceased to be virtuous, or been extremely negligent in the appointment of her rulers."

John Jay Letter to People of GB, 1774 2

Unanimous Decision opinion written by Oliver Wendell Holmes Facts: WW1/Drafts Growing Socialism (Eugene Debbs 1m votes) Charles Schenck Gen. Sec. of NY Socialist Party argued the draft violated 13th Amendment. Sent 15k leaflets to draftees to oppose the draft. Arrested, tried, and convicted for violating the Espionage Act of 1917 for attempting to cause insubordination and obstruct recruiting of the armed forces. appealed to scotus. Issue: Does the espionage act's prohibition of speech that attempts to incite insubordination in the military and obstruct the recruitment of the armed forces violate the 1st amendment? Holding: No. The espionage act of 1917 did not violate 1st Amendment.

Schenck v. United States (1919)

"Englishmen had no right to have arms until 1689, but a duty to have them there certainly was, from the proverbial 'time out of mind. (term you hear cook and others say, so ancient we can't fathom it)" "With no standing army until late in the seventeenth century and no regular police force until the nineteenth century, ordinary Englishmen were compelled to (be in arms business) shoulder a variety of peacekeeping tasks (enforcement, law and order.)." "Men were expected to defend themselves and their families and, if need be, their neighbors as well. But the duty was not merely defensive. Anyone who discovered a crime was required to raise a "hue and cry" and join, "ready apparelled," in pursuit of the culprit if necessary "from town to town, and from county to county" on pain of fine and imprisonment." In his Commentaries on the Laws of England, William Blackstone listed the right to bear arms as one of the auxiliary rights to protect the primary rights, of personal security, personal liberty, and private property.

Joyce Lee Malcolm "The Creation of a 'True antient and Indubitable' Right: The English Bill of Right's and the Right to Be Armed Right (1689) & Duty (ancient)

"As a sister colony, suffering in defence of the rights of America, we consider your injuries as a common cause, to the redress of which it is equally our duty, and our interest to contribute. But what ought to be done in a situation so truly critical, while it employs the anxious thoughts of every generous mind, is very hard to be determined."

Letter to Committee of Correspondence in Boston, 1774 From 51-member committee in NY

"Upon these reasons we conclude, that a Congress of Deputies from the colonies in general is of the utmost moment; that it ought to be assembled without delay, and some unanimous resolutions formed in this fatal emergency, not only respecting your deplorable circumstances, but for the security of our common rights."

Letter to Committee of Correspondence in Boston, 1774 From 51-member committee in NY Called for a General Congress

"From a virtuous and spirited union much may be expected, while the feeble efforts of a few will only be attended with mischief and disappointment to themselves and triumph to the adversaries of liberty."

Letter to Committee of Correspondence in Boston, 1774 From 51-member committee in NY United Front

Strict rules, court precedents, study-artificial reasoning, station of judge, dignity, and fit character limit judges use of power

Limits on Jud. Review

Applied Jud. Review to SCOTUS Facts: Turbulent political times - impeachment & the battle of judiciary acts: Judiciary Act of 1801 (new federal judges & 6 circuits, 5 SCRT justices) and Organic Act of 1801 (JOPs for D.C.), TJ held some back William Marbury & 3 other JOPs filed suit TJ had ordered Sec. Madison to withhold their commissions (though signed & sealed - they were not delivered). What were TJs arguments? Commissions were not complete - delivery is essential, & SOP Marbury seeks a Writ of Mandamus from the SCRT in O.J. Issue: Is Marbury entitled to a SCRT issued Writ of Mandamus ordering Secretary Madison to deliver his commission? Holding: No, b/c section 13 of the Judicial Act of 1789 is unconstitutional (SCRT has power of judicial review), case dismissed

Marbury v. Madison 1803 Brief

"This great principle is that the Constitution and the laws made in pursuance thereof are supreme [Art. VI]; that they control the Constitution and laws of the respective Constitution and laws of the respective States, and cannot be controlled by them. ...That, where... repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme."

McCulloch v. Maryland 1819 Doctrine of National Supremacy

Facts: Pat Tornillo - Exec. Dir. of the Classroom Teachers Assoc. and a candidate for the Florida House of Representatives in Dade County, Fl. Has criticism printed, editorials against him. Miami Herald - printed two editorials criticizing him Tornillo argued - Herald had to publish his responses under FL law - paper refused FL Crt of Appeals held - statute was unconstitutional Tornillo appealed to FL SCRT, which reversed Appealed to SCOTUS Issue: Did the FL state "right to reply" statute violate the 1st amendment free press (applied via 14th)? Holding: Yes. Press responsibility is not mandated by the Constitution.

Miami Herald v. Tornillo (1974)

"The clear implication has been that any such a compulsion to publish that which "reason tells them should not be published" is unconstitutional. A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution, and, like many other virtues, it cannot be legislated."

Miami Herald v. Tornillo (1974) Reasoning CJ Warren Burger

For speech to be obscene, and thus unprotected, the trial must determine: "whether the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient [indecent, lustful] interest...; whether the work depicts or describes, in a patently offensive way, sexual conduct described by the state; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Miller Obscenity Test

Develops standard obscenity test. 5-4 Decision held by CJ Warren Burger Facts: Marvin Miller mails brochure with graphic sexual images through mail Convicted under CA law prohibiting distribution of obscene material (by contemporary (every local society standards) not national (federal. standards) CRT keeps contemporary. Issue: Is the sale and distribution of obscene materials by mail protected under 1st and 14th Amendments? Holding: No. Roth was reaffirmed - obscenity is not protected speech States - had a legitimate interest in prohibiting it due to the "significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles." "obscenity is to be determined by applying 'contemporary community standards,...not 'national standards.'"

Miller v. California (1973)

"Effective advocacy of both public and private points of view (our speech, what we write about), particularly controversial ones, is undeniably enhanced by group association is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech."

NAACP v. Alabama (1958) Reasoning J. John Marshall Harlan II

"When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right."

Schenck v. United States (1919) Reasoning: Courts have more deference for the govt. during wartime

Unanimous decision written by J. WIlliam Brennan Facts: New York Times published - an advertisement for Dr. MLK that included false statements about the City of Montgomery, AL, using violence against Civil Rights protestors. L.B. Sullivan - one of three city Commissioners over the police, asked the NY Times to retract the information, it declined. And Sullivan brought a libel suit against the times for false libelous statements. AL Trial Court - awarded Sullivan $500,000 in damages after the judge instructed the jury that statements were "libelous per se," so legal injury could be implied w/o proof of actual damages, and that, for the purpose of compensatory (actual) damages, malice was presumed, so such damages could be awarded if the statements were found to have been published by the Defendant and were made concerning Sullivan. SCRT of AL affirmed Appealed to SCOTUS Issue: Is a publication that criticizes a public official protected by the 1st and 14th amendments, absent a showing of actual malice? Holding: Yes. No actionable recovery for public figure w/o a showing of actual malice.

New York Times Co. v. Sullivan (1964)

"It would give public servants an unjustified preference over the public they serve, if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves. We conclude that such a privilege is required by the First and Fourteenth Amendments. We hold today that the Constitution delimits a State's power to award damages for libel in actions brought by public officials against critics of their official conduct. Since this is such an action, the rule requiring proof of actual malice is applicable. While Alabama law apparently requires proof of actual malice for an award of punitive (not actual) damages, where general damages are concerned malice is 'presumed.' Such a presumption is inconsistent with the federal rule. (constitution)"

New York Times Co. v. Sullivan (1964) Reasoning

2 Combined Cases? Per Curium Facts: Daniel Ellsberg, a Pentagon employee, gave NY times a 7,000 page top secret study, "History of U.S. Decision-Making Process on VietNam Policy." Excerpts known as - The Pentagon Papers - were published by Times. The Nixon (unpopular) admin. asked NY Times to stop printing for Nat. Security, the paper refused. (expect court to give less deference to the president when that's the case) Govt. sought a fed. Injunction (power of court, old and broad power, enjoin, compel, prevent, constrain to/from doing something) to enjoin the New York Times & Washington Post from publishing secrets relating to Vietnam Issue: Does an injunction enjoining the NY Times and the Washington Post from publishing the contents of a classified study violate the 1st amendment? Holding: Yes. Government didn't meet its "heavy burden of showing justification for the enforcement of such a prior restraint."

New York Times Co. vs. the United States (1971)

"heavy burden of showing justification for the enforcement of such a [prior] restraint." "'Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.'.... The Government 'thus carries a heavy burden of showing justification for the imposition of such a restraint.'

New York Times Co. vs. the United States (1971) Reasoning

General rule - "[T]he chief purpose of [the First Amendment's] guarantee [is] to prevent previous restraints upon publication." - Near v. Minnesota...(1931) [there is an] Exception- "there is a single, extremely narrow class of cases in which the First Amendment's ban on prior judicial restraint may be overridden. ...such cases may arise only when the Nation "is at war," during which times "[n]o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops (when leaving where going no. of)" Near v. Minnesota, ...(1931). Thus, only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order."

New York Times Co. vs. the United States (1971) Reasoning J. William Brennan Concurrence

CJ Earl Warren "a government regulation is sufficiently justified if it: 1. furthers an important or substantial government interest; 2. the governmental interest is unrelated to the suppression of free expression; and 3. the incidental restriction on alleged 1st Amendment freedoms is not greater than is essential to the furtherance of that interest.

O'Brien Test (United States v. O'Brien (1968))

"It seems to be admitted that, if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. [However] The statute of 1917, in &4, punishes consiracies to obsruct, as well as actual obstruction. If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime."

Schenck v. United States (1919) Reasoning: Act does not have to be successful to be a crime

"It cannot be too strongly impressed on the minds of us all how greatly our individual prosperity depends on our national prosperity, and how greatly our national prosperity depends on a well organized, vigorous government, ruling by wise and equal laws, faithfully executed; nor is such a government unfriendly to liberty—to that liberty which is really inestimable; on the contrary, nothing but a strong government of laws irresistibly bearing down arbitrary power and licentiousness can defend it against those two formidable enemies. Let it be remembered that civil liberty consists not in a right to every man to do just what he pleases, but it consists in an equal right to all the citizens to have, enjoy, and to do, in peace, security, and without molestation, whatever the equal and constitutional laws of the country admit to be consistent with the public good. It is the duty and the interest, therefore, of all good citizens, in their several stations, to support the laws and the government which thus protect their rights and liberties."

Ordered Liberty CJ John Jay, Charge to Grand Juries, 1790

you have to keep the gov honest, even when your team is in charge.

Political maturity argument

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

Preamble

The House will "take such Measures as are consistent with our Constitution and the Rights of the People to promote and maintain [law and order, the govt. And public happiness]. That the Government at present is in a very disturbed State State is apparent! But we cannot ascribe it to the People's having adopted unconstitutional Principles, which seems to be the Cause assigned for it by your Excellency. It appears to us to have been occasioned rather, by the British House of Commons assuming and exercising Power inconsistent with the Freedom of the Constitution to give and grant the property of the Colonists, and appropriate the same without their consent." "...when the Parliament by an act of their own expressly declared, that the King, Lords and Commons of the Nation 'have, had, and of Right ought to have full power and Authority to make Laws and Statutes of sufficient Force and Validity to bind the Colonies and People of America, Subjects of the Crown, of Great Britain , in all cases whatever," and in Consequence hereof another Revenue Act was made, the Minds of the People were filled with Anxiety, and they were justly alarmed with Apprehensions of the total Extinction of their Liberties."

Reply of the House to Hutchinson's First Message (Jan 26, 1773) 1

Sets standard landmark that obscenity is not protected speech under 1st and 14th Sets a criteria or test to determine material as being obscene Obscenity is not protected speech or press. Obscene - "whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest." Warren Crt, Brennan Majority

Roth v. US (1957)

"The two sons of Charles the first, after the death of Oliver Cromwell, reigned in their turns; but by copying after their father, their administration of government was grievous to their subjects, and infamous abroad." "Charles the second indeed reigned till he died; but his brother James was obliged to abdicate the throne, which made room for William the third (from netherlands invited by parliament brings army), and his royal consort Mary, the daughter of the unfortunate James II This was the fate of a race of Kings, bigotted to the greatest degree to the doctrines of slavery and regardless of the natural, inherent, divinely hereditary and indefeasible rights of their subjects.

Sam Adams, Boston Gazette (Feb. 1769)

"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."

Schenck v. United States (1919) Reasoning: New Test Still Developing-Clear and Present Danger Test

"We admit that, in many places and in ordinary times, the defendants...circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. [For example]... The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

Schenck v. United States (1919) Reasoning: Non-Ordinary Times

Decided 7-2 CJ Charles Huges wrote the opinion for the majority Facts: Yetta Stromberg taught at Young Communist league camp Books & pamphlets incited violence and "armed uprisings," and portrayed "the indispensability of a desperate, bloody, destructive war as the immediate task of the coming action..." CA Penal Code stated that any person who "displays a red flag, banner or badge or any flag, badge, banner, or device of any color or form whatever in any public place or in any meeting place or public assembly, or from or on any house, building or window as a sign, symbol or emblem of opposition to organized government or as an invitation or stimulus to anarchistic action or as an aid to propaganda that is of a seditious character is guilty of a felony." CA Trial court found her guilty; CA District court of appeals affirmed Appealed to SCOTUS Issue: Whether an Act which prohibits the display of any flag, symbol, or emblem of opposition to organized government on its face violates the 14th Amendment DPC incorporation of free speech? Holding: Yes. It is overly broad. The first time SCOTUS struck down state law under Freedom of speech.

Stromberg v. California (1931)

"Freedom of speech is not an absolute one, and the State, in the exercise of its police power, may punish the abuse of this freedom. There is no question but that the State may thus provide for the punishment and threaten the overthrow of organized government by unlawful means. There is no constitutional immunity for such conduct abhorrent to our institutions." "The question [before the court] is thus narrowed to that of the validity of the first clause validity of the first clause, that is, with respect to , that is, with respect to the display the display of the flag "as a sign, symbol or emblem of opposition to of the flag "as a sign, symbol or emblem of opposition to organized government," organized government," and the construction which the state and the construction which the state court has placed upon this clause removes every element of court has placed upon this clause removes every element of doubt." doubt." "A statute which, upon its face...is so is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment. The first clause of the statute being invalid upon Amendment. The first clause of the statute being invalid upon its face, the conviction of the appellant, which, so far as the its face, the conviction of the appellant, which, so far as the record discloses, may have rested upon that clause exclusively, record discloses, may have rested upon that clause exclusively, must be set aside." Rule: govt. restrictions on expression cannot be govt. restrictions on expression cannot be overly broad or vague, or it violates 1st and 14 Amendments.

Stromberg v. California (1931) Reasoning

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Supremacy Clause

"The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter."

TJ to Edward Carrington, Jan. 6, 1787

5-4 decision J. William Douglas writes for the majority opinion Facts: Father Arthur Terminiello - spoke at Christian Veterans of America auditorium meeting (don't let title fool you, rough bunch, author, rough speaker) using inflamed racial and political criticisms towards broad groups (jewish ppl). Protestors (so upset) outside rioted in Chicago; Police defended (ask him to stop, but he refuses), then arrested (D) for breaching the peace. Trial court convicted. ILL Appellate and SCRT affirmed Appealed to scotus Issue: Did the city ordinance violate free expression guaranteed by the 1st and 14th amendments? Holding: Yes. Function of free speech is to invite dispute.

Terminiello v. Chicago (1949)

"a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." "Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute...is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."

Terminiello v. Chicago (1949) Reasoning

"This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

Terminiello v. Chicago (1949) Reasoning J. Robert Jackson Dissent

5-4 Decision majority opinion written by J. William Brennan Facts: Gregory Lee Johnson, a communist youth, burned a flag w/kerosene, & chanted "America, the red, white, and blue, we spit on you" at the Republican Natl. Convention to protest Reagan's policies. Charged with "the desecration of a venerated object" under TX Penal Code, and sentenced to 1 yr in prison & a $2,000 fine. TX court of appeals affirmed, TX court of criminal appeals reversed holding his actions were symbolic speech protected by the 1st Amend. Appealed to SCOTUS Issue: Did the Texas non-desecration of flag statute violate the 1st and 14th amendments? Holding: Yes. The burning was expressive conduct political speech protected by the 1st Amendment.

Texas v. Johnson (1989)

"We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag-burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by—as one witness here did—according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents." "[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." TX can use breach of the peace statute to prevent disturbances w/o punishing flag desecration.

Texas v. Johnson (1989) Reasoning

"The Court decides that the American flag is just another symbol, about which not only must opinions pro and con be tolerated, but for which the most minimal public respect may not be enjoined. The government may conscript men into the Armed Forces where they must fight and perhaps die for the flag, but the government may not prohibit the public burning of the banner under which they fight."

Texas v. Johnson (1989) Reasoning CJ William Rehnquist Dissent

"The creation of a federal right to post bulletin boards and graffiti on the Washington Monument might [also] enlarge the market for free expression, but at a cost I would not pay. Similarly, ... sanctioning the public desecration of the flag will tarnish its value -- both for those who cherish the ideas for which it waves and for those who desire to don the robes of martyrdom by burning it. That tarnish is not justified by the trivial burden on free expression occasioned by requiring that an available, alternative mode of expression -- including uttering words critical of the flag...be employed."

Texas v. Johnson (1989) Reasoning J. John Paul Stevens Dissent

When the government restricts speech due to the anticipated or actual reaction of the crowd to the speaker's speech.

The Hecklers' Veto

7-2 Decision Majority opinion written by Justice Abe Fortas Facts: John Tinker & others - wore wore black armbands black armbands to school to to school to protest the Vietnam War and call for a truce. School policy stated they had to remove it or be suspended Tinker was sent home and sued and sought an injunction Dist. Court held action was "reasonable in order to prevent disturbance of school discipline." U.S. Eighth Circuit was equally divided, and affirmed the lower court decision w/o opinion. Tinker appealed Tinker appealed to SCOTUS Issue: Does a school policy prohibiting armbands, worn as a form of symbolic protest, violate the 1st Amendment's freedom of speech via the 14th? Holding: Yes. Reversed, and revealed the Tinker Test for schools.

Tinker v. Des Moines Independent Comm. School District (1969)

"First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students teachers and students shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." The present students "neither interrupted school activities nor sought to intrude in the school affairs or the lives of others."

Tinker v. Des Moines Independent Comm. School District (1969) Reasoning

"Court should not strike down reasonable school policies. Because armbands distracted students and school officials from their duties, the policy was a legitimate school interest." "In Cox v. Louisiana,...(1965), ..., the Court clearly stated that the rights of free speech and assembly 'do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time."

Tinker v. Des Moines Independent Comm. School District (1969) Reasoning J. Hugo Black Dissent

"school officials should be accorded the widest authority in maintaining discipline and good order in their institutions." "I would, in cases like this, cast upon those complaining the burden of showing that a particular school measure was motivated by other than legitimate school concerns. for example, a desire to prohibit the expression of an unpopular point of view, while permitting expression of the dominant opinion. Finding nothing in this record which impugns the good faith of respondents in promulgating the armband regulation, I would affirm the judgment below."

Tinker v. Des Moines Independent Comm. School District (1969) Reasoning J. John Marshall Harlan Dissent

"Although I agree with much of what is said in the court's opinion, and with its judgement in this case, I cannot share the court's uncritical assumption that, school discipline aside, the first amendment rights of children are coextensive with those of adults."

Tinker v. Des Moines Independent Comm. School District (1969) Reasoning J. Potter Stewart concurrence

"If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict, it would be obvious that the regulation would violate the constitutional rights of students, at least if it could not be justified by a showing that the students' activities would materially and substantially disrupt the work and discipline of the school. In the circumstances of the present case, the prohibition of the silent, passive 'witness of the armbands,' as one of the children called it, is no less offensive to the Constitution's guarantees." "But conduct that materially and substantially disrupts work and discipline of school could be prohibited.

Tinker v. Des Moines Independent Comm. School District (1969) Reasoning Tinker Test

7-1 decision. T. Marshall not participating opinion written by CJ Earl Warren Facts: David O'Brien burned his draft card on the steps of a Boston Courthouse to protest the Vietnam War in violation of federal law. Admitted he knew he was violating federal law but argued his conduct was "symbolic speech" protected by the 1st amendment. District court found him guilty of willfully and knowingly burning the card in violation of fed law (1965 Amendment of the Universal Military Training and service act of 1948 that mandated that the destruction or mutilation of drafts card was a crime) US Second Circuit reversed; appealed to SCOTUS Issue: Is the burning of a draft card protected speech under the 1st Amendment? Holding: No. 2nd Circuit reversed. SCOTUS put forth the O'Brien Test for symbolic and expressive conduct.

United States v. O'Brien (1968)

"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. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity [nerve]."To subject the press to the restrictive power of a licenser...is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government." "So true will it be found, that to censure the licentiousness, is to maintain the liberty, of the press."

William Blackstone, Commentaries on the Laws of England Vol IV (1769) No prior restraint but free speech checked by libel

A (writ of) mandamus is an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion

Writ of Mandamus