American Civil Liberties: cases : Part 5

Ashcroft v. Free Speech Coalition

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), struck down two overbroad provisions of the Child Pornography Prevention Act of 1996 because they abridged "the freedom to engage in a substantial amount of lawful speech." The case was brought against the Government by the Free Speech Coalition, a "California trade association for the adult-entertainment industry;" along with Bold Type, Inc., a "publisher of a book advocating the nudist lifestyle;" Jim Gingerich, who paints nudes; and Ron Raffaelli, a photographer who specialized in erotic images. By striking down these two provisions, the Court rejected an invitation to increase the amount of speech that would be categorically outside the protection of the First Amendment. Majority opinion[edit] "Congress shall make no law... abridging the freedom of speech," and imposing a criminal sanction on protected speech is a "stark example of speech suppression." At the same time, sexual abuse of children "is a most serious crime and an act repugnant to the moral instincts of a decent people." "Congress may pass valid laws to protect children from abuse, and it has." The great difficulty with the two provisions of the CPPA at issue in this case was that they included categories of speech other than obscenity and child pornography, and thus were overbroad.

Bethel School District v. Fraser

Bethel School District v. Fraser, 478 U.S. 675 (1986), was a United States Supreme Court decision involving free speech in public schools. Matthew Fraser was suspended from school in the Bethel School District for making a speech including double entendres at a school assembly. The Supreme Court held that his suspension did not violate the First Amendment. Opinion of the Court[edit] The US Supreme Court reversed the Court of Appeals in a 7-2 vote to reinstate the suspension, saying that the school district's policy did not violate the First Amendment.[4] Chief Justice Warren Burger delivered the Court's opinion, in what ended up along with the Gramm-Rudman decision to be the final case of the Burger Court era. Fraser referred to this as "the silver lining in the grim cloud of my defeat."[citation needed] Justices William J. Brennan and Harry Blackmun delivered concurring opinions, while Thurgood Marshall and John Paul Stevens dissented.[4] Though the Court distinguished its 1969 decision Tinker v. Des Moines, which upheld the right of students to express themselves where their words (or in that case, the wearing of a protest armband) are nondisruptive and could not be seen as connected with the school, Fraser limits the scope of that ruling, by prohibiting certain styles of expression that are sexually vulgar.

Cohen v. California

Cohen v. California, 403 U.S. 15 (1971), was a United States Supreme Court case dealing with freedom of speech. The Court overturned a man's conviction for the crime of disturbing the peace for wearing a jacket in the public corridors of a courthouse that displayed the phrase, "**** the Draft". The Court's decision[edit] The Court, by a vote of 5-4, per Justice John Marshall Harlan II, overturned the appellate court's ruling. First, Justice Harlan began by emphasizing that this case concerned "speech", and not "conduct", as was at issue in United States v. O'Brien. Harlan then stated that any attempt by California to abridge the content of Cohen's speech would be no doubt unconstitutional except in a few instances, like, for example, if California was regulating the time, place, or manner of Cohen's speech independent from the content of the speech. Second, Harlan also expressed the concern of the Court that section 415 was vague and did not put citizens on notice as to what behavior was unlawful. Indeed, the words "offensive conduct" alone cannot "be said sufficiently to inform the ordinary person that distinctions between certain locations are thereby created."

City of Erie v. Pap's A.M.

Erie v. Pap's A. M., 529 U.S. 277 (2000), was a landmark decision by the Supreme Court of the United States regarding nude dancing as free speech. The court held that an ordinance banning public nudity did not violate the operator of a totally nude entertainment establishment's constitutional right to free speech.[1][2] Test[edit] After determining that the ordinance was content neutral, the Court then applied the O'Brien test. The first factor of the O'Brien test for evaluating restrictions on symbolic speech is whether the government regulation is within the constitutional power of the government to enact.[2] The second factor of the O'Brien test for evaluating restrictions on symbolic speech is whether the regulation furthers an important or substantial government interest.[2] The third O'Brien factor is that the government interest must be unrelated to the suppression of free expression.[1] The fourth and final O'Brien factor is that the restriction be no greater than is essential to the furtherance of the government interest.[1] The court found that the ordinance met all four factors of the O'Brien test, and that a "least restrictive means" analysis was not necessary.[2] The Court reversed the decision of the Pennsylvania Supreme Court, and found the ordinance to be constitutional.

FCC v. Pacifica Foundation

Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978) is a landmark United States Supreme Court decision that defined the power of the Federal Communications Commission (FCC) over indecent material as applied to broadcasting. Impact[edit] In 1997, Pacifica Radio "Living Room" host Larry Bensky prefaced an interview with Carlin by saying: "George Carlin, you're a very unusual guest for Pacifica Radio. You're probably the only person in the United States that we don't have to give The Carlin Warning to about which words you can't say on this program, because it's named after you."[1][2]

Hazelwood v. Kuhlmeier

Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S. 260 (1988) was a landmark decision by the Supreme Court of the United States that held that public school curricular student newspapers that have not been established as forums for student expression are subject to a lower level of First Amendment protection than independent student expression or newspapers established (by policy or practice) as forums for student expression. The case concerned the censorship of two articles in The Spectrum, the student newspaper of Hazelwood East High School in St. Louis County, Missouri, in 1983. When the school principal removed an article concerning divorce and another concerning teen pregnancy, the student journalists sued, claiming their First Amendment rights were violated. A lower court sided with the school before it was overturned by the U.S. Court of Appeals for the Eighth Circuit. In a 5-3 decision rendered in 1988, the Supreme Court overturned the circuit court decision with a majority opinion that school administrators could exercise prior restraint of school-sponsored expression, such as newspapers and assembly speeches, if the censorship is "reasonably related to legitimate pedagogical concerns". In this, school-sponsored newspapers are considered limited public forums of expression. The case and the earlier Tinker v. Des Moines Independent Community School District are considered landmarks for defining student right to expression in public schools. While subsequent courts have varied significantly on when the Hazelwood decision applies, the case remains a strong precedent in how student speech is regulated. The New Voice bill of 2016, to date passed by 18 states is neglecting the Hazelwood decision, and going back to the Tinker precident.[1]

Miller v. California

Miller v. California, 413 U.S. 15 (1973) was a landmark decision by the United States Supreme Court wherein the court redefined its definition of obscenity from that of "utterly without socially redeeming value" to that which lacks "serious literary, artistic, political, or scientific value." It is now referred to as the Three-prong standard or the Miller test. Supreme Court decision[edit] Miller had based his appeal in California on Memoirs v. Massachusetts. The Court rejected that argument. The question before the court was whether the sale and distribution of obscene material was protected under the First Amendment's guarantee of Freedom of Speech. The Court ruled that it was not. It indicated that "obscene material is not protected by the First Amendment", especially that of hardcore pornography, thereby reaffirming part of Roth.[9][10] However, the Court acknowledged "the inherent dangers of undertaking to regulate any form of expression," and said that "State statutes designed to regulate obscene materials must be carefully limited."[11] The Court, in an attempt to set such limits devised a set of three criteria which must be met for a work to be legitimately subject to state regulation: whether the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest, whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, as specifically defined by applicable state law (the syllabus of the case mentions only sexual conduct, but excretory functions are explicitly mentioned on page 25 of the majority opinion); and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.[12] This obscenity test overturns the definition of obscenity set out in the Memoirs decision, which held that "all ideas having even the slightest redeeming social importance . . . have the full protection of the guaranties [of the First Amendment]" and that obscenity was that which was "utterly without redeeming social importance."[13] The Miller decision vacated the jury verdict and remanded the case back to the California Superior Court.

Morse v. Frederick

Morse v. Frederick, 551 U.S. 393 (2007), was a United States Supreme Court case in which the Court held, 5-4, that the First Amendment does not prevent educators from suppressing, at or across the street from a school-supervised event, student speech that is reasonably viewed as promoting illegal drug use.[1] In 2002, Juneau-Douglas High School principal Deborah Morse suspended Joseph Frederick after he displayed a banner reading "BONG HiTS [sic] 4 JESUS" across the street from the school during the 2002 Olympic Torch Relay.[2] Frederick sued, claiming his constitutional rights to free speech were violated. His suit was dismissed by the federal district court, but on appeal, the Ninth Circuit reversed, concluding that Frederick's speech rights were violated. Chief Justice Roberts, writing for the majority, concluded that the school officials did not violate the First Amendment. To do so, he made three legal determinations: first, that "school speech" doctrine should apply because Frederick's speech occurred "at a school event"; second, that the speech was "reasonably viewed as promoting illegal drug use"; and third, that a principal may legally restrict that speech—based on the three existing First Amendment school speech precedents, other Constitutional jurisprudence relating to schools, and a school's "important—indeed, perhaps compelling interest" in deterring drug use by students. One scholar noted that "by its plain language, Morse's holding is narrow in that it expressly applies only to student speech promoting illegal drug use".[3] She adds, however, that courts could nonetheless apply it to other student speech that, like speech encouraging illegal drug use, similarly undermines schools' educational missions or threatens students' safety. "Further, Morse arguably permits viewpoint discrimination of purely political speech whenever that speech mentions illegal drugs—a result seemingly at odds with the First Amendment".[3]

NEA v. Finley

National Endowment for the Arts v. Finley, 524 U.S. 569 (1998), was a United States Supreme Court case in which the Court ruled that the National Foundation on the Arts and Humanities Act, as amended in 1990, (20 U.S.C. § 954 (d)(1)), which required the Chairperson of the National Endowment for the Arts (NEA) to ensure that "artistic excellence and artistic merit are the criteria by which [grant] applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public" was facially valid, as it neither inherently interfered with First Amendment rights nor violated constitutional vagueness principles. Justice O'Connor delivered the opinion of the Court. Supreme Court Decision[edit] The Supreme Court overturned the Court of Appeals decision. The Court found that decency does not certainly interfere with the First Amendment right to free expression and it does not violate the Fifth Amendment's void for vagueness provision. The court found that 20 U.S.C. § 954(d)(1) merely adds factors to the grant-making process. It does not state that all grants should be denied to applications involving indecent or disrespectful artworks. Although the statute does not state how much weight the Advisory Commission should give these factors, the NEA has wide discretion in considering this provision. Also, the Court stated that Finley carried the burden of demonstrating that there is a substantial risk that the application of the decency clause will lead to the suppression of speech. However, the Court found that the provision on its face was very clear in that the decency and respect provision is only a consideration; it is not a provision that compels the Chairperson to require decency and respect in every application. Because the very nature of the subject matter is open to different interpretations, the Court determined that in the context of selected artistic subsidies it is not possible at all times for Congress to legislate with clarity and it is difficult to establish a precise criterion when granting subsidies.[6]

New York v. Ferbe

New York v. Ferber, 458 U.S. 747 (1982), is a precedential decision given by the United States Supreme Court, which ruled unanimously that the First Amendment right to free speech did not forbid states from banning the sale of material depicting children engaged in sexual activity.[1] The Court's decision[edit] The Court upheld the constitutionality of New York's obscenity law, ruling that it did not violate the First Amendment, and reversed and remanded the case. For a long time before the decision, the Court had ruled that the First Amendment allowed the regulation of obscenity. Under the Court's previous decision in Miller v. California, 413 U.S. 15 (1973), material is "obscene" if, taken as a whole and applying contemporary community standards, it lacks serious scientific, literary, artistic, or political value, is "patently offensive" and aimed at "prurient interests".[2] The court in Ferber found that child pornography, however, may be banned without first being deemed obscene under Miller[3] for five reasons: The government has a very compelling interest in preventing the sexual exploitation of children.[2][3] Distribution of visual depictions of children engaged in sexual activity is intrinsically related to the sexual abuse of children. The images serve as a permanent reminder of the abuse, and it is necessary for government to regulate the channels of distributing such images if it is to be able to eliminate the production of child pornography. Advertising and selling child pornography provides an economic motive for producing child pornography.[2] Visual depictions of children engaged in sexual activity have negligible artistic value. Thus, holding that child pornography is outside the protection of the First Amendment is consistent with the Court's prior decisions limiting the banning of materials deemed "obscene" as the Court had previously defined it. For this reason, child pornography need not be legally obscene before being outlawed.

RAV v. City of St. Paul

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) was a United States Supreme Court case involving hate speech and the free speech clause of the First Amendment to the Constitution of the United States. A unanimous Court struck down St. Paul, Minnesota's Bias-Motivated Crime Ordinance, and in doing so overturned the conviction of a teenager, referred to in court documents only as R.A.V., for burning a cross on the lawn of an African American family. Decision[edit] Justice Antonin Scalia delivered the opinion of the court, in which Chief Justice William Rehnquist, Justice Anthony Kennedy, Justice David Souter, and Justice Clarence Thomas joined. Justice Byron White wrote an opinion concurring in the judgment, which Justice Harry Blackmun and Justice Sandra Day O'Connor joined in full, and Justice John Paul Stevens joined in part. Justice Blackmun wrote an opinion concurring in the judgment. Justice Stevens wrote an opinion concurring in the judgment, which was joined in part by Justice White and Justice Blackmun

Reno v. ACLU

Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), is a United States Supreme Court case in which all nine Justices of the Court voted to strike down anti-indecency provisions of the Communications Decency Act (CDA), because they violated the First Amendment's guarantee of freedom of speech. Two Justices concurred in part and dissented in part to the decision. This was the first major Supreme Court ruling on the regulation of materials distributed via the Internet. Opinion of the Court[edit] In a nuanced decision, Justice John Paul Stevens wrote of the differences between Internet communication and previous types of communication that the Court had ruled on. In conclusion, he wrote: "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." (footnotes removed) The rest of the CDA, including the "safe harbor" provision protecting Internet service providers from being liable for the words of others, was not affected by this decision and remains law. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. — Opinion of the court, 58¶ 5-6, [2]

Roth v. US

Roth v. United States, 354 U.S. 476 (1957),[1] along with its companion case Alberts v. California, was a landmark case before the United States Supreme Court which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment. Roth came down as a 6-3 decision, with the opinion of the Court authored by William J. Brennan, Jr.. The Court repudiated the Hicklin test and defined obscenity more strictly, as material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards." Only material meeting this test could be banned as "obscene." However, Brennan reaffirmed that obscenity was not protected by the First Amendment and thus upheld the convictions of Roth and Alberts for publishing and sending obscene material through the mail. Congress could ban material, "utterly without redeeming social importance," or in other words, "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest." Chief Justice Earl Warren worried that "broad language used here may eventually be applied to the arts and sciences and freedom of communication generally," but, agreeing that obscenity is not constitutionally protected, concurred only in the judgment. Justices Hugo Black and William O. Douglas, First Amendment "literalists," dissented in Roth, arguing vigorously that the First Amendment protected obscene material. Justice John Marshall Harlan II dissented in Roth, involving a federal statute, but concurred in Alberts, involving a state law, on the grounds that while states had broad power to prosecute obscenity, the federal government did not.

Stanley v. Georgia

Stanley v. Georgia, 394 U.S. 557 (1969), was a United States Supreme Court decision that helped to establish an implied "right to privacy" in U.S. law, in the form of mere possession of obscene materials. The Georgia home of Robert Eli Stanley, a suspected and previously convicted bookmaker, was searched by police with a federal warrant to seize betting paraphernalia. They found none, but instead seized three reels of pornographic material from a desk drawer in an upstairs bedroom, and later charged Mr. Stanley with the possession of obscene materials, a crime under Georgia law. The conviction was upheld by the Supreme Court of Georgia. The Supreme Court of the United States, however, per Justice Marshall, unanimously overturned the earlier decision and invalidated all state laws that forbade the private possession of materials judged obscene, on the grounds of the First and Fourteenth Amendments. Justices Stewart, Brennan, and White, contributed a joint concurring opinion. Justice Hugo Black also concurred, with a separate opinion having to do with the Fourth Amendment search and seizure provision. The case also established an implied right to pornography. The right to privacy to pornography is not absolute, however. For example, in Osborne v. Ohio (1990) the Supreme Court upheld a law which criminalized the mere possession of child pornography. Limit on the Government's Power to Ban Private Possession of Obscenity[edit] Stanley v. Georgia limited the power of the government to police the private possession of obscenity. The majority opinion defended the free and unimpeded acquisition of facts and knowledge, regardless of their apparent social value.[3] The Court reasoned that unless the pornography is presented in a way that creates a negative externality on others, especially minors (Roth), no individual can be stopped from owning and viewing pornography in private.

Tinker v. Des Moines

Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) was a decision by the United States Supreme Court that defined the constitutional rights of students in U.S. public schools. The Tinker test is still used by courts today to determine whether a school's disciplinary actions violate students' First Amendment rights. Legal precedents and issues[edit] Previous decisions, such as West Virginia State Board of Education v. Barnette, had established that students did have some constitutional protections in public school. This case was the first time that the court set forth standards for safeguarding public school students' free speech rights.[3] This case involved symbolic speech, which was first recognized in Stromberg v. California.[3] Majority opinion[edit] The court's 7-2 decision held that the First Amendment applied to public schools, and that administrators would have to demonstrate constitutionally valid reasons for any specific regulation of speech in the classroom.The court observed, "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."[4] Justice Abe Fortas wrote the majority opinion, holding that the speech regulation at issue in Tinker was "based upon an urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands, of opposition to this Nation's part in the conflagration in Vietnam." The Court held that for school officials to justify censoring speech, they "must be able to show that [their] action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint," allowing schools to forbid conduct that would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school."[5] The Court found that the actions of the Tinkers in wearing armbands did not cause disruption and held that their activity represented constitutionally protected symbolic speech.

Wisconsin v. Mitchell

Wisconsin v. Mitchell, 508 U.S. 476 (1993), was a decision of the United States Supreme Court. It was a landmark precedent pertaining to First Amendment free speech arguments for hate crime legislation. In effect, the Court ruled that a state may consider whether a crime was committed or initially considered due to an intended victim's status in a protected class.