Cases

2 of the only absolutist Judges

Black & Douglas

Brandenburg v. Ohio (1969)

Brandenburg v. Ohio, 395 U.S. 444 (1969), was a landmark United States Supreme Court case based on the First Amendment to the U.S. Constitution. The Court held that government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action. Specifically, it struck down Ohio's criminal syndicalism statute, because that statute broadly prohibited the mere advocacy of violence. In the process, Whitney v. California, 274 U.S. 357 (1927) was explicitly overruled, and doubt was cast on Schenck v. United States, 249 U.S. 47 (1919), Abrams v. United States, 250 U.S. 616 (1919), and Dennis v. United States, 341 U.S. 494 (1951).

fighting words doctrine "words by which their very utterance inflict injury or tend to incite an immediate breach of the peace and words likely to cause the average addressee to fight"

Chaplinsky v. New hampshire

unprotected speech is... "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"

Chaplinsky v. New hampshire

Whitney v. California (1927)

Defendant's conviction under California's criminal syndicalism statute for membership in the Communist Labor Party did not violate her free speech rights as protected under the Fourteenth Amendment, because states may constitutionally prohibit speech tending to incite crime, disturb the public peace, or threaten the overthrow of government by unlawful means

U.S. v. Stevens (2010)

Depictions of animal cruelty are not, as a class, categorically unprotected by the First Amendment.

Texas v. Johnson

Johnson burned flag to protest Reagan gov, convicted under TX flag desecration statue "if there is a bedrock principle underlying the first amendment it is that the gov may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable

US v. Progressive

Judge Warren on Pentagon Papers and H-Bomb 1. pentagon paper was historic, article contemporary 2. national security interest more apparent in HBomb technical bomb making detail 3. laws limit the disclosure of date related to bomb making

Pentagon Papers v. HBomb

Judge Warren: 1. PP historical while article was contemporary 2. National security interest more apparent with article 3. several laws specially limit the disclosure of data related to atomic bomb making

● Near v. Minnesota (1931)

Near v. Minnesota, 283 U.S. 697 (1931), was a United States Supreme Court decision that recognized the freedom of the press by roundly rejecting prior restraints on publication, a principle that was applied to free speech generally in subsequent jurisprudence. The Court ruled that a Minnesota law that targeted publishers of "malicious" or "scandalous" newspapers violated the First Amendment to the United States Constitution (as applied through the Fourteenth Amendment). Legal scholar and columnist Anthony Lewis called Near the Court's "first great press case".[1] It was later a key precedent in New York Times Co. v. United States (1971), in which the Court ruled against the Nixon administration's attempt to enjoin publication of the Pentagon Papers.

NY times V. Sullivan

Supreme overturns-- New York Times wins changed libel law made libel first amendment issue actual malice standard for public officials no damages without proving shifted burden of proof to plaintiff

Texas v. Johnson (1989)

Texas v. Johnson, 491 U.S. 397 (1989), was an important decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. Justice William Brennan wrote for a five-justice majority in holding that the defendant Gregory Lee Johnson's act of flag burning was protected speech under the First Amendment to the United States Constitution. A statute that criminalizes the desecration of the American flag violates the First Amendment. Texas Court of Criminal Appeals affirmed

protected

abstract and advocacy

US v. Obrien

burned his draft card convicted unter Selective Service conviction upheld intermediate scrutiny- content neutral O Brien Test

schenck v. US

clear and present danger "character of every act depends on the circumstances"

vague and overbroad

content based subject to strict scrutiny

narrowly tailored specific

content neutral intermediate scrutiny

libel per quod

context is necessary need background of personal life to prove ex: reporting a man is steady dating a women when he is in fact married

Whitney V. CA

convicted under CA Criminal Syndicalism Law upholds bad tendency test. Brandeis' concurrence

Near v. Minnesota

court rejects prior restraint- 5-4 vote allows near to keep printing

• Captive audience

court sympatric when audience is forced to hear offensive speech

Chilling effect-

effect of discouraging people from engaging in protected speech out of fear that they might be subject to prosecution

Incidental burdens

effects that occur when laws limit rights as consequence of a more general prohibition

Cohen v. CA

f the draft Paul Cohen wore leather jacket into court overturned: court said jacket was speech act that didn't' incite violence " one man's vulgarity is another's lyric"

Categories of Unprotected expression

fighting words obscenity libel true threats incitement false advertisement disruptive speech in schools speech that is legal, perjury- black mail and extortion

chaplinsky v. New Hampshire

fighting words are words by which their very utterance inflict injury or tend to inciter an immediate breach of the peace and words likely to cause the average address to fight they must provoke a violent reaction and be intended to provoke, created fighting word doctrine unprotected speech

Rice v. Paladin Ent

hit man book "step by step shooting murder manual

unprotected

imminent and likely lawless action- conspiracy, solicitation

content Neutral

intermediate scrutiny time place manner regulations ex o'brien case. any expression regardless of content.

brandenburg v Ohio

kkk video court rejects bad tendency test: must be directed to inciting or producing imminent lawless action is likely to incite or produce such action

overbreadth doctrine

law punishes too much protected speech

• Secondary effects-

laws aimed at secondary effects and not primarily at suppression of content. side effects- example -crime, drugs,

Gertz v. Welch

lawyer-- communist court 5-4 private person no liability without fault plaintiff public private must prove actual malice to reeive punitive damages there is no such thing as a false idea.

Gitlow v. NewYork

member of ny state legislature published pamphlet predicting revolution court upheld embracing bad tendency test "every idea is an incitement" first amendment incorporated in 14th amendment.

Miller v. CA

miller test- test used to prove what is legally obscene .

public person

must prove actual malice harder to win

libel per se

obvious words on their faces, ex murderer. falsely accuses someone of a crime, immorality, infection by disease

private person

only have to prove negligence to win Libel case

void for vagueness

people of common intelligence are likely to interpret the law differently- no sure what is prohibited so it chills speech.

Abram v. US

rejects bad tendency test, "time has upset many fighting faiths"

us v stevens

rejects gov request to create a new category of unprotected speech says law over broad--hunting

Brandenburg V. Ohio Incitement Test

replaced the bad tendency and CLP standards 1. directed to inciting or producing 2. imminent lawless action 3. likely to incite or produce such action

• Heckler's veto,-

rights of an orderly speaker are favored over the interest of an offended audience member

content- Based

target subject or ideas expressed unconstitutional must pass strict scrutiny regulates expression bc of content; hate speech, fighting words ex. texas v. Johnson

Tinker v. Des Moines

tinker kids wore black armbands to school during vietnam war supreme court upheld student's rights to peacefully protest, the school has not demonstrated sufficient cause to prohibit this expression

O Brien Test

to be under intermediate scrutiny law must 1. fall within power of gov 2. advance an important or substantial gov interest 3. be unrelated to suppression of speech 4. be narrowly tailored to impose only an incidental burden on first amendment freedoms.

Colorado v. Bryant (Col. Sup. Ct. 2004)

...

Miller Test

1. average person applying contemporary community standard would find work taken as a whole to the prurient interest 2. the work depicts or describes in a patently offensive way, sexual conduct defined by applicable state law. 3. the work taken as a whole lacks serious literary artistic political or scientific value.

Kobe Case Test used for Prior Restraint

1. serves a gov intrest of the highest order 2. narrowest possible order to protect that interest 3. necessary to protect against an evil that is great and certain.

Kobe Case

4-3 vote colorado supreme court prior restraint upheld test used: 1. serves a gov interest of the highest order 2. narrowest possible order to protect that interest 3. is necessary to protect against evil that is great and certain .

NYT v. US

6-3 vote. S.C says print holding: gov had not proved publication would endanger national security enough to justify prior restraint on the newspaper. landmark free press case holdings: illegally leaked info not enough to automatically be sufficient interest for prior restraint. executive branch does not have inherent power to get prior restraint when it alleges grave and irreparable harm.

Ward v. Rock Against Racism (1989

A regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate content-neutral interests but it need not be the least restrictive or least-intrusive means of doing so.

New York Times v. U.S. (Pentagon Papers Case) (1971)

New York Times Co. v. United States, 403 U.S. 713 (1971), was a landmark decision by the United States Supreme Court on the First Amendment. The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censorship or punishment. President Richard Nixon had claimed executive authority to force the Times to suspend publication of classified information in its possession. The question before the court was whether the constitutional freedom of the press, guaranteed by the First Amendment, was subordinate to a claimed need of the executive branch of government to maintain the secrecy of information. The Supreme Court ruled that the First Amendment did protect the right of the New York Times to print the materials.

synder v phelps

Phelp wins 8-1 vote 1st amendment protects offensive speech on matter of public concern

Schenck v. U.S. (1919)

Schenck v. United States, 249 U.S. 47 (1919), was a United States Supreme Court decision that upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to express freedom of speech against the draft during World War I. Ultimately, the case established the "clear and present danger" test, which lasted until 1969 when protection for speech was raised in Brandenburg v. Ohio to "Imminent lawless action".

Snyder v. Phelps (2010)

Speech on a public sidewalk, about a public issue, cannot be liable for a tort of emotional distress, even if the speech is found to be "outrageous." Fourth Circuit affirmed,

brown v. EMA

Supreme court stikes down CA video game law 7-2 video games 1st amendment protections violent speech is not obscenity fails to meet strict scrutiny reqs law under and over inclusive

Gertz v. Robert Welch (1974)

The First Amendment permits states to formulate their own standards of libel for defamatory statements made about private figures, as long as liability is not imposed without fault. Seventh Circuit reversed. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974),[1] was a case in which the Supreme Court of the United States established the standard of First Amendment protection against defamation claims brought by private individuals. The Court held that, so long as they do not impose liability without fault, states are free to establish their own standards of liability for defamatory statements made about private individuals. However, the Court also ruled that if the state standard is lower than actual malice, the standard applying to public figures, then only actual damages may be awarded.

New York Times v. Sullivan (1964)

The First Amendment, as applied through the Fourteenth, protected a newspaper from being sued for libel in state court for making false defamatory statements about the official conduct of a public official, because the statements were not made with knowing or reckless disregard for the truth. Supreme Court of the United States reversed and remanded.

U.S. v. Progressive (W.D. Wis. 1979)

United States of America v. Progressive, Inc., Erwin Knoll, Samuel Day, Jr., and Howard Morland 467 F. Supp. 990 (W.D. Wis. 1979) was a lawsuit against The Progressive magazine by the United States Department of Energy (DOE) in 1979. A temporary injunction was granted against The Progressive to prevent the publication of an article by activist Howard Morland that purported to reveal the "secret" of the hydrogen bomb. Though the information had been compiled from publicly available sources, the DOE claimed that it fell under the "born secret" clause of the Atomic Energy Act of 1954.

U.S. v. O'Brien (1968)

United States v. O'Brien, 391 U.S. 367 (1968), was a decision by the Supreme Court of the United States, which ruled that a criminal prohibition against burning a draft card did not violate the First Amendment's guarantee of free speech. Though the Court recognized that O'Brien's conduct was expressive as a protest against the Vietnam War, it considered the law justified by a significant government interest that was unrelated to the suppression of speech and was tailored towards that end. O'Brien upheld the government's power to prosecute what was becoming a pervasive method of anti-war protest. Its greater legacy, however, was its application of a new constitutional standard. The test articulated in O'Brien has been subsequently used by the Court to analyze whether laws that have the effect of regulating speech, though are ostensibly neutral towards the content of that speech, violate the First Amendment. Though the O'Brien test has rarely invalidated laws that the Court has found to be "content neutral," it has given those engaging in expressive conduct—from the wearing of black armbands to the burning of flags—an additional tool to invoke against prohibitions.

Brown v. EMA (2011)

Video games are a distinct communications medium protected by the First Amendment.[1] Ninth Circuit Court of Appeals affirmed.

Abrams v. U.S. (1919)

was a 7-2 decision of the United States Supreme Court involving the 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to urge curtailment of production of the materials necessary to the war against Germany with intent to hinder the progress of the war. The 1918 Amendment is commonly referred to as if it were a separate Act, the Sedition Act of 1918. The defendants were charged and convicted for inciting resistance to the war effort and for urging curtailment of production of essential war material. They were sentenced to 20 years in prison. The Supreme Court ruled 7-2 that the Act did not violate the freedom of speech protected by the First Amendment. Justice John Hessin Clarke used a relatively restrictive speech test - "bad tendency" - to uphold the conviction. Justices Oliver Wendell Holmes and Louis Brandeis dissented and said that the more speech protective standard - "clear and present danger" - ought to be applied to overturn the conviction. The case was ultimately overturned during the Vietnam War era in Brandenburg v. Ohio (1968), a case against the KKK where the Court adopted the "incitement to imminent lawless action" standard - a test even more speech protective than "clear and present danger."

Miller v. California (1973)

was a Landmark United States Supreme Court case that changed the precedence involving what constitutes unprotected obscenity for First Amendment purposes. The decision reiterated that obscenity was not protected by the First Amendment and established the Miller test for determining what constituted obscene material.