PO303 Exam 1

NYT v. Sullivan 1964

-During the Civil Rights Movement, the NYT published an ad defending Martin Luther King on perjury charges. The ad contained minor factual inaccuracies—the city Public Safety Commissioner felt the criticism of his subordinate reflected on him even though he was never directly mentioned. He sent a request to the NYT to retract the information and sought punitive damages in a libel action under the Alabama law. Result: The court ruled with the NYT, because it is not enough to show that it is false for the press to be liable for libel. The court used the standard of "actual malice" in that in order to claim libel, the First Amendment requires that the plaintiff show that the defendant knew that the statement was false or reckless in deciding to publish the information without investigating whether it was accurate. --After the fact -Analysis: Alabama's libel law makes it too easy to sue the press, the courts are worried that if newspapers are worried about libel lawsuits they would print less information. Assumption of good faith in journalism, placing priority over newspaper's printing without self-censorship over individual reputation.

Free Speech Limitations: Bad Tendencies Evolution

1. "Clear and Present Danger": first established by Schenck v. U.S (distribution of leaflets urging the public to disobey the draft due). The court maintained that the Espionage Act did not violate the First Amendment due to speech creating a "clear and present danger" of a significant evil that Congress has the power to prevent. - "fire in a crowded theater" 2. "Gravity of the evil": Dennis v. United States (communist case) balances the gravity of the evil with the likelihood and probability that it happens 3. "Imminent lawless action": Brandenburg v. Ohio (Ku Klux Klan convicted of criminal syndicalism or the teaching/advocation of crime, sabotage, or unlawful methods of terrorism for political reform." The court used a two prong test that made the syndicalism statute illegal if the speech incites imminent lawless action or is likely to incite or produce such action.

Sherbert Test

A standard for deciding whether a law violates the free exercise clause; the claimant must demonstrate: 1. sincere religious belief 2. substantial government burden on religion. If so, government must demonstrate: 1. compelling governmental interest 2. pursued in the least restrictive (to religion) way.

Intermediate Scrutiny

An intermediate standard used by the Supreme Court to determine whether a law is compatible with the Constitution. A law subject to this standard is considered constitutional if it advances "an important government objective" and is "substantially related" to the objective. Often used for content neutral speech because it is restricted not based on content but how it's communicated.

Expression, Fighting Words

Application to public lecture/ demonstrations: "Fighting" words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. -Limited by Cohen v. California: limited to direct personal insults

Punishment after the fact

As opposed to prior restraint, the policy of waiting until after speech occurs to determine potential harm and decide appropriate punishment. -"Actual malice": in order to claim libel, the First Amendment requires that the plaintiff show that the defendant knew that the statement was false or reckless in deciding to publish the information without investigating whether it was accurate.

Civil vs. Criminal Cases

Civil: disputes between two parties, no criminal penalties, citation: name v. name, burden of proof: preponderance of the evidence. Criminal: alleged violations of law protecting the community, government vs. individual, citation: state v. name, burden of proof: beyond a reasonable doubt.

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Time, place, and manner restrictions

Content-neutral regulation that regulates the time, place and or manner of speech acts. - Restrictions must be: content neutral, narrowly tailored to serve a significant government interest, and leave open ample channels for communicating the speaker's message. -Ex cases: Hill v Colorado, Snyder v. Phelps, Cox v New Hampshire

U.S. v. New York Times 1971

Facts: "Pentagon Papers Case", the Nixon Administration attempted to attempt to prevent the NYT and Washington Post from printing materials belonging to the Department of Defense in regards to the history of the U.S involvement in Vietnam. The President argued that prior restraint was necessary to protect national security. The government carries a heavy burden of showing justification for the imposing prior restraint. Results: The court decided this was a violation to the First Amendment in that it did not overcome the "heavy presumption against" prior restraint of the press in this case. Since the publication would not cause an inevitable, direct, and immediate even imperiling the safety of American forces, prior restraint was unjustified.

Cohen v. California

Facts: A 19 year old department store worker wore a jacket that wrote "FRICK THE DRAFT. STOP THE WAR" in a courtroom. He argued it was worn to fully convey the depth of his feelings towards war. He was written up for a California law prohibiting willfully disrupting the peace and quiet of any neighborhood. Results: The court ruled this as a matter of speech rather than expression and that while provocative, it wasn't written towards any individual person (fighting words) and no substantial evidence that people in substantial numbers would be provoked into some kind of physical action (Tinker v. Des Moines). In doing so the court protected both emotive (the expression of emotion) and cognitive (the expression of idea).

Hill v. Colorado

Facts: A Colorado statute makes it illegal for any person within 100 ft of a healthcare facility to "knowingly approach" within 8 ft of another person, without that person's consent, in order to pass or hand a leaflet, display a sign, engage in oral protest, educate, or offer counsel. Hill offers abortion alternatives and claimed it violated First Amendment Rights. Results: Colorado statute's restrictions on speech-related conduct are constitutional because it's not a regulation of speech but rather a regulation of where speech may occur. It doesn't require a standing speaker to move away from someone passing by, nor does it restrict the content of speech (content neutral). It applies to all demonstrators regardless of viewpoint and is "narrowly tailored" to serve the State's significant interests while it leaves open ample alternative communication channels. --Time place manner case Analysis: health care facilities have the purpose of medical counseling and treatment imperative for the wellbeing of citizens of the state. A person's right to protest or counsel against certain medical procedures must be balanced against another person's right to obtain medical counseling and treatment in an unobstructed manner. Preventing the willful obstruction of a person's access to medical counseling and treatment is a matter of nationwide concern

Cox v. New Hampshire

Facts: A New Hampshire town required that a license be obtained before parades could be held within the town. A group of Jehovah's Witnesses held a parade without first obtaining a license and were fined for violating the law. The group challenged the law saying that the provision violated their First Amendment Rights as means of suppressing their free speech rights. --time place manner Results: Although the government cannot regulate speech, it can place reasonable time, place, and manner restrictions on speech for public safety. The New Hampshire law was not meant to prohibit speech, but simply to regulate it when it took form of a parade. The gov't had legitimate interest in keeping order at such events and could impose a fee that was proportional to hiring

The American Legion v. American Humanist Association

Facts: A memorial park honoring veterans is a 40-foot tall cross first was privately constructed and later taken over by city. The Commission spent approximately $117,000 to maintain and repair the cross. The Humanist Association sued on grounds of violating the establishment clause. Result: sided with the American Legion. The memorial serves a purpose beyond its Christian meaning (secular meaning) -Lemon test is not applicable because its impossible to know the original purpose of old monuments. Things can take on new "purposes" and convey new messages over time. Things can take on historical signficance and be a familiar part of a landscape.

NAACP v. Claiborne Hardware

Facts: At a local NAACP meeting, the group launched a boycott of white merchants, the purpose of the boycott was non-violent picketing however there were acts and threats of violence that occurred. The white merchants sued the NAACP for damages as a result of injuries from the boycott. They also sued for loss of earning over a 7 year period Results: the nonviolent elements of the protestors are entitled to the protection of the first Amendment, and the NAACP are not liable to the damages for the consequences of their nonviolent activity. Choosing to associate with a group doesn't make you liable for Further, their damages cannot be recovered because the violence of threats or threats of violence were not a proximate cause of business loss.

Morse v. Frederick

Facts: At a school supervised event, Joseph Frederick held up a banner that read "Bong Hits 4 Jesus" and was instructed to take it down citing the school's policy against displaying material that promotes drug use. After he refused to, he was suspended and then sued claiming a violation of his First Amendment Rights. Result: School officials can prohibit messages from students that display messages that promote illegal drug use. Although students have the right to political speech even while at school, this does not extend to pro-drug messages. The government has a compelling and important interest. The standard for speech in school is whether it causes a disruption. The difference between Tinker v. Des Moines were that students were just wearing armbands for political purposes. Dissent: nonsense speech—it didn't incite a direct advocation of drug use

Lemon v Kurtzman 1971

Facts: Both Pennsylvania and Rhode Island adopted statutes that provided that states pay for aspects of non-secular and secular schools. The statute provided funding for secular items at private schools as well as supplemented private school teacher salaries. The appellants in the case represented the taxpayers who believed the statute violated the First Amendment Results: the court sided with the appellants and established a three-pronged test to determine whether a law violated the Establishment Clause. -Lemon test: the statute must serve a legislative purpose, its primary effect must be one that neither promotes nor prohibits religion, and it must not foster excessive government entanglement with religion. -In this case, funding secular materials would require that the government to ensure there was no injection of religious principles in secular subjects as well as funding teacher salaries entangles the state and church in a continuing relationship.

Brandenburg v. Ohio 1969

Facts: Brandenburg, leader of a Ku Klux Klan made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law which made it illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as means of accomplishing industrial or political reform" as well as assembling people to teach or advocate criminal syndicalism. Results: The court held that the Ohio law violated Brandenburg's right to free speech and used a two-prong test: speech can be prohibited if it is directed at inciting imminent lawless action and it is likely to incite or produce such action. The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action.

Braunfeld v. Brown 1961

Facts: Braunfeld owned a retail and home furnishing store in Philadelphia, and as an Orthodox Jew he was prohibited from working on Saturday, the Sabbath. The Pennsylvania blue law only allowed certain stores to be open on Sunday and he wasn't one of them. He argued that this violated his religious liberty because he needed to be open 6 days a week for economic reasons and was prohibited from doing so due to the tenets of his faith and the blue law. Results: The Pennsylvania blue law did not violate the Free Exercise Clause. The freedom to hold religious beliefs and opinions is absolute, however the freedom to act is not totally free from government restrictions. The Sunday Closing Law had a secular basis and did not make any religious practices unlawful—it's valid despite its indirect burden on religious observance. An economic sacrifice may be a result of the statute, but does not make the blue law unconstitutional.

United States. v. O'Brien

Facts: David O'Brien burned his draft card at a Boston courthouse. He said he was expressing his opposition to war. He was convicted under the federal law that made the destruction and mutilation of draft cards a crime. Results: "Expressive Conduct" can be speech. The law did not infringe upon his First Amendment rights, and established a test to determine whether governmental regulation involving symbolic speech was justified. O'Brien Test: Standard of review requires only an important governmental interest, the interest must be unrelated to the speech/expression (content neutral), and does not infringe on more speech than is needed to pursue the government's interest. The draft cards allow the draft to be run more smoothly and the government has no meaningful alternative way to assure their continued use if destroyed.

Schenck v. United States 1919

Facts: During WWI Charles Schenck and Elizabeth Baer distributed leaflets declaring the draft violated the 13th amendment. The leaflets urged the public to disobey, but advised peaceful action. They were charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment. They appealed that it violated the First Amendment. Results: The court maintained that the Espionage Act did not violate the First Amendment and was an appropriate exercise of Congressional authority during wartime. Holmes articulated the "clear and present danger test": the First Amendment does not protect speech that approaches creating a clear and present danger of a significant evil that Congress has the power to prevent. Widespread dissemination of the leaflets would have likely disrupted the conscription process. Similarly to shouting "Fire!" in a crowded theater. Bad tendency precedent was established

Texas v. Johnson 1989

Facts: Johnson burned an American flag in front of the White House as a means of protest against the Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. Results: Johnson burning of the flag is protected expression under the First Amendment. Johnson's actions fell under expressive conduct that had distinctly political nature. The government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Texas never implicated an important governmental interest in regulating non-speech that would allow for limitations of the First Amendment in the same course of conduct. Further, there was no demonstrable breach of peace.

Everson v. Board of Education 1947

Facts: New Jersey law allowed the reimbursement of school transportation to both public and private schools. 96% of private schools that benefited from this were Catholic schools. Everson a taxpayer sued that indirect aid violated the First Amendment. Results: the court sided with the Board of Education in that the law did not pay money to Catholic schools nor did it directly support them. Rather, it assisted parents of all religions with getting their children to school.

Reynolds v. US 1879

Facts: Reynolds, part of the Church of Latter Day Saints was charged of bigamy after marrying a another women while still married to his wife. He argued that this violated his First Amendment right to free exercise of religion—his religion required him to marry multiple people. Results: The court upheld the charge, in that it could not outlaw the belief in polygamy however they could outlaw the practice of polygamy. People cannot avoid the law due to their religion—marriage is regulated by law (belief vs. action doctrine)

Roth v. United States 1957

Facts: Roth operated a book selling business and was convicted of mailing obscene advertisements and an obscene book in violation of a federal obscenity statute. Results: obscenity is not within the area of constitutionally protected speech or press. The First Amendment was not intended to protect every utterance of speech especially when it comes to speech "without redeeming social importance". The court held that the test to determine obscenity was "whether to the average person, applying contemporary standards, the dominant theme of the material taken as a whole appeals to prurient interest."

Snyder v. Phelps

Facts: Snyder filed a lawsuit against Westboro Baptist Church for picketing at his son's military funeral. The family accused the church of defamation, invasion of privacy, and intent to inflict emotional distress for holding signs reading "Thank god for dead soldiers" and "fag troops". The church argued that they were exercising their First Amendment rights of religious expression. The picketing took place on public land and approx. 1000 feet from the church and in accordance with guidance from local law officers. Results: The court sided with Westboro Baptist Church in that their picketing is protected under the First Amendment. The content was related to public matters, and highlighted issues of public importance. Further, the Snyder family was not a captive audience (context), the picketing occurred far away enough from the funeral (form) that the father couldn't read the sign until that night on the news.

Boy Scouts of America v. Dale

Facts: The Boy Scouts of America revoked former Eagle Scout James Dale when the organization discovered he was homosexual and a gay rights activist. Dale filed a suit claiming the Boy Scouts violated the New Jersey statute of discrimination on the basis of sexual orientation in places of public accommodation. Results: applying New Jersey's public accommodations law to require Boy Scouts to admit Dale violates the Boy Scout's First Amendment right of expressive association. The Boy Scouts assert that homosexuality violates the morals and skills they seek to instill. A gay troop leader may at the very least force the group to send a message that the Boy Scouts accepts homosexual conduct as a legitimate behavior. - Not absolute: by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms." -To be counted a group, the group must engage in "expressive association" (not reserved for advocacy groups).

Burwell v. Hobby Lobby 2014

Facts: The Green Family own Hobby Lobby an arts crafts chain store and has organized the store around principles of Christian faith and has explicitly stated they wish to run the store with biblical precepts—including the belief that contraception is immoral. Under the Affordable Care Act, group employment benefits must include some sort of contraception and while there are exemptions for non-profit religious groups, there aren't any for for-profit organizations. The store sued the Department of Health for violation of the Free Exercise Clause. Results: Sided with Hobby Lobby, since the law forces corporations to fund what they consider to be abortions or face substantial fines it poses a substantial burden that is not the least restrictive method of satisfying the government's interests. Exempting religious non-profit groups should be applied to for-profit groups as well. The government had not met its burden to show the meaningful difference between nonprofit and for-profit religious corporations. -Dissent: religious beliefs must not impinge on the rights of third parties as the sought after exemption would do to women seeking contraception in this case. Further, for-profit corporations can't be considered religious entities, and thus burden on the respondents claim is not substantial.

Right to Work Case

Facts: Unions required employers that weren't part of the union to pay fees because they benefited from the union's collective bargaining agreement with the employer. They argued that this violates the right to association by forcing individuals who may dissaprove of unions to pay money to it. Result: the court sided with the state in that forcing individuals to endorse ideas they disagree with runs counter to First Amendment principles. -in the previous Abood case about "labor peace" and preventing "free riders" could still be mitigated through less restrictive means than agency fees.

Wisconsin v. Yoder 1971

Facts: Yoder and Miller, both members of the Old Order Amish Religion were required under Wisconsin law to attend public school until the age of 16. The parents refused to send their kids to school after 8th grade arguing that high school attendance conflicted with their religious beliefs. Results: The Supreme Court found that Amish children could not be placed under compulsory education past 8th grade. The parents' fundamental right to freedom of religion was determined to outweigh the state's interest in educating its children. The case is often cited as a basis for parents' right to educate their children outside of traditional private or public schools.

Near v. Minnesota 1931

Facts: a local Minnesota newspaper accused local officials of being implicated with gangsters. The officials sued the paper for violating the Public Nuisance Law for being malicious, scandalous, and defamatory. This law prohibited the regular publishing of lewd, obscene, malicious, scandalous, or defamatory content as being a nuisance (gag law). Results: The court held that this Minnesota statute constituted a prior restraint and thus invalid under the First Amendment and the Fourteenth Amendment (incorporation doctrine). With narrow exceptions, the government can't censor or prohibit a publication in advance, even though the communication might be punishable after publication. - In some situations, such as where speech is obscene, incites violence, or reveals military secrets the government might be able to justify prior restraint.

Branzburg v. Hayes

Facts: after observing and a number of people using drugs in Kentucky, Branzburg wrote a story appearing in the Louisville newspaper. On two occasions he was called to testify before grand juries that were investigating drug crimes. Branzburg refused to testify and potentially disclose identities. Results: The court found that requiring journalists to testify and disclose confidential information to juries serves a "compelling" and "paramount" state interest and did not violate the First Amendment. The case doesn't involve government intervention to impose prior restraint, and no command to publish sources or disclose them, there was no constitutional violation (Shield laws). -People still have to testify even when the information they received was private and confidential.

Hurley v. Irish-American LGBT Group of Boston

Facts: the Allied War Veterans Council was authorized by the city of Boston to organize the St. Patrick's Day Parade. The council refused a place in the event for the LGBT Group of Boston, the group attempted to join to celebrate their Irish-American heritage as openly gay, lesbian, and bisexual members. The court ordered the Council to include the LGBT group and they claimed forced inclusion violated their First Amendment Rights. Results: The court sided with the Veterans Council in that requiring a private group to include a group expressing a message that the organizers do not wish to convey violates the First Amendment. It violates the First Amendment in that the speaker has autonomy to choose the content of his or her message and decide what and what not to say.

Employment Division v. Smith 1990

Facts: two counselors part of a drug rehabilitation organization ingested peyote as part of their religious ceremonies as members of the Native American church. As a result they were fired. They applied for unemployment compensation but were denied due to "misconduct" Results: Sided with the Employment Division in that one's religious beliefs does not excuse him/her from compliance with an otherwise valid law prohibiting conduct that the government is free to regulate. Ex: tax payment, child neglect laws, etc. -Oregon has a legitimate interest in combatting drugs. -Strict scrutiny: the state's interest in safety and health would pass the strict scrutiny standard. -Does Peyote have anything to do with the U.S drug problem.

Fourth Amendment

Freedom from unreasonable searches and seizures

Prior Restraint

Government carries a heavy burden of showing justification for the imposition of such a restraint. There is a heavy presumption against prior restraint. - Near v. Minnesota, U.S v NYT

Strict Scrutiny

Highest, most precise standard of review used by the Supreme Court to determine the constitutional validity of a challenged practice. Results in a judge striking down a law unless the government can demonstrate in court that a law: 1. Is necessary "to a compelling state interest" 2. Law is "narrowly tailored" to achieve this compelling interest. 3. A law uses the "least restrictive means" to achieve the purpose

Lee v. Weisman (1992)

In Rhode Island a middle school principal invited a Rabi to come give a non-demoninational prayer at a graduation ceremony. A father of a student sued on grounds of violating the Establishment Clause. Results: Government involvement in this case creates "a state-sponsored and state-directed religious exercise in a public school." The school created subtle and indirect coercion (students must stand and respectfully listen) forcing students to act in a way that establishes a state religion.

Dennis v. United States

Members of Communist Party were convicted of advocating for the violent overthrow of the U.S. government and for violating the Smith Act which made it unlawful to knowingly conspire to teach and advocate the overthrow of the government. The party argued that the act violated their Free Speech Rights. Results: The court found that the Act did not inherently violate the First Amendment. The court held that there was a distinction between the mere teaching of communist activities and the advocacy of those ideas. Given the gravity of the consequences, the success/ probability of those actions was not necessary to justify restrictions of freedom of speech. -balance of gravity of consequences to likelihood of occurring.

Zelman v. Simmons-Harris 2002

Ohio's Pilot Project Scholarship provides tuition aid in the form of vouchers for certain students in the Cleveland City School District to attend participating public or private schools of their parent's choosing. Tuition aid is distributed to parents according to financial need, and where the aid is spent depends solely upon where parents choose to enroll their children. Consequently, 82% of the participating private schools had a religious affiliation and 96% percent of the students participating in the scholarship program were enrolled in religiously affiliated schools. Tax payers sued on the establishment clause. Results: Ohio's program is part of their undertaking to provide educational opportunities to children and their money only reaches religious schools by the way of individual choice. -entirely neutral in the respect to religion.

Judicial Ideology

Restraint: adherents don't go beyond the text of the constitution in interpreting its meaning. Activism: courts should see beyond text to consider broader social implications.

Associative Freedoms

Right to expressive association, the right to intimate association, and the right to associate and not associate together. -Expressive Association: right to associate for expressive and most times political purposes. This includes the right to associate together free from undue state interference. -Intimate Association: right of individuals to maintain close familial or other private associations free from state interference (marriage, rear children, habitat with relatives). -Often clashes with anti-discriminatory laws: a key aspect is the ability to associate with like-minded individuals

Sherbert v. Verner 1963

Sherbert, a member of the Seventh-day Adventist Church, was fired from her job after she refused to work on Saturday, the Sabbath Day of her faith. The Employment Security Commission ruled that she could not receive unemployment benefits because her refusal to work on Saturday—a failure without good cause to accept available work. Result: For Sherbert, the Free Exercise Clause prohibits the government from setting unemployment benefits eligibility requirements such that a person can not properly observe key religious principles. The state's eligibility requirements imposed a significant burden on Sherbet's ability to exercise her religious beliefs. There was also no compelling state interest that justified such a substantial burden on the First Amendment right.

Speech-like Action

Speech-like Action/Symbolic speech can be restricted if: there is an important government interest that is content neutral, the government interest is not suppression of free expression, and does not infringe on more speech than is needed to pursue the government's interest. -ex cases: U.S. v O'Brien, Texas v. Johnson, Cohen v. California -lower burden of proof, political speech is the most protected.

Free Exercise of Religion

The First Amendment guarantees that individuals are free to choose religious beliefs and practice them as they see fit or not to practice any religion at all. -The freedom to believe in any religion is absolute but the freedom to act is not. - Establishment Clause: prohibits government from establishing an official church. -Free Exercise Clause: allows people to worship as they please (no significant burden)

Fighting Words

Words that by their very nature inflict injury on those to whom they are addressed or incite them to acts of violence.