POLI 411 Exam 2
Only Amendment with prefatory clause; weight of clause determines how amendment is viewed.
"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."
The Child Pornography Prevention Act of 1996 (CPPA) prohibits "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct," and any sexually explicit image that is "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression" it depicts "a minor engaging in sexually explicit conduct." Yes. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the two prohibitions described above are overbroad and unconstitutional. The Court found the CPPA to be inconsistent with Miller insofar as the CPPA cannot be read to prohibit obscenity, because it lacks the required link between its prohibitions and the affront to community standards prohibited by the obscenity definition. Moreover, the Court found the CPPA to have no support in Ferber since the CPPA prohibits speech that records no crime and creates no victims by its production. Provisions of the CPPA cover "materials beyond the categories recognized in Ferber and Miller, and the reasons the Government offers in support of limiting the freedom of speech have no justification in our precedents or in the law of the First Amendment" and abridge "the freedom to engage in a substantial amount of lawful speech," wrote Justice Kennedy. (BASED ON WHAT WAS COMMUNICATED)
Ashcroft v. Free Speech Coalition (2001)
No. The Court found that it was appropriate for the school to prohibit the use of vulgar and offensive language. Chief Justice Burger distinguished between political speech which the Court previously had protected in Tinker v. Des Moines Independent Community School District (1969) and the supposed sexual content of Fraser's message at the assembly. Burger concluded that the First Amendment did not prohibit schools from prohibiting vulgar and lewd speech since such discourse was inconsistent with the "fundamental values of public school education."
Bethel School District v. Fraser (1986)
Brandenburg convicted in Ohio for inciting state violence by means for political reform; threatened to take action against political figures; overturns Dennis standard; court has to think of the gravity of the evil and assume probability to be near 1.0; court holds that it's necessary to show both intent and immediate/imminent consequences; no discounting by the likelihood of occurring; TEST: There must be intent and imminent or immediate consequences
Brandenburg v. Ohio (1969)
After observing and interviewing a number of people synthesizing and using drugs in a two-county area in Kentucky, Branzburg, a reporter, wrote a story which appeared in a Louisville newspaper. On two occasions he was called to testify before state grand juries which were investigating drug crimes. Branzburg refused to testify and potentially disclose the identities of his confidential sources. No. The Court found that requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the First Amendment. Justice White argued that since the case involved no government intervention to impose prior restraint, and no command to publish sources or to disclose them indiscriminately, there was no Constitutional violation. The fact that reporters receive information from sources in confidence does not privilege them to withhold that information during a government investigation; the average citizen is often forced to disclose information received in confidence when summoned to testify in court.
Branzburg v. Hayes (1972)
The Christian Legal Society Chapter of the University of California, Hastings College of Law (CLS) filed suit against the university in a California federal district for violating its First Amendment rights. The Hastings College of Law failed to recognize the CLS as an official student organization because state law requires all registered student organizations to allow "any student to participate, become a member, or seek leadership positions, regardless of their status or beliefs." In contrast, CLS requires its members to attest in writing that "I believe in: The Bible as the inspired word of God; The Deity of our Lord, Jesus Christ, God's son; The vicarious death of Jesus Christ for our sins; His bodily resurrection and His personal return; The presence and power of the Holy Spirit in the work of regeneration; [and] Jesus Christ, God's son, is Lord of my life." The district court dismissed the case. On appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed, holding that the school's conditions on recognizing student groups were viewpoint neutral and reasonable. Therefore, the school's conditions did not violate the CLS's First Amendment rights. A public college does not abridge the First Amendment by declining to acknowledge a student group that refuses to permit all students to join the group, in accordance with state law!!!!!! No. The Supreme Court affirmed the Ninth Circuit, holding that the college's all-comers policy is a reasonable, viewpoint-neutral condition on access to the student organization forum; and, therefore, did not transgress First Amendment limitations. With Justice Ruth Bader Ginsburg writing for the majority, the Court reasoned that the same considerations that have led the Court to apply a less restrictive level of scrutiny to speech in limited public forums, counseled the same result in this case. The Court further reasoned that, considering this constitutional inquiry occurs in the education context, Hasting's all-comers policy is reasonable and viewpoint neutral.
Christian Legal Society v. Martinez (2012) (Content-neutral Regulation)
A 19-year-old department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with "F**K THE DRAFT. STOP THE WAR" The young man, Paul Cohen, was charged under a California statute that prohibits "maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct." Cohen was found guilty and sentenced to 30 days in jail. In an opinion by Justice John Marshall Harlan, the Court reasoned that the expletive, while provocative, was not directed toward anyone; besides, there was no evidence that people in substantial numbers would be provoked into some kind of physical action by the words on his jacket. Harlan recognized that "one man's vulgarity is another's lyric" (e.g. Dislike v. F**k). In doing so, the Court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas). Simply criminalized speech and 4-letter word but not action.
Cohen v. California (1971) (Offensive speech)
Medicine has made abortion an easier and safer procedure -- LIMITS POWER TO REGULATE Medicine has improved ability to sustain fetus outside the womb -- INCREASES POWER TO PROHIBIT
Consequences of Medical Advancement
Government regulates or punishes speech because of harm related to an idea; usually judged by strict scrutiny
Content-based restriction
Government regulates or punishes speech because of harm unrelated to an idea; usually judged by "heightened scrutiny"; greater flexibility
Content-neutral restriction
Criticism of Butts, unlike a government official, could not be conflated with criticism of public policy. Thus, the Court reasoned that public figures who are not public officials may recover damages for libel (IF IT MEETS THE SULLIVAN STANDARD!!!) stemming from false reports based on "highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers." THE COURT NOT ONLY IMPOSES THE SULLIVAN STANDARD ON PUBLIC OFFICIALS BUT ALSO ON PUBLIC FIGURES!! HE HAS TO SHOW THAT PRESS SHOWS ACTUAL MALICE (SULLIVAN STANDARD; PRESS EMERGES OVERALL DUE TO THIS CASE) The Court concluded that Curtis' investigation of its allegations against Butts failed to meet this standard. The company printed a questionably reliable source's allegations without any attempt to verify his claims, and the story in question was not a pressing event or immediately newsworthy.
Curtis Publishing v. Butts (1967)
During capital trial, aggravating evidence presented against Dawson. Prosecutor presented evidence of Dawson's Aryan Prison Gang; Dawson had a Nazi swastika and a member of a white supremacist group. The beliefs of Dawson are not directly relevant to the murder of a white woman whom he killed when he burglarized her home. Not being killed because he is a satanist; rather, it is because he is a murderer.
Dawson v. Delaware (1992) (Offensive Ideas)
Crime to teach the principles of Communism; seen as a very serious threat to the U.S.; charged with violating Smith Act, which made it illegal to knowingly teach about communism for purposes of overthrowing the government; prepared to attempt to throw the U.S. government; upholds Dennis' conviction because he and his fellow communists are actually attempting to put principles of communism in practice- not just having an academic discussion. Existence of the conspiracy that creates the danger. "Courts must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." More serious harm, the less likely it needs to be and vice versa.
Dennis v. U.S. (1951)
Ashcroft raised the question about whether seemingly nude depictions of children can be prosecuted by the law (e.g. computer generated images).
Difference between New York v. Ferber (1982) and Ashcroft v. Free Speech Coalition (2001)
The ban on registering handguns and the requirement to keep guns in the home disassembled or nonfunctional with a trigger lock mechanism violate the Second Amendment. The Court held that the first clause of the Second Amendment that references a "militia" is a prefatory clause that does not limit the operative clause of the Amendment. Additionally, the term "militia" should not be confined to those serving in the military, because at the time the term referred to all able-bodied men who were capable of being called to such service. To read the Amendment as limiting the right to bear arms only to those in a governed military force would be to create exactly the type of state-sponsored force against which the Amendment was meant to protect people. Because the text of the Amendment should be read in the manner that gives greatest effect to the plain meaning it would have had at the time it was written, the operative clause should be read to "guarantee an individual right to possess and carry weapons in case of confrontation." This reading is also in line with legal writing of the time and subsequent scholarship. Therefore, banning handguns, an entire class of arms that is commonly used for protection purposes, and prohibiting firearms from being kept functional in the home, the area traditionally in need of protection, violates the Second Amendment. SCALIA BELIEVES THE PURPOSE OF THE SECOND AMENDMENT IS TO HAVE LAWFUL FIREARMS FOR LEGITIMATE PURPOSES, SO A CITIZENS' MILITIA COULD BE FORMED; DOES NOT BELIEVE THE PREFATORY CLAUSE STEPHENS DISSENT OPPOSITE BOTH HISTORICAL BASES FOR DECISIONS; VERY DIFFERENT SUBSTANTIVE ARGUMENTS BUT SAME MATERIALS
District of Columbia v. Heller (2008)
In the late 1980s, incidents of hate crimes and racial slurs were increasing on American campuses. Michigan was one of the first schools in the late 1980s to adopt a hate speech code, prohibiting negative speech towards specific ethnic groups, women, LGBT people and other minorities. An unnamed psychology graduate student ("John Doe") challenged the policy on First Amendment grounds and it was struck down by a federal district court for being "over-broad," or restricting speech that did not fall under the commonly recognized exceptions to First Amendment protections. The state does have a right to punish harassing behaviors, but the university has to make it a lot more clear. The court found that the policy regulated speech that fell outside the narrow categories of unprotected speech.
Doe v. University of Michigan (1989) (Offensive Ideas)
Words that by their very nature inflict injury on those to whom they are addressed or incite them to acts of violence (lobbying
Fighting words
Simon & Schuster v. New York Crime Victims Board (1991)
Financial Burdens on the Press without violating Freedom of the Press
Women did not just hold up pro-life signs; they held-up poster-sized signs of aborted fetuses. A large number of people began slamming on breaks and swerving so police requested them to move back anti-abortion signs as not to abruptly disturb drivers. The police are not "out" to get anti-abortion demonstrators, they just want to ensure that people are not losing focus on the roads. They have a legitimate state interest. No problem in regulating the manner in which people express a particular view because it is not targeting the message, it is targeting the adverse consequences.
Frye v. Kansas City Police (2004, U.S. Court of Appeals, 8th) (Manner Restrictions)
The court is pretty skeptical whenever a burden is placed on a unique group of people; formally triggers strict scrutiny
General Course Theme
No. The Court ruled that Congress's ban on partial-birth abortion was not unconstitutionally vague and did not impose an undue burden on the right to an abortion. The Court held that, under the most reasonable interpretation, the Act applies only to the RARE intact D&E (Dilation of cervix and evacuation) method (also known as "partial-birth abortion"). Because the majority found that the Act applies only to a SPECIFIC METHOD OF ABORTION, it held that the ban was NOT unconstitutionally vague, overbroad, or an undue burden on the decision to obtain an abortion. The Court also held that Congress, after finding intact D&E never to be medically necessary, could validly ban the practice, even when "some part of the medical community" considers the procedure necessary. To require the exception whenever "medical uncertainty" exists would be "too exacting a standard to impose on the legislative power [...] to regulate the medical profession." The Court left open the possibility that an as-applied challenge could be brought against the Act if it were ever applied in a situation in which an intact D&E was necessary to preserve a woman's health. Justice Ginsburg's dissent disputed the majority's claim that the opinion was consistent with the Casey and Stenberg precedents and said "The Court's hostility to the right Roe and Casey secured is not concealed."
Gonzales v. Carhart (2007)
A right to privacy can be inferred from several amendments in the Bill of Rights, and this right prevents states from making the use of contraception by married couples illegal. In a 7-2 decision authored by Justice Douglas, the Court ruled that the Constitution did in fact protect the right of marital privacy against state restrictions on contraception. While the Court explained that the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments create the right to privacy in marital relations. The Connecticut statute conflicted with the exercise of this right and was therefore held null and void. DOUGLAS (MOST ASSOCIATED WITH DECISION) -- Implicit within explicit protections of the BOR; Can be generally inferred from specific explicit protections; 1st - Right of Association, 3rd - No quartering soldiers in private homes, 4th - Unreasonable Search & Seizure, 5th - Self-incrimination GOLDBERG -- Ninth Amendment - Protects other natural rights that are not explicit in the BOR HARLAN II - Due Process Clause of 14th Amendment - Part of the ordered liberty guaranteed against state infringement STEWART, BLACK (CONSTITUTIONAL LITERALIST) - DISSENTED -- NOWHERE EXPLICITLY OR IMPLICITLY
Griswold v. Connecticut (1965)
Convicted of violating Indiana's rule against disorderly conduct for Vietnam War demonstration. Police trying to direct crowd back up onto curb. Hess was standing off to the side and shouted, which led to his arrest. Argument that Hess is trying to incite further lawlessness. Brandenburg standard was not met because intent and consequences are not clear. Must be presence of imminent harm to limit speech.
Hess v. Indiana (1973)
Yes. In a unanimous opinion the Court held that public figures, such as Jerry Falwell, may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice." The Court added that the interest of protecting free speech, under the First Amendment, surpassed the state's interest in protecting public figures from patently offensive speech, so long as such speech could not reasonably be construed to state actual facts about its subject (Sullivan Standard Applies)...NO ONE IS REALLY GOING TO THINK THAT JERRY FALWELL PARODY IS ACTUALLY TRUE OR MATTER OF FACT.
Hustler Magazine v. Falwell (1988)
Case involved Senator Proxmire (News Source); regarded himself as a government watchdog by regularly awarding a golden fleece award (which government spending takes the cake for being most shady). This case was specific to a golden fleece regarding the NSF funding a researcher named Hutchinson who studied how primates behaved when confined to small spaces; NASA and Navy were both interested. Hutchinson sued because he felt that Proxmire damaged professional reputation, but Hutchinson was not well known, despite his research and notoriety by golden fleece. The court pointed out the only reason Hutchinson has notoriety is due to Proxmire...in order to have very protective standard for the press, you have to be suing someone who already is a public figure. RESEARCH/SCHOLARLY WORK (SENATOR PROXMIRE MAKING HUTCHINSON FAMOUS DOES NOT CAUSE THE SULLIVAN STANDARD TO NOW APPLY TO HUTCHINSON)
Hutchinson v. Proxmire (1979)
Abortion
Illustration/Animated example falling under privacy protection
Intent and Consequences required by Brandenburg
Justifications for suppression of speech
Does the Child Pornography Prevention Act of 1996 abridge freedom of speech when it proscribes a significant universe of speech that is neither obscene under Miller v. California nor child pornography under New York v. Ferber?
Key question in Ashcroft v. Free Speech Coalition (2001)
Does the First Amendment prevent a school district from disciplining a high school student for giving a lewd speech at a high school assembly?
Key question in Bethel School District v. Fraser (1986)
Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments?
Key question in Brandenburg v. Ohio (1969) (Speech that advocates illegality)
Is the requirement that news reporters appear and testify before state or federal grand juries an abridgment of the freedoms of speech and press as guaranteed by the First Amendment? Can the state impose regulations on how the press gathers information (YES!)?
Key question in Branzburg v. Hayes (1972)
Did the Ninth Circuit err when its holding runs directly contrary to the Seventh Circuit's 2006 decision in Christian Legal Society v. Walker?
Key question in Christian Legal Society v. Martinez (2012) (Content-neutral Regulation)
Did California's statute, prohibiting the display of offensive messages such as "F**k the Draft," violate freedom of expression as protected by the First Amendment?
Key question in Cohen v. California (1971) (Offensive speech)
How broadly does the Sullivan Standard apply?
Key question in Curtis Publishing v. Butts (1967)
Whether the First and Fourteenth Amendments prohibit the introduction in a capital sentencing proceeding of the fact that the defendant was a member of an organization called the Aryan Brotherhood, where the evidence has no relevance to the issues being decided in the proceeding.
Key question in Dawson v. Delaware (1992) (Offensive Ideas)
When may government engage in content-based regulation of speech?
Key question in Dennis v. U.S. (1951) (Speech that advocates illegality)
Do the provisions of the District of Columbia Code that restrict the licensing of handguns and require licensed firearms kept in the home to be kept nonfunctional violate the Second Amendment?
Key question in District of Columbia v. Heller (2008)?
Can a university regulate hate speech?
Key question in Doe v. University of Michigan (1989) (Offensive Ideas)
Does police requesting anti-abortion protestors to step away from street corners to protest, when it presents an evident danger to drivers due to swerving and harsh braking, violate their first amendment rights?
Key question in Frye v. Kansas City Police (2004, U.S. Court of Appeals, 8th)
Is the Partial-Birth Abortion Ban Act of 2003 an unconstitutional violation of personal liberty protected by the Fifth Amendment because the Act lacks an exception for partial-birth abortions necessary to protect the health of the mother?
Key question in Gonzales v. Carhart (2007)
Is there a right to privacy protected by the Constitution? Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives?
Key question in Griswold v. Connecticut (1965)?
Does speech that advocates illegal activity or the use of force is protected under the First Amendment to the United States Constitution when it is not both intended and likely to provoke imminent illegal activity?
Key question in Hess v. Indiana (1973) (Speech that advocates illegality)
Does the First Amendment's freedom of speech protection extend to the making of patently offensive statements about public figures, resulting perhaps in their suffering emotional distress?
Key question in Hustler Magazine v. Falwell (1988)
What does it mean to be a public figure? How prominent does one have to be? Is Hutchinson a public person? Will we make it hard for someone like Hutchinson to sue for libel, or will he only need to rely upon the standard for private individuals.
Key question in Hutchinson v. Proxmire (1979)
Do the criminal convictions of John Lawrence and Tyron Garner under the Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples, violate the Fourteenth Amendment guarantee of equal protection of laws? Do their criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? Should Bowers v. Hardwick, 478 U.S. 186 (1986), be overruled?
Key question in Lawrence v. Texas (2003)
Is the Disparagement Clause invalid under the First Amendment?
Key question in Matal v. Tam (2017)
Did the First Circuit err (was it mistaken) in upholding the Massachusetts law under the First Amendment, as applied to the states through the Fourteenth Amendment? If the Supreme Court's ruling in Hill v. Colorado applies, should that ruling be limited or overruled?
Key question in McCullen v. Coakley (2014) (Content-neutral Regulation)
Does the Minnesota "gag law" violate the free press provision of the First Amendment?
Key question in Near v. Minnesota (1931)
When, if ever, may government regulate the content of the press? Did Alabama's libel law unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections?
Key question in New York Times v. Sullivan (1964)
Did the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate the First Amendment?
Key question in New York Times v. U.S. (1971)
Did the law prosecuting child pornography violate the First and Fourteenth Amendments?
Key question in New York v. Ferber (1982)
(1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? (2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex that was legally licensed and performed in another state?
Key question in Obergefell v. Hodges (2015)
Can a state require women who want an abortion to obtain informed consent, wait 24 hours, if married, notify their husbands, and, if minors, obtain parental consent, without violating their right to abortion as guaranteed by Roe v. Wade?
Key question in Planned Parenthood v. Casey (1992)?
Is the ordinance overly broad and impermissibly content-based in violation of the First Amendment free speech clause?
Key question in R.A.V. v. St. Paul (1992) (Fighting words)
Does the Constitution recognize a woman's right to terminate her pregnancy by abortion?
Key question in Roe v. Wade (1973)?
Did the Son of Sam law (the mechanism that prohibited people from profiting off of wrongdoing by contracting with publishers; money would instead go into a state fund to give compensation) violate the free speech clause of the First Amendment?
Key question in Simon & Schuster v. New York Crime Victims Board (1991)
Did the district court improperly deny the National Socialist Party's request for a stay of the district court's injunction?
Key question in Skokie v. National Socialist Party (1978, Supreme Court of Illinois)
Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?
Key question in Texas v. Johnson (1989)
Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the students' freedom of speech protections guaranteed by the First Amendment?
Key question in Tinker v. Des Moines School District (1969) (Manner Restrictions)
Is it a right connected with service in militia or an independent, individual right? Does the Second Amendment protect an individual's right to keep and bear a sawed-off double-barrel shotgun?
Key question in U.S. v. Miller (1939)?
Can the U.S. prevent the publication of what it termed "classified information" violate the First Amendment?
Key question in U.S. v. The Progressive (1979)
Does the Commonwealth of Virginia's cross-burning statute, which prohibits the burning of a cross with the intent of intimidating any person or group of persons, violate the First Amendment?
Key question in Virginia v. Black (2003)
Does the New York ordinance substituting a city-employed technician and mixing board for a performer's mixer and equipment violate the First Amendment?
Key question in Ward v. Rock Against Racism (1989) (Manner restrictions)
Did the increase in Mitchell's sentence based on his bigoted motives violate his First Amendment rights?
Key question in Wisconsin v. Mitchell (1993) (Offensive Ideas)
In an opinion delivered by Justice Anthony M. Kennedy, the Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. The Court reasoned that the case turned on whether Lawrence and Garner were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause. "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government," wrote Justice Kennedy. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," continued Justice Kennedy. Accordingly, the Court overruled Bowers. Justice Sandra Day O'Connor filed an opinion concurring in the judgment. ONE THING FOR THE STATE TO BE TOLD IT CAN'T INTERFERE BUT IT'S ANOTHER THING FOR THEM TO BE ON-PAR WITH OTHER BEHAVIOR
Lawrence v. Texas (2003)
Simon Tam and his band, The Slants, sought to register the band's name with the U.S. Trademark Office. The Office denied the application because it found that the name would likely be disparaging towards "persons of Asian descent." The office cited the Disparagement Clause of the Lanham Act of 1946, which prohibits trademarks that "[consist] of or [comprise] immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute." The Disparagement Clause prohibits trademarks that disparage the members of a racial or ethnic group and violates the Free Speech Clause of the First Amendment. The Court held that, the plain meaning of the text clearly indicated that the Disparagement Clause applied to racial and ethnic groups, and therefore the Clause applied to the mark at issue in this case. The Clause also facially discriminated based on viewpoint, as giving offense constitutes a viewpoint. Because the PTO simply approved trademarks, they were not government speech--to which the First Amendment prohibitions on viewpoint regulation did not apply--and holding otherwise would constitute a massive and unwise expansion of the government speech doctrine. Similarly, PTO approval of a trademark did not constitute government-provided subsidy, an area of cases in which viewpoint discrimination was sometimes determined to be constitutional. The Disparagement Clause was also not a permissible regulation of commercial speech because it was not narrowly drawn to serve a substantial interest. Any asserted interest of avoiding offense clearly contravened the purpose of the First Amendment's protection of free speech, and the Clause was too broad to serve the government's other stated interest of protecting the orderly flow of commerce. Justice Anthony M. Kennedy wrote an opinion concurring in part and concurring in the judgment in which he argued that the First Amendment's protections against viewpoint discrimination clearly applied in this case. There are very narrow and specific categories in which the government may regulate speech--such as fraud, defamation, and incitement--and the trademark at issue here did not fall within these categories. Instead, the Disparagement Clause specifically singled out a subset of messages that the government determined to be offensive and prohibits them, which was plainly unconstitutional viewpoint discrimination. Justice Kennedy also wrote that the majority opinion does not govern how any other provisions of the Lanham Act should be interpreted under the First Amendment, nor was the government speech doctrine at issue in this case. Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, and Justice Elena Kagan joined in the opinion concurring in part and concurring in the judgment. In his separate opinion concurring in part and concurring in the judgment, Justice Clarence Thomas wrote that all government regulation of commercial speech should be analyzed under the strict scrutiny standard.
Matal v. Tam (2017)
In 2007, the Massachusetts state legislature created a 35-foot buffer zone around the entrances, exits, and driveways of abortion clinics. The petitioners, individuals who routinely engage in "pro-life counseling" outside of state abortion clinics, sued in federal district court and argued that the law violated the First Amendment protection of free speech. The district court held that, although the law placed a restriction on the time, place, and manner of speech, the law was constitutional because it was content-neutral and still left adequate, if not perfect, alternative means of communications. The U.S. Court of Appeals for the First Circuit affirmed and held that the Supreme Court, in Hill v. Colorado had already affirmed a similar statute in Colorado that prohibited certain activities within 100 feet of abortion clinics. Yes, unanswered. Chief Justice John G. Roberts, Jr. delivered the opinion for the 9-0 majority. The Court held that the Massachusetts law was content-neutral on its face because a violation depends not on the speech itself but on the location of the speech, and therefore does not need to be analyzed under strict scrutiny. However, the Court also held that the law is still not sufficiently narrowly tailored to serve a significant government interest because it places too great a burden on the petitioners' First Amendment Rights. By denying the petitioners the ability to engage in conversation and leafleting on public streets and sidewalks, the law prevents the petitioners from engaging in exactly the transmission of ideas the First Amendment is meant to protect. The Court also held that, in enacting the law, Massachusetts overlooked other options that could serve the same interests without placing an undue burden on historical avenues of speech and debate.
McCullen v. Coakley (2014) (Content-neutral Regulation)
Basic justification; "The fact that the liberty of the press may be abused...does not make any the less necessary the immunity of the press from previous restraint. Subsequent punishment for such abuses is the appropriate remedy consistent with constitutional privilege." The Court held that the statute authorizing the injunction was facially unconstitutional, meaning the decision was based on an analysis of the law's general applications, not the specific context of this case. The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the First Amendment. (The majority used the incorporation doctrine to apply the rights granted under the Bill of Rights to the states under the Fourteenth Amendment.) The Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding. In some situations, such as when speech is obscene, incites violence, or reveals military secrets, the government might be able to justify a prior restraint.
Near v. Minnesota (1931)
To sustain a claim of defamation or libel, the First Amendment requires that the plaintiff show that the defendant knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate. MUST DEMONSTRATE ACTUAL MALICE! This means that the publisher either had knowledge that it was false or acted with reckless disregard of whether it was false or not. Sullivan standard applies to public officials but who else! In a unanimous opinion authored by Justice Brennan, the Court ruled for the Times. When a statement concerns a public figure, the Court held, it is not enough to show that it is false for the press to be liable for libel. Instead, the target of the statement must show that it was made with knowledge of or reckless disregard for its falsity. Brennan used the term "actual malice" to summarize this standard, although he did not intend the usual meaning of a malicious purpose. In libel law, "malice" had meant knowledge or gross recklessness rather than intent, since courts found it difficult to imagine that someone would knowingly disseminate false information without a bad intent.
New York Times v. Sullivan (1964)
In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. This case was decided together with United States v. Washington Post Co. The Court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case. "Security" should not be used "to abrogate the fundamental law embodied in the First Amendment." Since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified. This case is about prior restraint of the press-- not about the legality of taking classified documents. Even though government asserts a plausible reason, it is not imminent enough to warrant prior restraint.
New York Times v. U.S. (1971)
"Low value" ideas (Government might be able to regulate what is published because of an important overriding governmental interest and because the ideas do not contribute much to informed public discourse; ONE THING INTERESTING TO THINK ABOUT IS THAT A BURDEN IS CLEARLY BEING PLACED ON ONE PARTICULAR TYPE OF IDEA...)
New York v. Ferber (1982)
No. In the Court's first examination of a statute specifically targeted against child pornography, it found that the state's interest in preventing sexual exploitation of minors was a compelling "government objective of surpassing importance." The law was carefully drawn to protect children from the mental, physical, and sexual abuse associated with pornography while not violating the First Amendment. (BASED ON HOW IT WAS MADE)
New York v. Ferber (1982)
Justice Anthony M. Kennedy delivered the opinion for the majority. The Court held that the Due Process Clause of the Fourteenth Amendment guarantees the right to marry as one of the fundamental liberties it protects , and that analysis applies to same-sex couples in the same manner as it does to opposite-sex couples. Judicial precedent has held that the right to marry is a FUNDAMENTAL LIBERTY BECAUSE ITS INHERENT TO THE CONCEPT OF INDIVIDUAL AUTONOMY, it protects the most intimate association between two people, it safeguards children and families by according legal recognition to building a home and raising children, and it has historically been recognized as the keystone of social order. Because there are no differences between a same-sex union and an opposite-sex union with respect to these principles, the exclusion of same-sex couples from the right to marry violates the Due Process Clause of the Fourteenth Amendment. The Equal Protection Clause of the Fourteenth Amendment also guarantees the right of same-sex couples to marry as the denial of that right would deny same-sex couples equal protection under the law. Marriage rights have traditionally been addressed through both parts of the Fourteenth Amendment, and the same interrelated principles of liberty and equality apply with equal force to these cases; therefore, the Constitution protects the fundamental right of same-sex couples to marry. The Court also held that the First Amendment protects the rights of religious organizations to adhere to their principles, but it does not allow states to deny same-sex couples the right to marry on the same terms as those for opposite-sex couples.
Obergefell v. Hodges (2015)
Libel
Occurs when the press publishes false information, which is defamatory-- falsely claiming as fact, harming one's reputation
The Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Under this standard, the only provision to fail the undue-burden test was the husband notification requirement. Abandons trimester framework and focuses on viability; not changing Roe but acknowledging progress of medicine.
Planned Parenthood v. Casey (1992)
Several teenagers burned a cross on a black family's lawn. The police charged one of the teens under a local bias-motivated criminal ordinance which prohibits the display of a symbol which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." R.A.V. appealed to the U.S. Supreme Court; the justices held the ordinance invalid on its face because "it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses." The First Amendment prevents government from punishing speech and expressive conduct because it disapproves of the ideas expressed. Under the ordinance, for example, one could hold up a sign declaring all anti-semites are bastards but not that all Jews are bastards. Government has no authority "to license one side of a debate." In order to outlaw fighting words, it must be neutral for all parties.
R.A.V. v. St. Paul (1992) (Fighting words)
Location of privacy defined Inherent in the Due Process Clause of the Fourteenth Amendment is a fundamental "right to privacy" that protects a pregnant woman's choice whether to have an abortion. However, this right is balanced against the government's interests in protecting women's health and protecting "the potentiality of human life." The Texas law challenged in this case violated this right. Justice Harry Blackmun delivered the opinion for the 7-2 majority of the Court. First, the Court considered whether the case was moot, concluding that it was not. When the subject of litigation is "capable of repetition yet evading review," a case need not be dismissed as moot. Pregnancy is a "classic justification for a conclusion of nonmootness." The Due Process Clause of the Fourteenth Amendment protects against state action the right to privacy, and a woman's right to choose to have an abortion falls within that right to privacy. A state law that broadly prohibits abortion without respect to the stage of pregnancy or other interests violates that right. Although the state has legitimate interests in protecting the health of pregnant women and the "potentiality of human life," the relative weight of each of these interests varies over the course of pregnancy, and the law must account for this variability. In the first trimester of pregnancy, the state may not regulate the abortion decision; only the pregnant woman and her attending physician can make that decision. In the second trimester, the state may impose regulations on abortion that are reasonably related to maternal health. In the third trimester, once the fetus reaches the point of "viability," a state may regulate abortions or prohibit them entirely, so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother. LIBERTY IN THE DUE PROCESS CLAUSE MAINTAINS PRIVACY, WHICH ALLOWS FOR ABORTION -- ELIMINATED EARLY TERM RESTRICTIONS
Roe v. Wade (1973)
Whether words used in such circumstances are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the U.S. has a right to prevent.
Schenck v. United States (1919)
To what extent does the Constitution protect the right to gun ownership? Is it a right connected with service in militia or an independent, individual right?
Second Amendment
Yes. The Court concluded that "New York has singled out speech on a particular subject for a financial burden that it places on no other speech and no other income." Despite understanding the sympathetic motive, the court is troubled by the court encompassing one particular topic...a lot of work would theoretically fall within the context of this law; it would include essays and works on civil disobedience. This discrimination could only be justified if the state could show "that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end" (Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987)). The Board failed to explain why victims' compensation had to come from the criminals' storytelling rather than other assets.
Simon & Schuster v. New York Crime Victims Board (1991)
Nazi party wanted to parade down predominately Jewish community Skokie in 1978 in order to harass the Jews. They were denied a permit so went to court. Illustrates the argument that neo-Nazis are still protected under the principle of legal equality. (Laws must apply equally to all groups). They are welcome to have the parade because in this situation they are pursuing a lawful route to demonstrate. Jews are welcome to stay home and ignore due to advanced notice. Not considered fighting words.
Skokie v. National Socialist Party (1978)
Made it illegal to speak of or advocate overthrowing the U.S. government. Was used by Truman 11 times to prosecute suspected Communists.
Smith Act (1940)
In 1984, in front of the Dallas City Hall, Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration because it "breaches peace and does not preserve the flag as a symbol of nationhood/national unity." The Court held that Johnson's burning of a flag was protected expression under the First Amendment. The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." The flag is only being put to government-approved messages and Texas Flag Desecration Laws are struck down. It places burden on people who have unfavorable views of the American Flag- clearly directed at squelching view of being critical of the American Flag. Fails intermediate scrutiny test.
Texas v. Johnson (1989)
A group of students in Des Moines held a meeting to plan a public showing of their support for a truce in the Vietnam war. They decided to wear black armbands. The principals of the Des Moines school learned of the plan and met to create a policy that stated that any student wearing an armband would be asked to remove it, with refusal to do so resulting in suspension. Mary Beth Tinker and Christopher Eckhardt wore their armbands to school and were sent home. The following day, John Tinker did the same with the same result. Through their parents, the students sued the school district for violating the students' right of expression and sought an injunction to prevent the school district from disciplining the students. The district court dismissed the case and held that the school district's actions were reasonable to uphold school discipline. The U.S. Court of Appeals for the Eighth Circuit affirmed the decision without opinion. Yes!! It does violate first amendment rights of students. The Supreme Court held that the armbands represented pure speech that is entirely separate from the actions or conduct of those participating in it. The Court also held that the students did not lose their First Amendment rights to freedom of speech when they stepped onto school property. In order to justify the suppression of speech, the school officials must be able to prove that the conduct in question would "materially and substantially interfere" with the operation of the school. In this case, the school district's actions evidently stemmed from a fear of possible disruption rather than any actual interference.
Tinker v. Des Moines School District (1969) (Manner Restrictions)
The right to gather news; Branzburg v. Hayes (1972)
To what extent may government regulate how the press engages in reporting?
Content-based restriction and Content-neutral restriction
Two broad classes of cases
May government prohibit content (prior restraint is serious threat)? May government regulate content (Less serious, but still close scrutiny)?
Two main questions Freedom of the Press
An Arkansas federal district court charged Jack Miller and Frank Layton with violating the National Firearms Act of 1934 ("NFA") when they transported a sawed-off double-barrel 12-gauge shotgun in interstate commerce. Miller and Layton argued that the NFA violated their Second Amendment right to keep and bear arms. The district court agreed and dismissed the case. The Supreme Court held (reversed district court) that the Second Amendment does not guarantee an individual the right to keep and bear a sawed-off double-barrel shotgun. Writing for the unanimous Court, Justice James Clark McReynolds reasoned that because possessing a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument. (IN THE ABSENCE EVIDENCE, THE COURT HOLDS THAT THERE IS NO CONNECTION IN THIS CASE TO A WELL-REGULATED MILITIA...HAVING A SAWED OFF SHOT-GUN DOES NOT HAVE ANYTHING TO DO WITH MILITARY; THE COURT IS SAYING THAT THE RIGHT TO OWN A CERTAIN GUN HAS TO DO WITH POTENTIAL SERVICE IN DEFENSE OF THE STATE)
U.S. v. Miller (1939)
A reporter gathered information from unclassified sources on how to build an H-Bomb for a story to run in the April 1979 issue of Progressive magazine. The U.S. government found out about the story before release of the magazine, and asked courts for a permanent injunction against publication. The U.S. District Court ruled Progressive magazine could be enjoined from publishing the article because the article "would likely cause a direct, immediate and irreparable injury to this nation." The government also signed the Atomic Energy Act of 1946 to make it a criminal offense to publish classified data relating to atomic energy. Progressive appealed, but before an appellate court could hear the case, a Wisconsin newspaper ran the same story, and the government withdrew its claim, leaving the case with little precedential value.
U.S. v. The Progressive (1979)
Barry Black was convicted of violating a Virginia statute that makes it a felony for any person with the intent of intimidating any person or group to burn a cross on the property of another, a highway or other public place. The Court held that while a State may ban cross burning carried out with the intent to intimidate, but the provision in the Virginia statute treating any cross burning as evidence of intent to intimidate renders the statute unconstitutional in its current form.
Virginia v. Black (2003) (Manner Restrictions)
New York City, responding to complaints of high-decibel concerts adjoining residential neighborhoods, mandated the use of city-provided sound systems and technicians for concerts in Central Park. Members of rock group claimed that the inability to use their own sound equipment and technicians in a concert in a public forum interfered with their First Amendment rights of expression. No. The Court upheld the ordinance, giving broad deference to the government's interest in maintaining order. As long as "the means chosen are not substantially broader than necessary to achieve the government's interest," a regulation will not be invalidated because a court concludes that the government's interest "could be adequately served by some less-speech-restrictive alternative."
Ward v. Rock Against Racism (1989) (Manner Restrictions)
Time Restrictions: Christian Legal Society v. Martinez (2012), McCullen v. Coakley (2014) Manner Restrictions: Tinker v. Des Moines School District (1969), Ward v. Rock Against Racism (1989), Texas v. Johnson (1989)
When may government engage in content-neutral regulation of speech?
Cohen v. California (1971), Bethel School District v. Fraser (1986), Matal v. Tam (2017)
When may government engage in content-regulation of speech?
Todd Mitchell, a young black man, instigated an attack against a young white boy. He was subsequently convicted of aggravated battery. According to Wisconsin statute, Mitchell's sentence was increased, because the court found that he had selected his victim based on race. Mitchell challenged the constitutionality of the increase in his penalty. The Court found that the Wisconsin statute paralleled anti-discrimination laws which had been found to comply with the First Amendment. It also determined that the consequences for the victim and the community tended to be more severe, when the victim of a crime was chosen on account of his or her race. Thus, when the Wisconsin statute increased the sentence for such crimes, it was not punishing the defendant for his or her bigoted beliefs or statements, but rather the predicted ramifications of his or her crime. Finally, the Court concluded that the Wisconsin statute did not violate the right to free speech because the occasion in which an average person's racist comments would be used against him or her in a court of law would arise so rarely that he or she would not feel forced to suppress them. NOT DIRECTED AT MITCHELL'S BELIEFS; RATHER, IT IS DUE TO THE STATE'S INTEREST TO MITIGATE RACIAL VIOLENCE.
Wisconsin v. Mitchell (1993) (Offensive Ideas)
