POLS 314 Exam 2

What does the first amendment (literally) say about freedom of expression?

"Congress shall make no law abridging the freedom of expression" (Congress can't make any laws which cut short our ability to speak freely)

Shenck v. US

(1919) decided that speech that evokes "a clear and present danger" is not permissible (yelling fire in a crowded theatre), first amendment rights

Barnes v. Glen Theatre

* It is not against the First Amendment's freedom of expression to prohibit against complete nudity in public places * Glen Theatre and the Kitty Kat Lounge in South Bend, Indiana, operated entertainment establishments with totally nude dancers. An Indiana law regulating public nudity required dancers to wear "pasties" and a "G-string" when they perform. The Theatre and Lounge sued to stop enforcement of the statute. Weird dissent??

Know the different tests that the Court has used for whether or not speech is protected (and what cases established these tests).

1. Clear and Present Danger: (Schenck case) speech protected: theoretical speech, if speech can be linked at all to congress then it can be regulated, if congress disagrees then it can be regulated; NOT OBJECTIVE 2. Bad Tendency: (Abrams) speech can be regulated when it has or the legislature thinks it has the tendency to produce harm, lots of guess work, dont' have too link actual harm, potential harm is good enough 3. Clear or Probable Danger: (Dennis v. U.S) most limiting test used by the court, eliminates pro-speech components of the clear and present danger test; state needs to prove: danger embodied in speech is clear (no matter how unlikely), the danger is highly probable (but of minimal danger to society) 4. Ad hoc Balancing: more of an approach than test, case-by-case weighting of speech vs. other societal good in question, SPEECH IS valued but not at expense of other societal goods (open debate and proper balance) 5. Absolutism: Justice Black used, comes closest to Emerson, Congress shall make no law abridging freedom of speech and that LITERALLY means no law, no other rights to be balanced, you have free speech and that is final.

What does the state need to prove for the clear or probable danger test?

1. That the danger embodied in the speech is clear, no matter how unlikely it is to occur(arrested for saying you are going to kill every member of congress) 2. The danger is highly probable, but of minimal danger to society (arrested for speech which favors non-violent attempts to close federal buildings)

Wisconsin v. Mitchell

1st amendment allows "hate crime" law punishing acts (not thoughts/speech) if jury finds a victim was harmed because of "race/religion/color/disability/sexual orientation/national origin or ancestry."

Texas v. Johnson

A 1989 case in which the Supreme Court struck down a law banning the burning of the American flag on the grounds that such action was symbolic speech protected by the First Amendment.

As described in the book, A Wild Justice, what was Anthony (Tony) Amsterdam's moratorium strategy? Why did some find it controversial?

Amsterdam's moratorium strategy was to halt executions and implement a moratorium on the death penalty or capital punishment. He wanted to create a backup and hold on executions by using a moratorium against the death penalty. Some found Amsterdam's moratorium strategy controversial because they believed it was too extreme and opinion based. Some even believed that his strategy went against the will of the people who supported the death penalty. Those against Amsterdam's mission to remove racial bias in capital punishment cases argued that "law shouldn't be an agent of social change." Amsterdam's strategy was also found to be controversial because of potential issues with the strategy. On page 65, a major potential downside of Amsterdam's strategy was listed. The major downside was that it could lead to individual defendants suffering for the greater good.

What is the Miller test? How did it improve the Roth test? Was it still problematic?

Burger says that he will use this case as a means to develop a more definitive standard by which to judge what is obscene • Burger's new test sounds like Roth but when carefully examined we can spot differences How does this compare to Roth? Easier to get a conviction of obscenity, since Burger replaced "without redeeming social value" with "serious value" Also places can use more conservative local standards Ultimately though, does Miller solve the issues of Roth? No, the Court still has not given us a clear enough understanding of what is obscene

commercial speech

Communication in the form of advertising. It can be restricted more than many other types of speech but has been receiving increased protection from the Supreme Court.

What is the Hicklin Standard?

Courts used something called the Hicklin Standard to determine what was obscene The standard derived from a British case Regina v. Hicklin (1868) in which a piece of work suspected of being obscene or pornographic must be judged in terms of the impact its most explicit portion would have on its most susceptible viewer It should be very clear that this test makes it extremely difficult for some work with sexual conduct to not be declared obscene • In essence it reduces what society can see or read down to that which doesn't pose harm to a child

Employment Division v. Smith (LAST EXAM COMPARE)

Determined that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious ritual. Although states have the power to accommodate otherwise illegal acts done in pursuit of religious beliefs, they are not required to do so. Neutral laws of general applicability do not violate the Free Exercise Clause of the First Amendment.

What First Amendment issue is the Court presented with in Texas v. Johnson (1989)?

FLAG BURNING: Facts and case summary for Texas v. Johnson, 491 U.S. 397 (1989). Flag burning constitutes symbolic speech that is protected by the First Amendment.

Who is famously known as the absolutist justice?

Justice Black

In Central Hudson (1985), why was Justice Rehnquist critical of Justice Powell's four-prong commercial speech test? In retrospect, what is ironic about this dissent?

Justice Rehnquist criticized the test as being too vague and subjective, arguing that it provided little guidance to lower courts and left too much room for judicial discretion. In retrospect, it is ironic that Justice Rehnquist was critical of Justice Powell's commercial speech test, given that it has become the standard framework for analyzing restrictions on commercial speech. The Central Hudson test has been widely adopted by lower courts and has been reaffirmed by the Supreme Court in subsequent cases. PROPOSING THAT • Rehnquist in his dissent tells the majority that it is in essence doing what Blackmun is calling for; elevating commercial speech to protected speech because the fourth prong is difficult to meet

What justice argued most in favor of making flag burning illegal?

Justice Stevens

What are time, place, and manner restrictions?

LJust what is says, it's a restriction on the timing of free speech, the manner of the speech, and/or the place of the speech. It's (generally) NOT A DIRECT RESTRICTION ON SPEECH and therefore is content neutral (subject matter and view point).

What's significant about Senator McCarthy and free speech?

McCarthy led his hunt for American Communists (spies and sympathizers) in the U.S. Government, he accused innocent people of being communists without evidence. Emerson and other scholars said that governments tend to overreact to perceived threats and that the "cure" to these threats (hearings) is more distasteful to a free society than the threats themselves.

What type of cases did Justice Warren say were the most difficult?

Obscenity Cases were the most difficult (difficult definitional questions-just what is obscene or pornographic?)

Be able to discuss commercial speech and how it is and has been protected (or not protected) by the first amendment.

Overall, while commercial speech does not receive the same level of protection as other forms of speech under the First Amendment, it is still protected to some extent. The government may regulate commercial speech only if it satisfies the Central Hudson test and the restriction does not unduly infringe upon the speaker's right to free expression.

What did Nixon do with the information provided by the Lockhart Commission on Obscenity?

President Nixon calls the report morally bankrupt, and it is rejected in the conservative environment of the time

Review reading response answers 2 and 3.

RR 2: Amsterdam's moratorium strategy was to halt executions and implement a moratorium on the death penalty or capital punishment. RR 3: West Virginia's Religious Freedom Restoration Act brings up several constitutional questions. (discrimination) (free exercise clause and First Amendment) First and Fourteenth are conflicting. The First Amendment protects the freedom of religion and prohibits the government from interfering with the free exercise of religion. The Fourteenth Amendment added the Equal Protection Clause which states that the government cannot discriminate against individuals or groups based on their race, ethnicity, gender, religion, or other characteristics that are considered personal.

What do public opinion polls tell us about what Americans think about free speech?

Research shows that we are ambivalent (contradictory or more than one feeling) as a nation about this freedom. Respondents support general right of freedom of speech, but nazi and comm. then respondents say it should be curtailed.

What is it called when there is an action associated with speech?

Symbolic Speech

R.A.V. v. St. Paul

Teens burned cross on black family's lawn, one charged with displaying a symbol causing anger based on race; law struck down because government can't punish speech/content simply because of disapproval with ideas expressed.

hate speech protected

The Court has also held that hate speech is generally protected by the First Amendment, as it is considered a form of expression. However, there are certain limitations on speech that incites violence or poses a direct threat to others. PURE SPEECH PROTECTED, INCITES VIOLENCE OR LIKELY TO CAUSE VIOLENCE, SELECT GROUP YOU CAN GET HARSHER SENTENCE

Most members of the court use what when judging freedom of speech/expression cases?

The Court really hasn't developed a current policy or theory on the 1st Amendment Most members are using some sort of balancing (weighs competing interests, important factors)

Is burning the National Ensign or flag of the United States protected speech?

The First Amendment of the Constitution protects flag burning as symbolic speech

Is hate speech protected speech? How is it, and how isn't it?

The First Amendment offers fairly broad protection to offensive, repugnant and hateful speech. The First Amendment does not protect speech that leads to imminent lawless action. This kind of speech has to be directed towards a specific person or group. It has to be a direct call to commit immediate, lawless action.

What was the Lockhart Commission on Obscenity? What were their findings/recommendations?

The Lockhart Commission on Obscenity created by President Johnson presented its conclusions to President Nixon The commission argued that the Court had made vague doctrine based on subjective standards and in the process had created a chilling effect The commission said that it was folly to attempt to define obscenity and refused to do so. They argued that there was no sufficient social justification to attempt this difficult definition. Commission argues that governments that wish to control sexually explicit material should do so through time, place, and manner restrictions

Why does the supreme court strike down St. Paul's ordinance in RAV?

The Minnesota Juvenile Court dismissed the case against Viktora because it felt that the ordinance was overly broad and unconstitutional Overall, the Court's decision in R.A.V. v. City of St. Paul reaffirmed the importance of the First Amendment's protection of free speech and emphasized that the government cannot regulate speech based on its content or viewpoint, even if the speech is offensive or unpopular. • But the Minnesota Supreme Court reverses this decision and upholds the ordinance by concluding that the speech being regulated here is unprotected hate speech The U.S. Supreme Court overturns the Minnesota Supreme Court's decision and voids the law as unconstitutional The Justices also make it clear that banning "politically unpopular speech" is not ok For example, this law would prevent a sign saying "all Jews are bastards" but not "all antisemites are bastards" • The Court says that isn't fair or constitutional

Does Thomas Emerson believe that freedom of speech/expression is just an individual good?

The freedom of speech/expression isn't only an individual good IT IS A SOCIETAL GOOD 1.Birthright to be an individual (constitute that individuality as you see fit through your expression) 2. 1st amend. is a means of assuring the truth (allows free market of ideas, good or truthful ones will rise to the top) 3. Helps to increase the participation which is the life's blood of a democracy. 4. Freedom of speech works as a safety valve for society (people who feel injured by society can respond through words and not actions)

What is the only type of speech completely protected by the Clear and Present Danger test?

The only speech which is completely protected from government action here is totally theoretical speech which has no implications for the real world

Is the clear and present danger test objective?

The test can allow the Court to regulate speech it disagrees with, so it's not an objective test

What was novel about Reno v. ACLU?

This case deals with regulating a new medium's handling of sexual expression - the internet Congress passed the Communications Decency Act of 1996 • The act criminalized: • "The knowing transmission of obscene or indecent messages to any recipient under the age of 18"

What is the Roth test and why was it problematic?

This is the first time the Court considers obscenity as a constitutional issue Test: • The new standard is whether the average citizen applying local standards while viewing the work as a whole would find that it appeals to the prurient interest in sex (makes it a lot harder to find something obscene) Problems: • Prurient is an uncommon term, and has no real legal history• Makes it difficult to determine ahead of time whether something will be considered obscene • Rather than providing some more explicit standard which most can understand This is the problem that is associated with trying to control material labeled as obscene - it boils down to a normative question of values

In terms of targeting expressions of hate, what is the fundamental difference between the Court's decisions in RAV v. St. Paul (1992) and Wisconsin v. Mitchell (1993)?

Thus, the key difference between the two cases is that R.A.V. involved a law that targeted certain expressions of hate speech, while Wisconsin v. Mitchell involved a law that enhanced penalties for criminal conduct motivated by bias. While the Court held that the former violated the First Amendment, it upheld the latter as a permissible restriction on criminal conduct.

WEEK TOPICS

Week 7: Freedom of Expression and Periods of Tension Week 8: Speech +, Symbolic Speech, Commercial Expression Week 9:1st Amendment: Pornography and Obscenity Week 11: 1st Amendment: Hate Speech&The Constitutional Right to Privacy

In First Amendment law, what is a prior restraint?

a form of censorship that allows the government to review the content of printed materials and prevent their publication.

Reno v. ACLU

a law that bans sending "indecent" material to minors over the Internet is unconstitutional because "indecent" is too vague and broad a term

What was Justice Black's position on the constitutionality of capital punishment?

believed that capital punishment was unconstitutional under the Eighth Amendment to the U.S. Constitution, which prohibits cruel and unusual punishment. Black was a staunch opponent of the death penalty and believed that it was an inherently cruel and inhumane punishment that violated the fundamental values of a civilized society. Justice Black argued that the death penalty was an arbitrary and capricious form of punishment that was applied unfairly and disproportionately to people of color, the poor, and other marginalized groups. He also believed that the death penalty did not serve a legitimate penological purpose, such as deterrence or rehabilitation, and was therefore unnecessary and unjustifiable.

How is the constitutional logic used by Justice Scalia in Barnes v. Glen Theatre, Inc. (1991) similar to that he used in Employment Division v. Smith (1990)?

both cases applied the doctrine of "neutral principles" to analyze the constitutionality of government actions that affected religious or expressive conduct. LAW THAT MADE THE ACTION LEGAL WAS ALLOWED, LAW WAS GENERALLY APPLICABLE, LAW APPLIED TO EVERYONE, GENERAL LAW WASN'T TARGETING SPECIFIC GROUP Similarly, in Barnes v. Glen Theatre, Inc., the Court held that a state law that prohibited public nudity did not violate the First Amendment's protection of expressive conduct. Justice Scalia, writing for the majority, reasoned that the law was a neutral and generally applicable restriction on conduct, and that the dancers at a strip club who wished to perform nude did not have a constitutional right to do so. In Employment Division v. Smith, the Court held that the Free Exercise Clause of the First Amendment did not require the government to make accommodations for religious practices that violated neutral and generally applicable laws. Justice Scalia, writing for the majority, reasoned that the government's action in denying unemployment benefits to a person who had been fired for using peyote, a controlled substance, during a religious ceremony, did not violate the Free Exercise Clause because the law was neutral and generally applicable, meaning it applied to all individuals and was not targeted at any particular religious practice. In both cases, Justice Scalia applied the principle of neutral principles to analyze the constitutionality of government actions that affected religious or expressive conduct. This principle holds that laws and regulations that affect speech or religion must be neutral and generally applicable, and not targeted at particular religious or expressive practices.

Be familiar with the 1st Amendment and how the Court has evolved in its interpretation of free speech and free expression

first was only political but over times evolved to protect several types of speeches

obscenity and defamation are not protected

obscenity and defamation, are not protected by the First Amendment. Obscene speech, in particular, is not protected by the First Amendment because it has no redeeming social value.

When, throughout history has freedom of speech in the U.S. been most restricted?

peril of freedom of speech increases rapidly during periods where there is societal consensus that a major crisis exists. EXAMPLE: WAR. During these periods majority is most likely to create public policy which curtails the speech rights of unpopular minorities (not traditional minorities, IS idealogical or policy position minorities) EXAMPLE: Alien and Sedition Acts, speech curtailed by both world wars.

Central Hudson Gas & Electric Corp. v. Public Service Commission

should central hudson and gas and electric companies be allowed to advertise? 4 step test reasoning they created this 4 step process now to deal with commercial speech cases and once again, advertising won Rehnquist dissent: So Blackmun sees no need to make a distinction between commercial and other types of speech • Rehnquist in his dissent tells the majority that it is in essence doing what Blackmun is calling for; elevating commercial speech to protected speech because the fourth prong is difficult to meet

Why did the Court historically never get really involved in pornography?

• Historically the Court really didn't need to get heavily involved in pornography • Mainly since it was never considered to be protected speech under the 1st Amendment

Is there a concrete distinction between speech and action?

• The 1st Amendment issues presented in these cases are a little more difficult to deal with because speech is linked with some action • Thereby getting us into the gray area between speech and action NO CONCRETE DISTINCTION