POLS 457B Midterm Quizlet

Why did Mr. Justice Douglass and Mr. Justice Black concur in the Lemon V. Kurtzman and Earley V. DiCenso case?

they believed that the issue of the case was the fact that the taxpayers' were forced to contribute to the parochial schools and that this is a violation of the first amendment.

What was the decision of Tinker V. Des Moines independent school district?

they reversed the decision.

Why did some justices have a dissenting opinion in the Cohen case?

they said that his jacket should constitute fighting words because it can lead to an altercation.

What was the petitioner's argument in Tinker?

they were arguing that no violence occurred because of the armband.

What happened in Memoris V. Massachusetts?

this case reviewed the attempts of Massachusetts to declare obscene John Cleland's book. In the supreme court, Brennan expanded the parameters of Roth by stating, "if a work had a modicum of social value it could not be adjusted obscene" thus protecting John Cleland.

Two changes came with the miller test:

this test gave the authority of the state to decide what is obscene and it took away the notion of the work being protected if it had to redeem the social value.

What was the outcome of the Synder V. Phelps case?

to succeed on a claim for intentional emotional distress in Maryland, a plaintiff must demonstrate that the defendant intentionally or recklessly engaged in extreme and outrageous conduct that caused the plaintiff to suffer severe emotional distress. The ultimate decision was that the court of appeals for the fourth circuit was affirmed.

What are the facts of the Bethel case?

took place in a school building. The student who was speaking was using obscene language and gestures. He was suspended for two days.

The original court is usually known as the _________

trial court, because that's where the trial occurs if there is one. The higher court is known as the appellate or appeals court, as it is the court that hears the appeal.

True or false: The Miller case was a lot more narrow than the Roth test

true

Weisman, case in which the U.S. Supreme Court on June 24, 1992, ruled (5-4) that it was ________-

unconstitutional for a public school in Rhode Island to have a member of the clergy deliver a prayer at graduation ceremonies.

Federal side of the ladder when it comes to cases:

us district courts, US courts of appeals, US supreme court

According to John Marshall Harlan (II), the subject of obscenity has produced a ________

variety of views among the members of the Court unmatched in any other course of constitutional interpretation.

What can states ban?

Fighting words

Brennan's opinion, which was joined by three other justices, is remarkable for three reasons.

First, after almost two decades of the court trying to define obscenity, the author of Roth finally decided that it could not be done. Second, the liberals argued that efforts to regulate obscene material inevitably led to unacceptable restrictions on protected expression. Third, Brennan argued that state and federal authorities should be banned from regulating sexual oriented expression, except to protect juveniles and unconsenting adults.

There are two basic reasons for the court's insistence on the private conference:

First, the court which unlike Congress lacks an electoral connection - is supposed to base its decisions on facts rather than public opinion. Second, even though the court reaches tentative decisions, the opinions explaining the decisions remain to be written.

Perhaps the most significant of the post-Roth decisions were ________

Jacobellis v. Ohio and Memoris V. Massachusetts.

What were the facts of Chaplinsky v. United States?

Jehovah's witness was selling religious materials and citizens started to attack him and then the Jehovah's witness was arrested. He was charged with using offensive words in public towards an office.

What happened in the national socialist party v. Skokie?

Jewish residents wanted to stop a parade that was formed by nazi's, however, the court ruled that they can not limit their free speech with the assumption that something violent would occur. They said that they can only do something when something actually happens.

What were the general arguments/facts in the Johnson case?

Johnson was part of a protest outside of a courthouse and his buddy handed him an American flag and lit it on fire which broke Texas's law that says you can not burn an American flag. The Texas law was created to prevent the breach of peace.

What did the court decide in the Morse V. Frederick case?

The court decided that the first amendment does not require schools to tolerate at school events student expression that contributes to these dangers. The court reversed the appeals court's decision.

What was the outcome of the Brandenburg case?

The court found the Ohio law unconstitutional

Why did the court decide to hear the Bethel case?

The court granted certiorari to decide whether the First Amendment prevents a school district from disciplining a high school student for giving a lewd speech at a school assembly

Does the law afford Marbury a remedy and if so is the remedy mandamus?

The court knew he was entitled to something they just did not know what.

What is the processing of supreme court cases?

The court receives the requests for review, Cases are docketed Justices review docketed cases Conferences, Rule of four; four or more judges must vote yes to get the case heard, Announcement of action on cases, Clerk sets date for oral argument, Attorneys file briefs, Oral arguments, Conferences, Assignment of the majority opinion, Drafting and circulation of opinions, Reporting of opinions, Issuing and announcing opinions

What was the courts ruling in the Texas V. Johnson case?

The court ruled "Johnson's burning of the flag was conduct "sufficiently imbued with elements of communication" to implicate the first amendment. Texas claims that its interest in preventing breaches of peace, justifies Johnson's conviction. However the court rules that there was no disturbance of the peace that occured on threatened to occur because of Johnson's burning of the flag. The court also ruled that Johnson's expressive conduct did not fall within that small class of "fighting words" that are likely to provoke the average person to retaliation.

What did the majority opinion in Zelman v. Simmons-Harris state?

The court ruled that the Ohio Program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is, therefore, a program of true private choice. In keeping with an unbroken line of decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment clause. The judgment of the court of appeals is reversed.

What did the court rule in the Johnson case?

The court ruled that this was protected speech because he was chanting words that were protected.

What did the majority say in School district of Abington township v. Schempp Murray v. Curlett?

The test they created, in this case, is as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the constitution. That is to say that to withstand the strictures of the establishment clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion

What act did O'Brien violate?

The selective service act of 1948

Eventually, the final version of the opinion is reached and each justice expresses a position in writing or by signing an opinion of another justice. This is how the final vote is taken. When all of the justices have declared themselves, the only remaining step is for the court to _______

announce its decision and the vote to the public.

What was the three-pronged test used in Edwards v. Aguilard?

first, the legislature must not have adopted the law with a secular purpose. Second, the statute's principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute must not result in an excessive entanglement of government with religion.

What are the three elements of the Lemon test?

first, the statute must have a secular legislative purpose. Second, its principal or primary effect must be one that neither advances nor inhibits religion. Finally, the statute must not foster an excessive government entanglement with religion.

under court's rule, the appellant must submit its brief within _________

forty days of being granted cert

How does the court handle encroaching on the rights of others?

freedom of expression does not provide a license to infringe on the rights of others.

The judges, both of the supreme and inferior courts, shall hold their offices during _________

good behavior

What was the effect of the lemon test in lemon v. Kurtzman?

if there is a direct correlation with the money spent on the advancement of religion. The court sees that the money does aid in the advancement of religion.

Define secondary opinions -

if there is more than one judge, then we can have more than one opinion. The majority opinion - the judge's opinion of the winner or loser. Concurrences - votes in the same direction but for different rationales. Dissenting opinion - votes in a different direction

What did Justice William Douglas have to say about the Dennis case?

in dissent, advocated an entirely different approach. He argued that the 1st amendment prohibits Congress from abridging the freedom of speech and provides no expectation.

What was the dissenting opinion in Tinker?

not everyone can say whatever they want in certain places. The dissent looks at the context in this situation. They also argued that if you do not ban this then how far will free speech in school go?

Under the Ballard approach, the proper test of a constitutionally protected religious belief is _______

not the truth of its doctrine but the sincerity with which it is held.

Define dicta -

refers to legal statements in the opinion not needed to resolve the dispute of the parties; the word is a pluralized abbreviation of the latin phrase "obiter dictum" which means "a remark by the way"

The Miller test gave more latitude to government officials to __________

regulate sexually oriented materials

How does the court handle burdens on government functions?

regulation is permissible if expression places a burden on a legitimate government function. If, for example, environmentalists lie down in front of bulldozers, the government may interfere to remove them.

The new miller test permitted much greater _______

regulation of sexually explicit materials than did the Roth standard.

While the Supreme court clung to Hicklin, the lower courts were trying to __________

reject it. As the pornography business started to bloom, a lot of citizens wanted there to be tighter control on it, however, a lot of attorneys were urging the court to rule the opposite way because the first amendment covers all materials, including those previously adjudged obscene.

The civil war changed the _________

relationship between the federal government and states

Clear and present danger test -

requires consideration not only of the content of the expression but also the context in which it was uttered, the consequences of those words, and when those consequences may occur.

Define appellee -

respondent. Has thirty days to submit a brief after appellant.

At times of emergency and where the government may be unstable, political dissent, and opposition to the government may increase, and the nation's very survival may be at stake, reactions take the form of policies that ________

restrict the right of people to speak, publish, and organize.

Federal courts have exerted the power of judicial review, the power to __________

review acts of government to determine their compatibility with the US constitution.

Thornhill V. Alabama struck down a law that _______

said labor unions can not picket.

At least 4 out of the 9 judges need to _______

say yes in order for them to take the case

Justices are appointed by the president and confirmed by the _______

senate

Define the federalist papers -

set the backbones for the constitution

We might take the power of judicial review for granted because we do not use it that often. The court has this power because ________

since they are in the court for life, they are not doing in terms of trying to get reelected.

How does the government view criminal speech?

some forms of expression are crimes by their own very nature. For example, the constitution does not protect those who might give military secrets to the enemy in time of war, engage in conspiracies to violate valid criminal laws, or lie under oath

The bad tendency test looks at ________

the intentions and tendencies of the people here. The bad tendency test is more restrictive of speech, because it looks at intention and tendency rather than just actual proof of harm in the clear and present danger test.

Hate speech can be protected if ________

no violence occurs

What did the majority decide in O'Brien?

The court affirmed the decision because it intervened with the selection of the draft and that congress has the right to hold a draft

Did the court reject the Hicklin test in Roth?

Yes

By Marshal exerting the power of judicial review, he sent a clear signal to Jefferson that the ________

court was going to be an important part of the American government.

Thus, only two conclusions are consistent with the text of § 16-1-20.1 in Wallace v. Jaffree: ________

(1) the statute was enacted to convey a message of state endorsement and promotion of prayer; or (2) the statute was enacted for no purpose. No one suggests that the statute was nothing but a meaningless or irrational act.

Thomas Jefferson wrote in his 1802 letter to the Danbury Baptist Association, _______

"I believe that religion is a matter which lies solely between a man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinion. In other words, the free exercise of religion is not limitless, as a literal reading of the amendment would suggest. Rather, at least under Jefferson's interpretation, governments can regulate actions.

During the proceedings before the higher court, the party that lost at the original court and is therefore filing the appeal is usually known as the __________

"appellant." The party that won in the lower court and must defend the lower court's decision is known as the "appellee" (accent on the last syllable). Some older opinions may refer to the appellant as the "plaintiff in error" and the appellee as the "defendant in error." Finally, some courts label an appeal as a "petition," and require the losing party to petition the higher court for relief. In these cases, the party that lost before the lower court and is filing the petition for review is called the "petitioner." The party that won before the lower court and is responding to the petition in the higher court is called the "respondent."

What was the court's argument in Tinker V. Des Moines independent school district?

"as we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of disturbances or disorders on the school premises in fact occurred."

In a civil case, one person files a lawsuit against another asking the court to order the other side to pay him money or to do or stop doing something. An award of money is called __________

"damages" and an order to do something or to refrain from doing something is called an "injunction." The person bringing the lawsuit is known as the "plaintiff" and the person sued is called the "defendant."

How did Brennan expand the parameters of Roth in Memoris V. Massachusetts?

"if a work had a modicum of social value it could not be adjusted obscene"

When a judge makes a ruling about a case, the judge will explain the ruling in a written document referred to as an ________

"opinion"

A major difference between O'Brien's case and Johnson's case is this:

"we have highlighted the requirement that the government interest in question be unconnected to expression in order to come under O'Brien's less demanding rule.

At an early of stage of the litigation, Wallace V. Jaffree, the constitutionality of three Alabama statutes was questioned:

(1) § 16-1-20, enacted in 1978, which authorized a 1-minute period of silence in all public schools "for meditation"; (2) § 16-1-20.1, enacted in 1981, which authorized a period of silence "for meditation or voluntary prayer"; and (3) § 16-1-20.2, enacted in 1982, which authorized teachers to lead "willing students" in a prescribed prayer to "Almighty God . . . the Creator and Supreme Judge of the world..."

What test was used in Gitlow V. United States?

The bad tendency test

What are the facts of the Dennis V. United States case?

11 leaders of the communitst party were convicted of going against the smith act. Dennis was a member of the communist party and there were documents that proved this. Setting at the time - during the red scare. There was the intention of the assumption of overthrowing the government. Smith act - a criminal offense to teach or duty of the desirability of overthrowing the government through violence. The concern is that a rebellion could occur

The supreme court says that the bill of rights applies to the state through the ________

14th amendment

What were the facts of the Edwards v. Aguilard:

After Epperson, organized religious interests lobbied state legislatures to pass new laws. Louisiana enacted the balanced treatment for creation science and evolution science in the public school instruction act in 1981. This law differed from the one struck down in Epperson because it did not outlaw the teaching of evolution. Rather, it prohibited schools from teaching evolutionary principles unless theories of creationism also were taught. The state and various organizations offered two major lines of argument in support of this legislation. First, evolutionary theory is, in reality, a religion of secular humanism. If evolution is taught, then so should be creationism, which has its origins in a literal reading of Genesis. In other words, public school teachers must give equal time to the two primary "religious" views of the origin of humankind. Second, creationism is a science just like evolutionary theory and, therefore, deserves equal treatment in public school curricula. Represented by the ACLU, Assistant Principal Don Aguillard and several teachers, parents, and religious groups challenged the act as a violation of the establishment clause. They attacked the argument that creationism is a science. As amicus curiae national academy of Sciences put it: "The explanatory power of a scientific hypothesis or theory is, in effect, the medium of exchange by which the value of a scientific theory is determined in the marketplace of ideas that constitutes the scientific community. Creationists do not compete in the marketplace, and creation science does not offer scientific value." What the legislature had done, according to the ACLU was to give equal time to a particular religion's view of the origins of humankind, which, the ACLU argued, violated the establishment clause.

What happened in Hustler Magazine V. Falwell?

After introducing Hustler in 1974, Flynt oftentimes found himself in court defending the magazine against obscenity charges usually stemming from its portrayals of women, sexual activities, and violence. Catholic Priests, a British court promulgated the following test, "whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort might fall". This test is commonly referred to as the Hicklin test.

Jaffree, case in which the U.S. Supreme Court on June 4, 1985, ruled (6-3) that an _________

Alabama statute that authorized a one-minute period of silence in all public schools "for meditation or voluntary prayer" violated the First Amendment's establishment clause.

What are the facts of the Lemon V. Kurtzman Earley V. DiCenso case?

Alton Lemon brought suit against David Kurtzman state superintendent of schools. Lemon wanted the trial court to declare unconstitutional a Pennsylvania law that authorized Kurtzman to "purchase" secular educational services for nonpublic schools. Under this law, the superintendent would use state taxes levied on cigarettes to reimburse nonpublic schools for expenses incurred for teacher's salaries, textbooks, and instructional materials. The state authorized the funding but only with some restrictions that required the money to be used towards materials that will be used in public schools as well. In addition, schools had to keep separate records identifying secular and nonsecular expenses. The companion case, Earley V. DiCenso, involved a challenge to the Rhode Island salary supplement act. Aimed at improving the quality of private education, this law supplemented the salaries of teachers of secular subjects in private elementary schools. Payments could only be made to those who agreed in writing not to teach religious subjects. The plaintiffs claimed that this law was unconstitutional because 95% of the schools falling under the terms of the act were affiliated with the Roman Catholic church. The lower courts upheld the Pennsylvania funding statute but struck down the Rhode Island Program.

Why did Justice Rehnquist dissent in Wallace v. Jaffree?

As its history abundantly shows, however, nothing in the Establishment Clause requires the government to be strictly neutral between religion and irreligion, nor does that Clause prohibit Congress or the States from pursuing legitimate secular ends through nondiscriminatory sectarian means. The State surely has a secular interest in regulating the manner in which public schools are conducted. Nothing in the Establishment Clause of the First Amendment, properly understood, prohibits any such generalized "endorsement" of prayer. I would therefore reverse the judgment of the Court of Appeals.

What test did Clark use in Abrams v. United States?

Bad tendency test

Why did Marbury not get his commission?

Because the judges did not have power due to the basis for decision, the judiciary act of 1979 was found unconstitutional because it purported to enlarge the original jurisdiction of the supreme court beyond that permitted by the constitution. The case was adding mandamus to courts original jurisdiction, conflicts with the consitution (excerise of judicial review), so court lacks jurisdiction and must dismiss the case, the supreme court's original jurisdiction rights are listed in the constitution and states when the court can use this. In order for the court to expand its original jurisdiction, they need congress to pass an amendment, and the court did not have power under the original jurisdiction.

Who gave a dissenting opinion in Dennis V. United States and why?

Black - how does he view the smith act? He thinks that this act is unconstitutional because it captures words that are protected.

The court's quest to develop a sound establishment clause jurisprudence began in 1899 when it decided the case of ________

Bradfield V. Roberts

The first part of the case is the title of the case, known as the "caption." Examples include ________

Brown v. Board of Education and Miranda v. Arizona. The caption usually tells you the last names of the person who brought the lawsuit and the person who is being sued. These two sides are often referred to as the "parties" or as the "litigants" in the case.

The court began to handle expression through violence in 1942 with ________

Chaplinsky v. New Hampshire.

What happened in Schenck V. United States?

Charles Schenck, the general secretary of the socialist party printed 15 pamphlets urging them to resist the draft. Federal authorities were charged with a violation of the espionage act. He appealed on first amendment grounds. Oliver Wendell Holmes's opinion in Schenck represents the first important and substantial explication of free speech. Holmes provided the court with a mechanism, known as the clear and present danger test, for framing such cases and a standard by which to adjudicate future claims.

What happened during Schenck V. United States?

Charles went against the espionage act and tried to circulate negative information about the draft during WWI. The law he violated was a federal law. This case created the clear and present danger test. He was found guilty for conspiring against the government even though he did not cause actual harm. The court ruled on prior constraint since he did not actually cause harm.

Who delivered the majority opinion in the Bethel case?

Chief Justice Burger

Who gave the majority opinion in the Van Orden V. Perry case?

Chief Justice Rehnquist

Who gave the majority opinion in the Morse V. Frederick case?

Chief Justice Roberts

Who delivered the majority opinion in the Lemon V. Kurtzman and Earley V. DiCenso case.

Chief justice Burger

Who gave the majority opinion in Zelman v. Simmons-Harris?

Chief justice Rehnquist

Who delivered the majority opinion in the O'Brien case?

Chief justice Warren

What were the facts of Zelman I?

Cleveland program - money was given to students to go to school. Rules for participating schools - the program could not charge more than $2,500 for tuition.

What is the statue in Engle v. Abington?

Coercion under statute

What happened in Hylton V. United States?

Daniel Hyten challenged the constitutionality of a 1793 federal tax on carriages. He stated that this tax violated the constitutional mandate that direct taxes must be apportioned on the basis of population. The court upheld the act

What are the facts of Lee V. Weisman?

Deborah Weisman graduated from Nathan Bishop Middle School, a public school in Providence, at a formal ceremony in June 1989. She was about 14 years old. For many years it has been the policy of the Providence School Committee and the Superintendent of Schools to permit principals to invite members of the clergy to give invocations and benedictions at middle school and high school graduations. Many, but not all, of the principals, elected to include prayers as part of the graduation ceremonies. Acting for himself and his daughter, Deborah's father, Daniel Weisman, objected to any prayers at Deborah's middle school graduation, but to no avail. The school principal, petitioner Robert E. Lee, invited a rabbi to deliver prayers at the graduation exercises for Deborah's class. Rabbi Leslie Gutterman, of the Temple Beth-El in Providence, accepted. It has been the custom of Providence school officials to provide invited clergy with a pamphlet entitled "Guidelines for Civic Occasions," prepared by the National Conference of Christians and Jews. The Guidelines recommend that public prayers at nonsectarian civic ceremonies be composed with "inclusiveness and sensitivity," though they acknowledge that "[p]rayer of any kind may be inappropriate on some civic occasions." App. 20-21. The principal gave Rabbi Gutterman the pamphlet before the graduation and advised him the invocation and benediction should be nonsectarian. The school board (and the United States, which supports it as amicus curiae) argued that these short prayers and others like them at graduation exercises are of profound meaning to many students and parents throughout this country who consider that due respect and acknowledgment for divine guidance and for the deepest spiritual aspirations of our people ought to be expressed at an event as important in life as graduation. We assume this to be so in addressing the difficult case now before us, for the significance of the prayers lies also at the heart of Daniel and Deborah Weisman's case. Four days before the ceremony, Daniel Weisman, in his individual capacity as a Providence taxpayer and as next friend of Deborah, sought a temporary restraining order in the United States District Court for the District of Rhode Island to prohibit school officials from including an invocation or benediction in the graduation ceremony. The court denied the motion for lack of adequate time to consider it. Deborah and her family attended the graduation, where the prayers were recited. In July 1989, Daniel Weisman filed an amended complaint seeking a permanent injunction barring petitioners, various officials of the Providence public schools, from inviting the clergy to deliver invocations and benedictions at future graduations. We find it unnecessary to address Daniel Weisman's taxpayer standing, for a live and justiciable controversy is before us. Deborah Weisman is enrolled as a student at Classical High School in Providence and from the record, it appears likely, if not certain, that an invocation and benediction will be conducted at her high school graduation.

Define hate speech -

Directing speech towards a particular group of people based on race, gender, orientation, etc. Discriminatory talk towards others characteristics.

Cases come to the court in one of four ways:

Either by request for review under the court's original jurisdiction or by three appellate routes - appeals, certification, and petitions for writs of certiorari

What was the source of violation in Lemon V. Kurtzman?

Entanglement - the link is too close to the connection that the court can not monitor it. Douglas concurrence - the likelihood of entanglement

Every analysis in this area (Wallace V. Jaffree) must begin with a consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases:

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen,392 U.S. 236,243[88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060] (1968); finally, the statute must not foster 'an excessive government entanglement with religion.'

Three aspects of the Hicklin test made it biased towards a finding that the accused work is obscene:

First, the test targets those minds that are open to immoral influences. Thus, in practice, prosecutors often ask what if this had fallen into the hands of a child? In other words, the Hicklin test created a stringent level of acceptability - whether the material would be appropriate if a child were exposed to it. Second, the Hicklin test did not require for the whole publication to be viewed, thus it can be seen as obscene only by one part of it. Third, the Hicklin test did not direct the courts to consider the social value of the work; rather, it provided only that the effect of the offensive sections be examined. As a result, the Hicklin test left a wide range of expressions unprotected.

Who gave a concurring opinion in Dennis V. United States and why?

Frankfurter - who is responsible - court or congress? He feels that the smith act should not be protected.

What happened in the Gitlow V. United States case?

Gitlow was arrested for distributing a pamphlet encouraging revolution against capitalism. This is a state law, therefore the 1st amendment may not be applicable unless it is through the 14th amendment. He violated the New York criminal anarchy test.

What test was used in Brandenburg?

Imminent lawless action - Brandenburg's language about "imminent lawless action" produced the "Brandenburg Test," which requires that in order to punish the speaker, the speech is: directed to inciting or producing imminent lawless action, and likely to incite or produce such action.

What was the law in question in O'Brien?

He broke a law that prohibited destroying draft cards

Why did Holmes dissent in the Gitlow case?

He continued to press his clear and present danger standard, arguing that Gitlow's actions posed no obvious and immediate danger.

Why did Douglass write a dissenting opinion in the Dennis V. United States case?

He did not see any speech that should be convicted.

Who was the concurring opinion in Van Orden V. Perry and why?

He wanted to adopt an establishment clause jurisprudence that is in accord with our Nation's past and present practices, and that can be consistently applied - the central relevant feature of which is that there is nothing unconstitutional in a state's favoring of religion.

What was the outcome of the Cohen case?

He was not found guilty because the law was too board and that the state has no right to ban someone's idea just because it does not fight society's views.

The butler decision had mortally wounded the ________

Hicklin test but the judges had not found an alternative

The new Roth test differed from the Hicklin test in four major ways:

Imposed an average person test, replacing Hicklin's child standard. The contemporary standards criterion recognized the evolving nature of society's views of sexual morality. "The dominant theme of the material taken as a whole" approach rejected Hicklin's notion that a work can be declared obscene based on the content of a single part. The prurient interests element ensured that only material with sexual content would potentially fall under the obscenity rubric.

What are the facts of the Emerson V. Board of education case?

In 1941, New Jersey passed a law authorizing local school boards that provided any transportation for public school children to and from school. Ewing township decided to use tax dollars to reimburse parents for transportation costs incurred in sending their children to school. It also covered four private schools, all of which were affiliated with the Roman Catholic church and provided regular religious instruction. Arch Everson, a taxpayer living in the district challenged the reimbursements to parents sending their children to religious schools. He claimed that this money supported religion in violation of the establishment clause of the first amendment.

When was the imminent lawless action test created?

In Brandeburg

What are the facts of the Tinker V. Des Moines independent school district case?

In December 1965, a group of adults and students in Iowa devised two strategies to demonstrate their opposition to the Vietnam War: they would fast on December 16 and New Years Day and would wear black armbands every day in between. The school mentioned that whoever continues to wear the armbands to school will be suspended, a lot of them complied except for John Tinker, Mary Tinker, and Christopher Eckhardt. They were suspended. ACLU attorneys argued that the armbands constituted legitimate symbolic speech and that, by suppressing such expression, the school officials had engaged in unconstitutional prior restraint

What did Black have to say in the Dennis case?

In dissent, Justice Hugo Black expressed support for the preferred freedoms position and the clear and present danger test

What are the facts of the Texas V. Johnson case?

In the Summer of 1984, a group of 75 to one hundred demonstrators marched through the city to protest the Reagan administration's policies. Gregory Lee Johnson, who was one of the leaders of the march, took an American flag and lit it on fire. Authorities arrested Johnson, charging him with violating the Texas flag desecration law. He was convicted and sentenced to one year and a fine of $2,000. The Texas court of criminal appeals reversed that holding.

What was the decision in Chaplinsky V. New York

In unanimously affirming Chaplinky's conviction, the court agreed with Murphy's enunciation of the so called fighting words doctrine: that the government may regulate words directed at another individual "which by their very utterance inflict injury or tend to incite an immediate breach of peace"

Who delivered the majority opinion in the Texas V. Johnson case?

Justice Brennan

Who gave the majority opinion in Edwards V. Aguilard?

Justice Brennan

Who delivered the majority opinion in Tinker V. Des Moines independent school district?

Justice Fortas.

Who delivered the majority opinion in Lee V. Weisman?

Justice Kennedy

Who dissented in Wallace v. Jaffree?

Justice Rehnquist

Who gave the majority opinion in Synder V. Phelps?

Justice Roberts

Who dissented in Lee v. Weisman?

Justice Scalia

Who was concurring in Morse and why?

Justice Thomas because he agreed that it was okay to restrain speech in morse, but he said that they should not always restrain.

The constitution does not mention judicial review. This was granted during _________

Marbury V. Marshall

What happened in Miller V. California?

Marvin Miller had sent explicit content through a mass mailing system and it had reached the hands of those who did not wish to see it. He was arrested and along with Miller, the court accepted a group of cases related to obscenity. With Miller as the lead case, it was clear that the court was likely to hand down a significant decision affecting the breadth of obscenity issues. In this case, chief justice Burger delivered the opinion of the court, and stated, "obscene material is not protected by the first amendment". They did not adopt the standard in Memoirs v. Massachusetts that says, "utterly without redeeming social value test".

What are the facts of the Miller case?

Miller did a mass mailing of sexual material and he got caught. He was arrested.

The more conversational rulings in terms of obscenity changed in 1973, with the _______

Miller v. California case.

What was the Roth test?

Moved away from the child standard and rather looked at adults and looks at the material as a a whole.

Who gave the majority opinion in Emerson V. Board of education?

Mr. Justice Black

Who gave the majority opinion in the School district of Abington township v. Schempp Murray v. Curlett?

Mr. Justice Clark

Who dissented in Emerson V. Board of education and why?

Mr. Justice Jackson and Frankfurter. They argued that the state may pay out taxed-raised funds to relieve pauperism, but it may not under our constitution do so to induce or reward piety. It may spend funds to secure old age against want, but it may not spend funds to secure religion against skepticism.

Who gave the majority opinion in Cantwell v. Connecticut?

Mr. Justice Roberts

What was the outcome of the Emerson V. Board of education case?

New Jersey won because the program helps parents get their children, regardless of religion to school through a general program.

What are the facts of the Cantwell V. Connecticut case?

Newton Cantwell and his sons, Jesse, age sixteen, and Rusell, eighteen, members of the Jehovah's Witnesses sect, were playing records, soliciting contributions, and distributing pamphlets to citizens house-to-house in New Haven, Connecticut, in an area that was predominantly Catholic. Two passersby took offense at the anti-Catholic messages in the material and complained. The next day, police arrested the Cantwells, for violating a state law prohibiting individuals "from soliciting money for any cause" without a license. The law required those who wanted to solicit to obtain a certificate of approval from the state's secretary of the Public Welfare Council. The state charged this official with determining whether "the cause is a religious one" or one of a "bona fide object of charity." If the official found neither, he was authorized to withhold the necessary certificate. After unsuccessfully fighting these charges in the lower courts, the Cantwells appealed to the U.S. Supreme court. Two important issues were at stake. First, the Justices had to confront the question of whether the first amendment's free exercise clause should be incorporated and made applicable to the states through the fourteenth amendment. If the answer to that question was yes, then the court would have to determine if the Connecticut solicitation license policy violated the Cantwells' rights.

What are the facts of the O'Brien case?

O'Brien and three others burned their draft card in public.

What are the facts in the Bethel case?

On April 26, 1983, respondent Matthew N. Fraser, a student at Bethel High School in Pierce County, Washington, delivered a speech nominating a fellow student for student elective office. Approximately 600 high school students, many of whom were 14-year-olds, attended the assembly. Students were required to attend the assembly or to report to the study hall. The assembly was part of a school-sponsored educational program in self-government. Students who elected not to attend the assembly were required to report to study hall. During the entire speech, Fraser referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor. Two of Fraser's teachers, with whom he discussed the contents of his speech in advance, informed him that the speech was "inappropriate and that he probably should not deliver it," App. 30, and that his delivery of the speech might have "severe consequences." During Fraser's delivery of the speech, a school counselor observed the reaction of students to the speech. Some students hooted and yelled; Other students appeared to be bewildered and embarrassed by the speech. The school has a disciplinary rule prohibiting the use of obscene language in the school provides: "Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures." Fraser was then informed that he would be suspended for three days and that his name would be removed from the list of candidates for graduation speaker at the school's commencement exercises. The District Court held that the school's sanctions violated the respondent's right to freedom of speech under the First Amendment to the United States Constitution. The Court of Appeals for the Ninth Circuit affirmed the judgment of the District Court.

What happened in Chaplinsky V. New York?

On April 6, 1940, Jehovah's witness member Walter Chaplinsky was selling religious pamphlets and literature on a busy street in New Hampshire. There was a crowd that formed and was angry with his beliefs, someone from the crowd attacked Chaplinsky and a marshall arrested him and through his anger he yelled to the marshall, "damned facist" and "a ********ed racketeer". By him doing this he was further arrested and fined for breaking a law that says you can not shout offensive words to a person who is lawfully on the street. He appealed

What are the facts of the Morse V. Frederick case?

On January 24, 2002, the Olympic torch relay passed through Jeneau, Alaska. The principal had arranged for the students to watch the race. Joseph Frederick, a senior at the high school, joined by some friends, had a banner for everyone to see that stated, "bong hits for Jesus". Morse advised them to take down the banner and all complied except for Fredrick. He was suspended for 10 days on the grounds of violating a school policy pertaining to the advocacy of illegal drugs. The trial court upheld the schools decision but the appeals court reversed it because he did not show a substantial risk of disruption.

We can reach two conclusions about the court's use of judicial review:

One is that as important as the judicial review has been, it has not given the court anything like a dominant position in the national government. The other is that the court's use of judicial review may not be what is significant. Rather, like the president's ability to veto congressional legislation, its power may lie in the threat of its invocation. In either case, it has provided federal courts with their most significant political weapon.

In addition, in the Miller V. California case, the judges gave the states some guidance when looking for obscene material:

Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of genitals. Patently offensive representation or descriptions of ultimate sexual acts, normal or perverted, actual or stimulated.

The lemon test was refashioned during Zelman, what are the new engagement questions?

Purpose, The direction of aid - a broad class of beneficiaries, Aid benefarcies, neutral to religion, Aid relationship to religions, Extent of options

What were the facts of the Roth case?

Ruth was a businessman in New York and was charged with mailing obscene material

Political Factors that influence what cases get chosen -

SG, amicus curiae, the ideology of the justices.

Define holding of the case -

Some opinions resolve the parties' legal dispute by announcing and applying a clear rule of law that is new to that particular case. This is often contrasted with "dicta" found in an opinion.

Lee v. Weisman: These dominant facts mark and control the confines of our decision:

State officials direct the performance of a formal religious exercise at promotional and graduation ceremonies for secondary schools. Even for those students who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma.

Who dissented in Morse and why?

Stevens because the statement on the shirt was not a clear connection to drugs

What are the facts of the Synder V. Phelps case?

Synder died on duty and at his funeral, there were a group of protestors from the church. His dad sued for causing the family emotional distress. The church was protesting because they were trying to get media coverage.

What is the first test to be used for obscenity?

The Hicklin test

What was the decision of the Edwards v. Aguilard case?

The Louisiana Creationism Act advances a religious doctrine by requiring either the banishment of the theory of evolution or the presentation of a religious viewpoint that undermines the evolution theory. The act violates the Establishment clause because it seeks to employ the symbolic and financial support of the government to achieve a religious purpose.

What act did Johnson violate in the Texas V. Johnson case?

The Texas flag desecration law.

Why did the majority believed that there was no branch in the wall of separation in Emerson v. Board of education?

The aid was secular in purpose, the aid was indirect because it did not pay directly to a religious institution, the benefarcies of the aid were children and their parents, not the churches, and that the state was neutral in its relations with groups of religious believers and nonbelievers.

What did the majority opinion say in Edwards V. Aguilard?

The court used a three-pronged test to see if this legislation violates the establishment clause: first, the legislature must not have adopted the law with a secular purpose. Second, the statute's principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute must not result in an excessive entanglement of government with religion. The court goes on to say, "We find no merit in the state's argument that the legislature may not have used the terms of academic freedom in the correct legal sense". It is equally clear that requiring schools to teach creation science with evolution does not advance academic freedom. The Act does not grant teachers the flexibility that they already possess. In particular, the court of appeals found that no law prohibited Louisiana public school teachers from teaching any scientific theory. While requiring that curriculum guides be developed for creation science and against the teaching of evolution. While requiring that curriculum guides be developed for creation science, the act says nothing of comparable guides for evolution. Similarly, research services are supplied for creation science but not for evolution. The act Florida school boards to discriminate against those who want to teach creationism but not for those who want to teach evolution. Under the act's requirements, teachers who were once free to teach any and all facets of this subject are now unable to do so. Moreover, the act fails even to ensure that creation science will be taught, but instead requires the teaching of this theory only when the theory of evolution is taught. Thus we agree with the court of appeals decision that the act does not serve to protect academic freedom.

What was the standard at trial for the Roth test?

The court was examining what could be counted as obscene

What was the outcome of Abrams V. United States?

The defendants were found guilty under the bad tendency test.

After the opinion presents the facts, it will then discuss the law. Many opinions present the law in two stages:

The first stage discusses the general principles of law that are relevant to cases such as the one the court is deciding. This section might explore the history of a particular field of law or may include a discussion of past cases (known as "precedents") that are related to the case the court is deciding. This part of the opinion gives the reader background to help understand the context and significance of the court's decision. The second stage of the legal section applies the general legal principles to the particular facts of the dispute. As you might guess, this part is in many ways the heart of the opinion: It gets to the bottom line of why the court is ruling for one side and against the other.

What did the court think matters in the Dennis V. United States case?

The intent

What was the outcome of the School district of Abington township v. Schempp Murray v. Curlett case?

The judges reversed Maryland's appeal court's decision and remanded it to the court of appeals for further proceedings.

What test was being used in Lemon V. Kurtzman?

The lemon test

What was happening in Van Orden V. Perry?

The lemon test is being under looked in this case as well, and possibly in future cases.

What did the majority case say in Van Orden v. Perry case?

The question being asked was, "whether the Establishment Clause allows the display of a monument inscribed with the ten commandments on the texas state capitol grounds?" The court believed the answer to this question was yes. They stated, "Whatever may be the fate of the Lemon test in the larger scheme of Establishment Clause jurisprudence, we think it is not useful in dealing with the sort of passive monument that Texas has erected on its capitol grounds. Instead, our analysis is driven both by the nature of the monument and by our nation's history. They further made the judgment that, "simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause".

What did the majority say in the Lemon V. Kurtzman and Earley V. DiCenso case?

The test they used in court was: first, the statute must have a secular legislative purpose. Second, its principal or primary effect must be one that neither advances nor inhibits religion. Finally, the statute must not foster an excessive government entanglement with religion. The court decided to uphold the Rhode Island District Court and reverse the Pennsylvania District court. They decided that under their system the choice has been made that government is to be entirely excluded from the area of religious instruction and the churches excluded from the affairs of the government.

What are the facts of the Van Orden V. Perry case?

The twenty-two-acre park surrounding the Texas capitol contains seventeen monuments and twenty-one historical markers commemorating the "people, ideas, and events that compose Texan identity." One of these is a six-foot-high monument displaying the text of the ten commandments. The Fraternal Order of Eagles gave the monument to the people of Texas in 1961. The Eagles also paid for the construction of the movement and its dedication. Thomas Van Orden, a lawyer by training and a resident of Austin, frequently saw the monument on his walks through the capitol grounds. After doing so for about six years, he filed a suit against Governor Rick Perry and other state officials asking the court to order the removal of the monument because its presence on the capitol grounds violated the establishment clause. The trial court judge rejected Van Orden's request, finding that the monument had a secular purpose and that no reasonable observer would conclude that the state was endorsing religion by allowing this passive movement to be placed on state property. The court of appeals affirmed, and the supreme court granted review.

Why did Justice Scalia dissent in Lee V. Weisman?

These views of course prevent me from joining today's opinion, which is conspicuously bereft of any reference to history. In holding that the Establishment Clause prohibits invocations and benedictions at public school graduation ceremonies, the Court —with nary a mention that it is doing so —lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, the test of psychological coercion, which promises to do for the Establishment Clause what the Durham rule did for the insanity defense. See Durhamv.

Who was the dissenting opinion in Edwards v. Aguilard case?

They believed that the statute was not in a violation because it did not forbid legislators merely to act upon their religious convictions. Furthermore, she wanted to move away from the Lemon test also known as the three-pronged test used in this case.

What are the facts of the Everson case?

They bring up the 14th amendment because we are dealing with a state law statute. Money is being given to parents for them to send their children to schools of their choice. The person who brought the claim believed that the state was using tax money to support religious schools and that the state was getting involved in religion. It was over 90% of students went to catholic schools due to this tax money.

What was the majority opinion in United States v. O'Brien.

They found him guilty. The majority opinion ruled that "the constitutional power of congress to raise and support armies and to make all laws is necessary and proper to that end is broad and sweeping. The power of congress to classify and conscript manpower for military service is beyond question. Pursuant to this power, congress may establish a system of registration.

What was the majority opinion of the court?

They found that, "we hold that the statue, as construed and applied to the appellants, deprives them of their liberty without due process of law in contravention of the fourteenth amendment. The court claimed that, "no freedom of conscience and freedom to adhere to such religious organizations or form of worship as the individual may choose cannot be restricted by law." the first amendment embraces two concepts - the freedom to believe and the freedom to act. In every case, the power to regulate must be so exercised as not, in attaining a permissible end. The appellants urge that to require them to obtain a certificate as a condition of soliciting support for their views amounts to a prior restraint on the exercise of their religion within the meaning of the constitution. But to condition, the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the first constitution. The judgment affirming the convictions is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

What did the majority opinion decide in the Bethel case?

They reversed the court of appeals decision.

What did the lower courts decide in the Tinker case?

They were on the student's side.

What is it about obscenity that has produced such extraordinary statements? After all, the court uniformly has held that obscenity is not entitled to first amendment protection. The problem is what makes a word obscene?

Today, the issues are no less salient: groups throughout the country try to bar certain books from school, to prohibit the sale of some music to minors, to stop libraries from subscribing to certain magazines, and to ban the transmission of some material on the internet - all on the grounds of obscenity

Define disagreement in a case -

Two parties are having a disagreement. A dispute that leads to a case

What four part test did the court examine when deciding the O'Brien case?

Under the O'Brien rules, government regulation that applies to a form of expression is constitutional if: (1) it is within the constitutional power of government, (2) it furthers an important or substantial governmental interest, (3) that interest is unrelated to the suppression of speech, and (4) the restriction it incidentally imposes on speech is no greater than necessary to further that interest

Chief Burger was so determined to exert influence over this area of law that during his tenure he wrote 69 percent of the majorities dealing with religion. Burger's two first religious establishment cases were _______

Walz V. tax commission of the city of New York and Lemon B. Kurtzman.

What are the facts of the Walz V, Tax commission of the city of New York case?

Walz V. tax commission of the city of New York involved the property tax exemptions enjoyed by religious institutions. Fredrick Walz bought a small, useless piece of land in New York to challenge this state tax exemption. He argued that the tax exemptions resulted in property owners making involuntary contributions to churches in violation of the establishment clause. After losing in the lower courts, he brought the case to the supreme court. Writing for a seven-person majority (only Douglass dissented), Burger found in favor of the state. Had the court ruled the other way, the tax status of every religious institution in the United States would have been dramatically altered. The opinion started traditionally enough, with an examination of the "purpose" prong of Schempp. The court claimed that the legislative purpose of property tax exemptions is neither the advancement nor the inhibition of religion.

Define prior restraint -

What the court looks at to see if something is unconstitutional.

What happened in Marbury V. Madison?

William Marbury was appointed to a government chair and never received his commission. He petitioned the Supreme Court to issue a writ of mandamus asking John Marshall to rule on his own negligence of not sending the commissions. Marshall claimed that the law that stated that you could ask the Supreme Court to issue the writ was unconstitutional. Marshall won.

Define statute -

a fancy name for written laws passed by legislative bodies such as Congress.

Define amicus curiae -

a friend of the court brief. These briefs are usually filled by interest groups and other third parties after the court makes its decision to hear a case, but they can also be filed at the cert stage.

How does the court handle the chilling effect?

a law intended to regulate certain forms of illegitimate expression cannot be written so as to make people fearful of engaging in legitimate activity. Often such a chilling effect stems from statues that are vague or overbroad. Assume that a state legislature, concerned about sexual activity at nightclubs, passes a law making it illegal to serve alcohol in any establishment featuring nude entertainment. In response to that law, museum officials might be fearful of sponsoring a gathering at which patrons would sip wine while viewing an exhibition of paintings that contain nude figures, Here a statue intended to curb obscenity and indecent behavior creates a chilling effect on the exercise of legitimate activities.

Define appellate jurisdiction -

a lower federal or state court has already rendered a decision and one of the parties is asking the court to review that decision.

What happened in Frohwerk V. United States?

a newspaper editor and an editorial writer accused the federal government of pursuing an imperialistic policy toward Germany. Federal authorities arrested Debs, charging him with attempting to incite insubordination, a violation of the Espionage act. They cited as evidence not only his words but the timing of his speech, which he delivered just after congress passed the selective service act. Writing for the court in both cases, Justice Holmes relied on the clear and present danger test to uphold the Debs and Frohwerk convictions.

How does the court handle restraints on government power?

although the court has been sympathetic to the government's need to regulate expression under certain carefully defined conditions, the justices also have been careful to place restraints on the government to prevent abuse. The court has constructed generally accepted criteria to hold the government's power within acceptable bounds.

The Zelman decision marked a significant shift in the direction of _______

accommodation. Chief Justice Rehnquist's opinion for the court stressed that the Cleveland voucher program satisfied two constitutional requirements. First, the program was neutral with respect to religion vs. non religion and did not distinguish between various religions. Second, the distribution of the aid depended on the independent choices of private individuals. And as for the Lemon test, the majority opinion ignored it completely. The majority did not overrule Lemon, even though they ignored it.

The "disposition" of a case is the __________

action the court took. It is often announced at the very end of the opinion. For example, an appeals court might "affirm" a lower court decision, upholding it, or it might "reverse" the decision, ruling for the other side. Alternatively, an appeals court might "vacate" the lower court decision, wiping the lower-court decision off the books, and then "remand" the case, sending it back to the lower court for further proceedings. For now, you should keep in mind that when a higher court "affirms" it means that the lower court had it right (in result, if not in reasoning). Words like "reverse," "remand," and "vacate" means that the higher court thought the lower court had it wrong.

Define discuss list -

all of the cases the supreme court is going to discuss

How does the court handle appropriate purpose?

any government restriction on freedom of expression must have a clearly defined purpose. A law that makes inciting to riot a crime, for example, would rest on the legitimate government purpose of curtailing violence. A law prohibiting criticism of the president, motivated by an interest in keeping incumbents in power, would clearly fault this test. In some areas the court has demanded that the government's purpose be legitimate; in others, the justices have required a higher standard - that the purpose be a compelling one.

How does the court handle over breadth?

any regulation of expression must be narrowly tailored to meet the government's objectives. If a legislature, concerned with protests that cause violence, passes a law prohibiting all public demonstrations, the statute would fail the narrow construction requirement. This regulatory scheme would be overboard, going far beyond what is necessary to deal with the legislature's legitimate concern by restricting constitutionally protected expression along with unprotected speech

Most cases reach the court under its ________

appellate jurisdiction

What are the facts of the Wallace V. Jaffree case?

appellee Ishmael Jaffree is a resident of Mobile County, Alabama. On May 28, 1982, he filed a complaint on behalf of three of his minor children; two of them were second-grade students and the third was then in kindergarten. The complaint named members of the Mobile County School Board, various school officials, and the minor plaintiffs' three teachers as defendants. The complaint alleged that the appellees brought the action "seeking principally a declaratory judgment and an injunction restraining the Defendants and each of them from maintaining or allowing the maintenance of regular religious prayer services or other forms of religious observances in the Mobile County Public Schools in violation of the First Amendment as made applicable to states by the fourteenth Amendment to the United States Constitution." The complaint further alleged that two of the children had been subjected to various acts of religious indoctrination "from the beginning of the school year in September 1981"; that the defendant teachers had "on a daily basis" led their classes in saying certain prayers in unison; that the minor children were exposed to ostracism from their peer group class members if they did not participate; and that Ishmael Jaffree had repeatedly but unsuccessfully requested that the devotional services be stopped. The original complaint made no reference to any Alabama statute...

In the presidential election of 1968, the Republican candidate Richard Nixon expressed his discontent with the justices and the court's obscenity decisions were at the heart of campaign rhetoric. He promised voters that if he became president that he would _______

appoint more conservative justices. He ended up appointing four conservative judges.

The constitutions goal was to _______

balance the wishes of the states and the federal government

Dennis is an important precedent:

between 1951 and 1956, the justices used this case and the probable danger standard to uphold a number of loyalty programs.

As applied in this case, the court found that O'Brien's conduct (burning the draft card) placed a _________

burden on a legitimate and important government activity.

How did the Jacobellis V. Ohio case liberalize the Roth test?

by stating that contemporary community standards were those of the nation, not of a community, thus protecting his first amendment right

How does the court handles forms of expression outside the first amendment?

certain classes of expression have always been considered unprotected by the constitution. Chief among these are obscenity and libel. If expression meets the court's rather strict definitions of obscenity or libel, the first amendment imposes no barrier to government regulation

Ashcroft v. free speech coalition struck down the _____

child pornography prevention act of 1996 based on a violation of the first amendment.

Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual's freedom to _________

choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority. At one time it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism

Before the justices meet to make a case selection the chief justice ______

circulates a discuss list containing those cases he feels the court should hear.

What test was used in the Dennis V. United States case?

clear and present danger

What test did Schenck V. United States create?

clear and present danger test

The three elements of the lemon test formed a ______

comprehensive standard that potentially could be applied to all establishment clause disputes.

What did justice Frankfurter have to say in the Dennis case?

concurring in deniss, continued to articulate a balancing approach, with its clear bias toward supporting government action. After due liberation, Frankfurter decided that communism was a threat and that the courts should refrain from intervening.

After oral arguments, the judges go to ________

conference

By the mid-twentieth century, American's increasingly diverse religious culture required the justices once again to _______

confront the task of defining religion. This line of cases is well exemplified in the United States v. Ballard.

Wallace V. Jaffree: It is the first of these three criteria that is most plainly implicated by this case. As the District Court correctly recognized, no __________

consideration of the second or third criteria is necessary if a statute does not have a clearly secular purpose. For even though a statute that is motivated in part by a religious purpose may satisfy the first criterion, see,e.g., Abington School District v. Schempp. The first Amendment requires that a statute must be invalidated if it is entirely motivated by a purpose to advance religion

The court in Brandenburg claimed that the ________

constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Measured by this the Ohio law could not be sustained. By so ruling, the justices closed the door on the long series of repressive expression rulings.

When the supreme court knocks down legislation it often results in ________

controversy because citizens view it as antidemocratic because the judges were not elected and they invalidate congress's laws made by people who were elected by the people.

The court during war times seems to be more _______

conversative

In criminal cases, there is no plaintiff and no lawsuit. The role of a plaintiff is occupied by a government prosecutor. Instead of filing a lawsuit (or equivalently, "suing" someone), the prosecutor files _________

criminal "charges." Instead of asking for damages or an injunction, the prosecutor asks the court to punish the individual through either jail time or a fine. The government prosecutor is often referred to as "the state," "the prosecution," or simply "the government." The person charged is called the defendant, just like the person sued in a civil case.

Article III enables the supreme court to _________

decide cases that have not been heard by any other court.

Judicial review, even though hinted at by the framers in the constitution, is actually not _________

deliberately stated.

Chief justice presides over the _______

deliberations

Until the Fourteenth Amendment was added to the Constitution, the first Amendment's restraints on the exercise of federal power simply _______

did not apply to the States. But when the Constitution was amended to prohibit any State from depriving any person of liberty without due process of law, that Amendment imposed the same substantive limitations on the States' power to legislate that the first Amendment had always imposed on the Congress' power. This Court has confirmed and endorsed this elementary proposition of law time and time again....

The justices have affirmed the rights of the government to impose more severe sentences if a crime is motivated by __________

discriminatory hatred than if the offense is prompted by other factors.

After the court hears oral arguments, it meets in a private conference to _________

discuss the case and to take a preliminary vote.

Lawsuits are _________

disputes, and judges only issue opinions when two parties to a dispute disagree on a particular legal question. This means that legal opinions focus on resolving the parties' very specific disagreement. The lawyers, not the judges, take the lead role in framing the issues raised by a case.

What was the action in question in the Tinker case?

does the school violating the children's choice to wear an armband put a restraint on their first amendment rights?

Preserving public order and protecting citizens from injury caused by violence are among the ________

essential duties of government.

The first amendment prohibits congress to ______

establish any religion, restrict speech or press.

The clear and present danger test _______

evolves over time

Surprisingly, there are no particular rules for what facts a judge must include in the ________

fact section of an opinion.

The first part of the body of the opinion presents the _________

facts of the case. In other words, what happened?

In 1919 we were in the middle of the _________

first world war as well as a draft.

How does the court handle prior restraint?

government may prosecute individuals who violate legitimate restrictions on expression but, absent extraordinary circumstances, may not intervene before the fact. For example, the government may not constitutionally require a speaker to submit for review a copy of his or her speech before its delivery to ensure that nothing in it may incite the audience to violence.

Criminal cases are brought by ________

government prosecutors on behalf of the government itself. If the federal government charges someone with a crime, the case caption will be, United States v. *the persons last name*. If the state brings the charges instead, the caption will be, state v *the persons last name*

Many free speech advocates argue that the government should not have a say when it comes to _______

hate speech due to the first amendment.

What was the majority opinion in Emerson V. Board of education?

he establishment of the first amendment states, "no tax in any amount shall be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion." They look at both sides and say that New Jersey also cannot exclude groups of people based on their faith from welfare legislation. Measured by these standards, we cannot say that the first amendment prohibits New Jersey from spending tax-raised funds to pay the bus fares of parochial schools as a part of a general program under which it pays the fares of pupils attending public and other schools. The state contributes no money to the schools. All it does is help parents get their children, regardless of religion to school through a general program.

What was the purpose for the action in O'Brien?

he wanted to burn his draft card to let people know that they have a choice

What did the majority opinion say in Chaplinsky v. the United States?

held that speech is not absolute. The court begins to define what are fighting words in this case. Fighting speech falls out of the first amendment protection. He was found guilty

What happened in Bradfield V. Roberts?

here was a congressional appropriation of $30,000 to Providence facilities to be used to treat indigent patients who had contracted diseases. The appropriation was challenged because the hospital was owned by the sisters of charity, the court unanimously rejected the challenge. Important to the court was the purpose of the facility and that the money be used in nonreligious activities.

What happened in Abrams V. United States?

his case was more of action versus intention because of the wording used in the pamphlet. Nothing happened from the pamphlets, but there was the intention of wanting to start something. In this case they used the bad tendency test rather than the clear and present danger test.

The clear and danger test looks at ______

how close a case was to causing danger. This can be difficult because how close is close and when does the court have the right to restrict first amendment speech. Context matters.

Most discussions of the facts also cover the "procedural history" of the case. The procedural history explains ___________

how the legal dispute worked its way through the legal system to the court that is issuing the opinion. It will include various motions, hearings, and trials that occurred after the case was initially filed.

What are the facts of the Zelman V. Simmons-Harris case?

in the 1990s the Cleveland school district faced a crisis. To improve performance, the state enacted its pilot project scholarship program that allowed parents to choose different schooling alternatives. They can either stay in Cleveland public schools, go to private nonreligious schools, or religious schools. They were being offered the same amount of money for each. Dorris Simmons-Haris and other local citizens filed suit against the school charging that the voucher program violated the first amendment. Both the federal district court and the appeals court struck down the program.

What happened in Synder V. Phelps?

in this case, the justices considered the right of demonstrators to express hateful and offensive messages while engaged in public picketing. The church decided to picket Matthew Synder's funeral and notified local authorities of its intent to do so. The church wanted to do this because they were angry at the military for being tolerant of gays and Synder served in the military. Later on, Albert Synder filed a civil lawsuit against the church claiming intentional infliction of emotional distress. The district court protected Synder but the appeals court protected the church. Thus, it went to the supreme court to decide.

Define certiorari pool system -

in which clerks from the different chambers collaborate in reading and then writing memos on the petitions

Why did Holmes dissent in Abrams V. United States?

intent of imminent danger to bring about substantive evil the US can constitutionally seek to prevent. Holmes did not like that the court only looked at the intent versus looking at the degree of what could have happened as well.

What were the entanglement (factors) in the Lemon V. Kurtzman case?

interaction between the state and religion. Clear support for religion from the government.

Define appeal cases -

involve issues that congress has determined are so important that a ruling by the supreme court is necessary.

What was the purpose of the lemon test in Lemon V. Kurtzman?

it had a secular purpose so it was not involved with religion. So the funding had to go to nonreligious activities

What are the dissenting opinions in Bethel?

it is important that the students should know what is protected and what is not

When the student says something inappropriate that affects the process of learning that is when _________

it is not protected.

Who dissented in Everson and why?

justice Rutledge: he sees it as a violation because the state should not act with any church at all.

Who gave the majority opinion in Miller V. California?

justice burger

Define the dissenting opinion -

justice disagrees with the decision of the court/majority and they write the reasons why they disagree

Judicial review is the primary weapon that federal courts have to __________

keep the other branches of government in check.

Obscene is not protected because it is _________

lacking social value. Obscene material deals with sexual content that is used in a prurient manner.

Opinions in Criminal Law mostly interpret either the common _________

law or statutes. Finally, opinions in your Civil Procedure casebook will mostly interpret statutory law or the Constitution.

How does the court handle content and viewpoint discrimination?

laws regulating expression should be content and viewpoint neutral. It is not the government's role to evaluate expression based on the positions taken by the speaker. For example, a local ordinance that allows public gatherings for all groups expect those focusing on labor relations issues would be guilty of content discrimination. Viewpoint discrimination is an even more serious form of content-based regulation. A local government, for example, that permits demonstrations by pro-labor union groups but not anti-labor union organizations would violate the principle against viewpoint discrimination. Restrictions based on content or viewpoint are subject to strict judicial scrutiny and are unlikely to survive a court challenge.

How does the court handle vagueness?

legislatures must draft laws restricting freedom of expression with sufficient precision to give fair notice as to what is being regulated. If normally intelligent people have to guess what a statue means and are likely to come to different conclusions about what is prohibited by it, the statute is unconstitutionally vague

What are the facts of the Lemon V. Kurtzman case?

lemon brought a case again Kurtzman for using tax money to aid religious schools. The teachers had to only teach classes and materials that were being taught in public schools. They were not allowed to talk about religion.

Define legal consideration -

listed in rule 10 that grants the court to govern the certiorari decision-making process. Under this rule, it emphasizes conflict. For instance, this appeal is connected to another appeal. Or, when decisions of state courts of law collide with one another or the federal courts.

Like Jefferson, the court has never taken a ____________

literal approach to the free exercise clause.

What are appellate cases?

looks at whether the lower court made the wrong decision. The losing side brings up the court. The losing side is called the appellate and the winning side is considered as the appellee.

Define Sedition Act of 1798 -

made it where no one could write, print, utter, or publish malicious material that would defame the federal government, the president, or the members of congress

Define the smith act -

makes it a crime to teach or advocate an outlawed doctrine or to organize a group to teach or advocate that outlawed doctrine

The framers did not have the intention of ______

making obscenity an exception to the 1st amendment

Public safety interests become even more acute when the expression takes the form of a ________

mass demonstration rather than individual speech. To help maintain public order, local governments may require permits to hold mass demonstrations. Permits can not be denied in terms of the content. The permitting process gives local officials advance notice of mass gatherings, enabling them to ensure that public facilities are properly used.

Define obscene material -

material in which deals with sex in a manner of appealing to prurient interest.

After you have identified the source of law, you should next identify the ________

method of reasoning that the court used to justify its decision. When a case is governed by a statute, for example, the court usually will simply follow what the statute says. The court's role is narrow in such settings because the legislature has settled the law. Similarly, when past courts have already answered similar questions before, a court may conclude that it is required to reach a particular result because it is bound by the past precedents. This is an application of the judicial practice of "stare decisis," an abbreviation of a Latin phrase meaning "That which has been already decided should remain settled."

Define writ of certiorari -

most common appellate path. A grant of cert means that the justices have decided to give the case a full review; a denial means the decision of the lower court remains in force

Below the case name you will find some letters and numbers. These letters and numbers are the legal citation for the case. A citation tells you the ___________

name of the court that decided the case, the law book in which the opinion was published, and the year in which the court decided the case. For example, "U.S. Supreme Court, 485 U.S. 759 (1988)" refers to a U.S. Supreme Court case decided in 1988 that appears in Volume 485 of the United States Reports starting at page 759.

Since the mid-1970s another form of communication has come before the court, one that differs markedly from the traditional. Expression based on hatred goes well beyond __________

offending the standards of appropritory, and prejudicial attitudes toward another person's innate characteristics: sex, gender, race, ethnicity, religion, or sexual orientation. When directed at a member of a target group, such expression is demeaning and hurtful. Hate speech tends to be devoid of traditional commentary on political issues or on the need for changes in public policy. Instead, its central theme is hostility toward individuals belonging to the target group.

The supreme court is the ________

only court the constitution created

What is a civil dispute?

order money damages or order someone to do something. The person who brought up the case is called the plaintiff and the person responding is called the respondent. You do not have to have an attorney all the time in civil cases.

Cases involving a foreign diplomat or state government are an __________

original jurisdiction and go straight to the supreme court.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have _______

original jurisdiction.

Define appellant -

petitioner

Justices make the decisions the way they do because of two reasons:

political consideration and legal consideration

Although uncertainty plagued the Court's reasoning, obscenity case outcomes clearly expanded first amendment protections. The decisions result in an explosive release of sexual materials, thus making obscenity not only a legal issue but a _______

political one.

If the restrictions are before the speech is made, then the court is generally against __________

prior constraints. They prefer to rule on cases after the speech has been made.

Define the espionage act of 1917 -

prohibited any attempt to "interfere with the operation or success of the military or naval forces of the United States... to cause insubordination... in the military or naval forces...or willfully obstruct the recruiting or enlistment service of the United States.

Burger extended his analysis by adding an additional requirement in Walz which will be called the lemon test. Burger Ultimately concluded that _______

property tax exemptions did not create an excessive entanglement with religion.

Fighting words are not ________

protected because they are a threat to order

If a religion is not genuine or bona fide, it is not entitled to _________

protection under the religion clauses of the first amendment. Because the constitution does not define religion, the court has to. In an early attempt, Justice Stephen Field in 1890 wrote, "the term "religion" has reference to one's views of his relations to his creator, and to the obligations, they impose of reverence for his being and character, and of obedience to his will".

In Roth, the primary constitutional question is whether the federal obscenity statute violates the _______

provision of the first amendment.

In 1955, the US government obtained a 27 court indictment against Samuel Roth who ________

published and sold books, photographs, and magazines, for violating federal obscene laws.

To understand the reasoning of an opinion, you should first identify the _________

source of the law the judge applied. Some opinions interpret the Constitution, the founding charter of the government. Other cases interpret "statutes," which is a fancy name for written laws passed by legislative bodies such as Congress. Still other cases interpret "the common law," which is a term that usually refers to the body of prior case decisions that derive ultimately from pre-1776 English law that the Colonists brought over from England.

In an appeal, for example, the lawyer for the appellant will articulate __________

specific ways in which the lower court was wrong. The appellate court will then look at those arguments and either agree or disagree. (Now you can understand why people pay big bucks for top lawyers; the best lawyers are highly skilled at identifying and articulating their arguments to the court.) Because the lawyers take the lead role in framing the issues, you need to understand exactly what arguments the two sides were making.

Stateside of the ladder when it comes to cases:

state trial courts, intermediate appellate courts, state supreme courts, and US supreme courts.

The Schempp decision, following on the heels of Engel V. Vitale, set firmly in American jurisprudence the principle that ______

state-sponsored prayer in public schools violated the establishment clause.

What underlying principle did the court add after hearing the Texas V. Johnson case?

stated the government can not prohibit expression of an idea simply because it does not fit society's views.

Gitlow's effects on the development of civil liberties law are somewhat mixed. Perhaps the most enduring contribution of Gitlow is the ______

statement that for present purposes we may and do assume that freedom speech and of the press which is protected by the first amendment from abridgment by Congress are among the fundamental personal rights and liberties protected by the due process clause of the fourteenth amendment from impairment by the states. This sweeping incorporation vastly expanded constitutional guarantees for freedom of expression. The prohibition against infringing on the freedoms of speech and press now applied to state and local governments as well as the federal government.

The court normally accepts original cases if it is ______

states suing other states and sends it back to the lower courts

Constitutional rules trump ________

statutory (statute-based) rules, and statutory rules trump common law rules.

The US. supreme court not only upheld the Hicklin test but also ________

strengthened it. In Ex parte Jackson, the court upheld the Comstock act which made it a crime to end obscene materials such as abortion information and birth control through US mail.

What are the facts of the School district of Abington township v. Schempp Murray V. Curlett?

successful in persuading the court to strike down the recitation of state written prayers in school, separationist groups came back to challenge more common occurrences - reading from the bible and the recitation of the Lord's prayer. This dispute began in 1965 when Ellery, objected to the Bible reading that was conducted every day. This practice was mandated by a Pennsylvania law that required that at least 10 verses of prayer will be read every day. Those parents who did not want their children to participate could leave the room. When he was rejected to read he was suspended from school. In the Schempp case, the federal district court struck down the public school Bible reading and prayer recitation requirement, but the Maryland court of appeals upheld the practice in the Murrary case. The supreme court consolidated the two appeals into a single ruling.

Define case citation in a case -

tells you how to reference a case and which judge made a decision on the case. Precucum cases - no judge makes a decision.

What are the facts of the Engle v. Abington case?

the Pennsylvania schools held official prayer every morning but it was voluntary so if they did not want to attend they did not have to.

Why did the court find Abrams guilty?

they believed that if the words of the pamphlet were to attempt to defeat the war then it could cause harm. In this case, it was the defendant's intent to stop the war

What did the court find in the Dennis case?

the U.S. The Supreme Court on June 4, 1951, upheld the constitutionality of the Smith Act (1940), which made it a criminal offense to advocate the violent overthrow of the government or to organize or be a member of any group or society devoted to such advocacy.

Miller substantially changed the constitutional definition of obscenity. Although the court retained three important elements of the Roth test:

the adult standard, the work taken as a whole, and the restriction of obscenity to sexually oriented materials.

What did the new test in Roth move away from?

the child standard

Board of education V. Allen:

the concerned a New York state program that required local school authorities to purchase and then loan textbooks for free of charge to all children in grades 7-12. Religious books could not be distributed through the program. The supreme court upheld this program because when the purpose of the aid is secular and the primary effect of the aid neither advances nor inhibits religion, the program is likely to be constitutional.

What happened in Jacobellis V. Ohio?

the court considered the appeal of Nico Jacobellis, the manager of the movie theater, who had been charged by Ohio authorities with showing an obscene film. Brennan's decision is noteworthy for many reasons

What happened in Cohen V. California?

the court examined the use of a country courthouse as a forum for expression when the message is communicated in a way that many may find offensive. In April 1968, Cohen had entered a court room with a jacket that had stated, "**** the draft" and even though he had taken the jacket off before he had entered the court room, a police sergeant asked the judge to cite Cohen for contempt of the courtroom. The judge refused and the police office arrested him.

What happened in Wisconsin V. Mitchell?

the court upheld a four-year prison sentence on a man charged with aggravated battery because his victim was selected exclusively on the basis of racial hatred.

Article III of the constitution places three major constraints on the ability of federal tribunals to hear and decide cases:

the courts must have the authority to hear a case (jurisdiction), the case must be appropriate for judicial resolution (justiciability), and the appropriate party must bring the case (standing). Following is a brief review of the doctrine surrounding these constraints. Note in particular how fluid these can be: some courts tend toward loose constructions of the rules, while others are anxious to enforce them.

What are the facts of the United States v. O'Brien case?

the defendants had expressed their opposition to the war in Southeast Asia by publicly and illegally burning their draft cards. The agents had told O'Brien during questioning that he had violated the 1965 amendment to the selective service act of 1948 that made it illegal to destroy draft cards. He was convicted and received a sentence of six years. A federal appeals court however reversed the decision.

What were the facts of the Brandenburg case?

the defendants were charged with being a leader of the KKK and made a speech that broke one of Ohio's laws. They arrested him for wanting to lead a march on the fourth of July and going against patriotic actions. They had 12 guns and burned a cross in front of a black person's home as a scare tactic.

Why did Douglass dissent in the Miller case?

the difficulty is that there are no guidelines about obscenity in the constitution.

What were the dissenting opinions in the Johnson case?

the flag is not just a point of view that operates in the market. The flag is a symbol of the nation and it does not represent a certain party. Thus, burning the flag does not mean anything.

How does the government handle trespass?

the freedom of expression does not include the right to speak anywhere one wishes. A political campaign worker, for example, does not have the right to come into your home without permission and start campaigning.

How does the court view violence?

the government has authority to protect citizens from personal injury. If expression takes a violent form or incites others to violence, the government may regulate it.

How does the court handle property damage?

the government has legitimate interest in protecting private and public property from being destroyed or damaged. Antiwar protesters for example who express themselves by setting fire to a national guard armory have gone beyond their first amendment guarantees and can be arrested for their conduct

Who gave the dissenting opinion in the Van Orden V. Perry case?

the judgment of the court, in this case, stands for the proposition that the constitution permits governmental displays of sacred religious texts. This makes a mockery of the constitutional ideal that government must remain neutral between religion and irreligion. As well as, Justice Souter, Justice Stevens, and Justice Ginsburg dissenting opinion: "any citizen should be able to visit that monument without having to confront religious expressions.

Why did Douglass concur in Lemon V. Kurtzman?

the likelihood of entanglement

Define the majority opinion -

the main opinion of the court

What was the decision of the Van Orden V. Perry case?

the majority ruled that it did not violate the establishment clause.

Let us consider instead several issues arising from the way the court actually has exercised the power of judicial review:

the number of times it has invoked the power to strike laws and the significance of those decisions. Investigations of these issues can help us achieve a better understanding of the judicial review and place it in a realistic context.

Define legal opinion -

the outcome of the disagreement. Lays out the information of the case and which side won. The opinion is followed through with an explanation for why the judge ruled in favor of one side over the other. This brings up a lot of precedents which are the prior cases that back up the judge's decision.

Define judicial review -

the power of all federal courts to review acts passed by congress and actions of the president and executive branch to determine whether these acts are compatible with the constitution.

How does the court handle time, place, and manner restrictions?

the recognition of legitimate reasons for regulation has given rise to the court's time, place, and manner doctrine. By this standard the court acknowledges that the government has the authority to impose reasonable time, place, and manner restrictions on the freedom of expression. Therefore, the court would certainly uphold the arrest of demonstrators who gathered in the middle of an expressway or of political zealots who promoted their candidate by driving a sound truck through a residential area at 2:00 am.

Why does setting matter in the Tinker case?

the students are in a school and the principal believed that the armbands would disrupt the school environment.

What were the facts in Tinker?

the students were wearing armbands in order to demonstrate their opinions towards the Vietnam war. The principal thought that the armbands would be disruptive. Five of the kids continued to wear the armbands after the principal said not to, thus they got suspended. It did not lead to any violence. Some of the students did not respond nicely but they did not cause a fight.

What happened in Butler V. Michigan?

the supreme court responded by declaring unconstitutional a state statute that defined obscenity along Hicklin lines. The justices struck down the statute, finding fault with the child standard.

What happened in R.A.V. v. city of St. Paul?

the supreme court struck down a law that banned people from having certain symbols such as swastikas and burning crosses. The majority found the law defective because it was content-based and discriminated against on the basis of the viewpoint expressed.

Define the caption of the case -

the title of the case. Who is involved in the case. A civil dispute is when a party goes against another party. A criminal dispute is a government against the party.

The judicial power shall extend to all cases, in law and equity, arising under this constitution the laws of _________

the united states, and treaties made, or which shall be made, under their authority - to all cases affecting ambassadors, other public ministers, and consults - to all cases of admiralty and maritime jurisdiction - to controversies to which the united states shall be a party - to controversies between two or more States; between a state and citizens of another state; between citizens of different States; between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

What is a criminal dispute?

there is no plaintiff in criminal cases. They order fines or jail time.

Define imminent lawless action test -

these later decisions have fashioned the principle that the constitutional guarantees of free speech do not permit a state to forbid or proscribe advocacy of us of the force of law violation except where such advocacy is directed to inciting or producing imminent lawless action

You probably won't believe me at first, but concurrences and dissents are __________

very important. You need to read them carefully. To understand why, you need to appreciate that law is man-made, and Anglo-American law has often been judge-made. Learning to "think like a lawyer" often means learning to think like a judge, which means learning how to evaluate which rules and explanations are strong and which are weak. Courts occasionally say things that are silly, wrongheaded, or confused, and you need to think independently about what judges say.

When the US solicitor general (SG) files a petition, the court is _______

very likely to grant a cert because the federal government is the petitioning party.

At least 5 out of the 9 judges need to _______

vote yes for one side to win

What is the point of the concurrence for the Bethel case?

we still have protected conduct but the schools should have flexibility

The opinion explains _________

what the case is about, discusses the relevant legal principles, and then applies the law to the facts to reach a ruling in favor of one side and against the other.

What are the facts of the Cohen case?

when Cohen walked into court with a jacket that said: "**** the draft" on his jacket. He claimed that he wore the jacket to express his views on the draft. No fight broke out during this altercation. There was no actual threat to violence.

Define certification case -

when a lower court asks the supreme court to clarify the law.

Define recurring opinion -

when the justice agrees with the majority opinion but has some information to say about it

Define public forum -

where individuals can convey speech in public.

Define original jurisdiction -

where the supreme court is the first court to hear the case. Normally between two states

Where were the three prongs in the Miller case?

whether the average person will view this material as offensive if it describes the material as offensive by state law, whether the work as a whole lacks scientific and/or artistic value

Although the justices were badly divided in Roth V. United States, a majority of the justices in Roth supported a new standard articulated by Justice Brennan in his opinion of the court. Now known as the Roth test, Brennan's obscenity standard posed the following:

whether to the average person applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interests"

Lower courts started to test for obscene material this way: ___________

whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeal to prurient interest.

The next information is the name of the judge who wrote the opinion. The name tells you ________

which judge wrote that particular opinion. In older cases, the opinion often simply states a last name followed by the initial "J." No, judges don't all have the first initial "J." The letter stands for "Judge" or "Justice," depending on the court. On occasion, the opinion will use the Latin phrase "per curiam" instead of a judge's name. Per curiam means "by the court." It signals that the opinion reflects a common view among all the judges rather than the writings of a specific judge.

Define briefs -

written arguments

What O'Briens actions considered speech?

yes because he was expressing his opinions

What the strength of government interest in the O'Brien case substantial? (what might have made it so?)

yes because it affects how they were choosing individuals for the draft.

When can free expression threaten order?

you are balancing speech action and public order. When speech disrupts the order.