Holmes wrote "Clear and Present Danger"
i) Important Quote: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."
ii) No immediacy requirement.
leaflets out the window. Conviction upheld.
i) QUOTE, Holmes / Brandeis Dissent: ". . . that the best test of truth is the power of the though to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out" . . . "It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned."
(1) This brings an immediacy requirement to censorship. IS IT CLOSE TO ILEGAL ACTION?
Post cannot refuse to mail the leftist document.
i) QUOTE, Learned Hand: "If one stops short of urging upon others that it is their duty or their interest to resist the law, it seems to me one should not be held to have attempted to cause its violation."
(1) This is about counseling illegal action - not proximity to illegal action, not immediacy, but the direction of the statement.
Gitlow - facts
Leftist published "manifesto," convicted of violating state law.
Gitlow - quote / holding
i) QUOTE, Holmes Dissent: "The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. . . If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way."
(1) Rejects Hand's distinction b/ween incitement and espousal of idea.
woman published a doc, convicted under state law. Conviction upheld
i) QUOTE, Brandeis / Holmes Dissent: "1)Those who won out independence believe that the final end of the State was to make men free to develop their faculties; and 2) that in its government the deliberative forces should prevail over the arbitrary. The valued liberty both as an 1)end and a 2) means."
Brandenburg - holding
iii) New variation on "Clear and Present Danger" test (very speech protective):
(1) Speech must advocate imminent lawless action (not promotion of abstract ideology)(from J. Learned Hand in Masses Publishing, but that didn't have imminent requirement) AND
(2) Is likely to produce such action. (from Holmes / Brandeis Abrams dissent, Whitney concurrence, and Gitlow dissent.
Brandenburg - quote
Per Curium: "These later decisions have fashioned the principle 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 1) [Hand] directed to inciting or producing imminent lawless actions and 2) [Homes/ Brandeis] is likely to incite or produce such action."
Brandenburg - 1st Amend Overbreath
SCOTUS can't narrow the statute to make it comply with 1st amendment. Court doesn't apply Brandenburg test to Brandenburg. But b/c statute punishes some activity that 1st protects, entire statute struck down.
NYTimes v. Sullivan - options to reverse Alabama Courts
i) Many opition to reverse the Alabama Courts:
(1) Limit jurisdiction (only 25 papers in the Montgomery Area)
(2) Limit Damages
(3) Redefine Lible limitations
NYTimes v. Sullivan - holding / quote
ii) Like obscenity, contempt, advocacy of unlawful acts, libel "can claim no talismanic immunity from constitutional protections. It must be measured by standards that satisfy the [First Amendment]." No speech is absolutely immune from 1st amendment protection, even though c/l had established prohibitions against libel.
NYTimes v. Sullivan - erroneous falsehoods
iii) Erroneous falsehoods are protected b/c people need "breathing space" to argue and debate w/o worrying about miniscule falsehoods.
NYTimes v. Sullivan - new rule
False statements themselves cannot be grounds for liable against public officials, unless there is actual malice: 1) knowing falsehood, or 2) reckless disregard for truth of assertion.
(1) Here, they create new standard, and hold that the facts at trial do not meet the standard, and thus don't give Alabama courts a chance to apply the new standard.
NYTimes v. Sullivan - Black dissent
never liable for libel against public official.
NYTimes v. Sullivan - policy rationale
v) Decision rooted in framing of Constitution. Framers believed that sovereignty did not reside in just one place, but in the people in general. Thus, public officials need to be accepting of criticisms from the people, the soverign.
(1) Thus, cases that rely on NYTimes to hold that the standard applies to "public figues" (not in gov.) don't recognize this policy rationale.
Cohen v. California - simple holding
i) Speech only unprotected if falls in narrow category, but this does not fall into one of those categories:
(1) Obscenity - nudity, sexuality, none.
(2) Fighting Words - none.
(3) Advocacy of Action - none.
Cohen v. California - state arguments and responses
ii) State argues it is offensive to those around him.
(1) This is limited to personal, private spaces (home).
(2) Not to public places (central park).
(3) Here, courthouse is closer on spectrum to central park.
iii) State argues interest to maintain standards of political discourse.
(1) But you can't sever the form of discourse with substance. To regulate the form is to regulate the message, the content.
Cohen v. California dissent
iv) Dissent, Blackmun (with Black): This is action, not speech, not protected.
NY Times v. United States
i) Facts: Nixon Admin injunction on NY Times to stop pub of pentagon pape.
ii) Per Curium:
(1) Prior Restraint is biggest / most dangerouse restraint on speech. Gov. must meet high bar to defend injuntion. Here, not met.
(2) Plus, under Youngstown, needs to be clearly w/in Constitutional Authority if no statutory authorization, particularly when Congress rejected giving such authority in history of Espionage Act.
Morris v. Frederick
i) Wouldn't be criminal or civil liability. But school/student relationship has protections from 1st Amendment. Can't be too disruptive.
k) Beauharnais p. 824 ???? need to do?????
i) Libel against individuals or groups is not protectd speech, so the statute (prohibiting publishing depravity racist content) is constitutional.
a) The Post-Civil War Amendments - structure and content
i) 13th: No Slavery.
ii) 14th: No State can abridge Equal Protection under the law.
(1) Responding in part to Dred Scott, which suggested blacks can't be cit.
iii) 15th: Blacks can vote.
Civil Rights Cases - facts, 14th
Law provided for civil rights of blacks. Declared Uncnstnl.
i) 14th doesn't provide authority b/c private action is not state action.
(1) Harlan, dissent: "If the amendments be enforced, according to intent, there can't be a class of human beings in subjugation to another."
Civil Rights Cases - C. Clause, 13th, dissent.
Commerce Clause doesn't provide authority b/c Cong didn't intend it.
iii) 13th could authorize if discrimination considered a "badge or incident" of slavery. But this is simply not, taking that too far.
(1) Harlan, dissent: "anything that rests on inferiority of another is a badge of incidence of slavery."
Plessy v. Ferguson - facts / holding
i) Statute required two separate but equal rail cars.
ii) 14th requires equality, doesn't prohibit separation.
iii) Separation is permitted under state police power, the exercise of which must be reasonable, informed by traditions, mores, customs, thus preventing segregation based on arbitrary distinctions (ie: hair color).
Plessy v. Ferguson, dissent
iv) Harlan, Dissent: 14th prohibits this, due to its intent: "But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens."
(1) "Color blind" could frustrate affirmative action.
(2) But, rectify "caste system," could support it.
State Action - generally
i) State law or employee of state.
ii) Generally, private individual action not restricted by 14th Amendment: either equal protection or due process.
iii) State involvement / Public Function are Exceptions.
Burton v. Wilmington Parking Authority
(i) The state (city) operated parking garage needed rental spaces for paying back debt. State action b/c:
1. State owns facility (not enough on own)
2. Long term lease w/ coffee shop needed for financing.
3. Reciprocal advantage for coffee shop, b/c people want coffee after the drive.
(i) Racially discriminatory country club had liquor license, which P said was state involvement
(ii) Holding: not state action, no symbiotic relationship / mutual benefit like Burton.
(iii) Dissent: Only a few liquor licenses, state created liquor monopoly, black club won't get licenses.
Jackson v. Metropolitan Edison Co.
(due process case)
(i) Regulated utility not public function.
Marsh v. Alabama
(i) Company town disallows leafleting.
(ii) Quintessential public function, providing streets etc... thus via the 14th amendment bound by the bill of rights.
(iii) "Since its facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation."
(iv) There is right to speech / right to listen, read.
(i) You can protest in shopping centers, due to Marsh.
Hudgens v. NLRB
Overturned Logan - shopping center not state action.
Prunyard Shopping Center v. Robbins
(i) CA Constitution gave individuals right to free speech in shopping center.
(ii) Shopping center challenged this extended state right interfered with their 1st Amendment / 5th Amendment rights.
(iii) RULE: the extended state right cannot interfere with federally protected right.
(iv) (Tricky b/c being treated like a state, but its not this state and it has its own protected rights.)
WHITE PRIMARY CASES - public function cases
(i) Terry v. Adams - "Jaybird" Election Victor always gets Democratic primary - Court holds this was state action.
1. What if "Jaybird" was religious group, preventing non-religious voters? Could court decision stand w/o infringing on group's first amendment rights?
Shelly v. Kraemer
(a) Bucannan v. Warly - prohibited racially restrictive zoning.
(b) Here, private racially restrictive covenant, enforced by state court. The judicial enforcement makes it state action, citing other cases:
(i) All the other cases delt with enforcement of c/l, judge made rules (ie: no blacks on juries), here, court is enforcing a non-court-made-rule, but a private K.
Shelly v. Kraemer Problems
(i) State action to use police to kick out person from dinner party?
(ii) Testamentary will cases (religiously / racially restrictive conditions on inheritance) state action?
(d) How to read Shelly to avoid those problems.
(i) Limit to Goals of the 14th Amendment - only to help minorities.
(ii) Limit to cases with willing buyer / willing seller.
(iii) Limit to state action of public function of zoning.
(iv) Balance: who's rights are more important? In Shelly, Shelly's right to own prop greater than Kraemer right's under covenant. Homeowner's right to exclude greater than right to eat there.
Pearson v. Murray
White MD law school, w/ no black law school, is not equal.
Sweat v. Painter
new, Podunk law school for blacks.
(1) Tangibles not equal. (even if they were)...
(2) Intangible not equal - the prestige, alumni, network. Not equal.
state can't pay to send student to black school out of state.
McClearan v. Oklahoma State Regents
in school segregation is not equal b/c can't communicate with other students, an essential part of law school.
(1) But whites won't talk with him.
(2) Court can't influence that, but must stop state EP violation.
Brown v. Board - logic / holding
(1) Separate Education is not equal:
(a) Separation engenders inferiority.
(b) Dampens motivation.
(c) Retards education development.
(d) Thus, system gives blacks worse education, and unequal
Brown v. Board - Inside Problem
(a) Court uses date to strike down law.
(b) In past, court used data to uphold laws.
(c) (plus, this isn't hard science).
Brown v. Board -- Outside Problem
(a) Really only applies to schools. Rationale doesn't support idea that separation in trains is unequal, b/c doesn't retard goal of trails: transportation.
Way to avoid Brown problems #1
(a) Court could have applied an over-sweeping remedy. Like Miranda.
(i) Small right to not incriminate yourself. Big remedy of each police reading your rights.
(ii) Small right to equal education. Big remedy of nation-wide integration. (avoid school district by school district litigation over equality - racist judges in district courts).
Way to avoid Brown problems #2
(b) Charles Black: Court could have said seg for promot caste, EP written to elmiate caste. B/c seg = oppression,
(i) Warren didn't want to opinion attacking white power structure.
(ii) Better to focus on damage to black students, don't attack morals of whites.
Way to avoid Brown problems #3
(c) Focus on individual rights - dicta in Shelly: Equal protection of law not achieved through indiscriminate or equal imposition of inequalities.
Court delegates task of remedies to lower courts who will act "with all deliberate speed."
Bowling v. Sharp (reverse incorporation)
(1) Can't segregate in DC, federal schools.
(2) 5th Amendment - due process rights applicable to Fed. Gov.
(3) Due process rights of 5th include 14th amendment EP rights.
(4) Thus, under 5th Amendment, can't segregate in DC schools.
(1) School boards must create unified school districts.
(1) Outlined the creative techniques that could be used to achieve school integration.