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POLI 411 Midterm 2
Terms in this set (44)
Dennis v. US (1951)
Premise: American Communists were being punished b/c of Smith Act (can't teach people how to commit violence against government)
Dennis Argument: Challenged under free speech
US Argument: This is a major threat
SC Ruling: Does the gravity of the evil discounted w/ how likely it is warrant encroachment on free speech? Yes, this group is large enough threat.
Court has modified standard since then
Not content based
Brandenburg v. Ohio (1969)
Premise: Brandenburg led part of KKK and charged with violating OH version of Smith Act. Held a rally at farm and invited TV reporter there while mentioning harmful statements against blacks and Jews.
SC Ruling: No longer discount by probability, so the government can only limit speech if harm is considerable and almost certain.
Key Outcome: Current standard=must be intent and consequences
Not content based
Hess v. Indiana (1973)
Premise: Demonstration against Vietnam on IU campus which held up vehicular traffic. Hess advocated to take the street again after police moved people away and was arrested.
SC Ruling: Standard was not met--his words were not likely to produce imminent danger--also, his words didn't necessarily have intend and didn't incite any consequences
Not content based
Holder v. Humanitarian Law Project (2010)
Premise: Can we punish human rights group for advising terrorists on how to be lawful?
Holder Argument: Helping was the same as knowingly providing support, which is illegal
HLP Argument: Merely helping these groups peacefully resolve problems
SC Ruling: Speech is not the same as aiding a terrorist group--you can say that they shouldn't be violent, but actively helping them is illegal.
Not content based
Skokie v. National Socialist Party (1978)
Premise: Socialists wanted to parade through Skokie, a relatively Jewish town, wearing Nazi uniforms.
Skokie Argument: This is fighting words
SC Ruling: Allowed to march--many people hate the swastika, but just because people hate something doesn't mean it's not allowed. A planed march is not fighting words--people that go to the march would be looking for trouble. An unwarranted action would be fighting words.
R.A.V. v. St. Paul
Premise: Burnt cross on African American's lawn, which violated a law that said one could not use fighting words for race
SC Ruling: Law prohibit otherwise permitted speech only for certain groups. If one is anti-racist, they would be allowed, so the law would need to be a blanket law. Basically can't protect one group over another.
Dawson v. Delaware (1992)
Premise: Dawson murdered a homewoner during a burglary, but during the penalty phase of trial, state told jury that he joined the Aryan brotherhood in jail
Dawson Argument: Challenged death sentence saying that personal beliefs aren't relevant to the crime
SC Ruling: 1st Amendment was violated b/c beliefs have nothing to do with sentence
Wisconsin v. Mitchell (1993)
Premise: Can state punish racially motivated violence more harshly than other violence? Mitchell saw a movie and specifically wanted to hurt a white person, who he beat and sent into a coma. WI had a racial violence law--more time if racially motivated.
Mitchell Argument: 1st is violated because he gets extra time because of his beliefs.
SC Ruling: Motives behind crimes are always taken into account, and this is just discrimination--1st does not say you're allowed to discriminate. WI wins
Cohen v. California (1978)
Premise: Cohen wore a jacket w/ f the war on it into a courtroom. Arrested under state law that said offensive content that could lead to disturbing the peace was not allowed
Cohen Argument: No harm came from wearing the jacket
SC Ruling: Can't criminalize profanity merely b/c it is offensive; unless jacket produced harm, it's good
Matal v. Tam (2017)
Premise: Can government deny TM because of offensive language? The Slants wanted to TM their name, but slant is a slight against Asians.
Tam Argument: Band is trying to neutralize a derogatory term. Government is encroaching on free speech b/c gov was picking a band name
SC Ruling: Law singles out one viewpoint and places a burden on this idea--government can't just punish speech it doesn't like. Market acts as a deterrent, not gov.
Christian Legal Society v. Martinez (2012)
Premise: Can public univ's nondiscrimination policy apply to a student org that wants to discriminate? CLS wanted to disallow nonchristian behavior.
Martinez Argument: Not targeting CLS for beliefs, but just for equality
SC Ruling: University is not being hostile to CLS--the rule applies to all groups and there are alternate channels for the CLS to get their message out even if they are not a sanctioned group on campus
Regulations/punishment for speech unrelated to idea
Intermediate scrutiny--important goal and means must be more than rationally relate but not necessarily the least restrictive
Tinker v. Des Moines (1969)
Premise: Teens wore armbands to protest Vietnam War. School said all students that wore armbands would be suspended.
SC Ruling: Constitution still applies at school; since there was no disruption occurring, there is not significant justification to burden a specific idea
Ward v. Rock Against Racism (1989)
Premise: Use of a NYC amphitheater required a city sound technician to keep noise appropriate
RAR Argument: Their activity was being limited because they wanted louder music
SC Ruling: Law passes intermediate scrutiny because it applies to everyone
Texas v. Johnson (1989)
Premise: During protests, Johnson burned a flag, which was violation of TX law.
SC Ruling: Is there a sufficient governmental interest to regulate flag burning? Need to use strict scrutiny. Gov doesn't have important goal as it is seeking to protect only one viewpoint, so this content based regulation is not allowed.
Frye v. KC Police (2004)
Premise: Anti abortion protestors at a busy intersection held graphic signs. Motorists were nearly causing accidents and didn't want kids to see pictures.
SC Ruling: Intermediate scrutiny said the government was trying to protect accidents by telling protestors to move. Court says protestors were not punished because of their message, just because their conduct threatened public safety.
Virginia v. Black (2003)
Premise: Black, a KKK member, was punished for burning a cross w/ intent to intimidate b/c this is historically geared towards threatening African Americans. Klan rally was on private property.
Black Argument: That the judge told the jury that burning a cross is for intimidation is viewpoint-specific. They were simply burning the cross for themselves.
SC Ruling: VA can regulate cross burning because of its history but cannot assume that all cross burning is for intimidation.
NYT v. US (1971)
Premise: NYT began publishing excerpts about US role in Vietnam which they got from someone who wrote the papers
US Argument: This violated Espionage Act and threatened national security
SC Ruling: Governments has a heavy burden of proof of showing why prior restraint should occur and didn't meet this standard--immediate and specific damage was not shown by the government
US v. The Progressive (1979)
Premise: Progressive had author write a piece on nukes, and he was able to develop an article on hydrogen bombs. US law allowed the executive to stop certain pieces about nukes.
SC Ruling: US law was tailored narrow enough to make this okay.
NYT v. Sullivan (1964)
Premise: Law enforcement official claimed that NYT carried piece that said he mistreated protestors
SC Ruling: Standard=knowledge of falsehood or reckless disregard. in this case, state can't force paper to ensure everything is 100% correct because then nobody would publish anything.
Sullivan Standard=knowledge of falsehood or reckless disregard
Curtis Publishing v. Butts
Premise: Football coaches accused of working together to fix a game. Source (insurance salesman) told the paper and they reported it.
SC Ruling: Does Butts need to meet the Sullivan standard? Yes, this standard should include public persons. The paper did not meet this standard as they knew their source was not reliable and never asked for any verifying info.
NY v. Ferber (1982)
Premise: State of NY prohibited pictures of sexual acts of those under 18. Ferber sold video of two boys masturbating and was charged.
Ferber Argument: Violation of free press
SC Ruling: This is a compelling state interest and this law is narrow enough to get rid of the market
Ashcroft v. Free Speech Coalition (1982)
Premise: Any media that is/appears to be a minor doing sexually explicit conduct or even suggests it is not legal.
SC Ruling: Law is overreaching. There is no substantial interest in regulating films where children aren't actually human or under 18
Griswold v. CT (1965)
Premise: US passed law prohibiting sending obscene materials/devices related to contraception. CT prohibited contraceptive devices. Griswold opened a clinic that provided banned contraceptives.
Griswold Argument: State is preventing doctors from practicing medicine and restricting counseling of contraceptives was a violation of free expression and right to privacy
SC Ruling: Griswold allowed to run the clinic as there is a right to privacy. Can infer from explicit statements that the BoR is concerned with privacy OR 9th OR 14th.
Roe v. Wade (1973)
Premise: Abortion was up to the states, and Texas did not allow abortions unless in case of an emergency.
Roe Argument: Violation of privacy under the view that the BoR was clearly concerned with privacy.
SC Ruling: Abortion is a fundamental right and right to privacy was protected by the Due Process Clause. This set up the trimester theory
Planned Parenthood v. Casey (1992)
Premise: Clinics challenged PA law that imposed restrictions on abortion services. Law required a signed contract, husband had to approve, etc.
SC Ruling: As medicine advances, so do their decisions. State can prohibit abortions only at the point of viability. State can't impose an undue burden (reasonable v. not reasonable regulation), so the husband rule was invalidated, but the 24 hour was kept.
Gonzalez v. Carhart (2007)
Premise: Refers to partial birth abortion. Congress held hearings and determined it was never needed and banned it completely. Several doctors claimed this violated PP v. Casey
SC Ruling: Congress can do this. It furthers government objective to human life as it is similar to killing a newborn.
Schenck v. US (1919)
Premise: Schenck was member of Socialist Party and distributed flyers to resist the draft. US charged him w/ violation of Espionage Act b/c conspiring to obstruct and illegally using USPS
Schenck Argument: Law imposes criminal penalties for opposing government. There is a Constitutional difference between words and actions
US Argument: Conspiring to cause lawfully drafted men to resist is illegal
SC Ruling: Do the words create a clear and present danger? Maybe not in peacetime, but yes they do in wartime.
Key Outcome: Clear and present danger test
Abrams v. US (1919)
Premise: Russian immigrants distributed flyers urging people to reject capitalism. Charged with violation of Espionage Act.
Abrams Argument: Denunciation of government, even in wartime, is protected. If government can restrict speech in wartime, it can in peacetime, too.
US Argument: Congress can legislate acts of disloyalty in wartime. 1st not designed to protect libel in wartime.
SC Ruling: Not an attempt to bring change of government with candid discussion. Primary effect was paralysis of government.
Key Outcome: Bad tendency test--do the words have a tendency to bring about evil consequences?
Gitlow v. NY (1928)
Premise: Gitlow was arrested during NY raid on Communism. Charged with violating criminal anarchy law for distributing a pamphlet designed to overthrow capitalist system.
Gitlow Argument: Liberty in 14th Due Process protects speech and press. NY law not restricted to circumstances under which expressions cause immediate substantive evil.
NY Argument: Anarchy can be distinguished from expressing political beliefs. State can punish expression that endangers government even before it is immediate.
SC Ruling: Manifesto advocates and urges mass action to destroy organized government. Freedom of speech does not protect disturbances to the peace/attempts to subvert government.
Key Outcomes: Moved further from clear and present and closer to bad tendency
US v. O'Brien (1968)
Premise: O'Brien and others burned draft cards at court house. Arrested for doing so under law preventing destruction of cards.
SC Ruling: When speech and nonspeech are combined, government can regulate nonspeech with incidental burden to speech. SS cards serve a legitimate purpose, and there is no other reasonable alternative.
Key Outcome; Conduct used to express an idea does not always get protection.
Chaplinsky v. NH (1942)
Premise: Chaplinsky distributing Jehovah's Witness pamphlets, but a crowd complained to the city marshall. After someone tried to attack Chaplinsky, he was taken to city hall and was told to "shut up, you *
**". He used language back and was charged with breaking the law against using offensive words to others.
Chaplisnky Argument: Police unlawfully arrested him and no reason to believe speech lead to violence
NH Argument: Reasonable legislation to promote public order, doesn't violate free speech b/c conduct it prohibits doesn't cloud he truth
SC Ruling: Government can regulate fighting words; statute is narrow enough to punish specific behavior that would lead to breach of peach
Key Outcome: Fighting words not protected by 1st
McCullen v. Coakley (2014)
Premise: MA passed law forbidding standing outside reproductive care clinics. MuCullen prosecuted for pro-life counseling outside
SC Ruling: Public sidewalks have always been forum for discussion. Gov can impose restrictions if they are content-neutral and narrow, and this act is content neutral but MA has not shown they've tried to stop the issue in the past before simply banning everything.
Snyder v. Phelps (2011)
Premise: Westboro BC decided to picket Snyder's (Marine) funeral and notified authorities in advance. No picketer approached a mourner and there were no obstructions.
Snyder Argument: WBC speech had no rational connection to matter of public concern. WBC restricted free exercise of restriction
Phelps Argument: Expression concerned public issue and language was hyperbolic--nobody would think it's true
SC Ruling: Was speech public or private? This determines whether it is protected. Private speech is protected less. WBC signs (thank God for 9/11, etc.) are of public interest and just because they're near funeral doesn't make speech private. Protected because WBC was at public place with matter of public concern
US v. Alvarez (2012)
Premise: Alvarez was elected to a board and told them that he was a Marine with Medal of Honor, which were lies. He was indicted for violating Stolen Valor Act, which says it doesn't need to be a believed lie, it is never permissible
SC Ruling: Law is a content based restriction of free speech. Gov fails to demonstrate that this should be a new category of unprotected speech. The law is also way too broad.
Morse v. Frederick (2007)
Premise: School was outside watching Olympic Torch pass when Frederick lifted a sign that said "bong hits for teens". Morse suspended Frederick b/c of policy against advocating for illegal drugs.
SC Ruling: Reject argument that this is not school speech case. Message on banner is cryptic (means different things to different people), but Morse had a legit interpretation. Special characteristics of the school environment allow restriction of speech promoting drugs.
WV SBOE v. Barnette (1943)
Premise: SBOE required American flag be saluted with Pledge every day. Failure to comply results in expulsion.
SC Ruling: Compulsion occurs w/o a clear and present danger if one refuses. 14th protects citizens from states, and you can't force someone to do the actions.
Near v. Minnesota (1931)
Premise: MN law prohibited malicious/defamatory papers. Attorney tied to get Sunday Press, which associated Jews with crimes, banned
Near Argument: MN law violates freedom of the press by imposing limits prior to pub, and state can't prevent publication of something unless it's a breach of law
MN Argument: Law is narrow and right to free press doesn't extend to defamatory papers. State can restrict press that hurts safety and morals.
SC Ruling: State not justified by reason of showing that publishing is true and reasons are honest. Certain circumstances (war, violence, etc.) would warrant suppression. If state was justified, anyone would ask for true motive at any time.
Hazelwood School District v. Kuhlmeier (1988)
Premise: Spectrum newspaper published articles on teenage pregnancy and divorce. Principal took 2 pages out of the paper b/c readers could tell who people were
Hazelwood Argument: Paper is not a public forum but part of curriculum. Should be judged by reasonableness standard
Kuhlmeier Argument: Paper is limited public forum and should get all protections of 1st
SC Ruling: 1st not completely full at school in all cases. Spectrum was not explicitly designated as a public forum, so reasonable to censor. Principal acted reasonable and was concerned it wasn't anonymous enough. Principal could have concluded that students hadn't mastered curriculum.
Branzburg v. Hayes (1972)
Premise: Branzburg wrote 2 articles about drug dealers but changed names. He was subpoenaed by a grand jury but refused to answer questions.
Branzburg Argument: Forcing reporters to give up sources violates 1st. State needs direct/immediate damage
Hayes Argumnt: No special privilege for reporters in 1st
SC Ruling: Nothing to do with speech, nobody is required to say anything. Law enforcement is fundamental, and anonymity to evade capture is not covered.
Key Outcome: No reporters' privelege and led states to pass own privilege laws
Hustler Magazine v. Falwell (1988)
Premise: Hustler printed parody ads for Campori liquor which described Falwell in a sexual way. They printed fiction in small print at the bottom.
Hustler Argument: 1st protects hyperbole and opinion as long as they're not reckless an false. Parody of public figures has long been tradition. Actual malice requires false statements.
Falwell Argument: State interest in protecting citizens outweighs a deliberate character assasination.
SC Ruling: Can a public figure recover damages from emotional harm from repungent ad? Falwell's argument that the ad was outrageous is opinion, and the ad was not reasonably believable.
Brown v. Entertainment Merchants Association (2011)
Premise: CA prevented sale of violent video games to minors. EMA sued saying statute violated free speech.
Brown Argument: State has vital interest in reinforcing parents' authority. Science says these games are bad for minors
EMA Argument: Video games can't be censored w/o compelling justification, and nothing supports new regulation
SC Ruling: CA can't create new category of content-based regulation and must pass strict scrutiny, which it does not.
Reno v. ACLU (1997)
Premise: ACLU challenged part of Communications Decency Act--that prohibited minors from viewing obscenities even if they initiated
Reno Argument: Internet's potential for education would be wasted if people are in fear of persecution. No less burdensome way to do it.
ACLU Argument: Criminalizes broad range of protected indecent speech (not just porn). Not narrow because also restricts adult access. Indecent is vague.
SC Ruling: Internet isn't like TV--doesn't invade, hard to find things by mistake. Indecent and sexual activities are vague terms. CDA is not specificly tailored and silences those who would otherwise speak, so is not least restrictive.
Key Outcome: Internet regulated closer to print than broadcast
US v. Williams (2008)
Premise: US passed PROTECT which prohibited advertising/promoting/distributing material that causes another to believe it is child porn. Williams was caught in an internet chat room with hyperlink to child porn and they raided his home.
US Argument: Congress can ban simulated child porn. State is not overboard unless it infringes on speech to an impermissible degree.
Williams Argument: PROTECT is overboard b/c it criminalizes bragging about child and because it captures noninciting speech. Also vague.
SC Ruling: To be overboard, must be substantially so. Punishment in this case is allowed.
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