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Constitutional Law: Freedom of Speech and Press Cases

Important Supreme Court case decisions related to the freedom of speech and press.
Schenck v. United States (1919)
Facts: During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment.
Question: Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment?
Decision: 9 votes for United States, 0 vote(s) against
Legal provision: 1917 Espionage Act; US Const Amend 1
Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. The character of every act depends on the circumstances. "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." During wartime, utterances tolerable in peacetime can be punished.
Abrams v. United States (1919)
Facts: The defendants were convicted on the basis of two leaflets they printed and threw from windows of a building. One leaflet signed "revolutionists" denounced the sending of American troops to Russia. The second leaflet, written in Yiddish, denounced the war and US efforts to impede the Russian Revolution. The defendants were charged and convicted for inciting resistance to the war effort and for urging curtailment of production of essential war material. They were sentenced to 20 years in prison.
Question: Do the amendments to the Espionage Act or the application of those amendments in this case violate the free speech clause of the First Amendment?
Conclusion: No and no. The act's amendments are constitutional and the defendants' convictions are affirmed. In Clarke's majority opinion, the leaflets are an appeal to violent revolution, a call for a general strike, and an attempt to curtail production of munitions. The leaflets had a tendency to encourage war resistance and to curtail war production. Holmes and Brandeis dissented on narrow ground: the necessary intent had not been shown. These views were to become a classic libertarian pronouncement.
Bad Tendency Test
In U.S. law, the bad tendency principle is a test which permits restriction of freedom of speech by government if it is believed that a form of speech has a sole tendency to incite or cause illegal activity. The principle, formulated in Patterson v. Colorado, (1907) was seemingly overturned with the "clear and present danger" principle used in the landmark case Schenck v. United States (1919), as stated by Justice Oliver Wendell Holmes, Jr.. Yet eight months later, at the start of the next Term, in Abrams v. United States (1919), the Court again used the bad tendency test to uphold the conviction of a Russian immigrant who published and distributed leaflets calling for a general strike and otherwise advocated revolutionary, anarchist, and socialist views. Holmes dissented in Abrams explaining how the clear and present danger test should be employed to overturn Abrams' conviction. The arrival of the "bad tendency" test resulted in a string of politically incorrect rulings such as Whitney v. California (1927), where a woman was convicted simply because of her association with the Communist Party. The court ruled unanimously that although she had not committed any crimes, her relationship with the Communists represented a "bad tendency" and thus was unprotected. The "bad tendency" test was finally overturned in Brandenburg v. Ohio (1969) and was replaced by the "imminent lawless action" test.
Gitlow v. New York (1925)
Facts: Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterences without propensity to incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law.
Question: Is the New York law punishing advocacy to overthrow the government by force an unconstitutional violation of the free speech clause of the First Amendment?
Conclusion: Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment). On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all.
Whitney v. California (1927)
Facts: Charlotte Anita Whitney, a member of the Communist Labor Party of California, was prosecuted under that state's Criminal Syndicalism Act. The Act prohibited advocating, teaching, or aiding the commission of a crime, including "terrorism as a means of accomplishing a change in industrial ownership. . .or effecting any political change."
Question: Did the Criminal Syndicalism Act violate the First or Fourteenth Amendments?
Conclusion: In a unanimous decision, the Court sustained Whitney's conviction and held that the Act did not violate the Constitution. The Court found that the Act violated neither the Due Process Clause nor the Equal Protection Clause, and that freedom of speech guaranteed by the First Amendment was not an absolute right. The Court argued "that a State. . .may punish those who abuse this freedom by utterances. . .tending to. . .endanger the foundations of organized government and threaten its overthrow by unlawful means" and was not open to question. The decision is most notable for the concurring opinion written by Justice Brandeis, in which he argued that only clear, present, and imminent threats of "serious evils" could justify suppression of speech.
Stromberg v. California (1931)
"[T]he appellant... was one of the supervisors of a summer camp for children... She was a member of the Young Communist League, an international organization affiliated with the Communist Party. The charge against her concerned a daily ceremony at the camp, in which the appellant supervised and directed the children in raising a red flag, 'a camp-made reproduction of the flag of Soviet Russia, which was also the flag of the Communist Party in the United States."
Appellant was convicted in the superior court per the terms of Section 403a of the Penal Code of the State of California for "willfully, unlawfully and feloniously displaying a red flag and banner in a public place and in a meeting place as a sign, symbol and emblem of opposition to organized government and as an invitation and stimulus to anarchistic action and as an aid to propaganda that is and was of a seditious character." Appellant argued "that, under the Fourteenth Amendment, the statute was invalid as being 'an unwarranted limitation on the right of free speech.'"
The District Court affirmed the superior court's judgment and on appeal the US Supreme Court reversed the District Court's judgment.
Conclusion: Section 403a states in part that anyone who displays a red flag, banner or badge in any public place "as a sign, symbol or emblem of opposition to organized government or as an invitation or stimulus to anarchistic action or as an aid to propaganda that is of a seditious character is guilty of a felony."
The state court held that "[t]he constitutionality of the phrase of this section, 'of opposition to organized government,' is questionable... The section is complete without it... Accordingly, disregarding the first clause of the statute, and upholding the other clauses, the conviction of the appellant was sustained. We are unable to agree with this disposition of the case. The verdict against the appellant... did not specify the ground upon which it rested... [I]t is impossible to say under which clause of the statute the conviction was obtained...
The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, [is] an opportunity essential to the security of the Republic [and] a fundamental principle of our constitutional system. A statute which upon its face, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment."
The US Supreme Court reversed the District Court's judgment.
DeJonge v. Oregon (1937)
Facts: On July 27, 1934, at a meeting held by the Communist Party, Dirk De Jonge addressed the audience regarding jail conditions in the county and a maritime strike in progress in Portland. While the meeting was in progress, police raided it. De Jonge was arrested and charged with violating the State's criminal syndicalism statute. The law defines criminal syndicalism as "the doctrine which advocates crime, physical violence, sabotage or any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution." After being convicted, De Jonge moved for an acquittal, arguing that the evidence was insufficient to warrant his conviction. Disagreeing, the State Supreme Court distinguished that the indictment did not charge De Jonge with criminal syndicalism, but rather that he presided at, conducted and assisted in conducting an assemblage of persons, organization, society and group called by the Communist Party, which was unlawfully teaching and advocating in Multnomah county the doctrine of criminal syndicalism and sabotage.
Question: Does Oregon's criminal syndicalism statute violate the due process clause of the Fourteenth Amendment?
Conclusion: Yes. In an opinion delivered by Chief Justice Charles E. Hughes, the Court held that the Oregon statute, as applied, violated the due process clause of the Fourteenth Amendment. After reviewing the record, the Court determined that De Jonge's sole offense was assisting in a public meeting held under the auspices of the Communist Party. The Court reasoned that to preserve the rights of free speech and peaceable assembly - principles embodied in the Fourteenth Amendment - not the auspices under which a meeting is held, but the purpose of the meeting and whether the speakers' remarks transcend the bounds of freedom of speech must be examined, which had not occurred in De Jonge's case. Justice Harlan Fiske Stone took no part in the consideration or decision of the case.
Schneider v. State of New Jersey (Town of Irvington) (1939)
Facts: Municipal codes in four cities across the United States--Milwaukee, WI, Los Angeles, CA, Worchester, MA, and Irvington, NJ--banned hand-to-hand distribution of pamphlets in public places and private residences. Defendants convicted of violating these ordinances in each city argued that the ordinances were invalidated by the fundamental constitutional protection of free speech. The cities argued that the bans upheld their municipal prerogative to keep streets clean and reduce littering. Upon appeal in each case, the Supreme Court consolidated the four.
Question: Do the interests of cities in reducing littering justify encroachments upon the First Amendment by banning the hand-to-hand distribution of pamphlets in public places and private residences?
Conclusion: No. Justice Owen J. Roberts delivered the opinion of a unanimous court. The First Amendment right to free speech was fundamental and substantially impaired by the bans against distributing pamphlets. The burden on cities of upholding First Amendment free speech outweighed the burdens of cleaning up litter caused by hand-to-hand pamphleteering. The cities could regulate dishonest pamphleteering and legislate in order to keep streets freely accessible, but could not outlaw one citizen's attempt to impart information to another citizen through the means of passing out written documents.
Thomas v. Collins (1945)
Facts: A Texas law required union officials to obtain an organizer's card before soliciting possible members. A judge convicted a labor organizer of contempt for speaking at a union rally without a permit.
Question: Does the Texas law requiring labor organizers to secure permission to solicit members violate the Free Speech Clause of the First Amendment?
Conclusion: Yes, the law was unconstitutional. It interfered with freedom of speech and freedom of assembly which possesses "a sanctity and a sanction not permitting dubious intrusions."
Dennis v. United States (1951)
Facts: Raymond Dennis and others were members of the Communist Party; they were also officers and members of the International Union of Mine, Mill, and Smelter Workers. They filed false affidavits between 1949 and 1955 to satisfy the stipulations of 9(h) of the National Labor Relations Act as amended by the Taft-Hartley Act, which required all union officers to submit non-Communist affidavits. The union officials retained their Communist Party affiliations, filed the affidavits, and enabled the union to use the services of the National Labor Relations Board. The union officers were indicted by the United States District Court for conspiracy to fraudulently obtain the services of the National Labor Relations Board.
Question: Does the indictment charge a conspiracy to defraud the United States Government consistent with 18 U.S.C. 371? 2. Is section 9(h) of the Taft- Hartley Act a bill of attainder in violation of Article I, Section 9, Clause 3 of the U.S. Constitution? 3. Did the trial court err in denying the defense's request for access to grand jury testimony of prosecution witnesses or in camera inspection of the testimony?
Conclusion: Yes, not addressed, and yes. In a 7-2 decision, the Supreme Court held that the indictment properly charged a conspiracy to defraud the United States Government under 18 U.S.C. 371. The majority opinion, authored by Justice Abe Fortas, argued that the conspiracy of filing the false affidavits was intentional and that the events of filing the affidavits and using the NLRB facilities together were a "concert of action" with the purpose of defrauding the Government. The Court refused to hear the question of the constitutionality of 9(h) as the union officers' attempt was to circumvent the law. The relevant standard, according to Fortas, is that the Court will not hear a constitutionality claim to supplant a "voluntary, deliberate, and calculated course of fraud and deceit," as conspiracy to defraud is not an appropriate way to challenge acts of government. The Court also held that the defense should have been allowed access to the grand jury minutes containing the prosecution witnesses' testimonies with an opportunity to question the witnesses regarding their statements. The majority opinion maintained that the union officers exceeded the particularized need standard that is used to evaluate access to grand jury testimony, and thus access should have been granted to the defense, especially as an evaluation is best made by a defense advocate and not a trial judge during in-camera inspection. Justices William O. Douglas and Hugo L. Black joined this part of the majority opinion but dissented from the remainder. The Court reversed the district court's judgment and remanded the case for a new trial.
Brandenburg v. Ohio (1969)
Facts: Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."
Question: Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments?
Conclusion: Amendment 1: Speech, Press, and Assembly
The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.
Preferred Freedom
"There may be a narrower scope for operations of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments."- Douglas, Stone, Rutledge
"The first amendment, its prohibition is in terms absolute, was designed to preclude courts as well as legislatures from weighing values of speech against silence."- Black, Douglas
Clear and Probable Danger
"Whether the gravity of the "evil," discounted by its improbability, justifies such an invasion of free speech as is necessary to avoid danger."- Vinson
Ad Hoc Balancing
"On a case by case basis, the government's interest in regulation is weighed against the individual's interest in expression. Because the legislative process naturally involves a consideration of a wide range of societal interests, the courts normally defer to the government and presume that the regulation is valid."- Frankfurter, Harlan
Clear and Present Danger Test
"Whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent."- Holmes, Brandeis
United States v. O'Brien (1968)
Facts: David O'Brien burned his draft card at a Boston courthouse. He said he was expressing his opposition to war. He was convicted under a federal law that made the destruction or mutilation of drafts card a crime.
Question: Was the law an unconstitutional infringement of O'Brien's freedom of speech?
Conclusion: Selective Service, Military Selective Service, or Universal Military Service and Training Acts
No. The 7-to-1 majority, speaking through Chief Justice Earl Warren, established a test to determine whether governmental regulation involving symbolic speech was justified. The formula examines whether the regulation is unrelated to content and narrowly tailored to achieve the government's interest. "[W]e think it clear," wrote Warren," that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidential restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest."
Texas v. Johnson (1989)
Facts: In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court.
Question: Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?
Conclusion: In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment. The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."
Chaplinsky v. New Hampshire (1942)
Facts: Chaplinsky, a Jehovah's Witness, called a city marshal a "God-d*mned racketeer" and "a d-mned fascist" in a public place. He was arrested and convicted under a state law for violating a breach of the peace.
Question: Does the application of the statute violate Chaplinsky's freedom of speech protected by the First Amendment?
Conclusion: No. Some forms of expression--among them obscenity and fighting words--do not convey ideas and thus are not subject to First Amendment protection. In this case, Chaplinsky uttered fighting words, i.e., words that "inflict injury or tend to incite an immediate breach of the peace."
Cohen v. California (1971)
Fact: A 19-year-old department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with "F-CK THE DRAFT. STOP THE WAR" The young man, Paul Cohen, was charged under a California statute that prohibits "maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct." Cohen was found guilty and sentenced to 30 days in jail.
Question: Did California's statute, prohibiting the display of offensive messages such as "F-ck the Draft," violate freedom of expression as protected by the First Amendment?
Conclusion: Yes. In an opinion by Justice John Marshall Harlan, the Court reasoned that the expletive, while provocative, was not directed toward anyone; besides, there was no evidence that people in substantial numbers would be provoked into some kind of physical action by the words on his jacket. Harlan recognized that "one man's vulgarity is another's lyric." In doing so, the Court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas).
Edwards v. South Carolina (1963)
Facts: The 187 petitioners in this case, all of whom were black, organized a march to the South Carolina State House grounds in which small groups of fifteen would walk in an open public area protesting the policies of segregation in their state. The march was peaceful, did not block pedestrian or vehicular traffic, and was conducted in an orderly fashion on public property. A group of approximately thirty police officers confronted the group and ordered its members to disperse or to submit to arrest. The marchers did not disperse, and instead began singing religious and patriotic songs like the Star Spangled Banner. They were arrested and later convicted on a charge of breach of the peace.
Question: Did the arrests and convictions of the marchers violate their freedom of speech, assembly, and petition for redress of their grievances as protected by the First and Fourteenth Amendments?
Conclusion: Yes. The Court held that the arrests and convictions violated the rights of the marchers. They were convicted of an offense which the South Carolina Supreme Court, in upholding the convictions, described as "not susceptible of exact definition." The evidence used to prosecute the marchers did not even remotely prove that their actions were violent. Hence, Justice Stewart found clear constitutional violations in this case. Stewart called the marchers' actions an exercise of First Amendment rights "in their most pristine and classic form" and emphasized that a state cannot "make criminal the peaceful expression of unpopular views" as South Carolina attempted to do here.
Adderley v. Florida
Facts: Harriet Louise Adderley and a group of approximately 200 others assembled in a non-public jail driveway to protest the arrests of fellow students and the state and local policies of racial segregation which included segregation in jails. Adderley and thirty-one others were convicted in a Florida court on a charge of "trespass with a malicious and mischievous intent" for their refusal to leave the driveway when requested to do so.
Question: Were the petitioners denied their rights of free speech, assembly, petition, due process of law and equal protection of the laws as guaranteed by the First and Fourteenth Amendments?
Conclusion: The Court found that there were no constitutional violations in this case. The language of the Florida statute was clearly defined and applied, argued Justice Black, which prevented it from imposing broad infringements on speech and expression rights. Furthermore, since the sheriff acted to maintain access to the jail house and not because he "objected to what was being sung . . . or disagreed with the objectives of the protest," there were no First Amendment violations. Black concluded that the state does have the power to control its own property for lawful, nondiscriminatory purposes.
Hill v. Colorado (2000)
Facts: A Colorado statute makes it unlawful for any person within 100 feet of a health care facility's entrance to "knowingly approach" within 8 feet of another person, without that person's consent, in order to pass "a leaflet or handbill to, display a sign to, or engage in oral protest, education, or counseling with [that] person...." Leila Hill and others, sidewalk counselors who offer abortion alternatives to women entering abortion clinics, sought to enjoin the statute's enforcement in state court, claiming violations of their First Amendment free speech rights and right to a free press. In dismissing the complaint, the trial court held that the statute imposed content-neutral time, place, and manner restrictions narrowly tailored to serve a significant government interest and left open ample alternative channels of communication. The Colorado Court of Appeals affirmed, and the Colorado Supreme Court denied review. The U.S. Supreme Court vacated that judgment after holding that a provision creating a speech-free floating buffer zone with a 15-foot radius violated the First Amendment. On remand, the Colorado Court of Appeals reinstated its judgment. In affirming, the Colorado Supreme Court reiterated the lower court's conclusions. The court concluded that the statute struck a proper balance between a person's right to protest and a person's right to medical treatment.
Question: Does Colorado's statutory requirement that speakers obtain consent from people within 100 feet of a health care facility's entrance before speaking, displaying signs, or distributing leaflets to such people violate the First Amendment rights of the speaker?
Conclusion: No. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the Colorado statute's restrictions on speech-related conduct are constitutional. The Court concluded that the statute "is not a regulation of speech. Rather, it is a regulation of the places where some speech may occur." "Although the statute prohibits speakers from approaching unwilling listeners, it does not require a standing speaker to move away from anyone passing by. Nor does it place any restriction on the content of any message that anyone may wish to communicate to anyone else, either inside or outside the regulated areas. It does, however, make it more difficult to give unwanted advice, particularly in the form of a handbill or leaflet, to persons entering or leaving medical facilities," Justice Stevens wrote for the Court. "The unwilling listener's interest in avoiding unwanted communication has been repeatedly identified in our cases." Justices Antonin Scalia, Clarence Thomas, and Anthony M. Kennedy dissented.
R.A.V. v. City of St.Paul, Minnesota (1992)
Facts: Several teenagers allegedly burned a crudely fashioned cross on a black family's lawn. The police charged one of the teens under a local bias- motivated criminal ordinance which prohibits the display of a symbol which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The trial court dismissed this charge. The state supreme court reversed. R.A.V. appealed to the U.S. Supreme Court.
Question: Is the ordinance overly broad and impermissibly content-based in violation of the First Amendment free speech clause?
Conclusion: Yes. In a 9-to-0 vote, the justices held the ordinance invalid on its face because "it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses." The First Amendment prevents government from punishing speech and expressive conduct because it disapproves of the ideas expressed. Under the ordinance, for example, one could hold up a sign declaring all anti-semites are bastards but not that all Jews are bastards. Government has no authority "to license one side of a debate to fight freestyle, while requiring the other to follow the Marquis of Queensbury Rules."
Snyder v. Phelps (2011)
Facts: The family of deceased Marine Lance Cpl. Matthew Snyder filed a lawsuit against members of the Westboro Baptist Church who picketed at his funeral. The family accused the church and its founders of defamation, invasion of privacy and the intentional infliction of emotional distress for displaying signs that said, "Thank God for dead soldiers" and "*** troops" at Snyder's funeral. U.S. District Judge Richard Bennett awarded the family $5 million in damages, but the U.S. Court of Appeals for the Fourth Circuit held that the judgment violated the First Amendment's protections on religious expression. The church members' speech is protected, "notwithstanding the distasteful and repugnant nature of the words."
Question: Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased?
Conclusion: Yes. The Supreme Court affirmed the lower court's decision in an opinion by Chief Justice John G. Roberts, Jr. The Court held that the First Amendment shields those who stage a protest at the funeral of a military service member from liability. Justice Stephen J. Breyer filed a concurring opinion in which he wrote that while he agreed with the majority's conclusion in the case, "I do not believe that our First Amendment analysis can stop at that point." Justice Samuel Alito filed a lone dissent, in which he argued: "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case."
Tinker v. Des Moines Independent Community School District (1969)
Facts: In December 1965, a group of students in Des Moines held a meeting in the home of 16-year-old Christopher Eckhardt to plan a public showing of their support for a truce in the Vietnam war. They decided to wear black armbands throughout the holiday season and to fast on December 16 and New Year's Eve. The principals of the Des Moines school learned of the plan and met on December 14 to create a policy that stated that any student wearing an armband would be asked to remove it, with refusal to do so resulting in suspension. On December 16, Mary Beth Tinker and Christopher Eckhardt wore their armbands to school and were sent home. The following day, John Tinker did the same with the same result. The students did not return to school until after New Year's Day, the planned end of the protest. Through their parents, the students sued the school district for violating the students' right of expression and sought an injunction to prevent the school district from disciplining the students. The district court dismissed the case and held that the school district's actions were reasonable to uphold school discipline. The U.S. Court of Appeals for the Eighth Circuit affirmed the decision without opinion.
Question: Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the students' freedom of speech protections guaranteed by the First Amendment?
Conclusion: Yes. Justice Abe Fortas delivered the opinion of the 7-2 majority. The Supreme Court held that the armbands represented pure speech that is entirely separate from the actions or conduct of those participating in it. The Court also held that the students did not lose their First Amendment rights to freedom of speech when they stepped onto school property. In order to justify the suppression of speech, the school officials must be able to prove that the conduct in question would "materially and substantially interfere" with the operation of the school. In this case, the school district's actions evidently stemmed from a fear of possible disruption rather than any actual interference.
In his concurring opinion, Justice Potter Stewart wrote that children are not necessarily guaranteed the full extent of First Amendment rights. Justice Byron R. White wrote a separate concurring opinion in which he noted that the majority's opinion relies on a distinction between communication through words and communication through action.
Justice Hugo L. Black wrote a dissenting opinion in which he argued that the First Amendment does not provide the right to express any opinion at any time. Because the appearance of the armbands distracted students from their work, they detracted from the ability of the school officials to perform their duties, so the school district was well within its rights to discipline the students. In his separate dissent, Justice John M. Harlan argued that school officials should be afforded wide authority to maintain order unless their actions can be proven to stem from a motivation other than a legitimate school interest.
Morse v. Frederick (2007)
Facts: At a school-supervised event, Joseph Frederick held up a banner with the message "Bong Hits 4 Jesus," a slang reference to marijuana smoking. Principal Deborah Morse took away the banner and suspended Frederick for ten days. She justified her actions by citing the school's policy against the display of material that promotes the use of illegal drugs. Frederick sued under 42 U.S.C. 1983, the federal civil rights statute, alleging a violation of his First Amendment right to freedom of speech. The District Court found no constitutional violation and ruled in favor of Morse. The court held that even if there were a violation, the principal had qualified immunity from lawsuit. The U.S. Court of Appeals for the Ninth Circuit reversed. The Ninth Circuit cited Tinker v. Des Moines Independent Community School District, which extended First Amendment protection to student speech except where the speech would cause a disturbance. Because Frederick was punished for his message rather than for any disturbance, the Circuit Court ruled, the punishment was unconstitutional. Furthermore, the principal had no qualified immunity, because any reasonable principal would have known that Morse's actions were unlawful.
Question: 1) Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events?
2) Does a school official have qualified immunity from a damages lawsuit under 42 U.S.C. 1983 when, in accordance with school policy, she disciplines a student for displaying a banner with a drug reference at a school-supervised event?
Conclusion: Yes and not reached. The Court reversed the Ninth Circuit by a 5-4 vote, ruling that school officials can prohibit students from displaying messages that promote illegal drug use. Chief Justice John Roberts's majority opinion held that although students do have some right to political speech even while in school, this right does not extend to pro-drug messages that may undermine the school's important mission to discourage drug use. The majority held that Frederick's message, though "cryptic," was reasonably interpreted as promoting marijuana use - equivalent to "[Take] bong hits" or "bong hits [are a good thing]." In ruling for Morse, the Court affirmed that the speech rights of public school students are not as extensive as those adults normally enjoy, and that the highly protective standard set by Tinker would not always be applied. In concurring opinions, Justice Thomas expressed his view that the right to free speech does not apply to students and his wish to see Tinker overturned altogether, while Justice Alito stressed that the decision applied only to pro-drug messages and not to broader political speech. The dissent conceded that the principal should have had immunity from the lawsuit, but argued that the majority opinion was "[...] deaf to the constitutional imperative to permit unfettered debate, even among high-school students [...]."
West Virginia State Board of Education v. Barnette (1943)
Facts: The West Virginia Board of Education required that the flag salute be part of the program of activities in all public schools. All teachers and pupils were required to honor the Flag; refusal to salute was treated as "insubordination" and was punishable by expulsion and charges of delinquency.
Question: Did the compulsory flag-salute for public schoolchildren violate the First Amendment?
Conclusion: In a 6-to-3 decision, the Court overruled its decision in Minersville School District v. Gobitis and held that compelling public schoolchildren to salute the flag was unconstitutional. The Court found that such a salute was a form of utterance and was a means of communicating ideas. "Compulsory unification of opinion," the Court held, was doomed to failure and was antithetical to First Amendment values. Writing for the majority, Justice Jackson argued that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
Boy Scouts of America v. Dale (2000)
Facts: The Boy Scouts of America revoked former Eagle Scout and assistant scoutmaster James Dale's adult membership when the organization discovered that Dale was a homosexual and a gay rights activist. In 1992, Dale filed suit against the Boy Scouts, alleging that the Boy Scouts had violated the New Jersey statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation. The Boy Scouts, a private, not-for-profit organization, asserted that homosexual conduct was inconsistent with the values it was attempting to instill in young people. The New Jersey Superior Court held that New Jersey's public accommodations law was inapplicable because the Boy Scouts was not a place of public accommodation. The court also concluded that the Boy Scouts' First Amendment freedom of expressive association prevented the government from forcing the Boy Scouts to accept Dale as an adult leader. The court's Appellate Division held that New Jersey's public accommodations law applied to the Boy Scouts because of its broad-based membership solicitation and its connections with various public entities, and that the Boy Scouts violated it by revoking Dale's membership based on his homosexuality. The court rejected the Boy Scouts' federal constitutional claims. The New Jersey Supreme Court affirmed. The court held that application of New Jersey's public accommodations law did not violate the Boy Scouts' First Amendment right of expressive association because Dale's inclusion would not significantly affect members' abilities to carry out their purpose. Furthermore, the court concluded that reinstating Dale did not compel the Boy Scouts to express any message.
Question: Does the application of New Jersey's public accommodations law violate the Boy Scouts' First Amendment right of expressive association to bar homosexuals from serving as troop leaders?
Conclusion: Yes. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held that "applying New Jersey's public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts' First Amendment right of expressive association." In effect, the ruling gives the Boy Scouts of America a constitutional right to bar homosexuals from serving as troop leaders. Chief Justice Rehnquist wrote for the Court that, "[t]he Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill," and that a gay troop leader's presence "would, at the very least, force the organization to send a message, both to the young members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.
Roberts v. United States Jaycees (1984)
Facts: According to its bylaws, membership in the United States Jaycees was limited to males between the ages of eighteen and thirty-five. Females and older males were limited to associate membership in which they were prevented from voting or holding local or national office. Two chapters of the Jaycees in Minnesota, contrary to the bylaws, admitted women as full members. When the national organization revoked the chapters' licenses, they filed a discrimination claim under a Minnesota anti-discrimination law. The national organization brought a lawsuit against Kathryn Roberts of the Minnesota Department of Human Rights, who was responsible for the enforcement of the anti-discrimination law.
Question: Did Minnesota's attempts to enforce the anti-discrimination law violate the Jaycees' right to free association under the First Amendment?
Conclusion: In a unanimous decision, the Court held that the Jaycees chapters lacked "the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women." The Court reasoned that making women full members would not impose any serious burdens on the male members' freedom of expressive association. The Court thus held that Minnesota's compelling interest in eradicating discrimination against women justified enforcement of the state anti-discrimination law. The Court found that the Minnesota law was not aimed at the suppression of speech and did not discriminate on the basis of viewpoint.
Near v. Minnesota (1931)
Facts: Jay Near published a scandal sheet in Minneapolis, in which he attacked local officials, charging that they were implicated with gangsters. Minnesota officials obtained an injunction to prevent Near from publishing his newspaper under a state law that allowed such action against periodicals. The law provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was guilty of a nuisance, and could be enjoined (stopped) from further committing or maintaining the nuisance.
Question: Does the Minnesota "gag law" violate the free press provision of the First Amendment?
Conclusion: The Supreme Court held that the statute authorizing the injunction was unconstitutional as applied. History had shown that the protection against previous restraints was at the heart of the First Amendment. The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the First Amendment. Thus the Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding.
New York Times v. United States (1971)
Facts: In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. This case was decided together with United States v. Washington Post Co.
Question: Did the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate the First Amendment?
Conclusion: Yes. In its per curiam opinion the Court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case. Justices Black and Douglas argued that the vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment." Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified.
Hazelwood School District v. Kuhlmeier
Facts: The Spectrum, the school-sponsored newspaper of Hazelwood East High School, was written and edited by students. In May 1983, Robert E. Reynolds, the school principal, received the pages proofs for the May 13 issue. Reynolds found two of the articles in the issue to be inappropriate, and ordered that the pages on which the articles appeared be withheld from publication. Cathy Kuhlmeier and two other former Hazelwood East students brought the case to court.
Question: Did the principal's deletion of the articles violate the students' rights under the First Amendment?
Conclusion: No. In a 5-to-3 decision, the Court held that the First Amendment did not require schools to affirmatively promote particular types of student speech. The Court held that schools must be able to set high standards for student speech disseminated under their auspices, and that schools retained the right to refuse to sponsor speech that was "inconsistent with 'the shared values of a civilized social order.'" Educators did not offend the First Amendment by exercising editorial control over the content of student speech so long as their actions were "reasonably related to legitimate pedagogical concerns." The actions of principal Reynolds, the Court held, met this test.
New York Times v. Sullivan (1964)
Facts: Decided together with Abernathy v. Sullivan, this case concerns a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. L. B. Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally. Under Alabama law, Sullivan did not have to prove that he had been harmed; and a defense claiming that the ad was truthful was unavailable since the ad contained factual errors. Sullivan won a $500,000 judgment.
Question: Did Alabama's libel law, by not requiring Sullivan to prove that an advertisement personally harmed him and dismissing the same as untruthful due to factual errors, unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections?
Conclusion: The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan's case collapsed.
Hustler Magazine v. Falwell (1988)
Facts: A lead story in the November 1983 issue of Hustler Magazine featured a "parody" of an advertisement, modeled after an actual ad campaign, claiming that Falwell, a Fundamentalist minister and political leader, had a drunken incestuous relationship with his mother in an outhouse. Falwell sued to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress. Falwell won a jury verdict on the emotional distress claim and was awarded a total of $150,000 in damages. Hustler Magazine appealed.
Question: Does the First Amendment's freedom of speech protection extend to the making of patently offensive statements about public figures, resulting perhaps in their suffering emotional distress?
Conclusion: Yes. In a unanimous opinion the Court held that public figures, such as Jerry Falwell, may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice." The Court added that the interest of protecting free speech, under the First Amendment, surpassed the state's interest in protecting public figures from patently offensive speech, so long as such speech could not reasonably be construed to state actual facts about its subject.
Roth v. United States (1957)
Facts: Roth operated a book-selling business in New York and was convicted of mailing obscene circulars and an obscene book in violation of a federal obscenity statute. Roth's case was combined with Alberts v. California, in which a California obscenity law was challenged by Alberts after his similar conviction for selling lewd and obscene books in addition to composing and publishing obscene advertisements for his products.
Question: Did either the federal or California's obscenity restrictions, prohibiting the sale or transfer of obscene materials through the mail, impinge upon the freedom of expression as guaranteed by the First Amendment?
Conclusion: In a 6-to-3 decision written by Justice William J. Brennan, Jr., the Court held that obscenity was not "within the area of constitutionally protected speech or press." The Court noted that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were "utterly without redeeming social importance." The Court held that the test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." The Court held that such a definition of obscenity gave sufficient fair warning and satisfied the demands of Due Process. Brennan later reversed his position on this issue in Miller v. California (1973).
Jacobellis v. Ohio (1964)
Jacobellis v. Ohio, 378 U.S. 184 (1964), was a United States Supreme Court decision handed down in 1964 involving whether the state of Ohio could, consistent with the First Amendment, ban the showing of a French film called The Lovers (Les Amants) which the state had deemed obscene.
Nico Jacobellis, manager of the Heights Art Theatre in the Coventry Village neighborhood of Cleveland Heights, Ohio, was convicted and fined $2,500 by a judge of the Cuyahoga County Court of Common Pleas for exhibiting the film, and his conviction was upheld by the Supreme Court of Ohio.
The U.S. Supreme Court reversed the conviction, ruling that the film was not obscene and hence constitutionally protected. However, the Court could not agree as to a rationale, yielding four different opinions from the majority, with none garnering the support of more than two justices, as well as two dissenting opinions. The judgment of the Court was announced by William J. Brennan, but his opinion was joined only by Justice Arthur Goldberg.
Justice Hugo Black, joined by Justice William O. Douglas, reiterated his well-known view that the First Amendment does not permit censorship of any kind. Chief Justice Earl Warren, in dissent, decried the confused state of the Court's obscenity jurisprudence and argued that Ohio's action was consistent with the Court's decision in Roth v. United States and furthered important state interests. Justice John Marshall Harlan II also dissented, believing that states should have "wide, but not federally unrestricted" power to ban obscene films.
The most famous opinion from Jacobellis, however, was Justice Potter Stewart's concurrence, holding that the Constitution protected all obscenity except "hard-core pornography." Stewart wrote, "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that." (emphasis added)
Memoirs v. Massachusetts (1966)
Facts: A special provision of Massachusetts law allowed the Attorney General to initiate legal proceedings against an "obscene" book, Memoirs of a Woman of Pleasure. The book, also known as Fanny Hill, was written by John Cleland in about 1750. Massachusetts courts, despite the defenses put forward by the book's publisher and copyright holder, judged the work to be obscene.
Question: Did the actions of Massachusetts violate the First Amendment?
Conclusion: The Court held that the Massachusetts courts erred in finding Memoirs of a Woman of Pleasure to be obscene. The Court, applying the test for obscenity established in Roth v. United States, held that the book was not "utterly without redeeming social value." The Court reaffirmed that books could not be deemed obscene unless they were unqualifiedly worthless, even if the books possessed prurient appeal and were "patently offensive."
Miller v. California (1973)
Facts: Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting the distribution of obscene material. Some unwilling recipients of Miller's brochures complained to the police, initiating the legal proceedings.
Question: Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee?
Conclusion: In a 5-to-4 decision, the Court held that obscene materials did not enjoy First Amendment protection. The Court modified the test for obscenity established in Roth v. United States and Memoirs v. Massachusetts, holding that "[t]he basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." The Court rejected the "utterly without redeeming social value" test of the Memoirs decision.
New York v. Ferber (1982)
Facts: A New York child pornography law prohibited persons from knowingly promoting sexual performances by children under the age of sixteen by distributing material which depicts such performances.
Question: Did the law violate the First and Fourteenth Amendments?
Conclusion: No. In the Court's first examination of a statute specifically targeted against child pornography, it found that the state's interest in preventing sexual exploitation of minors was a compelling "government objective of surpassing importance." The law was carefully drawn to protect children from the mental, physical, and sexual abuse associated with pornography while not violating the First Amendment.
Brown v. Entertainment Merchants Association (2011)
Facts: Associations of companies that create, publish, distribute, sell and/or rent video games brought a declaratory judgment action against the state of California in a California federal district court. The plaintiffs brought the claim under the First and Fourteenth Amendments seeking to invalidate a newly- enacted law that imposed restrictions and labeling requirements on the sale or rental of "violent video games" to minors. The district court found in favor of the plaintiffs and prevented the enforcement of the law.
On appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed, holding that: (1) violent video games did not constitute "obscenity" under the First Amendment, (2) the state did not not have a compelling interest in preventing psychological or neurological harm to minors allegedly caused by video games, and (3) even if the state had a compelling interest, the law was not narrowly tailored enough to meet that objective.
Question: Does the First Amendment bar a state from restricting the sale of violent video games to minors?
Conclusion: Yes. The Supreme Court affirmed the lower court order in an opinion by Justice Antonin Scalia. "Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection." Justice Samuel Alito concurred in judgment, joined by Chief Justice John Roberts. Alito noted that he disagreed "with the approach taken in the Court's opinion. In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology." Justices Clarence Thomas and Stephen Breyer filed separate dissents. Adhering to his strict understanding of the Framers' intent with the Constitution, Thomas wrote: "The Court's decision today does not comport with the original public understanding of the First Amendment." Breyer argued that the California statute met current constitutional standards.
Reno v. American Civil Liberties Union (1997)
Facts: Several litigants challenged the constitutionality of two provisions in the 1996 Communications Decency Act. Intended to protect minors from unsuitable internet material, the Act criminalized the intentional transmission of "obscene or indecent" messages as well as the transmission of information which depicts or describes "sexual or excretory activities or organs" in a manner deemed "offensive" by community standards. After being enjoined by a District Court from enforcing the above provisions, except for the one concerning obscenity and its inherent protection against child pornography, Attorney General Janet Reno appealed directly to the Supreme Court as provided for by the Act's special review provisions.
Question: Did certain provisions of the 1996 Communications Decency Act violate the First and Fifth Amendments by being overly broad and vague in their definitions of the types of internet communications which they criminalized?
Conclusion: Yes. The Court held that the Act violated the First Amendment because its regulations amounted to a content-based blanket restriction of free speech. The Act failed to clearly define "indecent" communications, limit its restrictions to particular times or individuals (by showing that it would not impact adults), provide supportive statements from an authority on the unique nature of internet communications, or conclusively demonstrate that the transmission of "offensive" material is devoid of any social value. The Court added that since the First Amendment distinguishes between "indecent" and "obscene" sexual expressions, protecting only the former, the Act could be saved from facial overbreadth challenges if it dropped the words "or indecent" from its text. The Court refused to address any Fifth Amendment issues.
United States v. Williams (2008)
Facts: Michael Williams was convicted in federal district court of "pandering" (promoting) child pornography. The PROTECT Act proscribes the pandering of "any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe" that the material is illegal child pornography. The Act represents Congress's attempt to outlaw sexually explicit images of children - including both images of real children and computer-generated images of realistic virtual children. The Supreme Court struck down Congress's previous effort as overbroad in Ashcroft v. Free Speech Council, because the law as written could have outlawed artwork that was neither obscene nor child pornography. Williams argued that the PROTECT Act was similarly overbroad, but the district court held that the government can legitimately outlaw the pandering of material as child pornography, even if the material is not in fact child pornography.
The U.S. Court of Appeals for the Eleventh Circuit reversed the lower court and struck down the PROTECT Act as unconstitutionally overbroad. The Eleventh Circuit was unmoved by the government's argument that prosecuting the promotion of virtual child pornography as real is necessary to combat the child porn market. The Circuit Court held that the Act's prohibition was broad enough to include any "braggart, exaggerator, or outright liar" who claims in a non-commercial context to have child pornography but actually does not. Thus, the Act's pandering provision prohibited protected speech as well as actual child pornography.
Question: Does the PROTECT Act abridge First Amendment freedom of speech by outlawing the pandering of material that is believed to be, or claimed to be, illegal child pornography?
Conclusion: No. Justice Antonin Scalia, writing for a seven-Justice majority, held that the statute was not overly broad as written. Justice Scalia noted specifically that offers to engage in illegal transactions are categorically excluded from First Amendment protection, and he characterized the speech of an individual claiming to be in possession of child pornography in this category of unprotected speech. He also stated that the law did not violate Due Process because its requirements were clear and could be understood by courts, juries and potential violators. Justice David Souter filed the only dissenting opinion, in which Justice Ruth Bader Ginsburg joined.
District of Columbia v. Heller (2008)
Facts: For the first time in seventy years, the Court heard a case regarding the central meaning of the Second Amendment and its relation to gun control laws. After the District of Columbia passed legislation barring the registration of handguns, requiring licenses for all pistols, and mandating that all legal firearms must be kept unloaded and disassembled or trigger locked, a group of private gun-owners brought suit claiming the laws violated their Second Amendment right to bear arms. The federal trial court in Washington D.C. refused to grant the plaintiffs relief, holding that the Second Amendment applies only to militias, such as the National Guard, and not to private gun ownership.
The U.S. Court of Appeals for the District of Columbia Circuit disagreed, voting two to one that the Second Amendment does in fact protect private gun owners such as plaintiffs. Petitioners agree with the trial court's decision that the Second Amendment applies only to militias, and further argue that (a) the Second Amendment should not apply to D.C. because it is a federal enclave rather than a state, and (b) that the D.C. legislation merely regulates, rather than prohibits, gun ownership. Respondents, although disagreeing on the merits, have also urged the Court to review the case in order to clearly define the relationship between federal gun control laws and the Second Amendment.
Question: Whether provisions of the D.C. Code generally barring the registration of handguns, prohibiting carrying a pistol without a license, and requiring all lawful firearms to be kept unloaded and either disassembled or trigger locked violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?
Conclusion: Yes. In a 5-4 decision, the Court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self- defense within the home. The Court based its holding on the text of the Second Amendment, as well as applicable language in state constitutions adopted soon after the Second Amendment. Justice Antonin Scalia delivered the opinion of the Court. Justices John Paul Stevens and Stephen Breyer filed dissenting opinions, each joined by the other as well as Justices David Souter and Ruth Bader Ginsburg. Justice Stevens argued that the Second Amendment only protects the rights of individuals to bear arms as part of a well-regulated state militia, not for other purposes even if they are lawful. Justice Breyer agreed with Stevens' argument but also stated that even if possession were to be allowed for other reasons, any law regulating the use of firearms would have to be "unreasonable or inappropriate" to violate the Second Amendment. In Breyer's view, the D.C. laws at issue in this case were both reasonable and appropriate.
Griswold v. Connecticut (1965)
Facts: Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she and the Medical Director for the League gave information, instruction, and other medical advice to married couples concerning birth control. Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of counselling, and other medical treatment, to married persons for purposes of preventing conception.
Question: Does the Constitution protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives?
Conclusion: Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. The Connecticut statute conflicts with the exercise of this right and is therefore null and void.
Roe v. Wade (1973)
Facts: Roe, a Texas resident, sought to terminate her pregnancy by abortion. Texas law prohibited abortions except to save the pregnant woman's life. After granting certiorari, the Court heard arguments twice. The first time, Roe's attorney -- Sarah Weddington -- could not locate the constitutional hook of her argument for Justice Potter Stewart. Her opponent -- Jay Floyd -- misfired from the start. Weddington sharpened her constitutional argument in the second round. Her new opponent -- Robert Flowers -- came under strong questioning from Justices Potter Stewart and Thurgood Marshall.
Question: Does the Constitution embrace a woman's right to terminate her pregnancy by abortion?
Conclusion: The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. As a result, the laws of 46 states were affected by the Court's ruling.
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
Facts: The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions, the law required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions except for the husband notification requirement.
Question: Can a state require women who want an abortion to obtain informed consent, wait 24 hours, and, if minors, obtain parental consent, without violating their right to abortions as guaranteed by Roe v. Wade?
Conclusion: In a bitter, 5-to-4 decision, the Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Under this standard, the only provision to fail the undue-burden test was the husband notification requirement. The opinion for the Court was unique: It was crafted and authored by three justices.
Lawrence v. Texas (2003)
Facts: Responding to a reported weapons disturbance in a private residence, Houston police entered John Lawrence's apartment and saw him and another adult man, Tyron Garner, engaging in a private, consensual sexual act. Lawrence and Garner were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment, with Bowers v. Hardwick, 478 U.S. 186 (1986), controlling.
Question: Do the criminal convictions of John Lawrence and Tyron Garner under the Texas "Homosexual Conduct" law, which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples, violate the Fourteenth Amendment guarantee of equal protection of laws? Do their criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? Should Bowers v. Hardwick, 478 U.S. 186 (1986), be overruled?
Conclusion: No, yes, and yes. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. After explaining what it deemed the doubtful and overstated premises of Bowers, the Court reasoned that the case turned on whether Lawrence and Garner were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause. "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government," wrote Justice Kennedy. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," continued Justice Kennedy. Accordingly, the Court overruled Bowers. Justice Sandra Day O'Connor filed an opinion concurring in the judgment. Justices Clarence Thomas and Antonin Scalia, with whom Chief Justice William H. Rehnquist and Justices Thomas joined, filed dissents.