Exam 2 Flashcards
Arguments of Brandenburg regarding Ohio Statute (Brandenburg v. Ohio)
1) Fail to acknowledge the constitutional requirement that freedoms of speech and assembly cannot be restricted without showing “clear and present danger”
2) Fail to recognize the necessary constitutional distinction between advocacy of abstract doctrine & advocacy directed at promoting unlawful action
Arguments of Ohio regarding Brandenburg’s advocacy on film (Brandenburg v. Ohio)
Freedom of expression is not absolute. State cannot be reasonably required to delay restricting advocacy of illegal acts until breach of peace takes place.
What was the holding in Brandenburg v. Ohio?
(8-0) Per curiam, Constitution does not permit a state to forbid advocacy of the use of force or of law violation except where such advocacy leads to imminent lawless action and is likely to incite such action
What were the facts in Texas v. Johnson?
During a Republican party convention, Johnson and several other demonstrators marched outside protesting against Reagan administration’s policies. One demonstrator pulled an American flag from a local bank and handed it to Johnson. Who proceeded to douse flag in kerosene and light flag on fire. Arrested for violation of the Texas flag desecration law.
Arguments of State of Texas regarding Johnson’s violation of the flag desecration law
1st amendment is not absolute, expressive conduct. Demands less constitutional protection than pure speech.
1) protection of flag as important symbol of nationhood
2) prevention of a breach of peace
Arguments of Johnson regarding Texas Statute
1) Viewpoint-based restriction on political expression, state seeks to protect one view (flag’s symbolism)
2) Violates the 1st amendment’s prohibition on content-based discrimination (fear that conduct will offend others)
3) Burning flag was obvious act of expressive conduct which merits 1st amendment protection
What was the holding in Texas v. Johnson?
(5-4) J. Brennan, gov’t has freer hand in restricting expressive conduct than it does written or spoken speech. Johnson’s conduct did not threaten to disturb the peace. Burning flag was expressive conduct and was restricted because of the “offensive” content of the message he conveyed
What were the dissenting opinions in Texas v. Johnson?
1) Burning flag was no essential part of any expositions of ideas
2) Had tendency to incite breach of peace
3) Men go to war and die for the flag but gov’t may not prohibit its public burning
4) Public desecration of flag will tarnish its value- for those who cherish + those who wish to burn it
What were the facts and holding for National Socialist Party v. Skokie in regards to hateful speech?
A town filled with several jewish residents attempted to block a planned march by a Nazi party.
USSC agreed w/Nazi, that the town violated the 1st Amendment despite the hateful nature of Nazi’s intended expression
What is “hate speech”?
Its central theme is hostility toward individuals belonging to the target group
How did the court’s decision regarding hateful speech differ in Brandenburg v. Skokie?
Brandenburg- court found constitutional problems w/ Ohio’s Criminal Syndicalism Act, upon which prosecution of KKK leader was based
Skokie- court found local gov’t was unconstitutional in attempting to repress speech before it occurred, form of prior restraint
What changes happened regarding hate speech in the 1990’s?
Many state and local gov’ts, colleges + universities, passed ordinances making hate speech punishable
What were the facts in Snyder v. Phelps?
Snyder died while serving in Iraq. Phelps founded Westboro Baptist Church, who planned to protest outside of funeral w/very distasteful signs. Snyder’s father filed civil lawsuit based on infliction of emotional distress. He was awarded $10 million.
What were the facts in R.A.V. v. Minnesota?
R.AV., a highschool dropout, crudely assembled a cross made with broken chair legs. Burned it in the yard of a black family’s house. He was arrested for violating St. Paul Bias-Motivated crime ordinance: no burning cross or Nazi swastika which one knows arouses anger, alarm on the basis of race, color, creed, religion, gender
What were R.A.V.s arguments regarding St. Paul’s ordinance?
1) 1st amendment protects expression even if it is offensive, insulting
2) law is overbroad, applying to any symbol or other means of expression that takes place in any private or public place
3) law must satisfy the highest level of judicial scrutiny, does not meet this test
What were St. Paul’s arguments in regards to their ordinance?
1) it applies to fighting words and expression directed toward inciting or producing imminent lawless action
2) purpose of the ordinance is not to restrict expression, but to protect people that may be in targeted group
What were Snyder’s arguments regarding the Westboro’s baptist church protest?
1) Westboro’s speech had no rational connection to matters of public concern
2) Survivor has the right to privacy in protecting the memory of the dead
3) Westboro restricted Snyder’s ability to enjoy his 1st amendment right to free exercise of religion and peaceful assembly
What were Phelp’s arguments regarding their protest?
1) Expression concerned public issues
2) Language was loose, figurative, which no reasonable person would interpret as actual facts
3) Snyder made himself a limited purpose public figure by speaking to the press about his son
What was the holding in R.A.V. v. Minnesota?
(9-0) Scalia, Ordinance prohibited certain “fighting words” (racial) not all fighting words. Vague, overbroad. Cannot consist of selective limitations upon speech
What was the holding in Snyder v. Phelps?
(8-1) CJ Roberts, 1st amendment shields from liability, no mattter how vicious the words are
What are the four elements of freedom of speech?
1) USSC grants speech a “preferred” position
2) control conduct, not speech
3) laws to control “expressive” speech must be clear & precise
4) hate speech/vulgar speech/vicious speech
Two words that represent privacy
Autonomy + solitude
Is there a constitutional right to privacy?
No, privacy is not mentioned in the U.S. constitution
What were the facts in Griswold v. CT?
Griswold (director of PPH) opened birth control clinic in 1961 w/the intent of being arrested for violating same CT law (banning BC) dispensed bc to married couple, arrested 3 days later