Conlaw II - Freedom of Speech Flashcards

Question

Yates v. United States (1957)

Answer 1

Communists were prosecuted for conspiracy to violate the _Smith Act_ for advocating that the only way to achieve their idealistic policy agenda was through violence **Rule**: Advocacy to ***do*** something can be criminalized; advocacy to ***believe*** something cannot. **Holding**: The mere doctrinal justification and morality of forcible overthrow, if engaged in with the intent to accomplish said overthrow, is not punishable under the Smith Act **Rationale**: [**Avoidance Canon]** To permit the advocacy of a belief to be criminalized treads in a “constitutional danger zone,” so we cannot assume that Congress sought to criminalize it ***See* Masses** (also a case of statutory interpretation that drew the line at express advocacy) **Stone**: Court focused on content of the speech NOT the actual danger – maybe b/c red scare died Decisions over next several year indicate a more expansive freedom of speech

Answer 2

Leader in the Ku Klux Klan made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law (similar to law upheld in Whitney).. The law made illegal advocating "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." **Rule**: Speech can be prohibited if it is **(1)**"directed at inciting or producing imminent law violation" and **(2)** it is "likely to incite or produce such action." **AKA**: **(1)** Express advocacy of law violation **(2)** law violation must be immediate **(3)** immediate law violation must be likely to occur **Stone**: Also a requirement that the speaker **(4)** ***specifically intend*** the **(5) *grave*** violation **Holding**: Because the KKK leader was merely advocating the propriety of using force to achieve his ends and not preparing a group for violent action, his speech is protected. **Concur, _Black_**: Clear and present danger test has no place in First Amendment jurisprudence **Concur, _Douglas_**: The “clear and present danger” test is disconcerting. First, the threats to which it was applied were often loud but puny. Second, the test was so perverted as to make trial of those teachers of Marxism all out political trials, which had the effect of eroding substantial parts of the First Amendment of the Constitution. **Stone**: Court has not faced any freedom of speech case where the gravity of harm was seen as substantial – unclear whether court would insist on this standard if the harm was far graver

Answer 3

What Justice have learned over their free speech jurisprudence 1. Chilling effect – speech is easily chilled by law because benefits to speech are often small 2. Pretext effect – the powers that be are very willing to restrict speech of political rivals under the pretext that they are posing a grave threat to society 3. Crisis effect – freedom of speech is often restricted during times of crisis 4. A hallmark of free speech is that the dissenters Holmes and Brandeis were able to change the law to their view through consistent effort

Answer 4

* Instructions for murder -\> someone murders—publisher intended to be used to execute crime of murder for hire, Rice Screen teachers for fitness to maintain integrity of school  upheld law providing that no person who is a member of organization advocating violent overthrow of gov’t to be public school teacher, Adler

Answer 5

* “We’ll take the fucking street later or again” during antiwar demonstration—“nothing more than advocacy of illegal action at some indefinite future time”, Hess * “if we catch any of you going in any of them racist stores, we’re gonna break your damn neck” where violence occurred weeks to month after speech—not immediate, NAACP v Claiborne Hardware * Magazine instructions for autoerotic asphyxiation, Herceg Require state employees take oath that not member of communist party, Elfbrand

Answer 6

1. **Disclosure** 1. Barenblatt (1959): 5–4 decision, no 1a violation to hold in contempt for refusing to answer HUAC questions re: CPUSA membership 2. Gibson (1963): 1a violation for same but refusing to answer if communists were in NAACP 3. **Distinction**: NAACP is a lawful organization 2. **Firing government employees** 1. McAuliffe (Mass. 1892): no violation to fire policeman for soliciting campaign contributions 1. **_Holmes_**: right to talk politics, but no right to be policeman 2. *But* Frost (1926): same 1a analysis should generally apply to state-granted privileges as to rights; Court has generally followed this 1. Perry v. Sindermann (1972) for government benefits 2. Pickering (1968): had to balance state’s interest as employer though 3. **Loyalty oaths for public employees** 1. Adler (1952): no 1a violation 2. Elfbrandt (1966): 1a violation to make state employees give oath they weren’t in CP 1. **Court**: just extension of Scales, organization with mixed ends and mere membership 2. Robel (1967): extended this to statutes re: employees in defense facilities 4. **School speech cases (recall from Driver)** 5. **Speech rights and military discipline** 1. Parker v. Levy (1974): fewer 1a rights in military, it’s not a deliberative body

Answer 7

 Speech may not be restricted because the ideas expressed offend the audience (in absence of a clear and present danger of a substantive evil) **Stone**: Some intimation that any danger was not grave enough

Answer 8

Jehovah’s witness played a phonograph on a street corner that attacked the Catholic church and offended passersby/tempted them to violence **Holding**: Exaggeration, vilification, even false statement in the interest of persuasion does not rise to the clear and present danger that common law criminalizes **Rationale**: The People made the decision to permit such speech and debate as “essential to enlightened opinion and right conduct on the party of the citizens of a democracy” **Note**: Decision leaves open possibility that a statute can define a narrow set of similar conduct as a clear and present danger

Answer 9

Petitioner was speaking to a crowded street corner, urging black people to fight for equal rights. He was asked to stop by police, sensing its effect on the crowd. He refused and was arrested for disorderly conduct under a NY law that criminalized his congregation and insults when done with the intent to provoke a breach of the peace. **Rule**: [Quoting Cantwell] “When clear and present danger of riot, disorder, interferences with traffic upon a public street, or other immediate threat to public safety, peace or order appears. The power of the State to prevent or punish is obvious” **Heckler’s Veto**: Problem is that others can stop speech just by threatening violence **Stone**: Court has not expressly disavowed Feiner, but they cannot stop speech unless **Holding**: Speech at issue here went beyond persuasion and sought to incite a riot, which is conduct that the police must be able to stop **Dissent, _Black_**: **(1)** Police can only interfere with lawful speech after making all reasonable efforts to protect the speaker. These efforts are not borne out by the record. **(2)** There was no imminent threat of a riot – pushing is expected in public gatherings and one isolated threat against the speaker is cause for action against the threatener not the speaker. **Stone**: What are the rights of the audience to hear the speaker, even if there are other members of the audience who are threatening violence? The police must eliminate threats to speaker because speaker has first amendment right to speak and the audience has the right to hear Edwards (1963)  Black college student peacefully picketed discrimination. There were 200 onlookers, but none threatened violence. No interference with vehicular or pedestrian traffic. Threatened with arrest if did not disperse in 15 minutes. **Holding**: The facts here were a “far cry” from Feiner because there was no evidence of violence or threat of violence on the part of crowd or protesters and police protection was sufficient to meet any possible disorder **Stone**: Actually worse than Feiner, but Court is uncomfy with the heckler’s veto

Answer 10

Jehovah’s witness called a police marshall “a goddamned racketeer” and “a damned fascist.” **Rule**: Fighting words or offensive words that a man of common intelligence would understand to cause an average addressee to fight and breach the peace are not safeguarded by the constituion **Holding**: “damned racketeer” and “damned fascist” are epithets likely to provoke the average person to retaliate and can thereby be criminalized by NH **Two Level Speech Theory**: Speech is either protected or unprotected based on the court’s evaluation of its value – fighting words inflict harm and do not communicate ideas **C/P/D Explanation**: Fighting words are unprotected because they are likely to cause a breach in the peace since they have that effect on a man of average intellect **Narrowing Doctrine**: Subsequent decisions indicate the doctrine only applies to use of epithets that describe a particular individual + are addressed to them in a face-to-face encounter (Cohen)

Answer 11

Westboro Baptist Church picketed a military funeral on public land with signs that said “God hates fags.” The Church was sued for intentional infliction of emotional distress. **Rule**: Speech that, due to its “content, form, and context,” is public rather than private is protected by the First Amendment even if it offends others **Holding**: Because the Church’s speech was at a public place on a matter of public concern, it cannot be restricted simply because it is upsetting or arouses contempt **Dissent, _Alito_**: First amendment does not preclude liability for the intentional infliction of emotional distress by the means of speech **Stone**: If this same incendiary speech was done in the private sphere, it may have been IIED Localities can adopt laws that protesting within a certain distance of funerals because

Answer 12

Pentagon Papers related to Vietnam were published by the press. The government sued to enjoin further publication. **Rule**: Presumption against the constitutionality of prior restraints to expression **Concur, _Black_**: Only a free and unrestrained press can expose deception in the government as the framers intended. “Security” is vague generality that cannot be invoked to abrogate 1a rights **Concur, _Douglas_**: Even if such disclosures have a big impact, that is no basis to censor them. 1a was adopted to ensure a well-informed populace could self-govern and public debate with full info is essential to maintain that. **Concur, _Brennan_**: Precedent assumes that 1a may only tolerate prior restraint to expression when the country is at war and deployment dates or draft obstruction is at issue. Neither situation is present here. **Concur, _Stewart_**: Dilemma – Exec is endowed with exclusive power over national defense and only informed citizenry can check that power VS Exec needs to be secure in her confidences in order to formulate international police. Solution – Exec has sole responsibility to ensure confidentiality and courts will not stand in the way of whistleblowers unless there is proof that disclosure will “surely result in direct, immediate, and irreparable damage to our Nation or its people” **Concur, _White_**: Govt has not met its very heavy burden to sustain injunction. Govt could have proceeded through criminal prosecution of whistleblower and that prob would have been effective **Concur, _Marshall_**: It is not for the courts to provide the president with a new power that Congress refused him. **Dissent, _Burger_**: 1a is not absolute. Would have affirmed 2d Cir. and completed the trial in the district court to fully discover all relevant facts. **Dissent, _Harlan_**: Scope of judicial review of exec action in the field of international relations is narrow – exec is owed deference re: impairment to national security, but the Court can insist that head of Dept make that determination personally. No indication that lower courts accorded exec proper deference. **Dissent, _Blackmun_**: Sustain injunction while appropriate standards are developed to weigh broad right of press and narrow right of government to prevent.

Conlaw II - Freedom of Speech Flashcards

(36 cards)