Exam 2

Question 1

Arguments of Brandenburg regarding Ohio Statute (Brandenburg v. Ohio)

Answer 1

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

Question 2

Arguments of Ohio regarding Brandenburg’s advocacy on film (Brandenburg v. Ohio)

Answer 2

Freedom of expression is not absolute. State cannot be reasonably required to delay restricting advocacy of illegal acts until breach of peace takes place.

Question 3

What was the holding in Brandenburg v. Ohio?

Answer 3

(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

Question 4

What were the facts in Texas v. Johnson?

Answer 4

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.

Question 5

Arguments of State of Texas regarding Johnson’s violation of the flag desecration law

Answer 5

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

Question 6

Arguments of Johnson regarding Texas Statute

Answer 6

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

Question 7

What was the holding in Texas v. Johnson?

Answer 7

(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

Question 8

What were the dissenting opinions in Texas v. Johnson?

Answer 8

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

Question 9

What were the facts and holding for National Socialist Party v. Skokie in regards to hateful speech?

Answer 9

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

Question 10

What is “hate speech”?

Answer 10

Its central theme is hostility toward individuals belonging to the target group

Question 11

How did the court’s decision regarding hateful speech differ in Brandenburg v. Skokie?

Answer 11

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

Question 12

What changes happened regarding hate speech in the 1990’s?

Answer 12

Many state and local gov’ts, colleges + universities, passed ordinances making hate speech punishable

Question 13

What were the facts in Snyder v. Phelps?

Answer 13

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.

Question 14

What were the facts in R.A.V. v. Minnesota?

Answer 14

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

Question 15

What were R.A.V.s arguments regarding St. Paul’s ordinance?

Answer 15

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

Question 16

What were St. Paul’s arguments in regards to their ordinance?

Answer 16

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

Question 17

What were Snyder’s arguments regarding the Westboro’s baptist church protest?

Answer 17

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

Question 18

What were Phelp’s arguments regarding their protest?

Answer 18

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

Question 19

What was the holding in R.A.V. v. Minnesota?

Answer 19

(9-0) Scalia, Ordinance prohibited certain “fighting words” (racial) not all fighting words. Vague, overbroad. Cannot consist of selective limitations upon speech

Question 20

What was the holding in Snyder v. Phelps?

Answer 20

(8-1) CJ Roberts, 1st amendment shields from liability, no mattter how vicious the words are

Question 21

What are the four elements of freedom of speech?

Answer 21

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

Question 22

Two words that represent privacy

Answer 22

Autonomy + solitude

Question 23

Is there a constitutional right to privacy?

Answer 23

No, privacy is not mentioned in the U.S. constitution

Question 24

What were the facts in Griswold v. CT?

Answer 24

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

Question 25

What were the arguments supporting Griswold’s claim?

Answer 25

1) Statute deny appellants the right to liberty & property w/out due process of law (14th amdmt)
2) Rights involved are fundamental, rather than commercial
3) Statute considered as a public health or moral regulation is overbroad & arbitrary
4) Statute violates the right to privacy in the 1st, 3rd, 4th, 5th, 9th, 14th amendment

Question 26

What were the State of CT’s arguments pertaining to contraceptive ban?

Answer 26

1) no invasion of privacy, because proof of offense was obtained legally and w/out coercion
2) ban on contraceptives is a proper exercise of the police power of the state

Question 27

What was the holding in Griswold v. CT?

Answer 27

(7-2) Douglas, part of Bill of Rights have penumbras formed by the 1st, 3rd, 4th, 5th and 9th amendment “that help give them life + substance”

Griswold created a constitutional right to privacy

Question 28

What are the amendments that have a penumbras in the Bill of Rights?

Answer 28

1st- Right of association
3rd- prohibition against quartering soldiers in homes
4th- search + seizure, right to be secure in their persons, houses, papers
5th- zone of privacy where gov’t cannot force you to surrender to their detriment
9th- addresses rights, retained by people, that are not specifically enumerated in the Constitution

Question 29

What is Roe’s argument regarding the Texas statute?

Answer 29

1) statute infringes fundamental personal rights, right to medical care, marital + personal privacy- secured by the 1st, 3rd, 4th, 9th + 14th amendment
2) statute is not rationally related to any legitimate public health concern

Question 30

What are the facts of Roe v. Wade?

Answer 30

Norma McCorvey (Roe) claimed she was raped and got pregnant. Asked doctor to perform abortion, he said no because of the Texas law banning abortion unless it is necessary to save mothers life. Roe’s attorneys brought case to court challenging privacy, women’s rights, due process.

Question 31

What is Wade’s (District Attorney of Dallas) arguments to Texas statute?

Answer 31

1) Constitution does not guarantee women the right to abortion
2) personal and marital privacy are not absolute rights
3) modern science establishes that life begins at conception. State has compelling interest in preserving life of fetus

Question 32

What is the holding in Roe v. Wade?

Answer 32

(7-2) Blackmun wrote opinion after several back and forth with Douglas and other justices. State criminal abortion statute violates the due process clause of the 14th amendment.

Question 33

What did the USSC vote for rules for abortions in states?

Answer 33

1st trimester- mother’s choice to end pregnancy
2nd trimester- states may regulate up until when persons can abort child
3rd trimester- state may regulate abortions with appropriate medical judgment for preservation of the life or health of the mother

Question 34

What roles did Griswold and Roe play in “right to privacy”?

Answer 34

Griswold established right of privacy, giving the USSC precedent
Roe v. Wade closed every political debate regarding abortion unless case gets overturned
USSC can state Griswold gave the “r of p” to Roe v. Wade, therefore she should be granted her “r of p”

Question 35

What is the 2nd part of the 1st amendment regarding?

Answer 35

“Congress shall make no law…. abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Question 36

What are common purposes of freedom of speech?

Answer 36

1) facilitating political discourse by citizens
2) checking abuse of governmental power
3) assuring individual self-fulfillment
4) promoting tolerance in a democratic society
5) the search for the truth

Question 37

What role does gov’t play in the regulation of freedom of speech?

Answer 37

1st amdmt prohibits only laws curtailing “freedom of speech” not speech itself
Time, place, and manner may be reasonably regulated by gov’t

Question 38

What was the Sedition Act?

Answer 38

After WWI, Congress prohibited the utter of, writing or publishing of anything disloyal to the gov’t, flag, or military forces of the U.S. (no court challenge)

Question 39

What was the 1st case limiting speech because of the “security” issues?

Answer 39

Schenk v. U.S., the “clear + present danger” test (1919- post WWI

Question 40

What was the Espionage Act of 1917?

Answer 40

Prohibited any attempt to “interfere w/ the operation or success of the military or naval forces of the U.S. to cause insubordination in the military or naval forces or willfully obstruct the recruiting or enlistment service of the U.S.

Question 41

What were the facts of the Brandenburg v. Ohio?

Answer 41

Leader of Ohio KKK, hired news reporters to KKK gathering. Recorded on film saying very hateful, racist remarks. He was arrested for violating the Ohio Criminal Syndicalism law, which passed to prevent the spread of unpatriotic views.

Question 42

What is theocracy and when was it important?

Answer 42

“worship of God”, in the Framer’s period, religion was very important

Question 43

Who was the “real hero” of freedom of speech + religion?

Answer 43

Roger Williams, practice all religion or not in Rhode Island

Question 44

Why is religion #1 freedom?

Answer 44

Because God is all around, societal priority (on money, pledge of allegiance)

Question 45

Main factors in Free Exercise

Answer 45

1) Freedom of conscience implicit in democracy

2) absolute right to believe or profess whatever one wants

Question 46

When does free exercise of religion run into a problem w/gov’t?

Answer 46

Sometimes exercise of beliefs (as an individual freedom) run up against interests of gov’t especially public order

Question 47

What are the facts of Employ. Division, Dept. of H.R. of Oregon v. Smith?

Answer 47

(1990) Smith + Black were fired from their job as drug abuse counselors because they used peyote at a religious ceremony. They tried to seek unemployment benefits but were denied since they were fired for misconduct which made them ineligible for benefits under state law.

Question 48

What is Employ. Division, Oregon claim against Smith?

Answer 48

1) State has compelling interest in controlling the use and availability of dangerous drugs
2) Peyote is a dangerous drug
3) State cannot accommodate religiously motivated drug use w/out seriously compromising its drug control policies

Question 49

What are Smith + Black’s arguments to the case?

Answer 49

1) Entitled to unemployment compensation under precedents of two cases
2) other states that have allowed the religious use of peyote has not shown any adverse impact on drug enforcement policies
3) free exercise clause requires that the religious practices of the respondents be accommodated

Question 50

What was the holding in Employ. Div. Oregon v. Smith?

Answer 50

(6-3) Scalia, the gov’t is free to make and enforce valid and neutral laws of general applicability even if they restrict religious exercise

Question 51

What was the preliminary history of Oregon v. Smith?

Answer 51

Oregon Supreme court was in favor w/ Smith. State appealed to USSC (1987) who remanded the case to Oregon to decide preliminary issue, case came to back to USSC in 1990

Question 52

What did Justice Scalia state about USSC decision regarding Oregon v. Smith?

Answer 52

To make one’s obligation to obey the law contingent upon law’s coincidence w/ his religious beliefs- except where state’s interest is compelling- contradicts both constitutional tradition and common sense

Question 53

What were the dissenting opinions in Oregon v. Smith?

Answer 53

Their displeasure w/ the majority’s break from precedent, asserting that the court should stick w/the compelling interest/least restrictive means approach of Sherbert + Yoder

Question 54

What is the premise of Free Establishment?

Answer 54

The gov’t cannot favor religion over something secular (nonreligious)

Question 55

What were the facts of School district of Abington Township v. Schempp?

Answer 55

(1963) Penn. law mandated schools recite passages from the Bible along w/ a prayer before morning announcements. Ellery Schempp was picked to do reading, read from Koran instead. His protest led to suspension, his parents filed suit.

Question 56

What is the procedural history of School District v. Schempp?

Answer 56

Penn. struck down the Bible reading requirement, Murray case was combined w/ this in USSC as one ruling.

Question 57

What is the 1st part of the 1st amendment?

Answer 57

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

Question 58

What is the dissenting opinion in School District v. Schempp?

Answer 58

Issue is privileges rather than a right. There is no evidence as to whether there would exist any coercion of any kind upon a student who did not want to participate

Question 59

What are the arguments presented by the School District in regards to their mandated law?

Answer 59

1) Bible reading has always been conducted in a secular manner, does not interfere w/anyone’s free exercise rights
2) No participating act is required. Kids can leave class.
3) Practice is neutral because it neither adds to nor subtracts from the nation’s religious traditions

Question 60

What are Schempp’s arguments to bible reading in school?

Answer 60

1) Reading of holy bible under this statute is a mandatory religious act. It violates the establishment clause.
2) Practice prefers Christianity to all other religions
3) Practice violates free exercise of religion because it requires those w/contrary religious views to take public action in order to excuse themselves

Question 61

What was the holding in School District of Abington Township v. Schempp?

Answer 61

(8-1) Clark, states must uphold “neutrality” in its relations w/groups of religious believers & non-believers. Such an opening exercise is a religious ceremony & was intended by the state to be so. The requiring these exercises are in violation of the Establishment clause.