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Constitutional Law II > Expression > Flashcards

Flashcards in Expression Deck (37):
1

Schneck v. United States
(Facts)

Schenck was indicted for the charge of “conspiracy to violate the Espionage Act” after he mailed literature to draftees during World War I that criticized the draft. The government alleged that Schenck conspired to violate the EA by attempting to cause insubordination in the military and to obstruct military recruitment.

2

Schneck v. United States
(Rule)

Clear and Present Danger Test: The character of every act depends on the circumstances in which it is done. The question in every case is 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 the substantive evils that Congress has a right to protect.

3

Frowerk v. United States
(Facts/Issue)

Facts: The Missouri Staats Zeiung, a newspaper published in Kansas City, Missouri, issued a series of twelve articles written by Jacob Frohwerk (defendant) denouncing the United States’ involvement in World War I.

Issue: Did Frohwerk's conviction under the Espionage Act of 1917 violate his right to free speech under the First Amendment?

4

Frowerk v. United States
(Holding/Reasoning)

After noting that the federal government has a valid interest in protecting the recruitment of members of the armed forces, and that in publishing the articles, Frohwerk engaged in such a conspiracy, the Court concluded that Frohwerk's conviction was legal.

5

Debs v. United States
(Facts)

Debs, was found guilty for attempting to incite insubordination in the military by giving a speech. He was convicted and sentenced to 10 years on each count.

6

Debs v. United States
(Rule)

If any one element of the speech can be punished, then the whole speech may be punished.

7

Abrams v. United States
(Facts)

The defendants’ convictions for distributing leaflets advocating strikes during the Russian Revolution were upheld because their speech was not protected by the Constitution based on the “clear and present danger” test.

8

Abrams v. United States
(Reasoning)

Men must be held to have intended and to be accountable for the effects which their acts are likely to produce. The plain purpose of Defendants’ propaganda was to excite, at the supreme crisis of war, disaffection, sedition, riots and as they hoped, revolution in this country for the purpose of embarrassing and if possible defeating the military plans of the Government in Europe.

9

Gitlow v. New York

Facts: New York passed a statute that prohibited the written or verbal advocacy of criminal anarchy, a doctrine advocating overthrowing the government through force or violence.

Issue: Did the statute prohibiting such activity deprive the Petitioner of his First Amendment constitutional right to freedom of expression?

10

Gitlow v. New York

State statutes are unconstitutional if they are arbitrary and unreasonable attempts to exercise authority vested in the state to protect public interests.

11

How does the First Amendment apply to the states?

By virtue of the liberty protected by due process that no state shall deny (14th Amendment)

12

Whitney v. California
(Issue)

Did the Defendant’s knowingly being or becoming a member of an organization that advocated “criminal syndicalism” involve sufficient danger to the public peace that the State could constitutionally penalize her for it?

13

Whitney v. California
(Holding/Rule)

Yes. A State may constitutionally prohibit its citizens from knowingly being or becoming a member of an organization that advocates criminal syndicalism consistently with the First Amendment of the Constitution.

14

Dennis v. United States
(Facts)

Dennis was convicted for (1) willfully and knowingly conspiring to organize as the Communist Party, a group whose members advocated the overthrow of the US government by force and (2) willfully and knowingly advocating and teaching the duty to do the same. The constitutionality of the statute under which he was convicted was challenged.
His conviction was upheld.

15

Dennis v. United States
(Reasoning)

The court was convinced that the requisite danger to act existed here:
(1) the formation of a highly organized conspiracy with rigidly disciplined members subject to call when the leaders felt it was time for action;
(2) the inflammable nature of world conditions;
(3) similar uprisings in other countries; and
(4) the touch and go nature of our relations with other countries with whom the Petitioners were ideologically aligned.

16

Brandenburg v. Ohio
(Facts)

An Ohio law prohibited the teaching or advocacy of the doctrines of criminal syndicalism. Brandenburg, a leader in the Ku Klux Klan, made a speech promoting the taking of vengeful actions against government and was therefore convicted under the Ohio Law.
His conviction was overturned.

17

Brandenburg v. Ohio
(Reasoning)

The mere abstract teaching of the need or propriety to resort to violence is not the same as preparing a group for violent action. Because the statute failed to provide for the second part of the test it was overly broad and thus in violation of the First Amendment.

18

2-Prong Test from Brandenburg for evaluating free 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."

19

New York Times v. Sullivan
(Facts)

Sullivan sued the New York Times for printing an advertisement about the civil rights movement in the south that defamed him.

20

New York Times v. Sullivan
(Rule)

For a public Official to bring a libel suit for official conduct, there must be actual malice.
Must have been knowingly false, or that there was reckless disregard to whether they were false.

21

Overall goal of the holding in New York Times v. Sullivan

Uninhibited, wide-open, robust debate

22

Curtis Publishing Co. v. Butts
(Facts)

The Plaintiffs were public figures and not public officials. Both were awarded damages for defamation. The Defendant, Curtis Publishing Co., appealed to extend the constitutional safeguards outlined in New York Times to public figures.

23

Curtis Publishing Co. v. Butts
(Rule)

A public figure has the same standard of proof for libel as a public official does under New York Times.

24

Gertz v. Robert Welch Inc.
(Issue)

Whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statements?

25

Gertz v. Robert Welch Inc.
(Holding/Rule)

No. A private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times v. Sullivan may recover only such damages as are sufficient to compensate him for actual injury.

26

Dun & Bradstreet v. Greenmoss Builders
(Facts)

Dun & Bradstreet sent a credit report to five subscribers indicating that Greenmoss Builders, Inc. had filed for bankruptcy. The report was false, but it was sent due to the good faith mistake of a Dun & Bradstreet fact checker. Greenmoss sued Dun & Bradstreet for libel and obtained a verdict for presumed and punitive damages.

27

Dun & Bradstreet v. Greenmoss Builders
(Rule)

Absent actual malice, a private individual may be awarded damages even when there is no matter of public concern if he proves that there was a false statement and that it was negligently made.

28

Hustler Magazine v. Falwell
(Facts)

After Hustler Magazine published an advertisement, depicting Jerry Falwell as having his “first time” in an outhouse with his mother, the reverend brought suit based on invasion of privacy, libel and intentional infliction of emotional distress.

29

Hustler Magazine v. Falwell
(Facts)

There is no protection against satire for public figures.

30

United States v. O’Brien
(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.

31

United States v. O’Brien
(Rule)

A governmental regulation is sufficiently justified if it:
(1) is within the constitutional power of the government;
(2) if it furthers an important or substantial governmental interest;
(3) if the governmental interest is unrelated to the suppression of free expression and
(4) if the incidental restriction on alleged First Amendment constitutional freedoms is no greater than is essential to the furtherance of that interest.

32

What if the government is trying to regulate the speech side?

It would be subject to strict scrutiny.

33

Barnes v. Glen Theater Inc.
(Issue)

Does a state prohibition against complete nudity in public places violate the First Amendment's freedom of expression guarantee?

34

Barnes v. Glen Theater Inc.
(Holding/Reasoning)

No. The public indecency statute is justified despite the incidental limitations on such expressive activity. The statute "furthers a substantial government interest in protecting order and morality." The proscription on public nudity is unrelated to the erotic message the dancers seek to convey.

35

City of Erie v. Pap’s A.M.
(Facts)

Erie, Pennsylvania, enacted an ordinance banning public nudity. The preamble stated that the “purpose” of the ordinance was to respond to “a recent increase in nude live entertainment within the City, which activity adversely impacts . . . the public health, safety, and welfare by providing an atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases, and other deleterious effects.”

36

City of Erie v. Pap’s A.M.
(Rule)

Preventing secondary effects is a sufficient reason to make a content neutral law.

37

Is Flag burning considered conduct or speech?

It is considered all speech.