Free Speech Flashcards
(15 cards)
Dennis v. US (1951)
!) Facts: In 1948, leaders of the Communist Party of America were arrested and charged with violating provisions of the Smith Act. The Act made it unlawful to advocate the violent overthrow of the US gov’t or to organize or be a member of any group or society devoted to such advocacy. Party leaders were found guilty and lower courts upheld the conviction.
2) Const Question: Did the Smith Act’s restrictions on speech violate the First Amendment?
3) Plurality (Vinson) 6-2 Decision for the US: The Smith Act did not “inherently” violate the First Amendment.
Mere teaching vs advocacy for ideals. Advocacy created CLEAR AND POTENTIAL DANGER
- Smith act does not restrict peaceful change of government
- democracy must defend against its enemies
4) Concurrence (Frankfurter)
- ad hoc balancing
- weak speech claim vs strong gov claim
5) Concurrence (Jackson)
- clear and present danger = naive
- realities of modern total
6) Dissent (Black)
- no clear and present danger
- imp of first amendment
7) Dissent (Douglass)
- only regualte action, conduct
- Mill: marketplace of ideals
Chaplinsky v. New Hampshire (1942)
1) Facts:
Chaplinsky called a city marshal a “God-damned racketeer” and “a damned fascist” in a public place. He was arrested/convicted under NH law: Prohibits the use of “any offensive, derisive, or annoying word to any other person who is lawfully in the street.”
2) Constitutional Questions
Dos the application of the NH statue violate Chaplinsky’s free speech rights?
3) Majority (unanimous, Murphy)
- Chaplinsky’s speech constituted fighting words, which are not protected under the first amendment
4) Rationale
Different types of speech
- normal
- worthless (not protected
Fighting Words Test!! - words likely to be perceived by rationale person as challenge to fight
Brandenburg v. Ohio (1969)
1) Facts
Brandenburg made a speech at a KKK rally; 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.”
2) Const. Q
Does Ohio’s law, which prohibits public speak advocating for various legal activities, violate Brandenburg’s free speech?
3) Decision (Unanimous)
Overturn Ohio Law, precedent
New Test: Imminent Lawless Action
- restrict speech when it advocates for lawless action AND is likely to produce said action
-law did not make distinction between advocacy and causation; therefore, was overly broad and in violation of first amendment
US v. O’Brien (1968)
1) Facts
O brien burned his draft card outside a court house. Prosecuted on 1965 amendment to selective service act of 1948 - prohibits destruction of draft card
2) Const Q.
amendment an unconstitutional infringement on O’ Brien’s freedom of speech?
3) Majority (Warren)
no. O’Brien Test
a) Within the Const power of Govt?
b) furthers imp/substantial govt interest
c) govt interest is unrelated to suppression of free expression (content neutral)
d) narrowly tailored - least restrictive means possible, leaves other mediums to voice same message available
4) Dissent (Douglas)
- no substantial govt interest, war not declared, draft during peacetime?
New York Times v Sullivan (1964)
1) Facts
- NYT article criticized MOntgomrey, AL city commissioner (Sullivan) for arrest of MLK. Sullivan sued for libel and won - article contaitned factual errrors. cast to SCOTUS
2) Const Q.
- 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?
3) Unanimous (Brennan)
Yes. Reverse libel standard: show falsehood, claim damage) had chilling effect.
Errors inevitable in free press, “breathing space”
Public official must show speaker’s actual malice (reckless disregard for the truth) to receive damages (ACTUAL MALICE TEST)
4) standing precedent for libel cases with public officials
NYT v. US (1971)
1) Facts
- Pentagon Papers case. PRIOR RESTRAINT (govt trying to prevetn publication/speech) Nixon administration tried to prevent the nyt from publishing articles regarding the US involvement in Vietnam on grounds of national security
2) Question: Did the Nixon administration’s efforts to prevent the publication of “classified information” violate the First Amendment?
3) Conclusion: Yes. 6-3 Decision. Court held that prior restraint was unconstitutional. The majority justices agreed that “Only a free and unrestrained press can effectively expose deception in government…In revealing the workings of government that led to the Vietnam War, the newspapers nobly did that which the Founders hoped and trusted they would do.” Dismissing the claimed threat to national security, the Court continued, “The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.”
4) Concurrence (Douglas): The need for a free press as a check on government prevents any governmental restraint on the press.
5) Concurrence (Brennan): Grants there are certain instances (troop movement, etc.) in which the government can restrict publication. He adopts the Brandenburg standard, meaning that the publication must lead to an imminent harm/clear & present danger to warrant censorship.
6) Dissent (Burger): The societal consequences of the release of sensitive information should have been thoroughly discussed with the government. Their were faults in the proceedings (lack of thorough investigation into documents). There was a lack of attention towards national security and the rights of the Executive.
Cohen v. California (1971)
1) Facts
Cohen wore fuck the draft jacket to court. Charged with CA law that prohibits disturbing the peace. CA courts: chaplinsky fighting words.
2) Const Q
- Did CA statute, prohibiting the display of offensive messages such as “Fuck the Draft,” violate freedom of expression?
3) Majority (harlan)
- jacket as expressive speech. not directed at a specific person
- “one man’s vulgarity is another man’s lyric”
- struck down offensive speech lawas across the nation
- protect emotive (expression of emotions) and cognitive (expression of ideas)
Texas v. Johnson (1989)
1) Facts
- Johnson burned American flag at rally in front of city hall. Arrested and charged under law that prohibtied flag burning.
2) Const q
- Is the desecration of an American flag (burning or otherwise) a form of speech that is protected under the First Amendment?
3) Majority (brennan)
- flag burning as expressive speech with distinctly political message
- govt cannot engage in viewpoint discrimination: ban views viewed as unpopular
4) Dissent (Stevens)
- flag as national unity = outweigh symbolic speech concerns
5) SIgnificance
- viewpoint discrimination identified as violation of bedrock of first amendment, strict scrutiny standard set forth
Snyder v. Phelps (2011)
1) Facts
- Westboro baptist church protests gay fallen soldier funeral. follows all protest laws, but uses hard language and are extremely offensive. family sues.
2) Const Q
- Does the first amendment protect funeral protesters from liability or potentially inflicting emotional damages to the family of the deceased?
3) Majority (chief justice roberts)
- doctrine: content, form, contect
Content: public issue - protest political policies
-Offensive but peaceful protest, obey all public forum law - content neutral restrictions: time - place- manner restrictions, protect free speech
Degrees of Scrutiny
1) Content- neutral
- time/place/manner restrictions
- low scrutiny
- imp state interest + narrow tailoring- leave ample measn of communication
2) Content-Based
- ban all points of view
- medium scrutiny
3) Viewpoint- based
- favor/oppose one view
- strictest scrutiny+ compelling govt interest +narrow tailoring (least restrictive means possible)
- texas v johnson
Tinker v. Des Moines (1969)
1) Facts
Tinker kids protest vietnam war with black peace armbands, suspended after refusal to remove it
2) Const Q
- does prohibition of wearing arm bands in public school, as means of symbolic protest, violate students first amendment rights?
3) Majority (Fortas)
- dismisses ides that students should have fewer rights
- dismisses idea that armbands are conduct, not speech
- school need to prove that speech would substantially interfere with education
4) Sig
- student speech, symbolic speech, etc
Morse v. Frederick (2007)
1) facts
- bong rips for jesus, students suspended after displaying banner at school trip
2) Const Q
- does fist amendment prohibit schools from preventiing students to displaying promotional messages for illegal drug use on school trips
3) Majority (Chief Justice Roberts)
- school has right
- uphold Tinker, but distinguish. Tinker = political speeh
- TInker not absolute = allow limits
Uniqueness of School setting
- students do not have full rights
- state interest: protect against drug use
Limited student right: non-political + compelliing state interest = uphold suspension
4) Concurrence (Thomas)
- overturn tinker
- speech rights only for adults
5) Stevens (Dissent)
- no threat
- viewpoint discrimination - school sets message, bans others
- student has full speech rights
6) Siginificance: Tinker not absolute, students not full speech rights
R.A.V v City of St. Paul (1992)
1) Facts
- teenagers burned cross into black family’s lawn
- charged under statute that prevents display of symbol that offends others on base of being a protected class
2) const Q
- is law overly broad and content-based to a degree of violation of free speech?
3) Unanimous (Scalia)
yes, overturn law.
- viewpoint discrimination: govt forms narrative, promotes ideas
- can’t ban only certain fighting words = handicap of debate
- grant imp state interest, but law unconst
The Harm Principle
1) mill
2) only valid suppression of speech is when preventing direct, physical harm to others
3) applications to imminent lawless action (Brandenburg)
Three Justifications of Free Speech
1) Truth value
- risk suppressing truth
- false opinions prevent truths from becoming
- Mixed opinions clash together to from truth
2) Expressive vallue
- safety release
- tolerance
- supress indiv
3) Political Value
- imperatve for dem
- examine govt
- debate merits of candidates
