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JOUR 618 > Midterm > Flashcards

Midterm Flashcards

1
Q

The Zenger trial was the first?

A

American free speech dispute

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2
Q

Hamilton’s Arguement

A

for Zenger to be guilty, his libel must be false

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3
Q

Zenger published

A

several seditions libels in the new york weekly journal

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4
Q

zenger was acquitted because

A

the members of the jury ignored the law

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5
Q

when members of the jury ignore what the law says and do what they believe is justice this is called

A

jury nullification

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6
Q

what is the basic purpose of the articles of the constitution

A

articulate the powers of the branches of the federal government

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7
Q

article 1 of the constitution gives who power?

A

congress

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8
Q

article 2 of the constitution gives who power?

A

the executive branch

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9
Q

article 3 of the constitution gives who power?

A

the judiciary

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10
Q

what is the purpose of the bill of rights?

A

limit the power of the federal government by stating what it cannot do

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11
Q

the bill of rights specifically lists

A

the rights enjoyed by individuals

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12
Q

who was the major driving force behind the bill of rights

A

george mason

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13
Q

two level analysis by supreme court part 1

A

Is the law constitutional as written? (unconstitutional on its face)

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14
Q

two level analysis by supreme court part 2

A

if yes, is the law being enforced discriminatorily? (unconstitutional as applied)

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15
Q

what were two of the acts of the first free speech crisis?

A

sedition and alien acts of 1789

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16
Q

purpose of the sedition act

A

to outlaw written or spoken expression critical of the federal government and other and other persons and institutions when the united states is at war

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17
Q

define the alien act

A

us may expel any alien at any time, without cause

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18
Q

Virginia and Kentucky Resolutions ruled

A

sedition acts are illegal, passed by state legislatures

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19
Q

Kentucky Resolution

A

sedition is illegal

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20
Q

Virginia Resolution

A

sedition act violates the FA

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21
Q

Adams role in the bill of rights

A

opposed bill of rights

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22
Q

adams role in sedition and alien act

A

passed acts to silence political dissent in prep for an undeclared war on France

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23
Q

Jefferson and the bill of rights and sedition acts

A

supported bill of rights, hated alien and sedition acts

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24
Q

Madison created this plan for the three-branch government

A

the virginia plan

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25
Q

Marbury vs. Madison

A

established that courts have power to say what the law is, and to declare laws unconstitutional if they do not agree with the federal constitution

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26
Q

why was marbury v. madison important

A

gave the power to the supreme court to declare laws unconstitutional (previously the supreme court had no power)

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27
Q

habeas corpus

A

legal proceeding in which a person who has been detained has the right to demand that the government articulate the reason for the arrest

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28
Q

exception to habeas corpus

A

cases of rebellion or invasion the public safety may require it

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29
Q

power of congress v. power of president

A

only congress could suspend h/c because clause is in article 1 (outlines the power of congress)

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30
Q

what were the principal issues in Merryman and Vallandigham?

A

restrictions on free speech during wartime

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31
Q

14th amendment liberty clause applies to the first amendment to the states?

A

yes

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32
Q

Gitlow v. New York

A

involved a conviction for iolation of new york’s criminal anarchy law - distinction between advocacy of overthrow, and advocacy of use of violence in overthrow

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33
Q

content restrictions (3)

A

sedition, fighting words/inciting language, symbolic speech and speech plus

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34
Q

sedition

A

expression that is critical of the government and/or government officials

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35
Q

sedition is _______ by the first amendment

A

generally protected

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36
Q

the espionage act of 1917 dealt with

A

Whoever, whenever the United States… shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty,…, or shall willfully obstruct the recruiting or enlistment service of the United States”

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37
Q

the sedition act of 1918 did what with the espionage act

A

covered a broader range of offenses, notably speech and the expression of opinion that cast the government or the war effort in a negative light or interfered

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38
Q

Schenk v. US was an example of what standard through WWII

A

Sedition - Clear and present danger - schenck

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39
Q

Abrams v. US was an example of what standard through WWII

A

sedition - clear and imminent danger - russian immigrants

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40
Q

The Whitney v. California case is an example of

A

state criminal syndicalism laws

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41
Q

whitney provided a distinction between ___ and ___

A

advocacy of overthrow and advocacy of use of violence in overthrow

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42
Q

Fiske refines a distinction between?

A

mere advocacy and violent action

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43
Q

Throughout WWII there was a movement along the spectrum for

A

protection of seditious language

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44
Q

What case brings to question does the first amendment apply to the states?

A

gitlow v. new york also was used in de jonge v. oregon

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45
Q

why does the 1st amendment apply to the states

A

14th amendment liberty clause, incorporation doctrine

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46
Q

What did the Smith Act of 1940 do?

A

rendered unlawful any advocacy of overthrow of U.S government by force or violence

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47
Q

“overthrow by force or violence” applies to what act?

A

smith act of 1940

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48
Q

Smith Act put into statutory form the holdings of the supreme court from what 2 cases?

A

Schenck and DeJonge

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49
Q

Dennis vs. deals with what act and why

A

Smith Act, communist doctrine fear in the overthrowing of the US government

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50
Q

Yates vs. deals with what act

A

Smith act

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51
Q

the Yates case provided what

A

how far one could go in rhetoric

52
Q

advocacy of government overthrow vs advocacy of use of violence appeared from what court case

A

yates

53
Q

“marketplace of ideas” a free speech concept allowing for expression of all opinions was created by who

A

holmes

54
Q

“more speech, not less speech” was who?

A

brandeis - but be imminent danger to stop free speech

55
Q

After WWII There was movement on the spectrum for

A

more protection of seditious language

56
Q

what is legislative privilege

A

right of the member of a legislature to speak freely to the house, without fear of being sued for slander

57
Q

6 rights in the first amendment

A
  1. no state established religion
  2. free exercise of religion
  3. speech
  4. press
  5. right of assembly
  6. right of petition
58
Q

prior restraints definition

A

is censorship imposed, usually by a government or institution, on expression, that prohibits particular instances of expression.

59
Q

after the speech is communicated, the speaker may be punished in certain circumstances (ex. sedition) based off of what

A

prior retrain

60
Q

the first big case on prior restraints

A

near v. minnesota - a muckraking newspaper published by near

61
Q

lesson from the Near case

A

any prior restraint is improper but unlawful speech may be punished after the fact is still possible

62
Q

The F/A protects expression which inflames public passions against government – as long it doesn’t advocate overthrowing government by unlawful means was from what case?

A

Near

63
Q

Nebraska Press Association case dealt with what?

A

Prior restraint and jury taint

64
Q

Sneep impacted our understanding of FA rights by saying that…

A

individuals can waive their first amendments bu the waiver must be voluntary and knowing

65
Q

the pentagon papers were a

A

dispute over publication of a secret history of the us involvement in the Vietnam war

66
Q

New York Times vs. US found

A

government’s national security arguement was insufficient and publication was allowed

67
Q

Two exceptions to free speech

A

national security and fair ftrail

68
Q

national security as an exception to free speech

A

injunctions against publication of material damaging to national security

69
Q

right to a fair trial as an exception to free speech

A

court orders that litigants and media may not talk/write about judicial hearings so the judicial process is not disrupted

70
Q

what did regina v. hiclin do

A

outlined the obscenity test used in great britain and the us until the mid 20th century

71
Q

3 problems with the hicklin rule

A
  1. allowed prosecutions based on isolated passages, not the entire work
  2. ignored the intended audience of the work
  3. provided little guidance as to what is, and is not, obscene; rather, it focused on the effect of the material to the consumer
72
Q

the comstock act came after

A

the post-civil war morality “crisis”

73
Q

the comstock act did what

A

prohibited the distribution of immoral materials by the us mail

74
Q

most obscenity prosecutions have been what?

A

comstock act cases

75
Q

What happened in Rosen v. US

A

rosen sent “dirty” pictures in the mail

76
Q

In Rosen, what became the accepted test for obscenity cases

A

hicklin rule

77
Q

what came about after swearingen v. US

A

definition of obscentiy

78
Q

how was obscenity defined after swearingen

A

material containing sexual content (these were the only obscenity cases moving forward)

79
Q

what question was asked in Roth vs. US? what was the answer to this question

A

is obscenity protected under the first amendment? Answer, no

80
Q

Roth vs. US rejected what? Because of the reliance on _____.

A

Hicklin. Reliance on community

81
Q

Roth Test evaluates what 5 elements initially

A
  1. average person
  2. contemporary community standards
  3. dominant theme
  4. entire work
  5. prurient form
82
Q

define prurient

A

marked by or arousing an immoderate or unwholesome desire or interest

83
Q

Memoris v. Mass. dealt with what idea?

A

morality

84
Q

How is morality protected by the first amendment

A

controversial expression about morality is protected as long as the expression is not obscene

85
Q

memoris v. mass added which element to the Roth test

A

material must be utterly without redeeming social value

86
Q

Miller v. California rejected what 2 things

A

roth

obscene does not = sexual content

87
Q

Trend over time with fighting words/inciting language

A

protect more speech

88
Q

with fighting words/inciting language there is a development of

A

“non-protection” for worthless language (ie language which as no such inherent value

89
Q

Cantwell takeaway

A

says that some speech is not worth protecting

90
Q

Chaplinsky

A

worthless v. worthwhile speech

91
Q

what are the three types of worthless speech in caplinsky

A

lewd/obscene, libel, fighting words

92
Q

Categories of fighting words

A

offesive, provoking breach of the peace

93
Q

Court analysis in fighting words and inciting language

A
  1. is the law constitutional

2. did the defendant’s speech violate the law?

94
Q

Feiner case takeaway

A

prospect of riot; dissent; what is the proper role of the police

95
Q

Cohen case takeaway

A

ended “worthlessness” of offensive speech; speech can have emotive meaning

96
Q

Gooding case takeaway

A

to be “worthless”, provoking words must be face-to-face and likely to cause imminent violence

97
Q

free speech protection evolved from _____ to _____

A

“worthless vs worthwhile” to likelihood of inciting imminent lawless action

98
Q

What is the staple case in flag burning?

A

texas v. johnson

99
Q

communicating through taking a certain action is an example of?

A

Manner

100
Q

Why is flag burning protected by the first amendment?

A

we submit that nobody can suppose that this one gesture of an unknown man will change our Nation’s attitude towards its flag

101
Q

time, place, manner means what?

A

not what is being said but where, when, and how it’s being said

102
Q

Relavent Factors in TPM analysis

A

public vs. private property
time of day
nature of location: part, street sidewalk
Specific locations: gov’t building, university, military base
inside or ourside
use of artificial amplification
permit and/or free requirements

103
Q

The first amendment only applies to

A

government action, not private action

104
Q

Can government restrict speech on private property?

A

the rules are different from what the owner can do

105
Q

Can the government prohibit speech on the property of a private residence

A

example: commercial solicitations, non-commercial speech

106
Q

Private vs. public property is another balance of

A

liberty v. security

107
Q

Why does the first amendment apply to states and cities?

A

they are subject to the TPM rules through the application of the 14th amendment

108
Q

What is the davis case an example of?

A

place restriction on free speech

109
Q

what is the hague case an example of

A

a place restriction, in particular, permit restrictions

110
Q

what is the cox case an example of

A

municipality has authority to control its public streets

111
Q

Private property allows 2 things:

A

absolute right to exclude visitors

no need to be a captive victim of unwanted speech

112
Q

Frisby tpm restrictions said that

A

no blanket prohibition covering entire residential areas

113
Q

balance of liberty v. security in private property

whose liberty?
whose security?

A

liberty - demonstrator’s

security - homeowner’s

114
Q

the compatability use test of public property asks what question

A

is expressive activity compatible with the typical use of the property? or does the use fit with how the place is normally used?

115
Q

grayned ruling provided what rule?

A

compatibility rule

116
Q

Burson v. Freeman brought to attention what TPM topic

A

limitations on campaign activities within a certain distance of polling places

117
Q

rationale for polling place limitations

A

maintain peace and order and decorum there

118
Q

free speech in institutions is a ___ limitation

A

place limitation becauase it occurs in a certin place

119
Q

overarching consideration regarding free speech in institutions

A

what interests are at stake in balancing security v. liberty?

120
Q

two examples of the role of the institution in our society

A

high schools and military

121
Q

restrictions on high schools and the military are allowed due to…

A

the institutions role in the society, not necessarily content based.

122
Q

the Tinker case (black armbands to school) is an example of what type of speech in school

A

non-disruptive, pure speech

no indication that the work of the schools or any class was disruptive

123
Q

the Fraser case (suggestive speech by a student council candidate) is an example of what type of speech in school

A

lewd, indecent speech

“vulgar and lewd” exception from student FA right

“The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent’s would undermine the school’s basic educational mission”

124
Q

the Hazelwood case (school censored student newspaper) is an example of what type of speech in school

A

speech in school-sponsored activities

schools can regulate length, distribution, etc. of school paper but not content

not protected

125
Q

the Morse case (Bong Hits for Jesus) is an example of what type of speech in school

A

speech that is not indecent, but is arguably disruptive and does not promote educational purpose

not protected

JOUR 618 (2 decks)

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