Midterm Quotes Flashcards by Ashlynn Tirrell

• “It is essential to the Being of Government that a Power should always exist which no other Power within such Government can have Right to withstand or controul: Therefore, when the word Power relates to the Supreme Authority of Government it must be understood absolute and unlimited.

o Gov. Thomas Hutchinson, 1773 (to Council & House of Representatives)

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• “…and if you are still of Opinion that two Jurisdictions, each of them having a Share in the Supreme Power, are compatible in the same State, it can be to no Purpose to Reason or Argue upon the other Parts of your Message. Its enough to observe that this Disagreement in our Principles will have its Influence upon all the Deductions which are made from them.”
o They will never be able to meet or see eye to ey because they disagree so fully and entirely.

o Gov. Thomas Hutchinson, 1773 (to Council & House of Representatives)

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• “…from the Nature of Government a Suprem[e] Legislative Power must always exist over all the Parts and all the Affairs of every Dominion—that in absolute Monarchies the Legislative and executive Powers are united in the Prince or Monarch—that in the English Constitution there is, and always has been, a Legislative Power distinct from the regal or executive Power.”
o Even in Kingdoms with absolute monarchs. The executive and legislative work together always
o The British Monarchy is not an absolute Monarch
 Constitutional monarchy is established under William and Mary (glorious Revolution)
 A parliamentary supremacy is also established.

o Gov. Thomas Hutchinson, 1773 (to Council & House of Representatives)

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• The House will “take such Measures as are consistent with our Constitution and the Rights of the People to promote and maintain [law and order, the govt. and public happiness]. That the Government at present is in a very disturbed State is apparent! But we cannot ascribe it to the People’s having adopted unconstitutional Principles, which seems to be the Cause assigned for it by your Excellency. It appears to us to have been occasioned rather, by the British House of Commons assuming and exercising Power inconsistent with the

o Reply of the House to Hutchinson’s First Message (Jan 26, 1773)
 Rejects Parliamentary Supremacy (Total Legislative Power)

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• “…when the Parliament by an Act of their own expressly declared, that the King, Lords and Commons of the Nation ‘have, had, and of Right ought to have full Power and Authority to make Laws and Statutes of sufficient Force and Validity to bind the Colonies and People of America, Subjects of the Crown of Great-Britain, in all Cases whatever,” and in Consequence hereof another Revenue Act was made, the Minds of the People were filled with Anxiety, and they were justly alarmed with Apprehensions of the total Extinction of their Liberties.”

o Reply of the House to Hutchinson’s First Message (Jan 26, 1773)

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• “For nothing is more evident, than that any People who are subject to the unlimited Power of another, must be in a State of abject Slavery. It was easily and plainly foreseen that the Right of Representation in the English Parliament could not be exercised by the People of this Colony. It would be impracticable, if consistent with the English Constitution. And for this Reason, that this Colony might have and enjoy all the Liberties and Immunities of free and natural Subjects within the Realm as stipulated in the Charter it was necessary, and a Legislative was accordingly constituted within the Colony; one Branch of which consists of Representatives chosen by the People, to make all Laws, Statutes, Ordinances, &c. for the well-ordering and governing the same, not repugnant to the Laws of England, or, as nearly as conveniently might be, agreeable to the fundamental Laws of the English Constitution.”

o Reply of the House to Hutchinson’s First Message (Jan 26, 1773)
 Elizabeth I, James I, etc. granted land to proprietors and corporations with govt. powers the legislative powers to represent, assemble, and tax.
o The Monarch’s granted this to them. therefore we have received this power to run things the way we want.
o Absolute power is tyrannical and leads to slavery.
 They feel very strongly about this.
o As they look through their charters they have the same rights of Parliament as long as they follow the basic rules.

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• “But that the Principles adopted in Consequence hereof, are unconstitutional, is a Subject of Enquiry. … If Grand Jurors have not on their Oaths found such Offences, as your Excellency with the Advice of his Majesty’s Council have ordered to be prosecuted, it is to be presumed they have followed the Dictates of good Conscience. They are the constitutional Judges of these Matters, and it is not to be supposed, that moved from corrupt Principles, they have suffered Offenders to escape a Prosecution, and thus supported and encouraged them to go on offending. If any Part of the Authority, shall in an unconstitutional Manner, interpose in any Matter, it will be no wonder if it be brought into Contempt; to the lessening or confounding of that Subordination which is necessary to a well regulated State.”

o Reply of the House to Hutchinson’s First Message (Jan 26, 1773) .
 Grand Jurors – Constitutional Judges

o Jurors are constitutional protectors .They are the last line of defense
o Grand jurors have stood up against the leaders
o Make law and elect representatives and working as a juror in order to help provide evidence for cases and judging the constitution.
o Upholding and playing the role in the Constitution
 Protect the rights of individuals and citizens.

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• “As a sister colony, suffering in defense of the rights of America, we consider your injuries as a common cause, to the redress of which it is equally our duty, and our interest to contribute. But what ought to be done in a situation so truly critical, while it employs the anxious thoughts of every generous mind, is very hard to be determined.”

John Jay letter to Committee of Correspondence in Boston, 1774. From 51 - member committee in NY

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• “From a virtuous and spirited union much may be expected, while the feeble efforts of a few will only be attended with mischief and disappointment to themselves and triumph to the adversaries of liberty.”

John Jay letter to Committee of Correspondence in Boston, 1774.
 Realized it needed to be a united front
o Everyone has the individual liberties. They see this threat to the people and know that something must be done.

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• “Upon these reasons we conclude, that a Congress of Deputies from the colonies in general is of the utmost moment; that it ought to be assembled without delay, and some unanimous resolutions formed in this fatal emergency, not only respecting your deplorable circumstances, but for the security of our common rights.”

John Jay letter to Committee of Correspondence in Boston, 1774.
 Called for a General Congress
o Hold onto your rights and your wallets when the government starts talking about emergencies.

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• “Know then. That we consider ourselves, and do insist that we are and ought to be, as free as our fellow-subjects in Britain, and that no power on earth has a right to take our property from us without our consent.”

Letter to People of GB, 1774
o Jay is not British but most of the people are from GB.
o Audience of these quotes is the people of GB.
o Common theme

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o “When a nation, led to greatness by the hand of liberty, and possessed of all the glory that heroism, munificence, and humanity can bestow, descends to the ungrateful task of forging chains for her friends and children; and instead of giving support to freedom, turns advocate for slavery and oppression, there is reason to suspect she has either ceased to be virtuous, or been extremely negligent in the appointment of her rulers.”

Letter to People of GB, 1774
Evil Scheme - loss of Constitutional Governance and rights was no accident
 Premeditated scheme that was put together by the wicked Governors.
 Jury trials are essential to Liberty.
• They had seen to many instances of people changing the rules to fit the “jury trial” into the little box that they want it to be.

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• “What, among other things, can appear more unworthy of credit than that, in an enlightened age, in a civilized and Christian country, in a nation so celebrated for humanity as well as love of liberty and justice as the English once justly were, a prince should arise who, by the influence of corruption alone, should be able to reduce them into a combination to reduce three millions of his most loyal and affectionate subjects to absolute slavery, under a pretence of a right, appertaining to God alone, of binding them in all cases whatever, not even excepting cases of conscience and religion?”

o CJ Jay’s Charge to the Grand Jury of Ulster County, 1777
 How secure is our liberty and Constitution?

o Britain was the freest country on earth at this time. But they are starting to become corrupt and are no longer able to do or accomplish what they are set out to do.
o The colonists have been super loyal and now they are treating us like nothing.
o God is the only one that should be allowed to say that he has all rights to bind us.
o The colonists believe that they are in absolute slavery.

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• “The infatuated sovereign [Govt.] of Britain, forgetful that kings [Govt.] were the servants, not the proprietors, and ought to be the fathers, not the incendiaries of their people, hath, by destroying our former constitutions, enabled us to erect more eligible systems of government on their ruins; and, by unwarrantable attempts to bind us in all cases whatever, has reduced us to the happy necessity of being free from his control in any.”

o CJ Jay’s Charge to the Grand Jury of Ulster County, 1777
 Providence

o God is the only one that should be allowed to say that he has all rights to bind us.
o The colonists believe that they are in absolute slavery

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 “The Americans are the first people whom Heaven has favoured with an opportunity of deliberating upon, and choosing the forms of government under which they should live. All other constitutions have derived their existence from violence or accidental circumstances, and are therefore probably more distant from their perfection, which, though beyond our reach, may nevertheless be approached under the guidance of reason and experience.” -

CJ Jay’s Charge to the Grand Jury of Ulster County, 1777

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 Constitutions cannot be adopted by govts. – only the people

Art. V – amendment process

• Founders put a clause in there in order to allow the people the right to change law.

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o “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Preamble

 2/3 vote of both houses and ratification by ¾ of the states in order to amend the Constitution

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o “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Article VI - Supremacy

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o The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.”

Article VI - Supremacy

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• “Experience in all the States had evinced a powerful tendency in the Legislature to absorb all power into its vortex. This was the real source of danger to the American Constitutions, and suggested the necessity of giving every defensive authority to the other departments that was consistent with republican principles.”

 James Madison, Federal Constitutional Convention, July 21, 1787

o Montesquieu warned the world of tyranny. It comes when we put all power in one person or one legislature.
 They discovered that even state legislatures could become corrupt and tyrannical.
o The legislature would make laws and continue to give themselves more and more power until they had it all.
o We need to always be protecting ourselves against tyranny.

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• “…the equal vote allowed to each state, is at once a constitutional recognition of the portion of sovereignty remaining in the individual states, and an instrument for preserving that residuary sovereignty. So far the quality ought to be no less acceptable to the large than to the small states; since they are not less solicitous to guard by every possible expedient against an improper consolidation of the states into one simple republic.

Federalist No 62 - JMAD

o Bicameralism – very important.
o Connecticut compromise is a protection for the States and a control on the federal government
 But the States were still picking the Senators at this time.
 They did not have to be chosen by people.

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• Another advantage accruing from this ingredient in the constitution of the senate, is the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the [1] concurrence first of a majority of the people, and then of a [2] majority of the states.

Federalist No. 62 - JMAD

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• “The proposed Constitution therefore…is in strictness neither a national nor a federal Constitution; but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the Government are drawn, it is partly federal, and partly national: in the operation of these powers, it is national, not federal. In the extent of them, again, it is federal; not national: And finally in the authoritative mode of introducing amendments, it is neither wholly federal, nor wholly national.”

Federalist No. 39 - JMAD

o Our General Government is a federal government
o We created a new form of government that was both national and federal.

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• “The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.”

Federalist No. 45 - JMAD

o Executive orders could be productive but too many of them are way to many
o Charles I didn’t want to rule with Congress so he issued “executive orders” and then refused to call Parliament for 11 years
o We need to worry that there are far to many executive orders being done right now.
o They had to work together and compromise at this point to get this across. This is why States have so much power.

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• “It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

Federalist No. 78 - AH  “Least dangerous branch,” why? o The courts cannot enforce their own rules

• “When the courts will have a precedent before them of a court which extended its jurisdiction in opposition to an act of the legislature, is it not to be expected that they will extend theirs, especially when there is nothing in the constitution expressly against it? and they are authorised to construe its meaning, and are not under any controul?”

Brutus No. 11 o The federal judiciary was new and they did not have as much power as the State Courts. Although this is not the case anymore.

 “That the judicial power of the United States, will lean strongly in favour of the general government, and will give such an explanation to the constitution, as will favour an extension of its jurisdiction, is very evident from a variety of considerations.”

Brutus No. 11 * Anti-federalists are very worried about the judiciary * They don’t want a government that is going to create a larger federal government and are going to shrink the powers of the state.

• “This great principle is that the Constitution and the laws made in pursuance thereof are supreme [Art. VI]; that they control the Constitution and laws of the respective States, and cannot be controlled by them. …That, where… repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme.” - McCulloch v. Maryland (1819)

McCulloch v. Maryland (1819) o Establishes national supremacy in this case. Uses judicial review to establish this idea and make the courts more powerful.

• “It cannot be too strongly impressed on the minds of us all how greatly our individual prosperity depends on our national prosperity, and how greatly our national prosperity depends on a well organized, vigorous government, ruling by wise and equal laws, faithfully executed; nor is such a government unfriendly to liberty—to that liberty which is really inestimable; on the contrary, nothing but a strong government of laws irresistibly bearing down arbitrary power and licentiousness can defend it against those two formidable enemies. Let it be remembered that civil liberty consists not in a right to every man to do just what he pleases, but it consists in an equal right to all the citizens to have, enjoy, and to do, in peace, security, and without molestation, whatever the equal and constitutional laws of the country admit to be consistent with the public good. It is the duty and the interest, therefore, of all good citizens, in their several stations, to support the laws and the government which thus protect their rights and liberties.”

Marbury v. Madison - CJ John Jay, Charge to Grand Juries, 1790 o Got to have good government in order to have good life. o Founders are not trying to make power unlimited.  Power brings problems and takes away rights and liberties of the people  Good government has to provide life, liberty or it will restore to the laws of the beginning everyone for themselves o Goal is the public good and the law is going to benefit everyone the same. o Benefit of all good citizens to follow the states. o Law and ordered needs to be reformed not pulled down  Many of those pulling down the government don’t want to have any form of law, we will result to Hobbs everyman for himself.

 “We admit that, in many places and in ordinary times, the defendants…circular, would have been within their constitutional rights.

Justice Oliver Wendell Holmes - Shenck v United States

 But the character of every act depends upon the circumstances in which it is done. [For example] …The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. • Speech can be limited

Justice Oliver Wendell Holmes - Shenck v United States

 …The question in every case is whether the words used 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 prevent.”

J. Oliver Wendell Holmes - Shenck v United States | New Test still developing

 When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right. • Every war is circumstantial

J. Oliver Wendell Holmes - Shenck v United States | Courts have more deference for the Government during wartime

 It seems to be admitted that, if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. [However] The statute of 1917, in § 4, punishes conspiracies to obstruct, as well as actual obstruction. If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime.”

J. Oliver Wendell Holmes - Shenck v United States | Act does not have to be successful to be a crime

 C.P.D. Test is being developed and is still more Bad Tendency Test, Which is easier test for Govt to meet, why? • Clear and Present Danger Test • Bad tendency is easier o Things have a habit of following bad tendency o Find the balance that allows citizens to criticize without fighting.

J. Oliver Wendell Holmes - Shenck v United States | Act does not have to be successful to be a crime

 “The main theme of the speech was Socialism, its growth, and a prophecy of its ultimate success. With that we have nothing to do, but if a part or the manifest intent of the more general utterances was to encourage those present to obstruct the recruiting service, and if, in passages, such encouragement was directly given, the immunity of the general theme may not be enough to protect the speech. …We are of opinion that the verdict on the fourth count, for obstructing and attempting to obstruct the recruiting service of the United States, must be sustained.” • Look at the intent of the person • Would be protected under the first amendment if we didn’t’ look at these other points.

J Holmes - Debs v. united States

“The Russian Revolution cries: Workers of the World! Awake! Rise! Put down your enemy and mine! Yes! friends, there is only one enemy of the workers of the world and that is CAPITALISM. Awake! Awake! you Workers of the World! If they will use arms against the Russian people to enforce their standard of order, so will we use arms, and they shall never see the ruin of the Russian Revolution.”

Jacob Abrams - Abrams v United States * Some of it sounds like rhetoric and some of it sounds really bad. * It is discussing a call to arms * Is it articulating a fight against the US.

 “The purpose of this obviously was to persuade the persons to whom it was addressed to turn a deaf ear to patriotic appeals in behalf of the Government of the United States, and to cease to render it assistance in the prosecution of the war.”

J John H. Clarke - Abrams v United States

 “These excerpts sufficiently show that...the plain purpose of their propaganda was to excite, at the supreme crisis of the 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.” • We can look at them and see if they are going to do anything about it • But in Russia they had just overthrown the Government (and now these people are calling for the same thing in the US.)

J John H. Clarke - Abrams v United States

 “But, as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country.”

J Holmes - Abrams v United States | C.P.D. Test (In Dissent)

 “a silly leaflet by an unknown man, without more, [does not]…present any immediate danger [to]…the success of the government ….”

J Holmes - Abrams v United States | C.P.D. Test (In Dissent)

 Competition of the market…. • “… I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. “Of course, I am speaking only of expressions of opinion and exhortations, which were all that were uttered here …” o He had been helping to put people in prison for the same reasons as this one. o Court tends to give deference to the other two branches when there is a war going on. o He is trying to get rid of the bad tendency test o Can you talk about committing a crime or advocate for others to commit a crime

J Holmes - Abrams v United States | C.P.D. Test (In Dissent)

 “It is a fundamental principle…that the freedom of speech and of the press …does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that …prevents the punishment of those who abuse this freedom. …“That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical [contrary] to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to question.”

J Edward T. Stanford - Gitlow v People of the State of New York • Recognized under the 10th amendment the government has police power

 …a State may penalize utterances which openly advocate the overthrow of the representative and constitutional form of government of the United States and the several States, by violence or other unlawful means. …In short, this freedom does not deprive a State of the primary and essential right of self-preservation, which, so long as human governments endure, they cannot be denied.” • Constitution is not a suicide pact • Don’t have to be constitutional to the point of destruction • First law of nature is self- preservation

J Edward T. Stanford - Gitlow v People of the State of New York

 “If what I think the correct test is applied, it is manifest that there was no [clear &] present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant's views. It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement.” …“If the publication of this document had been laid as an attempt to induce an uprising against government at once, and not at some indefinite time in the future, it would have presented a different question.”

J Holmes dissent ( SCRT should have applied the new C.P.D. Test - Gitlow v. People of the State of New York

 “[Freedom of Speech] is not an absolute one, and the State, in the exercise of its police power, may punish the abuse of this freedom. There is no question but that the State may thus provide for the punishment of those who indulge in utterances which incite to violence and crime and threaten the overthrow of organized government by unlawful means. There is no constitutional immunity for such conduct abhorrent to our institutions. [see Gitlow] • Gitlow is the first case that dealt with the States

CJ Charles Hughes - Stromberg v. California

 “The question [before the court] is thus narrowed to that of the validity of the first clause, that is, with respect to the display of the flag "as a sign, symbol or emblem of opposition to organized government," and the construction which the state court has placed upon this clause removes every element of doubt.”

CJ Charles Hughes - Stromberg v. California

 “A statute which, upon its face…is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment. The first clause of the statute being invalid upon its face, the conviction of the appellant, which, so far as the record discloses, may have rested upon that clause exclusively, must be set aside.” • If you can read it and it will also punish the fair use o This case could claim that UTE Fans were breaking the rule for flying their red flags.

CJ Charles Hughes - Stromberg v. California

 “we are here confronted with a statute which…purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments.” • This is the new test that the Court will use.

Brandenburg v. Ohio

that "a government regulation is sufficiently justified … if it:  [1] furthers an important or substantial governmental interest;  [2] the governmental interest is unrelated to the suppression of free expression; and • Rule not made to restrict speech  [3] the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest.

United States v. O'Brien - Cheif Jusitice Earl Warren

o “We find that the [present federal act] meets all of these requirements, and consequently that O'Brien can be constitutionally convicted for violating it."  Big take away is the O’Brien Test

United States v. O'Brien - Cheif Jusitice Earl Warren

 “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” ******

Tinker v. Des Moines Independent Community School District - Justice Abe Fortas

 The present students “neither interrupted school activities nor sought to intrude in the school affairs or the lives of others.”

Tinker v. Des Moines Independent Community School District - Justice Abe Fortas

 “If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict, … it would be obvious that the regulation would violate the constitutional rights of students, • If the school was just stopping students from talking about the war then it would blatantly be violating their first amendment rights.

Tinker Test for Symbolic speech in Schools

 at least if it could not be justified by a showing that the students' activities would materially and substantially disrupt the work and discipline of the school. • Government (the school) • If they could show evidence as to why it was going to disrupt school activity.

Tinker Test for Symbolic speech in Schools

 …. In the circumstances of the present case, the prohibition of the silent, passive ‘witness of the armbands,’ as one of the children called it, is no less offensive to the Constitution's guarantees.”

Tinker Test for Symbolic speech in Schools

 Although I agree with much of what is said in the Court's opinion, and with its judgment in this case, I cannot share the Court's uncritical assumption that, school discipline aside, the First Amendment rights of children are coextensive with those of adults.” • They agree with the original but it is how they get to the final decision. It is not 5-1 but 2+2 • Students are not equals to adults • He disagrees with students being treated as equal to adults even though he agrees with their final decision

Tinker v. Des Moines Independent Community School District - Justice Potter Stewart Concur

 Court should not strike down reasonable school policies.

Tinker v. Des Moines Independent Community School District - Justice Hugo Black in dissent

 Because armbands distracted students and school officials from their duties, the policy was a legitimate school interest. • He claims that there is a natural distraction because people are going to comment on the armbands and thus interfere with education.

Tinker v. Des Moines Independent Community School District - Justice Hugo Black in dissent

 “In Cox v. Louisiana,…(1965), …, the Court clearly stated that the rights of free speech and assembly ‘do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time.’” • Some areas are public forums and others that are traditional public forum • The more public the more likely you are going to have protected speech. • Courts will be very reluctant to go against schools and teachers no matter how old.

Tinker v. Des Moines Independent Community School District - Justice Hugo Black in dissent

 “school officials should be accorded the widest authority in maintaining discipline and good order in their institutions. …I would, in cases like this, cast upon those complaining the burden of showing that a particular school measure was motivated by other than legitimate school concerns -- for example, a desire to prohibit the expression of an unpopular point of view, while permitting expression of the dominant opinion. Finding nothing in this record which impugns the good faith of respondents in promulgating the armband regulation, I would affirm the judgment below.” • Bring the burden to the people that are bringing the case. • Teachers are responsible for teaching the students and keeping the peace so they need to have the right and ability to make rules that are going to do just that (and not be questioned as to their reasons for that form of protection.

Tinker v. Des Moines Independent Community School District - Justice John Marshall Harlan in dissent

 “We can imagine no more appropriate response to burning a flag than waving one’s own, no better way to counter a flag-burner’s message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by—as one witness here did—according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”

Texas v. Johnson - Justice William Brennan

 "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Texas v. Johnson - Justice William Brennan

 TX can use breach of the peace statute to prevent disturbances w/o punishing flag desecration.

Texas v. Johnson - Justice William Brennan

 The Court decides that the American flag is just another symbol, about which not only must opinions pro and con be tolerated, but for which the most minimal public respect may not be enjoined. The government may conscript men into the Armed Forces where they must fight and perhaps die for the flag, but the government may not prohibit the public burning of the banner under which they fight.” • Feels as though Brennan is a little condescending • The basic public respect can’t be limited. • Not a super legal argument but rather a moral argument.

Texas v. Johnson - Chief Justice William Rehnquist - Dissent

 “The creation of a federal right to post bulletin boards and graffiti on the Washington Monument might [also] enlarge the market for free expression, but at a cost I would not pay. Similarly, … sanctioning the public desecration of the flag will tarnish its value -- both for those who cherish the ideas for which it waves and for those who desire to don the robes of martyrdom by burning it. That tarnish is not justified by the trivial burden on free expression occasioned by requiring that an available, alternative mode of expression -- including uttering words critical of the flag…be employed.” • What if we take your same principles and change these rules, o They would not be okay with desecration of the Washington Monument • Liberty that goes to far. Ordered liberty (some limits to liberty.) • We don’t have to allow it to be tarnished for no reason. They could use it to protest without desecration.

Texas v. Johnson - Justice John Paul Stevens - Dissent

• “Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral [reasonable] interests, but that it need not be the least restrictive or least intrusive means of doing so.” – - NYC controls sound equipment for a concert in central park to prevent noise disturbances. o A general rule for regulating protected speech. Time place and manner restrictions but it has to be content neutral. But it doesn’t need to be the most restrictive means.

Ward v. Rock Against Racism (1989) - Justice Kennedy

o That “’fighting' words -- those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace [or violence]” were not protected speech. “It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Chaplinsky v. New Hampshire - Justice Francis W. Murphy

o A state - can use its police power (under the Tenth Amendment) to curb such expression in the interests of maintaining order and morality.

Chaplinsky v. New Hampshire - Justice Francis W. Murphy

o "a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."  Trying to add two discussions for free speech.

Terminiello v. Chicago - Justice William Douglas

o “Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute…is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.”

Terminiello v. Chicago - Justice William Douglas

o Today, heckler’s vetoes are generally viewed as unconstitutional.  University campus are not allowing Conservative speakers come speak at the school  They can’t have speakers because their will be violence if they allow the speaker to come  Should be some more of these cases coming up to the SCRT

Terminiello v. Chicago - Justice William Douglas

 “This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” • Jackson is articulating not just the liberty of the speaker but they are going to far with crowds and how they deal with the riots.

Terminiello v. Chicago - Justice Robert Jackson - Dissent

"whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest." • Obscenity not protected • Sets up a test to determine if language is obscene

Roth v. US (1957) – obscenity is not protected speech or press. Obscene -

“It is possible to read the Court's opinion in Roth v. United States…in a variety of ways. …I have reached the conclusion…that, under the First and Fourteenth Amendments, criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

Jacobellis v. Ohio - Justice Potter Stewart - concurred

o States - had a legitimate interest in prohibiting it due to the “significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles.”

Miller v. California - Chief Justice Warren Burger

o “obscenity is to be determined by applying ‘contemporary community standards,…not ‘national standards.’"

Miller v. California - Chief Justice Warren Burger

• Miller Obscenity Test – For speech to be Obscene, and thus unprotected, the trial must determine o (a) “whether the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient [indecent, lustful] interest…; o (b) whether the work depicts or describes, in a patently offensive way, sexual conduct described by the state; and o (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Miller v. California - The question then becomes what is obscentity?

• All three prongs of the test - must be met for material to be obscene o Very difficult to prove that all three of them are met

Miller v. California - The question then becomes what is obscentity?

o “As a general rule, pornography can be banned only if obscene, but under [NY v. Ferber, 1982], pornography showing minors can be proscribed whether or not the images are obscene…. [State has a] more compelling interest in prosecuting those who promote the sexual exploitation of children."  Special case when children are involved

Ascroft v. Free Speech coalition - Justice Anthony Kennedy

o But that being said, CPPA is overly broad b/c it also prohibits computer generated images; also, it did not meet obscenity test in Miller (b/c it also prohibited indecent but not obscene material)  Tough and very unpleasant case  How could the court allow this to be protected by the first amendment?

Ascroft v. Free Speech coalition - Justice Anthony Kennedy

 “The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.”

Thomas Jefferson on Free Press - to Edward Carrington, 1787

 “Congress shall make no law… abridging the freedom of speech or of the press...”

First Amendment

words which “by their very utterance, inflict injury or tend to incite and immediate breach of the peace.”

Fighting Words

A false, defamatory statement communicated to a third person that harms one’s reputation or standing in the community or causes hatred or contempt towards the injured person.

Defamation

 “The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.