Speech, Expression, Religion, Crime, and Abortion

Where does free speech come from?

the first amendment

The First Amendment

"congress shall make no law.. abridging the freedom of speech"

What has changed about the free speech part of the first amendment?

originally written for conger to not infringe on free speech but now has been incorporated by supreme court

incorporated

means that the law now applies to the states

Schenck v. US (1919)

"clear and present danger"- speech is NOT protected if it creates a clear and present danger of causing significant harm that Congress has the power to prevent; limited free speech during wartime; "shouting fire in a crowded theater"

Gitlow v. New York (1925)

"incorporation"- states can restrict speech that has a "dangerous tendency" and free speech protections in the Bill of Rights now apply to state laws—not just federal laws; called for a violent overthrow of the government

Dennis v. US (1959)

"gravity of the evil"- If the gravity of the evil (violent overthrow) is high,

the government does not have to wait until the danger is imminent.; charged with violently trying to overthrow the government

Brandenburg v. Ohio (1968)

"imminent lawless action" - Speech can only be punished if it is: intended to incite imminent lawless action, and likely to produce such action.; this is still in effect; kkk leader references to possible "revengeance" against the government

Can these 4 free speech cases be restricted?

yes

What's important about the 9 cases heard by the SC between 1956-1967?

in ALL 9 cases, the courts sided with communists free speech

Where the 9 cases counter-majoritarian?

yes - very unpopular

1950's communists cases: public opinion polls

majority opposed communist speech

1950's communists cases: attacks

- bills sent to restrict court from hearing communism cases

- from republicans: anti-communists

- from southern democrats: they were paranoid racists who believed the communists were in need of civil rights movements (also a communist movement); "red (communism) is black (African Americans)"

1950's communists cases: grassroots majorities

some pushback; ex. at the American bar association (lawyers) national conference, the chief justice of the US is invited, he goes and they read a resolution that rebukes the court's decision- they wanted to humiliate him in public

1950's communists cases: congress majorties

the closest we get to an attack working EVER; the attack is sc can't hear communist free speech cases anymore -> the house passes -> the senate is about to pass (one leader, Johnson, doesn't want it to pass) -> he says adjourned for the day -> they say we voting -> he writes every name that says that and makes sure they dont get reelected -> convinces senators all night to not vote to pass -> he wants a tie -> he locks one of the senators in the closet -> attack fails by ONE vote (the guy in the closest would have made tie)

1950's communists cases: electoral majorites

none; 1) the Supreme Court reverses their decision and 2) republicans refuses to build coalition with southern democrats based on racism

What is true about free speech?

free speech is tested the most when its unpopular!

Why is GenZ a problem with free speech?

they don't believe people are allowed to say offensive things

What happened at Rice?

Mike Pence went to Rice, not a partisan speech, student upset because they didn't like what he stood for and wanted him gone

What happened at Notre Dame?

Obama went, they didn't want a pro-choice speaker on the Campus

What happened at A&M?

LGBTQ club paid a speaker to come and talk about the most pleasurable ways to have annul sex

What are GenZ concerns?

social media and view point discrimination- dealing with things that are really unpopular

Social Media: Mahanoy v. BL

cheerleader on snapchat ("f.. f... f... f everything"); speech can't be restricted on and off campus

Social Media: US v. Alvarez

military medals; he has the free speech to lie about being a marine and injured or on hockey team

Social Media: SBA List v. Driehaus (pro-life dem)

political billboard: "driehaus voted from tax paid abortion" because he voted for Obamacare which helps with birth control which they say is abortion; they have the right to put up the billboard even if not true

Social Media: Hustler (porn magazine) v. Falwell (evangelical leader)

obviously fake story; put Falwell in graphic drawing of drunken sex with his mother in an outhouse; they have the right to put something like that in their magazine

View Point Discrimination: Communist Party v. Whitcomb

candidate loyalty oath; had to swear to not overthrow US gov if they ran for president in IN and want to be on ballot; one person said no I want to overthrow; Supreme Court says you can run on the foundation of overthrowing government

View Point Discrimination: Texas v. Johnson

flag burning as a protest; strike down Texas law and say its an expression of free speech

View Point Discrimination: Snyder v. Phelps

protest funeral; church thought Snyder death was a result of America tolerating homosexuality -> they get permit and protest "pray for more dead soldiers", "God hates fags.com"; they can do that and followed their permit

View Point Discrimination: Nazi Party v. Skokie

nazi parade; skokie was the dentist group of holocaust survivors in the US -> march single file down street wearing nazi gear; they are allowed to do that

View Point Discrimination: VA v. Black

cross burning; burning cross on front lawn of black persons house means we are going to Lynch you if you don't stop doing what your doing; VA has law that judge has to give jury instructions saying cross burning is racial terroism -> can they prosecute for cross burning? can they give those instructions? YES StATES CAN PASS A LAW

View Point Discrimination: Walker v. Sons/Conf.

confederate flag license plate; they can do that

View Point Discrimination: US v. Stevens

animal cruelty; videos pitbulls fighting to death or mauling other animals; crongress passes laws that Stevens can't post these videos but Supreme Court strikes it down because no specific enough (include turning cows into meat r hunting); they just wanted to eliminate crush videos (porn videos- stiletto heels stepping on bunny for sexual arousal)

What is the constitutional clauses of free exercise and establishment clause?

congee can't make a law restricting an establishment of religion or prohibit the free exercise of religion

What did the courts have to check in free exercise and establishment clause cases?

made in good faith or made in bad faith (dramatic or stupid reason)

Engel v. Vitale (1962)

the courts struck down school prayer; engel worked with other groups making a nondenominational prayer -> engel says "prayer in school establishes religion" -> sc agrees and sides with engel

Abington School District v. Schempp (1963)

courts struck down Bible readings; Maryland read Bible -> Madeline Murray (most hated woman in America) doesn't like her son is reading the Bible -> she makes him listen in class so she can sue -> she says "violates establishment clause by advancing religion"

Was Engel v. Vitale (1962) counter-majoritarian? Was Abington School District v. Schempp (1963) counter-majoritarian?

yes, they both were

Public opinion polls of 1962 and 1963?

70% majority disapproved of Engel

Attacks of 1962 and 1963?

school prayer was the most attacked decision in the history of sc rulings; 170 southern democrats, 95 north democrats, and 369 republican attacks; none passed

Grassroots majorities of 1962 and 1963?

- most effective grassroots pushback; states were permitting prayer and reading anyway (even the most liberal states)

- devolution: power so devolved; eurocrats had no power to enforce

- alternative measures: prayer into poem (recited everyday; "its not a prayer, we are talking to 'you'"); forced silent time "to do whatever they want" (usually pray)

Congressional majorities of 1962 and 1963?

inscribed "In God We Trust" above the speaker of the house's seat; bibles included into federal budget (9 for every sc judge); 1000+ federal judges receive raises except 9; and tried to amend constitution to add prayer (fail)

Electoral majorities of 1962 and 1963?

FAIL; republicans appeal to southerners & catholics

1) divide democrats: "favoritism toward things Catholic is good politics"

2) assault book: assault the democratic party

3) parochial schools: Nixon forms commission on nonpublic education (catholic schools)

Why no electoral majority of 1962 and 1963?

not important enough and grassroots was so effective

Was freedom of religion a canary in the carmine?

shows divided in politcal parties other than just on race issues (first moment there was pushback on something other than race)

Burwell v. Hobby Lobby (2014)

hobby lobby told they have to sell birth control -> they say it's against their religious beliefs -> sc sides with hobby lobby

Was Burwell v. Hobby Lobby (2014) counter-majoritarian?

no

How was Burwell v. Hobby Lobby (2014) not counter-majoritarian?

public opinion polls- neither for nor against

attacks- only 6

grassroots- no

congressional- no

electoral-no

Mapp v. OH (1961)

officers looking for fugitive with warrant but they found porn -> exclusionary rule: searching for only what warrant specifies -> porn is inadmiceable

Escobedo v. IL (1964)

murder; right to lawyer in interrogation room

Miranda v. AZ (1966)

kidnapping and rape; miranda rights MUST be read otherwise fired

Katz v. US (1967)

wire taping; illegal gambling making wages from public pay phones -> FBI bugs a pay phone -> "violation of search and seizures and my persons" -> the FBI needed a warrant to wire tap

Are these crime cases counter-majoritarian?

yes, all of them

Crime Cases: public opinion polls

before miranda case, <10% thought crime was most important problem, but doubled after; 65% disagreed with mirdanda; 80% thought courts were too lenient (letting murders off)

Crime Cases: attacks

yes by all three groups

- republicans: motivation is law and order

- south dem: motivation is race

- catholics: motivation is want order because very hierarchy

Crime Cases: grassroots pushback

some pushback; almost all law officers comply with the ruling, some interrogators ignored miranda (tricks & threats)

What are tricks and threats?

tricks: like "hey we dont believe her, just tell us the truth, and well get you out of here" -> confess

threats: "we got you but if you confess we'll go easy on you"

Crime Cases: congressional pushback

addressing crime in the nation: crime bill (1968) - spend more money in low income neighborhoods, republicans amend it little by little, and makes warrants easier to get and fed agents dont have to read miranda (starts as a democratic piece of legislation); everyone votes for it

Crime Cases: electoral pushback

pushback does work!; Nixon says he will restore law&order if reelected and he links crime to the courts; and secret memos

What are the secret memos in the electoral pushback?

nixon says:

1) "horror clippings of 1968, war, riots, coffins, urban violence, crime"- racists heard that the inner city blacks were out of control

2) "law and order... the issues are our this time"

What are dogwhistles?

coded messages that you can't hear unless you know what your looking for

What are the change strategies in the crime cases?

know difference between conversion, drift, displacement, and layering (picture haley sent you)- November 4

Roe v. Wade (1973): Trimesters

court breaks up birth into 3 trimester with state rules for each; trimester 1) easy to get an abortion, 2) regulate but allowed for health of the woman, 3) banned abortion

What can states not do in Roe v. Wade (1973)?

CANNOT adopt a theory of when life begins (because then it dictates when it would become murder); decided by Supreme Court

What is "Privacy via 14th Amendment's Due Process"?

"right to privacy" is nowhere in the constitution, but all the rights of 14th amendment make a penumbra (umbrella) for right to privacy

What did the Dobbs case do?

overturned Roe

What did Roe v. Wade rule?

abortion allowed based on trimester

Roe v. Wade: Public Opinion Polls

1st trimester: looks evenly split (45% oppose, 46% support), but really the opposite

Post 1st trimester: 65.5% opposed

- 64% believed life started at conception or end of first trimester

Roe v. Wade: Attacks

parties havent figured out where they stand yet; democrats- 105, republicans- 128; different types of attacks: no hearing abortion cases anymore and define beginning of life

Roe v. Wade: Grassroot Pushback

very effective; abortions and facilities rates decline- becomes more difficult after the sc tries to make it easier; state responses- Rhode Island (very lib but heavily catholic) defied roe by saying its from Texas so just applies to Texas

Roe v. Wade: Congressional Pushback

Hyde: no federal funding for abortion

Changing Amendments: not even close to passing by 2/3; they say they need to define when life begins by amending constitution

Roe v. Wade: Electoral Pushback

Republican Party mobilizes social conservatives

What is Republican Party response?

roe changed the Republican Party; Republicans start winning elections; they appoint Supreme Court judges to overturn roe

What constitutional vision emerges to republicans?

values:

- limited government: things the gov shouldn't do

- states rights: government at local level

- american family: they are satanly and republicans trying to restore dignity

~ they link these three ideas to issues to win elections and decide they think it will be better at local level

What are the issues?

tax/spending, communist free speech, busing, crime, school prayer, abortion

What happens in 1980 election?

southerners and catholics become republican (4 states blue)

Why did the judges that were appointed not able to overturn Roe?

4 reasons:

1) bad appointments

2) bad timing

3) policy choice

4) political choice

Bad Appointments:

Reagan tries to appoint female, O'Connor, but she is prochoice -> he learned his lesson and appointed Scalia (everyone loves her

Bad Timing:

Reagan appoints two very conservative and they both rejected -> Reagan appoint a neutral, Kennedy just to get accepted -> Kennedy (SECRET LIBERAL) -> democrats take the senate....... After Casey, Bill Clinton wins and appoints liberals -> 1994: 3 (R) -6 (L)

Policy Choice:

Supreme Court upholds and strikes down a lot of policies

- upholds: state & federal hyde ('79 and '80), parental consent ('81), fetal viability ('89), gag rule ('91), congressional partial birth (not undue burden)('07), fetal remains ('19), and religious exemptions to ACA ('20)

- strike down: paternal consent and parental consent ('76), viability determined by doctor ('79), judicial bypass on parental consent ('81), risks of abortion and fetal development and waiting period ('83), fetal development and risks and reporting and methods to preserve viable fetus ('86), state partial-birth ('00), TRAP- targeting clinics ('16), TRAP ('20)

What was policy choice in PP v. Casey?

- Supreme Court upholds parental consent (with bypass), waiting period, informed consent, and rejects paternal consent

- they reaffirmed roe v. wade

- they abandoned trimesters for "viability" (when becomes life), and "undue burden" (not practical basically)

True or false: The republicans didn't have to overturn Roe v. Wade to get the political conservatives outcome they want

true

Political Choice:

the party one is joining