CCPA 3300 Final Case List

Cohen v. California (1971)

X wore shirt that said “fuck the draft” to oppose Vietnam War

Accused & arrested for violating civil law that prohibits disruption by offensive conduct

SC overturned conviction,

classified shocking words as “conduct”, neither obscene nor fighting words

Protected for 3 reasons:

1. gov not capable of setting forth clear principle which certain words are allowed & not

2. Shocking language has important emotive content

3. Forbidding certain words creates serious risk that protected ideas will not be protected

Narrowed Chaplinksy definition of fighting words to words that are directed to create a danger and breach of peace

New York Times v. United States (1971)

Newspaper published top secret “Pentagon Papers”, U.S. tried to stop publication of classified documents

SC held gov’s urging of “security” did not trump newspapers freedom of the press guaranteed by the FA

In order for SC to support prior restraint, gov would need to prove publication would cause inevitable, direct, and immediate danger

Texas v. Johnson (1989)

Y Burned flag to protest Reagan policies, convicted for “desecration of a venerated object”. Y argued was an expressive act protected by FA

SC ruled burning flag qualified as symbolic speech bc it attempted to “convey a particularized message” (imbued w/ communicative elements)

• No disturbance of peace occurred or threatened

• Unconstitutional to punish ideas critical of “national unity”

- FA prohibits punishing expression simply bc it might be offensive to majority

Harper & Row Publishers v. Nation Enterprises (1985)

X publisher published 300 words from President Ford’s unpublished memoir that was contractedly granted to be exclusively published by Y. X sued for copyright infringement

Question before Court: to what extent the "fair use" provision of the Copyright Revision Act of 1976 sanctions the unauthorized use of quotations from a public figure's unpublished manuscript.

SC ruled in favor of X, Y’s use was not fair use as 300 words represented “heart of the book”. Can’t use fair use as a way to do something dishonorable.

Decision reconciled the Copyright Clause with the First Amendment bc it illustrates how courts are guided by the four factors in the 1976 act when making fair use determinations.

Widmar v. Vincent (1981)

Uni of Missouri-Kansas City administration prevented a student religious organization from meeting on campus bc it violated the Constitutional’s Establishment of Religion Clause.

SC rejected administration’s decision

Denying equal access to campus facilities for meetings of registered student religious orgs was a content-based restriction that violated the FA

Abrams v. United States (1919)

X were convicted under 1918 Amendment to Espionage for throwing anti-war leaflets around NYC.

SC upheld conviction, using bad tendency doctrine

No rule established, case significant bc of judge Holmes & Brandeis dissent, first persuasive arguments rejecting doctrine of Bad Tendency and urging use of Clear-and-Present-Danger standard

First National Bank of Boston v Bellotti (1978)

Massachusetts did not have graduated income tax, but rather had a flat rate tax
Those in favor of graduated tax had to have a referendum
Every time a referendum was put on ballot, it was voted down
Assumption was that defeat was due to corporate money
Legislature passed law that said corporations couldn't contribute to referendums, particularly those having to do with tax issues
Bank of Boston files suit
Loses at Mass SC.
US SC rules in favor of Bank of Boston 5-4
What matters is not the speaker but the view point
"If the speaker here were not corporations, no one would argue say you can silence..."
Corporations are legal fictions created by states to make money. They are good at this and that is why they get special rights.
Corporations have no free choice. They have a fiduciary duty to make money. In fact, this is their only duty, to maximize profit.

Define free speech rights of corporations for the first time

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976)

State statute declared any pharmacist who advertises any price for any drugs which may be dispensed only by prescription guilty of unprofessional conduct punishable by penalties ranging form fines to revocation of license.
The statute was challenged by consumer groups and an individual on the ground that the First Amendment entitled them to receive information that pharmacists wished to communicate to them.
-SC ruled that pharmacists can advertise their prescription prices
-consumer's interest to free flow of information is protected (they have the right to know prices to understand market just like they need political speech to understand public sphere)

Bigelow v. Virginia (1975)

X was convicted for publishing abortion advertising service in NYC, which was a violation of a state law'

SC reversed conviction of lower courts, asserting the advertisement “contained factual material of clear ‘public interest’. Portions of its message… involve the exercise of the freedom of communicating information and disseminating opinion”

Virginia cases establish…

Commercial speech earns new protection
The idea takes hold that consumers need advertising to understand the market, almost as much as they need political speech to understand the public sphere
But they do have the right not to be lied to
Soon, these same protections will be extended to professional services (lawyers, doctors, architects, etc.); and billboards.

Burstyn v. Wilson (1952)

Film “The Miracle” was revoked bc charges that the film was “sacrilegious”.

SC reversed NY conviction

Established blasphemy is not a constitutional basis for suppressing ideas. Guaranteed liberty of expression to motion pictures.

*First time SC held that movies are protected as speech under FA

Miller v. California (1973)

X was convicted in state for mass mailing advertisements containing sexually explicit illustrations

SC remanded X’s conviction for reconsideration, in light of newly revised Roth Test

Roth Test now-

• disregarded “utterly worthless” requirement

• “Contemporary community standards” to be on state/local level, not national

• New requirement state laws be clear & specific in describing sexual level of obscenity

Tinker v. Des Moines Independent School District (1969)

Group of students were suspended for wearing black arm bands to protest U.S. involvement in Vietnam

SC reversed lower courts decision that upheld suspension

Judge Fortas observed that black arm bands was a form of symbolic expression involving “direct, primary FA rights akin to ‘pure speech’”.

Established for the first time that public school students had FA constitutional rights while in school

Established specific rule that students had to demonstrate disruption to educational processes for speech to be limited

Bethel School District v. Fraser (1986)

Top student made sexually suggestive speech @ a highschool assembly. Speech did not disrupt assembly, but did elicit “hooting & yelling” and bewildered/embarrassed appearances from students.

Student was suspended for violating Tinker rule, student sued believing FA rights were violated.

SC reversed courts below & upheld school’s disciplinary action.

Justice Burger- “Constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings”

“(Tinker/Fa)…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”

Hazelwood School District v. Kuhlmeier (1988)

Students in journalism class wanted to print articles abt special topics like teen pregnancy, divorce, in school newspaper.

Principal deemed articles “inappropriate for younger students” and had concerns about anonymous students being identified.

Students sued saying they had freedom of speech and freedom of press (we are the press as students)

SC overturned lower courts’ decision that favored students, stating that a school newspaper was NOT a public forum.

Decision concludes that “the standard articulated in Tinker” need not also be the standard for determining when a school may refuse to lend its name and resources to the dissertation of student expression.”

School officials are not obligated to promote student speech in school sponsored publications, plays, etc, and have the right to censor student speech in school-sponsored expressive activities so long as their action serves a valid educational purpose.

Chaplinsky v. New Hampshire (1942)

Jehovah’s witness was convicted under a State statute for calling a City Marshal a "God **** racketeer" and a "**** fascist" in a public place- was causing a disturbance on the streets

SC unanimously upheld decision, rejected argument that his language was protected, bc his language was likely to incite violence

Established Doctrine of “Fighting Words”, two parts: “those by which their very utterance…

1. inflicts injury upon listener”

2. tends to incite an immediate breach of peace”

Fighting words are classified as Worthless Speech, which does not deserve FA protection

Gertz v. Welch (1974)

Y of a conservative publication published an article about attorney X that contained many falsehoods like he was a communist and had a criminal record. X sued for defamation.

SC remanded lower courts ruling (SC favored X)

Courts decision balanced the competing interests of

1. Protecting Private Individuals from libel

2. Protecting the media from excessive monetary gain

• Private persons need more protection from defamation than public persons, thus do not need to meet actual malice standard (even if dispute is of general public interest)

• Private plaintiffs now have burden to proving allegations are false

• “Strict Liability” is abolished for private persons suing private media companies (minimum to prove is negligence)

• Damages are limited to “actual injury” (specific damages) plus general damages to reputation

United States v. O’Brien (1968)

Y burned his draft card as an act of symbolic resistance in front of court house. Was convicted for violating statute that prohibited knowing destruction of draft cards. Y believed right to symbolic speech was violated

SC and all lower courts found X guilty, as the government had strong interest in protecting draft cards. Issue stemmed from his action (plus) of burning draft cards, not the symbolic expression itself.

Established test regarding Speech Plus

1. is the regulation within the power of the government?
2. does the regulation further an important or substantial government
interest?
3. is the government interest unrelated to the suppression of free
expression?
4. is the incidental restriction on First Amendment freedoms no greater
than is essential to furthering that interest?

- If the answer to each of these four tests is “yes” the regulation on
symbolic speech is constitutional.