Civil Liberties Rewrite Unit 2

What are the details of the Schenck Case 1919?

Charles Shenck mailed out pamplets encouraging military draft resistance. He was convicted under the espionage act. World War One was taking place

What standard was established in Schneck?

Clear and present danger: speech can be restricted if the speech creates a clear and present danger of substantive evils that congress has the right to prevent. There must be a clear link between the speech and the evil. Fire in a crowded theater analogy.

What new standard was established in Abrams v United States?

Bad tendency: If speech just had a bad tendency to bring about evil it could be restricted. No clear link between speech and harm needed

What was important about Gitlow?

The left wing manifesto case. Gitlow was convicted as the bad tendency test was used, but now free speech is applied to states.

What are preferred freedoms?

in the 1930s the court adopts a more liberal standard requiring lack of vagueness in laws banning speech (stromberg v california). In footnote 4 of United States v Carolene Products, the protection of preferred freedoms is created. These are freedoms listed in the first amendment.

Which case gives preceded to speeches given peacefully with clear public interest even without a permit?

Thomas v Collins

What happened in 1798, 1863, 1917, and 1918

In 1798 the first sedition act is passed, in 1863 Lincoln suspends the writ of habeas corpus (ex parte merryman Justice Taney claims this to be wrong), in 1917 the espionage act is passed and then in 1918 the 2nd sedition act is passed

Which are the details of the Dennis case?

Dennis and other commie bros were convicted for being commies under the smith act in 1940 .

What new standard is adopted in Dennis in 1951?

Clear and Probable Danger. Whether the gravity of the evil, discounted by its improbability, justifies the restriction on speech.

What was important about Yates v United States?

used the clear and probable danger test from Dennis but differentiated between advocacy of action and advocacy of abstract doctrine.

What happened in Brandenburg v Ohio in 1969?

Brandenburg was a KKK leader who was convicted by Ohio’s syndicalism law. But he was not convicted in the Court because they established a new standard called the Imminent Lawless Action test.

What is the imminent lawless action standard?

Associated w Brandenburg, speech must be directed at or inciting imminent lawless action and said action has to be likely to be produced. Abstract advocacy is not punished.

List the standards and the cases they go with:

1. clear and present danger = schenck'

2. bad tendency = Abrams/ gitlow

3. clear and present danger again = dejonge v Oregon

4. preferred freedoms/ clear and present danger (Thomas v Collins)

5. Clear and Probable danger (Dennis)

6. Imminent lawless action (Brandenburg)

Who are the two justices known for dissenting when they believe free speech is violated?

Holmes/brandeis

What is symbolic speech?

speech is not just spoken but symbols

What is the first case having to do with symbolic speech?

United States v Obrien in 1968. It was where O’Brien burned his draft card and was convicted in the lower courts and Supreme Court.

What was the obrien test?

it is for whether or not the government can regulate symbolic speech

1. is the regulation within the constitutional power of the government

2. does it further government interest

3. is the government interest unrelated to free speech suppression

4. is it narrowly tailored

What did Texas v Johnson establish?

flag burning is allowed because the court can not just prohibit messages they do not like.

Difference between gobitis and barrette

In Gobitis, the Jehovah's witnesses kids were forced to salute the flag because of world war 2 but then they reversed it in barrette which established right not to speak

Tinker v De Moines 1969

Vietnam arm bands allowed: students do not shed their constitutional rights at school gates. schools can only restrict speech if said speech brings out a substantial disruption of school operations and infringes on rights of others

Hazelwood v Kuhlmeier (1988)

principal censored newspaper in order to protect students and their identities regarding teenage pregnancy and divorce

Morse v Frederick (2007)

bonghits for Jesus was promoting illegal drug usage so the school had a compelling interest in stopping it

Fraser case

schools can prohibit sexually explicit speech

Mahoney v BL

off campus speech that is not disrupting school is permitted. This was the cheerleader snapchat case

What is a public forum? Who outlined this idea?

where individuals can communicate ideas and it is either a government channel or a place. Justice white in pea v plea

What did adderly v Florida establish?

not every government owned location is a public forum. for example no protesting on jails

Clark v Community for creative nonviolence

restrictions regarding public forums need to be content neutral, narrowly tailored, and have ample alternative channels

What is the test for forum cases?

Is it content neutral, significant gov interest, narrowly tailored to serve interest, and are there other alternative communication channels

What is a traditional public forum?

streets, parks, sidewalks

Explain restrictions on the traditional public forum

Content neutral time, place, and manner restrictions must serve a significant interest, be narrowly tailored, and have alternative channels.

What is a designated public forum

intentionally for public expression like outside the UCA student center

What is a limited public forum

certain people, viewpoint neutral like a school newspaper

What is a nonpublic forum?

government property not for expressive activity. mailboxes as seen in Perry Education Association v Perry Local Educators 1983.

What is the difference between Walker v Texas Division and Matal v Tam

In Walker, the court had a compelling government interest in state license plates but in Matal, the government does not have a compelling interest in regulating trademarks.

Pleasant Grove City v Summon

Religious group wanted to put monument in park where other monuments were and city said no. Gov selected monuments and messages that it wants to promote

What is the difference between content based and viewpoint discrimination?

Content based means that the government regulates speech because of its subject or messages. This requires strict scrutiny. Viewpoint discrimination is where the government allows one viewpoint but not the other. This is not okay.

What does content neutral mean?

The government regulates speech without regard to its message: time, place, and manner restriction

What is strict scrutiny

a compelling government interest that is narrowly tailored

What is the fighting words case 1942? What are fighting words?

Chaplinsky, a Jehovah's Witness called a city marshal a racketeer. Words that, in their nature and context provoke immediate breach of the peace. Whether a man of common intelligence would understand the words to be of that nature.

fighting words in modern era case

state v clay 1999 calling police officer a white racist mf and wanting his mother to die

Cohen v California 1971

F the draft case and not convicted because the gov can not just regulate messages that offend it. It was not directed at anyone and there is an emotion and cognitive function of speech

Contrast RAV City of St. Paul and Virginia v Black

In RAV v City of St Paul, the law singled out certain messages based on their content. Viewpoint discrimination is not allowed. In Virginia, however, the crossburning was an actual threat to a black family

elonis

rap dude case about killing wife on fb. negligence alone is insufficient

us v Alvarez

Medal of Honor case. court can’t stop liars from lying

True or false: hate speech is not automatically an unprotected category

true

Snyder v Phelps

speech on legal matters of public concern, occurring in a public place and complying with amicable legal restrictions is unprotected

Counterman

first amendment requires proof of recklessness

Citizens United v FEC 2010

gov can not suppress independent political expenditures by corporations and unions.

Hurley v Irish American Gay Group of Boston

private groups are not compelled to include messages they don’t agree with

Bates v State Bar of Arizona 1977

lawyers can advertise their services

BIgelow v Virginia

truthful, commercial speech is protected and same with Virginia state board of pharmacy v Virginia citizens consumer council

What was the first standard regarding obscenity?

jacobellis v Ohio: community standards. Justice Stewart famously said: i’ll know it when I see it.

What was the miller test for obscenity

average person applying contemporary community standards would find that the work appeals to the pruient interest, the work depicts or describes sexual conduct speficially defiled by applicable state law in a patently offensive way, and work has no artistic, literary, scientific, or other value

What case protects children from being in child pornography?

New York v ferber

what is prior restraint

government action preventing publication before it occurs.

What was established in near v Minnesota regarding prior restraint

this was the case about the Saturday press which was an antisemetic newspaper. While there are exceptional circumstances like the location of troops during war time, prior restraint it not generally permitted

Cox Broadcasting Corp v Cam

Court can not punish press for accordantly publishing lawfully obtained information (rape victim case)

What is Branzburg v Hayes about?

journalists don’t have reporter privilege

Zurcher case

press can be subjected to search warrant

Houchins

press does not generally have special access to gov facilities

Difference between libel and slander and defamation

libel = literature (written) and slander = speech (spoken). Defamation is a false statement of fact that harms reps

What are the standards for libel?

Is the plaintiff a public or private figure? Is the work a fact, opinion, or parody, is the statement false or defamatory? What standard applies? Is actual malice required?

What happened in New York Times v US 1971

pentagon papers case. government could not use prior restraint.

Nebraska press v Stuart 1976

importance of fair trial does not justify press keeping quiet

Hustler Magazine v Falwell

moral majority leader Falwell was parodied and that is protected

New York Times v Sullivan established what standard

the actual malice standard. knowledge that a statement was false or had reckless disregard for whether it was false. The case was where an Alabama police commissioner said the NYT work about civil rights was libelous bc it said the wrong song that the kids sang at a demonstration.

Freedom of association is

the ability to jin with others for expressive, political, religious and other social purposes

NAACP v Alabama

organizations are not required to disclose member lists because anonymity is essential to freely associate

Roberts v US Jaycees

Not all associations are exempt from anti discrimination law

Boy Scouts of America v Dale

could discriminate because including Dale violated you scouts expressive association rights

Christian Legal society

all comers policy = viewpoint neutral so it is allowed

Perry Education association v Perry local educators

School district allowed one rep to use mail system but not allowed the other. Nonpublic forum, restrictions must be reasonable and viewpoint neutral

national rifle association v vullo

New York financial advisor was pressuring financial institutions to not associate w NRA. this was not constitutional

Healy v James

Public colleges can not deny certain groups just because they do not like them

What happened in Whitney v California?

The Court emphasized the restrictive approach to speech, Brandeis/Holmes advocated for a stronger standard or protection, the case overturned by Brandenburg v. Ohio. Court treated speech like something that could be restricted to protect the common good.

1939—Schneider v State of New Jersey

cleanliness and order is not a compelling or sufficient reason to inhibit speech. Court prioritized First Amendment expression over legitimate government interests in this context

What happened in McConnell v FEC?

Allowed fec to limit certain campaign donations to prevent corruption or threats of corruption. Not all political speech or spending is protected from regulation automatically.

What happened in Citizens United v FEC (2010)

The Court declared prohibitions on corps and unions making independent political expenditures unconstitutional. It overturned McConnell.

What happened in McCutcheon v FEC 2014

struck down aggregate individual contribution limits

RAV v City of St. Paul 1992

Government cannot selectively prohibit expression based on disfavored subjects or viewpoints

Virginia v Black 2003

Cross burning may be prohibited when it is an act of intimidation, but it cannot automatically be treated as proof of intimidation in every situation

What law was challenged in Reno v. ACLU?

The Communications Decency Act of 1996, which sought to restrict minors’ access to sexually explicit material on the internet. The ACLU challenged its restrictions on indecent and patently offensive online content.

Why did the Court strike down California’s violent-video-game law in Brown v Entertainment Merchant’s association

because violent video games were allowed because historically fairytales and other kids stories were violent

Why did the Court strike down the 35-foot buffer-zone law in McCullen v. Coakley?

The law burdened more speech than necessary to serve the state’s interests. It prevented counselors from engaging in close, personal conversations on public sidewalks, where they wanted to speak with people entering the clinics.

What did the Court hold in New York Times Co. v. United States?

The government failed to meet its heavy burden to justify prior restraint, so publication could not be stopped.

What was the central argument of Justices Black and Douglas in the Pentagon Papers case?

“No law means no law.” The press serves the public, not the government or its leaders.

What was Justice Brennan’s argument in the Pentagon Papers case?

The government had not made a sufficiently strong case to justify prior restraint.

What did Justices Stewart and White emphasize in the Pentagon Papers case?

The government had not established sufficient harm to justify stopping publication.

What was Chief Justice Burger’s dissent in the Pentagon Papers case?

The case was rushed, and the Court did not know all the relevant facts.

What did Justices Harlan and Blackmun argue in dissent in the Pentagon Papers case?

The case moved too quickly; the lower court should rehear it before the Supreme Court intervened.

What is the central Hudson test regarding commercial speech?

1) is it legal and true

2) is there a substantial government interest

3) does it directly advance the government interest

4) narrowly tailored and least restrictive means

Bigelow v Virginia

Bigelow in Virginia promoted abortion in NY. Virginia made it a misdemeanor for publications to promote abortion. Roe v Wade was decided before this, so now commercial speech especially regarding abortion does have 1st amendment protection

Virginia State Board Pharmacy v Virginia state consumer council

Price advertising on drugs used to be banned to prevent corruption. Economic nature of speech doesn’t prevent it from getting 1st amendment rights & consumers have a right to receive info.