POL 447 - Final

Content-Based

Content-Based or Content-Neutral?

Cohen v. California (1971)

Content-Based

Content-Based or Content-Neutral?

Texas v. Johnson (1989)

Content-Based

Content-Based or Content-Neutral?

R.A.V. v. City of St. Paul, Minnesota (1992)

Content-Neutral

Content-Based or Content-Neutral?

Wisconsin v. Mitchell (1993)

Content-Neutral

Content-Based or Content-Neutral?

Snyder v. Phelps (2011)

Content-Neutral

Content-Based or Content-Neutral?

McCullen v. Coakley (2014)

Content-Based

Content-Based or Content-Neutral?

If it restricts speech either on the basis of its subject matter (allowing speech on some topics but not others) or its viewpoint (allowing speech expressing some positions but not others).

Restrictions must meet strict scrutiny (that is, be necessary to achieve a compelling government interest).

Content-Neutral

Content-Based or Content-Neutral?

Laws only have to meet intermediate scrutiny (that is, be substantially related to achieving an important government interest).

Bad Tendency Test

____ ____ ____

Test used in Abrams v. United States (1919)

Clear and Probable Danger Test

______ _______ ______ _____ ______

Test used in Dennis v. United States (1951)

Bad Tendency Test

_____ ______ _____

Test used in Gitlow v. New York (1925)

Imminent Lawless Action

______ _____ ______

Test used in Brandenburg v. Ohio (1969)

Bad Tendency Test

______ ______ _____

Test used for Whitney v. California (1927).

Preferred Freedoms

_____ _____

Test used in United States v. Carolene Products (1938)

Clear and Present Danger Test

____ _____ ____ _____ _____

Test used in Schenk v. United States (1919)

Clear and present danger test

Origin of the _____ and ______ _______ test

A Legal Standard used in Cases Advocating Lawless Action

Developed in a case involving the Espionage Act of 1917, Schenk v. United States (1919).

Helps the Court devise the competing values of liberty and security.

“Whether the words used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”

Bad Tendency Test

Origin of the ____ _____ test

A Legal Standard used in Cases Advocating Lawless Action

Do the words have a tendency to bring about something evil?

Preferred Freedoms

Origin of the ____ _____

A Legal Standard used in Cases Advocating Lawless Action

“There may be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first 10 Amendments.”

Absolute Freedoms

Origin of the ____ _____

A Legal Standard used in Cases Advocating Lawless Action

It was never adopted

Used in dissenting opinions

“The 1st Amendment, its prohibition in terms absolute, was designed to preclude courts as well as legislatures from weighing values of speech against silence.”

Ad Hoc Balancing

Origin of the ____ _____ _____

A Legal Standard used in Cases Advocating Lawless Action

“On a case-by-case basis, the government’s interest in regulation is weighed against the individual’s interest in expression. Because the legislative process naturally involves a consideration of a wide range of societal interests, the courts normally defer to the government and presume that the regulation is valid.”

Clear and Probable Danger Test

Origin of the ____ _____ ____ _____ test

A Legal Standard used in Cases Advocating Lawless Action

“Whether the gravity of ‘evil’ discounted by its improbability, justifies such an invasion of free speech as is necessary to avoid danger.”

Applied in Dennis v. United States (1951)

Brandenburg Test

Origin of the ____ test

A Legal Standard used in Cases Advocating Lawless Action

To punish speech that advocates the “use of force or of a law violation,” and it is “likely to incite or produce such action.”

Established in Brandenburg v Ohio (1969)