Civil Rights and Liberties~ Quiz #3

Brandenburg v. Ohio (1969)

- a KKK leader was convicted, fined 1,000 and sentenced to 10 years in prison under ---- criminal syndicalism law.

-The court strikes down the ---- law.

The law failed to distinguish between teaching and advocating doctrine and advocating violence or force.

-this case gives us the Contemporary Test for Free Speech.

the Contemporary Test for Free Speech

1. Proof of imminent harm

2. A likelihood of producing illegal action

3. Intent to cause imminent illegality.

Symbolic Speech

speech which is not expressly stated, but is forwarded by some kind of action. It is conduct that communicates a message

West Virginia State Board of Education v. Barnette (1943)

"Symbolisim is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind"

United States v. O'Brien

-This case deals with the burning of a draft card to protest the Vietnam war.

-The court rules against-----and provides a four part test for the government of "speech" and "non-speech"

O'Brien test

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

2. Does the regulation further an "important or substantial" government interest

3. Is the regulation "unrelated to suppression of free expression"?

4. Is the regulation the least restrictive means to further the government interest?

Tinker v. Des Moines Independent Community School District (1969)

-This case deals with 3 children who wore black armbands to protest the Vietnam war.

-They were suspended because they did not take off these bands.

-The Court found for the children (Tinkers)

Wearing armbands was "closely akin to "'pure speech'"

"Students and teachers do not shed their constitutional rights at the schoolhouse gates."

Texas v. Johnson (1989)

- convicted for desecrating a venerated object (an American flag) and sentenced to a 1 year prison stay and a fine of 2000.

-This was at the republican convention where people were protesting Raegan's re-election campaign.

-Can the law prevent you from burning the flag?

-The Court found for Johnson and held that burning a flag is protected under the 1st amendment.

Johnson's action had not breached the peace

Preserving the flag as a sign of a symbol of national unity was not a compelling interest

The Difference between "important" and "compelling"

Legitimate is something that you can do.

Important is something that you should do.

Compelling is something that you must do.

Fighting words

speech that is directed at another and likely to provoke a violent response

Chaplinsky v. New Hampshire (1952)

was charged with violating a law that prohibited speaking "any offensive, derisive or annoying word to any other person who is unlawfully in any street or other public place."

?: Does the --- statute violate the citizens freedom of speech protected by the 1st amendment?

The court upholds the N.H. law:

The law only prohibits offensive speech

Chaplinsky's words were offensive- they were fighting words.

Fighting words get no Constitutional protections:

-"such utterances are no essential part of any exposition of ideas, and are of such slight social value...."

-The court has narrowed "fighting words" to mean words that arouse violence against the speaker by any common areas.

Indecent Speech

The expression of a message that is communicated in a way that many may find offensive

Cohen v. California

- convicted of violating a ---- law which prohibits "maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct"

_he was wearing a jacket that says "**** the draft"

-?: Does California's statute violate the first amendment?

The court finds for Cohen and strikes down California's law.

Cohen's words do not fall into a category that of speech that of speech that receives less protection- obscenity or fighting words

The court has held that indecent speech is generally protected by the 1st amendment.

What is the exception to indecent speech?

indecent speech over television and radio (FCC v. Pacifica Foundation 1978)

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

Kids broke into a families back yard and burned a cross

Robert Viktora was charged with violating a city "hate crime" ordinance, which prohibits the display of a symbol which "arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender"

The question: is the ordinance overly broad and impermissibly content based?

The court unanimously struck down the St. Paul hates the crime ordinance because it "prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses."

The ordinance would treat burning a cross in a black family's law differently than a white family.

Why can I outlaw fighting words and not hate speech?

The problem with fighting words is the mode of the speech, not the motivation of the speaker. You can't outlaw speech because it's rude to a group of people. You can outlaw speech that is towards another that is likely to cause violence. Public safety is the goal, and speech isn't harmful until it promotes violence.

Snyder v. Phelps (2011)

This case involves the U.S. Marine who was killed in Iraq.

The Westboro baptist church was protesting his funeral because he was outly gay, and they didn't like America's tolerance to gay people.

Synder's family sued the Church for defamation, invasion of privacy and the intentional infliction of emotional distress.

- A federal district court awarded the 4th Circuit held that the judgment violated the 1st amendment's protections of expressions.

The court (8-1) upholds the 4th circuit decision, holding the 1st amendment protects the rights of the protestors, at the funeral of a military service member from liability.

The issue was a public interest issue- the church was distasteful, but the matter deals with the issue of can the government involve themselves with protests based on the context.

the issue areas the court has dealt with associated with freedom of the press

1.The right to publish

2.Government control of the press- regulation of content

3.Press privileges- confidentiality of sources and access to information that the general public might not have

Prior restraint

a form of government censorship where the government reviews material to determine whether the publication will be allowed.

Near v. Minnesota (1931):

- the state passed a censorship law in 1925

- A county prosecutor got an injunction to prohibit further publication of the Saturday Press

-Claiming that Indianapolis public officials were in cahoots with the Jewish mob.

-?: Does the state “gag law” violate the free press provision of the 1st amendment?

-The court strikes down the state law as a form of censorship (prior restraint)

-The court then explains why prior restraint is bad and why the burden is so high: “The purpose of the law was to suppress the press- a violation of the 1st amendment”

The court gives says prior restraint is ok

During times of war.

When regulating obscenity.

To prevent incitement of violence, or overthrow of the government.

New York Times Company v.s. US (1971)

The NYT and WP intended to publish excerpts from 'The pentagon papers"

The administration attempted to prevent the publication- a prior restraint.

?: Did the administration's efforts to prevent the publication of "classified information" violate the 1st amendment?

The court denied the restraining order as a violation of the 1st amendment.

-The government did not overcome the "heavy presumption against" prior restraint.

Hazelwood School District v.Kuhlmeier (1988):

This case deals with the freedom of STUDENT press.

After reviewing the school paper, the principal deemed 2 articles to be inappropriate and pulled them.

Cathay Kuhlmeier and 2 other former students brought the case to court.

?: Did the principal's deletion of the articles violate the student's rights under the 1st amendment?

The court rules for the school district:

The 1st amendment rights of school students are not the same as full fledged adults

The school newspaper was a curriculum, not a public forum.

The difference between the school newspaper and the Appalachian is the fact that it is an extracurricular activity.

Cox Broadcasting Corporation v. Cohn (1974)

-This case deals with a Georgia law that is a "rape shield" - you aren't allowed to publish the names/ identities

- a victims name was published and her parent's sued.

-The court ruled that the Georgia statue violated the Constitution. The public has the right to know about certain crimes, and the public has the right to know.

-In terms of police+ newspaper interactions ask the reporters to not publish/ to publish something, but they cannot enforce that.

-Two reasons why press should not be restricted:

The media allows citizens to scrutinize government proceedings

Privacy rights "fade" on cases where "information already appears on the public record"

Miami Herald publishing Co v. Torillo (1974)

-This case also deals with a law that requires content

-At issue in this case is a Florida law that compelled newspapers to publish articles by political candidates if the paper criticized the candidate

-The court rules that compelling content is a violation of the 1st amendment- like preventing content

Red Lion Broadcasting Co. V. FCC (1969)

-This case deals with a Pennsylvania radio station that aired a program

-It is important to keep in mind that print and broadcast media have always been treated differently

-Radio and television broadcast their content on public airways

-The question: does the FCC fairness doctrine regulations violate the 1st amendment freedom of the press guarantees?

-The court held that the fairness doctrine was consistent with the 1st amendment

I. The fairness doctrine enhances freedom of speech

II. The scarcity of radio frequencies

Why is red lion important?

because the court finds that the standard for regulation of the broadcast media is lower than print media

Press privileges

The press enjoys certain rights that are beyond those of ordinary citizens

a. The right to confidential sources

b. Special access to information

Brazburg v. Hayes

This case deals with articles un promise of confidentiality

The question: is the requirement that news reporters testify an abridgement of the freedoms of speech and press as guaranteed by the 1st amendment

The court rules against the reporter's privilege

Requiring reporters to disclose information serves as "compelling" and "paramount" state interest

Houchins v. HQED (1978)

In this case the media was denied access to county jail

The 1st amendment granted no special right of access to the press to government controlled sources of information

What is Libel?

Defamation by written or printed words, pictures, or in any form other than by spoken words or gestures

New York Times v. Sullivan (1964)

This is the first major case where the court deals with libel- the court develops a new (and national) definition for libel

Words have to be false and damaging

An ad in the NYT alleged the arrest of Martin Luther king jr was part of a campaign to destroy kings efforts to integrate

The question: does the rule of liability, as applied to an action brought by a public official against critics of his conduct abridge the freedom of speech and the press?

The court reverses the Alabama supreme court decision, finding the ad was not libelous

The 1st amendment protects the publication of all statements

D. Curtis publishing company & associated press

Expands the application of the times standard from public officials to public figures

Time v. Hill & Rosenblum v. Metro Media

expands the application to stories of public interest

Gertz v. robert welsh (1974)

The court develops a standard for private citizens

---- published an article called American Opinion

Gets sued for libel, argues that the story is false and damaging to his career

The court finds that Gertz's rights had been violated

The times standard is inappropriate because he was neither public official or figure

Private citizens are entitled to more protection because

Private citizens do not invite people to look into them

The response

Gertz provides a libel standard for private citizens: statements that contain defamatory falsehoods that are injurious- the actual malice standard does not apply to private citizens

Gertz provides a libel standard for private citizens

statements that contain defamatory falsehoods that are injurious- the actual malice standard does not apply to private citizens

Hustler magazine Inc. V. Falwell (1988)

Hustler magazine published a "parody" interview with Jerry Falwell in which he indicated he had intercourse with his mother

The court reversed the lower court's judgement (finding for hustler)

Public figures may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement

Freedom of expression- limits

Military secrets

Terrorist threats

False advertisement

Hicklin standard

Material that had a tendency to "deprave and corrupt whose minds are open to such immoral influences and into whose hands a publication of this sort might fall"

What were faults of the Hicklin Standard?

It imposed a child's acceptability standard

It did not consider the materials context

It did not consider possible social value of the material

Roth v. United States

The court develops new standard

Samuel Roth was convicted of mailing obscene materials in violation of federal statute

Did the federal obscenity law violate the 1st amendment's freedom of expression?

The court upheld the federal law saying obscenity was not "within the area of constitutionally protected speech or press"

There is a new definition of obscenity

Differences in Hicklin and Roth

Roth replaces child standard with average person standard

The roth standard includes "contemporary community standards: (potentially allowing for change over time and place to place)

The roth standard requires material to be considered as a whole

Roth restricts the definition of obscenity to material with sexual conduct