COM250 Freedom of Expression Exam 1

What five freedoms are protected by the First Amendment?

freedom of speech, freedom of the press, freedom of religion, freedom of assembly, and the right to petition the government for redress of grievances

Is the First Amendment’s guarantee of freedom of speech absolute (i.e., can you say anything you want at any time?)

No. Certain forms of speech, such as incitement to violence, threats, obscenity, defamation, and speech that presents a "clear and present danger," can be legally restricted. For example, speech that directly incites illegal activity or poses an imminent threat to public safety can be restricted, as seen in cases like Schenck v. United States and Brandenburg v. Ohio.

Is freedom of speech limited to literal speech?

No, it includes written communication, symbolic speech (such as flag burning), artistic works, and digital media. Expressive conduct, like wearing armbands in protest or displaying signs, is protected under the First Amendment

What four criteria are used to evaluate the extent of freedom of speech in a society?

the ability to criticize the government

the extent to which diverse viewpoints are tolerated

the level of protection for minority opinions

the degree to which speech is free from government censorship

What are some of the reasons supporting freedom of speech (as a necessary and inherently good thing)?

its role in promoting self-government, enabling the search for truth, protecting minority opinions, and serving as a check on government power

What was the Star Chamber Court?

a judicial body in England that became notorious for its secretive proceedings and harsh rulings, particularly against political and religious dissenters​. It operated without juries and abused power to extract confessions. It influenced American attitudes towards free speech

What is the marketplace of ideas metaphor?

• The marketplace of ideas is a metaphor suggesting that free and open competition of ideas leads to the discovery of truth, much like a free market.

• It is rooted in the writings of John Milton and later championed by Justice Oliver Wendell Holmes in a 1919 Supreme Court decision.

What was the name of John Milton’s 1644 essay?

• John Milton’s 1644 essay is titled Areopagitica.

• It was written in opposition to the Licensing Order of 1643, which gave Parliament control over printed materials.

• Milton argued that truth and falsehood should be allowed to compete freely, believing that truth would ultimately prevail​.

Who wrote On Liberty of Thought and Discussion?

• On Liberty of Thought and Discussion was written by John Stuart Mill.

• It is a section of his 1859 work On Liberty.

• Mill argued that even false ideas should be expressed because they contribute to the refinement of truth​.

What is a prior restraint?

• A prior restraint is a government action that prohibits speech or publication before it takes place.

• It is considered one of the most severe restrictions on free speech.

• The Supreme Court has ruled that prior restraints are presumed unconstitutional unless the government provides compelling justification, such as a national security threat​.

Who was Sir William Blackstone and why is he important?

• Sir William Blackstone was an 18th-century English jurist known for his Commentaries on the Laws of England, which described English common law.

• His work influenced American law, particularly the First Amendment.

• Blackstone argued that freedom of speech meant no prior restraints but allowed for punishment of harmful speech after publication​.

What is sedition or seditious libel?

• Sedition refers to speech or writing that incites rebellion against government authority.

• Seditious libel historically meant criticizing the government, which was a punishable offense in colonial America.

• The idea that truth should be a defense against seditious libel was pivotal in shaping modern free speech protections​.

What happened in the 1735 John Peter Zenger case?

• John Peter Zenger, a newspaper publisher, was tried for seditious libel after criticizing New York Governor William Cosby.

• His lawyer, Andrew Hamilton, successfully argued that truth should be a defense against libel.

• The jury acquitted Zenger, marking an early victory for press freedom in America​.

Did the Zenger case change the law of seditious libel?

• No, the Zenger case did not formally change the law.

• However, it set an important precedent for jury nullification and the idea that truth is a defense against libel.

When did the First Amendment become part of the Constitution?

The First Amendment was ratified on December 15, 1791, as part of the Bill of Rights.

What were the Alien and Sedition Acts (1798)?

• The Alien and Sedition Acts were a set of four laws passed by the Federalist-controlled Congress.

• The Sedition Act criminalized making "false, scandalous, and malicious" statements against the government.

• These acts were highly controversial and contributed to Thomas Jefferson’s election in 1800, after which they were allowed to expire​.

Were states required to conform to the federal First Amendment during the 1800s?

• No, during the 1800s, states were not required to follow the First Amendment.

• The Bill of Rights initially applied only to the federal government.

• It was not until the 20th century, through the incorporation doctrine via the Fourteenth Amendment, that states were required to uphold First Amendment protections​.

What was the bad tendency test?

• The bad tendency test was a legal doctrine used to punish speech that could lead to illegal or harmful actions, even if no immediate danger was present.

• The principle, formulated in Patterson v. Colorado (1907), was seemingly overturned with the "clear and present danger" principle used in the landmark case Schenck v. United States (1919)

What U.S. Supreme Court decision introduced the clear and present danger test (and warned against falsely shouting fire in a theatre?)

• Schenck v. United States (1919) introduced the "clear and present danger" test.

• Justice Oliver Wendell Holmes, in his opinion, stated that speech can be restricted if it creates a "clear and present danger" of causing harm.

• He famously wrote that "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic"​.

What was the position taken by Justice Holmes (joined by Brandeis) in his dissent in the Abrams case?

• Holmes and Brandeis dissented against the use of the bad tendency test in Abrams v. United States (1919).

• Holmes argued that the leaflets distributed by Abrams (calling for a general strike and other socialist ideas) did not create an immediate danger.

• He introduced the "marketplace of ideas" concept, arguing that the best test of truth is its ability to survive competition in the open market​.

What major change in constitutional interpretation took place in the Gitlow case?

• Gitlow v. New York (1925) established the doctrine of "incorporation."

• The Supreme Court ruled that the First Amendment applies to state governments through the Fourteenth Amendment’s Due Process Clause.

• Although Gitlow’s conviction was upheld, this case paved the way for future expansion of free speech protections​.

Why was Anita Whitney’s conviction upheld in Whitney v. California (1927)? What had she done?

• Anita Whitney was convicted under California’s Criminal Syndicalism Act for helping organize a Communist Labor Party meeting.

• The Court upheld her conviction, ruling that the state had the power to suppress speech that threatened public security.

• Justice Brandeis, in a concurring opinion, emphasized that only an imminent and serious threat could justify restricting speech​.

What impact did the Dennis case have on the clear and present danger test?

• Dennis v. United States (1951) modified the clear and present danger test.

• The Court ruled that the government could suppress speech advocating violent revolution even if the danger was not immediate.

• This decision allowed broader suppression of Communist speech during the Cold War​.

Why do we say the Yates case initiated a major change in defining the limits of free speech about the government?

• Yates v. United States (1957) distinguished between abstract advocacy of ideas and direct incitement to illegal acts.

• The ruling limited the government's ability to prosecute people for expressing revolutionary ideas unless there was a concrete plan for action.

• This decision helped reverse many of the convictions under the Dennis ruling​.

What is the Brandenburg test?

• The Brandenburg v. Ohio (1969) decision replaced the clear and present danger test.

• Speech can only be punished if it meets three criteria:

  1. It must be directed to inciting lawless action.

  2. It must call for imminent lawbreaking.

  3. It must be likely to produce such conduct.

• This test significantly strengthened free speech protections​.

Can children be compelled to salute the American flag in school?

• No, in West Virginia State Board of Education v. Barnette (1943), the Supreme Court ruled that students cannot be forced to salute the flag or recite the Pledge of Allegiance.

• The Court held that compelling speech violates the First Amendment.

• This decision overturned a previous ruling (Minersville School District v. Gobitis, 1940) that had allowed such compulsion​.

What did the founding fathers think about prior restraints?

• The Founding Fathers were strongly opposed to prior restraints.

• They believed that a free press was essential to democracy and that government should not have the power to prevent publication.

• Their views were influenced by British abuses of censorship​.

What British jurist’s writing argued that freedom of the press meant that there should be no prior restraints? Why is that enlightening?

• Sir William Blackstone argued that freedom of the press meant no prior restraints.

• He wrote that while speech could be punished after publication, the government should not prevent speech beforehand.

• This view influenced American constitutional law, reinforcing the principle that prior restraints are unconstitutional​.

What was the decision of the Court in Near v. Minnesota?

• The U.S. Supreme Court ruled in Near v. Minnesota (1931) that prior restraints on publication are generally unconstitutional.

• The case struck down a Minnesota law that allowed the government to shut down newspapers deemed "malicious" or "scandalous."

• The ruling established a strong presumption against prior restraints​.

Are prior restraints absolutely forbidden by the First Amendment?

• No, prior restraints are not absolutely forbidden.

• The government may impose them in exceptional cases, such as preventing the publication of military secrets in wartime.

• However, the burden of proof is extremely high for the government to justify a prior restraint​

What did the U.S. Supreme Court decide in the Pentagon Papers case?

• In New York Times Co. v. United States (1971), the Court ruled that the government could not prevent newspapers from publishing the Pentagon Papers.

• The ruling reinforced that prior restraints carry a "heavy presumption" against their constitutionality.

• The government failed to prove that publication would cause immediate harm to national security​.

What is a per curiam opinion?

• A per curiam opinion is an unsigned court ruling issued by the majority without a specific justice being credited as the author.

• It represents the collective decision of the Court rather than the reasoning of an individual justice​.

What were some of the arguments made by different justices in the Pentagon Papers decision?

• Justices Black and Douglas argued that the government has no power to censor the press under the First Amendment.

• Justice Brennan stated that prior restraint is only justified if publication would cause "inevitable, direct, and immediate" harm.

• Justices White and Stewart suggested that the government might still prosecute the newspapers under existing laws after publication.

• The dissenters (Harlan, Burger, and Blackmun) argued that courts should defer to the executive branch on national security matters​.

In general, should a journalist obey a court order he or she thinks violates the First Amendment?

• Yes, a journalist should generally obey a court order and then challenge it through legal means.

• Defying a court order can result in contempt of court charges.

• However, some journalists have chosen civil disobedience in extreme cases, risking legal consequences to uphold press freedom​.

Have pre-publication review contracts signed by employees working for U.S. intelligence organizations generally been upheld or found to violate the First Amendment? (Marchetti, Snepp cases.)

• Pre-publication review contracts have generally been upheld by courts.

• In United States v. Marchetti and Snepp v. United States, courts ruled that intelligence employees can be required to submit writings for government review before publication.

• These rulings were based on the principle that the government has a compelling interest in protecting national security secrets​.

What does it mean to say that so-called fighting words fit into the categorical exception doctrine?

• Fighting words are excluded from First Amendment protection under the categorical exception doctrine.

• The Supreme Court in Chaplinsky v. New Hampshire (1942) held that certain categories of speech, like fighting words, have "no essential part of any exposition of ideas" and thus can be regulated​.

• The rationale is that such speech contributes little to public discourse while posing a serious risk of provoking violence​. However, this does not include words that are simply offensive and vulgar.

How does today’s understanding of fighting words differ from that announced in Chaplinsky v. New Hampshire (1942) when the concept was introduced?

• Initially, Chaplinsky defined fighting words as those that "by their very utterance inflict injury or tend to incite an immediate breach of the peace."

• Over time, courts have moved toward a contextual rather than a purely content-based approach​.

• Later cases like Cohen v. California (1971) suggested that speech should be evaluated based on context, considering whether it was truly likely to provoke a violent reaction​.

What reasons are usually given to exclude fighting words from First Amendment protection?

• Fighting words are excluded because they are seen as likely to incite immediate violence.

• They do not contribute to the marketplace of ideas or the search for truth.

• The government has a strong interest in maintaining public order and preventing breaches of the peace​.

What did the Court decide in Cohen v. California and how did it affect the fighting words doctrine?

• Cohen v. California (1971) ruled that wearing a jacket with "Fuck the Draft" was protected speech.

• The Court held that offensive language alone is not sufficient to qualify as fighting words.

• This case narrowed the fighting words doctrine by focusing more on context rather than just content​.

What was the problem with St. Paul’s Bias-Motivated Crime Ordinance that caused the Court to overturn the teenagers’ convictions in the R.A.V. case?

• The ordinance prohibited symbols that could cause "anger, alarm, or resentment" based on race, religion, or gender​.

• The Supreme Court ruled in R.A.V. v. City of St. Paul (1992) that the law was unconstitutional because it was not content-neutral and it was overly broad.

• The ruling emphasized that the government cannot selectively regulate speech based on its viewpoint, even within an unprotected category like fighting words​.

What is precedent and what role does it play in our legal system?

• Precedent refers to previous judicial decisions that guide courts in deciding future cases.

• It establishes consistency and predictability in the legal system.

• The U.S. Supreme Court's rulings create binding precedents that lower courts must follow​.

What are the doctrines of vagueness and overbreadth?

• Vagueness: A law is vague if it is so unclear that a reasonable person cannot determine what is prohibited.

• Overbreadth: A law is overbroad if it restricts not only unprotected speech but also a substantial amount of protected speech.

• Courts use these doctrines to strike down laws that could chill free expression​.

Is a vague law automatically overbroad?

Yes, a vague law is often overbroad because its unclear language may prohibit a wide range of speech​.

Is an overbroad law automatically vague?

No, a law can be overbroad (restricting too much speech) without being vague (unclear in meaning)​.

What are the three levels of federal and state court systems?

• Federal Court System:

  1. District Courts – Trial courts where cases begin.

  2. Courts of Appeals – Review decisions from district courts.

  3. U.S. Supreme Court – The final authority on constitutional issues.

• State Court System:

  1. Trial Courts – Handle civil and criminal cases.

  2. Intermediate Appellate Courts – Review trial court decisions.

  3. State Supreme Courts – The highest court in a state, with final say over state law​.

How many members of the U.S. Supreme Court must agree to hear a case before it is placed on the Court’s docket (calendar)?

• Four justices must agree to grant a writ of certiorari for the Court to hear a case.

• This is known as the "Rule of Four"​.

What is an amicus brief?

• An amicus curiae ("friend of the court") brief is a legal document submitted by a non-party to a case.

• It provides additional arguments or perspectives to help the court make its decision.

• Interest groups, academics, or government entities often file amicus briefs​.

What is a writ of certiorari?

• A writ of certiorari is an order by the U.S. Supreme Court directing a lower court to send the case records for review.

• The Court grants certiorari when it decides to hear an appeal, often due to significant legal questions​.