Civil Liberties Unit 2

What does the first amendment say regarding freedom of speech?

Congress shall make no law abridging the freedom of speech, or of the press

What are some of the questions that the court asks regarding whether or not the government can constitutionally restrict someone’s speech?

What kind of speech is involved? What is the government trying to prevent? How likely is the harm to occur and how soon could it occur? Is the government regulating the message itself, or something about the way it is expressed? Where is the speech taking place?

True or false: the legal standard regarding freedom of speech has changed depending on the type of speech and circumstance

True

What happened in 1798?

The First Sedition Act was passed. The government passed a law preventing certain writings or speeches that were false, scandalous, or malicious about the federal government.

What is significant about the year 1863?

Lincoln attempted to suppress treacherous behavior and expressions of insubordination. He suspended habeas corpus in rebelling Southern States. Chief Justice Taney declared the suspension unconstitutional in Ex Parte Merryman, but the SC never heard the case and Lincoln ignored the decision. No other SC cases addressing the limits of speech were heard during this period.

what was significant about the 1917 Espionage Act?

Congress passed the Espionage Act to prevent military insubordination and support for enemies of the United States during wartime. This legislation became the foundation for early Supreme Court cases about antiwar speech.

What was significant about the year 1918?

Extended the Espionage Act to cover additional offenses, especially speech. The Court's earliest major freedom-of-speech cases were shaped by the government's desire to maintain wartime unity and prevent resistance to military recruitment.

Explain Schenck v United States 1919

Charles Schenck mailed out pamphlets encouraging people to resist to the draft during World War One. The court established the clear and present danger test: whether the words, in their circumstances and nature, created a clear and present danger of producing substantive evils that Congress had the right to prevent. The example of shouting fire in a crowded theater and creating panic.

What was the clear and present danger test and why did it matter?

Established in Schenck: whether the words, in their circumstances and nature, created a clear a nd present danger of producing substantive evils that Congress had the right to prevent. Speech could be restricted if it created a sufficiently serious danger, wartime context mattered, and the court was willing to uphold restrictions on antiwar expression.

What happened in Abrams v United States 1919?

Individuals distributed antiwar literature during World War I and were charged under the Espionage and Sedition Acts. The court adopted a more restrictive approach than Schenck called the Bad Tendency Test: speech could be punished it had a bad tendency to bring about evil

Why does the bad tendency test matter?

The government did not need the same strong connection between speech and an imminent danger that later standards would demand. Holmes and Brandeis dissented, advocating stronger protection for expression. This is part of the beginning of the debate over how much danger should be required before speech can be restricted.

Gitlow v New York (1925)

Benjamin Gitlow distributed the leftwing manifesto advocating for anti-capitalist ideals. This case was responsible for incorporating the first amendment to state governments. The Court held that freedom of speech and freedom of the press are fundamental rights protected against state infringement through the Fourteenth Amendment's Due Process Clause. The Court upheld the restriction under the early, more government-protective approach to speech.

Who dissented in Gitlow v New York?

Holmes and Brandeis. They argued for a stronger clear and present danger approach.

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.

In the 1930s and 1940s…

the court starts moving away from bad tendency approach and towards stronger protections for expression.

What are preferred freedoms?

Certain constitutional rights that are fundamental to a free society and deserve greater judicial protection. Typically 1st amendment rights. United States v. Carolene Products (1938), particularly Footnote 4, which explain the Court's increased willingness to protect constitutional rights and minority groups from government interference.

1939—Schneider v State of New Jersey

Local municipalities had issued ordinances that restricted handbill distribution on the streets to reduce mess and fraud. 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

1940 Thornhill v Alabama

Labor union picketing is a form of protected expression as opposed to violent conduct accompanying picketing which can be regulated.

1940 Minserville School District v Gobitis

Court says Jehovahs witnesses are required to recite the pledge of allegiance and salute the flag because patriotism and national unity outweigh student objections.

What case overturned Gobitis?

West Virginia State Board of Education v Barnette because the court ruled that the compulsory flag salute violated the freedom of expression and that the government can not force people to express beliefs or messages that are patriotic that they do not hold. Emphasizes the right not to speak. Justice Jackson wrote the majority and emphasized that the government cannot prescribe what is orthodox in matters of opinion

What was highlighted in the 1950s and 1960s

The Cold War and the shift towards the modern standard is important because it contains a return to restrictions and the eventual modern protection of political speech

Which case created the clear and probable danger test?

Dennis V. United States in 1951. Communist party leaders were convicted under the Smith Act for conspiring to advocate for the violent overthrow of the government.

What was the clear and probable danger test?

The Court asked whether the gravity of the evil, discounted by its improbability, justified restricting speech to avoid the danger. The government had a compelling interest in preventing violent overthrow, and the Cold War context mattered.

Yates v United States

Modifys the approach to Dennis by distinguishing advocacy of action, from merely discussing or asserting revolutionary beliefs. Holding or discussing an idea is not the same as encouraging people to act on it.

What happened in Brandenburg v. Ohio 1969?

Clarence Brandenburg, a Ku Klux Klan leader, gave a speech at a rally discussing possible revengance if the government continued suppressing the white race. He was convicted under Ohio's criminal syndicalism law, but then the Court found him not guilty

What standard was created with Brandenburg v Ohio?

The Imminent Lawless Action test. Speech can be restricted as incitement only when the speech is directed at inciting or producing imminent lawless action; and the speech is likely to incite or produce that action. Mere advocacy of violence is not enough and abstract advocacy is protected. The government needs a close connection between the speech, the intended lawless action, and its likelihood of occurring imminently.

1919 Schenck

Clear and Present Danger: Is speech creating a clear and present danger of an evil Congress may prevent?

1919-1925 Abrams and Gitlow cases

Bad Tendency: Does the speech have a tendency to bring about an evil?

1951 Dennis

Clear and probable danger: is the gravity of the evil, discounted by its improbability, sufficient to justify restriction?

1969 Brandenburg

Imminent lawless action: is the speech intended and likely to produce imminent lawless action?

What happens after Brandenburg?

The court develops different rules for different kinds of expression.

1968 United States v Obrien

Symbolic speech and conduct

1969 Tinker v. Des Moines

Student Expression

1971 Cohen v. California

Offensive and vulgar expression

1977 Bates v State Bar of Arizona

Commercial Speech

1988 Hazelwood v Kuhlmeier

School-sponsored student publications

1989 Texas v Johnson

Flag burning as expressive conduct

1992 R.A.V v City of St. Paul

Content based restrictions and hate speech

Clear and Present Danger Test

Schenck v United States: Court asks whether speech creates a clear and present danger of bringing out a substantive evil that congress has a right to prevent. This test is content sensitive because wartime speech that obstructs military recruitment was treated differently from ordinary political expression

Bad tendency test

Abrams v United States 1919 and Gitlow v New York 1925. The government can restrict speech if it has a tendency to produce an evil. This approach gives the government greater latitude because if it does not demand the same immediate, likely danger required by the later Brandenburg standard

Clear and Probable Danger Test

Dennis v United States 1951: Court balances the gravity of the threatened evil against its probability. The standard was used to uphold the conviction of the communist party leaders who conspired to advocate violent overthrow of the government.

Imminent lawless action test

Brandenburg v Ohio 1969. Government must establish both that the speech is directed toward inciting or producing imminent lawless action and that it is likely to produce such action. This protects abstract advocacy and political beliefs from being criminalized simply because they are radical or unpopular.

O’Brien Test

United States v. Obrien (1968). This test applies when the government regulates conduct that combines speech and non speech elements. The regulation is sufficiently justified if

• Is the regulation within the constitutional power of the gov

• Does it further important or substantial gov internist 

• Is the gov interest unrelated to suppression of free expression

• Is the incidental restriction on alleged first amendment freedoms no grater that is essential to that interest (narrowly tailored)

• In the end, the court makes a distinction between speech which cannot be regulated, and actions can

Difference between O’Brien test and Brandenburg Test

Brandenburg concerns incitement to lawless action. O'Brien concerns government regulation of expressive conduct when the government has an independent interest in the conduct.

What was the Tinker Standard?

Tinker v. Des Moines Independent Community School District 1969. School officials may regulate student student expression when they can justify it by showing that the expression would materially and substantially interfere with schoolwork or discipline, or infringe upon the rights of other. Central standard for student expression in the school setting.

What major constitutional principle did Gitlow establish?

Incorporation of First Amendment speech and press protections against the states.

What was the major difference between Dennis and Brandenburg?

Dennis permitted restrictions based on clear and probable danger; Brandenburg required incitement to imminent lawless action that was likely to occur.

What two requirements must be satisfied under Brandenburg?

Speech must be directed at inciting imminent lawless action and likely to produce that action.

Why was draft-card burning not protected in O'Brien?

The government regulated the nonspeech aspect of conduct to protect its substantial interest in the draft system.

What happened in Texas v Johnson

Gregory Lee Johnson Burned an american flag during a protest at the 1984 RNC and the court said that because the act was expressive conduct, it is protected under the first amendment. The government’s interest in preserving the flag as a symbol of unity did not justify the conviction because Johnson did not disturb the peace.

What are fighting words?

Words that inflict injury or tend to provoke an immediate branch of the peace. Seen in Chaplinsky v New Hampshire in 1942. Chaplinsky, a Jehovahs witness called a city marshal a racist and a racketeer.

Cohen v california 1971

Paul Cohen’s jacket saying f the draft was protected speech because it was not directed at a particular person and did not incite disobedience or disruption. it did not promote an immediate branch of peace blackmun dissented arguing that the conduct was more conduct than speech.

Snyder v Phelps 2011

peaceful picketing was protected

What happened in Tinker v. Des Moines Independent Community School District 1969?

students were allowed to wear black armbands in protest of the Vietnam war because students do not abandon constitutional rights at schoolhouse gates.

What was the standard set in Tinker 1969

Schools can restrict expression when it would materially and substantially interfere with schoolwork, discipline, or infringe on the rights of others

what happened with Hazelwood School District v Kuhlmeier in 1988?

The principal at Hazelwood East High School prevented publication of two pages of a student newspaper containing articles about divorce and teenage pregnancy. Student First Amendment rights are not coextensive with those of adults. Schools may regulate school-sponsored expression that does not coincide with their educational mission. The Court did not apply Tinker to the newspaper because it was school-sponsored speech, not simply independent student expression.

What happened in Morse v Frederick (2007)

The court ruled that the Bong Hits for Jesus banner at the school sanctioned olympic torch event was speech that could be restricted because the banner was promoting illegal drug usage at a school sanctioned event. Schools can regulate speech regarding illegal activities.

What were some of different opinions given in morse

Justice Alito, joined by Kennedy, emphasized the narrow scope of the holding. Justice Thomas argued that Tinker was incorrectly decided. Justice Stevens dissented, reasoning that the banner did not cause substantial disruption.

What happened in Mahoney Area School District v BL?

This was the case where BL did not make varsity so she spoke out on snap and was suspended from JV cheer. The school did not have the right ti discipline her because it was off campus and did not create a disruption at school

What happened in Bates v State Bar of Arizona 1977?

Arizona prohibited attorneys from advertising. Two lawyers advertised their legal services and fees in a newspaper. This case said that truthful commercial information about legal services and fees helps consumers make informed decisions.

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

The government can regulate the ____, _____, and ______ of expression without necessarily supressing the message

time, place, and manner

What is a traditional public forum?

Streets and parks historically used for expression

What is the main rule for traditional public forum?

Restrictions generally must be content-neutral, narrowly tailored to a significant government interest, and leave ample alternative channels

What is a designated public forum?

Government property opened for public expressive activity

What is the main rule of a designated public forum?

While it remains open, the government is generally bound by the same standards as a traditional public forum

What is a nonpublic forum?

Government property not generally open for public expressive activity

What is the main rule of nonpublic forum?

Government may impose reasonable, viewpoint-neutral restrictions related to the property's purpose

Distinguish content based restriction and viewpoint based restriction:

Content-based restriction: A law regulates speech because of its subject or message.

Viewpoint-based restriction: A law treats one opinion or perspective differently from another.

For example, a university allowing a pro-police demonstration but prohibiting an anti-police demonstration would be an example of viewpoint discrimination.

Adderley v Florida 1966

reasonable restrictions on where protests occur may be permissible

Clark v. Community for Creative Non-Violence 1984

In a public forum the government can regulate the time, place, and manner, subject to applicable first amendment standards

RAV v City of St. Paul 1992

Government cannot selectively prohibit expression based on disfavored subjects or viewpoints

In Perry Education Association v Perry Local Educators association 1983 what type of forum were the school mailboxes

a nonpublic forum

Nationalist Social Party v Skokie (1977)

Offensive political expression is not automatically unprotected simply because its content is hateful.

Wisconsin v Mitchell 1993

stay can enhance penalties for crimes motivated by racial bias without necessarily violating the first amendment

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

Elonis v United States 2015

the government must establish the required mental state rather than treating treating words alone as automatically sufficient

Wooley v Maynard 1977

the right to refrain from expressing a government required message: new Hampshire could no longer require indvidiauls to have live free or die on their license plates

NAACP v Alabama 1958

freedom of expressive association

Roberts v United States Jaycees

the right to associate does not apply equally to all organizations or circumstances. The government may sometimes enforce antidiscrimination requirements against organizations.

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995)

A private expressive group may control the message it communicates.

US v Alvarez

someone claiming that they are have a congressional Medal of Honor when they don’t does not violate the freedom of speech clause

What happened in Miller v California

Miller mass-mailed advertisements containing sexually explicit material. People who had not requested them received and opened the pamphlets. He was prosecuted under California’s obscenity law.

What three-part test did Miller v. California establish for obscenity?

The average person, applying contemporary community standards, would find that the work appeals to prurient interest.

The work depicts or describes sexual conduct specifically defined by state law in a patently offensive way.

The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Prurient interest + patently offensive + no serious value

What did the Court rule in Miller v. California, and why?

The Court upheld the state’s ability to prohibit obscene material. States can use community standards to determine whether material is obscene, subject to the three-part Miller test.

What were the main objections in the Miller dissents?

Justice Douglas argued that the Constitution does not mention obscenity, so the Court should not create its own guidelines. Justice Brennan, joined by Justices Stewart and Marshall, argued that the statute was unconstitutionally vague.

What happened in New York v. Ferber?

A bookstore owner sold two films depicting children engaged in sexual conduct to an undercover officer. New York prohibited distributing this material even if it did not meet the legal definition of obscenity.

Why did the Court allow the state to prohibit child pornography in Ferber?

The state has a compelling interest in protecting children. Producing and distributing child pornography harms children, and the category is treated separately from material evaluated under the Miller obscenity test.

What concern did Brennan and Marshall raise in their Ferber concurrence in the judgment?

They expressed concern that applying the New York law could violate the First Amendment when the material had literary, artistic, scientific, or medical value.

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 the challenged provisions of the Communications Decency Act?

The provisions restricted constitutionally protected speech, including adults’ access to material. Terms such as “indecent” and “patently offensive” were vague, and the internet was not considered as inherently invasive as broadcast television and radio.

What was Justice O’Connor’s position in Reno v. ACLU?

Joined by Chief Justice Rehnquist, she argued in part that zoning-style restrictions could be valid if adults retained meaningful access to the material.

What happened in Brown v. Entertainment Merchants Association? 2011

California passed a law restricting the sale or rental of violent video games to minors and requiring labels. The law imposed a potential $1,000 fine, and the video-game industry challenged it.

Why did the Court strike down California’s violent-video-game law?

Video games are protected expression, like books and fairy tales. California had not shown a sufficiently compelling justification for its restriction, and its evidence connecting games to harm was inadequate to support the law.

What did the separate opinions argue in Brown v. Entertainment Merchants Association?

• Alito, joined by the Chief Justice: Agreed with the result but thought the law was vague.

• Breyer, dissenting: Would give the state more deference in addressing potential harm to children.

• Thomas, dissenting: Argued that the First Amendment did not establish a right to communicate with minors independently of parents’ authority.

Why did the Court rule for the Boy Scouts in Dale?

The First Amendment protects expressive association. Forcing a group to include someone can interfere with its expression if that person’s inclusion significantly affects the group’s ability to advocate its views.

What was the central criticism in Justice Stevens’s Dale dissent?

Joined by Justices Souter, Ginsburg, and Breyer, Stevens argued that the majority’s decision aggravated prejudice against homosexuals.

What happened in Christian Legal Society v. Martinez?

A Christian student group wanted official recognition at UC Hastings but required members and leaders to sign a statement of faith. The school’s nondiscrimination policy required recognized student groups to accept all students, so the group was denied official recognition.