AP Government Supreme Court Cases: Tinker v. Des Moines, Schenck v. United States, Freedom of the Press, Second Amendment, New York Times v. United States
Tinker v. Des Moines
In 1965, Senator Robert Kennedy called for a Christmas truce in Vietnam War.
The Tinker family wanted to support the truce with symbolic protest.
Four children and a friend planned to wear black armbands to school.
The nation was in turmoil regarding the Vietnam War with protests and violence.
School administration created a policy against protest armbands, students would be asked to remove it or face suspension.
The Tinker children wore armbands and were suspended.
Parents filed suit, claiming a violation of the First Amendment right to free speech.
Rights are not absolute, so the question was whether a silent, symbolic student protest on school property should be allowed.
School administrators are responsible for a good learning environment.
The question was whether the administration's prohibition was a reasonable infringement on free speech.
In a 7-2 decision, the court ruled it was a violation of the student's right to free speech.
The court acknowledged valid constitutional reasons for administration to restrict student speech.
The court created the Disruption Test: school administration can restrict student speech if it would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school."
Wearing armbands caused no material or substantial disruption.
Justice Abe Fortas: it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gates.
The case set parameters for free speech on school campuses and has been cited in many other similar cases.
Subsequent cases have refined the relationship between students' free speech and the school administration's responsibility to create a conflict free learning environment.
Bethel School District v. Fraser (1985):
The case took up the question about obscene and vulgar speech at school.
A student gave a speech with sexual innuendos and was disciplined.
The court decided that vulgar speech on a school campus was not the same as political speech like the students in the Tinker case had engaged in.
The court ruled in favor of the administration, deciding that there are legitimate restrictions on student speech.
Schenck v. The United States
In 1917, Congress passed the Espionage Act, outlawing hindrances to military recruitment.
This was during America's involvement in World War I, and the draft had just started.
Charles Schenk, a member of the Socialist Party, opposed the draft.
He wrote a pamphlet encouraging young American men to resist the draft.
Schenck claimed the draft was intimidation and involuntary servitude, outlawed by the Thirteenth Amendment.
He distributed around 15,000 pamphlets and was arrested for violating the Espionage Act.
He argued his First Amendment right to free speech was violated, making that section of the Espionage Act unconstitutional.
He believed he had the right to protest the war, and government silencing dissent would be tyrannical.
The court ruled unanimously that Schenck's First Amendment rights were not violated because he was actively encouraging men to avoid the draft.
Oliver Wendell Holmes wrote in his Majority Opinion:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.
The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
The phrase "clear and present danger" created a test for measuring protected and unprotected speech.
The government has more right to infringe upon free speech during wartime.
The clear and present danger test is no longer used.
It has been superseded by the Brandenburg test, which distinguishes between the intent of speech and its likelihood to incite lawless activity.
The Brandenburg test set an even higher bar for the government to clear before silencing speech.
Freedom of the Press
The freedom of the press is one of the keystones to a free society.
Anti-Federalist George Mason: "The freedom of the press is one of the greatest bulwarks of liberty and can never restrained by despotic governments."
A free press is necessary to report what elected government officials are doing so that we can keep them accountable.
The right to a free press is not absolute and must be balanced with other liberties.
The right to a free press must be balanced with the Sixth Amendment right to a fair trial, which may necessitate keeping certain details out of the press.
Prior restraint: when the government seeks to restrain a story prior to its publication.
The standard for prior restraint has been set very high by the Supreme Court.
New York Times v. The United States (1971):
Classified documents known as the Pentagon Papers were leaked to the New York Times and the Washington Post.
Those papers showed that the president had lied both to the people and congress about the Vietnam War.
President Richard Nixon decided to invoke prior restraint on the publication of these papers on account of the protection of our national security.
The court ruled that the freedom of the press was more important in this case than Nixon's vague claim about national security.
Nixon was actually concerned about how the Pentagon Papers would tarnish his and Lyndon Johnson's reputation.
The court established a heavy presumption against prior restraint.
If the government is going to censor the press, it has to be incredibly clear that a real and imminent threat is being prevented.
That high bar is never cleared in most free press cases that come before the supreme court.
The Second Amendment
The debate over the interpretation of the Second Amendment can get nasty.
The Second Amendment:
"A well regulated militia, being necessary to a free state, the right of the people to keep and bear arms, shall not be infringed."
The liberty part comes in that the right of the people to keep and bear arms shall not be infringed.
A lot of the argument over this amendment has to do with those first phrases, a well regulated militia being necessary to a free state.
In every case where state constitutions mention the right to bear arms, it is clearly tied to a militia.
Those in the founding generation were mighty suspicious of standing armies.
To them, a standing army was a symbol of tyranny.
If a conflict arose they wanted to raise an army and then when the conflict was over to disband it and leave the general protection of the state to individual citizens that made up state militias.
The main point of contention today is that now that we have such a robust military system and police force and thus no need of state militias, does the second amendment's right to bear arms still apply?
The Supreme Court does not agree that the right to bear arms is exclusively tied to militia service.
District of Columbia v Heller (2008):
The District Of Columbia or Washington DC is a federal district, not a state.
Dick Anthony Heller was a DC Police Officer who wanted to carry his gun home for the purpose of self defense.
If you wanted to have a gun in your home in DC, it had to be disassembled or locked down with a trigger lock.
Heller claimed that these strict gun laws were a violation of his second amendment rights to keep and bear arms.
The court agreed with him.
Even though the second amendment mentions the right to bear arms in the context of militias, that does not diminish the operative phrase of the amendment, namely the right to keep and bear arms.
In this case, the court very much ruled in favor of individual liberty.
The ruling in the Heller case would only apply there and not to the states.
McDonald v Chicago (2010):
This case essentially applied the Heller decision and its commitment to individual liberty for gun ownership to all states.
The Supreme Court has consistently upheld an individual's right to own a gun.
In both cases mentioned, the decisions were five to four and fell along the ideological lines of the court.
New York Times v The United States
In the late nineteen sixties and into the nineteen seventies, the US was involved in the Vietnam conflict, was basically an undeclared war.
Presidents and agencies had systematically deceived the public concerning the war.
Nixon commissioned a top secret inquiry into the history of The US involvement in the war and the findings were not flattering.
One of the guys who worked on the report leaked huge portions of it to the New York Times and the Washington Post.
The Nixon administration sent an order to the papers to cease publication of top secret documents because it could threaten national security.
This was a procedure called prior restraint.
The Nixon administration tried to keep the paper from publishing these documents before they were printed.
The New York Times claimed that Nixon's invocation of prior restraint violated their First Amendment rights.
The Nixon administration argued that prior restraint was justified in this case because the publication of these papers would threaten national security.
The court agreed with the New York Times that the Nixon administration's restraining order was unconstitutional and therefore allowed the paper to continue printing Pentagon Papers.
In the opinion handed down by the court, they said that:
"Any system of prior restraints comes to this court bearing a heavy presumption against its constitutional validity."
Whenever a case involving the freedom of the press comes before the court, the bar to clear for prior restraint is very high.
Prior restraint can be used if it is really a matter of national security.
The decision is hailed as a victory for the free press against censorship.
The decision made it very hard to censor the free press ever since.