Week 3

Manual notes:

First test on Monday Sept 29th

Slides are going to be posted before then

Oliver Wendell Holmes opinion held that the government had a clear and present duty to procesute those who had a "clear and present danger"

clear and present danger is the only basis for limiting free speech

too ambiguous and open ended

The Smith act of 1940 made it a violent crome to advocate overthrow of the government or be a member of a group that advocated the overthrow of the governemnt

The red scare

Dennis V U.S. (1951)

Twelve member of the communist party USA were prosecuted for violations of the 1940 Smith Act

Although the defendants had not called for the forcible overthrow of the government in public they had done so in private

the supreme court ruled that was sufficient enough to "establish a clear and present danger"

Yates V. U.S (1957)

The supreme court reverses the postion overturning a conviction of two communists party leaders saying advocating violence in the abstract is insufficient to sustain a conviction under the Smith Act

Evidence must proved that the defedendants advocated actual position

This decision has the effect of neutralizing the "clear ad present danger" standard established by Holmes in the Schenck decision

SCOTUS ruled 1st amendmnet protests abhorrent speech " mere advocacy of the use of force does not remove speech from 1st amendment protection"

held only speech that is likely to produce imminent lawless action can be punished. Brandenburg's abhorrent speech

The clear and present danger test of the Holmes court was replaced with the Brandenburg decision. This remains the contemporary standard for limiting speech that criticizes the government

Symbolic Speech:

Burning a flag, wearing an armband, is protected speech.

Texas V. Johnson (1989) The SCOTUS overturned a conviction under Texas law that allowed for punishment of the public destruction

Joey Johsnson was convicted under that law senteced to one year in Jail and 2000 fine

SCOTUS held Johnson's burned of the flag was protected expression under the First Amendment

1990 the court once again by 5-4 vote held that burning the flag waas allowable expressive conduct

congress has tried several times and failed to pass laws or constituitional amendments outlawing flag desecration

Trump has vowed to make flag burning should be a federal crime.

Cross burning:

Crime ordiance stipulated that placing on public or private property any, including but not limited to a burning cross or Nazi swastika, which one reasonably assumes will cause anger, alarm or resentment on the basis of race, color, creed, religion or gender.

In 2003 by a 6-3 margin

Virginia v. Black SCOTUS upheald a virginia statue ,a virginia statue making it illegal to burn a cross in public with the intent to hurt ad intimidate others.

Sandra day o conner even though cross burning at times expressive virginia could ban cross burning because it represented a true threat

Restraints of student expression

Do school officials have a right to place limits on the first amendment rights of students

Mineersville school districts v gobits 1940 jehovahs witness chilldren object to flag salute

violation of their religious freedom

SCOTUS - judicial restraint this is not a case for the courts, the school board has the right to use means to foster national unity.

Tinker v. Des Moines 1969 -

Students do not shed their fist amendment rights in school and maintained the right to wea black armbands to protest the war in Vietnam.

Hezelwood v. kuhlmeier 1988 -

School administators have broad pwers to censor school newspaper if that action is related to "legitimate pedagogical concerns"

School admins removed stories about teen pregnancy and divorce. Principle said articles invade privacy of students and parents interviewed.

SCOTUS ruled admin do have the authority to determine appropriate content.

Morse V. Frederick 2007, upheld the right of school to impose punishment of stuent speech that promotes illegal drug use.

First test will be Monday Sept 29th

Transcripted notes