PSC 1387 Unit 5

Free Speech

First Amendment

  • The first amendment says that congress cant make laws against free speech

  • This right was “incorporated” into states by the supreme courts — the states cant laws against it either

Can Free Speech be Restricted?

Schneck vs US

  • Facts

    • Schneck should refuse to register for the draft. (illegally)

    • He is arrested under the espionage act

  • Court ruling

    • Schneck can be persecuted

    • Free speech can be limited during wartime

    • “Clear and present danger” test 

      • Ex: you cannot yell fire in a crowded room, that poses a clear and present danger of stampedes

Gitlow vs New York

  • Facts

    • Gitlow was a socialist, encouraging revolts

    • Arrested by New York

  • Ruling

    • Gitlow arresting upheld

    • Incorporated the first amendment to the states

    • Allowed NY to limit speech to prevent violence 

Dennis v. US

  • Facts

    • Communist, spreading communist ideals

    • Dennis argued there was no clear and present danger

  • Ruling

    • Threw out Schneck test, replaced with “gravity of the evil”

    • Gave government more space to prevent evil, instead of just persecuting after evil occurs

Brandenburg v. Ohio 

  • Facts

    • KKK Member, encouraged people to resist the gov

  • Ruling

    • Ruled for Brandenburg, freed him

    • Created the “imminent lawless action” test

    • If lawlessness occurred, it was due to the klan’s innate nature, not Brandenburg’s speech

Communist Free Speech

  • The gov wanted to limit communist speech

  • The supreme courted ruled for the communists on every single case (9 cases)

Were the Communist Rulings Countermajoritarian? (Yes or No)

  • Polls 

    • Against court’s ruling

  • Attacks on the Court 

    • Closest we’ve ever gotten to an attack passing, only didn’t pass because LBJ locked senator Kerr in a closet

  • Grassroots Pushback 

    • Some

  • Congressional Pushback 

    • Some

  • Electoral Pushback 

    • No, because Rep. didn’t want to link civil rights and communism

Court Response

  • In 1959, the court reversed two of their rulings because they feared congress

Free Speech Rules

Gen Z Beliefs

  • No one should be able to offend anyone

  • Offending people hurt people’s mental wellbeing and so it should not be allowed

    • Ex: A&M (talk on best way to…butthole), BU (shapiro), Rice (pence), Norte Dame (Obama), Obergefell (decision that allowed gay marriage)

  • This belief comes from a need for safety & phones

  • Backlash: free speech absolutists

Social Media Cases

Mahanoy vs BL

  • A girl was cut from her high school varsity cheer team

  • She posted a social media story cursing the school

  • She was reported and got kicked off JV cheer

  • Her parents sued since the school is restricting her off-campus speech

  • Court sided with her

US. vs Alvarez

  • Alvarez wrote a letter claiming stolen valor and that he was on a football team and a bunch of other random lies

  • This violates stolen valor laws

  • Supreme court rule stolen valor laws were unconstitutional

SBA List vs Driehaus

  • Driehause voted for Obamacare

  • SBA puts up a billboard saying he voted for tax-payer funded abortion

  • He claims this violates laws, they sue

  • Court rules for SBA

Hustler vs Falwell

  • P*rn magazine falsely claims a prominent Christian, Falwell, had s** with his mother in an outhouse just to spite him

  • He sues

  • Court rules protecting free speech > protecting celebrities

Viewpoint Discrimination

Communists Party vs Whitcomb

  • Virginia required people on the presidential ballot to swear not to overthrow the US government

  • Communist candidate refuses and sues

  • Court rules for the communist, stating this goes against free speech

Texas vs Johnson (Countermajoritarian)

  • Johnson burns a flag, Texas arrests him

  • Johnson sues

  • Texas argues burning a flag isn’t just speech, its actions, and could incite violence

  • Court rules for Johnson, saying they don’t need to protect a symbol (the flag)

  • Texas (and anyone else) cannot make a law burning the flag

Synder vs Phelps

  • Synder was a marine who died in the line of duty

  • Synder was not gay

  • He had a funeral

  • Baptists church protested saying he died because America tolerated homosexuals

    • They held signs saying “Pray for more dead soldiers” and “soldiers die God laughs” (ew?)

  • His family sued

  • Court ruled for the church, saying it was free speech

Nazi Party of America vs Village of Skokie

  • Village of Skokie was highly Jewish and had many holocaust survivors

  • NPA planned a march in the Village of Skokie where they would walk single file wearing nazi uniforms and say nothing

  • Skokie has a counter-protest

  • Both protests are stopped

  • Court says these protests should’ve been allowed

Virginia vs Black

  • Virginia had a law against burning crosses on people lawn

    • Cross burning was done by the KKK on black people’s lawn to say “we’re going to lynch you if you don’t leave”

  • Black, a KKK member, sued saying it violated free speech

  • Virginia argued it was only for intimidation

  • Court upheld Virginia’s law, saying cross-burning was still a “clear threat”

Walker vs Sons of Confederate Veterans

  • Confederates wanted to get a Texas license plates 

  • Lots of weird license plates exist, including one that says “Notre Dame sucks”

  • Texas DMV rejects their application, saying its government property/speech, not free speech

  • Court sides with Texas saying that the license plates are viewed as the government’s speech and the government can regulate their own speech

US vs Stevens, 303 Creative

  • Stevens doesn’t want to fulfill and order for a cake for a gay couple 

  • 303 Creative was an engagement website, didnt want to work with gay couples

Free Exercise/Establishment Clause

Constitutional Clauses

  • “Congress shall make no law respecting an establishment of religion or preventing free exercise of religion”

Supreme Court Decisions

  • Engel v. Vitale

    • Public school had a nondenominational prayer

    • Parents sued the school

    • Supreme Court prohibits school prayer

  • Abington School District v. Schempp

    • Abington had mandatory bible readings, but parents could opt-out

    • Supreme Court strikes down bible readings

Are These Cases Countermajoritian? 

  • Public Opinion polls

    • 70% disapproval

  • Congressional Attacks

    • Hundreds of attacks, attacks from both sides

    • Engel v. Vitale is the most attacked decision of all time

  • Grassroots Pushback

    • The majority of schools refused to follow the courts rulings and continued with prayer and bible reading

    • Devolution - enforcement is left to school districts who don’t care what the supreme court says

    • Alternative measures - A congressman said a bible verse everyday to put it in the record, so teachers could say “were just doing congressional reading,” moments of silence

  • Congressional Pushback    

    • No amendments pass due to a 2/3 majority needed, but majority of congress clearly opposed

    • Etched “In God We Trust” on the president of the house’s desk, lol

    • Stopped supreme court judges from getting raises

    • Used tax money to buy each judge a bible (lol?)

  • Electoral Pushback

    • Republicans tried, but failed

    • Republicans appeal to southern democrats and catholics

    • Memo “dividing the democrats” and “the assault book” 

    • Appeal to catholics by trying to funnel money into Parochial (religious) schools

    • Failed because it wasn’t salient (noticeable/important) enough because the grassroots pushback was so effective

      • No electoral pushback was needed because grassroots pushback was so effective

    • “Canary in the coal mine”

Sante Fe vs Doe (2000)

  • Football players pray before games

  • Supreme Court strikes this down

  • In response, 34 states have moment of silence prayer

  • The students buy the largest, loudest speakers they find and put them across the street from the stadium/school, and pray anyway since its “not on school property”

Burwell vs Hobby Lobby

  • Hobby Lobby owners are against birth control due a good faith objection from their religion

  • Obamacare required employers to pay for birth control

  • Hobby Lobby sues 

  • Court sides with Hobby Lobby

  • **No one lost access to birth control, but Hobby Lobby didn’t have the provide it

Was Burwell vs Hobby Lobby Countermajoritian?

  • Polls: Split, no majority either way

  • Attacks on the Court: no, only 6

  • Pushback: none

Crime

Criminal Rights Cases

Mapp v. Ohio

  • Illegally obtained evidence must be thrown out (exclusionary rule)

  • Police had a warrant to look for a fugitive in Mapp’s house, when in there they found illegal materials and persecuted her

  • Court said you cant do that, thats not why you went in her house

Escobedo v. IL

  • Escobedo is being interrogated and the police lie about his lawyer

  • Escobedo accidentally admits to being a accomplice

  • He sues, the court rules his right to a lawyer starts immediately and his rights were violated

Miranda v. AZ

  • Miranda Rights must be read to you at time of arrest

Katz v. US

  • FBI tapped a payphone trying to bust Katz for gambling

  • They catch him and he sues

  • Government argues they didn’t violate his privacy, just the phonebooths privacy

  • Court strikes down this dumb defense

Are these Counter-majoritian? (Yes or No)

  • Public Opinion Polls 

    • against

  • Congressional Attacks

    • Southern and Northern Democrats, Catholic, Republicans

  • Grassroots Pushback

    • Some interrogators used tricks and threats, most complied

  • Congressional Pushback

    • Yes

  • Electoral Pushback

    • Yes, Nixon used the fear of crime to win

Change Agency and Strategies

  • Change agents seek to implement change in an environment with existing status quo defenders, who resist change.

  • The interaction between change agents and status quo defenders can be organized in a two-by-two table according to two criteria:

    • Discretion - How much leeway is available for interpretation of laws and rules?

    • High discretion means rules can be broadly interpreted.

    • Low discretion means rules are specific, limiting the ability to enact change.

    • Strength of Status Quo Defenders: Are they politically weak or strong?

    • Weak implies limited ability to resist changes.

    • Strong implies significant power to maintain the status quo.

Strategies for Change

  • Displacing the Law: When status quo defenders are weak and legal discretion is low, change agents can simply remove prohibitive laws.

    • This tactic involves declaring the existing law ineffective and proceeding without it.

  • Using Legal Discretion: When status quo defenders are weak, but legal discretion is high, change agents can reinterpret existing laws to suit their objectives.

    • This means finding creative ways to apply laws differently, advancing desired changes while within the framework of the law.

  • Layering New Laws: When the status quo is strong and legal discretion is low, change agents must add new legislation atop existing laws to facilitate change.

    • This creates a new legal framework that can counteract or add functionality to the existing rules.

  • Subversive Tactics: When encountered with a strong status quo and high discretion, agents must operate covertly to manipulate interpretations of the law and exploit loopholes.

    • This requires careful planning and foresight to achieve goals without attracting opposition.

Response

  • The 1968 Crime Bill was introduced by liberal democrats suggesting that enhanced social welfare in poor neighborhoods would reduce crime, countering the narrative that more policing was needed.

  • As Republicans gained control during congressional debates, they amended the original proposals, shifting focus towards increasing federal power in law enforcement, including exemptions from Miranda rights for federal agents.

  • The amendments led to significant changes in how law enforcement operated, particularly in relation to rights established by Miranda v. Arizona, effectively finding ways to maneuver around established legal precedents.

  • The incremental changes in the law reflect political strategies aimed at influencing future legal interpretations and resultant court decisions.

    • The political climate of the 1960s, marked by social unrest and civil rights movements, played a significant role in how laws were interpreted and enforced.

Dickerson v. United States

  • Dickerson was prosecuted as the getaway driver in a bank robbery but argued that his confession should not be admitted as evidence because he had not received his Miranda warnings.

  • The ruling upheld the Miranda decision, emphasizing judicial principles despite legislative attempts to override prior judicial rulings, highlighting the ongoing tension between legislative mandates and judicial interpretations.

Abortion Before Dobbs

Important Questions

  • What did Roe rule?

  • Was Roe countermajoritarian

  • How did Roe help create an electoral Majority

  • Why wasn’t Roe overruled? 

→ 1) What did Roe vs Wade (1973) rule?

  • Pregnancy is split into trimesters, mainly created by the supreme court, not doctors

    • Each trimester has different restriction rules

      1. Must allow for abortion in most scenarios

      2. Can be restricted, but must make considerations for the mothers health and safety

      3. Can be banned

  • State legislatures cannot adopt a theory of when life begins (basically the whole basis behind abortion arguments)

  • Privacy via 14th Amendments DP

    • “Right to privacy” is not explicitly stated in the constitution

→ 2) Was Roe Countermajoritarian? (Yes or No)

  • Public Opinion Polls

    • Public was split on first-term abortions, but the majority opposed post-first-trimester abortions, which Roe made possible

  • Congressional Attacks

    • 105 Democratic Attacks (mainly catholic) and 128 Republican Attacks (there was much more diversity among the parties than now in abortion opinions)

  • Grassroots Pushback

    • Abortion and facilities offering abortion rates decline

    • State Responses (Rhode Island defied Roe)

    • This was so effective it got harder to get an abortion after Roe

  • Congressional Pushback

    • Hyde (no federal money on abortions)

    • Attempts to make Amendments 

  • Electoral Pushback

    • GOP (Republicans) mobilizes/targets social conservatives to vote for them with the abortion issue

→ 3) How did Roe create an electoral majority?

Republican Party Response

  • Anti-abortionists (South & Catholic) vote republican

  • Republicans get elected

  • Republicans nominate supreme court justices

  • They should be able to overturn Roe v Wade, right? no.

  • Focuses of the party

    • Limited Government

    • States' rights

      • Crime should be a local issue

      • Busing should be a local issue

    • American Family 

  • Reagan wins presidency

  • Catholics become Republican

→ 4) Why wasn’t Roe Overturned?

  1. Bad appointments 

    • O’Connor was appointed, but she ended up being liberal on abortion

    • Reagan learned his lesson with O’Connor by appointing the very conservative Scalia

    • Bush (Reagan’s successor) gets to pick a new justice replacing a liberal one (super important! See webster)

      • There is a definite front-runner, so democrats try to investigate the front-runner to sabotage him, but theres nothing

      • DOJ officials within Bush administration object, calling front-runner a “ secret liberal”

      • He instead appoints a secret liberal instead (souter)

  2. Bad timing

    • Democrats took the senate, so Reagan must appoint a more conservative justice, Kennedy

  3. Policy Choice

    • (Struck down) TRAP Laws - make it hard for abortion clinics to exist

      • Ex: A doctor must have admitting privileges in 2 hospitals to be able to provide abortions

    • Fetal Remains - Kentucky says fetal remains must be disposed of as any human, upheld

    • Heavy regulation of abortion

    • Abortion restrictions are so effective, why overturn?

  4. Political Choice

    • If they overturn Roe v. Wade, then Catholics might go back to voting Democrat, they need to keep the issue alive to keep Catholics on their side

Challenges to Roe v Wade before Dobbs

  • Webster (1989)

    • “The US asks this court to reconsider and overrule its decision in Roe v. Wade”

    • Court ruled 5:4 not to overturn Roe v Wade, very very close (O’Connor was the extra vote against)

  • Planned Parenthood v Casey

    • Same story, Souter votes to uphold Roe v Wade

    • Concerns restrictions of abortion

      • Parental Consent

      • Waiting period for abortion

      • Informed consent

      • Paternal (the baby father) Consent - only thing they struck down

    • Replaces Roe

      • Replaces trimesters with fetal viability and undue burden 

    • Roe v. Wade was clearly a pro-choice decision, but Casey was clearly pro-life.