Civil Rights/Liberties Midterm Set

Question 1

Federal Court Structure

Answer 1

Processing Court Cases: Receiving requests, cases are docketed, justices review cases, justices conference, actions are announced, dates are set for oral arguments, attorneys file briefs, oral arguments take place, conferences occur, majority opinions are written, and opinions are reported.

Question 2

Appeals Process to US Supreme Court

Answer 2

State Courts – Small claims + juvenile + justice of the peace, district/circuit courts, courts of appeals, state supreme court
Federal Courts – Courts of federal claims + tax court, US district courts, US court of appeals, SC

Question 3

Original Jurisdiction

Answer 3

Defined in Article III, Section 2 defines overall jurisdiction, original jurisdiction pertaining to cases that originate in the court.

Question 4

Appellate Jurisdiction

Answer 4

Appellate routes include appeals, certification, and writs of certiorari; meaning that a federal or state court has already decided a case and one of the parties requests the SC to review the decision.

Question 5

Discretionary Jurisdiction

Answer 5

The power of the court to engage in discretionary review giving the authority to decide to hear a particular case brought before it.

Question 6

Standing

Answer 6

According to Article III, standing requires that the party must have suffered a concrete injury or be in imminent danger of suffering such a loss, that the injury must be fairly traceable to the challenging action of the defendant, and the party must show that a favorable court decision is likely to provide redress. Often refers to the concept of “standing to sue.”

Question 7

Justiciability

Answer 7

Article III judicial power of the federal courts restricted to “cases” and “controversies.” Litigation must be appropriate or suitable for a federal body to hear or solve it. It supposedly gives expression to this dual limitation placed upon federal courts by the case-and-controversy doctrine.

Question 8

Petition for a writ of certiorari

Answer 8

An order of an appellate court to an inferior court to send up case records that the appellate court has elected to review. The SC exercises its discretionary jurisdiction to accept appeals for a full hearing.

Question 9

Filing in forma pauperis

Answer 9

Special status is granted to individuals and allows them to bypass court costs and bring forward suits without incurring the costs of the suit.

Question 10

Marbury v. Madison (1803)

Answer 10

William Marbury had been appointed Justice of the Peace in the District of Columbia, but his commission was not delivered. Marbury petitioned the Supreme Court to compel the new Secretary of State, James Madison, to deliver the documents. Marbury, joined by three other similarly situated appointees, petitioned for a writ of mandamus compelling the delivery of the commissions.
Marshall expanded that a writ of mandamus was the proper way to seek a remedy, but concluded the Court could not issue it. Marshall reasoned that the Judiciary Act of 1789 conflicted with the Constitution. Congress did not have power to modify the Constitution through regular legislation because Supremacy Clause places the Constitution before the laws.

Question 11

Judicial Review Judiciary Act of 1789

Answer 11

The court ruling in Marbury v. Madison gave SC the ability to strike down legislation it deemed incompatible with the US Constitution. Section 13 of the 1789 Judiciary Act gives the Court the power to issue writs of mandamus to anyone holding federal office, and a writ of mandamus is a document issued by the SC that forces government officials to fulfill their duties and correct an abuse of discretion. The Judiciary Act establishes the lower federal courts separate from state courts. Judicial review thus allows the SC to declare a legislative or executive act in violation of the Constitution.

Question 12

Article III, § 2 Exceptions Clause

Answer 12

The exceptions clause seems to give Congress authority to alter the Court’s appellate jurisdiction, including subtracting from it. Ex Parte McCardle determines whether Congress can use its power under the exceptions clause to remove the Court’s appellate jurisdiction in certain cases.

Question 13

Martin v. Hunter’s Lessee (1816)

Answer 13

During the American Revolution, Virginia created laws allowing the state to seize property of Loyalists. In 1781, Denny Martin, a British subject, inherited land from his uncle, a Loyalist. The following year, the Virginia legislature voided the land grant and transferred the land back to Virginia. Virginia granted a portion of this land to David Hunter. A federal treaty dictated that Lord Fairfax was entitled to the property.

The Virginia Supreme Court upheld Virginia’s law permitting the confiscation of property, even though it conflicted with the federal treaty. The U.S. Supreme Court reversed and remanded, holding that the treaty superseded state law under the Supremacy Clause of Article VI. On remand, the Virginia Court of Appeals declined to follow the ruling and argued that the law granting the Supreme Court appellate review over state court decisions, section 25 of the Judiciary Act (the Act), was unconstitutional.

No. Article VI of the US Constitution (the Supremacy Clause), combined with the grant of appellate jurisdiction in Article III, gives federal courts the power to review state court decisions that interpret federal law or the Constitution.

The Court rejected the claim that Virginia and the national government were equal sovereigns. Relying on the Supremacy Clause, Justice Story held that federal interpretations of federal law should supersede state interpretations. He reasoned that there should be uniform and predictable outcomes across all states.

Question 14

Ex Parte McCardle (1869)

Answer 14

After the Civil War, the Republican Congress imposed the Reconstruction laws on the South, including military rule. Journalist William McCardle opposed the laws and wrote editorials urging judiceance against them. He was arrested for publishing these ideas.
McCardle was arrested under the “incendiary and libelous articles” and held for trial before a military tribunal via Reconstruction. McCardle claimed he was illegally held and petitioned the US circuit court in Mississippi for a writ of habeas corpus under the 1867 act enabling federal judges “to grant habeas corpus to persons detained in violation” of the U.S. Constitution.

Chief Justice Chase delivered the opinion of the Court and held that:
The appellate jurisdiction of the court is not derived from the acts of Congress, but conferred “with such exceptions and under such regulations as Congress shall make.”
The exception to appellate jurisdiction in the case was explicitly stated in the Habeas Corpus Act, but it is repealed, therefore, there is no positive exception that grants them able to hear the case.
The act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the original act of 1867, neither does it affect the jurisdiction of cases previously heard.
Other Opinions: None
Notes: McCardle suggests that Congress has the authority to remove the Court’s appellate jurisdiction as it deems necessary. As Justice Felix Frankfurter put it in 1949, “Congress need not give this Court any appellate power; it may withdraw
appellate jurisdiction once conferred and it may do so even while a case is sub judice [before a judge].

Question 15

Non-Interpretivism

Answer 15

Judges should go beyond the Constitution and enforce norms that can’t be discovered within the Constitution

Question 16

Judicial Activism

Answer 16

Courts can and should go beyond the applicable law to consider the broader societal implications of its decisions. Often considered the opposite of judicial restraint.

Question 17

Judicial Restraint

Answer 17

Restraint-oriented justices take the opposite position. Courts should not become involved in the operations of the other branches unless absolutely necessary. The benefit of the doubt should be given to actions taken by elected officials. Courts should impose remedies that are narrowly tailored to correct a specific legal wrong.

Question 18

Interpretivism

Answer 18

Based on the assumption that reality is subjective, multiple and socially constructed. Judges must be confined to enforcing norms states or clearly implied by the Constitution.

Question 19

Original Intent

Answer 19

Asking questions based on what individual want to do, a question of desire or want. Ex. Asks what the framers wanted to do; “The framers would have been shocked by the notion of the government taking away our handguns.” Or “The framers would have been shocked by the notion of people being entitled to own guns in a society where guns cause so much death and violence.”

Question 20

Pure Textualism

Answer 20

Places emphasis on what the Constitution says, nearly completely limited by the Constitution. Ex. “The Second Amendment says ‘right of the people to keep and bear arms,’ so the people have a right to keep and bear arms.” Or “The Second Amendment says ‘A well regulated militia . . . ,’ so the right is limited only to the militia.”

Question 21

Textual Meaning

Answer 21

Textual Meaning relates to pure textualism, but rather than taking the Constitution purely and solely for the language included in the text, textual meaning would be a slight interpretation of the text relative to what the framers thought when they wrote it. An example of this would be the right to bear arms in the 2nd Amendment, and what the framers meant when they wrote “bear arms.”

Question 22

Amicus Briefs

Answer 22

Amicus curiae brief regarding the Roman practice of a judge appointing a consilium or officer of the court to advise him on points where the judge doubts. Contemporary briefs almost always are a friend of a party, supporting one side over the other at the certiorari and merits stages.

Question 23

Incorporation Doctrine & Selective Incorporation

Answer 23

As the nation entered the twentieth century, the Supreme Court slowly began to inform state governments that they too must abide by “select” guarantees contained in the first eight amendments to the federal Constitution, even if those guarantees did not appear in their own constitutions. Describes Supreme Court interpretation and application of the incorporation of the bill of rights by state jurisdiction and legislation. These include cases deciding the application of Amendments 1-8 and 14th Amendment incorporation and enforcement of state violations of freedoms of speech, private property, and due process. Ex. Hurtado v. California, Chicago, Burlington, and Quincy Railroad v. Chicago (1897), Twining v. New Jersey, Gitlow v. New York (1925), Palko v. Connecticut (1937), Duncan v. Louisiana (1968)

Question 24

Barron v. Baltimore (1833)

Answer 24

Baltimore City altered the flow of streams coming into the harbor, causing a buildup of sand and sediment near the wharves which made the water too shallow for ships to come in. Barron and Craig owned a wharf in this section and after the redirection of sediment, they lost their business.
Barron repealed to the SC declaring a 5th Amendment private property violation; they have a right to secure their rights against state abuse as the City of Baltimore took the value of the wharf without just compensation.
Chief Justice Marshall delivered the opinion of the Court and held that:
- Each state has a constitution for itself, and as the Constitution was made to prepare for future adaptations and elaborations on limitations to power.
- The 5th Amendment restrains the power of the general government, not applicable to the states. The state governments have provisions for restrictions of their own power.
- The 9th section of the 5th Amendment contains restrictions intended to restrain the exercise of power by the general government. This provision thus, contains no restriction on state legislation.
- There is no cause between the acts of the general assembly of Maryland for the SC to hear the case, therefore they have no jurisdiction and dismiss the case
Notes: Writing for a unanimous Court, in one of his last major opinions, Chief Justice Marshall sent a clear message to the states on the question of nationalizing the Bill of Rights. The Bill of Rights was intended only to protect the people against abusive actions of the federal government, not the states. Guarantees against state violations of individual liberties would have to be found in the laws and constitutions of the respective individual states.

Question 25

14th Amendment Privileges or Immunities Clause

Answer 25

The privileges or immunities clause declares, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Supporters of applying the Bill of Rights to the states argued that the “privileges or immunities” of U.S. citizenship were nothing more or less than those rights guaranteed by the first eight amendments to the Constitution. If accepted, this interpretation would mean that no state could violate the liberties protected by the Bill of Rights. In other words, the proponents argued, the privileges or immunities clause “incorporated” or “absorbed” the Bill of Rights guarantees and obliged the states to honor them. Achieving this result, however, would require the Supreme Court to be expansive in its interpretation of the privileges or immunities clause.

Question 26

14th Amendment Due Process Clause

Answer 26

Take the Fourteenth Amendment, which guarantees that states cannot “deprive any person of life, liberty, or property, without due process of law.”
Discussed in Hurtado v. California

Question 27

Slaughterhouse Cases (1873)

Answer 27

The Supreme Court had its first opportunity to evaluate this argument in the Slaughterhouse Cases (1873). This litigation grew out of the Industrial Revolution—an economic diversification that touched the whole country. Although industrialization changed the United States for the better in many ways, it also had negative effects. In Louisiana, for example, the state legislature claimed that the Mississippi River had become polluted because New Orleans butchers dumped garbage into it. To remedy this problem (or, as some have suggested, to use it as an excuse to form a monopolistic enterprise), the legislature created the Crescent City Live-Stock Landing & Slaughter-House Company to receive and slaughter all city livestock for twenty-five years.

Question 28

CBQ Railroad v. Chicago (1897)

Answer 28

The City of Chicago wanted to connect two disjoint sections of Rockwell Street between 18th and 19th Streets, over private property. This property was owned by various individuals but also included a right-of-way owned by the Chicago, Burlington, and Quincy Railroad Corporation. To accomplish this, the city petitioned in Cook County Circuit Court to have the necessary land condemned. The land was condemned. The individuals were awarded compensation, while the railroad was awarded just one dollar. The railroad appealed the judgment, alleging that the condemnation deprived it of its property in violation of the Due Process clause of the Fourteenth Amendment. The Supreme Court of Illinois affirmed the judgment.
No. In a 7-1 decision, the Court held that the Due Process clause required the states to award just compensation when taking private property for public use. While the Court warned of the danger of a government that did not have any restraints in exercising eminent domain, fair compensation could address that danger. Since the procedures specified in Illinois’ general statutes were followed in this case, the railroad’s Fourteenth Amendment rights were not violated. [This case marked the first time that the Court ‘incorporated’ a specific provision of the Bill of Rights – the “just compensation” requirement of the Fifth Amendment – through the Due Process clause of the Fourteenth Amendment and applied that requirement to the states. This approach set the stage for further incorporation of other Bill of Rights provisions.]

Question 29

Hurtado v. California (1884)

Answer 29

Hurtado lived in California with his wife who befriended Estuardo from Chile. Hurtado learned of their affair, and after their continued dispute, hurt ado confronted Estuardo at a bar and was arrested on battery charges. While the trial was pending, Hurtado shot and killed Estuardo. The state of California charged him with murder punishable by death.
Hurtado asked the SC to reverse his conviction on the ground that the state denied him a grand jury hearing. He argued the due process in the 14th Amendment is broad enough to include the right to a grand jury guaranteed by the 5th Amendment.
Justice Matthews delivered the opinion of the Court and held that:
-
- -
Provision of clause of the 14th Amendment says, “Nor shall any State deprive any person of life, liberty, or property without due process of law.” This clause was not meant to include the institution or procedure of grand jury.
The due process with the State means that laws deriving authority from state legislation must be exerted within the limits of rights and liberties from the Constitution.
The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers, as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government. Although it failed to adopt Hurtado’s claims, the Court did not completely rule out the possibility of incorporation. The majority reasoned that because due process is but one part of the Fifth Amendment, it could not at the same time be the equivalent of the entire Bill of Rights. Thus, the Court concluded that the due process clause could not be used to apply the entire Bill of Rights to the states. But the Court did hold that the due process clause protects individuals from the states encroaching on those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.”

Question 30

Twining v. New Jersey (1908)

Answer 30

Twining, a bank director, was charged with a misdemeanor (deceiving a bank examiner). Twining declined to testify at his trial. Under New Jersey law, the prosecutor commented upon Twining’s failure to testify. A jury convicted Twining; he appealed.
Does comment upon a defendant’s failure to testify violate the Fourteenth Amendment?
Neither the Privileges and Immunities Clause nor the Due Process Clause embraces the right against self-incrimination found in the Fifth Amendment. Moody rested the Court’s opinion on the historical record, which led him to the view that the right against self-incrimination was not fundamental.

Question 31

Gitlow v. New York (1925)

Answer 31

Benjamin Gitlow was a socialist who was arrested in 1919 for
distributing a “Left Wing Manifesto” calling to establish socialism through strikes and class action of
any form to overthrow the U.S. capitalist system. First Amendment Free Speech & Fourteenth Amendment Due
Process Clause.
6. Legal Question. Does the statute as written and applied by state courts, violate the First
Amendment protection on expression and the Fourteenth Amendment’s Due Process Clause
Free expression is so essential to ordered liberty that it needs to be applicable to the states as
well as the federal government—for due process to be protected, the state may not
impermissibly infringe on free expression.
b. When evaluating a free speech claim, the state does not need to wait until the speech
poses an imminent, or immediate threat. The state can restrict speech that
endangers it.
c. The NY statute does not ban the “abstract ‘doctrine’ of overthrowing government by
unlawful means,” but Gitlow’s Manifesto “advocates and urges in fervent language
mass action…” to overthrow government. The Court established selective incorporation. Only when a liberty is fundamental will states be
prevented (through the Fourteenth Amendment) from abridging it.
b. When determining whether a statute violates the First Amendment, the federal courts should
give great deference to the state legislature’s assessment of possible harm or evil, and that
harm need not be immediate for the state to permissibly restrict.

Question 32

Duncan v. Louisiana (1968)

Answer 32

19-year-old Duncan, a black man, was arrested on the charge of cruelty to juveniles after allegedly assaulting his cousins. Duncan’s parents, believing the arrest was racially motivated, contacted a civil rights organization that agreed to represent Duncan. The attorney filed a motion to a state trial judge to dismiss the charge. The attorney asserted that Louisiana law permitted “cruelty-to-juveniles” conviction only against someone who has supervision over the minors. The family requested he be rearrested on simple battery and the judge refused and cited the Louisiana constitution.
After being tried without a jury, Duncan appealed to the SC after the state rejected the appeal. This applies to the 6th Amendment regarding jury presence. The new approach of incorporation suggests that state criminal processes are consequential reflecting the common-law system. Given the history of our Constitution, the foundation requires that all criminal trials except impeachment require jury, and this it to be upheld in states.
Some cases use incorporation in a contrary way to the ruling, like Maxwell v. Dow and Palko v. Connecticut, but these don’t deal with serious criminal cases. Because juries make rulings by a judge less likely to be unfair, the judgment of the Louisiana court is reversed and remanded. The court holds that the right to trial by jury in federal courts is held by the 6th Amendment and Article III of the Constitution, as well as the 14th Amendment in state courts.
Given the dissent in Adamson v. California, contrary to Twining v. New Jersey, the 14th Amendment makes all provisions of the Bill of Rights applicable to states. In Palko, some of the Bill of Rights applies to states, and in Twining none of them apply.
They are willing to support the selective incorporation doctrine as an alternative to the 14th Amendment Bill of Rights application as it has already worked to make most of the Bill of Rights applicable to the states.

Question 33

Palko v. Connecticut (1937)

Answer 33

, New York, he confessed to the killings. As he was tried for 1st-degree murder, the Connecticut judge refused to admit that he confessed, and the jury found him guilty only of 2nd-degree murder for which he received a mandatory life sentence.
State persecutors appealed to the Connecticut SC of Errors which reversed the exclusion of the confession and ordered a new trial.
Palko’s attorney objected to a new trial and said that claiming a new trial violated the 5th Amendment prohibition of double jeopardy. Palko was tried and convicted again and sentenced to death for 1st-degree murder, then appealed to the SC. Justice Cardozo delivered the opinion of the Court and held that:
The appellant argues that whatever is outlawed by the 5th Amendment is also outlawed by the 14th Amendment. While some 5th Amendment rules are fundamental, and thus applied within the 14th Amendment, but this does not include double jeopardy. Perhaps if the question were if the state were permitted after a trial free from error to try the accused over again or to bring another case against the accused, the answer would be different.
The Court has set precedence for applications of 5th Amendment rights to the state including indictment via grand jury in Hurtado v. California, self-testimony failing if states elect to end it in Twining v. New Jersey, and 6th + 7th Amendment jury trials in criminal cases and civil cases >$20 can be modified or abolished by the state in Maxwell v. Dow.
To abolish the right to trial or double jeopardy is not to violate a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” The ruling of the state court is not arbitrary, nor does it oppress substantive rights or disregard the duties of legislative judgment. In 1937 the Court did not consider the protection against double jeopardy a “fundamental right,” and this ruling set the groundwork for Palka’s execution. But did the Court provide attorneys with any further guidance as to what this elusive term included? To some extent, it did by fleshing out fundamental rights as those “of the very essence of a scheme of ordered liberty” and “rooted in the traditions and conscience of our people.” But the process by which the Court planned to make known exactly which rights fall into that category remained unchanged from Twining and Gitlow. The majority of justices adopted the doctrine of selective incorporation, from which they would determine fundamental rights on a case-by-case basis. The Courts would overrule its decision in Palko in 1969 with Benton v. Maryland.

Question 34

U.S. v. Carolene Products (1937)

Answer 34

A 1923 act of Congress banned the interstate shipment of “filled milk” (skimmed milk mixed with fat or oil other than milk fat). Carolene Products, a milk manufacturer, was indicted under the Act. The trial court dismissed the indictment. On appeal to the federal government, the court was tasked with determining whether the Act was unconstitutional under the Fifth Amendment. Carolene Products argued that the law lacked rational basis and also that Congress did not regulate the use of oleomargarine, which substituted vegetable fats for butter fat, in interstate commerce. Does the law violate the Commerce Power granted to Congress in Article Section 8 and the Due Process Clause of the Fifth Amendment?
In an opinion authored by Justice Harlan Fiske Stone, the Court upheld the act. The majority reasoned Congress may restrict shipments of certain milk substitutes without also restricting butter. Considering that Congress had held many hearings prior to passing this law, it was reasonable to conclude that Congress believed it was necessary for public welfare. Carolene Products failed to meet its burden of proving that no rational basis for the law existed. Preferred freedoms – more narrow scope for presuming constitutionality of statutes
Protections of essential rights, particularly if minority viewpoints or espoused by unpopular groups

Question 35

Bad Tendency Test

Answer 35

Do the words have a tendency to bring about something evil? Ex. Abram v. US (1919)

Question 35

Clear & Present Danger Test

Answer 35

“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 substantive evils that Congress has a right to prevent. It is a question of proximity and degree.” Ex. Schenck v. US (1919)

Question 36

Clear & Probable Danger Test

Answer 36

“Whether the gravity of the ‘evil,’ discounted by its improbability, justifies such an invasion of free speech as is necessary to avoid danger.” Ex. Dennis v. US (1951)

Question 37

Preferred Freedoms Doctrine

Answer 37

“There may be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments.” Ex. US v. Carolene Products (1938) and Thomas v. Collins (1945)

Question 38

Schenck v. United States (1919)

Answer 38

Charles Schenck, the general secretary oSchenck’sialist Party of Philadelphia, printed fifteen thousand pamphlets urging resistance to the draft. He mailed these leaflets, described by the government’s case as “frank, bitter, passionate appeal[s] for resistance to the Selective Service Law,” to men listed in a local newspaper as having been called and accepted for military service. Federal authorities charged him with violating the Espionage Act; specifically, the United States alleged that Schenck conspired to obstruct military recruitment and illegally used the mail to do so.
Schenck was convicted in federal district court, and he appealed on First Amendment grounds.Justice Holmes delivered the opinion of the Court and held that:
-
- -
The document cites the 1st section of the 13th Amendment and says it was violated by the Conscription Act regarding the draft. It may be that the prohibition of laws abridging freedom of speech isn’t confined to previous restraints, but to prevent them may have been the main purpose.
The character of every act depends upon the circumstances in which it is done, the question in every case is whether the language that’s used creates a clear and present danger that will be about substantive evils.
The clear and present danger test is a question of proximity and degree. The statute of 1917 punishes conspiracies to obstruct as well as actual obstruction, therefore the court perceives no ground for saying that success alone warrants making an act a crime. This test requires consideration not only of the content of the expression but also of the context in which the words are uttered, the consequences of those words, and when those consequences may occur. Schenck was accused of attempting to obstruct military recruiting and enlistment. True, there was no showing that his leaflets actually convinced any of its recipients. What mattered was that he had intended to provoke draft resistance during time of war and that, under those circumstances, a jury could plausibly conclude that there was “the consequent dangerous probability” of success. Under Holmes’s test, there was no constitutional barrier to punishing Schenck’s speech.

Question 39

Abrams v. United States (1919)

Answer 39

In 1918, the United States participated in a military operation on Russian soil against Germany after the Russian Revolution overthrew the tsarist regime. Russian immigrants in the US circulated literature calling for a general strike in ammunition plants to undermine the US war effort. The defendants were convicted for two leaflets thrown from a New York City window. One denounced the sending of American troops to Russia, and the second denounced the war and advocated for the cessation of the production of weapons to be used against “Workers Soviets of Russia”. They were sentenced to 20 years in prison.
Do the amendments to the Espionage Act or the application of those amendments in this case violate the free speech clause of the First Amendment?
The Court held that in calling for a general strike and the curtailment of munitions production, the leaflets violated the Espionage Act. Congress’ determination that all such propaganda posed a danger to the war effort was sufficient to meet the standard set in Schenck v. United States for prosecuting attempted crimes. As in Schenck, the Court emphasized that protections on speech are lower during wartime.
In a dissenting opinion, Justice Oliver Wendell Holmes argued that the First Amendment protects the right to dissent from the government’s viewpoints and objectives. Protections on speech, he continued, should not be curtailed unless there is a present danger of immediate evil, or the defendant intends to create such a danger. The evidence in this case consisted of two leaflets, which he concluded did not meet the “clear and present danger” test.

Question 40

Stromberg v. California (1931)

Answer 40

Yetta Stromberg was charged with violating a California law prohibiting displaying a red flag in a public meeting place after displaying a red flag daily at a children’s camp in the San Bernardino Mountains. The youth camp for working-class children was maintained by a number of different groups and organizations, some of which were either openly Communist or had expressed sympathy for the Communist Party’s goals. The law prohibited displaying such a flag for any of three reasons: (1) “as a sign, symbol, or emblem of opposition to organized government”; (2) “as an invitation or stimulus to anarchistic action”; or (3) “as an aid to propaganda that is of a seditious character”. Stromberg argued that the law violated the First Amendment as applied to the states by the Fourteenth Amendment. The judge overruled the objection and a jury convicted Stromberg. The District Court of Appeal affirmed the conviction.
Did a state law prohibitng people from flying red flags as a political statement violate the First Amendment? Writing for a 7-2 majority, Chief Justice Charles E. Hughes reversed the conviction because the first reason for prohibiting display of a red flag—“as a sign, symbol, or emblem of opposition to organized government”—was unconstitutional. The Court reasoned that where the jury convicted a defendant generally under any or all of the three reasons, and one of those reasons is struck down, the conviction cannot stand. The Court upheld the second two reasons—“as an invitation or stimulus to anarchistic action” or “as an aid to propaganda that is of a seditious character”—because they protected against incitement to violence.
Justice James C. McReynolds dissented, writing that Stromberg’s conviction should stand because the jury convicted her under valid parts of the California law as well. Justice Pierce Butler wrote a separate dissent, writing that the records shows that Stromberg was not convicted under the unconstitutional reason at all, so the conviction should stand.

Question 41

Brandenburg v. Ohio (1969)

Answer 41

Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform,” as well as assembling “with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.”
Did Ohio’s criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg’s right to free speech as protected by the First and Fourteenth Amendments? The Court’s Per Curiam opinion held that the Ohio law violated Brandenburg’s right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action.” The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution. Incitement of violence or lawless action likely to produce such violence. To punish speech that advocates the “use of force or of a law violation,” the advocacy must be “directed to inciting or producing imminent lawless action” and it is “likely to incite or produce such action.”

Question 42

Dennis v. United States (1951)

Answer 42

In 1948, eleven Communist Party leaders were convicted of advocating the violent overthrow of the US government and for the violation of several points of the Smith Act. The Act made it unlawful to knowingly conspire to teach and advocate the overthrow or destruction of the United States government. The party members who had been petitioning for socialist reforms claimed that the Act violated their First Amendment rights. Party leaders were found guilty and lower courts upheld the conviction.
Did the Smith Act violate the First Amendment? In a 6-to-2 decision, the Court upheld the convictions of the Communist Party leaders and found that the Smith Act did not “inherently” violate the First Amendment. In the plurality opinion, the Court held that there was a distinction between the mere teaching of communist philosophies and active advocacy of those ideas. Such advocacy created a “clear and present danger” that threatened the government. Given the gravity of the consequences, the Court held that success or probability of success was not necessary to justify restrictions on the freedom of speech.

Justices Frankfurter and Jackson concurred in separate opinions.

Justices Black and Douglas dissented in separate opinions. Justice Black stressed that the petitioners were not charged with an attempt to overthrow the Government or any overt acts designed to overthrow the Government. They were not even charged with saying anything or writing anything designed to overthrow the Government. The charge was that they agreed to assemble and to talk and publish certain ideas at a later date. “No matter how it is worded, this is a virulent form of prior censorship of speech and press, which I believe the First Amendment forbids.”

Question 43

United States v. O’Brien (1968)

Answer 43

David O’Brien burned his draft card at a Boston courthouse. He said he was expressing his opposition to war. He was convicted under a federal law that made the destruction or mutilation of drafts card a crime.
Was the law an unconstitutional infringement of O’Brien’s freedom of speech? No. The 7-to-1 majority, speaking through Chief Justice Earl Warren, established a test to determine whether governmental regulation involving symbolic speech was justified. The formula examines whether the regulation is unrelated to content and narrowly tailored to achieve the government’s interest. “[W]e think it clear,” wrote Warren,” that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidential restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest.” Is conduct always expression?
Combination of speech and non-speech elements?
Expression deemed less than speech?

Question 44

Tinker v. Des Moines (1969)

Answer 44

Issue of Vietnam War and high school students wearing black armbands to school to protest. The school board passed a motion that students could not wear armbands before the students showed up to school as a preemptive strike on the effort of the students to protest. The school threatened suspension for any student who came to school wearing the bands. The court ruled in favor of the students and reversed the decision of the lower state court. The precedent of Constitutional protections at the schoolhouse gate and the purpose of school regulation of free expression was described in the majority ruling. There were also two dissenters of the majority opinion arguing in favor of the school system that the students disobeyed the ruling and disrupted the school day/curriculum. Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the students’ freedom of speech protections guaranteed by the First Amendment? In his concurring opinion, Justice Potter Stewart wrote that children are not necessarily guaranteed the full extent of First Amendment rights. Justice Byron R. White wrote a separate concurring opinion in which he noted that the majority’s opinion relies on a distinction between communication through words and communication through action.

Question 45

Texas v. Johnson (1989)

Answer 45

The Republican Party held a national convention in Dallas, Texas supporting Reagan’s reelection bid. While the meeting occurred, protestors marched through the city and one of them removed an American flag and gave it to Johnson, who set it on fire. As it burned, the protesters chanted, “America, the red, white, and blue, we spit on you.”
Johnson was arrested for violating the Texas flag desecration law. He was convicted and sentenced to 1 year in prison and a $2,000 fine.
A state court of appeals affirmed, but the Texas Court of Criminal Appeals reversed the holding. Is flag burning protected as symbolic speech by the 1st Amendment? Justice Brennan delivered the opinion of the Court and held that:
Johnson burned the flag as part of a political demonstration, therefore, the burning was conduct that “sufficiently imbued with elements of communication” to implicate the First Amendment.” The state’s interest in maintaining order isn’t implicated in the facts, the SC ruling does not keep it from preserving peace.
Nothing in SC precedent suggests that a state can foster its view of the flag by prohibiting expressive conduct, the state’s argument cannot depend on distinguishing between spoken words and nonverbal conduct as it is all expressive.
The Texas statute deprived Johnson of only one rather inarticulate symbolic form of protest—a form of protest that was profoundly offensive to many—and left him with a full panoply of other symbols and every conceivable form of verbal expression to express his deep disapproval of national policy. Thus, in no way can it be said that Texas is punishing him because his hearers—or any other group of people—were profoundly opposed to the message that he sought to convey.
The state’s interest in preserving the flag as a symbol of nationhood and unity does not justify Johnson’s criminal conviction for political expression.

Question 46

Walker v. Texas Division, Sons of Confederate Veterans (2015)

Answer 46

License plates in Texas have to display numbers and letters with the state name, but businesses and organizations can issue a particular plate by submitting a request to the state. The Texas division of the SCV proposed a specialty plate design incorporating the Confederate battle flag. After submitting it twice, it was rejected, and SCV sued John Walker III and other members of the department board.
The district court ruled in favor of the state, but a divided court of appeals after the ruling reversed the decision, holding that the state had engaged in viewpoint discrimination. Justice Breyer delivered the opinion of the Court and held that:
When the federal government speaks, it does not trigger 1st Amendment rules meant to protect the marketplace of ideas, as they are entitled to promote a program or speak against a policy.
The 1st Amendment limits a state’s authority to compel a private party to express a view they disagree with, but as Texas cannot require the SCV to convey “the state’s ideological message,” the SCV cannot force Texas to include a Confederate flag on specialty plates. Two years later, the Court revisited the issue of government speech versus private expression, this time in the context of the federal government’s regulation of trademarks. As you read Justice Alito’s opinion, consider how it distinguishes between government speech and private speech, and think about the reasons that led the Court to reach a different conclusion here than in the Texas license plate case.

Question 47

Morse v. Frederick (2007)

Answer 47

At a school-supervised event, Joseph Frederick held up a banner with the message “Bong Hits 4 Jesus,” a slang reference to marijuana smoking. Principal Deborah Morse took away the banner and suspended Frederick for ten days. She justified her actions by citing the school’s policy against the display of material that promotes the use of illegal drugs. Frederick sued under 42 U.S.C. 1983, the federal civil rights statute, alleging a violation of his First Amendment right to freedom of speech. The District Court found no constitutional violation and ruled in favor of Morse. The court held that even if there were a violation, the principal had qualified immunity from lawsuit. The U.S. Court of Appeals for the Ninth Circuit reversed. The Ninth Circuit cited Tinker v. Des Moines Independent Community School District , which extended First Amendment protection to student speech except where the speech would cause a disturbance. Because Frederick was punished for his message rather than for any disturbance, the Circuit Court ruled, the punishment was unconstitutional. Furthermore, the principal had no qualified immunity, because any reasonable principal would have known that Morse’s actions were unlawful. Yes and not reached. The Court reversed the Ninth Circuit by a 5-4 vote, ruling that school officials can prohibit students from displaying messages that promote illegal drug use. Chief Justice John Roberts’s majority opinion held that although students do have some right to political speech even while in school, this right does not extend to pro-drug messages that may undermine the school’s important mission to discourage drug use. The majority held that Frederick’s message, though “cryptic,” was reasonably interpreted as promoting marijuana use - equivalent to “[Take] bong hits” or “bong hits [are a good thing].” In ruling for Morse, the Court affirmed that the speech rights of public school students are not as extensive as those adults normally enjoy, and that the highly protective standard set by Tinker would not always be applied. In concurring opinions, Justice Thomas expressed his view that the right to free speech does not apply to students and his wish to see Tinker overturned altogether, while Justice Alito stressed that the decision applied only to pro-drug messages and not to broader political speech. The dissent conceded that the principal should have had immunity from the lawsuit, but argued that the majority opinion was “[…] deaf to the constitutional imperative to permit unfettered debate, even among high-school students […].”

Question 48

New York Times v. Sullivan (1964)

Answer 48

During the Civil Rights movement of the 1960s, the New York Times published an ad for contributing donations to defend Martin Luther King, Jr., on perjury charges. The ad contained several minor factual inaccuracies. The city Public Safety Commissioner, L.B. Sullivan, felt that the criticism of his subordinates reflected on him, even though he was not mentioned in the ad. Sullivan sent a written request to the Times to publicly retract the information, as required for a public figure to seek punitive damages in a libel action under Alabama law.
When the Times refused and claimed that they were puzzled by the request, Sullivan filed a libel action against the Times and a group of African American ministers mentioned in the ad. A jury in state court awarded him $500,000 in damages. The state supreme court affirmed and the Times appealed.
Did Alabama’s libel law unconstitutionally infringe on the First Amendment’s freedom of speech and freedom of press protections? To sustain a claim of defamation or libel, the First Amendment requires that the plaintiff show that the defendant knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate.
In a unanimous opinion authored by Justice Brennan, the Court ruled for the Times. When a statement concerns a public figure, the Court held, it is not enough to show that it is false for the press to be liable for libel. Instead, the target of the statement must show that it was made with knowledge of or reckless disregard for its falsity. Brennan used the term “actual malice” to summarize this standard, although he did not intend the usual meaning of a malicious purpose. In libel law, “malice” had meant knowledge or gross recklessness rather than intent, since courts found it difficult to imagine that someone would knowingly disseminate false information without a bad intent. Until 1964, states were largely left to develop their own standards.
Words are libelous per se, and a unanimous court overturned finding in favor of Sullivan.
Constitutional guarantees require a federal rule, limiting state’s power to award damage for libel actions brought by public official against critics of their official conduct.

Question 49

Hustler Magazine v. Falwell (1988)

Answer 49

Hustler printed a parody of an ad for Campari Liqueur which mimicked sexual innuendos and copied the design layout of real Campari ads. It was titled “Jerry Falwell talks about his first time,” and as a protestant minister and conservative, depicted him engaging in sexual relations while drunk with his mother. Falwell sued the magazine and publisher for libel, invasion of privacy, and intentional infliction of distress.
The trial judge dismissed the privacy claim and sent the case to the jury. The jury decided in favor of the magazine on libel but awarded Falwell $150,000 for emotional distress.
Hustler Magazine appealed to the SC claiming that the 1st Amendment protects the publication of hyperbole and opinion, as well as the parody of public figures. Chief Justice Rehnquist delivered the opinion of the Court and held that:
At the core of the 1st Amendment is the fundamental significance of the free flow of ideas and opinions regarding public interest and concern, and even though the 1st Amendment does not have a clause regarding “false ideas,” and not all speech about a public figure is immune from these damages, freedoms of expression require ‘breathing space.’
The law does not consider the intent to inflict emotional distress as warranting solicitude, given the history of political cartoons and the controversial viewpoints they would incite, the 1st Amendment principles are subject to limitations.
We recognized that speech that is “‘vulgar,’ ‘offensive,’ and ‘shocking’” is “not entitled to absolute constitutional protection under all circumstances.” In Chaplinsky v. New Hampshire (1942), we held that a state could lawfully punish an individual for the use of insulting “‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”
Public figures may not recover for the intentional infliction of emotional distress via publications like Hustler, so Falwell cannot claim damages by a 1st Amendment protection against inflictions of emotional distress. To do so, one must prove there was an intent of “actual malice.” We recognized that speech that is “‘vulgar,’ ‘offensive,’ and ‘shocking’” is “not entitled to absolute constitutional protection under all circumstances.” In Chaplinsky v. New Hampshire (1942), we held that a state could lawfully punish an individual for the use of insulting “‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

Question 50

Roth v. United States (1957)

Answer 50

Roth operated a book-selling business in New York and was convicted of mailing obscene circulars and an obscene book in violation of a federal obscenity statute. Roth’s case was combined with Alberts v. California, in which a California obscenity law was challenged by Alberts after his similar conviction for selling lewd and obscene books in addition to composing and publishing obscene advertisements for his products.
Did either the federal or California’s obscenity restrictions, prohibiting the sale or transfer of obscene materials through the mail, impinge upon the freedom of expression as guaranteed by the First Amendment? In a 6-to-3 decision written by Justice William J. Brennan, Jr., the Court held that obscenity was not “within the area of constitutionally protected speech or press.” The Court noted that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were “utterly without redeeming social importance.” The Court held that the test to determine obscenity was “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” The Court held that such a definition of obscenity gave sufficient fair warning and satisfied the demands of Due Process. Brennan later reversed his position on this issue in Miller v. California (1973). Standards for obscenity via thoughts versus conduct. Obscene and sexual material as stating what the average person believes obscenity is. Applying contemporary community standards to conclude the dominant theme of material taken as a whole appealing to prurient interests.

Question 51

Jacobellis v. Ohio (1964)

Answer 51

Movie theater and whether a theater owner could show a movie that was obscene by individuals in the community in the city in Ohio; including an explicit love scene
The court chooses to apply national community standards, which is difficult to evaluate and later changed. Standard for national communities are that if the work is “utterly without redeeming social value,” than it isn’t protected by 1st Amendment rights.
Defining obscenity by Justice Potter Stewart Concurrence:
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [hard-core pornography], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Question 52

Memoirs v. Massachusetts (1966)

Answer 52

A special provision of Massachusetts law allowed the Attorney General to initiate legal proceedings against an “obscene” book, Memoirs of a Woman of Pleasure. The book, also known as Fanny Hill, was written by John Cleland in about 1750. Massachusetts courts, despite the defenses put forward by the book’s publisher and copyright holder, judged the work to be obscene.
Did the actions of Massachusetts violate the First Amendment?
The Court held that the Massachusetts courts erred in finding Memoirs of a Woman of Pleasure to be obscene. The Court, applying the test for obscenity established in Roth v. United States, held that the book was not “utterly without redeeming social value.” The Court reaffirmed that books could not be deemed obscene unless they were unqualifiedly worthless, even if the books possessed prurient appeal and were “patently offensive.” Justice Brennan argued but did not have the majority that material wasn’t obscene if it had a modicum of social value (understanding of literature). Potentially more protective of free speech than Jacobellis in ‘64.

Question 53

Miller v. California (1973)

Answer 53

Miller, a vendor of pornography, conducted a mass-mail campaign to sell his books. Because he sent them to individuals who did not know of his work or were not all interested in the material, he was arrested when the manager of a restaurant and his mother opened an envelope and complained to the police.
This case was a part of a series of cases regarding obscenity and appeals to both state and federal courts.
Was this case going to set a precedent that would replace the Roth test?
Is the sale and distribution of obscene materials by mail protected under the 1st Amendment freedom of speech? Chief Justice Burger delivered the opinion of the Court and held that:
-
-
-
States have a legitimate interest in prohibiting the spread of obscene material when it may offend individuals or be subject to exposure to juveniles. Under these circumstances, the SC must define the standards used to define obscene material and how states can regulate this without violating 1st Amendment rights application to states via the 14th Amendment.
Obscene material is protected by the 1st Amendment, but since Roth, the court has to agree on concrete guidelines to isolate “hard core” pornography from expression protected by the 1st Amendment. 1st Amendment limitations on powers of the states do not vary, and while there are different consensus with each state perhaps concerning obscenity, an “average” person standard has to be met.
The court affirms the Roth holding that obscene material is not protected by the 1st Amendment, that that material can be regulated by the states, and that obscenity is determined by applying “contemporary community standards” rather than “national standards.”
Marshall dissented and held that:
The difficulty is that we do not deal with constitutional terms, since “obscenity” is not mentioned in the Constitution or Bill of Rights. And the First Amendment makes no such exception from “the press” which it undertakes to protect nor, as I have said on other occasions, is an exception necessarily implied for there was no recognized exception to the free press at the time the Bill of Rights was adopted which treated “obscene” publications differently from other types of papers, magazines, and books. So there are no constitutional guidelines for deciding what is and what is not “obscene.”
I need not now decide whether a statute might be drawn to impose, within the requirements of the First Amendment, criminal penalties for the precise conduct at issue here. For it is clear that . . . the statute under which the prosecution was brought is unconstitutionally overbroad, and therefore invalid on its face. Does the work depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable state law?
Does the work lack serious literary, artistic, political, or scientific value?
Court explicitly rejected the Memoir test of whether the work is utterly without redeeming social value?

Question 54

Brown v. Entertainment Merchants Assn (2011)

Answer 54

Associations of companies that create, publish, distribute, sell and/or rent video games brought a declaratory judgment action against the state of California in a California federal district court. The plaintiffs brought the claim under the First and Fourteenth Amendments seeking to invalidate a newly-enacted law that imposed restrictions and labeling requirements on the sale or rental of “violent video games” to minors. The district court found in favor of the plaintiffs and prevented the enforcement of the law.
On appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed, holding that: (1) violent video games did not constitute “obscenity” under the First Amendment, (2) the state did not not have a compelling interest in preventing psychological or neurological harm to minors allegedly caused by video games, and (3) even if the state had a compelling interest, the law was not narrowly tailored enough to meet that objective. Yes. The Supreme Court affirmed the lower court order in an opinion by Justice Antonin Scalia. “Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.” Justice Samuel Alito concurred in judgment, joined by Chief Justice John Roberts. Alito noted that he disagreed “with the approach taken in the Court’s opinion. In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology.” Justices Clarence Thomas and Stephen Breyer filed separate dissents. Adhering to his strict understanding of the Framers’ intent with the Constitution, Thomas wrote: “The Court’s decision today does not comport with the original public understanding of the First Amendment.” Breyer argued that the California statute met current constitutional standards. Video games have the same 1st Amendment protections as books and movies, as they express beliefs/ideas in similar ways.
CA statute required labels and prohibited sale/rental of violent video games to children; they try to place a content restriction on material directed at children.
An Act imposes a content restriction but is invalid unless California can demonstrate that it passes strict scrutiny; it must be justified by a compelling government interest and must be narrowly drawn to serve that interest.

Question 55

Internet Obscenity Precedent

Answer 55

Supreme Court compelling interest requires the implementation of a statute under strict scrutiny and evaluating the average person for obscenity, differentiating for adults and children for laws set for community standards regarding media access for minors.