con law final Flashcards
The Espionage Act of 1917
-Passed during the first Red Scare/WWI to protect security interests during the was.
-Made it a crime to print or write abusive language about the US government.
-Schenck v. US (1919) ruled that the Act does not violate the first amendment because of protections from “clear and present danger,” resulting in the “clear and present danger” free speech test.
-First instance of First amendment jurisprudence.
- Also relevant in Abrams v. US and NYT v. US
Dennis v. United States (1951)
- Supreme Court case involving the first amendment and Smith Act during the Cold War
- Leaders of the American communist party were indicted under Smith Act of 1940 for “willingly advocating for the necessity of overthrow of the government.”
-The Smith Act of 1940 made it a crime to advocate or to belong to any organization promoting forceful overthrow of the United States government
- Expanded upon the ruling of Schenck v. US (1919) to create the “gravity of Evil test”
-“gravity of evil” test weighs how grave an “evil” is with how likely it is to occur in comparison to the 1st amendment protections.
Bradenburg v. Ohio (1969)
- Supreme Court case involving KKK speech rights after a violation of Ohio Criminal Syndicalism statute for advocating for the necessity of terrorism and assembling to teach doctrines of criminal syndicates
- Court ruled that the statute was a violation of both the 1st and 14th amendments and therefore reversed Clarence Bradenburg’s conviction
-Decided that abstract ideas are different than direct advocacy using gravity of evil test (?)
-First amendment fundamentalism used to protect right wing hate, much like Virginia v. Black
Symbolic Speech
- Free speech issue that deals with non-spoken or expressive speech
- Topic of draft protests, such as “Fuck the draft” shirt in Cohen v. California
-Also associated to originalist reading of the first amendment to protect flag burning in Texas v. Johnson
- Associated with symbolic speech, the court decided the first amendment does not apply as strictly to obscenity, fighting words, libel or commercial speech.
Compelled Speech
- Compelled speech is anything that the government forces you to say
-Most significantly comes up in this class in freedom of speech cases asking to what extent the government can compel speech from a business or individual.
- West Virginia Board of Education v. Barnette (1943) - can not force students to salute the United States flag in public schools because of the first amendment.
- Wooley v. Maynard - NH cannot force drivers to have state motto on license plates
- 303 Creative - cannot for website designer to make websites for gay couples since that goes against her religious beliefs
303 Creative v. Elenis (2023)
-Supreme Court case that decided the state of Colorado is not allowed to force a wedding website creator to make sites for couples that go against her beliefs.
-Speech vs. conduct understanding of the majority and dissenters
- Standing based on “Threat of injury” not following Lujan’s standing requirements
- free speech clause is designed to protect the “freedom to think as you will and speak as you think,” therefore against compelled speech.
-directly contradicts public accommodation law in cases such as Heart of Atlanta motel, because public businesses are not allowed to deny services based on philosophical or religious objections
First Amendment Fundamentalism
-Taking a literal interpretation of the first amendment + applying to all circumstances without regard for context and nuance
-According to Franks reading, used to protect the right of majority (straight white men) over minority groups
-Bradenburg v. Ohio - 1st amendment used to protect Right Wing hate
-303 Creative - used to allow discrimination based on sexual orientation
Buckley v. Valeo (1976)
- Upheld the Federal Elections Campaign Act as Constitutional
-Restriction of individual contributions was constitutional
-But Limiting campaign expenditures placed restraints on the quantity and diversity of political speech
-Federal Elections Campaign Act in this case was amended by the Bipartisan Campaign Act of 2002
-Buckley v. Valeo later overturned by Citizens United v. FEC
Bipartisan Campaign Reform Act
-Congress regulations on political parties and aimed to encourage the expansion of individual participation and freedoms
-Regulations such as “soft money” ban, corporation spending, donations from minors, post elections campaign loan payoff, ec.
-Amended the Federal Election Campaign Act from Buckley v. Valeo
-Many of these provisions were upheld by McConnel v. FEC (2003) and later nullified by cases such as Citizens United v. FEC (2010).
-Citizens United v. FEC (2010) - prohibition of all independent expenditures by corporations and unions in the Bipartisan Campaign Reform Act violated the First Amendment
US v. Miller (1934)
- Last major gun’s right case of the 20th century and was the benchmark for a while
-Supreme Court was asked to determine if the manufacturer/sale requirements of the National Firearms Act of 1934 and Gun Control Act of 1938 violated the second amendment
-Decided that the second amendment does not protect the right to own or possess a sawed off shotgun
-Denied individual right to own a firearm (like shotgun) where there is no relation to the prefatory clause
-overturned by D.C. v. Heller
Prefatory Clause
-Most significantly referenced in this class at the prefatory clause to the second amendment - alongside operative clause
-defines the purpose of the individual right to bear arms comes down to its preservation of a well regulated militia.
-United States v. Miller (1934) - the prefatory clause does not protect the right to own/possess a sawed off shotgun.
-District of Columbia v. Heller - prefatory clause does not limit the operative clause in gun right jurisprudence
DC v. Heller (2008)
-landmark second amendment case deciding that individual gun rights are protected by the constitution.
- Washington D.C.’s strict handgun licensing and nonfunctional storing requirements violated the second amendment right to bear arms
-prefatory clause does not affect the operative clause
-“right of the people… unambiguously refers to the individual, not ‘collective’ rights.”
-overturned US v Miller
Incorporation
-Process of using the 14th amendment to apply the Bill of Rights to the states
-Due to either the due process clause or the privileges and immunities clause
-No incorporation - Frankfurter in Slaughterhouse Cases
-Harlan’s dissent in Hurtado v. California arguing for total incorporation.
- Usually selective incorporation because of historical tradition, precedent and “ordered liberty.”
- McDonald v. Chicago (2011) - right to keep and bear arms in the second amendment was incorporated to the states by the 14th amendment’s due process clause
New York Rifle and Pistol Association v. Bruen (2022)
-Second amendment supreme court case
-NY Law requiring justification of a “special need for defense” in order to receive a concealed carry permit
-Restriction violated the second amendment’s text and historical understanding
-Rejected mean-end balancing and allowed for a conservative win around weapons
Stop and Frisk
- Search and seizure term originating in Terry v. Ohio
- Officers can stop and frisk someone as long as they have probable cause
-Searches that are narrow and protect safety are constitutional and not in violation of the fourth amendment
-Assumes there is a crime, but not what the crime is
- negative impacts for minority communities in Fagan study
