Constitutional Law II Flashcards
The First Amendment
William Brennan, Jr. (1906-1997):
Democrat who was appointed by a Republican President. Firmly established as the leader of the “liberal wing”. He authored important opinions in the areas of freedom of expression, criminal procedure, and reapportionment.
Warren E. Burger (1907-1995):
Impoverished background and went to law school at night. Strong advocate of “strict construction” and a “plain meaning” approach to statutory and constitutional interpretation. A part of the conservative wing. Some say he began a period of substantial entrenchment (infringe).
Thurgood Marshall (1908-1993):
coordinated the NAACP’s attack on segregation before he took the bench. Known for his unstinting defense of racial and other minorities, his liberal interpretation of free speech and press guarantees, his “multi-tiered” theory of equal protection analysis, and his fervent opposition to capital punishment.
Sandra Day O’Connor (1930- )
frequently aligned herself with the conservative wing of the court. She has shown a preference for a balancing approach to constitutional law and case-by-case particularism. She is known for her deference to the political branches of government, defense of federalism, and her original approach to the problem of church-state relations.
The History of Free Expression
English Background: The parliament utilized three forms of restraint:
- Licensing of the press: the crown controlled printing presses
- Constructive Treason: mere written or printed material, as well as overt acts, could constitute treason
- Seditious Libel: punished any written censure upon any public man whatever for any conduct whatever, or upon any law or institution whatever.
Colonial Background:
formal legal restraints on expression were relatively rare. However, the elected colonial assemblies vigorously exercised the power to punish “seditious” expression.
Sedition Act of 1798:
The act prohibited the false, scandalous and malicious writings against the government with intent to defame them or to bring them into contempt or disrepute; or to excite against them the hatred of the good people of the US. Truth was a defense and malicious intent was a crime.
The Philosophy of Free Expression:
Search for truth: the marketplace of ideas: the best test of truth is the power of the thought to get itself accepted in the competition of the market.
- this is an implausible concept because it gives no constitutional protection to experience-producing conduct, this theory assumes people use their rational capacities to eliminate distortion which is not true, and it is improperly biased in favor of presently dominant groups.
- Ones overall judgment must depend on a judgment about peoples responses to claimed truth, about the effects of inequality of private power over what is communicated, and about the soundness of government determinations about valid ideas.
Self-Governance:=
no suggestion of policy shall be denied hearing because it is on one side of the issue rather than another.
Self-Fulfillment:
-the significance of free expression rests on the central human capacity to create and express symbolic systems.
-speech is not more important than any personal gratification. It cannot be protected when other freedoms are not.
The Checking Value:
free speech can serve in checking the abuse of power by public officials.
