Emily's notes: The First Amendment

Question 1

What is Congress comprised of?

Answer 1

• The House of Representatives (based on population)

- The Senate (2 senators from each state, 6 year terms)

Question 2

What is the 14th Amendment (1868)?

Answer 2

-Sec. 1:
o”All persons born or naturalized in the United States and the subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside.”
-Sec. 2:
o“No state shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law nor deny to any person within its jurisdiction the equal protection of the laws.”

Question 3

Was Gitlow v. New York (1925) a criminal or civil case?

Answer 3

Criminal case because it has the name of a jurisdiction in the case. States can file civil actions against individuals, but normally they don’t

Question 4

What is the background behind Gitlow v. New York?

Answer 4

The Petitioner was charged with criminal anarchy because he was an advocate of socialist reform in the United States. The Petitioner is a member of the Left Wing Section of the Socialist Party. He served as the business manager for the paper that was run by the organization. In 1919 he published the group’s manifesto and prepared for widespread distribution from the New York City headquarters

Question 5

What is the issue behind Gitlow v. New York?

Answer 5

Did the statute prohibiting such activity deprive the Petitioner of his First Amendment constitutional right to freedom of expression?

Question 6

What was the outcome of Gitlow v. New York?

Answer 6

The law under which he was convicted was unconstitutional because it violated free speech and freedom of the press rights

Question 7

What was important about Gitlow v. New York?

Answer 7

This is the case where the Supreme Court applied the First Amendment to the United States through the 14th Amendment.

“For present purposes we may and do assume that freedom of speech and of the press – which are protected by the First Amendment from abridgement by Congress – are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the states.” – Justice Edward Sanford

Question 8

What are other cases that are similar to Gitlow v. New York?

Answer 8

St. Louis Rams v. Oakland Raiders
o Sunday, Nov. 30, 2014
o “Hands Up”

1968 Summer Olympics, Mexico City
o Tommie Smith (gold) and John Carlos (bronze) both wore black gloves
o They also, with Peter Norman of Australia (silver) wore human rights badges and other symbols
o All three men suffered as a result

Question 9

What is the freedom of speech?

Answer 9

“That which is spoken; utterance, remark, etc.”

• Sometimes known as freedom of expression
• Framers intended speech to be speech and nothing else, and press to mean press and nothing else
• Implications have evolved over years

Question 10

What is the background behind Tinker v. Des Moines School District (1969)?

Answer 10

Petitioner was a high school student who joined his parents in protesting the Vietnam War. The form of protest was to wear a black armband for a period of two weeks during the holiday season. When Petitioner arrived at school he was told to remove the armband or be suspended. He took the suspension and did not return to school until after the protest period ended, New Year’s Eve 1965.

Question 11

What is the issue with TInker v. Des Moines?

Answer 11

Is symbolic speech by public school students protected under the First Amendment?

Question 12

What was the outcome of Tinker v. Des Moines?

Answer 12

Students don’t leave their First Amendment rights at the schoolhouse gate, but speech may not materially and substantially interfere with discipline.

Question 13

Who dissented in Tinker vs. Des Moines?

Answer 13

Justice Black dissented that this was speech, not conduct and conduct is not protected by the First Amendment

Question 14

What are other forms of silent speech?

Answer 14

o	Picketing, sit-ins
o	Carrying a red flag
o	“Silent, reproachful presence” 
o	Burning a draft card, the American flag, a cross
o	Sleeping

Question 15

What was the background behind U.S. v. O’Brien (1968)?

Answer 15

The Defendant was convicted under Section:462(b)(3) of the Universal Military Training and Service Act (UMTSA) of 1948, amended in 1965 to include the applicable provision that made it an offense to “alter, knowingly destroy, knowingly mutilate” a Selective Service registration certification. Defendant knowingly burned his draft card on the front steps of the local courthouse. The Court of Appeals held the 1965 amendment unconstitutional as a law abridging the freedom of speech.

Question 16

What is pure conduct?

Answer 16

Pure conduct: actions with no communicative elements. For example: Flag out for the Fourth of July - you realize it’s damaged so he burns the flag to dispose of the damaged flag

Question 17

What is conduct that is pure speech?

Answer 17

Actions without any practical purpose
For example: A certain candidate for election is using an American flag for all of his symbols - you pull down the flag, set it on fire and put it on the porch of your neighbor in that political party

Question 18

What is mixed conduct?

Answer 18

Conduct that combines practical and communicative elements

Question 19

What was the issue of U.S. v O’Brien?

Answer 19

Whether the 1965 Amendment is unconstitutional as applied to Defendant because his act of burning the draft card was protected “symbolic speech” within the First Amendment?
Whether the draft cards are merely pieces of paper designed only to notify registrants of their registration or classification, to be retained or tossed into the waste basket according to the convenience of the registrant?
Whether the 1965 Amendment is unconstitutional as enacted because it was intended to “suppress freedom of speech?”

Question 20

What was the outcome of U.S. v. O’Brien?

Answer 20

No. Judgment of the Court of Appeals reversed. It cannot be accepted that there is an endless and limitless variety of conduct that constitutes “speech” whenever the person engaging in the conduct intends to express an idea. However, even if the alleged communicative element of Defendant’s conduct is sufficient to bring into play the First Amendment of the United States Constitution (Constitution), it does not necessarily follow that the destruction of a draft card is constitutionally protected activity. First, a government regulation is sufficiently justified if it is within the constitutional power of the government. Second, if it furthers a substantial or important governmental interest. Third, if the governmental interest is unrelated to the suppression of free expression. Fourth, if the incidental restriction on alleged First Amendment constitutional freedoms is no greater than is essential to the furtherance of that interest. The 1965 Amendment meets all these requirement
s. Therefore, the 1965 Amendment is constitutional as applied to Defendant.
No. Judgment of the Court of Appeals reversed. Although the initial purpose of the draft card is to notify, it serves many other purposes as well. These purposes would be defeated if the card were to be mutilated or destroyed.
No. Judgment of the Court of Appeals reversed. The purpose of Congress is not a basis for declaring this legislation unconstitutional. Therefore, the 1965 Amendment is constitutional as enacted.