Exam 2 Flashcards
Bad tendancy test
Test that permits restriction of freedom of speech by govt if it is believed to incite or cause illegal activity.
Clear and present danger test
Words used in such circumstances that create a clear and present danger that will bring substantive evile that congress has the right to prevent.
Dennis Vs. United States (1951)
Smith act made it unlawful to knowingly conspire to teach and advocate the overthrow of the United States government.
- Did Smith act restrictions on speech violate the first amendment?
- 5-3 No. Convictions of communist party leaders and found that the Smith act did not inherently violate the first amendment.
Brandenburg vs. Ohio (1969)
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.
- 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?
- 8-0 Yes. 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.
Incitement Test
Under the imminent lawless action test, speech is not protected by the First Amendment if the speaker intends to incite a violation of the law that is both imminent and likely.
Symbolic speech
actions that purposefully and discernibly convey a particular message or statement to those viewing it.
Tinker vs. Des Moines (1969)
They decided to wear black armbands to support a truce in the Vietnam War. The principals of the Des Moines school learned of the plan and met on December 14 to create a policy that stated that any student wearing an armband would be asked to remove it, with refusal to do so resulting in suspension.
- 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?
- 7-2 Yes. The Supreme Court held that the armbands represented pure speech that is entirely separate from the actions or conduct of those participating in it.
United States vs. O’Brien(1968)
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?
- 7-1 No. 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
Intermediate Scrutiny Test
Must serve important government interest.
Why was flag burning judged to be protected expression in Texas vs. Johnson(1989)
The Court found that Johnson’s actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech.
Chaplinksy vs. NH (1942)
Called a city marshal a “God-damned racketeer” and “a damned fascist” in a public place. He was arrested and convicted under a state law for violating a breach of the peace.
- Does the application of the statute violate Chaplinsky’s freedom of speech protected by the First Amendment?
- No. Some forms of expression–among them obscenity and fighting words–do not convey ideas and thus are not subject to First Amendment protection.
Why was cross-burning considered to be protected speech in R.A.V. vs. St. Paul (1992) But a ban was upheld in Virginia vs. Black (2003).
RAV Case- the justices held the ordinance invalid on its face because “it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.” The First Amendment prevents government from punishing speech and expressive conduct because it disapproves of the ideas expressed.
- Virginia Case- the Court held that while a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate, in which four other justices joined, the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form, in which three other justices joined.
West Virginia vs. Barnette (1943)
The West Virginia Board of Education required that the flag salute be part of the program of activities in all public schools
- Did the compulsory flag-salute for public schoolchildren violate the First Amendment?
- 6-3 Yes. The Court found that such a salute was a form of utterance and was a means of communicating ideas. “Fixed star in our constitutional constellation”- Justice Jackson
Central Hudson Gas v. NY public Service Commission (1980)
Public Service Commission of New York (PSC), in the interest of conserving energy, enacted a regulation that prohibited electric utilities from promoting electricity use. The PSC’s regulation distinguished promotional advertising from informational advertising, which was permitted.
- Did the PSC’s ban on advertising violate the freedom of speech protected by the First and Fourteenth Amendments?
- 8-1. Yes. Court overruled the Court of Appeals of New York and held that the New York’s ban violated the right to commercial speech.
Alabama vs. NAACP(1958)
As part of its strategy to enjoin the NAACP from operating, Alabama required it to reveal to the State’s Attorney General the names and addresses of all the NAACP’s members and agents in the state.
- Did Alabama’s requirement violate the Due Process Clause of the Fourteenth Amendment?
- 9-0 Yes. The unanimous Court held that a compelled disclosure of the NAACP’s membership lists would have the effect of suppressing legal association among the group’s members.
Roberts vs. US Jaycees (1984)
Membership in the United States Jaycees was limited to males between the ages of eighteen and thirty-five. Females and older males were limited to associate membership in which they were prevented from voting or holding local or national office.
- Did Minnesota’s attempts to enforce the anti-discrimination law violate the Jaycees’ right to free association under the First Amendment?
- 7-0 No. Court held that the Jaycees chapters lacked “the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women.” The Court reasoned that making women full members would not impose any serious burdens on the male members’ freedom of expressive association.
