Exam 2: The 1st Amendment Flashcards
freedom of speech can be __(1)__, but it cannot be __(2)__
- regulated
- prohibited
What case involves the regulation of speech?
Schenck v. United States
What was the question asked during Schenck v United States
Whether their arrest violated the 1st amendment, freedom of speech?
(did their arrest violate the 1st amendment, freedom of speech?)
What was the ruling of Schenck v. United States?
Ruled that the arrest did NOT violate the 1st amendment.
- it was right for them to be arrested
- they should have not said what they said
What was established as a result of Schenck v. United States?
Clear and Present Danger test
what is the Clear and Present Danger test?
Speech should be regulated if it presents a clear, present danger
What is an example of the clear and present danger test?
- if someone shouts fire in a movie theater than they can get arrested.
What case established the clear and present danger test?
Schenck v. United States
What is the background of Schenck v. United States?
In 1919, a group of individuals passing out papers, telling people that the military is modern day slavery. In addition, in this point in time they are talking about the military drafts. These people were arrested under the espionage act.
What is the espionage act?
when someone betrays their country
What cases were formed regarding the first amendment and fighting words?
- Dennis v. United States
- Brandenburg v. Ohio
- Counterman v. Colorado
What was the question asked during Dennis v. United States?
Did the arrest violate the 1st amendment, freedom of speech?
What was the ruling of Dennis v. United States?
Ruled that the arrest DID NOT violate the 1st amendment
it was legal for them to be arrested
What is the background of Dennis v. United States?
Occurred during the time of the red scare. Basically, people were being arrested under the Smith act. The Smith Act prohibited the teaching of overthrowing the government.
What was the question asked during Brandenburg v. Ohio?
Did the arrest of Brandenburg violate the 1st amendment, freedom of speech?
What was the ruling of Brandenburg v. Ohio?
Ruled that there was a violation under the 1st amendment.
He should have not been arrested
What was the reasoning behind Brandenburg v. Ohio?
they stated that you can ONLY get in trouble for speech if it incites danger or illegal activity.
we have to prove that the speech caused harm
What is the background of Brandenburg v. United States?
Occurred during the civil rights era. Brandenburg is a nation leader for the KKK. Brandenburg gives a speech, with a lot of threatening language on what they are going to do to minorities. As soon as he finishes the speech, he is arrested under a syndicalism law. Used a lot of hypothetical language.
What is the Syndicalism law?
stated that you cannot advocate for terrorism political reforms
What was the conclusion/ ruling of the Counterman v. Colorado case?
People cannot get in trouble for their speech, as long as they did not know their speech was threatening.
if you don’t act on it then its not threatening
the guy being accused said that he did not know that his speech was threatening
What is symbolic speech?
nonverbal and/ or non-written forms of communication
What cases were formed regarding the first amendment and symbolic speech?
- Texas v. Johnson
- Snyder v. Phelps
What are examples of symbolic speech?
marches
sit-in
t-shirts
burning a flag
What was the question asked to the supreme court during Texas v. Johnson?
whether the arrest of Mr. Johnson violated the 1st amendment.
What was the ruling of Texas v. Johnson?
Ruled that the arrest was a violation of freedom of speech
He should have not been arrested
when is the only time you cannot get in trouble for damaging the US flag?
you cannot get in trouble if its during a protest
What is the background of Texas v. Johnson?
□ Mr. Johnson identified with the communist party. That year the Republican party was having a convention in Dallas. He goes to the convention and burns an American flag in protest. He is arrested flag desecration laws –> illegal to abuse the flag.
what is the flag desecration law?
it is illegal to abuse the flag
What was the question asked during Synder v. Phelps?
Whether the protest violated the 1st amendment.
What was the ruling of Synder v. Phelps?
The supreme court ruled that the protest were not a violation of the 1st amendment
What was the supreme courts justification for the ruling of synder v. phelps?
The church people were protesting in the correct manner, no matter how distasteful it may be.
What court case established prior restraint?
Near v. Minnesota
What court cases involve the 1st amendment, freedom of press?
- Near v. Minnesota
- New York Times v. United States
- Houston Community College system v. Wilson
- Branzburg v. Hayes
What was the question asked during Near v. Minnesota?
Was the gag order, issued by the govt, a violation of the 1st amendment, freedom of press?
What was the ruling of Near v. Minnesota?
Ruled that the gag order WAS A VIOLATION of freedom of press
established prior restraint
What is Prior Restraint?
States that the government cannot prohibit press BEFORE they publish a story
ex: Joe Biden cannot stop a newspaper company from publishing an article about him and kim jong un
What is the background of Near v. Minnesota?
□ A newspaper published an article saying that certain elected official were tied to the mafia. The gov. gag order on the newspaper.
What is a gag order?
newspaper companies cannot publish any future stories regarding the government.
What was the background of New York Times v. United States?
The New York Times was going to publish an investigative report implying the United States was furthering the Vietnam War. The federal government put a gag order on the report in order to prevent it from publishing. The US govt. put a gag order, because they believed the NYT was going to release nation security issues.
What was the question asked during New York Times v. United States?
Does the gag order violate the 1st amendment, freedom of press?
What was the ruling of New York Times v. United States?
the supreme court ruled that YES, the gag order DID VIOLATE the 1st amendment, freedom of press.
What was the supreme courts justification of the New York Time v. United States?
The court said that the press has freedom of speech even if it may put the federal government in danger
** the press does not have to held back**
What was the ruling of Houston Community College v. Wilson?
Ruled that the censure did not violate the 1st amendment, freedom of press
What was the background of Houston Community College System v. Wilson?
David Wilson was talking about the college board on his blog & on a local radio station. He was also accused of leaking confidential information & had filled lawsuits costing the board a lot of money in legal fees. This, among other things, caused the board to censor Wilson. The censor is used to express strong disapproval of Wilsons actions and prevent him from getting re-elected. Wilson said that the censor violated his rights to free speech.
note: even with the censor Wilson could still attend board meetings and voice his opinion
What was the question asked in Houston Community College v. Wilson?
whether the censorship was a violation of the 1st amendment, freedom of press?
Can journalist withhold confidential sources in court?
No, those who leak TOP SECRET INFORMATION to the press will get in trouble
if the press refuses to name the source the press, themselves will get in trouble
What was a result of the case New York Times v. United States?
In todays society the press can publish anything including national secrets.
What court case established that journalist must give up the name of their sources if the release of top secret information is involved?
Branzburg v. Hayes
When does the press have to give up the name of a source? (Branzburg v. Hayes)
Anytime there is a court case regarding a matter that was published with a confidential source, the journalist MUST give the name to the court.
What occurs if a journalist refuses to give up the name of a confidential source in court?
the journalist can face criminal charges themselves
What did Branzburg v. Hayes rule?
Ruled that No matter what, those who leak TOP SECRET INFORMATION to the press WILL get in trouble
What is the Establishment Clause?
“Separation of Church and State”: congress is prohibited from creating or promoting state-sponsored religion
Today the establishment clause means
to show NO FAVORITISM: the govt. must remain neutral when it comes to religion
What court case deals with the establishment clause?
Lemon v. Kurtzman
What question was asked during the Lemon v. Kurtzman case?
Did the states law violate the first amendment, establishment clause?
What is the background of Lemon v. Kurtzman?
States made laws in which their governments were going to fund private religious schools. This included textbooks, teachers’ salaries, and other religious material.
What was the ruling of Lemon v. Kurtzman?
ruled that YES the states law DID VIOLATE the 1st amendment establishment clause.
the states SHOULD NOT HAVE been paying for private religious schools
What was established as a result of Lemon v. Kurtzman?
the LEMON TEST
What is the Lemon Test?
determines whether a law should be constitutional under the 1st amendment, establishment clause.
the Lemon Test states that
the law/ action must pass ALL THREE rules in order to be constitutional, if it fails even one, the law is considered unconstitutional
T/F: a law/ action can only pass ONE rule of the Lemon test, in order for it to be ruled constitutional.
FALSE:
the law/ action must pass ALL THREE rules in order to be ruled constitutional
What are the rules of the Lemon test?
- the law/ action must not lead to Excessive government entanglement with religion. (the govt. cannot be involved with any type of religion)
- The law/action cannot either inhibit (stop) or advance religious practice. (law/ action has to be neutral)
- Law/ action must have some Secular Purpose
(secular = non-religious)
What is the purpose of the Lemon Test?
to make it difficult for the govt. to have anything to do with religion
What is the Free Exercise Clause?
limits the ability of the govt. to control or restrict religious practices.
we can do whatever we want religiously and the govt. cannot tell us otherwise
(holds the govt. responsible)
What is an example of the free exercise clause?
the Jehovah witnesses going door to door
What was the question asked during the Sherbert v. Verner case?
Does the denial of unemployment violate her 1st amendment, freedom of exercise?
What was the ruling & conclusion of Sherbert v. Verner?
ruled that there WAS A VIOLATION of the 1st amendment, freedom of exercise.
conclude that the govt. CANNOT VIOLATE religious preferences no matter what the situation is.
what was established as a result of the Sherbert v. Verner case?
the Sherbert Test
What is the background of Sherbert v. Verner?
Mrs. Sherbert was fired from her job after refusing to work Saturdays (as assigned) due to it being a religious day within her faith. Once she was fired, she was denied employment from the federal government since she was fired from her job.
What is the background of Employment Division v. Smith?
Two native Americans worked at a drug rehab facility. They were caught smoking peyote. They claimed they were smoking it for religious purposes. No matter what, they get fired. Apply for unemployment due to religious belief but were denied unemployment.
What was the question asked in the case of Employment Division v. Smith?
Does the denial of unemployment violate their 1st Amendment Freedom of Exercise?
What was the ruling of Employment Division v. Smith?
ruled that NO the denial of unemployment DID NOT violate their 1st Amendment.
What was the justification of Employment Division v. Smith?
- There cannot be a religious claim for illegal activity.
What cases established that there cannot be religious claim for illegal activity?
Employment Division v. Smith
What was the question asked during Shurtleff v. Boston?
Did the denial violate the church’s first amendment, freedom of exercise?
What was the ruling of Shurtleff v. Boston?
Ruled that YES, it did violate the 1st amendment, freedom of exercise!
What was established in Shurleff v. Boston?
Stated that the city cannot deny a religious group their freedom to exercise if they are offering the privilege to a secular group.
either everyone or no one
(combined the establishment and free exercise clause)
what court case combined the establishment and free exercise clause?
Shurleff v. Boston
What is generalization of School Prayer?
both clauses clash
In essence, schools cannot lead students to prayer under the establishment clause, but schools cannot deny students the opportunity to pray.
we can act on personal beliefs
What was the question asked during the Santa Fe ISD v. Doe case?
Does the Santa Fe ISD district’s policy permitting student led, student-initiated prayer at football games violate the 1st amendment, establishment clause?
What was the ruling of Santa Fe ISD v. Doe?
YES, the school’s policy did violate the 1st amendment establishment clause.
What was the justification of the ruling in Santa Fe ISD v. Doe?
the court states that the football game prayers were public speech authorized by a government policy at a government sponsored school related event. Thus the govt. policy endorsed the delivery of prayer, therefore the prayer was not private
What is the background of Santa Fe ISD v. Doe?
a student elected as Santa Fe High School’s student council chaplain delivered a prayer, described as overtly Christian, over the PA system before each home varsity football ga,e
What was the question asked during the Matthew v. Kountz ISD case?
Whether the cheerleaders banner violated the 1st amendment, establishment clause.
what was the ruling of the Matthew v. Kountze ISD case?
The Texas Supreme Court ruled IN FAVOR OF THE CHEERLEADERS.
NO, the banners were not a violation of the 1st amendment, establishment clause.
What was the ruling of Kennedy v. Bremerton School District?
Ruled that his firing WENT AGAINST the free exercise clause.
The school district did violate Mr. Kennedy’s 1st amendment, free exercise clause.
he should have not been fired
What was the justification for the ruling in Kennedy v. Bremerton School District?
since the coach was going out in his own free and he was essentially off the clock.
*** If the individual wants to do what they want, then they can. Schools or business cannot fire somebody for that. **
What is the background of Kennedy v. Bremerton School District?
A football coach of Bremerton ISD was fired from his position because he would always go and pray at the 50-yard line after a game.
