Expression

Question 1

Schneck v. United States

Facts

Answer 1

Schenck was indicted for the charge of “conspiracy to violate the Espionage Act” after he mailed literature to draftees during World War I that criticized the draft. The government alleged that Schenck conspired to violate the EA by attempting to cause insubordination in the military and to obstruct military recruitment.

Question 2

Schneck v. United States

Rule

Answer 2

Clear and Present Danger Test: The character of every act depends on the circumstances in which it is done. The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to protect.

Question 3

Frowerk v. United States

Facts/Issue

Answer 3

Facts: The Missouri Staats Zeiung, a newspaper published in Kansas City, Missouri, issued a series of twelve articles written by Jacob Frohwerk (defendant) denouncing the United States’ involvement in World War I.

Issue: Did Frohwerk’s conviction under the Espionage Act of 1917 violate his right to free speech under the First Amendment?

Question 4

Frowerk v. United States

Holding/Reasoning

Answer 4

After noting that the federal government has a valid interest in protecting the recruitment of members of the armed forces, and that in publishing the articles, Frohwerk engaged in such a conspiracy, the Court concluded that Frohwerk’s conviction was legal.

Question 5

Debs v. United States

Facts

Answer 5

Debs, was found guilty for attempting to incite insubordination in the military by giving a speech. He was convicted and sentenced to 10 years on each count.

Question 6

Debs v. United States

Rule

Answer 6

If any one element of the speech can be punished, then the whole speech may be punished.

Question 7

Abrams v. United States

Facts

Answer 7

The defendants’ convictions for distributing leaflets advocating strikes during the Russian Revolution were upheld because their speech was not protected by the Constitution based on the “clear and present danger” test.

Question 8

Abrams v. United States

Reasoning

Answer 8

Men must be held to have intended and to be accountable for the effects which their acts are likely to produce. The plain purpose of Defendants’ propaganda was to excite, at the supreme crisis of war, disaffection, sedition, riots and as they hoped, revolution in this country for the purpose of embarrassing and if possible defeating the military plans of the Government in Europe.

Question 9

Gitlow v. New York

Answer 9

Facts: New York passed a statute that prohibited the written or verbal advocacy of criminal anarchy, a doctrine advocating overthrowing the government through force or violence.

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

Question 10

Gitlow v. New York

Answer 10

State statutes are unconstitutional if they are arbitrary and unreasonable attempts to exercise authority vested in the state to protect public interests.

Question 11

How does the First Amendment apply to the states?

Answer 11

By virtue of the liberty protected by due process that no state shall deny (14th Amendment)

Question 12

Whitney v. California

Issue

Answer 12

Did the Defendant’s knowingly being or becoming a member of an organization that advocated “criminal syndicalism” involve sufficient danger to the public peace that the State could constitutionally penalize her for it?

Question 13

Whitney v. California

Holding/Rule

Answer 13

Yes. A State may constitutionally prohibit its citizens from knowingly being or becoming a member of an organization that advocates criminal syndicalism consistently with the First Amendment of the Constitution.

Question 14

Dennis v. United States

Facts

Answer 14

Dennis was convicted for (1) willfully and knowingly conspiring to organize as the Communist Party, a group whose members advocated the overthrow of the US government by force and (2) willfully and knowingly advocating and teaching the duty to do the same. The constitutionality of the statute under which he was convicted was challenged.
His conviction was upheld.

Question 15

Dennis v. United States

Reasoning

Answer 15

The court was convinced that the requisite danger to act existed here:

(1) the formation of a highly organized conspiracy with rigidly disciplined members subject to call when the leaders felt it was time for action;
(2) the inflammable nature of world conditions;
(3) similar uprisings in other countries; and
(4) the touch and go nature of our relations with other countries with whom the Petitioners were ideologically aligned.

Question 16

Brandenburg v. Ohio

Facts

Answer 16

An Ohio law prohibited the teaching or advocacy of the doctrines of criminal syndicalism. Brandenburg, a leader in the Ku Klux Klan, made a speech promoting the taking of vengeful actions against government and was therefore convicted under the Ohio Law.
His conviction was overturned.

Question 17

Brandenburg v. Ohio

Reasoning

Answer 17

The mere abstract teaching of the need or propriety to resort to violence is not the same as preparing a group for violent action. Because the statute failed to provide for the second part of the test it was overly broad and thus in violation of the First Amendment.

Question 18

2-Prong Test from Brandenburg for evaluating free speech acts:

Answer 18

(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.”

Question 19

New York Times v. Sullivan

Facts

Answer 19

Sullivan sued the New York Times for printing an advertisement about the civil rights movement in the south that defamed him.

Question 20

New York Times v. Sullivan

Rule

Answer 20

For a public Official to bring a libel suit for official conduct, there must be actual malice.
Must have been knowingly false, or that there was reckless disregard to whether they were false.

Question 21

Overall goal of the holding in New York Times v. Sullivan

Answer 21

Uninhibited, wide-open, robust debate

Question 22

Curtis Publishing Co. v. Butts

Facts

Answer 22

The Plaintiffs were public figures and not public officials. Both were awarded damages for defamation. The Defendant, Curtis Publishing Co., appealed to extend the constitutional safeguards outlined in New York Times to public figures.

Question 23

Curtis Publishing Co. v. Butts

Rule

Answer 23

A public figure has the same standard of proof for libel as a public official does under New York Times.

Question 24

Gertz v. Robert Welch Inc.

Issue

Answer 24

Whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statements?

Question 25

Gertz v. Robert Welch Inc.

Holding/Rule

Answer 25

No. A private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times v. Sullivan may recover only such damages as are sufficient to compensate him for actual injury.

Question 26

Dun & Bradstreet v. Greenmoss Builders

Facts

Answer 26

Dun & Bradstreet sent a credit report to five subscribers indicating that Greenmoss Builders, Inc. had filed for bankruptcy. The report was false, but it was sent due to the good faith mistake of a Dun & Bradstreet fact checker. Greenmoss sued Dun & Bradstreet for libel and obtained a verdict for presumed and punitive damages.

Question 27

Dun & Bradstreet v. Greenmoss Builders

Rule

Answer 27

Absent actual malice, a private individual may be awarded damages even when there is no matter of public concern if he proves that there was a false statement and that it was negligently made.

Question 28

Hustler Magazine v. Falwell

Facts

Answer 28

After Hustler Magazine published an advertisement, depicting Jerry Falwell as having his “first time” in an outhouse with his mother, the reverend brought suit based on invasion of privacy, libel and intentional infliction of emotional distress.

Question 29

Hustler Magazine v. Falwell

Facts

Answer 29

There is no protection against satire for public figures.

Question 30

United States v. O’Brien

Facts

Answer 30

David 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.

Question 31

United States v. O’Brien

Rule

Answer 31

A governmental regulation is sufficiently justified if it:

(1) is within the constitutional power of the government;
(2) if it furthers an important or substantial governmental interest;
(3) if the governmental interest is unrelated to the suppression of free expression and
(4) if the incidental restriction on alleged First Amendment constitutional freedoms is no greater than is essential to the furtherance of that interest.

Question 32

What if the government is trying to regulate the speech side?

Answer 32

It would be subject to strict scrutiny.

Question 33

Barnes v. Glen Theater Inc.

Issue

Answer 33

Does a state prohibition against complete nudity in public places violate the First Amendment’s freedom of expression guarantee?

Question 34

Barnes v. Glen Theater Inc.

Holding/Reasoning

Answer 34

No. The public indecency statute is justified despite the incidental limitations on such expressive activity. The statute “furthers a substantial government interest in protecting order and morality.” The proscription on public nudity is unrelated to the erotic message the dancers seek to convey.

Question 35

City of Erie v. Pap’s A.M.

Facts

Answer 35

Erie, Pennsylvania, enacted an ordinance banning public nudity. The preamble stated that the “purpose” of the ordinance was to respond to “a recent increase in nude live entertainment within the City, which activity adversely impacts . . . the public health, safety, and welfare by providing an atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases, and other deleterious effects.”

Question 36

City of Erie v. Pap’s A.M.

Rule

Answer 36

Preventing secondary effects is a sufficient reason to make a content neutral law.

Question 37

Is Flag burning considered conduct or speech?

Answer 37

It is considered all speech.