First Amendment; Freedom of Speech Flashcards
What are a few ares that the 1st amend. to be covered
Dangerous Speech: The “Bad Tendency” Test, The “Clear and Present Danger” Test and The “Imminent Lawless Action” Test
Fighting Words: Hate Speech, and Profanity
Freedom of the Press
Symbolic Speech and Speech-Plus-Conduct
Offensive Speech
Defamation: Libel and Slander and Different standard for “Public Figures”
The Overbreadth Doctrine
The Void for Vagueness Doctrine
Facts of Brandenburg v. Ohio (1969)
Brandenburg, a leader of the Ku Klux Klan in Ohio, was convicted under the Ohio Criminal Syndicalism Act for promoting crime, violence, and terrorism as a way to achieve political reform. He was arrested after a news reporter filmed him at a Ku Klux Klan rally where he was seen burning a cross and making derogatory remarks about African Americans and Jews. Brandenburg was fined and sentenced to ten years in prison. He argued that his conviction violated his First Amendment right to free speech.
Issue of Brandenburg v. Ohio
The question is whether an Ohio law that makes syndicalism a crime goes against the First and Fourteenth Amendments.
Holding/Reasoning of Brandenburg v. Ohio
Yes, a state can only ban speech that promotes violence if the speech is aimed at and likely to cause immediate illegal activity. The Court had previously supported a similar law in Whitney v. California, but that decision was later discredited. The First Amendment protects the teaching of the need for force or violence, as long as it doesn’t encourage immediate violent action. A law that doesn’t distinguish between these types of speech is too broad and violates the First and Fourteenth Amendments. The Ohio law is unconstitutional because it punishes the teaching of violence as a political strategy without distinguishing it from actual incitement of immediate illegal action. Therefore, Brandenburg’s conviction is reversed.
Facts of Hess v. Indiana (1973)
Gregory Hess was arrested for disorderly conduct during an antiwar protest. He was heard shouting an obscenity, which was interpreted as encouraging illegal activity. Witnesses said Hess seemed to be shouting to no one in particular and was no louder than others. He was convicted, but appealed his conviction all the way to the U.S. Supreme Court.
Issue of Hess v. Indiana (1973)
The question is whether speech that encourages illegal activity or force is protected by the First Amendment when it is not meant to and likely to cause immediate illegal activity.
Holding/Reasoning of Hess v. Indiana
Yes, this kind of speech is protected by the First Amendment. The court decided that the Constitution doesn’t allow punishment for speech that encourages illegal activity unless it’s likely to cause immediate illegal action. There was no evidence that Hess wanted to provoke immediate action with his shout. Therefore, his statement is protected speech and can’t be punished by the state. The state court’s decision is reversed.
Facts about NAACP v. Claiborne Hardware Co. (1982)
The NAACP started a boycott of white businesses in Mississippi to try to change government policies. They tried to get people to join the boycott by using social pressure, like listing the names of people who shopped at the white businesses. The businesses sued the NAACP and the people in the boycott. The local court said the NAACP and the boycotters had to pay damages, and the Mississippi Supreme Court agreed. The case then went to the United States Supreme Court.
Issue of NAACP v.Claiborne Hardware Co.
The question is whether the government can stop peaceful political activities that are trying to make sure rights from the Constitution are respected.
Holding/Reasoning of NAACP v. Claiborne Hardware Co.
The answer is no. The government can control a lot of economic stuff, but it can’t stop peaceful political activities that are trying to make sure rights from the Constitution are respected. The boycott is a type of non-violent speech that the First Amendment protects. To say the NAACP or its members did something wrong, you’d have to prove that the group’s goals were illegal and that its members wanted to achieve those goals. The boycott’s goals were to make social equality happen, which the Fourteenth Amendment already guarantees. Even though the boycotters used social pressure to get people to join, that’s not enough to beat the First Amendment protections. So, the Mississippi Supreme Court’s decision is overturned and the case is sent back to them.
Facts of Chaplinsky v. New Hampshire (1942)
Chaplinsky, a Jehovah’s Witness, was handing out religious pamphlets and speaking against all religions. Some people complained to City Marshal Bowering. Bowering told Chaplinsky he could share his views, but warned him that the crowd was getting upset. Later, when Chaplinsky was being taken to the police station, he called Bowering a ‘racketeer’ and a ‘fascist.’ Chaplinsky was found guilty of breaking a New Hampshire law that says you can’t say things on public streets that upset or annoy others. He said this law violated the First Amendment.
Issue of Chaplinsky v. New Hampshire (1942)
The issue in this case is whether the New Hampshire law that bans offensive or annoying speech on public streets violates the First Amendment.
Holding/ Reasoning for Chaplinsky v. New Hampshire (1942)
The court said no, the law doesn’t violate the First Amendment. Even though the First Amendment protects freedom of speech, it doesn’t protect all speech. Some types of speech, like obscene, profane, or insulting speech, can be punished. This includes ‘fighting words’ that can cause violence or harm. Chaplinsky’s words to Bowering were this type of speech. So, the New Hampshire law doesn’t violate the First Amendment, and Chaplinsky’s guilty verdict is upheld.
Fact of Cohen v. California (1971)
Robert Cohen was found guilty by the Los Angeles Municipal Court for disturbing the peace by wearing a jacket that said ‘Fuck the Draft.’ He said he wore the jacket to show how strongly he felt about the Vietnam War and the draft. He didn’t do anything threatening while wearing the jacket. He said his conviction went against his First Amendment rights, but the California Court of Appeal didn’t agree. The Supreme Court of the United States decided to review the case.
Issue of Cohen v. California (1971)
The question is whether a law that says you can’t disturb the peace with offensive speech goes against the First Amendment’s protection of freedom of speech.
Holding/Reasoning of Cohen v. California (1971)
Yes, the law does go against the First Amendment. Cohen’s conviction was based only on the fact that his speech was offensive, not on any bad behavior. The state of California said it had a right to protect its citizens from offensive speech, but the court disagreed. The court said people could just look away if they didn’t want to see Cohen’s jacket. The court also said that the state didn’t have a good enough reason to make it a crime to use this particular word. The court decided to overturn Cohen’s conviction.
Facts about Texas v. Johnson (1989)
Gregory Lee Johnson burned an American flag at a political demonstration during the 1984 Republican National Convention. Texas charged him with desecration of a venerated object, which was against state law. He was found guilty, sentenced to a year in jail, and fined $2,000. Johnson appealed his conviction, and while the appellate court upheld it, the Texas Court of Criminal Appeals reversed it, treating Johnson’s act as protected symbolic speech.
Issue of Texas v. Johnson
The issue in this case is whether a state law that makes it a crime to burn an American flag as a form of political protest is against the First Amendment.
Holding/ Reasoning of Texas v. Johnson
The Supreme Court ruled that a state law that makes it a crime to burn an American flag as a form of political protest is against the First Amendment. The court found that Johnson’s act was expressive conduct protected by the First Amendment. Texas argued that it had two interests: preventing breaches of peace and preserving the flag as a symbol of nationhood and national unity. However, the court found that no disturbance of peace occurred due to Johnson’s flag burning and that Texas’s second interest was related to the suppression of expression. Therefore, Johnson’s conviction for burning the flag as a means of political expression cannot be supported by the First Amendment.
