Midterm Court cases

Question 1

• Turbulent political times – impeachment & the battel of judiciary acts:
• Judiciary Act of 1801 (new federal judges & 6 circuits, 5 scrt justices) and Organic Act of 1801 (JOPs for D.C.), TJ held some back
o Didn’t like Jefferson and were hoping he would be a 1 term president.
o Changed the rules on the SCRT justices so that he wouldn’t be able to put a new judge in.
• William Marbury & 3 other JOPs filed suit
o Marbury is just wanting to be a Justice of the Peace.
• Thomas Jefferson had ordered Secretary Madison to withhold their commissions (though signed & sealed – they were not delivered).
• What were TJs arguments?
o Commissions were not complete – delivery is essential, & SOP
o Marbury seeks a Writ of Mandamus for the SCRT in Original Jurisdiction

Answer 1

Facts - Marbury v. Madison 1803 - Applied Judicial review to SCOTUS

Question 2

Is Marbury entitled to a SCRT issued Writ of Mandamus ordering Secretary Madison to deliver his commission?

Answer 2

Issue - Marbury v. Madison (1803) - Judicial Review

Question 3

no, because section 13 of the Judicial Act of 1789 is unconstitutional (SCRT has power of judicial review), case dismissed.
• Politics all over the place and doesn’t want to give Jefferson any power
• Goes after Congress and completely side-steps the situation at hand.
• It was trying to add to the Constitution and that is why they are not allowed to run this case.
o Doctrine of National Supremacy emerges

Answer 3

Holding - Marbury v. Madison (1803) - Judicial Review

Question 4

o US draft for WWI - Charles Schenck, General Secretary of NY Socialist Party & Beth Baer argued the draft violated 13th amendment
 There were a lot of immigrants coming to the US and they did not like their family fighting against their friends.
 Socialism is also taking a popular stance at this current time.
 Involuntary servitude.
o Sent 15,000 leaflets – to draftees to recruit them to oppose the draft
o (DS) were- arrested, tried, and convicted of violating Espionage Act of 1917 for attempting to cause insubordination and obstruct recruiting of the armed forces
o (DS) then – appealed to SCOTUS

Answer 4

Facts - Schenck [Shank] v United States (1919) - Restrictions on Speech

Question 5

o Does the Espionage Act’s prohibition of speech that attempts to incite insubordination in the military & obstruct the recruitment of the armed forces violate the 1st Amendment?

Answer 5

Issue - Schenck [Shank] v United States (1919) - Restrictions on Speech

Question 6

– No Espionage Act of 1917 did not violate 1st amendment
o New Test still Developing
o Courts have more deference for the govt. during wartime
o Act does not have to be successful to be a crime

Answer 6

Holding - Schenck [Shank] v United States (1919) - Restrictions on Speech

Question 7

o The Espionage Act of 1917 - made it a crime to “convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies.”
o Eugene Debs, leader of Socialist Party - gave a pro socialism, Anti-WWI speech & praised those who had refused to serve & obstructed military recruiting.
 Is it wrong to be pro-socialist and anti-war?
 But obstruction of the military is probably the really problem
 Very unpopular war and no one wants to be in it but we are still in it so we can’t do much.
o (D) was charged with:
 Count 3: causing & inciting insubordination, disloyalty, mutiny and the refusal of duty in the military & naval forces of the U.S., and
 Count 4: obstructing & attempting to obstruct the recruiting & enlistment service of the U.S. in violation of the said act.
o Dist CRT - convicted & sentenced (D) to 10 years for each count, concurrently and disenfranchised him.
o (D) - appealed to SCOTUS

Answer 7

Facts - Debs. V. United States (1919) - Restrictions on Speech

Question 8

o Did the Espionage Act of 1917 violate the 1st Amendment freedom of Speech?

Answer 8

Issue - Debs. V. United States (1919) - Restrictions on Speech

Question 9

o No. Lower court affirmed; SCOTUS again concentrated on count 4, not count 3 in its ruling, why? Harder to prove 3 - actually causing & inciting insubordination, disloyalty, mutiny…
 4 allows you to just discuss if it could have incited violence it doesn’t have to actually cause

Answer 9

Holding - Debs. V. United States (1919) - Restrictions on Speech

Question 10

o Ds - Jacob Abrams & other self-professed rebels, revolutionists, anarchists, & socialists (born in Russia) threw leaflets from a window in NYC denouncing the war & called for a Gen. strike.
o Called the president a coward and stated such things as:
o Ds were Convicted (20 years) - for violating the Sedition Act of 1918 (which amended the Espionage Act of 1917), & appealed to SCOTUS.

Answer 10

Facts - Abrams v United States (1919)- Restrictions on Speech

Question 11

o Does the Sedition Act of 1918 Violate the 1st amendment?

o Using Schenck & Abrams, how do you expect the court to rule?

Answer 11

Issue - Abrams v United States (1919) - Restrictions on Speech

Question 12

o No Affirmed conviction (7-2)

Creation of Justice Holmes C. P. D. Test

Answer 12

Holding - Abrams v United States (1919) - Restrictions on Speech

Question 13

o Socialist Benjamin Gitlow - published & circulated copies of a left-wing manifesto, which advocated strikes & the violent overthrow of the govt.
 Strikes are just trying to get money (Union Strikes)
• But we have seen strikes bring Government’s to their knees as can be seen in France and Russia
o (D) was convicted of criminal anarchy under a NY Criminal Anarchy Act that prohibited the overthrow of the govt. by force or violence.

Answer 13

Facts - Gitlow v. People of the State of New York (1925) - Incorporating First Amendment’s Freedom of Speech to restrain State Governments

Question 14

o 1) Is the 1st Amend. Freedom of Speech incorporate into the 14th Amendment Due Process Clause?
o 2) Did the NY Criminal Anarchy Law violate the D’s liberty of expression incorporated in the 14th Amendment DPC?

Answer 14

Issue - Gitlow v. People of the State of New York (1925) - Incorporating First Amendment’s Freedom of Speech to restrain State Governments

Question 15

o 1) Yes, it’s “among the fundamental personal rights & liberties protected by the due process clause”
o 2) No, affirmed, there was still a “dangerous [bad] tendency,” if not an immediate danger.
o J. Edward T. Sanford held for the majority (7-2):
 Also, notice in the last two decisions the war was over.

Answer 15

Holding - Gitlow v. People of the State of New York (1925) - Incorporating First Amendment’s Freedom of Speech to restrain State Governments

Question 16

o Yetta Stromberg taught at Young Communist league camp
o Books & pamphlets incited violence & “armed uprisings,” and portrayed “the indispensability of a desperate, bloody, destructive war as the immediate task of the coming action….”
o CA Penal Code stated that any person who “displays a red flag, banner or badge or any flag, badge, banner, or device of any color or form whatever in any public place or in any meeting place or public assembly, or from or on any house, building or window as a sign, symbol or emblem of opposition to organized government or as an invitation or stimulus to anarchistic action or as an aid to propaganda that is of a seditious character is guilty of a felony.”
o CA Trial Crt – found her guilty; CA Dist Crt of Appeals affirmed
o Stromberg appealed to U.S. SCRT

Answer 16

Facts - Stromberg v. California (1931) - Incorporating First Amendment’s Freedom of Speech to restrain State Governments

Question 17

o Whether an Act which prohibits the display of any flag, symbol, or emblem of opposition to organized government, on its face violates the 14th Amendment DPC incorporation of free speech?

Answer 17

Issue - Stromberg v. California (1931)- Incorporating First Amendment’s Freedom of Speech to restrain State Governments

Question 18

o Yes. It is overly broad. The first time SCRT struck down state law under Freedom of speech.
o CJ Charles Hughes held for the majority (7-2):
 Rule: govt. restrictions on expression cannot be overly broad or vague, or it violates 1st and 14 Amendments

Answer 18

Holding - Stromberg v. California (1931) - Incorporating First Amendment’s Freedom of Speech to restrain State Governments

Question 19

 Clarence Brandenburg, a Ku Klux Klan (KKK) leader made a speech at a rally advocating “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” & assembling with those who did so.
 D was convicted under Ohio criminal syndicalism law.
 Ohio Appeals court affirmed
 D appealed to SCOTUS

Answer 19

Facts - Brandenburg v. Ohio (1969) - Per Curiam Opinion - Incitement of Imminent Lawless Action Test

Question 20

 Did the Ohio criminal syndicalism law, which prohibited public speech advocating illegal activities, violate speech protected under the First & Fourteenth Amendments?

Answer 20

Issue - Brandenburg v. Ohio (1969) - Per Curiam Opinion - Incitement of Imminent Lawless Action Test

Question 21

 Yes. Reversed. Act did not distinguish between mere advocacy & incitement of imminent lawless action.
 New Test - for speech to be prohibited by a law, it must be:
• 1. “directed at inciting or producing imminent lawless action,” and
• 2. be “likely to incite or produce such action.”
 Otherwise, the law is overly broad & prohibits speech protected under the said amendments.

Answer 21

Holding - Brandenburg v. Ohio (1969) - Per Curiam Opinion - Incitement of Imminent Lawless Action Test

Question 22

o David O’Brien- burned his draft card on the steps of a Boston Courthouse to protest the Vietnam War in violation of fed law.
o D admitted – he knew he was violating federal law, but argued his conduct was “symbolic speech” protected by the First Amendment
o District Court found – him guilty of willfully & knowingly burning the card in violation of federal law (the 1965 Amendment of Universal Military Training and Service Act of 1948 that mandated that the destruction or mutilation of draft cards was a crime)
o US Second Circuit – reversed; the Government appealed to SCOTUS
 Federal government is the one appealing to SCOTUS

Answer 22

Facts - United States v. O’Brien (1968) - Burning Draft Card

Question 23

o Is the burning of a draft card protected speech under the First Amendment?

Answer 23

Issue - United States v. O’Brien (1968) - Burning Draft Card

Question 24

o No 2nd Circuit Reversed. SCOTUS put forth the O’Brien Test for symbolic and expressive conduct
o CJ Earl Warren for a (7-1 court, T. Marshall was not

Answer 24

Holding - United States v. O’Brien (1968) - Burning Draft Card

Question 25

o John Tinker & others – wore black armbands to school to protest the Vietnam War and call for a truce.
o School policy – stated they had to remove it or be suspended
 Appears as though the parents are pushing the issues
 They wanted the kids to get suspended.
o Tinker – was sent home and sued and sought an injunction
 Funny that it is just a black armband because black has held lots of other issues (can by symbolic for supporting a loved one that died)
o District court held – action was “reasonable in order to prevent disturbance of school discipline.”
o U.S. Eighth Circuit – was equally divided, and affirmed the lower court decision without opinion.
o Tinker appealed to SCOTUS

Answer 25

Facts - Tinker v. Des Moines Independent Community School District (1969) - Arm Bands – symbolic speech in schools

Question 26

o Does a school policy prohibiting armbands, worn as a form of symbolic protest, violate the First Amendment’s freedom of speech (via the 14th amendment)?
 We are talking about government action

Answer 26

Issue - Tinker v. Des Moines Independent Community School District (1969) - Arm Bands – symbolic speech in schools

Question 27

o Yes. Reversed, and revealed the Tinker Test for Schools
o Justice Abe Fortas held for a (7-2 majority):
o Tinker Test for Symbolic speech in schools

Answer 27

Holding - Tinker v. Des Moines Independent Community School District (1969) -Arm Bands – symbolic speech in schools

Question 28

o Gregory Lee Johnson , a communist youth, burned a flag with kerosene, and chanted “America, the red, white, and blue, we spit on you” at the Republican National Convention to protest Reagan’s policies
o (D) Was charged with “the desecration of a venerated object: under TX Penal Code, and sentenced to 1 year in prison & a $2,000 fine.
o TX CRT of Appeals affirmed, but the higher TX CRT of Criminal Appeals reversed, holding his actions were symbolic speech protected by 1st Amendment TX appeals to U.S. SCRT

Answer 28

Facts - Texas v. Johnson (1989) - Flag Burning

Question 29

o Did the Texas non-desecration of flag statute violate the first and Fourteenth Amendments?
 The 14th is coming up because this is a State issue and that is how we get it to the State

Answer 29

Issue - Texas v. Johnson (1989) - Flag Burning

Question 30

o Yes, The burning was expressive conduct political speech protected by the 1st Amendment.
o J. William Brennan held for the majority (5-4):

Answer 30

Holding - Texas v. Johnson (1989) - Flag Burning

Question 31

• Walter Chaplinsky – gave out Jehovah’s Witness literature on a public sidewalk that attacked other religions and called the city marshal a d- racketeer and a d-Fascist and the whole local government fascists.
• D was convicted under a NH statute - “No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.”
• NH SCRT affirmed; D appealed to SCOTUS

Answer 31

Facts - Chaplinsky v. New Hampshire (1942) - Fighting words

Question 32

• Was the NH law overly vague in violation of the Freedom of Speech applied to the states via the Fourteenth Amendment?

Answer 32

Issue - Chaplinsky v. New Hampshire (1942) - Fighting words

Question 33

• No, D’s conviction upheld. His insults were “fighting words,” provoking a specific individual, the city marshal, to violence, and thus, were unprotected by the Fourteenth Amendment.
• For a Unanimous court, J Francis W. Murphy held:

Answer 33

Holding - Chaplinsky v. New Hampshire (1942) - Fighting words

Question 34

o Father Arthur Terminiello – spoke at Christian Veterans of America auditorium meeting using inflamed racial and political criticisms towards broad groups.
 This is a pretty rough group
 He is very mean to the Jews
o Protestors outside rioted in Chicago; Police defended, then arrested (D) for breaching the peace; Trial court convicted, Illinois appellate and SCRT CRT affirmed.

Answer 34

Facts - Terminiello v. Chicago (1949)

Question 35

o Did the city ordinance violate free expression guaranteed by the 1 & 14 Amendments?

Answer 35

Issue - Terminiello v. Chicago (1949)

Question 36

o Yes, the Chicago City Ordinance violated free expression, Justice William Douglas held for a 5-4 majority

Answer 36

Holding - Terminiello v. Chicago (1949)

Question 37

o (D) Nico Jacobellis, Manager of Movie Theater, was convicted under OH law for possessing and exhibiting an obscene film. Appellate Court Affirmed.

Answer 37

Facts - Jacobellis v. Ohio (1964) (Only Hard-core Pornography is obscene,

Question 38

o Did the OH law violate the First & Fourteenth Amendments?

Answer 38

Issue - Jacobellis v. Ohio (1964) (Only Hard-core Pornography is obscene,

Question 39

o Yes. Reversed. J. William Brennan held for a 6-3 Court that that film was not obscene, and that the conviction had to be reversed.

Answer 39

Holding - Jacobellis v. Ohio (1964) (Only Hard-core Pornography is obscene,

Question 40

– obscenity is not protected speech or press.

Answer 40

Roth v. US (1957)

Question 41

o Marvin Miller - mails brochure with graphic sexual images in mail
o D convicted - under CA law prohibiting distribution of obscene material (by contemporary not nat. standards)

Answer 41

Facts - Miller v. California (1973) – Obscenity Test (this is the test used today)

Question 42

o Is the sale and distribution of obscene materials by mail protected under First and Fourteenth Amendments?

Answer 42

Issue - Miller v. California (1973) – Obscenity Test (this is the test used today)

Question 43

o No. CJ Warren Burger held for the majority (5-4):

o Roth was reaffirmed - obscenity is not protected speech

Answer 43

Holding - Miller v. California (1973) – Obscenity Test (this is the test used today)

Question 44

o D convicted - under fed law (The Child Pornography Prevention Act of 1996) that prohibited life subjects as well as virtual child pornography on the internet
o Ninth Circuit - reversed District Court

Answer 44

Facts - Ascroft v. Free Speech Coalition (2002)

Question 45

o Did the CPPA violate the First Amendment?

Answer 45

Issue - Ascroft v. Free Speech Coalition (2002)

Question 46

o Yes, the CPPA was “overly broad” & violated 1st Amendment.

Answer 46

Holding - Ascroft v. Free Speech Coalition (2002)

Question 47

• Governor William Cosby – removed Chief Justice Lewis Morris from the SCRT of the Province of NY for ruling against him in a case involving the governor’s salary.
• Morris and his allies – set up an independent newspaper, the New-York Weekly Journal, to criticize the government
• Gov. Cosby sought to - arrest and try the paper’s printer, John Peter Zenger, for the crime of seditious libel. At this time, it did not matter if the writing was true.
o Truth was not a defense to Libel
o Zenger probably didn’t write anything, he was a recent immigrant and so he was best at being a printer.
o The Governor was not able to go after the people who were writing them because he did not know who actually wrote them, but he did know who was printing them.
• After failing twice to get an indictment from a grand jury – Gov. Cosby had his AG issue an information - a legal procedure to try someone without a grand jury review
o Role of the grand jury is to review the evidence and to determine if there is enough evidence to try the case.
o An information- a legal procedure to try the person without a grand jury. But it is very controversial.

Answer 47

Facts - Crown v. Zenger (1735) - Foundations of Freedom of the Press

Question 48

• Was Zenger guilty of Seditious Libel? The SCRT held that the writings were seditious. The Jury’s task, ergo, was simply determine whether Zenger published the statements. Zenger’s legal team admitted he had but urged the jury to nullify the bogus crime by a verdict of not guilty.

Answer 48

Issue - Crown v. Zenger (1735) - Foundations of Freedom of the Press

Question 49

• Not guilty. Liberty over tyranny; political but not legal precedent for Free Press (helped bring forth Free Press in First Amendment)
o Andrew Hamilton admits that Zenger published the work but he gives a long history of American Constitutionalism.
o Jury to Nullify the crime with a verdict of Not Guilty.
o Jury chooses liberty over tyranny
o Political not legal precedence because the Court had determined that he was guilty even though the jury said something different.

Answer 49

Verdict - Crown v. Zenger (1735) - Foundations of Freedom of the Press

Question 50

• New York Times published – an advertisement for Dr. MLK that included false statements about the city of Montgomery, AL, using violence against Civil Rights protestors.
• L.B. Sullivan – one of the three city Commissioners over the police, asked the NY times to retract the information, it declined. And Sullivan brought a libel suit against the times for false libelous statements.
• AL trial court - awarded Sullivan $500,000 in damages after the judge instructed the jury that statements were “libelous per se,” so legal injury could be implied w/o proof of actual damages, and that, for the purpose of compensatory damages, malice was presumed, so such damages could be awarded if the statements were found to have been published by the D and were made concerning Sullivan.
• SCRT of AL - affirmed; (D) appealed to U.S. SCRT

Answer 50

Facts - New York Times Co. v. Sullivan (1964) - Modern Freedom of the Press (Actual Malice)

Question 51

• Is a publication that criticizes a public official protected by the First and Fourteenth Amendments, absent a showing of actual malice?

Answer 51

Issue - New York Times Co. v. Sullivan (1964) - Modern Freedom of the Press (Actual Malice)

Question 52

• Yes, No actionable recovery for public figure without a showing of actual malice. J. William Brennan Held for a unanimous court:

Answer 52

Holding - New York Times Co. v. Sullivan (1964) - Modern Freedom of the Press (Actual Malice)

Question 53

• Pat Tornillo- Exec. Dir. Of the Classroom Teachers Association and a candidate for the Florida House of Representatives in Dade County, FL
• Miami Herald – printed two editorials criticizing him
• Tornillo argued - Herald had to publish his responses under Florida Law- paper refused
• FL CRT of Appeals held – statute was unconstitutional
• Tornillo appealed to FL SCRT, which reversed

Answer 53

Facts – Miami Herald v. Tornillo (1974) – Right to reply

Question 54

• Did the FL “right to reply” statute violate the 1st Amendment Free Press (applied via 14th Amendment)?

Answer 54

Issue – Miami Herald v. Tornillo (1974) – Right to reply

Question 55

The “right to reply” statute violate the 1st Amendments Free Press. Chief Justice Warren Burger

Answer 55

Holding – Miami Herald v. Tornillo (1974) – Right to reply

Question 56

o Daniel Ellsbert, a Pentagon employee, gave NY Times a 7,000 page top secret study, “History of U.S. Decision-Making Process on Vietnam Policy.” Excerpts – The Pentagon Papers –were published.
o The Nixon admin. Asked NY Times to stop printing for National Security, the paper refused
o Government sought a federal injunction to enjoin the New York Times & Washington Post from publishing secrets relating to Vietnam.
o Two Cases combined; Ds appealed to SCRT

Answer 56

Facts - New York Times Co. vs. the United States (1971) - Prior Restraint

Question 57

o Does an injunction enjoining the NY Times and the Washington Post from publishing the contents of a classified study violate the 1st Amendment?

Answer 57

Issue - New York Times Co. vs. the United States (1971) - Prior Restraint

Question 58

o Yes. Govt. didn’t meet its “heavy burden of showing justification for the enforcement of such a [prior] restraint.” “’Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.’…. The Government ‘thus carries a heavy burden of showing justification for the imposition of such a restraint.’

Answer 58

Holdings - New York Times Co. vs. the United States (1971) - Prior Restraint

Question 59

• Boston has a long history recognizing St. Patrick that dates back to GW choosing “St. Patrick” as the password to get through colonial lines during the revolutionary war evacuation of Boston
• Every year since 1947, the South Boston Allied War Vets has received a permit to have a St. Patrick’s Day-Evacuation Day Parade.
• The Vets Council refused to include Irish American Gay, Lesbian, & Bisexual Group (GLIB) at the parade
• MA trial court ordered Vets to include them (citing MA law that prohibits discrimination in public accommodations, including sexual orientation).
• Vets council asserted that the Parade expressed traditional religious and social values, and excluded groups with sexual themes.

Answer 59

Facts - Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995) - Freedom of Expressive Association

Question 60

• Whether MA’s mandate to require private citizens to include a group imparting a message it did not wish to convey violated the First and Fourteenth Amendments?

Answer 60

Issue - Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995) - Freedom of Expressive Association

Question 61

• Yes J. David Souter for a unanimous court held:
o “Such an action ‘violate[s] the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say.’”
 The government does not have the right to say who you have to associate with.

Answer 61

Holding - Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995) - Freedom of Expressive Association

Question 62

• The Boy Scouts, a private, not-for-profit organization, instills its values in young people (&believes that homosexual conduct is inconsistent with those values).
• James Dale, a volunteer assistant scout master, left to attend Rutgers University, & became co-president of a Lesbian/Gay Alliance.
• Boy Scouts revoked Dale’s membership
• Dale filed suit alleging that the Boy Scouts had violated the NJ statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation
• The chancery court granted summary judgement for the Boy Scouts because they were not “a place of public accommodation” & their view was First amendment “freedom of expressive association.”
• NJ appeals court reversed in part and remanded
• NJ SCRT affirmed

Answer 62

Facts - Boy Scouts of America v. Dale (2000)

Question 63

• Did the application of the NJ public accommodations law violate the Boy Scouts’ First Amendment Freedom of expressive association?

Answer 63

Issue - Boy Scouts of America v. Dale (2000)

Question 64

• Yes, reversed. For a 5-4 majority, CJ Rehnquist held

Answer 64

Holding - Boy Scouts of America v. Dale (2000)