Threat Assessment Flashcards
Schenck v U.S. (1919)
During WWI Scheneck and Baer distributed leaflets saying the draft violate 13th amendment against involuntary servitude- urged to disobey draft but peacefully
Charged and convicted of conspiracy to violate Espionage Act of 1917
Question: Did their conviction under Espionage Act for criticizing the draft violate 1st Amendment
Answer: No. Espionage Act does not violate the 1st Amendment and was an appropriate exercise of Congress’ wartime authority.
Finding: 1.) Courts owed greater deference to the government during wartime, even when constitutional rights were at stake 2.) “clear and present danger test”- 1st amendment doesn’t protect speech that approaches creating a clear and present danger of a significant evil that Congress has power to prevent 3.) “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 Congress has the a right to prevent.”
** Protections under first amendment are restricted if represent clear and present danger
Brandenburg v. Ohio (SCOTUS, 1969)
KKK made a speech at a rally, convicted under syndicalism law
Question: Did OH syndicalism law (prohibits public speech that advocates various illegal activities), violate free speech under 1st and 14th?
Answer: Yes. Violated rights of 1st.
Finding: 1.) Government can only punish inflammatory speech if it is “directed at inciting or producing imminent lawless action” OR it was “likely to incite or produce such action.” 2.) distinction between advocating and teaching doctrines and if those advocacies or teaching would actually incite imminent lawless action (the OH act did not make this distinction and thus it was too broad and violated the constitution).
Brandenburg test:
Intent to speak
Imminence of lawlessness
Likelihood of lawlessness
**Speech advocating illegal conduct is protected under 1st amendment unless likely to incite “imminent lawless action”
**Partially overturned Schenck in that it limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action
Watts v US (SCOTUS, 1969)
At protest and when discussing police brutality, Watts made a statement about getting LBJ in his sights when he gets a gun due to being drafted; convicted for violating a federal statute that makes it a crime to “knowingly and wilfully” threaten the president
Question: Was his statement a legitimate threat within the meaning of the statute?
Answer: No.
Finding: 1.) His statement was “political hyperbole 2.) When considering context of his statement (a political protest where often have abusive and inexact language), the conditional nature (not definitive) of the statement, and reactions of listeners (laughed), his statement was not a true threat (was more of a crude method of political opposition to the president) 2.) Established “true threat” doctrine- meant to frighten/intimidate one or more specified persons into believing they will be seriously harmed by the speaker or by someone acting on speaker’s behest. 3.) First amendment does not protect true threats and political hyperbole is not a true threat
Tinker v. Des Moines Independent Community School District (SCOTUS, 1969)
Students met and wanted to wear black armbands to protest Vietnam War; principles learned of this and created a policy that stated if asked to remove it and refused, would be suspended
Tinker and Eckhard wore theirs and were sent home; didn’t return to school until three weeks later (planned end of the protest).
sued school district for violating right of expression and to stop their kids from being punished;
Question: Does a prohibition of wearing the armband in a public school as a form of symbolic protest violate freedom of speech guaranteed by the 1st amendment?
Answer: Yes. Armbands represent pure speech and are entirely separate from actions or conduct of those participating in it (1st amendment applied to public schools).
Finding: 1.) School officials could not prohibit only on the suspicion that the speech might disrupt the learning environment 2.) Students didn’t lose rights of 1st amendment on school grounds 3.) to justify suppression of speech had to be able to prove that the conduct would “materially and substantially interfere” with operation of school (in this case, their actions stemmed from fear of possible disruption rather than any actual interference)
**Tinker test: Substantial disruption- used by courts to determine if a school’s interest to prevent disruption infringes on students’ 1st amendment rights
NJ v T.L.O. (SCOTUS, 1985)
Issue: Exclusionary rule and violation of 4th amendment (search and seizure)
TLO a HS student; school searched her purse under suspicion she had cigs; found cigs, pot and list of students who owed her money; convicted of possession and got a year of probation (despite a motion to suppress items found in search)
NJ Supr. Crt reversed stating that exclusionary rule of 4th amendment applied to searches and seizures conducted by school officials in public schools
Question: Does exclusionary rule apply to searches conducted by school officials in public schools?
Answer: Yes.
Finding: 1.) 4th amendment prohibits unreasonable searches and seizures and applies to searches conducted by school officials (not limited to searches by law enforcement) BUT school officials don’t need probable cause or a warrant before searching, instead to be a justified search, school officials must have a reasonable suspicion that the student either violated a law or school rules 2.) The search of her purse was reasonable (she was caught smoking so reason to believe they were in her purse
**Established “reasonableness standard” for searches of students conducted by public officials in a school environment
**Was a balance between expectation of privacy of an individual (even a child) and the school’s interest in maintaining order and discipline
Bethel School District No. 403 v. Fraser (SCOTUS, 1986)
At a school assembly, Fraser was giving a speech to nominate a student for office and used graphic sexual metaphors; suspended under rule which prohibits conduct that “substantially interferes with the educational process..including obscene language or gestures”
US DC said his speech was no different than in Tinker and ruled in his favor; school appealed to SCOTUS
Question: Does 1st Amendment prevent a school district from disciplining a high school student for giving a lewd speech at a high school assembly?
Answer: No. Appropriate for school to prohibit use of vulgar and offensive language.
Finding: 1.) Court differentiated between political speech (which they protected in Tinker) and the sexual content of Fraser’s message- 1st amendment did not prohibit schools from prohibiting vulgar and lewd speech since that discourse was inconsistent with the fundamental values of public school education 2.) Tinker said students should be afforded free expression at school, their rights are not equivalent to an adult’s freedom of speech (offensive expression by an adult in a political context is different and kids aren’t afforded same latitude) 3.) Sexual content of Fraser’s speech was distinguishable from the nondisruptive political speech that was at issue in Tinker
**Limits Tinker by prohibiting certain styles of expression that are sexually vulgar
**State has an interest in protecting kids from vulgar and offensive language and that schools can determine what speech is inappropriate
Hazelwood School District v. Kuhlmeier (SCOTUS, 1988)
The spectrum, a school sponsored newspaper, written/edited by students; principle found two of the articles to be inappropriate and ordered they weren’t published; Kuhlmeier and two other students brought suit
Question: Does principal’s deletion of the articles violate students’ rights under the 1st Amendment?
Answer: No. 1st didn’t require schools to affirmatively promote particular types of student speech
Finding: 1.) Schools must be able to set high standards for student speech disseminated under their auspices and schools could refuse to sponsor speech that was “inconsistent with the shared values of a civilized social order- if it is inconsistent with basic educational mission, can restrict it 2.) If reasons to restrict free speech were “reasonably related to legitimate pedagogical concerns,” doesn’t violate 1st 3.) Encouraged students to go to court to protect constitutional rights if the censure has no valid educational purpose
*Can regulate style and content of speech when it is included in school’s expressive activities
**School has an interest in protecting its image and educational activities of students- school can consider the emotional maturity of the audience when choosing to suppress certain forms of speech
