Exam 1 Information - COMM4303
Exam 1 Information - COMM4303 COMM 4303
Popular in Communication Law and Ethics
Popular in Department
This 43 page Study Guide was uploaded by Ailia Owen on Friday February 20, 2015. The Study Guide belongs to COMM 4303 at University of Houston taught by Steven Earl Kirkland in Spring2015. Since its upload, it has received 386 views.
Reviews for Exam 1 Information - COMM4303
Report this Material
What is Karma?
Karma is the currency of StudySoup.
You can buy or earn more Karma at anytime and redeem it for class notes, study guides, flashcards, and more!
Date Created: 02/20/15
CH 1 Sources of Law and Systems of Justice 22015 224 PM FLAG BURNING AND THE FIRST AMENDMENT 0 Acts of symbolic protest are tolerated as long as the act imposes no imminent threat to other people or property 0 Texas V Johnson Burning of the US flag as protest 1984 at Republican Party s presidential convention Considered protected speech symbolic patriotism gives way to free speech 54 vote in favor to Johnson a Congress drafted Flag Protection Act afterwards never passed 0 Only would be valid as a constitutional amendment 0 Summer 2006 29th amendment drafted never passed 0 2010 Florida pastor threatens to burn a Holy Qur an in retaliation for plans to build Islamic center hear Ground Zero SOURCES OF LAW 0 Articles of Confederation failed to create sufficient federal power or revenue to sustain the nation 0 3 branches of Government formed to allow for check and balances between them Executive execution of the law president Legislative Article 1 of Constitution pass laws congress Judicial Article 3 of Constitution court system Supreme court and other lower courts a Judicial Review judiciary is the final interpreter of constitutionality of executive and legislative acts Marbury v Madison 1803 o The Federalist Papers Alexander Hamilton John Jay James Madison 0 Newspaper articles that promoted the new form of government New York 0 Not all citizens found the new system to sufficiently protect human rights Bill of Rights created to ensure the passage of constitution a 1st 10 amendments of the constitution 0 Statutory Acts 0 Statutory law laws enacted into statue by a legislative body legislatures city council countryparish seats of government State national and local level Negotiations forged by compromise Required to pass through committee hearings upanddown votes and on the floor debates u If the bill survives both houses of congress 0 Conference committee presents a final document to the president to sign 0 Executive Veto president denies Overturned with 23 majority vote 0 Hierarchy of Law 0 Constitution Supreme Law of the Landquot Supremacy Clause Federal law is supreme when conflicts arise between state and federal law a Article VI paragraph 2 a Communications Act of 1934 from Article 1 congress controls interstate commerce 0 Electronic communication was federally controlled as interstate commerce radio and other electronic media a FCC Federal Communications Commission regulate day today broadcasting laws only invalidated after legally questioned THE COMMON LAW 0 Common law judgemade law represents precedent set by courts in last decisions broader form of legal authority 0 Stare Decisis let the decision stand 0 Legal precedent 2 views 1 legal rule or authority that is consistently upheld in previous cases over time 0 must follow rulequot if handed down by a higher court in the same jurisdiction 2 advisory function rulings from other jurisdictions when no other case is binding Landmark Ruling case precedent is part of legal tradition until a new case comes along and establishes a new principle 0 Actions in Equity 0 Equity law another form of law not replacing statutes or common law Speak to certain issues Rendered on the basis of the best solution broader judicial power Injunctive Relief stopping someone or some group from pursuing a course of action Counter balances common law in cases where it is not suitable 0 Executive Orders issued by president to direct executive branch on how to execute the law carry force of statutory law with Congressional consent 0 0 School desegregation grant civil rights bar federal funding for abortion Truman classification of federal documents as Top Secretquot to prevent general public from seeing Administrative Agencies regulate business and media interest 0 Draft binding rules enforce the same and deliberate on appeals to agency decisions Senate advises and consents to presidential appointments as to the heads of these agencies Interstate Commerce Commission late 19th century Federal Trade Commission FTC 1914 regulated advertising Federal Communications Commission FCC and Federal Radio Commissions FRC 1934 temporary agencyquot licensing airwaves to radio stations Securities and Exchange Commission SEC and Federal Election Commission FEC enforce rules on financial markets and campaign expenditures more rules drawn up affecting communication enterprise then passed by elected officials on Capitol Hill SYSTEMS OF JUSTICE Criminal Law trespasses against society 0 Actions take by state government body and local state or national level Entitled to a presumption of innocence Punishment follows evidentiary bounds Found guilty or not guiltyquot not innocent cleared or convicted of alleged act Highest Burden of Proof threshold of certainty a party in court must meet to prove a matter in dispute Beyond a Reasonable Doubt high level of certainty facts prove guilt or innocence Clear and convincing evidence medium standard of proof 0 Criminal Procedures 0 Police Citations arrest warrant indictment by grand jury Misdemeanor small crime traffic violations shoplifting n Smaller fines In Less jail time Felonies serious crime murder assault robberies a Big fine a A lot ofjail time n Charged by grand jury indictment judge can accept or reject o Pretrial Phase set bounds for evidence allowed on court record charges 0 O can be dropped for a plea Miranda Warning 1966 Miranda v Arizona cannot be held without charges for longer then 24 hours a Bail financial promise to arrive in court but be free Discovery attorneys gain access to and review evidence from other party Depositions out of court sworn oral testimony transcribed for use at trial Arraignment official charges of the crime are read a Defendant pleads guilty not guilty or nolo contendere no contest Trial Phase Voir Dire jury selection to speak the truthquot a Jury required to produce a fair and impartial verdict n Ifjurors can t 0 Change of Venue case moved to difference location 0 Change of Venire import jurors from another community 0 Continuance trial postponed to a more suitable time n Preemptory Challenge striking of a juror by an attorney with no reason given 1 allowed Opening Statements gt examination of witnesses statements and rebuttals gt Jury Deliberation gt If convicted sentencing phase PostTrial Phase Verdict can be appealed a Reversible Error Error found by appellate court during trial that prejudiced the outcome to warrant reversal only way a conviction can be overturned o Vacated voids previous judgment 0 Remand requires a new trial n Harmless Error Error found that did not prejudice the outcome 0 Civil Law complaints against groups or individuals 0 Not a question of guilt but of liability indication of a lesser measure of fault Who is at fault who should pay for it o Preponderance of Evidence more likely then not to be true 0 Civil Procedures o Tort to distort or breakquot a wrong the interferes with someone s rights 0 Litigants legal rivals plaintiffs file complaint lawsuitpetition against respondentdefendant o Pretrial Phase Lawsuit is filed gt written complaint received gt to be answered in fixed period or lose by default Demurrer Defendant files to challenge legal sufficiency of a charge Summary Judgment attorney asks judge to declare a lawsuit too weak for trial 0 Disco very Phase Witnesses give depositions sign affidavits and answer interrogatories questions pertinent to the case Amicus Curiae friend of the court briefs a American civil Liberties Union files when First Amendment right are involved Judge decides to try dismiss or recommend alternative dispute resolution 0 Trial Phase No unanimous verdict required a 34 or 56 majority 0 Post Trial Phase Actual Damages Compensatory estimate of dollar amount of harm done base on loss of reputation invasion of privacy personal hurt Special Damages recovery for out of pocket losses missing wages extra expenses profit loss Punitive Damages court seeks to punish defendant a Large sums used to send message to publicquot a Capped in certain states a Can be reduces by appeals COURT SYSTEM 0 52 systems 0 1 for each state the nation and DC Judges elected or appointed to jurisdiction location type of cases triedsubject matter 0 Federal Level appointed by President confirmed by Senate Life term serve until die retire or mandatory age Impeachment removal due to serious breaches extreme cases 0 State Level Election or appointment with party affiliation known or concealed varies from state to state Direct election by citizens Governor or Commission appoint judges Trial judges elected Appellate judges appointed After term judges can stand for reelection or governor can make a new appointment 0 Supreme Court Constitutionally vested authority 0 Lower Courts 1789 began establishing still being established 0 94 Federal District Courts allocated according to population size 0 12 Circuit Courts and one for DC 13 total District courts first resort of appeal each serve at least 3 states 0 9th Circuit Court San Francisco largest and most famousquot Elk Grove Unified School District v Endow Ewing v California Locker v Andrade Altering v Vatican Bank 0 Appeals Process 0 Trial Court court of original jurisdiction Record of fact depositions eyewitness testimony items in evidence 0 Appellate Court fuller interpretation look and evidence and how the law was applied to that case Sometimes review facts for dismissed cases or if allegations of lawyer misconduct arises De Novo looking for error in judges findings of fact as well as the law Decision is either upheld or not a Dissented Sent to trial court for remand or remittance n Affirmed losing party can submit to highest court last resort 0 State Supreme Court outlined in State Constitution 0 Lower and Federal courts respect determinant authority 0 Only moves to US Supreme Court if a federal question is involved 0 Discretionary Review will not review case if precedent is not involved 0 US Supreme Court 9 justices with wideranging opinions define and redefine law 0 Court of original jurisdiction in between state matters 0 Granting Certiorari less then 5 of petitions are reviews 0 Writ of Certiorari US Supreme Court issues to review a lower courts decision Denied justices see no relevance of case lower court decision upheld Granted 45 vote needed need to provide guidance to lower courts on particular issues or make a statement about an issue to direct lower courts 0 Tried to avoid decision where shifting social conditions or changes in technology could cause a ruling to become outdatedobsolete 0 Oral Arguments and Opinions 0 Attorneys file written briefs gt Oral arguments presented to panel of judges gt judges may interrupt oral arguments to interview attorneys based on OA or written briefs gt judges remarks are public at this point 0 Conference the portion ofjudge deliberation that is not public First Speaker Chief Justice gt Associate Justices in order of descending seniority First voter Junior Justice gt ascending to Chief Justice Writing assigned senior justice of voting majority n Majority Opinion 5 justices agreed for the same reason a Concurring Opinion majority agrees for different reasons a Plurality Opinion agreement on rational no precedent set Memorandum Order winning party is indicated with no reason given 0 Per Curiam Order decision with opinion but not signed a Dissenting Opinion voters against the majority explain their views CH 1 Lecture Cyber Protest Criminal because 22015 224 PM o Vandalism defacing a public 0 Incites public terror 0 Jester hacked ISIS inviting retaliation o Are foreign entities protected under free speech of US constitution Blackstone source of common law 0 Government does not allow prior restraint 0 Cannot make restraint on free speech but can punish for after affects that free speech may have had on the public National Law 14000 levels of government in US Designed to be inefficient Regulate behavior and predict what we can do 0 If we misbehave there is a predictable pattern on how to react Sourcesin order of reference 0 Constitution Supreme Law Article 1 Legislative Statues El Congress make laws Article 2 Executive El President executive orders 0 Administrative Agencies regulations and Article 3 Judiciary interpret lawenforce Article 4 States government Bill of Rights enumerated powers El El El El El El Assumed that the government cannot do anything not listed in Constitutions 1 Freedom of speech 2 Right to bear arms 3 Quartering of troops government can t forced citizens to support troops 4 Search and seizure 5 Self incrimination Miranda Rights right to be silentquot 6 Speedy trialjury of peerslawyer criminal 7 Trial by jury civil 8 Cruel and Unusual punishment 9 Rights reserved to the people n 10 Rights reserved to the states Regulations Administrative Agencies n FCC SEC FRC 0 Common Law Equity of Law Prior cases set precedent for future outcomes to similar situations a Stare Decisis let the decision standquot Tort a wrong that interferes with someone s right civil wrong a Compensation for negligence Damages 0 Actual measure of the harm o Punitive warning making an example 0 Special dollar amount for loss of out of pocket Criminal and Civil offenses used to overlap Civil Lawsuits Complaint filed with court and respondent notified served 0 No response default 0 Pretrial 0 Discovery Information exchanged evidence claims Subpoenas indirect parties 0 Jury Selection to speak the truthquot 0 Process of elimination not selection Questionnaire that identifies bias involving personal experience 0 Unanimous decision not required different number for each state 0 Burden of Proof Preponderance of evidence more likely then not to be true Criminal Lawsuits Arrested Arraignment o Bail set 0 Plead guilty not guilty no contest 0 Police investigation present evidence 0 Required legally to show any evidence releasing prosecuted of crimes 0 Trial 0 Requires unanimous jury o Burden of Proof Beyond a reasonable doubt evidence factually proves guilt Marbury V Madison Supreme Court original jurisdiction 0 Public ambassadors o Disputes between states 0 Appeals Filed to Supreme Court because it is a Congressional Statue to file Writ of Mandamus to Supreme Court at the time Doctrine of Judicial Review Supreme Court gets to review statues made by Congress 0 Supreme Court declared that they get to interpret the law Basically telling Congress that the Judicial branch cannot be given more power Supreme Court acknowledged that Marbury should have been awarded remedy but they did not and should not have the power to do so First time Supreme Court spoke with one voice CH 1 Case Briefs 22015 224 PM Texas V Johnson 0 Facts 0 Gregory Lee Johnson was protesting during the Republican National Convention in 1984 Protesting the Republican War Chestquot involving contributions of certain Dallas based corporations the he believed posed a threat the nuclear war 0 American flag given to him by fellow protestor gt covered it with kerosene gt lit it on fire gt shouting America the Red the White and the Blue we spit on youquot Johnson was the only person charged with the crime Sentenced to 1 year in prison and fined 2000 Appealed the verdict gt conviction upheld by the Court of Appeals for the Fifth District of Texas 0 Last resort court Texas Court of appeals reversed the conviction Stating the State could not punish him for burning the flag under the First Amendment a Texas can not preserve the flag as a symbol of nation unity while suppressing free speech O O O O 0 Issue 0 Does the government have the right to ban flag burning to honor symbols or prevent disruption of peace or do laws of that nature violate the First Amendment 0 Decision 0 Affirmed 54 decision US Supreme Court upheld lower court s ruling gt flag burning expressive conduct 0 Justice Brennan majority opinion Justice Kennedy concurred 0 Justice Rehnquist principle dissent 0 Justice Stevens dissented separately Explanation o The record failed to show indication of disturbance of peace or violence that day 0 Suppressing symbolic protest violates first amendment 0 Rule of Law 0 Flagburning law in Texas was struck down Marbury V Madison 0 Facts President John Adams on his last day of presidency named 42 justices of the peace and 16 new circuit court justices for the District of Columbia Organic Act Organic Act a federalist attempt to take control of federal judiciary before Thomas Jefferson took office Commissions signed by Adams and sealed by Secretary of the State John Marshall later became Chief Justice of the Supreme Court and author of this opinion gt documents not delivered before the expiration of Adams Presidency Jefferson refused to honor the commissions gt claimed them to be invalid as they were not delivered before the expiration of Adams term William Marbury intended recipient of appointment as justice of the peace Applied directly to the US Supreme Court for a writ of mandamus to force James Madison Jefferson s Secretary of State to deliver commissions Judiciary Act of 1789 grants Supreme Court original jurisdiction writs of mandamus to any courts appointed or persons holding office under the authority of the United Statesquot Issues 0 Is Marbury entitled to commission Does the law grand Marbury remedy Does the Supreme Court have the right to review cases and dub them unconstitutional Can congress expand Supreme Court jurisdiction beyond Article 3 of Constitution Does the Supreme Court have original jurisdiction in writ of mandamus Holding and Ruling 0 Yes Marbury has the right to commission the granting of permission was effective when President Adams signed the paper Yes the law grants remedy Any instant in which a person is considered injured Yes the Supreme Court has the authority to review acts and declare them unconstitutional No Congress cannot expand the scope of the supreme Court if otherwise it would invalidate the foundation of the constitution No Supreme Court does not have original jurisdiction in writ of mandamus must be in accordance with exercising appellate jurisdiction Decision Explanation 0 Although the supreme court agreed that Marbury should be granted permission they recognized the fact as per constitution they did not have jurisdiction to give it to him Writ of mandamus denied Marbury denied commission Historical establishment ofjudicial review First time the Supreme Court spoke with one voice Unites States V Alvarez 2005 0 Facts 0 Alvarez gave press conference for the District Board 0 Xaivier Alvarez was convicted for lying about being awarded the Congressional Medal of Honor 3 years probation gt 412 hours of community service gt 5000 fine gt 100 assessment fee 0 3 judge panel on Ninth Circuit Court of Appeals 21 overturned the conviction 0 Issue 0 Does the First Amendment protect lies about receiving military awards 0 Decision 0 Affirmed 36 June 28 2012 US Supreme Court struck down a federal law Stolen Valor Act as unconstitutional that criminalizes lying about being decorated with military award or medals with enhanced penalty for lying about Congressional Medal of Honor Explanation o strict scrutinyquot standard ofjudicial review was excised gt Stolen Valor Act was written so broadly that it infringed on free speech in the First Amendment gt did more harm then good 13 years imprisonment Concurring 0 Justice Kennedy Stolen valor Act seeks to prevent speech based on content Exceptions to the First Amendment a False statements a Obscenities n Deformation n Incitementfighting wordsthreats Upheld because his statement didn t harm anyone and didn t benefit him really 0 Justice Breyer and Justice Kagan intermediate not strict scrutiny was appropriate 0 Dissenting 0 Justice Alito and Justice Scalie and Thomas focused on the real harm involved with the Stolen Valor Act lying to benefit financially and to receive governmental benefits Dignity of service Demeans morale 0 Rule of Law 0 Stolen Valor Act struck down as unconstitutional because of its vagueness Susan B Anthony List V Driehaus Facts 0 Prior to 2010 general election SBA List non profit prolife organization announced the intention to put up a billboard in the district of then current Congressman Steven Driehaus o Billboard would assert the Dreirhaus support for the Affordable Care Act vote in favor of taxpayerfunded abortion 0 Threats of legal action by Driehaus council the company owning the billboard space refused to put up the ad 0 Driehaus filed a complaint to the Ohio Elections Commission stating that SBA List violated Ohio s campaign laws for false statements of his voting record 0 SBA List filed action in federal district court Ohio statues infringed free speech 0 Result 0 90 Unanimous court upheld that CH 2 textbook 22015 224 PM DRAWING THE LINE Most Americans support limiting free expression in areas where ti would Endanger national security Unfairly damage the reputation of individuals 0 Corrupt children 0 First Amendment 5 freedoms 0 Speech 0 Press 0 Assembly 0 Religion 0 Petition WWI sought to limit free expression pamphlets opposing leadersdemocracy Espionage Act 1917 o Sedition Act 1918 1921 struck as unconstitutional The Progressive 1979 tried to publish a how toquot piece on nuclear weapons US Justice Department stopped publication FREE EXPRESSION VERSUS FEAR 0 French revolution had US scared of similar actions taking place in America 0 Alien and Sedition Act of 1798 Expired in 1801 1964 Supreme Court ruled it as unconstitutional THE VALUE OF FREE EXPRESSION Thomas Emerson 4 values in American desire to protect free expression found in philosophical arguments sociological data and court decisions 0 Free expression 0 Aids in discovery of truth 0 Is necessary for democratic governance 0 Helps promote a stable society 0 Assures individual self fulfillment All important if one is regarded more then another there would be less speech protected Discovery of Truth assuming people want to know what is true rather then what may be wrong it is necessary for people to express their thoughts opinions ideas and theo es If the only things people hear come from people in authority gt opinions will only support existing authority Abrams v US 1919 Justice Oliver Wendell Holmes dissenting opinion introduced 0 Marketplace of Ideas justification of free expression that holds that the best way to find truth is to allow conflicting ideas to compete Areopagitica 1644 poet John Milton In a free and open encounterquot truth will win over all thought people will choose what is best Democracy elective government in which citizens elect leaders 0 Effective in free flow of information 0 Alexander Meiklejohn main reason for protecting free speech in society was the key in support of representative government 0 Political speech core of first amendmentquot most protected 0 All speech is potentially political Commercial speech profit motivated advertising more subjected to regulation and restrictions Bahnzaff v FCC were cigarette commercials raising controversy about smoking 0 Friends of the Earth v FCC are ads for gas guzzling cars political commentary on environmental issues 0 Cohen v California April 26 1968 Los Angeles Court House 0 Cohen wearing jacket stating fuck the draftquot protesting the draft and American involvement in Vietnam 0 Found to be disturbing the peace by offensive conductquot 0 US Supreme Court found his speech to be protected Related to political issues Justice John Harlan II one of the prerogatives of American citizenship is the right to criticize public men and measures and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderationquot Stability of Society allowing for dissent helps reduce potential problems 0 Restriction of free expression causes pentup frustration to build and potentially lead to large rebellion 0 Boiling pot metaphor allowing controlled dissent allows those in power to maintain status quo without doing anything 0 Right to protest highly valued can bring about change in society 0 Boos v Barry court struck down law preventing picketing 500 feet from a foreign embassy 0 Law put in place to protect foreign officials from embarrassment and security threats Court asserted that security could be established in a way that did not stifle free expression 0 Hill v Colorado Court upheld law preventing protest within 100 feet of health facilities 0 Clear and present danger test speech presenting a clear and present danger is outside 1St amendment protection 0 First articulated in Schneck v US Terminillo v Chicago government is allowed to restrict speech on individual effectiveness Effective speakers can cause public disruption Self Fulfillment free expression is a basic human right intrinsic and extrinsic value 0 Opinions on free expression change with political climate sense of security 0 First Amendment Center annual survey 0 911 citizens showed a lower level of support for 1st amendment rights FIRST AMENDMENT RESTRICTS GOVERNMENT ACTION Congress government shall make no lawquot 0 Meaning of congress originally included federal government 0 14th amendment congress now includes state and local governing bodies 0 All branches judicial legislative and executive Includes all government funded facilities public schools universities 0 Private schools not included no state action involved Words a Speech 1St amendment protects expression not action 0 Speech mixed with illegal activity harassment blackmail perjury punished as crimes 0 Symbolic speech no words spoken actions have meanings 0 Buckley v Valeo Congress attempting to make campaign finance laws Supreme Court upheld some rules and found others unconstitutional 0 Federal Election Campaign Act of 1971 Limited amount individuals could contribute to presidential candidates upheld to prevent improper influence and amount individuals could spend on their own campaigns struck Speaker Rights versus Listener Rights 0 Often mutually beneficial Captive audience a situation in which a listener is unable to avoid subjection to offensive expression 0 Peoples right to not be subjective to offensive content outweigh speakers rights Kunz v NY 1951 street preachers take advantage of what is in a sense a captive audiencequot 0 Lee v Wisemen US supreme court prohibited invocations at official graduation ceremonies for public secondary schools because audience in attendance and students are a captive audience 0 Rowan v USPS USSC upheld law allowing individuals to block mail they find offensive requiring senders to remove them from future mailings a mans home is a castle not even a king may enterquot The Climate of Free Expression most to least protected 0 Speaker 0 Adults 0 Government employees 0 912 students 0 68 students 0 K5 students Venue 0 Public parks Streets Public campus Military bases Businesses 0 Others homes 0 Subject 0 Politics 0 Artscience 0 Commercial 0 Indecent o Obscenity SpeechAction OOOO REVIEWING THE FIRST AMENDMENT Who is Congress government or anyone acting under the authority of the government 0 14th amendment all states The meaning of no lawquot more then just legislation 0 Incorporating other government actions such as enforcing 0 Sometimes a law is constitutional but the way it is enforced is not Bartnicki v Vopper 1993 calls were intercepted between Bartnicki and the president of a local teachers union in Pennsylvania 0 Calls were intercepted by a 3rd party and distributed 0 Radio host played recordings on air o Bartnicki filed lawsuit claiming violations of Omnibus Crime Control and Safe Streets Act of 1968 wiretapping and electronic surveillance 0 USSC refused to hold Vopper accountable Abridging Freedom to diminish or reduce in scope Law discouraging free expression without explicitly restricting it Chilling effect a criticism on vague restrictions of speech which may cause speakers to restrict themselves from saying certain things for fear that they might be punished when their speech would be constitutional Reno v ACLU 1997 0 Communications Decency Act 1996 attempt to regulate internet content to prevent minors from obscene material Ruled unconstitutional for its vagueness NYT v Sullivan landmark libel case in which chilling effect was used as a reason by USSC unanimous that an Alabama libel law couldn t hold the NYT responsible for libeling a public official without proving that the paper acted with a knowledge of falsity or disregard for the truth 0 1964 prohibit punishment of criticism of government officials even when proven later to be false breathing roomquot 0 Errors must be allowed so long as they are not intentional 0 Chilling effect if publications were held accountable for a single mistake they would be overly cautious in what they publish Compelling Speech West Virginia Board of Education v Barnette cannot compel someone to speak that does not want to Board of Regents v Southworth university fees are legal so long as they are distributed in a neutralviewpoint manner Keller v State Bar of California Bar cannot require members to pay dues to financially support speech they did not agree with Johanns v Livestock Marketing 0 Beef promotion and Research Act of 1985 required cattle farmers to pay 1 per head on the saleimport of cattle and money would be put toward promotion of beef 0 Livestock Marketing Association argued that cattle farmers were compelled to subsidize speech 0 Citizens have no First Amendment right not to fund government speech Speech and Press legal language is filled with redundancies speech and press are 2 manifestations of the same concept FTC cease and desistquot redundant to get the point across Right of Assembly interest of public interest groups staging parades protests and rallies in public places 0 NAACP v Alabama 1951 ruled unconstitutional that Alabama s government tried to force the NAACP to produce a members list 0 Could cause membership rates to lower Could lead to hard of members given the viewpoints of individuals of that time Petition for Redress people can sue government in order to recover from the loss of civil liberties 0 Does not guarantee satisfaction with the results Promised public officials shall grant some access to people they govern who have an issue ensures a form of public dialogue 0 Names on a petition are gathered to bring about change in schools governments and even taxes Nonviolent means of motivating our government into action CH 2 Lecture 22015 224 PM First Amendment 0 AssemblyAssociation protest meetings 0 NAACP v Alabama 1951 Government can not force associations to provide a membership list KKK danger at the time and making this information public could potentially put them in danger Chilling effect membership would decrease because people would be unwilling to join if they knew it would be public information 0 Boy Scouts of America v Dale BSA no gay leadership NJ Statute can t discriminate based on sex age sexual orientation The Boy Scouts right to free expression of their values and what message they want their association to convey have precedent over Dales right to association I Because the BSA is a private institution not federally funded Religion shall make no law to promote establish or prohibit free exercise constantly in balance with each other 0 Britain Anglican state church 0 Colonies Puritan state church 0 Establishment Clause to make sure that there is no official state or national church not the same as promotion 0 Free Exercise right to believe in what you want and express that 0 Conflict Elected officials enacting law that supports their beliefs I Abortion gay marriage Politically correct holidays a Holiday tree v Christmas tree 0 Speech 0 Petition right to approach the government and ask them to do something 0 More compelling when signatures of many people are presented that support petitioner Press Why is the First Amendment so important 0 Truth 0 Democracy 0 Stability 0 Self fulfillment What is not protected under First Amendment only in situations when harm is induced or results 0 Obscenity fairly old and outdated 0 False statementsfraud Deformation Incitementfighting wordsthreats Cohen v California political speech trumps obscenity Have to look at context of a situation history matters 0 Obscenity 0 19405 big deal 0 2015 no one cares CH 2 Case Briefs 22015 224 PM Cohen v California 0 Facts 0 April 26 1968 Los Angeles County Courthouse 0 Paul Cohen walked into the courthouse with a jacket that said Fuck the draftquot to show his opposition to the US Selective Services and American involvement in the Vietnam War 0 California State Trial Court Cohen was convicted of being in violation of California Penal Code 415 which prohibits maliciously and willfully disturbing the peace or quiet of any neighborhood or personbyoffensive conductquot sentenced to 30 days in jail 0 California State Appellate Court Upheld Cohen s conviction Question 0 Can a state constitutionally prevent the use of certain words on the grounds that the use of such words constitutes offensive conductquot 0 Decision 0 June 7 1971 54 vote overturned Cohen s conviction Explanation o Majority opinion Justice Harlan the writing although provocative was not directed toward anyone the reader There was no evidence that people in substantial number would be provoked into some kind of physical action by the words on his jacket 0 Dissenting opinion Justice Blackmun 0 Rule of Law o The California law was upheld remaining constitutional just not as applied in this case His actions fell under political speech democracy Rowan v USPS listener s rights upheld over speakers 0 Facts 0 Title III of the Postal Revenue and Federal Salary Act of 1967 allowed persons who felt advertisement mailed to them were erotically arousing or sexually provocativequot to instruct the Postal Office to order senders to remove their names and addressed from their list to stop future mailings o 14 petitioners as well as Rowan operator of the American Books Service sought to appeal the law as unconstitutional o 3 judge Federal District Court decided the law constitutional Question 0 Is the Anti Pandering Act unconstitutional 0 Decision 0 Unanimous vote upholding Federal District Court s decision Explanation o Statue allows the addressee unreviewable discretion to decide whether he wishes to receive further mail from a particular sender 0 Vendor does not have a constitutional right to send unwanted material into someone s home captive audience and mailer s right to communicate must stop at the mailbox of unresponsive addressee 0 Due Process Clause allows for an administrative hearing should the sender violate the Postmaster General s prohibitory order 0 Statue does not violate due process by requiring addressee from list nor is the statue unconstitutionally vague The sender knows what to do in the event of a prohibitory order 0 Majority Opinion Justice burger a man s home is his castle into which not even a king may enterquot we are often captives outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywherequot 0 Rule of Law 0 Law upheld as constitutional people have the right not to be captives in their own homes and place restrictions on the content that is allowed Reno v ACLU Facts 0 Communications Decency Act of 1996 passed provisions which prohibited the posting of vulgar material onto the internet that a minor has access to Criminalized the display of indecent or patently offensivequot online communication 0 The American Civil Liberties Union challenged the constitutionality of the provisions contending that they violate First Amendment free speech rights 0 District Court found the provisions unconstitutional Question 0 Are the CDA statutory provisions constitutional 0 Decision 0 72 ruling found the provisions to be in violation of the first amendment Explanation the law was too vague 0 CDA fails to provide a definition of indecent and omits any requirements that the patently offensive materialquot lack literacy artistic political or scientific value 0 CDA is a contentbased blanket restriction on speech and cannot be properly examined as a form of time place and manner restriction 0 Chilling effect would cause adults to inhibit their own free speech right so as to comply with the CDA Adults should not be fearful of free expression 0 Rule of Law 0 CDA provisions were struck down as unconstitutional the law was too vague and would produce chilling effect on internet content West Virginia State Board of Education v Barnette cannot compel speech just as you cant abridge it 0 Facts 0 Barnette a Jehovah s witness refused to recite the Pledge of Allegiance during school 0 West Virginia Board of Education 1942 enacted a rule that forced teachers and pupil to pledge allegiance to the nation s flag each day Refusal would result in expulsion until conformity o Barnette asked to be excuse from the rule as the pledge goes against religious beliefs of Jehovah s Witnesses o Barnette was expelled from school and charged with delinquency unlawful absence 0 District Court decided in favor of Barnette 0 Board of Education appealed to US Supreme Court Question 0 Does the rule compelling a pledge violate the First Amendment of the Constitution 0 Decision 0 63 vote reinforcing District Courts ruling Finding the School Boards rule unconstitutional on the grounds of religion as well as free speech Explanation 0 Failure to recite the pledge does not infringe on others free speech 0 Constitution encourages diversity of thought and belief 0 State has no right to mandate allegiance to encourage patriotism 0 Rule of Law 0 West Virginia Board of Educations rule was found unconstitutional Free speech is upheld in situations in which a person chooses not to speak Being made to speak when one wished to remain silent abridges free speech 0 Barnette sued from a religious standpoint but US Supreme Court viewed it from a free speech stance NAACP v Alabama National Association for the Advancement of Colored People 0 Facts 0 Alabama tried to require the NAACP to give then a list of all of its members based on the state s foreign registration law ultimately made in an attempt to get them out of Alabama 0 KKK was a clear and present danger to African Americans at the time and knowledge of membership would potentially put them in harms way Boy Scouts v Dale 0 Facts 0 Dale an Eagle Scout in New Jersey had his membership was revoked when the Association found out he was homosexual 0 Dale sued first New Jersey Court agreed 0 BSA appealed Question Can organizations be forced to allow people admission when their activities and beliefs go against the organizations core values 0 Decision 0 Court reversed the decision on the grounds that the Association may restrict membership in order to maintain its values CH 3 textbook 22015 224 PM THE UMBRELLA OF FREE EXPRESSION Snyder v Phelps 2011 Reverend Fred Phelps and other church members are symbols of religious protest a funerals for American soldiers killed in action in Iraq and Afghanistan Trial court in Virginia awarded millions in damages to Albert Snyder father of Lt Corporal Matthew Snyder killed 2006 Sued the Phelps family for infliction of emotional stress invasion of privacy and civil conspiracy after the Congregation of Westboro Baptist Church stood in protest outside his sons funeral in Westminster Maryland and referred to his son s death on their website 4th Circuit Court of Appeals dismissed the damages Up to USSC with amicus curiae from political leaders from both parties 81 picketing at funerals is protected free expression THE ORIGIN OF FORUMS 2 landmark cases Davis v Commonwealth New England Evangelist arrested fro preaching gospel in Boston park preaching without a permit 1897 lost his appeal when USSC accepted a theory of government authority comparing state control over a public forum to a private homeowner This rationale survived until 19305 Jamison v Texas Hague v Committee for Industrial Organizations Jersey City New Jersey CIO came into conflict with the city s chief commissioner during Great Depression Mayor Frank Hague boss ruled with a tight grip for 30 years CIO organizers began stopping passersby in Jersey city parks and announcing the new rights granted to them under the National Relations Labor Act 1935 mayor took offense Court identified public areas as the proper place for assembly communicating thought between citizens and discussing public questionsquot Traditional Public Forum Refers to the public property that is open for expression and assembly streets sidewalks and parks Strong 1St amendment protection STUDENT EXPRESSION LESSONS public property does not mean it is a traditional forum State owned universities contain similar spaces that serve both as traditional public forums and nonpublic forums A space that is traditionally treated as a public forum or resembles a public forum is likely to be protected History Matters before you could say whether a certain thing could be done in a certain place you would have to know the history of that particular placequot Justice Harry Blackman Who is using it and who is sponsoring the communication that controls the issue Speaker s Impact Matters Tinker v Des Moines 0 Justice Abe Fortas it can hardly be argued that either students or v teachers shed their constitutional right of free expression or speech at the schoolhouse gatesquot 0 Justice Hugo Black dissenting students in school were not entitled to defy school rules under the guise of free expression Symbolic Speech Actions or symbols that convey a message protected unless there is material substantial disruption that would stop the educational process 0 Teacher has the power to stop a student from talking Balance with the need for affirming the comprehensive authority of the states and of school officials consistent with fundamental constitutionalsafeguards to prescribe and control conduct in schoolquot Disruption Test the fear of a possible disturbance is not enough to warrant suppressing the free speech rights of the students The Tinker test Schools cannot restrict symbolic speech unless it causes a substantial material disruption The desire of school officials to avoid the unpleasantness of an unpopular controversial view is not enough Bethel School District v Fraser Matthew Fraser speaking for Jeff Kuhlman running for StuCo VP Speech contained many sexual innuendos that caused audience members captive audience to react wildly 0 Not protected because it did cause a disruption Speaking Mediums Matter Hazelwood School District v Kuhlmeier school newspapers are not protected because they are a representation of the school and historically involved administrator oversight to edit unfit content 0 School newspaper in this case was also treated as an extension of the classroom for a grade and a teacher oversaw Who Owns the Content Kincaid v Gibson Kentucky State University students were not given their yearbooks because a school administrator did not like the layout color and lack of photographic captions Students sued as unfairly seizing propertyquot that rightfully belonged to the students 0 USSC voted in favor of students Shopping Malls although privately owned are public forums except for California it is in their constitution Freedom of Expression for Employees government employees free expression is more limited then public employees Disruption in the Workplace employees can be fired for speaking out and causing disruption against work related issues disrupting harmony in the workplace not for speaking about things not related to work 0 Connick v Meyers o A government employee that speaks out as a part of his job does not have full First Amendment protection LEVELS OF SCRUTINY all requirements have to be met in order to pass 0 Strict scrutiny Highest standard contentbased restrictions Has to 0 Serve a compelling government interest 0 Be narrowly tailored to achieving goals 0 Use the least restrictive means 0 Intermediate scrutiny 0 Content neutral 0 Important government interest 0 Narrowly tailored o Adequate alternative channels THE OPEN FORUM TEST time place and mannerquot 0 Limited public forum a forum that has traditionally only been open to public expression and assembly for specific limited purposes Nonpublic forum a forum that has traditionally not been open for public expression and assembly Inflicting Harms expressive acts can and do cause personal harm emotional distress and liable parties can be forced to pay damages DANGEROUS SPEECH Chaplinsky v New Hampshire landmark for fighting wordsquot speech by which its utterance inflicts injury or intends to incite an immediate breach of the peace o 1942 Walter Chaplinsky called a city marshal a goddamned fascistquot at a time when those words would provoke a reaction 0 USSC upheld conviction a personal facetoface encounter verbal assault must be constrained if threatening Fighting words doctrine evolved to curb fighting words that would tend to incite an imminent threat to violence CH 3 lecture 22015 224 PM No licenses for same sex 0 US district said it was unconstitutional Appealed to 11th circuit 0 Supreme court said it was 0 Alabama judge defied supreme court ruling 0 14th and 15th amendment marriageliberty 0 without due process Obama war powers authorization request against ISIS 0 Congress has ability to declare war not president 0 Strategy war bomb everyone Citizens united v FEC federal election commission 0 Statute in question Corporations not allowed to contribute to politics 0 Corporations could buy politicians into doing things in favor of the corporations enacting laws governmental leniency o Spending stockholders money 0 Corporations are only interested in making money Types of speech 0 Symbolic 0 Writing SHence 0 Speaking Public forum 0 Any area that has traditionally been used as a public forum 0 History of allowance of free speech 0 Resembles public forum sidewalk street Testing of government rule 0 Strict scrutiny o Compelling government interest 0 Narrowly tailored 0 Least restrictive means 0 Intermediate scrutiny important government interest substantially related 0 Government interest 0 Content neutralunrelated to speech o Narrowly tailored o Adequate alternative channels 0 Rational basis test rationally related to a government interest Bong hits for Jesus at Olympic torch relay 0 Guy gets expelled from school 3 days for a sign he displayed off of campus 0 Justified o Representing the school government interest 0 Promoting illegal activity falls out side of protected speech CH 3 case briefs 22015 224 PM Tinker v Des Moines 393 US 593 1969 Facts symbolic speech 0 1965 2 high school student John Tinker Christopher Eckhart middle school student Mary Beth Tinker 0 Wanted to wear arm bands in protest of Vietnam war 0 School didn t want that so they enacted a dress code prohibiting arm bands 0 Wore arm bands to school and were suspended until they didn t wear them Supreme courts ruling over turned schools policy on student 72 0 Protest allowed unless it presented a disruption to school education for other students 0 Tinker test statute that formed from this case Fear of disruption is not grounds for restricting speech school board was worried about disruption rather then an actual disruption occurred chilling effect 0 Prior restraint preventing an action before it happens 0 Don t shed rights when you enter school unless disruptive 0 Justice Hugo Black students are there to learn not to teachquot Hazewood School District v Kumeier 484 US 290 1988 School news paper end of year submitted to principle for review May 13 1985 o 2 articles experiences with pregnancy divorced parents 0 Principle cut those articled out because Concerned that pregnant students privacy violation And the fact that divorced parents could not defend themselves and people were only seeing one side School new was not a public forum Paper was viewed as an extension of the class room for credit overseen by teacher Grayned v City of Rockford 408 US 104 1972 0 African American student picketing during school hours created disturbance to class rooms were visible from class windows with loud noises Violated school noise ordinances and disturbance of the peace picketing Protesting racial inequality in the school regarding hiring of teachers counselors all white 0 Would not have had as big of an effect had it not been on school grounds place protest occurred held symbolic meaning 0 Time place and mannerquot 0 Compatible use doctrine Allows restriction of speech when the manner of expression is basically incompatible with the normal activity of a particular place at a particular time o Strict scrutiny Compelling government interest protecting educational environment Narrowly tailored Least restrictive means 0 Decision 0 Upheld noise ordinance o Struck down picketing language discriminated against particular viewpoints was not viewpoint neutral and was over broad didn t specify time Waters v Churchill 511 US 661 1964 0 Nurse complains about training policies put in place by her department managerial policies publicly owned 0 Fired on the grounds of insubordination not following orders 0 acting out of spite criticisms disrupting the harmony of the hospital United States v OBrien 391 US 367 1968 David Paul O Brien 1966 Burned draft card on the steps of a court 0 Draft card is government record violating federal statue no altering of draft card 0 Different means of protest 0 Intermediate scrutiny Government interest a way to prove you aren t clogging the draft officials could ask men for their card at anytime Content neutralunrelated to speech Narrowly tailored Adequate alternative channels Watchtower Bibe amp Tract Society of NY v Village of Stratton 536 US 150 2002 people allowed to come to your front door considered public forum noise ordinance allowed satisfies strict scrutiny test Chapinsky v New Hampshire 315 US 568 1942 Chaplinsky v New Hampshire landmark for fighting wordsquot speech by which its utterance inflicts injury or intends to incite an immediate breach of the peace 0 1942 Walter Chaplinsky called a city marshal a racketeer and a goddamned fascistquot at a time when those words would provoke a reaction 0 USSC upheld conviction a personal facetoface encounter verbal assault must be constrained if threatening Fighting words doctrine evolved to curb fighting words that would tend to incite an imminent threat to violence RAV v St Paul 505 US 377 1992 o Teenager burnt a cross on some ones lawn 0 Message threat of murder don t like colored people fuck you 0 Considered fighting words 0 USSC considered hate speech involving motives o Violated a city bias ordinance hate speech banning speech negatively related to race religion gender Cant be singled out for punishment 0 Said he had alternative channels dangerous to public safety 0 Violated private property trespass CH 4 textbook 22015 224 PM CRACKDOWN ON DISSENT Sedition common law crime of advocating and intending to bring about harm to the government 0 Treason the crime of betraying your sovereign nation In US it is levying war against the US or giving aid and comfort to its enemies 0 Censorship an act of government to prevent expressions of speech or publications which may be considered objectionable or harmful to some group of people 0 Reasoning shifts depending on who has the power to exercise control over communications THE AMERICAN EXPERIENCE 0 Prior restraint a form of censorship in which the government in advance of publication orders a publisher not to publish a certain material 0 Bill ignoramus no bill when a grand jury does not find enough evidence to charge a crime ALIEN AND SEDITION ACTS OF 1798 3 laws 0 Gave president extraordinary powers to detain and deport noncitizen residents of the US Adams 0 Forbade false scandalous and malicious publication against Adams the Congress and national government 0 14 prosecutions under this law 0 expired in 1801 0 Jefferson pardoned all persons convicted under it and congress repaid most of the fines SEDITION DURING TIMES OF WAR 0 1836 Congress adopted restraining rules to stop antislavery proposals from reaching the floor repealed 8 years later 0 14th Amendment resulted from these acts federalized 1St amendment for the nation ESPIONAGE AND SEDITION CASES Espionage Act of 1917 after WWI President Wilson stop spies from undermining the nation s aims through sabotageby uncovering military secrets 0 When the US is at warquot whoever shall willfully obstructattempt to stop the recruiting or enlistment service of the US with language intended to incite provoke or encourage resistance to the USquot should be punished by a fine of up to 10000 and prison for up to 20 years Sedition Act 1918 amendment to Espionage Act made it a crime through oral or written means for one to attempt to cause contempt and scorn for the US government 2000 people to trial gt 900 convictions Post office censored thousands of newspapers books and pamphlets The Schenck Case Schenck v US 1St 20th century landmark decision concerning sedition during WWI Charles T Schenck general secretary of the American Socialist Party in Philadelphia printed 15000 leaflets that decried US involvement in WWI handing them out to men of draft age questioning their participation in what that party considered to be ruthless and designed to fatten Wall Street pursesquot Assert your Rights Do not submit to intimidationquot He was arrested tried and convicted of obstructing the war effort 1919 USSC unanimous decision Justice Oliver Wendell Holmes the words create a clear and present danger that they will bring about substantive evils Congress has the right to suppressquot Abrams v US bad tendency President Wilson dispatched military to the Russian front Concerned Jacob Abrams and friends secretly printed out flyers they hoped would keep the Americanmade bullets from striking fellow Russians English and Yiddish Headline The hypocrisy of the US and alliesquot Found guilty of violating Espionage Act of 1917 Legal rule guiding court bad tendencyquot convicted protestors who opposed the war effort regardless of the real threat posed Justice Holmes and Brandies dissenting opinion sill leafletquot posed no real threat to American efforts failed to present a clear and present dangerquot BAD TENDENCY OR CLEAR AND PRESENT DANGER Criminal Syndicalism violent insurrection and antigovernment protests Bad Tendency test a standard which allows the government to criminalize speech if it has a bad tendency to contribute to the collapse of the government contrasts with clear and present danger test Clear and Present Danger test a standard applied by courts that allows government to criminalize speech only if it presents a clear and present danger THE SMITH ACT US law targeting sedition proposed by Virginia congressman Rep Howard W Smith called for alien registration of noncitizen adults in US 0 Made it a crime for any foreign citizen of America to teach or advocate destroying any government in the US by force or violencequot and would criminalize joining any group that had that insurrection in mind 0 Roosevelt approves 1940 ferreted out dissidents Yates v US pamphlets 0 Death of Joseph Stalin end of Korean conflict and censure of anticommunist Sen Joseph McCarthy USSC revisited Smith act during this case 0 Question could the law be used against Oleta Yates California heiress and 13 other Communists for advocating the future overthrow of the US as an abstract idea rather then an imminent threat 0 Majority rule teaching an ideal was not the equivalent to planning its implementation deserving protection 0 Smith Act was not struck down removed its sting Brandenburg v Ohio 1967 clear and present danger Clarence Brandenburg Klansman was tried under Ohio s criminal syndicalism law for advocating revengence against US politicians and judges for their civil rights activities on behalf of AfricanAmerican citizens televised while rallying with fellow white supremacist 0 Clear danger test applied government would only penalize direct incitement to imminent lawless action invalidated state sedition laws THEORIES OF PRIOR RESTRAINT prior restraint in the form of taxation licensing or the actual seizing of machinery for publication 0 Prior restraint means Government oversight in a systematic manner not singling out individuals Empowers by means of government appointed 3rdparty gatekeepers who can replace communicator s discretion with personal tastes Doing their work before the communication reaches the public not during or after Near v Minnesota 1931 political nuisance 0 Saturday Press northern scandal sheet 0 Jay M Near and partner Howard Guilford former mayoral candidate were twin editorial forces roiling in the political powers of Minneapolis and St Paul in the roaring 205 0 Once deemed a nuisance the courts could issue and injunction After losing in Minnesota s legal system Near alone appealed to USSC Incorporation Doctrine neither the US constitution nor its amendments apply to the states as a whole However once specified by the 14th amendment by the court they become applicable to states through 14th amendments limitation on government action Struck down Minnesota s Public Nuisance law of 1925 because the law punished the press prior to publication 54 decision prior restraint involves some visible danger A Taxing Question laws used to be in place that unfairly taxed publishers in order to tighten controls of publications and to discourage papers from publishing controversial articles PRIOR RESTRAINT BY INJUNCTION Injunction a form of equitable remedy which requires a party to refrain from doing things specified in the injunction Pentagon Papers case New York Times v US 1971 Dr Daniel Ellsburg anticommunist and Harvard trained economist was convinced the American war effort in Southeast Asia was futile and felt the public should be alerted o Leaked the Pentagon Papersquot 47volume Defense Department study of the historic evolution of Vietnam involvement History of the US DecisionMaking Process on Vietnam Policyquot to the New York Times and Washington post Times reporter Neil Sheehan reviewed papers and released the papers in segments First headline Vietnam Archive Pentagon Study Traces 3 Decades of Growing US Involvementquot 0 Within 2 day US Attorney General John Mitchell telegrammed Times to cease printing because of the harm it posed to our military presence Times refused and Department of Justice found a federal judge Murray I Griffin on his first day to issue a temporary restraining order TRO Washington Post published its portion of the report US attorney general secured an injunction against them The Times and Post appealed to USSC 63 decision per curium order without a majority in favor of the publishers Times finished publication and won a Pulitzer Prize for public service The government failed to prove publication would pose direct immediate and irreparable harmquot to the people Banning the Bomb o 1979 the progressive in violation of the Atomic Energy Act was prosecuted for wanting to publish a how to article for an Hbomb Prosecutor justified prior restraint as an immediate direct and irreparable harm to the interests of the US Went to press anyways 0 need to knowquot basis Free Speech for Spies 1969 former CIA agent tried to publish a memoire that would divulge top secret information 0 Was ruled that he did not have protected speech because he signed a confidentiality contract upon employment RESTRAINT INT THE AGE OF TERRORISM 0 USA Patriot Act Uniting and strengthening America power by providing appropriate tools required to intercept and obstruct terrorism 2001 o sneakandpeekquot secret searches were allowed Hezbollah TV owner of a network station was convicted for laundering money for a terrorist group Coffin Coverage US Defense Department prohibited the recording of flag covered coffins at Dover Air Force Base claimed invasion of privacy on the presumption that dead bodies were identifiable 0 News media was not allowed to convey scenes of the wars death toll ARGUMENTS FOR FREE EXPRESSION John Locke Life health liberty or possessionsquot are inalienable rights 0 Social Contract Du contrata social a concept in political philosophy first proposed by Jean Jacques Rousseau which justifies the power of the sovereign ruler by the existence of a social contract between free subjects who voluntarily and mutually submit to sovereign authority for the good of all 0 Keep in mind the greater good of society in their acts and words of liberty Against prior restraint curb the power of unpopular sentiments belief that more not less speech is best suited to advance society s interests 0 Citizens be informed of errors in order to correct their elected leaders 0 The act of reviewing ideas before they enter the marketplace imposes a delay that dilutes their strength CH 4 case briefs 22015 224 PM Schenck v US 249 US 47 1919 Charles T Schenck general secretary of the American Socialist Party in Philadelphia printed 15000 leaflets that decried US involvement in WWI handing them out to men of draft age questioning their participation in what that party considered to be ruthless and designed to fatten Wall Street pursesquot Assert your Rights Do not submit to intimidationquot He was arrested tried and convicted of obstructing the war effort 1919 USSC unanimous decision Justice Oliver Wendell Holmes the words create a clear and present danger that they will bring about substantive evils Congress has the right to suppressquot o Hurt war effort deployed soldiers and potential 0 In other circumstances speech would have been protected Sedition and alien act of 1918 congressional act to appease public fear Abrams V US 250 US 616 1919 Yates v President Wilson dispatched military to the Russian front Concerned Jacob Abrams and friends secretly printed out flyers they hoped would keep the Americanmade bullets from striking fellow Russians English and Yiddish Headline The hypocrisy of the US and alliesquot Found guilty of violating Espionage Act of 1917 Legal rule guiding court bad tendencyquot convicted protestors who opposed the war effort regardless of the real threat posed Justice Holmes and Brandies dissenting opinion sill leafletquot posed no real threat to American efforts failed to present a clear and present dangerquot US 355 US 66 1957 Death of Joseph Stalin end of Korean conflict and censure of anticommunist Sen Joseph McCarthy USSC revisited Smith act during this case Question could the law be used against Oleta Yates California heiress and 13 other Communists for advocating the future overthrow of the US as an abstract idea rather then an imminent threat Majority rule teaching an ideal was not the equivalent to planning its implementation deserving protection Smith Act was not struck down removed its sting Brandenburg v Ohio 395 US 444 1969 Near v Clarence Brandenburg Klansman was tried under Ohio39s criminal syndicalism law for advocating revengence against US politicians and judges for their civil rights activities on behalf of AfricanAmerican citizens televised while rallying with fellow white supremacist o Fined 1000 and 110 years prison USSC overturned conviction Clear danger test applied government would only penalize direct incitement to imminent lawless action invalidated state sedition laws Minnesota 283 US 697 1931 Saturday Press northern scandal sheet Jay M Near and partner Howard Guilford former mayoral candidate were twin editorial forces roiling in the political powers of Minneapolis and St Paul in the roaring 205 Once deemed a nuisance the courts could issue and injunction After losing in Minnesota s legal system Near alone appealed to USSC Incorporation Doctrine neither the US constitution nor its amendments apply to the states as a whole However once specified by the 14th amendment by the court they become applicable to states through 14th amendments limitation on government action Struck down Minnesota s Public Nuisance law of 1925 because the law punished the press prior to publication 54 decision prior restraint involves some visible danger NY Times V US 403 US 670 1971 Dr Daniel Ellsburg anticommunist and Harvard trained economist was convinced the American war effort in Southeast Asia was futile and felt the public should be alerted o Leaked the Pentagon Papersquot 47volume Defense Department study of the historic evolution of Vietnam involvement History of the US DecisionMaking Process on Vietnam Policyquot to the New York Times and Washington post Times reporter Neil Sheehan reviewed papers and released the papers in segments First headline Vietnam Archive Pentagon Study Traces 3 Decades of Growing US Involvementquot 0 Within 2 day US Attorney General John Mitchell telegrammed Times to cease printing because of the harm it posed to our military presence 0 Times refused and Department of Justice found a federal judge Murray I Griffin on his first day to issue a temporary restraining order TRO 0 Washington Post published its portion of the report US attorney general secured an injunction against them 0 The Times and Post appealed to USSC o 63 decision per curium order without a majority in favor of the publishers 0 Times finished publication and won a Pulitzer Prize for public service 0 The government failed to prove publication would pose direct immediate and irreparable harmquot to the people Lecture notes Front door public forum Mailbox not Sedition cannot be punished Schenck clear and present danger something you can always argue War time speech threatens national survival Standard for what is acceptable changes with what is going on in the world Yates clear and present danger overturned Brandenburg imminent lawless action Sedition law overturned Difference between Schenck and Brandenburg Pattern in USSC that racist speech is tolerated
Are you sure you want to buy this material for
You're already Subscribed!
Looks like you've already subscribed to StudySoup, you won't need to purchase another subscription to get this material. To access this material simply click 'View Full Document'