Midterm Study Guide
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This 14 page Study Guide was uploaded by Kristina Maude on Monday March 30, 2015. The Study Guide belongs to JOUR 618 at a university taught by Mark Johnson in Fall. Since its upload, it has received 225 views.
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Date Created: 03/30/15
J OUR 618 MIDTERM EXAM STUDY GUIDE MARCH 17 2015 MIDTERM TOPICS COURT DECISIONS ARE UNDERLINED I FREE SPEECH IN THE COLONIAL PERIOD Peter Zenger New York Weekly Journal Zenger prosecuted for publishing and printing seditious libels Was said to be disturbing the peace and in aming minds Zenger testified Hamilton was at his defense Judge Delancy presiding For Zenger to guilty his libel must be false scandalous He challenged prosecutor to prove the story in the newspaper was false Hamilton Right to liberty to both opposing and arbitrary power by speaking and writing trut Zenger acquitted The jury ignored the law Dicta Jury nullification members of the jury ignore the law and do what they think is justice Revolutionized America JURY NULLIFICATION Established through Zenger Don t follow law if justice feels other way Now is when acquits even when they think defendant is guilty II ADOPTION OF CONSTITUTION AND BILL OF RIGHTS WHY WAS A NEW CONSTITUTION NEEDED 1 The War Debt a To fight the Revolutionary War America borrowed money from other countries b Under the Articles of Confederation congress lacked the power to raise taxes and pay the debt c Foreign countries and merchants refused to do business With the US on credit Which caused a depression in the 1780 s 2 Shay s Rebellion a 17861787 in Western Massachusetts b Uprising of farmers Who couldn t pay taxes imposed by the state to pay off war debt c Ineffectiveuncoordinated response by federal government to the crisis led to calls for a replacement of the Articles of Confederation With a more effective federal system d A convention met in Philadelphia in May of 1787 BASIC PURPOSE OF ARTICLES OF THE CONSTITUTION ARTICLES 1 11 AND 111 Article 1 The Congress Article 2 The Executive Article 3 The Judiciary WHY WAS A BILL OF RIGHTS ADOPTED To include a place not about the government but about rights of the people WHO WAS THE MAJOR DRIVING FORCE BEHIND BILL OF RIGHTS George Mason Adopted his Virginia Plan with 3 levels of government prior Also articulated the Virginia Declaration about free speech and rights The Virginia Declaration of Rights included religion and press George Mason drafted it because Virginia adopted constitution conditionally on bill of rights III ANALYSIS OF CONSTITUTIONALITY OF FREE SPEECH RESTRICTIONS TWOSTEP PROCESS IS THE LAW CONSTITUTIONAL AS WRITTEN UNCONSTITUTIONAL ON ITS FACE IF YES IS THE LAW BEING ENFORCED DISCRIMINATORILY UNCONSTITUTIONAL AS APPLIED 111 FIRST FREE SPEECH CRISIS ALIEN AND SEDITION ACTS OF 1798 Limited free speech Anyone could be detained if citizens of country at war With US May expel anyone Without cause Extended naturalization period to 14 years VIRGINIA AND KENTUCKY RESOLUTIONS Virginia resolution Sedition Act Violates first amendment written by James Madison Kentucky resolution Sedition act is illegal written by Thomas Jefferson ROLES OF MAJOR PLAYERS ADAMS JEFFERSON MADISON Jefferson and Madison fight against laW Adams signed them into law MARBURY V MADISON Established that courts can nullify laws that are inconsistent With the constitution Established judicial reVieW First establish if constitution or law apply to a situation IV THE CIVIL WAR SUSPENSION OF HABEAS CORPUS A legal proceeding Where a person has been detained by the government has the right to be told Why they are being arrested 3 Lincoln did it because of copperheads southern sympathizers POWER OF CONGRESS V POWER OF PRESIDENT Only congress has power to suspend habeus corpus not the president Lincoln had exceeded constitutional powers Only congress because constitution only mentions suspension of habeus corpus in the article outlined about congress Lincoln ignored the Merryman decision IN RE MERRYMAN AND VALLANDIGHAM WHAT WERE THE PRINCIPAL ISSUES IN THOSE SITUATIONS RE MERRYMAN Was detained for enlisting Maryland citizens not to enlist in the army VALLANDIGHAM Advocated negotiation With the South Spoke out against the war Tried for disloyal speech F V CONTENT RESTRICTIONS 1 SEDITION DEFINITION OF SEDITION Expression that is critical of the government andor government officials ESPIONAGE ACT OF 1917 SEDITION ACT OF 1918 Espionage Act Disloyalty mutiny imprisonment When US is at war Sedition Act Extends to writing CASES ABRAMS SCHENCK Schenk s imprisonment under espionage act was upheld Clear and Present danger test ABRAMS Chose to convict Abrams for Russian immigrants throwing lea ets from building Holmes dissent Changed clear and present danger to clear and imminent danger STATE CRIMINAL SYNDICALISM LAWS CASE WHITNEY FISKE De J ONGE FISKE V Kansas Recruited members of union union advocated for workers taking possession of government Convicted on contents of union constitution conviction was overturned Refines distinctions between advocacy and violence WHITNEY v California California Labor Party advocated violent overthrow of the government Decided same day as Fiske to distinguish difference Sustained conviction Brandeis Concurrence only clear present and imminent threats of serious evils could justify suppression Time to answer test bad tendency can be punished Distinction between overthrow and advocacy DEJONGE Speech in peaceful assembly Applied to right to assemble Absence incitement of unlawful action a speaker can make accusations of govemment s misconduct incitement standard FIRST AMENDMENT APPLIES To STATES WHY 5 Gitlow involved a conviction for violation of NY s anarchy law The Left Wing Manifesto encouraged government overthrow 7 Justices ruled that the law was constitutional Test If the language had a tendency to result in bad actions it could be restricted Holmes dissent No present danger IMMEDIACY IS IMPORTANT Applies to states because of incorporation due process clause Distinction between overthrow and advocacy SMITH ACT OF 1940 Unlawful any advocacy of government overthrow by force or violence Federal criminal anarchy law Put into statutory form the rulings from Schenck and DeJong Addition of use of violence force from espionage act CASES DENNIS AND LTES DENNIS Consider the gravity of the evil and the likelihood of occurrence Members of Communist party arrested for violating smith act Court upheld convictions Black s Dissent ignored real meaning of clear and present danger YATES Conspiracy to violate Smith Act Line between advocating action and advocacy Courts needed them to prove defendants were advocating action This clarification ended prosecutions because people knew how far they could go in their rhetoric PATRIOT ACT ALIENS CAN BE EXCLUDED DUE TO MEMBERSHIP IN ORGANIZATIONS DISTINGUISH ADVOCACY OF GOV T OVERTHROW V ADVOCACY OF USE OF VIOLENCE PHRASES CLEAR AND PRESENT DANGER MORE SPEECH NOT LESS SPEECH MOVEMENT ALONG THE SEDITION SPECTRUM FROM LESS PROTECTION TO MORE PROTECTION 2 FIGHTING WORDSINCITING LANGUAGE CASES TO KNOW CANTWELL CHAPLINSKY TERMINIELLO FEINER COHEN BRANZBURG CATWELL J ehova s Witness didn t get permit Court said shouldn t need permit Bad conduct and language is legal if not condoned CHAPLINSKY J ehova s Witness used bad insults and language Didn t incite anyone to Violent conduct WorthlessWorthwhile speech TERMINELLO Speech at assembly Decided law that disallowed disorderly conduct at assembly was not constitutional Overbroad Violated first amendment Soapbox speech Emotions began to rise Arrested when asked him twice to stop 7 Must try and protect him first but can intervene if a threat Shift to protecting offensive speech Fuck the Draft Society had become more tolerant of this language Said the emotive content of certain speech BRANZBURG Wrote story on drugs asked to testify in trial but refused Decided he had to testify because served compelling state interest WORTHLESS V WORTHWHILE LANGUAGE Worthless leWdoffensivelibelfightinginsulting words EVOLUTION OF TEST FOR PROTECTION FROM WORTHLESS V WORTHWHLE TO LIKELIHOOD OF INCITING IMMINENT LAWLESS ACTION INSULTING LANGUAGE DIRECTED AT SPECIFIC INDIVIDUAL INTENDED TO AND LIKELY TO ELICIT VIOLENT REACTION 3 SYMBOLIC SPEECH AND SPEECH PLUS FLAG BURNING WHY IS IT LEGAL TEXAS v10HNSON TINKER ARMBANDS NONDISRUPTIVE COHEN WORDS ON CLOTHING v1 CONTENTNEUTRAL RESTRICTIONS TIME PLACE MANNER PUBLIC PROPERTY v PRIVATE PROPERTY CASES DAVIS HAGUE COX FRISBY BURSON DAVIS Can t make public address except With mayor Established state had right to make restrictions HAGUE No parades or assemblies Without permit City had discretion denied permit to unions Gov can t use time place and manner to deny expression COX No parade in public street Without license State can do this because if you pay the fee you get the permit Time place manner FRISBY Prolife advocates picketed doctor house Illegal to picket on private property Picketing not allowed but other things were Picketing adjacent BURSON Campaigning 100 feet from polling Decided it didn t Violate speech 1 QUINTESSENTIAL 2 GOVERNMENTPROVIDED USED FOR EXPRESSIVE ACTIVITY 3 NONTRADITIONAL PRIVATE PROPERTY ABSOLUTE RIGHT TO EXCLUDE VISITORS 9 NO NEED TO BE A CAPTIVE VICTIM OF UNWANTED SPEECH GEOGRAPHIC LIMITATIONS ON ELECTION CAMPAIGN ACTIVITY BURSON RATIONALE FOR UPHOLDING LIMIT ON CAMPAIGN SPEECH VII FIRST AMENDMENT IN CERTAIN INSTITUTIONS SCHOOLS MILITARY RESTRICTIONS ALLOWED DUE TO INSTITUTION S ROLE COURTS DEFER TO ADMINISTRATORS JUDGMENT SCHOOLS SCOPE OF STUDENTS FIRST AMENDMENT RIGHTS CASES TINKER FRASER HAZELWOOD MORSE HAZELWOOD Free speech in sponsored activities Censored student newspaper Difference between minors and adults free speech Adults can censor reasonably MORSE Not decent speech does not promote educational purposes BONG HITS FOR JESUS School board in right No point to speech Offensive FRASER Lewd offensive speech Sex Speech Suggestive School district can discipline TINKER My baby LOVE Protected 10 VIII EACH CASE ILLUSTRATES A DIFFERENT TYPE OF SPEECH SOME ARE PROTECTED SOME ARE NOT DEFERENCE TO SCHOOL ADMINISTRATORS MILITARY SCOPE OF SOLDIERS FIRST AMENDMENT RIGHTS CASE m LEVY Antiwar comments to black soldiers was court marshalled Military is a separate society What he said not protected in military but would have been as civilian NEED TO MAINTAIN DISCIPLINE AND READINESS DEFERENCE TO MILITARY COMMANDERS BASE NEWSPAPER RIGHT TO REJECT POLITICAL ADS ACTUAL DISRUPTION V POTENTIAL DISRUPTION PRIOR RESTRAINTS ORIGINAL PURPOSE OF FIRST AMENDMENT CASES PATTERSON NEAR NEBRASKA PRESS ASSOCIATION SNEPP PENTAGON PAPERS NEAR Gag law unconstitutional Newspaper Jewish gangster Court decided it was not to prevent disruption scandal Violated first amendment rights 11 Made him stop publishing articles from newspaper critical of SC SNEPP Said they would limit what they said about CIA Individuals can waive first amendment rights but must be waived NEBRASKA Prohibited release of info to public In jury to minimize jury taint PENTAGON Allowed publication EXCEPTIONS NATIONAL SECURITY FAIR TRIAL IX INDECENCY AND OBSCENITY HERESY BURSTYN Controversial opinion BURSTYN Are movies protected by the 1st amendment Yes Court rejected argument that movies aren t speech HICKLIN RULE Will material deprave and corrupt readers Allowed for prosecution based on single passages Focused on children who may gain access to it Didn t choose well what is and isn t obscene CASES ROSEN SWEARENGEN ROTH MEMOIRS MILLER ROSEN Sent dirty pictures in the mail SC upheld conviction established Hicklin as the rule 12 SWEARENGEN Mailed newspaper With weird language Court lewd obscene Obscene must have sexual content ROTH Controversial ideas are protected Obscenity is not Rejected Hicklin Established test reliance on community standards MEMOIRS Added material must be Without social value Made it almost impossible to find things as obscene MILLER Roth test rejected Mail of mass obscene material not protected by first amendment CHILD PORNOGRAPHY FEINER OSBORNE OSBORNE Right to private property With child porn No FERBER Not okay regardless POSSESSION OF OBSCENE MATERIAL STANLEY STANLEY Can t mail or send material but can own Right to privacy INDECENCY DISTINGUISH FROM OBSCENITY 13 Indecency not obscenity Obscenity sexual Indecency Fuck the Draft REGULATION OF INDECENCY PACIFICA PACIFICA George Carlin Dirty Words Time important X LAST BUT CERTAINLY NOT LEAST KNOW THE SIX RIGHTS IN THE FIRST AMENDMENT Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the Government for a redress of grievances WHAT IS LEGISLATIVE PRIVILEGE Immunity from things they did in congress in course of legislative duties 14
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