Constitutional Law 3364
Constitutional Law 3364 PSCI 3364
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This 5 page Class Notes was uploaded by Taylor Garrett on Tuesday September 13, 2016. The Class Notes belongs to PSCI 3364 at Virginia Polytechnic Institute and State University taught by Brandy S. Faulkner in Fall 2016. Since its upload, it has received 3 views. For similar materials see Constitutional Law Civil and Political Rights in Political Science at Virginia Polytechnic Institute and State University.
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Date Created: 09/13/16
9/7/2016 Freedom o Provides us with an environment in which to discuss rights and liberties o The ability to pursue both rights and liberties o State of being/existence that allows us to make choices and decisions, to exercise autonomy o Without freedom, we cannot exercise any of our rights or pursue any of our liberties o Situational o Contextual o Environmental o There is no definitive answer to where the source of freedom stems Natural law theory We have freedom by virtue of our existence Inherent to human nature Born into it Social contract theory Freedom is rooted in social contracts It is something that societies decide to take on as a state of existence By definition, freedom is a negotiated state There are some things that we give up in order to have freedom Judges and justices of the courts are mixed on the issue How they view ideas like freedom impacts their decisions on cases Justifies the distinction between rights, liberties, and freedoms If judge classifies something as a right, he believes the issue is of utmost importance Will be more willing to attach conditions The First Amendment o “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.” Religious rights or liberties Speech rights or liberties Press assembly Petition Under no circumstance can Congress constitutionally legislate against the above Yet they have. Speech and expression Expression is an implicit right Courts have long focused on an analysis of the threat that a speaker can pose Second way the courts think about speech is the analysis of the danger or threat that government restrictions pose to a legitimate constitutional right How do government restrictions on free speech affect our constitutional right? Third way: some judges analyze the danger or threat of government restrictions on the content of the message itself what is actually being communicated? Fourth: analysis of whether a government restriction of speech covers a class of speech not historically protected o Threatening speech o Violent speech What will be the effect of someone’s speech on the stability of the nation? What will be the impact of restrictions? o Not a right or wrong, but a method of analysis that can cause different conclusions to be reached on the same case o Laws are indeterminate Four arguments for free speech: o Speech serve an educational function Absent free speech, there is no way to pursue knowledge Openness of discussion and ideas o Free speech serves a protective function Our way of guaranteeing that we may speak and share ideas openly and honestly without fear of reprisal Absent this explicit right, government might engage in this punitive approach o Free speech serve a truth thinking function Encourages debate, adversarial thought and engagement We can arrive at philosophical truths that may not otherwise be reached o Social obligation function to free speech By engaging in speech, we learn what is important to speak about We learn what our social obligations are Historical interpretations of free speech by Supreme Court o Tests are determined whenever possible Allow the Court to establish a method of analysis and stable precedent for evaluating cases If they can come up with a set of general principles they can apply to all other cases, they believe they can bring further stability in the future. o Courts in the early days steered away from free speech cases o Indicative that they viewed speech as a right and not a liberty o Didn’t get a lot of speech cases to begin with o As more states came into the union, there arose a question about whether or not the first amendment even applied to the states Until 1925 the Courts said no. “Congress shall make no law“ states could make any laws they wanted restricting free speech 1925: Doctrine of Incorporation Suffrage movement could have contributed to this decision Explicitly linked to WWI o Clear and Present Danger Test (1919) Resulted from two cases Shank vs. U.S. Abrams vs. U.S. o Courts decided words should not create a clear and present danger that will bring about an evil so substantial so as to justify government restraint. o If the speech tends to disturb public peace or corrupt public morals, the state can restrict it. o Courts do not classify hate speech as clear and present danger 9/9/2016 1919: Clear and Present Danger o Determined that speech that determines clear and present danger is unprotected because of the substantial risk of evil it poses or corrupt public moral. Courts later realized test was too vague revised the clear and present danger test 1925: Bad Tendency Test o Gitlow vs. NY o Whitney vs. California o Many states passed “criminal syndicalism statutes” Designed to criminalized antigovernment and antiwar speech Meant to curb any attempt at antipatriotism Passing out pamphlets, publically speaking out The above cases were in response to this Bad Tendency Test: speech that creates a bad tendency to bring about evil is not protected under the First Amendment Freedom of speech doesn’t protect speech that disturbs the public peace Speech that attempts to subvert government Speech that incites crimes or criminal activity Speech that corrupts the public morals o Courts further said we cannot know the impact of speech until that speech has occurred o Gave state government authority to prevent them preemptively outlaw speech with bad tendencies o Took clear and present danger even further Came in the wake of WWI and the midst of antiwar speech 1951: Clear and Probable Danger o Dennis v. US o Yates v. US (1957) At issue in both was the Smith Act and antiwar speech Smith Act (1940): made it a felony to advocate any violent overthrow of government Courts said in each case and on a casebycase basis, we must ask whether the potential evil that could result from the speech could justify government regulation of the speech Courts also said the government’s reason for restriction must be compelling Sets up a dynamic in which any state official trying to limit free speech must articulate a specific reason as to why that restriction is necessary Presumption is with the citizen as a result. Burden placed on the government. Any attempt to protect the people/national security is considered compelling Cold War Congress believed any advocacy for communism constituted a clear and probable danger 1969: Clear and Imminent Danger (Incitement, Brandenburg Test) o Brandenburg v. Ohio (1969) o Courts made a distinction between speech that can be considered informational or teaching/instructional, and speech that it saw as advocacy Calls to action may be restricted While merely putting forth controversial ideas is protected Speaker has to have intent to call to action How to prove intent? o Imminent lawless action o Speaker must intend to incite someone to break the law o Absent intent, speech is protected o This test is still used today