COMM461 - Legal Brief
COMM461 - Legal Brief COMM 461
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Date Created: 02/13/15
TABLE OF CONTENTS M M Brandenburg v Ohio 395 US 444 1969 1 Chaplinsky v New Hampshire 315 US 568 1942 3 Cohen v California 403 US 13 1971 5 Feist v Rural Telephone 499 US 340 1991 7 Frisby v Schultz 487 US 474 1988 9 Griswold v Connecticut 381 US 479 1965 11 Harper amp Row v Nation Enterprises 471 US 539 1985 13 Schenck v United States 249 US 47 1919 15 Virginia v Black 538 US 343 2003 17 Whitney v California 274 US 357 1927 19 Brandenburg v Ohio 395 US 444 1969 PROCEDURAL HISTORY The appellant was convicted of the Ohio Criminal Syndicalism statute for advocating the taking of resentful actions against government and assembling with group to advocate the doctrines of criminal syndicalism The appellant appealed from the conviction of Supreme Court of Ohio to the Supreme Court for appellate review FACTS The appellant was the leader of a Ku Klux Klan group A film recorded the appellant made a speech in a meeting of the group promoting the taking of revenge against the government if it did not stop suppressing the white race ISSUE Does the Ohio Criminal Syndicalism statute violated the First Amendments rights to the freedom of speech HOLDING REVERSED REASONING The First Amendment protected the freedom of speech that the advocacy of abstract doctrine is exception in the quotclear and present dangerquot Punishing mere advocacy and forbidding assembly with others merely to advocate the described type of action would falls within the condemnation of the First and Fourteenth Amendments Within similar text the conviction of Whitney v California 274 US 357 1927 was overruled The quotbad tendency testquot on that if speech has a quottendencyquot to cause sedition or lawlessness it may constitutionally be prohibited is discredited Instead the imminent lawless action test is introduced that quotthe constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such actionquot The Ohio Criminal Syndicalism statute made it illegal to advocate crime sabotage violence or terrorism as a means of accomplishing industrial or political reform It also prohibited assembling with any society group or assemblage or persons formed to teach or advocate the doctrines of criminal syndicalism The statute cannot be sustained RULE Speech can be punished as incitement when the circumstances are such that the words used to pose a clear and present danger only if advocacy imminent lawless action and is likely to produce such action of bringing about a substantive evil which Congress may lawfully prevent CONCURRENCES Douglas J Justice Douglas questioned that the quotclear and present dangerquot test as it had been applied previously in relation to war effort that quotFirst the threats were often loud but always puny and made serious only by judges so wedded to the status quo that critical analysis made them nervous Second the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an allout political trial which was part and parcel of the cold war that has eroded substantial parts of the First Amendmentquot Black J Justice Black agrees with Justice Douglas that quotclear and present dangerquot doctrine should have no place in the interpretation of the First Amendment quotDennis v United States 341 US 494 1951 does not indicate any agreement on the Court39s part with the 39clear and present danger39 doctrine on Dennis purported to relyquot Chaplinsky v New Hampshire 315 US 568 1942 PROCEDURAL HISTORY The appellant was convicted for violating the Public Laws of New Hampshire by addressing quotoffensive derisive or annoying wordquot to the complaint at the city of Rochester New Hampshire The appellant appealed from the conviction of the New Hampshire Supreme Court for appellate review FACTS The appellant was a member of J ehovah39s Witness Arrested and convicted under the Public Laws of New Hampshire he was charged of calling a City Marshal a god damned racketeer and a damned fascist in a public place ISSUE Does the Public Laws of New Hampshire violated the First Amendment rights to the freedom of speech HOLDING AFFIRMED REASONING The First Amendment of the Constitution protects free speech but it is not absolute under all circumstances There are certain kinds of speeches not protected by the First Amendment including fighting words Fighting words including the lewd obscene and profane are not protected by the First Amendment These words have little value of informing people or stating opinions in comparison to their potential harms The Supreme Court of New Hampshire declared that the law39s purpose was to preserve the public peace no words being quotforbidden except such as have a direct tendency to cause acts of violence by the persons to Whom individually the remark is addressedquot quotFighting wordsquot is defined by a test as quotWhat men of common intelligence would understand would be words likely to cause an average addressee to fightquot The statute does no more to prevent speeches that would cause a breach of the peace by the addressee likely to cause violence and other disorderly words including profanity obscenity and threats The statute punishing verbal acts is carefully drawn that does not improperly impair the freedom of expression It is not too vague for a criminal law Therefore the Public Laws of New Hampshire does not unconstitutionally Violate upon the right of free speech RULE Fighting words that would in ict injury or that man of common intelligence understand by their mere utterance tend to provoke an immediate breach of the peace is not protected under the categorical exceptions doctrine of the Fist Amendment Cohen v California 403 US 13 1971 PROCEDURAL HISTORY The appellant was convicted of California Penal Code that prohibits quotmaliciously and willfully disturb ing the peace or quiet of any neighborhood or person by offensive conductquot for wearing a jacket bearing the words quotFuck the Draftquot in a corridor of the Los Angeles Courthouse The appellant appealed from the conviction of the Supreme Court of California to the Supreme Court for appellate review FACTS On April 26 1968 the appellant was arrested for wearing a jacket bearing the words quotFuck the Draftquot inside the Los Angeles Courthouse in the corridor during the Vietnam War The appellant did not threaten or engage in any act of violence He was convicted for disturbing the peace through offensive conduct The California Court of Appeals affirmed his conviction holding that offensive conduct means behavior that has a tendency to provoke others to acts of violence or to in turn disturb the peace ISSUE Whether the display of a fourletter eXpletive word likely to cause violent reactions with the general tendency of a fighting word to disturb the peace Does the statute the First and Fourteenth Amendments protection of free speech HOLDING REVERSED REASONING There have been categorical exceptions to the First Amendment protections on free speech such as the categories of fighting words However whether a speech has a general tendency of a fighting word to disturb the peace is not absolute The California Court of Appeal held that quotoffensive conductquot means quotbehavior which has a tendency to provoke others to acts of violence or to in turn disturb the peacequot and proved this element as it was quotcertainly reasonably foreseeable that such conduct might cause others to rise up to commit a violent act against the person of the defendant or attempt to forcibly remove his jacketquot while in this case there was no further action engaged by the appellant that would indicate or incite violent reactions The state does not have the power to punish the appellant for the content of his message because he showed no intent to incite disobedience to the draft One39s intention to be perceived by others as expressive of particular views does not necessarily convey any message and hence arguably could be regulated without effectively repressing the appellant39s ability to express him In comparison to the categories of exceptions where prior decisions have established the power of government to deal more comprehensively with certain forms of individual expression This case does not involve fighting words because his message is not directed at another person as of Chaplinsky v New Hampshire and is not violently arousing actions but simply upon a showing a word as of Termniello v Chicago A speech that constitutes cognitive and emotive value and only seeks to get attention is protected by the First Amendment of the Constitution Therefore the conviction is overruled RULE The cognitive and emotive values of words are both protected by the First Amendment Mere display of a word even one normally associated with fighting words without more is never a breach of the peace DISSENT Blackmun J Justice Blackmun argues that the appellant39s quotabsurd and immature anticquot is mainly conduct and little speech therefore not protected by the First Amendment Feist v Rural Telephone 499 US 340 1991 PROCEDURAL HISTORY The defendant was convicted of copyright infringement for using information from a telephone company to publish its own directory The defendant appealed from the conviction of the Court of Appeals for the Tenth Circuit to the Supreme Court for appellate review FACTS The plaintiff is a certified public utility that provides telephone service to several communities in northwest Kansas The defendant is s a publishing company whose directory covers a larger range than a typical directory Defendant distributes their telephone books free of charge and they also generate revenue through the advertising in the yellow pages Plaintiff refused to give a license to Defendant for the phone numbers in the area so Defendant used them without Plaintiff s consent ISSUE Are the names addresses and phone numbers in a telephone directory protected under copyright HOLDING REVERSED REASONING Copyrights protect originality of a work A work must be original to the author to qualify for copyright protection The work has to be created by the author and it possesses some minimal degree of creativity A work may be original even though it resembles other works so long as the similarity is fortuitous not the result of copying quotFacts are not copyrightablequot while compilations of facts can be copyrighted The compilation of data such as telephone directory is quotwholly factual information not accompanied by any original written expressionquot As quotfacts do not owe their origin to an act of authorshipquot finding or reporting facts is distinct from creating one Compilations possess requisite originality as facts are chosen to be included and presented However it does not mean quotevery element of the work may be protectedquot To establish copyright infringement two elements must be proven ownership of a valid copyright and copying of constituent elements of the work that are original In this case the second element in not valid Therefore there is no copy right infringement RULE The First Amendment and the Copyright Act are not restrictions on freedom of speech as copyright protects only form of expression and not the ideas expressed A work must be original to the author to qualify for copyright protection There is no infringement because of ideaexpression merger only minimal regard to avoid infringement Frisby v Schultzl 487 US 474 1988 PROCEDURAL HISTORY The appellees challenged the Brookfield Wisconsin ordinance violated the Fist Amendment39s right of free speech as it prevents protest outside of a residential home The appellant appealed from the Court of Appeal for the Seventh Circuit to the United States Supreme Court for appellate review FACTS The appellees picketed in front of the home of a doctor who performs abortions between April 20 1985 and May 20 1985 On May 7 1985 the town passed an ordinance that prohibited all picketing in residential neighborhoods except for labor picketing The appellees filed a lawsuit claiming that the ordinance infringed on their First Amendmentright to free speech ISSUE Does the ordinance violated the First Amendment rights to freedom of assembly and protest HOLDING REVERSED REASONING The ordinance is narrowly tailored to protect only unwilling recipients of the communications It was intended quotto prohibit only picketing focused on and taking place in front of a particular residencequot it quotevinces a concern for public safety noting that picketing obstructs and interferes with quotthe free use of public sidewalks and public ways of travelquot The standards by which limitations on speech must be evaluated quotdiffer depending on the character of the property at issuequot the three types of forum include quotthe traditional public forum the public forum created by government designation and the nonpublic forumquot In this case the streets of Brookfield are traditional public forum The devastating effect of targeted picketing on the quiet enjoyment of the home is beyond doubt and thus deterring such conduct is a legitimate government interest The ordinance is content neutral and does not seek to limit the ow of ideas just a certain conduct regardless of content The target of the focused picketing banned by the ordinance is just such a captive to an unwanted speech However those individuals who object to the speech have no means of avoiding this unwanted speech The Brookfield ordinance ban of 10 this particular medium of expression is narrowly tailored Therefore the ordinance is constitutional and did not violate the First Amendment rights of free speech RULE The First Amendment permits the government to prohibit offensive speech as intrusive when the quotcaptivequot audience cannot avoid the objectionable speech CONCURRENCE White J Justice White questioned that whether the ordinance at issue in this case forbids only singleresidence picketing As the ordinance forbids quotany person to engage in picketing before or about the residence or dwelling of any individual in the Town of Brookfieldquot it would also quotreach picketing that is directed at the residences which are located in entire blocks or in larger residential areasquot The language used is loosely worded so that quotthe latter is the more natural reading of the ordinance which seems to prohibit picketing in any area that is located 39before or about39 any residence or dwelling in the town ie any picketing that occurs either in front of or anywhere around the residences that are located within the townquot DISSENTS Brannan J Justice Brennan argues quotThe Court errs in the final step of its analysis and approves an ordinance banning significantly more speech than is necessary to achieve the government39s substantial and legitimate goalquot Stevens J Justice Stevens argues that quotthe scope of the ordinance gives the town officials far too much discretion in making enforcement decisions while we sit by and await further developments potential picketers must act at their perilquot Too much discretion is given by the ordinance and this level of discretion provides the town with the ability to restrict more than is absolutely necessary 11 12 Griswold v Connecticut 381 US 479 1965 PROCEDURAL HISTORY Appellants were convicted for violating the Connecticut statute that prevented any person to use any drug or article to prevent conceptions for giving married persons information and medical advice on how to prevent conception The appellants appealed to the Supreme Court for appellate review FACTS The appellant was the Executive Director of the Planned Parenthood League of Connecticut and Appellant Buxton a licensed physician who served as Medical Director for the League at its Center in New Haven The appellant were arrested and charged with giving information instruction and medical advice to married persons on means of preventing conception Appellants claimed that the statute violated the 14th Amendment to the United States Constitution ISSUE Does the Constitution provide for privacy rights for married couples HOLDING REVERSED REASONING Although it is not enumerated the First Amendment has a penumbral rights animated by privacy Privacy is protected from governmental intrusion although it is not directly stated in the Amendment The underline reasons of the First Third Forth and Fifth Amendments are to protect privacy The Ninth Amendment allows Constitutional rights that are not written additional rights that provide logical extension that are equally important to numerated rights The Connecticut statute operates quotdirectly on an intimate relation of husband and Wife and their physician39s role in one aspect of that relationquot however the right to educate one39s children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments B As quotthe association of marriage is a privacy right older than the Bill of Rightsquot and the State s effort to control marital activities in this case is unnecessarily broad Therefore the Connecticut statute violated the privacy protected by the Constitution RULE The First Amendment has a penumbra where privacy is protected from governmental intrusion The forms of association that are not political in the customary sense but concern to the social legal and economic benefit are protected CONCURRENCES Goldberg J Justice Goldberg stated that the right to privacy in marriage is so basic and fundamental that to allow it to be infringed because the Ninth Amendment quotreveal that the Framers of the Constitution believed that there are additional fundamental rights protected from governmental infringement which eXist alongside those fundamental rights specifically mentioned in the first eight constitutional amendmentsquot Harlan J Justice Harlan argues that the statute violates the Due Process Clause of the Fourteenth Amendment because if violates the basic values implicit in the concept of ordered liberty White J Justice White argued that the statute is quotapplied to married couples deprives them of 39liberty39 without due process of law as that concept is used in the Fourteenth Amendmentquot Justice White said that quottherefore I concur in the judgment of the Court reversing these convictions under Connecticut39s aiding and abetting statutequot DISSENTS Black J Justice Black argued that the government has a right to invade privacy because there is no provision granting such a right Instead of the reasoning made by the Supreme Court the Constitution should be changed as the amendment process in order to define fundamental rights Stewart J Justice Stewart argued that not the Supreme Court but the people of Connecticut should decide whether the Connecticut statute as not conform to current community standards 14 Harper amp Row v Nation Enterprises 471 US 539 1985 PROCEDURAL HISTORY The respondent was convicted of violating the Copyright Act for constituted an infringement of using the petitioners39 copyrighted material The respondent appealed from the conviction of the United States Court of Appeals for the Second Circuit to the Supreme Court for appellate review FACTS The former President Ford contracted with petitioners to publish his memoir as the exclusive first serial right to license prepublication excerpts Shortly before the Time Megazine with the petitioner39s licensing agreement scheduled to release an unauthorized source providedthe respondent with the unpublished Ford manuscript The Court of Appeals reversed the decision of the District Court holding the respondent39s publication is sanctioned as a quotfair use ISSUE Does fair use existed where the purported infringer published a public figure s unpublished work on an important public event HOLDING REVERSED AND REMANDED REASONING The Copyright Act Section 107 provides quotin determining whether the use was fair the factors to be considered shall include 1 the purpose and character of the use 2 the nature of the copyrighted work 3 the substantiality of the portion used in relation to the copyrighted work as a whole and 4 the effect on the potential market for or value of the copyrighted workquot 15 When the court examine the above criteria of this case the work id not used for review and criticism to make money applied to test relatively small amount but very important and substantial part of the work and the petitioner39s potential market was destroyed by the respondent39s publication Petitioners established a prima facie case of actual damage that respondents failed to rebut Therefore the determination of fair use is unsatisfied RULE There are factors in determining the fair use of a copyrighted work including the purpose and character of the use including whether such use is of a commercial nature or is for nonprofit educational purposes the nature of the copyrighted work the amount and substantiality of the portion used in relation to the copyrighted work as a whole and the effect of the use upon the potential market for or value of the copyrighted work The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors DISSENT Brennan J Justice Brennan argued that the Court was advancing the protection of the copyright owner39s economic interest quotthrough an exceedingly narrow definition of the scope of fair usequot 16 Schenk v United States 249 US 47 1919 PROCEDURAL HISTORY The defendant was convicted for conspiracy to violate the Espionage Act of June 15 1917 for circulating lea ets that urged men to refuse to submit to the military draft commit offense against the United States and an unlawful use of mails for the transmission of the same matter The defendants appealed from the conviction of the District Court of the United States for Eastern District of Pennsylvania to the Supreme Court for appellate review FACTS The defendant was general secretary of the Socialist party He was in charged of printing and sending the lea ets The lea et recited that the first section of the Thirteenth Amendment said that the idea embodied in it was violated by the Conscription Act On August 20 1917 the general secretary s report said that the lea ets were printed and proved to have been sent through mails to drafted men ISSUE Does the Espionage Act violated the First Amendment rights to the freedom of speech and the freedom of the press HOLDING AFFIRMED REASONING The First Amendment protects the freedom of speech In many places and in ordinary times words would be protected within constitutional rights However every act depends upon circumstances in which is done The stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing panic If an actual obstruction of the recruiting service were proved liability of words that produced that effect might be enforced The lea et in the case stated reasons for alleging anyone violated the Constitution when he refused to recognize one s right to assert opposition to the draft The lea et would not have been sent unless it had been intended to have some effect and the effect expected was to in uence drafted men to obstruct to enlistments The Espionage Act of 1917 punishes the conspiracies to obstruct and the actual obstruction as well Circulating the lea et has the tendency and intention to do so Free speech protected by 17 the first Amendment should depend upon the circumstances in which it is done The defendant s conviction did not violate the First Amendment RULE First Amendment is not absolute Speech can be punished as incitement when the circumstances are such that the words used to pose a clear and present danger of bringing about a substantive evil which Congress may lawfully prevent 18 Virginia v Black 538 US 343 2003 PROCEDURAL HISTORY The defendants were convicted for violating a Virginia statute for burning a cross The defendants appealed from the conviction of the Trial Court and on Writ of Certiorari to the Supreme Court of Virginia to the Supreme Court for appellate review FACTS The defendant was charged and convicted of burning a cross at a Ku Klux Klan rally in Carroll County Virginia on August 22 1998 The crossbuming statute of Virginia stated that for any person with the intent of intimidating any person or group to burn a cross on the property of another a highway or other public place and specifies that any such burning shall be prima facie evidence of an intent to intimidate a person or group The defendants action is taken as prima facie evidence of such an intention under a section of the statute ISSUE Does the crossbuming statute of Virginia prohibiting the burning of a cross with the intent of intimidating any person or group of persons violated the First Amendment HOLDING AFFIRMED REASONING The First Amendment protects freedom of speech but it is not absolute There are certain categorical expressions within the Constitution There are certain welldefined and narrowly limited classes of speech the prevention and punishment of which has never been thought to raise any Constitutional problem The First Amendment permits restrictions upon the content of speech in a few limited areas which are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality as in RAV v St Paul The Virginia crossbuming statute discriminates on the basis of content and viewpoint It is necessary to separate the expression of anger or hatred from the expression of intent to cause harm or threat as the ground of lawful conviction 19 The Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional but the act of cross burning clearly impend violence when the threat is the predominant message The statute has the authority to control some classes of expression if the constitution so calls for it and also that intimidation is a type of real threat if the word is used in the sense that the constitution prohibits RULE Any cross burning is a virulent form of intimidation Cross burning is True threat it is included in categorical exception and therefore is not protected under the Fist Amendment CONCURRENCE Stevens J Justice Scalia agrees that a state may prohibit the burning of a cross when carried out with the intent to threaten harm without violating the First Amendment The simple proposition provides a sufficient basis for upholding the basic prohibition in the Virginia statute even though it does not cover other types of threatening expressive conduct DISSENT Thomas J Justice Thomas argued that the action of cross burning itself should be a First Amendment exception due to the historical association of cross burning with terrorism Justice Thomas said that the statute quotprohibits only conduct not expression And just as one cannot burn down someone39s house to make a political point and then seek refuge in the First Amendment those who hate cannot terrorize and intimidate to make their pointquot 20 Whitney v California 274 US 357 1927 PROCEDURAL HISTORY The petitioner was convicted of violating Califomia s Criminal Syndicalism Act for being an active member of the California branch of the Communist Labor Party The petitioner appealed from the conviction of the Superior Court of Alameda County and the California Court of Appeal to the Supreme Court for appellate review FACTS The petitioner participated in the founding of Communist Labor Party of America She was instrumental in the Communist Party convention and served as committee member Charged by the state of California The Communist Party of California was devoted to advocating the violent overthrow of the government Under the terms of the law membership in organizations devoted to the violent overthrow of government was illegal ISSUE Does the California Criminal Syndicalism law violated the First Amendment rights to the freedom of speech and association rights HOLDING AFFIRMED REASONING Majority opinion pointed out that First Amendment protects freedom of speech with the due process clause of the Fourteenth Amendment are not absolute However states may punish speech that abuses protected freedoms by advocating the overthrow of government If the words have a quotbad tendencyquot they can be punished Charged by the state of California The Communist Party of California was devoted to advocating the violent overthrow of the government The goals of the Party included quotorganizing the workers as a class in a revolutionary class struggle to conquer the capitalist state for the overthrow of capitalist rulequot Under the terms of the law membership in organizations devoted to the violent overthrow of government was illegal With The Syndicalism Act convicting the membership in the Communist Labor Party did not violate the free speech rights protected under the freedom of speech and association in the First Amendment and the Fourteenth Amendment that states may constitutionally prohibit 21 speech tending to incite crime disturb the public peace or threaten the overthrow of government by unlawful means RULE Speech can be punished as incitement when the circumstances are such that the words used to pose a clear and present danger of bringing about a substantive evil which Congress may lawfully prevent CONCURRENCE Brandeis J Justice Brandeis agrees that the right of free speech and the right of assembly are fundamental rights but not absolute The petitioner is punished not for contempt incitement or conspiracy but for preparation of a remote threat He stated that quot it is essential to a valid restriction does not eXist unless speech would produce or is intended to produce a clear and imminent danger of some substantive evil which the State constitutionally may seek to preventquot while the Court lacked a sufficient standard for what quota clear and imminent dangerquot is He also stated that the states should not prohibit speech or assembly because a majority of citizens find such speech repugnant This is insufficient to ban speech Justice Brandeis concurred that the answer to bad speech should be quotmore speech not enforced silencequot
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