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52 Cards in this Set
- Front
- Back
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Marbury v. Madison
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1803
Separation of Powers Established judicial review (declaring congressional law void) strenthened judiciary |
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Founder's Free Speech
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- no licensing
- no punishment for seditious libel - no prior restraint |
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Isaiah Berlin
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- negative liberty
- focus on the absence of constraints - "Does the government have the right to....?" |
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Sir William Blackstone
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- no prior restraint!
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John Locke
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- Late 1600s
- notion of "natural rights" - social contract theory (gov. serves people, not vice versa) |
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John Milton
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- Areopagitica (1644)
- Marketplace of Ideas |
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Alien and Sedition Acts of 1798
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- prohibited "false, scandalous, and malicious" publications against President and Government.
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1st Amendment Theories of Interpretation
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- Absolutist - make no law
- Balancing - weigh both - Preferred Position - First is first |
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1st Amendment
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Freedom of:
- Speech - Religion - Press - Peaceful Assembly - Petition Government for a Redress of Grievances |
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Refusal to Hear a case
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Writ of Certiorari
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Schenk v. United States
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- 1919
charged with violating Sedition Act gave leaflets to draftees urging them not to serve, against 13th Amendment LIMITED free speech, saying that the right is not absolute Set the "clear and present danger" standard for when free speech can be restricted. the seminal "incitement" case. |
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Abrams v. United States
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1919
Best answer to bad speech is more speech. Same outcome as Schenk "Marketplace of ideas" |
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Gitlow v. New York
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1925
convicted under NY Criminal Anarchy Law of 1902 Called for overthrow of US government (pamphlets) Court upheld state law, but Holmes dissented: government must show the clear danger. |
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Whitney v. California (1927)
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1927
Free speech frees mankind from bondage of irrational fears. - Justice Brandeis |
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The Smith Act
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1940
it's a crime to advocate the violent overthrow of the government or even to belong to a group that advocated overthrow by force. |
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Dennis v. United States
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1951
upheld convictions of dennis and others charged of willfully conspiring to overthrow US gov. S.C. upheld the decision no more clear and present danger test New test: no evidence of danger needed |
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Yates v. United States
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1957
gutted the Smith Act must be a true "call to action" distinguishes abstract theory from calling for violence signals new era: The Warren Court (more liberal) |
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Brandenburg v. Ohio
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1969
The test we use today Brandenburg: "might have to be some revengence taken." Plans to march on Congress July 4. New factors: Is harm imminent? How likely is illegal action? Is there an intent to cause imminent harm? |
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Unprotected Speech
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dangerous speech (incitement cases)
fighting words obscenity libel, slander |
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Near v Minnesota (very important)
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1931
Jay Near - publisher of Saturday Press in Minneapolis criticized public officials 5-4 in favor of Near, held that PRIMARY PURPOSE of 1st Amendment is to outlaw prior restraints, except for unprotected speech! |
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Pentagon Papers
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NYT v. United States (1971)
Daniel Ellsberg leaks classified documents gov. says it's a threat to national security Press wins, 6-3 |
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Pentagon Papers Effects
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Prior restraints are unconstitutional
Government bears burden of proof Government did not prove publication would result in direct, immediate and irreparable harm. |
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US v Progressive (1979)
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1979
How to Build an H-Bomb US Justice Dept. prohibited publication Article said to violate the 1954 Atomic Energy Act, but info came from non-classified sources Prog wins |
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Fighting Words Doctrine
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Chaplinsky v. New Hampshire (1942)
"damned fascist" Chaplinsky in face-to-face confrontation with city marshal fighting words: those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Chaplinsky loses |
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Cohen v. California
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1971
"Fuck the draft" Cohen charged with disorderly conduct based on fighting words statute. "One' man's vulgarity is another man's lyric." being offended is the price we pay, Cohen wins |
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RAV v. City of St. Paul
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1992
crossburning case - protected 1st Amendment St Paul hate speech ordinance struck down by the court. Could have published teen for trespassing or arson. |
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Virginia v. Black
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2003
protects cross burning again BUT not when it's done to intimidate a specific person "Threats of violence are outside the 1st amendment" |
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Texas v Johnson
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1989
Flag burning Republican National Convention Greg Johnson burns flag, charged, but later overturned 5-4 by S.C. protected by 1st amendment |
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U.S. v Eichman
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1990
Struck down the Flag Protection Act 5-4, same as Johnson |
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To be constitutional, a time, place and manner regulation of expression must be:
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1. content neutral
2. designed to serve a substantial government interest 3. be narrowly tailored to serve that interest 4. leave open alternative channels of communication |
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Traditional Public Forum
Designated public forum |
street corner, public park, etc.
city-owned auditorium, fairgrounds |
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Public property that is not a public forum
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prisons, military bases, airport concourse
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Huey P. Long
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enacted 2% tax on ad revenues of papers with more than 20,000 in circulation.
not allowed! |
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Grosjean v. American Press
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1936
A tax on newspapers that is both punitive and discriminatory violates the First Amendment, acts as prior restraint. |
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Tinker v. Des Moines Independent Community School District
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Tinkle 69
"black armbands case" reversed by Supreme Court, protects symbolic speech |
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Bethel School District v. Fraser
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1986
speech involved sexual innuendo Court refuses to apply Tinker, no political cause, simply against the rules. |
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Hazelwood School District v. Kuhlmeier
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1988
High School newspapers are NOT protected by the First Amendment New conservatism of the court left articles out |
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Kincaid v. Gibson
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2001
Sixth Circuit (OH/TN/KT/MI) Kentucky State yearbook decision: Hazelwood doesn't apply to colleges It's published |
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Hosty v. Carter
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2005
7th Circuit (IL/IN/WI) Hazelwood DOES apply to colleges |
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Barber v. Dearborn Schools
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2003
Anti-Bush tshirt Barber refers to Tinker, wins |
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Morse v. Frederick
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Bong Hits 4 Jesus
advocates illegal activity, not protected by student expression court refuses to apply Tinker |
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Libel
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Injures someone's reputation
Lower's that person's esteem in the community exposes the person to hatred, contempt or ridicule |
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Libel, plaintiff must show:
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1. Published
2. Identification 3. Proof it's defamatory 4. Proof it's false 5. Proof defendant was at fault (negligence or actual malice) |
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Defamatory:
Libel per se Libel per quod |
per se - direct - "thief, slut"
per quod - indirect - false statement |
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Problem areas for Libel
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Crimes
Sexual References Personal Information (alcoholism) Medical Conditions (STDs) Business Reputation (individual) |
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Libel before 1964:
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Strict liability - get anything wrong and you pay
Defendant had to prove truth |
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New York Times v. Sullivan (1964 - important!)
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landmark libel case
makes libel constitutional issue LB Sullivan was Montgomery Police commissioner NYT ad to help defend King, never named Sullivan established actual malice (knowledge of lying or disregard for truth) Only applies to public officials at this time press needs breathing room |
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Curtis Publishing v Butts
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Matchfixing
made stuff up, lost |
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Associated Press v. Walker
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1967
Walker loses, extends actual malice to public figures |
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CRIMINAL LAW
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burden of proof: beyond a reasonable doubt
state v. individual |
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CIVIL LAW
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individual v. individual
usually involves money burden of proof: by the preponderance of evidence |
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JEFFERSON AND ADAMS -- ALIEN AND SEDITION ACT OF 1798
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Acts were aimed at opponents of President John Adams and the Federalist Party. Enacted by Adams.
Jefferson, vice president by then, opposed the acts. Helped nullify it in a couple states. |
