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40 Cards in this Set
- Front
- Back
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The Court System
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• Trial courts and appellate courts
• Trial courts –trier of facts • Appellate courts—hears appeals from trial courts, reviews the application of law. To make sure that everyone gets a fair trial • Federal court system • 94 U.S. District Courts • 13 U.S. Circuit Courts of Appeals pg 11 diagram courts of appeals. Texas is in the 5th circuit along with Louisiana and Mississippi • 1 Supreme Court of the United States • Many district courts, fewer circuit courts and 1 supreme courts of the united states |
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Texas Court System
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• 456 District Courts
• 14 Courts of Appeals • 2 high courts |
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Supreme Court of the United States
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• Highest court in the land
• Final arbiter on the constitutional issues • Nine justices (see pg. 14) • Most powerful court • They decide what cases to hear • They review requests; four of nine must agree to hear case • Grant a writ of certiorari (cert. granted) • If not enough justices agree to hear a case, then they deny a write of certiorari (cert. denied) • Thousands of requests; only 100 or so cases are actually heard by the court |
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Origins of the First Amendment
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• New technology in 15th century was the printing press
• King of England and Roman Catholic Church banned criticism of their power • They used a licensing system to control the printing presses |
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Foundations of First Amendment Theory
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• In Areopagitica (1644), John Milton argued that an open marketplace of ideas benefited society
• Later John Locke wrote that all people have natural rights (life liberty and property ownership) • American colonies subject to seditious libel • The case of John Peter Zenger • Bedrock principle: truth as a defense • Us constitution signed in 1787 • Bill of rights ratified in 1791 • Alien and Sedition Acts of 1798 (this outlawed criticism of government officials, they thought France was going to invade France so congress passes this act that outlaws being able to enforce the foreign policy act) |
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19th Century (1800s)
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• Primary struggle related to free speech was the abolitionists movement
• State governments in the South banned publications that advocated for the end of slavery • Did this violate the First amendment? • Gitlow v New York, USSC (1925) |
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20th Century (1900s)
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• Supreme Court, for the first time, begins to interpret what the First Amendment means
• Near v. Minnesota, USSC (1931) • Weekly newspaper alleges that “a Jewish gangster was in control of gambling, bootlegging, and racketeering in Minneapolis and that law enforcing officers and agencies were not energetically performing their duties” |
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Near v. Minnesota
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• State public nuisance law allowed judges to shut down the newspaper for “scandalous and defamatory material”
• Trial court and Minnesota State Supreme Court ruled against newspaper • U.S. Supreme Court overturned the ban and the state public nuisance law, and allowed newspaper to continue publishing • In short, the high court said it was a classic case of prior restraint • Prior restraint: A sweeping government review that prevents the dissemination of ideas before publication |
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New York Times v United States (aka Pentagon Papers)
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• USSC (1971)
• “Pentagon Papers” case • Daniel Ellsberg leaks classified study • New York Times and Washington Post publish first installment in the summer of 1971 • Nixon administration sought injunction to stop newspapers from continuing to publish o Nixon still wanted newspapers to stop publishing, they know because they read the same papers and its accurate • Two federal courts—two different results. One orders NYT to stop publishing; other allows WP to continue publishing • USSC grants cert. in extraordinary fashion • Government argues that publishing the Pentagon Papers harms national security and foreign relations • Newspapers argue that the government’s prior restraint is unconstitutional • The key is the injunction—can the government stop the newspapers from publishing because of their perceived threat to national security? • Court said no; “[A]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” |
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Texas v. Johnson
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• USSC (1989)
• Gregory Johnson burned a U.S. flag at Republican National Convention in Dallas in 1984 • Johnson was convicted on a state statute that prohibited flag desecration • Texas Court of Criminal Appeals (highest court in Texas) overturned his conviction • USSC affirmed by a 5-4 vote • “[G]overnment may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” • Court used strict scrutiny |
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United States v. Eichman
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• Congress passed the Flag Protection Act of 1989
• United States v. Eichman, USSC (1990) • Instead of a state law, the court considered a federal statute • Same 5-4 majority overturned Flag Protection Act |
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Aftermath of flag-burning cases
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• Various attempts to pass a constitutional amendment outlawing flag desecration
• “The Congress shall have power to prohibit the physical desecration of the flag of the United States.” • In 2006, the U.S. Senate was one vote short of supporting the amendment (needed 2/3 of the vote, 67 votes) • Had it passed the Senate (with two-thirds vote) and the House with two-thirds vote, the amendment then would have gone to the states for approval • ¾ of states would have to ratify the amendment |
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United States v. O’Brien
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• USSC (1968)
• David Paul O’Brien burns his draft card at the Boston courthouse to protest the Vietnam War • Convicted under federal law for destroying or mutilating the draft card • O’Brien argued that his act of burning the draft card was protected by the First Amendment • USSC agreed the act was symbolic speech, but it was NOT protected by the First Amendment • Why not? • USSC used intermediate scrutiny |
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United States v. O’Brien
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• If a content-neutral law falls within the power of the government, it will be constitutional if:
o 1) it advances an important government interest (important and compelling are not legal synonyms) o 2) that interest is not related to suppression of speech o 3)it is narrowly tailored to achieve the government interest with only an incidental restriction of free expression • Apply intermediate scrutiny to the “Obrien case (pg 68) • Important government interest (maintaining a military via the draft) • A draft is not related to the suppression of speech • Crime of destroying or mutilating draft card is narrowly tailored with only an incidental restriction of free expression |
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United States v. O’Brien
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• Therefore, USSC upholds O’Brien’s conviction and says that the government interest (maintaining a military) outweighs O’Brien’s First Amendment right of free expression
• Court voted 7-1 against O’Brien • “[W]e think it is clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest.” –Chief Justice Earl Warren |
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Public and Nonpublic Forums
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• Public property is held in trust by the government for use by the public
• Many First Amendment activities take place in public property |
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Three types of public forums
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• 1. Traditional public forums
o parks, streets and sidewalks next to public buildings o appropriate time, place and manner restrictions may apply, as long as they are content-neutral • 2. Designated public forums o a designated public forum is sometimes available for First Amendment activities o government may place appropriate time, place and manner restrictions o government ensures the use does not conflict with the primary function of the property • 3. Nonpublic forums o areas that aren't available for traditional First Amendment activities o examples: military bases, prisons and post office walkways |
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Prune Yard Shopping Center
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• Shopping center argues they have the right to control their private property
• Students argue they have free expression rights to distribute fliers • USSC rules that California Constitution grants this right to students (though the U.S. Constitution does not) • USSC rules that states may give its residents more rights than the First Amendment, but cannot infringe upon those rights |
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First Amendment
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• Does the First Amendment protect speech?
• What if the speech causes great harm? • Supreme Court often weights competing interests to determine which right or value is more important • Laws that suppress speech because they threaten national security • Examples: Alien and Sedition Act of 1798 (United States preparing for war with France) • Espionage Act (1917) and Sedition Act (1918) (United States and World War I) • USA Patriot Act (2001) (United States and the war of terrorism) • Individual rights versus security |
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Chaplinsky v New Hampshire
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• USSC. 1942
• Fighting Words Doctrine • Chaplinsky distributing Jehovah’s Witness pamphlets • Residents were upset, so police arrested Chaplinsky • He called a police officer a “goddamned racketeer” and a “damned Fascist” • Conviction for disturbing the peace • USSC upheld his conviction |
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Chaplinsky v New Hampshire
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• Why?
• His words fall outside of First Amendment protection • Fighting words “by their very utterance inflict injury or tend to incite immediate breach of peace” • First Amendment does not protect speech that is 1)directed at an individual and 2) inherently likely to inflict emotional harm and/or trigger immediate violence |
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Terminiello v. Chicago
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• USSC, 1949
• Catholic priest speaks to a crowd of about 800 people in assembly hall; about 1,000 people outside protesting • Terminiello’s speech was anti-Semitic and pro-Fascist • Police arrest Terminiello after outside crowd becomes violent • USSC reversed his conviction |
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Legal protest
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• “the vitality of civil and political institutions in our society depends on free discussion”
• Court held that speech could be restricted only in the event that I was “lively to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience annoyance, or unrest.” • Writing for the 5-4 majority, Justice Douglas: “a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” • So if a speaker intends to incite violence then he or she loses first amendment protection |
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Legal protest
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• USSC values free speech—nearly everything, but when speech invites violence, then the First Amendment no longer applies
• Job of the police is to maintain order, not to arrest speakers and protesters* • Multiple court decisions hold that hostile audiences cannot silence lawful speakers • The first amendment protects lawful assemblies from disruption by opponents if o 1) the assembly is legal o 2) the assembly is orderly and nonviolent o 3) hostile onlookers create the threat of disruption or disturbance of the peace |
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Schenck v.US
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• USSC, 1919
• Charles Schenck mailed some 1500 pamphlets urging men to dodge the draft. • He was convicted convicted for violating the espionage act ◦Unanimous decision: Schenck speech (mailing the pamphlets) created a "clear and present danger" to the nation |
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Gitlow v. NewYork
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• USSC, 1925
• Gitlow, a socialist, distributed literature calling for socialism in the US • There was no evidence of harm or disruption • Gitlow said he was protected by the first amendment • USSC upheld Gitlows conviction on criminal anarchy charged and for advocating the overthrow of the government |
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Gitlow v. NewYork
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• Justice Holmes, in dissent, writes that a democratic society should allow free and open dialogue
• He believes mere dissemination of ideas does not harm or endanger the nation • Majority rule against Gitlows, but they all agreed with his first amendment argument • After the case the court expands the first amendment rights |
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14th amendment
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• “No state shall make or enforce by law which shall abridge the privileges or liberties of citizens in the US”
• Liberty means the rights in the first amendment • Doctrine of incorporation |
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Dennis v United States
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• USSC, 1951
• 12 alleged Communists accused of willfully and knowingly conspiring to overthrow the U.S. government by force • Convicted under the Smith Act • USSC upheld their convictions • Chief Justice Vinson wrote that strength and numbers of the revolutionists was irrelevant • “Overthrow of the Government by force and violence is certainly a substantial enough interest for Government to limit speech. Indeed, this is the ultimate value of any society…” |
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Yate v United States
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• USSC, 1957
• 14 people charged with Communist activities and calling for the violent overthrow of the government • USSC overturned the convictions and ordered new trials • Distinction between actually advocating violent action and teaching the desirability of violently overthrowing the government as an abstract theory • Call to action vs. teaching abstract doctrine • Effectively ended Smith Act prosecutions |
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Brandenburg v Ohio
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• USSC, 1969
• Clarence Brandenburg, KKK member, invited TV reporter to a rally • He said African-Americans should be sent back to Africa and Jews to Israel • Also called for “revengence” • Brandenburg arrested for violating an Ohio anarchy law • No violence resulted from Brandenburg’s speech • Key question: Was this a call to action or was it merely the teaching of abstract doctrine? • USSC said it was a call to action, but it wasn’t persuasive enough to cause imminent lawless action • Therefore, Brandenburg’s conviction was overturned • His speech, regardless of its perceived offensiveness, was protected by the First Amendment |
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Evolution of court rulings
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• Schenk – lost to the government
• Gitlow – lost to the government (though decision expanded First Amendment rights for everyone) • Dennis – lost to the government • Yates – prevailed against the government • Brandenburg – prevailed against the government • Brandenburg case is the law today |
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Disruptive Speech and Students
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• Do students have first amendment rights?
o Yes! |
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Tinker v. Des Moines
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• USSC, 1969
• Students wear black armbands as a symbolic protest of the Vietnam War • School officials quickly adopted a new policy: Wear black armbands and you’ll be suspended • Students were suspended, and lower courts upheld the suspensions • Supreme Court reversed, ruling that wearing black armbands was symbolic speech • It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” • “In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students.” • Framework: Students have free expression rights, unless it disrupts the educational process • No evidence of a disruption because of the students in the Tinker case • How were these students treated? |
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Hazelwood v. Kuhlmeier
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• USSC, 1988
• High school newspaper writes two articles: one about teenager pregnancy and the other about how students have been affected by their parents’ divorce • Principal sees articles before publication and pulls them from the newspaper • USSC rules 5-3, in favor of the principal • No disruption • Tinker rule did not apply • Majority opinion o School officials have control over school-sponsored activities, such as student newspapers, theatrical productions and other expressive activities • Justice Brennan, dissent: o The young men and women, of Hazelwood East expected a civics lesson, but not the one the court teaches them today… Such unthinking contempt for individual rights is intolerable from any state official. It is particularly insidious from (a school principal) to whom the public entrusts the task of inculcating in its youth an appreciation for the cherished democratic liberties that our Constitution guarantees” |
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Morse v. Frederick
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• USSC, 2007
• Facts: In 2002, the Olympic torch relay was being run in front of high school in Alaska • Joseph Frederick, high school senior, holds up a banner: “BONG HiTS 4 Jesus” • He was standing on a public sidewalk, across the street from the high school • Principal, Deborah Morse, seized the banner and suspended Frederick • Court ruled 5-4 in favor of Morse o School officials can prevent students from displaying messages that promote illegal drug use • The majority chose not to apply the Tinker framework • Doesn’t apply to college, college students have greater first amendment rights |
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“Offensive” protest
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• Cohen v. California
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Cohen v. California
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• USSC, 1971
• Cohen wore a jacket that had a message; What was the message? o “Fuck the Draft” • Political expression protected by the First amendment • Justin Harlan: o “While the particular four-letter word being litigated is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because government officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” |
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Snyder v Phelps
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• USSC, 2011
• Fred Phelps, pastor of the Westboro Baptist Church, based in Topeka, Kansas • Outspoken against gays and lesbians and often protests in public, denouncing homosexuality • Albert Snyder, father of Marine Lance Corporeal Matthew Snyder • Westboro Church protested on public property near the funeral • Synder sued the church for intentionally inflicting emotional distress • First Amendment right to free speech was implicated • Jury awarded $10 million in damages; district judge reduced it to about $5 million; Fourth U.S. Circuit Court of Appeals reversed and threw out the damages • In October 2010, the USSC head oral arguments • In June 2011, the Court ruled 8-1 in favor of the Westboro Baptist Church |
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Private organizations
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• Boy Scouts of America v Dale USSC 2000
• Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, USSC, 1995 |
