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81 Cards in this Set

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  • Back
The tension between which rights has been the heart of expressive conduct cases since the 1960s
Rights of the actor and those prevent when conduct is used as a means of expression.
What three kinds of conduct does the text identify?
-conduct that has no communicative value
-conduct that is purely communicative
-conduct that has a mix of communicative and noncommunicative elements
Can the government regulate purely communicative conduct?
Only in extremely rare instances
Can the government regulate conduct that has both speech and non-speech elements?
It may be reulated more readily than purely communicative conduct.
What tests does the Supreme Court apply in adjudicating cases in which individuals or groups claim constitutional protection for symbolic speech.
Is the conduct expressive?
If so, is the expressive conduct protected by the 1st amendment?
If conduct is expressive, what does the conduct express?
It becomes speech
What elements move action from doing to communicating?
The expressive nature of the conduct is the element that moves action from simply doing to communicating.
What questions does the court ask to determine if the conduct is expressive?
1-is there an intent to express a message?
2-is there a likelihood the message will be understood by a witness?
Does the court require that a viewer of expressive conduct understand the exact message the actor intends?
No, just a general understanding.
Is all expressive speech conduct protected by the first amendment?
The court delineated for the first time in US v O'Brien the test for determining what?
Whether expressive conduct is protected by the first amendment.
The court determines whether expressive conduct may be regulated by examining what?
The rationale behind the govt regulation being applied.
What test does the court apply if the purpose of the regulation is to restrict speech?
Strict scrutiny.
If the regulation is not directed at the suppression of speech, but at some other goal, the court applies what test?
Intermediate scrutiny (the O'Brien test).
The strict scrutiny test requires the resolution of what two questions?
-Is there a compelling govt interest for the regulation?
-Is the regulation necessary and narrowly tailored to advance the government interest.
What bedrock principle underlying the first amendment did Justice Brennan articulate in Texas v Johnson?
The govt may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
What did Chief Justice Earl Warren write about "incidental" limitations of first amendment freedoms.
When speech and non-speech elements combine in some form of expression, a sufficiently important government interest in regulating non-speech element of the communication can justify incidental limitations of first amendment freedoms.
What is the 4-part O'Brien test for determining when expressive conduct can be regulated by the government.
-Is the regulation within the power of the government?
-Does the regulation further an important or substantial government interest.
-Is the government interest unrelated to the suppression of free expression?
-Is the incidental restriction of free speech no greater than is essential to the furtherance of the stated government interest.
What has been the response of the states, the House of Representatives, and the US Senate to the Texas v Johnson case?
Many haven't been happy and have attempted to get a constitutional amendment.
What must happen for the constitution to be amendment?
3/4 vote senate and house, and 3/4 states legislation.
Has the supreme court granted constitutional protection to nude dancing? Why?
No. They don't like the message the conduct was expressing?
Fighting words are not expressive conduct, but "instances when speech takes on..." what?
...the role of conduct.
Why did Justice John Marshall Harlan argue that Cohen's conduct was protected speech?
Expressed otherwise inexpressible emotions.
What are "fighting words" according to Chaplinsky v New Hampshire?
Words which by their very utterance inflict injury or tend to incite an immediate breach of the peace.
What conditions must be present for the fighting-words doctrine to apply?
Words must be particularly violent or obnoxious and aimed directly at an individual.
What did Justice William O Douglas have to say about free speech in the Terminiello v Chicago case?
Free speech is designed to invoke dispute.
How did the Terminiello case differ from the Chaplinsky case?
It did not involve a face-to-face confrontation.
Why did the Supreme court reverse in RAV v St Paul?
Ordinance allowed fighting words unless they were aimed at a member of one of the classes specified.
What has the supreme court held about peaceful picketing?
-peaceful picketing cannot be licensed
-the restrictions on picketing must be content-neutral
-picketing cannot be banned from public property
What is the difference between picketing in public forums and picketing on private property?
Public forums are always protected as long as it's peaceful and doesn't interfere with public use. With private property, as long as the property is used for public purpose and it's obvious the picketers are expressing their own views and not speaking for the property owners.
What has the court said about restrictions on persons who picket abortion clinics?
They can't do it if they're going to try to limit the conduct of women going in to have an abortion.
What are the parallel issues in the speech/conduct conundrum?
Conduct that takes on the role of speech; speech that takes on the role of conduct.
What is historical censorship, as discussed in this section?
It attempts to control speech (prior restraint).
What is the "dilemma" that runs throughout this chapter.
The battles against the historical form of censorship have been won, and an extensive body of law seems to have extinguished the prospect of future laws. But are we stretching it to the breaking point by putting too much under its umbrella.
Why do we study the english experience with censorship?
Much of US law has its roots in english law. It is important to take english experience with censorship to understand how and why US law evolved as it did.
When was the printing press introduced in england?
What was the Proclamation of 1538, and what did it do "for the first time?"
A licensing system that required that no person could print any book unless it had first been examined and approved. It was the first time that political speech was subject to censorship.
printers must post them and they could be forfeited if their publications offended him
Stationer's Company
Officially sanctioned printers, obtained monopolies on printing certain works, ie the bible.
same as today, just limited to certain works
What might happen to "brave" printers who flouted the system?
Forfeiture of property, fines, imprisonment, torture, amputation, execution.
What were the primary forms of governmental regulation after licensing was done away with?
Prosecutions for seditious libel, and taxation.
What was the Areopagitica and when was it published?
The classic attack on prior restraint. It was published in 1644 and was unlicensed.
What happens, according to Milton, when Truth and Falsehood grapple?
Truth wins
When did the Licensing Act finally die in England?
Licensing continued in the American colonies until when? What was Benjamin Franklin's relationship to the event?
1720s. His brother's publication got limited by MA so he took over.
What distinctions does Blackstone make between previous restraints and subsequent punishments?
No prior restraint although people must suffer consequences.
What arguments do the narrow and broad constructionists make about the intent of the framers with regard to prior restraints and subsequent punishments.
Broad: Blackstone, common law of the day = first amendment
Narrow: If only to reflect common law, why have first amendment?
Is it possible to provide a definitive answer to the question?
Why is it currently relevant to know the framers' intent?
Because current interpretation of the constitution often begins with an inquiry into the intent of the framers.
"The historical record of suppression and manipulation of the press by governments eager to promote their self-interest serves as evidence of" what?
What can happen in the absence of a prior restraint doctrine.
Prior restraint, historically understood, involved what?
1-submitting all proposed publications 2-to government censors 3-who exercised considerable discretion regarding the content tot be approved for publication 4-imposed specifically on publication 5-in advance of the publication.
Did prior restraint historically refer to isolated govt efforts to suppress speech?
No, every publication, and every proposed publication.
Prior restraint is a phrase synonymous with what?
Prior review.
Prior restraint historically meant suppression by what and not by whom?
Suppression by government, not individuals or institutions not associated with the government.
Was historical prior restraint a restrain on speech?
Not really.
What critical objection to a system of prior restraint does the text note?
The considerable discretion exercised by censors.
Under the historical definition, were restrictions on news gathering and failure to reveal a source considered to be prior restraints?
How did the court distinguish between prior restraints and subsequent punishments in Alexander v US?
They weren't keeping him from future speech.
What is the most odious and least tolerable infringement of speech, according to the court?
Prior restraint.
What is the point of subsequent punishment?
To restrain speech in advance, too.
What points does Professor Thomas Emerson advance to show that government restraint applied prior to publication is worse than subsequent punishments?
The breadth (all publications) timing and delay (no one sees it) propensity toward an adverse decision.
Prior restraint is inconsistent with what?
A constitutional system of limited government.
What are the libertarian principles that provide the intellectual foundation for the doctrine against prior restraint?
1-suspicious of govt
2-licensing method of enforcing social norms
3-subordination of individual autonomy
What is the significance of Near v Minnesota?
Supreme court adopted doctrine of prior restraint as constitutional law.
What is the significance of Gosjean v American Press?
Articulate the checking system of the press and the threat of govt abuse of authority can have on that value (no stamp tax!).
Prior restraints are presumed unconstitutional, and it is up to" (who or what) "to bear the heavy burden of attempting to overcome that presumption?
The government.
What does the government attempt to avert by restraining expression?
The consequences of speech that has not yet been uttered.
What is the significance of the Pentagon Papers case?
Reveal real "danger," government risk was its own embarrassment.
What paradox does the text speak of?
Security through risk; the freedom to espouse no freedom, freedom for the speech we hate, a right to be wrong.
The theory of our constitution, according to Holmes, is that attempts to achieve security through suppression pose a greater risk than what?
The risk is not in speech being published, but in it not being published
The concept of individual autonomy answers which fundamental question in each prior restraint case?
Who is to decide? What, when, where = speaker
What "amazing" aspects of the doctrine against prior restraint does the author identify?
Vitality despite having roots stretching back more than three centuries, and more questions still emerge
What are the three elements of the clear and present danger test, as articulated by Brandeis?
-Reasonable ground to fear that serious evil will result if free speech is practiced
-reasonable to believe the danger apprehended ins imminent
-reasonable ground to believe the evil to be prevented is a serious one
What does it mean that speech regulations are either vague or over broad?
Mere conjuncture is insufficient. There may have been other ways to minimize coverage. IF the speech were stopped, would the danger stop, too?
What conditions constitute prior restraint today?
1-govt prohibition 2-of a specific publication 3-based on its content 4-after the exercise of discretion and 5-in advance of publication.
When a regulation is defined as prior restraint, is it presumed to be unconstitutional? Who has the burden to overcome that presumption.
Yes. The government.
What must the government prove in order to overcome the presumption of unconstitutionality?
-The danger is serious
-that it is imminent
-the speech is the cause of the danger and by stopping the speech you stop the danger
-that no alternatives will work
-not vague or over broad
What is the central question relating to the element of the danger caused by speech?
Whether the speech at issue in the case causes the danger.
When a danger is caused by speech, should regulating speech be the first resort or the last?
Has the US supreme court ever actually decided in favor of a prior restraint against the press?
1990, CNN, Noriega.