Poli 411

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Legal Model (How justices decide)

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•PRECEDENT (stare decisis)
A way we maintain legal scheme; it makes sure we have consistency
•INTENT of the Framers of Constitution
•PLAIN MEANING
Most important aspect of the legal model
The Constitution should be interpreted based exactly on what the words say
BUT the constitutional is not “plain”
•BALANCING OF INTEREST (between Indiv & Govt)
Usually decide in favor of government because the interest of the government almost always beats those of an individual
•FACTS of the Case

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Attitudinal Model

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• Justices make decisions on the basis of values, ideological preferences, their beliefs, etc.
• This model directs our attention to the personal elements in decision making
• It is due to this that appointments to SC have gotten so controversial

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Strategic Model

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• Interdependence of Behavior
• When you are placed in a situation where you have to compete with someone else, you have to develop a strategy to come out ahead
• Similar to prisoner’s dilemma
• You act based on what you think other justices will do
• If you think the case won’t win (like you want it to), then you vote to not give it cert so that topic isn’t even discussed
• Important at certiorari & merit decision stage
• strategic relies on interdependence of action

o Justices realize that their ability to achieve their goals depends on a consideration of the preferences of other relevant actors, the choices they expect others to make, and the institutional context in which they act
• i.e. justices are strategic more so than they are ideological or jurisprudential

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Extra-Legal approaches to judicial decision-making

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• Public Opinion
• Interest Groups
• Partisan politics
• Establish Foreign Precedents

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Marbury v. Madison (facts)

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The case began on March 2, 1801, when an obscure Federalist, William Marbury, was designated as a justice of the peace in the District of Columbia. Marbury and several others were appointed to government posts created by Congress in the last days of John Adams's presidency, but these last-minute appointments were never fully finalized. The disgruntled appointees invoked an act of Congress and sued for their jobs in the Supreme Court.

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Constraints on Judicial Power

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Jurisdiction
Justiciability
Implementation
Mootness & Standing
Checks & Balances

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Current justices

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Ruth Bader Gingsburg, Elena Kagan, Sonia Sotomayor, Stephen Breyer, Anthony Kennedy, John Roberts, Samuel Alito, Clarence Thomas, Antonin Scalia (liberal to conservative)

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Ratifying Constitution

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1. 2/3rd pass in Congress & 3/4th of state legislatures (26 of the amendments used this)
2. 2/3rd pass in Congress & ratifying conventions in 3/4th of states
3. constitutional convention can be called by 2/3rd of states & 3/4th of states have to approve
4. constitutional convention with ratifying conventions in 3/4th of states

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Articles of Confederation

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Pros: Formalized league of friendship between colonies

Cons: Didn’t really change how government would function just legalized status quo. only had room for one-chamber legislature (Congress), no executive branch, no judiciary

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Original Jurisdiction

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from Article 3, power of a court to hear/decide cases for the first time
• District courts have it
• Can only be altered through constitutional amendment

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Appellate Jurisdiction

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the controversy has been decided by a lower court previously
• Ways cases get to the court:
 Writ of certiorari
• Lawyer submits a claim asking court to become “informed” on this controversy (90%)
 Writ of certification
• When the court of appeals gets a case where the law isn’t very clear and they need guidance from Supreme Court. A judge requests information about how to decide a particular case.
 On appeal
• Supreme Court required to hear case because it’s such a huge/controversial topic. Congress asks Court to hear it.

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Case Selection Process

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• 1. Staff – when a petition arrives, clerk’s office makes sure it is in proper form (in forma pauperis briefs are exceptions for people who cant afford court’s fees). Petition gets a docket number and is forwarded to chambers of the justices
• 2. Justices’ Clerks – except for a few, most justices use the “certiorari pool system” in which clerks collaborate in reading & writing memos on the petitions.
• 3. Justices - review info from their clerks and can then ask their clerks for their opinions on what to hear.
• 4. Chief Justice – issues a “discuss list” of cases he feels are most important. Justices (by seniority) may add cases, but none can be removed. Then justices discuss which ones to take

Justices usually say how they will vote before they officially decide whether or not to take the case

Rule of Four: grants certiorari to cases receiving the affirmative vote of at least four justices

“Certified Orders List” – lists cases accepted & rejected

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Brief on the Merits

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telling the justices why you think you should prevail in this case, you write on the legal merits of the controversy, what precedents/cases do you want to cite?

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Legal Cues

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legal cues that Supreme Court might take a case:

Legal Conflict
 between Supreme Court precedent and lower court decision
 conflict between 2 different Court of Appeals (COA) panels (intra-circuit conflict)
 conflict between 2 different COA (inter-circuit conflict)

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Political Cues

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political cues that supreme court might take a case:

 Public opinion
 Number of amicus curiae briefs/Interest Group
 Political implications
 Federal Government
 Civil Liberties cases
• Civil rights deal with 14th amendment, written down rights involving equality of individuals
• Liberties are inherent to us as human beings (speech, religion, etc)
 Ideology of the Court

o US Solicitor General (SG) – aka the attorney who represents the US government before the Supreme Court – will likely be granted certiorari for his petitions
• Represents nation’s highest interests and Court respects that he only submits important cases
• Have advantage of being repeat players who know the game

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4 Ways to Come to Supreme Court

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• Request for a review under the Court’s original jurisdiction
• 3 appellate routes
o appeals, certification, & petitions for writs of certiorari

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Appeal as a matter of right

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o Cases that congress has determined are so important that a ruling by the supreme court is necessary

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Certification

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o Lower appellate courts can file writs of certification asking the justices to respond to questions aimed at clarifying federal law (since only judges can do this, few cases come this way)

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Strategic Approach

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o Justices realize that their ability to achieve their goals depends on a consideration of the preferences of other relevant actors, the choices they expect others to make, and the institutional context in which they act
• i.e. justices are strategic more so than they are ideological or jurisprudential

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Ex Parte McCardle

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• Congress has authority to remove Court’s appellate jurisdiction (Ex parte McCardle)
• Ex parte McCardle
 Reconstruction laws after the Civil War, McCardle criticized government for these laws, he was tried for libel/slander in a military court, McCardle alleged he was illegally held since he was not involved in the military
 McCardle called for a writ of habeas corpus (typically filed by prisoners when they feel they are unjustly held, gives a new set of justices to review case)
 Congress repealed the habeas corpus act of 1867 because justices were leaning against McCardle (?), therefore the Supreme Court couldn’t hear the case
• But not a widely held view

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Incorporation

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o Incorporation is a process, the way court applies first 10 amendments to the states
o When constitution was framed, the BOR was meant to protect states from powers of federal government
o Without incorporation, states can do what they want and don’t have to follow First Amendment, etc
o With incorporation, states can give you MORE rights, but they cannot take away the minimum rights

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Barron v. Baltimore (1833)

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• Question:
 Does the Fifth Amendment deny the states as well as the national government the right to take private property for public use without justly compensating the property's owner?
• Conclusion:
 No. The Court announced its decision in this case without even hearing the arguments of the City of Baltimore. Writing for the unanimous Court, Chief Justice Marshall found that the limitations on government articulated in the Fifth Amendment were specifically intended to limit the powers of the national government. Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D.C., Marshall argued that the Supreme Court had no jurisdiction in this case since the Fifth Amendment was not applicable to the states.

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Palko v. Connecticut (1937)

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• Facts of the Case:
 Palko broke into convenience store and killed 2 officers. Frank Palko had been charged with first-degree murder. He was convicted instead of second-degree murder and sentenced to life imprisonment. The state of Connecticut appealed and won a new trial; this time the court found Palko guilty of first-degree murder and sentenced him to death.
• Question:
 Does Palko's second conviction violate the protection against double jeopardy guaranteed by the Fifth Amendment because this protection applies to the states by virtue of the Fourteenth Amendment's due process clause?
• Conclusion:
 The Supreme Court upheld Palko's second conviction. In his majority opinion, Cardozo formulated principles that were to direct the Court's actions for the next three decades. He noted that some Bill of Rights guarantees--such as freedom of thought and speech--are fundamental, and that the Fourteenth Amendment's due process clause absorbed these fundamental rights and applied them to the states. Protection against double jeopardy was not a fundamental right. Palko died in Connecticut's electric chair on April 12, 1938.
• This gives us first time Court defines a standard involving incorporation of BOR. Justices define “fundamental rights” as those rights without which justice and liberty cannot exist. Fundamental rights of BOR apply to the states.
• Examples of fundamental rights: freedom of speech, religion, press, etc.
• The states cannot deny fundamental rights.
• Palko is important because it actually laid a standard, but it wasn’t first case about incorporation.

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Hurtado v. California (1884)

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• Question:
 Does a state criminal proceeding based on an information rather than a grand jury indictment violate the 14th Amendment's due process clause?
• Conclusion:
 No, this was not a violation of due process. Any legal proceeding that protects liberty and justice is due process. The majority opinion, authored by Matthews, reasoned that the Constitution cannot be locked into static conceptions bound by time and place. The Court also took the position that nothing in the Constitution is superfluous. Since the Fifth Amendment contains both a guarantee of grand jury proceedings and a guarantee of due process, the latter cannot embrace the former. An information is equivalent to a grand jury indictment. The court refused again to incorporate BOR using the grand jury clause of 5th amendment.

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Definition of Religion

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Religion is a belief in a higher being that is sincerely held and is recognized by society as a religious matter

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Valid Secular Policy Test

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If a state makes a law that is completely secular (even if it has religious overtones), then it is constitutional

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Cantwell v. Connecticut (1940)

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•Facts of the Case:
o Jesse Cantwell and his son were Jehovah's Witnesses; they were proselytizing a predominantly Catholic neighborhood in Connecticut. The Cantwells distributed religious materials by travelling door-to-door and by approaching people on the street. After voluntarily hearing an anti-Roman Catholic message on the Cantwells' portable phonograph, two pedestrians reacted angrily. The Cantwells were subsequently arrested for violating a local ordinance requiring a permit for solicitation and for inciting a breach of the peace. Appellants argued Connecticut violated freedom of worship, speech & press. Freedom of religion should be one of the liberties the 14th protects against state invasion.
•Question:
o Did the solicitation statute or the "breach of the peace" ordinance violate the Cantwells' First Amendment free speech or free exercise rights?
•Conclusion:
o Yes. In a unanimous decision, the Court held that while general regulations on solicitation were legitimate, restrictions based on religious grounds were not. Because the statute allowed local officials to determine which causes were religious and which ones were not, it violated the First and Fourteenth Amendments. The Court also held that while the maintenance of public order was a valid state interest, it could not be used to justify the suppression of "free communication of views." The Cantwells' message, while offensive to many, did not entail any threat of "bodily harm" and was protected religious speech. Invalidated Connecticut statute which said license issued only to legitimate religious issues.
•Miscellaneous
o Religious belief found to be a fundamental right, so it was incorporated to apply to the states

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Sherbert v. Verner (1963)

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• Facts of the Case:
o Adeil Sherbert, a member of the Seventh-day Adventist Church, was fired from her job after she refused to work on Saturday, the Sabbath Day of her faith. The South Carolina Employment Security Commission denied her benefits, finding unacceptable her religious justification for refusing Saturday work. They said there was work available (even if it was on Saturday), so she can’t get unemployment benefits.
• Question:
o Did the denial of unemployment compensation violate the First and Fourteenth Amendments?
• Conclusion:
o Yes. The Court held that the state's eligibility restrictions for unemployment compensation imposed a significant burden on Sherbert's ability to freely exercise her faith. Furthermore, there was no compelling state interest which justified such a substantial burden on this basic First Amendment right.
• Miscellaneous
o Resulted in Compelling Interest Test (aka strict scrutiny/Sherbert Test)
• Is the law secular in purpose?
• Does that law achieve government’s goal with the least restrictive means possible on freedom of religion?
• Is there a compelling state interest?
 Three different levels of interest & standards used to interpret them:
 Important: rational basis test
 Substantial: heightened scrutiny test
 Compelling: strict scrutiny test

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Wisconsin v. Yoder (1972)

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• Facts of the Case:
o Jonas Yoder and Wallace Miller, both members of the Old Order Amish religion, and Adin Yutzy, a member of the Conservative Amish Mennonite Church, were prosecuted under a Wisconsin law that required all children to attend public schools until age 16. The three parents refused to send their children to such schools after the eighth grade, arguing that high school attendance was contrary to their religious beliefs.
• Question:
o Did Wisconsin's requirement that all parents send their children to school at least until age 16 violate the First Amendment by criminalizing the conduct of parents who refused to send their children to school for religious reasons?
• Conclusion:
o In a unanimous decision, the Court held that individual's interests in the free exercise of religion under the First Amendment outweighed the State's interests in compelling school attendance beyond the eighth grade. In the majority opinion by Chief Justice Warren E. Burger, the Court found that the values and programs of secondary school were "in sharp conflict with the fundamental mode of life mandated by the Amish religion," and that an additional one or two years of high school would not produce the benefits of public education cited by Wisconsin to justify the law. Justice William O. Douglas filed a partial dissent but joined with the majority regarding Yoder.
• Miscellaneous
o Amish
• Withdraw from modern society
• Abhor competition/technology
• No public education after 8th grade
• No emphasis on individualism
• Conservative traditional beliefs

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Employment Division v. Smith (1990)

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• Facts of the Case:
o Two Native Americans who worked as counselors for a private drug rehabilitation organization, ingested peyote -- a powerful hallucinogen -- as part of their religious ceremonies as members of the Native American Church. As a result of this conduct, the rehabilitation organization fired the counselors. The counselors filed a claim for unemployment compensation. The government denied them benefits because the reason for their dismissal was considered work-related "misconduct." The counselors lost their battle in state court. But the U.S. Supreme Court vacated the Oregon Supreme Court's judgment against the disgruntled employees, and returned the case to the Oregon courts to determine whether or not sacramental use of illegal drugs violated Oregon's state drug laws (485 U.S. 660 (1988)). On remand, the Oregon Supreme Court concluded that while Oregon drug law prohibited the consumption of illegal drugs for sacramental religious uses, this prohibition violated the free exercise clause. The case returned to the U.S. Supreme Court in this new posture.
• Question:
o Can a state deny unemployment benefits to a worker fired for using illegal drugs for religious purposes?
• Conclusion:
o Yes. Justice Antonin Scalia, writing for the majority, observed that the Court has never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind." Scalia cited as examples compulsory military service, payment of taxes, vaccination requirements, and child-neglect laws.
• Miscellaneous
o Congress passed RFRA (Religious Freedom Restoration Act) in retaliation
o Restored the “compelling interest” test as the standard
o Court said Sherbert Test didn’t apply because Sherbert dealt with hybrid rights (two or more rights) and this only dealt with religion

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City of Boerne v. Flores (1997)

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• Facts of the Case:
o The Archbishop of San Antonio sued local zoning authorities for violating his rights under the 1993 Religious Freedom Restoration Act (RFRA), by denying him a permit to expand his church in Boerne, Texas. Boerne's zoning authorities argued that the Archbishop's church was located in a historic preservation district governed by an ordinance forbidding new construction, and that the RFRA was unconstitutional insofar as it sought to override this local preservation ordinance. On appeal from the Fifth Circuit's reversal of a District Court's finding against Archbishop Flores, the Court granted Boerne's request for certiorari.
• Question:
o Did Congress exceed its Fourteenth Amendment enforcement powers by enacting the RFRA which, in part, subjected local ordinances to federal regulation?
• Conclusion:
o Yes. Under the RFRA, the government is prohibited from "substantially burden[ing]" religion's free exercise unless it must do so to further a compelling government interest, and, even then, it may only impose the least restrictive burden. The Court held that while Congress may enact such legislation as the RFRA, in an attempt to prevent the abuse of religious freedoms, it may not determine the manner in which states enforce the substance of its legislative restrictions. This, the Court added, is precisely what the RFRA does by overly restricting the states' freedom to enforce its spirit in a manner which they deem most appropriate. With respect to this case, specifically, there was no evidence to suggest that Boerne's historic preservation ordinance favored one religion over another, or that it was based on animus or hostility for free religious exercise.
• Miscellaneous
o RFRA was unconstitutional.

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Everson v. Board of Education (1947)

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• Facts of the Case:
o A New Jersey law allowed reimbursements of money to parents who sent their children to school on buses operated by the public transportation system. Children who attended Catholic schools also qualified for this transportation subsidy.
• Question:
o Did the New Jersey statute violate the Establishment Clause of the First Amendment as made applicable to the states through the Fourteenth Amendment?
• Conclusion:
o No. A divided Court held that the law did not violate the Constitution. After detailing the history and importance of the Establishment Clause, Justice Black argued that services like bussing and police and fire protection for parochial schools are "separate and so indisputably marked off from the religious function" that for the state to provide them would not violate the First Amendment. The law did not pay money to parochial schools, nor did it support them directly in anyway. It was simply a law enacted as a "general program" to assist parents of all religions with getting their children to school.
• Miscellaneous
o Issues dealing with money are focused around the establishment clause (not free exercise clause)
o Money didn’t go to school. It went to children’s families.
o There was no concrete legal standard announced to guide future standards.
o Although case outcome is accomodationist, the justices used separatist logic in writing the opinion.
o This case incorporated establishment clause. Justices said the aid was secular in purpose, which is why it is constitutional.

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Abinton Township v. Schempp

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• About school prayer/moments of silence in schools
• Cannot have moments of silence that are directed at a religious reason
• Case also involves bible reading
• Schempp is part of a church but didn’t want children participating in bible reading at school
• An influential sect might bring about a fusion of government & school which could sway towards that sect if bible reading is allowed. Lack of neutrality on part of the government may create a dependency of one upon the other. Depending on each other might degrade both. Use of government to advance religious activity violates the concept of personal choice/freedom.
• Abinton Test:
o Government should neither advance nor inhibit religion
o Law should be secular

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Lemon v. Kurtzman (1971)

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• Facts of the Case:
o This case was heard concurrently with two others, Earley v. DiCenso (1971) and Robinson v. DiCenso (1971). The cases involved controversies over laws in Pennsylvania and Rhode Island. In Pennsylvania, a statute provided financial support for teacher salaries, textbooks, and instructional materials for secular subjects to non-public schools. The Rhode Island statute provided direct supplemental salary payments to teachers in non-public elementary schools. Each statute made aid available to "church-related educational institutions."
• Question:
o Did the Rhode Island and Pennsylvania statutes violate the First Amendment's Establishment Clause by making state financial aid available to "church-related educational institutions"?
• Conclusion:
o Yes. Writing for the majority, Chief Justice Burger articulated a three-part test for laws dealing with religious establishment. To be constitutional, a statute must have "a secular legislative purpose," it must have principal effects which neither advance nor inhibit religion, and it must not foster "an excessive government entanglement with religion." The Court found that the subsidization of parochial schools furthered a process of religious inculcation, and that the "continuing state surveillance" necessary to enforce the specific provisions of the laws would inevitably entangle the state in religious affairs. The Court also noted the presence of an unhealthy "divisive political potential" concerning legislation which appropriates support to religious schools.
• Miscellaneous
o Lemon Test (adds a third point to the Abinton Test):
• Statute must have a secular purpose
• Statute’s principle or primary effect must be one that neither advances nor inhibits religion
• The statute must not foster an excessive government entanglement with religion

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Edwards v. Aguillard (1987)

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• Facts of the Case:
o A Louisiana law entitled the "Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act" prohibited the teaching of the theory of evolution in the public schools unless that instruction was accompanied by the teaching of creation science, a Biblical belief that advanced forms of life appeared abruptly on Earth. Schools were not forced to teach creation science. However, if either topic was to be addressed, evolution or creation, teachers were obligated to discuss the other as well.
• Question:
o Did the Louisiana law, which mandated the teaching of "creation science" along with the theory of evolution, violate the Establishment Clause of the First Amendment as applied to the states through the Fourteenth Amendment?
• Conclusion:
o Yes. The Court held that the law violated the Constitution. Using the three-pronged test that the Court had developed in Lemon v. Kurtzman (1971) to evaluate potential violations of the Establishment Clause, Justice Brennan argued that Louisiana's law failed on all three prongs of the test. First, it was not enacted to further a clear secular purpose. Second, the primary effect of the law was to advance the viewpoint that a "supernatural being created humankind," a doctrine central to the dogmas of certain religious denominations. Third, the law significantly entangled the interests of church and state by seeking "the symbolic and financial support of government to achieve a religious purpose."

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Zelman v. Simmons-Harris (2002)

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• Facts of the Case:
o Ohio's Pilot Project Scholarship Program provides tuition aid in the form of vouchers for certain students in the Cleveland City School District to attend participating public or private schools of their parent's choosing. Both religious and nonreligious schools in the district may participate. Tuition aid is distributed to parents according to financial need, and where the aid is spent depends solely upon where parents choose to enroll their children. In the 1999-2000 school year 82 percent of the participating private schools had a religious affiliation and 96 percent of the students participating in the scholarship program were enrolled in religiously affiliated schools. Sixty percent of the students were from families at or below the poverty line. A group of Ohio taxpayers sought to enjoin the program on the ground that it violated the Establishment Clause. The District Court granted them summary judgment, and the Court of Appeals affirmed.
• Question:
o Does Ohio's school voucher program violate the Establishment Clause?
• Conclusion:
o No. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held that the program does not violate the Establishment Clause. The Court reasoned that, because Ohio's program is part of Ohio's general undertaking to provide educational opportunities to children, government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients and the incidental advancement of a religious mission, or any perceived endorsement, is reasonably attributable to the individual aid recipients not the government. Chief Justice Rehnquist wrote that the "Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice

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Lee v. Weisman (1992)

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• Facts of the Case:
o In keeping with the practice of several other public middle and high school principals in Providence, Rhode Island, Robert E. Lee, a middle school principal, invited a rabbi to speak at his school's graduation ceremony. Daniel Weisman's daughter, Deborah, was among the graduates. Hoping to stop the rabbi from speaking at his daughter's graduation, Weisman sought a temporary restaining order in District Court - but was denied. After the ceremony, where prayers were recited, Weisman filed for a permanent injunction barring Lee and other Providence public school officials from inviting clergy to deliver invocations and benedictions at their schools' ceremonies. When the Court of Appeals affirmed a District Court ruling against the schools, Lee appealed to the Supreme Court and was granted certiorari.
• Question:
o Does the inclusion of clergy who offer prayers at official public school ceremonies violate the Establishment Clause of the First Amendment?
• Conclusion:
o Yes. In a 5-to-4 decision, the Court held that government involvement in this case creates "a state-sponsored and state-directed religious exercise in a public school." Such conduct conflicts with settled rules proscribing prayer for students. The school's rule creates subtle and indirect coercion (students must stand respectfully and silently), forcing students to act in ways which establish a state religion. The cornerstone principle of the Establishment Clause is that government may not compose official prayers to recite as part of a religious program carried on by government.

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Van Orden v. Perry (2005)

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• Facts of the Case:
o Thomas Van Orden sued Texas in federal district court, arguing a Ten Commandments monument on the grounds of the state capitol building represented an unconstitutional government endorsement of religion. Orden argued this violated the First Amendment's establishment clause, which prohibits the government from passing laws "respecting an establishment of religion." The district court and the Fifth Circuit Court of Appeals ruled against Orden and said the monument served a valid secular purpose and would not appear to a reasonable observer to represent a government endorsement of religion.
• Question:
o Does a Ten Commandments monument on the grounds of a state capitol building violate the First Amendment's establishment clause, which barred the government from passing laws "respecting an establishment of religion?"
• Conclusion:
o No. In 5-4 decision, and in a four-justice opinion delivered by Chief Justice William H. Rehnquist, the Court held that the establishment clause did not bar the monument on the grounds of Texas' state capitol building. The plurality deemed the Texas monument part of the nation's tradition of recognizing the Ten Commandments' historical meaning. Though the Commandments are religious, the plurality argued, "simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the establishment clause."

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Schenck v. United States (1919)

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• Facts of the Case:
o During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment.
• Question:
o Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment?
• Conclusion:
o Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. The character of every act depends on the circumstances. "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." During wartime, utterances tolerable in peacetime can be punished.
• Miscellaneous
o Clear & Present Danger test created
o This is a federal case so nothing was incorporated to the states
o Formulated a standard for subsequent free speech cases

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Gitlow v. New York (1925)

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• Facts of the Case:
o Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterences without propensity to incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law.
• Question:
o Does the New York law punishing the advocacy of overthrowing the government an unconstitutional violation of the free speech clause of the First Amendment?
• Conclusion:
o Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment). On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all.
• Miscellaneous
o Dealt with an act similar to Espionage Act (but on NY state level)
o Violated Criminal Anarchy Act (of NY)
o Almost any kind of speech by unpopular people can be interpreted to have malicious intent, so easy for them to lose
o Bad Tendency test created

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Dennis v. United States (1951)

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• Facts of the Case:
o In 1948, the leaders of the Communist Part of America were arrested and charged with violating provisions of the Smith Act. The Act made it unlawful to knowingly conspire to teach and advocate the overthrow or destruction of the United States government. Party leaders were found guilty and lower courts upheld the conviction.
• Question:
o Did the Smith Act's restrictions on speech violate the First Amendment?
• Conclusion:
o In a 6-to-2 decision, the Court upheld the convictions of the Communist Party leaders and found that the Smith Act did not "inherently" violate the First Amendment. In the plurality opinion, the Court held that there was a distinction between the mere teaching of communist philosophies and active advocacy of those ideas. Such advocacy created a "clear and present danger" that threatened the government. Given the gravity of the consequences of an attempted putsch, the Court held that success or probability of success was not necessary to justify restrictions on the freedom of speech.
• Miscellaneous
o Clear and probable danger test created

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Brandenburg v. Ohio (1969)

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• Facts of the Case:
o Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."
• Question:
o Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments?
• Conclusion:
o The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.

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West Virginia BOE v. Barnett (1943)

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• Facts of the Case:
o The West Virginia Board of Education required that the flag salute be part of the program of activities in all public schools. All teachers and pupils were required to honor the Flag; refusal to salute was treated as "insubordination" and was punishable by expulsion and charges of delinquency.
• Question:
o Did the compulsory flag-salute for public schoolchildren violate the First Amendment?
• Conclusion:
o In a 6-to-3 decision, the Court overruled its decision in Minersville School District v. Gobitis and held that compelling public schoolchildren to salute the flag was unconstitutional. The Court found that such a salute was a form of utterance and was a means of communicating ideas. "Compulsory unification of opinion," the Court held, was doomed to failure and was antithetical to First Amendment values. Writing for the majority, Justice Jackson argued that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
• Miscellaneous
o Symbolic Speech

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US v. O’Brien (1968)

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• Facts of the Case:
o David O'Brien burned his draft card at a Boston courthouse. He said he was expressing his opposition to war. He was convicted under a federal law that made the destruction or mutilation of drafts card a crime.
• Question:
o Was the law an unconstitutional infringement of O'Brien's freedom of speech?
• Conclusion:
o No. The 7-to-1 majority, speaking through Chief Justice Earl Warren, established a test to determine whether governmental regulation involving symbolic speech was justified. The formula examines whether the regulation is unrelated to content and narrowly tailored to achieve the government's interest. "[W]e think it clear," wrote Warren," 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 incidential restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest."
• Miscellaneous
o Symbolic Speech
o Issue came up due to Vietnam controversy
o O’Brien test: essentially a strict scrutiny test. Judges cases where speech & non-speech elements are in the same action
• The regulation is within the Constitutional power of the government
• Law should further substantial or important government interest
• Government interest is unrelated to the suppression of free expression (the government isn’t intending to suppress free expression)
• The incidental restriction is no greater than is necessary to further govt interest. Aka law should use least restrictive means
o Must meet all prongs to be considered constitutional

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Texas v. Johnson (1989)

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• Facts of the Case:
o In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court.
• Question:
o Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?
• Conclusion:
o In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment. The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."
• Miscellaneous
o Symbolic Speech

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Chaplinsky v. New Hamshire (1942)

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• Facts of the Case:
o Chaplinsky, a Jehovah's Witness, called a city marshal a "God-damned racketeer" and "a damned fascist" in a public place. He was arrested and convicted under a state law for violating a breach of the peace.
• Question:
o Does the application of the statute violate Chaplinsky's freedom of speech protected by the First Amendment?
• Conclusion:
o No. Some forms of expression--among them obscenity and fighting words--do not convey ideas and thus are not subject to First Amendment protection. In this case, Chaplinsky uttered fighting words, i.e., words that "inflict injury or tend to incite an immediate breach of the peace."

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Cohen v. California (1971)

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• Facts of the Case:
o A 19-year-old department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with "FUCK THE DRAFT. STOP THE WAR" The young man, Paul Cohen, was charged under a California statute that prohibits "maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct." Cohen was found guilty and sentenced to 30 days in jail.
• Question:
o Did California's statute, prohibiting the display of offensive messages such as "Fuck the Draft," violate freedom of expression as protected by the First Amendment?
• Conclusion:
o Yes. In an opinion by Justice John Marshall Harlan, the Court reasoned that the expletive, while provocative, was not directed toward anyone; besides, there was no evidence that people in substantial numbers would be provoked into some kind of physical action by the words on his jacket. Harlan recognized that "one man's vulgarity is another's lyric." In doing so, the Court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas).
• Miscellaneous
o Fighting words are the exception to free speech

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Hill v. Colorado (2000)

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• Facts of the Case:
o A Colorado statute makes it unlawful for any person within 100 feet of a health care facility's entrance to "knowingly approach" within 8 feet of another person, without that person's consent, in order to pass "a leaflet or handbill to, display a sign to, or engage in oral protest, education, or counseling with [that] person...." Leila Hill and others, sidewalk counselors who offer abortion alternatives to women entering abortion clinics, sought to enjoin the statute's enforcement in state court, claiming violations of their First Amendment free speech rights and right to a free press. In dismissing the complaint, the trial court held that the statute imposed content-neutral time, place, and manner restrictions narrowly tailored to serve a significant government interest and left open ample alternative channels of communication. The Colorado Court of Appeals affirmed, and the Colorado Supreme Court denied review. The U.S. Supreme Court vacated that judgment after holding that a provision creating a speech-free floating buffer zone with a 15-foot radius violated the First Amendment. On remand, the Colorado Court of Appeals reinstated its judgment. In affirming, the Colorado Supreme Court reiterated the lower court's conclusions. The court concluded that the statute struck a proper balance between a person's right to protest and a person's right to medical treatment.
• Question:
o Does Colorado's statutory requirement that speakers obtain consent from people within 100 feet of a health care facility's entrance before speaking, displaying signs, or distributing leaflets to such people violate the First Amendment rights of the speaker?
• Conclusion:
o No. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the Colorado statute's restrictions on speech-related conduct are constitutional. The Court concluded that the statute "is not a regulation of speech. Rather, it is a regulation of the places where some speech may occur." "Although the statute prohibits speakers from approaching unwilling listeners, it does not require a standing speaker to move away from anyone passing by. Nor does it place any restriction on the content of any message that anyone may wish to communicate to anyone else, either inside or outside the regulated areas. It does, however, make it more difficult to give unwanted advice, particularly in the form of a handbill or leaflet, to persons entering or leaving medical facilities," Justice Stevens wrote for the Court. "The unwilling listener's interest in avoiding unwanted communication has been repeatedly identified in our cases." Justices Antonin Scalia, Clarence Thomas, and Anthony M. Kennedy dissented.

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RAV v. St. Paul (1992)

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• Facts of the Case:
o Several teenagers allegedly burned a crudely fashioned cross on a black family's lawn. The police charged one of the teens under a local bias-motivated criminal ordinance which prohibits the display of a symbol which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The trial court dismissed this charge. The state supreme court reversed. R.A.V. appealed to the U.S. Supreme Court.
• Question:
o Is the ordinance overly broad and impermissibly content-based in violation of the First Amendment free speech clause?
• Conclusion:
o Yes. In a 9-to-0 vote, the justices held the ordinance invalid on its face because "it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses." The First Amendment prevents government from punishing speech and expressive conduct because it disapproves of the ideas expressed. Under the ordinance, for example, one could hold up a sign declaring all anti-semites are motherfuckers but not that all Jews are motherfuckers. Government has no authority "to license one side of a debate to fight freestyle, while requiring the other to follow the Marquis of Queensbury Rules."
• Miscellaneous
o Hate Speech: Degrading/threatening expression directed at individuals based on certain minority statuses

Front 50

Wisconsin v. Mitchell (1993)

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• Facts of the Case:
o On October 7, 1989, Todd Mitchell, a young black man, instigated an attack against a young white boy. He was subsequently convicted of aggravated battery in the Circuit Court for Kenosha County. According to Wisconsin statute, Mitchell's sentence was increased, because the court found that he had selected his victim based on race. Mitchell challenged the constitutionality of the increase in his penalty, but the Wisconsin Court of Appeals rejected his claims. However, the Wisconsin Supreme Court reversed.
• Question:
o Did the increase in Mitchell's sentence based on his bigoted motives violate his First Amendment rights?
• Conclusion:
o No. In a unanimous opinion authored by Justice William H. Rehnquist, the Court found that the Wisconsin statute paralleled antidiscrimination laws which had been found to comply with the First Amendment. It also determined that the consequences for the victim and the community tended to be more severe, when the victim of a crime was chosen on account of his or her race. Thus, when the Wisconsin statute increased the sentence for such crimes, it was not punishing the defendant for his or her bigoted beliefs or statements, but rather the predicted ramifications of his or her crime. Finally, the Court concluded that the Wisconsin statute did not violate the right to free speech because the occasion in which an average person's racist comments would be used against him or her in a court of law would arise so rarely that he or she would not feel forced to suppress them.

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Rumsfield v. Forum for Academic and Institutional Rights (2003)

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• Facts of the Case:
o The Solomon Amendment, 10 U.S.C. 983(b)(1), withholds some federal funding from colleges and universities that deny U.S. military recruiters the same access to students that other employers are given. The Forum for Academic and Institutional Rights challenged the law, arguing that it violated the schools' First Amendment rights to expressive association by requiring them to assist in military recruitment. The district court rejected the suit, but a Third Court of Appeals panel reversed. It held that, while the schools still had the right to forfeit funds so as to avoid unwanted endorsement of military policy under the amendment, forcing the schools to make such a decision was unconstitutional. Congress could not require them to forfeit a constitutional right in order to receive federal funds.
• Question:
o Does the Solomon Amendment, which witholds certain federal funds from colleges and universities that restrict the access of military recruiters to students, violate the First Amendment?
• Conclusion:
o No. The Supreme Court, in a unanimous opinion written by Chief Justice John Roberts, held that the Solomon Amendment regulated conduct, not speech, and was therefore constitutional. Including military recruiters in receptions and interviews does not necessarily indicate university endorsement of the recruiters, so requiring their inclusion does not constitute compelled speech in violation of the First Amendment. This would be true even if Congress had decided to make the requirement direct, rather than making it indirect as a condition for receiving federal funds. Roberts wrote, "Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment's access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds."
• Miscellaneous
o Solomon deals with conduct not speech

Front 52

Buckley v. Valeo (1976)

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• Facts of the Case:
o In the wake of the Watergate affair, Congress attempted to ferret out corruption in political campaigns by restricting financial contributions to candidates. Among other things, the law set limits on the amount of money an individual could contribute to a single campaign and it required reporting of contributions above a certain threshold amount. The Federal Election Commission was created to enforce the statute.
• Question:
o Did the limits placed on electoral expenditures by the Federal Election Campaign Act of 1971, and related provisions of the Internal Revenue Code of 1954, violate the First Amendment's freedom of speech and association clauses?
• Conclusion:
o In this complicated case, the Court arrived at two important conclusions. First, it held that restrictions on individual contributions to political campaigns and candidates did not violate the First Amendment since the limitations of the FECA enhance the "integrity of our system of representative democracy" by guarding against unscrupulous practices. Second, the Court found that governmental restriction of independent expenditures in campaigns, the limitation on expenditures by candidates from their own personal or family resources, and the limitation on total campaign expenditures did violate the First Amendment. Since these practices do not necessarily enhance the potential for corruption that individual contributions to candidates do, the Court found that restricting them did not serve a government interest great enough to warrant a curtailment on free speech and association.
• Miscellaneous
o FEC (1974)
o FECA

Front 53

Accomodationists

Back 53

government can accommodate religion, even support to come extent
• Tends to be conservatives
• There should be no national church & government should not prefer one religion over another

Thomas, Scalia, Kennedy

Front 54

Separatists

Back 54

separation of church & state
• Tends to be liberals

Breyer, Ginsburg

Front 55

Why is freedom of speech important?

Back 55

• Essential for acquiring other freedoms
• Helps keep government accountable to the citizens (legitimacy)
• Helps us to realize our individual self-fulfillment
• Allows participation in government
• Advancing the truth

Front 56

Standard for belief/free exercise claims

Back 56

whether a given belief is sincerely held and meaningfully occupies a place in the life of the believer

Front 57

Court's religious bias?

Back 57

protects mainstream religions more so than less common ones. examples: Sherbert v. Verner and Employment Division v. Smith

Front 58

Amish vs. Jehovah's Witnesses

Back 58

Amish:
• Withdraw from modern society
• Abhor competition/technology
• No public education after 8th grade
• No emphasis on individualism
• Conservative traditional beliefs

Jehovah's Witnesses
more conduct oriented

Front 59

What areas of religious exercise has the Court allowed government regulation? Why? Which areas has the Court not allowed regulation? Why? Can you cite some case examples?

Back 59

.....

Front 60

What are the various interpretations of the establishment clause?

Back 60

...

Front 61

Some people believe there is a conflict between Establishment clause & free exercise clause. Do you agree? Explain in terms of government tax exemptions for religious organizations.

Back 61

...justia webpage?

Front 62

Is subversive speech a type of political speech? Why? What was the legal doctrine developed in Schenck? What does this doctrine mean? Was this doctrine applied consistently in subsequent cases? Why or why not? Give case examples

Back 62

....

Front 63

Explain significance of Gitlow. What is the meaning of the Bad Tendency Test? Can you characterize how it differs from the test developed in Schenck (harsher on expression?)? How does it compare to the test in Dennis? What is your impression of the Court's work in the area of free speech before Brandenburg?

Back 63

...

Front 64

Explain fighting words doctrine. How can you convince justices that Chaplinsky outcome was wrong? What are the limits of the fighting words doctrine as manifested in RAV? What is the logic supporting punishment enhancement for hate-motivated crimes?

Back 64

....

Front 65

Explain principles under which government can regulate free expression

Back 65

fighting words
hate speech
subversive speech
more?

Front 66

Explain some of the restrictions government faces in its effort to regulate free expression

Back 66

...

Front 67

Explain the importance of James Madison in the development and ratification of the US Constituion

Back 67

chief recorder of information, Federalist Papers, Bill of Rights

Front 68

Explain and critique the various approaches to Supreme Court decision-making.

Back 68

...

Front 69

Explain the role of the Supreme Court in national policy-making, citing specific cases.

Back 69

...

Front 70

Explain/critique the balancing approach to judicial decision making

Back 70

????

Front 71

Cite an example where the Supreme Court might have acted strategically

Back 71

Griswold v. Connecticut:

Douglas originally based decision on Right of Association. A memorandum from Brennan convinced him to change it to establish the foundation for a right to privacy.

Front 72

Explain to your friend how the Bill of Rights came to be applied to the states.

Back 72

Barron v. Baltimore (1833)
Hurtado v. California (1884)
Palko v. Connecticut (1937)

Front 73

What type of rights are now considered to be generally applicable to the states? Can you enumerate some of these rights? Give specific case examples.

Back 73

1st, 4th, due process of 5th, 6th, 8th (Palko v. Connecticut)

Front 74

What was the intended application of the 14th amendment? Which clauses were initially used to try to apply this amendment to the states? Were these attempts successful? Why or why not?

Back 74

Intent: to secure the Union and ensure equality for African Americans following Civil War.

Clauses: "privileges or immunities" and "due process" clauses.

Court won't use 14th to nationalize BOR. Slaughterhouse Cases proved this.

incorporating BOR would change the relation between state & fed government. It would fetter and degrade the State governments by subjecting them to control of Congress