Case Summary

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(s)

Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment?

Answer(s)

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. The clear and present danger test established in Schenck would later be modified in Brandenburg v. Ohio (1969) as the imminent lawless action test.

See: The Oyez Project, Schenck v. United States, 249 U.S. 47 (1919)

Case Summary

The defendants were convicted on the basis of two leaflets they printed and threw from windows of a building. One leaflet signed, "revolutionists," denounced the sending of American troops to Russia. The second leaflet, written in Yiddish, denounced the war and U.S. efforts to impede the Russian Revolution. The defendants were charged and convicted for inciting resistance to the war effort and for urging curtailment of production of essential war material. They were sentenced to 20 years in prison.

Question(s)

Do the amendments to the Espionage Act or the application of those amendments in this case violate the free speech clause of the First Amendment?

Answer(s)

No. No. The act's amendments are constitutional and the defendants' convictions are affirmed. In Clarke's majority opinion, the leaflets are an appeal to violent revolution, a call for a general strike, and an attempt to curtail production of munitions. The leaflets had a tendency to encourage war resistance and to curtail war production. Holmes and Brandeis dissented on narrow ground: The necessary intent had not been shown. These views were to become a classic libertarian pronouncement.

See: The Oyez Project, Abrams v. United States, 250 U.S. 616 (1919)

Case Summary

The Espionage Act of 1917 made it a crime to "convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies." This had the effect of constraining sedition and political speech. On June 16, 1918, Eugene V. Debs, a leader of the Socialist Party of America, gave a speech in Canton, Ohio, protesting involvement in World War I. During the speech, he discussed the rise of socialism and specifically praised individuals who had refused to serve in the military and obstructed military recruiting. For his speech, Debs was arrested and charged with violating the Espionage Act. At trial, Debs argued the Espionage Act violated his right to free speech under the First Amendment. A federal district court rejected his claim and sentenced Debs to ten years in prison.

Question(s)

Did Debs's conviction under the Espionage Act of 1917 violate his First Amendment rights to freedom of speech?

Answer(s)

No. In a unanimous opinion authored by Justice Oliver Wendell Holmes, the Court found that Debs's case was clearly similar to Schenck v. United States (1919). In Schenck, the Court had concluded that the arrest of an individual for distributing leaflets encouraging readers to oppose the draft was constitutional. The Court found Debs' sympathy for individuals convicted of opposing the draft and obstructing recruitment analogous to the situation in Schenck. Thus, Debs's conviction was upheld.

See: The Oyez Project, Debs v. United States, 249 U.S. 211 (1919)

Case Summary

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(s)

Does the New York law punishing the advocacy of overthrowing the government an unconstitutional violation of the free speech clause of the First Amendment?

Answer(s)

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 under the Fourteenth Amendment. 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 his or her speech created no danger at all.

See: The Oyez Project, Gitlow v. New York, 268 U.S. 652 (1925)

Case Summary

Charlotte Anita Whitney, a member of the Communist Labor Party of California, was prosecuted under that state's Criminal Syndicalism Act. The act prohibited advocating, teaching, or aiding the commission of a crime, including "terrorism as a means of accomplishing a change in industrial ownership...or effecting any political change."

Question(s)

Did the Criminal Syndicalism Act violate the First or Fourteenth Amendments?

Answer(s)

In a unanimous decision, the Court sustained Whitney's conviction and held that the act did not violate the Constitution. The Court found that the Act violated neither the Due Process Clause nor the Equal Protection Clause, and that freedom of speech guaranteed by the First Amendment was not an absolute right. The Court argued "that a State...may punish those who abuse this freedom by utterances...tending to...endanger the foundations of organized government and threaten its overthrow by unlawful means" and was not open to question. The decision is most notable for the concurring opinion written by Justice Brandeis, in which he argued that only clear, present, and imminent threats of "serious evils" could justify suppression of speech.

See: The Oyez Project, Whitney v. California, 274 U.S. 357 (1927)

Case Summary

Jay Near published a scandal sheet in Minneapolis, in which he attacked local officials, charging that they were implicated with gangsters. Minnesota officials obtained an injunction to prevent Near from publishing his newspaper under a state law that allowed such action against periodicals. The law provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was guilty of a nuisance, and could be enjoined (stopped) from further committing or maintaining the nuisance.

Question(s)

Does the Minnesota "gag law" violate the free press provision of the First Amendment?

Answer(s)

The Supreme Court held that the statute authorizing the injunction was unconstitutional as applied. The Court held that the statutory scheme constituted a prior restraint--it attempted to punish a crime that had not yet happened--and hence was invalid under the First Amendment. Thus the Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding.

See: The Oyez Project, Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931)

Case Summary

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(s)

Does the application of the statute violate Chaplinsky's freedom of speech protected by the First Amendment?

Answer(s)

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."

See: The Oyez Project, Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942)

Case Summary

Martin was a Jehovah's Witness in Struthers, Ohio. She canvassed neighborhoods knocking on doors and ringing doorbells to distribute leaflets promoting a meeting. She was convicted and fined $10 for violating a city ordinance that prohibited a person who was distributing leaflets and other flyers from knocking on doors and ringing doorbells. She appealed her conviction in the Circuit Court of Mahoning County, alleging that the city ordinance violated her First Amendment free speech and free press rights. The circuit court upheld the ordinance and her conviction. The Supreme Court of Ohio dismissed her appeal.

Question(s)

Did the city ordinance prohibiting the ringing of doorbells and knocking on doors by a person distributing promotional materials violate the free speech and free press clauses of the First Amendment?

Answer(s)

Yes. In a 5-4 decision, the Court reversed the Supreme Court of Ohio and held the Struthers ordinance unconstitutional. In the majority opinion written by Justice Hugo L. Black, the Court acknowledged the city's interest in preventing crime and reducing nuisances. However, alternative solutions, such as trespassing laws, were also available that could achieve the city's purpose. Activities like Martin's were "so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved." The ordinance was overly restrictive on door-to-door distributors, and therefore unconstitutional.

See: The Oyez Project, Martin v. Struthers, 319 U.S. 141 (1943)

Case Summary

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(s)

Did the Smith Act's restrictions on speech violate the First Amendment?

Answer(s)

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 attempt to overthrow the government, the Court held that success or probability of success was not necessary to justify restrictions on the freedom of speech.

See: The Oyez Project, Dennis v. United States, 341 U.S. 494 (1951)

Case Summary

On June 30, 1952, during testimony in the case of United States v. Schneiderman, Oleta O'Connor Yates, an admitted leader of the Communist Party of California, refused to answer eleven questions regarding the identities of other members of the party. For her refusal Yates was found in criminal contempt and sentenced to eleven concurrent sentences of one year. The judge in the case stated that if Yates answered the questions within sixty days of conviction, he would accept her testimony. Yates continued to refuse. Yates appealed the contempt convictions on the ground that the court's intention was to coerce her to testify, rather than punish her. This would make the contempt charges civil, rather than criminal, and Yates's convictions would be a violation of due process. Yates further claimed that eleven contempt sentences for a line of questioning also violated due process. The Ninth Circuit Court of Appeals rejected Yates's claims and upheld her convictions.

Question(s)

Did Yates's contempt convictions violate the due process clause of the Fifth Amendment?

Answer(s)

Yes. In a 6-3 decision authored by Justice Tom C. Clark, the Court found that Yates's contempt convictions were indeed criminal, but also found that eleven convictions for what amounted to a single instance of contempt violated due process. The judge in the case stated that, were Yates to concede to answer the questions, she would still be held for contempt, even though the court would accept her testimony. This, the Court reasoned, indicated that the convictions were intended to punish Yates and not to coerce her testimony. However, the Court also found that every question for which Yates was found in contempt "fell within the same area of refusal." Noting that it would be improper for the prosecution to multiply contempts by repeated questioning on the same inquiry, the Court vacated all but the first conviction for contempt.

See: The Oyez Project, Yates v. United States, 355 U.S. 66 (1957)

Case Summary

Roth operated a book-selling business in New York and was convicted of mailing obscene circulars and an obscene book in violation of a federal obscenity statute. Roth's case was combined with Alberts v. California, in which a California obscenity law was challenged by Alberts after his similar conviction for selling lewd and obscene books in addition to composing and publishing obscene advertisements for his products.

Question(s)

Did either the federal or California's obscenity restrictions, prohibiting the sale or transfer of obscene materials through the mail, impinge upon the freedom of expression as guaranteed by the First Amendment?

Answer(s)

In a 6-to-3 decision written by Justice William J. Brennan, Jr., the Court held that obscenity was not "within the area of constitutionally protected speech or press." The Court noted that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were "utterly without redeeming social importance." The Court held that the test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." The Court held that such a definition of obscenity gave sufficient fair warning and satisfied the demands of due process. Brennan later reversed his position on this issue in Miller v. California (1973).

See: The Oyez Project, Roth v. United States, 354 U.S. 476 (1957)

Case Summary

Decided together with Abernathy v. Sullivan, this case concerns a full-page ad in the New York Times which alleged that the arrest of the Rev. Martin Luther King, Jr. for perjury in Alabama was part of a campaign to destroy King's efforts to integrate public facilities and encourage blacks to vote. L. B. Sullivan, the Montgomery city commissioner, filed a libel action against the newspaper and four black ministers who were listed as endorsers of the ad, claiming that the allegations against the Montgomery police defamed him personally. Under Alabama law, Sullivan did not have to prove that he had been harmed; and a defense claiming that the ad was truthful was unavailable since the ad contained factual errors. Sullivan won a $500,000 judgment.

Question(s)

Did Alabama's libel law, by not requiring Sullivan to prove that an advertisement personally harmed him and dismissing the same as untruthful due to factual errors, unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections?

Answer(s)

Yes. The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity). Under this new standard, Sullivan's case collapsed.

See: The Oyez Project, New York Times v. Sullivan, 376 U.S. 254 (1964)

Case Summary

On the morning of December 15, 1961, Elton Cox led 2,000 students on an anti-discrimination march that ended in a large assembly before the courthouse in Baton Rouge, Louisiana. Following police instructions, the demonstrators confined themselves to the west side of the street so as not to interfere with traffic. As the lunch hour neared, Cox encouraged the demonstrators to seek service at any one of several near-by segregated lunch counters. Upon hearing this, the police urged the crowd to disband and began pushing them away from the courthouse. When the demonstrators resisted, police showered them with tear gas and chased them away. The following day, Louisiana police arrested and charged Cox with "disturbing the peace." On appeal from the Louisiana supreme court's decision which upheld the conviction issued by the district court, the Supreme Court agreed to hear the case.

Question(s)

Does a statutory "disturbance of the peace" conviction, for a peaceable demonstration that contains speech that may potentially incite violence, infringe on a demonstrator's First Amendment rights to freedom of speech and assembly?

Answer(s)

Yes. In a 7-to-2 decision, the Court began by noting that none of the demonstrators' activities exceeded those that would be expected at any peaceable assembly. Cheering, clapping, and singing do not in themselves constitute a breach of the peace. With respect to Cox's urging the demonstrators to engage in activities which could potentially result in violence, such as demanding service at segregated lunch counters, the Court held that these could not sustain a breach of the peace conviction either. The constitutional rights of freedom of speech and assembly could not be denied because of hostility to their assertion or exercise. The Court noted that free speech protections serve perhaps their best purpose when they invite dispute, induce conditions of unrest, and even stir people to anger over prejudicial preconceptions. Any statute that is so broadly written as to stifle these freedoms shall be stuck down as repugnant to the Constitution.

See: The Oyez Project, Cox v. Louisiana, 379 U.S. 536 (1965)

Case Summary

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 it illegal to advocate "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(s)

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?

Answer(s)

Yes. The Court issued a majority opinion by the Court itself (not a signed one) that held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test to evaluate speech acts: Speech can be prohibited if it is (1) "directed at inciting or producing imminent lawless action" and it is (2) "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.

See: The Oyez Project, Brandenburg v. Ohio, 395 U.S. 444 (1969)

Case Summary

John Tinker, 15 years old, his sister Mary Beth Tinker, 13 years old, and Christopher Echardt, 16 years old, decided along with their parents to protest the Vietnam War by wearing black armbands to their Des Moines schools during the Christmas holiday season. Upon learning of their intentions, and fearing that the armbands would provoke disturbances, the principals of the Des Moines school district resolved that all students wearing armbands be asked to remove them or face suspension. When the Tinker siblings and Eckhart wore their armbands to school, they were asked to remove them. When they refused, they were suspended until after New Year's Day.

Question(s)

Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the First Amendment's freedom of speech protections?

Answer(s)

Yes. The wearing of armbands was "closely akin to 'pure speech'" and protected by the First Amendment. School environments imply limitations on free expression, but here the principals lacked justification for imposing any such limits. The principals had failed to show that the forbidden conduct would substantially interfere with appropriate school discipline.

See: The Oyez Project, Tinker v. Des Moines Ind. Comm. School Dist., 393 U.S. 503

Case Summary

A 19-year-old department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with "F*** 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(s)

Did California's statute, prohibiting the display of offensive messages such as "F*** the Draft," violate freedom of expression as protected by the First Amendment?

Answer(s)

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).

See: The Oyez Project, Cohen v. California, 403 U.S. 15 (1971)

Case Summary

In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. This case was decided together with United States v. Washington Post Co.

Question(s)

Did the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate the First Amendment?

Answer(s)

Yes. In an unsigned opinion published on behalf of the entire Court, justices held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case. Justices Black and Douglas argued that the vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment." Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified.

See: The Oyez Project, New York Times v. United States, 403 U.S. 713 (1971)

Case Summary

After observing and interviewing a number of people synthesizing and using drugs in a two-county area in Kentucky, Branzburg, a reporter, wrote a story which appeared in a Louisville newspaper. On two occasions he was called to testify before state grand juries which were investigating drug crimes. Branzburg refused to testify and potentially disclose the identities of his confidential sources. Similarly, in the companion cases of In re Pappas and United States v. Caldwell, two different reporters, each covering activity within the Black Panther organization, were called to testify before grand juries and reveal trusted information. Like Branzburg, both Pappas and Caldwell refused to appear before their respective grand juries.

Question(s)

Is the requirement that news reporters appear and testify before state or federal grand juries an abridgement of the freedoms of speech and press as guaranteed by the First Amendment?

Answer(s)

No. The Court found that requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the First Amendment. Justice White argued that since the case involved no government intervention to impose prior restraint, and no command to publish sources or to disclose them indiscriminately, there was no Constitutional violation. The fact that reporters receive information from sources in confidence does not privilege them to withhold that information during a government investigation; the average citizen is often forced to disclose information received in confidence when summoned to testify in court.

See: The Oyez Project, Branzburg v. Hayes, 408 U.S. 665 (1972)

Case Summary

A Nebraska state trial judge, presiding over a widely publicized murder trial, entered an order restraining members of the press from publishing or broadcasting accounts of confessions made by the accused to the police. The judge felt that this measure was necessary to guarantee a fair trial to the accused.

Question(s)

Did the judge's order violate the First and Fourteenth Amendments?

Answer(s)

Yes. The Court agreed with the trial judge that the murder case would generate "intense and pervasive pretrial publicity." However, the unanimous court held that the practical problems associated with implementing a prior restraint on the press in this case would not have served the accused's rights. Chief Justice Burger reasoned that "a whole community cannot be restrained from discussing a subject intimately affecting life within it."

See: The Oyez Project, Nebraska Press Assoc. v. Stuart, 427 U.S. 539 (1976)

Case Summary

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(s)

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?

Answer(s)

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.

See: The Oyez Project, Buckley v. Valeo, 424 U.S. 1 (1976)

Case Summary

After a series of mistrials in a murder case in the state of Virginia, a trial judge closed the trial to the public and the media. Defense counsel brought the closure motion; the prosecution did not object. Two reporters of Richmond Newspapers, Inc. challenged the judge's action.

Question(s)

Did the closure of the trial to the press and public violate the First or Sixth Amendments?

Answer(s)

Yes. In a 7-to-1 decision, the Court held that the right to attend criminal trials was "implicit in the guarantees of the First Amendment." The Court held that the First Amendment encompassed not only the right to speak but also the freedom to listen and to receive information and ideas. The Court also noted that the First Amendment guaranteed the right of assembly in public places such as courthouses. The Court emphasized that "certain unarticulated rights" were implicit in enumerated guarantees and were often "indispensable to the enjoyment of rights explicitly defined."

See: Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)

Case Summary

In 1982, the National Park Service issued a renewable permit to the Community for Creative Non-Violence to conduct a demonstration in Lafayette Park and the Mall in Washington, D.C. The CCNV demonstration was intended to represent the plight of the homeless by erecting a tent city in the park. However, the demonstrators also wished to sleep in the tents. Citing anti-camping regulations, the Park Service denied that request.

Question(s)

Did the National Park Service regulations violate the First Amendment by curtailing symbolic speech?

Answer(s)

In a 7-to-2 decision, the Court held that the regulations did not violate the First Amendment. The Court noted that expression is subject to reasonable time, place, and manner restrictions, and that the manner of the protest was at odds with the government's interest in maintaining the condition of the parks. The Court argued that the Park Service did not attempt to ban all sleeping in public parks (only in certain areas), and that the protesters had alternative means of communicating their message.

See: The Oyez Project, Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984)

Case Summary

The Spectrum, the school-sponsored newspaper of Hazelwood East High School, was written and edited by students. In May 1983, Robert E. Reynolds, the school principal, received the page proofs for the May 13 issue. Reynolds found two of the articles in the issue to be inappropriate, and ordered that the pages on which the articles appeared be withheld from publication. Cathy Kuhlmeier and two other former Hazelwood East students brought the case to court.

Question(s)

Did the principal's deletion of the articles violate the students' rights under the First Amendment?

Answer(s)

No. In a 5-to-3 decision, the Court held that the First Amendment did not require schools to affirmatively promote particular types of student speech. The Court held that schools must be able to set high standards for student speech disseminated under their auspices, and that schools retained the right to refuse to sponsor speech that was "inconsistent with 'the shared values of a civilized social order.'" Educators did not offend the First Amendment by exercising editorial control over the content of student speech so long as their actions were "reasonably related to legitimate pedagogical concerns." The actions of principal Reynolds, the Court held, met this test.

See: The Oyez Project, Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)

Case Summary

A lead story in the November 1983 issue of Hustler magazine featured a "parody" of an advertisement, modeled after an actual ad campaign, claiming that Falwell, a fundamentalist minister and political leader, had a drunken incestuous relationship with his mother in an outhouse. Falwell sued to recover damages for libel, invasion of privacy, and intentional infliction of emotional distress. Falwell won a jury verdict on the emotional distress claim and was awarded a total of $150,000 in damages. Hustler Magazine appealed.

Question(s)

Does the First Amendment's freedom of speech protection extend to the making of patently offensive statements about public figures, resulting perhaps in their suffering emotional distress?

Answer(s)

Yes. In a unanimous opinion the Court held that public figures, such as Jerry Falwell, may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact which was made with "actual malice." The Court added that the interest of protecting free speech, under the First Amendment, surpassed the state's interest in protecting public figures from patently offensive speech, so long as such speech could not reasonably be construed to state actual facts about its subject.

See: The Oyez Project, Hustler Magazine v. Falwell, 485 U.S. 46 (1988)

Case Summary

Sandra Schultz and Robert Braun both strongly opposed abortion and gathered like-minded citizens together to picket in front of the home of a local doctor who performed abortions. In response, the city of Brookfield, Wisconsin passed a law against all picketing in front of residential homes except for labor disputes. Following the advice of the town attorney, the city amended the law to ban labor picketing as well. The stated purpose of the law was "the protection and preservation of the home." When enacted, Schultz and Braun stopped picketing and filed suit in federal district court, claiming that the law violated the First Amendment. The court declared it would issue a permanent injunction against the law unless it was narrowed in scope. The seventh circuit court of appeals affirmed that the law violated the First Amendment.

Question(s)

Does a city ordinance prohibiting picketing in front of residential homes violate the First Amendment?

Answer(s)

No. Justice Sandra Day O'Connor delivered the opinion for a 6-3 court. The Court held that since the street constituted a traditional public forum, the ban must satisfy strict standards in order to remain. Since the ban is "content neutral," "leaves open ample alternative channels of communication," and serves a "significant government interest," the Court ruled that it passed the strict standards and could remain. The city government had a legitimate purpose in protecting the homes of its residents, and did so without favoring one idea over another or eliminating the ability to communicate an idea.

See: The Oyez Project, Frisby v. Schultz, 487 U.S. 474 (1988)

Case Summary

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(s)

Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?

Answer(s)

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 "if 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."

See: The Oyez Project, Texas v. Johnson, 491 U.S. 397 (1989)

Case Summary

Women's Health Center Inc. operated several abortion clinics throughout central Florida, including the Aware Woman Center for Choice in Melbourne, Florida. In 1992, in response to anti-abortion protesters, a state court prohibited the protesters from physically abusing those entering or exiting the clinic, or otherwise interfering with access to the clinic. About six months later, Women's Health Center Inc. expressed a need to broaden the court order. The state court agreed, banning demonstrators from entering a 36-foot buffer zone around the clinic, making excessive noise, using images visible to patients, approaching patients within a 300-foot radius of the clinic, and protesting within a 300-foot radius of staff residences. Petitioner Judy Madsen and her fellow protesters claimed that these restrictions violated their First Amendment right to free speech, but the Florida supreme court disagreed, upholding the court order.

Question(s)

1) Is the prohibition of all protesting within the 36-foot buffer zone around the front of the clinic an infringement of the First Amendment right to free speech? 2) Is the 36-foot buffer zone along the back and side of the clinic a breach of the First Amendment right to free speech? 3) Do the limitations imposed on noise-making constitute a breach of the First Amendment right to free speech? 4) Do the restrictions placed on the use of images violate the First Amendment right to free speech? 5) Is it a breach of the First Amendment right to free speech to bar protesters from approaching potential patients when they are within a 300-foot radius of the clinic? 6) Is it a violation of the First Amendment right to free speech to prohibit all protesting in a 300-foot radius of clinic staff residences?

Answer(s)

No, Yes, No, Yes, Yes, and Yes. In a majority opinion authored by Chief Justice William H. Rehnquist, the Court found that the state of Florida could only restrict protesters to the extent necessary to allow the clinic to run and the staff to live in their homes without interference. Thus, the majority approved of the 36-foot buffer zone around the front of the clinic because it was essential to allow patients and staff to enter and leave the building freely, but disapproved of the 36-foot buffer zone along the back and side of the building because it found no indication that protesting in these areas interfered with the function of the clinic. The Court also determined that the limitations placed on noise-making were necessary to insure the well-being of the patients, whereas those placed on images were not because they were easier to ignore. Finally, the Court concluded that both 300-foot radius rules were too broad, thus restricting the protestors more than was necessary. Therefore, the decision of the Florida Supreme Court was affirmed in part and reversed in part.

See: The Oyez Project, Madsen v. Women's Health Center, Inc., 512 U.S. 753 (1994)

Case Summary

Several litigants challenged the constitutionality of two provisions in the 1996 Communications Decency Act. Intended to protect minors from unsuitable internet material, the Act criminalized the intentional transmission of "obscene or indecent" messages as well as the transmission of information which depicts or describes "sexual or excretory activities or organs" in a manner deemed "offensive" by community standards. After being prohibited by a district court from enforcing the above provisions, except for the one concerning obscenity and its inherent protection against child pornography, Attorney General Janet Reno appealed directly to the Supreme Court as provided for by the Act's special review provisions.

Question(s)

Did certain provisions of the 1996 Communications Decency Act violate the First and Fifth Amendments by being overly broad and vague in their definitions of the types of internet communications which they criminalized?

Answer(s)

Yes. The Court held that the act violated the First Amendment because its regulations amounted to a content-based blanket restriction of free speech. The act failed to clearly define "indecent" communications, limit its restrictions to particular times or individuals (by showing that it would not impact on adults), provide supportive statements from an authority on the unique nature of internet communications, or conclusively demonstrate that the transmission of "offensive" material is devoid of any social value. The Court added that since the First Amendment distinguishes between "indecent" and "obscene" sexual expressions, protecting only the former, the act could be preserved if it dropped the words "or indecent" from its text. The Court refused to address any Fifth Amendment issues.

See: The Oyez Project, Reno v. ACLU, 521 U.S. 844 (1997)

Case Summary

The Child Pornography Prevention Act of 1996 (CPPA) prohibits "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture" that "is, or appears to be, of a minor engaging in sexually explicit conduct," and any sexually explicit image that is "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression" it depicts "a minor engaging in sexually explicit conduct." The Free Speech Coalition, an adult-entertainment trade association, and others filed suit, alleging that the "appears to be" and "conveys the impression" provisions are overbroad and vague and, thus, restrain works otherwise protected by the First Amendment. Reversing the district court, the court of appeals held the CPPA invalid on its face, finding it to be substantially overbroad because it bans materials that are neither obscene under Miller v. California, 413 U.S. 15, nor produced by the exploitation of real children as in New York v. Ferber, 458 U.S. 747.

Question(s)

Does the Child Pornography Prevention Act of 1996 abridge freedom of speech where it where it proscribes a significant universe of speech that is neither obscene under Miller v. California nor child pornography under New York v. Ferber?

Answer(s)

Yes. In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the two prohibitions described above are overbroad and unconstitutional. The Court found the CPPA to be inconsistent with Miller insofar as the CPPA cannot be read to prohibit obscenity, because it lacks the required link between its prohibitions and the affront to community standards prohibited by the obscenity definition. Moreover, the Court found the CPPA to have no support in Ferber since the CPPA prohibits speech that records no crime and creates no victims by its production. Provisions of the CPPA cover "materials beyond the categories recognized in Ferber and Miller, and the reasons the Government offers in support of limiting the freedom of speech have no justification in our precedents or in the law of the First Amendment" and abridge "the freedom to engage in a substantial amount of lawful speech," wrote Justice Kennedy.

See: Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002),

Case Summary

The Village of Stratton passed an ordinance that prohibits canvassers from entering private residential property to promote any cause without first obtaining a permit from the mayor's office. The Watchtower Bible and Tract Society of New York, Inc., a congregation of Jehovah's Witnesses that publishes and distributes religious materials, sought an injunction, alleging that the ordinance violates their First Amendment rights to the free exercise of religion, free speech, and freedom of the press. The district court upheld most provisions of the ordinance as valid, content-neutral regulations. The appellate court agreed, concluding that the Village's interests in protecting its residents from fraud and its desire to prevent criminals from posing as canvassers in order to defraud its residents were sufficient bases on which to justify the regulation.

Question(s)

Does a municipal ordinance that requires a permit prior to engaging in the door-to-door advocacy of a political cause and to display upon demand the permit, which contains one's name, violate the First Amendment protection accorded to anonymous pamphleteering or discourse?

Answer(s)

Yes. In an 8-1 opinion delivered by Justice John Paul Stevens, the Court held that the ordinance's provisions making it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit violate the First Amendment as it applies to religious proselytizing, anonymous political speech, and the distribution of handbills. The Court reasoned that the village's interest in preventing fraud could not support the ordinance's application to the religious organizations, to political campaigns, or to enlisting support for unpopular causes. Dissenting, Chief Justice William H. Rehnquist argued that the Court decision deprived Stratton residents of the degree of accountability and safety that the permit requirement provides.

See: The Oyez Project, Watchtower Bible & Tract Society of New York v. Village of Stratton, 536 U.S. 150 (2002)

Case Summary

In early 2002, a many years-long effort by Senators John McCain and Russell Feingold to reform the way that money is raised for--and spent during--political campaigns culminated in the passage of the Bipartisan Campaign Finance Reform Act of 2002 (the so-called McCain-Feingold bill). Its key provisions were a) a ban on unrestricted (""soft money"") donations made directly to political parties (often by corporations, unions, or well-heeled individuals) and on the solicitation of those donations by elected officials; b) limits on the advertising that unions, corporations, and non-profit organizations can engage in up to 60 days prior to an election; and c) restrictions on political parties' use of their funds for advertising on behalf of candidates (in the form of ""issue ads"" or ""coordinated expenditures""). The campaign finance reform bill contained an unusual provision providing for an early federal trial and a direct appeal to the Supreme Court of the United States, bypassing the typical federal judicial process. In May of that year, a special three-judge panel struck down portions of the act's ban on soft-money donations but upheld some of the its restrictions on the kind of advertising that parties can engage in. The ruling was stayed until the Supreme Court could hear and decide the resulting appeals.

Question(s)

1. Does the ""soft money"" ban of the Campaign Finance Reform Act of 2002 exceed Congress's authority to regulate elections under Article I, Section 4 of the Constitution and/or violate the First Amendment's protection of the freedom to speak? 2. Do regulations of the source, content, or timing of political advertising in the Campaign Finance Reform Act of 2002 violate the First Amendment's free speech clause?

Answer(s)

With a few exceptions, the Court answered ""no"" to both questions in a 5-to-4 decision written by Justices Sandra Day O'Connor and John Paul Stevens. Because the regulations dealt mostly with soft-money contributions that were used to register voters and increase attendance at the polls, not with campaign expenditures (which are more explicitly a statement of political values and therefore deserve more protection), the Court held that the restriction on free speech was minimal. It then found that the restriction was justified by the government's legitimate interest in preventing ""both the actual corruption threatened by large financial contributions and...the appearance of corruption"" that might result from those contributions. In response to challenges that the law was too broad and unnecessarily regulated conduct that had not been shown to cause corruption (such as advertisements paid for by corporations or unions), the Court found that such regulation was necessary to prevent the groups from circumventing the law. Justices O'Connor and Stevens wrote that ""money, like water, will always find an outlet"" and that the government was therefore justified in taking steps to prevent schemes developed to get around the contribution limits. The Court also rejected the argument that Congress had exceeded its authority to regulate elections under Article I, Section 4 of the Constitution. The Court found that the law only affected state elections in which federal candidates were involved and also that it did not prevent states from creating separate election laws for state and local elections.

See: The Oyez Project, McConnell v. Federal Election Commission, 540 U.S. 93 (2003)

Case Summary

Citizens United sought an injunction against the Federal Election Commission in the United States District Court for the District of Columbia to prevent the application of the Bipartisan Campaign Reform Act (BCRA) to its film Hillary: The Movie. The Movie expressed opinions about whether Senator Hillary Rodham Clinton would make a good president.

Question(s)

1) Did the Supreme Court's decision in McConnell resolve all constitutional as-applied challenges to the BCRA when it upheld the disclosure requirements of the statute as constitutional? 2) Do the BCRA's disclosure requirements impose an unconstitutional burden when applied to electioneering requirements because they are protected "political speech" and not subject to regulation as "campaign speech"? 3) If a communication lacks a clear plea to vote for or against a particular candidate, is it subject to regulation under the BCRA? 4) Should a feature length documentary about a candidate for political office be treated like the advertisements at issue in McConnell and therefore be subject to regulation under the BCRA?

Answer(s)

No. No. Yes. Yes. The Supreme Court overruled Austin v. Michigan Chamber of Commerce and portions of McConnell v. FEC. (In the prior cases, the Court had held that political speech may be banned based on the speaker's corporate identity.) By a 5-to-4 vote along ideological lines, the majority held that under the First Amendment corporate funding of independent political broadcasts in candidate elections cannot be limited. Justice Anthony M. Kennedy wrote for the majority joined by Chief Justice John G. Roberts and Justices Antonin G. Scalia, Samuel A. Alito, and Clarence Thomas. Justice John Paul Stevens dissented, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotamayor. The majority maintained that political speech is indispensable to a democracy, which is no less true because the speech comes from a corporation. The majority also held that the BCRA's disclosure requirements as applied to The Movie were constitutional, reasoning that disclosure is justified by a "governmental interest" in providing the "electorate with information" about election-related spending resources. The Court also upheld the disclosure requirements for political advertising sponsors and it upheld the ban on direct contributions to candidates from corporations and unions.

See: Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)

Virginia Declaration of Rights

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The Bill of Rights as it was submitted to the states for ratification. It included a preamble and ten proposed amendments to the U.S. Constitution.

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Act passed by the British Parliament in 1689 enumerating rights of British subjects and residents. A restating of the Declaration of Right presented to William and Mary a year prior, it guarantees the right to petition the monarch, bear arms for defense, and outlines some requirements for the monarch to seek consent of the people through Parliament.

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From Wikipedia: Magna Carta, is an English legal charter, originally issued in 1215, the first document ever served to an English king by his subjects. Magna Carta required King John to proclaim certain rights, respect certain legal procedures, and accept that his will could be restricted by the law. It explicitly protected certain rights of the King's subjects and supported what became the writ of habeas corpus, allowing appeal against unlawful imprisonment. Magna Carta was arguably the most significant early influence on the extensive historical process that led to the rule of constitutional law today in the much of the world.

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From Wikipedia: The Massachusetts Body of Liberties was the first legal code to be instituted by European colonists in New England. The laws were established by the Massachusetts General Court in 1641 and include both positive and negative rights.

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From Wikipedia: The Petition of Right is a major English constitutional document, which sets out specific liberties of the subject that the king is prohibited from infringing. The Petition is most notable for its confirmation of the principles that taxes can be levied only by Parliament, that martial law may not be imposed in time of peace, and that prisoners must be able to challenge the legitimacy of their detentions through the writ of habeas corpus. Additionally, the Petition's ban on the billeting of troops is reflected in the Third Amendment to the U.S. Constitution.

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From Wikipedia: In the United States, the Bill of Rights is the name by which the first ten amendments to the U.S. Constitution are known. They were introduced by James Madison to the First United States Congress in 1789 as a series of articles, and came into effect on December 15, 1791, when they had been ratified by three quarters of the states. It responded largely to Anti-Federalists who believed that ratifying the U.S. Constitution meant surrendering basic human rights of individuals.

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The supreme law of the United States that provides the framework for the government. The Constitution outlines the nation's institutions of government and the most important rights of the people. The document was created in 1787 during the Philadelphia Convention. The government created by the Constitution took effect on March 4, 1789.

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From Wikipedia: The Commentaries on the Laws of England are an influential 18th century treatise on the common law of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford, 1765-1769. The Commentaries were long regarded as the leading work on the development of English law and played a role in the development of the American legal system, and are often quoted as examples of common law by U.S. courts wishing to discuss historical matters, as in the intent of the Framers of the U. S. Constitution.

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The case De Libellis Famosis, tried in 1606 by Sir Edward Coke in the Star Chamber, defined seditious libel as criticism of public persons, the government or King, and deemed seditious libel a crime because it could cause a decline in respect for public authority. Having told the truth was not deemed an adequate defense against a charge of seditious libel because respect for public authority was thought necessary to maintain order.

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Franklin's essay on the relationship between print and the spread of knowledge and ideas, in which he responds to criticism of printing opposing ideas that offend some people and argues that a variety of perspectives is essential to self-governance.

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