Chapter 3: Exam
MULTIPLE CHOICE QUESTIONS
1. For a brief period during the administration of President John Adams, the national government sought
to suppress public criticism through enforcement of the __________, passed by Congress in
1798.
a. Seditious Libel Act
b. Northwest Ordinance
c. Virginia and Kentucky Resolutions
d. Sedition Act
2. In Schenck v. United States (1919), Justice Oliver Wendell Holmes, Jr. first articulated the famous
________________ test.
a. clear and present danger
b. clear and probable danger
c. imminent lawless action
d. bad tendency
3. In Gitlow v. New York (1925), the Supreme Court upheld a conviction under New York’s
_________________, which prohibited advocacy of the overthrow of government “by force or
violence.”
a. Criminal Anarchy Act
b. Clear and Present Danger Act
c. Seditious Libel Act
d. Smith Act
4. In Pierce v. Society of Sisters (1925), the Supreme Court struck down an amendment to the Oregon
constitution aimed at prohibiting parents from sending their children to
a. day care centers.
b. work in factories.
c. private schools.
d. None of the above is true.
50 Chapter 3: Expressive Freedom and the First Amendment
5. In Brandenburg v. Ohio, (1969), the Supreme Court invalidated a state _______ statute, thus explicitly
overruling Whitney v. California.
a. libel
b. obscenity
c. criminal syndicalism
d. vagrancy
6. In Feiner v. New York (1951), the Supreme Court upheld a conviction for _______ arising from a street
corner speech that produced unrest.
a. seditious libel
b. disorderly conduct
c. lewd and lascivious conduct
d. incitement to riot
7. Writing for the Supreme Court in Roth v. United States (1957), Justice Brennan expressed the view that
obscenity
a. was utterly without redeeming social importance.
b. was protected by the First Amendment.
c. was not a crime under federal law.
d. None of the above is true.
8. In Tinker v. Des Moines Community School District (1969), John and Mary Beth Tinker wore
____________ to school to protest American involvement in the Vietnam War.
a. military fatigues
b. peace signs
c. black armbands
d. North Vietnamese flags
9. In Texas v. Johnson, the flag-burning decision of 1989, it was surprising that two Reagan appointees,
Justices __________ and ________, joined the majority in reversing Johnson’s conviction.
a. Scalia; Kennedy
b. O’Connor; Kennedy
c. Souter; Scalia
d. O’Connor; Scalia
10. The Supreme Court has consistently maintained that ____________ is not protected by the First
Amendment.
a. obscenity
b. symbolic speech
c. political association
d. All of the above are true.
11. Despite the importance of the First Amendment, the Supreme Court did not begin to give major
attention to these rights until after
a. the Civil War.
b. World War I.
c. the Great Depression.
d. World War II.
12. As a Supreme Court justice, former Harvard law professor ___________ was critical of the doctrine
that the First Amendment occupied a “preferred position.”
a. Hugo Black
b. Wiley Rutledge
c. Robert Jackson
d. Felix Frankfurter
13. Over the years Supreme Court justices have advocated a variety of positions regarding freedom of
expression, ranging from the ___________ adopted by Hugo Black to the __________ approach
favored by John M. Harlan.
a. clear and present danger test; clear and probable danger
b. bad tendency test; absolutist position
c. ad hoc balancing; clear and present danger
d. absolutist position; ad hoc balancing
14. Under New York Times v. Sullivan (1964), a public official cannot prevail in a libel suit unless he or
she can show that the defendant’s statements were made with
a. criminal negligence.
b. actual malice.
c. reckless abandon.
d. defamatory intent.
52 Chapter 3: Expressive Freedom and the First Amendment
15. By the early 1950s, ______________, with its emphasis on the alleged “communist menace” to
internal security, had achieved national prominence.
a. McCarthyism
b. conservatism
c. Progressivism
d. None of the above is true.
16. In _____________ (1961), the Supreme Court upheld Section 2 of the Smith Act, which made it a
crime to belong to the Communist Party.
a. Jackson v. United States
b. Bonner v. American Communist Party
c. Dennis v. Higgins
d. Scales v. United States
17. In NAACP v. Alabama (1958), the Supreme Court held that Alabama had infringed the NAACP’s
__________ by enforcing a law requiring organizations based outside the state to register
members’ names and addresses.
a. right of privacy
b. freedom of assembly
c. right to petition government for a redress of grievances
d. freedom of association
18. The doctrine of _____________ prohibits laws that do not aim specifically at evils the government
has a right to prevent but sweep within their ambit activities that are protected by the First
Amendment.
a. overbreadth
b. vagueness
c. imminent lawless action
d. desuetude
19. In Hazelwood School District v. Kuhlmeier (1988), the Supreme Court _________ a public school
principal’s decision to excise certain controversial material from the school newspaper.
a. refused to review
b. upheld
c. reversed
d. enjoined
20. In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), the Supreme
Court struck down a state law banning
a. the advertisement of prescription drug prices.
b. the sale of “generic” drugs.
c. the sale of certain “over the counter” medications to minors.
d. the use of birth control devices.
21. In New York Times v. United States (1971) the Supreme Court rebuffed the Nixon Administration’s
attempt to block publication of the
a. Communist Manifesto.
b. Watergate Tapes.
c. Pentagon Papers.
d. names of CIA agents stationed in Southeast Asia.
22. In Miller v. California (1973) the Supreme Court stated that the “basic guidelines” that the “trier of fact”
must follow in an obscenity case include the determination of whether the work in question
a. is indecent.
b. shocks the conscience of the average adult.
c. lacks serious literary, artistic, political, or scientific value.
d. is utterly without redeeming social importance.
23. Which of the following forms of expression is least likely to be accorded First Amendment protection?
a. Commercial advertising
b. Symbolic political speech
c. Libel
d. Questionable scientific claims
24. As a Supreme Court justice, former Harvard law professor Felix Frankfurter sharply criticized the
doctrine that the First Amendment occupies a(an) “__________ position.”
a. ignoble
b. preferred
c. sacrosanct
d. unfettered
25. In the 1958 decision in ________ the Supreme Court held that a state had infringed the constitutional
rights of organization members by enforcing a law requiring organizations based outside the state to
register members’ names and addresses. Specifically, the Court held that the law violated the First
Amendment freedom of association.
a. NAACP v. Alabama
b. Rostker v. Goldberg
c. Nebbia v. New York
d. None of the above is true.
26. Writing for the Court in Palko v. Connecticut (1937), Justice __________ characterized freedom of
speech as “the matrix, the indispensable condition, of nearly every other form of freedom.”
a. Benjamin Cardozo
b. Hugo Black
c. Robert Jackson
d. Felix Frankfurter
27. In Commentaries on the Laws of England, Vol. IV (1769), ______________ stated the rule against
prior restraint in the context of freedom of the press: “The liberty of the press is indeed essential
to the nature of a free state; but this consists in laying no previous restraints upon publications,
and not in freedom from censure for criminal matter when published.”
a. Thomas Jefferson
b. Alexander Hamilton
c. John Adams
d. Sir William Blackstone
28. In _____________________the Supreme Court voted to uphold a public school principal’s decision
to excise certain controversial material from the school newspaper.
a. Tinker v. Des Moines Independent Community School District (1969)
b. Hazelwood School District v. Kuhlmeier (1988)
c. Brown v. Board of Education of Topeka, Kansas (1954)
d. None of the above is true.
29. In Abrams v. United States (1919), the Supreme Court affirmed the convictions of Jacob Abrams, a
self-styled “anarchist Socialist,” and several associates for distributing leaflets in New York City
urging the “workers of the world” to resist, among other things, American intervention in Russia
against the newly formed Bolshevik government under the ______________.
a. clear and present danger test
b. clear and probable danger test
c. bad tendency test
d. None of the above is true.
30. Under the _______________, courts were required in each case to “ask whether the gravity of the
‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to
avoid the danger.”
a. clear and present danger test
b. clear and probable danger test
c. bad tendency test
d. None of the above is true.
31. Dissenting in Dennis v. United States (1951), Justice __________________ wrote, “I have always
believed that the First Amendment is the keystone of our Government, that the freedoms it
guarantees provide the best insurance against destruction of all freedom . . . So long as this Court
exercises the power of judicial review of legislation, I cannot agree that the First Amendment
permits us to sustain laws suppressing freedom of speech and press on the basis of Congress’ or
our own notions of mere ‘reasonableness.’ Such a doctrine waters down the First Amendment so
that it amounts to little more than an admonition to Congress.”
a. Benjamin Cardozo
b. Hugo Black
c. Robert Jackson
d. Felix Frankfurter
32. In ______________, the U.S. Supreme Court upheld a state statute that increases the severity of
punishment if a crime victim is chosen on the basis of race or other designated characteristics.
a. R.A.V. v. St. Paul (1992)
b. Wisconsin v. Mitchell (1993)
c. Virginia v. Black (2003)
d. None of the above is true.
33. In _____________, the Court rejected the First Amendment claim of a Vietnam War protester that
publicly burning his draft card was a form of constitutionally protected symbolic speech.
a. Minersville School District v. Gobitis (1940)
b. Tinker v. Des Moines Independent Community School District (1969)
c. United States v. O’Brien (1968)
d. none of the above
34. In ________________, the Supreme Court adhered to its decision in Texas v. Johnson and struck
down the Flag Protection Act as applied to flag burning as a means of political protest.
a. United States v. Eichman (1990)
b. Street v. New York (1969)
c. Doran v. Salem Inn (1975)
d. None of the above is true.
35. As stated by Justice Brennan, the standard in defamation cases “prohibits a public official from
recovering damages for a defamatory falsehood relating to his official conduct unless he proves
that the statement was made with ___________; that is, with knowledge that it was false or with
reckless disregard of whether it was false or not.”
a. ill will
b. hatred of the public official
c. actual malice
d. actual discontent
36. In The Florida Star v. B.J.F. (1989), the Court overturned a(n) ____________ verdict against a
newspaper that reported the name of a rape victim, where the newspaper had obtained the
victim’s name from a police report that had been released in violation of state law and the
established police department policy.
a. libel
b. slander
c. defamation of character
d. invasion of privacy
37. In _________________, the Supreme Court handed down new legal guidelines for obscenity where
the Court expressed the view that obscenity is “utterly without redeeming social importance” and
thus entitled to no First Amendment protection.
a. Roth v. United States (1957)
b. Regina v. Hicklin (1868)
c. Jacobellis v. Ohio (1964)
d. None of the above is true.
38. In Coates v. City of Cincinnati (1971), the Supreme Court _________ an ordinance that made it
unlawful for “three or more persons to assemble … on any sidewalks and there conduct
themselves in a manner annoying to persons passing by” under the overbreadth doctrine.
a. upheld
b. invalidated
c. denied certiorari
d. None of the above is true.
39. In ___________________, a statute aimed at suppressing commercial trafficking of depictions of
animal cruelty, such as “crush videos” where small animals are crushed underfoot, was
invalidated by the Supreme Court because the statute created “a criminal prohibition of alarming
breadth.”
a. United States v. Stevens (2010)
b. Reno v. American Civil Liberties Union (1997)
c. Coates v. City of Cincinnati (1971)
d. none of the above
40. In _________________, the Supreme Court upheld a Florida court’s injunction that prohibited
antiabortion protesters from coming within a 36-foot buffer zone around the entrances to an
abortion clinic.
a. Adderley v. Florida (1966)
b. Schenck v. Pro-Choice Network (1997)
c. Madsen v. Women’s Health Center (1994)
d. None of the above is true.
41. In _______________, the Supreme Court recognized that the sidewalks surrounding the Court’s own
building in Washington, D.C. qualified as a public forum and struck down the federal law
forbidding use of that space for picketing or handing out leaflets.
a. Perry Educational Association v. Perry Local Educators’ Association (1983)
b. Lloyd Corporation v. Tanner (1972)
c. Schenck v. United States (1919)
d. United States v. Grace (1983)
42. In _______________, the Supreme Court struck down a District of Columbia regulation that
prohibited the display of signs within 500 feet of a foreign embassy if the message displayed on
the signs brought the embassy’s government into “disrepute.”
a. Kovacs v. Cooper (1949)
b. Boos v. Barry (1988)
c. Heffron v. International Society for Krishna Consciousness (1981)
d. None of the above is true.
43. In ________________, the Supreme Court struck down the Helms Amendment to the Cable
Television Consumer Protection and Competition Act of 1992, which required cable systems that
lease channels to commercial providers of “patently offensive” programming to scramble the
signals of those channels and make them available only to subscribers who specifically request
access.
a. Denver Area Educational Telecommunications Consortium v. Federal Communications Commission
(1996)
b. Federal Communications Commission v. Pacifica Foundation (1978)
c. Reno v. American Civil Liberties Union (1997)
d. None of the above is true.
44. Prior to the mid-1970s, the Supreme Court regarded the regulation of __________ __ as simply an
aspect of economic regulation, entitled to no special First Amendment protection.
a. political speech
b. symbolic speech
c. commercial speech
d. None of the above is true.
45. In Lorillard Tobacco Company v. Reilly (2001), writing for the majority, _____________observed
that “so long as the sale and use of tobacco is lawful for adults, the tobacco industry has a
protected interest in communicating information about its products and adult customers have an
interest in receiving that information.”
a. Chief Justice William Rehnquist
b. Justice Anthony Kennedy
c. Justice John Paul Stevens
d. Justice Sandra Day O’Connor
46. According to your textbook which justice of the Supreme Court is considered to be the “the best
known and most forceful of the First Amendment absolutists?”
a. John Marshall
b. Hugo Black
c. Earl Warren
d. Samuel Alito
47. The rule against prior restraint is MOST associated with which First Amendment freedom?
a. Freedom of speech
b. Freedom of assembly
c. Freedom of association
d. Freedom of the press
48. In____________, the Court struck down a state law that permitted public officials to seek an
injunction to stop publication of any “malicious, scandalous and defamatory newspaper,
magazine or other periodical.”
a. Near v. Minnesota (1931)
b. New York Times Company v. United States (1971)
c. United States v. Progressive (1979)
d. Hazelwood School District v. Kuhlmeier (1988)
49. In ____________, the Supreme Court held that the government’s effort to block publication of
excerpts from a classified study titled “History of U.S. Decision-Making Process on Viet Nam
Policy” amounted to an unconstitutional prior restraint.
a. Near v. Minnesota (1931)
b. New York Times Company v. United States (1971)
c. United States v. Progressive (1979)
d. Hazelwood School District v. Kuhlmeier (1988)
50. In________________, the Supreme Court voted 5 to 3 to uphold a public school principal’s decision
to excise certain controversial material from the school newspaper.
a. Near v. Minnesota (1931)
b. New York Times Company v. United States (1971)
c. United States v. Progressive (1979)
d. Hazelwood School District v. Kuhlmeier (1988)
51. Writing for the Court in Hazelwood School District v. Kuhlmeier (1988), which justice stated that
“educators do not offend the First Amendment by exercising editorial control over the style and
content of student speech in school-sponsored, expressive activities so long as their actions are
reasonably related to legitimate pedagogical concerns.”
a. William Rehnquist
b. Byron White
c. William Brennan
d. Hugo Black
52. The issue of prior restraint arose in which case in connection with the publication of a magazine
article purporting to describe the process of making a hydrogen bomb?
a. Near v. Minnesota (1931)
b. New York Times Company v. United States (1971)
c. United States v. The Progressive (1979)
d. Hazelwood School District v. Kuhlmeier (1988)
53. In ___________, the Court upheld a state law that explicitly adopted the bad tendency test by
criminalizing publications “having a tendency to encourage or incite the commission of any
crime, breach of the peace or act of violence.”
a. Patterson v Colorado (1907)
b. Fox v. Washington (1915)
c. Schenck v. United States (1919)
d. None of the above
54. In which case did Justice Holmes articulate the clear and present danger test, saying that “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.”
a. Patterson v Colorado (1907)
b. Fox v. Washington (1915)
c. Schenck v. United States (1919)
d. None of the above is true.
55. In ____________, the Court invalidated on due process grounds a state law prohibiting the teaching
of the German language in primary schools.
a. Prudential Insurance Company v. Cheek (1922)
b. Meyer v. Nebraska (1923)
c. Pierce v. Society of Sisters (1925)
d. Fiske v. Kansas (1927).
56. In_______________, the Court struck down an amendment to a state constitution aimed at prohibiting
parents from sending their children to private schools.
a. Prudential Insurance Company v. Cheek (1922)
b. Meyer v. Nebraska (1923)
c. Pierce v. Society of Sisters (1925)
d. Fiske v. Kansas (1927).
57. In __________, the Supreme Court would invalidate a state law on First Amendment freedom of
speech grounds for the first time.
a. Prudential Insurance Company v. Cheek (1922)
b. Meyer v. Nebraska (1923)
c. Pierce v. Society of Sisters (1925)
d. Fiske v. Kansas (1927).
58. Which Justice authored the Court’s opinion in R.A.V. v. St. Paul (1992)?
a. William Rehnquist
b. Sandra Day O’Connor
c. John Paul Stevens
d. Antonin Scalia
59. In_____________, the Court rejected the First Amendment claim of a Vietnam War protester that
publicly burning his draft card was a form of constitutionally protected symbolic speech.
a. United States v. O’Brien (1968)
b. Tinker v. Des Moines Independent Community School District (1969)
c. Cohen v. California (1971)
d. None of the above is true.
Chapter 3: Expressive Freedom and the First Amendment 63
ESSAY QUESTIONS
1. Discuss the constitutional arguments surrounding state and local efforts to force civic and social
clubs to admit women and minorities as members. How has the Supreme Court addressed this
issue?
2. Delineate and critique the three-part test for determining obscenity rendered in Miller v.
California. In your opinion does the Miller test clarify the legal definition of obscenity or fail to
do so?
3. Discuss the constitutional arguments surrounding efforts by certain communities to ban
pornography on the ground that it constitutes sex discrimination.
4. The “clear and present danger” test and the rule against “prior restraints” broadly protect certain
basic First Amendment freedoms. Discuss these two standards, commenting on leading cases in
which they have been applied by the Supreme Court. You should view the “clear and present
danger” test in broad historical context, including the reaffirmation of this test by the “imminent
lawless action” standard invoked in Brandenburg v. Ohio. Under what circumstances would the
“clear and present danger” test allow the government to place limitations on speech? Under what
circumstances would government be permitted to disregard the rule against prior restraints?
5. Trace the evolution of First Amendment interpretation in the field of political speech from
Schenck v. United States through Brandenburg v. Ohio. What external factors influenced the
Court’s choice of the “bad tendency” test over the “clear and present danger” test in such cases as
Abrams v. United States, Gitlow v. New York, and Whitney v. California? What factors influenced
the Court to adopt a restrictive of freedom of speech during the early 1950s? Is the standard
adopted in Brandenburg v. Ohio (1969) simply a reaffirmation of the “clear and present danger”
test, or does this newer standard provide greater protection of free speech? Discuss.
6. Restate and analyze the competing positions of the majority and the four dissenters in Texas v.
Johnson (1989). Is the majority opinion in this highly controversial “flag–burning” case consistent
with the Supreme Court’s previous development of freedom of expression? Discuss.
7. Restate the constitutional rule that the Supreme Court has applied to libel actions brought by
public officials, as originally enunciated in New York Times v. Sullivan. Is the Court justified in
according greater latitude to the media in commenting on public persons than in commenting on
private persons? What are the arguments in support of this differentiation? What are the opposing
arguments?
8. What kinds of expression are (a) most fully protected under the First Amendment, as interpreted
by the U.S. Supreme Court; (b) accorded more limited protection; and (c) given little, if any,
protection? Analyze the criteria that the Court has developed over roughly the past eighty years in
its efforts to distinguish among various kinds and degrees of constitutionally protected and
unprotected expression. Have the Court’s long-term efforts to distinguish protected from
unprotected expression been consistent? Do these efforts reflect consensus among the justices as
to the most important purposes served by the First Amendment in this broad area? What are the
most important purposes that you believe to be served by the First Amendment?
9. Discuss the Court’s ruling in Hazelwood School District v. Kuhlmeier (1988). What is the
rationale put forth in the opinion? How did the Court interpret First Amendment protections
64 Chapter 3: Expressive Freedom and the First Amendment
within public schools? Is this ruling consistent with other First Amendment cases? Is it consistent
with other rulings concerning student rights at school?
10. Compare the Court’s ruling in Edwards v. South Carolina (1963) with the decision in Adderley v.
Florida (1966). Why have some critics argued that the Court reached contradictory outcomes in
these seemingly similar cases? On what constitutional principles does the Court rely in
differentiating these cases?