CHAPTER FIVE: FREEDOM OF SPEECH, ASSEMBLY, and ASSOCIATION
Type: E
1. Why are restrictions on speech often associated with times of crisis?
2. How does the Court’s decision in Abrams differ from the standard it set in Schenk? Which is a
more restrictive view of free speech?
3. What does it take for speech to cause a clear and present danger? Does it make sense that the
government should be able to suppress such speech?
4. Explain the difference between the clear and present danger test and the clear and probable
danger test.
5. Why did Holmes and Brandeis rule against Schenk but rule for Abrams?
6. Why was Gitlow such an important case for Freedom of Speech doctrine?
7. What is the preferred freedoms doctrine and how does it relate to the freedom of speech? Why
did the justices move in this direction beginning in the 1930s?
8. How did the Court interpret Free Speech cases beginning in the late 1940s? Why did the
Vinson Court do so?
9. Is the clear and probable danger test closer to the clear and present danger test or to the bad
tendency test? Explain.
Type: E
10. Compare the approach taken by Justice Frankfurter and Justice Douglas on the first
amendment.
11. How did the Warren Court deal with cases involving communists?
12. Compare imminent lawless action with the clear and present danger test. Which provides
more protection for speech?
13. Why does the Court afford the most protection for speech in public forums? Why do
nonpublic forums garner the least amount of protection?
14. Why must laws that regulate speech be content neutral?
15. Explain 3 conditions that may trigger valid government regulation of expression. Why are
they valid regulations?
Type: E
16. Explain two ways the government is restrained from regulating speech? Are these
appropriate restraints? Why or why not?
17. Why are symbolic speech cases so difficult for the Court to decide?
18. Explain the standard the Court uses to determine whether an utterance may be considered
fighting words. Should these words be protected speech?
19. What rationale led the Court to hold that the St. Paul in R.A.V. violated the First Amendment
while it held Mitchell’s First Amendment rights were not violated by a Wisconsin law a year
later?
Type: E
20. Why does justice Alito dissent in Snyder v. Phelps? What are his main concerns about the
majority opinion?
21. How do the plurality, concurrence, and dissent differ in their views of determining whether
lies are protected speech?
22. Explain why, in light of Tinker, the Court was willing to allow the school to suspend students
for holding a “Bong Hits for Jesus” banner in Morse v. Fredrick?
23. When may a school suppress student speech according to Tinker?
24. Give three reasons why the Court turned back to a more conservative approach to the First
Amendment in the early 1950s?
25. Explain the concept of prior restraint and provide at least two examples of government use of
prior restraint.
Type: E
26. How has the Court determined that symbolic speech can qualify for First Amendment
protection?
27. Why is it so difficult for the Court do decide Hate Speech cases?
28. When do citizens have the right not to speak?
29. Why the Court reach different decisions in Barnette and Rumsfeld?
30. What factors do scholars believe helped sway the Court to reverse its stance on the Pledge of
Allegiance between Gobitas and Barnette?
Type: E
31. Why does the Court treat commercial speech cases differently than political speech cases?
32. Since Central Hudson, has the Court increased or decreased protections for commercial
speech? Are there any limits?
33. What interests does the Court balance as it decides freedom of association cases?
34. In Schenk v. U.S. the Court created the:
35. Gitlow is an important case because it:
36. The Preferred Freedoms Doctrine States that:
37. Moving full circle from Schenk to Brandenburg the Court settled on which test in
Brandenburg?
38. In Tinker v. Des Moines the Court held that:
39. In Morse v. Frederick the Court decided:
40. In West Virginia State Board of Education v. Barnette the Court ruled that the right to free
speech includes the right to not speak.
41. As a general rule the Court has generally held that commercial speech:
42. In terms of Freedom of Association, the Rehnquist Court has generally:
43. Rumsfeld v. Fair demonstrates that:
44. The First Amendment is clear in its protection of the freedom of expression: “Congress shall
make no law…abridging the freedom of speech, or of the press; or the right of the people to
peaceably assemble, and to petition the government for a redress of grievances.” However, only
Justices Black and Douglas have ever adhered to a literalist interpretation of the freedom of
expression clause. All other justices have been willing to place some restrictions on the freedom
of expression. Discuss the evolution of standards the Court has used to adjudicate freedom of
expression from Schenk to Brandenburg. In your answer, explain why the Court has not adhered
to a single position, changing standards depending on the circumstances of the case. Why has
the Court been more willing to restrict freedom of expression in certain times and has allowed
more liberal standards at other times? Are you satisfied with the standards that the Court has
provided? Do you feel that the standards should be more or less precise allowing for more or
less freedom in interpreting the standard? Why?
45. Jeremy Stevens was an ardent leftist, and was known for his outrageous stunts in his high
school of 400 students in rural Southwest Minnesota. In his freshman year he came to school
dressed in a skirt to protest the policy that, while skirts may be worn, no shorts may be worn to
school between November 1st and April 1st. When he was sent home for indecent conduct, he
returned in a traditional Scottish Kilt. While under suspension for violating school rules Stevens
was granted the right to wear skirts after he sought the advice of the local ACLU chapter.
During his junior year he drafted an editorial cartoon for the school newspaper that depicted the
principal as a drunkard. While the ACLU again wanted to help, they were bound by the
Supreme Court’s precedent that schools may edit, and restrict content in, school newspapers.
His senior year has been tame, but Stevens did wear a t-shirt to school that proclaimed “the
president is a terrorist.” School officials asked him to remove the shirt or to go home and
change. When he refused Stevens was suspended for 2 days. After consulting with the ACLU
again, Stevens has decided to sue the school district for violating his freedom of speech found in
the 1st and 14th Amendments. The case has gone through the courts and has now reached the
U.S. Supreme Court.
As a justice on the Court, how would you rule given the line of free speech cases decided by the
Court? Should Stevens be allowed to wear his t-shirt? Why or why not? You must cite cases
from class to support your answers. There is no right answer, but all answers must be logical and
supported with case law.
Type: E
46. In Sweet Home, Oregon a group of college students staged a peaceful demonstration, in a
public park, during the 2003 War in Iraq. The protest comprised of peaceful songs being sung,
banners condemning the acts of the United States government, and finally the use of several
“barrels of oil” which were really large containers filled with colored water. A city ordinance
stated that large groups must have a permit to gather in the park in question, and that all
gatherings must cease by 11:30 p.m. The group of students chanted and marched all day on
January 20, and continued until 11:30 when they were told to vacate the area by local police.
Then, about midnight, the leader of the group, Lee Segal, stood on a podium and shouted “US
we condemn you for a war that is only meant to save your precious oil — we spit on your
efforts!” At that instance he pushed over 5 “barrels of oil” and shouted “we do not need oil if it
is going to kill our brothers and sisters.” At that point, the police arrested Segal and several
others. They were charged with violating the terms of their permit because they had remained
after 11:30, even when warned to leave. They were also charged with destruction of public
property because the dye used to color the water in the symbolic barrels destroyed several trees,
the grass, a park bench, and two picnic tables. Segal claimed his first amendment rights were
violated, and the ACLU took the case all the way to the Supreme Court.
As a justice on the Court, how would you rule given the line of free speech cases decided by the
Court? Should Segal be allowed to protest? Why or why not? You must cite cases from class to
support your answers. There is no right answer, but all answers must be logical and supported
with case law.
Schenck v. United States (1919)
Relevant Case Facts:
Charles Schenck, the general secretary for the Socialist Party of Philadelphia, had 15,000
pamphlets printed, urging resistance to the draft. Federal authorities arrested him for violating
the Espionage Act. Specifically they charged that he attempted to obstruct the draft and that he
illegally used the mail to do so.
Legal Question: Does the Espionage Act violate the First Amendment guarantee of Free
Speech?
Reasoning:
Abrams v. U.S. (1919)
Relevant Case Facts:
Abrams and four others were convicted of violating the Espionage Act. The defendants
professed revolutionary, anarchist, or socialist political views. They had published and
distributed leaflets which criticized President Wilson’s sending of troops into Russia and calling
for a general strike to end that policy. The language used was characteristic of language used
during the Russian revolution. The group was charged with intent to “cripple or hinder the U.S.
in the prosecution of the War.”.
Legal Question: Was Abrams’ right to free speech violated when the government arrested him
for distributing anti-war pamphlets?
Reasoning:
Dissent (Holmes):
Gitlow v. New York (1925)
Relevant Case Facts:
New York created a commission on subversive organizations, which raided socialist and
communist leaders, and seized a publication edited by Benjamin Gitlow. This document called
for mass action to overthrow the capitalist system of the U.S. government. Gitlow was
prosecuted in state court for violating the state criminal anarchy law.
Legal Question: Does the state criminal anarchy law violate the 1st Amendment right to free
speech through the due process clause of the 14th Amendment?
Reasoning:
Dissent (Holmes):
1. The Schenck standard should apply here. The words here do not constitute a clear and
present danger.
2. “Every idea is an incitement.” The only difference between opinion and incitement is the
speaker’s enthusiasm for the view offered. “Eloquence may set fire to reason.”
Dennis v. U.S. (1951)
Relevant Case Facts:
Twelve leaders of The National Board of the Communist Party were indicted for conspiring to
teach and advocate the overthrow of the government by force and violence. These actions
violated the Smith Act.
Legal Question: Does Smith Act violate the First Amendment guarantee of free speech?
Reasoning:
Concurring (Frankfurter):
Dissent (Douglas):
Brandenburg v. Ohio (1969)
Relevant Case Facts:
Brandenburg was the leader of an Ohio affiliate of the KKK. To obtain publicity, he invited a
Cincinnati Inquirer reporter to attend a rally. Based on films of a speech Brandenburg gave, he
was arrested under the Ohio Syndicalism Law, which was passed in 1919 to prevent the spread
of unpatriotic views.
Legal Question: Does Ohio Syndicalism law violate First Amendment guarantee of free
speech?
Reasoning:
United States v. O’Brien (1968)
Relevant Case Facts:
O’Brien and several others burned their draft cards on the steps of a South Boston courthouse.
O’Brien was arrested and charged with violating the 1965 amendment to the Selective Service
Act which made it illegal to “destroy or mutilate” draft cards.
Legal Question: Does the anti draft portion of the Selective Service Act violate the First
Amendment of the constitution?
Reasoning:
Texas v. Johnson (1989)
Relevant Case Facts:
During the 1984 Republican National Convention in Dallas protesters assembled outside. One of
the protestors was Gregory Johnson who unfurled an American flag, doused it in kerosene, and
set it on fire. Johnson was arrested and charged with violating the Texas flag desecration law.
He was convicted and sentenced to one year in prison and a $2000 fine.
Legal Question: Does a state law that prohibits the burning of the American Flag violate the
First Amendment freedom of expression?
Reasoning:
Chaplinsky v. New Hampshire (1942)
Relevant Case Facts:
Jehovah’s Witness member Walter Chaplinsky was selling material on a public street when he
was attacked by a mob. The police arrived and handcuffed Chaplinsky. He then demanded to
know why he was being arrested. After one of the officers told Chaplinsky to “shut up you damn
bastard,” Chaplinsky called the officer a “damned fascist and a God damned racketeer.” For
those words he was charged with breaking a law prohibiting the use of “any offensive, derisive,
or annoying word to any other person who is lawfully in the street.”
Legal Question: Does a state law which prohibits the use of offensive words to someone on the
street violate the First Amendment right to freedom of speech?
Reasoning:
Cohen v. California (1971)
Relevant Case Facts:
Someone wrote Fuck the Draft and Stop the War on Cohen’s jacket. The next day he entered a
Los Angeles county courthouse with the jacket on, and knowing the message was there.
Although Cohen removed the coat before he entered a courtroom a police sergeant had noticed it
in the corridor. The officer asked the judge to hold Cohen in contempt, but the judge would not
do so. The officer then arrested Cohen for “willfully and unlawfully and maliciously disturbing
the peace and quiet by engaging in tumultuous and offensive conduct.”
Legal Question: Does the First Amendment protect a person’s right to were a political
statement on his clothing that includes obscene language?
Court (Harlan):