CRIM 94285 | Course Paper

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Political Context:

A. The Election of 1800 was controversial ” it was the first presidential election in the

U.S. to be thrown to the House. The federalists lost control of both Congress and the

White House. As a result, before January 1801 the federalists attempted to keep control

of the judiciary. One measure outgoing president Adams took was to appoint John

Marshall ” a staunch federalist ” to be Chief Justice of the United States.

B. The new Jeffersonian administration was the antithesis of the federalist Adams

administration, and wanted to give.

C. During this time the Supreme Court was a trivial part of the federal government. It

had little prestige and little authority. In fact, as the text point out, John Jay quit being

chief justice so that he could become the governor of New York.

D. Given the controversial midnight appointments ” especially that of William Marbury

” and the President Jefferson had Congress abolish the Court’s summer session of 1802.

E. The Jefferson administration considered having Marshall and Justice Samuel Chase

impeached because of their federalist views.

Ex Parte McCardle (1869) (8-0)

Relevant Case Facts: After the Civil War the Republican Congress instituted

Reconstruction Laws on the South. Specifically, it placed the South under military rule.

McCardle wrote editorials opposing these measures, and urged resistance against them.

He was arrested for publishing “incendiary and libelous articles” and was held for trial

before a military tribunal. McCardle argued that he was a citizen and not a member of

militia and was therefore being illegally held. He filed a petition for a writ of habeas

corpus as allowed under Congressional Act of 1867. When this effort failed, he turned

to the Supreme Court for help. Before the Court could hear the case, Congress repealed

the Habeas Corpus Act, removing the Supreme Court’s authority to hear such cases.

Legal Question: Can the Supreme Court hear a petition for a write of habeas corpus

when Congress has taken away such authority?

HYPOTHETICAL QUESTION:

None for this Chapter.

Barron v. Baltimore (1833)

Relevant Case Facts:

In the early 1800s Baltimore was becoming a major hub of economic activity. Its

growth necessitated constant construction and excavation. Specifically, the vast amount

of street construction began to alter the flow of the rivers into Baltimore harbor. This

led to an accumulation of sand and silt around their wharves. This ruined Barron’s

business because the harbor became too shallow for ships to come into port. Barron

wanted the city to pay for the dredging of the harbor, but it did not do so. In 1822

Barron brought suit against the city asking for $20,000 in compensation for the taking

of his private property. The court awarded him $4,500 to Barron.

Legal Question: Does the Takings Clause of the 5th Amendment apply to the states?

Hurtado v. California (1884)

Relevant Case Facts:

Hurtado shot and killed his wife’s lover, an offense punishable by death. While

defendants often faced a grand jury to determine if there was enough evidence for a

trial, California allowed prosecutors to use an information to initiate a trial rather than a

grand jury. The state used this method to bring Hurtado to trial, and he was found guilty

of murder. Hurtado” s lawyer objected to the trial on the grounds that Hurtado had a

right to a grand jury and to due process of law. He argued that these rights applied to

federal hearings under the 5th Amendment, and therefore the state should also apply

these standards under the 14th Amendment’s due process and privileges and immunities

clause.

Legal Question: Does an individual accused of a capital crime have a right to a grand

jury in state court under the 5th Amendment?

Dissenting (Harlan):

The majority’s opinion leads to the conclusion that, except for the rights enumerated,

the deprivation of life, liberty, and property without due process of law would not have

prevented Congress from enacting a statute in derogation of each of them…I dissent

from the interpretation that due process of law only protects the fundamental principles

of liberty and justice from intrusion by the general government and not by state

governments.

Palko v. Connecticut (1937)

Relevant Case Facts:

Palko robbed a store and shot and killed two police officers. At his trial for first degree

murder, the judge refused to admit Palko’s confession into evidence, and Palko was

only convicted of second degree murder. The state appealed to the state supreme court,

which reversed the exclusion of Palko’s confession and ordered a new trial. Palko’s

attorney objected, saying that a new trial would be a violation of the 5th Amendment’s

prohibition against double jeopardy. Palko was tried again and found guilty of first

degree murder.

Legal Question: Does the 5th Amendment’s protection against double jeopardy apply to

the states through the guarantee of due process of law?

Duncan v. Louisiana (1968)

Relevant Case Facts:

Duncan, a 19 year old black man, was involved in an altercation with four white youths.

The nature of the altercation was in dispute, but the principal of the school in which the

boys were enrolled alleged that Duncan had slapped one of the youths. The police

questioned Duncan, but found no reason to arrest him. Several days later, however,

Duncan was arrested for cruelty to juveniles. Duncan’s family believed the arrest was

racially motivated and hired an attorney. Duncan’s attorney believed his arrest was “part

of a pattern of anti-civil rights intimidation and harassment in the area.” He argued that

the Louisiana law only allowed cruelty to juveniles for those who had supervision over

the juvenile, which Duncan did not. Knowing that they would not win their case, the

mother of the boy who was allegedly slapped asked for Duncan to be rearrested and

charged with battery ” an offense that carried a possible charge of two years in prison

and $300 fine. Duncan’s attorney went back asking for a jury trial, but the judge refused

because the Louisiana Constitution only allowed jury trials for cases involving hard

labor or death.

Legal Issue: Is the right to a jury trial in the 6th Amendment, for non-capital cases

incorporated to the states via the 14th amendment?

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?

Near v. Minnesota (1931)

Relevant Case Facts:

A 1925 Minnesota law provided for “the abatement, as a public nuisance, of a

“malicious, scandalous, and defamatory newspaper, magazine, or other periodical.”” In

1927, a county attorney asked a state judge to issue a restraining order banning

publication of the Saturday Press. In the attorney’s view the newspaper, partly owned

by Jay Near, was malicious, scandalous, and defamatory. The paper committed itself to

uncovering corruption in Minneapolis, but the articles it published were colored by

Near’s racist and anti-Semitic attitudes. A judge issued a temporary restraining order

prohibiting the sale of printed and future editions of the paper. Near first got help of

ACLU, but dropped them and got help from editor of the Chicago Tribune.

Legal Question: Is a statute authorizing the prior restraint of a newspaper consistent

with the liberty of the freedom of the press?

Holding: No. By a vote of 5-4 the Court ruled in favor of Near.

Reasoning:

1/ The liberty of the press and of speech is within the liberty protected by due process

clause of the 14th Amendment. States have right to enact laws to promote health,

welfare of its people, but its power must be determined with regard to the particular

subject of its exercise.

2/ It is thus important to note the purpose and effect of the statute as construed by the

state. First, the statute is not aimed at individual or private wrongs, and libel remedies

are still available and unaffected. Second, the statute here is directed not only at the

circulation of scandalous and defamatory statements with regard to private citizens, but

also at continued publication by newspapers and periodicals of charges against public

officers of corruption. Third, the object of the statute is not punishment, but the

suppression of the offending newspaper. Fourth, the effect of the statute is to put the

publisher under the effect of censorship.

3/ The right to be free of prior restraint is not unlimited, but limitations are recognized

only in exceptional cases. Such an exception might be when a nation is at war.

4/ If a publisher has a constitutional right to publish, without previous restraint, an

edition of his newspaper charging official derelictions, it cannot be denied that he may

publish subsequent editions for the same purpose. He does not lose his right by

exercising it. If the right exists it may be exercised in publishing nine editions as well as

in one edition.

5/ There is nothing new in the fact that charges of reprehensible conduct may create

resentment and the disposition to resort to violent means of redress, but this does not

alter the determination to protect the press against censorship and restraint upon

publication.

New York Times v. United States (1971)

Relevant Case Facts:

In 1971 the New York Times and Washington Post began publishing articles on the

Pentagon Papers, which was a massive history of how the U.S. got involved in the war

in Indochina. After the newspapers published several installments the U.S. brought

action asking a district judge to restrain them from publishing any longer. The

government’s argument was that the articles would cause irreparable damage to national

security. The newspapers said the material was largely historical and the government’s

attempt amounted to prior restraint.

Legal Question: Does the government interest in protecting national security justify

prior restraint?

Holding: No. By a vote of 6-3 the Court ruled in favor of the Times.

Reasoning:

Any system of prior restraint comes to the court bearing a heavy presumption against

constitutional validity. Here the government does not meet the heavy burden of showing

justification for the imposition of such a restraint.

Concurrences:

Black, with Douglas joining

The government’s case should have against the Post should have been dismissed and the

injunction against the Times should have been vacated without oral argument. A

holding that the publication of news may sometimes be enjoined would make a

shambles of the First Amendment. Both the history and the language of the 1st

Amendment support the view that the press must be left free to publish news, whatever

the source, without censorship, injunctions, or prior restraints. These papers should be

commended for serving the purpose that the founding fathers saw so clearly.

Douglas, with Black joining

Secrecy in government is fundamentally anti-democratic. Open debate and discussion

of public issues are vital to our national health. On public questions there should be

uninhibited, robust, and wide-open debate.

Brennan

The First Amendment stands as an absolute bar to the imposition of judicial restraints in

circumstances of cases of this kind. This amendment tolerates absolutely no prior

restraints on the press based on conjecture that bad consequences may develop. Only

governmental allegation and proof that publication must inevitably, directly, and

immediately cause the occurrence of an event kindred to imperiling the safety of a

transport already at sea can support even the issuance of an interim restraining order.

Stewart, with White joining:

The only effective restraint on the executive policy and power in the areas of national

defense and international affairs may lie in an enlightened citizenry ” in an informed

and critical public opinion which alone can here protect the values of democratic

government. Yet it is elementary that the successful conduct of national defense

requires confidentiality and secrecy. There is one answer to this dilemma: the

responsibility must be where the power is. But the very first principle should be an

insistence upon avoiding secrecy for its own sake. For when everything is classified,

nothing is classified. I am convinced that some of the documents in questions should be

classified, but I cannot say that disclosure of any of them will result in direct,

immediate, and irreparable harm to our Nation or its people.

White, with Stewart joining:

The U.S. has not satisfied the very heavy burden that it must meet to warrant an

injunction against publication in these cases, at least in the absence of express and

appropriately limited congressional authorization for prior restraints in circumstances

such as these. That the government mistakenly chose to proceed by injunction does not

mean that it could not successfully proceed in another way. Even the Espionage Act of

1917 did not allow the president to invoke prior restraint for matters of national

defense. I would have no difficulty in sustaining convictions under these sections on

facts that would not justify the intervention of equity and the imposition of prior

restraint.

Dissents

Burger:

We have dealt with these cases with unseemly haste. Indeed, this Court should not be

aborting trials that are not already completed, especially for great issues such as the one

here. Of course, the 1st Amendment is not absolute, and we might have found

exceptions had we properly considered this case. The consequence is that we literally

do not know what we are acting on.

Harlan, with Burger and Blackmun joining:

The Court has been irresponsible in dealing with these cases in such an extreme and

quick manner. We should have addressed a number of questions including whether the

attorney general has the right to bring this case in the name of the U.S., and whether the

1st amendment allows federal courts to enjoin publication which pose a threat to

national security. The scope of the judicial function in passing on acts of the executive

in the arena of international affairs is very limited. However, the right to limit

publication is not vested in the executive alone; the courts do have role to play in

passing on whether the material falls within the executive’s foreign relations power. But

we must not go beyond these inquiries and redetermine for ourselves the probably

impact of disclosure on national security.

Blackmun:

I cannot subscribe to a doctrine of unlimited absolutism for the 1st Amendment at the

cost of downgrading other provisions of the constitution.

Hazelwood School District v. Kuhlmeier (1988)

Relevant Case Facts:

Editors of The Spectrum, a High School newspaper, planned to publish articles on teen

pregnancy and divorce. The school principal said that the way the stories were written,

readers would be able to tell who the students were. As such he would not allow

publication. The student staff challenged this ruling as censorship.

Legal Question: May educators exercise editorial control over the contents of a high

school publication produced as a part of the school’s journalism curriculum?

Holding: Yes. By a vote of 5-3 the Court ruled in favor of Hazelwood School District.

Reasoning:

1/ “Students do not shed their constitutional rights to freedom of speech or expression at

the schoolhouse gate” (Tinker v. Des Moines). Students cannot be punished for merely

expressing their personal views on school premises unless school administrators have

reason to believe that the expression will “substantially interfere with the work of the

school or impinge on the rights of other students.” We have also recognized that the

First Amendment rights of students not automatically coextensive with those of adults

in other settings.

2/ The question of whether the First Amendment requires a school to tolerate a

particular type of speech ” the type of speech addressed in Tinker – is different from the

question of whether the 1st Amendment requires a school to affirmatively promote

particular student speech.

3/ The activities in question are part of school curriculum, and educators are entitled to

exercise greater control over such type of activity to make sure that students learn the

lesson that is being taught. A school may in its capacity as publisher of a school

newspaper or producer of a school play disassociate itself not only from speech that

would substantially interfere with its work…or impinge upon the rights of other

students, but also from speech that is…ungrammatical, poorly written, inadequately

researched, biased or prejudiced, vulgar or profane, or unsuitable for immature

audiences.

4/ A school must be allowed to take into account the level of maturity of the intended

audience. Otherwise schools would be deprived of their role in preparing children for

adult life. Thus, determining when a school may punish student expression need not

also be the standard for determining when a school may refuse to lend its name and

resources to the dissemination of student expression.

5/ Here, it was not unreasonable for the principal to have concluded that such frank talk

was inappropriate to 14-year-old freshman and presumably taken home to be read by

students’ even younger brothers and sisters.

Dissent (Brennan, with Blackmun and Marshall joining):

The newspaper in this case was not simply a class exercise in which students learned to

prepare papers and hone writing skills…it was a…forum established to give students an

opportunity to express their views while gaining an appreciation of their rights and

responsibilities under the 1st Amendment to the U.S. Constitution. The student

journalists drew up a Statement of Policy every year – tacitly approved by the school

authorities – announcing their expectation that the publication accepts all rights of the

First Amendment. The statement indicated that only speech that “materially and

substantively interferes with the requirements of appropriate discipline” can be found

unacceptable and therefore prohibited. The school board said that it would not “restrict

free expression or diverse viewpoints within the rules of responsible journalism.”

Ultimately, the principal not only broke a promise; he also violated the 1st Amendment

protection against censorship.

CASE CUT DELETE IF YOU LIKE

Red Lion Broadcasting v. FCC (1969)

Relevant Case Facts:

When it was created in 1934 the FCC has required that both sides of issues be presented

on television and radio stations and to provide fair coverage of those issues. This policy

is widely known as the “fairness doctrine.” WGCB broadcast a program entitled the

“Christian Crusade” during which Reverend Billy James Hargis verbally attacked Fred

Cook who had written a book critical of Barry Goldwater. Cook asked WGCB to allow

him to respond on the air, asserting the fairness doctrine. When the station refused Cook

went to the FCC which held that Red Lion was not in compliance with fairness doctrine

and ordered the station to give Cook equal time.

Legal Question: Does fairness doctrine violate the 1st Amendment guarantee of

Freedom of the Press?

Holding: No. By a vote of 7-0 the Court ruled in favor of the FCC.Reasoning: Under

what condition has the Court been willing to allow content in the press to be restricted?

Does the form of the media matter? How has the Court dealt with cases involving

special rights for the Media? Has the Court been willing to recognize that reporter’s

enjoy greater freedoms than others? Why or why not?

*a. Answers Vary