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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 Before the Court could hear the case, Congress repealed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
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:
1. Differences in the character of broadcast media justify differences in the 1st
Amendment standards applied to them.
2. Where there are substantially more individuals who want to broadcast than there are
frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to
broadcast comparable to the right of every individual to speak, write, or publish. No one
has a First Amendment right to a license or to monopolize a radio frequency; to deny a
station license because "the public interest" requires it "is not a denial of free speech."
3. It is the right of views and listeners, not the right of broadcasters, which is
paramount. It is the purpose of the 1st Amendment to preserve an uninhibited
marketplace of ideas which in truth will ultimately prevail, rather than to countenance
monopolization of the market, whether it be by the government itself or a private
licensee.
4. To condition the granting of renewal of licenses on a willingness to present
representative community views on controversial issues is consistent with the ends and
purposes of those constitutional provisions forbidding the abridgement of freedom of
speech and freedom of press.
Branzburg v. Hayes (1972)
Relevant Case Facts:
Branzburg wrote two articles about individuals in the drug trade. The first focused on
two individuals who synthesized hashish from marijuana. The second contained
interviews with drug users in Frankfort Kentucky. Branzburg was subpoenaed by a
grand jury to answer questions concerning the identity of the individuals. He refused to
do so.
Legal Question: Does requiring reporters to appear and testify before grand juries
violate their freedom of speech and press guaranteed by the 1st Amendment?
In West Sussex Alabama district judge Robert Favre runs a very formal courtroom
where justice is handed out quietly but swiftly. The formality of Favre's courtroom is
demonstrated by the fact that he runs all proceedings with an iron fist. Additionally, the
judge begins every day with a prayer that asks God to allow him to act judiciously and
fairly when dealing with defendants. These prayers, while non-denominational, are read
by different members of the clergy each week. The pool of clergy includes several
Presbyterian ministers; a few Catholic priests, but is mostly comprised of Southern
Baptist ministers from the surrounding counties. These ministers are not paid, but on
those days that they read the Court's prayer, they are provided with breakfast at a local
coffee shop across from the courthouse.
To also help him serve justice, and to "show his place under God," judge Favre carved a
replica of the stone tablets upon which the Ten Commandments were written. He took it
upon himself to hang these tablets behind his bench for all to see. When asked why he
put them in his courtroom, the judge said simply "we must all realize that no matter
what our laws may be, we all live under God's law and must follow it without
question." While protesters said he should remove them, Favre refused to do so.
On January 5, 1999 Roger Vinatonka was brought into judge Favre's courtroom to
defend an accusation that he had robbed 5 gas stations in the past month. As this was
the first case of the day judge Favre asked Southern Baptist minister Mordecai Brown
to read the invocation. After he read the prayer, Vinatonka's attorney objected that this
prayer was a violation of the Establishment clause of the First Amendment.
Additionally, he objected to the Ten Commandments in the courtroom, as these also
violate the wall of separation between church and state. His argument was that it was a
violation of his client's rights to be subjected to such prayers when he was not Christian,
and his beliefs did not include praying to God or following the Ten Commandments. He
also argued that for justice to be conducted fairly in this courtroom the prayers must be
stopped and the Ten Commandments must be taken down. Favre overruled the
objection and noted that even though Vinatonka was not a Christian these were ideals
by which all "red blooded" Americans should live. Because Vinatonka waived his right
to a jury trial the judge decided the case and found the defendant guilty. After telling
him that "thou shall not steal" Vinatonka was sentenced to 3 years in a state prison. On
appeal Vinatonka's attorney argued that the trial was unfair and biased because it was
conducted under the auspices of Christian tenets which Vinatonka did not recognize
which was a direct violation of the Establishment Clause. The appeals court in Alabama
affirmed the conviction and said there was no First Amendment problem. The case was
appealed to the Supreme Court.
As a justice on the Court, how would you rule given the line of establishment clause
cases decided by the Court? Should the judge be allowed to continue the prayers? Why
or why not? Is there a way that the prayers could be altered so that they would not
violate the establishment clause? How would you deal with the issue of the Ten
Commandments? Should they be taken down, or can they stay as a symbol of respect
for God? Finally, should Vinatonka be granted a new trial? 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.
Cantwell v. Connecticut (1940)
Relevant Case Facts:
Cantwell and his sons, members of the Jehovah's Witnesses sect, were playing records
and distributing pamphlets to citizens walking the streets of New Haven Connecticut.
Two passersby took offense to the anti-Catholic message from Cantwell and the next
day he was arrested by the police for violating a state law prohibiting individuals from
soliciting money for any cause without a license. The law required those who wanted to
solicit to obtain a certificate of approval from the state's secretary of the Public Welfare
Council. The official could grant the permit if it was meant for a religious cause or for
charity. If the official found that neither of these were the purpose of the solicitation, he
could deny the certificate.
Legal Question: Does requiring a person to obtain a certificate in order to solicit
support for their religious views violate the Free Exercise Clause of the First
Amendment?
Sherbert v Verner (1963)
Relevant Case Facts:
Sherbert was a member of the 7th Day Adventist church which held that no work be
performed between sundown on Friday and sundown on Saturday. Her employer
informed her that work on Saturdays would not longer be voluntary " to retain her job
she would need to report to work every Saturday. After missing six consecutive
Saturdays she was fired from her job. Sherbert filed for state unemployment benefits,
but the South Carolina law stated that individuals were not eligible for such benefits if
they failed to accept suitable work, without cause, when it was offered. In short, her
religious preferences were an insufficient reason for her refusal to work. Sherbert's
attorneys argued that the law forced her to repudiate her religious beliefs by professing
to do something in conflict with the tenets of her church.
Legal Question: May states deny unemployment benefits to persons whose religious
beliefs preclude them from working on Saturdays?
Wisconsin v. Yoder (1992)
Relevant Case Facts:
Wisconsin had a compulsory education law, mandating that children attend school until
the age of 16. This law violated the norms of the Amish, as they do not permit their
children to attend school after the 8th grade. Instead they prefer to educate older
children at home. School officials in New Glarus brought a complaint against Amish
families for not sending their older children to school. After being fined $5 by the
county court, the families claimed the compulsory education law violated their 1st and
14th Amendment rights.
Legal Question: Do compulsory education laws that force the Amish to send their
children to school violate the free exercise clause made applicable through the 14th
Amendment?
Employment Division, Department of Human Resources of Oregon v. Smith (1990)
Relevant Case Facts:
Two members of the Native American Church were fired from their jobs as drug
counselors for ingesting peyote during a private religious ceremony. They both applied
for unemployment benefits but were turned down by the state because they had been
fired for "misconduct;" under state law, workers discharged for that reason cannot
obtain benefits. Smith argued the state could not deny them benefits because they had
not been charged with criminal conduct. Further, he argued that the state could not deny
benefits because he was unwilling to give up an activity mandated by religion. The state
argued that the use of peyote was prohibited by a general criminal statute and therefore
was not inhibiting religion.
Legal Question: May a state deny unemployment benefits to those who lost their job
because they violated a general state law, even when the action taken was based on
religious convictions?
City of Boerne v. Flores (1997)
Relevant Case Facts:
In 1991 St. Peter the Apostle Church received permission from the archbishop of San
Antonio to demolish its current structure and to build a new seven hundred seat church,
more than tripling its capacity. City officials rejected the permit request on the grounds
that the church was covered by the city's historical preservation program. Archbishop
Flores sued, claiming that building a new church is a form of free exercise protected by
the Religious Freedom Restoration Act (RFRA).
Legal Question: Does the Religious Freedom Restoration Act impermissibly interfere
with local governmental power to decide how to balance individual rights and
governmental authority?
Everson v. Board of Education (1947)
Relevant Case Facts:
In 1941 New Jersey passed a law authorizing local school boards to provide
transportation for public school children to and from school, and to supply
transportation to school children living in the district who attended nonprofit private
schools. Ewing township decided to use tax dollars to reimburse parents for
transportation costs. Because the township had no high school of its own, the
reimbursement policy covered transportation expenses to parents sending their children
to three neighboring public schools and four private schools " of which were affiliated
with the Roman Catholic Church. The average payment was $40 per student. Everson, a
taxpayer in the district, challenged the reimbursements to parents sending their kids to
religious private schools.
Legal Question: Does reimbursing parents (with tax dollars) for transporting their
children to private religious schools violate the Establishment Clause?
School District of Abington Township v. Schempp (1963)
Relevant Case Facts:
The Schempps were members of a Unitarian church where they regularly attended
services. However, they did not want their children to engage in bible reading at their
public school. Pennsylvania law mandated that "at least ten verses from the Holy Bible
shall be read, without comment, at the opening of each public school on each school
day." The reading of the Lord's Prayer followed the Bible verses at Abington High.
Those students who did not want to participate could leave the room.
Legal Question: Does the reading of the Bible and the Lord's Prayer in a public violate
the Establishment Clause of the 1st Amendment?
Lemon v. Kurtzman, Earley v. DiCenso (1971)
Relevant Case Facts:
Lemon brought suit against the Pennsylvania state superintendent. He wanted the court
to declare unconstitutional a Pennsylvania law that authorized Kurtzman to "purchase"
secular educational services from nonpublic schools. He would use state taxes levied on
cigarettes to reimburse nonpublic schools for expenses incurred for teachers' salaries,
textbooks, and instructional materials. There were restrictions: only secular expenses
could be paid, including secular books and teachers' salaries for the same course taught
in public schools. To receive payments schools had to keep separate records for secular
and nonsecular expenses.
The Rhode Island Salary Supplement Act supplemented salaries of teachers of secular
subjects in private elementary schools up to 15 percent of their current salaries, with the
restriction that payments were only made to those who agreed, in writing, not to teach
religious subjects.
Legal Question: Does the reimbursing of nonpublic schools for teachers and secular
education violate the establishment clause?
Agostini v. Felton (1997) Case has been Cut but you might want to leave brief for
instructors
Relevant Case Facts:
Title I of the Elementary and Secondary Education Act of 1965 funds services for
students at risk of academic failure in both public and private schools. The policy
included sending teachers to private schools with strict instructions to maintain the
secular purposes of the program. It was struck down in Aguilar v. Felton as a violation
of the establishment clause. As such, New York changed its plan by leasing vans.
Teachers then drove them to public areas outside of private schools where they
provided services for eligible students. Between 1986 and 1993 New York spent more
than $100 million on this program. New York City and parents of private school kids
sued, arguing that the program was unreasonably expensive.
Legal Question: Have the Court's establishment clause cases since Aguilar so
undermined it that it is no longer good law?
Zelman v. Simmons-Harris (2002)
Relevant Case Facts:
The Cleveland school district faced a crisis, as studies found it to be one of the worst
performing districts in the country. It failed to meet 18 state standards, only 10 percent
of 9th graders passed proficiency exams, and more than 2/3s dropped out before
graduation. To improve performance it set up a scholarship program where by students
could stay in the Cleveland schools, receive a scholarship to go to a nonreligious private
school, a scholarship for a private school, stay in the district at receive $500 in tutorial
assistance, or attend a public school outside the district. Simmons-Harris sued, charging
that the voucher program violated the First Amendment's Establishment clause because
80 percent of the private schools available were religious, and over 96 percent of
students used their vouchers at private schools.
Legal Question: Does the Cleveland voucher program offend the Establishment Clause
of the Constitution?
Edwards v. Aguillard (1988)
Relevant Case Facts:
Louisiana enacted the Balanced Treatment for Creation-Science and Evolution-Science
in Public School Instruction Act of 1981. The law differed from the law in Epperson
because it did not outlaw the teaching of evolution. Rather, it prohibited schools from
teaching evolution without also teaching creationism.
Legal Question: Does forcing teachers who teach evolution to also teach creationism
violate the Establishment Clause?
Town of Greece v. Galloway (2014)
Relevant Case Facts: Beginning in 1999, the town board of Greece, NY began having
clergy recite a prayer at the beginning of its monthly meetings. The purpose of the
prayer was to give the proceedings a solemn and deliberative tone and to invoke divine
guidance. Any clergy, including atheists could participate without pay and a town
employee contacted all congregations in town for volunteers. Because of the
composition of these congregations, all prayers ended up being from the Christian
perspective. The town made no effort to promote diversity. Galloway attended meetings
and objected to the Christian themed prayers as an affront to diversity. While the city
then invited a Jewish layman and a member of the Baha"i faith, and accepted the offer
of a Wiccan priestess to pray, Galloway sued on the grounds that these sectarian prayers
violated the establishment clause and that future prayers should only be ecumenical and
inclusive.
Legal Question: Has the town of Greece, New York, imposed an impermissible
establishment of religion by opening its monthly board meetings with a prayer.
Breyer dissenting
The town of Greece failed to make reasonable efforts to include prayer givers of
minority faiths, with the result that, although it is a community of several faiths, its
prayer givers were almost exclusively persons of a single faith. Under these
circumstances, I would affirm the judgment of the Court of Appeals that Greece's
prayer practice violated the Establishment Clause.Lee v. Weisman (1992) CUT BRIEF
BUT MIGHT WANT TO KEEP FOR INSTUCTORS
Relevant Case Facts:
Each year Nathan Bishop Middle School held formal graduation ceremonies on the
school grounds. Attendance was voluntary. There had been a practice of inviting local
clergy to give invocations and benedictions at the middle and high school graduation
ceremonies. The clergy who participated were given a pamphlet on giving nonsectarian
prayers. In 1989 a rabbi agreed to participate in the ceremonies, and the Weisman's sued
because they argued such participation violated the 1st Amendment.
Legal Question: Do religious invocations and benedictions during a public school
graduation ceremony violate the Establishment Clause of the 1st Amendment?
Van Orden v. Perry (2005)
Relevant Case Facts: The twenty two acre park surrounding the Texas Capitol contains
17 monuments and 21 historical markers commemorating the "people, ideals, and
events that compose Texas identity." Among the monuments was a 6-foot high
monument of the 10 commandments. Van Orden, who frequently walked through the
park over the course of a number of years, filed suit against Governor Rick Perry asking
for the removal of the 10 commandments monument because its presence on the capitol
grounds violated the establishment clause.
Legal Question: Does the Establishment Clause allow the display of a monument
inscribed with the Ten Commandments on the Texas State Capitol grounds?
565 U.S. (2012)
Relevant Case Fact:
Hosanna-Tabor Evangelical Lutheran Church operates a small school offering a
"Christ-centered education" for children in kindergarten through eighth grade. Its
teachers may "called," which means they were invited to their vocation by God through
a congregation and therefore deemed ministers. Alternatively, the school hires "lay"
teachers which means they are not deemed ministers. Cheryl Perich began at
Hosanna-Tabor as a lay teacher but was soon called. Unfortunately, she took a leave of
absence for narcolepsy, and when she came back was asked to resign. She refused and
threatened to sue, at which but the church terminated her contract. Perich filed a claim
with the EEOC, claiming her dismissal was retaliation for having made the claim.
Ultimately, Perich, in conjunction with the EEOC filed suit against the church for
violating the American with Disabilities Act.
Issue: Do the Establishment and Free Exercise Clauses of the First Amendment bar
employees who have been wrongfully terminated to sue their employers for
reinstatement and damages when the employer is a religious group and the employee is
one of the group's ministers?
Cantwell v. Connecticut (1940)
Relevant Case Facts:
Cantwell and his sons, members of the Jehovah's Witnesses sect, were playing records
and distributing pamphlets to citizens walking the streets of New Haven Connecticut.
Two passersby took offense to the anti-Catholic message from Cantwell and the next
day he was arrested by the police for violating a state law prohibiting individuals from
soliciting money for any cause without a license. The law required those who wanted to
solicit to obtain a certificate of approval from the state's secretary of the Public Welfare
Council. The official could grant the permit if it was meant for a religious cause or for
charity. If the official found that neither of these were the purpose of the solicitation, he
could deny the certificate.
Legal Question: Does requiring a person to obtain a certificate in order to solicit
support for their religious views violate the Free Exercise Clause of the First
Amendment?
Sherbert v Verner (1963)
Relevant Case Facts:
Sherbert was a member of the 7th Day Adventist church which held that no work be
performed between sundown on Friday and sundown on Saturday. Her employer
informed her that work on Saturdays would not longer be voluntary " to retain her job
she would need to report to work every Saturday. After missing six consecutive
Saturdays she was fired from her job. Sherbert filed for state unemployment benefits,
but the South Carolina law stated that individuals were not eligible for such benefits if
they failed to accept suitable work, without cause, when it was offered. In short, her
religious preferences were an insufficient reason for her refusal to work. Sherbert's
attorneys argued that the law forced her to repudiate her religious beliefs by professing
to do something in conflict with the tenets of her church.
Legal Question: May states deny unemployment benefits to persons whose religious
beliefs preclude them from working on Saturdays?
Wisconsin v. Yoder (1992)
Relevant Case Facts:
Wisconsin had a compulsory education law, mandating that children attend school until
the age of 16. This law violated the norms of the Amish, as they do not permit their
children to attend school after the 8th grade. Instead they prefer to educate older
children at home. School officials in New Glarus brought a complaint against Amish
families for not sending their older children to school. After being fined $5 by the
county court, the families claimed the compulsory education law violated their 1st and
14th Amendment rights.
Legal Question: Do compulsory education laws that force the Amish to send their
children to school violate the free exercise clause made applicable through the 14th
Amendment?
Employment Division, Department of Human Resources of Oregon v. Smith (1990)
Relevant Case Facts:
Two members of the Native American Church were fired from their jobs as drug
counselors for ingesting peyote during a private religious ceremony. They both applied
for unemployment benefits but were turned down by the state because they had been
fired for "misconduct;" under state law, workers discharged for that reason cannot
obtain benefits. Smith argued the state could not deny them benefits because they had
not been charged with criminal conduct. Further, he argued that the state could not deny
benefits because he was unwilling to give up an activity mandated by religion. The state
argued that the use of peyote was prohibited by a general criminal statute and therefore
was not inhibiting religion.
Legal Question: May a state deny unemployment benefits to those who lost their job
because they violated a general state law, even when the action taken was based on
religious convictions?
City of Boerne v. Flores (1997)
Relevant Case Facts:
In 1991 St. Peter the Apostle Church received permission from the archbishop of San
Antonio to demolish its current structure and to build a new seven hundred seat church,
more than tripling its capacity. City officials rejected the permit request on the grounds
that the church was covered by the city's historical preservation program. Archbishop
Flores sued, claiming that building a new church is a form of free exercise protected by
the Religious Freedom Restoration Act (RFRA).
Legal Question: Does the Religious Freedom Restoration Act impermissibly interfere
with local governmental power to decide how to balance individual rights and
governmental authority?
Everson v. Board of Education (1947)
Relevant Case Facts:
In 1941 New Jersey passed a law authorizing local school boards to provide
transportation for public school children to and from school, and to supply
transportation to school children living in the district who attended nonprofit private
schools. Ewing township decided to use tax dollars to reimburse parents for
transportation costs. Because the township had no high school of its own, the
reimbursement policy covered transportation expenses to parents sending their children
to three neighboring public schools and four private schools " of which were affiliated
with the Roman Catholic Church. The average payment was $40 per student. Everson, a
taxpayer in the district, challenged the reimbursements to parents sending their kids to
religious private schools.
Legal Question: Does reimbursing parents (with tax dollars) for transporting their
children to private religious schools violate the Establishment Clause?
School District of Abington Township v. Schempp (1963)
Relevant Case Facts:
The Schempps were members of a Unitarian church where they regularly attended
services. However, they did not want their children to engage in bible reading at their
public school. Pennsylvania law mandated that "at least ten verses from the Holy Bible
shall be read, without comment, at the opening of each public school on each school
day." The reading of the Lord's Prayer followed the Bible verses at Abington High.
Those students who did not want to participate could leave the room.
Legal Question: Does the reading of the Bible and the Lord's Prayer in a public violate
the Establishment Clause of the 1st Amendment?
Lemon v. Kurtzman, Earley v. DiCenso (1971)
Relevant Case Facts:
Lemon brought suit against the Pennsylvania state superintendent. He wanted the court
to declare unconstitutional a Pennsylvania law that authorized Kurtzman to "purchase"
secular educational services from nonpublic schools. He would use state taxes levied on
cigarettes to reimburse nonpublic schools for expenses incurred for teachers' salaries,
textbooks, and instructional materials. There were restrictions: only secular expenses
could be paid, including secular books and teachers' salaries for the same course taught
in public schools. To receive payments schools had to keep separate records for secular
and nonsecular expenses.
The Rhode Island Salary Supplement Act supplemented salaries of teachers of secular
subjects in private elementary schools up to 15 percent of their current salaries, with the
restriction that payments were only made to those who agreed, in writing, not to teach
religious subjects.
Legal Question: Does the reimbursing of nonpublic schools for teachers and secular
education violate the establishment clause?
Agostini v. Felton (1997) Case has been Cut but you might want to leave brief for
instructors
Relevant Case Facts:
Title I of the Elementary and Secondary Education Act of 1965 funds services for
students at risk of academic failure in both public and private schools. The policy
included sending teachers to private schools with strict instructions to maintain the
secular purposes of the program. It was struck down in Aguilar v. Felton as a violation
of the establishment clause. As such, New York changed its plan by leasing vans.
Teachers then drove them to public areas outside of private schools where they
provided services for eligible students. Between 1986 and 1993 New York spent more
than $100 million on this program. New York City and parents of private school kids
sued, arguing that the program was unreasonably expensive.
Legal Question: Have the Court's establishment clause cases since Aguilar so
undermined it that it is no longer good law?
Zelman v. Simmons-Harris (2002)
Relevant Case Facts:
The Cleveland school district faced a crisis, as studies found it to be one of the worst
performing districts in the country. It failed to meet 18 state standards, only 10 percent
of 9th graders passed proficiency exams, and more than 2/3s dropped out before
graduation. To improve performance it set up a scholarship program where by students
could stay in the Cleveland schools, receive a scholarship to go to a nonreligious private
school, a scholarship for a private school, stay in the district at receive $500 in tutorial
assistance, or attend a public school outside the district. Simmons-Harris sued, charging
that the voucher program violated the First Amendment's Establishment clause because
80 percent of the private schools available were religious, and over 96 percent of
students used their vouchers at private schools.
Legal Question: Does the Cleveland voucher program offend the Establishment Clause
of the Constitution?
Edwards v. Aguillard (1988)
Relevant Case Facts:
Louisiana enacted the Balanced Treatment for Creation-Science and Evolution-Science
in Public School Instruction Act of 1981. The law differed from the law in Epperson
because it did not outlaw the teaching of evolution. Rather, it prohibited schools from
teaching evolution without also teaching creationism.
Legal Question: Does forcing teachers who teach evolution to also teach creationism
violate the Establishment Clause?
Town of Greece v. Galloway (2014)
Relevant Case Facts: Beginning in 1999, the town board of Greece, NY began having
clergy recite a prayer at the beginning of its monthly meetings. The purpose of the
prayer was to give the proceedings a solemn and deliberative tone and to invoke divine
guidance. Any clergy, including atheists could participate without pay and a town
employee contacted all congregations in town for volunteers. Because of the
composition of these congregations, all prayers ended up being from the Christian
perspective. The town made no effort to promote diversity. Galloway attended meetings
and objected to the Christian themed prayers as an affront to diversity. While the city
then invited a Jewish layman and a member of the Baha"i faith, and accepted the offer
of a Wiccan priestess to pray, Galloway sued on the grounds that these sectarian prayers
violated the establishment clause and that future prayers should only be ecumenical and
inclusive.
Legal Question: Has the town of Greece, New York, imposed an impermissible
establishment of religion by opening its monthly board meetings with a prayer.
Thomas and Scalia concurring in part and in the judgment
We concur in the judgment but write to make clear our understanding of coercion. The
extent coercion is relevant to the Establishment Clause analysis, it is actual legal
coercion that counts--not the "subtle coercive pressures" allegedly felt by respondents
in this case.
Alito and Scalia Concurring
All that the Court does today is to allow a town to follow a practice that we have
previously held is permissible for Congress and state legislatures. In seeming to suggest
otherwise, the principal dissent goes far astray.
Kagan, Ginsburg, Breyer, and Sotomayor, dissenting
The Town of Greece should lose this case. The practice at issue here differs from the
one sustained in Marsh because Greece's town meetings involve participation by
ordinary citizens, and the invocations given--directly to those citizens--were
predominantly sectarian in content. Still more, Greece's Board did nothing to recognize
religious diversity. None of the history Marsh cited--and none the majority details
today--supports calling on citizens to pray, in a manner consonant with only a single
religion's beliefs, at a participatory public proceeding, having both legislative and
adjudicative components
Breyer dissenting
The town of Greece failed to make reasonable efforts to include prayer givers of
minority faiths, with the result that, although it is a community of several faiths, its
prayer givers were almost exclusively persons of a single faith. Under these
circumstances, I would affirm the judgment of the Court of Appeals that Greece's
prayer practice violated the Establishment Clause.Lee v. Weisman (1992) CUT BRIEF
BUT MIGHT WANT TO KEEP FOR INSTUCTORS
Relevant Case Facts:
Each year Nathan Bishop Middle School held formal graduation ceremonies on the
school grounds. Attendance was voluntary. There had been a practice of inviting local
clergy to give invocations and benedictions at the middle and high school graduation
ceremonies. The clergy who participated were given a pamphlet on giving nonsectarian
prayers. In 1989 a rabbi agreed to participate in the ceremonies, and the Weisman's sued
because they argued such participation violated the 1st Amendment.
Legal Question: Do religious invocations and benedictions during a public school
graduation ceremony violate the Establishment Clause of the 1st Amendment?
Before Julie Martin was sent to jail in 1997 for phoning in a false police report, no
lawyer argued on her behalf, tried to cut a deal with the state's attorney, or fought to
have the charges dismissed. Martin, who was 19 years old and making minimum wage
at the local gas station, represented herself. She did so, not by choice, but by the order
of Judge Hangem High in Macon County Alabama. Martin asked for a public defender
and High appointed one. But High told Martin she would have to pay $200, or complete
40 hours of public service at five dollars per hour to cover the amount. When she did
not pay, and told the judge she refused to work, the public defender was taken away and
Martin was told to argue the case herself. Not knowing what to do, she took the deal
offered by the state's attorney: Plead guilty and serve four days in jail. She ended up
serving two days. The Alabama Supreme Court upheld the trial court ruling. In so doing
it cited precedent from counties that charge inmates for residing in their jails, and
argued that the policy will save the state several million dollars per year. The Supreme
Court granted certiorari.
Assume that you are the Supreme Court justice assigned to write the majority opinion
in this case (it can be for or against the state of Alabama). In light of existing precedent,
how would you decide?
Answer:*a. Answers Vary
Powell v. Alabama (1932)
Relevant Case Facts:
Defendants were on a freight train with seven white men and two white women. During
the trip, the two groups of men got a fight and the white men were thrown off of the
train. The two women claimed that he black men had also raped them. Before the train
reached Scottsboro, the defendants were taken off the train by the sheriff and his posse,
and were taken to Scottsboro, the county seat. The defendants were frightened,
illiterate, and away from home. They also had nobody to help them. As per Alabama
law, the judge was supposed to appoint counsel to assist the men because there were
charged with a capital crime. Instead, he assigned all of the town's counsel to help, and
no single attorney took responsibility for the defense. When an attorney did appear on
their behalf the nine trials took place quickly with 8 of the 9 receiving guilty verdicts
and the death sentence
Legal Question: Do indigents have the right to counsel in a capital case?
Gideon v. Wainwright (1963)
Relevant Case Facts:
Gideon was charged with breaking and entering into a poolroom in Florida. Because
Florida did not provide free lawyers to those charged with anything less than a capital
offense, Gideon tried to defend himself but failed. He was convicted and sentenced to
five years in prison.
Legal Question: Should the Court's holding in Betts v. Brady be reconsidered?
Batson v. Kentucky (1986)
Relevant Case Facts:
Batson, a black man, was indicted for burglary and receipt of stolen goods. At voir dire
the prosecution used its peremptory challenges to remove all four black jurors from the
panel, and left Batson with a jury of all white people. The defense moved to discharge
the jury on ground that the prosecutor's actions were violation of the defendant's right to
an impartial jury representing a cross-section of the community under the 6th and 14th
Amendments. The trial judge said that peremptory challenges can be used to strike
anyone you want.
Legal Question: May prosecutors use their peremptory challenges to eliminate
prospective jurors of a specific race?
Sheppard v. Maxwell (1966)
Relevant Case Facts:
Sheppard was accused of killing his wife. Before trial, Sheppard was vilified in the
press for not cooperating with the police. During trial the press published the names of
the jurors, and as a result these jurors received many phone calls from people wanting
to voice their opinions on the case. During jury selection an article was run that was
titled, "But who will speak for Marilyn (Sheppard's wife)." The courtroom was filled
with journalists, and photos of the jurors appeared more than 40 times in Cleveland
newspapers. The jurors were not supervised and were able to make calls during
deliberations and no records were kept as to who they called or about what they
discussed. After five days the jury returned a guilty verdict.
Legal Question: Did the judicial indifference shown to Sheppard in regards to
protecting him from media attention, deny him of the right to a fair trial?
Richmond Newspapers v. Virginia (1980)
Relevant Case Facts:
Defendant was charged with murder, and convicted. The conviction was overturned by
an appellate court because evidence obtained was improperly admitted into evidence.
The defendant was then retried twice, but each ended in a mistrial. By the time the
fourth trial began the case had garnered a good deal of attention. As such, at the request
of the defendant, and to make sure there was no interference with jury selection the
judge cleared the courtroom. With no objection from the prosecution, the judge granted
the request per Virginia law. Reporters covering the case brought suit against the state,
arguing that its law violated the First Amendment.
Legal Question: Is the right of the press and the public to attend criminal trials
guaranteed by the Constitution?
Gregg v. Georgia (1976)
Relevant Case Facts:
In response to Furman v. Georgia, the state of Georgia changed its death penalty law.
The new law called for a bifurcated trial, which had a trial and sentencing phase. The
first stage allowed the jury to find a defendant guilty or not guilty. If found guilty a
second stage began, in which the prosecution could seek the death penalty. Here the
defendant could present mitigating facts and the prosecution could present aggravating
facts. The mitigating factors were not spelled out in the law, but there were 10
aggravating factors. If the prosecution could prove that one aggravating factor existed,
then the jury could give the death penalty. This law was meant to reduce discretion and
therefore to protect the defendant. As a further safeguard, the Georgia Supreme Court
would review all jury determinations of death. The law was applied to Gregg at his
murder trial.
Legal Question: Does the imposition of the death penalty for the crime of murder under
Georgia law violate the 8th and 14th Amendments?
Atkins v. Virginia (2002)
Relevant Case Facts:
Armed with a semiautomatic weapon, Atkins and Jones abducted a man. They robbed
him, made him withdraw cash from an automated teller machine, and then drove him to
an isolated location and killed him. Jones pleaded guilty in exchange for testimony
against Atkins. At trial, both men claimed the other shot the man and the jury believe
that Atkins had done so. He was convicted and sentenced to death. At his second
sentencing hearing, the jury heard testimony that Atkins had an IQ of 59 and that he had
an impaired capacity to understand the criminality of his conduct or to conform his
behavior to the law. They also heard about his 16 prior felony convictions, and they
sentenced him to death.
Legal Question: Are executions of mentally retarded criminals cruel and unusual under
the 8th Amendment?
In the past decade, many states, including Iowa and Nebraska, have restored voting
rights to people with criminal convictions. However, many states have not done so,
including Florida. In a 2012 lawsuit, McAdams v. Bush, plaintiffs sought to overturn a
section of Florida's voting law. The section in question, passed 142 years ago, bans
voting by people with felony convictions. Under this law, more than 600,000 people are
barred from voting and one in 10 African-Americans is barred from voting. McAdams
argues that the law violates the Voting Rights Act and the Constitution. After winning
his case at trial, but losing in the state Supreme Court, McAdams has asked the
Supreme Court to decide the case, and to ultimately rule that the law does violate the
1965 law as well as the Equal Protection clause of the 14th Amendment. If you were a
justice on the Court how would you decide this case? Be sure to make clear references
to existing precedent to justify your decision.
Answer:*a. Answers Vary
South Carolina v. Katzenbach (1966)
Relevant Case Facts: Concerned about persistently low registration rates among black
voters in southern states, Congress passed the Voting Rights Act of 1965. The Act
targeted certain areas of the country for federal supervision of local elections.
Specifically, any state or county that still had (a) a test or device for filtering registrants
as of 1964 and (b) a registration rate of under 40 percent was to be federally monitored.
Under these guidelines, all or part of 11 states, including South Carolina, were singled
out for supervision. These targeted areas now had their voter qualification standards
subject to federal review and approval by the attorney general. South Carolina and five
other southern states sued Attorney General Katzenbach, seeking an injunction against
the enforcement of the Voting Rights Act.
Legal Question: Is the Voting Rights Act of 1965 a constitutional exercise of Congress's
authority under Section 2 of the Fifteenth Amendment?
McCutcheon v. FEC (2014)
Relevant Case Facts: The Federal Election Campaign Act of 1971 (FECA), as amended
by the Bipartisan Campaign Reform Act of 2002 (BCRA), limits campaign
contributions to candidates for federal office and contributions to noncandidate political
organizations in two ways. First, the law's base limits restrict the amount any individual
can give to any particular candidate or organization. Second, the law's aggregate limits
impose a ceiling on the total amount an individual may give to all candidates or
organizations in any two-year election cycle. The aggregate contribution limits,
therefore, have the effect of restricting the number of candidates or organizations a
donor may support.
Legal Question: Does the First Amendment protect the right to give money to political
campaigns?
Reynolds v. Sims (1964)
Relevant Case Facts: Population shifts had caused the Alabama state legislature to
become severely malapportioned. Rural districts with small populations had as much
representation as urban districts with large populations, thus diluting the vote of the
urban voters. For example, rural Lowndes County, population 15,000, and urban
Jefferson County, population 600,000, both got one state senator. Anticipating legal
action in the wake of Baker v. Carr, the state offered two reapportionment plans, but a
district court rejected them. That decision was appealed to the Supreme Court The suit
was one of six state reapportionment challenges heard by the Court at the same time.
Legal Question: Is Alabama's apportionment arrangement a violation of the Equal
Protection Clause of the Fourteenth Amendment?
Miller v. Johnson (1995)
Relevant Case Facts: In an attempt to satisfy the requirement of the Voting Rights Act,
Georgia redistricted in 1992 to create three majority black districts. One of those
districts, the Eleventh, ran diagonally across the state, in order to include both urban
areas and sparsely populated rural areas that were overwhelmingly black. The district
covered almost 7,000 square miles. In both 1992 and 1994, it selected Cynthia
McKinney, a black Democrat, to the House. In 1994, five white voters from the
Eleventh District, including Davida Johnson, sued Democratic governor Zell Miller,
challenging the redistricting on equal protection grounds, claiming it was designed on
the basis of race.
Legal Question: Is Georgia's redistricting plan in violation of the Equal Protection
Clause of the Fourteenth Amendment?
The Supreme Court has made clear that the standards for determining libel differ
between public and private people. Explain the rationale for this difference. Be sure to
use support from the cases you read in the chapter. Next, explain how the Court's
interpretation of protection from libel has changed over time. Finally, why do you think
the Court protects public figures and officials differently than it protects private
citizens. Provide case examples to support your argument.
Answer:
*a. Answers Vary
Gertz v. Welch (1974)
Relevant Case Facts:
Gertz sued the John Birch Society for a story it published in American Opinion that
suggested he was a communist. He argued that the story was false and bad for his
career.
Legal Question: Is a newspaper that publishes defamatory falsehoods about an
individual who is neither a public official nor a public figure liable for injury inflicted
by those statements?
Hustler Magazine v. Falwell (1988)
Relevant Case Facts:
The March 1984 issue of Hustler printed a parody of an advertisement for Campari
Liqueur. While the Campari ads focused on the first time people drank the Liqueur, the
parody portrayed Jerry Falwell as drunk, immoral, and hypocritical. At the bottom of
the ad the following words appeared in small print: "Ad parody " not to be taken
seriously." Falwell sued the magazine and its published for libel, invasion of privacy,
and intentional infliction of emotional distress. The jury found in favor of the magazine
of the libel charge, but awarded Falwell $150,000 on the claim that the published
intentionally inflicted emotional distress.
Legal Question: May a person bring a lawsuit for libel and infliction of emotional
distress for a parody that did not purport to be factually accurate?
Roth v. U.S. (1957)
Relevant Case Facts:
The U.S. obtained a 26 count indictment against Roth who sold materials, in violation
of a federal obscenity law, that were allegedly obscene, indecent, and filthy. At the trial
the judge instructed the jury to determine the impact of material based on the average
person in the community. Roth was found guilty on four counts and he was punished to
five years in prison and a $5000 fine.
Legal Question: Does the federal obscenity statute violate the First Amendment?
Miller v. California (1973)
Relevant Case Facts:
Miller conducted a mass mail campaign of pamphlets to drum up sales for his books;
the pamphlets contained some adult material. Because it was a mass mailing, some of
the pamphlets ended up in the hands of people who did want them. Miller was arrested
when a manager of a restaurant and his mother opened one of the envelopes and
complained to the police.
Legal Question: Does a person have the right to send adult material through the mail?
New York v. Ferber (1982)
Relevant Case Facts:
New York and 19 other states prohibited the dissemination of material depicting
children (under 16) engaged in sexual conduct regardless of whether the material is
obscene. Ferber was charged with selling two movies to undercover police officers
which were devoted almost exclusively to depicting two young boys masturbating. He
argued the law works serious and substantial violation of the First Amendment by
measures and means unnecessary to accomplish its legislative objectives.
Legal Question: May a state regulate and prohibit material deemed as child
pornography?
564 U.S. ___ (2011)
Relevant Case Facts:
In 2005 the California Assembly passed bill 1179, prohibiting the sale of violent video
games to minors and requiring such games to be appropriately labeled. Borrowing
directly from obscenity precedents, the statute defined violent video games as those
games in which "the range of options available to a player includes killing, maiming,
dismembering, or sexually assaulting an image of a human being, if those acts are
depicted in a manner that a reasonable person, considering the game as a whole, would
find appeals to a deviant or morbid interest of minors, that is patently offensive to
prevailing standards in the community as to what is suitable for minors, and that causes
the game, as a whole to lack serious literary, artistic, political, or scientific value for
minors." The Entertainment Merchants Association filed suit claiming the bill violated
the freedom of speech clause of the first amendment.
Issue: May a state, consistent with the First Amendment, prohibit the sale of violent
video games to minors and to require that such video games be appropriately labeled?
Alito and Roberts Concurring in Judgement: The Supreme Court has made clear that
the standards for determining libel differ between public and private people. Explain the
rationale for this difference. Be sure to use support from the cases you read in the
chapter. Next, explain how the Court's interpretation of protection from libel has
changed over time. Finally, why do you think the Court protects public figures and
officials differently than it protects private citizens. Provide case examples to support
your argument.
Answer:*a. Answers Vary
New York Times v. Sullivan (1964)
Relevant Case Facts:
The March 29, 1960 edition of the New York Times ran an advertisement to publicize
the civil rights movement and to raise money for the cause. Sullivan, an elected
commissioner in Montgomery, Alabama took offense to the ad because it suggested the
police participated in some wrongdoing. Sullivan sued for libel arguing that the ad
contained falsehoods " which it did. At trial the judge charged the jury with instructions
that the ad was "libelous per se," meaning that because it contained lies, it was
unprotected speech. He then said that if the jury found the statements pertained to
Sullivan the Times could be held liable.
Legal Question: Does the rule of liability, as applied to an action brought by a public
official against critics of his official conduct, abridge the freedom of speech and of the
press that is guaranteed by the First and Fourteenth Amendments?
Gertz v. Welch (1974)
Relevant Case Facts:
Gertz sued the John Birch Society for a story it published in American Opinion that
suggested he was a communist. He argued that the story was false and bad for his
career.
Legal Question: Is a newspaper that publishes defamatory falsehoods about an
individual who is neither a public official nor a public figure liable for injury inflicted
by those statements?
Hustler Magazine v. Falwell (1988)
Relevant Case Facts:
The March 1984 issue of Hustler printed a parody of an advertisement for Campari
Liqueur. While the Campari ads focused on the first time people drank the Liqueur, the
parody portrayed Jerry Falwell as drunk, immoral, and hypocritical. At the bottom of
the ad the following words appeared in small print: "Ad parody " not to be taken
seriously." Falwell sued the magazine and its published for libel, invasion of privacy,
and intentional infliction of emotional distress. The jury found in favor of the magazine
of the libel charge, but awarded Falwell $150,000 on the claim that the published
intentionally inflicted emotional distress.
Legal Question: May a person bring a lawsuit for libel and infliction of emotional
distress for a parody that did not purport to be factually accurate?
Roth v. U.S. (1957)
Relevant Case Facts:
The U.S. obtained a 26 count indictment against Roth who sold materials, in violation
of a federal obscenity law, that were allegedly obscene, indecent, and filthy. At the trial
the judge instructed the jury to determine the impact of material based on the average
person in the community. Roth was found guilty on four counts and he was punished to
five years in prison and a $5000 fine.
Legal Question: Does the federal obscenity statute violate the First Amendment?
Miller v. California (1973)
Relevant Case Facts:
Miller conducted a mass mail campaign of pamphlets to drum up sales for his books;
the pamphlets contained some adult material. Because it was a mass mailing, some of
the pamphlets ended up in the hands of people who did want them. Miller was arrested
when a manager of a restaurant and his mother opened one of the envelopes and
complained to the police.
Legal Question: Does a person have the right to send adult material through the mail?
New York v. Ferber (1982)
Relevant Case Facts:
New York and 19 other states prohibited the dissemination of material depicting
children (under 16) engaged in sexual conduct regardless of whether the material is
obscene. Ferber was charged with selling two movies to undercover police officers
which were devoted almost exclusively to depicting two young boys masturbating. He
argued the law works serious and substantial violation of the First Amendment by
measures and means unnecessary to accomplish its legislative objectives.
Legal Question: May a state regulate and prohibit material deemed as child
pornography?
CASE CUT DELETE IF YOU LIKE
Ashcroft v. Free Speech Coalition (2002)
Relevant Case Facts:
The Child Pornography Prevention Act (CPPA) expanded federal prohibition on child
pornography to include not only pornographic images made using actual children, but
also "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..." This ban included images called "virtual child
pornography" that appear to depict minors but were produced by means other than
using real children.
Legal Question: May the government prohibit the production and distribution of
virtual children engaged in sexual activities?
United States vs. Williams (2008)
Relevant Case Facts:
In response to Ashcroft vs. Free Speech Coalition (2002), which held that child
pornography could only be prohibited if it featured actual children, Congress passed the
Prosecutorial Remedies and Other Tools to End the Exploitation of Children Act of
2003 (PROTECT). Attempting to rectify the flaws in the law stuck down by Free
Speech Coalition, Congress limited the commission of the crime to "pandering" and
soliciting child pornography.
In April 2004, Michael Williams used a sexually explicit screen name to log onto the
same chat room as a Secret Service agent. Williams posted a message that read: "Dad of
toddler has "good" pics of her an [sic] me for swap of your toddler pics, or live cam"
and a hyperlink that led to pictures of actual children (between ages five and fifteen)
engaging in sexual conduct. After obtaining a search warrant, police seized William's
hard drive, which contained similar images of real children engaged in sexually explicit
conduct. After pleading guilty to pandering and possessing child pornography, Williams
challenged the constitutionality of the pandering conviction. The district court rejected
his challenge but the Eleventh Circuit reversed the pandering conviction, finding that
the statutes was unconstitutionally overbroad and impermissibly vague under the due
process clause.
Legal Question: Is the "pandering" statute of the 2003 PROTECT act unconstitutionally
vague and overbroad under the due process clause of the Fifth Amendment or
unconstitutionally overbroad ?
Griswold v. Connecticut (1965)
Relevant Case Facts:
The Executive director of Planned Parenthood was arrested for dispensing
contraceptives to a married couple. Her attorney argued against the state law based on a
substantive due process approach to the 14th Amendment, arguing that the law infringed
on individual liberty. He also argued that the right to privacy argument can be found in
the First, Third, Fourth, Ninth, and Fourteenth Amendments.
Legal Question: Does the Due Process Clause of the 14th Amendment guarantee a right
to privacy?
Roe v. Wade (1973):
Relevant Case Facts:
Norma McCorvey was raped and became pregnant. Her doctor refused to give her an
abortion, citing an 1857 Texas law that made it a crime to procure an abortion unless it
was necessary to save the life of a mother.
Legal Question: Is abortion a fundamental right under the privacy standard set out in
Griswold v. Connecticut?
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
Relevant Case Facts:
The state of Pennsylvania amended its abortion law in the following ways: It instituted
an informed consent/twenty four hour waiting period; doctors must provide a list of
adoption agencies to the woman seeking an abortion; spouses must be notified of the
woman's decision; women under 18 must obtain the informed consent of one parent
prior to obtaining an abortion; and all abortion facilities must file reports about the
procedure.
Legal Question: Do the new provisions of the Pennsylvania abortion statute violate the
constitutional right to privacy?
Court (White): In early 2006 the South Dakota legislature passed a law which affected
the rights of doctors to perform abortions within the state. Sections 1-4 of the law read
as follows:
Section 1. The Legislature accepts and concurs with the conclusion of the South Dakota
Task Force to Study Abortion, based upon written materials, scientific studies, and
testimony of witnesses presented to the task force, that life begins at the time of
conception, a conclusion confirmed by scientific advances since the 1973 decision of
Roe v. Wade, including the fact that each human being is totally unique immediately at
fertilization. Moreover, the Legislature finds, based upon the conclusions of the South
Dakota Task Force to Study Abortion, and in recognition of the technological advances
and medical experience and body of knowledge about abortions produced and made
available since the 1973 decision of Roe v. Wade, that to fully protect the rights,
interests, and health of the pregnant mother, the rights, interest, and life of her unborn
child, and the mother's fundamental natural intrinsic right to a relationship with her
child, abortions in South Dakota should be prohibited. Moreover, the Legislature finds
that the guarantee of due process of law under the Constitution of South Dakota applies
equally to born and unborn human beings, and that under the Constitution of South
Dakota, a pregnant mother and her unborn child, each possess a natural and inalienable
right to life.
Section 2. No person may knowingly administer to, prescribe for, or procure for, or sell
to any pregnant woman any medicine, drug, or other substance with the specific intent
of causing or abetting the termination of the life of an unborn human being. No person
may knowingly use or employ any instrument or procedure upon a pregnant woman
with the specific intent of causing or abetting the termination of the life of an unborn
human being.
Any violation of this section is a Class 5 felony.
Section 3. Nothing in section 2 of this Act may be construed to prohibit the sale, use,
prescription, or administration of a contraceptive measure, drug or chemical, if it is
administered prior to the time when a pregnancy could be determined through
conventional medical testing and if the contraceptive measure is sold, used, prescribed,
or administered in accordance with manufacturer instructions.
Section 4. No licensed physician who performs a medical procedure designed or
intended to prevent the death of a pregnant mother is guilty of violating section 2 of this
Act. However, the physician shall make reasonable medical efforts under the
circumstances to preserve both the life of the mother and the life of her unborn child in
a manner consistent with conventional medical practice.
Medical treatment provided to the mother by a licensed physician which results in the
accidental or unintentional injury or death to the unborn child is not a violation of this
statute.
Nothing in this Act may be construed to subject the pregnant mother upon whom any
abortion is performed or attempted to any criminal conviction and penalty.
A group of doctors and women have sued the state, claiming that this law violates the
fundamental right to obtain an abortion without government regulation (at least in the
first trimester) set out in Roe v. Wade (1973). If you were a justice on the U.S. Supreme
Court and this case came before you, how would you rule?
Answer:
*a. Answers Vary
Griswold v. Connecticut (1965)
Relevant Case Facts:
The Executive director of Planned Parenthood was arrested for dispensing
contraceptives to a married couple. Her attorney argued against the state law based on a
substantive due process approach to the 14th Amendment, arguing that the law infringed
on individual liberty. He also argued that the right to privacy argument can be found in
the First, Third, Fourth, Ninth, and Fourteenth Amendments.
Legal Question: Does the Due Process Clause of the 14th Amendment guarantee a right
to privacy?
Roe v. Wade (1973):
Relevant Case Facts:
Norma McCorvey was raped and became pregnant. Her doctor refused to give her an
abortion, citing an 1857 Texas law that made it a crime to procure an abortion unless it
was necessary to save the life of a mother.
Legal Question: Is abortion a fundamental right under the privacy standard set out in
Griswold v. Connecticut?
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?
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?
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?
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?
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?
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?
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?
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?
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?
Cohen's expression was mainly conduct and little speech. It is therefore well within the
standard of Chaplinsky v. New Hampshire.
Relevant Case Facts:
Colorado passed a law placing restrictions on protestors within a radius of 100 feet of
the entrance to any health care facility. Within this zone the law prohibited anyone from
approaching, within eight feet of another person, without that person's consent for the
purpose of distributing literature, displaying a sign, or engaging in oral protest,
education, or counseling. Violation of the law was punishable with a $50-$750 fine and
up to six months' imprisonment. Hill claims the law violates the First and Fourteenth
Amendments on their face, and prohibits constitutionally protected speech in a public
forum.
Legal Question: Does a law which prohibits someone from approaching another person
for the purposes of protest, education, or counseling violate the right to free speech in
the 1st and 14th Amendments?
The Second Amendment has been incorporated by the 14th Amendment.
a. True
b. False
As a Justice on the Supreme Court you have been assigned to write the majority opinion
in the following case. How would you resolve it? What precedent would you cite to
support your opinion? You should identify and "resolve" the complex legal issues
present. The question brings up some factual situations and legal questions not directly
addressed in the cases we have discussed. However, those cases should provide some
guidance to you in deciding this case. This is not to suggest that there are "right"
answers to these questions, but a strong argument will be well organized, logically
argued, and supported through reference to Court decisions.
On the night of October 4, 1995 Brett Freeman was found stumbling along the side of
the road in the city of Sleepy Eye Minnesota. A police officer, Paul Tagliabue, saw
Freeman, stopped, and offered to drive him home. Later, Tagliabue was quoted as
saying he believed that "Freeman was drunk and just needed to get home to sleep off
his binge." Freeman accepted the ride, and after driving for some time Tagliabue found
the proper house. He had to assist Freeman out of the car and into the living room. As
they were walking into the house the officer asked Freeman where Freeman had been
drinking that night. To this Freeman replied, "At the Pig's Eye Bar on 3rd Street. I took
my girlfriend's car there, but could not find my keys when I left. That is why I am
walking home."
Upon entering the house, specifically the living room, Tagliabue spotted a white
residue, a pot pipe, and other drug paraphernalia lying on and around the coffee table.
As a result, he asked Freeman if the paraphernalia were his. In response, Freeman said
"Yeah, some of it." During the entire conversation Tagliabue noted that Freeman slurred
all of his words, could not stand without support, and seemed to be nodding off.
However, he did say that he was able to answer both of the questions with little trouble.
After Freeman fell asleep on the couch Tagliabue called a backup squad, and sat down
to wait for them to arrive. Based on the drug paraphernalia in the living room,
Tagliabue and the backup squad began to search the house.
By this time Freeman's roommates, Raymont Sapp and Robert Alstott arrived home.
They were incensed that the police were searching the house, and immediately called
their attorney. In the time that it took for the lawyer to arrive, the police searched the
living room where Freeman was sleeping, his bedroom, the kitchen, the basement, and
the attic. In the course of the search the police found several marijuana plants under a
hot light in Freeman's bedroom, and a load of marijuana leaves drying in the basement.
Additionally, they found several other unidentified illicit drugs in the refrigerator, about
$10,000 in a cookie jar, and three handguns taped under the kitchen table. The officers
also searched the entire backyard. Beside the garbage cans, which were sitting about 75
yards from the house, the investigating officer found empty bags lined with a white
powdery residue.
All three roommates were placed under arrest, and Sapp and Alstott's bedrooms were
searched. These searches turned up more marijuana plants growing in each bedroom.
Subsequently all three roommates were taken to the police station. Freeman was put in
a holding cell to sleep off his night of drinking, while Sapp and Alstott were booked.
During the booking each was told that they would have to submit to urine and blood
tests administered by a local doctor. Additionally, the police had the doctor draw a vial
of blood from Freeman while he slept in his cell.
At the same time that the search of the house was going on, two other police officers
were dispatched to "The Pig's Eye" to look for the car Freeman drove that night. They
found the car unlocked, with the keys in the ignition. A thorough search of the car
turned up more marijuana, another handgun, five boxes of ammunition for the gun, and
another $10,000. The car was impounded and taken directly to the police station.
Using the evidence obtained in and behind the house, as well as the drug tests
performed at the police station, Freeman, Sapp, and Alstott were arrested for drug
possession with intent to sell, for illegally using illicit drugs, and for possessing
handguns without a permit. Freeman and his girlfriend, Jennifer Ryskoski, were
separately charged with possession of drugs and illegally possessing an unregistered
concealed handgun in the car.
Ryskoski was acquitted because the prosecution could not prove that she knew the
drugs or gun were in her car on the night in question. However, Freeman, Sapp, and
Alstott were subsequently convicted of drug possession with the intent to sell, of using
illegal substances, and of possessing handguns without proper permits.
As a Supreme Court justice, how do you resolve the intricate legal questions in this case
revolving around the 4th amendment? Was the officer justified in calling for backup and
then searching the house without obtaining a warrant? Should the police have been able
to search the house while Freeman passed out based on the paraphernalia that was in the
living room? Should the officers have searched Sapp and Alstott's rooms after they were
arrested? Was the backyard search justified? Should the police have been able to go and
search the car that Freeman drove that night based on what they found at the house?
Were the blood and urine tests in this case legitimate, or did they violate the suspect's
4th Amendment rights? What, if any, of the evidence would you admit at trial? Should
any of it be excluded, or is the evidence admissible?Justify your opinion.
Rumsfeld v. Fair demonstrates that:
A. That the Court usually defers to the Military
B. That Congress may place conditions on the appropriation of federal funds
C. That Law schools must allow military recruiters onto their campuses
D. All of the above
Which statement best describes U.S. public opinion on the issue of the death penalty?
A. The public overwhelmingly supports the death penalty in all cases.
B. The public overwhelmingly disapproves of the death penalty in all cases.
C. The public supports the death penalty in some cases, but tends to oppose the death
penalty when the defendant is mentally ill or is a juvenile.
D. The public is evenly divided over whether the death penalty should exist in any case.
What standard has the Supreme Court applied to legislative redistricting based on race?
A. Strict scrutiny
B. Heightened scrutiny
C. Rational basis test
D. Totality-of-circumstances
How do you know if a lawsuit is collusive?
A. The litigants want the same outcome.
B. The case evinces adversity between the two parties.
C. The case is simply testing the law.
D. A and C
1/Differences in the character of broadcast media justify differences in the 1st
Amendment standards applied to them.
2/Where there are substantially more individuals who want to broadcast than there are
frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to
broadcast comparable to the right of every individual to speak, write, or publish. No one
has a First Amendment right to a license or to monopolize a radio frequency; to deny a
station license because "the public interest" requires it "is not a denial of free speech."
3/It is the right of views and listeners, not the right of broadcasters, which is paramount.
It is the purpose of the 1st Amendment to preserve an uninhibited marketplace of ideas
which in truth will ultimately prevail, rather than to countenance monopolization of the
market, whether it be by the government itself or a private licensee.
To condition the granting of renewal of licenses on a willingness to present
representative community views on controversial issues is consistent with the ends and
purposes of those constitutional provisions forbidding the abridgement of freedom of
speech and freedom of press.
Branzburg v. Hayes (1972)
Relevant Case Facts:
Branzburg wrote two articles about individuals in the drug trade. The first focused on
two individuals who synthesized hashish from marijuana. The second contained
interviews with drug users in Frankfort Kentucky. Branzburg was subpoenaed by a
grand jury to answer questions concerning the identity of the individuals. He refused to
do so.
Legal Question: Does requiring reporters to appear and testify before grand juries
violate their freedom of speech and press guaranteed by the 1st Amendment?
Give three ways in which the separation of powers constrains the Supreme Court.
Answer:*a. varies
Substantive due process draws on what key word in the 14th Amendment?
A. Liberty
B. Freedom
C. Substance
D. Procedural
Why did the Court rule against Marbury in Marbury v. Madison:
A. Marbury brought his case to the Court under the guise of the wrong jurisdiction.
B. Marbury never deserved his judicial commission in the first place
C. Marbury's case was moot.
D. None of the above.
Marbury v. Madison:
A. Fixed Chief Justice Marshall's reputation as one of the greatest justices in history.
B. Created the power of judicial review.
C. Determined that Marbury should not have his judicial commission.
D. All of the above.
What political body is in charge of apportionment (devising legislative districts)?
A. The U.S. Supreme Court
B. State supreme courts
C. State legislatures
D. The U.S. House of Representatives
The Antiterrorism and Effective Death Penalty Act:
A. Was upheld in Felker v. Turpin
B. Was ruled unconstitutional in Felker v. Turpin
Which of the following statements about jury selection is not true?
A. Attorneys have an unlimited number of "challenges for cause."
B. Judges may conduct initial interviews excusing certain classes of people, including
felons and the mentally ill.
C. Peremptory challenges require attorneys to state a reason for dismissing a juror.
D. All of the above.
The Preferred Freedoms Doctrine States that:
A. Laws in conflict with the Bill of Rights are not presumed constitutional
B. The judiciary has a special responsibility to protect freedom of speech
C. The judiciary has a special responsibility to protect minority interests
D. All of the above
E. None of the above
What Court is known for expanding the rights of the criminally accused?
A. The Burger Court
B. The Warren Court
C. The Rehnquist Court
D. The Hughes Court
In Twining v. New Jersey the Court ruled that rights protected by the Due Process are:
A. Only those found in the First Amendment
B. All rights found in the Bill of Rights
C. Fundamental and inalienable rights
D. Only those protected by the 14th Amendment
Why did Congress begin to enact federal weapons bans in the 1920s?
a. Increases in organized crime.
b. The 1929 Valentine's Day massacre.
c. Increases in violence during the 1920s.
d. All of the above.
Compare the development of the exclusionary rule with the development of the right to
counsel.
School sponsored prayer before football games was ruled unconstitutional in:
A. Edwards v Aguillard
B. School District of Abington Township v. Schempp
C. Lee v. Weisman
D. Santa Fe Independent School District v. Doe
In Tinker v. Des Moines the Court held that:
A. Students shed their constitutional right to free speech at school
B. Students do not shed their constitutional right to free speech at school
C. Teachers shed their constitutional right to free speech at school
D. Teachers do not shed their constitutional right to free speech at school
E. A & C
F. B & D
The National Firearms Act of 1934
a. Was a direct regulation of weapons.
*b. Was an indirect regulation of weapons.
c. Banned all gun use by private citizens.
Describe the structure of the U.S. judicial system.
Answer:*a. varies
Reno v. ACLU (1997)
Relevant Case Facts:
Two provisions of the Communications Decency Act (CDA) seek to protect minors
from harmful material on the Internet. First, it criminalizes the "knowing" transmission
of "obscene or indecent" messages to any recipient under 18 years of age. Second, the
law prohibits the "knowing," sending, or displaying to a person under 18 of any
message, "that, in context, depicts or describes, in terms patently offensive as measured
by contemporary community standards, sexual or excretory activities or organs."
Affirmative defenses are provided for those who take "good faith, . . . effective . . .
actions" to restrict access by minors to the prohibited communications and those who
restrict such access by requiring certain designated forms of age proof, such as a
verified credit card or an adult identification number.
Legal Question: Do the provisions of the CDA violate the First Amendment because
they are unconstitutional vague?
Which statement best describes the Supreme Court's decision in Powell v. Alabama
(The Scottsboro Boys Case)?
A. The Sixth Amendment guarantees the right to counsel for every defendant.
B. Unusual circumstances (i.e. capital offenses) necessitate counsel to ensure fairness
for the defendants.
C. The Sixth Amendment does not guarantee defendants the right to counsel.
D. The defendants in Powell v. Alabama received an adequate defense given the
circumstances of the crime.
Describe how the process of apportionment works.
The Court ruled in favor of for Rosenberger because
A. Rosenberger had a free speech right to publish.
B. The University's ban on Rosenberger amounted to viewpoint discrimination
C. The Lemon Test forced them to do so
D. None of the above
In Cox Broadcasting why did the Court protect the right of the press to publish the
name of a rape victim?
A. The information was already in the public record.
B. The information was accurate.
C. The information was obtained legally.
D. All of the above.
In Vernonia School District 47J v. Acton, the Supreme Court ruled that random drug
testing of student athletes:
A. Violated the Constitution because minors are a protected group.
B. Violated the Constitution because athletes were treated differently than non-athletes.
C. Did not violate the Constitution because all forms of random drug testing are
Constitutional
D. Did not violate the Constitution because students, especially student athletes, have
reduced privacy expectations.
The most recent of the Bill of Rights to be incorporated is:
A. The 3rd Amendment
B. The 9th Amendment
C. The 2nd Amendment
D. None of the above
Brown v. Entertainment Merchants Association
564 U.S. ___ (2011)
Relevant Case Facts:
In 2005 the California Assembly passed bill 1179, prohibiting the sale of violent video
games to minors and requiring such games to be appropriately labeled. Borrowing
directly from obscenity precedents, the statute defined violent video games as those
games in which "the range of options available to a player includes killing, maiming,
dismembering, or sexually assaulting an image of a human being, if those acts are
depicted in a manner that a reasonable person, considering the game as a whole, would
find appeals to a deviant or morbid interest of minors, that is patently offensive to
prevailing standards in the community as to what is suitable for minors, and that causes
the game, as a whole to lack serious literary, artistic, political, or scientific value for
minors." The Entertainment Merchants Association filed suit claiming the bill violated
the freedom of speech clause of the first amendment.
Issue: May a state, consistent with the First Amendment, prohibit the sale of violent
video games to minors and to require that such video games be appropriately labeled?
Why are voting and representation so critical to democracy?
How did the separation of powers come into play as the Court decided City of Boerne?
United States vs. Williams (2008)
Relevant Case Facts:
In response to Ashcroft vs. Free Speech Coalition (2002), which held that child
pornography could only be prohibited if it featured actual children, Congress passed the
Prosecutorial Remedies and Other Tools to End the Exploitation of Children Act of
2003 (PROTECT). Attempting to rectify the flaws in the law stuck down by Free
Speech Coalition, Congress limited the commission of the crime to "pandering" and
soliciting child pornography.
In April 2004, Michael Williams used a sexually explicit screen name to log onto the
same chat room as a Secret Service agent. Williams posted a message that read: "Dad of
toddler has "good" pics of her an [sic] me for swap of your toddler pics, or live cam"
and a hyperlink that led to pictures of actual children (between ages five and fifteen)
engaging in sexual conduct. After obtaining a search warrant, police seized William's
hard drive, which contained similar images of real children engaged in sexually explicit
conduct. After pleading guilty to pandering and possessing child pornography, Williams
challenged the constitutionality of the pandering conviction. The district court rejected
his challenge but the Eleventh Circuit reversed the pandering conviction, finding that
the statutes was unconstitutionally overbroad and impermissibly vague under the due
process clause.
Legal Question: Is the "pandering" statute of the 2003 PROTECT act unconstitutionally
vague and overbroad under the due process clause of the Fifth Amendment or
unconstitutionally overbroad ?
Compare and contrast the "strict scrutiny" approach to restrictive abortion laws outlined
in Blackmun's opinion in Roe and the "undue burden" approach O"Connor adopted in
later cases. Which do you think is a more appropriate lens through which to decide
abortion cases?
The Supreme Court has recognized for some time that searches of individuals
conducted incident to lawful arrest are permissible without a warrant (Weeks v. U.S. -
1914). However, the Court has often interpreted Weeks quite broadly, allowing the
search of homes, automobiles, etc. Discuss the Court's pattern regarding allowable
searches. Specifically, under what conditions are searches of individuals allowable
without a warrant? How far does that right to search extend, and under what
circumstances? How have the Court's decisions regarding the right to search
automobiles, homes, and property changed over time?
Do you feel that the evolution of the Court's search and seizure policy has been
consistent?If not, identify instances where the Court has diverged significantly from its
previous decisions and offer explanations for such changes.
Why did it take so long for the Court to hear another apportionment case after
Colegrove v. Green?
Why did the framers include so many guarantees to ensure the government would not
abuse defendants during prosecution?
How did Justice Brandeis' dissent in Olmstead promote the right to privacy?
The Right to Privacy does not explicitly exist in the Constitution. However, this has not
stopped a majority of the justices on the Court to conclude that a fundamental Right of
Privacy does exist. Trace the early foundations on which some members of the Court
were willing to protect an individual from government intrusion into their personal life.
How was this transformed in Harlan's decision in Poe v. Ullman? Next, discuss the
different justice's views on the Right to Privacy found in Griswold. Explain Justice
Douglas' discussion of penumbras and why they are so important to his justification for
a Right to Privacy. How did the other justices defend a right to Privacy? What
justification did the dissenters in the case offer against a right to privacy? What has
been the interpretation of privacy issues since Griswold? To what areas has the Court
been willing to extend the privacy right, and what have been its justifications?
What is Voir Dire and why is it important to the jury process?
How did Congress rectify the potentially confusing decision in Oregon v. Mitchell?
How did Miller alter the Roth test? Did it make it easier or more difficult for the state to
prove materials are obscene?
How did Hobby Lobby change how the RFRA is invoked to protect religious liberty?
Contrast the different readings of Stanley v. Georgia in the majority and dissenting
opinions of Bowers v. Hardwick. Which do you think makes the better argument? Why?
How has the Canadian Supreme Court dealt with obscenity in comparison to the U.S.
Supreme Court?
