Schenck v. U.S. (1919) - CORRECT ANSWER-*threats to national security*
FACTS: During World War I, Schenck mailed circulars to draftees. The circulars
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suggested that the draft was a monstrous wrong motivated by the capitalist system. The
circulars urged "Do not submit to intimidation" but advised only peaceful action such as
petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to
violate the Espionage Act by attempting to cause insubordination in the military and to
obstruct recruitment.
ISSUES: Are Schenck's actions (words, expression) protected by the free speech
clause of the First Amendment?
DECISION: 9 votes for United States, 0 vote(s) against
PRECEDENT: Holmes, speaking for a unanimous Court, concluded that Schenck is not
protected in this situation. The character of every act depends on the circumstances.
"The question in every case is whether the words used are used in such circumstances
and are of such a nature as to create a clear and present danger that they will bring
about the substantive evils that Congress has a right to prevent." During wartime,
utterances tolerable in peacetime can be punished.
Brandenburg v. Ohio (1969) - CORRECT ANSWER-*prior restraint v. 1st Amendment*
FACTS: Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and
was later convicted under an Ohio criminal syndicalism law. The law made illegal
advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of
accomplishing industrial or political reform," as well as assembling "with any society,
group, or assemblage of persons formed to teach or advocate the doctrines of criminal
syndicalism."
ISSUES: Did Ohio's criminal syndicalism law, prohibiting public speech that advocates
various illegal activities, violate Brandenburg's right to free speech as protected by the
First and Fourteenth Amendments?
DECISION: 8 votes for Brandenburg, 0 vote(s) against
PRECEDENT: Amendment 1: Speech, Press, and Assembly
The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to
free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech
can be prohibited if it is "directed at inciting or producing imminent lawless action" and
(2) it is "likely to incite or produce such action." The criminal syndicalism act made
illegal the advocacy and teaching of doctrines while ignoring whether or not that
advocacy and teaching would actually incite imminent lawless action. The failure to
make this distinction rendered the law overly broad and in violation of the Constitution.
Gitlow v. New York (1925) - CORRECT ANSWER-FACTS: Gitlow, a socialist, was
arrested for distributing copies of a "left-wing manifesto" that called for the
establishment of socialism through strikes and class action of any form. Gitlow was
convicted under a state criminal anarchy law, which punished advocating the overthrow
of the government by force. At his trial, Gitlow argued that since there was no resulting
action flowing from the manifesto's publication, the statute penalized utterences without
propensity to incitement of concrete action. The New York courts had decided that
anyone who advocated the doctrine of violent revolution violated the law.
ISSUES: Is the New York law punishing advocacy to overthrow the government by force
an unconstitutional violation of the free speech clause of the First Amendment?
Threshold issue: Does the First Amendment apply to the states?
DECISION: Yes, by virtue of the liberty protected by due process that no state shall
deny (14th Amendment). On the merits, a state may forbid both speech and publication
if they have a tendency to result in action dangerous to public security, even though
such utterances create no clear and present danger. The rationale of the majority has
sometimes been called the "dangerous tendency" test. The legislature may decide that
an entire class of speech is so dangerous that it should be prohibited. Those legislative
decisions will be upheld if not unreasonable, and the defendant will be punished even if
her speech created no danger at all.
Lovell v. Griffin (1938) - CORRECT ANSWER-• involves an ordinance from a city in
Georgia (Griffin)
• case where it tests whether a community can protect itself against unpopular opinions
• Griffin City Council responded to citizens complaints against Jehovah's witnesses
• city made it illegal to distribute pamphlets w/o getting permission from city manager
• city manager could grant/deny/revoke permission at will
• Lovell ignores requirement and is arrest and fined $50 for not getting permission; says
can't afford
• goes to USSC- Unanimously the USSC reverses decision
• ordinance was unconstitutional - any law that makes the right to disseminate the point
of view dependent on the judgement of a public offical is an untenable prior restraint
Bigelow v. Virginia (1975) - CORRECT ANSWER-*access, time, place and manner*
FACTS: A Virginia statute made it a misdemeanor for "any person, by publication,
lecture, advertisement, or by the sale or circulation of any publication, or in any other
manner, [from encouraging] or [prompting] the procuring of abortion or miscarriage."
Bigelow, director and managing editor of the Virginia Weekly, was convicted under this
law when his newspaper ran an advertisement for an organization which referred
women to clinics and hospitals for abortions.
ISSUES: Did the Virginia law violate the First and Fourteenth Amendments of the
Constitution? Can a service legal in one state be advertised in a state where it is not?
DECISION: 7 votes for Bigelow, 2 vote(s) against
PRECEDENT: The Court held that the Virginia law infringed upon Bigelow's First
Amendment rights and violated the Constitution. Citing prior holdings such as New York
Times v. Sullivan (1964), Justice Blackmun denied the Supreme Court of Virginia's
ruling that commercial speech is not afforded First Amendment protection. Furthermore,
the advertisement in question contained important information in the "public interest"
which went beyond merely informing readers of a commercial service. Finally, the Court
feared that the Virginia statute had the potential to "impair" national and interstate
publications which might choose to carry similar advertisements.
Miami Herald v. Tornillo (1974) - CORRECT ANSWER-*access, time, place and
manner*
FACTS: Pat Tornillo was Executive Director of the Classroom Teachers Association and
a candidate for the Florida House of Representatives in Dade County, Florida. The
Miami Herald published two editorials criticizing Tornillo and his candidacy. He
demanded that the Herald publish his responses to the editorials. When the Herald
refused, Tornillo sued in Dade County Circuit Court under Florida Statute Section
104.38, which granted political candidates criticized by any newspaper the right to have
their responses to the criticisms published. The Herald challenged the statute as a
violation of the free press clause of the First Amendment. The Circuit Court ruled that
the statute was unconstitutional. The Supreme Court of Florida reversed this decision.
ISSUES: Did Florida Statute Section 104.38, the "right to reply" statute, violate the free
press clause of the First Amendment applied to the states through the Fourteenth
Amendment?
DECISION: 9 votes for Miami Herald Publishing Co., 0 vote(s) against
PRECEDENT: Yes. In a unanimous decision, the Court reversed the Supreme Court of
Florida and held that Florida's "right to reply" statute violated the freedom of press found
in the First Amendment. In an opinion written by Chief Justice Warren E. Burger, the
Court recognized the risks posed to the "true marketplace of ideas" by media
consolidation and barriers to entry in the newspaper industry. However, even in that
context, "press responsibility is not mandated by the Constitution and...cannot be
legislated." The statute was an "intrusion into the function of editors," and imposed "a
penalty on the basis of the content." Chief Justice Burger relied on New York Times v.
Sullivan in that the "right to reply" statute "limits the variety of public debate," and was
therefore unconstitutional. J
Near v. Minnesota (1931) - CORRECT ANSWER-*prior restraint v. 1st Amendment*
FACTS: Jay Near published a scandal sheet in Minneapolis, in which he attacked local
officials, charging that they were implicated with gangsters. Minnesota officials obtained [Show Less]