Download File - Political Penguins

I.
First Amendment Rights
A.
Freedom of Religion
1.
Establishment Clause
2.
Free Exercise Clause
B.
Freedom of Speech
1.
Content Restrictions – Strict Scrutiny
2.
Time, Place, and Manner Restrictions – Reasonable Basis
C.
Freedom of the Press
1.
Prior Restraint
2.
Libel
D.
Freedom of Assembly
E.
Freedom to Petition Government
F.
Penumbral First Amendment Right – Freedom of Expression
II.
Development of Court Tests for Content Regulations of Speech
A.
Radical Speech – “Clear and Present Danger Test”
B.
Defamatory Speech
C.
Obscene Speech – “Miller Test”
D.
Offensive Speech – “Fighting Words Doctrine”
III.
Radical Speech
A.
Definition
B.
State Issue until World War I
1. Impact of McKinley’s Assassination (1901)
2. State Interest in Regulating Sedition
C.
Federal Legislation during World War I
1. Espionage Act of 1917
2. Sedition Act of 1918
D.
Legal Challenges
1. Masses Publishing v. Patten (1917)
2. Schenck v. United States (1919)*****
a.
Holmes’ “Clear and Present Danger”
b.
Can one shout “fire” in a crowded theater?
3. Abrams v. United States (1919)*****
a.
Majority Opinion
b.
Holmes and Brandeis Dissent
4. Debs v. United States (1919)
E.
Conflicting Views on Radical Speech
1. Learned Hand – “Hand Advocacy Test”
2. Oliver Wendell Holmes – “Clear and Present Danger Test”
a.
Advocacy
b. Close Proximity
c.
Specific Intent
F.
Challenges to State Criminal Syndicalism Statutes
1. Gitlow v. New York (1925)*****
a.
Majority Opinion
G.
H.
I.
b. Holmes’ Dissent
c.
Incorporation of the First Amendment
2. Whitney v. California (1927)
a.
Majority Opinion
b. Holmes and Brandeis Dissent
Post World War II Development of the “Clear and Present Danger
Test”
1. Dennis v. United States (1951)
2. Yates v. United States (1957)
3. Brandenburg v. Ohio (1969)
Modern “Clear and Present Danger Test” (Brandenburg Test)
1. Advocacy
2. Close Proximity
3. Specific Intent
4. Likelihood for Success
Terrorist Threat and the Patriot Act
IV.
Federal Court Injunctions against Vague and Overbroad Statutes
A.
What is an Injunction?
B.
What is a Vague or Overbroad Statute?
C.
Prior Restraint
D.
Near v. Minnesota (1931)*****
E.
Vance v. Universal Amusement (1980)
F.
Nixon’s Attempt to Stop the Publication of the Pentagon Papers
V.
Defamatory Speech
A.
What are Libel and Slander?
B.
Beauharnais v. Illinois (1952)
C.
New York Times v. Sullivan (1964)*****
1. Majority Opinion
2. Distinction between Private Citizens and Public Figures
3. Modern Definition of Defamatory Speech
a.
Knowingly Uttering/Printing a Falsehood
b. Malicious Intent
c.
Damage Done to the Reputation of the Victim
D.
Motion Picture Disclaimer
VI.
Obscene Speech
A.
What exactly is Pornography?
1. Justice Potter Stuart’s Comment
2. Miller v. California (1973) – “Miller Test”
a.
Appeals to the Prurient Interest
b. Patently Offensive
c.
Violates Community Standards
d.
No Serious Literary, Artistic, Political, or Scientific
Value
B.
VII.
2. American Booksellers v. Hudnut (1985)
Development of the Motion Picture Rating System
1. Why is regulation of motion picture content an issue?
2. Industry Self-Regulation
a.
1930s to 1950s – Hay’s Office
b. 1960s – First MPAA Rating System
c.
1980s – Addition of PG-13 and NC-17
3. Impact on Other Entertainment Industries
4. Issue of Internet Pornography
Offensive Speech
A.
“Fighting Words” Doctrine
1. Words of Incitement
2. Words that Provoke an Immediate Violent Response from a
Reasonable Person
B.
Cantwell v. Connecticut (1940)*****
C.
Chaplinsky v. New Hampshire (1942)
D.
Cohen v. California (1971)*****
VIII. Time, Place, and Manner Restrictions on Speech
A.
Reasonable Basis or “Balancing Test”
B.
Schneider v. New Jersey (1939)
1. Majority Opinion
2. Public Forum Theory
C.
Carey v. Brown (1980)
1. Denial of Minimum Access v. Denial of Equal Access to the
Public Forum
2. Equal Protection v. First Amendment Case
D.
Frisby v. Schultz (1988)
E.
Boos v. Barry (1988)
F.
Feiner v. New York (1951)
1. Majority Opinion
2. Black’s Dissent
3. Hostile Audience Theory
G.
Edwards v. South Carolina (1963)
H.
Speech in Public Schools
1. Tinker v. Des Moines (1969)*****
2. Bethel v. Fraser (1986)
3. Board of Education v. Pico (1982)
4. Kuhlmeyer v. Board of Education
5. Captive Audience Theory
IX.
Penumbral First Amendment Rights
A.
Freedom of Expression
B.
Symbolic Speech
1. United States v. O’Brien (1968)
2. Spence v. Washington (1974)
3. Texas v. Johnson (1988)
X.
Religion: The Establishment Clause
A.
Original Application – Federal Government Only
B.
14th Amendment – Applies to States on a Case-by-Case Basis
C.
Everson v. Board of Education (1947)*****
1. Incorporates the Establishment Clause
2. Majority Opinion
3. “The Everson Rules” or “High Wall Rules”
a.
No Government can set up a Church
b. No Government can pass laws that aid one religion,
aid all religions, or prefer one religion over another
c.
No tax can support any religious activities or
institutions
D.
Can a state subsidize the cost of textbooks for secular subjects
taught at a parochial school?
E.
Can a state pay the salaries of teachers of secular subjects at
parochial schools?
F.
Can a state pay for instructional materials (e.g. maps, videos) for
secular subjects at parochial schools?
G.
McCollum v. Illinois (1948)
H.
Zorac v. Clauson (1952)
I.
Westside Community Schools v. Mergens (1990)
J.
Engle v. Vitale (1962)*****
1. Can a school board mandate a volutary non-denominational
prayer in a public school?
2. Reaction to the Decision
K.
Wallace v. Jaffree (1983)
L.
Abington v. Schempp (1963)
M.
Lemon v. Kurtzman (1971)
1. Majority Opinion
2. “Lemon Test”
a.
Purpose of State Involvement must be Clearly Secular
b. Primary Purpose of State Involvement must neither
advance nor hinder Religion
c.
Government must avoid “excessive entanglement”
with religion
d. “Everson Rules” still apply as well
N.
Can a state forbid the teaching of a theory that takes religious
doctrine into question?
1. Darwinian Theory of Evolution
2. Scopes Trial (1925)
3. Epperson v. Arkansas (1968)
4. Edwards v. Aguillard (1987)
5. “Scientific Creationism”
XI.
Religion: The Free Exercise Clause
A.
Original Application – Federal Government Only
B.
Incorporated to Apply to States in Cantwell v. Connecticut (1940)
C.
Reynolds v. United States (1879)
1. Valid Secular Policy Test
a.
Intent of the law is to avoid interference with religion
b. Religious activity cannot violate any law that protects
the health, safety, or morals of the community
2. How overt will religious practices that violate the Valid
Secular Policy test?
D.
Exemption Logic
1. Court gives exceptions to legitimate religions for practices
that may violate Valid Secular Policy
2. Wisconsin v. Yoder (1972)
3. West Virginia Board of Education v. Barnette (1943)
a.
Is a mandatory flag salute constitutional?
b. Is a mandatory recitation of the Pledge of Allegiance
constitutional?
E.
Current Controversies
1. What is a legitimate religion? How is legitimacy determined?
2. What about small, remote homogeneous communities? What
rights do they have from encroachment from the outside?
3. Can government intervene to protect children from religious
practices that condemn modern medicine?
4. Can the military force “conscientious objectors” to serve?
a.
Muhammad Ali case
b. Issues concerning a military draft