10/9/2019

Historical Evolution of the First Amendment – Supreme Court Cases

Day 2

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What We’ll Do In This Course • Day 1: Philosophical origins of the First Amendment • Day 2: 200+ years of Supreme Court Cases • Day 3: Current First Amendment Issues

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The Historical Evolution of the First Amendment –Three eras of Court History – Pre-Civil War – Post-Civil War – 20th century

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Current Understanding of the First Amendment

– “The First Amendment is [still] a work in progress.” – Early Americans demanded speech protections, but those protections were not consistently enforced. – The Act was abandoned by Congessional action. – John Stuart Mill (mid-19th century) – Marketplace of ideas – expressive freedom as a means of discovering truth 69 69

Current Understanding of the First Amendment

– Judicial interpretation of the First Amendment began in earnest toward the end of WWI. – The courts have concluded that expressive freedom’s primary value is ensuring an informed electorate. – The courts gives political speech the highest status, provided lesser but not insignificant protection to , and categorically devalues and . 70 70

Current Understanding of the First Amendment

– – can the government force an organization to accept members it does not want? – Roberts v. Jaycees (1984)

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Reasons Supreme Court Takes Cases – Procedural Oversight – Did the lower court follow the rules? – Statutory Interpretation – What does the relevant law mean in connection to this set of facts? – Is the law constitutional?

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Name of Case: People involved: Reynolds v. United States George Reynolds The United States Government

Issue: Is religious duty or belief a Where: Utah Territory defense to a criminal charge? When: 1878

Court Finding: What Happened? The Court upheld Reynolds's conviction 1. Morrill Anti-Bigamy Act – 1862 • Congress could not outlaw a belief in the correctness of polygamy, 2. George Reynolds, a Mormon, • it could outlaw the practice thereof. was charged with bigamy after Significance: marrying a woman while still married to his previous wife. Earliest Supreme Court decision on religion clauses of 1st amendment

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Name of Case: People involved: Schenck v. U.S. Charles Schenck Justice Oliver Wendell Holmes

Issue: Is the First Amendment violated Where: when Congress makes a law that When: 1919 punishes dissent in wartime?

What Happened? Court Finding: 1. Espionage Act of 1917 Upheld conviction – the law did not 2. Schenck passes out anti-draft violate his guarantee of free speech leaflets Significance: 3. He is convicted of obstructing war effort   “fire in a crowded theater” 77

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Name of Case: People involved: Gitlow v. New York Benjamin Gitlow State of New York

Issue: Does the 1st Amendment prevent Where: New York, New York a state from punishing political speech When: 1923 that advocates overthrowing the govt? What Happened? Court Finding: Holmes dissented The Court reasoned the government could 1. Benjamin Gitlow, a socialist, was punish speech that threatens its basic existence accused of distributing pamphlets because of the national security implications and other information that called for the overthrow of the Significance: government. First application of the Doctrine 2. He was convicted of violating the of Incorporation New York “Criminal Anarchy Law” 78

Doctrine of Incorporation

–Constitutional Process (20th century) –Bill of Rights made applicable to the states through the Due Process clause of the 5th and 14th Amendments

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Provision of the First Case that “Incorporated” the provision Date Amendment Establishment of Religion Everson v. Board of Education 1947 Free Exercise of Religion Cantwell v. Connecticut 1940

Freedom of Speech Gitlow v. New York 1925 Freedom of the Press Near v. Minnesota 1931 Freedom of Assembly DeJonge v. Oregon 1937 Right to (expressive) NAACP v. Alabama 1958 association Right to petition Edwards v. South Carolina 1958

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Name of Case: People involved: Near v. Minnesota Jay Near (Reporter) Police and other government officials

Issue: Does the Minnesota "gag law" Where: Minneapolis, Minnesota violate the free press provision of the First Amendment? When: 1931

What Happened? Court Finding: 1. Jay Near and Howard Guilford of the Minnesota The Court held that the statutory scheme Saturday Press accused local officials of being implicated with gangsters. constituted a and hence was 2. Minnesota officials sought a permanent injunction invalid under the First Amendment. against The Saturday Press because it violated the Public Nuisance Law. Significance: 3. The law provided that any person "engaged in . . .publishing . . .an. . .obscene . . . or . . . defamatory" Incorporated Freedom of the newspaper or periodical was guilty of a nuisance and could be enjoined from further committing or Press clause of First Amendment maintaining the nuisance. 81

Name of Case: People involved: DeJonge v. Oregon Dirk De Jonge Portland police Issue: Does Oregon's criminal syndicalism Where: Portland, Oregon statute violate the due process clause of When: 1937 the Fourteenth Amendment?

What Happened? Court Finding: 1. At a meeting held by the Communist Party, Charging someone with breaking a law because Dirk De Jonge addressed the audience of the content of their meeting, and not its regarding jail conditions in the county and a conduct, violates 1st Amendment maritime strike in progress in Portland. 2. Police raided the meeting and arrested De Significance: Jonge, charging him with violating the Incorporated Freedom of Assembly State's criminal syndicalism statute (makes it clause of First Amendment illegal to foment revolution) 82

Name of Case: People involved: West Virginia v. Barnette Barnette children (Jehovah’s Witnesses)

Issue: Can students be required to say Where: West Virginia the Pledge of Allegiance in school? When: 1943

What Happened? Court Finding: 1. WVA law required saying Pledge Overturned decision, invalidated their 2. Jehovah’s Witnesses can’t say it expulsion for religious reasons Significance: 3. Children were expelled  freedom to speak = freedom not to speak  Can’t be forced to express a political opinion  Overturned 1940 case Minersville v. Gobitis 83

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Bellamy Salute” – done away with in 1942 84 84

What People Think: Virginia State Law:

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Name of Case: People involved: Cantwell v. Newton Cantwell and his sons Connecticut The town of New Haven, Connecticut Issue: Where: Connecticut Did their conviction violate their free When: 1940 exercise rights under the 1st amendment?

What Happened? Court Finding: 1. Newton Cantwell and his sons (Jehovah’s Witnesses) Because the statute allowed local officials to determine were proselytizing, going door to door and which causes were religious and which ones were not, it approaching people on the street, in a primarily violated the First and Fourteenth Amendments. Catholic neighborhood 2. Two pedestrians reacted angrily to an anti-Catholic Significance: message, and Cantwell and his sons were arrested for violating a Connecticut law that required them to get Incorporated the of a license and that charged them with inciting a breach the First Amendment of peace. 86

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Name of Case: People involved: Chaplinsky v. New Walter Chaplinsky Hampshire City of Rochester, New Hampshire Issue: Is an individual responsible for Where: Rochester, New Hampshire the results of his inflammatory speech and therefore not afforded free speech When: 1942 rights? What Happened? Court Finding: 1. Walter Chaplinsky was distributing The Court upheld Chaplinksy’s conviction, finding literature that supported his beliefs as a that his were “fighting words” since they caused a Jehovah's Witness and attacked more direct harm to their target and could be construed to advocate an immediate breach of the peace. conventional forms of religion. 2. He was arrested and convicted under a Significance: state law that prohibited intentionally A state can use its police power, the Court offensive, derisive, or annoying speech to reasoned, to curb someone’s expression in the any person who is lawfully in a street or interests of maintaining order and morality. public area. 87

Name of Case: People involved: Everson v. Board of Arch Everson, taxpayer Education Board of Education, Ewing, NJ Issue: Where: New Jersey Did the New Jersey law violate the When: 1947

What Happened? Court Finding: 1. A New Jersey law authorized reimbursement by local Found in favor of the school system – this law school boards of the costs of transportation to and did not favor religious education from schools (both public and private) 2. Arch R. Everson, a taxpayer in Ewing Township, filed a lawsuit alleging that this indirect aid to religion Significance: violated both the New Jersey state constitution and the First Amendment. Incorporated the Establishment clause of the First Amendment

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Name of Case: People involved: Samuel Roth and David Alberts Roth v. United States (magazine publishers) United States Government Issue: Where: New York Does restriction of publication or possession of obscene material impinge When: 1957 upon freedom of expression? What Happened? Court Finding: 1. Roth operated a book-selling business in obscenity was not "within the area of New York and was convicted of mailing constitutionally protected speech or obscene circulars and an obscene book in violation of a federal obscenity statute. press.” 2. Roth's case was combined with Alberts v. Significance: California, in which a California obscenity Set a standard – does the material as a law was challenged by Alberts after his similar conviction for selling lewd and whole appeal to primarily prurient obscene interests of the average person? 89

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Name of Case: People involved: NAACP v. Patterson NAACP State of Alabama

Issue: Where: Alabama Did Alabama's requirement violate the Due Process Clause of the Fourteenth When: 1958 Amendment? What Happened? Court Finding: 1. Alabama sought to prevent the NAACP A unanimous Court decided in favor of from conducting further business in the the NAACP state. 2. After the circuit court issued a restraining order, the state subpoenaed NAACP Significance: records, including its membership lists. 3. The NAACP challenged the order Freedom of assembly is more important than government “desire to know.”

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Name of Case: People involved: Engel v. Vitale Steven Engel, parent William J. Vitale, School Board Pres.

Issue: Can students be punished for Where: New York refusing to recite a school-sponsored When: 1962 prayer?

What Happened? Court Finding: 1. School district has a required prayer Overturned lower court ruling. The 2. Parents sought to exempt their students and parents prevailed children Significance: 3. School system won in lower court Excluded teacher-led prayer from public schools

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Name of Case: People involved: Sherbert v. Verner Adeil Sherbert Verner (SC Employment Commission)

Issue: Did the denial of unemployment Where: South Carolina compensation to 7th day Adventist who refused to work on Saturday violate 1st amendment? When: 1963

What Happened? Court Finding: 1. Adeil Sherbert, a Seventh-day Adventist, was fired from The Court held that the state's eligibility restrictions for her job after she refused to work on Saturday, her Sabbath unemployment compensation imposed a significant 2. The Employment Security Commission ruled that she burden on Sherbert's ability to freely exercise her faith. could not receive unemployment benefits because her refusal to work on Saturday constituted a failure without Significance: good cause to accept available work. Discussion of conflict between 3. Employers in SC were not allowed to require employees to work on Sunday. “establishing” and “enabling” religion

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Name of Case: People involved: Abington v. Schempp Edward Schempp Abington School District

Issue: Do mandatory religious activities in a Where: Pennsylvania classroom violate students’ first amendment rights? When: 1963

What Happened? Court Finding: 1. Pennsylvania passed a law requiring Bible reading The court ruled in favor of Schempp to start the school day 2. Schempp, a parent, sued, saying this violated his st th child’s 1 and 14 amendment rights Significance: 3. Pennsylvania amended its law, saying students Laid the basis for further similar Court could opt out of participating 4. Schempp continued his suit. decisions

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Name of Case: People involved: Edwards v. South Carolina • 187 “Negro” high school and college students • South Carolina law enforcement officials

Issue: Did the arrests and convictions of the Where: Columbia, SC marchers violate their , assembly, and petition as protected by the First When: 1963 and Fourteenth Amendments? What Happened? Court Finding: 1. Students gathered to protest decisions of the South Student’s conviction were overturned Carolina legislature 2. The police arrested the students after they did not obey an order to disperse. 3. The students were convicted of breach of the peace. Significance: The state could not 4. The students appealed, saying that there was no make criminal the peaceful evidence of the commission of the offense and that they were thus denied due process of law expression of unpopular views

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Name of Case: People involved: NY Times v. Sullivan New York Times L.B. Sullivan, Montgomery AL police

Issue: Did Alabama's libel law infringe on the Where: New York and Alabama First Amendment's freedom of speech and When: 1964 freedom of press protections?

What Happened? Court Finding: 1. Civil Rights activists publish an ad asking The court rules in favor of the Civil for contribution to support Martin Rights activists. Luther King’s efforts Significance: 2. The ad gets a few fact statements wrong 3. Montgomery police file for libel damages Introduced the concept of “actual malice” to make a libel charge stick against a public official 95

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aName of Case: People involved: Memoirs v. Massachusetts G. P. Putnam (publisher) State of Massachusetts

Issue: Did the actions of the state of Where: Massachusetts Massachusetts to ban this book violate When: 1966 the First Amendment?

What Happened? Court Finding: 1. John Cleland (1709-1789) a book Memoirs The court ruled that the book was not “without of a Woman of Pleasure , aka “Fanny Hill” redeeming social merit” and therefore was not in 1750 obscene 2. Massachusetts firm republished it in Significance: 1962 Reaffirmed “Roth” test. Material may have 3. Massachusetts courts found it obscene been “patently offensive” and “prurient” but it had some minimal social merit 96

Name of Case: People involved: Pickering v. Board of Marvin Pickering, school Teacher Education Board of Education, Will County, Illinois

Issue: Where: Illinois Was Pickering’s criticism of the school When: 1968 board constitutionally protected speech?

What Happened? Court Finding: 1. Pickering wrote a letter to complain Pickering should not be fired – he has about a school policy; his letter included a right to express his opinion some false statements 2. School system moved to fire him Significance: 3. Lower court and Supreme Court of Misstatements are not grounds for firing Illinois ruled that his firing was justified unless they were made knowingly and recklessly. 97

Name of Case: People involved: Epperson v. Arkansas Susan Epperson (public school teacher) State of Arkansas

Issue: Where: Arkansa Law banning teaching of evolution When: 1968

What Happened? Court Finding: 1. Arkansas passed a law (1928) This law violated both the free speech and banning the teaching of evolution establishment clauses of the first amendment 2. Local school district adopted (1965) a textbook that taught evolution Significance: 3. Epperson sued to test the Signaled the beginning of the end constitutionality of the 1928 law for anti-evolution laws

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Name of Case: People involved: Tinker v. Des Moines High School students John and Mary Beth Tinker

Issue: Does a ban on wearing an article Where: Des Moines, Iowa of clothing the conveys a political When: 1969 opinion a violation of Free Speech?

What Happened? Court Finding: 1. Students wore black arm bands to Overturned lower court ruling; school to protest Vietnam War invalidated suspension 2. Students were suspended Significance: 3. Lower court upheld their suspension  Symbolic speech  Students have rights

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Name of Case: People involved: Red Lion Broadcasting Co. v. Federal Red Lion Broadcasting Co Communications Commission FCC

Issue: Does the FCC's fairness doctrine Where: Washington, DC violate the First Amendment's freedom When: 1969 of speech guarantees?

What Happened? Court Finding: 1. The Federal Communications Commission's The Court held that the Fairness Doctrine (FCC) fairness doctrine requires radio and was consistent with the First Amendment television broadcasters to present a balanced and fair discussion of public issues on the Significance: airwaves. Despite this case, the Fairness Doctrine 2. Red Lion Broadcasting challenged the application of the fairness doctrine was scuttled by the FCC in 1987.

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Name of Case: People involved: New York Times v. United New York Times, Washington Post States US Department of Justice Issue: Did the Nixon administration's efforts Where: Washington, DC to prevent the publication of what it termed "classified information" violate the First When: 1971 Amendment? (Pentagon Papers case) What Happened? Court Finding: 1. Daniel Ellsberg leaked classified The court ruled against Nixon, saying that the material to NYT and Washington government did not overcome the "heavy presumption against" prior restraint Post about US actions in Vietnam Significance: 2. Nixon asked NYT to withhold Reaffirmed original idea that freedom of publication the press meant freedom from prior restraint 101

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Name of Case: People involved: Lemon v. Kurtzman Alton Lemon, David Kurtzman

Issue: What are the standards for Where: Pennsylvania application of First Amendment to When: 1971 activities in the public schools?

What Happened? Court Finding: 3-pronged test 1. States had been reimbursing private 1. Activity clearly secular schools for teacher salaries 2. Neutral primary effect 2. Usually Catholic schools 3. Avoid “excessive entanglement” 3. Social worker Alton Lemon sued, Significance: saying this was a violation of Gave lower courts standards to separation of church/state help define wall of separation

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The Impact of Lemon and other religion cases

– Standards of review in the Establishment clause context are disorderly and confusing – 3-pronged tests (some judges find these unsatisfactory) – “endorsement” (constitutionally prohibited) vs. “accommodation” (constitutionally accepted)

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Name of Case: People involved: Clay v. United States Cassius Clay (Muhammad Ali)

Issue: How broad is the religious claim Where: Louisville, Kentucky of “conscientious objector” status in When: 1971 response to the Vietnam War draft?

What Happened? Court Finding: 1. Clay refused to report for the draft, Overturned Ali’s conviction claiming religious exemption 2. He was tried, convicted, stripped of Significance: boxing title Any sincerely-held religious belief can 3. He lost his first appeal, appealed to be grounds for conscientious objector Supreme Couert status. 104

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Name of Case: People involved: American Nazi Party v. American Nazi Party Village of Skokie Jewish residents of Skokie Issue: What is the scope of Freedom Where: Slokie, Illinois of Assembly in a community? When: 1971

What Happened? Court Finding: 1. Nazi party applies for a parade Overturned lower courts; Nazis must permit and were turned down be allowed to march 2. The appealed and lost Significance: 3. They appealed again, to Supreme Court First amendment protects even the most objectionable speech

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Name of Case: People involved: Buckley v. Valeo Sen. James Buckley (NY) and others Francis Valeo, Secy of the Senate

Issue: Do the limits placed on Where: Washington,DC campaign contributions violate freedom When: 1976 of expression?

What Happened? Court Finding: 1. After Watergate, Congress attempted to 1. Campaign contributions can be limited restrict financial contributions to candidates. 2. Campaign spending cannot be limited 2. The law set limits on the amount of money an individual could contribute to a single Significance: campaign and it required reporting of Began to weaken post-Watergate contributions above a certain threshold amount. campaign finance reform regulations

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Name of Case: People involved: Wallace v. Jaffree Ishmael Jaffree, a follower of the Bahai faith

Issue: Is a “moment of silence” a Where: Alabama violation of students’ protection against When: 1986 establishment of religion in school?

What Happened? Court Finding: 1. Alabama passed a “moment of Overruled lower court decision; found silence” bill in Jaffree’s favor based on legislative 2. Jaffree complained that this was intent an establishment of religion; he Significance: lost in lower court Extended ban on religious activity in public schools

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Name of Case: People involved: Hustler Magazine v. Falwell Hustler magazine (Larry Flynt) Rev. Jerry Falwell

Issue: Did either or both types of "buffer Where: Virginia zones" violate Schenck's First Amendment right to freedom of speech? When: 1988

What Happened? Court Finding: 1. Hustler created a spoof advertisement that made it Because the ad could not reasonably be believed, and sound like Jerry Falwell’s first sexual encounter was because the magazine labeled it (although in small print) with his mother as a parody, it was protected by the 1st amendment 2. Falwell brought a libel claim against the magazine 3. Interim ruling created “buffer zones” prohibiting Significance: Broadened the “public demonstrations within 15 feet of clinics official” exemption for libel claims to 4. Injunction also created “floating buffer zones” include any “public figure” protecting people on their way to the clinics.

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Name of Case: People involved: Texas v. Johnson Gregory Johnson State of Texas

Issue: Is burning the American flag a Where: Dallas, Texas form of speech protected by the First When: 1989 Amendment

What Happened? Court Finding: 1. Texas had a law banning burning Overturned Johnson’s conviction the flag as protest 2. Johnson burned a flag outside the Significance: GOP Convention in 1984 1. Symbolic speech 3. He was convicted and sentenced 2. First Amendment protects objectionable under Texas law speech 110

Name of Case: People involved: Church of Lukumi Babalu Members of church group that Aye v. City of Hialeah practiced Santeria Issue: What is the reach of the Free Where: Hialeah, Florida Exercise of religion clause in the First When: 1993 Amendment

What Happened? Court Finding: 1. Florida law banned animal Overturned conviction; animal sacrifice sacrifice in religious observance is protecte by the First Amendment 2. Santeria church challenges this – Significance: sacrifices chickens and turtles Can’t single out and punish religious 3. Convicted of violating law reasons for actions that are otherwise permitted 111

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Name of Case: People involved: Hurley v. Irish American Gay, Petitioners: the Council, the petitioner John J. Lesbian, and Bisexual Association of "Wacko" Hurley, and the city of Boston Boston, Inc. Respondent: GLIB of Boston Issue: Did a Massachusetts State Court's mandate to Where: Boston Boston's Veterans' Council, violate the Council's free speech rights as protected by the First and Fourteenth When: 1995 Amendments? What Happened? Court Finding: 1. The South Boston Allied War Veterans Council was Requiring a group to include participants whose views authorized to organize a St. Patrick's Day Parade. they do not agree with violates the First Amendment by 2. The Council refused a place in the event for the Irish making private speech subordinate to the public American Gay, Lesbian, and Bisexual Group of Boston accommodation requirement 3. The Massachusetts State Court ordered the Veterans' Council Significance: to include GLIB under a state law A speaker has the autonomy to choose the 4. The Veterans' Council claimed that forced inclusion of GLIB members in their privately-organized parade violated their content of his own message and, conversely, to free speech and association rights decide what not to say. 112

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