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10/9/2019 Historical Evolution of the First Amendment – Supreme Court Cases Day 2 65 65 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 66 66 The Historical Evolution of the First Amendment –Three eras of Court History – Pre-Civil War – Post-Civil War – 20th century 68 68 1 10/9/2019 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 Sedition 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 commercial speech, and categorically devalues fighting words and obscenity. 70 70 Current Understanding of the First Amendment –Freedom of Association – can the government force an organization to accept members it does not want? – Roberts v. United States Jaycees (1984) 71 71 2 10/9/2019 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? 72 72 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 76 Name of Case: People involved: Schenck v. U.S. Charles Schenck Justice Oliver Wendell Holmes Issue: Is the First Amendment violated Where: Philadelphia 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 Clear and present danger “fire in a crowded theater” 77 3 10/9/2019 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 79 79 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 80 80 4 10/9/2019 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 prior restraint 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 5 10/9/2019 Bellamy Salute” – done away with in 1942 84 84 What People Think: Virginia State Law: 85 85 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 free exercise clause of a license and that charged them with inciting a breach the First Amendment of peace. 86 6 10/9/2019 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 Establishment clause 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 88 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 7 10/9/2019 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.
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