We The People, session v, First Amendment

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This begins our look at the Bill of Rights. We see how these freedoms of expression come to be protected from state as well as federal repression. The Supreme Court used the Fourteenth Amendment to …

This begins our look at the Bill of Rights. We see how these freedoms of expression come to be protected from state as well as federal repression. The Supreme Court used the Fourteenth Amendment to selectively incorporate these guarantees in a series of twentieth century decisions.

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  • 1. The U.S. Constitution session v First Amendment
  • 2. major points of this session I.Historical Background II. Religion III. Speech IV. Press V. Assembly & Petition
  • 3. It was Reagan’s “morning again in America.” The Cold War was getting colder. The Soviets were mired in Afghanistan and Reagan announced SDI (“Star Wars”). In the spring of 1984 Hollywood released an unabashedly patriotic film, Moscow on the Hudson•. The film is light-hearted, but it really slams the Soviet failures and exhibits America’s best qualities. Robin Williams plays a Russian musician who defects at Bloomingdales in Manhattan. He is befriended by an Italian shop clerk who is studying for her American citizenship test. As they are sharing a romantic tub, he quizzes her. How many of us native-born could do as well as she? jbp
  • 4. It was Reagan’s “morning again in America.” The Cold War was getting colder. The Soviets were mired in Afghanistan and Reagan announced SDI (“Star Wars”). In the spring of 1984 Hollywood released an unabashedly patriotic film, Moscow on the Hudson•. The film is light-hearted, but it really slams the Soviet failures and exhibits America’s best qualities. Robin Williams plays a Russian musician who defects at Bloomingdales in Manhattan. He is befriended by an Italian shop clerk who is studying for her American citizenship test. As they are sharing a romantic tub, he quizzes her. How many of us native-born could do as well as she? jbp
  • 5. 36% of Americans can’t name a single First Amendment freedom polling reported on Fox News, Sunday 18 Aug 2013
  • 6. Historical Background
  • 7. Government repression of dangerous ideas and their expression is at least as old as recorded history. Despite its futility and counterproductive outcome, it endures to the present. A few examples will suffice. jbp
  • 8. Intolerance is a 1916 American silent film directed by D. W. Griffith and is considered one of the great masterpieces of the Silent Era. The three-and-a-half hour epic intercuts four parallel story lines, each separated by several centuries: (1) A contemporary melodrama of crime and redemption; (2) a Judean story: Christ’s mission and death; (3) a French story: the events surrounding the St. Bartholomew's Day massacre of 1572; and (4) a Babylonian story: the fall of the Babylonian Empire to Persia in 539 BC. The scenes are linked by shots of a figure representing Eternal Motherhood, rocking a cradle Wikipedia
  • 9. “The blood of martyrs is the seed of the Church.” Western Father Tertullian, 2nd century A.D.
  • 10. “The blood of martyrs is the seed of the Church.” Western Father Tertullian, 2nd century A.D.
  • 11. In 250, the emperor Decius issued an edict, the text of which has been lost, requiring everyone in the Empire (except Jews, who were exempted) to perform a sacrifice to the gods in the presence of a Roman magistrate and obtain a signed and witnessed certificate, called a libellus, to this effect. The decree was part of Decius' drive to restore traditional Roman values.... A number of these certificates still exist, one discovered in Egypt... (Text of papyrus in illustration) reads: To those in charge of the sacrifices of the village Theadelphia, from Aurelia Bellias, daughter of Peteres, and her daughter Kapinis. We have always been constant in sacrificing to the gods, and now too, in your presence,in accordance with the regulations, I have poured libations and sacrificed and tasted the offerings, and I ask you to certify this for us below. May you continue to prosper. (Second person's handwriting) We, Aurelius Serenus and Aurelius Hermas, saw you sacrificing. (Third person's handwriting) I, Hermas, certify. The first year of the Emperor Caesar Gaius Messias Quintus Traianus Decius Pius Felix Augustus, Pauni 27. Wikipedia
  • 12. When Christianity gained the state power in the 4th century it paid the pagans (people who lived in the pagus- Lat. for countryside) back in full measure. In later centuries it was the heretics’ (from heiresis- Gk. verb ‘to split, i.e., those who were splitting off from the true faith) turn. Spain was most famous for its zeal. England escaped most of the Wars of Religion (1522-1648). Still, the fate of John Lilburne is instructive. His punishment was well known to the authors of the Bill of Rights. jbp
  • 13. A Martyr for First Amendment Freedoms a political “Leveler” before, during, and after the English Civil War he coined the term “freeborn rights” rights with which every human being is born, as opposed to those granted by government or law he was also known as Freeborn John in early life a Puritan, he became a Quaker 1637-his campaign for religious freedom led him to circulate an unlicensed pamphlet against the Church of England 1638-brought before the Court of the Star Chamber, he challenged their proceedings John Lilburne 1614 – 1657 picture 1641
  • 14. “On 18 April 1638 Lilburne was flogged with a three-thonged whip on his bare back, as he was dragged by his hands tied to the rear of an ox cart from Fleet Prison to the pillory at Westminster. He was then forced to stoop in the pillory where he still managed to campaign against his censors, while distributing more unlicensed literature to the crowds. He was then gagged. Finally he was thrown in prison. He was taken back to the court and again imprisoned. During his imprisonment in Fleet he was cruelly treated. While in prison he however managed to write and to get printed in 1638 an account of his own punishment styled The Work of the Beast and in 1639 an apology for separation from the Church of England, entitled Come out of her, my people. Wikipedia
  • 15. A Martyr for First Amendment Freedoms he coined the term “freeborn rights” this gives him status as an early source for the Declaration’s concept of “unalienable” or natural rights he also antecedes Rousseau’s “born free” by a century his “offenses” are are nullified by the U.S. Bill of Rights AM I-”no establishment,” “free exercise,” “freedom of the press” AM V-”...nor be deprived of life, liberty, or property without due process of law….” AM VI-”In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial….” AM VIII-”...nor cruel and unusual punishments inflicted.” John Lilburne 1614 – 1657 picture 1641
  • 16. Toleration in Colonial America-a mixed bag 1607-VA had an established Anglican Church until Jefferson’s Statute for Religious Freedom (drafted 1777, enacted 1786) 1620-MA was officially Congregationalist until 1830! They drove Roger Williams out for his theological deviance 1636-he founded RI (called Rogue’s Island by the Puritans) the only colony which tolerated persons of any or no religion 1649-MD- the Toleration Act was unusual for tolerating Catholics and any Trinitarian Christians. However, to deny Christ’s divinity was a capital offense 1681-PA-Penn’s Charter of Privileges created a haven for Quakers, but tolerated all monotheists. Only Christians could hold office
  • 17. 19th Century American Religious Toleration probably never more than 10,000, this reclusive sect inspired only mild social condemnation the common view was that they were quaint, even idyllic as the group declined in the second half of the 19th century “most viewed them as being, at worst, sexually repressed eccentrics who at least made nice furniture”-Wiki Shakers* LDS (Mormons) _________ * The United Society of Believers in Christ’s Second Appearing
  • 18. 19th Century American Religious Toleration Shakers* LDS (Mormons) _________ * The United Society of Believers in Christ’s Second Appearing
  • 19. 19th Century American Religious Toleration probably never more than 10,000, this reclusive sect inspired only mild social condemnation the common view was that they were quaint, even idyllic as the group declined in the second half of the 19th century “most viewed them as being, at worst, sexually repressed eccentrics who at least made nice furniture”-Wiki during Brigham Young’s presidency (1847-77) over 70,000 converts immigrated from overseas! this prosperous growing sect had produced outrage from the beginning. Founder, Jos Smith & his brother had been killed by a mob in 1844 1852-the existing practice of plural marriage was declared a public doctrine of polygamy Shakers* LDS (Mormons) _________ * The United Society of Believers in Christ’s Second Appearing
  • 20. 19th Century American Religious Toleration probably never more than 10,000, this reclusive sect inspired only mild social condemnation the common view was that they were quaint, even idyllic as the group declined in the second half of the 19th century “most viewed them as being, at worst, sexually repressed eccentrics who at least made nice furniture”-Wiki during Brigham Young’s presidency (1847-77) over 70,000 converts immigrated from overseas! this prosperous growing sect had produced outrage from the beginning. Founder, Jos Smith & his brother had been killed by a mob in 1844 1852-the existing practice of plural marriage was declared a public doctrine of polygamy 1857-Pres Buchanan sent the army against them into the Utah Territory Shakers* LDS (Mormons) _________ * The United Society of Believers in Christ’s Second Appearing
  • 21. “If there was an American philosophy in the [eighteen] seventies, it was a corrupted version of Scottish common-sense doctrines, taking as given every man’s ability to know that God had ordained modesty in women, rectitude in men, and thrift, sobriety, and hard work in both. People of very different backgrounds accommodated themselves to this Protestant code which had become so thoroughly identified with respectability, and the keepers of the national conscience applied its rules with slight margin for the deviant. An age in which the Supreme Court justified oppression of the Mormons because no right-thinking man could consider theirs a religion would not be remembered for its cosmopolitan tolerance. Wiebe, op.cit., p. 4
  • 22. Reynolds v. United States, 98 U.S.(8 Otto.) 145 (1878) facts the Mormons believed that the Morrill Anti-Bigamy Act violated their 1st AM right to “free exercise.” George Reynolds agreed to be a test case issues--(there were three other procedural ones besides the “religious”one) decision the statute forbidding polygamy in the territories was not violative of the First Amendment “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a human sacrifice?” significance religious duty was not a defense to a criminal indictment
  • 23. Religion
  • 24. Religion
  • 25. Cantwell v. Connecticut, (1940) facts A Connecticut statute required licenses for those soliciting for religious or charitable purposes. The statute was an early type of consumer protection law: it required the Secretary, before issuing a certificate permitting solicitation, to determine whether the cause was "a religious one or is a bona fide object of charity or philanthropy" and whether the solicitation "conforms to reasonable standards of efficiency and integrity." Newton Cantwell (a Jehovah's Witness) and his two sons, Jesse and Russel, were proselytizing in a heavily Roman Catholic neighborhood in New Haven, Connecticut. The Cantwells were going door to door, with books and pamphlets and a portable phonograph with sets of records. Each record contained a description of one of the books. One such book was "Enemies", which was an attack on organized religion in general and especially the Roman Catholic Church. Jesse Cantwell stopped two men on the street and requested permission to play a phonograph. They gave permission, and after hearing the recording, the two citizens were incensed; though they wanted to physically assault the Cantwells, they restrained themselves. Cantwell and his two sons were arrested and charged with: (1) violation of a Connecticut statute requiring solicitors to obtain a certificate from the secretary of the public welfare council ("Secretary") before soliciting funds from the public, and (2) inciting a common-law breach of the peace. The Cantwells stated they did not get a license because they did not believe the government had the right to determine whether the Witnesses were a religion. They argued that the statute denied the trio their due process rights under the 14th Amendment, and it also denied them their First Amendment rights to freedom of speech and religious expression [“free exercise”].--Wikipedia
  • 26. Cantwell v. Connecticut, (1940) facts (cont.) The Connecticut Supreme Court disagreed with the Cantwells, finding that the statute was an effort by the state of Connecticut to protect the public against fraud, and as such, the statute was constitutional. The Connecticut Supreme Court upheld the conviction of all three on the statutory charge and affirmed one son's conviction of inciting a breach of the peace, but remanded the inciting a breach of peace charge against the other two for a new trial issue whether the state's action in convicting the Cantwells with inciting a breach of the peace and violating the solicitation statute violated their First Amendment right to free exercise of religion decision Justice Owen Roberts wrote in a unanimous opinion that "to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution." "We hold that the statute, as construed and applied to the appellants, deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment. The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment.” significance Before the Cantwell decision, it was not legally clear that the First Amendment protected religious practitioners against restrictions at the state and local levels as well as federal. But the Supreme Court in Cantwell said it did, thereby ushering in an era of greatly strengthened religious freedom.--Wikipedia
  • 27. Everson v. Board of Education, (1947) facts a New Jersey law authorized payment by local school boards of the costs of transportation to and from schools - including private schools. Of the private schools that benefited from this policy, 96% were parochial Catholic schools. Arch R. Everson, a taxpayer in Ewing Township, filed a lawsuit alleging that this indirect aid to religion through the mechanism of reimbursing parents and students for costs incurred as a result of attending religious schools violated both the New Jersey state constitution and the First Amendment. After a loss in the New Jersey Court of Errors and Appeals, then the state's highest court, Everson appealed to the U.S. Supreme Court on purely federal constitutional grounds. Arguments were heard on November 20, 1946 issue did the Due Process Clause of the Fourteenth Amendment incorporate the Establishment Clause as well as the Free Exercise Clause, as ruled in the Cantwell case seven years earlier? decision The 5-4 decision was handed down on February 10, 1947. The Court, through Justice Hugo Black•, ruled that the state bill was constitutionally permissible because the reimbursements were offered to all students regardless of religion and because the payments were made to parents and not any religious institution significance Perhaps as important as the actual outcome, though, was the interpretation given by the entire Court to the Establishment Clause. It reflected a broad interpretation of the Clause that was to guide the Court's decisions for decades to come--Wikipedia
  • 28. Engle v. Vitale, (1962)
  • 29. Engle v. Vitale, (1962) facts Jewish families brought suit against the 23-word official prayer composed by the NY Board of Regents who had tried to compose one which wouldn’t prefer any religion to another. The prayer: Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country. Amen. 22 states signed an amicus curiae brief urging affirmation of the NY Court of Appeals decision that upheld the constitutionality of the prayer. The American Jewish Committee, the Synagogue Council of America and the American Ethical Union each submitted briefs urging the Court to reverse issue was this supposedly neutral prayer violative of the Establishment Clause? decision
  • 30. Engle v. Vitale, (1962) facts Jewish families brought suit against the 23-word official prayer composed by the NY Board of Regents who had tried to compose one which wouldn’t prefer any religion to another. The prayer: Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country. Amen. 22 states signed an amicus curiae brief urging affirmation of the NY Court of Appeals decision that upheld the constitutionality of the prayer. The American Jewish Committee, the Synagogue Council of America and the American Ethical Union each submitted briefs urging the Court to reverse issue was this supposedly neutral prayer violative of the Establishment Clause? decision Justice Hugo Black, writing for the 6-1 majority, ruled that government-written prayers were not to be recited in public schools. He “rejected the defendant's arguments that people are not asked to respect any specific established religion; and that the prayer is voluntary. The Court held that the mere promotion of a religion is sufficient to establish a violation, even if that promotion is not coercive. The Court further held that the fact that the prayer is vaguely worded enough not to promote any particular religion is not a sufficient defense…--Wikipedia
  • 31. Engle v. Vitale, (1962) facts Jewish families brought suit against the 23-word official prayer composed by the NY Board of Regents who had tried to compose one which wouldn’t prefer any religion to another. The prayer: Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country. Amen. 22 states signed an amicus curiae brief urging affirmation of the NY Court of Appeals decision that upheld the constitutionality of the prayer. The American Jewish Committee, the Synagogue Council of America and the American Ethical Union each submitted briefs urging the Court to reverse issue was this supposedly neutral prayer violative of the Establishment Clause? decision Justice Hugo Black, writing for the 6-1 majority, ruled that government-written prayers were not to be recited in public schools. He “rejected the defendant's arguments that people are not asked to respect any specific established religion; and that the prayer is voluntary. The Court held that the mere promotion of a religion is sufficient to establish a violation, even if that promotion is not coercive. The Court further held that the fact that the prayer is vaguely worded enough not to promote any particular religion is not a sufficient defense…--Wikipedia
  • 32. Engle v. Vitale, (1962) significance Subsequent jurisprudence: Engle became the basis for several subsequent decisions limiting government-directed prayer in school Wallace v. Jaffree (1985), the Supreme Court ruled Alabama’s law permitting prayer or meditation was unconstitutional Lee v. Weismann (1992), the Court prohibited clergy-led prayer at middle school graduation ceremonies Lee v. Weismann, in turn, was the basis for Santa Fe ISD v. Doe (2000), in which the Court extended the ban to school-organized student-led prayer at high school football games
  • 33. Engle v. Vitale, (1962) significance Subsequent jurisprudence: Engel became the basis for several subsequent decisions limiting government-directed prayer in school Wallace v. Jaffree (1985), the Supreme Court ruled Alabama’s law permitting prayer or meditation was unconstitutional Lee v. Weismann (1992), the Court prohibited clergy-led prayer at middle school graduation ceremonies Lee v. Weismann, in turn, was the basis for Santa Fe ISD v. Doe (2000), in which the Court extended the ban to school-organized student-led prayer at high school football games “the most hated woman in America”-Madalyn Murray O’Hair Murray v. Curlett (1963), ended official Bible-reading in American Public Schools 1995 she was kidnapped, murdered, and her body mutilated, along with her son Jon Murray and granddaughter Robin Murray O'Hair, by former American Atheist office manager David Roland Waters--Wikipedia
  • 34. Abington School District v. Schempp, (1963) http://www.firstamendmentcenter.org/ faq/frequently-asked-questions -religious-liberty The Court decided 8–1 in favor of the respondent, Edward Schempp, and declared school-sponsored Bible reading in public schools in the United States to be unconstitutional. [O]ur interpretation of the First Amendment must necessarily be responsive to the much more highly charged nature of religious questions in contemporary society. A too literal quest for the advice of the Founding Fathers upon the issues of these cases seems to me futile and misdirected. Wikipedia Justice Brennan, in a concurring opinion, took a swipe at “original intent,” as follows: William J. Brennan, Jr. Associate Justice 1956-1990 leader of the Court’s liberal wing
  • 35. Abington School District v. Schempp, (1963) However, the Court indicated that public school education may include teaching about religion. Associate Justice Tom Clark wrote for the Court: “[I]t might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.” http://www.firstamendmentcenter.org/faq/frequently-asked-questions-religious-liberty The Court decided 8–1 in favor of the respondent, Edward Schempp, and declared school-sponsored Bible reading in public schools in the United States to be unconstitutional. [O]ur interpretation of the First Amendment must necessarily be responsive to the much more highly charged nature of religious questions in contemporary society. A too literal quest for the advice of the Founding Fathers upon the issues of these cases seems to me futile and misdirected. Wikipedia Justice Brennan, in a concurring opinion, took a swipe at “original intent,” as follows: Thomas Campbell Clark US Attorney General 1945-1949 Associate Justice 1949-1967
  • 36. Minersville School District v. Gobitis, (1940)
  • 37. Minersville School District v. Gobitis, (1940) facts 1935-Jehovah’s Witness leadership advise parents to instruct their children to refuse to salute the flag and pledge allegiance in school 1938-Walter Gobitis instructs William and Lillian to refuse. They are the object of considerable taunting. The predominantly Roman Catholic community sees this as an occasion for getting back at the troublesome Witnesses 1940-after losing at the District and Third Circuit Court of Appeals on “free exercise” grounds, the school district appealed to the USSC issue did the First Amendment, as applied to the government of PA by the Fourteenth Amendment’s “due process” clause, protect the Witnesses?
  • 38. Minersville School District v. Gobitis, (1940) decision 8-1, the Court upheld the mandatory flag salute declining to make itself “the school board of the country” Justice Frankfurter, writing the majority decision, relied on the “secular regulation” rule. The school district’s interest in creating national unity was enough to allow them to make the salute mandatory Felix Frankfurter Associate Justice 1939-1962
  • 39. Minersville School District v. Gobitis, (1940) decision 8-1, the Court upheld the mandatory flag salute declining to make itself “the school board of the country” Justice Frankfurter, writing the majority decision, relied on the “secular regulation” rule. The school district’s interest in creating national unity was enough to allow them to make the salute mandatory Justice Harlan Stone, the sole dissenter: Harlan Fiske Stone 12th Chief Justice 1941-1946 Associate Justice, USSC 1925-1941
  • 40. Minersville School District v. Gobitis, (1940) decision 8-1, the Court upheld the mandatory flag salute declining to make itself “the school board of the country” Justice Frankfurter, writing the majority decision, relied on the “secular regulation” rule. The school district’s interest in creating national unity was enough to allow them to make the salute mandatory Justice Harlan Stone, the sole dissenter: The guarantees of civil liberty are but guarantees of freedom of the human mind and spirit and of reasonable freedom and opportunity to express them...The very essence of the liberty which they guarantee is the freedom of the individual from compulsion as to what he shall think and what he shall say... effects of the decision the ACLU reported that nearly 1,500 Witnesses were physically attacked in more than 300 communities nationwide. One Southern sheriff told a reporter why Witnesses were being run out of town: ” They’re traitors; the Supreme Court says so. Ain’t you heard?”
  • 41. West Virginia State Board of Education v. Barnette, (1943) facts 1942-following Gobitis (and Pearl Harbor), the West VA State Bd of Ed made patriotic classes and a daily flag pledge compulsory the Barnettes brought suit in fed District Court citing Exodus 20; 4 & 5 'Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them.' issue unlike the Gobitis case where “free exercise” was alleged , this argument by Barnette’s lawyers took the line of Justice Stone’s dissent. They argued that the Free Speech Clause gave the Barnette children the right to not say something the State argued res judicata (the matter, [already] having been judged, i.e. settled law)
  • 42. West Virginia State Board of Education v. Barnette, (1943) decision 6-3, the Court overturned Gobitis and held that compelling public school children to salute the flag against their religious beliefs violated their freedom of speech Justice Robert Jackson, writing the majority opinion: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Robert H. Jackson Associate Justice 1941-1954 International Military Tribunal 1945-1946
  • 43. West Virginia State Board of Education v. Barnette, (1943) decision 6-3, the Court overturned Gobitis and held that compelling public school children to salute the flag against their religious beliefs violated their freedom of speech Justice Robert Jackson, writing the majority opinion: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." significance after Barnette the Court turned away from the doctrine that belief was protected but not action stemming from that belief. It created exemptions for believers of different faiths: in Sherbert v. Verner (1963), the Court upheld a Seventh-Day Adventist’s claim to unemployment benefits even though she declined to make herself available to work on Saturday (her Sabbath) in Wisconsin v. Yoder (1972), the Court upheld the right of Amish parents to not send their children to public schools past the eighth grade
  • 44. Speech
  • 45. There is a long history of government suppression of sedition [“the "notion of inciting by words or writings disaffection towards the state” Elizabethan statute, ca. 1590 --Wiki]. The Sedition Act of 1798• ,which Adams and the Federalists had passed during the Quasi-War with France, was the first American example. Jefferson and his followers disapproved and urged the first attempt at nullification (state refusal to enforce a federal law). jbp
  • 46. There is a long history of government suppression of sedition [“the "notion of inciting by words or writings disaffection towards the state” Elizabethan statute, ca. 1590 --Wiki]. The Sedition Act of 1798, which Adams and the Federalists had passed during the Quasi-War with France, was the first American example. Jefferson and his followers disapproved and urged the first attempt at nullification (state refusal to enforce a federal law). Lincoln’s rough, sometimes unconstitutional, handling of the Copperheads is another example. Our first consideration of whether the Free Speech Clause might apply in such cases is dated from World War I and the post-war “Red Scare.” The cases, Schenck and Gitlow. jbp
  • 47. From Schenck to Abrams (1919) in Schenck v. U.S. (1919), the Court upheld the constitutionality of the Espionage Act of 1917. The defendant did not have a First Amendment right to speak against the draft in WW I Oliver Wendell Holmes in a unanimous decision: The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] 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 --Wikipedia Oliver Wendell Holmes, Jr. (1841-1935) Associate Justice (1902-1932)
  • 48. From Schenck to Abrams (1919) in Schenck v. U.S. (1919), the Court upheld the constitutionality of the Espionage Act of 1917. The defendant did not have a First Amendment right to speak against the draft in WW I Oliver Wendell Holmes in a unanimous decision: The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] 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 --Wikipedia the Abrams case came a few months later. Now Holmes would make his “Great Dissent”-Thomas Healy in The Great Dissent; How Oliver Wendell Holmes Changed His Mind-- And Changed the History of Free Speech in America (2013) facts the Red Scare (1919-1920) led to convictions and deportations of a variety of American leftists. When anarchist bombers blew up the Attorney General’s house (almost killing FDR & Eleanor!) the Palmer raids began
  • 49. Abrams to Gitlow v. New York, (1925) in Schenck v. U.S. (1919)... Oliver Wendell Holmes in a unanimous decision: ...not protect a man in falsely shouting fire in a theatre and causing a panic. [...] a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent --Wikipedia the Abrams case came a few months later. Now Holmes would make his “Great Dissent” facts Abrams had leafleted his opposition to U.S. intervention in the Russian Civil War decision Justice Clarke proposed a looser test, “bad tendency” in the decision finding Abrams guilty
  • 50. Abrams to Gitlow v. New York, (1925) in Schenck v. U.S. (1919)... Oliver Wendell Holmes in a unanimous decision: ...not protect a man in falsely shouting fire in a theatre and causing a panic. [...] a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent --Wikipedia the Abrams case came a few months later. Now Holmes would make his “Great Dissent” facts Abrams had leafleted his opposition to U.S. intervention in the Russian Civil War decision Justice Clarke proposed a looser test, “bad tendency” in the decision finding Abrams guilty Holmes, joined by Brandeis, wrote that there was no “clear and present danger,” and that that stricter test should apply the Gitlow case would complete the Red Scare, Free Speech drama Louis Brandeis on the Court 1916-1939 O.W. Holmes, Jr. on the Court 1902-1932
  • 51. Gitlow v. New York, (1925) facts 1919-Benjamin Gitlow, a NY State Assemblyman (!), was charged with criminal anarchy for publishing “Left Wing Manifesto” in The Revolutionary Age, a newspaper for which he served as business manager 1920-convicted, he served 2 years in Sing Sing before coming out on appeal. The first First Amendment case argued by the ACLU before the USSC issues jurisdiction-could the Court begin incorporating? merits of the case decision the NY State conviction was upheld upheld-7-2 with Brandeis & Holmes dissenting significance began the selective incorporation of the First Amendment, “...Freedom of Speech”
  • 52. the liberalizing trend continues In Whitney v. CA, (1927), Brandeis wrote another stirring dissent: Those who won our independence ... believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.--Wikipedia In Herndon v. Lowry (1937), the Court heard the case of African American Communist Party organizer Angelo Herndon, who had been convicted under the Slave Insurrection Statute(!) for advocating black rule in the southern United States. In a 5-4 decision, the Court reversed Herndon's conviction, upholding Holmes' "clear and present danger" test for the first time and arguing that the state of Georgia had not demonstrated that Herndon's actions met this standard--Wiki The Smith Act (1940) continued to grapple with the Communist threat vs. free speech. Conservatives fought a rear guard action throughout the ‘50s. jbp
  • 53. With the ‘60s, the flood gates open-i During the Vietnam War, the Court's position on public criticism of the government changed drastically. [emphasis added, jbp]Though the Court upheld a law prohibiting the forgery, mutilation, or destruction of draft cards in United States v. O'Brien (1968), fearing that burning draft cards would interfere with the "smooth and efficient functioning" of the draft system, the next year, the court handed down its decision in Brandenburg v. Ohio (1969), expressly overruling Whitney v. California. Now the Supreme Court referred to the right to speak openly of violent action and revolution in broad terms: Brandenburg discarded the "clear and present danger" test introduced in Schenck and further eroded Dennis. In Cohen v. California (1971), the Court voted 5-4 to reverse the conviction of a man wearing a jacket reading "Fuck the Draft" in the corridors of a Los Angeles County courthouse. Justice John Marshall Harlan wrote in the majority opinion that Cohen's jacket fell in the category of protected political speech despite the use of an expletive: "one man's vulgarity is another man's lyric." Wikipedia [Our] decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not allow a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action.
  • 54. A whole litany of speech categories; some protected, some not anonymous speech political campaign contributions flag desecration commercial speech school speech falsifying military awards defamation--(libel vs slander) “fighting words” obscenity pornography intellectual property rights government as regulator of “airwaves” (not cyberspace)
  • 55. Obscenity “(The public, of course, has much greater interest here than in most legal developments, the conjunction of sex and politics being an irresistible locus for news and conversation.)”…. Nothing has ever been censored on the ground that it had a tendency to promote dishonesty or cruelty or cowardice. No significant legislative attempt has ever been made to suppress books except to preserve the political order, the established piety or theoretical standards of sexual behavior. Charles Rembar,The End of Obscenity; The Trials of Lady Chatterley, Tropic of Cancer & Fanny Hill. New York: Harper & Row, 1968. pp. xi, 21
  • 56. With the ‘60s, the flood gates open-ii We all are old enough to remember the movies of the ‘40s and ‘50s. Then a flood of sexually explicit films came when Hollywood embraced the Counterculture. My eye-opener was when Henry Fonda’s little girl (actually 31-years-old by then) starred in Barbarella (1968)
  • 57. With the ‘60s, the flood gates open-ii We all are old enough to remember the movies of the ‘40s and ‘50s. Then a flood of sexually explicit films came when Hollywood embraced the Counterculture. My eye-opener was when Henry Fonda’s little girl (actually 31-years-old by then) starred in Barbarella (1968)
  • 58. You get the idea...
  • 59. Where to draw the line! 1873-Comstock Act-federal law making it illegal to send “obscene” material through the mail (including contraceptives and information about their use) 24 states passed similar laws
  • 60. Where to draw the line! 1873-Comstock Act-federal law making it illegal to send “obscene” material through the mail (including contraceptives and information about their use) 24 states passed similar laws the Hicklin test-a Victorian definition of obscenity: all material tending "to deprave and corrupt those whose minds are open to such immoral influences" was obscene, regardless of its artistic or literary merit”-Wiki 1957- Roth v. U.S.-Justice Brennan wrote the 6-3 decision replacing Hicklin: defined obscenity more strictly, as material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards."-Wiki
  • 61. Where to draw the line! 1873-Comstock Act-federal law making it illegal to send “obscene” material through the mail (including contraceptives and information about their use) 24 states passed similar laws the Hicklin test-a Victorian definition of obscenity: all material tending "to deprave and corrupt those whose minds are open to such immoral influences" was obscene, regardless of its artistic or literary merit”-Wiki 1957- Roth v. U.S.-Justice Brennan wrote the 6-3 decision replacing Hicklin: defined obscenity more strictly, as material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards."-Wiki 1964- Jacobeillis v. OH-here, Potter Stewart Potter Stewart (1915-1985) Associate Justice (1958-1981)
  • 62. Where to draw the line! 1873-Comstock Act-federal law making it illegal to send “obscene” material through the mail (including contraceptives and information about their use) 24 states passed similar laws the Hicklin test-a Victorian definition of obscenity: all material tending "to deprave and corrupt those whose minds are open to such immoral influences" was obscene, regardless of its artistic or literary merit”-Wiki 1957- Roth v. U.S.-Justice Brennan wrote the 6-3 decision replacing Hicklin: defined obscenity more strictly, as material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards."-Wiki 1964- Jacobeillis v. OH-here, Potter Stewart, concurring, famously: "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [hard-core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that." (emphasis added) -Wiki as a result of this loosening of standards, Hollywood and the importers of foreign films unleashed a torrent of “skin flicks”
  • 63. Miller v. California, (1973) the justices of the Warren Court (1953-1969) came to regret having to watch porno films and make the call in each case
  • 64. Miller v. California, (1973) the justices of the Warren Court (1953-1969) came to regret having to watch porno films and make the call in each case the Burger Court (1969-1986) was ready for a new rule facts 1971-Marvin Miller, owner of a mail-order “porno” shop mailed a graphic brochure to a man whose mother opened it. They called the cops. The CA courts sustained Miller’s conviction under CA Penal Code 311.2.(a): “Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, produces, or prints, with intent to distribute or to exhibit to others, or who offers to distribute, distributes, or exhibits to others, any obscene matter is for a first offense, guilty of a misdemeanor." issue would the Burger Court retain the Roth Rule?
  • 65. Miller v. California, (1973) decision (5-4) except in rare cases, censorship is unconstitutional "[t]he basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." The Court rejected the "utterly without redeeming social value" test of the Memoirs decision--www.oyez.org significance the Court signaled that it had had enough of these cases and that, hereafter, the burden would rest with the “community “ courts to determine their “community standards”
  • 66. Miller v. California, (1973) a nice feature of www.Oyez.org: It orders the pictures of the deciding judges by: vote seniority ideology
  • 67. Press
  • 68. Colonial America has the honor of beginning the campaign to limit press censorship. In 1733 John Peter Zenger, a German-American printer, publisher, editor and journalist in New York City published a series of articles critical of the Royal Governor, William Cosby. He was charged with seditious libel. In 1735 the jury agreed with his lawyer that truth was defense against the charge. jbp
  • 69. Justice Stewart has argued: “That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of the critical role played by the press in American society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively.” The Annotated Constitution @ http://www.law.cornell.edu/anncon/html/amdt1bfrag2_user.html#amdt1b_hd6
  • 70. Justice Stewart has argued: “That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of the critical role played by the press in American society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively.” But as Chief Justice Burger wrote: • “The Court has not yet squarely resolved whether the Press Clause confers upon the ‘institutional press’ any freedom from government restraint not enjoyed by all others.” The Annotated Constitution @ http://www.law.cornell.edu/anncon/html/amdt1bfrag2_user.html#amdt1b_hd6 Warren E. Burger (1907-1995) 15th Chief Justice (1969-1986)
  • 71. scope? 1938-in yet another ‘30s Jehovah’s Witness case, Lovell v. City of Griffin, Chief Justice Hughes wrote the 7-1 decision: Charles Evans Hughes 11th Chief Justice 1930-1941 Associate Justice 1910-1931
  • 72. scope? 1938-in yet another ‘30s Jehovah’s Witness case, Lovell v. City of Griffin, Chief Justice Hughes wrote the 7-1 decision: the city of Griffin, GA could not require licensing of all periodicals, whether or not “obscene, offensive to public morals, or advocating unlawful conduct” the First Amendment was not limited to newspapers and periodicals. It included leaflets and pamphlets as well such as those distributed by Witness Alma Lovell press freedom has also been applied to plays, movies, and video games. Not yet to social media and blogs!
  • 73. Near v. Minnesota, (1931) facts 1927-Jay Near, characterized as “anti-Catholic, anti-Semitic, anti-black and anti- labor,”began publishing The Saturday Press in Minneapolis with Howard Guilford, a former mayoral candidate who had been convicted of criminal libel one of his many targets, future three-time governor Floyd Olson, filed charges under the Public Nuisance Law of 1925 it provided permanent injunctions against those who created a "public nuisance," by publishing, selling, or distributing a "malicious, scandalous and defamatory newspaper." after losing twice in the Minnesota Supreme Court, Near was able to get a hearing before the USSC issue the constitutionality of the Minnesota law
  • 74. Near v. Minnesota, (1931) decision except in rare cases, censorship is unconstitutional "For these reasons we hold the statute to be an infringement of the liberty of the press guaranteed by the Fourteenth Amendment. We should add that this decision rests upon the operation and effect of the statute, without regard to the question of the truth of the charges contained in the particular periodical. The fact that the public officers named in this case, and those associated with the charges of official dereliction, may be deemed to be impeccable cannot affect the conclusion that the statute imposes an unconstitutional restraint upon publication." significance with certain exceptions (sailing dates of transports or location and numbers of troops in wartime) Near declared prior restraint unconstitutional the issue will be revisited in a famous case: New York Times Co. v. Sullivan (1964)
  • 75. New York Times Co. v. Sullivan, (1964) facts 1960-the Times published a full-page ad by civil rights advocates (including our Fred Shuttlesworth) critical of Alabama State Police. Montgomery Public Safety commissioner Sullivan sued for libel. At this time there were judgements of nearly $300 million outstanding against newspapers printing civil rights stories. Sullivan won $500,000 in an Alabama court judgement issue did Constitutional protections apply here? decision The Court ruled for The Times, 9–0. The rule of law applied by the Alabama courts was found constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct. The decision further held that under the proper safeguards the evidence presented in this case is constitutionally insufficient to support the judgment for Sullivan--Wiki
  • 76. New York Times Co. v. Sullivan, (1964) significance actual malice The Court held that a public official suing for defamation must prove that the statement in question was made with actual malice, which in this context refers to knowledge or reckless lack of investigation, rather than the ordinary meaning of malicious intent. In his concurring opinion, Justice Black• explained that "'[m]alice,' even as defined by the Court, is an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides at best an evanescent protection for the right critically to discuss public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amendment."
  • 77. New York Times Co. v. United States, (1971) facts 1969-anti-war activist Daniel Ellsberg illegally photocopied a Pentagon study of the the U.S. involvement in Viet Nam, 1945-1967. It contained evidence of LBJ’s administration systematically lying to Congress and the public he shopped it to Nixon, Kissinger, Fulbright and McGovern. Not interested February 1971-then anti-war NYT reporter Neil Sheehan was interested June 13, 1971- The Times began publication. Street protests, political controversy and lawsuits followed the Nixon Administration enjoined. The case rose rapidly issue did this prior restraint meet the Near test? decision June 30, 1971-The Court ruled for The Times, 6–3. The government didn’t meet the heavy burden of proof here.--Wiki
  • 78. New York Times Co. v. United States, (1971) decision June 30, 1971-The Court ruled for The Times, 6–3. The government didn’t meet the heavy burden of proof here.--Wiki the difficulty of the case is demonstrated by the fact that nine separate opinions were written! In its per curiam opinion the Court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case. Justices Black and Douglas argued that the vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment." Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified--Oyez.org significance Times v. United States is generally considered a victory for an extensive reading of the First Amendment, but as the Supreme Court ruled on whether the government had made a successful case for prior restraint, its decision did not void the Espionage Act or give the press unlimited freedom to publish classified documents--Wiki
  • 79. Hustler Magazine v. Falwell, (1988) facts 1983-notorious boundary-pusher, Larry Flynt, published an outrageous parody of Christian fundamentalist Jerry Falwell
  • 80. Hustler Magazine v. Falwell, (1988) facts 1983-notorious boundary-pusher, Larry Flynt, published an outrageous parody of Christian fundamentalist Jerry Falwell in the parody, Falwell relates having his “first time” with his mother in an outhouse
  • 81. Hustler Magazine v. Falwell, (1988) facts 1983-notorious boundary-pusher, Larry Flynt, published an outrageous parody of Christian fundamentalist Jerry Falwell in the parody, Falwell relates having his “first time” with his mother in an outhouse “fine print” disclaimer
  • 82. Hustler Magazine v. Falwell, (1988) facts 1983-notorious boundary-pusher, Larry Flynt, published an outrageous parody of Christian fundamentalist Jerry Falwell in the parody, Falwell relates having his “first time” with his mother in an outhouse Falwell sued in the US District Court of Western Virginia for: libel, invasion of privacy, and intentional infliction of emotional distress the Court granted Flynt’s motion for summary judgement on the invasion of privacy claim and the other two went to trial. A jury found for Flynt on the libel claim but for Falwell on the last & awarded him $150,000 Fourth Circuit upheld, so Flynt appealed to the USSC issue the “chilling effect” of the award
  • 83. Hustler Magazine v. Falwell, (1988) decision a unanimous (8-0, Justice Kennedy took no part in the case) in favor of Flynt “Although false statements lack inherent value, the "breathing space" that freedom of expression requires in order to flourish must tolerate occasional false statements, lest there be an intolerable chilling effect on speech that does have constitutional value Clearly, Falwell was a pubic figure for purposes of First Amendment law. Because the district court found in favor of Flynt on the libel charge, there was no dispute as to whether the parody could be understood as describing facts about Falwell or events in which he participated. Accordingly, because the parody did not make false statements that were implied to be true, it could not be the subject of damages under the New York Times actual-malice standard. The Court thus reversed the judgment of the Fourth Circuit--Wikipedia significance strengthened the earlier distinction (in NYT v. Sullivan) between public figures and ordinary citizens, here in malicious infliction of emotional damage
  • 84. Assembly & Petition
  • 85. The right of petition took its rise from the modest provision made for it in chapter 61 of Magna Carta (1215). To this meagre beginning are traceable, in some measure, Parliament itself and its procedures in the enactment of legislation, the equity jurisdiction of the Lord Chancellor, and proceedings against the Crown by “petition of right.” Thus, while the King summoned Parliament for the purpose of supply, the latter —but especially the House of Commons—petitioned the King for a redress of grievances as its price for meeting the financial needs of the Monarch, and as it increased in importance it came to claim the right to dictate the form of the King’s reply, until, in 1414, Commons declared itself to be “as well assenters as petitioners.” Two hundred and fifty years later, in 1669, Commons further resolved that every commoner in England possessed “the inherent right to prepare and present petitions” to it “in case of grievance,” and of Commons “to receive the same” and to judge whether they were “fit” to be received. Finally Chapter 5 of the Bill of Rights of 1689 asserted the right of the subjects to petition the King and “all commitments [imprisonments-jbp] and prosecutions for such petitioning to be illegal.” The Annotated Constitution
  • 86. Processions for the presentation of petitions in the United States have not been particularly successful. In 1894 General Coxey of Ohio organized armies• of unemployed to march on Washington and present petitions, only to see their leaders arrested for unlawfully walking on the grass of the Capitol. The Annotated Constitution
  • 87. Processions for the presentation of petitions in the United States have not been particularly successful. In 1894 General Coxey of Ohio organized armies• of unemployed to march on Washington and present petitions, only to see their leaders arrested for unlawfully walking on the grass of the Capitol. The march of the veterans on Washington in 1932 demanding bonus• legislation was defended as an exercise of the right of petition. The Administration, however, regarded it as a threat against the Constitution and called out the army to expel the bonus marchers and burn their camps. Marches and encampments have become more common since, but the results have been mixed. The Annotated Constitution
  • 88. United States v. Cruikshank, (1876) facts 1873-a white militia attacked and killed 100-260 Republican freedmen who were assembled at the Courthouse in Colfax, LA to prevent a Dem. takeover part of the violent struggle over Reconstruction, some of the white mob were indicted under the federal Enforcement Act of 1870. It made it a felony for anyone to conspire to deprive another of his constitutional rights issue this was an early attempt to incorporate the AM I Freedom of Assembly & Petition Clause under the recently ratified AM XIV.1 decision The Court found that the First Amendment right to assembly "was not intended to limit the powers of the State governments in respect to their own citizens" and that the Second Amendment "has no other effect than to restrict the powers of the national government."--Wiki
  • 89. United States v. Cruikshank, (1876) significance with regard to Reconstruction: Constitutional commentator Leonard Levy wrote, "Cruikshank paralyzed the federal government's attempt to protect black citizens by punishing violators of their Civil Rights and, in effect, shaped the Constitution to the advantage of the Ku Klux Klan." Federal civil rights enforcement was blocked by Cruikshank until 1966 (United States v. Price; United States v. Guest) when the Court vitiated Cruikshank with regard to AM II Cruikshank has also been cited for over a century by supporters of restrictive state and local gun control laws such as the Sullivan Act….Cruikshank and Presser v. Illinois, which reaffirmed it in 1886, are the only significant Supreme Court interpretations of the Second Amendment until the murky United States v. Miller in 1939, but both preceded the court's general acceptance of the incorporation doctrine and have been questioned for that reason. However, the majority opinion of the Supreme Court in District of Columbia v. Heller in 2008 clearly suggested that Cruikshank and the chain of cases flowing from it would no longer be considered good law as a result of the radically changed view of the Fourteenth Amendment when that issue eventually comes before the courts
  • 90. Hague v. C.I.O., (1939) facts 1937-Jersey City, NJ, “Boss” Frank Hague used a city ordinance to stop labor meetings in public places and the distribution of literature pertaining to the C.I.O.’s cause part of the worldwide intemperance of the ‘30s, conservatives like Hague branded the C.I.O. “communist issue did the ordinance violate the AM I Freedom of Assembly & Petition Clause ?
  • 91. Hague v. C.I.O., (1939) decision The Court, though splintered with regard to reasoning and rationale, struck down an ordinance which vested an uncontrolled discretion in a city official to permit or deny any group the opportunity to conduct a public assembly in a public place. Justice Roberts•, in an opinion which Justice Black•joined and with which Chief Justice Hughes concurred, found protection against state abridgment of the rights of assembly and petition in the privileges and immunities clause of the Fourteenth Amendment. “The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions]may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.” Justices Stone•and Reed invoked the due process clause of the Fourteenth Amendment for the result, thereby claiming the rights of assembly and petition for aliens as well as citizens. “I think respondents’ right to maintain it does not depend on their citizenship and cannot rightly be made to turn on the existence or non– existence of a purpose to disseminate information about the National Labor Relations Act. It is enough that petitioners have prevented respondents from holding meetings and disseminating information whether for the organization of labor unions or for any other lawful purpose.” This due process view of Justice Stone has carried the day over the privileges and immunities approach.--Wiki
  • 92. With the ‘60s, the flood gates open-iii As Negro civil rights marches and protests morphed into anti- war demonstrations, into feminist, Latino, American Indian and, finally, Gay Rights “actions;” the Warren Court had to revisit the issue of city responsibility for law and order, traffic control, public safety &c. and First Amendment rights. jbp
  • 93. Shuttlesworth v. Birmingham, (1969) facts 1963-Birmingham minister, co-founder with MLK, jr. of the SCLC, “Freddie” Shuttlesworth initiated the Birmingham Campaign of that year 1922-2011
  • 94. Shuttlesworth v. Birmingham, (1969) facts 1963-Birmingham minister, co-founder with MLK, jr. of the SCLC, “Freddie” Shuttlesworth initiated the Birmingham Campaign of that year he was “arrested and convicted for violating 1159 of the city's General Code, an ordinance which proscribes participating in any parade or procession on city streets or public ways without first obtaining a permit from the City Commission. Section 1159 permits the Commission to refuse a parade permit if its members believe "the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused."--Wiki the AL Appeals Court reversed his conviction, The AL SC reinstated it, whereupon he appealed to the USSC issue the constitutionality of the Birmingham ordinance, hence the validity of the conviction
  • 95. Shuttlesworth v. Birmingham, (1969) decision Writing for the court, Justice Potter Stewart held that (1) even though the actual construction of § 1142 of the Birmingham General City Code was unconstitutional, the judicial construction of the ordinance prohibited only standing or loitering on public property that obstructed free passage, but it was unclear from the record, whether the literal or judicial construction was applied; and (2) the literal construction of § 1132 of the Birmingham General City Code was unconstitutional, and the statutory application revealed that it applied to the enforcement of an officer's order in directing vehicular traffic. Even though Justice Stewart's opinion for the Court mentioned that "the Supreme Court of Alabama performed a remarkable job of plastic surgery upon the face of the ordinance", the Court reversed Shuttlesworth's conviction because the circumstances indicated that the parade permit was denied not to control traffic, but to censor ideas--Wiki significance shows the “weeds” down into which the Court gets to apply the First Amendment law
  • 96. only yesterday The 21st century cases made clear that the devil was in the details: the where, when, how orderly and for what purpose the assembly. Recent cases have accepted confining demonstrations to increasingly limited “free speech zones.” jbp
  • 97. only yesterday The 21st century cases made clear that the devil was in the details: the where, when, how orderly and for what purpose the assembly. Recent cases have accepted confining demonstrations to increasingly limited “free speech zones.” The abuses of anarchists opposing “globalization” at economic summits jbp
  • 98. only yesterday The 21st century cases made clear that the devil was in the details: the where, when, how orderly and for what purpose the assembly. Recent cases have accepted confining demonstrations to increasingly limited “free speech zones.” The abuses of anarchists opposing “globalization” at economic summits, PETA nudity displays, jbp
  • 99. only yesterday The 21st century cases made clear that the devil was in the details: the where, when, how orderly and for what purpose the assembly. Recent cases have accepted confining demonstrations to increasingly limited “free speech zones.•” The abuses of anarchists opposing “globalization” at economic summits, PETA nudity displays, OWS setting fires in Oakland, all push the pendulum back towards more government limits. jbp
  • 100. These cases all illustrate the power of the U.S. Supreme Court to interpret and apply the law--from the Constitution down to municipal ordinances. Equally apparent in these examples is the significant long term effect of Presidential appointments (and Senate confirmations) on the ideology of the Court. The long conservative orientation of 19th century Republican era wouldn’t change until the T.R., Wilson, and especially, FDR appointees began the liberal swing to the Warren Court (1953-1969). The pendulum swung back recently. It augurs to do so again. The issue of “gun control” is excruciatingly partisan. The Court’s composition will be decisive in how the Second Amendment will be interpreted. Let’s look at the record. But that’s another story... jbp