Supreme Court Case Research Melanie Rosen
PROTECTED SPEECH Freedom of speech in the United States is protected by the First Amendment of the United States Constitution and by many state constitutions and state and federal laws. The freedom is not absolute; the Supreme Court of the United States has recognized several categories of speech that are excluded from the freedom of speech, and it has recognized that governments may enact reasonable time, place, or manner restrictions on speech.
PROTECTED SPEECH CONT. There are three types of speech: – Core Political Speech: This is the most highly guarded form of speech because of its purely expressive in nature and important to a functional republic. – Commercial Speech: Not outside the protection of the First Amendment is speech motivated by profit. Such speech still has expressive value although it is being uttered in a marketplace ordinarily regulated by the state.
PROTECTED SPEECH CONT. – Expressive Conduct: While freedom of expression by non- speech means is commonly thought to be protected under the First Amendment, the Supreme Court has only recently taken this view. As late as 1968, the Supreme Court stated that regulating non-speech can justify limitations on speech. The Court carried this distinction between speech and expression through the early part of the 1980s. It was not until the flag-burning cases of 1989 (Texas v. Johnson) and 1990 (United States v. Eichman), that the Supreme Court accepted that non-speech means applied to freedom of expression and freedom of speech.Texas v. JohnsonUnited States v. Eichman
SCHENK V. US, 1919
BACKGROUND During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment.
DECISION 9 votes for United States, 0 votes against
CONSEQUENCES OF DECISION Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. The character of every act depends on the circumstances.
CONSEQUENCES OF DECISION CONT. "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." During wartime, utterances tolerable in peacetime can be punished.
BRANDENBURG V. OHIO, 1969
BACKGROUND Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."
DECISION 8 votes for Brandenburg, 0 votes against
CONSEQUENCES OF DECISION The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and
CONSEQUENCES OF DECISION CONT. (2) it is "likely to incite or produce such action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.
CITATION PAGE "American Civil Liberties Union." American Civil Liberties Union. ACLU, n.d. Web. 25 Mar BRANDENBURG v. OHIO. The Oyez Project at IIT Chicago-Kent College of Law. 25 March SCHENCK v. UNITED STATES. The Oyez Project at IIT Chicago-Kent College of Law. 25 March