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Critical Analysis of Cases Concerning Free Speech: Tinker Versus Des Moines Case
Part 1
A. Schenck v. United States was a case that would define the limits of the First Amendments right to free speech. Following the United States’ entrance into the first world war, the Espionage Act was passed. The goal of the act was to prohibit interference with recruiting and military operations and also the aiding of the enemy in wartime. Charles Schenck was against the war, so he helped to distribute leaflets to draftees disencouraging them to join the war. Schenck was then indicted for violating the Espionage Act. In the Supreme court, it was argued that his conviction had violated his First Amendment right. However, In a unanimous decision, the Court upheld Schencks conviction. The opinion written by Justice Oliver Wendell Holmes said that the Supreme Court determined that Schenck had sabotaged the draft. He also said that in ordinary times this act of speech would be protected, a nation at war allowed for greater restrictions on free speech. Justice Holmes then wrote, 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 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. (Epstein 342) Justice Holmess opinion constituted as the first and substantial explication of free speech. This opinion provided the court with the clear and present danger test. Framing these cases and setting a standard in which these future cases would be adjudicated. The question that would be asked in every case involving free speech would be 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 (343).
Another case in the evolution of free speech was Whitney v. California. The case was brought before the court because Charlotte Whitney a founder of the Communist Labor Party of California, was prosecuted by the state of California under their Syndicalism Act. She was prosecuted because of her help in organizing a group that sought political and economic change through violence. The question asked to the Justices, in this case, was whether the Syndicalism Act violated the First and Fourteenth Amendments. In a unanimous decision, the court decided sustained Charlotte Whitneys conviction and held that the Syndicalism Act did not violate the constitution. In his concurring opinion, Justice Brandeis argued that the restrictions of government action through the First and Fourteenth Amendments did not extend to situations in which speech creates a clear and present danger of an evil outcome. (350)
In the case of Brandenburg v. Ohio, Brandenburg, a Ku Klux Klan leader delivered a speech at a klan rally and was then convicted under the state of Ohios syndicalism law. The law made the advocation of crime, violence, terrorism, or sabotage as means of accomplishing political reform illegal. In this case the Court was asked the question, did the syndicalism law violate Brandenburgs First and Fourteenth Amendment rights? The Court’s opinion was that yes, the Ohio law violated Brandenburgs right to free speech. The court used a test to evaluate speech acts in two parts. One, that speech cannot be prohibited if it is directed at inciting a lawless action, and secondly, it is likely to incite such action. This case effectively overturned the ruling of Whitney v. California and made the Syndicalism Act unconstitutional. (359)
B. How did the Court approach the question of free speech and associational rights in the era of McCarthyism. What specific issues were raised in these cases and what tests did the Court use to address them?
The court approached the question of free speech in the era of McCarthyism by trying to reign in the congressional witch hunt of alleged communists and also a return to traditional American values. This can be seen in the case of Watkins v. United States and also Roth v United States. In the case of Watkins v. United States, John Watkins was called to testify by the House Committee on Un-American Activities. Watkins agreed to testify about the alleged connections between him and the Communist Party, and also to identify the parties, current members. However, he refused to give information about people who had left the Communist party. The question asked to the court, in this case, was whether the House Committee on Un-American activities constitute an exercise of congressional power that is unconstitutional. In a 6 to 1 decision the court came to the opinion that the committees activities were beyond its congressional powers. The Due Process Clause in the Fifth Amendment invalidated Watkins’ conviction.
Another case in the era of McCarthyism is Roth v. United States. In the case, the Roth was convicted of mailing obscene circulars and was in violation of the federal obscenity statute.
C. An example of cases involving free speech in the Vietnam era are Tinker v. Des Moines and United States v. OBrien. In the case of Tinker v. Des Moines, a student who was protesting the Vietnam War by wearing and armband was asked to remove it. In this case, the Court was asked if the prohibition of wearing an armband in public school, as a protest, violated the student’s guaranteed First Amendment right to free speech. In a majority ruling, the Courts opinion was that yes the removal of the armband was a violation of the student’s First Amendment rights. Justice Fortas, who wrote the opinion, said that the action of wearing the armband was closely akin to pure speech (423).
Justice Black in his opinion wrote that the wearing of the armbands distracted students from their studies and the teachers from their duties. (426)
Another case in the Vietnam era was United States v. OBrien. David OBrien had burned his draft card in opposition to the war in Vietnam. He was convicted of the destruction of his draft card which was a crime. The question the Court was asked in this case was whether the law was an infringement upon O’Briens freedom of speech. In a majority decision the court decided that no, the law did not infringe upon David OBriens right to free speech. The opinion, written by Justice Warren, established a test that determined whether a government regulation involving speech was justified. The test examines whether or not the law is related or unrelated to content narrowly tailored to achieve the government’s interest.
D. When it comes to the balance between punishing hate speech and respecting ones right to free speech there is a very thin line. The court does respect ones right to free speech as this can be seen in Brandenburg v. Ohio. Even though Brandenburgs views are immoral and wrong he also has the right to have them. However, the court also does say in Schenck v. United States that it depends as to whether the words are used in such circumstances and are of such a nature as to create a clear and present danger, (342). As long as the speech is not done to incite violence, the speech itself is legal.
E. Yes I agree with the court’s analysis. For example, while I do not agree with Brandenburg, in the case of Brandenburg v. Ohio, I do agree that he has the constitutionally protected right to say his opinion without fear of government reprisal. I also agree with Justice Holmes opinion in Schenck v. United States that in times of war if there is a clear and present danger, that Congress has a right to prevent.
Part 2.
A. Free press has been a pillar of American society since its conception. It is a core value of the United States and something that most Americans see as critical. The press is used to help keep the government in check by exposing its wrongdoings. However, throughout this country’s history, there have been arguments for restrictions of free press. Throughout this country’s history, there have been justifications for limiting free press. Supreme court cases that have justified limiting free press were Near v. Minnesota and New York Times v United States.
B. In the case of Near v. Minnesota the question was asked Does the gag law in Minnesota violate the First Amendment? The case was brought to the supreme court by Jay Near, who worked for a newspaper in Minneapolis called the Saturday Press. Near had accused local officials of being involved with gangsters. Because of the articles scandalous nature officials in Minnesota sought an injunction against the Saturday Press because it violated the public nuisance law otherwise known as the gag law. The Supreme Court justices took a substantial argument against censorship. Chief Justice Hughes, who wrote the opinion said, The statute not only operates to suppress the offending newspaper& but to put the publisher under an effective censorship (508). Hughes did however say that these protections are not unlimited and that there are exceptional circumstances in which restraint from the government is necessary. The specifically cited three instances that justify government censorship. This includes, the protection of national security, the regulation of obscenity, and the prohibition of expression that would incite acts of violence. (508) Near gave the government the power to legitimately prohibit the publication of materials in times of war that are not regulated during times of peace through Prior Restraint.
The next case was New York Times v United States. This case, otherwise known as ‘Pentagon Papers Case,’is when the Nixon Administration tried to prevent the New York Times from publishing a Defense Department study about the history of the United States activities in Vietnam. Nixon argued that prior restraint was necessary to protect national security. The question asked was whether Nixons attempt to prevent the Pentagon Papers from being published violated the first amendment. The opinion was written by Justice Brennan who reasoned that the publication of the Pentagon Papers would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified.
C. I wholeheartedly agree with the Courts ruling on Sullivan v. New York Times. When something is written about a public figure it is not enough to label something a libelous just because it presents a falsehood. Rather it has to show actual malice towards the target.
In following cases such as Gertz v. Robert Welch, Inc. and Hustler Magazine v. Falwell approached this question in different ways.
In the case of Gertz v. Robert Welch, Inc. the question asked to the justices was if the first amendment allowed a broadcaster or newspaper to claim defamatory falsehoods about someone who is not a public official or figure. Justice Powell wrote the opinion and he argued that the standard application of the Sullivan v. New York Times case was not appropriate because Gertz was not a public official or figure.
However in the case of Hustler Magazine v. Falwell, the court was asked if the First Amendments protection of speech extends to plainly offensive statements about public figures or officials, that results in emotional distress. The court decided, in a unanimous opinion, that without showing that the offending publication published an incorrect statement that was made with actual malice public figures could not recover.
D. Two of the major Supreme Court cases involving public school student’s right to free speech and press were Hazelwood School District v. Kuhlmeier and Tinker v. Des Moines. In the case of Hazelwood School District v. Kuhlmeier, a student had written an article in the school newspaper about divorce and teenage pregnancy. The school principal was outraged and withheld articles that he deemed as inappropriate from the paper. The question asked to the court was whether the principals withholding of certain articles violated the students First Amendment rights. In a 5 to 3 decision the court decided in favor of the school district. In the opinion, written by Justice White, said that students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. (519) However Justice White went on to say that schools had the right to refuse to sponsor speech that they deemed ‘substantially interfere with the work of the school or impinge upon the rights of other students.’ (519). This effectively strips students of their First Amendment rights in any controversial writing they wish to publish through the school. In the dissenting opinion written by Justice Brennan, pointed out the paper itself was supposed to give students the opportunity to express their own views. Also, the student-press publication accepts the First Amendment rights of these students as well. (523)
A Supreme Court case that addresses a student’s right to free speech is Tinker v. Des Moines. A student who was protesting for a truce in the Vietnam War wore an armband in a show of support. The student was asked to remove it and then suspended. In a 7 to 2 majority the case decided that yes the request for removal of the armband was a violation of the student’s First Amendment rights. (423) The court ruled that just because a student stepped into school he or she did not lose their rights to free speech. In the dissenting opinion, Justice Hugo L. Black wrote that the First Amendment does not give one the right to express at any time any. Who wrote that due to the the armbands appearance, it distracted students from their studies, which then detracted from school official’s abilities to do their duties, so the school district was within its rights to discipline the students. (426)
Part 3.
A. The original test that shaped the Supreme Courts opinion towards public displays of religious artifacts was the Lemon test. This came from the case of Lemon v. Kurtzman, and Justice Burger delivered the opinion to the court. In his opinion, he said that, Three … tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion. (272). Another test, the endorsement test, came from Justice Oconnors opinion of Lynch v. Donnelly. He proposed that courts should scrutinize whether the challenged government action should constitute an endorsement of a favored religion or disfavor another religion.
In the case of public displays of religious artifacts and symbols, I am more comfortable with the endorsement test. Religion and religious artifacts are an important part of this country’s history and as long as it is done without a political endorsement of one religion over another.
B. A test that has guided the supreme court is the coercion test. Justice Kennedy wrote in his opinion of Lee v. Weisman that at minimum the government cannot compel someone to either support or engage in religious activity. The coercion test is the approach that I feel most comfortable with. It keeps both church and state separate and it makes clear that no government official can force or pressure a person to support a religious activity.
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