Freedom of Expression
"Congress shall make no law..abridging the freedom of speech.."
No prior restraint or censorship on publication and speech. But if you publish something that is against the law you cannot claim the 1st amendment.
Court rulings & attitudes changed over time relating to 1st amendment protection.
Schenck VS USA (1919) Schneck convicted for passing out pamphlets urging people not the awnser to the draft - accused of "disrupting WWI was efforts". Justice made "clear and present danger clause" - if it presents a clear and present danger than it it illegal. Supreme court upheld its conviction saying handing out pamphlet was a "clear and present danger"
Gitlow VS New York (1925) Gitlow convicted under state law for distributing literature calling for a socialist government.
-Conviction upheld
-2 judges did not agree
-supreme court holds NY state law accountable for 1st amendment protection
-**First time court extends the Bill of Right and makes state apply them called "incorporating the bill of rights"
-they do so by extension of 14Th amendment -due process clause
Dennis VS USA several US communist party members convicted under Smith Act (advocating force or violence against US illegal). No evidence has been presented to prove claims that communists had actually urged people to commit violence--kept them locked up anyway.
Brandenburg VA Ohio (1965) KKK leader was convicted under a state law for advocating racial violence. Court overturned conviction and extended limits of free speech & set him free !!
Court held that speech was protected under first amendment. And unless they could prove his speech was going to cause immediate violence they could not do anything.
Symbolic Speech (nonverbal) Cases:
Tinker VS Des Moines (1969) Court overturned suspension of 3 high school students who wore black arm bands to school to protest the war - supreme court said this was alright.
Cohen VA California (1971) Young man with offensive print jacket was arrested. Court recognizes it as free expression.
USA VS Eichman (1990) Texas' state law against burning flags is violated when young man burned a flag- gets arrested. Court said that the burning of the flag was free expression and struck down the case. But public reacted with an outcry forcing congress to attempt to pass a no burning flag law. But supreme court eventually reaffirmed that flag burning is a part of free expression.
In 2003 supreme court ruled that VA law prohibiting burning of a cross "with an intent to intimidate" did not violate first amendment. This burning was labeled as a hate crime and outweighed first amendment.
Internet purposes new challenges:
1. The Communication Decency Act was declared unconstitutional after it was tried to pass to band Internet pornography. Arguing that Internet was a form of press and had broad first amendment protection.
No comments:
Post a Comment