First Amendment - Answer congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of the grievanc...
JOMC 486 Exam 1 || A+ Graded With Highest
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First Amendment - Answer congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of
the people peaceably to assemble, and to petition the government for a redress of the grievances
pure, intermediate, unprotected - Answer types of speech
pure speech - Answer public speech, writing a letter, publishing newspaper or book
Speech Action Dichotomy - Answer Speech that is protected, but action is not.
Political-Nonpolitical Speech Dichotomy - Answer speech that is political in the sense of contributing to
self-government receives the highest level of protection --non-political speech receives a lesser degree of
First Amendment protection
content-neutral, content-based dichotomy - Answer examines the regulation not the expression,
content-based regulation subject to strict scrutiny while content-neutral are judged by a less demanding
standard
Brandenburg Test - Answer state may punish speech that is seditious or may encourage criminal
behavior if there is evidence of:
1. Intent
2. Imminence
3. Likelihood
O'Brien test - Answer a.is the regulation within the constitutional power of government?
,b.does is further a substantial governmental interest?
c. is the governmental interest unrelated to the suppression of expression?
d. is any incidental restriction of First Amendment freedoms no greater than necessary for furthering the
governmental interest ?
intimidation (cross-burning cases) - Answer where speaker directs a threat at specific person or group
with the interest of placing that person or group in fear of bodily harm or death --may be prohibited
fighting words - Answer words which by their very utterance inflict injury or tend to incite an immediate
breach of peace
factors identified in pentagon papers case - Answer 1: Prior restraints bear a heavy presumption against
their constitutionality (Per curiam opinion and opinions of various justices)
2: only proof that publication must inevitable, directly and immediately cause harm to national security
akin to imperiling a ship at sea can justify a prior restraint (Brennan and Stewart opinions)
3:courts lack authority to enjoin publication in the absences of laws authorizing such prior restraints
Two criterion for determining if a prior restraint is acceptable - Answer 1) immediate threat to national
security, public security, peace and order
2) is there a law that permits prior restraint
Near v. Minnesota - Answer -one view of the First Amendment was that it simply embodied the
prohibition on prior restraints
-the first time the U.S. Supreme Court addressed the issue in depth was in the 1931 case of __________
-The Saturday Press (MN paper) newspaper helped bring attention to Minneapolis's corruption of gang
controlling different businesses
-they basically told Near he would have to get down on his knees and beg for him to win the case
-Robert McCormick -publisher of the Chicago Tribune—watched this case and he could relate to people
in Illinois wanting to shut down his newspaper so McCormick (who was very wealthy) had his lawyer
represent Near in court
-freedom of the press means more than freedom or prior restraint -the supreme court said freedom of
the press means more
-the Supreme Court said there needs to be a lot for the government to punish speech
, RAV v St.Paul - Answer -prosecution of a minor who burned a cross on another person's lawn in
violation of a city ordinance prohibiting fighting words likely to arouse fear, anger or resentment on the
basis of race, religion, national origin
-Supreme Court held the ordinance was not content neutral; therefore, it violated the first amendment
Reed v. Town of Gilbert - Answer -Supreme Court relied on the requirement for content neutrality to
strike down a town ordinance regulating certain temporary sign
-the ordinance applied different rile for ideological, political, directional signs
-limitation on signs, Reed got in trouble with the city of Gilbert for having signs to direct him to his
church's meeting place that violated the signs
-the sign regulation was content based
-since the regulation was content based, the government would have to show it strict scrutiny -the case
could not survive strict scrutiny
Drahota case - Answer -a controversy between a political science professor (Bill Avery) and Drahota
-Drahota called Avery he'd like to puke all over him, that Avery should be sent out of the country, and
that he would kick his ass if he had said that to his face
-the NE court of appeals said the case involved fighting words so Drahota could be prosecuted
-the NE supreme court said the words would not result in violence since it was over e-mail and that
being offended are not terms for prosecution
-in order to be fighting words they have to invoke immediate violence or an immediate breach of the
peace
-needs to be face to face
The Progressive case - Answer -The Progressive magazine planned to publish in the spring 1979 and
article on the H-bomb and how it works
-The Department of Energy said the article revealed "restricted data"
-the atomic energy act has a provision that allows the government to go court to inhibit the publication
of 'restricted date' (information about nuclear power that the government has not released to the public
and doesn't want to release)
-a federal district court enjoined publication of the Progressive article on the grounds that it might help
non-nuclear powers build thermonuclear weapons
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