Cases:

1. Incitement of Illegal Action

Schenck v. USclear and present danger
A United States Supreme Court decision concerning enforcement of the Espionage
Act of 1917 during World War I. A unanimous Supreme Court, in a famous opinion
by Justice Oliver Wendell Holmes, Jr., concluded that defendants who distributed
leaflets to draft-age men, urging resistance to induction, could be convicted of an
attempt to obstruct the draft, a criminal offense. The First Amendment did not alter
the well-established law in cases where the attempt was made through expressions
that would be protected in other circumstances. In this opinion, Holmes said that
expressions which in the circumstances were intended to result in a crime, and posed
a "clear and present danger" of succeeding, could be punished.
Dennis v. USclear and probable danger
A United States Supreme Court case relating to Eugene Dennis, General Secretary of
the Communist Party USA. The Court ruled that Dennis did not have the right under
the First Amendment to the United States Constitution to exercise free speech,
publication and assembly, if the exercise involved the creation of a plot to overthrow
the government. Originally convicted under Smith Act.
Brandenburg v. Ohioclear, probable, intentional danger
A landmark United States Supreme Court case based on the First Amendment to the
U.S. Constitution. The Court held that government cannot punish inflammatory
speech unless that speech is directed to inciting, and is likely to incite, imminent
lawless action. Specifically, it struck down Ohio's criminal syndicalism statute,
because that statute broadly prohibited the mere advocacy of violence. In the process,
Whitney v. California was explicitly overruled, and doubt was cast on Schenck v.
United States, Abrams v. United States, Gitlow v. New York (1925), and Dennis v.
United States. Intent, imminence, likelihood.
2. True Threats
VA v. Black
Was a First Amendment case decided in the Supreme Court of the United States.
Three defendants were convicted in two separate cases of violating a Virginia statute
against cross burning. In this case, the Court struck down that statute to the extent that
it considered cross burning as prima facie (at first sight) evidence of intent to
intimidate. Such a provision, the Court argued, blurs the distinction between
unprotected "threats of intimidation" and the Ku Klux Klan's protected "messages of
shared ideology." However, cross burning can be a criminal offense if the intent to
intimidate is proven.
Watts v. US
In Watts, the petitioner (discussing the draft at a rally) stated, If they ever make me
carry a rifle, the first man I want to get in my sight is L.B.J. He was convicted under
a federal law making it a crime to threaten the president. Eventually, the Supreme
Court granted certiorari to determine if Wattss words were protected by the First
Amendment. Although the Court emphasized that the law itself was constitutional, it
only applied to true threats: Wattss statement was mere political hyperbole and
therefore protected.
 NAACP v. Claiborne
A case decided by the United States Supreme Court finding that although States have
broad power to regulate economic activities, they could not prohibit peaceful political
activity such as that found in the boycott that was the subject of the case. In a decision
by Justice John Paul Stevens, the Supreme Court reversed the Supreme Court of
Mississippi's decision, holding that the nonviolent elements of the petitioners'
activities were protected by the First Amendment to the Constitution of the United
States and holding that the petitioners were not liable in damages for the
consequences of their nonviolent, protected activity
US v. Dinwiddie
US v. Cassel
Cassel told prospective buyers of neighboring land all sorts of horrible things to make
them not want it. Charged with interfering with federal land sale. Statue he was
convicted under deemed unconstitutional by court because no intent to intimidate not
in law. We must decide whether the First Amendment permits the government to
punish a threat without proving that it was made with the intent to threaten the
victim.

Porter v. Ascension School District

Elonis v. US
A case heard on December 1, 2014 by the United States Supreme Court on whether
conviction of threatening another person over interstate lines (under Title 18 of the
US Code) requires proof of subjective intent to threaten, or whether it is enough to
show that a reasonable person would regard the statement as threatening. In
controversy is the fact the purported threats consist of violent rap lyrics written by
Anthony Douglas Elonis and posted to Facebook under a pseudonym. The ACLU
filed an amicus brief in support of the petitioner. This is the first time the Court has
heard a case considering true threats and the limits of speech on social media. The
Supreme Court reversed Elonis' conviction in a 8-1 decision. The majority opinion,
written by Roberts, did not rule on First Amendment matters, nor on the question of
whether recklessness was sufficient mens rea (guilty mind) to show intent. It did rule
that mens rea was required to prove the commission of a crime under 875(c).
Importantly Elonis had held this view and had objected at every stage of previous
proceedings, therefore the court was able to address the matter. Clarence Thomas,
dissenting, wrote that discarding the "general intent" standard (supported by nine of
eleven circuit courts) without replacing it with a clearer standard than simply
"General intent is not sufficient". Thomas argues "there is no historical practice
requiring more than general intent when a statute regulates speech."

3. Order of Offensiveness
a. Public Forum and Time, Place, Manner Regulation
Cohen v. Cohen
Hazelwood v. Kuhlmer
Was a landmark decision by the Supreme Court of the United States that held that public
school curricular student newspapers that have not been established as forums for student
expression are subject to a lower level of First Amendment protection than independent
student expression or newspapers established (by policy or practice) as forums for student
expression. ARTICLESDIVORCE AND TEEN PREGNANCY
Papish v. Board of Curators
Newspaper police raping statue of liberty ok
Hill v. Colorado
Established no-protest zones around the enterence to health care
facilities was constitutional.
Tinker v. Des Moines
Was a decision by the United States Supreme Court that defined the constitutional
rights of students in U.S. public schools. The Tinker test is still used by courts today
to determine whether a school's disciplinary actions violate students' First
Amendment rights. The court's 7-2 decision held that the First Amendment
applied to public schools, and that administrators would have to demonstrate
constitutionally valid reasons for any specific regulation of speech in the
classroom. The court observed, "It can hardly be argued that either students or
teachers shed their constitutional rights to freedom of speech or expression at
the schoolhouse gate."
Bethel v. Fraser
A United States Supreme Court decision involving free speech and public schools.
Matthew Fraser was suspended from school in the Bethel School District for making
a speech including double entendres at a school assembly. The Supreme Court held
that his suspension did not violate the First Amendment.
Morse v. Frederick
A United States Supreme Court case in which the Court held, 54, that the First
Amendment does not prevent educators from suppressing, at a school-supervised
event, student speech that is reasonably viewed as promoting illegal drug use. In
2002, Juneau-Douglas High School principal Deborah Morse suspended Joseph
Frederick after he displayed a banner reading "BONG HiTS 4 JESUS" across the
street from the school during the 2002 Olympic Torch Relay. Frederick sued,
claiming his constitutional rights to free speech were violated. His suit was dismissed
by the federal district court, but on appeal, the Ninth Circuit reversed, concluding that
Frederick's speech rights were violated.

b. Hate Speech
National Socialist Party v. Skokie
A United States Supreme Court case dealing with freedom of assembly. The outcome
was that the National Socialist Party of America (NSPA) was not prohibited to
demonstrate or display swastikas.
RAV v. City of St. Paul
A United States Supreme Court case involving hate speech and the free speech clause
of the First Amendment to the Constitution of the United States. A unanimous Court
struck down St. Paul, Minnesota's Bias-Motivated Crime Ordinance, and in doing so
overturned the conviction of a teenager, referred to in court documents only as
R.A.V., for burning a cross on the lawn of an African American family.
Wisconsin v. Mitchell
A decision of the United States Supreme Court. It was a landmark precedent
pertaining to First Amendment free speech arguments for hate crime legislation. In
effect, the Court ruled that a state may consider whether a crime was committed or
initially considered due to an intended victim's status in a protected class.
Virginia v. Black
Was a First Amendment case decided in the Supreme Court of the United States.
Three defendants were convicted in two separate cases of violating a Virginia statute
against cross burning. In this case, the Court struck down that statute to the extent that
it considered cross burning as prima facie (at first sight) evidence of intent to
intimidate. Such a provision, the Court argued, blurs the distinction between
unprotected "threats of intimidation" and the Ku Klux Klan's protected "messages of
shared ideology." However, cross burning can be a criminal offense if the intent to
intimidate is proven.
Snyder v. Phelps
United States Supreme Court case in which the Court held that speech on a public
sidewalk, about a public issue, cannot be liable for a tort of emotional distress, even if
the speech is found to be "outrageous". The issue was whether the First Amendment
protected the public protestors at a funeral against tort liability. It involved a claim of
intentional infliction of emotional distress made by Albert Snyder, a gay man[1] and
the father of Matthew Snyder, a Marine who died in the Iraq War. The claim was
made against the Phelps family, including Fred Phelps, and against Phelps' Westboro
Baptist Church (WBC). The Court ruled in favor of Phelps in an 81 decision,
holding that their speech related to a public issue, and was disseminated on a public
sidewalk.

c. Pornography
FCC v. Pacifica
Defined the power of the Federal Communications Commission (FCC) over indecent
material as applied to broadcasting. Cable radio and TV (not subscription) were
regulated because kids could easily see and there were no warning.
Stanley v. GA
Legal to have obscene material in home
Miller v. CA
Obscene materials do not have first amendment protection
NY v. Ferber
Ruled unanimously that the First Amendment right to free speech did not forbid states
from banning the sale of material depicting children engaged in sexual activity
exception to Miller
Osborne v. Ohio
 Court held that the First Amendment allows states to outlaw the mere
possession, as distinct from the distribution, of child pornography. In so doing,
the Court extended the holding of New York v. Ferber, because it wasnt just
adults who werent allowed to have child porn.
Ashcroft v. Free Speech Coalition
Involved virtual child porn, decided that banning it would be too broad, so it would
be allowed.
US v. Williams
A decision by the Supreme Court of the United States that a federal statute ruling that
the "pandering" of child pornography[1] (offering or requesting to transfer, sell,
deliver, or trade the items) did was not protected by the First Amendment to the
United States Constitution, even if a person charged under the code did not in fact
possess child pornography with which to trade.
ACLU v. Mukasey
This case is regarding Child Online Protection Act (COPA), a federal law
signed in 1998 that established penalties for distribution of material harmful to
minors. Supreme Court ruled in a 5-4 vote that the Child Online Protection Act
(COPA) is overbroad and it was not the least restrictive means to prevent minors from
accessing material harmful to minors. The Court also allowed the U.S. District Court
to determine whether COPA should be permanently enjoined, instructing the lower
court to take into account two laws Congress has passed that the high court said
might qualify as less restrictive alternative to COPA. The case, now called ACLU
v. Gonzales, went to trial in the U.S. District Court in October 2006. In March 2007,
Judge Reed issued a permanent injunction against the enforcement of COPA. The
case is appealed at the Third Circuit Court and is decided as ACLU v. Mukasey in
July 2008. The Court affirms the District Court decision. On January 21, 2009, the
U.S. Supreme Court denied cert in an appeal of the Third Court decision, leaving in
place the permanent injunction blocking the enforcement of COPA.

d. Violent Depictions

Tests:
Clear & Present Danger
o Schenck
Clear and present danger
o Dennis
o Brandenburg
Intent, imminence, likelihood
Obscenity
o 1957Roth v. US
a. Whether the average person, applying contemporary
community standards, would find the dominant theme of the
material, taken as a whole, appeals to the prurient interest
 b. Whether the work is utterly without redeeming social
importance
o 1969Stanley v. GA
a. Private possession of porn is protected because of
safeguarding the sanctity of the home from governmental
intrusion
o 1973Miller v. CA
a. Whether the average person, applying contemporary
community standards, would find the dominant theme of the
material, 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
c. Whether the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value
o 1982Ferber v. NY
a. Exception to the Miller test for child porn; none of the
requirements in Miller hold true when dealing with child
porn (material depicting children engaged ins sexual
conduct)
o 1990Ohio v. Osborne
a. Private possession of child porn is unprotected under the
First Amendment (exception to Stanley v. GA)
o 2002Ashcroft v. Free Speech Coalition
a. Overturns the Child Pornography Prevention Act prohibiting
the distribution of virtual child pornography because the law
is overbroad.
o 2007US v. Williams
a. Upholds the PROTECT Act which proscribes the pandering
of any material or purported material in a manner that
reflects the belier, or is intended to cause another to believe
that the material is illegal child porn. The Court decided that
the law was not overbroad.

Standards/Essay Ideas: