Substantive Law Study Support

Questions for Analysis and Responses

1. Why did the Supreme Court believe that burning the American flag was protected by the First Amendment but that burning a draft card was not? Burning the flag was a clear expression of a political point of view, and there was no genuine government interest in preventing it. On the other hand, the government had a legitimate interest in making sure that individuals subject to the draft had a draft card. The restriction on speech was incidental to a legitimate government restriction.

2. According to the Supreme Court in Miller v. California, what are the guidelines for determining obscenity? Do these standards work for obscene material posted on the Internet?
a. “whether the average person, applying contemporary community standards, would find that the work, 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;” and
c. “whether the work, taken as a whole, lacks serious artistic, political, or scientific value.”
The main problem with the standard is under the first one that applies contemporary community standards. Speech on the Internet is not localized in one “community.” Applying different standards for different localities would not be workable.

3. According to Gertz v. Robert Welch, Inc., what makes a person a public figure?

The Court stated:

“Absent clear evidence of general fame or notoriety in the community and pervasive involvement in ordering the affairs of society, an individual should not be deemed a public figure for all aspects of his life. Rather, the public-figure question should be determined by reference to the individual’s participation in the particular controversy giving rise to the defamation.”

4. Both R.A.V. v. City of St. Paul and Wisconsin v. Mitchell deal with ordinances based on racial prejudice. Why did the Court find one statute invalid while the other was valid?
In R.A.V., the Court felt that the ordinance punished a person for his thoughts or beliefs, whereas in Miller, a defendant was punished for actual criminal activity, not just expression.

5. Several Supreme Court cases dealing with freedom of the press are highly critical of laws that impose a prior restraint on the press. What is meant by “prior restraint,” and why is the Court so critical of such rules?
Prior restraints are court orders that prohibit the press from publishing information as opposed to laws that might punish the press for something that was reported. Prior restraints are highly criticized because they are an absolute restriction of the freedom of expression, often without a full hearing before a judge or jury.

6. In Citizens United v. Federal Election Com’n, 558 U.S. (2010), why did the Court uphold a statute requiring disclosure of certain independent expenditures for political campaigns?
The Court held that portions of a federal law violated the First Amendment when the law suppressed political speech because the speaker was a corporation and prohibited independent corporate expenditures for electioneering communications. The Court stated that “the Government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.”

7. How did the Court distinguish United States v. Williams, 553 U.S. 285 (2008) from Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)?
The Court distinguished United States v. Williams from Ashcroft v. Free Speech Coalition ruling that the constitutional defect in Coalition’s provision was that it went beyond pandering to prohibit possessing material that could not otherwise be proscribed. The statute in Williams, §2252A(a)(3)(B), was ruled not impermissibly vague.

8. Explain why the “public forum doctrine” is not applicable to monuments on public property. See Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009). The “public forum doctrine” is not applicable to monuments on public property because such a monument is government rather than private speech and not subject to the First Amendment.

Assignments and Projects

1. Following the format provided in previous chapters, brief Cox v. New Hampshire, 312 U.S. 569 (1941).
Judicial History: The defendants were convicted in a New Hampshire municipal court for violation of a state statute that prohibited parades and processions on public streets without a proper license. The Supreme Court of New Hampshire upheld the convictions.
Facts: Sixty-eight Jehovah’s Witnesses assembled at their church and then assembled into smaller groups. The groups proceeded to march along sidewalks, display signs, and pass out leaflets advertising a meeting at their church. During the march, group of approximately 15 to 20 people marched in single file down sidewalks in the district, disrupting normal foot traffic. The Jehovah’s Witnesses were charged with “taking part in a parade or procession” on public streets without a permit as required by statute.
Issue: Were the First Amendment rights of the Jehovah’s Witnesses violated, including their rights to freedom of worship and freedom of assembly?
Holding: No, the U.S. Supreme Court affirmed the decision of the New Hampshire Supreme Court.
Rationale: The Court ruled that appellants were convicted solely for taking part in a parade or procession on public streets without a permit, not for distributing leaflets or conveying information in other manners. Their right to disseminate information was separate from engaging in a “parade or procession” as charged under the statute.

2. Locate and read Miller v. California, 413 U.S. 15 (1973). Do you believe the three “guidelines” articulated in Miller adequately “guide” later courts? Why or why not? Should there be another approach? If so, what do you suggest?
Student answers will vary, but their discussion should include the three guidelines as outlined in the case and the reason(s) behind suggesting an alternate approach.

3. Locate and read Columbia Broadcasting System, Inc. v. Democratic Natl.
Committee, 412 U.S. 94 (1973). How did the Court justify holding that the First Amendment does not require broadcasters to accept paid editorial advertisements?
The Court held that it would be a violation of the First Amendment constitutional rights of freedom of the press of the broadcasting companies if they were required to accept paid editorial advertisements and disseminate viewpoints other than their own.

4. Read the excerpt from the Brief on the Merits in the Morse v. Frederick, 551 U.S.
383 (2007) school speech case (Appendix G). Notice how the author uses the school speech cases (Tinker, Fraser, and Kuhlmeier) to make his argument. Write a short summary of the argument made in the Brief on the Merits.
Student answers will vary, however, their summaries should contain information similar to the following key points:

- The “special characteristics” of the school setting require deference for school officials’ actions.
- Tinker protects speech that does not intrude upon the work of the schools.

- Fraser permits schools to prohibit student speech that undermines that basic educational mission.
- Kuhlmeier allows student speech restrictions in school-sponsored activities when pursuant to legitimate pedagogical concerns.
- The Tinker-Fraser-Khulmeier trilogy permitted Juneau school officials to discipline Frederick for promoting illegal substances.
- Discouraging use of illegal substances is an undeniably important educational mission.