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THE FIRST AMENDMENT
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Congress shall make no law respecting an establishment of religion, or prohibiting the free exerise thereof, or abridging the freedom of speech, or of the press, or the right of the people peacably to assemble, and to petition the Government for a redress of grievances.
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| COURT CASES | LINKS | CONCEPTS | BLOG |
Decision: 9-0 to reverse Brandenberg's conviction
Concurring justices: CJ Warren, JJ Black, Douglas, Harlan, Brennan, Stewart, White, Fortas, Marshall
The plaintiff in this case, Clarence Brandenberg, was a member of the Ku Klux Klan in Ohio. During a rally, he advocated "revengeance" against the government. He was prosecuted under Ohio's Criminal Syndicalism Act, which criminalized the use of violence to achieve industrial or political reform. The Supreme Court reversed his conviction, citing a distinction between the advocacy of ideas and the advocacy of illegal action. This case also made the Ohio Criminal Syndicalism Act unconstitutional, since it did not make that distinction. Brandenberg created the current standard for threatening speech: such speech is protected unless it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The government must prove a direct cause-and-effect relationship between the speech and lawless action.
Decision: 9-0 to reverse the libel award
Concurring Justices: CJ Warren, JJ Black, Douglas, Clark, Harlan, Stewart, White, Goldberg
The New York Times published an advertisement on March 29, 1960 supporting civil rights activists in the South. The advertisement specifically mentioned the misconduct of Montgomery, Alabama police. A former commissioner of public affairs in Montgomery sued for libel, claiming defamatory errors of fact. even though the advertisement never specifically mentioned him. He was awarded $500,000. The Supreme Court reversed the decision, stating that the burden of proof for public officials in libel cases was "actual malice," meaning that the author of the libel knew that the information was wrong or he recklessly disregarded the truth in order to get the story out.
Decision: 5-4 to reverse the decision and remand the case
Concurring Justices: JJ O'Connor, Brennan, Marshall, Blackmun, Powell
Dissenting Justices: CJ Burger, JJ Stevens, White, Rehnquist
The Philadelphia Inquirer published a series of articles in 1975 and 1976 alleging that the Thrifty store chain and its parent company had ties to organized crime and used those connections to get favorable treatment from the state government. The store brought suit against the publisher of the Inquirer and, after both sides had made their arguments, the trial judge determined that a Philadelphia law violated the Constitution because it placed the burden of proof in defemation cases on the defendant instead of the plaintiff (Philadelphia Newspapers was required to prove that its article was true instead of Hepps proving that the article was false). The jury found in favor of the defendants and the plaintiffs appealed to the Pennsylvania Supreme Court, which reversed the decision. Upon reaching the US Supreme Court, the decision of the Pennsylvania Supreme Court was reversed. The US Supreme Court held that, when private plaintiffs sue media defendants in a matter of public concern, it is the plaintiffs that must prove that the allegation are false; until so proven, the defamatory statements are assumed to be true.
Decision: 5 to 4 to remand Miller's conviction
Concurring Justices: CJ Burger, JJ White Blackmun, Powell, Rehnquist
Dissenting Justices: JJ Douglas, Brennan, Stewart, Marshall
Miller had been convicted by a jury in the state of California of distributing literature containing explicit sexual illustrations. The judge had instructed the jury to evaluate the prurience of the material according to state laws, not national laws. The Supreme Court remanded the conviction, using the Miller case to change the obscenity requirements that had been placed by Roth v. United States in 1957. Miller established the current test used to determine obscenity: 1) that the average person, applying contemporary community standards (which were revised in Miller to include state or local laws, not just national ones), finds that the work -- as a whole -- appeals to prurient interests (lewd or sexual interests), 2) that the sexual content of a work describes, in a "patently offensive" way, sexual conduct prohibited by law, and 3) that the work lacks serious artistic, scientific, literary, or political value (Roth merely required that a work be "utterly worthless" in value).
Decision: 5-4 to reverse Cohen's conviction
Concurring Justices: JJ Douglas, Brennan, Stewart, Marshall
Dissenting Justices: CJ Burger, JJ Black, White, Blackmun
Cohen was convicted of wearing a jacket upon which were written the words "F--k the Draft." Cohen said the statement was an expression of his opposition to the Vietnam War, but he was convicted of violating a California law that prohibited disturbing the peace through offensive conduct. The Supreme Court reversed the conviction, saying that the language was not legally obscene or fighting words. It futher affirmed that when the state tries to prohibit certain words from being used, it creates "a substantial risk of suppressing ideas."
Decision: 6-3 to allow publication
Concurring Justices: JJ Black, Douglas, Brennan, Stewart, White, Marshall
Dissenting Justices: CJ Burger, JJ Harlan, Blackmun
Sometimes called the "Pentagon Papers" case, it involved a Pentagon official giving some top-secret documents about the history of the Vietnam War to the New York Times and Washington Post. The Justice Department requested a restraining order to prevent publication of the documents, citing national security. After two lower circuit courts gave conflicting rulings (one granted an injunction to restrain the publication; the other denied it), the Supreme Court immediately took the case during its summer recess. The Court ruled to remove the restraining orders and permit the Times to publish the "Pentagon Papers," citing that the government did not adequately justify its prior restraint.
Decision: 7-2 to allow the wearing of black armbands
Concurring Justices: CJ Wareen, JJ Fortas, Douglas, Brennan, Stewart, White, Marshall
Dissenting Justices: JJ Black, Harlan
In 1965, three students in the schools of the Des Moines Independent Community School District wore black armbands to protest the war in Vietnam, violating a school board policy against such expression. They were suspended and sued in federal court. The District Court and the Court of Appeals ruled in favor of the school board, but the Supreme Court reversed the lower courts and remanded the case. The Court affirmed that the wearing of black armbands was not disruptive to the classroom environment, and Abe Fortas noted that wearing black armbands was symbolic, "akin to 'pure speech.'"
Decision: 5-4 to affirm the lower court's decision
Concurring Justices: CJ Rehnquist, JJ White, O'Connor, Scalia, Thomas, Kennedy
Dissenting Justices: JJ Souter, Blackmun, Stevens
The International Society for Krishna Consciousness (ISKCON, commonly called "Hare Krishnas") sued the Port Authority of New York for refusing to allow the solicitation of money inside its airport terminals. The Second Ciruit Court of Appeals affirmed a lower courts ruling, saying that an airport was not a public forum. The Supreme Court agreed, saying that airports were not traditional public fora and were not designed for that purpose and, in the interest of crowd control, it was reasonable, and besides, the Port Authority allowed solicitation on the sidewalk outside.
Decision: 6-3 to affirm and reverse (in part) the Florida Supreme Court's decision
Concurring Justices: CJ Rehnquist, JJ Blackmun, O'Connor, Souter, Ginsberg, Stevens
Dissenting Justices: JJ Stevens, Scalia, Thomas
A Florida state court enjoined abortion protesters from blocking access to abortion clinics and from physically abusing people entering or leaving the clinic. Six months later, the injunction was amended to establish a 36-foot "buffer zone" around the clinic and a 300-foot buffer zone between protesters and clinic patrons. The Supreme Court affirmed all parts of the injunction, except the 36-foot buffer zone when it infringed upon private property; the restriction against uninvited people approaching clinic patrons; and the restriction against protesting within 300 feet of clinic employees.
Decision: 7-2 upholding Fraser's suspension
Concurring Justices: CJ Burger, JJ White, Powell, Rehnquist, O'Connor, Brennan, Blackmun
Dissenting Justices: JJ Marshall, Stevens
Fraser, a senior at Bethel High School, delivered an innuendo-filled speech during a school-sponsored assembly and was subsequently suspended. He was charged with violating a school policy against "conduct which materially and substantially interferes with the educational process." Fraser appealed to a US District Court, which ruled in his favor. A US Circuit Court also ruled in his favor. Upon appeal to the Supreme Court, the decision was reversed. The Court noted, "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings."
Decision: 5-3 holding that students' First Amendment rights were not violated
Concurring Justices: CJ Rehnquist, JJ White, Stevens, O'Connor, Scalia
Dissenting Justices: JJ Brennan, Marshall, Blackmun
A student-edited newspaper at Hazelwood East High School was to publish an article about the pregnancy experiences of three students and an article about divorce, to which the principal of the school objected and ordered the faculty adviser not to print the pages on which these articles were written. The student members of the newspaper filed suit against the school district, alleging that their First Amendment rights had been violated. The District Court ruled in favor of the principal, but the Eighth Circuit Court of Appeals reversed the decision, saying that the reasons provided by the school were not enough to justify censorship. The Supreme Court reversed the Circuit Court's ruling, saying that educators do not infringe upon the First Amendment in exercising editorial control over a school newspaper.
These three cases deal with the rights of prisoners. Procunier v. Martinez established that prisons are allowed to censor prisoners' mail, within certain restrictions. Censorship of mail "must further an important or substantial governmental interest unrelated to the suppression of expression" and the censorship "must be no greater than is necessary or essential to the protection of the particular governmental interest involved." These guidelines mean that a prison must censor mail for legitimate security or rehabiliation purposes, not just to squelch criticism; and, the censorship cannot be overly broad. Jones v. North Carolina concerned a group of prisoners who formed an organization and promoted it through mail and meetings. The state Department of Corrections prohibited the organization, and the prisoners sued. The U.S. Supreme Court ruled that the regulations were reasonable, given the need for order; a prison is allowed to control the activities of inmates. Finally, Pittman v. Hutto established that prisons can regulate the content of prison newspapers.
Decision: 5-3 to reverse the lower court's decision
Concurring Justices: CJ Burger, JJ Rehnquist, White, Blackmun, Powell
Dissenting Justices: JJ Douglas, Stewart, Brennan
Not Participating: J Marshall
An army physician disobeyed orders and made statements encouraging black men not to go to Vietnam if ordered to do so, and "characterizing Special Forces personnel as liars, thieves, killers of peasants, and murderers of women and children." He was summarily court-marshalled and sought some sort of redress. The Third Circuit Court of Appeals reversed his court-marshall, invalidating certain parts of the Uniform Code of Military Justice for vagueness. The Supreme Court reversed this decision and upheld the court-marshal. It affirmed that Congress is granted greater breadth when legislating for the military and also upheld that the UCMJ was not vague, considering its implementation within the military (whereas it might be considered unconstitutional outside the military). As with prisons, the Supreme Court has consistently held that the necessity of maintaining order and morale within the military trumps soldiers' First Amendment rights.