Deck 12: Freedom of Expression

Question 1

Justice _____ wrote in Schenck v. U.S. (1919) that "[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic."

A) Edward T. Sandford
B) Louis D. Brandeis
C) Oliver Wendell Holmes, Jr.
D) Stephen J. Field

Answer 1

C

Question 2

In determining the degree of protection to be accorded seditious speech under the First Amendment, the modern Supreme Court is most likely to invoke the _____.

A) clear and present danger test
B) bad tendency test
C) ad hoc balancing test
D) imminent lawless action or incitement test

Answer 2

D

Question 3

In _____, the Supreme Court reversed an obscenity conviction where a man had been prosecuted after police found obscene films in his home.

A) Roth v. U.S. (1957)
B) Alberts v. California (1957)
C) Memoirs of a Woman of Pleasure v. Massachusetts (1966)
D) Stanley v. Georgia (1969)

Answer 3

D

Question 4

In Miller v. California (1973), the Supreme Court held that to be obscene, a particular work had to be totally without redeeming social value. _____

Question 5

Personally abusive epithets or insults that are intended to and inherently likely to provoke violence are known as _____.

A) obscenities
B) fighting words
C) hate speech
D) solicitations

Question 6

In R.A.V. v. St. Paul (1992), the Supreme Court concluded that St. Paul's ban on cross-burning _____.

A) violated the Free Speech Clause of the First Amendment
B) did not violate the Free Speech Clause of the First Amendment
C) was aimed at action rather than speech and thus did not present a First Amendment problem
D) was prohibited by the Equal Protection Clause of the Fourteenth Amendment

Question 7

In New York Times v. U.S. (1971), the Supreme Court rebuffed the Nixon Administration's attempt to block publication of ____.

A) an editorial critical of the Vietnam War
B) an advertisement taken out by critics of the Nixon Administration
C) a document containing instructions on the creation of an atomic bomb
D) the Pentagon Papers

Question 8

Which of the following is the best example of symbolic speech? _____

A) the expletive "f--- the draft" prominently displayed on the jacket of a man as he walked down a courthouse corridor
B) a black armband worn by a school student during school hours as a visible expression of protest against the Vietnam War
C) a boycott
D) the bullet that killed Abraham Lincoln

Question 9

In Texas v. Johnson (1989), many Supreme Court observers were surprised that Justices _____ and _____ joined the majority.

A) Scalia; Kennedy
B) O'Connor; Kennedy
C) Souter; Scalia
D) O'Connor; Scalia

Question 10

In Texas v. Johnson (1989), many Supreme Court observers were surprised that Justice _____ joined the dissenters.

A) Chief Justice Rehnquist
B) Justice Stevens
C) Justice O'Connor
D) Justice White

Question 11

In Whitney v. California, Ms. Whitney was convicted of violating California's law against _____.

A) harboring a fugitive
B) criminal syndicalism
C) voter fraud
D) distributing obscene materials

Question 12

Benjamin Gitlow was a member of _____.

A) the Communist party
B) the Democratic party
C) the Republican party
D) the Socialist party

Question 13

The author of the plurality opinion in Dennis v. United States was ____.

A) Chief Justice Warren
B) Chief Justice Hughes
C) Chief Justice Stone
D) Chief Justice Vinson

Question 14

The defendants in Dennis v. United States had been convicted of violating the _____.

A) Solomon Amendment
B) the Enforcement Act of 1870
C) The Smith Act of 1940
D) none of the above

Question 15

In New York Times v. United States (1971), the Supreme Court _____ a lower court injunction prohibiting newspapers from publishing _____.

A) affirmed; the Pentagon Papers
B) struck down; the Pentagon Papers
C) struck down; excerpts from the Watergate recordings
D) affirmed; excerpts from the Watergate recordings

Question 16

Walker v. Texas Division, Sons of Confederate Veterans, Inc. involved _____.

A) a statue of General Robert E. Lee in a town park
B) burning of a Confederate flag
C) government speech
D) none of the above

Question 17

Janus v. AFSCME (2018) involved

A) right to counsel
B) picketing
C) cell phones
D) unions

Question 18

The Sedition Act of 1798 was declared unconstitutional by the Marshall Court.

Question 19

Dennis v. United States, decided in 1952, stands not far from the mid-point in the span of years that the Supreme Court has seriously considered the free speech clause of the First Amendment. The Court's encounters began in 1919 and have continued to the present day.
a. Explain fully the opinion of Chief Justice Vinson, the separate opinion of Justice Frankfurter, and the dissenting opinions of Justices Black and Douglas.
b. Of the three positions represented by those four opinions, which one (or ones) seems to have been most sounded rejected by the Court's decision in Brandenburg v. Ohio (1969)? Explain.

Question 20

Suppose the following situation: The local city Council decides to consider legislation prohibiting various kinds of harassment. One part of the proposed ordinance borrows language from the student code of a nearby college.
Criminal penalties will be imposed for "conduct likely to constitute harassment ... including but not limited to exhibiting, distributing, posting, or advertising publicly offensive, indecent, or abusive matter concerning any person or group of persons in the [City of Happyvale]; [and] employing racial, sexual, ethnic, sexual orientation, religious, or personal slurs or epithets....."
Write an essay assessing the constitutionality of this part of the ordinance from the perspective of each justice's opinion listed below.
Justice Sanford, in Gitlow v. New York.
Justice Brandeis, in Whitney v. California
Justice Frankfurter, in Dennis v. United States
Justice Brennan, in Texas v. Johnson

Question 21

In what respects do Gitlow v. New York and Brandenburg v. Ohio represent polar opposite approaches to interpretation of the First Amendment?

Question 22

During recent decades in several cases involving symbolic speech and protest, the United States Supreme Court has declared (a) that one does not have a right under the First Amendment to burn one's draft card; (b) that one does have a right under the First Amendment publicly to burn (or otherwise deface) an American flag; and (c) that one sometimes (but sometimes not) has a right under the First Amendment to engage in KKK-style cross-burning. In these cases, has the Court been confused in terms of applying the First Amendment, or is there a theoretical (doctrinal) consistency lurking within these contrary outcomes? Explain. (Be sure that your answer refers to, and explains, the relevant cases.)

Question 23

Consider Chief Justice Vinson's plurality opinion in Dennis v. United States alongside Justice Brandeis's concurring opinion in Whitney v. California. Which is more protective of freedom of speech? Why? Explain.
a. What constitutional issue confronted the Court in Dennis v. United States (1951)?
b. How was the case decided? Explain.
c. What does Justice Frankfurter's concurring opinion in the case reveal about his view of the proper role of the Supreme Court in the resolution of conflicts between governmental power and individual rights? Explain.

Question 24

Consider Good News Club v. Milford Central School (2001) alongside Clark v. Community for Creative Non-Violence (1984). What common First Amendment problem concerning free speech do these cases present? Why is it that the First Amendment claim prevailed in one case but not in the other? Explain. Might Milford Central School arguably have based its denial of permission on the Establishment Clause? Explain.

Question 25

Why are prior restraints deemed more harmful to free expression than "subsequent punishment"?

Question 26

Justice Robert Jackson said a long time ago that the Constitution was not a suicide pact, meaning that he thought protection of no single provision of the Constitution to be more important than survival of the political system itself. (President Lincoln would have agreed.) In the Pentagon Papers case, did the Court reject the Jackson/Lincoln position?

Question 27

In the Pentagon Papers Case, what would the government have had to show to win five votes for its position?

Question 28

In the Pentagon Papers Case, what was Justice Harlan's answer to the problem the case confronted?

Question 29

Justice Black (as his dissent in Dennis and his concurrence in the Pentagon Papers case suggest) developed a reputation as an "absolutist" on the First Amendment. How, then, do you account for his vote with the majority in United States v. O'Brien?

Question 30

In what way did New Jersey's public accommodations statute infringe the expressive association right of the BSA in Dale? Why?

Question 31

Why did the protestors in CCNV lose their public forum claim, while the group in Good News Club won theirs? Was the Court just being inconsistent? Explain.

Question 32

What does the Court usually mean by the right of "expressive association?" What role did this right play in the outcomes of Boy Scouts of America v. Dale and Rumsfeld v. Forum for Academic and Institutional Rights? Explain. Make sure that your essay demonstrates an understanding of both cases.

Question 33

Explain the role of government speech in the outcome of Walker v. Texas Division, Sons of Confederate Veterans, Inc.

Question 34

In what way was stare decisis an issue in Janus v. AFSCME (2018)?