Significant cases involving the First Amendment

Solution Preview

Hello and Welcome to Brainmass! I have completed your solution dividing it into three parts all relating to the three provisions of the First Amendment. An interpretation is provided along with its significance to the two cases under each provision that I have identified. Good Luck!!

Reflections on the First Amendment

The First Amendment to the Constitution states that "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 grievances" (USConstitution.net, 2010)

We will address two cases of the Freedom of Speech or of the Press provision first:

The key question with free speech is what constitutes speech itself. One view separates public from private speech, arguing mainly that private speech may be limited with respect to the rights of others. The Supreme Court has protected certain kinds of speech in certain circumstances but not all kinds of speech. There are however, two important limitations on freedom of speech: "speech cannot threaten the public order or be obscene" (Soifer, Hoffman, & Voss, 2001).

Case I - Schneck v. United States (1919)
In Schneck v. United States, Justice Oliver Wendell Holmes stated that the freedom of speech could be restricted if the speech presented a "clear and present danger" (Soifer, Hoffman, & Voss, 2001); the example he gave was that an individual could not shout out "Fire!" in a crowded theatre that was not on fire. Through the early years of the Cold War, the clear and present danger test was used to limit the free speech of socialists and communists. The Supreme Court upheld the Smith Act of 1940 (Fonder & Shaffery, 2005), that made it a crime to advocate the overthrow of the government by force. Under Chief Justice Warren, the Court took the position that political speech was protected under the First Amendment unless it incited "imminent lawless action" (Soifer, Hoffman, & Voss, 2001) or was "likely to produce such action" (Soifer, Hoffman, & Voss, 2001).

The Supreme Court's decision in Schenck v. United States established two fundamental principles of constitutional law. First, it established that the First Amendment is not absolute. "Under certain circumstances, the rights protected by the Freedom of Speech Clause must give way to important countervailing interests. Preserving the integrity of the military draft during wartime and protecting theater patrons from the perils of pandemonium are two examples of countervailing interests that will override First Amendment rights" (Law, 2008). The second standard established a way by which "subversive and seditious political speech would be measured under the First Amendment for the next fifty years. Before the government may punish someone who has published scurrilous political material, the Court in Schenck said, it must demonstrate that the material was published with the intent or tendency to precipitate illegal activity and that it created a clear and present danger that such activity would result" (Law, 2008).

In 1969, the Supreme Court in Brandenburg v. Ohio, argued that "courts must consider the intention of the speaker or writer, as well as her ability to persuade and arouse others when evaluating the danger presented by particular speech" (Law, 2008). Even with the revision of the clear-and-present-danger test, Schenck maintains constitutional vitality in cases about the Freedom of Speech Clause, "having been cited in more than one hundred state and federal judicial opinions in the 1980s and 1990s" (Law, 2008).

Case II - New York Times Co. v. Sullivan (1964)
This case expanded the protections provided to the press by the First Amendment. Sullivan, a police commissioner in Alabama sued the NYT for libel based on ads placed by two civil rights organizations. The ads did not mention Sullivan but they were critical of his police force. The state court awarded Sullivan $500,000 (Fonder & Shaffery, 2005) and in its appeal, the Supreme Court with a unanimous decision ...