This begins our look at the Bill of Rights. We see how these freedoms of expression come to be protected from state as well as federal repression. The Supreme Court used the Fourteenth Amendment to selectively incorporate these guarantees in a series of twentieth century decisions.

2. The U.S. Constitution
session v
First Amendment

3. major points of this session
I.Historical Background
II. Religion
III. Speech
IV. Press
V. Assembly & Petition

4. It was Reagan’s “morning again in America.” The Cold War was
getting colder. The Soviets were mired in Afghanistan and Reagan
announced SDI (“Star Wars”).
In the spring of 1984 Hollywood released an unabashedly patriotic
film, Moscow on the Hudson•. The film is light-hearted, but it really slams
the Soviet failures and exhibits America’s best qualities.
Robin Williams plays a Russian musician who defects at Bloomingdales
in Manhattan. He is befriended by an Italian shop clerk who is studying
for her American citizenship test. As they are sharing a romantic tub, he
quizzes her. How many of us native-born could do as well as she?
jbp

5. It was Reagan’s “morning again in America.” The Cold War was
getting colder. The Soviets were mired in Afghanistan and Reagan
announced SDI (“Star Wars”).
In the spring of 1984 Hollywood released an unabashedly patriotic
film, Moscow on the Hudson•. The film is light-hearted, but it really slams
the Soviet failures and exhibits America’s best qualities.
Robin Williams plays a Russian musician who defects at Bloomingdales
in Manhattan. He is befriended by an Italian shop clerk who is studying
for her American citizenship test. As they are sharing a romantic tub, he
quizzes her. How many of us native-born could do as well as she?
jbp

8. 36% of Americans can’t name a single First Amendment
freedom
polling reported on Fox News, Sunday 18 Aug 2013

9. Historical Background

11. Government repression of dangerous ideas and their expression is at least
as old as recorded history. Despite its futility and counterproductive
outcome, it endures to the present. A few examples will suffice.
jbp

12. Intolerance is a 1916 American silent film directed by D. W. Griffith and is considered one of the great
masterpieces of the Silent Era. The three-and-a-half hour epic intercuts four parallel story lines, each
separated by several centuries: (1) A contemporary melodrama of crime and redemption; (2) a Judean story:
Christ’s mission and death; (3) a French story: the events surrounding the St. Bartholomew's Day massacre
of 1572; and (4) a Babylonian story: the fall of the Babylonian Empire to Persia in 539 BC. The scenes are
linked by shots of a figure representing Eternal Motherhood, rocking a cradle
Wikipedia

13. “The blood of martyrs
is the seed of the Church.”
Western Father Tertullian, 2nd century
A.D.

14. “The blood of martyrs
is the seed of the Church.”
Western Father Tertullian, 2nd century
A.D.

15. In 250, the emperor Decius issued an edict, the text of which has
been lost, requiring everyone in the Empire (except Jews, who were
exempted) to perform a sacrifice to the gods in the presence of a
Roman magistrate and obtain a signed and witnessed certificate,
called a libellus, to this effect. The decree was part of Decius' drive to
restore traditional Roman values.... A number of these certificates
still exist, one discovered in Egypt... (Text of papyrus in illustration)
reads:
To those in charge of the sacrifices of the village Theadelphia,
from Aurelia Bellias, daughter of Peteres, and her daughter Kapinis.
We have always been constant in sacrificing to the gods, and
now too, in your presence,in accordance with the regulations, I
have poured libations and sacrificed and tasted the offerings,
and I ask you to certify this for us below. May you continue to
prosper. (Second person's handwriting) We, Aurelius Serenus and
Aurelius Hermas, saw you sacrificing. (Third person's handwriting) I,
Hermas, certify. The first year of the Emperor Caesar Gaius Messias
Quintus Traianus Decius Pius Felix Augustus, Pauni 27.
Wikipedia

16. When Christianity gained the state power in the 4th century it paid the
pagans (people who lived in the pagus- Lat. for countryside) back in full
measure. In later centuries it was the heretics’ (from heiresis- Gk. verb ‘to
split, i.e., those who were splitting off from the true faith) turn.
Spain was most famous for its zeal.
England escaped most of the Wars of Religion (1522-1648). Still, the
fate of John Lilburne is instructive. His punishment was well known to the
authors of the Bill of Rights.
jbp

17. A Martyr for First Amendment Freedoms
a political “Leveler” before, during, and after the
English Civil War
he coined the term “freeborn rights”
rights with which every human being is born, as
opposed to those granted by government or law
he was also known as Freeborn John
in early life a Puritan, he became a Quaker
1637-his campaign for religious freedom led him
to circulate an unlicensed pamphlet against the
Church of England
1638-brought before the Court of the Star
Chamber, he challenged their proceedings
John Lilburne
1614 – 1657
picture 1641

18. “On 18 April 1638 Lilburne was flogged with a three-thonged whip on his bare
back, as he was dragged by his hands tied to the rear of an ox cart from Fleet
Prison to the pillory at Westminster. He was then forced to stoop in the pillory
where he still managed to campaign against his censors, while distributing
more unlicensed literature to the crowds. He was then gagged. Finally he was
thrown in prison. He was taken back to the court and again imprisoned. During
his imprisonment in Fleet he was cruelly treated. While in prison he however
managed to write and to get printed in 1638 an account of his own punishment
styled The Work of the Beast and in 1639 an apology for separation from the
Church of England, entitled Come out of her, my people.
Wikipedia

19. A Martyr for First Amendment Freedoms
he coined the term “freeborn rights”
this gives him status as an early source for the
Declaration’s concept of “unalienable” or natural rights
he also antecedes Rousseau’s “born free” by a century
his “offenses” are are nullified by the U.S. Bill of Rights
AM I-”no establishment,” “free exercise,” “freedom of the
press”
AM V-”...nor be deprived of life, liberty, or property
without due process of law….”
AM VI-”In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial….”
AM VIII-”...nor cruel and unusual punishments inflicted.”
John Lilburne
1614 – 1657
picture 1641

20. Toleration in Colonial America-a mixed bag
1607-VA had an established Anglican Church until Jefferson’s
Statute for Religious Freedom (drafted 1777, enacted 1786)
1620-MA was officially Congregationalist until 1830! They drove
Roger Williams out for his theological deviance
1636-he founded RI (called Rogue’s Island by the Puritans) the
only colony which tolerated persons of any or no religion
1649-MD- the Toleration Act was unusual for tolerating Catholics
and any Trinitarian Christians. However, to deny Christ’s divinity
was a capital offense
1681-PA-Penn’s Charter of Privileges created a haven for Quakers,
but tolerated all monotheists. Only Christians could hold office

21. 19th Century American Religious Toleration
probably never more than 10,000, this
reclusive sect inspired only mild social
condemnation
the common view was that they were
quaint, even idyllic
as the group declined in the second half
of the 19th century “most viewed them as
being, at worst, sexually repressed
eccentrics who at least made nice
furniture”-Wiki
Shakers* LDS (Mormons)
_________
* The United Society of Believers in Christ’s Second Appearing

22. 19th Century American Religious Toleration
Shakers* LDS (Mormons)
_________
* The United Society of Believers in Christ’s Second Appearing

25. 19th Century American Religious Toleration
probably never more than 10,000, this
reclusive sect inspired only mild social
condemnation
the common view was that they were
quaint, even idyllic
as the group declined in the second half
of the 19th century “most viewed them as
being, at worst, sexually repressed
eccentrics who at least made nice
furniture”-Wiki
during Brigham Young’s presidency
(1847-77) over 70,000 converts
immigrated from overseas!
this prosperous growing sect had
produced outrage from the beginning.
Founder, Jos Smith & his brother had
been killed by a mob in 1844
1852-the existing practice of plural
marriage was declared a public doctrine
of polygamy
Shakers* LDS (Mormons)
_________
* The United Society of Believers in Christ’s Second Appearing

27. 19th Century American Religious Toleration
probably never more than 10,000, this
reclusive sect inspired only mild social
condemnation
the common view was that they were
quaint, even idyllic
as the group declined in the second half
of the 19th century “most viewed them as
being, at worst, sexually repressed
eccentrics who at least made nice
furniture”-Wiki
during Brigham Young’s presidency
(1847-77) over 70,000 converts
immigrated from overseas!
this prosperous growing sect had
produced outrage from the beginning.
Founder, Jos Smith & his brother had
been killed by a mob in 1844
1852-the existing practice of plural
marriage was declared a public doctrine
of polygamy
1857-Pres Buchanan sent the army
against them into the Utah Territory
Shakers* LDS (Mormons)
_________
* The United Society of Believers in Christ’s Second Appearing

28. “If there was an American philosophy in the [eighteen] seventies, it
was a corrupted version of Scottish common-sense doctrines,
taking as given every man’s ability to know that God had ordained
modesty in women, rectitude in men, and thrift, sobriety, and hard
work in both. People of very different backgrounds accommodated
themselves to this Protestant code which had become so thoroughly
identified with respectability, and the keepers of the national
conscience applied its rules with slight margin for the deviant. An
age in which the Supreme Court justified oppression of the
Mormons because no right-thinking man could consider theirs a
religion would not be remembered for its cosmopolitan tolerance.
Wiebe, op.cit., p. 4

29. Reynolds v. United States, 98 U.S.(8 Otto.) 145 (1878)
facts
the Mormons believed that the Morrill Anti-Bigamy Act violated their 1st
AM right to “free exercise.” George Reynolds agreed to be a test case
issues--(there were three other procedural ones besides the “religious”one)
decision
the statute forbidding polygamy in the territories was not violative of the
First Amendment
“Laws are made for the government of actions, and while they cannot interfere with
mere religious belief and opinions, they may with practices. Suppose one believed
that human sacrifices were a necessary part of religious worship; would it be seriously
contended that the civil government under which he lived could not interfere to
prevent a human sacrifice?”
significance
religious duty was not a defense to a criminal indictment

30. Religion

31. Religion

32. Cantwell v. Connecticut, (1940)
facts
A Connecticut statute required licenses for those soliciting for religious or charitable purposes.
The statute was an early type of consumer protection law: it required the Secretary, before
issuing a certificate permitting solicitation, to determine whether the cause was
"a religious one or is a bona fide object of charity or philanthropy" and whether the
solicitation "conforms to reasonable standards of efficiency and integrity."
Newton Cantwell (a Jehovah's Witness) and his two sons, Jesse and Russel, were
proselytizing in a heavily Roman Catholic neighborhood in New Haven, Connecticut. The
Cantwells were going door to door, with books and pamphlets and a portable phonograph
with sets of records. Each record contained a description of one of the books. One such book
was "Enemies", which was an attack on organized religion in general and especially the
Roman Catholic Church. Jesse Cantwell stopped two men on the street and requested
permission to play a phonograph. They gave permission, and after hearing the recording, the
two citizens were incensed; though they wanted to physically assault the Cantwells, they
restrained themselves.
Cantwell and his two sons were arrested and charged with: (1) violation of a Connecticut
statute requiring solicitors to obtain a certificate from the secretary of the public welfare
council ("Secretary") before soliciting funds from the public, and (2) inciting a common-law
breach of the peace.
The Cantwells stated they did not get a license because they did not believe the government
had the right to determine whether the Witnesses were a religion. They argued that the
statute denied the trio their due process rights under the 14th Amendment, and it also denied
them their First Amendment rights to freedom of speech and religious expression [“free
exercise”].--Wikipedia

33. Cantwell v. Connecticut, (1940)
facts (cont.)
The Connecticut Supreme Court disagreed with the Cantwells, finding that the statute was an effort by
the state of Connecticut to protect the public against fraud, and as such, the statute was constitutional.
The Connecticut Supreme Court upheld the conviction of all three on the statutory charge and affirmed
one son's conviction of inciting a breach of the peace, but remanded the inciting a breach of peace
charge against the other two for a new trial
issue
whether the state's action in convicting the Cantwells with inciting a breach of the peace and violating
the solicitation statute violated their First Amendment right to free exercise of religion
decision
Justice Owen Roberts wrote in a unanimous opinion that "to condition the solicitation of aid for the
perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a
determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the
exercise of liberty protected by the Constitution."
"We hold that the statute, as construed and applied to the appellants, deprives them of their liberty
without due process of law in contravention of the Fourteenth Amendment. The fundamental concept of
liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment.”
significance
Before the Cantwell decision, it was not legally clear that the First Amendment protected religious
practitioners against restrictions at the state and local levels as well as federal. But the Supreme Court
in Cantwell said it did, thereby ushering in an era of greatly strengthened religious freedom.--Wikipedia

34. Everson v. Board of Education, (1947)
facts
a New Jersey law authorized payment by local school boards of the costs of transportation to and
from schools - including private schools. Of the private schools that benefited from this policy, 96%
were parochial Catholic schools. Arch R. Everson, a taxpayer in Ewing Township, filed a lawsuit
alleging that this indirect aid to religion through the mechanism of reimbursing parents and students
for costs incurred as a result of attending religious schools violated both the New Jersey state
constitution and the First Amendment. After a loss in the New Jersey Court of Errors and Appeals,
then the state's highest court, Everson appealed to the U.S. Supreme Court on purely federal
constitutional grounds. Arguments were heard on November 20, 1946
issue
did the Due Process Clause of the Fourteenth Amendment incorporate the Establishment Clause as
well as the Free Exercise Clause, as ruled in the Cantwell case seven years earlier?
decision
The 5-4 decision was handed down on February 10, 1947. The Court, through Justice Hugo Black•,
ruled that the state bill was constitutionally permissible because the reimbursements were offered to
all students regardless of religion and because the payments were made to parents and not any
religious institution
significance
Perhaps as important as the actual outcome, though, was the interpretation given by the entire
Court to the Establishment Clause. It reflected a broad interpretation of the Clause that was to guide
the Court's decisions for decades to come--Wikipedia

35. Engle v. Vitale, (1962)

36. Engle v. Vitale, (1962)
facts
Jewish families brought suit against the 23-word official prayer composed by the NY Board
of Regents who had tried to compose one which wouldn’t prefer any religion to another. The
prayer:
Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our
parents, our teachers and our country. Amen.
22 states signed an amicus curiae brief urging affirmation of the NY Court of Appeals decision
that upheld the constitutionality of the prayer. The American Jewish Committee, the
Synagogue Council of America and the American Ethical Union each submitted briefs urging
the Court to reverse
issue
was this supposedly neutral prayer violative of the Establishment Clause?
decision

37. Engle v. Vitale, (1962)
facts
Jewish families brought suit against the 23-word official prayer composed by the NY Board
of Regents who had tried to compose one which wouldn’t prefer any religion to another. The
prayer:
Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our
parents, our teachers and our country. Amen.
22 states signed an amicus curiae brief urging affirmation of the NY Court of Appeals decision
that upheld the constitutionality of the prayer. The American Jewish Committee, the
Synagogue Council of America and the American Ethical Union each submitted briefs urging
the Court to reverse
issue
was this supposedly neutral prayer violative of the Establishment Clause?
decision
Justice Hugo Black, writing for the 6-1 majority, ruled that government-written prayers were not to
be recited in public schools. He “rejected the defendant's arguments that people are not asked to
respect any specific established religion; and that the prayer is voluntary. The Court held that the
mere promotion of a religion is sufficient to establish a violation, even if that promotion is not
coercive. The Court further held that the fact that the prayer is vaguely worded enough not to
promote any particular religion is not a sufficient defense…--Wikipedia

38. Engle v. Vitale, (1962)
facts
Jewish families brought suit against the 23-word official prayer composed by the NY Board
of Regents who had tried to compose one which wouldn’t prefer any religion to another. The
prayer:
Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our
parents, our teachers and our country. Amen.
22 states signed an amicus curiae brief urging affirmation of the NY Court of Appeals decision
that upheld the constitutionality of the prayer. The American Jewish Committee, the
Synagogue Council of America and the American Ethical Union each submitted briefs urging
the Court to reverse
issue
was this supposedly neutral prayer violative of the Establishment Clause?
decision
Justice Hugo Black, writing for the 6-1 majority, ruled that government-written prayers were not to
be recited in public schools. He “rejected the defendant's arguments that people are not asked to
respect any specific established religion; and that the prayer is voluntary. The Court held that the
mere promotion of a religion is sufficient to establish a violation, even if that promotion is not
coercive. The Court further held that the fact that the prayer is vaguely worded enough not to
promote any particular religion is not a sufficient defense…--Wikipedia

39. Engle v. Vitale, (1962)
significance
Subsequent jurisprudence: Engle became the basis for several subsequent
decisions limiting government-directed prayer in school
Wallace v. Jaffree (1985), the Supreme Court ruled Alabama’s law permitting prayer
or meditation was unconstitutional
Lee v. Weismann (1992), the Court prohibited clergy-led prayer at middle school
graduation ceremonies
Lee v. Weismann, in turn, was the basis for Santa Fe ISD v. Doe (2000), in which the
Court extended the ban to school-organized student-led prayer at high school
football games

40. Engle v. Vitale, (1962)
significance
Subsequent jurisprudence: Engel became the basis for several subsequent
decisions limiting government-directed prayer in school
Wallace v. Jaffree (1985), the Supreme Court ruled Alabama’s law permitting prayer
or meditation was unconstitutional
Lee v. Weismann (1992), the Court prohibited clergy-led prayer at middle school
graduation ceremonies
Lee v. Weismann, in turn, was the basis for Santa Fe ISD v. Doe (2000), in which the
Court extended the ban to school-organized student-led prayer at high school
football games
“the most hated woman in America”-Madalyn Murray O’Hair
Murray v. Curlett (1963), ended official Bible-reading in American Public Schools
1995 she was kidnapped, murdered, and her body mutilated, along with her son Jon
Murray and granddaughter Robin Murray O'Hair, by former American Atheist office
manager David Roland Waters--Wikipedia

41. Abington School District v. Schempp, (1963)
http://www.firstamendmentcenter.org/
faq/frequently-asked-questions
-religious-liberty
The Court decided 8–1 in favor of the respondent, Edward Schempp, and
declared school-sponsored Bible reading in public schools in the United States to
be unconstitutional.
[O]ur interpretation of the First Amendment must necessarily be responsive to
the much more highly charged nature of religious questions in contemporary
society. A too literal quest for the advice of the Founding Fathers upon the
issues of these cases seems to me futile and misdirected.
Wikipedia
Justice Brennan, in a concurring opinion, took a swipe at “original intent,” as
follows:
William J. Brennan, Jr.
Associate Justice
1956-1990
leader of the Court’s liberal wing

42. Abington School District v. Schempp, (1963)
However, the Court indicated that public school education may include
teaching about religion. Associate Justice Tom Clark wrote for the Court:
“[I]t might well be said that one’s education is not complete without a study of
comparative religion or the history of religion and its relationship to the
advancement of civilization. It certainly may be said that the Bible is worthy of
study for its literary and historic qualities. Nothing we have said here indicates
that such study of the Bible or of religion, when presented objectively as part of
a secular program of education, may not be effected consistently with the First
Amendment.”
http://www.firstamendmentcenter.org/faq/frequently-asked-questions-religious-liberty
The Court decided 8–1 in favor of the respondent, Edward Schempp, and
declared school-sponsored Bible reading in public schools in the United States to
be unconstitutional.
[O]ur interpretation of the First Amendment must necessarily be responsive to
the much more highly charged nature of religious questions in contemporary
society. A too literal quest for the advice of the Founding Fathers upon the
issues of these cases seems to me futile and misdirected.
Wikipedia
Justice Brennan, in a concurring opinion, took a swipe at “original intent,” as
follows:
Thomas Campbell Clark
US Attorney General
1945-1949
Associate Justice
1949-1967

43. Minersville School District v. Gobitis, (1940)

44. Minersville School District v. Gobitis, (1940)
facts
1935-Jehovah’s Witness leadership advise parents to instruct their
children to refuse to salute the flag and pledge allegiance in school
1938-Walter Gobitis instructs William and Lillian to refuse. They are the
object of considerable taunting. The predominantly Roman Catholic
community sees this as an occasion for getting back at the troublesome
Witnesses
1940-after losing at the District and Third Circuit Court of Appeals on
“free exercise” grounds, the school district appealed to the USSC
issue
did the First Amendment, as applied to the government of PA by the
Fourteenth Amendment’s “due process” clause, protect the Witnesses?

45. Minersville School District v. Gobitis, (1940)
decision
8-1, the Court upheld the mandatory flag salute declining to make itself “the
school board of the country”
Justice Frankfurter, writing the majority decision, relied on the “secular
regulation” rule. The school district’s interest in creating national unity was
enough to allow them to make the salute mandatory
Felix Frankfurter
Associate Justice
1939-1962

46. Minersville School District v. Gobitis, (1940)
decision
8-1, the Court upheld the mandatory flag salute declining to make itself “the
school board of the country”
Justice Frankfurter, writing the majority decision, relied on the “secular
regulation” rule. The school district’s interest in creating national unity was
enough to allow them to make the salute mandatory
Justice Harlan Stone, the sole dissenter:
Harlan Fiske Stone
12th Chief Justice
1941-1946
Associate Justice, USSC
1925-1941

47. Minersville School District v. Gobitis, (1940)
decision
8-1, the Court upheld the mandatory flag salute declining to make itself “the
school board of the country”
Justice Frankfurter, writing the majority decision, relied on the “secular
regulation” rule. The school district’s interest in creating national unity was
enough to allow them to make the salute mandatory
Justice Harlan Stone, the sole dissenter:
The guarantees of civil liberty are but guarantees of freedom of the human mind and spirit and
of reasonable freedom and opportunity to express them...The very essence of the liberty
which they guarantee is the freedom of the individual from compulsion as to what he shall think
and what he shall say...
effects of the decision
the ACLU reported that nearly 1,500 Witnesses were physically attacked in more
than 300 communities nationwide. One Southern sheriff told a reporter why
Witnesses were being run out of town: ” They’re traitors; the Supreme Court says
so. Ain’t you heard?”

48. West Virginia State Board of Education v. Barnette, (1943)
facts
1942-following Gobitis (and Pearl Harbor), the West VA State Bd of Ed made
patriotic classes and a daily flag pledge compulsory
the Barnettes brought suit in fed District Court citing Exodus 20; 4 & 5
'Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven
above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not
bow down thyself to them nor serve them.'
issue
unlike the Gobitis case where “free exercise” was alleged , this argument by
Barnette’s lawyers took the line of Justice Stone’s dissent. They argued that the
Free Speech Clause gave the Barnette children the right to not say something
the State argued res judicata (the matter, [already] having been judged, i.e. settled law)

49. West Virginia State Board of Education v. Barnette, (1943)
decision
6-3, the Court overturned Gobitis and held that compelling public school children
to salute the flag against their religious beliefs violated their freedom of speech
Justice Robert Jackson, writing the majority opinion:
"If there is any fixed star in our constitutional constellation, it is that no official, high or petty,
can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith therein."
Robert H. Jackson
Associate Justice
1941-1954
International Military Tribunal
1945-1946

50. West Virginia State Board of Education v. Barnette, (1943)
decision
6-3, the Court overturned Gobitis and held that compelling public school children
to salute the flag against their religious beliefs violated their freedom of speech
Justice Robert Jackson, writing the majority opinion:
"If there is any fixed star in our constitutional constellation, it is that no official, high or petty,
can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith therein."
significance
after Barnette the Court turned away from the doctrine that belief was protected
but not action stemming from that belief. It created exemptions for believers of
different faiths:
in Sherbert v. Verner (1963), the Court upheld a Seventh-Day Adventist’s claim to unemployment
benefits even though she declined to make herself available to work on Saturday (her Sabbath)
in Wisconsin v. Yoder (1972), the Court upheld the right of Amish parents to not send their
children to public schools past the eighth grade

51. Speech

53. There is a long history of government suppression of sedition
[“the "notion of inciting by words or writings disaffection towards the
state” Elizabethan statute, ca. 1590 --Wiki].
The Sedition Act of 1798• ,which Adams and the Federalists had
passed during the Quasi-War with France, was the first American
example. Jefferson and his followers disapproved and urged the first
attempt at nullification (state refusal to enforce a federal law).
jbp

54. There is a long history of government suppression of sedition
[“the "notion of inciting by words or writings disaffection towards the
state” Elizabethan statute, ca. 1590 --Wiki].
The Sedition Act of 1798, which Adams and the Federalists had
passed during the Quasi-War with France, was the first American
example. Jefferson and his followers disapproved and urged the first
attempt at nullification (state refusal to enforce a federal law).
Lincoln’s rough, sometimes unconstitutional, handling of the
Copperheads is another example.
Our first consideration of whether the Free Speech Clause might
apply in such cases is dated from World War I and the post-war “Red
Scare.”
The cases, Schenck and Gitlow.
jbp

55. From Schenck to Abrams (1919)
in Schenck v. U.S. (1919), the Court upheld the constitutionality of the
Espionage Act of 1917. The defendant did not have a First Amendment right
to speak against the draft in WW I
Oliver Wendell Holmes in a unanimous decision:
The most stringent protection of free speech would not protect a man in falsely shouting
fire in a theatre and causing a panic. [...] The question in every case is whether the
words used are used in such circumstances and are of such a nature as to create a
clear and present danger that they will bring about the substantive evils that Congress
has a right to prevent --Wikipedia
Oliver Wendell
Holmes, Jr.
(1841-1935)
Associate Justice
(1902-1932)

56. From Schenck to Abrams (1919)
in Schenck v. U.S. (1919), the Court upheld the constitutionality of the
Espionage Act of 1917. The defendant did not have a First Amendment right
to speak against the draft in WW I
Oliver Wendell Holmes in a unanimous decision:
The most stringent protection of free speech would not protect a man in falsely shouting
fire in a theatre and causing a panic. [...] The question in every case is whether the
words used are used in such circumstances and are of such a nature as to create a
clear and present danger that they will bring about the substantive evils that Congress
has a right to prevent --Wikipedia
the Abrams case came a few months later. Now Holmes would make his “Great
Dissent”-Thomas Healy in The Great Dissent; How Oliver Wendell Holmes Changed His Mind--
And Changed the History of Free Speech in America (2013)
facts
the Red Scare (1919-1920) led to convictions and deportations of a
variety of American leftists. When anarchist bombers blew up the
Attorney General’s house (almost killing FDR & Eleanor!) the Palmer
raids began

61. Abrams to Gitlow v. New York, (1925)
in Schenck v. U.S. (1919)...
Oliver Wendell Holmes in a unanimous decision:
...not protect a man in falsely shouting fire in a theatre and causing a panic. [...] a clear and present
danger that they will bring about the substantive evils that Congress has a right to prevent --Wikipedia
the Abrams case came a few months later. Now Holmes would make his “Great
Dissent”
facts
Abrams had leafleted his opposition to U.S. intervention in the Russian Civil War
decision
Justice Clarke proposed a looser test, “bad tendency” in the decision finding
Abrams guilty

62. Abrams to Gitlow v. New York, (1925)
in Schenck v. U.S. (1919)...
Oliver Wendell Holmes in a unanimous decision:
...not protect a man in falsely shouting fire in a theatre and causing a panic. [...] a clear and present
danger that they will bring about the substantive evils that Congress has a right to prevent --Wikipedia
the Abrams case came a few months later. Now Holmes would make his “Great
Dissent”
facts
Abrams had leafleted his opposition to U.S. intervention in the Russian Civil War
decision
Justice Clarke proposed a looser test, “bad tendency” in the decision finding
Abrams guilty
Holmes, joined by Brandeis, wrote that there was no “clear and present danger,” and that
that stricter test should apply
the Gitlow case would complete the Red Scare, Free Speech drama
Louis Brandeis
on the Court
1916-1939
O.W. Holmes, Jr.
on the Court
1902-1932

63. Gitlow v. New York, (1925)
facts
1919-Benjamin Gitlow, a NY State Assemblyman (!), was charged with criminal anarchy
for publishing “Left Wing Manifesto” in The Revolutionary Age, a newspaper for which he
served as business manager
1920-convicted, he served 2 years in Sing Sing before coming out on appeal. The first
First Amendment case argued by the ACLU before the USSC
issues
jurisdiction-could the Court begin incorporating?
merits of the case
decision
the NY State conviction was upheld upheld-7-2 with Brandeis & Holmes dissenting
significance
began the selective incorporation of the First Amendment, “...Freedom of Speech”

64. the liberalizing trend continues
In Whitney v. CA, (1927), Brandeis wrote another stirring dissent:
Those who won our independence ... believed that freedom to think as you will
and to speak as you think are means indispensable to the discovery and spread
of political truth; that without free speech and assembly discussion would be
futile; that with them, discussion affords ordinarily adequate protection against
the dissemination of noxious doctrine; that the greatest menace to freedom is an
inert people; that public discussion is a political duty; and that this should be a
fundamental principle of the American government.--Wikipedia
In Herndon v. Lowry (1937), the Court heard the case of African American
Communist Party organizer Angelo Herndon, who had been convicted under the
Slave Insurrection Statute(!) for advocating black rule in the southern United
States. In a 5-4 decision, the Court reversed Herndon's conviction, upholding
Holmes' "clear and present danger" test for the first time and arguing that the
state of Georgia had not demonstrated that Herndon's actions met this
standard--Wiki
The Smith Act (1940) continued to grapple with the Communist threat
vs. free speech. Conservatives fought a rear guard action throughout the
‘50s.
jbp

65. With the ‘60s, the flood gates open-i
During the Vietnam War, the Court's position on public criticism of the government
changed drastically. [emphasis added, jbp]Though the Court upheld a law prohibiting the
forgery, mutilation, or destruction of draft cards in United States v. O'Brien (1968), fearing
that burning draft cards would interfere with the "smooth and efficient functioning" of the
draft system, the next year, the court handed down its decision in Brandenburg v. Ohio
(1969), expressly overruling Whitney v. California. Now the Supreme Court referred to the
right to speak openly of violent action and revolution in broad terms:
Brandenburg discarded the "clear and present danger" test introduced in Schenck and
further eroded Dennis. In Cohen v. California (1971), the Court voted 5-4 to reverse the
conviction of a man wearing a jacket reading "Fuck the Draft" in the corridors of a Los
Angeles County courthouse. Justice John Marshall Harlan wrote in the majority opinion
that Cohen's jacket fell in the category of protected political speech despite the use of an
expletive: "one man's vulgarity is another man's lyric."
Wikipedia
[Our] decisions have fashioned the principle that the constitutional guarantees of free speech
and free press do not allow a State to forbid or proscribe advocacy of the use of force or law
violation except where such advocacy is directed to inciting or producing imminent lawless
action and is likely to incite or cause such action.

66. A whole litany of speech categories;
some protected, some not
anonymous speech
political campaign contributions
flag desecration
commercial speech
school speech
falsifying military awards
defamation--(libel vs slander)
“fighting words”
obscenity
pornography
intellectual property rights
government as regulator of
“airwaves” (not cyberspace)

67. Obscenity
“(The public, of course, has much greater interest here than in
most legal developments, the conjunction of sex and politics being
an irresistible locus for news and conversation.)”….
Nothing has ever been censored on the ground that it had a
tendency to promote dishonesty or cruelty or cowardice. No
significant legislative attempt has ever been made to suppress
books except to preserve the political order, the established piety
or theoretical standards of sexual behavior.
Charles Rembar,The End of Obscenity; The Trials of Lady Chatterley, Tropic of Cancer & Fanny Hill. New
York: Harper & Row, 1968. pp. xi, 21

68. With the ‘60s, the flood gates open-ii
We all are old enough to remember the movies of the ‘40s and ‘50s.
Then a flood of sexually explicit films came when Hollywood
embraced the Counterculture. My eye-opener was when Henry
Fonda’s little girl (actually 31-years-old by then) starred in
Barbarella (1968)

69. With the ‘60s, the flood gates open-ii
We all are old enough to remember the movies of the ‘40s and ‘50s.
Then a flood of sexually explicit films came when Hollywood
embraced the Counterculture. My eye-opener was when Henry
Fonda’s little girl (actually 31-years-old by then) starred in
Barbarella (1968)

72. You get the idea...

73. Where to draw the line!
1873-Comstock Act-federal law making it illegal to send “obscene” material
through the mail (including contraceptives and information about their use)
24 states passed similar laws

74. Where to draw the line!
1873-Comstock Act-federal law making it illegal to send “obscene” material
through the mail (including contraceptives and information about their use)
24 states passed similar laws
the Hicklin test-a Victorian definition of obscenity:
all material tending "to deprave and corrupt those whose minds are open to such immoral
influences" was obscene, regardless of its artistic or literary merit”-Wiki
1957- Roth v. U.S.-Justice Brennan wrote the 6-3 decision replacing Hicklin:
defined obscenity more strictly, as material whose "dominant theme taken as a whole appeals to the
prurient interest" to the "average person, applying contemporary community standards."-Wiki

75. Where to draw the line!
1873-Comstock Act-federal law making it illegal to send “obscene” material
through the mail (including contraceptives and information about their use)
24 states passed similar laws
the Hicklin test-a Victorian definition of obscenity:
all material tending "to deprave and corrupt those whose minds are open to such immoral
influences" was obscene, regardless of its artistic or literary merit”-Wiki
1957- Roth v. U.S.-Justice Brennan wrote the 6-3 decision replacing Hicklin:
defined obscenity more strictly, as material whose "dominant theme taken as a whole appeals to the
prurient interest" to the "average person, applying contemporary community standards."-Wiki
1964- Jacobeillis v. OH-here, Potter Stewart
Potter Stewart
(1915-1985)
Associate Justice
(1958-1981)

76. Where to draw the line!
1873-Comstock Act-federal law making it illegal to send “obscene” material
through the mail (including contraceptives and information about their use)
24 states passed similar laws
the Hicklin test-a Victorian definition of obscenity:
all material tending "to deprave and corrupt those whose minds are open to such immoral
influences" was obscene, regardless of its artistic or literary merit”-Wiki
1957- Roth v. U.S.-Justice Brennan wrote the 6-3 decision replacing Hicklin:
defined obscenity more strictly, as material whose "dominant theme taken as a whole appeals to the
prurient interest" to the "average person, applying contemporary community standards."-Wiki
1964- Jacobeillis v. OH-here, Potter Stewart, concurring, famously:
"I shall not today attempt further to define the kinds of material I understand to be embraced within
that shorthand description [hard-core pornography]; and perhaps I could never succeed in
intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not
that." (emphasis added) -Wiki
as a result of this loosening of standards, Hollywood and the importers of
foreign films unleashed a torrent of “skin flicks”

77. Miller v. California, (1973)
the justices of the Warren Court (1953-1969) came to regret having to watch
porno films and make the call in each case

78. Miller v. California, (1973)
the justices of the Warren Court (1953-1969) came to regret having to watch
porno films and make the call in each case
the Burger Court (1969-1986) was ready for a new rule
facts
1971-Marvin Miller, owner of a mail-order “porno” shop mailed a graphic brochure
to a man whose mother opened it. They called the cops. The CA courts
sustained Miller’s conviction under CA Penal Code 311.2.(a):
“Every person who knowingly sends or causes to be sent, or brings or causes to be brought,
into this state for sale or distribution, or in this state possesses, prepares, publishes, produces,
or prints, with intent to distribute or to exhibit to others, or who offers to distribute, distributes,
or exhibits to others, any obscene matter is for a first offense, guilty of a misdemeanor."
issue
would the Burger Court retain the Roth Rule?

79. Miller v. California, (1973)
decision (5-4)
except in rare cases, censorship is unconstitutional
"[t]he basic guidelines for the trier of fact must be: (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 literary, artistic, political, or
scientific value." The Court rejected the "utterly without redeeming social value" test of
the Memoirs decision--www.oyez.org
significance
the Court signaled that it had had enough of these cases and that, hereafter, the
burden would rest with the “community “ courts to determine their “community
standards”

80. Miller v. California, (1973)
a nice feature of www.Oyez.org: It orders the pictures of the
deciding judges by:
vote
seniority
ideology

81. Press

83. Colonial America has the honor of beginning the campaign to limit
press censorship.
In 1733 John Peter Zenger, a German-American printer, publisher,
editor and journalist in New York City published a series of articles
critical of the Royal Governor, William Cosby. He was charged with
seditious libel.
In 1735 the jury agreed with his lawyer that truth was defense against
the charge.
jbp

84. Justice Stewart has argued: “That the First Amendment speaks
separately of freedom of speech and freedom of the press is no
constitutional accident, but an acknowledgment of the critical role
played by the press in American society. The Constitution requires
sensitivity to that role, and to the special needs of the press in
performing it effectively.”
The Annotated Constitution @
http://www.law.cornell.edu/anncon/html/amdt1bfrag2_user.html#amdt1b_hd6

85. Justice Stewart has argued: “That the First Amendment speaks
separately of freedom of speech and freedom of the press is no
constitutional accident, but an acknowledgment of the critical role
played by the press in American society. The Constitution requires
sensitivity to that role, and to the special needs of the press in
performing it effectively.” But as Chief Justice Burger wrote: •
“The Court has not yet squarely resolved whether the Press Clause
confers upon the ‘institutional press’ any freedom from government
restraint not enjoyed by all others.”
The Annotated Constitution @
http://www.law.cornell.edu/anncon/html/amdt1bfrag2_user.html#amdt1b_hd6
Warren E. Burger
(1907-1995)
15th Chief Justice
(1969-1986)

86. scope?
1938-in yet another ‘30s Jehovah’s Witness case, Lovell v. City of
Griffin, Chief Justice Hughes wrote the 7-1 decision:
Charles Evans Hughes
11th Chief Justice
1930-1941
Associate Justice
1910-1931

87. scope?
1938-in yet another ‘30s Jehovah’s Witness case, Lovell v. City of
Griffin, Chief Justice Hughes wrote the 7-1 decision:
the city of Griffin, GA could not require licensing of all periodicals,
whether or not “obscene, offensive to public morals, or advocating
unlawful conduct”
the First Amendment was not limited to newspapers and periodicals. It
included leaflets and pamphlets as well such as those distributed by
Witness Alma Lovell
press freedom has also been applied to plays, movies, and video
games. Not yet to social media and blogs!

88. Near v. Minnesota, (1931)
facts
1927-Jay Near, characterized as “anti-Catholic, anti-Semitic, anti-black and anti-
labor,”began publishing The Saturday Press in Minneapolis with Howard Guilford,
a former mayoral candidate who had been convicted of criminal libel
one of his many targets, future three-time governor Floyd Olson, filed charges
under the Public Nuisance Law of 1925
it provided permanent injunctions against those who created a "public nuisance," by
publishing, selling, or distributing a "malicious, scandalous and defamatory newspaper."
after losing twice in the Minnesota Supreme Court, Near was able to get a hearing
before the USSC
issue
the constitutionality of the Minnesota law

89. Near v. Minnesota, (1931)
decision
except in rare cases, censorship is unconstitutional
"For these reasons we hold the statute to be an infringement of the liberty of the press
guaranteed by the Fourteenth Amendment. We should add that this decision rests upon
the operation and effect of the statute, without regard to the question of the truth of the
charges contained in the particular periodical. The fact that the public officers named in
this case, and those associated with the charges of official dereliction, may be deemed
to be impeccable cannot affect the conclusion that the statute imposes an
unconstitutional restraint upon publication."
significance
with certain exceptions (sailing dates of transports or location and numbers of
troops in wartime) Near declared prior restraint unconstitutional
the issue will be revisited in a famous case:
New York Times Co. v. Sullivan (1964)

90. New York Times Co. v. Sullivan, (1964)
facts
1960-the Times published a full-page ad by civil rights advocates (including our
Fred Shuttlesworth) critical of Alabama State Police.
Montgomery Public Safety commissioner Sullivan sued for libel. At this time there
were judgements of nearly $300 million outstanding against newspapers printing
civil rights stories. Sullivan won $500,000 in an Alabama court judgement
issue
did Constitutional protections apply here?
decision
The Court ruled for The Times, 9–0. The rule of law applied by the Alabama courts was
found constitutionally deficient for failure to provide the safeguards for freedom of speech
and of the press that are required by the First and Fourteenth Amendments in a libel action
brought by a public official against critics of his official conduct. The decision further held that
under the proper safeguards the evidence presented in this case is constitutionally
insufficient to support the judgment for Sullivan--Wiki

91. New York Times Co. v. Sullivan, (1964)
significance
actual malice
The Court held that a public official suing for defamation must prove that the
statement in question was made with actual malice, which in this context refers to
knowledge or reckless lack of investigation, rather than the ordinary meaning of
malicious intent. In his concurring opinion, Justice Black• explained that
"'[m]alice,' even as defined by the Court, is an elusive, abstract concept, hard to
prove and hard to disprove. The requirement that malice be proved provides at
best an evanescent protection for the right critically to discuss public affairs and
certainly does not measure up to the sturdy safeguard embodied in the First
Amendment."

92. New York Times Co. v. United States, (1971)
facts
1969-anti-war activist Daniel Ellsberg illegally photocopied a Pentagon study of
the the U.S. involvement in Viet Nam, 1945-1967. It contained evidence of LBJ’s
administration systematically lying to Congress and the public
he shopped it to Nixon, Kissinger, Fulbright and McGovern. Not interested
February 1971-then anti-war NYT reporter Neil Sheehan was interested
June 13, 1971- The Times began publication. Street protests, political controversy
and lawsuits followed
the Nixon Administration enjoined. The case rose rapidly
issue
did this prior restraint meet the Near test?
decision
June 30, 1971-The Court ruled for The Times, 6–3. The government didn’t meet the heavy
burden of proof here.--Wiki

93. New York Times Co. v. United States, (1971)
decision
June 30, 1971-The Court ruled for The Times, 6–3. The government didn’t meet the heavy
burden of proof here.--Wiki
the difficulty of the case is demonstrated by the fact that nine separate opinions
were written!
In its per curiam opinion the Court held that the government did not overcome the "heavy
presumption against" prior restraint of the press in this case. Justices Black and Douglas
argued that the vague word "security" should not be used "to abrogate the fundamental law
embodied in the First Amendment." Justice Brennan reasoned that since publication would
not cause an inevitable, direct, and immediate event imperiling the safety of American
forces, prior restraint was unjustified--Oyez.org
significance
Times v. United States is generally considered a victory for an extensive reading of the First
Amendment, but as the Supreme Court ruled on whether the government had made a
successful case for prior restraint, its decision did not void the Espionage Act or give the
press unlimited freedom to publish classified documents--Wiki

94. Hustler Magazine v. Falwell, (1988)
facts
1983-notorious boundary-pusher, Larry Flynt, published an outrageous parody
of Christian fundamentalist Jerry Falwell

95. Hustler Magazine v. Falwell, (1988)
facts
1983-notorious boundary-pusher, Larry Flynt, published an outrageous parody
of Christian fundamentalist Jerry Falwell
in the parody, Falwell relates having his “first time” with his mother in an outhouse

96. Hustler Magazine v. Falwell, (1988)
facts
1983-notorious boundary-pusher, Larry Flynt, published an outrageous parody
of Christian fundamentalist Jerry Falwell
in the parody, Falwell relates having his “first time” with his mother in an outhouse
“fine print”
disclaimer

97. Hustler Magazine v. Falwell, (1988)
facts
1983-notorious boundary-pusher, Larry Flynt, published an outrageous parody
of Christian fundamentalist Jerry Falwell
in the parody, Falwell relates having his “first time” with his mother in an outhouse
Falwell sued in the US District Court of Western Virginia for:
libel, invasion of privacy, and intentional infliction of emotional distress
the Court granted Flynt’s motion for summary judgement on the invasion of privacy
claim and the other two went to trial. A jury found for Flynt on the libel claim but for
Falwell on the last & awarded him $150,000
Fourth Circuit upheld, so Flynt appealed to the USSC
issue
the “chilling effect” of the award

98. Hustler Magazine v. Falwell, (1988)
decision
a unanimous (8-0, Justice Kennedy took no part in the case) in favor of Flynt
“Although false statements lack inherent value, the "breathing space" that freedom of
expression requires in order to flourish must tolerate occasional false statements, lest
there be an intolerable chilling effect on speech that does have constitutional value
Clearly, Falwell was a pubic figure for purposes of First Amendment law. Because the
district court found in favor of Flynt on the libel charge, there was no dispute as to
whether the parody could be understood as describing facts about Falwell or events in
which he participated. Accordingly, because the parody did not make false statements
that were implied to be true, it could not be the subject of damages under the New York
Times actual-malice standard. The Court thus reversed the judgment of the Fourth
Circuit--Wikipedia
significance
strengthened the earlier distinction (in NYT v. Sullivan) between public
figures and ordinary citizens, here in malicious infliction of emotional
damage

99. Assembly & Petition

101. The right of petition took its rise from the modest provision made for it in chapter 61
of Magna Carta (1215). To this meagre beginning are traceable, in some measure,
Parliament itself and its procedures in the enactment of legislation, the equity
jurisdiction of the Lord Chancellor, and proceedings against the Crown by “petition of
right.” Thus, while the King summoned Parliament for the purpose of supply, the latter
—but especially the House of Commons—petitioned the King for a redress of
grievances as its price for meeting the financial needs of the Monarch, and as it
increased in importance it came to claim the right to dictate the form of the King’s
reply, until, in 1414, Commons declared itself to be “as well assenters as petitioners.”
Two hundred and fifty years later, in 1669, Commons further resolved that every
commoner in England possessed “the inherent right to prepare and present petitions”
to it “in case of grievance,” and of Commons “to receive the same” and to judge
whether they were “fit” to be received. Finally Chapter 5 of the Bill of Rights of 1689
asserted the right of the subjects to petition the King and “all commitments
[imprisonments-jbp] and prosecutions for such petitioning to be illegal.”
The Annotated Constitution

102. Processions for the presentation of petitions in the United
States have not been particularly successful. In 1894 General
Coxey of Ohio organized armies• of unemployed to march on
Washington and present petitions, only to see their leaders
arrested for unlawfully walking on the grass of the Capitol.
The Annotated Constitution

103. Processions for the presentation of petitions in the United
States have not been particularly successful. In 1894 General
Coxey of Ohio organized armies• of unemployed to march on
Washington and present petitions, only to see their leaders
arrested for unlawfully walking on the grass of the Capitol.
The march of the veterans on Washington in 1932 demanding
bonus• legislation was defended as an exercise of the right
of petition. The Administration, however, regarded it as a
threat against the Constitution and called out the army to
expel the bonus marchers and burn their camps. Marches and
encampments have become more common since, but the
results have been mixed.
The Annotated Constitution

105. United States v. Cruikshank, (1876)
facts
1873-a white militia attacked and killed 100-260 Republican freedmen who
were assembled at the Courthouse in Colfax, LA to prevent a Dem. takeover
part of the violent struggle over Reconstruction, some of the white mob were
indicted under the federal Enforcement Act of 1870. It made it a felony for
anyone to conspire to deprive another of his constitutional rights
issue
this was an early attempt to incorporate the AM I Freedom of Assembly &
Petition Clause under the recently ratified AM XIV.1
decision
The Court found that the First Amendment right to assembly "was not intended to limit
the powers of the State governments in respect to their own citizens" and that the
Second Amendment "has no other effect than to restrict the powers of the national
government."--Wiki

106. United States v. Cruikshank, (1876)
significance
with regard to Reconstruction:
Constitutional commentator Leonard Levy wrote, "Cruikshank paralyzed the
federal government's attempt to protect black citizens by punishing violators of
their Civil Rights and, in effect, shaped the Constitution to the advantage of the
Ku Klux Klan." Federal civil rights enforcement was blocked by Cruikshank
until 1966 (United States v. Price; United States v. Guest) when the Court
vitiated Cruikshank
with regard to AM II
Cruikshank has also been cited for over a century by supporters of restrictive
state and local gun control laws such as the Sullivan Act….Cruikshank and
Presser v. Illinois, which reaffirmed it in 1886, are the only significant Supreme
Court interpretations of the Second Amendment until the murky United States
v. Miller in 1939, but both preceded the court's general acceptance of the
incorporation doctrine and have been questioned for that reason. However, the
majority opinion of the Supreme Court in District of Columbia v. Heller in 2008
clearly suggested that Cruikshank and the chain of cases flowing from it would
no longer be considered good law as a result of the radically changed view of
the Fourteenth Amendment when that issue eventually comes before the
courts

107. Hague v. C.I.O., (1939)
facts
1937-Jersey City, NJ, “Boss” Frank Hague used a city ordinance to stop
labor meetings in public places and the distribution of literature pertaining
to the C.I.O.’s cause
part of the worldwide intemperance of the ‘30s, conservatives like Hague
branded the C.I.O. “communist
issue
did the ordinance violate the AM I Freedom of Assembly & Petition Clause ?

108. Hague v. C.I.O., (1939)
decision
The Court, though splintered with regard to reasoning and rationale, struck down
an ordinance which vested an uncontrolled discretion in a city official to permit or
deny any group the opportunity to conduct a public assembly in a public place.
Justice Roberts•, in an opinion which Justice Black•joined and with which Chief
Justice Hughes concurred, found protection against state abridgment of the rights
of assembly and petition in the privileges and immunities clause of the Fourteenth
Amendment. “The privilege of a citizen of the United States to use the streets and
parks for communication of views on national questions]may be regulated in the
interest of all; it is not absolute, but relative, and must be exercised in
subordination to the general comfort and convenience, and in consonance with
peace and good order; but it must not, in the guise of regulation, be abridged or
denied.” Justices Stone•and Reed invoked the due process clause of the Fourteenth
Amendment for the result, thereby claiming the rights of assembly and petition for
aliens as well as citizens. “I think respondents’ right to maintain it does not depend
on their citizenship and cannot rightly be made to turn on the existence or non–
existence of a purpose to disseminate information about the National Labor
Relations Act. It is enough that petitioners have prevented respondents from
holding meetings and disseminating information whether for the organization of
labor unions or for any other lawful purpose.” This due process view of Justice Stone
has carried the day over the privileges and immunities approach.--Wiki

109. With the ‘60s, the flood gates open-iii
As Negro civil rights marches and protests morphed into anti-
war demonstrations, into feminist, Latino, American Indian and,
finally, Gay Rights “actions;” the Warren Court had to revisit the
issue of city responsibility for law and order, traffic control, public
safety &c. and First Amendment rights.
jbp

110. Shuttlesworth v. Birmingham, (1969)
facts
1963-Birmingham minister, co-founder with MLK, jr. of the SCLC, “Freddie”
Shuttlesworth initiated the Birmingham Campaign of that year
1922-2011

111. Shuttlesworth v. Birmingham, (1969)
facts
1963-Birmingham minister, co-founder with MLK, jr. of the SCLC, “Freddie”
Shuttlesworth initiated the Birmingham Campaign of that year
he was “arrested and convicted for violating 1159 of the city's General Code, an ordinance
which proscribes participating in any parade or procession on city streets or public ways
without first obtaining a permit from the City Commission. Section 1159 permits the
Commission to refuse a parade permit if its members believe "the public welfare, peace,
safety, health, decency, good order, morals or convenience require that it be refused."--Wiki
the AL Appeals Court reversed his conviction, The AL SC reinstated it,
whereupon he appealed to the USSC
issue
the constitutionality of the Birmingham ordinance, hence the validity of the
conviction

112. Shuttlesworth v. Birmingham, (1969)
decision
Writing for the court, Justice Potter Stewart held that (1) even though the actual
construction of § 1142 of the Birmingham General City Code was
unconstitutional, the judicial construction of the ordinance prohibited only
standing or loitering on public property that obstructed free passage, but it was
unclear from the record, whether the literal or judicial construction was applied;
and (2) the literal construction of § 1132 of the Birmingham General City Code
was unconstitutional, and the statutory application revealed that it applied to the
enforcement of an officer's order in directing vehicular traffic. Even though
Justice Stewart's opinion for the Court mentioned that "the Supreme Court of
Alabama performed a remarkable job of plastic surgery upon the face of the
ordinance", the Court reversed Shuttlesworth's conviction because the
circumstances indicated that the parade permit was denied not to control traffic,
but to censor ideas--Wiki
significance
shows the “weeds” down into which the Court gets to apply the First
Amendment law

113. only yesterday
The 21st century cases made clear that the devil was in the
details: the where, when, how orderly and for what purpose the
assembly. Recent cases have accepted confining demonstrations to
increasingly limited “free speech zones.”
jbp

114. only yesterday
The 21st century cases made clear that the devil was in the
details: the where, when, how orderly and for what purpose the
assembly. Recent cases have accepted confining demonstrations to
increasingly limited “free speech zones.” The abuses of anarchists
opposing “globalization” at economic summits
jbp

115. only yesterday
The 21st century cases made clear that the devil was in the
details: the where, when, how orderly and for what purpose the
assembly. Recent cases have accepted confining demonstrations to
increasingly limited “free speech zones.” The abuses of anarchists
opposing “globalization” at economic summits, PETA nudity
displays,
jbp

116. only yesterday
The 21st century cases made clear that the devil was in the
details: the where, when, how orderly and for what purpose the
assembly. Recent cases have accepted confining demonstrations to
increasingly limited “free speech zones.•” The abuses of anarchists
opposing “globalization” at economic summits, PETA nudity
displays, OWS setting fires in Oakland, all push the pendulum back
towards more government limits.
jbp

117. These cases all illustrate the power of the U.S. Supreme Court to
interpret and apply the law--from the Constitution down to
municipal ordinances.
Equally apparent in these examples is the significant long term
effect of Presidential appointments (and Senate confirmations) on
the ideology of the Court. The long conservative orientation of 19th
century Republican era wouldn’t change until the T.R., Wilson, and
especially, FDR appointees began the liberal swing to the Warren
Court (1953-1969).
The pendulum swung back recently. It augurs to do so again.
The issue of “gun control” is excruciatingly partisan. The Court’s
composition will be decisive in how the Second Amendment will be
interpreted. Let’s look at the record. But that’s another story...
jbp