First Amendment Rights
Questions to be answered in advance of class: These questions are
organized by assignment number and new assignments will be added as the
1. Schenck was found guilty of violating the Espionage Act by
circulating a document. What was the content of the document?
2. Who was the document circulated to?
3. In Schenck, what test does the government have to satisfy to justify
the punishment of Schenck's speech?
4. Was the content of the newspaper articles in Frohwerk similar to the
content of the document in Schenck?
5. In Debs, did Debs urge his audience to obstruct the war effort? If
not, why did the Supreme Court uphold his conviction?
1. After a series of opinions written by Justice Holmes upholding
convictions under the Espionage Act, Justice Holmes dissented in
Abrahms. Was the evidence of an effort to obstruct the war effort less
convincing in Abrams?
2. What limits on free speech does Holmes recognize in his dissent?
3. The approach of Judge Learned Hand is often contrasted with the
approach of Justice Holmes. If Holmes is focused extensively on the
immediate danger created by the speech in permitting a conviction for
engaging in political speech, what is Hand focused on?
4. All the cases through Masses have involved a federal statute, the
Espionage Act. How do the statutes in Gitlow and Whitney differ from
the Espionage Act? What kind of speech do they punish?
5. Does the Supreme Court apply the clear and present danger test in
Gitlow or Whitney?
1. A federal statute, the Smith Act, is the basis for the convictions
in Dennis. Have you seen any statute similar to the Smith Act in any of
the previous cases?
2. Why does Chief Justice Vinson believe that the Communist Party
presents a serious danger to the security of the United States even
though it is not wartime?
3. What test does the Chief Justice apply to uphold the convictions?
4. What test does the Court apply in Brandenberg v. Ohio to decide
whether Brandenburg's conviction violates the First Amendment?
5. Why does the Court conclude that Brandenberg's conviction must be
1. In Cantwell v. Connecticut, Cantwell was convicted of the common law
offense of inciting a breach of the peace. What evidence did the state
have that he was guilty of a breach of the peace?
2. In Chaplinsky, what categories of speech are identified as receiving
no First Amendment and why?
3. How are fighting words defined?
4. In Cohen v. California, how did the state justify punishing Cohen
for wearing his jacket?
5. In Feiner v. New York, did the Supreme Court uphold Feiner's
conviction based on the content of his speech, the reaction to his
speech, or both?
1. In Beauharnais, the majority relied on Chaplinsky. Why was
Chaplinsky a useful precedent?
2. In New York Times v. Sullivan, why does the Court conclude that the
First Amendment protects false statements?
3. After New York Times v. Sullivan, if a public official is the object
of a defamatory falsehood relating to his official conduct, what does
the public official have to prove to recover damages in a libel action?
4. How do you know if someone is a public figure for purposes of the
application of the New York Times standard?
5. Why does the Supreme Court distinguish between defamation directed
at public figures and defamation directed at private figures?
1. In Hustler Magazine v. Falwell, why wasn't the Campari ad defamatory?
2. Falwell argued that the the First Amendment did not prevent the ad
from resulting in liability for intentional infliction of emotional
distress because it was outrageous. Why did the Supreme Court reject
3. The Supreme Court has decided a number of cases in which First
Amendment defenses are raised to claims for invasion of privacy.
Reviewing the invasion of privacy cases in the casebook, is the First
Amendment defense always successful?
4. In Snyder v. Phelps, the Court relies on the distinction between
public concern and private concern speech that was central to Dun &
Bradstreet, Inc. v. Greenmoss Builders (p. 77). What is the difference
between these types of speech and why is the distinction so critical to
the analysis in Snyder v. Phelps?
5. What arguments does Mr. Snyder make to try and convince the Court
that the speech of the members of the Westboro Baptish Church should be
treated as private concern speech?
1. In the Matter of the Welfare of R.A.V., R.A.V. argues that the St.
Paul ordinance is overbroad and violates the First Amendment because it
punishes a substantial amount of constitutionally protected expressive
conduct. How does the Minnesota Supreme Court get around this argument?
2. What is R.A.V.'s main argument in the excerpt from his Supreme Court
brief you were asked to read?
3. If the Minnesota Supreme Court had not narrowly interpreted the St.
Paul ordinance, what rationale would the U.S. Supreme Court have relied
on in striking down the St. Paul ordinance?
4. What constitutional defect does Justice Scalia rely on to strike
down the ordinance even as narrowly construed by the Minnesota Supreme
5. How does the Court in Virginia v. Black define a true threat?
1. In Roth v. United States, how does the Court define obscenity?
2. Why does the Court decide that obscenity is not protected speech?
3. Is what ways is the obscenity test adopted in Miller v. California
more speech protective than the way obscenity was defined in Roth?
4. Ferber recognizes child pornography as a new category of unprotected
speech. Why is child pornography denied First Amendment protection?
5. Is child pornograhy a broader category than obscenity, a narrower
category than obscenity, or both?
1. In United States v. Stevens, the government argues that the Court
should recognize depictions of animal cruelty as a new category of
unprotected speech and the Court rejects this argument. After Stevens,
is it likely the Court will recognize any new categories of unprotected
2. In Brown v. Entertainment Merchants Association, the government
tries to argue that violent video games should be unprotected speech as
applied to minors. Why does the Court reject this argument?
3. In Brown, the Court applies the strict scrutiny test. Why does the
California law fail that test?
4. In United States v. Alvarez, the Court reviews all of the categories
of unprotected speech. Is the list of such categories the same as it
was in Chaplinsky?
5. Why does the Court reject the argument that all false factual
statements should be denied First Amendment protection?
1. In Erznoznik v. Jacksonville, the Court rejects the arguments that
the ordinance can be justified based on protection of privacy, the need
to protect minors or traffic safety. Why are these three justifications
2. In Young v. American Mini Threatres, Inc., Justice Stevens and
Justice Powell each write opinions upholding the zoning ordinance, but
they rely on different rationales. How do the two opinions differ?
3. In Renton v. Playtime Theatres, Inc., even though the zoning
ordinance was in some sense content-based, the Court managed to avoid
that characterization. How did it avoid this conclusion?
4. In FCC v. Pacifica, what kind of speech falls within the definition
5. After FCC v. Pacifica, would a 24 hour ban on broadcast indecency be
1. Why is the regulatory technique in Rowan v. U.S. Post Office Dep't
more acceptable under the First Amendment than the techniques employed
in Pacifica and Sable Communications, Inc. v. FCC?
2. In Pacifica, the Court was convinced by the need to protect a
captive audience, but that argument fails to convince the Court in
cases like Consolidated Edison and Bolger. Why?
3. In United States v. Playboy Entertainment Group, what standard of
review does the Court apply?
4. Why does the Court provide more protection for internet
communication than broadcast communication?
5. Why is filtering software on the receiving end for internet content
an adequate less restrictive alternative to restrictions on internet
speech imposed on the source of that speech?
1. In Virginia Pharmacy Board v. Virginia Citizen's Council, the law
was challenged by prescription drug consumers and not by advertisers.
Why does the Court conclude that the consumers have standing to
challenge the law on First Amendment grounds when they are not
exercising their right to speak?
2. In Virginia Pharmacy Board, the Court identifies a number of ways in
which commercial speech is different from other kinds of protected
speech (see footnote 1 on pages 167-68). What are those
3. In Bolger v. Youngs Drug Products Corp., the Court must decide
whether the speech at issue is or is not commercial speech. In the
from the case, what criteria does it use to make this determination?
4. The Court treats differently "disclosure requirements and outright
prohibitions" on commercial speech. Why does it draw this distinction?
5. What test does the Court apply in Central Hudson Gas v. Public
1. As the Court describes it in Board of Trustees, State University of
New York v. Fox, how much of a fit between ends and means does the
Central Hudson test require?
2. Even though commercial speech gets less than full First Amendment
protection, the Court does not always allow the government to give
commercial speech less protection than fully protected speech. Why did
the Court refuse to allow this kind of discrimination in City of
Cincinnati v. Discovery Network, Inc.?
3. In Posadas de Puerto Rico Assoc. v. Tourism Company of Puerto Rico,
Justice Rehnquist relied on a "the greater includes the lesser"
rationale. Can you think of a reason why the greater shouldn't include
the lesser when the lesser is a restriction on speech?
4. In 44 Liquormart, Inc. v. Rhode Island, how do the approaches taken
by Justice Stevens and Justice O'Connor differ?
5. In Greater New Orleans Broadcasting Association v. United States,
why did the federal law fail the Central Hudson test?
1. In Police Dept. v. Mosley, what justification, if any, did the City
of Chicago offer for treating differently peaceful labor picketing and
peaceful nonlabor picketing?
2. In general, content-based regulations are scrutinized using the
strict scrutiny standard. Can you identify any situations where a
content-based regulation is subjected to intermediate rather than
3. In Simon & Schuster, Inc. v. Members of New York state Crime
Victims Board, why did the Court conclude that the law was not narrowly
4. In Burson v. Freeman, the law survived strict scrutiny. Why did a
ban on election-related speech within 100 feet from the entrance to a
polling place during an election satisfy the least restrictive
alternative required under that test?
5. What test does the Court apply in United States v. O’Brien?
1. In Spence v. Washington, how does the Court determine that Spence’s
conduct was speech within the meaning of the First Amendment?
2. In Texas v. Johnson, does the Court use the O’Brien test to conclude
that the Texas law is unconstitutional?
3. In United States v. O’Brien the Court concludes that the
government’s asserted interest is unrelated to the suppression of free
expression. In Texas v. Johnson, by contrast, why does the Court
conclude that the government’s asserted interest in preserving the flag
as a symbol of nationhood and national unity is related to the
suppression of free expression?
4. Under the analysis in the two dissenting opinions in Texas v.
Johnson, is the American flag a unique symbol of the country or could
the government prohibit the desecration of other patriotic symbols?
5. In Barnes v. Glen Theatre, Inc., Chief Justice Rehnquist concludes
that the Indiana law is justified to protect societal order and
morality whereas Justice Souter justifies the law based on preventing
secondary effects. Does this difference have any practical consequences
for future cases?
1. If a state statute is overbroad, what can a state court do to "cure"
2. Since Broadrick v. Oklahoma, overbreadth must be substantial to
justify striking down a statute on its face. What standard does the
Court use to determine if a law is substantially overbroad?
3. In New York v. Ferber, the Court identified several examples of
arguably protected speech that fell within the reach of the New York
child pornography statute, specifically pictures in medical textbooks
and pictorials in National Geographic. Why don't these examples make
the New York statute overbroad?
4. In United States v. Stevens, what standard does the Court say is
used to determine if a law is overbroad and how does the government try
and defend the law against an overbreadth attack?
5. In Coates v. Cincinnati, a law was struck down as vague under the
First Amendment which used the phrase "in a manner annoying to persons
passing by." What makes this phrase vague?
1. According to the Court in Freedman v. Maryland, for a motion picture
licensing scheme to be constitutional, the government must build
certain procedural protections into the scheme. What are those
2. In Thomas v. Chicago Park District, why did the Court conclude that
the Freedman v. Maryland procedural requirements did not apply?
3. In Near v. Minnesota, the Court identifies some exceptional
cases where the government can enjoin the publication of speech. What
4. Why does the Court invalidate prior restraint schemes, such as in
Lovell v. Griffin and Hague v. CIO, that give the government unbridled
discretion to grant or deny a permit to engage in expression?
5. Why did the Court uphold the permit law in Cox v. New Hampshire even
though the law did not limit the discretion of local authorities to
grant or deny a permit to hold a parade or procession?
1. Why does the Court strike down the residential sign ordinance in
City of Ladue v. Gilleo?
2. The Court strikes down the permit requirement in Watchtower Bible
& Tract Society v. Stratton. Why aren't the Village's stated
reasons for the requirement sufficient to justify the ordinance?
3. What standard does the Court use in Heffron v. ISKCON to evaluate
the constitutionality of the Minnesota State Fair's booth rule?
4. In Members of City Council v. Taxpayers for Vincent, Los Angeles
bans the posting of signs on public property. Why does the Court
conclude that the available alternative modes of communication are
5. Why does the Court find the reliance on the public forum doctrine
misplaced in Members of City Council v. Taxpayers for Vincent?
1. In Clark v. Community for Creative Non-Violence, does the Court
decide that "overnight sleeping in connection with the demonstration is
expressive conduct protected to some extent by the First Amendment?"
2. In Clark v. Community for Creative Non-Violence, the Court applies
both the time, place, and manner test and the O'Brien test, stating
that there "is little, if any, differen[ce]" between the two tests. In
what ways are the two tests the same and in what ways are they
3. In Ward v. Rock Against Racism, the Court interprets the requirement
that a time, place, or manner regulation be "narrowly tailored." What
is the difference between a narrowly tailored means and a least
4. In Frisby v. Schultz, what "ample alternative channels of
communication" were available?
5. In Madsen v. Women's Health Center, Inc., what standard of review
does the Court apply?
1. In Adderly v. Flordia, Justice Black equates the state with a
private owner of property, but the dissent disagrees with this analogy.
What limits would the dissent place on the ability to use public
places as locations for expression?
2. In Lehman v. Shaker Heights, why does the Court reject the argument
that the car cards are a public forum? Why do the dissenters disagree
with this conclusion?
3. In Southeastern Promotions, LTD. v. Conrad, why does the Court
conclude that the municipal theaters in Chattanooga were public forums?
4. In Greer v. Spock, the majority views the critical question as
whether the army base was a public forum while the Justice Brennan's
dissent views the critical question as whether the speech is "bascally
compatible with the activities otherwise occuring at the locale." Why
does Justice Brennan reject relying on the public forum approach?
5. In Perry Education Assn. v. Perry Local Educators' Assn., the Court
divides public property into 3 categories: traditional public forums,
designated public forums, and nonpublic forums. To regulate speech in
each of these 3 public forum categories, what standards does the
government have to satisfy?
1. In Cornelius v. NAACP Legal Defense and Ed. Fund, what criteria does
the Court use to determine if the government has created a
non-traditional public forum?
2. In Cornelius and United States v. Kokinda, what role does the
government grant of selective access to some speakers play in deciding
whether the government has created a non-traditional public forum?
3. In ISKCON v. Lee and Lee v. ISKCON, 5 members of the Court found
airport terminals to be nonpublic forums. By contrast, Justice Kennedy,
joined by 3 other members of the Court, urged the Court to adopt a
different method of identifying whether government property qualified
as a public forum. What three criteria would he apply to decide if a
public forum exists?
4. In Arkansas Educational Television Comm'n v. Forbes, Justice
Kennedy, writing for the Court, states that "First Amendment
obligations might not apply at all to most public televison
programming." What does he mean by this statement and how can the
statement be squared with the public forum doctrine which imposes some
First Amendment obligations on the government even if the property at
issue is a nonpublic forum?
5. In United States v. American Library Association, Chief Justice
Rehnquist says that "[public] forum principles [are] out of place in
the context of this case." Why does he reach this conclusion and what
is the consequence of this conclusion?
1. The Supreme Court concludes that the exclusion of all religous
speech from government property when other speech is allowed is a
viewpoint-based exclusion rather than a content-based exclusion. How
does Justice White reach this conclusion in Lamb's Chapel v. Center
Moriches Union Free School Dist.?
2. In Pleasant Grove City v. Summum, why does the Court conclude that a
privately designed and financed monument is government speech?
3. In Bethel School Dist. No. 403 v. Fraser, how does the Court
distinguish the situation before it from Tinker?
4. In Hazelwood School Dist. v. Kuhlmeier, what standard does the Court
apply to review the constitutionality of the school's decision to
censor articles in the high school newspaper?
5. In Morse v. Frederick, the Court distinguishes both Tinker and
Fraser. What is the Court's justification for upholding the school's
decision to discipline Frederick for displaying the "Bong Hits 4 Jesus"