February 4 2016 First Amendment Rights Political Speech Transition to Vinson Court Criteria for Analyzing Free Speech Cases The speech itself The intent of speaker writer e g are they attempting to insight a riot Context of speech when is it taking place During wartime Peacetime The nature of speech Advocacy Incitement Libel Obscenity Fighting words The seriousness of evil constituted by the speech Obscenity Libel The law being challenged Vagueness fair notice Prior Restraint censorship Nature of Prohibition Time Place Manner reasonable regulation Other Channels Narrowly Drawn Statute to punish evil state has the right to prevent Presumption Constitutionality Unconstitutionality Political Free Speech in Cold War Era The Fear of Communists Radicals Dennis vs U S 1951 Raymond Dennis and others were members of the Communist Party they were also of cers They led false af davits between 1949 and 1955 to satisfy the stipulations of 9 h of the and members of the International Union of Mine Mill and Smelter Workers National Labor Relations Act as amended by the Taft Hartley Act which required all union of cers to submit non Communist af davits The union of cials retained their Communist Party af liations led the af davits and enabled the union to use the services of the National Labor Relations Board The union of cers were indicted by the United States District Court for conspiracy to fraudulently obtain the services of the National Labor Relations Board revolutionary acts alleged other than teaching and advocating force violence or knowingly become a member that advocates Prosecutions under Alien Registration Act of 1940 Smith Act peacetime sedition provision Smith Act Provisions in Dennis Section 2 unlawful to knowingly advocate teach overthrow of government in U S by Section 3 punishes conspiracy Facts Smith Act prosecutions of top American Communist Party leaders no overt Convicted in federal district court upheld conviction in Court of Appeals Supreme Court af rms 6 2 Chief Justice Vinson Smith Act distinguished advocacy from mere discussion clear and present danger not okay here Clear and present danger reinterpreted into clear and probable danger New standard clear and probable danger whether the gravity of the evil discounted by its Justice Jackson concurs clear and present danger NOT for world wide conspiracy Justice Frankfurter concurs clear and present danger test is in exible dogma improbability justi es such invasion of free speech as is necessary to avoid the danger of censorship of speech and press evidence for disquali cation for appointment to or retention in any school position Justice Black dissents favors clear and present danger test slams Smith Act as virulent form Justice Douglas dissents jury should have decided if clear and present danger Observations Clear and probable danger unused after Dennis Dennis typical second phase decision Court deferred to government regulation of free speech 5 separate opinions multiple voices Alder vs Board of Education 1952 New York law says a member of subversive organization on subversive list prima facie Court 6 3 upholds law procedural due process Dissenters violates academic freedom Kovacs vs Cooper 1949 Court uses Time Place and Manner Reasonable police powers okay regulating speech Trenton NJ law banning ampli ers emitting loud and raucous noises Court 5 4 upholds law balances rights Artistic Free Speech Burnstyn vs Wilson 1952 1915 precedent motion pictures not under 1st Amendment Burnstyn reconsiders precedent The Miracle licensed by NY but license withdrawn after church campaign against lm as Decision Justice Clark for 9 0 majority strikes NY law Overrules 1915 precedent Motion pictures under 1st Amendment NY law prior restraint censorship Statute vague not narrowly drawn to target obscenity Presumption of unconstitutionality Religious Freedom Separation of Church and State Everson vs Board of Education 1947 Incorporated guarantee against establishment of religion Court 5 4 upheld NJ reimbursement program as not aiding religion sacrilegious