January 26 2016 First Amendment Cases World War I produced the most restrictive First Amendment rulings Schneck v US 1919 Justice Holmes created a new doctrine the Clear and Present Danger test Following the enactment of the Espionage Act of 1917 Schneck convicted of violating act by Court develops a standard to judge the reasonableness of legislation like the Espionage Act Clear and Present Danger Test Freedoms of speech and press are protected by the 1st under the First Amendment distributing his pamphlet in ideas Amendment from federal government regulation UNLESS the exercise of these freedoms brings clear and present danger of evil which the federal government has the right to prevent depends upon the circumstances in which it is done Holmes argued that in peace time it would be different but the character of every act Abraham v US 1919 Involves the Sedition Act of 1918 Abraham and other anarchist socialists were convicted for distributing pamphlets Court upholds conviction but does NOT use the Clear and Present Danger Doctrine Famous dissent by Justice Holmes who was joined by Justice Brandeis defends the free trade Gitlow v New York This was a breakthrough case The Supreme Court conceded that the First Amendment protections of the freedom of speech But Gitlow s conviction was upheld using the Bad Tendency Test January 26 2015 Near v Minnesota 19931 High point in the pre 1937 positive civil liberties decisions Minnesota gag law of 1925 struck down as unreasonable exercise of police power The case came up to the Supreme Court This is one of the landmark freedom of the press decisions The Chief Justice made it clear that the freedom of the press was one of the liberties protected and the press is part of the liberties protected by the 14th Amendment Due Process Clause The gag law was censorship and violated freedom of the press and is a previous restraint rather than subsequent punishment remedy sue for libel which is used to convict Weeks Used Substantive Due Process to strike the law down Criminal Procedures within the Federal Government Weeks v US 1914 Federal Marshal breaks into Week s room without a search warrant and seizes evidence Weeks claims 4th Amendment and 5th Amendment self incrimination violation lower courts The Supreme Court rules that evidence obtained without a search warrant unreasonable Birth of the exclusionary rule search and seizure cannot be used in a federal criminal trial reject claims to criminal procedures This was not typical the Olmstead decision is more typical of the Supreme Court s approach Olmstead v US 1928 Use of information gained through wiretapping is used evidence at a federal trial The Supreme Court rules wiretapping is not search and seizure Holmes and Brandeis dissent Powell v Alabama 1932 Deals with the speci c rights of accused individuals that are protected under the 14th Amendment Due Process Clause right to counsel but also if a defendant is too poor to afford a lawyer then they have the right to a court appointed free lawyer Right to counsel incorporated under the 14th Amendment Due Process Clause The convictions were reversed because procedural due process was violated Hurtado Reasoning rejected Brown v Mississippi Physically coerced confession Confessions based on torture violate 14th Amendment Due Process Clause there was the potential for the expansion of civil liberties The Constitutional Revolution of 1937 Before 1937 the Supreme Court developed doctrines used to strike down major New Deal measures used to strike down economic and social welfare policies of states and Federal Government upholding both state and federal economic and social welfare regulation During the Great Depression the Court used negative doctrines agains the New Deal Court packing plan never came into being Moderate conservative justices switched sides and at the end of January 1937 and began New majority renounced the negative doctrines Overview Historical Phases from 1937 During this time period the Supreme Court reviewed and expanded emphasis on civil Seven historical phases Phase One 1937 1945 strongly civil libertarian an emergence on civil righted Phase Two 1946 1952 judicial caution and some backtracking Phase Three 1953 1961 gradual resurgence of liberalism Phase Four 1962 1969 golden age of civil liberties 2nd part of Warren court most civil Phase Five 1969 1986 post warren court burger court backtracking in criminal libertarian court ever procedures and some other areas but dramatic steps forward with gender equality Only area warren court had not made strides in Phase Six 1986 2005 Rehnquist Court more backtracking in criminal procedures backtracking with racial equality but eventually Rehnquist Court states protecting gay rights Court also favors state s rights undermines post 1937 commerce clause precedents Phase Seven 2005 Roberts court Polarized Court Kennedy swing justice on civil liberties court tilts to the right liberties until 1951 pamphlets Herndon v Lowry 1937 Herndon arrested for holding Communist Party recruitment meetings and possessing radical Convicted of attempted incitement to insurrection by violence No clear and present danger statute too vague and indeterminate For the rst time the Clear and Present Danger Test was used positively to protect speech US v Carolene Product 1938 Justice Stone states the Court s new approach to civil liberties in Footnote 4 Footnote 4 Presumption of constitutionality will not necessarily apply when the government allegedly violates civil liberties or rights of minorities This case concerned economic regulations A 1923 act of Congress banned the interstate shipment of lled milk milk with skimmed milk and vegetable oil added A manufacturer indicted for shipping lled milk challenged the law The Court upheld the act In this otherwise unremarkable case the Court planted the seeds for a new jurisprudence in a footnote to Stone s opinion for the Court Footnote 4 The Court would no longer substitute its views on economic policy for the views of Congress Stone went further in footnote four by cautiously asserting that certain types of legislation might not merit deference toward constitutional validity The most controversial element in the footnote was the suggestion that prejudice directed against discrete and insular minorities may call for more searching judicial inquiry