The first three cases we study in this class – Schenck v. United States (1919), Abrams v. United States (1919), and Gitlow v. New York (1925) – each involve the distribution of publications that expressed what was perceived as a radical attack on the government. In Schenck, the defendant distributed leaflets attacking the military draft. In Abrams, the defendant distributed leaflets containing what was perceived as “disloyal, scurrilous and abusive language” about the United States. In Gitlow, the defendant was involved in a publication called “The Left Wing Manifesto” whose purpose was alleged to be to “overthrow and destroy” democratic government. In each of these cases, the Supreme Court upheld the prosecution of the defendants. Thus, the Court implicitly decided that the First Amendment’s language – “Congress shall make no law … abridging the freedom of speech….” – was not absolute. Why do you think the Court reached this judgment?
What is the principal reason that Gitlow v. New York (1925) is viewed by First
Amendment scholars as a critical and landmark First Amendment case – even though the ruling in Gitlow went against the defendant?
3. In Chaplinsky v. New Hampshire (1942), the Supreme Court adopted a type of speech – called “fighting words” – that was not protected by the First Amendment. Describe the standard adopted by the Court and explain why you think the Court decided to adopt this standard.
4. In United States v. O’Brien (1968), the Supreme Court upheld a law prohibiting the destruction of Selective Service certificates (also called “draft cards”) and rejected O’Brien’s argument that the burning of his draft card was protected symbolic speech under the First Amendment. What was the Court’s rationale for finding that this was not protected speech?
5. Tinker v. Des Moines Independent Community School (1969) is a landmark decision by the Supreme Court recognizing that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In Tinker, students were suspended who engaged in a silent protest of the Vietnam War by wearing black armbands in school. The Court held that this was a form of “symbolic” speech that was protected by the free speech clause of the First Amendment. However, the Court did make clear that certain conduct in school could still be prohibited even though it involved speech. What was the line that the Supreme Court drew between conduct in a school that was protected by the First Amendment and conduct in a school that was unprotected by the First Amendment?