Con Law II Outline

Con Law II Outline - Doreen Dufficy Spring 2004 Prof. Shea...

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Doreen Dufficy Spring 2004 Prof. Shea Con Law II Outline Speech The First Amendment provides that Congress shall make no law abridging the freedom of speech. The Supreme Court declared that the Due Process Clause of the 14 th amendment protected freedom of expression against state infringement. The Supreme Court has stated that above all else the first amendment means that government has no power to restrict expression because of its message, its ideas, its subject, or its content.” There are three different types of tests the court employs in assessing the validity of content-based restrictions on speech. Application of a specialized or doctrinal test that has been created for a particular type of protected speech. For example the clear and present danger test is used to assess restrictions on speech that advocates unlawful conduct, while the commercial speech test is used mainly for restrictions on commercial advertising. Determining whether the speech in question falls into a category of constitutionally unprotected or proscribable speech, examples of this approach include the fighting words doctrine and the test for obscenity If no specialized or doctrinal test exists and if the speech is of a type entitled to First Amendment protection, the Court may employ an ad hoc balancing test in which it determines whether or not the restriction can be defended on the ground that it is narrowly tailored to achieve a compelling governmental interest. Speech Advocating Illegal Action Clear and Present Danger Speech may be restricted only to prevent an extremely serious evil – a compelling government interest- and only if the occurrence of that evil is imminent result of the speech. The law must be narrowly drawn to advance the government’s interest in the least restrictive or least intrusive manner. It is required that a subject must not just be taught and discussed but actually advocated, the government must show that there is a clear and present danger that this be advocated Conspiracy an agreement to teach the action of an overthrow with the clear and present danger that it would occur Schenck v. United States Facts: An anti-conscription activist was charged for violating the Espionage Act when he circulated leaflets intended to hinder to the United States’ conscription efforts during a time of war. Issue: Does the Constitution permit punishment of speech where the words are used in such circumstances and are of such a nature as to create a clear and present danger so that they will bring about substantive evils that Congress has a right to prevent? Yes Rule: The constitution permits the punishment of speech when the words are used in 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. Abrams v. United States
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Con Law II Outline - Doreen Dufficy Spring 2004 Prof. Shea...

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