Constitutional Law II

Constitutional Law II - Nancy Donovan Constitutional Law II...

Info iconThis preview shows pages 1–3. Sign up to view the full content.

View Full Document Right Arrow Icon
Nancy Donovan Constitutional Law II Prof. Shea Spring 2002 Background : When there is a right written in the Constitution - still have to interpret what does it really mean. Constitution’s vague outlines filled in by judicial interpretation. Like the 1st Am, Congress shall make no law abridging speech . . . , tv, radio, internet not mentioned - have to interpret “communication.” What kind of communication were the Founders particularly concerned with? History of the king suppressing speech, if censorship - never heard, also treason and executions. The Founders were against prior restraints on speech, that the gov’t should not censor political speech core value of the 1st Am. Even a created gov’t can lead to problems - gov’t is people, still need protection. Gov’t will always be subject to criticism. What about the states? At the time could do what they wanted, the Constitution was designed to create and limit the power of the federal gov’t. States later subject to the 1st Am through the Due Process Clause of the 14th Am. If it is in the Bill of Rights is it necessarily a fundamental right? Not exactly, the right to civil jury trial in the 7th Am has not been applied through the 14th Am, but just about everything else deemed fundamental. The 1st Am definitely protects against prior restraints, can it protect more speech? Possible that classes of speech protected that Founders never intended to protect? The protection depends on the circumstances. The Court has deemed some speech not protected by the 1st Amendment: incitement, fighting words, libel, obscenity. The 1st Am doesn’t protect us from each other, it only protects us from gov’t action. The Court’s first significant encounter with the problem of articulating the scope of constitutionally protected freedom of speech came in a series of cases involving agitation against the war and the draft during WWI. INCITEMENT Speech advocating illegal action The World War I Cases : Clear and Present Danger Schenk v. United States (1919)
Background image of page 1

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full DocumentRight Arrow Icon
The question in every case is whether the words used are used in such circumstances and are of 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. Issue : When speech urging unlawful conduct can be punished? When there is a clear and present danger that the action will occur then can punish a person who urges imminent unlawful conduct. The Court affirmed convictions for violation of the 1917 Espionage Act, which made it a crime to attempt to cause insubordination in the armed forces or to obstruct recruiting. The ’s mailed leaflets to men eligible for the draft, telling them to “assert their rights” and that conscription was wrong (meant “don’t go” - urging others to take unlawful action). a
Background image of page 2
Image of page 3
This is the end of the preview. Sign up to access the rest of the document.

This note was uploaded on 02/15/2008 for the course LAW 1050 taught by Professor Shea during the Spring '04 term at St. Johns Duplicate.

Page1 / 69

Constitutional Law II - Nancy Donovan Constitutional Law II...

This preview shows document pages 1 - 3. Sign up to view the full document.

View Full Document Right Arrow Icon
Ask a homework question - tutors are online