Con Law II Outline .docx - A Freedom of Speech(Congress...

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A. Freedom of Speech (Congress shall make no laws abridging freedom of speech) a) Defining Freedom of Speech Under the First Amendment, which applies to the federal government and which has been applied to the states by the 14 th amendment, government action that abridges freedom of speech is void unless it passes strict scrutiny or is otherwise justified. Even where the abridgement is justified, it is void if it is improper form. Analytical Framework: In general terms, the analysis requires three steps. First, determine whether the government has abridged free speech or, in other words, whether the complainant has established a prima facie case of a violation. Second, if so, determine whether the abridgment is justified, either because it passes strict scrutiny or on some other ground. Third, whether or not the abridgment is justified, also determine whether it is improper in form. The abridgement will be constitutional only if it is both justified and proper in form. 1. Prime Facie Case: The first step in the analysis is to determine whether a prima facie case has been established. The prima facie case has three elements: (1) state action (2) abridging freedom of (3) speech. There are perhaps most easily discussed in reverse order: a) Was there speech? Speech is activity intended to convey a particular message where the likelihood is great that the message will be understood. Examples include verbal communication, but also other forms of conduct, such as draft card burning, flag burning and making campaign contributions? West Virginia State Board of Education v. Barnette – Compelled Affirmation Holding: The Court held that the compelling a salute to the flag is a violation of the First Amendment of the Constitution because it infringes upon an individual’s intellect and right to choose their own beliefs. The Majority focuses on the right of persons to choose beliefs and act accordingly. As long as the actions do not present a clear and present danger of the kind the state is allowed to prevent, then the Constitution encourages patriotism. This is something citizens will choose or not. Wooley v. Maynard – Compelled Affirmation Facts: The New Hampshire automobile license plate included the state motto, “Live Free or Die.” Maynard and his wife were of the Jehovah’s Witnesses faith and found the motto repugnant to their religious beliefs. They therefore covered the motto on their automobile license plates and were convicted on misdemeanor charges for doing so. Issue: Whether the New Hampshire law unconstitutionally interferes with the freedom of speech guaranteed by the First Amendment? Holding: The Supreme Court held that as applied to the Maynard’s, the misdemeanor statute violates the First Amendment because it forces them to adhere to an ideological viewpoint with which they disagree.
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  • Fall '08
  • HERALD
  • Government, First Amendment to the United States Constitution

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