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[email protected] - Carolene Products Footnote 4 Narrower...

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Carolene Products Footnote 4: Narrower scope of presumption of constitutionality when legislation: Infringes on the bill of rights, which are equally specific once held incorporated w/in 14th Restricts political processes which can ordinarily lead to the repeal of the legislation Directed at discrete and insular minorities, whether religious, racial or national and tends to seriously curtail the political process that would normally be relied upon to protect minorities These situations may call for a more searching judicial inquiry. First Amendment Rights Dangerous Speech Shenck v. US : Holmes writing for the majority votes to uphold convictions under laws criminalizing opposing the draft; even after admitting such conduct would normally be protected bc of circumstances Emphasized that context is important: In this case WWI meant normally protected speech may be illegal and not protected by the first amendment. “Bad Effects Test” was enough to satisfy holmes Abrams v. US : Again similar convictions are upheld but Holmes’ dissent is what the case is remembered for Holmes: votes to overturn bc no intent to, or immediate ability to; pose any real threat of lawlessness Marketplace of ideas: be wary of restricting expression of ideas we don’t like, limit using the law to do so to cases where lawlessness cannot be prevented by anything less than restricting their speech Also: Abrams was encouraging US to fight to help Russia, not discourage US soldiers from fighting Germans, Holmes calls for “Clear and Present Danger Test” Majority sticks with “Bad Effects” Brandenburg v. Ohio (pg 1091-1099): Sets out modern Test H: St can’t forbid advocacy of use of force or of law violation except where advocacy 1) Is directed to inciting or producing imminent lawless action AND i.e. no way to stop it by countering it w/other speech 2) Is likely to incite or produce such action; Court has never specifically addressed Brandeis’ element of “serious harm” Even clear and present danger may not=imminent, illegal acts e.g. posing a clear and present danger that won’t occur til hicks leave farm=protected Implied First Amendment Rights (pp. 1436 (start at Pruneyard )–1439 (stop at (5)) The right not to speak: Wooley v. Maynard; NH Live Free or Die motto on license plates; Maynards are Jehovah’s witnesses and don’t want to drive around w/ that motto on their car; court says they don’t have to—freedom of thought. NH argues their purpose is to distinguish passenger cars from other vehicles; court says you can accomplish this through less invasive means, also NH wouldn’t let them just cover it up
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Court is applying a subjective test to determine whether Maynards’ rights have been violated: Do the MAYNARDS plausibly, subjectively feel they are being associated with this particular slogan, being forced to express ideas they do not believe in, violate implied 1st. Amend right
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