conflas.doc. - Carolene Products-3 categories of action...

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Carolene Products ------ 3 categories of action where gov’t will suspend lenient standard and look closely at gov’t action (high scrutiny): Statute on its face restricts actions protected by Bill of Rights/14th Amendment restrictions on freedom of speech fall here Legislation that restricts political processes that could bring about repeal of undesirable legislation ~ Law that insulates the political system from change will also be looked at skeptically Laws that restrict criticism of the government fall into this category if people can’t express opinions, our democratic system of gov’t wont work how it’s supposed to freedom of speech is a pre-condition of democracy Statute is aimed at discriminating against minorities, particularly those who lack sufficient numbers or power to seek redress through political process restrictions on speech are likely to be aimed at ideological minorities—those are the people who need the court’s protection need to protect speech of fringe groups expressing unpopular viewpoints Issue: At what point does the governmental regulation or support of a private party become so pervasive and substantial that we can attribute the actions of the private party to the state as well? Rule: Government cannot restrict people from trying to repeal unconstitutional legislation. Nor can government
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make statutes directed at religious, ethnic, or racial minorities.  Schenck v. United States ------ Justice Holmes: Outspoken advocate and protector of free speech. However, many of his opinions uphold the convictions of people who spoke out against the war efforts. He thought free speech depended a lot on the circumstances and immediacy surrounding the speech. Facts: an anti-conscription activist was charged for violating the Espionage Act when her circulated leaflets intended to hinder the US's conscription efforts during WWI Issue: Does the Constitution permit punishment of speech where the words are used in such a nature as to create a clear and present danger that they will bring about substantive evils that congress has a right to prevent? Standard:  Clear and Present Danger Test- Look at the circumstances under which the speech was made. Speech can be punished as an attempt to commit an illegal act if the speech creates a clear and present danger that the illegal act would come about (even if it never does). It does not matter what was actually said, all that matters is the context in which it was said. Everybody agrees that yelling “fire” in a crowded theatre is not protected speech. Rule: the constitution permits the punishment of speech when the words 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. "the most stringent protection of free speech
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This note was uploaded on 04/05/2010 for the course LAW LAW5502 taught by Professor Stern during the Spring '10 term at Florida State College.

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conflas.doc. - Carolene Products-3 categories of action...

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