ch.2 pt.2

ch.2 pt.2 - Alison Grimes Log No. 2 Chapter 2, Part 2 1....

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Alison Grimes Log No. 2 Chapter 2, Part 2 1. What's constitutionally deficient with the "bad tendency" test? Bad tendency test provides no First Amendment protection for speech. Expression may be halted or punished if it presents the slightest “tendency” to cause substantial evil. Unconstitutionally vague because fails to warn a speaker when speech may be punished. 2. What is the current formulation of the clear and present danger test? All speech up until incitement of immediate action is protected. The Court held that a state could not "forbid or proscribe advocacy of the use of force … except where such advocacy is directed to producing imminent lawless action and is likely to incite or produce such action." Though the Court's opinion fails to mention specifically the phrase clear and present danger, many Constitutional Law scholars have seen Brandenburg as a return to the Holmes-Brandeis immediacy test first set forth in Abrams. However, the Court has not specifically addressed the clear-and-present-danger doctrine since Brandenburg , and thus it is not clear whether the Court would embrace it anew or would fashion an entirely new standard for determining whether, in certain circumstances, free expression can be punished. 3. What was the immediate danger in U.S. v. Fulmer? Fulmer contests the sufficiency of the evidence supporting his conviction on two grounds, first, that an ambiguous statement cannot be considered a “true threat,” and second, that the evidence did not support a finding that Fulmer had the requisite intent. 4. Would Dennis v. United States be decided the same way had Brandenburg been decided before Dennis? No, because in Dennis the law said that clear and present danger could only be found if there were advocacy of direct illegal action. In Brandenburg the court ruled that speech be punished only if it incites lawless action. 5. Does the law employ a clear and present danger test in libel cases? Why or why not? No. In Schenck v. United States (1919), Justice Oliver Wendell Holmes articulated this test, which said that the government may suppress speech that presents a clear and present danger, as long as the government can show that that danger is both real and imminent. Libel cases must prove actual malice. 6. When do courts employ a balancing test?
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Courts engage in balancing tests it is the duty of the courts to determine which of two conflicting interests demands the greater protection in particular circumstances. Many cases that require balancing are when speech may be sufficiently harmful to justify compensation for an injured party, although the expression may not present immediate danger of unlawful action justifying a prior restraint or a criminal punishment. 7.
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This note was uploaded on 03/30/2011 for the course JRLC 5040 taught by Professor Lee during the Spring '08 term at UGA.

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ch.2 pt.2 - Alison Grimes Log No. 2 Chapter 2, Part 2 1....

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