They walked in orderly fashion two abreast for four

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They walked in orderly fashion, two abreast, for four blocks, in order to protest the alleged denial of civil rights to African- Americans in the city. The marchers stayed on the sidewalks except at street intersections, did not interfere with other pedestrians or automobiles, and did not disobey traffic signals. The city police stopped the marchers and arrested them for violating Birmingham, Ala., General Code § 1159. The minister was convicted for violating § 1159 and was sentenced to 90 days' imprisonment at hard labor and an additional 48 days at hard labor in default of payment of a $ 75 fine and $ 24 costs. 2. Issue : Was the ordinance unconstitutional? 3. Holding : Yes. a. “A law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without 30
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narrow, objective, and definite standards to guide the licensing authority is unconstitutional.” b. Ps tried repeatedly to get a permit and were denied. c. “There can be no doubt that the Birmingham ordinance, as it was written, conferred upon the city commission virtually unbridled and absolute power to prohibit” permits. d. Unprotected and Less Protected Speech i. Incitement of Illegal Activity 1. Brandenburg v. Ohio , 1969 a. Facts : TV station filmed the KKK rally in Ohio. Defendant says they are marching, and calls for people to join them, etc. He is charged with “advocating…violence…” b. Issue : Does the statute violate freedom of speech? c. Holding : Yes. i. Constitution guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action. ii. Test : a conviction is only constitutional if there is (1) imminent harm, (2) a likelihood of producing an illegal action, AND (3) an intent to cause imminent illegality. 1. The Court did not answer how imminence and likelihood are to be measured, nor how intent was defined or measured. 2. Hess v. Indiana a. Facts : Antiwar protestor said “We’ll take the fucking streets back later.” He was arrested for disorderly conduct. b. Issue : was this conviction unconstitutional because it forbade activity that was protected under the First and Fourteenth Amendments, and because the statute abridged his constitutionally protected freedom of speech? c. Holding : Yes. i. Must be directed and intended to produce imminent lawlessness. ii. This failed the Brandenburg test because there was “no evidence…that his words were intended to produce, and likely to produce, imminent disorder.” ii. National Security 1. New York Times v. Unites States , 1971 31
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a. Facts : The New York Times and Washington Post wanted to print papers regarding the Pentagon and the Vietnam War. Feds tried to stop them on the basis of national security implications and got an injunction.
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  • Spring '18
  • Government, Fourteenth Amendment to the United States Constitution

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