Term: Location: Facts of The Case: 1956 Roth's Mail-Order Book Business

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ROTH Term: 1950-19591956 Location: Roth's mail-order book business Facts of the Case Roth operated a book-selling business

in New York and was convicted of mailing obscene circulars and an obscene book in violation of a federal obscenity statute. Roth's case was combined with Alberts v. California, in which a California obscenity law was challenged by Alberts after his similar conviction for selling lewd and obscene books in addition to composing and publishing obscene advertisements for his products. Question Did either the federal or California's obscenity restrictions, prohibiting the sale or transfer of obscene materials through the mail, impinge upon the freedom of expression as guaranteed by the First Amendment? Argument Roth v. United States - Oral Argument Conclusion Decision: 6 votes for United States, 3 vote(s) against Legal provision: 18 U.S.C. 1461 In a 6-to-3 decision written by Justice William J. Brennan, Jr., the Court held that obscenity was not "within the area of constitutionally protected speech or press." The Court noted that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were "utterly without redeeming social importance." The Court held that the test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." The Court held that such a definition of obscenity gave sufficient fair warning and satisfied the demands of Due Process. Brennan later reversed his position on this issue in Miller v. California (1973).

SCHENCK

Term: 1901-19391918 Location: Socialist Headquarters Facts of the Case During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised

only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment. Question Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment? Conclusion Decision: 9 votes for United States, 0 vote(s) against Legal provision: 1917 Espionage Act; US Const Amend 1 Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. The character of every act depends on the circumstances. "The question in every case is whether the words used 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." During wartime, utterances tolerable in peacetime can be punished. BRANDENBURG Term: 1960-19691968 Location: Farm Facts of the Case Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." Question Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments? Argument Brandenburg v. Ohio - Oral Argument Conclusion Decision: 8 votes for Brandenburg, 0 vote(s) against Legal provision: Amendment 1: Speech, Press, and Assembly The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test to

evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution. TINKER V DES MOINES Term: 1960-19691968 Location: Des Moines Independent Community School District Facts of the Case John Tinker, 15 years old, his sister Mary Beth Tinker, 13 years old, and Christopher Echardt, 16 years old, decided along with their parents to protest the Vietnam War by wearing black armbands to their Des Moines schools during the Christmas holiday season. Upon learning of their intentions, and fearing that the armbands would provoke disturbances, the principals of the Des Moines school district resolved that all students wearing armbands be asked to remove them or face suspension. When the Tinker siblings and Christopher wore their armbands to school, they were asked to remove them. When they refused, they were suspended until after New Year's Day. Question Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the First Amendment's freedom of speech protections? Argument Tinker v. Des Moines Ind. Comm. School Dist. - Oral Argument Conclusion Decision: 7 votes for Tinker, 2 vote(s) against Legal provision: Amendment 1: Speech, Press, and Assembly The wearing of armbands was "closely akin to 'pure speech'" and protected by the First Amendment. School environments imply limitations on free expression, but here the principals lacked justification for imposing any such limits.The principals had failed to show that the forbidden conduct would substantially interfere with appropriate school discipline.

US V OBRIEN Term: 1960-19691967 Location: South Boston Court Facts of the Case David O'Brien burned his draft card at a Boston courthouse. He said he was expressing his opposition to war. He was convicted under a federal law that made the destruction or mutilation of drafts card a crime. Question Was the law an unconstitutional infringement of O'Brien's freedom of speech? Argument United States v. O'Brien - Oral Argument Conclusion Decision: 7 votes for United States, 1 vote(s) against Legal provision: Selective Service, Military Selective Service, or Universal Military Service and Training Acts No. The 7-to-1 majority, speaking through Chief Justice Earl Warren, established a test to determine whether governmental regulation involving symbolic speech was justified. The formula examines whether the regulation is unrelated to content and narrowly tailored to achieve the government's interest. "[W]e think it clear," wrote Warren," that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidential restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest." BAKKE Term: 1970-19791977 Location: University of California Medical School at Davis Facts of the Case Allan Bakke, a thirty-five-year-old white man, had twice applied for admission to the University of California Medical School at Davis. He was rejected both times. The school reserved sixteen places in each entering class of one hundred for "qualified" minorities, as part of the university's affirmative action program, in an effort to redress longstanding, unfair minority exclusions from the medical profession. Bakke's qualifications (college GPA and test scores) exceeded those of any of the minority students admitted in the two years Bakke's applications were rejected.

Bakke contended, first in the California courts, then in the Supreme Court, that he was excluded from admission solely on the basis of race. Question Did the University of California violate the Fourteenth Amendment's equal protection clause, and the Civil Rights Act of 1964, by practicing an affirmative action policy that resulted in the repeated rejection of Bakke's application for admission to its medical school? Argument Regents of the University of California v. Bakke - Oral Argument Regents of the University of California v. Bakke - Opinion Announcement Conclusion Decision: 5 votes for Bakke, 4 vote(s) against Legal provision: Equal Protection Split Vote No and yes. There was no single majority opinion. Four of the justices contended that any racial quota system supported by government violated the Civil Rights Act of 1964. Justice Lewis F. Powell, Jr., agreed, casting the deciding vote ordering the medical school to admit Bakke. However, in his opinion, Powell argued that the rigid use of racial quotas as employed at the school violated the equal protection clause of the Fourteenth Amendment. The remaining four justices held that the use of race as a criterion in admissions decisions in higher education was constitutionally permissible. Powell joined that opinion as well, contending that the use of race was permissible as one of several admission criteria. So, the Court managed to minimize white opposition to the goal of equality (by finding for Bakke) while extending gains for racial minorities through affirmative action.

NATIONAL SOCIALIST PARTY v. SKOKIE, 432 U.S. 43 (1977)


432 U.S. 43 NATIONAL SOCIALIST PARTY OF AMERICA ET AL. v. VILLAGE OF SKOKIE ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ILLINOIS No. 76-1786. Decided June 14, 1977

The Illinois Supreme Court denied a stay of the trial court's injunction

prohibiting petitioners from marching, walking, or parading in the uniform of the National Socialist Party of America or otherwise displaying the swastika, and from distributing pamphlets or displaying materials inciting or promoting hatred against Jews or persons of any faith, ancestry, or race, and also denied leave for an expedited appeal. Held:

1. The Illinois Supreme Court's order is a final judgment for purposes of this Court's jurisdiction, since it finally determined the merits of petitioners' claim that the injunction will deprive them of First Amendment rights during the period of appellate review. 2. The State must allow a stay where procedural safeguards, including immediate appellate review, are not provided, and the Illinois Supreme Court's order denied this right. Certiorari granted; reversed and remanded. PER CURIAM. On April 29, 1977, the Circuit Court of Cook County entered an injunction against petitioners. The injunction prohibited them from performing any of the following actions within the village of Skokie, Ill.: "[m]arching, walking or parading in the uniform of the National Socialist Party of America; [m]arching, walking or parading or otherwise displaying the swastika on or off their person; [d]istributing pamphlets or displaying any materials which incite or promote hatred against persons of Jewish faith or ancestry or hatred against persons of any faith or ancestry, race or religion." The Illinois Appellate Court denied an application for stay pending appeal. Applicants then filed a petition for a stay in the Illinois Supreme Court, together with a request for [432 U.S. 43, 44] a direct expedited appeal to that court. The Illinois Supreme Court denied both the stay and leave for an expedited appeal. Applicants then filed an application for a stay with MR. JUSTICE STEVENS, as Circuit Justice, who referred the matter to the Court. Treating the application as a petition for certiorari from the order of the Illinois Supreme Court, we grant certiorari and reverse the Illinois Supreme Court's denial of a stay. That order is a final judgment for purposes of our jurisdiction, since it involved a right "separable from, and collateral to" the merits, Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546 (1949). See Abney v. United States, 431 U.S. 651 (1977); cf. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 476 -487 (1975). It finally determined the merits of petitioners' claim that the outstanding injunction will deprive them of rights protected by the First Amendment during the

period of appellate review which, in the normal course, may take a year or more to complete. If a State seeks to impose a restraint of this kind, it must provide strict procedural safeguards, Freedman v. Maryland, 380 U.S. 51 (1965), including immediate appellate review, see Nebraska Press Assn. v. Stuart, 423 U.S. 1319, 1327 (1975) (BLACKMUN, J., in chambers). Absent such review, the State must instead allow a stay. The order of the Illinois Supreme Court constituted a denial of that right. Reversed and remanded for further proceedings not inconsistent with this opinion. So ordered. MR. JUSTICE WHITE would deny the stay. MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE STEWART join, dissenting. The Court treats an application filed here to stay a judgment of the Circuit Court of Cook County as a petition for certiorari to review the refusal of the Supreme Court of [432 U.S. 43, 45] Illinois to stay the injunction. It summarily reverses this refusal of a stay. I simply do not see how the refusal of the Supreme Court of Illinois to stay an injunction granted by an inferior court within the state system can be described as a "[f]inal judgmen[t] or decre[e] rendered by the highest court of a State in which a decision could be had," which is the limitation that Congress has imposed on our jurisdiction to review state-court judgments under 28 U.S.C. 1257. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 476 -487 (1975), relied upon by the Court, which surely took as liberal a view of this jurisdictional grant as can reasonably be taken, does not support the result reached by the Court here. In Cox there had been a final decision on the federal claim by the Supreme Court of Georgia, which was the highest court of that State in which such a decision could be had. Here all the Supreme Court of Illinois has done is, in the exercise of the discretion possessed by every appellate court, to deny a stay of a lower court ruling pending appeal. No Illinois appellate court has heard or decided the merits of applicants' federal claim.

WALKER V BIRMINGHAM

Term: 1960-19691966 Location: Birmingham City Council Facts of the Case Civil rights activists who planned to march on Good Friday and Easter were denied parade permits from the city. When they indicated their intention to march anyway, Birmingham obtained an injunction from a state

court which ordered them to refrain from demonstrating. Marchers who defied the order, including Martin Luther King, Jr. and Ralph Abernathy, were arrested. Question Did the injunction violate the First Amendment? Argument Walker v. Birmingham - Oral Argument, Part 2 Walker v. Birmingham - Oral Argument, Part 1 Conclusion Decision: 5 votes for Birmingham, 4 vote(s) against Legal provision: The Court upheld the arrests since Walker failed to use proper judicial procedures to test the injunction's validity. Even though, Justice Stewart admitted, the injunction seemed broad and vague, and the marchers may not have enjoyed due process when applying for the permit originally, simply disobeying the injunction was illegitimate as "no man can be judge in his own case . . . however righteous his motives." BROWN V BOARD Term: 1950-19591952 Location: Board of Education Facts of the Case Black children were denied admission to public schools attended by white children under laws requiring or permitting segregation according to the races. The white and black schools approached equality in terms of buildings, curricula, qualifications, and teacher salaries. This case was decided together with Briggs v. Elliott and Davis v. County School Board of Prince Edward County. Question Does the segregation of children in public schools solely on the basis of race deprive the minority children of the equal protection of the laws guaranteed by the 14th Amendment? Conclusion Decision: 9 votes for Brown, 0 vote(s) against Legal provision: Equal Protection Yes. Despite the equalization of the schools by "objective" factors, intangible issues foster and maintain inequality. Racial segregation in public education has a detrimental effect on minority children because it is interpreted as a sign of inferiority. The long-held doctrine that separate

facilities were permissible provided they were equal was rejected. Separate but equal is inherently unequal in the context of public education. The unanimous opinion sounded the death-knell for all forms of statemaintained racial separation.

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