Final ReviewNY Times v. Sullivan (SCOTUS, 1963)Facts: A New York newspaper published an ‘editorial’ advertisement communicating information, expressing opinion, reciting grievances, protesting claimed abuses, and seeking financial support on behalf of the Negro right-to-vote movement and the Negro student movement. An elected commissioner of the City of Montgomery, Alabama, brought a civil libel action against the publisher of the newspaper and against Negro and Alabama clergymen whose names appeared in the advertisement. The Circuit Court, Montgomery County, Alabama, entered a judgment on a verdict awarding $500,000 to the plaintiff and the defendants appealed. The Supreme Court of Alabama, 273 Ala. 656, 144 So.2d 25, affirmed, and certiorari was granted. Holding: The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are “false or in reckless disregard of their truth or falsity”). 

Kunz v. NY (1951, SCOTUS)Facts: A Baptist minister, Carl J. Kunz, was denied a permit to preach on the streets of New York City by the city police commissioner. A city ordinance prohibited religious services on public streets without a permit from the city government. The ordinance did not spell out the reasons for denying someone a permit. The Reverend Mr. Kunz was denied a permit because he had a reputation for using obscene words in his speeches to denounce Catholics and Jews. Kunz defied the city ordinance and preached on a street corner without a permit. He was arrested and convicted for violating the city ordinance.Holding: Chief Justice Fred Vinson said that enforcement of the ordinance was an unconstitutional “prior restraint” (advance censorship) on an individual's rights to free speech and free exercise of religion.Locurto v. GiulianiFacts: NYPD officer Locurto was fired after participating off-duty in a racially offensive float that was part of a 1998 Labor Day Parade in Broad Channel, Queens.Holding: Time, place and manner restrictions: speech must be content neutral, the government must have a substantial interest in making the law restricting speech narrowly tailored, and the government must provide a reasonable alternative to the time/location/manner of the speech.Chaplinksy v. New Hampshire (SCOTUS, 1942)Facts of the Case: Chaplinsky, a Jehovah's Witness, called a city marshal a "God-damned racketeer" and "a damned fascist" in a public place. He was arrested and convicted under a state law for violating a breach of the peace.Holding: Chaplinsky’s speech is not protected, it is obscenity/fighting words: direct insult, face to face, will provoke average person to fight.Snyder v. Phelps (SCOTUS, 2011)Facts of the Case: The family of deceased Marine Lance Cpl. Matthew Snyder filed a lawsuit against members of the Westboro Baptist Church (aka Phelps) who picketed at his funeral. The family accused the church and its founders of defamation, invasion of privacy and the intentional infliction of emotional distress for displaying signs that said, "Thank God for dead soldiers" and "Fag troops" at Snyder's funeral. Holding: (1) Free Speech will always be more powerful than emotional distress; (2) in order for the First Amendment to be involved, the speech must be public; (3) public speech can not be punished as an infliction of emotional distress.Justice Samuel Alito filed a lone dissent, in which he argued: "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case."

MOVIES, TV, INTERNET CASESMoviesMutual Film v. Industrial Commission of Ohio (1915, US Sup. Ct.)- anti moviesIndustrial Commission approved movies in Ohio- only show movies in Ohio if educational and harmlessSup. Ct. held that movies are not protected by First Amendment. They are a “commercial venture”-to make $.Burstyn v. Wilson (1951, US Sup. Ct.)- pro movies

Facts: Italian movie called “The Miracle”, about a peasant girl in Italy; she becomes pregnant and is seduced by a stranger who says he’s Jesus. Shown in New York, law- that banned blasphemous movies.Holding: Movies are protected by the 1st Amendment. The New York statute… is invalid as an unconstitutional abridgment of free speech and of free press.Kingsley Intern. Pictures v. Regents of New York (US Sup. Ct., 1959)- pro moviesFacts: English movie- “Lady Chatterly’s Lover”- contained sexual themes. NY said- cant show this movie in NY because you can’t show adultery in a positive light. Holding: The Supreme Court ruled unconstitutional a section of the New York censorship law which prevented the exhibition of a movie simply because it advocated an idea. The Court noted that: “The First Amendment’s basic guarantee is of freedom to advocate ideas.”Freedman v. Maryland (US Sup. Ct. 1965)- pro moviesFacts: Maryland required that all films be submitted to a board of censors before being exhibited. The board could disapprove films that were obscene, debased or corrupted morals, or tended to incite crime. There was no time limit on the decision-making process. Ronald Freedman challenged the law as unconstitutional due to the procedures to obtain approval. He did not suggest that prior approval itself was unconstitutional.Holding: The Court found the Maryland law to be invalid. The Court decision reflected a concern that the statute provides the danger of "unduly suppressing protected expression." The board was allowed overly broad licensing discretion with a lack of statutory provisions for judicial participation in the procedure to prohibit a film. The Court established three guidelines as adequate safeguards to protect against the "undue inhibition of protected expression." These guidelines are to: (1) place the burden of proving the film is unprotected expression on the censors, (2) require judicial determination to impose a valid determination, and (3) require prompt determination "within a specified time period."US v. Stevens (2010, US Sup. Ct.)- pro crush videosFacts: Defendant was convicted, in the United States District Court for the Western District of Pennsylvania, Alan N. Bloch, J., of violating statute prohibiting depictions of animal cruelty. Defendant appealed. The United States Court of Appeals for the Third Circuit, Smith, Circuit Judge, 533 F.3d 218,vacated the conviction. Certiorari was granted.Holding: Chief Justice Roberts, held that federal statute criminalizing the commercial creation, sale, or possession of depictions of animal cruelty was too broad, and invalid on its face under the First Amendment protection of speech.Dissent (Alito): animal cruelty not protected under first amendment similar to New York v. Ferber (child pornography not protected), law is too narrowly drawn, there is no social value in torturing animals.Radio/TVCBS/NBC v. US (US Sup. Ct, 1943)- FCC can regulate radioFacts: FCC- Congressional agency, licenses/regulates radio. NBC/CBS challenged Radio Act.Holding: Frankfurter held that: (1) radio/TV is a “limited access medium”, there is only space for a limited # of stations; (2) airwaves belong to the public and there has to be regulation by a government agency; (3) interests of the public is more important than the interests of the broadcaster; (4) Congress/FCC will not control radio contentDissent (Murphy): FCC provides the govenrment with an opportunity to control content; license should be given on a first come, first serve basisFairness Doctrine (abolished in 1987): balanced TV/radio (both sides of discussion)- had a “chilling effect”- The FCC requirement that radio and television broadcasters cover each side of public issues on their stations was upheld by the Court in Red Lion Broadcasting Company v. Federal Communications Commission. The Court also concluded that where frequencies were limited, it could not extend an “unbridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or publish …”.FCC v. Pacifica Foundation (1977, US Sup. Ct.)- indecent speech not protectedFacts: During a mid-afternoon weekly broadcast, a New York radio station aired George Carlin's monologue, "Filthy Words." Carlin spoke of the words that could not be said on the public airwaves. His list included shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. The station warned listeners that the monologue included

"sensitive language which might be regarded as offensive to some." The FCC received a complaint from a man who stated that he had heard the broadcast while driving with his young son.Holding: The Court held that limited civil sanctions could constitutionally be invoked against a radio broadcast of patently offensive words dealing with sex and execration. Fox v. FCC (2010, US Ct. of Appeals)Holding: Cable and broadcast TV have different standards of indecency. Broadcast TV is a limited access medium, while cable is not. If the context of speech is against contemporary community standards, then it’s indecent. Court struck down FCC’s indecency policy because it is too vague, and sets no standard. “void for vagueness” doctrine- if not clear, then void: can’t know rights/obligations, allows for abuse on lawmaker’s part.Turner Broadcasting v. FCC (1994/1997, US Sup. Ct.)- cable must carry local channels- constitutionalFacts of the Case: In 1992, Congress passed the Cable Television Consumer Protection and Competition Act of 1992- “the must-carry rules”. Cable must carry local channels.Holding: The Court held that the must-carry provisions were content neutral, thus not a violation of the First Amendment. The rules were not determined by the programming content, but by broadcast method. The rules promote fair competition in television programming. Congress recognized that the public television stations had an intrinsic value to the American public and were in economic peril of disappearing due to the cable television industry's monopoly. The rules do not force the cable companies to alter their message.

NATIONAL SECURITYConceptsCrisis- threat that requires urgent response (unadvertised)- “truth is the first casualty”Treason- US Constitution- Art. 3, S.3 “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”Seditious libel- false, scandalous, or malicious statements against the government. CasesZenger Trial- of printing material that was seditious libel; argued that truth was a defense.Masses Pub. Co. v. Patten (Post Master of NYC) (1917, US District Ct.)- pro free speechFacts: Masses was a left wing magazine that published articles and cartoons. Patten, the US Postmaster denied mail.Issue: Is the 1917 Espionage Act constitutional?Holding: No, the law does not apply in this case, does not have to do with truth or falsehood. Words that counsel or advise a man to act and thereby urge upon him that it is his interest or duty to act are punishable. Schenck v. United States (1919, US Sup Ct.) clear and present danger testFacts: Schenck, a member of the Socialist Party, made leaflets opposed to the draft.Violated Espionage Act 1917. The document in question claims that the draft is a violation of the Thirteenth Amendment of the Constitution (involuntary servitude). Decision: Schenck's leaflets are not protected by the 1st amendment. In many places and in ordinary times, the Defendants in saying all that was said in the leaflets would have been within their constitutional rights. When a nation is at war, different there is no time for a "marketplace of ideas". The First Amendment does not protect the right to free speech when the nature or circumstances are such that the speech creates a clear and present danger of substantial harm to important national interests.Abrams v. US (1919, US Sup. Ct.)- in Holmes dissent-changes definition of clear and present dangerFacts: Abrams and others were Russian immigrants, sympathetic to Bolsheviks in Russia. Threw leaflouts out of window that advocated a general strike and appealed to workers in ammunitions factories to stop the production of weapons to be used against Russian revolutionaries. They were convicted under 1918 amendments to the Espionage Act that prohibited the curtailment of production of materials necessary to the prosecution of war against Germany with intent to hinder its prosecution.Decision: Abrams’ speech isn't protected. Men must be held accountable for their actions. assume that Abrmas could foresee the consequences of their actions. have to infer intention from conduct. Therefore, their speech is

not protected by the First Amendment of the Constitution, or under the clear and present danger test in Schenck v. U.S.Dissent (Holmes): Need to look at Abram's intent, which was to stop the war with Germany. Holmes redefined the meaning of clear and presednt danger. The speech has to cause a present danger; time element is very important. Speech may not be restricted unless the speaker actually intended to cause a disruptive action by the audience.Gitlow v. New York (1925, US Sup. Ct.)- dangerous tendency test overrules clear and present dangerFacts: Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. Question: Does the New York law punishing the advocacy of overthrowing the government an unconstitutional violation of the free speech clause of the First Amendment?Holding (Sanford): No, the New York law is constitutional. The publication by Gitlow fails the “dangerous tendency test”. Dangerous tendency test is applied to detect whether an act caused evil for a society. When a substantive evil is identified, it is not unconstitutional for a government to interfere. For example, in the U.S., speech having a dangerous tendency is a seditious speech and is subject to punishment. A state can forbid speech and publication when they have a tendency to result in an action dangerous to public security. In order to punish the offender, clear and present danger is not necessary. The legislature can decide that an entire class of speech is so dangerous that it should be prohibited. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all.INCORPORATION DOCTRINE

Total- Hugo Black- incorporate entire Bill of Rights. Selective- Cardozo- “essential liberties”- some more important than others Bill of Rights Plus- Douglas- incorporated stuff not in Bill of Rights- ex. Right to Privacy

Dennis v. US (1951, Sup. Ct.)- clear and present danger is the standard again (pro gov’t)Facts: The Petitioners (Dennis, etc.) were brought up on charges under the Act for allegedly (1) willfully and knowingly conspiring to organize as the Communist Party of the United States, a group whose members advocated the overthrow of the United States government by force and (2) willfully and knowingly advocating and teaching the duty to do the same. It was clear from the record that the leaders of the Communist Party intended to initiate a revolution when the opportunity came. Holding: Smith Act is constitutional Chief Justice Fred Vinson (J. Vinson) We must apply the “clear and present danger” test. Effects of the overthrow (Putsch) are serious, what matters is how serious and how likely the danger is to happen. The government is justified in intervention; it may not be likely that the overthrow will happen, but it is serious enough to intervene. Dissent: Justice Hugo Black (Justice Black) Need to apply the “clear and present danger” test as originally stated; Smith Act is not constitutional. Need to prove there is conduct. Concurrence: Justice Robert Jackson (J. Jackson) The Socialist Party is a secret society; not part of a “marketplace of ideas”. Clear and present danger does not apply.Justice Felix Frankfurter (J. Frankfurter) Clear and present danger is too complicated/too mechanical. A better approach is to balance the interests of the government against the interests of free speech and the individual. It is not for the courts to determine the proper balance; Congress has already done so by passing the act.Douglas- it should be allowed to teach Communism. If this were a case where the speaker was teaching techniques of sabotage, the assassination of the President, or the planting of bombs, I would concur in the judgment. But, the reality is that no such evidence was introduced at trial.Yates v. US (1957, Sup. Ct.)- Smith Act made unenforceable, abstract ideas v. advocating illegal actions Facts: Yates was a leader of the Communist Part in California, charged with violating the Smith Act.Held (Harlan): The Court held that for the Smith Act to be violated, people must be encouraged to do something, rather than merely to believe in something. The Court drew a distinction between a statement of an idea and the advocacy that a certain action is taken.Brandenburg v. Ohio (1969, US Sup. Ct.)- inciting “imminent lawless action”- pro speech

Facts of the Case: Clarence Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally. Portions of the rally were filmed, showing several men in robes and hoods, some carrying firearms, first burning a cross and then making speeches. One of the speeches made reference to the possibility of "revengeance" against "niggers," "Jews," and those who supported them. One of the speeches also claimed that "our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race," and announced plans for a march on Washington to take place on the Fourth of July. Brandenburg 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."Conclusion: 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.

v. Paladin Enterprises (1997, US Ct. of Appeals)Facts of the Case: Following instructions from a manual on murder, called Hit Man: A Technical Manual for Independent Contractor, James Perry brutally murdered Mildred Horn, her eight-year-old quadriplegic son Trevor, and Trevor’s nurse, Janice Saunders, by shooting Mildred Horn and Saunders through the eyes and by strangling Trevor Horn. Paladin knew and intended murder by publishing book.Holding: Paladin prosecuted for aiding murder, since book aids and encourages readers.Holder v. Humanitarian Law Project (US Sup. Ct., 2010)Facts of the Case: Terrorist organizaions prosecuted, not Anti-American. Charged with helping terrorist organizations.Holding (Lutig): AEDPA law is precise enough. Any aid to a “terrorist organization” is unlawful, since money is “fungible” (can be used for anything), frees up resources for terrorism, too difficult what constitutes “lawful activity”. PENTAGON PAPERS CASENew York Times Company v. United States (US Sup Ct., 1971)Facts: Ellsberg released papers that gave some history of US involvement during the Vietnam War to the NY Times and the Washington Post. US government immediately sought an injunction from further publications citing the compromise of national security as justification for the restraint.Issue: Is this request for a prior restraint constitutional?Held: No. The government failed to show sufficient proof for this restraint on expression by the press. Government carries a heavy burden of proof.Concurrence: Black/Douglass- absolutism- Congress shall make no law, means no law(J. Brennan): Prior restraint is allowed when the nation is at war. But, only if there are terrible consequences.Dissent: Justice Warren Burger (J. Burger): The danger to national security is a determination that the Executive branch makes. It is not for the judiciary to overrule this decision.

STATE SECRETSTotten v. US (1875, US Sup. Ct.)- spying is a state secretFacts: Totten spied for US. His estate sues for salary that he was supposed to get paid.Holding: Ct. said that they can’t litigate, since spying is secret; can’t divulge secrets to court no matter what.US v. Reynolds (1953, US Sup. Ct.)- military secrets have to be kept secret- standard setFacts of the Case: An airplane carrying several military personnel and several civilians crashed while conducting tests of "secret electronic equipment." The widows of the three civilians killed sued and asked for full disclosure of the Air Force’s accident investigation report. The report included information pertaining to the secret electronic equipment. The Air Force refused to provide the information, saying that to do so would threaten national security. Conclusion: Chief Justice Fred Vinson, the court held that cause for privilege must be reasonably demonstrated. As a result, the government may withhold information for reasons of national security even when that information is vital to the plaintiff's case. Air Force’s report is a state secret (military plane), therefore widows can’t sue for negligence. Khaled El-Masri v. US (US Court of Appeals, 2007)- state secret privilege reestablishedFacts: On December 6, 2005, El-Masri, a German citizen of Lebanese descent, filed his Complaint in this case, alleging, in substance, as follows: on December 31, 2003, while travelling in Macedonia, he was detained by Macedonian law enforcement officials; after twenty-three days in Macedonian custody, he was handed over to CIA operatives, who flew him to a CIA-operated detention facility near Kabul, Afghanistan; he was held in this CIA facility until May 28, 2004, when he was transported to Albania and released in a remote area; and Albanian officials then picked him up and took him to an airport in Tirana, Albania, from which he travelled to his home in Germany. The Complaint asserted that El-Masri had not only been held against his will, but had also been mistreated in a number of other ways during his detention, including being beaten, drugged, bound, and blind- folded during transport; confined in a small, unsanitary cell; interrogated several times; and consistently prevented from communicating with anyone outside the detention facility, including his family or the German government. CIA determines he is the “wrong guy”. El-Masri brings suit that the secret is out.Holding: El-Masri’s Complaint is dismissed because the information about him is a state secret.US v. Progressive (US District Ct., 1979)Facts: Progressive Magazine was going to publish Morland’s article “how to make an H-bomb”, sent it to Department of Energy.Issue: Can the magazine publish the article?Holding: No, because the article is “classified at birth”, court issues an injunction.

Griswold v. Connecticut (US Sup. Ct., 1964)Facts: Griswold was the Executive Director of the Planned Parenthood League of Connecticut. Both she and the Medical Director for the League gave information, instruction, and other medical advice to married couples concerning birth control. Griswold and her colleague were convicted under a Connecticut law which criminalized the provision of counseling, and other medical treatment, to married persons for purposes of preventing conception. Held. Connecticut law is unconstitutional. Douglas (J. Douglas) describes the right to privacy from the first, third, and fourth amendments Concurrence. Justice Arthur Goldberg (J. Goldberg) believes that the Ninth Amendment of the United States Constitution (Constitution) guarantees that the marital relation is a right retained by the people, and as such, Connecticut does not have the constitutional authority to abridge that relationship.Dissent. Justices Hugo Black (J. Black) and Potter Stewart (J. Stewart) dissented. Privacy is not in the Constitution, we can’t put it there.Roe v. Wade (1971 SCOTUS)Facts: Roe, a Texas resident, sought to terminate her pregnancy by abortion. Texas law prohibited abortions except to save the pregnant woman's life.Holding: Blackmun, the Court struck down Texas law, gave women the right to choose to have an abortion; set up a trimester system. (1) gives American women an absolute right to an abortion in the first three months

of pregnancy; (2) allows some government regulation in the second trimester of pregnancy; (3) declares that states may restrict or ban abortions in the last trimester, in this trimester a woman can obtain an abortion despite any legal ban only if doctors certify it is necessary to save her life or health.Dissent: Rehnquist- if abortion is not in the Constitution, there should be a consensus in the public. There is no consensus in the public and abortion is not expressly in the Constitution.Planned Parenthood: keep Roe, but set new standard-undue burdenYoung v. NYC Transit Authority (US Ct. of Appeals, 1990)Facts: Transit Authority issued a regulation that prohibited begging and panhandling. But some charities are allowed. Young was arrested for begging on the subway. He claimed that the First Amendment gave him the right to beg. MTA said this is a “time, place, and manner restriction”. Need to ask if there is government interest, content neutral, alternative. Holding: Court of appeals upheld NY law. Threw out First Amendment claim. Different from organized charity- avoids extortion/abuse.Saia v. NY (SCOTUS, 1948)Facts: Saia was a Jehovah’s witness, in a park would deliver a religious speech. NY did not grant permitHolding: In favor of Saia, because it was a case “sweeping prior restraint”- prior restraint without guidelines. “Opposition to ideas can often be cloaked as opposition to noise” Jehovah’s witnesses were not popularDissent (Frankfurter): Not a free speech issue at all. He can speak, but not with an amplifier.Kovacs v. Cooper (SCOTUS, 1949) Facts: Kovacs was driving around with an amplifier, spoke through an ampHolding: allowed NJ law to prohibit “loud and raucous”. Privacy expectation is higher at home when driving by. Law is specific enough, while the law in NY was not specific enough.> (Practice of Distinguishing)Ward v. Rock Against Racism (SCOTUS 1988)Facts: Ward-Police Officer. Rock- had loud rock concerts. City asked Rock to stop, they didn’t. City said they will supply their own sound equipment/engineer. Rock said limited freedom of expression. New York City, responding to complaints of high-decibel concerts adjoining residential neighborhoods, mandated the use of city-provided sound systems and technicians for concerts in Central Park. Members of rock group claimed that the inability to use their own sound equipment and technicians in a concert in a public forum interfered with their First Amendment rights of expression.Issues: Is music protected by the First Amendment? Does the New York ordinance substituting a city-employed technician and mixing board for a performer's mixer and equipment violate the First Amendment?Holding: Yes, music is protected by the First Amendment, since music is a form of communication. No. The Court upheld the ordinance, giving broad deference to the government's interest in maintaining order. As long as "the means chosen are not substantially broader than necessary to achieve the government's interest," a regulation will not be invalidated because a court concludes that the government's interest "could be adequately served by some less-speech- restrictive alternative."Feiner v. NY (SCOTUS 1949)Facts of the Case: On March 8, 1949, Irving Feiner, a white student at Syracuse University, made an inflammatory speech on a street corner in Syracuse, New York. During the speech, which was intended to encourage listeners to attend a leftist rally, Feiner made several disparaging remarks about local politicians, organizations, and President Truman. A crowd gathered, and several listeners began "muttering" and "shoving." One listener threatened Feiner. Two officers on the scene, fearing violence, asked Feiner twice to end his speech. After he refused, the officers arrested Feiner for inciting a breach of the peace. A trial court found Feiner guilty and sentenced him to thirty days in prison. On appeal, Feiner argued his arrest violated his right to free speech under the First Amendment. The Onondaga County Court and the New York Court of Appeals each denied his claim.Question: Did Feiner's arrest for inciting a breach of the peace violate his right to free speech under the First Amendment?Conclusion: No. In a 6-3 opinion authored by Chief Justice Fred Vinson, the Court applied the "clear and present danger" principle it originally articulated in Schenck v. United States (1919). According to the Court, Feiner's arrest was a valid exercise of "the interest of the community in maintaining peace and order on its streets." The Chief Justice dismissed the notion that the arrest amounted to the suppression of free

communication. "It is one thing to say that the police cannot be used as an instrument for the suppression of unpopular views, and another to say that, when as here the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace."Dissent (Black): Focused on the effect of the police, to shut Feiner up. The person yelling out creates a “heckler’s veto”- someone to disturb speech. Police are peace officers

TYPES OF CONSTITUTIONAL INTERPRETATIONOriginal meaning- J. Thomas- the law is whatever the written law says ORIGINALISMOriginal intent- J. Scalia- the law is the Framers intended it to be ORIGINALISM“Living constitution”- Bork- allows judges to update the meaning of laws in light of the history of the United States, also using precedent established by prior cases.

Preferred Position: J. Douglass, Charles Black (Yale Law Professor): when a law appears, on its face, to violate the Bill of Rights, the Court should presume it to be unconstitutional; also speech should be preferred to other parts of the Constitution.Absolutist position: Justice Hugo Black: requires a reading of First Amendment rights that permits no “balancing” of individual and societal rights but instead insists that the enumerated First Amendment guarantees are absolute in and of themselves and that they cannot be infringed by any governmental action that would inhibit their exercise.

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