Category Archives: First Amendment

Wisconsin v. Yoder: State Law or Religious Freedom (05/15/1972)

Wisconsin v. Yoder

Did Wisconsin’s requirement that all parents send their children to school at least until age 16 violate the First Amendment by criminalizing the conduct of parents who refused to send their children to school due to religious beliefs?

Argued: 12/08/1971

Decision Date: 05/15/1972

Decision Record: 7-0; yes

Justices in Favor: Warren Burger, William Douglas, William Brennan, Potter Stewart, Byron White, Thurgood Marshall, Harry Blackmun

Justices Dissenting: None

Effect of the Decision

This case ruled that a person’s First Amendment religious rights are more important than a state requirement.

In Favor

In the favoring side of this case, on the side of the state of Wisconsin, attorney John W. Calhoun argued, “The respondents, here are members of the Old Order Amish religious sect.

They reside in Green County of Southwestern Wisconsin.

In November of 1968, when they refused to send their children beyond the eighth grade, a summon and criminal complaint was filed in the County Court of Green County.

They were tried on April 2, 1969 for violation of the Wisconsin compulsory school-attendance law.

The case was tried to the County Court of Green County and the respondents were found guilty there.

They had a trial de novo in the Circuit Court of Green County where the Court again found them guilty and imposed a minimum fine of $5.00 on each of the respondents.

They appealed to the Wisconsin Supreme Court.

The Wisconsin Supreme Court reversed and this Court granted certiorari on May 24th of this year.

Respondents object to education of the children in public, private, secular or non-secular schools beyond a certain point.

At present time, the objection is eighth grade.

The Trial Court noted the problem with the arbitrary eighth grade cutoff in its decision.

Now, worried about the decisions and opinions that were filed in this case in the courts below, the Trial Court below found that the compulsory school attendance law did interfere with the freedom of the respondents to act in support of their religious beliefs.

They also found that appreciable numbers of the Amish-reared youth do believe the faith.

Both the Trial Courts concluded after several careful consideration of the cases that the compulsory school-attendance laws in Wisconsin were a reasonable exercise of the police power of the state to educate its youth.”


In the opposition, on the side of Yoder, attorney William B. Ball argued, “Wisconsin Attorney General’s attempt to have these Amish parents found criminally guilty has now entered into the fourth year.

This in spite of the fact that in January of this year, the Supreme Court of the State by a six to one vote tendered two conclusions and I am quoting out from the concurring opinion, “that there has been an inadequate showing that the state’s interest in establishing and maintaining an educational system overrides defendant’s right to free exercise of religion” and secondly, “that Amish should not be required to attend the school which meets the requirements of state law beyond the eighth grade.”

And even the one dissenting opinion that of Mr. Justice Heffernan talks about how this prosecution came to be triggered.

So there is strong evidence that the purpose of this prosecution was not to further the compelling interest of the state in education, rather a reprehensible objective under the facts of this case to force the Amish into school only for the purpose of qualifying for augmented state age.

I am going to tax the Court by going over just a little bit some of the facts as they have been presented because I think they are basic, from hearing the questions that have been asked.

The legal basis for this prosecution is the refusal of these parents on religious grounds to afford the three children in question at most two years of high school under a statute which requires not a high school course, not four years of high school, not even one year necessarily but merely school through age 15 not through age 16, through age 15 according to the statute.

Now, the state interest becomes a little bit varied when we think in terms of compelling state interest because if there is a VOs or the technical school, vocational school in the school district then the age limit is 18, up to 18 the child is to attend.

A different standard applies where there is no VO school and the record in this case establishes that there was no vocational school in this district.

Now, then in terms of the interest the state has been trying to compel these children to attend school beyond the eighth grade, we have to realize that for Frieda Yoder, the daughter of Jonas Yoder, one of the three children in question, only one year of schooling was involved because she was 15 years and five months old on the day the criminal complaint was brought against her father.

Barbara Miller would have only six months of the state benefit of additional compulsory education because she was 15 years and eight months old at the time the criminal complaint was brought.

Now, it is the position of the Amish parents that the application of the statute to them violates their free exercise of religion and that there has been no showing whatever, no showing at all that non-application of the statute to them violates or creates any substantial danger to any interest of the State of Wisconsin.

Nobody on our side challenges the fact that the compulsory attendance laws as we speak a compelling state interest.

We have merely, in fact emphasized in this case and in our defense, it is our whole sole support of the statement of this Court in Brown versus the Board of Education wherein the Court said education is a principle instrument in awakening the child’s cultural values and preparing them for later professional training and in helping him to adjust normally to his environment.

This is a superb description of what the Amish people believe in terms of education.

My argument, may it please the Court, will pursue two points.

One the pre-exercise claim and secondly the question of danger to interest of the state which the State of Wisconsin has said existence of substantially degree.

The free exercise point is extremely important that is it is extremely important, but I will try to develop this at some length because here we are not talking about one tenet of the religion being at stake, for example observance of the Sabbath or opposition to military training.

We are not talking here about one particular practice, say spreading the gospel through speech or press or simply as a period of a number of cases.

We are not talking about one forced exercise such as the salute to a greater image or recitation of papers or bible reading.

We are talking about a whole complex of religious interests, religious interests and rights in education and worship and parental nurture, an individual religious choice in vocation, in communal association with respect to teaching and learning with respect to privacy as we have tried to spell out in our brief and indeed we are talking about as will appear the continued existence of the Amish faith community in the United States.

In Graver versus Kansas, Kansas versus Graver rather, the only other State Supreme Court decision in point various Kansas’ attention was paid to the actualities of the Amish religious claim, and therefore, we are dwelling on that to some extent here this morning.”



The court decision was a unanimous one. Justice Warren Burger wrote the court opinion. He wrote, “Aided by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society, the Amish in this case have convincingly demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continued survival of Old Order Amish communities and their religious organization, and the hazards presented by the State’s enforcement of a statute generally valid as to others. Beyond this, they have carried the even more difficult burden of demonstrating the adequacy of their alternative mode of continuing informal vocational education in terms of precisely those overall interests that the State advances in support of its program of compulsory high school education. In light of this convincing showing, one that probably few other religious groups or sects could make, and weighing the minimal difference between what the State would require and what the Amish already accept, it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish. Sherbert v. Verner, supra.

Nothing we hold is intended to undermine the general applicability of the State’s compulsory school attendance statutes or to limit the power of the State to promulgate reasonable standards that, while not impairing the free exercise of religion, provide for continuing agricultural vocational education under parental and church guidance by the Old Order Amish or others similarly situated. The States have had a long history of amicable and effective relationships with church-sponsored schools, and there is no basis for assuming that, in this related context, reasonable standards cannot be established concerning the content of the continuing vocational education of Amish children under parental guidance, provided always that state regulations are not inconsistent with what we have said in this opinion.”

My Opinion:

In this case, I agree with the court decision. Our entire country is pretty much based around the First Amendment, which is where we get the famous name “free country.” America is known for its freedom of speech, expression, and especially religion. If not attending school until at least age 16 goes against ones religion, then that person should not attend school, even if it’s required by law, which in this case, it was. Forcing them to attend school would equate to forcing them to rebel against their religion against their will.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

New York Times v. Sullivan: Protection of False Statements (03/09/1964)

New York Times Company v. Sullivan

Did Alabama’s law of not requiring Sullivan to prove that an advertisement personally harmed him and dismissing the same as untruthful due to factual errors, infringe upon the First Amendment’s freedom of speech and freedom of press protections?

Argued: 01/5-6/1964

Decision Date: 03/09/1964

Decision Record: 9-0; no

Justices Majority: Earl Warren, Harry Black, William Douglas, Tom Clark, John Harlan, William Brennan, Potter Stewart, Byron White, Arthur Goldberg

Justices Dissenting: None

Effect of the Decision

This case ruled that false statements, as long as done with no malice, are protected under the First Amendment.

In Favor

In the favoring side of this case, on the side of the the New York Times, attorney Herbert Wechsler argued, “I was saying that the writ calls for review, a judgment of the Supreme Court of Alabama which in our submission poses hazards for these — freedom of the press, not confronted since the early days of the Republic.

The questions presented are, in general, first, how far the civil law of libel may be used by state officials to punish the publication of statements critical of their official conduct or of the conduct of the agencies of which they are in-charge.

And second, how far a state may force a newspaper which publishes a thousand miles away to defend libel actions instituted in its forum because its correspondents go there on occasion to cover news of national importance as — for a very small amount of advertising emanates from sources in the State and a very small circulation of the paper in this instance, 394 copies of the total daily circulation of 650,000 found its way into the State.

The problems arise in this context.

The action was instituted by the respondent, Mr. L.B. Sullivan, one of the three elected Commissioners of the City of Montgomery, Alabama.

It was brought against the Times and four codefendants who were then residents of Alabama, four clergymen, the Reverends Abernathy, Shuttlesworth, Seay and Lowery.

These are the petitioners in Number 40.

The complaint demands damages of $500,000 for libel allegedly contained in two paragraphs of a full page advertisement that was published in the Times on March 29th, 1960.

I should say that similar actions based on the same advertisement were instituted by the other two city Commissioners by a former Commissioner and by the then Governor of the State of Alabama, Governor Patterson.

They had dominance in these other suits, total $2 million.

But this was the first of the five cases brought to trial and it resulted in a verdict in a judgment against all defendants for the $500,000 claim.

Of the other cases, only the James case, the case by Mayor James has gone to trial, there was the same verdict there but that’s pending on motion for new trial in the State of — in the Alabama Court.

The other three cases were removed by the Times to the United States District Court.

The removal was sustained by the District Court but remand was ordered in a divided judgment of the Court of Appeals for the Fifth Circuit.

And that case involving the order of remand is also pending in this Court on petition for writ of certiorari in Number 52 of this term.”


In the opposition, on the side of Sullivan, attorney M. Roland Nachman, Jr., “I would like to address myself to what at the outset to what I consider to be a short difference between Mr. Wechsler’s analysis of the facts and facts as I see them.

And I would like to do that in the context that this case is here obviously after a jury verdict, after the case has been before a trial court on a motion for new trial, after it’s been before the high state appellate court.

And we do not rely on there being something in the record to support it.

We say there was ample and indeed overwhelming evidence to support the jury verdict but we do remind the Court at the outset in view of the trend of the argument as it has gone up to now.

We’re not here like in Norris on a question of whether a judge in a pretrial proceeding correctly decided the question of whether there was discrimination against Negroes in the selection of a grand jury panel.

And we’re not here as in Bridges on the question of whether a judge was correct when he decided a contempt proceeding.

We’re here after a jury trial with all that that means in terms of the Seventh Amendment.

Now, on the issue of falsity, which is where Mr. Wechsler began, I would like to take this step-by-step as this lawsuit progressed.

A demand for retraction was filed as it had to be filed under Alabama law before the lawsuit began.

An answer was received and this is in the record.”




The decision in this case was 9-0, meaning it was unanimous. Justice Brennan wrote the majority opinion, saying, “There was no reference to respondent in the advertisement, either by name or official position. A number of the allegedly libelous statements — the charges that the dining hall was padlocked and that Dr. King’s home was bombed, his person assaulted, and a perjury prosecution instituted against him — did not even concern the police; despite the ingenuity of the arguments which would attach this significance to the word “They,” it is plain that these statements could not reasonably be read as accusing respondent of personal involvement in the acts in question. The statements upon which respondent principally relies as referring to him are the two allegations that did concern the police or police functions: that “truckloads of police . . . ringed the Alabama State College Campus” after the demonstration on the State Capitol steps, and that Dr. King had been “arrested . . . seven times.” These statements were false only in that the police had been “deployed near” the campus, but had not actually “ringed” it, and had not gone there in connection with the State Capitol demonstration, and in that Dr. King had been arrested only four times. The ruling that these discrepancies between what was true and what was asserted were sufficient to injure respondent’s reputation may itself raise constitutional problems, but we need not consider them here. Although the statements may be taken as referring to the police, they did not, on their face, make even an oblique reference to respondent as an individual. Support for the asserted reference must, therefore, be sought in the testimony of respondent’s witnesses. But none of them suggested any basis for the belief that respondent himself was attacked in the advertisement beyond the bare fact that he was in overall charge of the Police Department and thus bore official responsibility for police conduct; to the extent that some of the witnesses thought respondent to have been charged with ordering or approving the conduct or otherwise being personally involved in it, they based this notion not on any statements in the advertisement, and not on any evidence that he had, in fact, been so involved, but solely on the unsupported assumption that, because of his official position, he must have been.”

My Opinion:

I agree with the majority, which in this case was unanimous. Regardless of what one says, the First Amendment, protecting the freedom of speech and expression defends what it is that they say, whether you agree or not. Unless the words are used with malice or intent to threat, everyone has the right to exercise their constitutional right to the freedom of speech. In this case, the statements made were false, but with no malicious intent, therefore protected by the First Amendment

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Bethel School District v. Fraser: Right to Lewd Speeches (07/07/1986)

Bethel School District v. Fraser

Does the First Amendment keep a school district from punishing a high school student for giving a lewd speech at a high school assembly?

Argued: 03/03/1986

Decision Date: 07/07/1986

Decision Record: 7-2; no

Justices in Favor: Thurgood Marshall, John Paul Stevens

Justices Dissenting: Warren Burger, William Brennan, Byron White, Harry Blackmun, Lewis Powell, William Rehnquist, Sandra Day O’Connor

Effect of the Decision

This case ruled the student’s First Amendment rights were not violated by the school’s rules because of his lewd speech.

In Favor

In the favoring side of this case, on the side of the Bethel School District No. 403, attorney William A. Coats argued, “The issue is this case is whether a public school district may regulate indecent speech in a public school setting that does not amount to obscene speech under this Court’s Miller versus California standard.

The facts in this case are that on April 26th, 1983, Matt Fraser, a 17 year old high school senior, gave a speech to the associated student body.

The speech was to introduce his candidate for the vice president’s position of the associated student body.

He gave a crude and vulgar speech.

The speech is set forth in full in the briefs and there’s no purpose to repeat it here.

It is important to note that Mr. Fraser did obtain significant reaction to his speech, that some of the students hooted and hollered, some of the students looked bewildered, some looked embarrassed.

Some students even acted out certain physical acts symbolizing various sexual acts.

After the speech, the school administration investigated the incident and provided Mr. Fraser with his due process rights and suspended him for three days and struck him from the list of those candidates who would be considered to be a graduation speaker.

Mr. Fraser appealed to the district court.

The district court, as affirmed by the Ninth Circuit, has ruled that public school districts can only regulate student speech if it is obscene under the Miller versus California standard, or the one exception they seemingly recognized is if the speech caused a physical disruption or there was a reasonable prediction of a physical disruption.

Finally, the district court, as affirmed by the Ninth Circuit, struck down the district’s disruptive conduct rule, holding it was overbroad and vague.

It is well decided and we agree that students do not shed their constitutional rights at the schoolhouse door.

However, it is equally well decided that those constitutional rights will be administered in a way that is sensitive to the speech environment.

We are here because the Ninth Circuit we believe has misconstrued the extent of the rights a student has under the First Amendment in the public school setting.

They failed to recognize the special relationship between students and their teacher; and finally, they failed to recognize the secondary effects such conduct has in the public school setting.

In beginning our analysis of the First Amendment, it is useful to compare this case with this Court’s decision in Tinker versus Des Moines School District.

In Tinker, the facts were that students wore black arm bands into the public schools in protest of the Vietnam War.

There was nothing intrinsically harmful about the black arm bands.

What the school officials were concerned about was that the black arm bands stood for protest against this Government’s position in Vietnam.

Tinker was a viewpoint discrimination case, where the school officials determined that that viewpoint on an important student policy issue should not be interjected in the school system.

Contrasting that case with this fact pattern, it is noteworthy that Mr. Fraser at testimony was asked,

‘What was the purpose of your speech?’

He responded quite candidly:

‘I gave the speech to humor my audience, in the hopes they would vote for my candidate.’

There’s no overriding public policy.”


In the opposition, on the side of the city of Fraser, attorney Jeffrey T. Haley argued, “I will begin my rebuttal, my response, with some response to positions taken by my opposing counsel, and I will begin with what was the most important error by opposing counsel in characterizing the record.

He said that two teacher told Matt Fraser don’t give it, is what he said.

I will quote from the record:

‘I told Matt that his speech was inappropriate and that he probably should not deliver it.’

That was the first teacher, who was most critical of the speech, Mrs. Hicks.

That’s at page 30 of the joint appendix.

The second teacher, I’m quoting:

‘My response at that time was that I told Matt that this would indeed cause problems and that it would raise eyebrows.’

That was the extent of his warning not to give the speech.

None of them suggested that it might violate a school rule.

If fact, the first teacher, who was most critical of it, said in her testimony afterwards at the trial:

‘I wasn’t that there was a school rule regarding that.’

In this case, if the teachers don’t have any idea that such a speech might violate a school rule, when they are charged with enforcement of the school rule as among their duties as teachers, the rule is clearly so vague and so lacking of adequate notice, at least when it comes to First Amendment rights, freedom of speech, that they cannot punish a student who gave a speech after previewing it with three teachers.”


On the side of the majority, Justice Warren Burger wrote the opinion for the court. He wrote, “Respondent, by his father as guardian ad litem, then brought this action in the United States District Court for the Western District of Washington. Respondent alleged a violation of his First Amendment right to freedom of speech, and sought both injunctive relief and monetary damages under 42 U.S.C. § 1983. The District Court held that the school’s sanctions violated respondent’s right to freedom of speech under the First Amendment to the United States Constitution, that the school’s disruptive conduct rule is unconstitutionally vague and overbroad, and that the removal of respondent’s name from the graduation speaker’s list violated the Due Process Clause of the Fourteenth Amendment because the disciplinary rule makes no mention of such removal as a possible sanction. The District Court awarded respondent $278 in damages, $12,750 in litigation costs and attorney’s fees, and enjoined the School District from preventing respondent from speaking at the commencement ceremonies. Respondent, who had been elected graduation speaker by a write-in vote of his classmates, delivered a speech at the commencement ceremonies on June 8, 1983.

The Court of Appeals for the Ninth Circuit affirmed the judgment of the District Court, 755 F.2d 1356 (1985), holding that respondent’s speech was indistinguishable from the protest armband in Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969). The court explicitly rejected the School District’s argument that the speech, unlike the passive conduct of wearing a black armband, had a disruptive effect on the educational process. The Court of Appeals also rejected the School District’s argument that it had an interest in protecting an essentially captive audience of minors from lewd and indecent language in a setting sponsored by the school, reasoning that the School District’s “unbridled discretion” to determine what discourse is “decent” would “increase the risk of cementing white, middle-class standards for determining what is acceptable and proper speech and behavior in our public schools.” 755 F.2d at 1363. Finally, the Court of Appeals rejected the School District’s argument that, incident to its responsibility for the school curriculum, it had the power to control the language used to express ideas during a school-sponsored activity.”

Then in dissent, Justice Thurgood Marshall wrote, “I agree with the principles that Justice Brennan sets out in his opinion concurring in the judgment. I dissent from the Court’s decision, however, because, in my view, the School District failed to demonstrate that respondent’s remarks were indeed disruptive. The District Court and Court of Appeals conscientiously applied Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), and concluded that the School District had not demonstrated any disruption of the educational process. I recognize that the school administration must be given wide latitude to determine what forms of conduct are inconsistent with the school’s educational mission; nevertheless, where speech is involved, we may not unquestioningly accept a teacher’s or administrator’s assertion that certain pure speech interfered with education. Here the School District, despite a clear opportunity to do so, failed to bring in evidence sufficient to convince either of the two lower courts that education at Bethel School was disrupted by respondent’s speech. I therefore see no reason to disturb the Court of Appeals’ judgment.”

Also in dissent, Justice John Paul Stevens wrote, “It seems fairly obvious that respondent’s speech would be inappropriate in certain classroom and formal social settings. On the other hand, in a locker room or perhaps in a school corridor, the metaphor in the speech might be regarded as rather routine comment. If this be true, and if respondent’s audience consisted almost entirely of young people with whom he conversed on a daily basis, can we — at this distance — confidently assert that he must have known that the school administration would punish him for delivering it?

For three reasons, I think not. First, it seems highly unlikely that he would have decided to deliver the speech if he had known that it would result in his suspension and disqualification from delivering the school commencement address. Second, I believe a strong presumption in favor of free expression should apply whenever an issue of this kind is arguable. Third, because the Court has adopted the policy of applying contemporary community standards in evaluating expression with sexual connotations, this Court should defer to the views of the district and circuit judges who are in a much better position to evaluate this speech than we are.”

My Opinion:

In this case, I agree with the majority decision. A student’s constitutional rights is of course, not “shed at the schoolhouse gates.” However, their rights must be altered to be fit to be appropriate for the school. For example, you can’t leave the middle of class and go outside to protest for or against something. You also can’t bring armed weapons to school for the safety of everyone else. It’s common sense that constitutional rights inside and outside of school are completely different. The right to freedom of speech is normally applied to things one strongly believes in and stands for. The lewd speech given by Fraser was not appropriate to other kids and did not have any important meaning to it. It made complete sense that the school would discipline him for it and have rules against it.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Morse v. Frederick: Promotion of Illegal Drug Use at School-Supervised Event (05/25/2007)

Morse v. Frederick

Does the First Amendment allow public schools to forbid students from displaying messages encouraging the use of illegal drugs at school-supervised events?

Argued: 03/19/2007

Decision Date: 05/25/2007

Decision Record: 5-4; yes

Justices in Favor: John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito

Justices Dissenting: John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer

Effect of the Decision

This case ruled that schools have the right to prohibit messages, etc. that promote things like illegal drug use at school-supervised events.

In Favor

In the favoring side of this case, on the side of Morse, attorney Kenneth W. Starr argued, “Illegal drugs and the glorification of the drug culture are profoundly serious problems for our nation.

Congress has so recognized, as has this Court, time and again.

The magnitude of the problem is captured in the amicus brief, the Court has a number of amicus briefs before it, but the amicus brief of General McCaffrey, Secretary Bennett, and a number of organizations.

And particularly, pages 5 to 9 of that brief, the nature and the scope of the problem are well-captured.

Well, there are several gradations that the Court could take: Advocacy of illegal conduct generally; more specifically advocacy of illegal drugs.

But I believe… I think it’s important to recognize that this Court’s precedents recognize… recognize several different justifications for restricting student speech.

In Tinker itself which dealt with political speech, the Court was careful to point out that even then, if the speech could be shown to present a threat of a material disruption to the class work, and I think this would answer your question, Mr. Chief Justice, if the teacher wants to teach Shakespeare, the teacher doesn’t have to turn over the class to political speech.”


In the opposition, on the side of Frederick, attorney Edwin S. Kneedler argued, “The First Amendment does not require public school officials to stand aside and permit students who are entrusted to their supervision and care to promote or encourage the use of illegal drugs.

As this Court observed in Earls, the nationwide drug… drug epidemic makes the war against drugs a pressing concern in every school.”


On the side of the majority, Justice John Roberts wrote the opinion for the court. He wrote, “School principals have a difficult job, and a vitally important one. When Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act—or not act—on the spot. It was reasonable for her to conclude that the banner promoted illegal drug use—in violation of established school policy—and that failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.

    The judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.”

Then in dissent, Justice John Paul Stevens wrote, “Although this case began with a silly, nonsensical banner, it ends with the Court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, at least so long as someone could perceive that speech to contain a latent pro-drug message. Our First Amendment jurisprudence has identified some categories of expression that are less deserving of protection than others—fighting words, obscenity, and commercial speech, to name a few. Rather than reviewing our opinions discussing such categories, I mention two personal recollections that have no doubt influenced my conclusion that it would be profoundly unwise to create special rules for speech about drug and alcohol use.

    The Vietnam War is remembered today as an unpopular war. During its early stages, however, “the dominant opinion” that Justice Harlan mentioned in his Tinkerdissent regarded opposition to the war as unpatriotic, if not treason. 393 U. S., at 526. That dominant opinion strongly supported the prosecution of several of those who demonstrated in Grant Park during the 1968 Democratic Convention in Chicago, see United States v. Dellinger, 472 F. 2d 340 (CA7 1972),and the vilification of vocal opponents of the war like Julian Bond, cf. Bond v. Floyd385 U. S. 116 (1966) . In 1965, when the Des Moines students wore their armbands, the school district’s fear that they might “start an argument or cause a disturbance” was well founded. Tinker, 393 U. S., at 508. Given that context, there is special force to the Court’s insistence that “our Constitution says we must take that risk; and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.” Id., at 508–509 (citation omitted). As we now know, the then-dominant opinion about the Vietnam War was not etched in stone.

    Reaching back still further, the current dominant opinion supporting the war on drugs in general, and our antimarijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public opinion occurred much more slowly than the relatively rapid shift in Americans’ views on the Vietnam War, and progressed on a state-by-state basis over a period of many years. But just as prohibition in the 1920’s and early 1930’s was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana,9 and of the majority of voters in each of the several States that tolerate medicinal uses of the product,10 lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs. Surely our national experience with alcohol should make us wary of dampening speech suggesting—however inarticulately—that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely.

    Even in high school, a rule that permits only one point of view to be expressed is less likely to produce correct answers than the open discussion of countervailing views. Whitney, 274 U. S., at 377 (Brandeis, J., concurring); Abrams, 250 U. S., at 630 (Holmes, J., dissenting); Tinker, 393 U. S., at 512. In the national debate about a serious issue, it is the expression of the minority’s viewpoint that most demands the protection of the First Amendment . Whatever the better policy may be, a full and frank discussion of the costs and benefits of the attempt to prohibit the use of marijuana is far wiser than suppression of speech because it is unpopular.”

My Opinion:

In this case, I agree with the majority decision. The school has complete authority to regulate things like this. It’s their job. The First Amendment, like I’ve stated in a previous case, had the purpose of allowing people to freely express themselves, whether it’s through words or religion. In this case, Frederick merely did it for the fun of it. There was no real meaning behind it except for the fact that it was extremely inappropriate; especially at a school-supervised event. It is a school administrator’s job make sure everything that everyone’s doing is school-appropriate and won’t affect others in a negative manner. Holding up a banner that promoted illegal drug use did none of that.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

West Side Community Schools v. Mergens: Equal Access Act (06/04/1990)

West Side Community Schools v. Mergens

Was Westside’s prohibition against the formation of a Christian club consistent with the Establishment Clause, thereby rendering the Equal Access Act unconstitutional?

Argued: 01/09/1990

Decision Date: 06/04/1990

Decision Record: 8-1; no

Justices in Favor: John Paul Stevens

Justices Dissenting: William Rehnquist, William Brennan, Byron White, Thurgood Marshall, Harry Blackmun, Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy

Effect of the Decision

This case ruled that refusing to allow the Christian club was a violation of the Equal Access Act.

In Favor

In the favoring side of this case, on the side of the West Side, attorney Allen E. Daubman argued, “This case presents issues central to the operation of co-curricular activities in the public secondary schools in this country.

Of critical importance in that regard, obviously, is the equal access act, which was enacted by Congress in the fall of 1984.

The act basically provides that a school which conducts, or has a limited open forum, may not deny access to that forum on the basis of the political, philosophical or religious content of speech.

In that regard, the Congress defined “limited open forum” to mean when a school district grants an opportunity for one or more noncurriculum-related student groups to meet on school premises during noninstructional time.

It is that statutory framework which causes difficulty in school districts in trying to comply with the act and meet their educational obligations.

The Equal Access Act, as we see it, basically balances three concerns: certainly the free speech rights of students in our public schools; certainly also it balances a concern of nonestablishment of religion; and certainly also it affords deference to school officials, affords them the autonomy and discretion to make educational decisions.

In that context, we urge the Court to interpret the act, interpret noncurriculum-related, as that term is used in the act, to encompass a situation which is not found at Westside High School.

All of the student clubs and organizations at Westside High School were under, by school board policy, the direct control and supervision of the administration and shall have a faculty sponsor.

The record is replete with testimony that the school officials maintained an active role in practice, in determining the goals and objectives of student clubs and organizations and the manner in which those clubs and organizations operated in their school.”


In the opposition, on the side of the city of Mergens, attorney Jay Alan Sekulow argued, “The students of Westside High School who desire to form a student-initiated, student-led and voluntary Bible club do acknowledge that the school officials have important and oftentime delicate functions to perform with regard to the operation of schools under their control.

However, these concerns do not justify the prohibition of these students’ Bible club from the Westside High School campus.

At issue at Westside High School, and what is before the court today is whether one or more noncurriculum-related clubs existed, which would then trigger Congress’ Equal Access Act.

The Peer Advocates Club, which was discussed at trial, was an admission by the principal himself that that particular club was not related to any of the curriculum activities of Westside High School.

The pretrial stipulation that was discussed by the Petitioners’ attorney related to ten clubs that were designated to be discussed.

However, and I think it’s important to note that that same stipulation did not state that they would… that the Respondents would in any way not challenge other club activities.

The school officials themselves have set forth, if you will, the way in which to make the determination of whether a particular club is related to the curriculum.

And our test for whether the act would be triggered would be whether there is a direct relationship between the club and a core curriculum course or a curriculum course.

For instance, in defining the clubs, as it has in its… in the Joint Appendix there is a listing of the various student groups and student clubs that meet at Westside High School.

One of the clubs, Distributive Education Club, is listed by the schools as, in fact, an extension of the course in distributive education.”


On the side of the majority, Justice Sandra Day O’Connor wrote the opinion for the court. She wrote, “Under the Act, however, faculty monitors may not participate in any religious meetings, and nonschool persons may not direct, control, or regularly attend activities of student groups. §§ 4071(c)(3) and (5). Moreover, the Act prohibits school “sponsorship” of any religious meetings, § 4071(c)(2), which means that school officials may not promote, lead, or participate in any such meeting, § 4072(2). Although the Act permits “[t]he assignment of a teacher, administrator, or other school employee to the meeting for custodial purposes,” ibid., such custodial oversight of the student-initiated religious group, merely to ensure order and good behavior, does not impermissibly entangle government in the day-to-day surveillance or administration of religious activities. See Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 305-306 (1985). Indeed, as the Court noted in Widmar, a denial of equal access to religious speech might well create greater entanglement problems in the form of invasive monitoring to prevent religious speech at meetings at which such speech might occur.See Widmar, 454 U.S. at 272, n. 11.

Accordingly, we hold that the Equal Access Act does not on its face contravene the Establishment Clause. Because we hold that petitioners have violated the Act, we do not decide respondents’ claims under the Free Speech and Free Exercise Clauses. For the foregoing reasons, the judgment of the Court of Appeals is affirmed.”

Then in dissent, Justice John Paul Stevens wrote, “Against all these arguments, the Court interposes Noah Webster’s famous dictionary. It is a massive tome, but no match for the weight the Court would put upon it. The Court relies heavily on the dictionary’s definition of “curriculum.” See ante at 237. That word, of course, is not the Act’s; moreover, the word “noncurriculum” is not in the dictionary. Neither Webster nor Congress has authorized us to assume that “noncurriculum” is a precise antonym of the word “curriculum.” “Nonplus,” for example, does not mean “minus,” and it would be incorrect to assume that a “nonentity” is not an “entity” at all. Purely as a matter of defining a newly-coined word, the term “noncurriculum” could fairly be construed to describe either the subjects that are “not a part of the current curriculum” or the subjects that “cannot properly be included in a public school curriculum.” Either of those definitions is perfectly “sensible,” because both describe subjects “that are not related to the body of courses offered by the school.” See ante at 237. When one considers the basic purpose of the Act and its unquestioned linkage to our decision in Widmar, the latter definition surely is the more “sensible.””

My Opinion:

In this case, I agree with the majority decision. By refusing to fund for or allow a Christian club, not only are you violating the Equal Access Act, which requires “federally funded secondary schools to provide ‘equal access’ to extracurricular clubs,” according to Google, you are also violating one’s right to the freedom of religious expression, which is stated clearly of the First Amendment. The school should not have refused the club because they violated the students’ constitutional rights.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Rowan v. United States Post Office Department: Certain Mail Entering Homes (05/04/1970)

Rowan v. United States Post Office Department

Do people have the right to choose what items enter their homes?

Argued: 01/22/1970

Decision Date: 05/04/1970

Decision Record: 8-0; yes

Justices in Favor: Warren Burger, Hugo Black, William Douglas, John Harlan, William Brennan, Potter Stewart, Byron White, Thurgood Marshall

Justices Dissenting: None

Effect of the Decision

This case ruled that a person’s choice to refuse certain mail from entering their homes is not a violation of the company’s First Amendment.

In Favor

In the favoring side of this case, on the side of the Rowan, attorney Joseph Taback argued, “The appeal here before this Court, is from a judgment of the three-judge court of the United States District Court with the Central District of California.

The jurisdiction of the Court is grounded upon Section 1253 of the Title 28 of United States Codes.

The appellants are in the mail order business.

They are distributors and disseminators of books, pamphlets, various matters and materials that traffic and conduct its way through the mail.

The law which is brought here on focus by this appeal is Section 301 of the Public Law 90206 or is codified 39 US Code 4009.

The action below was that for declaratory relief and seeking an injunction against the enforcement, implementation, and administration of the statute.

The result in the court below was a verdict of three to nothing, upholding the constitutionality of the statute and denying the relief sought.

Upon this appeal, it does seem that the issues are made much clear then they were even in the court below.

This is come to be because a statute which reportedly was not an ambiguous has now received the same interpretation by the Government as well as the appellants herein.

Well, interpretation is contrary to the construction inter — and the interpretation given by the US District Court.

This is a new twist, if you will, a matter which is occurred at the time of this appeal.”


In the opposition, on the side of the United States Post Office Department, attorney William D. Ruckelshaus argued, “Since that the — now that there seems to be some concern about just precisely what the Government’s position is, either below or in our motion to affirm in our brief, let me make it perfectly clear, precisely what the Government’s position is.

It’s our position that Congress has said, when an individual in our society receives through the mail material which in his sole discretion, he believes to be a pandering advertising and he again finds in his sole discretion this material to be erotically arousing or sexually provocative, he can tell the sender, “Don’t send me anymore material!”

And he lists, the addressee a list — enlist to support of the Post Office in informing the sender of his desires and if the sender persist, after one prohibiting from the post office, he maybe enjoined from continuing to send the material to an unwilling recipient.

If he still persists, he maybe held in contempt by that Court which has issued the injunction for violating the Court’s order.

We believe that Congress has sought to protect a man in his own home.”


This court decision was a unanimous one. Justice Warren Burger wrote the opinion for the court. He wrote, “The appellants also contend that the requirement that the sender remove the addressee’s name from all mailing lists in his possession violates the Fifth Amendment because it constitutes a taking without due process of law. The appellants are not prohibited from using, selling, or exchanging their mailing lists; they are simply required to delete the names of the complaining addressees from the lists and cease all mailings to those persons.

Appellants next contend that compliance with the statute is confiscatory because the costs attending removal of the names are prohibitive. We agree with the conclusion of the District Court that the

burden does not amount to a violation of due process guaranteed by the Fifth Amendment of the Constitution. Particularly when, in the context presently before this Court, it is being applied to commercial enterprises.

300 F.Supp. at 1041. See California State Auto Ins. Bureau v. Malone, 341 U.S. 105 (1951).

There is no merit to the appellants’ allegations that the statute is unconstitutionally vague. A statute is fatally vague only when it exposes a potential actor to some risk or detriment without giving him fair warning of the nature of the proscribed conduct. United States v. Cardiff, 344 U.S. 174, 176 (1952). Here, the appellants know precisely what they must do on receipt of a prohibitory order. The complainants’ names must be removed from the sender’s mailing lists, and he must refrain from future mailings to the named addressees. The sender is exposed to a contempt sanction only if he continues to mail to a particular addressee after administrative and judicial proceedings. Appellants run no substantial risk of miscalculation.”

My Opinion:

In this case, I agree with the rest of the Supreme Court judges. If one opts not to receive a certain mail, for example a junk mail, he or she has the complete right to do so. The Postal Revenue and Federal Salary Act of 1967 required all businesses to stop sending sexual mails to houses when they were told. This, in turn, caused a riot about this act being a violation of the First Amendment. I highly disagree with this. An individual should 100% have the choice of what kinds of mail are sent to their house, especially if its inappropriate to some of the people in that household, such as kids. This is a topic that should not even have to b argued. People have the right to their own houses and should be able to opt for stopping any particular mail they don’t want.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Santa Fe Independent School District v. Jane Doe: Student-Initiated Prayer (06/19/2000)

Santa Fe Independent School District v. Jane Doe

Does the Santa Fe Independent School District’s policy permitting student-initiated prayer at football games infringe upon the Establishment Clause of the First Amendment? 

Argued: 03/29/2000

Decision Date: 06/19/2000

Decision Record: 6-3; yes

Justices in Favor: John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy, David Souter, Ruth Bader Ginsburg, Stephen Breyer

Justices Dissenting: William Rehnquist, Antonin Scalia, Clarence Thomas

Effect of the Decision

This case ruled that school-sponsored, student initiated prayers are unconstitutional because it violates students’ First Amendment.

In Favor

In the favoring side of this case, on the side of the Santa Fe Independent School District, attorney Jay Alan Sekulow argued, “Santa Fe Independent School District has adopted a neutral policy which simply permits student led, student initiated speech at football games.

The policy, which can be found in its entirety at pages 104 and 105 of the joint appendix, allows for the individual student to determine the content of the message.

That message may include a prayer at the student’s discretion.

The policy does not violate the Establishment Clause, and the United States Court of Appeals for the Fifth Circuit is wrong and should be reversed.

The Santa Fe policy creates a venue for student expression.

It is neutral as to religious or secular speech.

The policy serves the important and legitimate goals of solemnizing the event, promoting good sportsmanship and student safety, and establishing the appropriate environment for competition.”


In the opposition, on the side of “Jane Doe,” attorney John Cornyn, “Respondents ask this Court to simply assume the worst of the school officials involved and of the students who will ultimately be the speakers under this policy, which has yet to be applied because its application has been suspended while this litigation goes forward.

We submit that under the standard of review of a facial challenge that respondents’ burden is heavy to show that it could never be constitutionally applied, and we believe this school district, just as in Agostini, is entitled to the presumption that school officials will faithfully discharge their duties according to the law, as laid down by this Court.

There is no evidence to support the conclusions offered by the respondents that this is somehow a sham, or a pretext.

Indeed, the trial court below found that any incidents which gave rise to this litigation were isolated incidents.”


On the majority side, also the affirming side, Justice Stevens wrote the opinion. He wrote, “This policy likewise does not survive a facial challenge because it impermissibly imposes upon the student body a majoritarian election on the issue of prayer. Through its election scheme, the District has established a governmental electoral mechanism that turns the school into a forum for religious debate. It further empowers the student body majority with the authority to subject students of minority views to constitutionally improper messages. The award of that power alone, regardless of the students’ ultimate use of it, is not acceptable.23Like the referendum in Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. ___ (2000), the election mechanism established by the District undermines the essential protection of minority viewpoints. Such a system encourages divisiveness along religious lines and threatens the imposition of coercion upon those students not desiring to participate in a religious exercise. Simply by establishing this school-related procedure, which entrusts the inherently nongovernmental subject of religion to a majoritarian vote, a constitutional violation has occurred.24 No further injury is required for the policy to fail a facial challenge.

    To properly examine this policy on its face, we “must be deemed aware of the history and context of the community and forum,” Pinette, 515 U.S., at 780 (O’Connor, J., concurring in part and concurring in judgment). Our examination of those circumstances above leads to the conclusion that this policy does not provide the District with the constitutional safe harbor it sought. The policy is invalid on its face because it establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events.”

In the side of the opposition, Justice Rehnquist wrote the opinion. He wrote, “

Finally, the Court seems to demand that a government policy be completely neutral as to content or be considered one that endorses religion. See ante, at 14. This is undoubtedly a new requirement, as our Establishment Clause jurisprudence simply does not mandate “content neutrality.” That concept is found in our First Amendment speech cases and is used as a guide for determining when we apply strict scrutiny. For example, we look to “content neutrality” in reviewing loudness restrictions imposed on speech in public forums, see Ward v. Rock Against Racism, 491 U.S. 781 (1989), and regulations against picketing, see Boos v. Barry, 485 U.S. 312 (1988). The Court seems to think that the fact that the policy is not content neutral somehow controls the Establishment Clause inquiry. See ante, at 14.

    But even our speech jurisprudence would not require that all public school actions with respect to student speech be content neutral. See, e.g., Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (allowing the imposition of sanctions against a student speaker who, in nominating a fellow student for elective office during an assembly, referred to his candidate in terms of an elaborate sexually explicit metaphor). Schools do not violate the First Amendment every time they restrict student speech to certain categories. But under the Court’s view, a school policy under which the student body president is to solemnize the graduation ceremony by giving a favorable introduction to the guest speaker would be facially unconstitutional. Solemnization “invites and encourages” prayer and the policy’s content limitations prohibit the student body president from giving a solemn, yet non-religious, message like “commentary on United States foreign policy.””

My Opinion:

In this case, I disagree with the majority and agree with the minority. These student-initiated religious speeches should not be deemed unconstitutional because everyone has “religious freedom,” according to the First Amendment. As long as other students are not forced to participate in this student-led prayer, it should be okay and no violation of anyone’s rights has occurred. Schools should allow their students to express their religion whether it’s at a football game or any other event. Unless the other students who have different religions or don’t want to participate are forced to, this is a freedom of expression.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

United States v. Stevens: Animal Crush Videos; Free Speech (04/20/2010)

United States v. Stevens

Is 18 U.S.C. Section 48 unconstitutional under the Free Speech Clause of the First Amendment?  

Argued: 10/06/2009

Decision Date: 04/20/2010

Decision Record: 8-1; yes

Justices in Favor: John Roberts, John Paul Stevens, Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor

Justices Dissenting: Samuel Alito

Effect of the Decision

This case ruled that the 18 U.S.C. Section 48, on its face, is unconstitutional under the First Amendment.

In Favor

In the favoring side of this case, on the side of the United States, attorney Neal Kumar Katyal argued, “

Ten years ago, in Section 48 of Title 18, Congress crafted a narrowly targeted restriction against certain depictions of actual animal cruelty.

Yet the Third Circuit struck the statute down on its face without even attempting to apply substantial overbreadth analysis.

The statute has four critical features and, just as the Court last year in United States v. Williams began with statutory construction, analysis should begin there.

First, like the statute at issue in the United States v. Ferber, this statute only reaches depictions of cruelty to actual living beings — animals, not simulated ones or the written word.

Second, the statute only applies to commercial messages, ones that Congress found drove the market for animal cruelty.”


In the opposition, on the side of Stevens, attorney Patricia A. Millett, “It is not the exact same message, if you are forced in a popular debate that is going around this country now about the treatment of animals.

To require one side to engage — to use simulated images, which is exactly what the government’s reply brief at page 3 insists upon, while those who want to ban conduct are allowed to use real images.

That puts the government’s censorial thumb on the scale of public debate.”


On the majority side, also the affirming side, Justice Roberts wrote the opinion. He wrote, “Our construction of §48 decides the constitutional question; the Government makes no effort to defend the constitutionality of §48 as applied beyond crush videos and depictions of animal fighting. It argues that those particular depictions are intrinsically related to criminal conduct or are analogous to obscenity (if not themselves obscene), and that the ban on such speech is narrowly tailored to reinforce restrictions on the underlying conduct, prevent additional crime arising from the depictions, or safeguard public mores. But the Government nowhere attempts to extend these arguments to depictions of any other activities—depictions that are presumptively protected by the First Amendment but that remain subject to the criminal sanctions of §48.

     Nor does the Government seriously contest that the presumptively impermissible applications of §48 (properly construed) far outnumber any permissible ones. However “growing” and “lucrative” the markets for crush videos and dogfighting depictions might be, see Brief for United States 43, 46 (internal quotation marks omitted), they are dwarfed by the market for other depictions, such as hunting magazines and videos, that we have determined to be within the scope of §48. Seesupra , at 13–14. We therefore need not and do not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. We hold only that §48 is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment.”

In the side of the opposition, Justice Alito wrote the opinion. He wrote, “Application of the Ferber framework also supports the constitutionality of §48 as applied to depictions of brutal animal fights. (For convenience, I will focus on videos of dogfights, which appear to be the most common type of animal fight videos.)

First, such depictions, like crush videos, record the actual commission of a crime involving deadly violence. Dogfights are illegal in every State and the District of Columbia, Brief for United States 26–27, and n. 8 (citing statutes), and under federal law constitute a felony punishable by imprisonment for up to five years, 7 U. S. C. §2156 et seq. (2006 ed. and Supp. II), 18 U. S. C. §49 (2006 ed., Supp. II).

     Second, Congress had an ample basis for concluding that the crimes depicted in these videos cannot be effectively controlled without targeting the videos. Like crush videos and child pornography, dogfight videos are very often produced as part of a ‘low-profile, clandestine industry,’ and ‘the need to market the resulting products requires a visible apparatus of distribution.’ Ferber, 458 U. S., at 760. In such circumstances, Congress had reasonable grounds for concluding that it would be “difficult, if not impossible, to halt’ the underlying exploitation of dogs by pursuing only those who stage the fights. Id. , at 759–760; see 533 F. 3d, at 246 (Cowen, J., dissenting) (citing evidence establishing ‘the existence of a lucrative market for depictions of animal cruelty,’ including videos of dogfights, ‘which in turn provides a powerful incentive to individuals to create [such] videos’).

     The commercial trade in videos of dogfights is ‘an integral part of the production of such materials,’ Ferber, supra, at 761. As the Humane Society explains, ‘[v]ideotapes memorializing dogfights are integral to the success of this criminal industry” for a variety of reasons. Humane Society Brief 5. For one thing, some dogfighting videos are made “solely for the purpose of selling the video (and not for a live audience).’ Id. , at 9. In addition, those who stage dogfights profit not just from the sale of the videos themselves, but from the gambling revenue they take in from the fights; the videos “encourage [such] gambling activity because they allow those reluctant to attend actual fights for fear of prosecution to still bet on the outcome.” Ibid.; accord, Brief for Center on the Administration of Criminal Law as Amicus Curiae 12 (‘Selling videos of dogfights effectively abets the underlying crimes by providing a market for dogfighting while allowing actual dogfights to remain underground’); ibid. (‘These videos are part of a ‘lucrative market’ where videos are produced by a ‘bare-boned, clandestine staff’ in order to permit the actual location of dogfights and the perpetrators of these underlying criminal activities to go undetected’ (citations omitted)). Moreover, ‘[v]ideo documentation is vital to the criminal enterprise because it provides proof of a dog’s fighting prowess—proof demanded by potential buyers and critical to the underground market.’ Humane Society Brief 9. Such recordings may also serve as ‘training’ videos for other fight organizers.’ Ibid. In short, because videos depicting live dogfights are essential to the success of the criminal dogfighting subculture, the commercial sale of such videos helps to fuel the market for, and thus to perpetuate the perpetration of, the criminal conduct depicted in them.

     Third, depictions of dogfights that fall within §48’s reach have by definition no appreciable social value. As noted, §48(b) exempts depictions having any appreciable social value, and thus the mere inclusion of a depiction of a live fight in a larger work that aims at communicating an idea or a message with a modicum of social value would not run afoul of the statute.

     Finally, the harm caused by the underlying criminal acts greatly outweighs any trifling value that the depictions might be thought to possess. As the Humane Society explains:

‘The abused dogs used in fights endure physical torture and emotional manipulation throughout their lives to predispose them to violence; common tactics include feeding the animals hot peppers and gunpowder, prodding them with sticks, and electrocution. Dogs are conditioned never to give up a fight, even if they will be gravely hurt or killed. As a result, dogfights inflict horrific injuries on the participating animals, including lacerations, ripped ears, puncture wounds and broken bones. Losing dogs are routinely refused treatment, beaten further as ‘punishment’ for the loss, and executed by drowning, hanging, or incineration.” Id., at 5–6 (footnotes omitted).

     For these dogs, unlike the animals killed in crush videos, the suffering lasts for years rather than minutes. As with crush videos, moreover, the statutory ban on commerce in dogfighting videos is also supported by compelling governmental interests in effectively enforcing the Nation’s criminal laws and preventing criminals from profiting from their illegal activities. See Ferber , supra , at 757–758; Simon & Schuster , 502 U. S., at 119.

     In sum, §48 may validly be applied to at least two broad real-world categories of expression covered by the statute: crush videos and dogfighting videos. Thus, the statute has a substantial core of constitutionally permissible applications. Moreover, for the reasons set forth above, the record does not show that §48, properly interpreted, bans a substantial amount of protected speech in absolute terms. A fortiori , respondent has not met his burden of demonstrating that any impermissible applications of the statute are “substantial” in relation to its ‘plainly legitimate sweep.’ Williams , 553 U. S., at 292. Accordingly, I would reject respondent’s claim that §48 is facially unconstitutional under the overbreadth doctrine.”

My Opinion:

In this case, I disagree with the majority and agree with the minority. I don’t think animals should be able to be harmed for commercial purposes because the person creating the video has “freedom of speech.” Animals like dogs should be able to have rights as well; not to the same extent as humans, but also because of S18 U.S.C. Section 48. There’s no reason for that to be considered “unconstitutional.” Freedom of speech is great until someone or something is harmed because of it.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right


Brandenburg v. Ohio: Public Speech Advocating Illegal Activities, Ohio Criminal Syndicalism Law (06/09/1969)

Brandenburg v. Ohio

Did Ohio’s criminal syndicalism law, prohibiting public speech that advocates various illegal activities, infringe upon Brandenburg’s right to free speech as protected by the First and Fourteenth Amendments?

Argued: 02/27/1969

Decision Date: 06/09/1969

Decision Record: 8-0; yes

Justices Majority: Earl Warren, Byron White, Hugo Black, John Harlan, Potter Stewart, Thurgood Marshall, William Brennan, William Douglas

Justices Dissenting: None

Effect of the Decision

This case clarified two conditions that must be satisfied when evaluating 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.”

In Favor

In the representation of the side of the Brandenburg, attorney Allen Brown said, “We have before us case arising in the State of Ohio under a conviction under Ohio’s Criminal Syndicalism Act.

We have indeed before us something of rarity.

It is as far as I know a third case ever tried under Ohio’s Criminal Syndicalism Act and the first to ever reach the appellate level.

There was earlier in Ohio when their peculiar proceedings in which a prosecutor could bring a proceeding before the Supreme Court on appeal for a question of law only.

A proceeding in which — a motion was made in the lower court in Ohio, attacking the constitutionality of Ohio’s Criminal Syndicalism Law.

The lower court in Ohio held the law to be unconstitutional.

It was appealed to the Supreme Court in State versus Kassay and in what is basically in advisory opinion.

The Court stated that it was constitutional.

If the Court also stated several engaging other things.

It stated that the First Amendment did not apply to the states of the union.

It also stated that the measure of its application was an issue in its constitutionality and it would attend the first trial of a case to see what is the proper measure of its application.

The Court waited patiently for the first application to a case that arose some 40 years later in this case and surprisingly despite the invitation here sent out in Kassay, the Court declined to even hear his constitutional question on the application in this case.

It in fact defaulted to this Court, Ohio’s privilege are setting forth the limitations of the application of its statute.

Ohio’s privileges are setting forth potentiality of clarification and delineation of a statute which obviously on its face rushes head long into the First Amendment.

These are the facts in this case.

A television reporter receives a telephone call indicating that if he wanted to he could come and take movies of a Ku Klux Klan meeting.

He came.

He met some hooded figures and arrangements were made for the taking of a movie.

A movie was taken in which a cross was burned, some figures milled about, and yelled some stupid and rather, a senseless slogans and then a single figure was panned on, and he made a speech, a speech full of conditions, precedents, and reservations, hyperbola self-evidently stupid and silly.

He asserted that the clan was the largest organization in the State of Ohio.

He then went on in a — with a condition precedent that if the various branch is the Government including this Court, do not mend their ways that revengeance, a word of his own coining I assume would be taken.

He did not specify the revengeance and we do not know what particular aspect of the democratic process he was going to involve himself in revengeance.

He then spoke of a March not in identifying it as an armed march or any sort of march of any force or violence into Washington and then into two southern states, incidentally, raising federal questions perhaps rather than internal state questions.”


Then in opposition, representing the state of Ohio, attorney Leonard Kirschner claimed, “I do not know why the film is not here at the present time.

I do know that I — well that’s I did know where it was as of two months ago.

I viewed it subsequent to the Supreme Court of Ohio hearings and it’s in the clerk’s office of the Clerk of the Hamilton County, Court of Common Pleas in his possession, locked up in a file, fireproof file I might add and I don’t know why it is not here.

I’m certain that it can be forwarded to this Court for examination.

I will never to follow through on the Court’s request.

The Court’s permission as I take it basically there are two points involved in this case.

One, is the Ohio Statute on Criminal Syndicalism and two, the evidence that was presented to a judge and jury upon which a finding and verdict of guilty was returned.

Now, counsel, I believe that the Ohio Criminal Syndicalism law is constitutional.

I have cited various authorities relative to my beliefs in this matter in my brief.

I believe that the basic matter before this Court is the application of the evidence as was presented to the jury to determine whether or not there was sufficient evidence upon which a jury could return a verdict.

I believe that in this case when counsel says sending the Jews back to Israel, let’s give them back to the dark garden that this might not involved violence.

I would like him perhaps in his reply to explain how the statement, “Bury the niggers” would not constitute a violent form of actions.

Now in this case, there is two basic parts of the film.

One, that was taken inside of a room in which the defendant Clarence Brandenburg was identified and I don’t believe there is any question or any in the record either between the appellant and the appellee in this matter relative to his identification as he being the person saying, this is an organizer’s meeting we have had quite a few members here today which are we have had hundred — hundreds of members throughout the state and so forth.

Then there is a second portion of the film in which a group of people are walking or marching around a burning cross, hooded, armed, shouting profanities in which there is a question whether or not the defendant himself said the words as attributed to him in the transcript and on page 5.

‘How far is the nigger going to — yeah.’

‘Send the Jews back to Israel’ and so forth with the other profanities.

There is some evidence in the transcript itself which could indicate as a jury sitting and listening in that the defendant himself made one or more of these statements, and I apologize to the Court for not having this as part of my brief.

I notified counsel of the possibility of my bringing this matter up.

Ohio has a section in its code.

Ohio Revised Code Section 1.17 which provides, whoever aids, abets, or procures another to commit an offense may be prosecuted as if he were the principal offender.

We have a group of people marching around as an organizer’s meeting toward the acts of violence and in that they had attributed and desired the suppression of the Negro.”


The opinion in this case was unanimous. The opinion said, “The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism statute for ‘advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform’ and for

voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.

Ohio Rev.Code Ann. § 2923.13. He was fined $1,000 and sentenced to one to 10 years’ imprisonment. The appellant challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the United States Constitution, but the intermediate appellate court of Ohio affirmed his conviction without opinion. The Supreme Court of Ohio dismissed his appeal sua sponte “for the reason that no substantial constitutional question exists herein.” It did not file an opinion or explain its conclusions. Appeal was taken to this Court, and we noted probable jurisdiction.

The record shows that a man, identified at trial as the appellant, telephoned an announcer-reporter on the staff of a Cincinnati television station and invited him to come to a Ku Klux Klan “rally” to be held at a farm in Hamilton County. With the cooperation of the organizers, the reporter and a cameraman attended the meeting and filmed the events. Portions of the films were later broadcast on the local station and on a national network.

The prosecution’s case rested on the films and on testimony identifying the appellant as the person who communicated with the reporter and who spoke at the rally. The State also introduced into evidence several articles appearing in the film, including a pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood worn by the speaker in the films.

One film showed 12 hooded figures, some of whom carried firearms. They were gathered around a large wooden cross, which they burned. No one was present other than the participants and the newsmen who made the film. Most of the words uttered during the scene were incomprehensible when the film was projected, but scattered phrases could be understood that were derogatory of Negroes and, in one instance, of Jews. Another scene on the same film showed the appellant, in Klan regalia, making a speech. The speech, in full, was as follows:

This is an organizers’ meeting. We have had quite a few members here today which are — we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio, Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.

We are marching on Congress July the Fourth, four hundred thousand strong. From there, we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you.

The second film showed six hooded figures one of whom, later identified as the appellant, repeated a speech very similar to that recorded on the first film. The reference to the possibility of ‘revengeance’ was omitted, and one sentence was added: “Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.” Though some of the figures in the films carried weapons, the speaker did not.

The Ohio Criminal Syndicalism Statute was enacted in 1919. From 1917 to 1920, identical or quite similar laws were adopted by 20 States and two territories. E. Dowell, A History of Criminal Syndicalism Legislation in the United States 21 (1939). In 1927, this Court sustained the constitutionality of California’s Criminal Syndicalism Act, Cal.Penal Code §§ 11400-11402, the text of which is quite similar to that of the laws of Ohio. Whitney v. California. The Court upheld the statute on the ground that, without more, “advocating” violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. Cf. Fiske v. Kansas. But Whitney has been thoroughly discredited by later decisions.. These later decisions have fashioned the principle that the constitutional 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 and is likely to incite or produce such action. As we  said in Noto v. United States,

the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action.

A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.

Measured by this test, Ohio’s Criminal Syndicalism Act cannot be sustained. The Act punishes persons who ‘advocate or teach the duty, necessity, or propriety’ of violence ‘as a means of accomplishing industrial or political reform’; or who publish or circulate or display any book or paper containing such advocacy; or who ‘justify’ the commission of violent acts ‘with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism’; or who ‘voluntarily assemble’ with a group formed ‘to teach or advocate the doctrines of criminal syndicalism.’ Neither the indictment nor the trial judge’s instructions to the jury in any way refined the statute’s bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.

Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled.”

My Opinion:

In this case, I disagree with the majority opinion. I personally don’t understand their decision. Ohio’s criminal syndicalism prohibitted public speech that advocated various illegal activities, and Brandenburg violated this by giving a speech in a Ky Klux Klan meeting, which encouraged violent behavior. If not for Ohio’s syndicalism or the two conditions established by the court:  (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”, then Brandenburg’s rights may have been infringed upon. However, Ohio’s criminal syndicalism and the two requirements used when evaluating a speech act are akin to one another. Brandenburg’s speech was to promote “imminent lawless action.” This violates both the requirements of the court and Ohio’s criminal syndicalism. Therefore, Brandenburg’s rights were not violated, due to these exceptions.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

Hazelwood School District v. Kuhlmeier: Principal Edit Newspaper (01/13/1988)

Hazelwood School District v. Kuhlmeier

Did the principal’s deletion of the articles violate the students’ rights under the First Amendment?

Argued: 10/13/1987

Decision Date: 01/13/1988

Decision Record: 5-3; no

Justices in Favor: William Brennan, Thurgood Marshall, Harry Blackmun

Justices Dissenting: William Rehnquist, Byron White, John Paul Stevens, Sandra Day O’Connor, Antonin Scalia

Effect of the Decision

This case clarifies that school administrators have the right to revise school newspapers if it contains content that may be inappropriate.

In Favor

In representation of the Hazelwood School District, attorney Robert P. Baine argued, “This case come before the Court to resolve the issue of whether a school-sponsored high school newspaper produced and published by a journalism class as a part of the school adopted curriculum under a teacher’s supervision and subject to a principal’s review is a public forum for the purpose of the First Amendment.

During the 1982-1983 school year, the Hazelwood East curriculum included two journalism classes, Journalism I and Journalism II.

And I think that is really the issue that is here before the Court is whether or not the school having adopted a curriculum matter in the teaching of journalism through a textbook and through a classroom setting where the teacher according to the written curriculum attended both the original teaching involving the textbook course which was Journalism I and then in Journalism II continued with that same class.”


Then in opposition, representing Kuhlmeier, attorney Leslie D. Edwards claims, “In 1777 in Philadelphia at the Public Latin School was the first student newspaper called the Students Gazette that we at least have a record of today, ten years before the Constitution, before the First Amendment was added.

Four authors for the purposes of advice both foreign and domestic for the reason of the great want of a weekly newspaper got together as students expressing their opinions, and recording who won certain political elections for the state assembly.

The essence of their ability to put out a student newspaper was their right to communicate with each other, with other students, as well as with other members of the school community.

It is an institution that existed before the First Amendment, and I think that the fact, and Mr. Baine did not mention this at all, that this is a newspaper has to have some effect upon how the Court looks at the issues.”


The majority opinion slip was written by Justice Byron White. He wrote, “We also conclude that Principal Reynolds acted reasonably in requiring the deletion from the May 13 issue of Spectrum of the pregnancy article, the divorce article, and the remaining articles that were to appear on the same pages of the newspaper.

The initial paragraph of the pregnancy article declared that “[a]ll names have been changed to keep the identity of these girls a secret.” The principal concluded that the students’ anonymity was not adequately protected, however, given the other identifying information in the article and the small number of pregnant students at the school. Indeed, a teacher at the school credibly testified that she could positively identify at least one of the girls and possibly all three. It is likely that many students at Hazelwood East would have been at least as successful in identifying the girls. Reynolds therefore could reasonably have feared that the article violated whatever pledge of anonymity had been given to the pregnant students. In addition, he could reasonably have been concerned that the article was not sufficiently sensitive to the privacy interests of the students’ boyfriends and parents, who were discussed in the article but who were given no opportunity to consent to its publication or to offer a response. The article did not contain graphic accounts of sexual activity. The girls did comment in the article, however, concerning their sexual histories and their use or nonuse of birth control. It was not unreasonable for the principal to have concluded that such frank talk was inappropriate in a school-sponsored publication distributed to 14-year-old freshmenand presumably taken home to be read by students’ even younger brothers and sisters.

The student who was quoted by name in the version of the divorce article seen by Principal Reynolds made comments sharply critical of her father. The principal could reasonably have concluded that an individual publicly identified as an inattentive parent–indeed, as one who chose “playing cards with the guys” over home and family–was entitled to an opportunity to defend himself as a matter of journalistic fairness. These concerns were shared by both of Spectrum’s faculty advisers for the 1982-1983 school year, who testified that they would not have allowed the article to be printed without deletion of the student’s name.

Principal Reynolds testified credibly at trial that, at the time that he reviewed the proofs of the May 13 issue during an extended telephone conversation with Emerson, he believed that there was no time to make any changes in the articles, and that the newspaper had to be printed immediately or not at all. It is true that Reynolds did not verify whether the necessary modifications could still have been made in the articles, and that Emerson did not volunteer the information that printing could be delayed until the changes were made. We nonetheless agree with the District Court that the decision to excise the two pages containing the problematic articles was reasonable given the particular circumstances of this case. These circumstances included the very recent replacement of Stergos by Emerson, who may not have been entirely familiar with Spectrum editorial and production procedures, and the pressure felt by Reynolds to make an immediate decision so that students would not be deprived of the newspaper altogether.

In sum, we cannot reject as unreasonable Principal Reynolds’ conclusion that neither the pregnancy article nor the divorce article was suitable for publication in Spectrum. Reynolds could reasonably have concluded that the students who had written and edited these articles had not sufficiently mastered those portions of the Journalism II curriculum that pertained to the treatment of controversial issues and personal attacks, the need to protect the privacy of individuals whose most intimate concerns are to be revealed in the newspaper, and “the legal, moral, and ethical restrictions imposed upon journalists within [a] school community” that includes adolescent subjects and readers. Finally, we conclude that the principal’s decision to delete two pages of Spectrum, rather than to delete only the offending articles or to require that they be modified, was reasonable under the circumstances as he understood them. Accordingly, no violation of First Amendment rights occurred.”

On the other hand, the dissenting opinion slip was written by Justice William Brennan. He wrote, “The Court opens its analysis in this case by purporting to reaffirm Tinker’s time-tested proposition that public school students “do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.'” (quoting Tinker, supra, at 506). That is an ironic introduction to an opinion that denudes high school students of much of the First Amendment protection that Tinker itself prescribed. Instead of “teach[ing] children to respect the diversity of ideas that is fundamental to the American system,” Board of Education v. Pico, and “that our Constitution is a living reality, not parchment preserved under glass,” Shanley v. Northeast Independent School Dist., Bexar Cty., Tex., the Court today “teach[es] youth to discount important principles of our government as mere platitudes.” West Virginia Board of Education v. Barnette,The young men and women of Hazelwood East expected a civics lesson, but not the one the Court teaches them today.”


My Opinion:

In this case, I agree with the majority’s decision. Yes, students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” However, student’s do not get the same breadth of their rights at school like they do outside of the schoolhouse gate. For example, students don’t get to enjoy the Second Amendment right to bear arms, nor can they leave in the middle of a school lesson in order to go attend a protesting.

The principal had the right to revise the school newspaper, especially if it consisted of content he thought was not fit for the rest of the school, who may not be mature enough to handle that section of the newspaper. This does not violate a student’s freedom of speech. If a newspaper contains an article that talks about inappropriate content that would be best if not viewed by the students, it should come as no surprise when the principal or administrator gets rid of it.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right