The Court In WWI: “Clear & Present Danger”1. First Amendment: Congress shall pass no law that abridges freedom of speech or of the press.

A. No Law – Period: Hugo Black

B. Laws that protect public and government from dangerous speech: Chief Justice Fred Vinson

C. In between: balance free speech rights with public interest based on the facts of each case.

D. Free Speech cases first taken up by Court in 1919

E. Congress passed the Sedition Act 1n 1798, but it expired in 1801 and never reached the Court

F. In 1917, after the US entered WWI Congress passed the Espionage Act that made obstructing the Draft illegal, and prosecuted 2000 people under it – mostly Socialists

2. Schenck v. United States, 1919

A. Schenck convicted for distributing pamphlets that had 13 th Amndment. on one side and called the draft involuntary servitude on the other

B. Holmes argues that “in ordinary times” Schenck’s speech would have been protected, but in wartime it was a hindrance to the war effort.

C. Homes uses the “falsely shouting fire in a crowded theatre” metaphor to explain that speech that creates “a clear and present danger” is not protected by the first Amendment.

3. Socialist Party leader Eugene Debs 10 year conviction for violating the Espionage Act by speaking out against the war was upheld by Court

4. Abrams vs. US, 1919: 5 Russian Immigrants threw leaflets around critical of US intervention in the Russian Revolution

A. Justice Holmes changes his tune in descent: “market place of ideas”

B. Defendants are deported to the USSR where they are persecuted by that regime

Supreme Court Jurisprudence of the 20’s & 30’s

Q.Can you be put in jail for being a member of a revolutionary party?

A. Yes until 1969

Q. Can the Government regulate the economy?

A. No in 20’s, Yes by late 30’s

Q. Can the President or Congress get a new Supreme Court if it doesn’t like Ct. decisions?

A. Constitutinaly yes, but FDR wasn’t able to.

Q. Can Majorities legislate limits to the rights of minorities?

A. No

The Taft Ct. and the TwentiesIssue Context Case Outcome

1st Amendment Free Speech

Red Scare Gitlow v. New York (1925)

Gitlow handed out Communist Manifestos that called for “revolutionary action” but disavowed “immediate revolution”

•Court upheld State prosecution for violation of “criminal anarchy” statute. Reasoned that State had “police power” to protect pub. Safety even without evidence of direct incitement: I.e, Holmes example of yelling “fire”*

•Ct. said free speech rights were protected from States by 14th Amendment-beginning the process of incorporation

1st Amendment Free Association

Red Scare Whitney v. California (1927)

Whitney convicted under Ca. “criminal syndicalism law” for belonging to a communist party that advocated “crime or sabotage” to bring about change.

•Ct. upheld Whitney’s conviction stating that membership alone involved her in a criminal conspiracy and could be punished

•Overturned in Brandenburg v. Ohio 1969 in a case letting a Klansman go and stating only “imminent lawless action” could be punished

Regulation of Business/ Economy

20’s Prosperity

Adkins v. Children’s Hospital (1923)

Hospital in DC challenged a min. wage for women law arguing it was not a max hrs. case like Muller and therefore not a safely matter

•Ct. struck down the DC min wage law citing “liberty of contract” theory 14th Amendment had been used to thwart efforts of gov. to regulation of business

•Deciding to work for any wage was ruled a Substantive due process right to liberty protected by the 14th Amendment

•Holmes argues in dissent that the Constitution doesn’t mention liberty of contract & gov. has the power to regulate wages

Education Nativism/

2nd Klan

Polk v. Society of Sisters (1925)

Backed by the KKK, the Oregon Leg. Passes a law requiring attendance in pub. Schools as an anti-Catholic measure. Polk was the Governor, SoS a Cath. Order

Ct. upholds State Supreme Ct. decision striking the underlying statute as unconstitutional. Reasoned that children do not belong to state and parents have a liberty right to educate their kids protected by the 14th Amendment. Also a substantive due process decission

*Note* Pretty liberal use of “substantive due process”

*Schenke v. United States (1919)

Supreme Ct. in the 30’s: Depression and the New Deal

Issue Context Case Outcome

Regulating the Economy

Depression and New Deal

Schechter Poultry Co. v. US (1935)

•NIRA set prices, wages and sanitary regs for poultry

•Schechter sold “sick chickens”

•Court struck major provisions of NRA saying chickens had “come to rest” in NY and not an interstate commerce question but a local matter- can’t centralize the economy

•Ct. further ruled that NRA had delegated legislative functions to business groups

•AAA also struck down by US v. Butler (1936)

Protecting workers/

Regulating the economy

Depression Moerehead v. Tipaldo (1936)

•NY sets min. wages for women in 1936 and a case was rushed to Ct.

•NY law struck down citing Adkins

•Dissenters noted “grim irony” in using freedom of contract during the Great Depression

•Hugely unpopular decision

• Kan. Gov. & GOP nominee Alf Landon makes overturning Morehead with a Constitutional Amendment a campaign plank

•FDR is silent, but develops Ct. Packing Scheme

Court Packing New Deal/

Depression

Angry that a Reactionary Ct. of old men kept blocking New Deal and acting like a “super-legislature” and frustrating the will of the people, FDR proposed.

Plan would add six justices plus more to lower Fed. Cts.

Even congressional Democrats declare “here’s where I cash in my chips”. New Deal detractors have their fears of dictatorship confirmed.

•West Coast Hotel v. Parrish (1937) Ct. makes a shift overturning Morehead/Adkins

•“Switch in time saves nine” – Ct. would hereafter allow a broad latitude for legislation over economic maters so long as their was a “rational basis”*

*see Carolene Products (1936

Supreme Court in 30’s: Establishment, Free Exercise, & the Protection of Minorities

Issue Context Case Outcome

Economic Regulation/

Protection of Minorities

Depression Carolene Products (1938)

•Court upholds a federal law that regulates additives in milk products

•Ct. announces gov. legislating controls/regulations of economy are permissible so long as they meet a “rational basis” test. That is there is a rational nexus to an enumerated constitutional power – see Commerce clause: Art. I, Sec. 8, Clause 3

•Hereafter, the commerce clause will allow government control and legislation of the economy and business practices

•Concerned about the persecution of Jews in Germany, Justice Stone inserts a footnote that says the Court will apply stricter scrutiny to laws that affect provisions of the Bill of Rights

•“Strict Scrutiny” test would come to have major impact on civil rights cases

1st Amendment, Free speech & Religion Clauses

Depression Lovell v. City of Griffin,GA ;Schneider v. Irvington, NJ (both 1939); Cantwell v. CN (1940)

Annoying and unpopular, the rights of Jehovah’s Witnesses to knock on doors and hand out flyers are affirmed

•Lovell affirms the right of free press entitles the Witnesses to hand out leaflets

•Schneider affirms Witnesses right to knock on doors without a permit in the name of First Amendment.

•Cantwell incorporates the religion clauses of the First Amendment to the States

1st Amendment

Religion

Coming of Second World War

Minersville School Board v. Gobitis (1940)

Showing sympathy for Jehovah’s Witnesses who were sent to camps for refusing to salute the Nazi flag, the two Gobitis children refuse to say the pledge of allegiance and are expelled from school

Court upholds the expulsion stating “national unity is the basis of national security.” Hence training children to be patriotic was legitimate and religious dissenters could be expelled.

•Decision did nothing to limit a wave of violent attacks on Witnesses during the first years of WWII and much to provoke it

•Overturning Gobitis in 1943, Court says Gobitis was wrongly decided and the Constitution puts our rights “beyond the reach of majorities.”

West Virginia State Board of Education v. Barnette (1943)

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Justice Robert Jackson, from the majority opinion in Barnette

WWII and Post War Cases1. Korematsu v. US, 1944 (Hirabayash & Yasui): Upholds Japanese interment in all three

case

2. Youngstown Sheet & Tube v. Sawyer, 1952: Limits of Presidential war powers and Executive Orders: Justice Blacks footnote on Presidential Power

3. Brown v. Board of Education, 1954: Integration of schools

A. “all deliberate speed”. “feelings of inferiority”… “effect harts and minds in a way unlikely to ever be undone.”

B. Little Rock and “war against the Constitution”

4. Engel vs. Schempp, 1963: No school prayer. Justice Black’s “wall of separation” between church and state

5. Gideon v. Wainwright, 1963: Ct. appointed attorney

6. Miranda v. AZ, 1966: Rights attendant to arrest

7. Reynolds v. Simms, 1962: One person, One vote.

8. Hart of Atlanta Motel vs. US, 1964: Upholds 1964 Civil Rights Act bassed on Commerce Power

9. Griswold v. CN, 1965: Privacy.

10. Loving v. VA, 1967: Interracial marriage

11. NY Times v. United States, 1971: Prior restraint freedom of the press