Landmark Cases

Schenck v. United States involved the conviction of Charles Schenck, a prominent socialist who attempted to distribute thousands of flyers to American servicemen recently drafted to fight in World War I. Above, a 1914 anarchist rally in New York's Union Square.

Reproduction courtesy of the Library of CongressSchenck v. U.S. (1919)In Schenck v. United States (1919), the Supreme Court invented the famous "clear and present danger" test to determine when a state could constitutionally limit an individual's free speech rights under the First Amendment. In reviewing the conviction of a man charged with distributing provocative flyers to draftees of World War I, the Court asserted that, in certain contexts, words can create a "clear and present danger" that Congress may constitutionally prohibit. While the ruling has since been overturned, Schenck is still significant for creating the context-based balancing tests used in reviewing freedom of speech challenges.

The case involved a prominent socialist, Charles Schenck, who attempted to distribute thousands of flyers to American servicemen recently drafted to fight in World War I. Schenck's flyers asserted that the draft amounted to "involuntary servitude" proscribed by the Constitution's Thirteenth Amendment (outlawing slavery) and that the war itself was motivated by capitalist greed, and urged draftees to petition for repeal of the draft. Schenck was charged by the U.S. government with violating the recently enacted Espionage Act. The government alleged that Schenck violated the act by conspiring "to cause insubordination ... in the military and naval forces of the United States." Schenck responded that the Espionage Act violated the First Amendment of the Constitution, which forbids Congress from making any law abridging the freedom of speech. He was found guilty on all charges. The U.S. Supreme Court reviewed Schenck's conviction on appeal.

The Supreme Court, in a pioneering opinion written by Justice Oliver Wendell Holmes, upheld Schenck's conviction and ruled that the Espionage Act did not violate the First Amendment. The Court maintained that Schenck had fully intended to undermine the draft because his flyers were designed to have precisely that effect. The Court then argued that "the character of every act depends upon the circumstances in which it is done." While in peacetime such flyers could be construed as harmless speech, in times of war they could be construed as acts of national insubordination. The Court famously analogized to a man who cries "Fire!" in a crowded theater. In a quiet park or home, such a cry would be protected by the First Amendment, but "the most

stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

In sum, free speech rights afforded by the First Amendment, while generous, are not limitless, and context determines the limits. "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Against this test, the Court upheld the Espionage Act and affirmed Schenck's conviction, finding that his speech had created a clear and present danger of insubordination in wartime.

The decision, in addition to sending Charles Schenck to jail for six months, resulted in a pragmatic "balancing test" allowing the Supreme Court to assess free speech challenges against the state's interests on a case-by-case basis. (Justice Holmes, the test's creator, however, would attempt to refine the standard less than a year later, when he famously reversed himself and dissented in a similar free speech case, Abrams v. United States.) However, the "clear and present danger" test would only last for 50 years. In 1969, the Court in Brandenburg v. Ohio replaced it with the "imminent lawless action" test, one that protects a broader range of speech. This test states that the government may only limit speech that incites unlawful action sooner than the police can arrive to prevent that action. As of 2006, the "imminent lawless action" test is still used.

Gitlow v. New York, case in which the U.S. Supreme Court ruled on June 8, 1925, that the U.S.

Constitution’s First Amendment protection of free speech, which states that the federal “Congress shall make

no law…abridging the freedom of speech,” applied also to state governments. The decision was the first in

which the Supreme Court held that the Fourteenth Amendment’s due process clause required state and federal

governments to be held to the same standards in regulating speech.

The case arose in November 1919 when Benjamin Gitlow, who had served as a local assemblyman, and an

associate, Alan Larkin, were arrested by New York City police officers for criminal anarchy, an offense under

New York state law. Gitlow and Larkin were both Communist Party members and publishers of The

Revolutionary Age, a radical newspaper in which they printed “The Left Wing Manifesto” (modeled on The

Communist Manifesto by Karl Marx and Friedrich Engels), which advocated the violent overthrow of the U.S.

government. Although Gitlow argued at trial that no violent action was precipitated by the article, he was

convicted, and the conviction was subsequently upheld by the state appellate court.

Oral arguments before the Supreme Court took place in April and November 1923, and the Supreme Court

issued its ruling, written by Justice Edward T. Sanford, in June 1925. The court upheld Gitlow’s conviction,

but perhaps ironically the ruling expanded free speech protections for individuals, since the court held that the

First Amendment was applicable to state governments through the due process clause of the Fourteenth

Amendment. The majority opinion stipulated that the court “assume[s] that freedom of speech and of the press

which are protected by the First Amendment from abridgment by Congress are among the fundamental

personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from

impairment by the States.”

In ruling that the conviction was constitutional, however, the court rejected the “clear and present danger” test

established in Schenck v. U.S. (1919) and instead used the “bad (or dangerous) tendency” test. The New York

state law was constitutional because the state “cannot reasonably be required to defer the adoption of measures

for its own peace and safety until the revolutionary utterances lead to actual disturbances of the public peace or

imminent and immediate danger of its own destruction; but it may, in the exercise of its judgment, suppress the

threatened danger in its incipiency.” In an eloquent dissenting opinion, Justices Oliver Wendell Holmes, Jr.,

and Louis Brandeis held to the clear and present danger test, arguing that:

there was no present danger of an attempt to overthrow the government by force on the part of the

admittedly small minority who shared the defendant’s views.…Every idea is an incitement. It offers

itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of

energy stifles the movement at its birth.…If the publication of this document had been laid as an

attempt to induce an uprising against government at once and not at some indefinite time in the future

it would have presented a different question.…But the indictment alleges the publication and nothing

more.

The ruling, which enabled prohibitions on speech that simply advocated potential violence, was eventually

dismissed by the Supreme Court in the 1930s and later as the court became more restrictive in the types of

speech that government could permissibly suppress.

Benjamin Gitlow

Engel v. Vitale (1962)Historical Background

After World War II, the United States experienced another period of intense concern about the spread of communism abroad and fear of subversion at home. The Federal Government enacted a program requiring all employees to take loyalty oaths, while U.S. Senator Joseph McCarthy claimed there were communist agents in government. Alleged “communist spies” were called forth to give testimony before a Senate subcommittee chaired by McCarthy. These hearings had the impact of sensational court dramas that filled the media, while the deployment of U.S. soldiers to fight communist aggression in Korea made the threat of communism at home all the more palpable. In this context, some States enacted a variety of programs to encourage patriotism, moral character, and other values of good citizenship. They also began challenging separation of church and state issues in hopes of providing students with strong moral and spiritual stamina. In this case, the Warren Court once again was to take up a controversial issue.

Circumstances of the Case

In 1951 the New York State Board of Regents (the State board of education) approved a 22-word “nondenominational prayer” for recitation each morning in the public schools of New York. It read: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.” The Regents believed that the prayer could be a useful tool for the development of character and good citizenship among the students of the State of New York. The prayer was offered to the school boards in the State for their use, and participation in the “prayer-exercise” was voluntary. In New Hyde Park, New York, the Union Free School District No. 9 directed the local principal to have the prayer “said aloud by each class in the presence of a teacher at the beginning of the school day.”

The parents of ten pupils in the New Hyde Park schools objected to the prayer. They filed suit in a New York State court seeking a ban on the prayer, insisting that the use of this official prayer in the public schools was contrary to their own and their children's beliefs, religions, or religious practices. The State appeals court upheld the use of the prayer, “so long as the schools did not compel any pupil to join in the prayer over his or his parents' objection.”

Constitutional Issues

The question before the Court involved the Establishment Clause of the 1st Amendment. Did the Regents of New York violate the religious freedom of students by providing time during the school day for this particular prayer? Did the prayer itself represent an unconstitutional action—in effect, the establishment of a religious code—by a public agency? Did the Establishment Clause of the 1st Amendment prevent schools from engaging in “religious activity”? Was the “wall of separation” between church and state breached in this case?

Arguments

For Engel (the parents): The separation of church and state requires that government stay out of the business of prescribing religious activities of any kind. The Regents' prayer quite simply and clearly violated the 1st Amendment and should, therefore, be barred from the schools.

For the Regents of the State of New York: The New York Regents did not establish a religion by providing a prayer for those who wanted to say it. Countless religious elements are associated with governments and officials, reflecting the religious heritage of the nation. New York acted properly and constitutionally in providing an optional, nonsectarian prayer. It would be an intrusion into State matters

for the Supreme Court to strike down the right of the Regents to compose the prayer and encourage its recitation.

Decision and Rationale

The Court found the New York Regents' prayer to be unconstitutional. Justice Hugo Black wrote the opinion for the 6-1 majority: “We think that by using its public school system to encourage recitation of the Regents' Prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York's program of daily classroom invocation of God's blessings…in the Regents' Prayer is a religious activity…”

Black further explained that “When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain…. The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its 'unhallowed perversion' by a civil magistrate.”

To support the Court's finding, Black referred to the following ideas of the Framers: “To those who may subscribe to the view that because the Regents' official prayer is so brief and general [it] can be no danger to religious freedom…, it may be appropriate to say in the words of James Madison, the author of the First Amendment:… 'Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?'”

The Court's decision was not, Black pointed out, antireligious. It sought, rather, only to affirm the separation between church and state. “It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers…” Thereafter, State governments could not “prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity.”

Katz v. United States, 389 U.S. 347 (1967)The warrantless wiretapping of a public pay phone violates the unreasonable search and seizure protections of the

Fourth Amendment.

FACTS The petitioner, Charles Katz, was charged with conducting illegal gambling operations across state

lines in violation of federal law. In order to collect evidence against Katz, federal agents placed a

warrantless wiretap on the public phone booth that he used to conduct these operations. The

agents listened only to Katz's conversations, and only to the parts of his conversations dealing

with illegal gambling transactions.

In the case of Olmstead v. United States (1928), the Supreme Court held that the warrantless

wiretapping of phone lines did not constitute an unreasonable search under the Fourth

Amendment. According to the Court, physical intrusion (a trespass) into a given area, and not

mere voice amplification (the normal result of a wiretap), is required for an action to constitute a

Fourth Amendment search. This is known as the "trespass doctrine." Partly in response to this

decision, Congress passed the Federal Communications Act of 1933. This Act required, among

other things, federal authorities to obtain a warrant before wiretapping private phone lines. In the

case of Silverman v. United States (1961), the Supreme Court refined the Olmstead trespass

doctrine by holding that an unreasonable search occurs only if a "constitutionally protected area"

has been intruded upon.

At his trial, Katz sought to exclude any evidence connected with these wiretaps, arguing that the

warrantless wiretapping of a public phone booth constitutes an unreasonable search of a

"constitutionally protected area" in violation of the Fourth Amendment. The federal agents

countered by saying that a public phone booth was not a "constitutionally protected area,"

therefore, they could place a wiretap on it without a warrant.

ISSUE Does the warrantless wiretapping of a public phone booth violate the unreasonable search and

seizure clause of the Fourth Amendment to the United States Constitution?

RULING Yes

REASONING By a 7-1 vote, the U.S. Supreme Court agreed with Katz and held that placing of a warrantless

wiretap on a public phone booth constitutes an unreasonable search in violation of the Fourth

Amendment. The majority opinion, written by Justice Potter Stewart, however, did not address the

case from the perspective of a "constitutionally protected area." In essence, the majority argued

that both sides in the case were wrong to think that the permissibility of a warrantless wiretap

depended upon the area being placed under surveillance. "For the Fourth Amendment protects

people, not places. What a person knowingly exposes to the public, even in his own home or

office, is not a subject of Fourth Amendment protection . . . . But what he seeks to preserve as

private even in an area accessible to the public, may be constitutionally protected," the Court

stated.

Building upon this reasoning, the Court held that it was the duty of the Judiciary to review petitions

for warrants in instances in which persons may be engaging in conduct that they wish to keep

secret, even if it were done in a public place. The Court held that, in the absence of a judicially

authorized search warrant, the wiretaps of the public phone booth used by Katz were illegal.

Therefore, the evidence against him gathered from his conversations should be suppressed.

CONCURRENCE Justice John Marshall Harlan's Concurrence: Test for Constitutionally Protected SearchesAlthough he agreed with the majority opinion of the Court, Justice Harlan went further to provide a

test for what is a constitutionally protected search. He said it was necessary to clarify when private

actions, conducted in a public place, may be constitutionally protected. Expanding upon the

general principles enunciated by the majority opinion, Justice Harlan proposed the following two-

pronged test to address this issue: "My understanding of the rule that has emerged from prior

judicial decisions is that there is a twofold requirement, first that a person have exhibited an actual

(subjective) expectation of privacy; and second, that the expectation be one that society is

prepared to recognize as 'reasonable.'"

Both the Supreme Court and the lower federal courts have looked to this two-pronged test, and

not the majority holding per se, to determine when private actions in public places may be

constitutionally protected. In essence, this concurrence has come to be seen as the main point of

the Katz decision, and it is the test that, typically, has been used when deciding upon the

constitutionality of warrantless wiretaps.

Facts and case summary for Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988)The First Amendment rights of student journalists are not violated when school officials prevent the publication of

certain articles in the school newspaper.

FACTSStudents enrolled in the Journalism II class at Hazelwood East High School

were responsible for writing and editing the school's paper The Spectrum.

Two of the articles submitted for publication in the final edition of the paper

contained stories on divorce and teenage pregnancy. The divorce article

featured a story about a girl who blamed her father's actions for her parents'

divorce. The teenage pregnancy article featured stories in which pregnant

students at Hazelwood East shared their experiences.

To ensure their privacy, the girls' names were changed in the article. The

school principal felt that the subjects of these two articles were

inappropriate. He concluded that journalistic fairness required that the father

in the divorce article be informed of the story and be given an opportunity to

comment. He also stated his concerns that simply changing the names of

the girls in the teenage pregnancy article may not be sufficient to protect

their anonymity and that this topic may not be suitable for the younger

students. As a result, he prohibited these articles from being published in

the paper.

Because there was no time to edit the paper if it were to go to press before

the end of the school year, entire pages were eliminated. The student

journalists then brought suit to the U.S. District Court for the Eastern District

of Missouri, alleging that their First Amendment rights to freedom of speech

had been violated.

The U.S. District Court concluded that they were not. The students

appealed to the U.S. Court of Appeals for the Eighth Circuit, which reversed

the ruling, stating that the students' rights had been violated. The school

appealed to the U.S. Supreme Court, which granted certiorari.

PROCEDURE Lower Court: Eighth CircuitLower Court Ruling: Held: The decision of the principal to prohibit the

publishing of certain student articles deemed to be inappropriate violates the student journalists' First Amendment free speech rights.

Supreme Court Held: Reversed the decision of the Eighth Circuit.

Ruling: The decision of the school principal to prohibit the publishing of certain articles deemed to be inappropriate does not violate the student journalists' First Amendment right of freedom of speech.

Supreme Court Vote: 5-3

Argued: October 13, 1987Decided: January 13, 1988Majority Opinion: Justice White (joined by Chief Justice Rehnquist

and Justices O'Connor and Scalia)Dissenting Opinion: Justice Brennan (joined by Justices Marshall and

Blackmun dissenting)

ISSUES Does the decision of a principal to prohibit the publishing of certain articles, which he deems inappropriate, in the school newspaper violate the student journalists' First Amendment right of freedom of speech?

REASONINGThe U.S. Supreme Court held that the principal's actions did not violate the

students' free speech rights. The Court noted that the paper was sponsored

by the school and, as such, the school had a legitimate interest in

preventing the publication of articles that it deemed inappropriate and that

might appear to have the imprimatur of the school. Specifically, the Court

noted that the paper was not intended as a public forum in which everyone

could share views; rather, it was a limited forum for journalism students to

write articles pursuant to the requirements of their Journalism II class, and

subject to appropriate editing by the school.

Key Points to Remember

The First Amendment protects the right to freedom of speech.

The Spectrum was written by students in the Journalism II

course as part of the requirements of that course.

The articles in question were about divorce and teenage

pregnancy. The subjects of both of these stories were students

at Hazelwood East High School.

The divorce article featured a story in which a girl blamed her

father's actions for her parents' divorce, but the author did not

adhere to journalistic standards by informing the father of the

story and giving him an opportunity to respond.

Although their names were changed, the principal was

concerned that students may be able to recognize the identity of

the girls who were interviewed for the pregnancy article.

Texas v. Johnson (1989)Flag Burning, Freedom of Speech

Background Information:

Gregory Lee Johnson participated in a political demonstration during the Republican National Convention in Dallas, Texas, in 1984. The purpose of the demonstration was to protest policies of the Reagan Administration and of certain corporations based in Dallas. Demonstrators marched through the streets, chanted slogans, and held protests outside the offices of several corporations. At one point, another demonstrator handed Johnson an American flag.

When the demonstrators reached Dallas City Hall, Johnson doused the flag with kerosene and set it on fire. During the burning of the flag, the demonstrators shouted, "America, the red, white, and blue, we spit on you." No one was hurt or threatened with injury, but some witnesses to the flag burning said they were seriously offended. One witness picked up the flag's charred remains and buried them in his backyard.

Johnson was charged with the desecration of a venerated object, in violation of the Texas Penal Code. He was convicted, sentenced to one year in prison, and fined $2,000. He appealed his conviction to the Court of Appeals for the Fifth District of Texas, which let his conviction stand. He then appealed to the Texas Court of Criminal Appeals, which is the highest court in Texas that hears criminal cases. That court overturned his conviction saying that the State, consistent with the First Amendment, could not punish Johnson for burning the flag in these circumstances.

The court first found that Johnson's burning of the flag was expressive conduct protected by the First Amendment. Therefore in order for a state to criminalize or regulate such conduct it would have to serve a compelling state interest that would outweigh the protection of the First Amendment. The court concluded that criminally sanctioning flag desecration in order to preserve the flag as a symbol of national unity was not a compelling enough interest to survive the constitutional challenge. It also held that while preventing breaches of the peace qualified as a compelling state interest the statute was not drawn narrowly enough to only punish those flag burnings that would likely result in a serious disturbance. Further, it stressed that another Texas statute prohibited breaches of the peace and could serve the same purpose of preventing disturbances without punishing this flag desecration.

The court said, "Recognizing that the right to differ is the centerpiece of our First Amendment freedoms . . . a government cannot mandate by fiat a feeling of unity in its citizens. Therefore that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol. . . . " The court also concluded that the flag burning in this case did not cause or threaten to cause a breach of the peace.

The State of Texas filed a petition for a writ of certiorari and, in 1988, the Supreme Court of the United States agreed to hear the case. In 1989, the Court handed down its decision.

Supreme Court Decision:

In a 5-4 decision, the Supreme Court ruled for Johnson. Justice Brenan wrote the opinion for the majority, ruling that Johnson’s act of burning the American flag was protected by the First Amendment because it was expressive conduct. Justices Rehnquist, Stevens, White and O’Connor dissented.

The justices in the majority first considered whether expressive conduct was protected by the First Amendment, which only explicitly guarantees “freedom of speech.” Noting that the Court has “long recognized that [First Amendment] protection does not end at the spoken or written word,” they added that conduct may be “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.” Conduct is sufficiently expressive when “an intent to convey a particularized message was present, and the likelihood was great that the message would be understood by those who viewed it.” Given the context of political protest in which Johnson’s conduct occurred, the justices concluded that it was sufficiently expressive to invoke First Amendment protection.

The Court acknowledged that while “the government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word,” it still cannot prohibit certain conduct just because it disapproves of the ideas expressed. The justices declared that “if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” The government must have reasons for regulating the conduct that are unrelated to the popularity of the ideas it expresses.

The Court considered two central arguments asserted by Texas. The first was that the government can prevent expressive speech to prevent breaches of the peace. According to Supreme Court precedent, speech can be prohibited when it would incite “imminent lawless action.” The justices decided that the Texas law prohibiting flag burning did not limit its prohibition to situations in which it would incite “imminent lawless action,” and no such violent disturbance of the peace occurred when Johnson burned the flag. This reason was therefore not sufficient.

Second, Texas argued that the reason for prohibiting flag burning was to preserve the flag as a symbol of national unity. The Court decided, however, that the Court had never “recognized an exception to [the First Amendment] even where our flag has been involved.” They acknowledged that while the government does have an interest in encouraging its citizens to treat the flag with respect, this interest did not justify the criminal prosecution of a man who burned the flag as part of a political protest.

A better way to encourage respect for the American flag would be to persuade people to recognize its unique symbolic value. The justices urged that there is “no more appropriate response to burning a flag than waving one’s own, no better way to counter a flag burner’s message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by ... according its remains a respectful burial.” The Court concluded

that “we do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”

In his dissenting opinion, Justice Rehnquist acknowledged the special place the flag holds as the “visible symbol embodying our nation,” noting that “millions and millions of Americans regard it with an almost mystical reverence.” Because of its unique position, Rehnquist concluded that it was constitutionally permissible to prohibit burning the flag as a means of symbolic expression. He argued that Texas’s prohibition on flag burning did not regulate the content of Johnson’s message, but only removed one of the ways in which this message could be expressed. Johnson was left with “a full panoply of other symbols and every conceivable form of verbal expression” to convey his message. A ban on flag burning is thus consistent with the First Amendment, Justice Rehnquist concluded, because it is not directed at suppressing particular ideas, but rather seeks only to protect the special significance of the flag as the symbol of the United States.

Supreme Court Case Stations

Directions: Go to each station, gathering information on the following cases. 15 minutes per station.

Station Court Case Background Information

Court Decision Dissenting Opinion

Why do you agree or

disagree with this decision?

1 Schenk v. U.S.

(1919)

2 Gitlow v. New

York (1925)

3 Engel v. Vitale

(1962)

4 Katz v. U.S.

(1967)

5 Hazelwood

School District

v. Kuhlmeier

(1988)

6 Texas v.

Johnson (1989)

Stations Wrap-Up Prompt

After visiting all 6 stations regarding rights of U.S. citizens, which Supreme Court decision

impacts your life the MOST on a daily basis? In addition, which Supreme Court decision

influences your life the LEAST daily? Explain your answers in a response of at least two

paragraphs.