1. Marbury v. Madison


Holding: Yes. 6. Majority Reasoning



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5. Holding: Yes.
6. Majority Reasoning: The standard is lower when a taxpayer attacks a federal statute on the grounds that it violates the establishment and free exercise clauses of the first amdendment. Frothingham does not serve as an absolute bar to actions by taxpayers, only as authority for exercise of discretion and self-restraint. The court is not a forum for a taxpayer to air generalized grievances about the conduct of government. If the taxpayer has a personal stake in the outcome of the controversy, and the parties have adverse legal interests, then there is standing if the taxpayer can show nexus between the status asserted and the claim sought to be adjudicated. That nexus exists where there is a specific constitutional limitation imposed on the taxing and spending power of the Congress.
7. Dissent Reasoning: [Harlan] The court should not grant access to taxpayers on its own in the absence of permission by Congress. “Public actions” should only be brought under the authority of Congressional statute.
8. Notes: In U.S. v. Richardson, the court held that a taxpayer did not have standing to challenge the non-publication of CIA expenditures, on the ground that there was no allegation that the funds were being spent in violation of a specific constitutional limitation on Congress’ spending power. Also, in Schlesinger v. Reservists to Stop the War, the court refused to recognize standing of the challengers because their injury was not “concrete” enough.

1. Warth v. Seldin, (1975); pg. 4/11/96
2. Facts: πs are minority citizens and associations of Rochester, NY. ∆s are members of the zoning commission of Penfield, a city adjacent to Rochester that has allegedly discriminatory zoning laws, preventing the building of low and moderate income housing.
3. Procedural Posture: The lower courts dismissed the case for lack of standing.
4. Issue: Whether the πs had standing.
5. Holding: No.
6. Majority Reasoning: The πs must show that they have suffered some concrete injury or threatened injury from allegedly illegal action to satisfy the consitutional requirements of cases and controversies of Art. III. Also, the πs must show that their grievance is not just a generalized one of a large class, and that they are not bringing an action on behalf of a third party. The πs must also show that a favorable ruling would provide actual relief, not just speculative relief. Here, none of the minority citizens has alleged facts that show an actual injury, they are merely representatives of a larger class. None of them has ever lived, or alleged that they would live in Penfield were the zoning laws different. Also, they have not show that a favorable ruling would allow them to get the housing they need. The various organizations fail standing for the same reasons.
7. Dissent Reasoning: [Brennan] The court views each separate π as if it were bringing a separate lawsuit, rather than seeing that their allegations are intertwined to be sufficient to overcome a motion to dismiss for lack of standing. One can not expect the πs to have enough knowlege, prior to discovery, to allege specific enough facts that the majority requires.
8. Notes: In Northeastern Florida Chapeter General Contractors of America v. City of Jacksonville (1993), the court distinguished Warth and made it clear that the “concreteness” of the πs planned conduct was an important factor in the determination of standing. Here, the contractors actually did bid on the contracts awarded to the minorities, and could allege facts showing that they would have received the contracts if not for the set-aside clause.

1. Employment Div. Ore. Dept. of Human Res. v. Smith, (1990); pg. 1573, briefed 4/22/96
2. Facts: Oregon law prohibits the knowing use of the drug peyote. Members of the Native American Church use the drug in ritual ceremonies for religious purposes. When religious members were fired from their jobs for using peyote, the unemployment division refused to pay them unemployment benefits because they had been fired for work related misconduct.
3. Procedural Posture: Oregon Supreme court held that the law as applied here was an unconstitutional infringment on free exercise, reasoning that the state interest in preserving the unemployment fund was outweighed by the burden on free exercise. The Supreme Court granted cert.
4. Issue: Whether a state may pass a general and neutral ban on all of the use of a particular drug, even though the general ban may burden the exercise of a particular religion.
5. Holding: Yes.
6. Majority Reasoning: The proper standard for a neutral and generally applicable law is not strict scrutiny, or any type of balancing. The government’s ability to enforce generally applicable prohibitions can not depend on measuring the effects on a particular religion. To make an individual’s obligation to obey such a lw contingent upon whether the state’s interest is “compelling” is to allow the individual to become a law unto himself. Use of strict scrutiny in this context will dilute it for other contexts.
7. Concurrence Reasoning: [O’Connor] Strict scrutiny is the proper test.

1. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, (1993); pg. 425 Supp., briefed 4/22/96
2. Facts: Members of the church practice the Santeria religion which practices animal sacrifices for various occasions. Sometimes the animal is then eaten, sometimes it is not. Outrage in the community over the animal sacrifices led the city council to ban all animal sacrifices which were not for the purpose of food.
3. Procedural Posture: The district court found for the city, and the court of appeals affirmed.
4. Issue: Whether a city may enact laws specifically prohibiting the practice of certain religious rituals when such laws are directed against a particular religion.
5. Holding: No.
6. Reasoning: A law which is specifically directed at regulating the practice of a specific religion will be subjected to “the most rigorous of scrutiny,” unless it is both neutral and generally applicable (Smith). The law here is very underinclusive, because the city’s stated purpose of promoting public health would be better served if they also regulated disposal of animals killed by hunters, as well as disposal of restaurant food, and the killing of pests. Since the city failed to enact such other laws, its purpose could not be compelling.

1. Schenck v. United States, (1919); pg. 1010, briefed 4/22/96
2. Facts: ∆s had written and sent anti-draft propoganda to men who had been drafted.
3. Procedural Posture: ∆’s were charged with conspiracy to violate the Espionage Act, which made it a crime to willfully obstruct the recruiting or enlistment of servicemen.
4. Issue: Whether the government may criminalize speech that poses a “clear and present danger” to the U.S. government.
5. Holding: Yes.
6. Reasoning: The character of every act depends on the circumstances which surround it. When a nation is at war, many things that are said may be dangerous to the country, that would not otherwise be dangerous in peacetime. Thus, the first amendment protection of speech is not so broad as to cover all speech. A person who cries “fire” in a crowded theater would not be protected by the first amendment.

1. Abrams v. United States, (1919); pg. 1014, briefed 4/22/96
2. Facts: ∆’s produced and distributed leaflets that were pro-revolution in Russia, and urged the U.S. factory workers to strike, so that arms and munitions being produced for WWII would not be used against the revolutionaries in Russia.
3. Procedural Posture: The ∆s were charged with violation of a section of the Espionage Act which prohibited advocating the “curtailment of production of ordnance and ammunition, necessary to the production of the war.”
4. Issue: Whether the government may criminalize the speech presented here.
5. Holding: Yes.
6. Majority Reasoning: Based on Schenk, this speech is clearly prohibitable. Even though their primary purpose was pro-Russian, it had an anti-American effect by urging strikes.
7. Dissent Reasoning: [Holmes] The ∆s did not intend to interfere with the war against Germany. There was not clear and present danger present because the leaflet was silly and posed no immediate danger to the U.S. government. Free speech is necessary because it is the “marketplace of ideas” that generates what the truth really is. The suppression of free speech should only be permitted when necessary to immediately save the country.

1. Dennis v. United States, (1951); pg. 1042, briefed 4/22/96
2. Facts: ∆s were members of the Communist Party, and generated pro-revolution materials in violation of the Smith Act. The communist party was believed to pose a significant danger because it advocated violent overthrow o the government.
3. Procedural Posture: ∆’s were convicted of conspiring to advocate the overthrow of the government based on their writings.
4. Issue: Whether the government may criminalize speech which poses a clear and present danger to the government.
5. Holding: Yes.
6. Majority Reasoning: The “clear and present danger” test does not require that the government wait until overthrow is imminent. It only need determine that there are persons advocating the overthrow of the government by force and violence. It does not matter that the government not actually be in any danger of overthrow due to its size and strength, the gov’t still has a substantial interest in putting down dangerous threats. Judge Learned Hand’s test is proper: “whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” Also, it is not a question of fact for the jury, the existence of sufficient danger is a question of law for the judge.
7. Concurrence Reasoning: [Frankfurter] The clear and present danger test is vague dogma. A better approach is to balance the interests of the government against the interests of free speech and the individual. It is not for the courts to determine the proper balance, Congress has already done so by passing the act.

1. Brandenburg v. Ohio, (1969); pg. 1061, briefed 4/30/96
2. Facts: Brandenburg was the leader of a KKK group. He organized a KKK rally and made public speeches advocating violent resistance to government.
3. Procedural Posture: Brandenburg was convicted for violating the Ohio criminal syndicalism act which prohibits “advocating” violence for political reform, as well as “assembling” with groups that advocate violence for political reform.
4. Issue: Whether a law that proscribes advocacy of violence for political reform is constitutional if applied to speech that is not directed toward producing imminent lawlessness and is not likely to produce such action.
5. Holding: No.
6. Reasoning: Although Whitney approved of such laws, it has bee thoroughly discredited by later decisions. The mere abstract teaching of moral propriety or even moral necessity for a resort to force and violence is not the same as preparing the group for violent action, and causing that violence to happen. Here, the statute sweeps too broadly because it covers the case where the violence is not likely.

1. Chaplinski v. New Hampshire, (1942); pg. 1070, briefed 4/30/96
2. Facts: ∆ was a jehovah’s witness, who upon being escorted away from a public disturbance that he had created, told an officer that he was “damned facist” and a “damned racketeer.”
3. Procedural Posture: ∆ was convicted under a statute which prohibited speech that were “likely to cause an average addressee to fight.”
4. Issue: Whether words “plainly likely to cause a breach of the peace by the addressee” are protected by the First Amendment.
5. Holding: No.
6. Reasoning: The right of free speech is not absolute at all times. These are “fighting words” which by their very nature tend to inflict injury or tend to incite an immediate breach of the peace. They are not an essential part of the expositionof ideas that were meant to be protected by the First amendment. Also, lewd, obscene, profane, and libelous words are not protected.
7. Notes: The lewd, obscene, profane, and libelous speech has been protected to some degree since Chaplinski. However, “fighting words” survives to a limited extent as an exception to free speech. However, in Gooding v. Wilson, (1972), the court held 4-3 that a statute that was so broadly written that it covered speech “not plainly likely to cause a breach of the peace by the addressee” was unconstitutional on its face. Thus, the court is not likely to broaden the scope of the Chaplinski holding.

1. New York Times Co. v. Sullivan, (1964); pg. 1078, briefed 4/30/96
2. Facts: Sullivan is a police commissioner. A group supporting Martin Luther King Jr bought a full-page ad in the New York Times, which implied that Sullivan was behind some oppressive tactics being used against blacks in Alabama, and which contained factual discrepancies.
3. Procedural Posture: Sullivan won general damages under an Alabama statute which made “libel per se” if the words spoken “tend to injure a person in his reputation,” the only defense being truth.
4. Issue: Whether a statute that allows civil damages for defamation of a public official by statements criticizing his official conduct is constitutional if it does not require that the statements be made with “actual malice” - that is, with knowlegde that they are false, or with reckless disregard for their truth.
5. Holding: No.
6. Reasoning: The first amendment must protect unintentional false statements against public officials if it is to have the “breathing space” that it needs to operate freely. The fear of libel awards is likely to make a person censor himself, or to make the newspaper refuse to print the statement unless the declarant guarantees that it is free from error. Also, public officials are required to have a thick skin. The “actual malice” requirement is not met here.

1. Roth v. United States, (1957); pg. 1099, briefed 4/30/96
2. Facts: Two cases involving the mailing and advertising of obscene books. One federal and one state.
3. Procedural Posture: Roth was convicted under federal obscentiy statutes. Alberts was convicted under California statute prohibiting sale and advertising of obscene books.
4. Issue: Whether obscenity is utterance within the area of protected speech and press.
5. Holding: no.
6. Majority Reasoning: [Brennan] Implicit in the history of the first amendment is the rejection of obscenity as utterly without redeeming social importance. Since obscenity does not fall under free speech, it is no defense that a particular book would not induce antisocial behaviour, and thus the state would not have a sufficiently strong interest to prohibit it. The definition of obscenity is material which deals with sex in a manner appealing to prurient interests. The test of whether a particular material is obscene is whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests.
7. Dissent Reasoning: [Douglas] This test makes the legality of a publication depend on the purity of thought which a book or tract instills in the mind of the reader. The people are as capable of rejecting noxious literature as they are of sorting out true from false in theology, economics, politics, or any other field.
8. Notes: In Kingsley Int’l Pictures v. Regents, (1959), the court struck down a new york licensing law which banned “immoral” films, holding that “immorality” was not coterminous with “obscenity.” In Stanley v. Georgia, (1969), the court struck down the conviction of a man for the possession of obscene films in his house, stating that “if the first amendment means anything, it means that the state has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.” However, in United States v. Reidel, (1971), the court upheld a law prohibiting the mailing of obscene materials, stating that mail distribution poses the danger that obscenity will be sent to children and unwilling adults.


Roger W. Martin



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