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268 United States 652, 45 S.Ct. 625, 69 L.Ed. 1128

Reargued November 23, 1923

Decided June 8, 1925

Benjamin Gitlow was a leader of the Left Wing Section Socialist Party, which had been formed to oppose “moderate socialism.” He was tried and convicted by a New York court for violating the state’s criminal anarchy statute. The indictment specifically charged that by publishing and distributing the movement’s paper, Gitlow had distributed materials that advocated, advised, and taught “the doctrine that organized government should be overthrown by force, violence and unlawful means.” The publication called for the overthrow of capitalism, which it described as being “in the process of disintegration and collapse.” It called for using industrial revolts to broaden then ongoing strikes and “revolutionary mass action for the annihilation of the parliamentary state.”

Gitlow did not challenge the state’s assertions but attacked the constitutionality of the statute. The New York Court of Appeals upheld his conviction, and he appealed to the United States Supreme Court.

  • ISSUE: Does the New York state statute against criticizing the government violate Gitlow’s First Amendment freedom of speech?



Justice Sanford, speaking for the Court, stated that the “clear and present danger” test from Schenck v. United States (1919) was applicable in situations where a statute makes certain actions unlawful, since the purpose of the test was to determine at what point words become the equivalent of unlawful deeds. But, according to Sanford, it was not applicable in situations in which the state has previously determined that certain words of incitement are dangerous. In the latter case the Court must defer to the legislature so long as the statute could have been the product of reasonable men’s judgment. Sanford wrote:
For present purposes we may and do assume that freedom of speech and of the press -- which are protected by the First Amendment from abridgment by Congress -- are among the fundamental person rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States ....
It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom ....
That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt morals, incite to crime, or disturb the public peace, is not open to question ....
In short, this freedom does not deprive a State of the primary and essential right of self-preservation ....
Justice Holmes, joined by Justice Brandeis, dissented. Holmes wrote:
... The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word “liberty” as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than it allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States. If I am right then I think that the criterion sanctioned by the full court in Schenck v. United States ... applies ....






393 U.S. 503, 89 S.Ct. 733, No. 21

Argued November 12, 1968

Decided February 24, 1969

In December 1965, a group of adults and students held a meeting at the Eckhardt home in Des Moines to discuss the publicizing of their objections to the Vietnam War. It was determined at the meeting that they would show their support for a truce by wearing black armbands during the holiday season. The Tinker and Eckhardt families had participated before in similar activities and decided to again join the protest.
Fifteen-year-olds John F. Tinker (a student at North High School) and Christopher Eckhardt (a student at Roosevelt High School) lived in Des Moines, Iowa. Mary Beth Tinker, John's sister, was a thirteen-year-old junior high school student. When the principals of their schools became aware of the plan to wear the armbands, they adopted a policy that any student joining the protest would be asked to remove it. If the student refused, the student would be suspended from school until he or she returned without the armband. The petitioners were all aware of the policy that the school administration adopted. This policy was deemed necessary in part because a former student had been killed in Vietnam and some of his friends, who were still in school, might be upset by the demonstration. In addition, it was rumored that other students planned to wear arm bands of other colors if the black bands were worn.
On December 16, Mary Beth and Christopher wore two-inch wide black armbands to their schools. John wore his armband to school on December 17. There was evidence that the armbands caused comments, warnings, and poking of fun at the demonstrating students, and a warning by one student that the protestors had better let him alone. Further evidence showed that one teacher had his lesson "wrecked" because of the demonstration and that the armbands diverted students' minds from their regular lessons. Testimony for the school indicated that no disturbances or disorders on the school premises occurred and that the demonstrating students merely went to their classes with a band of black cloth, not more than two inches wide, around their upper arm. They caused discussion outside of the classrooms, but no interference with work and no disorder.
Abiding by the policy, the principals sent the three students home from school, telling them they could come back if they would do so without the armbands. None of the students returned to their respective schools until after New Year's Day, the end of the protest period that had been set at the meeting.

The fathers of the three students filed a complaint with the United States District Court, asking for an injunction to restrain the school officials and board of directors from disciplining the petitioners. They also sought nominal damages. The District Court dismissed the complaint in an evidentiary hearing, citing the constitutionality of the school authorities' action on the ground that it was a reasonable response to prevent disturbance of school discipline. The court referred to, but did not follow, the Fifth Circuit's ruling in Burnside v. Byars, which states that wearing of symbols cannot be prohibited unless it "materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school."
The petitioners then appealed the case to the Eighth Circuit Court of Appeals, which considered the case en banc.* This court was equally divided between the parties, which allowed the District Court's decision to stand. The case was then appealed to the United States Supreme Court.

  • ISSUE: Are passive demonstrations, such as wearing armbands at school to protest a war, protected under the First and Fourteenth Amendments' freedom of speech?

* en banc -- literally, on the bench; the court, with all qualified judges sitting in a case, particularly an appellate court.



Justice Fortas wrote the seven-to-two majority opinion in favor of the petitioner. He acknowledged that the District Court recognized that wearing an armband to express views is a symbolic act that is within the Free Speech Clause of the First Amendment. Fortas went on to explain that the action in this case -- the wearing of arm bands -- was "closely akin to ‘pure speech,’" an action which the Supreme Court has repeatedly held falls under First Amendment protection. Justice Fortas then declared, in words that are now famous in law:
First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the school-house gate (emphasis added). This has been the unmistakable holding of this Court for almost 50 years ....
On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools .... Our problem lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities ....
In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," the prohibition cannot be sustained ....

In the present case, the District Court made no such finding, and our independent examination of the record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of other students ....
It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. The record shows that students in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of arm bands did not extend to these.
In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views ....
The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. The classroom is peculiarly the ‘marketplace of ideas.’ The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues…. ’” ....
Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principal but not in fact. Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots ....
As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression.
Justice Stewart wrote a concurring opinion, stating that he could not share the Court's assumption that First Amendment rights of children are the same as those of adults. He quoted Ginsberg v. New York (1968), in which the Court stated that a child does not have "full capacity for individual choice ...."
Justice Byron White also concurred, but indicated that there is a distinction between communicating by words and by an act "which sufficiently impinges on some valid state interest."
Justice Black dissented, questioning the right of students and teachers to use schools "at their whim as a platform for the exercise of free speech ...." He begins:
The Court's holding in this case ushers in what I deem to be an entirely new era in which the power to control pupils by the elected "officials of state supported public schools ..." in the United States is in ultimate effect transferred to the Supreme Court. The Court brought this particular case here on a petition for certiorari urging that the First and Fourteenth Amendments protect the right of school pupils to express their political views all the way "from kindergarten through high school."….
Black continued by disagreeing with Justice Fortas' conclusion that the Bill of Rights does not stop at the schoolhouse gate:
I deny, therefore, that it has been the "unmistakable holding of this Court for almost 50 years" that "students" and "teachers" take with them into the "schoolhouse gate" constitutional rights to "freedom of speech or expression.” ... The truth is that a teacher of kindergarten, grammar school, or high school pupils no more carries into a school with him a complete right to freedom of speech and expression than an anti-Catholic or anti-Semite carries with him a complete freedom of speech and religion into a Catholic church or Jewish synagogue. Nor does a person carry with him into the United States Senate or House, or into the Supreme Court, or any other court, a complete constitutional right to go into those places contrary to their rules and speak his mind on any subject he pleases. It is a myth to say that any person has a constitutional right to say what he pleases, where he pleases, and when he pleases ....
Justice Black stated he had always believed that the Court does not have the right to censor speech based on content. In this case, however, he referred to testimony at the trial that the arm bands did cause comments and interruptions of at least one class, along with diverting students' minds from their regular lessons. He continued:
This case, therefore, wholly without constitutional reasons in my judgment, subjects all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students. I, for one, am not fully persuaded that school pupils are wise enough ... to run the 23,390 public school systems in our 50 states. I wish, therefore, wholly to disclaim any purpose on my part to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students. I dissent.
Justice Harlan also dissented, stating that he would "cast upon those complaining the burden of showing that a particular school measure was motivated by other than legitimate school concerns -- for example, a desire to prohibit the expression of an unpopular point of view ...." He concluded by stating, "Finding nothing in this record which impugns the good faith of respondents in promulgating the armband regulation, I would affirm the judgment below."
The Supreme Court therefore reversed and remanded for further proceedings the case.

323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194

Argued October 11, 1944

Decided December 18, 1944

Japanese emigration to the United States was legalized by the Japanese government in 1885, and by 1890 they began to arrive in significant numbers. There was an initial welcome for these new Asian immigrants, but this soon changed to hostility and discrimination. The American laborers saw them as rivals for jobs, and building trades and other occupations were closed to the Japanese.

The Anti-Japanese movement escalated in 1905 when the Asiatic Exclusion League was set up. This movement helped pass laws in California, which prohibited land ownership by Japanese aliens but did permit leasing of land. For the growing number of Issei (Japanese immigrants) who had American-born children, they simply transferred title to their citizen children.
Throughout the 1930's the Nisei (first generation native-born Japanese) dreaded the possibility of a war between the United States and Japan as relations between the two countries deteriorated steadily. Japan, at war with China since 1937, continued to gain territory there. In 1941 the Japanese moved into Indochina (now Vietnam) and threatened the Dutch East Indies. The United States stopped almost all trade with Japan.
By mid 1941 the Japanese ambassador to the United States, Kichisaburo Nomura, and Secretary of State Cordell Hull had been negotiating for months. In November Nomura was joined in Washington, D.C. by a special Japanese ambassador, but the talks were still unsuccessful. The United States pressured Japan to withdraw from China in return for resumption of trade, but Japan would not agree. Discussions continued as the Japanese planned to attack Hawaii.
The Japanese bombed Pearl Harbor, Hawaii, on December 7, 1941, and after Japanese conquests in the Pacific, near hysteria gripped the West Coast of the United States. Many people feared that Japan would attack there. At the time of the bombing there were approximately 112,000 persons of Japanese descent living on the West Coast (about 70,000 of these were American citizens).
In March 1942, Congress passed legislation empowering President Franklin D. Roosevelt by executive order and cabinet or military orders under his direction to restrict movement or residence in any designated military area or war zone where he felt that such restriction was necessary to national security. Because of growing fear that an invasion of the West Coast was imminent and lurking suspicions about the loyalty of Japanese Americans living along the coast, President Roosevelt issued Executive Order #9066. This order declared that “the successful prosecution of the war requires every possible protection against espionage and against sabotage to national defense material, national defense premises, and national defense utilities.” The order came to be applied increasingly to people of Japanese ancestry, citizen and alien alike. The restrictions ranged from the imposition of curfews to forced removal to “relocation centers” outside Military Area I.

At the time of the announcement of the exclusion order, Fred Korematsu was in his early twenties. He was of Japanese ancestry but was born in Oakland, California. A graduate of Oakland High School, Korematsu had tried twice to enlist in the army but was turned down for a physical disability. Before and after the bombing of Pearl Harbor, Fred worked in defense plants in the San Francisco area. He had no criminal record and had been a loyal, law-abiding American citizen. Had he obeyed the order, he would have been separated from his Caucasian girl friend, so rather than submit to confinement he ran away. Posing as Chinese, Korematsu took a job in a trailer park.
Arrested in May, Korematsu was tried in a federal district court. He challenged the order as it applied to him, a loyal citizen of the United States, but he was found guilty of knowingly violating the Civilian Exclusion Order. Korematsu appealed the district court’s decision to the U. S. Circuit Court, but his conviction was sustained. He was confined in a relocation center in Utah while he appealed his case to the United States Supreme Court.

  • ISSUE: Were Fred Korematsu’s Fourteenth Amendment rights to Equal Protection of the Law violated by the civilian exclusion order?



Justice Hugo Black wrote for the six-member majority, which sustained the legality of the exclusion order and found against Fred Korematsu. The Court had recently upheld the government’s position in a similar case, Hirabayashi v. United States (1943), which concerned the legality of a curfew order directed at persons of Japanese ancestry living on the West Coast. Justice Black wrote:
... We uphold the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack ... The military authorities charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in threatened areas.
In the Hirabayashi case the Court held that “we cannot reject as unfounded the judgment of the military authorities and of Congress....” Likewise, in the Korematsu case the Court declared, “We are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast area at the time they did.”
Explaining why it was necessary to place this entire group under such unusual hardships, Black stated:
Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group ... That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.
Justice Black indicated that the question in this case was solely one of determining military dangers and not of racial prejudice. He wrote:
... Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders--as inevitably it must--determined that they should have the power to do just this....
Justice Frankfurter wrote a concurring opinion, in which he stated:
The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is “the power to wage war successfully.” ... Therefore, the validity of action under the war power must be judged wholly in the context of war.... To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours.
Justice Roberts wrote a dissenting opinion, stating, “I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights.” Roberts continued:
... [I]t is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States....
Justice Murphy also dissented and called the matter a “legalization of racism.” He objected particularly on the grounds that the Japanese Americans affected had been deprived of “equal protection of the law as guaranteed by the Fifth Amendment.” Murphy wrote:
This exclusion of “all persons of Japanese ancestry, both alien and non-alien,” from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over “the very brink of constitutional power” and falls into the ugly abyss of racism.
An additional dissent was written by Justice Jackson:
Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof

he is a citizen, near the place where he was born, and where all his life he has lived.

A citizen’s presence in the locality ... was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four—the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American born ancestors, convicted of treason but out on parole—only Korematsu’s presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock.

FOLLOW-UP: On August 10, 1988, President Reagan signed the Civil Liberties Act, legislation extending to Japanese-Americans who had been held in the wartime detention camps a formal apology “on behalf of the nation.” The Act also promised the estimated 60,000 surviving detainees reparations in the amount of $20,000 each. In March 1997, nearly a decade after President Reagan and Congress approved it, a little known portion of the Civil Liberties Act was finally implemented. The Civil Liberties Public Education Fund announced that it had allocated $2.7 million to 100 organizations or individuals in twenty states to develop educational programs about the World War II internment of the Japanese-Americans. Fred Korematsu died in 2005.

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