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Constitutional Law II
St. Johns University School of Law
Shea, Thomas F.

Constitutional Law II – Spring 2009
Professor Thomas Shea
St. John’s University School of Law
Book: Constitutional Law

1st Amend: Federal – Congress shall make no law abridging the freedom of speech
14th Amend: State – Due Process Clause expanded it

Purpose: Protect speech critical of government


Clear and Present Danger Test
1.      Directed to inciting or producing imminent lawless action
Requires call to action – Not just ideas
Urged to DO not just urged to BELIEVE
2.      Clear and Present Danger that action will occur
–          Success doesn’t matter
–          Standard =
o       Circumstances in which it was made
At the time the speech was articulated
o       High probability that listeners will break the law
Likely to incite such action
Not just teaching, but advocating
o       Seriousness of evil
More serious evil, less imminent it can be
Whether the gravity of the evil, discounted by its improbability, justifies such an invasion of free speech as is necessary to avoid the danger the govt is trying to prevent

–          Intent of speaker
–          Nature of the speech
–          ID of speaker
–          Audience
–          Social or political climate

Group Membership
–          Membership is not enough
–          Need to actively join in the ideas

Overbroad Statutes
–          If statutes restricts more speech than constitutionally permissible -> No one can be convicted under it
–          Even if C&P Danger

WWI Cases
Urging vs. Admiring
Schenk: Affirmed convictions under Espionage Act – making it a crime to cause insubordination in the armed forces. Leaflets mailed to men eligible to draft urging them to “assert their rights” and that conscription was wrong. Urging to not go.

Abrams: Affirmed convictions under Espionage Act. Ds mailed leaflets urging workers not to produce bullets that would be used against the Russians.

Masses Publishing: Reversed conviction. D published pamphlet admiring conscientious objectors and praised people who refused the draft. However, didn’t call for imminent lawless action.

Communist Cases
Gitlow: Affirmed conviction under NY Criminal Anarchy law – Prohibited advocacy of the violent overthrow of the govt. D printed manifesto that urged mass industrial revolts and political strikes to overthrow democratic govt.
–          Overbroad statute, but narrowed in jury charge
o       Statute: Cant advocate a duty to overthrow the govt. (Didn’t require advocacy of action)
o       Jury Charge: Mere statement that unlawful acts might accomplish overthrow of govt would be insufficient, unless there was a teaching, advising and advocacy of employing such unlawful acts for the purpose of overthrowing govt
–          Legislation defines what words can create C&P Danger for action
o       Later changed: C&P danger test must be determined as of the time that the speech was articulated

Smith Act Prosecutions         
Dennis: Affirmed convictions under Smith Act – Prohibited acting or conspiring to act to teach or advocate the duty or propriety of overthrowing the govt by force or violence. Overbroad statute, but narrowed in jury charge
–          Jury charge: Couldn’t convict if D did no more than pursue discussion and advocacy in the realm of ideas
–          Test: Whether the gravity of the evil, discounted by its improbability, justifies such an invasion of free speech as is necessary to avoid the danger the govt is trying to prevent

Retreat from Dennis
Yates: Set aside convictions under Smith Act. Statute and jury charge didn’t give adequate instructions on the distinction between advocacy of an abstract doctrine and at advocacy directed at promoting unlawful action

Scales: Affirmed conviction under membership clause of Smith Act – Felony to knowingly become a member of a group that advocates the overthrow of the govt by force or violence
–          Requires clear proof D intended to accomplish aims of organization by violence
–          Advocacy of future action for violent overthrow = enough for immediate

Noto: Set aside conviction under membership clause of Smith Act. Insufficient evidence of advocacy of action. Can’t just be based on membership.

Modern Incitement Test
Brandenberg: Reversed conviction of KKK leader. Didn’t distinguish between advocacy from incitement to imminent lawless action. D convicted under un-C statute, reversed no matter what.

dards would find that the work, taken as a whole, appeals to the prurient interest
Community = Local jury
Prurient = Desire for sexually stimulating material
2.      Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
Patently = Obviously/Clearly offensive
Sexual Conduct = Defined by state law
3.      Whether the work, taken as a whole, lacks serious artistic, political or scientific value
Rational person standard. Not limited to community standards

–          May prohibit regardless of obscenity
–          Interests:
o       Preventing commercial sexual exploitation of children
o       Little value
–          Distribution = related to sexual abuse of children
–          Advertising and selling provides economic incentive
–          Also not protected in the home

Ferber: Upheld criminalizing possession of child pornography. D sold films depicting boys masturbating.

Ashcroft: Ban on virtual child pornography (images that appear to be minor, but not real kids) un-C. Overbroad bc proscribed material that wasn’t child pornography and not obscene.


Not obscene, but sexually explicit

Test = Content-Neutral
–          Substantial Interest sufficiently narrowly drawn
o       Secondary effects
o       Reducing crime
–          Time Place Manner restriction
o       I.e. Zoning

Substantial Govt Interest
–          To protect and preserve city’s neighborhoods

Renton: Upheld zoning ordinance that attempted to concentrate adult theaters. Ordinance not aimed at content of films, but on secondary effects of such theaters on the community. Content neutral law.