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Constitutional Law II
University of Mississippi School of Law
Rychlak, Ronald J.

Constitutional Law II  Prof. Rychlak  Spring 2012
Documents of importance for understanding Constitutional Law:
                -Declaration of Independence –
                -Constitution – Establishment of the Government
                -Bill of Rights – 8 or 10 initial amendments to the Constitution
-The 14th Amendment was one of the three amendments to the Constitution adopted after the Civil War to guarantee black rights.  The 13th Amendment abolished slavery, the 14th granted citizenship to people once enslaved, and the 15th guaranteed black men the right to vote.
-Civil War was the game changer – 14th Amendment protects the citizens of States the same as the Federal Government. (prior to the 14th states could make laws that were against the constitution, states could compel defendants to testify against themselves or refuse to give them an attorney – the S. Ct. found that while the federal government could not do it that way the states were free to do as they pleased. The 14th Amendment, as interpreted by the Warren Ct. in the 1960s finds that states should be treated the same as the Federal Government. )
Theories of Interpretation
                -Original Intent
-Living Breathing:
Seditious Libel (p. 1018)-
John Peter Zenger in 1735 – criticizes British leader in control, Sir William Cosby
-Jury is basically picked by the prosecution and they are told this is the crime and he is guilty of the crime but the jury decides to acquit anyway.
-Sets out a path for the rights of free speech in the First Amendment
First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.
                -argument that this really only restricts prior restraint, and that not all speech is protected.
Alienation and Sedition Act is passed by Congress after the ratification of the First Amendment. (while the British abandoned Seditious Libel and the First Amendment is in place, this law is still passed and looks similar to the British Law.) –This leads to an argument that the First Amendment actually allows for a time and situation in which speech should be restricted and that because the same people that passed the First Amendment within 10 years of its adoption passed this law that they originally had the intent that certain types of speech could be restricted.
Why do we protect Free Speech?
                -Does this allow for speech without consequences? No because even though while the government may not be able to punish you there are other that will take action against you, i.e. private employers could fire you, private persons could respond against you, etc… (Don Imus, Dixie Chicks,…)
                àMarketplace of Ideas
                -Self-governance rationale – can’t shut down an argument because it is something we do not like.  We can't have the truth if you are unwilling to listen to all the voices, sometimes even the wrong ideas can lead to the truth.
                -The “self-fulfillment” rationale – to deny yourself the ability to explore and express ideas is to deny yourself the ability to grown as an individual as well.
Regulating Speech:
General Distinction
1. Content-based v. content neutral
2. Viewpoint discrimination v. non-viewpoint discrimination
3. value of the speech
4. prior restraint v. other regulation of speech
The Alien and Sedition Acts (1789) – President John Adams – from 1798-1900 the French were considered terrorists.  This Act required immigrants to be in the US for 14 years before becoming a citizen, plus the president (executive branch) has the authority to expel anyone he deems necessary. Moreover, false, scandalous, and seditious writings against the government could be punished.  Vice-president Jefferson did not like it and authored Kentucky resolutions against it, James Madison also wrote states resolutions against it.  Jefferson let the acts expire. [Raising Cane-a fight in 1798 over the Alien and Sedition Acts]  
Shaffer v. United States (1919) [p.1029] Court adopts bad tendency test-
Masses Publishing Co. v. Patten (1917) [p.1030] -postmaster refused to mail magazine because of content and said it was against the Espionage Act of 1917
-Express Intent Test- look to the intent of the speaker
Schenck v. United States (1919) [p. 1032] -involves conviction of a prominent socialite who attempted to distribute flyers to American servicemen recently drafted to fight in world war I
-charged with conspiracy to violate the espionage act.  Court sets forth a new test:
— Clear and Present Danger- he we look to what to the words say (not to the intent of the speaker) and if the words present a clear and present danger. If words present a danger to create imminent lawless behavior.
                -Justice Holmes created this test and then tried to tweak it in his dissent of Abrams v. United States.  People look at this test as a companion to the tendency test.
Frohwerk v. United States (1919) [p.1036]  
Debs v. United States (1919) [p.1037] -Debs, a presidential candidate,  in trouble because he said you are fit for something more than cannon fodder.
-tendency?  No, court uses Clear and Present Danger Test and finds that his statements do create a clear and present danger and the court upholds the conviction of a presidential candidate.
Abrams v. United States (1919) [p. 1038] -Russian émigrés charged with espionage under Espionage Act provisions.  Charged with conspiracy to incite, provoke or encourage resistance to the US and a violation of the provision prohibiting conspiracy to urge curtailment of the

to “prosecutions “ – covers civil suits too, presumably
-Must be true and published for good ends-NYT v. Sullivan(1964) says either is enough under 1A
Free-Speech cases
-Claim wins:
-Hickey (Miss. 1844), Knox (Miss. 1931), Sullens (Miss. 1941), Evers (Miss. 1961), Thornton (Miss. 1981), Ferguson (Miss. 1984), McGlothin (Miss. 1990), Wilkerson (Miss. 2004)
-Claim Loses
                -Taylor/Cummings/Benoit (Miss. 1943), Boland (Miss. 2008), Osborne (Miss. 2009)
Hickey 12 Miss. 751
-Talking smack about a judge might be a defamation, but without more it isn’t contempt of court.
                -“Our constitution has declared that ‘every citizen may freely speak, write and publish his…”
Knox 135 So. 206
-Just making a list of prospective jurors not contempt of court, since no likelihood of actually impeding administration of justice, though its not really a good idea, since it suggests those people are baised
-Right to disagree with Corpus Juris, 135 So. At 207:
Sullens 4 So. 2d 356
-Again requires that contempt of court actually be calculated to impede administration of justice
-p. 362: “Freedom of speech includes the freedom to speak unwisdom or even heresy.  Others may despise that speech but they may not despise the freedom.  The citizen has a constitutional right to be vulgar.”
-Despite “freedom to speak…heresy” line, “libel, treason, or blasphemy” listed as things  free speech doesn’t protect later on the same page.
                -Burstyn (US)
Taylor, Cummings, Benoit 11 So. 2d 663, 683, 689 rev’d 319 U.S. 583
-3-3 decision on Jehovah’s Witnesses prosecuted
Evers 11 So.2d 653
-Clyde Kennard tries to be the James Meredith of Southern Miss, but framed for burglary
-Miss S. Ct. – not contempt of court, since commentary on past event doesn’t hurt or hinder….
Thornton 41 So.2d 1348
-No prior restraint of Jim Kitchens – now Justice Kitchens – for conflict of interest in civil trial somehow related to murder that happened when he was a DA
                -If it’s a conflict of interest, file a bar complaint
-Robertson opinion sounds like it began as a concurrence – no facts stated, and says “we concur” – does that mean concur with the trial court?
-Nice little ode to the role of the layer
-Bowling-Hawkins-Dan Lee dissent: this conflict of interest is pretty clear