Justice: Marshall

Year: 1803

Summary: Marbury sought writ of mandamus to force Sec. of State to deliver commission for judgeship.  Sec. 13 of Judiciary Act of 1789 authorized SC to issue writs of mandamus under original jurisdiction.

Holding:

• Sec. 13 is unconstitutional b/c it violates Article III sec 2.
  • While Marshall could read Judiciary Act to be consistent w/ Art. III under exceptions clause, he ignored it.
• SC has right to decide all cases and controversies w/ the exception of:
  • constitutionally vested discretionary powers
  • national issues (those that do not affect individual rights)
  •   controversies political in nature
  • officer exercising will of the president (Madison was not excercising will of president - duty to deliver commission mandated by law; not president)
• At the root, the decision is a policy decision, not based on strong legal arguments:
  • Marshall saw that someone needed to decided Constitutional issues and w/ the Court as the weakest branch (Congress had power of purse and Exec had power of sword; people still wary of the king so didn't want omnipotent Exec) he gave it to Court
• Although Marshall argued that judicial review was an inevitable conclusion, it really wasn't b/c
  
  • Congress can be kept in check by elections, new laws
  • all branches are constrained by oath of office to uphold constitution
  • Exec kept in check by impeachment; Congress can chose not to appropriate funds if they don't agree
    

Justice: Warren

Year: 1958

Summary: AK argued it didn't have to follow desegregation orders in Brown; only had to follow constitution.  

Holding: Court held that it has final say on constitution, basing decision on Marbury.  When court makes a constitutional decision, everyone (including states) is bound by Court's interpretation b/c of Art VI Supremacy Clause.

BUT the decision was not inevitable and was decided for practical reasons: Court wanted to avoid possibility of armed conflict in schools.

Justice: Burger

Year: 1974

Summary: Special Prosecutor Jworski hired to represent US during Watergate scandal.  Subpoenaed tapes from Nixon but Nixon wouldn't give them up, claiming executive privilege.

Holding: Each branch must initially interpret the constitution b/c of oath and their interpretations are due great respect, but in the end it is up to the Court to say what the law is (Marbury)

Justice: Brennan

Year: 1962

Summary: TN voters claimed that voter apportionment violated equal protection because districts hadn't been redrawn since 1901 and there had been substantial growth and redistribution since then.

Holding: Case does not present a non-justiciable issue b/c it is not a political question.  Political questions usually deal with federal matters (sometimes state, but not here) and are subject to 6 qualifications:

1. Textually demonstrable constitutional commitment of the issue to another branch (note: issue, not power - see Powell)

2. Lack of judicially discoverable and manageable standards for resolving the issues.

3. Impossibility of deciding w/out an initial policy determination of a kind clearly for nonjudicial discretion

4. Impossibility of a judicial decision w/o expressing a lack of respect for a coordinate branch

5. Unusual need for finality in the other branch's decision

6. Potential embarrassment (for the US) of multiple decisions

Justice: Warren

Year: 1969

Summary: House wouldn't seat Powell b/c it found he had misused funds.  Powell said House couldn't reject him based on those qualifications. 

Holding: Congress can determine whether qualifications are met; not what qualifications are.  Important b/c it narrows what textual commitment of an issue to a branch means and distinguishes between issue and power.

Justice: Chase

Year: 1868/9

Summary: Post-Civil War, Congress imposed military gov't on a large # of former Confederate states under Reconstruction Act.  McC was a newspaper editor, taken into custody for publishing incendiary articles.  Filed habeas corpus proceeding under Act of Congress of 1867 which authorized federal courts to grant habeas corpus to anyone restrained "in violation of the constitution" and granted appeals to the SC - lost.  Appealed to SC: arguments heard but before decision granted, Congress passed Act of 1868 which repealed habeas corpus jurisdiction.

 Holding: Constitution grants all citizens a right to habeas corpus but doesn't say how to get it.  Judiciary Act of 1789 structured the federal courts - didn't say anything about habeas corpus so its as though jurisdiction is negated by not being included positively.  However, Act of 1867 grants federal courts original jurisdiction and appellate jurisdiction to SC (previously only states had habeas corpus).  Then 1868 Act repeals portion of 1867 Act granting appellate jurisdiction to SC but leaves original jurisdiction in fed courts.  Congress can do this b/c of Marbury which allows Congress to limit appellate jurisdiction under the exceptions clause.  Although Congress used exceptions clause to get specific result re: McC, Court held it will not inquire into Congress' motives.  Raises issue about how broad Congress' exceptions power is and what pros/cons of power are.

************Justice: Black

Year: 1952 

Summary: Middle of Korean War, a dispute arose between the steel companies and their EEs over terms of new collective bargaining agreement.  President issued executive order ordering Sec of Commerce Sawyer to take over the mills to prevent a strike. Afterwards, President reported action to Congress and said he'd respect their decision but they did not make one.

Holding: President doesn't have power to seize steel mills b/c that consitutes making a law and he only has power to execute laws.  If he's seizing, it must come from an act of Congress or from some other power granted by the Constitution.  Even though Congress was silent, still a separation of powers issue b/c separation of powers can't be waived (not just about the division of powers - steel workers still cared and purpose of separation of powers is to protect the people).

Jackson concurrence (3 levels of executive encroachment on congress):

• Jackson is not as formalistic and text-bound as Black but does see that if Congress fails to do its job, Court will grant the power to the Pres
  

1. President acts pursuant to an express or implied authorization of Congress

• Authority is at a maximum - combination of executive power and legislative power
• Burden of persuasion rests heavily on anyone attacking the act

2. President acts in absence of either a congressional grant or denial of authority

• Zone of twighlight in which Pres and Congress may have concurrent authority
• Actions may/may not be legitimate 

3. President takes measures incompatible with the expressed or implied will of Congress

• President only has his own constituional powers minus Congress' constitutional power over the matter
• Court can award power to Pres but risks disrupting power equilibrium b/c in order to do so, Court has to take power from Congress
• Note: while Jackson and Black put Truman's action in category 2, it could fall under 3 b/c Pres acted in opposition to procedure outlined by Congress for seizure of private prop

Justice: Rehnquist

Year: 1981

Summary: President issues order freezing Iranian assets after Iranian Hostage Crisis.  Dames and Moore sue saying Executive Order freezing assets can't be issued b/c it oversteps presidential powers & that IEEPA isn't governing b/c it covers transactions; not claims.

Holding:  Court said Pres had authority even though there was no Constitutional or statutory grant b/c this was a foreign affairs issue.

• Follows Jackson's view of Youngstown but turns 3-tiers into a spectrum
• Not overruling Youngstown b/c makes foreign affairs distinction - but otherwise gives no explanation for moving away from Youngstown

Justice: Burger

Year: 1983

Summary: Congress passed a statute saying AG could suspend deportation of aliens subject to House's veto.  AG suspended Chadha's deportation and House vetoed. Federal gov't has grown enormously and Congress has a need to delegate.  Can choose between delegating every task, trying to control appointments, or delegating broad authority while retaining ultimate control (compromise made here)

Holding:  Court held one-house veto is unconstitutional b/c it's in violation of presentment clause (Art 1 Sec 7) and bicameralism requirement (Art 1 Sec 7)

• Although the law originally met presentment and bicameralism requirements when passed, Burger finds the one-house veto to be a legislative function b/c it effects individual rights and relationships of people (characterization is crazy b/c judicial acts and executive acts affect individual rights too) 
• Burger does not address the issue from a separation of powers standpoint b/c he sees the act as a legislative one so the problem is that Congress has not followed the proper procedure
  • Formalistic approach doesn't care that overturning statute leads to inefficiency - inefficiency is built into the constitution and is a check on power

White (functional) dissent: Powers can come together to get things done efficiently.  Constitution should be interpreted to allow flexibility and court should be deferential to legislative/executive compromise.  Harm to be avoided isn't comingling; it's branches becoming too powerful.  This ruling overturns 200 statutes and that sucks.

Justice: Burger

Year: 1986

Summary: Massive deficits so Congress passes bill to reduce deficits.  Estimates from OMB (executive) and CBO (congressional) go to Comptroller General (CG) evaluates which budget is best, cuts across the board as necessary, then presents to Pres who is required to enforce it.  Subject to removal by Congress but no CG has ever been removed.

Holding: Removal power given to Congress is a violation of separation of power b/c Congress has sole power to remove and executive officer shouldn't feel beholden to Congress.

• CG is executive b/c of nature of his responsibilities
• doesn't matter that Congress has never exercised removal (formalistic view)
• ducks independent agencies question

White dissent: threat of removal isn't real; shouldn't play a role in decision

Justice: Rehnquist

Year: 1988

Summary: Independent counsel provision of Ethics in Gov't Act passed in 1978 which authorized appointment of independent counsel to investigate and prosecute certain high-ranking officials for violations of federal criminal laws.  Court appoints counsel and Act grants counsel full authority to prosecute.  Question is whether this position is constitutional when counsel can only be fired by AG for good cause.

Holding:  (functional approach - firing for good cause is good enough and Congress didn't take control from executive; just limited executive's control)

• Under Art II Sec 2, Congress can delegate appointment of inferior officers to other branches (inter-branch appt is ok)
• No violation of separation of powers b/c Executive still has control - AG can fire for good cause; Pres can exercise will thru AG

Scalia dissent: (formalist) prosecutions are executive power and the act deprives the Pres of control, therefore it's unconstitutional.  And the indpendent counsel is not an inferior officer.

Justice: Story

Year: 1816

Issue: Is section 25 of the Judiciary Act, which gives the SC appellate jurisdiction to hear cases from the highest state courts which reject federal law, constitutional?

Holding: Section 25 is consitutional.  Under Art III, judicial power extends to all cases under federal law.  Art I Sec. 10 limits state sovereignty.  Art VI (Supremacy Clause) holds that federal law is supreme and state judges are bound to it. Possible problem of enforcement b/c VA had ignored SC's 1813 decision.  Story just wrote a logical decision and hoped VA would follow it (they did).

Policy arguments:

• Uniformity 
  • counter: is uniformity necessary?
• Makes assumptions about state judges - may be hostile to adverse federal law
  • counter: assumes federal judges are less hostile and more knowledgable  

Justice: Marshall

Year: 1819

Issue: Are there implied powers in the constitution which would allow the federal gov't to create a bank? If so, can the state of MD tax such bank?

Holding: Yes - "it is a constitution we are expounding." Marshall viewed the constitution as flexible, giving federal gov't both express and implied powers. Under failed Art. of Confed, any power not expressly granted to fed went to state and fed gov't couldn't operate - Marshall didn't want that happening again. Developed test for what Congress can do:

** If the ends are legitimate and the means are plainly adapted to those ends, then Congress may act (so find an enumerated power, make sure the means are plainly adapted, and not constitutionally prohibited or a front for an illegitimate end)**

* If ends are illegitimate, it becomes the PAINFUL duty of the court to step in

Taxation:

• Fed given the power to create bank thru implied power 
• Taxation is the power to destroy 
• Creation and destruction are inconsistent powers so fed wins 
  • (state says it can be trusted not to destroy, but Marshall says citizens of one state can't be trusted not to abuse authority against others if it's in their interest)

Justice: Marshall

Year: 1824

Issue: Does the federal statute, granting licenses to ships to trade in various ports throughout the US, trump the state law, which granted a monopoly to operate steamboats to the steamboat inventor & his licensee (Fulton & Ogden)

Holding: Yes.  Constitution gives Congress the power to regulate among the several states.  Court interprets "among" to mean "between" (affecting multiple states)

• The only limits to Congress' power are those in the Constitution (political limits; i.e. being voted out)
• Marshall says here that Congress' motives don't matter.  This is NOT what he said in McCulloch, where he said that bad pretext can invalidate a law 

Justice: Day

Year: 1918

Issue: Does Congress have the power to ban the interstate sale of goods manufactured by children under the Commerce Clause?  Congress doesn't have the power to regulate instate activity (manufacturing) so they try to get at it by regulating interstate transfer.

Holding: Congress has exceeded the Commerce Clause power because it is effectively regulating an in-state activity (production).

• Regulating morality is reserved for the states, along with regulating wages/hours.
• Marshall probably would have looked into motive b/c under McCulloch, a legitimate law can't be used under a bad prextext and when it is, court has power to inquire into motives.
• But Day refuses to look into motives, so adopts the effect test instead.

Holmes dissent: Congress can ban the activity w/o even looking into motives.  Once the activity steps into interstate commerce, Congress has power to regulate.  This is the broadest approach; sounds like Marshall in Gibbons.

Justice: Stone

Year: 1941

Issue: Does Congress have the power to regulate the interstate shipment of goods produced in a manner that violate standards prescribed by Congress?  Does it matter that Congress' motives (preventing unfair competition; regulating moral matters) don't fall within this power?

Holding: Congress has the power to regulate.  Holmes' dissenting view from Dagenhart becomes the majority view - motives don't matter; Congress has power to regulate goods once they enter interstate commerce.  A workable rule would look to motives and economic effects but court didn't have the capacity to make such a rule.  So the Darby court punted to Congress to create such a rule

• Limits on Congress' power are still only those prescribed by the constitution
• Marshall in McCulloch would have said there was no pretext and looked for a legitimate end.  But McCulloch doesn't give us a legitimate end test so who knows?
• Day in Dagenhart would have struck down.

Justice: Fuller

Year: 1895

Issue: Can Congress stop the biggest suger refinery in the US from purchasing 4 more suger refineries, which would allow Knight to control 98% of all US refineries?

Holding: Congress cannot stop the purchase because it can't regulate refineries that operate w/in a state.  Manufacturing of sugar is all in-state (like production argument in Hammer)

Test: Directness test

• pro: it's a clear test.  yay!
• con: doesn't look at effect of activity.  Even indirect activities can be bad...

Justice: Hughes

Year: 1914

Issue: Can Congress regulate the pricing of intrastate railroad shipping?

Holding: Yes - may regulate even local activities which substaintially burden interstate activities

Test: substantial economics effects test

• predictive, realist approach
• objective b/c it doesn't rely on motive but pragmatic b/c it relies on burden on commerce
  • kind of looks at motive b/c if there's no burden, you have to wonder why congress is regulating
• requires looking into the practical effects

Justice: Holmes

Year: 1905

Issue: Can Congress establish price-fixing for butchers against arguments that killing cows is an in-state activity?

Holding: Yes.  Court holds that since cows are raised to be killed and sent into stream of commerce, price-fixing can be established under Commerce Clause.

Test: stream of commerce test

Pros

• looks at where the goods came from and where they're going
• objective and formal

Cons

• results aren't based on the policies behind the commerce clause; just on where the goods come from

• If applied to Shreveport, Congress wouldn't be able to regulate RR b/c it doesn't ever enter stream of commerce.
• Not clear what would happen under Knight case.

Justice: Harlan

Year: 1903

Issue: Can Congress regulate the buying/selling of lottery tickets?

Holding: Yes.  Congress may regulate harmful or evil items.

Dissent: (Fuller) Cited Marshall in McCulloch, saying law was a pretext to regulate morals.

Justice: Jackson

Year: 1942

Issue: Does Congress have the power to regulate the amount of wheat farmers can grow for personal comsumption?  Farmer in OH (Filburn) had grown more than statute allowed; used it for his own consumption.  Penalized for overgrowth and challenged the law on the grounds gov't was trying to regulate commerce.

Holding: Yes, because the amount of wheat individual farmers grow has a substantial effect on interstate commerce in the aggregate.

• Law would fail under all previous tests: no direct relation, no burden, no stream of commerce
• Court rejects mechanical approach of old cases
• Congress can now regulate b/c of aggregate effect on economy
  • Goes to Congress' purpose - wheat market is in decline and there is a national concern regarding the national market of wheat
  • States can't be trusted to regulate b/c they'll only do what's best for their own citizens
  • serves the underlying value in the commerce clause of free trade

Justice: Douglas

Year: 1971

Issue: Can Congress regulate criminal activities affecting commerce?  Butcher challeneged federal prohibition of loan-sharking enforced by threats of violence.  Normally states regulate crime; argued that all crimes are local.

Holding: Congress MAY regulate criminal activities if they believe it may have a substantial effect on interstate commerce in the aggregate

• expansion of the Wickard test - Congressional findings aren't required but defers to Congress's findings
• Congress is better suited to make findings regardings substantial effects on commerce

Justice: Clark

Year: 1964

Issue: Can Congress regulate discrimination in lodging?

Holding: Yes, because the discrimination of blacks from certain hotels may have a substantial economic effect in the aggregate on interstate commerce

• Court uses same Wickard test (later used in Perez) and defers to Congressional decision making
  • relationship between effect and commerce is more tenuous - no findings to support
• Congress probably trying to get to the discrimination; using Commerce Clause as a tool
  • 14th Amendment only extends to State discrimination - needed CC to extend it to individual discrimination

Justice: Clark

Year: 1964

Issue: Can Congress regulate discrimination in restaurants?  Ollies allowed black people to buy food, but only for take-out.  Argued that if black people were allowed to eat in, it would lose white customers, resulting in a reduction in interstate commerce. 

Holding: Congress can regulate using aggregate effect test.

• Court applies CC clause by saying that a % of food comes from out of state so if Ollies serves blacks, it will have to order more food, increasing out of state commerce
  • even broader reasoning than in Heart of Atlanta - even more tenuous relationship between commerce being regulated and CC power.  Court has to take more steps to get there; regulating on a theory that more food should be bought rather than that business should be kept from keeping people from travel
• Court defeats Ollie's argument by saying that if Congress is able to regulate across the board, no one will be able to make the argument that inability to discriminate is hurting interstate commerce
  • Promotes underlying CC value of free trade

Justice: Rehnquist

Year: 1995

Issue: Can Congress regulate possession of guns near schools?

Holding: No.  Rehnquist makes a distinction between economic and non-economic activities and labels this as a non-economic activity so Congress can't regulate it.  Seems like Rehnquist wants to keep certain activities to the states and feels a broad substantial economics test would allow those activities to be federally regulated.  Adding econ/non-econ test just puts a limit on activities that fed is allowed to regulate.

• Mentions that there are no Congressional findings showing a relationship between gun control and commerce; not clear what he would have done if there were findings
• Mentions Darby - Court still won't inquire into motive
• Decision gave more questions than answers - wasn't clear what test came out of it
  • Congress repassed the Gun Control w/ minor changes after the decision

Justice: Rehnquist

Year: 2000

Issue: Can the government require a person who commits an act of gender-based violence to pay damages to the victim under powers of the commerce clause?

Holding: No.  Congress can't regulate b/c the findings are too general and don't show a substantial effect on interstate commerce AND it's not an economic activity.  AND crime goes in the state box (See Lopez - Rehnquist likes to put things in boxes).

• Says the Court is not changing any CC jurisprudence - the old cases are still good law; just adding econ/non-econ dichotomy
• LR article identifies 2 flaws in Rehnquist's reasoning:
  • the dichotomy doesn't work, like the strict formulas used in the past
  • Rehnquist really is establishing a more intervening standard of review of congressional findings re: CC
    
    • went from deferring to Congressional findings and saying result might be true (Lopez) to having no findings but still saying it might be true (Perez), to having findings but saying they aren't good enough (here)

Justice: Stevens

Year: 2005

Issue: May Congress regulate the growing of marijuana?  Growers were growing at home for medical purposes.  Challenged federal law claiming the shit they were growing was legal.

Holding: Congress can regulate b/c growing marijuana is an economic activity.  Marijuana is bought and sold so growing = economic activity.

• In Lopez, inference was stacked upon inference w/o justification
• Here there is a prediction that regulation will have an effect on commerce.  Court says their expectation governs (but dissenters disagree)

Justice: Rehnquist

Year: 1976

Summary: Congress regulating minimum wage of state employees based on theory of the aggregate - there's a national market of workers and what they are paid effects market in the aggregate.  State challenges the law b/c federalism is about federal gov't not invading state powers.  Relies on federalism, 10th amendment (state sovereignty).

Holding: Federal regulation is impermissable if it directly displaces the state's freedom to structure integral operations in areas of traditional governmental functions.  Strikes down wage law b/c wage/hour regulation is traditionally a state function.  10th amendment only recognizes that there is a notion of federalism - doesn't say how powers are split.

Justice: Marshall

Year: 1981

Summary: Statute regulates strip mining - trade association argues it displaces the exercise of a traditional state function of regulating land use. Strip miners suing - not state (when it's a state suing, fed is likely to take it more seriously but since this was a private individual, fed did not)

Holding: Federal regulation is impermissable when it:

1. Regulates the states as states 
2. Addresses matters that are attributes of state sovereignty
3. Impairs state's ability to structure integral operations in areas of traditional state functions

In general, this cuts back the federalism claim, making it easier for fed to regulate.  Fed upheld statute.

Justice: Blackmun

Year: 1985

Summary: After Usery, SAMTA said it no longer had to give OT benefits.  Garcia sued claiming benefits were owed under the Fair Labor Standards Act (FLSA). Big issue is whether transportation is a traditional state function; little issue is whether application of FLSA to SAMTA is constitutional

Holding: Majority moves away from traditional/non-traditional distinction.  Blackmun feels that procedural safeguards inherent in the structure of the federal system are the way to limit the federal authority.  Issue should move thru political process and court should stay out of it; stepping in only when the political process fails.  The bill was passed thru political process so it is constitutional - Garcia should be paid (Usery overruled).

Dissents (Rehnquist/O'Connor): say if they get one more vote in the future they'll overturn

Justice: O'Connor

Year: 1992

Summary: Federal gov't passed Low-Level Radioactive Waste Policy Amendments Act of 1985, requiring certain states to provide for disposal of waste generated w/in their borders.  Act was a 3-part plan - gave monetary incentives, access incentives, and take-title sanctions for states that failed to comply.  NY took the money under the plan, then challenged the law, arguing that the fed couldn't force States to regulate fed regulation

Holding: Congress can pass a law regulating waste, but CAN'T pass a law telling states to pass a law.  In order to take title of the waste, States would have to pass title laws.  Upholds the other parts of the statute but strikes down the take-title part.

Dissent (White): distinction w/o meaning.  White takes functional approach and says that states have made a mutually beneficial compact.  Court should look at the practical results of decision making over abstract notions of federalism.

• Dissenters rely on necessary and proper clause
  • Using state employees to enforce gun control is a means adapted to the end

Justice: Holmes

Year: 1919

Summary: 1917 Espionage Act made it a crime to willfully obstruct military recruiting service.  Schenck and friends published and distributed a leaflet to people who had been drafted that told them to assert their right not to be drafted, calling the draft slavery.  Schenck concedes that he intends to obstruct the draft for purposes of argument, but argues that he should be protected b/c of freedom of expression w/in the First Amendment

Holding: Court adopts the clear and present danger test (CPD): whether words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent.

• It's not just the words themselves, the key may be the likelihood or probability of danger
• not a categorical exclusion of speech - speech may still serve 1st A value but if CPD is found, it won't be protected
• Established CPD test but doesn't say how to apply it

Justice: Holmes

Year: 1919

Summary: Fro printed a German newspaper read by immigrants in MO - doesn't seem that he made an effort to target people subjected to the draft but he criticized the war.  The only thing he said about the draft was that he deplored the draft riots.  Convicted under the 1917 Espionage Act.

Holding: Jury decisions re: CPD can be upheld.  Even w/o a record, Holmes said it would be impossible to say that it might not have been found that circulation of the paper posed a danger.

Justice: Holmes

Year: 1919

Summary: Debs = longtime leader of the Socialist party.  Delivered a speech at the 1918 Ohio Socialist Convention for which he was charged on 2 counts - causing and inciting insubordination and disloyalty AND obstructing and attempting to obstruct recruitment.  In his speech commended people who refused draft and said he was unable to say all he really felt about draft.

Holding: Words that have as a tendency to obstruct recruitment = CPD.  Expands CPD test to include words that have tendencies.  By saying he couldn't say all he could say, Debs' speech was a CPD.

Judge: Hand

Year: 1917

Summary: Publishing co. of a socialist magazine sought injunction against Postmaster General, who refused to circulate its magazine.

Holding: Speech is prohibited if it directly incites the listener to violent action.

• Clearer test than CPD - more speech protective
• Only looks at words - not probability of success (even if very unlikely given circumstances, still can be convicted if direct incitement)
• Shenck probably could have been convicted under Masses test, but not Fro

Justice: Clarke

Year: 1919

Summary: US had sent troops into Russia in the war against Germany.  Abrams = Russian in the US; distributed a pamphlet that encouraged Russian immigrant workers to strike.  Wasn't criticizing the war b/c he hated the Germans too - just didn't want weapons being produced that would be used against Russia.  Statute said people can't curtail production of weapons being used in war against Germany - Abrams said he was only trying to curtail production of weapons being used in Russia.

Holding: Actions are dangerous because they tend to effect production of weapons to be used in Germany (CPD test).  Abrams' intent is irrelevant.

Dissent (Holmes): Holmes switches sides here.  Thinks CPD goes too far; intent might matter.  Now says the CPD test is a check on what gov't can do - requires genuine immediacy.

Justice: Sanford

Year: 1927

Summary: CA passed Criminal Syndicalism Act in 1919, making it a crime to become a member of an organization assembled to advocate, teach, etc, the commission of a crime, sabotage, or unlawful acts of force and violence and terrorism.  Whitney convicted under the Act - became member of Communist Labor Party when it was not violent, advocated for non-violence, but remained a member after it became violent.

Holding: Whitney guilty b/c of tendency to incite violence - group actions are more dangerous than individual actions.  Legislature is given great weight unless there is unreasonable or arbitrary exercise of state police power. 

Concurrence (Brandeis): Adds imminence requirement to CPD test, thus making the CPD test:

• imminence
• seriousness
• probability

All Brandeis cites for his new test elements is the 1st Amendment and its values - fortifies the presumption of speech in favor of the balancing test

• unless there's a situation where there's no time for speech to work out the truth, speech shouldn't be regulated
• still concedes speech can be regulated in emergencies (meets the 3 elements)

Sanford was willing to defer to legislature to pass reasonable statutes; Brandeis said Court/jury should decide

Justice: Vinson

Year: 1951

Summary: Smith Act enacted, making it a crime to teach the duty, desirability, etc, of overthrowing the US gov't by force or violence.  Dennis, member of the Communist Party, organized a group of people for the purpose of teaching a couple of Marxist books.  Charged under the Smith Act.

Holding: Gov't can regulate where there is a substantial gov't interest - boils down to test of how serious court and legislature believe the threat is.  Uses Hand tort test.  Says he's following Whitney-Brandeis opinion but drains the imminence requirement and the probability requirements - says if you wait, it will be too late.

• Vinson = scardy-cat, wanted CPD to be applied broadly

Frankfurter: uses generic balancing test instead of CPD.  Legislature should do the balancing; Court's only role is to see if the law is reasonable (Sanford's Whitney approach).  Most important question is who decides - not how big the danger is.  As long as Congress has carefully balanced competing policies, it's not for the Court to intervene.

Jackson: wants to limit CPD to "silly cases."  It's a rule of reason used to protect speech for those silly cases.  This isn't a silly case b/c Communists are organized - should be left to the legislature b/c court would be influenced w/ own political predilections.

• Jackson/Frankfurtor base decisions on who decides, resulting in speech-restrictive decisions

Douglas: Would apply CPD test in this case.  Goes by Whitney-Brandeis test, saying speech is ordinarily protected until it reaches point where there's no time to stop the evil (emergency) but goes further by requiring a real injury to society or threat to the republic.

• Douglas saw speech as what makes the country strong, wanted CPD test to be narrow

Per Curiam

Year: 1969

Summary: Brandenburg = leader of KKK group.  Convicted under Ohio Syndicalism Act for advocating the duty, necessity, or propriety of crime, sabotage, violence, etc after being filmed at a KKK rally (w/ permission) making 2 speeches saying that the organization may take revenge if the gov't continues to suppress whitey.

Holding: Court now requires "advocacy directed to inciting or producing imminent lawless action and likely to incite or produce such action"

• Even though Dennis is the law, Court makes it clear that trend has been toward following Whitney-Brandeis approach
• Decision says that Dennis discredited Whitney-Brandeis decision by draining imminence and probability requirements
• Court puts imminence and probability requirements back in and also adds Masses direct incitement test, creating the most speech protective CPD test of them all

Justice: Murphy

Year: 1942

Summary: NH had a statute prohibiting antagonizing or name-calling anyone who was lawfully in any public street or public place.  Defendant condemned organized religion on a public street and attracted a restless crowd.  Police officer took him away to avoid violence; he challenged the law on First Amendment grounds.

Holding: Court interpreted the statute as prohibitng "fighting words".  Fighting words are not entitled to First Amendment protection because the State's interest in keeping order outweighs their low value. 

• This is a big value judgment on the First Amendment b/c it doesn't say that it's only designed to protect speech/ideas of social worth
• By using categories to place certain types of speech outside of protection, other speech gets greater protection b/c balancing approach will be used
• Sets up categorization in other areas too including the lewd and obscene, profane, and libelous
  • these areas are not protected b/c they either cause a breach of the peace or the words themselves inflict injury

Justice: Brennan

Year: 1957

Summary: Roth (NY publisher and seller) convicted of mailing obscene ads and an obscene book in violation of a federal statute barring mailing of obscenity; Alberts (engaged in mail order business) convicted under CA law for lewdly selling obscene and indecent books and for publishing an obscene ad of them.  Both challenged laws arguing that obscenity was a protected class of speech.

Holding: Obscenity is not a protected class of speech so CPD test does not apply (cites Chaplinsky).  Obscenity means whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests

• limits what is obscene by requiring that the dominant theme of the work as a whole is obscene
• protects values in art and creativity, leaving room for sexual expression in the arts, science, and literature
• doesn't protect completely obscene works b/c of low social value

Justice: Brennan

Year: 1966

Summary: Book (Fanny Hill) challenged on the ground that it had no redeeming social value

Holding: 3-part test for obscenity

1. Dominant theme of the material as a whole appeals to a prurient interest in sex
2. The material is patently offensive b/c it affronts contemporary community standards relating to the description or representation of sexual matters
3. The material is utterly w/o redeeming social value

Note: this is unlike Roth where redeeming social value was not part of the test but was assumed b/c of the categorization.

Justice: Burger

Year: 1973

Summary: CA penal code prohibited knowingly distributing obscene matter.  Miller was convicted for causing 5 unsolicited ads for adult material to be sent thru the mail.  Challenged law regulating distribution of obscene material.

Holding: Burger redefined the obscenity test out of a felt need for more clarity:

1. Whether the work as a whole appeals to prurient interests

• If the dominant theme isn't sex, it would be allowed under Roth/Memoirs.  But any small portion could make the work as a whole appeal to prurient interests so this is a stricter standard.

2. Whether the work describes in an offensive way specific sex conduct defined in the law (w/ examples)

• Clearer standard - will probably decrease litigation

3. Whether the work as a whole lacks serious literary, artistic, political, or scientific value

• Jury decides this b/c it's local community standard
• Possible danger b/c different areas have different views

• This was supposed to be a clearer test, but really all it does is cut back on the # of cases the SCOTUS has to hear - not the # of cases overall b/c the real vague issue is handed to jury (#3) and SCOTUS doesn't get involved in issues of fact
• under this case, some states will punish for certain works while others will allow - doesn't that feel wrong?
• The new definition of obscenity gives less protection to speech b/c now challenger has to show it has serious value; not just that it is utterly w/o value
• THIS CASE IS THE LAW NOW

Justice: White

Year: 1982

Summary: Ferber, owner of an adult bookstore, was convicted for selling 2 films devoted almost exclusively to showing young boys masturbating.  Challenged the law on 1st Amendment grounds.

Holding: Kiddie porn is outside of First Amendment protection.  White uses balancing approach to create a new category b/c he can't use the obscenity doctrine w/o changing it immensely.  Looks at gov't interest protecting children and sees that that outweighs any potential value kiddie porn may have (though he doesn't think it has any).

Justice: Kennedy

Year: 2002

Summary: Child Porn Prevention Act of 1996 prohibited any visual depiction, including pictures, films, videos, etc., that was or appeared to be of a minor engaging in sexually explicit conduct.  FSC challenged law on the grounds that it prohibited protected speech (virtual kiddie porn).

Holding: Court declines to extend Ferber to cover virtual porn b/c the reasoning behind Ferber isn't present (no children harmed).  Holds that the statute is overly broad and strikes down two of the sections of the law which prohibit materials that have artistic value.

• Preventing discord/protectionism amongst the states
• Enhancing free trade
• Frees up transportation system
  • promotes Westward expansion
• Allow federal gov't to keep states in balance (i.e. avoid undue influence of certain states)
• Encourages/facilitates movement of population among the states (interstate mobility)
• Facilitates international trade policies

During the 1890s, the Industrial Revolution started and the US embraced Laissez-Faire ideology, telling the government to back off (see Dagenhart).  But after the Great Depression hit, citizens turned to the gov't for help and the court shifted to broad regulation (see Darby).

FDR put out New Deal legislation embracing broad regulation aimed at fixing the economy.  Many private parties effected by the legislation opposed it on claims that these were areas the state, not the fed, should be regulating:

• RR Retirement v. Alton RR (1935): Roberts strikes down the railroad regulation in the RR Retirement Act (court had always upheld RR legislation prior to this)
• Schecter Poultry Corp. v. Us (1935): Fed regulations detailed how poultry could be sold and imposed minimum wage to try to fix chicken industry.  Looked ok under Swift stream of commerce doctrine but Schecter only sold to local dealers so his chickens didn't enter stream.  Court cited Knight - gov't had regulated activity that had no direct relationship to interstate commerce.  "Extraordinary conditions do not create or enlarge constitutional power."
• FDR calls press conference - if New Deal fails, don't blame him; blame the Court.
• Carter v. Carter Coal (1936): Court struck down all labor regulations for labor industry.  Court relied on Hammer and Knight, saying effects don't matter if they're indirect. 
• FDR was so pissed.  Introduced court-packing bill which would allow President to nominate one additional justice for each justice over 70 (5/6 justices in the Carter majority were over 70).
• NLRB v. Jones Laughlin Steel (1937): The switch in time that saved the nine (Court changed directions).  Roberts: "We can't shut our eyes to the plain facts of national life and deal w/ the question of direct and indirect effects in an intellectual vacuum"

Law that's being challenged must be:

1. Justified by a compelling gov't interest
2. narrowly tailored to achieve the gov't interest
3. the least restrictive means of achieving the interest

("You better have a really good reason for doing this, and there better not be a better way to do it.")

• O'Brien test: If the gov't interest is related to the suppression of speech, strict scrutiny is used
  • Texas v. Johnson: TX law prohibited flag burning as a means of expression (desecration in a way that the actor knows will offend people likely to observe or discover).  Court found the law related to suppression of speech; used strict scrutiny to find the law invalid.

1. Justified by important Government Interest

2. Government interest must be furthered by substantially related means

Mum says "You better have a pretty good reason, and other ways of doing it can't be much better"

O'brien: Draft card burning case.

Applies when the government interest is unrelated to suppression of expression.  When government regulation indirectly affects speech.

Law must be a reasonable means to an end that can be legitimately pursued by the government.

Applies when laws aren't alleged to be in tension with the constitution.  

Mum says "Do you have any reason for doing that? And is what you're doing supporting that reason?" (court will only strike down stuff that is straight up crazy)