First Amendment Rights Case Study

CHS260 Midterm
The First Amendment states, “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 peaceably to assemble, and to petition the Government for a redress of grievances.”
Part One:
Based on the Shenck case, Congress can limit language that poses clear and present danger. “Clear and present danger” is defined as proximity and degree. Since the magazine is only sent out to over 5 million men from ages 18 to 40, the likelihood of success is there but it is very low. Therefore, the US did violate Sadam Jose’s first Amendment rights. Because it isn’t a time of war, Jose could get away with what was written in the magazine. Also, the likelihood of success for Jose to actually start a revolution is most likely not going happen. Men who received the magazine may not even read the full magazine.
Based on
the Dennis case, success does not matter. The main focus here is how big the intention is, or the gravity of evil. In this case, I believe that Sadam Jose was trying to advocate and start a revolution with the words written in the magazine. Regardless of how likely is it to happen, his intentions were to do so. Therefore, Jose’s First Amendment rights were not violated.
Based on the Brandenburg case, “The Court’s decision have fashioned the principle that the constitution guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” This is divided in three different parts: 1) advocating for lawless action 2) likelihood of success and 3) imminent. According to this, Sadam Jose’s rights were violated. As mention before, the likelihood of success that he would start a revolution is very low. Also, the government would most likely be able to stop it as soon as possible. In addition, if a revolution were to happened, it wouldn’t be imminent. It would take some time.

Part Two: In the RAV case, Robert A.
Viktora, along with other white teenagers, burned a cross on Black family’s lawn. In the Mitchell case, Todd Mitchell, along with other Black boys beat up a White boy until he was unconscious and then stole his tennis shoes. In these cases they are being punished by their expression or conduct. RAV’s right were violated according to the court because he was being punished because of his expression. His expression about race, religion, gender, etc. Also, it is not illegal to be racist. As for Mitchell, the Court voted that his rights were not violated because he was punished based on conduct. Because he actually beat up a person, his actions and behavior is what got him into trouble. I believe that the Court made the right decision by ruling against Mitchell, but nit RAV. Even though what RAV and the other boys did was disrespectful and it may seem unfair, the rules make sense. Furthermore, I believe that these cases may be based on race. RAV probably got away with what he did because he was
White.
Part Three: Paul Robert Cohen was arrested for wearing a jacket with the words “Fuck the Draft” in the Los Angeles County Courthouse. In the case you would ask, “Does the first amendment apply?” It does. Now is it expression or conduct? This would be expression. There’s protected and unprotected expression, or speech. The words on Cohen’s jacket expresses protected speech. With protected speech there is a balancing test, which is based on society’s privacy and 1st Amendment expression. In addition, if you are unable to turn away when it’s invading your privacy, then privacy rights win. In this case, Cohen was just wearing the jacket, whether you wanted to read it or not was the viewer’s decision.