Question 1

In what respects do Gitlow v. New York and Brandenburg v. Ohio represent polar opposite approaches to interpretation of the First Amendment?

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Question 2

During recent decades in several cases involving symbolic speech and protest, the United States Supreme Court has declared (a) that one does not have a right under the First Amendment to burn one's draft card; (b) that one does have a right under the First Amendment publicly to burn (or otherwise deface) an American flag; and (c) that one sometimes (but sometimes not) has a right under the First Amendment to engage in KKK-style cross-burning. In these cases, has the Court been confused in terms of applying the First Amendment, or is there a theoretical (doctrinal) consistency lurking within these contrary outcomes? Explain. (Be sure that your answer refers to, and explains, the relevant cases.)

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Question 3

Consider Chief Justice Vinson's plurality opinion in Dennis v. United States alongside Justice Brandeis's concurring opinion in Whitney v. California. Which is more protective of freedom of speech? Why? Explain.
a. What constitutional issue confronted the Court in Dennis v. United States (1951)?
b. How was the case decided? Explain.
c. What does Justice Frankfurter's concurring opinion in the case reveal about his view of the proper role of the Supreme Court in the resolution of conflicts between governmental power and individual rights? Explain.

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Question 4

Consider Good News Club v. Milford Central School (2001) alongside Clark v. Community for Creative Non-Violence (1984). What common First Amendment problem concerning free speech do these cases present? Why is it that the First Amendment claim prevailed in one case but not in the other? Explain. Might Milford Central School arguably have based its denial of permission on the Establishment Clause? Explain.

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Question 5

Why are prior restraints deemed more harmful to free expression than "subsequent punishment"?

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Question 6

Justice Robert Jackson said a long time ago that the Constitution was not a suicide pact, meaning that he thought protection of no single provision of the Constitution to be more important than survival of the political system itself. (President Lincoln would have agreed.) In the Pentagon Papers case, did the Court reject the Jackson/Lincoln position?

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Question 7

In the Pentagon Papers Case, what would the government have had to show to win five votes for its position?

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Question 8

In the Pentagon Papers Case, what was Justice Harlan's answer to the problem the case confronted?

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Question 9

Justice Black (as his dissent in Dennis and his concurrence in the Pentagon Papers case suggest) developed a reputation as an "absolutist" on the First Amendment. How, then, do you account for his vote with the majority in United States v. O'Brien?

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Question 10

In what way did New Jersey's public accommodations statute infringe the expressive association right of the BSA in Dale? Why?

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Question 11

Why did the protestors in CCNV lose their public forum claim, while the group in Good News Club won theirs? Was the Court just being inconsistent? Explain.

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Question 12

What does the Court usually mean by the right of "expressive association?" What role did this right play in the outcomes of Boy Scouts of America v. Dale and Rumsfeld v. Forum for Academic and Institutional Rights? Explain. Make sure that your essay demonstrates an understanding of both cases.

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Question 13

Explain the role of government speech in the outcome of Walker v. Texas Division, Sons of Confederate Veterans, Inc.

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Question 14

In what way was stare decisis an issue in Janus v. AFSCME (2018)?

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Quiz 12: Freedom of Expression