The First Amendment was created in 1791, which later added twenty seven more into present day that make up the Bill of Rights. Within the First Amendment, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech. (history.com, 2017) This Amendment gives the right of the people to peacefully assemble and petition the government for a redress of grievances as well. In the United States Supreme Court, there have been well over a 100 cases argued that are in regards to the First Amendment. The First Amendment guarantees the right of the American people’s freedom of speech. This gives Americans the right to express themselves without having to worry about interference from the government. The United States Supreme Court consistently struggles to determine what types of speech are protected within the First Amendment. This classification is continually evolving due to the abundant amount of cases that arise in regard to the First Amendment. Among the immense amount of cases under the First Amendment, there are four very important landmark Supreme Court cases, out of thousands, in reference to the Freedom of Speech clause. Two of those cases, R.A.V v. City of St. Paul (1992) and Virginia v. Black et al (2003), deal with the issue of cross burning on personal property. The other two cases, Roth v. United States (1957) and Stanley v. Georgia (1969) dealt with the issue of owning and distributing obscenity. These cases share similarities under the First Amendment Freedom of Speech clause but differ on a factual basis. CASE: R.A.V v. City of St. Paul (1992) (Oyez, n.d) (LII / Legal Information Institute, 2018) (CaseBriefs LLC, n.d) (Global Freedom of Expression at Columbia University, n.d) FACTS: In the city of St. Paul, Minnesota, several teenagers were reportedly burning cross on an African American family’s lawn. The local police charged one of the teens under a local bias-motivated criminal ordinance which prohibits the display of a symbol which arouses anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender. (Oyez, n.d) This case was argued on December 4th, 1991. The trial court dismissed this charge on the basis that the ordinance was substantially over-broad. (LII / Legal Information Institute, 2018) The state supreme court reversed this decision. R.A.V appealed to the U.S Supreme Court. QUESTION: Is the ordinance overly broad and in violation of the First amendment free speech clause? (Oyez, n.d) REASONING: The reasoning of the court was delivered by Justice Scalia. The ordinance was found to be content-based that it does not fall into an exception of the First Amendment of the United States Constitution. (CaseBriefs LLC, n.d) Justice Byron White said The ordinance is unconstitutional because it is over-broad. Whilst Justice Harry Blackmun said The ordinance goes beyond regulating fighting words. (CaseBriefs LLC, n.d) The Court noted that it was bound by the Minnesota Supreme Court’s interpretation of the statute that the ordinance reached only fighting words. (LII / Legal Information Institute, 2018) The local-ordinance was further defined as prohibiting fighting words only as they apply to cases of racial, gender, or religious harassment. (CaseBriefs LLC, n.d) Words that were directed at political affiliation or homosexuality were legally allowed. Our government is bound by the First Amendment from punishing speech and expressive conduct because it disapproves of the ideas expressed. Under this ordinance, for example, one could hold up a sign declaring all anti-semites are bastards but not that all Jews are bastards. (Oyez, n.d) The prohibition of speech in particular areas, while other kinds are unrestricted, is why the ordinance was held unconstitutional. (CaseBriefs LLC, n.d) Justice Scalia said that First Amendment jurisprudence has long held that nonverbal activity cannot be banned on the basis of the idea it expresses, for example, the burning of a flag could be punishable under an ordinance prohibiting fires but not under an ordinance prohibiting the burning of flags because of the message of dishonor it conveys. (LII / Legal Information Institute, 2018) Justice White, in his concurring opinion, expressed that the case could be easily decided as fatally over-broad because it criminalizes not only unprotected expression but expression protected by the First Amendment (Global Freedom of Expression at Columbia University, n.d) DECISION: The Court held a 9 to 0 vote holding that the statute was facially unconstitutional on June 22nd, 1992. (Oyez, n.d) CASE: Virginia v. Black et al. (2003) (Oyez, n.d) (Global Freedom of Expression at Columbia University, n.d) FACTS: Barry Black, Richard Elliott, and Jonathon O’Mara were convicted separately of violation of a Virginia statute that makes it a felony for any person, with the intent of intimidating any person or group, to burn a cross on the property of another, a highway or other public place,. (Oyez, n.d) This statute specifies that any such burningshall be prima facie evidence of an intent to intimidate a person or group. (Oyez, n.d) This case was argued on December 11th, 2002. During the trial, Black objected on the First Amendment grounds to a jury instruction that cross burning by itself is sufficient evidence from which the required intent to intimidate could be inferred. (Oyez, n.d) He was found guilty. O’Mara pleaded guilty to all charges. In Elliot’s trial, the judge did not give an instruction on the statute’s prima facie evidence provision. (Oyez, n.d) QUESTION: Does the Commonwealth of Virginia’s cross-burning statute, which prohibits the burning of a cross with the intent of intimidating any person or group and its prima facie evidence, violate the First Amendment? (Oyez, n.d) REASONING: Justice Sandra Day O’Connor delivered the Court’s majority opinion. According to the Court, however, the importance of public interest in order and morality may restrict the content of speech in a few limited areas. (Global Freedom of Expression at Columbia University, n.d) For example, the First Amendment allows states to ban true threats, which are defined as statements where the speakers means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group. (Global Freedom of Expression at Columbia University, n.d) The Court decided that intimidation was a type of true threat and found that the act of cross burning often involves intimidation by creating fear in victims that they are a target of violence. (Global Freedom of Expression at Columbia University, n.d) The Court reviewed its reasoning in R.A.V v. St. Paul, where they found that the statute as it banned cross burning with intent to intimidate did come in conflict with the First Amendment because of its content-based nature. (Global Freedom of Expression at Columbia University, n.d) The seven supporting justices agreed that the Statute was deemed unconstitutional and therefore agreed in the Court’s judgement insofar as it affirmed the invalidation of Black’s conviction. (Oyez, n.d) The Court ruled the prima facie evidence provision rendered the statute as facially unconstitutional because it would create an unacceptable risk of suppressing the act of cross burning as part a legitimate form of symbolic speech, which is thereby protected under the First Amendment. Accordingly, the Court found the prima facie provisions given by the jury instruction made the statute facially unconstitutional. (Global Freedom of Expression at Columbia University, n.d) DECISION: The Court held a 7 to 2 vote for Virginia on April 7th, 2003. (Oyez, n.d) CASE: Roth v. United States (1957) (Oyez, n.d) (Skelton, n.d) FACTS: Roth owned and operated a book-selling business in New York. He was convicted of mailing obscene circulars and obscene books in violation of a federal obscenity statute. (Oyez, n.d) Roth’s case was combined with another that was similar within his conviction. (Oyez n.d) This case was Alberts v. California, where Albert was convicted for selling lewd books, publishing obscene ads, and composing them. The California obscenity law was challenged by Alberts. Roth’s case was argued on April 22nd 1957. (Oyez, n.d) QUESTION: Did either the federal or California’s obscenity restrictions, prohibiting the sale of obscene materials through the mail, impinge upon the freedom of expression as guaranteed by the First Amendment? (Oyez, n.d) REASONING: Justice William J. Brennan Jr., wrote the decision of the Warren Court. In the Roth case, the conviction was upheld because the constitutionality of 18 U.S.C. ?§ 1461, which makes mailing obscene books punishable. As well as the Albert case, where the constitutionality of ?§ 311 of West’s California Penal Code., 1955, makes it a misdemeanor to sell obscene material. (Skelton, n.d) Sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to material intended to excite lustful thoughts. (Skelton, n.d) The Court decided that obscenity is not within the area of constitutionally protected freedom of speech or press under the First Amendment. (Skelton, n.d) This means that constitutional guaranties were not violated in these cases. (Skelton, n.d) In these cases, both trial courts sufficiently followed the proper standard and used the proper definition of obscenity. The Court noted that the First Amendment was not intended to protect every form of expression, such as materials that were utterly without redeeming social importance. (Oyez, n.d) The Court held that the test to determine obscenity was whether to the average person, applying contemporary community standards, the dominant theme of material taken as a whole appeals to prurient interest. (Oyez, n.d) The Court held that such a definition of obscenity gave sufficient fair warning and satisfied the demands of Due Process. (Oyez, n.d) In 1957, the case was a 6 to 3 decision, later Justice Brennan reversed his position on the issue in Miller v. California (1973). (Oyez, n.d) Miller v. California superseded Roth v. United States. DECISION: The Court held a 6 to 3 decision upholding the convictions of Roth and Alberts. CASE: Stanley v. Georgia (1969) (Oyez, n.d) (Cornell Law School, n.d) FACTS: Local law enforcement officers, under the authority of a warrant, searched Stanley’s home pursuant to an investigation of his alleged bookmaking activities. During the search, the officers found three reels of eight-millimeter film. (Oyez, n.d) The officers viewed the films, concluded they were obscene material, and seized them. Stanley was tried and convicted under a Georgia law prohibiting the possession of obscene materials. (Oyez, n.d) QUESTION: Did the Georgia statute infringe upon the freedom of expression protected by the First Amendment? REASONING: The appellant ruled that the Georgia obscenity statute is unconstitutional because it punishes private possessions of obscene matter. The Georgia Supreme Court relied on Roth v. United States, arguing the statute’s validity on the ground that obscenity is not within the area of constitutionally protected speech or press. (Cornell Law School, n.d) The United States Supreme Court held that the First Amendment prohibits making private possession of obscene material a crime. The Constitution protects the right to receive information and to be generally free from governmental intrusions into one’s privacy and control of one’s thoughts. (Cornell Law School, n.d) Justice Marshall delivered the opinion of the Court. Charging a person with possession of obscene material is considered non-essential to an indictment unless the person being charged had an intent to sell, expose, or circulate. For these reasons, the Court agreed that the mere private possession of obscene matter cannot constitutionally be made a crime. The Court used other cases to lock its decision such as Stanley v. State, Roth v. United States, Alberts v. California and Ginsberg v. New York. (Cornell Law School, n.d) These cases helped shed light on the current case comparing the convictions based on the mere private possession and the actual intent to sell and distribute obscene material. Justice Marshall was famously quoted, finding that if the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds. (Oyez, n.d) The Court distinguished between the mere private possession of obscene materials ,with help of previous decisions, and the production and distribution of such materials. The latter, the Court held, could be regulated by the states. (Oyez, n.d) DECISION: The Court held a unanimous decision for Stanley on April 7th 1969.
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