Preview Extract
Chapter 2 The First Amendment
True/False Questions
1) The framers of the Constitution intended the First Amendment to protect citizens from
interference with their freedom of expression by state and local governments.
Answer: False
Rationale:
The First Amendment was indeed intended to protect citizens' freedom of expression, but it
primarily restrains the actions of the federal government. The Fourteenth Amendment,
through the incorporation doctrine, extends this protection to state and local governments.
2) The Supreme Court disfavors content regulations; yet the First Amendment protects
political speech more than it protects advertising.
Answer: True
Rationale:
The Supreme Court generally disfavors content-based regulations, which are subject to strict
scrutiny. Political speech receives the highest level of protection under the First Amendment,
while commercial speech, such as advertising, is subject to greater regulation.
3) In the 1950s, the Supreme Court ruled in Dennis v. United States that a citizen's
membership in the Communist Party constituted a clear and present danger to the nation.
Answer: True
Rationale:
In Dennis v. United States (1951), the Supreme Court upheld the conviction of Communist
Party leaders under the Smith Act, finding that their membership in the Communist Party
posed a clear and present danger to the security of the United States during the Cold War era.
4) The Supreme Court has ruled that high school students have a constitutional right to
criticize the principal in a school sponsored newspaper.
Answer: False
Rationale:
The Supreme Court held in Hazelwood School District v. Kuhlmeier (1988) that school
administrators have broad authority to regulate the content of school-sponsored expressive
activities, such as student newspapers, as long as their actions are reasonably related to
legitimate pedagogical concerns.
5) A federal appellate court decision in Chicago in 2005 agreed that university officials have
the same power to censor a state university newspaper as high school principals have to
censor high school newspapers.
Answer: True
Rationale:
In Hosty v. Carter (2005), the Seventh Circuit Court of Appeals held that university officials
could exercise control over the content of student newspapers produced as part of a
journalism program, extending the Hazelwood standard to the college level.
6) "Fighting words," by definition, encourage large groups to riot.
Answer: False
Rationale:
"Fighting words" refer to words that are likely to provoke a violent reaction from an average
person, not necessarily inciting large groups to riot. They are typically directed at an
individual and are not protected by the First Amendment.
7) In Brandenburg v. Ohio, the Supreme Court ruled that threatening to get "revengence" at
some distant time constitutes a clear and present danger.
Answer: False
Rationale:
In Brandenburg v. Ohio (1969), the Supreme Court established the "imminent lawless action"
test, holding that speech advocating violence or lawless action is protected unless it is
directed to inciting or producing imminent lawless action and is likely to incite or produce
such action.
8) The Supreme Court ruled that the CIA can impose prior restraints by requiring agents to
sign agreements to submit work to censors before publication.
Answer: True
Rationale:
The Supreme Court held in Snepp v. United States (1980) that the CIA could impose prior
restraints on former employees to prevent unauthorized disclosure of classified information,
even though such restraints typically violate the First Amendment's prohibition on prior
restraints.
9) In R.A.V. v. City of St. Paul, the Court ruled it is constitutional for an ordinance to punish
cross burning motivated by racial or religious hatred but not for motives against gays or labor
union members.
Answer: False
Rationale:
In R.A.V. v. City of St. Paul (1992), the Supreme Court struck down a St. Paul, Minnesota
ordinance that prohibited hate speech based on race, color, religion, or gender. The Court
held that the ordinance was unconstitutional because it impermissibly regulated speech based
on its content.
10) It violates the First Amendment to forbid judicial candidates from speaking on public
issues during an election campaign.
Answer: True
Rationale:
In Republican Party of Minnesota v. White (2002), the Supreme Court struck down a
Minnesota rule that prohibited judicial candidates from announcing their views on disputed
legal or political issues, holding that such restrictions violate the First Amendment's
protection of freedom of speech.
Multiple Choice Questions
1) If a court applies the strict scrutiny test to a government speech regulation, the government
must justify the regulation by proving it has a ________ for regulating the speech.
A) rational interest
B) reasonable interest
C) probable cause
D) necessary tendency
E) None of the above
Answer: E
Rationale:
The correct answer is E) None of the above because under strict scrutiny, the government
must demonstrate a compelling interest for regulating the speech, not merely a rational or
reasonable interest.
2) A county ordinance prohibits newspapers from publishing stories favoring abortions,
stories the ordinance says will provoke "discord and dissention" in the community. When a
newspaper challenges the law, a court will subject the ordinance to
A) a bad tendency test.
B) a clear and present danger test.
C) the fighting words doctrine.
D) strict scrutiny.
E) None of the above
Answer: D
Rationale:
The correct answer is D) strict scrutiny because laws that restrict speech based on content are
subject to strict scrutiny, requiring the government to prove a compelling interest and that the
law is narrowly tailored to achieve that interest.
3) A federal appellate court in California ruled that web pages depicting abortion doctors in
"Wanted Posters" constitute ________.
A) fighting words
B) defamation
C) a true threat
D) obscene expression
E) C and D
Answer: C
Rationale:
The correct answer is C) a true threat because "Wanted Posters" depicting abortion doctors
could reasonably be interpreted as inciting violence or harm against them, constituting a true
threat, which is not protected speech under the First Amendment.
4) A state university speaker's platform, established in 1995, is ________ public forum.
A) a traditional
B) a dedicated
C) public content
D) a nonpublic
E) not a
Answer: B
Rationale:
The correct answer is B) a dedicated public forum because it was established specifically for
expressive activity, making it a limited public forum subject to reasonable time, place, and
manner restrictions.
5) The City of Midville adopts a law making it illegal for "a large number" to picket at one
time. A court likely will find the law
A) unnecessary.
B) unconstitutionally vague.
C) content-specific.
D) viewpoint-specific.
E) an acceptable time, place, and manner restriction.
Answer: B
Rationale:
The correct answer is B) unconstitutionally vague because the term "a large number" lacks
clarity and leaves room for arbitrary enforcement, violating due process requirements.
6) The independent student newspaper off-campus is ________ public forum.
A) a traditional
B) a dedicated
C) not a
D) a paper
E) a non-public
Answer: C
Rationale:
The correct answer is C) not a public forum because it is off-campus and not affiliated with
the university, so it does not constitute a public forum subject to First Amendment
protections.
7) First Amendment rights include the power to
A) assemble in groups.
B) solicit money for churches, political parties and ideological causes.
C) receive information.
D) All of the above
E) A and C only
Answer: D
Rationale:
The correct answer is D) All of the above because the First Amendment protects various
rights, including the freedom of assembly, the freedom of speech (including solicitation of
funds), and the freedom of the press (which involves receiving information).
8) The government can license the following media operators because they operate on a
limited spectrum.
A) Cable operators
B) Newspaper publishers
C) Broadcasters
D) Internet Service Providers
E) Advertising agencies
Answer: C
Rationale:
The correct answer is C) Broadcasters because they operate on a limited spectrum of
frequencies allocated by the government, necessitating licensing to regulate the use of that
spectrum.
9) The First Amendment serves several purposes, EXCEPT
A) finding truth.
B) promoting self-fulfillment.
C) encouraging family values.
D) allowing change with stability.
E) checking government power.
Answer: C
Rationale:
The correct answer is C) encouraging family values because while the First Amendment
promotes various societal and individual benefits, such as finding truth, self-fulfillment,
facilitating change with stability, and checking government power, it does not explicitly aim
to encourage specific family values.
Essay Questions
1) Billy Bob, 28, proclaims on the "I Hate Everyone" web page that he plans to make bombs.
"I'm tired of the media splattering garbage all over the place, and I'm not going to take it no
more." Bob says. "If the elite media don't stop ruinating the country, we have to do something
drastic."
Police arrest Bob for issuing "fighting words" and presenting a "clear and present danger."
Has Bob done either? Define (1) "fighting words" and (2) "clear and present danger." Tell
whether Bob's words meet the definitions. Support your conclusions with comparisons to at
least one Supreme Court fighting words case and one clear and present danger case.
Answer: Billy Bob's statements on the "I Hate Everyone" web page may be aggressive and
inappropriate, but they do not constitute fighting words or a true threat.
(1) For speech to be considered "fighting words" it must motivate someone to respondwith
violence based on the very utterance of the words. Fighting words are used in face-to-face
confrontations; they are a "slap" that contribute nothing to public discourse. Disseminated
broadly over the Internet, Bob's words were not addressed to any individual; the "media elite"
is a broad term designating no one. This case is similar to Cohen v. California in which the
Supreme Court ruled that a man did not issue fighting words when he wore a jacket in a
courthouse proclaiming "Fuck the Draft." People who disagreed could look away. In both
cases, the speech was not targeted at anyone specifically, and its intent was not to incite
violence, but to express an opinion.
(2) For speech to be considered a clear and present danger it must be directed at
incitingimminent lawless action and be likely produce such action, the Court said in
Brandenburg v. Ohio. Mere advocacy of lawless action at some unspecified time does not
constitute a clear and present danger, the Court has said.
Bob is a hateful man who has not created a clear and present danger. On the webpage, Billy
Bob never expresses explicitly when he would take action, what action he would take or at
whom the action would be directed. Bob says vaguely that he might do something "drastic" if
an unidentified media elite doesn't stop "ruinating" the country. Billy Bob's speech, therefore,
cannot be considered a "present" danger because there is no reason to believe that he will
become violent immediately or imminently. Nor is the danger clear. Bob identifies no target
or specific illegal action.
In Hess v. Indiana, the Court found no clear and present danger when student demonstrators
vaguely advocated reoccupying a street "later." Billy Bob also advocates vague action at
some indefinite time. Like Hess, he does not create a clear and present danger.
2) Bob Editor, editor of the Palisades High School newspaper, says on the paper's website
that a school math teacher named Mr. Whiz is a "loser" who ought to be "got rid of." Editor is
a star student with no history of violent behavior. Principal Book suspends Editor from
school for two days for his "offensive" posting which the principal characterizes as a "true
threat." The website is run by the school as part of a "New Media Class" taught by Lawrence
Lenient, an English teacher.
Principal Book calls his policy a reasonable regulation of a nonpublic forum. But the ACLU
says Principal Book violated Editor's First Amendment rights by censoring political speech
on a public forum.
Citing Supreme Court cases, tell whether the online newspaper is (1) a public forum and
whether Principal Book can punish Editor for (2) "offensive" speech that Book says is a (3)
"true threat."
Answer: Principal Book is within constitutional bounds punishing Editor for "offensive"
speech on a non-public forum, but the language was hardly a "true threat."
(1) Book can impose reasonable regulations on a non-public forum. In Hazelwood School
District v. Kuhlmeier, the Supreme Court ruled that high school administrators do not violate
the First Amendment if they impose reasonable regulations on school-sponsored speech;
school sponsored speech does not take place in a public forum. As in Kuhlmeier, Editor's
speech occurred in a class taught by regular faculty, not in a venue dedicated as a limited
public forum.
(2) Just as the principal in Kuhlmeier could constitutionally delete two articles from a
classroom newspaper, Principal Book may punish Editor for his "offensive" expression. The
Court said in Kuhlmeier a school does not have to be associated with speech it does not wish
to be associated with.
(3) Editor's post, however, is not a true threat, which the Supreme Court has defined asan
attempt to intimidate by intentionally creating a pervasive fear in victims that they are a target
of violence. Burning a cross could be a true threat, the Court said in Virginia v. Black, if
conducted with the intent to intimidate. The Ninth Circuit Court of Appeals recognized a true
threat in Internet "wanted posters" that named abortion doctors, highlighting dead ones.
Doctors testified to a pervasive fear in the context of abortion doctors being murdered.
Editor has expressed no intent to intimidate by creating a pervasive fear of physical harm.
Editor issued general venom and discontent that would be less threatening than Charles
Evers' coercion of blacks to boycott white businesses in NAACP v. Claiborne Hardware.
Evers did not create a true threat, the Court said, even though he said during racially tense
times that blacks' necks would be broken if blacks traded with white businesses. Editor's
vague remarks, which are less threatening than Evers', are capable of many non-violent
meanings and are issued by a non-violent student in a non-violent context.
Short Answer and Key Terms
1) Absolutist.
Explain briefly why justices Black and Douglas were characterized as "absolutists."
Answer: Justices Black and Douglas argued that "no law" in the First Amendment prohibited
legislatures or courts from imposing restrictions on virtually any speech or publishing.
2) Fourteenth Amendment
What is the contribution of the Fourteenth Amendment to First Amendment freedom of
expression? Give an example.
Answer: The Fourteenth Amendment allows the courts to strike down state and local
government regulations that would violate First Amendment freedoms if imposed by the
federal government. In Near v. Minnesota, the Supreme Court declared unconstitutional a
state statute forbidding scandalous and malicious speech. The Court ruled the statute violated
the First and Fourteenth Amendments.
3) Vagueness and Overbreadth.
What is the difference between a vague and an overbroad law? Give examples.
Answer: A vague law is so unclear that a reasonable person cannot understand it and know
what expression is prohibited; to avoid running afoul of a vague law, speakers will censor
themselves.
An overbroad law regulates speech that constitutionally may be regulated but it also regulates
protected speech.
The Supreme Court declared "indecency" in the Telecommunications Act of 1996 to be
unconstitutionally vague because it was not precisely defined. The law prohibiting indecency
was also overbroad because it unconstitutionally prohibited protected indecent speech for
adults while constitutionally prohibiting indecency for minors.
4) Why have publishers said good riddance to the "bad tendency" test?
Answer: The bad tendency test was vague and elusive, allowing government to prohibit or
punish expression having a "tendency" to harm, without the government having to
demonstrate the speech would cause concrete harm.
5) Explain briefly what Alexander Bickel, the New York Times' attorney in the Pentagon
Papers case, meant when he said after his victory: "We extend the legal reality of freedom of
at some cost to its limitless appearance."
Answer: Bickel meant that the Supreme Court suggested limits to First Amendment freedoms
at the same time it ruled the New York Times had a First Amendment right to publish stolen,
confidential documents. Before the Pentagon Papers case, First Amendment freedoms may
have appeared limitless because the Supreme Court had never ruled on the constitutionality
of a prior restraint on the publication of stolen government documents. The Times won a
great victory in New York Times v. United States, but all justices except two suggested
circumstances in which an injunction on publication might be constitutional in the future,
thus curbing the "limitless appearance" of freedom.
Test Bank for The Law of Public Communication
Kent R. Middleton, William E. Lee
9780205484683
