Schenck v. United States (1919)

Schenck v. United States (1919)

• Charles Schenck and Elizabeth Baer produced leaflets advising people not to enroll in the draft or obey the drafting system peacefully, which was seen as insubordination towards the USA
• The government viewed this as a violation of the Espionage Act
• The central question was whether this violated the First Amendment right to free speech
• The court ruled conviction under the Espionage Act did not violate the First Amendment
• This raised discussion on how to determine what is protected by the First Amendment on a case-by-case basis
• "Clear and present danger" means speech can be restricted if it creates a clear and present danger causing significant harm the government has a right to prevent
  • Clear = obvious and direct
  • Present = imminent danger
  • Danger = speech that poses a serious threat
• Leaflets advertising anti-war speech posed an immediate threat to national security
• The case relates to Brandenburg v. Ohio, but the key difference is Branzburg v. Ohio requires speech to DIRECTLY ask for illegal actions
• Oliver Wendell Holmes claimed Schenck's speech may have been permitted in normal times, however, conflict times require stricter interpretation, influencing the court's decision

Palko v. Connecticut (1937)

• Palko was convicted of first-degree murder after being charged with second degree initially and sentenced to life in prison, after an appeal, the state of Connecticut retried Palko, who was then sentenced to death
• The issue raised potential violation of Fifth Amendment protections against double jeopardy
• The question was whether the Fifth Amendment's double jeopardy clause applied to the states via the Fourteenth Amendment's due process clause
• The state of Connecticut argued retrying Palko did not violate the Fifth Amendment because it did not violate fundamental rights to liberty
• Total incorporation, the doctrine applying the Bill of Rights to all states, was denied
• Connecticut supported selective incorporation, arguing only fundamental rights were protected
• Religion and speech were fundamental rights, but self-incrimination was not incorporated in Palko's case
• The court ruled this case was not in violation of the Fifth Amendment nor the Fourteenth Amendment's due process clause because the rights being tried were not fundamental to liberty

Brandenburg v. Ohio (1969)

• Brandenburg, a KKK leader, was prosecuted under Ohio's syndicalism law prohibiting gatherings and speech instigating terrorism, violence, and illegal activity
• Brandenburg claimed Ohio's law violated the First and Fourteenth Amendments regarding freedom of speech
• SCOTUS determined Ohio's syndicalism law was too broad, violating freedom of speech and Brandenburg's rights to speech and assembly
• Ohio created a two-pronged system to narrow what the First and Fourteenth Amendments protect
• The "imminent lawless action test" was created
  • Speech must incite or produce imminent lawless action
  • Such action must be likely to occur
• The case was important for political speech protection, making it harder for states and governments to limit the speech and actions of political groups

Lochner v. New York (1905)

• This case involved the Bakeshop Act in NY prohibiting bakers from working over 60 hours a week
• Lochner was fined for allowing an employee to work more than 60 hours and contested the fine, arguing the Fourteenth Amendment should protect his right to contract
• The question was whether the New York Bakeshop Act violated the liberty to contract, protected but not explicitly stated
• Lochner argued the constitution stating “No state shall deprive any person of life, liberty, or property, without due process of law" should apply to economic liberty, which was limited by NY's restrictions on working hours
• Bakeries were those in need of economic liberty and of low income; therefore more hours should benefit thenm
• The state argued this was made to protect the workers, but the workers did not need any help
• The court determined NY failed the "rational basis test," the most lenient standard to determine if a law/govt action is constitutional under the Equal Protection Clause/Due Process Clause of the Fourteenth Amendment

Obergefell v. Hodges (2014)

• Same-sex couples in multiple states sued the state for banning same-sex marriages
• These couples argued states violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment
• The question was if the Fourteenth Amendment requires states to license and recognize same-sex marriages
• Judge Kennedy ruled in a 5-4 decision that the right to marry is guaranteed and protected by the Fourteenth Amendment and linked marriage to individual autonomy stated in the constitution
• Justice Roberts dissented, arguing the Constitution does not explicitly address same-sex marriage, so it should be decided by state legislatures
• Justice Scalia dissented, stating decisions should be made by the legislature rather than non-elected justices
• SCOTUS used substantial due process to indicate same-sex marriage is protected by the Fourteenth Amendment

Griswold v. Connecticut (1964)

• Connecticut law prohibited distributing contraceptive medicine
• Lee Buxton and Elis Griswold opened a clinic in New Haven offering contraceptive methods
• They were sued for violating Connecticut's ban on contraceptives (aiding and abetting)
• Buxton and Griswold argued the ban violated marital privacy
• SCOTUS, with Justice Douglas writing that the right to marital privacy, not explicitly stated, is protected by the constitution as the penumbra of the BOR establishes individual privacy rights
• Douglass asked about "penumbra"
  • Are there rights that are the periphery of amendments?
  • "Zone of privacy created by several fundamental constitutional guarantees...Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?” (Pg. 485)
• Justice Goldberg highlighted the Ninth and Fourteenth Amendments conveyed a right to privacy
• Justice Harlan stated the right to privacy can be seen in the Fourteenth Amendment's right to due process
• Douglas held a plurality opinion that penumbra is the rights in the periphery of the amendments and privacy is implied through several amendments:
  • 1st Amendment, right to free association suggests privacy in relationships
  • 3rd Amendment, no forced quartering suggests privacy in the home
  • 4th Amendment, protections from searches imply right to personal security
  • 5th Amendment, right against self-incrimination suggests privacy in decisions
  • 9th Amendment, protects unenumerated rights, implying broader privacy protections
• Justice Goldberg stated the 9th Amendment leaves door open to interpretation, where the Ninth Amendment supports the recognition of unenumerated rights, including marriage
• He stated the right to privacy in marriage is a basic right, strengthening due process
• Justice Harlan argued privacy is protected under the Fourteenth Amendment’s Due Process Clause
• Justices Black and Stewart rejected penumbras or the rationality test
  • said the constitution should be changed legislatively, not by justices
  • Black was a textualist
  • Stewart said the law was "uncommonly silly" but not prohibited by the constitution
• He believed Justices should not use perspectives and should leave it to the democratic process

Loving v. Virginia (1967)

• Mildred Jeter (black) and Richard Loving (white), an interracial couple, married in D.C. and returned to Virginia, and Virgina found them guilty of violating the state ban on interracial marriages, antimiscegenation
• The state gave them the option to leave Virginia and never return for 25 years
• The question was the Virginia ban of interracial marriage violating the Fourteenth Amendment's Equal Protection Clause
• SCOTUS ruled in a unanimous decision that Virginia's antimiscegenation law was unconstitutional, since the right to marry transcends race
• The Court rejected the states' argument that this applied to both races, violating free-will

Roe v. Wade (1973)

• Jane Roe sued Henry Wade (Dallas DA) for making it illegal for a woman to have an abortion, stating this law violates a woman's right to privacy protected by the 1st, 5th, 9th, and 14th Amendments
• Did Constitution regognize woman's right to abortion?
• The 14th Amendment protects privacy for men and women, however there is a line protecting potentiality in life
• Argues that abortion is not life threatening and also threatening potentiality of life, which is supposed to also be proteced by the 14th amendment
• *SCOTUS concludd that the 14th amendment with due process protects right to privacy and the woman's right to an abortion does fall under teh right of privacy