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Lecture 9

LEGALST 39D Lecture Notes - Lecture 9: Commercial Speech, Nuremberg Trials, Chaplinsky V. New Hampshire

Legal Studies
Course Code
Alan Pomerantz

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Legal Studies 39D
Lecture 9
Schenck v. U.S. (1919 WWI)
- Clear and present danger that they will bring about the substantive evils that
Congress has a right to prevent if you say words that we the government
don’t like that will bring about action that we the government have a right to
protect, the law can abridge free speech
Holmes changed clear and present danger standard to clear and imminent standard
- Likely to bring about a substantive evil imminent
If you are holding a gun, can you stop that person from firing? Yes
How about words that may cause danger?
Value judgment on the part of the policeman when determining whether the words
will incite violence
Brandenburg v. Ohio (1969 Civil Rights Movements)
- KKK leader march, derogatory of blacks and Jews
- Ohio law cannot advocate the overthrow of government by these means
- Syndicalism: organization for criminal purposes
- Burned wooden cross, speaking in a derogatory manner towards blacks and
- Convicted, appealed to Supreme
- Court: law is not constitutional
- Overturning Schenck? Yes, using the imminent standard
- The mere abstract teaching of the moral propriety or even moral necessity
for a resort to force and violence is not the same as preparing as a group for
violent action and steeling it to such action
- Douglas: (concurring) government should not have a right to put you in jail
for what you believe
o When speech and action are intertwined (action must happen with
the speech), speech is subject to regulation
o Speech brigaded with action
o This is not really speech, not just speech, but speech connected with
action (creates a legal fiction)
o Otherwise, speech is immune from prosecution
o Douglas = originalist
o Speech with action
o Every idea is an incitement -D
Nuremberg trials: we prosecuted people for NOT opposing the government
Tricky to prosecute them for opposing the government, moral obligation to carry
out civil disobedience
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