CRL Exam 2 – Intermediate-Level Questions with Correct Answers
Schenck v. US
- Schenck encouraged protesting the draft and was convicted of violating the Espionage Act
- Schenck argued a distinction between speech and action
- Actions presented a "clear and present danger" --> no 1st violation
- representative democracy
constitutionalism focuses on individual liberties, judges are in the best position to protect those
rights, judges strike down laws
representative democracy
court's duty is to make sure there is no clear constitutional violation and only interfere when
necessary
,tests for free speech cases
- bad tendency test
- balancing approach
- clear and probable danger
- clear and present danger
- preferred freedoms
- absolutist
clear and present danger the US may constitutionally punish speech that produces or is
intended to produce a clear and present danger that will bring about evils that the US
constitutionally may seek to prevent
Abrams v. US
- Abrams criticized the US's involvement in WWI and was convicted
- Used bad tendency test and found no 1st violation
- Dissent: should have used clear and present danger test
- representative democracy
bad tendency test determines whether the speech that is reviewed has a "tendency" to bring
about something evil
Gitlow v. NY
- Gitlow distributed a left wing manifesto and was convicted under NY's Criminal Anarchy Law
, - Gitlow and NY both addressed issue of 14th Amendment as incorporating 1st Amendment
- Court acknowledged that the 1st can be incorporated through the 14th and found no 1st violation-
used bad tendency test
- dissent wanted clear and present danger test
- representative democracy
preferred freedoms approach
fundamental liberties are subject to strict scrutiny
balancing approach court balances two sides with preference
given to the government
advocacy v action it is constitutional to advocate or teach about overthrowing the government but
not constitutional to advocate action or incite action
Dennis v. US
- Dennis was leader of Communist Party convicted of knowingly conspiring to teach and
advocateforceful overthrow of government (violated Smith Act)
- Court focused on intent and used the clear and probable danger test to find a 1st violation
- Concurrence: balancing test
- Dissent: preferred freedoms approach- constitutionalism
Schenck v. US
- Schenck encouraged protesting the draft and was convicted of violating the Espionage Act
- Schenck argued a distinction between speech and action
- Actions presented a "clear and present danger" --> no 1st violation
- representative democracy
constitutionalism focuses on individual liberties, judges are in the best position to protect those
rights, judges strike down laws
representative democracy
court's duty is to make sure there is no clear constitutional violation and only interfere when
necessary
,tests for free speech cases
- bad tendency test
- balancing approach
- clear and probable danger
- clear and present danger
- preferred freedoms
- absolutist
clear and present danger the US may constitutionally punish speech that produces or is
intended to produce a clear and present danger that will bring about evils that the US
constitutionally may seek to prevent
Abrams v. US
- Abrams criticized the US's involvement in WWI and was convicted
- Used bad tendency test and found no 1st violation
- Dissent: should have used clear and present danger test
- representative democracy
bad tendency test determines whether the speech that is reviewed has a "tendency" to bring
about something evil
Gitlow v. NY
- Gitlow distributed a left wing manifesto and was convicted under NY's Criminal Anarchy Law
, - Gitlow and NY both addressed issue of 14th Amendment as incorporating 1st Amendment
- Court acknowledged that the 1st can be incorporated through the 14th and found no 1st violation-
used bad tendency test
- dissent wanted clear and present danger test
- representative democracy
preferred freedoms approach
fundamental liberties are subject to strict scrutiny
balancing approach court balances two sides with preference
given to the government
advocacy v action it is constitutional to advocate or teach about overthrowing the government but
not constitutional to advocate action or incite action
Dennis v. US
- Dennis was leader of Communist Party convicted of knowingly conspiring to teach and
advocateforceful overthrow of government (violated Smith Act)
- Court focused on intent and used the clear and probable danger test to find a 1st violation
- Concurrence: balancing test
- Dissent: preferred freedoms approach- constitutionalism
