How does the Supreme Court decide cases?

1. How does the Supreme Court decide cases?

2. Sample Case: Virginia v. Black (2003) • The Law: Virginia 18.2-423 • It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.

3. Sample Case: Virginia v. Black (2003) • What happened: 1. Richard Elliott of Virginia Beach decides to “get back at” the interracial couple who lives next door for complaining about gunshots coming from his backyard. He attempts to burn a cross on their lawn.

4. Sample Case: Virginia v. Black (2003) • What happened: 2. Barry Elton Black, a KKK leader, burns a 25-foot tall cross at a rally in Virginia. The burning cross is visible from a nearby highway.

5. Sample Case: Virginia v. Black (2003) • What happened: Both Elliott and Black are convicted at trial of violating the cross-burning law. The Virginia Supreme Court consolidated the cases and overturned both convictions, ruling 4-3 that the law violated the First Amendment. Virginia appeals the case to the U.S. Supreme Court.

6. Sample Case: Virginia v. Black (2003) • How does the U.S. Supreme Court decide whether burning a cross is protected “speech” under the First Amendment?

7. Sample Case: Virginia v. Black (2003) Remember these? • Textual analysis • Original intent • Modernist • Precedent**

8. Sample Case: Virginia v. Black (2003) One major line of speech cases is the evolution of the “clear and present danger” test, created in 1919.

9. Sample Case: Virginia v. Black (2003) • Schenck v. U.S. (1919) • General Secretary of the American Socialist Party • Convicted for distributing 15,000 leaflets critical of the draft: “assert your rights – do not submit to intimidation” • Holmes decision created the Clear and Present Danger test • demanded only that government show a bad tendency • Schenck’s conviction upheld

10. Sample Case: Virginia v. Black (2003) • Debs v. U.S. (1919) • Socialist Eugene Debs gave a speech “Socialism is the Answer’ before 1,200 people in Ohio • Prosecuted for remarks like “I might not be able to say all that I think, but you need to know that you are fit for something better than slavery and common fodder.” • Court used bad-tendency test to uphold his 10 year sentence

11. Sample Case: Virginia v. Black (2003) • Abrams v. U.S. (1919) • Court upholds Espionage Act convictions of Jacob Abrams and other anarchists, who had criticized U.S. for sending troops to Europe during the Russian revolution • Justices Holmes and Brandeis publish a famous dissent, saying this speech was no real danger to U.S. efforts and thus did not fit the definition “clear and present danger” • Holmes wrote “the best test of truth is competition in the market” of ideas • Holmes also wrote that government could only “punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils” which Congress has a right to prevent

12. Sample Case: Virginia v. Black (2003) • Whitney v. California (1927) • Court upheld the conviction of a woman who attended an organizational meeting of the Communist Labor Party in California. Her participation was ruled an abuse of free speech under a law that prohibited speech that disturbed the peace, incited crime or threatened the overthrow of government. • Brandeis and Holmes were in the majority. Brandeis wrote “even advocacy of [law] violation however reprehensible morally is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted upon.” • This view EVENTUALLY prevailed

13. Sample Case: Virginia v. Black (2003) • Brandenburg v. Ohio (1969) • A small group of KKK members in Ohio invited a TV news station to film their rally. They brandished rifles, made racist statements, and said they would march on Congress. • Leader was arrested and convicted under a law similar to the Whitney law. • Court overruled Whitney, saying the state can only forbid speech that produces “imminent lawless action.”

14. Sample Case: Virginia v. Black (2003) • Hess v. Indiana (1973) • Student antiwar demonstration got out of hand. Police came in riot gear. One student was arrested after shouting “we’ll take the fucking street later.” • Court said there was no imminent danger, overturned his conviction

15. Sample Case: Virginia v. Black (2003) How does this apply to the cross-burning case? Does cross-burning present a clear and present danger? Is it a threat? Is the law trying to stifle a point of view? Or is it trying to prevent imminent danger?

16. Sample Case: Virginia v. Black (2003) The Outcome: • The Court found that Virginia's statute against cross burning done with an attempt to intimidate is constitutional because such expression has a long and pernicious history as a signal of impending violence. • “A State may choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm." • The Court struck down the provision in Virginia's statute which stated "Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.” The state, therefore, must prove intent to intimidate.