1. How does the Supreme Court decide cases?

2. Sample Case: Virginia v. Black (2003) The Law: Virginia 18.2-423 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. 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: 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: 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: 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? 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 Textual analysis Original intent Original intent Modernist Modernist Precedent** 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) Schenck v. U.S. (1919) General Secretary of the American Socialist Party 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” 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 Holmes decision created the Clear and Present Danger test demanded only that government show a bad tendency demanded only that government show a bad tendency Schenck’s conviction upheld Schenck’s conviction upheld

10. Sample Case: Virginia v. Black (2003) Debs v. U.S. (1919) Debs v. U.S. (1919) Socialist Eugene Debs gave a speech “Socialism is the Answer’ before 1,200 people in Ohio 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.” 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 Court used bad-tendency test to uphold his 10 year sentence

11. Sample Case: Virginia v. Black (2003) Abrams v. U.S. (1919) 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 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” 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 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 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) 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. 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.” 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 This view EVENTUALLY prevailed

13. Sample Case: Virginia v. Black (2003) Brandenburg v. Ohio (1969) 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. 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. 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.” 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) 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.” 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 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. 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." “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. 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.