American Constitutionalism in Historical Perspective (packet)

Expansive use of overbreadth to encourage free speech, remove statutes w/ chilling effect.

1. 
   Aptheker v. Secretary of State, 1964: struck down statute restricting passport use of members of the communist party b/c could be applied to passive members and would have chilling effect on their protected speech. Also would impede on freedom of movement of all members to go anywhere (not just Russia). If narrowly turned statute it could have worked. Overbreadth challenges are quite often applied to person who isn’t protected or who is posing a clear and present danger. But still may be struck down under facial analysis.
   
2. 
   Brandenburg v. Ohio, 1969: Strikes down Ohio Syndicalism statute convicting members of the KKK. This is protected speech, they are subversive advocates (attacking established legal and constitutional principles).
   
   1. 
      Whitney overruled and replaced by Brandeis’ Whitney concurrence—no more criminal syndicalism laws. Cite Dennis but uprooting holding, now adopting reasonable rule of clear and present danger. Harmful but lacks high probability and is rebuttable so fails clear and present danger test. Extending protection of speech more broadly, want to remain legit since already recognized these rts for blacks--not going to pick and choose among different types of speech. Schenck, Frowerk and Debs are dead. Allows Vietnam anti-war movements. Clear and present danger moves from tendency test to Whitney concurrence.
      
   2. 
      Douglas Concurrence: don’t need clear and present danger test in peace time, ct should guarantee everyone a right of dissent (protects feminist, gay rts, and anti-racism dissents)
      
3. 
   Hess v. Indiana, 1973: advocacy of action and belief requirements are removed. Now all speech is protected unless there is a clear and present danger. Protects antiwar movement’s ability to dissent. Schenck, Frowerk and Debs are dead.
   
4. 
   Gooding v. Wilson, 1972: Struck down statute forbidding criticism of the govt. C/n have this chilling effect on speech, particularly when it is critical of the govt.
   
5. 
   U.S. v. Robel, 1967: Strikes down law that got Communist fired from his federal job b/c could be applied to the passive advocate or someone who’s job d/n pose security risk. This restricts political affiliation to the left and this c/n happen.
   
6. 
   Schaumberg v. Citizens for Better Environment, 1980: statute req that 75% of funds collected by NP groups had to be used for charity purposes to limit fraud. Court struck down the statute, there are other ways of preventing fraud, this rule sweeps in too many legit groups.
   
7. 
   Houston v. Hill, 1987: D arrested under criminal statute that forbids verbally assaulting an officer. Court strikes down the statute, challenging an officer could encompass a lot of behaviors. Have a rt to speak our minds and challenge authority in a free society..
   
8. 
   Bd of Airport Comm’n v. Jews for Jesus, 1987: D are Hari Krishnas convicted under statute that says there can be no speech at the airport. Court strikes this down, sweeps in too many valid speech activities.