; structuralism.2.08
Documents
Resources
Learning Center
Upload
Plans & pricing Sign in
Sign Out
Your Federal Quarterly Tax Payments are due April 15th Get Help Now >>

structuralism.2.08

VIEWS: 21 PAGES: 38

  • pg 1
									  Check Mike


  Check Sound


  Circulate Attendance




Time
             Today’s Lecture:




Policy Preference and Structuralism


1. What is Structuralism?
2. Why is it Significant?
        Judges and Their Individual Brains


introduction
-- Note that each of you has your own personality
-- note that each of you has a world view that you are
assembling
-- note that, for some of you, your world view may be in flux,
while for others it may be fortified or fixed
                                     e
                              Experience

              A
            Attitudes

                                       i
                               Information


1/18/2007               (C) Copyright Sean Wilson. 2007.   4
                        Learning Curve



                                     e
                              Experience

              A
            Attitudes

                                       i
                               Information


1/18/2007               (C) Copyright Sean Wilson. 2007.   5
                           Obstinacy



                                     e
                              Experience

              A
            Attitudes

                                       i
                               Information


1/18/2007               (C) Copyright Sean Wilson. 2007.   6
                  Texas v. Johnson


Facts:

  -- Federal government is trying to outlaw flag burning




                                          Question:
                                     What are the facts of
                                         this case?
                      Texas v. Johnson


 Facts:

  History

-- This case has a history that needs explained to you
-- let’s look at it
-- There are three important cases that precede this one:
    • Street v. New York
    • Smith v. Goguen
    • Spence v. Washington
                   Texas v. Johnson


Facts:

 History

     Street v. New York (1969)
  -- When a civil rights leader was shot, this guy took the
  streets and torched a flag
  -- Charged with a crime of malicious mischief
                                          Question:
                                           Question:
                                     What do you think
                                     Why would you think
                                    Warren’s position was
                                              that?
                                        in this case?
Warren Dissent:

                                                Religious term
"I believe that the States and the Federal Government do
have the power to protect the flag from acts of desecration
and disgrace. But because the Court has not met the issue, it
would serve no purpose to delineate my reasons for this view.
However, it is difficult for me to imagine that, had the Court
     The Court ducked the issue
faced this issue, it would have concluded otherwise. Since I
am satisfied that the constitutionality of appellant's conduct
should be resolved in this case and am convinced that this
conduct can be criminally punished, I dissent."
Street, 394 U.S. 576, 605 (1969).
                  The Apparent Loophole


The charge:
               The Indictment was too broad

the defendant committed "the crime of Malicious Mischief in that
[he] did willfully and unlawfully defile, cast contempt upon and
burn an American Flag, in violation of 1425-16-D of the Penal
Law, under the following circumstances: . . . [he] did willfully and
unlawfully set fire to an American Flag and shout, `If they did
that to Meredith, We don't need an American Flag.'"
                                Watering down the doctrine
  Remember game theory?
Street, 394 U.S. 576, 579 (1969).
                                1. Those who wanted to overturn
                                   the conviction needed to water
                                   down the opinion to get others on
                                   board. (That is what Warren is
                                   complaining about).
                      The Voting Alignment


                 0 = convict                      X = set free


--O------X------------X-------O-----O------X--------O------X--------X---


                            Warren           Brennan       Marshall
  White
                  Stewart
                                     Black
       Harlan                                          Fortas    Douglas
                      The Voting Alignment
     Had to entice these two
                                                   These three


--O------X------------X-------O-----O------X--------O------X--------X---


                            Warren           Brennan       Marshall
  White
                  Stewart
                                     Black
       Harlan                                          Fortas    Douglas
                   Texas v. Johnson


Facts:

 History

    Smith v. Goguen (1974)
  -- a kid sewed a small flag onto the seat of his pants
  -- he was not at the time involved in a protest (just a fashion
  thing)
  -- a police officer arrested him for “flag misuse”
  -- defined as “treating the flag contemptuously in public.”
                                                   critical point
                   Texas v. Johnson


Facts:

 History

    Smith v. Goguen (1974)
  -- conviction overturned, 6-3
  -- “the law was too vague” (explain)
  -- Justices Powell and White, both conservative, voted to
  overturn the conviction
  (without them, the outcome changes)
                  Texas v. Johnson


Facts:

 History

    Spence v. Washington (1974)
  -- following the Cambodia bombings and the deaths at Kent
  state …
  -- a college student hung a flag upside down and attached a
  peace sign to it
  -- He was convicted of improperly displaying an American
  flag.
                     Texas v. Johnson


Facts:

 History

    Spence v. Washington (1974)
  -- conviction was overturned, barely, 5-4.
  -- Powell, a Nixon appointee, provided the crucial winning
  vote
  -- The Court’s position was apologetic:

           1. this could be explained by “tough circumstances”
           2. He was a young college student who was upset.
                   The Majority Logic


Majority:

This time, flag mutilation was allowed because of the “special”
circumstances of the case: it didn’t occur in public where disorder
might occur; it was completely on the defendant’s private
property; and it happened within the immediacy of discreet
national events, meaning it was not “an act of mindless nihilism.”
                   Texas v. Johnson


Facts:

 History

    What’s the point?
  -- in each case, the Court refuses to declare flag burning a
  constitutional right of free speech
  -- in each case there is some excuse
  (law is too vague, the indictment was too broad, the times
  were hard, etc.)
                    Texas v. Johnson


Facts:

 This case:

  -- in this case, all of that will change.
  -- in this case, there finally is a “mindless act of nihilism”
  -- Gregory Johnson torches a flag outside of a republican
  national convention in 1984 largely because he just wanted
  to prove a point.
                                       Question:
                                     How does this case
                                        come out?
                      Texas v. Johnson


Facts:

 The logic:

  -- non-alphabetic symbols can be used in communication
         (1) sentential “utterance”
  -- Other examples of “symbolic communication”:
          • burning crosses           • the middle finger
          • the peace sign            • A protest “skit”
          • the flag salute
    Question:
    Question:
 How do you think
What would make you
     say that?
  Scalia voted?
I write not to qualify the words Justice Brennan chooses so
well, for he says with power all that is necessary to explain
our ruling. I join his opinion without reservation, but with a
keen sense that this case, like others before us from time to
time, exacts its personal toll. ... The hard fact is that
sometimes we must make decisions we do not like. We make
them because they are right, right in the sense that the law
and the Constitution, as we see them, compel the result. …
... Our colleagues in dissent advance powerful arguments
why respondent may be convicted for his expression,
reminding us that among those who will be dismayed by our
holding will be some who have had the singular honor of
carrying the flag in battle. ... With all respect to those views, I
do not believe the Constitution gives us the right to rule as
the dissenting Members of the Court urge, however painful
this judgment is to announce. ... For all the record shows,
this respondent was not a philosopher and perhaps did not
even possess the ability to comprehend how repellent his
statements must be to the Republic itself. But whether or not
he could appreciate the enormity of the offense he gave, the
fact remains that his acts were speech, in both the technical
and the fundamental meaning of the Constitution. So I agree
with the Court that he must go free.[i]
                                  •
[i]. Johnson, 418 U.S. 405, 420-421 (1989)
                      The Voting Alignment


                 0 = convict                      X = set free


--O------X------------X-------O-----O------X--------O------X--------X---


                          O'Connor       Blackmun
  Rehnquist                                               Brennan
                 Kennedy             White
                                                Stevens
        Scalia                                               Marshall
                      The Voting Alignment

        Need These Three
                                                           These Two



--O------X------------X-------O-----O------X--------O------X--------X---


                          O'Connor       Blackmun
  Rehnquist                                               Brennan
                 Kennedy             White
                                                Stevens
        Scalia                                               Marshall

            Doctrine is NOT watered down. It’s a principled decision
                 The Rehnquist Opinion


               1. Appeal to natural law.
                   “History is claim: that flag burning
               2. an empiricalmore important than logic”
               is non-communicative
                  analogy: that it is an fighting
               3. “the equivalent of likeinarticulate grunt or roar
               words.                           Question:
               4. appeals to patriotism Was the Rehnquist
                                        opinion objective?
  His opinion quotes verses from Ralph Waldo Emerson's
The epistemology is problematic          What did Key’s
  "Concord Hymn" and stanzas from Francis Scott it say?
  poem that later became the national anthem
                      Ideation




                         the
Empiricism            triangle        Values




             The Rehnquist Opinion?
                      Ideation




                          the
Empiricism             triangle            Values




             The Scalia/Kennedy Opinion?
                 Core Political Speech


introduction
-- Having just looked at one issue regarding speech, let’s look
at what the decisions look like in this area
                                                                             Data
Classplot: erotica voting
                                                                             Analysis
             NOTE: Each symbol represents 1 to 2 cases
                 BRM
                 Classification Plot

                                                                        25

                                                                        20

                                                                        15




                                                                Count
                                                                        10

                                                                        5

                                                                 0
             0     10   20    30 40 50 60 70 80            90 100
                             Predicted Probability (%)

                        Not vote        vote        vote & not vote



            Tau-p: 0.41; R2L : 0.21 Phi-p: 0.40

4/9/2007                   Copyright, 2007, Sean Wilson                             31
                                                                        Data
Classplot: core political speech
                                                                        Analysis
            NOTE: Each symbol represents 1 to 5 cases
                BRM
                Classification Plot
                                                                  100

                                                                  80

                                                                  60




                                                               Count
                                                                  40

                                                                  20

                                                                0
            0     10   20     30 40 50 60 70 80            90 100
                            Predicted Probability (%)

                       Not vote        vote        vote & not vote



                   Tau-p: ** R2L : 0.03 Phi-p: **

4/9/2007                    Copyright, 2007, Sean Wilson                       32
    A protester wore a military uniform in an anti-war theatrical
    demonstration held outside an Army-induction center in Houston. He
                          protester with a water gun filled with red liquid,
    would shoot a fellow Leftist Speech                                        Burger
0   which looked like blood. The skit would end with the discovery that the    Harlan
    person shot was really a pregnant woman. He was convicted of               White
    wearing a military uniform without authorization. Held, conviction
    overturned. Schacht v. United States, 398 U.S. 58 (1970).
    Leftist students wanted to form an anarchist group at a state university.
    They were denied recognition because the group was associated with
                                                                               White
    disruption and violence. The student code forbid disrupting class and
                                                                              Rehnquist
0   violating others’ rights. Held, the university is violating the right of
                                                                               Burger
    association. The University may prohibit actual disruption, but not the
                                                                               Powell
    mere preaching, advocating or discussing such things. Case
    Remanded. Healy v. James, 408 U.S. 169 (1972).
    Socialists wanted to be excluded from campaign reporting laws. Two
                                                                             White
    issues emerged: (1) whether Socialists have to disclose the identity of
                                                                            Rehnquist
    their contributors pursuant to law; and (2) whether they have to
0                                                                            Burger
    disclose how they spent campaign funds. Held, Socialists win on all
                                                                             Powell
    issues. This entry is the vote on issue (1). Brown v. Socialist Workers
                                                                            O’Connor
    '74 Campaign Comm., 459 U.S. 87 (1982).

     4/9/2007                    Copyright, 2007, Sean Wilson                     33
      Citizen cursed the police, who were busily arresting her son: “God
      damn mother fuckers,” she said. Convicted of using obscene or
0
                        Anti-police police officer. Held, overturned.
      opprobrious language toward a speech                                     White
      Lewis v. New Orleans, 408 U.S. 913 (1972); and 415 U.S. 130              Powell
      (1974) (case appealed again from remand, with same issue, same
      vote).
      Brown, a Black Panther, referred to the police as “mother fucking
0
      fascist pig cops” and one particular officer as “that black mother       White
      fucking pig.” Held, permissible speech. Brown v. Oklahoma, 408           Powell
      U.S. 914 (1972).
      A gay political activist living in an a diverse and eclectic
      neighborhood that is the center of gay political and social life in
      Houston, witnessed police officers accosting a friend. Becoming
      angered, he tried to distract officer attention away from the friend
                                                                               Scalia
      by shouting, "Why don't you pick on somebody your own size?”
                                                                               Powell
0     The officer replied, "Are you interrupting me in my official capacity
                                                                               White
      as a Houston police officer?" The defendant shouted, “Yes, why
                                                                              O’Connor
      don't you pick on somebody my size?" He was charged with
      obstruction. Held, conviction overturned. The First Amendment
      allows you to verbally disparage police officers. Houston v. Hill,
      482 U.S. 451 (1987).
    4/9/2007                     Copyright, 2007, Sean Wilson                      34
         An Illinois trial court issued an injunction which denied
                          Nazis the Rape
         Nazis the right to displayandswastika, distribute pamphlets
         and march or walk in Skokie. The problem was that no
         Court in Illinois would stay the order so appeal could be
                                                                      Burger
Brennan taken. The issue before the US Supreme Court was
                                                                      White
Marshall whether it could treat a denial of a stay as a “final
                                                                      Powell
Stevens judgment” for purposes of taking jurisdiction. Two issues
                                                                     Rehnquist
         exist: (1) whether the Nazi's have a right to march in
         Skokie; and (2) whether a stay should be issued. Held,
         Nazi’s can march, stay granted. National Socialist Party v.
         Skokie, 432 U.S. 43 (1977) (vote on the first issue only).
         Indianapolis passed an ordinance that criminalized the
         graphic, sexually explicit subordination of women, whether
         in pictures or words, that included the depiction of women
Stevens
         as sexual objects who enjoy pain or humiliation,              Powell
Brennan
         experience     sexual     pleasure    from    rape.   Held,   White
Marshall
         unconstitutional. American Booksellers Ass’n v. Hudnut,
         771 F.2d 323 (7th Cir. 1985), summarily aff’d, 475
         U.S.1001 (1986).
  4/9/2007                   Copyright, 2007, Sean Wilson                   35
                          Phone Sex
       The FCC tried to ban sexually-oriented pre-recorded
       telephone messages by relying on a statute that bans      Rehnquist
       obscene     and    indecent     commercial    telephone    Scalia
       messages. Held, you can ban obscene messages, but         O’Connor
       not indecent ones.The constitution protects indecent      Kennedy
       phone calls. Sable Communications, Inc. v. FCC, 492        White
       U.S. 115 (1989). (This is the vote on indecency only).
       The state of Washington attempted to criminalize films    Rehnquist
       that incite "lust.” Held, the First Amendment protects     Burger
       visual images that incite lust. Brockett v. Spokane       O’Connor
       Arcades, Inc., 472 U.S. 491 (1985).                        White




4/9/2007                   Copyright, 2007, Sean Wilson                      36
                                                                             Cases
      Federal law prohibited the unsolicited mailing of ads for
                        Advertising Vice                                   Rehnquist
      contraceptives. A company wanted to mass mail unsolicited
                                                                            Burger
      advertisements promoting its contraceptive products and
0                                                                          O'Connor
      discussing venereal disease and family planning. Held, condom
                                                                            Powell
      mailings are free speech. Bolger v. Youngs Drug Products, 463
                                                                            White
      U.S. 60 (1983).
      Rhode Island banned merchants from advertising the price of
                                                                           Rehnquist
      liquor in places other than a sign in front of their store. They
                                                                            Thomas
      could not publish in news media, billboards, radio, etc., the fact
0                                                                            Scalia
      that they had lower prices than other merchants. Held, the
                                                                           O'Connor
      Constitution    protects liquor ads; this is free speech. 44
                                                                           Kennedy
      Liquormart, v. Rhode Island, 517 U.S. 484 (1996).
      The federal government tried to ban disclosure of alcohol
      content of beer on labels. It argued that the ban was necessary      Rehnquist
      to suppress the threat of "strength wars" among brewers, who,         Thomas
0     without the regulation, would seek to compete in the                   Scalia
      marketplace based on the potency of their beer. Held, beer-          O'Connor
      strength ads are free speech. Rubin v. Coors Brewing Co., 514        Kennedy
      U.S. 476 (1995).


    4/9/2007                    Copyright, 2007, Sean Wilson                     37
                                                                        Data
Classplot: core political speech
                                                                        Analysis
            NOTE: Each symbol represents 1 to 5 cases
                BRM
                Classification Plot
                                                                  100

                                                                  80

                                                                  60




                                                               Count
                                                                  40

                                                                  20

                                                                0
            0     10   20     30 40 50 60 70 80            90 100
                            Predicted Probability (%)

                       Not vote        vote        vote & not vote



                   Tau-p: ** R2L : 0.03 Phi-p: **

4/9/2007                    Copyright, 2007, Sean Wilson                       38

								
To top