CASE BRIEF: Mel Mermelstein v. The Institute for Historical Review (1985)

Mel Mermelstein v. The Institute for Historical Review (1985)

Title and Citation

Mel Mermelstein v. The Institute for Historical Review, No. C 356 542 (July 22, 1985)


Facts

William David McCalden (who served as the director of the IHR from 1978-81) offered a fifty thousand dollar reward to anyone who could prove that Nazis operated gas chambers to kill Jews. McCalden and the group sent “contest applications” to Holocaust survivors, challenging them to prove that what they went through was real with diaries, photos, or other forensic evidence. One recipient, Mel Mermelstein, did send McCalden detailed accounts of his experiences and the names of other witnesses. When Mermelstein requested payment, McCalden informed him (and everyone else, via the Journal of Historic Review) that the whole thing was a publicity stunt and was just a trap that they used to lure in naïve men. Mermelstein filed charges.


Issues

1. Is the Holocaust a subject for dispute?

2. Was McCalden's $50,000 offer a legally binding promise?


Held

1. No; the events of the Holocaust are "simply a fact".

2. Yes; Mermelstein was owed the promised $50,000 based on his participation in the contest.


Reasoning

The judge proclaimed that the events of the Holocaust were not “subject to dispute” and that they were “simply a fact”, and that McCalden falsely promised a $50,000 payout that was now owed to Mermelstein.


Decision

The court found in favor of the plaintiff, Mel Mermelstein. IHR and McCalden were ordered to pay Mermelstein the original $50,000 promised plus an additional $40,000 to compensate for pain and suffering.


Significance

The judge disregarded Holocaust denial and said the events of the Holocaust were not "subject to dispute".

CASE BRIEF: Robert Corry, et al. v. Leland Stanford Junior University (1995)

Robert Corry, et al. v. Leland Stanford Junior University (1995)

Title and citation

Robert Corry, et al. v. Leland Stanford Junior University,
Case No. 740309 (Cal. Super. Ct. Feb. 27, 1995)


Facts

The issue began in an African American-themed dorm, where several students got into an argument about the race of Ludwig van Beethoven. A group of drunk white students drew Beethoven in a black caricature and posted it near the room of a black student who claimed Beethoven was mulatto; later, a black-fraternity poster was vandalized, with the word “niggers” being scrawled across it. The student who defaced the poster was not sanctioned, but simply moved to a different dorm. In response to the overarching issue, the University adopted a policy for racial harassment disciplinary action in 1990. Though no one was ever punished under the policy, four years later the University was sued by four students who challenged the policy, saying that is lowered the quality of education by not allowing the discussion of important issues.


Issues

1. Does the policy violate the First Amendment?


Held

1. Yes; the policy does violate the First Amendment based on the decisions in the earlier cases.


Reasoning

The court ruled that the policy did in fact violate the First Amendment, based on the rulings in earlier cases, and determined the policy as overbroad and content-biased.


Decision

The court ruled in favor of the plaintiffs, Robert Corry et. al.


Significance

This case upheld the precedents set in the prior cases.

CASE BRIEF: Dambrot v. Central Michigan University

Dambrot v. Central Michigan University

Title and citation

Dambrot v. Central Michigan University, 1995 FED App. 0168P (6th Cir.)


Facts

The issue was basketball coach Keith Dambrot repeatedly using the word “nigger” as a “motivational tool” during private team practices. Once it became known by officials that Dambrot used the term, he was investigated, coinciding with the filing of a complaint by a former player, and Dambrot was informed that his use of the word violated the University’s anti-harassment policy. As punishment, he accepted five days without pay. Once bad publicity had built up from the community in regard to the issue, the athletic director told Dambrot that his contract would not be renewed. Dambrot filed suit against the University, claiming that his rights to free speech, academic freedom, and due process had been violated.


Issues

1. Does Dambrot's use of the word "nigger" constitute harassment within the university's policy?


Held

1. No; the policy does not specifically identify an offensive environment.


Reasoning

The court found that the University’s policy was overbroad and void for vagueness because it does not specifically identify an offensive environment.


Decision

The court ruled in favor of the plaintiff, Keith Dambrot.


Significance

This case discusses the need for specificity in campus speech policies and again cites the void-for-vagueness issue when analyzing the speech code.

CASE BRIEF: R.A.V. v. City of St. Paul 1992

R.A.V. v. City of St. Paul 1992

Title and citation

R.A.V. v. City of St. Paul, 505 U.S. 377


Facts

In 1990 the city of St. Paul, MN adopted a hate speech ordinance that prohibited placing graffiti or other forms of offensive items such as a burning cross or swastika, which would likely incite anger or create a hostile environment, on public or private property. A minor, Robert Viktora, was charged with violating the ordinance by participating in a cross-burning on the property of an African American family. Viktora did not argue with the facts of the case but challenged the ordinance as unconstitutional because it censored expressive conduct.


Issues

1. Does the ordinance censor expressive conduct?


Held

1. Yes; the code was overbroad and censored selectively, and content-based speech codes are not constitutional.


Reasoning

The Supreme Court decided that the ordinance was overbroad and based on content (it only included specific, racial and religious fighting words and not others, such as political affiliation and did not ban fighting words against bigots, only by them).


Decision

Though lower courts dismissed the case and ruled that the city ordinance was not overbroad, the U.S. Supreme Court ruled unanimously in favor of Robert Viktora (R.A.V.).


Significance

This case set the precedent against content-based speech codes.

CASE BRIEF: Iota XI Chapter of Sigma Chi Fraternity v. George Mason University (1991)

Iota XI Chapter of Sigma Chi Fraternity

v. George Mason University (1991)

Title and citation

Iota XI Chapter of Sigma Chi Fraternity v. George Mason University (1991),
773 F. Supp. 792, 795 (E.D. Va. 1991), aff’d 993 F. 2d 386 (4th Cir. 1993)


Facts

Student leaders implored the dean to sanction Sigma Chi after a student wore blackface and a black wig with curlers, as well as pillow stuffing in the breast and buttocks area, during a spirit week. The student leaders said the display was offensive and promoted racial and sexist stereotypes. The dean prohibited Sigma Chi from holding sports and social events for two years and, during that probationary period, required them to get approval from the university to hold other planned activities. In response, Sigma Chi sued the University, claiming that their free speech rights were being violated by this sanction.


Issues

1. Can a university sanction language for being offensive?


Held

1. No; it is not lawful to punish speech simply because it may be offensive to some people.

Reasoning

The court held that the students' speech or the use of blackface cannot be banned simply because some people find it offensive, especially since GMU did not even have a hate speech code to base their decision on.

Decision

The court ruled in favor of the plaintiffs, the Iota Xi Chapter of Sigma Chi Fraternity.

Significance

This case, with the two preceding cases in 1989 and 1991, set a precedent for universities, that in order to regulate hate speech a code cannot punish protected speech, must be very clear about what is prohibited or punishable, and cannot base punishment on content of speech.

CASE BRIEF: UWM Post v. Board of Regents of the University of Wisconsin (1991)

UWM Post v.

Board of Regents of the University of Wisconsin (1991)

Title and citation

UWM Post v. Board of Regents of the University of Wisconsin,
774 F. Supp. 1163 (E.D. Wis. 1991)


Facts

This case involved a hate speech code that was intentionally reworked and clarified following the University of Michigan decision - it was clear and narrow, explicitly stating the behaviors and speech that were off-limits as part of the code. Still, a suit was filed against the University within a year of the policy’s inception, by the student newspaper. The newspaper, the UWM Post, argued that the policy was overbroad and vague, which violated their free expression rights. The University rebutted that the policy fell under the umbrella of fighting words, and that the court could narrow it if it was found to be overbroad.


Issues

1. Is the code overbroad or vague?


Held

1. Yes; the code does not fall under the fighting words umbrella, and does not specify whether intent is required in the instance of fighting words.


Reasoning

The court determined that the code was overbroad and vague, and did not fit the requirements of the fighting words doctrine (fighting words being speech that will likely lead to a breach in the peace, not just speech that harms) - the code was also vague because it didn’t clarify whether intent to create a breach of peace would count as fighting words, or if a hostile environment must actual be created by the speech to count as fighting words.


Decision

The court ruled in favor of the plaintiff, the UWM Post.


Significance

Even though the aforementioned code was revamped after the Michigan decision, it was still too broad and too vague to be constitutionally protected. This demonstrates just how specific and definitive these codes must be in order to hold up to court scrutiny.

CASE BRIEF: DOE v. MICHIGAN

CASE BRIEF: DOE v. MICHIGAN (1989)


Title and citation

Doe v. Michigan, 721 F. Supp. 852 (E.D. Mich 1989)


Facts

In 1989, the plaintiff Doe filed suit against the University of Michigan, claiming that their year-old hate speech code was unconstitutional because it violated free speech rights of students. As a teaching assistant who talked about potentially sensitive subjects he wanted to have the speech code dismantled before he could be charged with violating it.

Issues

1. Is a campus speech code constitutional?

2. Can a university regulate obscenity?


Held

1. Yes; the university can have policies to protect against harassment, discrimination, threats, and assault as long as they are specific and do not extend to censoring speech based on opinion or arbitrary reasoning.

2. Yes; as long as the university specifically defines "obscenity" and offers specific parameters, giving the faculty and staff fair warning of what is punishable under the policy.


Reasoning

The court stated that the code was overbroad and vague, so that officials could pick and choose which speech to prosecute and sanction those who used speech they did not like. The judge recognized the University’s right to have policies on discrimination, harassment, threats, and assault but that that did not extend to censoring speech that the University simply did not agree with or that did not fit into their desired message or found it offensive. The court found that the University must also give fair warning as to what is prohibited under the policy and what is protected. The University cannot regulate “obscenity” without going on to define what qualifies as “obscene” within the policy. If the policy does not offer parameters, then the students and faculty cannot be expected to abide by it because they have no way of understanding which behaviors and speech are prohibited and therefore punishable.


Decision

The court ruled in favor of Doe.


Significance

The ruling in this case sets a precedent for requirements of speech codes on campuses, maintaining that all provisions must be specifically outined and defined and that students and faculty must be given fair warning of what is considered punishable.

TEXAS v. JOHNSON (1989) CASE BRIEF.

CASE BRIEF: TEXAS v. JOHNSON (1989)

Title and citation

Texas v. Johnson, 491 U.S. 397

Facts

Gregory Lee Johnson, the defendant, participated in a demonstration at the Republican National Convention in Texas in 1984. At one point during the nonviolent demonstration, Johnson was handed an American flag and he set it on fire. No one was injured but Johnson was convicted of destroying a respected object. He was fined $2,000 as well as sentenced to a year in prison. He appealed his conviction, but lost in the Court of Appeals for the Fifth District of Texas. He then took his case to the Texas Court of Criminal Appeals. His conviction was overturned; the court maintained that Johnson could not be punished for exercising a right to free speech that is protected by the First Amendment. In 1989, the Supreme Court took on the case, and affirmed (by a controversial decision of 5-4) the Texas Court of Criminal Appeals’ decision to overturn Johnson’s conviction.

Issues

1. Does flag burning pose a threat to the nation’s unity?

2. Should the flag be protected as a symbol of national unity?

3 Does the First Amendment extend to protect speech acts?

4. Is burning a flag an act of protected free speech?

Held

1. No; in this case specifically, the court decided that Johnson’s burning of a flag did not disturb the peace or pose a threat to national unity.

2. No, at least not to the point that it should be singled out from other national objects such as the Constitution as the one protected object or that the destruction of it should be criminalized.

3. Yes; the First Amendment also protects expressive conduct that is non-verbal.

4. Yes; flag burning is considered a form of expressive conduct that is protected under the First Amendment’s right to free speech.

Reasoning

Justice William J. Brennan, Jr. wrote the majority opinion, joined by Justice Blackmun, Justice Scalia, and Justice Marshall. The court considered the First Amendment and whether its free speech protection extended to include nonverbal speech acts and whether Johnson’s action could be considered expressive conduct, in which case he would be able to invoke his First Amendment rights to protect him. The court agreed that “speech” as stated in the First Amendment goes beyond spoken and written word to protect acts, that Johnson’s intended message in burning the flag was made very clear, and that the content of his intended message cannot cancel out his right to express his ideas. Though the state argued it wanted to protect the peace and venerated national objects, the court found that Johnson’s conduct did not in any way threaten the peace or pose a threat to national unity as represented by the flag.

Concurrence

Justice Anthony Kennedy wrote a short concurrence in which he agreed with the decision and reasoning of the four fellow majority justices, but sympathized with the four justices who dissented. He remarked that sometimes the nature of the law and Constitution compelled a decision that the justices did not necessarily want to make, but that was right within the laws and freedoms of the Constitution.

Dissent

Chief Justice William H. Rehnquist, joined by Justices White and O’Connor, discussed in his dissenting opinion the importance of the American flag as a symbol respected more than any other in history. He debated he absolutism of free speech and whether limits should be implemented in the case of a venerated national object such as the flag.

Justice John Paul Stevens also wrote a dissenting opinion, in which he stated that the case involved “disagreeable conduct” of the defendant doing harm to an important national symbol and that the content of the defendant’s message was not relevant to the case.

Decision

The Supreme Court affirmed by a 5-4 decision the ruling of the criminal appeals court, finding that the petitioner’s interest in preventing the breach of peace did not hold up, as the defendant’s actions did not incite lawless behavior and that the defendant’s right to free expression of ideas through speech and conduct outweighed the petitioner’s interest in protecting the American flag as a symbol of unity.

Significance

The ruling in this case invalidated 48 state statutes prohibiting/criminalizing flag burning as unconstitutional. This decision maintained that flag burning is protected speech under the First Amendment of the United States Constitution as it is expressive conduct and maintained that the First Amendment does not cover only vocal/verbal speech but other forms of speech and speech acts. Texas v. Johnson can be considered the landmark case within the issue of flag burning and a major case related to the intricacies of free speech.