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Terminiello vs.

Chicago
Facts of the Case
Father Arthur Terminiello, in an auditorium in Chicago, delivered a vitriolic speech in which he criticized various
political and racial groups and viciously condemned the protesting crowd that had gathered outside the auditorium.
Policemen assigned to the event were unable to prevent several disturbances by the "angry and turbulent" crowd. The
police arrested Terminiello for "breach of the peace." He was then tried and convicted for his central role in inciting a
riot.
Question
Did the Chicago ordinance violate Terminiello's right of free expression guaranteed by the First Amendment?
Conclusion
In a 5-to-4 decision, the Court held that the "breach of the peace" ordinance unconstitutionally infringed upon the
freedom of speech. Noting that "[t]he vitality of civil and political institutions in our society depends on free
discussion," the Court held that speech could be restricted only in the event that it was "likely to produce a clear and
present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." Justice
Douglas wrote that "a function of free speech under our system is to invite dispute. It may indeed best serve its high
purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people
to anger."

Abrams v. United States
Brief Fact Summary. The defendants convictions for distributing leaflets advocating strikes during the Russian
Revolution were upheld because their speech was not protected by the United States Constitution (Constitution)
based on the clear and present danger test.
Synopsis of Rule of Law. Men must be held to have intended and to be accountable for the effects, which their acts
are likely to produce.
Facts. The Defendants, Abrams and others (Defendants) were Russian immigrants. The Defendant were self-
proclaimed revolutionists and anarchists who wrote and distributed thousands of circulars advocating a general strike
and appealing to workers in ammunitions factories to stop the production of weapons to be used against Russian
revolutionaries. They were convicted under 1918 amendments to the Espionage Act that prohibited the curtailment of
production of materials necessary to the prosecution of war against Germany with intent to hinder its prosecution.
Issue. Whether the Defendants speech was protected by the First Amendment of the Constitution?
Held. No. Men must be held to have intended and to be accountable for the effects which their acts are likely to
produce. The plain purpose of Defendants propaganda was to excite, at the supreme crisis of war, disaffection,
sedition, riots and as they hoped, revolution in this country for the purpose of embarrassing and if possible defeating
the military plans of the Government in Europe. Therefore, their speech is not protected by the First Amendment of
the Constitution.
Dissent. In this case, sentences of twenty years have been imposed for the publishing of two leaflets that the
Defendants had as much right to publish as the Government had to publish the Constitution.
Discussion. Clear and present danger supposedly assures special attention to the time dimension. Speech may not be
curtailed until there is an immediate risk of an evil. Speech with a remote tendency to cause danger may not be
curtailed.

New York Times Co. v. United States
Brief Fact Summary. The Supreme Court of the United States (Supreme Court) held that the Government failed to
meet the requisite burden of proof needed to justify a prior restraint of expression when attempting to enjoin the New
York Times and Washington Post from publishing contents of a classified study.
Synopsis of Rule of Law. Any system of prior restraints on expression comes to the Supreme Court bearing a heavy
presumption against its invalidity. The Government thus creates a heavy burden of showing justification for the
enforcement of such a restraint.
Facts. The United States sought to enjoin the New York Times and Washington Post from publishing contents of a
confidential study about the Governments decision making with regards to Vietnam policy. The District Court in the
New York Times case and the District Court and the Court of Appeals in the Washington Post case held that the
Government had not met the requisite burden justifying such a prior restraint.
Issue. Whether the United States met the heavy burden of showing justification for the enforcement of such a
restraint on the New York Times and Washington Post to enjoin them from publishing contents of a classified study?
Held. No. Judgments of the lower courts affirmed. The order of the Court of Appeals for the Second Circuit is reversed
and remanded with directions to enter a judgment affirming the District Court. The stays entered June 25, 1971, by the
Court are vacated. The mandates shall issue forthwith.
Dissent. The scope of the judicial function in passing upon activities of the Executive Branch in the field of foreign
affairs is very narrowly restricted. This view is dictated by the doctrine of Separation of Powers. The doctrine
prohibiting prior restraints does not prevent the courts from maintaining status quo long enough to act responsibly.
The First Amendment is only part of the Constitution. The cases should be remanded to be developed expeditiously.
Concurrence. To find that the President has inherent power to halt the publication of news by resort to the courts
would wipe out the First Amendment of the United States Constitution [Constitution].
The First Amendment of the Constitution leaves no room for governmental restraint on the press. There is, moreover,
no statute barring the publication by the press of the material that the Times and Post seek to publish.
The First Amendment of the Constitution tolerates no prior judicial restraints of the press predicated upon surmise or
conjecture that untoward consequences may result. Thus, only governmental allegation and proof that publication
must inevitably, directly and immediately cause the occurrence of an event kindred to imperiling the safety of a
transport already at sea can support the issuance of an interim restraining order. Unless and until the Government has
clearly made its case, the First Amendment of the Constitution commands that no injunction be issued.
The responsibility must be where the power is. The Executive must have the large duty to determine and preserve the
degree of internal security necessary to exercise its power effectively. The Executive is correct with respect to some of
the documents here, but disclosure of any of them will not result in irreparable danger to the public.
The United States has not met the very heavy burden, which it must meet to warrant an injunction against publication
in these cases.
The ultimate issue in this case is whether this Court or the Congress has the power to make this law. It is plain that
Congress has refused to grant the authority the Government seeks from this Court.