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Chapter 2 Case Studies

Case Study 1

Sid McLaren was a member of the Ku Klux Klan (KKK) who lived in a small town in the South. He hated African Americans, Jewish people, Mexicans, gays, Communists, and basically anyone who was not exactly like him. A true lover of the Confederacy, he proudly displayed the Confederate flag in his home and on his car. McLaren also revered Hitler, and his favorite joke made light of the Holocaust. When the last minority-owned business in his town failed due to a boycott organized by the Klan, McLaren cheered.

To celebrate the closing of the business, the Klan decided to stage a rally in a field belonging to Jesse Smith, another Klansman. They invited Klan members from all over the county, and the rally promised to be one of the largest Klan gatherings in 20 years. In so doing, the Klan wanted to send a message to any non-white who might want to open a business in the community that they were unwelcome. Several Klansmen had been involved in constructing a giant cross that they planned to set alight in the field the night of the gathering. The night arrived, and the Klansmen gathered. Several members gave speeches, congratulating the community for driving out minority-owned businesses and telling Klansmen from other towns to follow the example set by the members of McLaren’s town. After the speeches, the cross was lighted on fire. The cross was so tall that it could be seen by those living on a neighboring farm a mile away. The Klansmen then proceeded to chant and march around the cross. It was the happiest night of Sid McLaren’s life.

Questions

1. What kind of act is burning a cross a form of? Is this protected under the First Amendment? Why?

2. What rights are included in the First Amendment concept of speech?

3. Sid McLaren’s views are racist and homophobic. Are these views protected under the First Amendment?

Case Study 2

Sally Johnson, a young environmentalist, wanted XX Chemical Company to stop producing Toxinol, and she planned on doing something about it. Toxinol, a pesticide used in grain crops, was associated with certain cancers in humans and, where it was used, bird populations had declined. National environmental groups had launched an awareness campaign to alert the public to the dangers associated with Toxinol and the negligence of XX Chemical Company in not posting warnings on its product. Johnson had handed out leaflets, written letters to the editor of her local paper and to the CEO of XX, contacted her representatives in Congress to urge them to outlaw Toxinol, and posted videos about XX’s actions on her social networking page.

While the awareness campaign had focused attention on Toxinol and XX Chemical Company, it did not appear as though there was enough strength behind the movement to get XX to stop producing Toxinol. Indeed, a news outlet had recently reported that sales of Toxinol had actually increased. Johnson was furious and decided that since the CEO of XX had not responded to her letter she would march into his office and demand that he listen to her.

Johnson drove up to XX Chemical Company’s headquarters and tried to bypass the security gate. When security officers attempted to stop her, she got out of her car and shouted at them, demanding to speak with the CEO. The officers refused, and called for backup. Johnson got back in her car and attempted to drive through the gate. Johnson was arrested.

Questions

1. Sally Johnson was expressing her views on Toxinol when she was arrested. Was this legal under the First Amendment? Why?

2. What Supreme Court decision makes this distinction clear, and how does it relate to law enforcement?

3. In what kinds of lawful activities did Sally Johnson engage?

Case Study 3

Jeremy Walsh had a foul mouth and an even fouler disposition. Hardly a day went by when he did not unleash a stream of curse words on some unsuspecting driver who had waited a moment too long before making a turn or insult a woman walking down the street. It was difficult for the people of Sometown to tell what he loved more—football or yelling at the referee. When they saw him approaching, most people crossed the street to avoid rousing his ire. Oddly enough, however, no one in the town could recall an occasion when a confrontation with Walsh came to blows.

Officer Jones was a new officer with the Sometown Police Department. One day, while on patrol, he noticed Walsh’s truck double-parked in a loading zone in front of the Square L convenience store. Officer Jones walked over to the truck and had just started to issue a ticket when Walsh came running out of the store.

“What do you think you’re doing?” Walsh demanded of Officer Jones.

“You are double-parked, Sir, and I am giving you a ticket.”

No one could have prepared Officer Jones for the litany of words that issued forth from Jeremy Walsh’s mouth. The nicest word he used was “pig.” When Officer Jones tried to get him to stop yelling, Walsh only yelled more, having held his choicest words in reserve. Walsh did not approach the police officer or make any threatening gestures. Still, Officer Jones placed Walsh under arrest for his tirade, charging him with using “opprobrious language.”

Questions

1. What is the standard for speech to qualify as “fighting words” and therefore not protected under the First Amendment?

2.  Was this arrest constitutional under the First Amendment? Why or why not?

3.  What Supreme Court decision is directly applicable here?

Case Study 4

Early one Tuesday morning, Officer Janice Pleasant was called to a Bayside Park near State University, a popular hangout spot for local students. When she arrived, she found a street preacher with a Bible and a large sign reading, “Repent!”

“Oh Lord,” he shouted, “Please forgive us for being such a sinful people!”

The preacher, trying to draw a crowd, walked around in big circles, and wandered into an area of the park that was being seeded. There was a sign instructing people to stay out of the seeded area. Officer Pleasant said, “Sir, please move out of the restricted area,” and the preacher did so.

The preacher then proceeded to deliver a message that women should submit to their husbands and dress modestly. A crowd of angry students has gathered around him, and several of the students had started shouting questions and insults at the preacher, accusing him of sexism. As Officer Pleasant watched the crowd, one of the students, a young man, physically approached the preacher.

“Young man, please give the man some space,” Officer Pleasant said. “Please step back.” The young man returned to the crowd.

Then a young woman, angered by the preacher’s message, shouted, “I am not an animal! I do not just submit for you!”

She then asked him if he finds her tank top offensive. He informed her that he did indeed find it offensive and told her that she should not dress so provocatively. This angered the young woman, who, now joined by two other female students, bent over and started showing her cleavage to the preacher. In addition, the young women started shouting swear words at the preacher. The crowd cheered the young women on.

At this point, several students started rushing toward the preacher, shouting at him. Officer Pleasant moved in, saying, “Give the man some space, people. Please step back.” The students returned to the crowd. The students continued to shout at the preacher, who eventually finished his sermon. Everyone left peacefully.

Questions

1. Why did Officer Pleasant step in only when members of the crowd approached the speaker, and not when the young women were taunting the preacher? Was Officer Pleasant’s conduct in keeping with the First Amendment? Why or why not?

2. Suppose this incident had gone differently: the students did not disperse when instructed by Officer Pleasant, it looked like the preacher was in danger of physical assault; and Officer Pleasant arrested the preacher for disturbing the peace. Is this constitutional? Why or why not? What Supreme Court decision supports your answer?

3.  How could Officer Pleasant protect the preacher from assault?

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