Bryan Wildenthal bryanw at TJSL.EDU
Sat Mar 31 16:15:19 PST 2001

> -----Original Message-----
> From: Bill Funk [mailto:funk at LCLARK.EDU]
> Sent: Saturday, March 31, 2001 10:43 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: ignorance
> earl maltz wrote:
> > I;m about to show my ignorance.  Can anyone identify the
> first case in
> > which the Supreme Court struck down government action of
> violative of
> >
> >         a) the free speech clause
> Lamont is generally recognized as the first case in which a federal
> statute was overturned on free speech grounds, but Fiske v.
> Kansas, 274 US
> 380 (1927) may be the first case overturning a state
> criiminal conviction
> on free speech grounds.  The actual basis for decision is
> "due process,"
> an arbitrary deprivation of the person's liberties, but the
> distinguishing
> of Gitlow and Whitney (decided the same day) and the facts of the case
> clearly indicate that it is a free speech case.

Bryan's 2 cents (this is fresh in my mind because I collected a lot of these
cases in a footnote, at which I am now looking, in my recent article on 14th
amendment incorporation):  Gitlow, 268 us 652, was decided in 1925, not
1927.  I think there was no clear constitutional ground for the decision in
Fiske, other than sheer lack of evidence (as I recall the opinion is very
brief -- the facts I think do indicate it was a speech issue, but I'm not
sure even the relevant facts are sufficiently clear from the opinion
itself).  The first Supreme Court decision to strike down *state* government
action on any clearly stated free speech grounds (and to hold the First
incorporated into the 14th, which Gitlow merely "assumed") was Stromberg v
California, 283 us 359, 368 (1931).  Near v Minnesota, 283 us 697, 707
(1931) was first to so hold re: the free press clause.  I think Stromberg
and Near are the best cites.

My footnote agrees with Bill Funk as to Cantwell and Free Exercise below.

Bryan Wildenthal, Thomas Jefferson School of Law

> > and
> >         b) the free exercise clause?
> Cantwell v. Connecticut, 310 US 296 (1940) looks like the one
> to me.  Even
> though today we would think it solely a free speech case, it
> is clearly
> both a free exercise and free speech case as written.
> Bill Funk
> Lewis & Clark Law School

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