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Saturday, March 08, 2014

Coulda Been Contenders

Do people have favorite cases/issues for which SCOTUS did not grant cert, but who think that if it had, the resulting opinion might have been impactful, important, or otherwise interesting?  Mine is Epton v. New York, 390 U.S. 29 (1968), in which the Court denied cert from the petitioner's conviction for conspiracy to riot, advocating criminal anarchy, and conspiring to engage in such advocacy.  The overt acts alleged consisted of speeches and the preparation of leaflets, all of which, according to a dissenting Justice Douglas, would normally be protected by the First Amendment.  

As I have argued, conspiracy entails a First Amendment work-around: direct speech prohibitions are generally unconstitutional, but conspiracy charges can effectively quash speech rights.  Epton might have responded, answering the "important question," as Justice Douglas put it, "Whether the overt act required to convict a defendant for conspiracy must be shown to be constitutionally unprotected."  Id. at 31.

Posted by Steven R. Morrison on March 8, 2014 at 11:50 AM | Permalink

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