Problem
I. In Brandenburg v. Ohio and Chaplinksy, the defendants were charged with crimes for engaging in speech that was offensive and inflammatory. For example, Chaplinsky called a town marshal a "racketeer" and "fascist" (accusations that were highly offensive at the time). In comparison, in Brandenburg, the speaker was involved in a KKK rally and made highly offensive and racist statements. The speech in Chaplinksy was not protected, but the speech in Brandenburg was protected. Why?
II. Both Texas v. Johnson and Barnes v. Glenn Theatre involved conduct that was claimed to be protected as expressive speech under the First Amendment. Both cases also involved conduct considered immoral or offensive. What was the conduct at issue in these cases, and why was the conduct considered protected in Johnson but not in Barnes?
III. The federal government has enacted a law that prohibits newspapers from publishing any political commentary or opinion articles about President Biden's upcoming COVID-19 vaccine policies. The Muleskinner is planning to run an opinion article stating that Biden's vaccine policies may not be valid under federal law or are no longer needed. The government then files a lawsuit against the Muleskinner seeking an injunction to prevent the paper from publishing the opinion article.
Under these facts: (i) which party will have the burden of proof in establishing that the prohibition on the article is proper? And (ii) will the Court presume that the government law prohibiting the publication is valid or invalid?