Free Speech

*Morse v. Frederick*

Student Speech Joseph Frederick unfurled a banner reading "BONG HITS 4 JESUS" Principal morse crossed street and ordered students to lower banner All complied except fredrick Morse suspended frederick for violating school policy pertaining to the advocacy of illegal drugs School superintendent upheld suspension' Message was not political expression and could be interpreted as supportive of illegal drug use Frederick sued claiming his 1st amendment rights were violated District judge agreed with morse; court of appeals reversed Morse arguments: Tinker v. des moines and bethel v. fraser allow regulation of student speech that disrupts or undermines the school's educational mission Discouraging use of illegal substances is part of school's mission Frederick's pro-drug banner interfered with decorum by radically changing the focus of school's activity Principal morse properly disassociated the school from frederick's pro-drug banner Frederick arguments: Banner was displayed off school property; event was not school sponsored Schools cannot punish non disruptive student speech just because they disagree with the ideas expressed Record does not show that frederick's banner caused substantial disruption of educational mission as required in tinker, nor was the banner offensive within the meaning of fraser Ruling: constitutional school officials can prohibit students from displaying messages that promote illegal drug use although students do have some right to political speech even while in school, this right does not extend to pro-drug messages that may undermine the school's important mission to discourage drug use Frederick's message, though "cryptic," was reasonably interpreted as promoting marijuana use - equivalent to "[Take] bong hits" or "bong hits [are a good thing] Court affirmed that the speech rights of public school students are not as extensive as those adults normally enjoy, and that the highly protective standard set by Tinker would not always be applied Content-based; viewpoint based

*United States v. O'Brien*

Symbolic Speech O'Brien and 3 others burned draft cards on steps of a courthouse FBI took them into house to question Said he violated Selective Service Act -- prohibited destroying or mutilating draft cards O'Brien said he was a pacifist -- couldn't kill Convicted and got 6 years but appeals court overturned it United States arguments: Draft card burning is conduct, not speech Burning of document that plays an important role in operation of S.S.A does not serve as constitutionally protected symbolic speech Requiring possession of draft cards is a reasonable congressional action supporting the effective administration of S.S.A O'Brien arguments: Congress passed 1965 amendment to S.S.A with intent to stifle dissent; law does not serve any rational legislative purpose Law unconstitutionally restricts freedom of symbolic expression recognized in Stromberg and WVDE v. Barnette Clear and present danger text should be used to decide this case Ruling: constitutional Rejects position that conduct used to express an idea used to express an idea automatically merits 1st Am. protection Justified if: Doing what is in their power If it furthers important/substantial government interest If gov't interest is unrelated to suppressing speech Less restrictive as it can be If law said it's illegal to mutilate draft card, and he made a photocopy and burned that -- unconstitutional -- not least restrictive

*Texas v. Johnson*

Symbolic Speech Previous cases: couldn't make it illegal to say in saying things that was against the flag; tape peace symbol to flag - constitutional > both cases: struck down government attempts to regulate to the flags Republican party held national convention in Dallas While party was meeting, a group of 75-100 protested against Reagan's administration policies One of the demonstrators removed an American flag and gave it to Johnson Johnson burned flag; arrested for violating the TX flag desecration law Convicted and sentenced to a one year prison term Texas arguments: First amendment is not absolute and expressive conduct demands less constitutional protection than pure speech TX flag desecration statute advances 2 substantial interests: protection of the flag as an important symbol of nationhood and unity and prevention of a breach of the peace TX law is valid "time, place, and manner" Johnson arguments: TX law is viewpoint-based restriction on political expression because the state seeks to protect one view -- that the flag is a symbol of nationhood and national unity State law singles out conduct that will "seriously offend one or more persons", the statute violates 1st amendment's prohibition on content-based discrimination Johnson peacefully burned flag in an obvious act of political expression that merits 1st amendment protection Ruling: unconstitutional Legal rule: what constitutes expressive conduct and how do we know if it is expressive conduct actions fell into the category of expressive conduct and had a distinctly political nature In order to be expressive, it has to be intended as expressive and has to be understood as expressive Just because audience takes offense doesn't justify prohibitions of speech State officials do not have authority to designate symbols to be used to communicate only limited sets of messages You need to have it least restrictive as possible Higher standard: stricter legal rule

Thornhill v. Alabama

Symbolic Speech Struck down laws that prohibited labor union picketing "Area of free discussion that is guaranteed by the constitution"

*Dennis v. United States*

Aftermath of WWII: Competing Tests and a Divided Court Clear and probable danger test Smith Act: prohibits anyone from knowingly or willfully advocating or teaching the overthrow of any government of the US by force; from organizing any society to teach, advocate, or encourage the overthrow of US by force; or becoming a member of any such society 11 leaders of National Board of Communist Party were indicted for conspiring to teach and advocate the overthrow of the government by force and violence and to organize communist party for that purpose in violation of smith act Trial court sentenced 5 years in prison to each leader Convictions sustained by court of appeals, appealed to SC Said smith act was unconstitutional infringement on free speech Gravity (evil) x Probability(evil) > invasion of people's rights = more const. Dennis arguments: Smith Act, in this case, unconstitutionally makes it a crime to teach or advocate an outlawed an outlawed doctrine or organize a group to teach or advocated that outlawed doctrine without regard to circumstances Conspiracy provisions of smith make it a crime to agree to speak, distribute materials, or organize a political party to advance political ideas; no overt illegal act needs to be committed Petitioner's' intent does not justify a denial of constitutional protections but the gov't must show that the advocacy created a clear, present, and imminent danger of a substantive evil US arguments: Smith, in this case, applied not to abstract discussions by isolated agitators, but to American leaders of a worldwide totalitarian political movement Valid exercise of congressional authority to preserve democratic gov't and military security 1st amendment does not protect petitioners in their preparation for an attempt to establish by force in US a communist dictatorship whenever it may seem to them that circumstances favor such action Ruling: constitutional Clear and present danger Threats of overthrowing government -- can limit speech On the facts, the court was convinced that the requisite danger to act existed here: (1) the formation by the Petitioners of a highly organized conspiracy with rigidly disciplined members subject to call when the leaders (the Petitioners) felt it was time for action; (2) the inflammable nature of world conditions; (3) similar uprisings in other countries; and (4) the touch and go nature of our relations with other countries with whom the Petitioners were ideologically aligned.

American Communications Association v. Douds

Aftermath of WWII: Competing Tests and a Divided Court Union leaders mounted a 1st amendment challenge to law Court adopted ad hoc approach Rejected clear and present danger standard but congress had determined communism constitutes harmful conduct carried on by people, congress may regulate such conduct in the public interest

*Gitlow v. New York*

Bad Tendency Tes tTo combat communism, many states, including NY, made commissions to investigate subversive organizations 1919 and 1920 - raids on the leaders of socialist and communist groups and seized materials Gitlow arrested for distributing pamphlet titled "The Left Wing Manifesto" which called for mass action to overthrow capitalist system Charged with criminal anarchy law Said violated freedom of expression: unsuccessful, appealed Gitlow arguments: Liberty in 14th amendment due process clause includes liberty of speech and press NY law is unconstitutional restraint on expression because it is not restricted to circumstances under which expression causes an immediate substantive evil NY arguments: Advocacy of doctrine of criminal anarchy can be distinguished from expressing religious beliefs 14th amendment does not prevent states from limiting freedom of speech or press State may punish expression that endangers the gov't and it doesn't need to wait til danger becomes immediate Ruling: Constitutional Text can lead to violent overthrow of government, which is what the pamphlet discusses state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger "Dangerous tendency" test

*Abrams v. United States*

Bad Tendency Test Abrams and 4 others convicted of espionage act after professing revolutionary, anarchist, or socialist political views Published and distributed leaflets criticizing Wilson's decision to send troops to russia and called for a strike to protest policy in NYC Leaflets written in characteristic of the rhetoric of the russian revolution Said US was hypocritical, cowardly, capitalistic Abrams arguments: Denunciation of gov't, even in times of war, is constitutionally protected If gov't can restrict expression in wartime, it can do so in peacetime as well Not alone in positions: many others have expressed similar views US arguments: Congress has constitutional authority to legislate against acts of disloyalty in time of war Regulation justified under gov't power of self preservation First amendment was not intended to protect seditious libel, especially in wartime Ruling: Constitutional Leaflets are violent: call to strike, encourage war resistance Bad tendency test: gov't has right to regulate speech that has purpose to cause illegal activity Focus on general strike: have tendency to create an evil

Whitney v. California

Bad Tendency Test Active member of oakland branch of socialist party and voted for delegates sent by chapter to national party meeting At meeting, party ejected more radical members, including oakland delegates, which formed the Communist labor part of the US Whitney opposed radial platform that urged a revolutionary class struggle, but still served as chapter's delegates to local meeting and became chair of credential committee Based on associated, CA authorities charged Whitney with violating state's syndicalism law Found guilty of organizing and associating with a party dedicating to overthrowing US gov't Ruling: constitutional State can punish anyone who abuses freedom of speech Inciting crime, disturb public peace, or endanger gov't Allowed punishment of mere membership in a subversive organization without proof of any criminal acts to overthrow gov't Overturned 14 years after death

Frohwerk v. United States

Clear and Present Danger Test Newspaper editor and editorial writer urged court to overturn convictions for publishing series of articles accusing the US of pursuing an imperialistic policy toward germany Speech about socialism Companion case: Eugene V. Debs Leader of socialist party convicted of espionage act Charged with attempting to incite insubordination Court upheld both convictions Clear and present danger test 1st amendment "not intended to give immunity for every possible use of language"

*Schenck v. United States*

Clear and Present Danger Test Schenk- general secretary of the socialist party of philadelphia printed 15k pamphlets urging resistance to the draft Mailed to men listed to have been called and accepted for military service Charged with violating Espionage Act (prohibited any attempt to interfere with military/navy, to cause insubordination, or to wilfully obstruct recruitment or enlistment) Convicted in federal district court, appealed on first amendment grounds Schenk arguments: Law's harsh penalties have a chilling effect on anyone who contemplates criticizing government Severe punishment stops polication discussion as well as censorship Constitutional distinction between words and actions First amendment does not protect a man who violates draft law by not serving, but DOES protect a man who says draft law is wrong and should be repealed US arguments: First amendment does not license the distribution of materials that tend to influence person to obstruct the draft Guilty of conspiring men to obstruct war -- illegal act, not legitimate political agitation Ruling: constitutional Schenk not protected Legal Rule: Words bring "clear and present" danger that congress has right to prevent P. 195 Free speech not absolute: ex) fire in a crowded place Congress can maintain army so encouraging people not to get involved would be bad Focused on pamphlets went to draftees

Valentine v. Chrestenson

Commercial Speech Allowed extensive government regulation of commercial expression than other forms of speech Upheld law banning distribution of handbills hat advertised commercial goods and services First amendment does not protect "purely commercial advertising"

*Central Hudson Gas and Electric Corp. v. Public Service Comm. of New York*

Commercial Speech NYPSC ordered state public utility companies to stop all advertising that promoted the use of electricity After shortage had eased, the commission requested public comments on a proposal to continue the ban on promotional advertising Hudson and Corp opposed ban on 1st amendment grounds All advertising promoting use of electricity to be contrary to the national policy of conserving energy, the commission extended the ban Hudson & Electric Corp Arguments: Kind of advertising was found to be protected in Virginia Pharmacy and Bates; these cases should control this case State regulations are overbroad and vague Central hudson is being discriminated against because its inutility competitors are not subject to the commission's advertising ban NYPSSC arguments: Advertising remains subject to much greater regulation than noncommercial expression Ban on promotional advertising advances the state's important interest in conserving energy Commission's regulation are clear, precise, and confined to the state interests sought to be achieved The commission has jurisdiction only over electric utilities; therefore it has no authority to extend its advertising ban to central hudson's non utility competitors Ruling: unconstitutional New York's ban violated the right to commercial speech protections for "commercial speech from unwarranted governmental regulation" set forth in Virginia Pharmacy Board v. Virginia Citizens Consumer Council. The Court recognized New York's interest in promoting energy conservation and accepted that the PSC's regulation would directly further that interest. However, since the regulation restricted all promotional advertising regardless of its effect on electricity use, it violated the First and Fourteenth Amendment under First National Bank of Boston v. Bellotti.

*West Virginia State Board of Education v. Barnette*

The Right to Not Speak Following Gobitis (upheld flag salute regulations in school) the WV legislature amended its laws to require that all public schools teach courses to increase students' knowledge of the american government and foster patriotism Required flag to be saluted and the pledge to be recited each day Students who did not comply could be charged with insubordination and expelled; grounds for child to be a delinquent; parents of delinquents could be fined and jailed Jehovah's Witnesses challenged in name of barnette family who were being harassed for not participating; one kid expelled District court sided with barnette family, state appealed to court West Virginia arguments: All questions in this case have already been authoritatively answered by the court in Gobitis No relevant changes in federal law have occurred since gobitis Case should be settled by applying the gobitis precedent and upholding the state's flag salute law Barnette arguments: The challenged regulations abridge freedom of speech, freedom to worship, and freedom of conscience Conduct of the appellant does not constitute a clear and present danger of a substantive evil that the government has right to prevent Advantages said to flow from compulsory flag saluting are not so great as to justify depriving children of an education merely because they refuse to salute flag Gobitis decision has encouraged widespread, violent attacks on JWs Ruling: unconstitutional such a salute was a form of utterance and was a means of communicating ideas "Compulsory unification of opinion" was doomed to failure and was antithetical to First Amendment values Writing for the majority, Justice Jackson argued that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Concluded that countervailing interests of the state were insufficiently compelling to outweigh 1st amendment liberties at stake State slogan was not ideologically neutral but proclaimed an official view of history, state pride, and individualism Such an interest cannot outweigh individual's 1st amendment right to avoid becoming an unwilling spokesperson for that message

*Bates v. State Bar of Arizona*

Commercial Speech Placed risky aid in newspaper Most state bar associations explicitly prohibited commonplace advertisements "A lawyer should not publicize himself" through any magazine, newspaper, tv, radio, etc. display State bar association initiated proceedings about them Argued violation of 1st amendment violation under Virginia Pharmacy case Bates and O'Steen Arguments: Ad is protected expression; ban on it amounts to content discrimination in violation of the 1st amendment Appellant's' expression is supported by consumers' constitutional right to legal representation Disciplinary ban on advertising serves no important state interests State Bar arguments: State commercial advertising enjoys lowest level of free speech protection, ban against advertising legal services in constitutional Long been professional tradition forbidding such advertisement Advertising legal services tends to encourage unnecessary litigation Ban protects against fraud and deception and preserves the pride and dignity of the profession Because legal skills vary from attorney to attorney, the advertising of fees for legal services inevitably misleading Ruling: unconstitutional Rule violated 1st and 14th amendment commercial speech does merit First Amendment protection given the important functions it serves in society, such as providing consumers with information about services and products, and helping to allocate resources in the American system of free-enterprise. The Court held that allowing attorneys to advertise would not harm the legal profession or the administration of justice, and, in fact, would supply consumers with valuable information about the availability and cost of legal services.

*Unites States v. Alvarez*

False Speech Xavier alvarez elected to board of directors in 3 valleys water district Introduced himself as a retired marine, retired in 2001, awarded congressional medal of honor, wounded by same guy All lies Long history of lying Responding to complaints, FBI obtained recording of board meeting Alvarez suspended for violating federal stolen valor act which says whoever falsely represents themselves to be awarded any decoration or medal of armed forces can be imprisoned The law does not require false statement to be believed, cause any harm, or have any gains Law does not make allowances for any circumstances under which the falsehood would be permissible United States arguments: Law regulates only a discrete and narrow category of expression Knowingly false statements at most are entitled to limited first amendment protection Government had strong interest in protecting the reputation and integrity of its military honors system against knowingly false claims Alvarez arguments: Content-based restrictions on speech are subject to strict scrutiny and the stolen valor act does not meet that standard Government's position would create a new standard completely unmoored from precedent that would uphold law if government is advancing an "important" (rather than compelling) interest and if the law leaves "breathing room" for fully protected speech Law is unconstitutionally overbroad Ruling: unconstitutional Content-based restrictions on speech are subject to strict scrutiny and are almost always invalid, except in rare and extreme circumstances. While categories of speech, such as defamation and true threats, present a grave and imminent threat, false statements alone do not present such a threat. Congress drafted the Stolen Valor Act too broadly, attempting to limit speech that could cause no harm. Criminal punishment for such speech is improper.

Conditions government can restrict expression

Forms of expression outside 1st amendment scope Certain things are unprotected by Cons. such as libel and obscenity and slander If there is libel and obscenity, 1st am. Imposes no barrier to government regulation Violence Gov't has authority to protect citizens from personal injury Property damage Legitimate interest in protecting private and public prop. From being destroyed ex) anti-war protests Criminal speech Crimes by nature ex) cons. Does not protect those who might give military secret to enemies Encroaching rights of others Cannot curtail rights of public to move about w/o interference ex) animal rights protesting block access from zoo Burdens on government functions ex) gov't can remove environmentals lie in front of construction of US Military dam Trespass Cannot speak anywhere you wish Cannot go on private property some public facilities are not legit places for a group to meet ex) Time, place, and manner restrictions Neutral time management ex) no one can speak over a residential place with a loudspeaker at 2 am Everything has time, place, and manner when appropriate

*Brandenburg v. Ohio*

Free Speech During Warren Court Era Brandenburg leader of KKK Wanted to obtain publicity, invited reporter and camera crew to rally Others showed film from events on tv One film: burned a cross, another: told africans and jews to go home Arrested for violating ohio syndicalism law -- prevented spread of unpatriotic views Similar to Gitlow: act prohibited advocating duty, necessity or propriety of crime, sabotage, violence, etc as well as assembling a group to teach or advocate criminal syndicalism Brandenburg arguments: Advocacy of illegal acts is constitutionally protected where the advocacy falls short of incitement Ohio law fails to recognize the necessary constitutional distinction between "Advocacy of abstract doctrine and advocacy directed at promoting unlawful action" Law fails to acknowledge the constitutional requirement that freedoms of speech and assembly cannot be restricted without showing a clear and present danger that the prohibited activities will bring about a punishable evil Ohio arguments; Based on advocacy of action, not a discussion of an abstract doctrine Similar to Gitlow and Whitney; both upheld Freedom of expression is not absolute: state cannot be reasonably required to delay restricting advocacy of illegal acts until actual disturbances of the peace take place or other illegal acts occur Ruling: unconstitutional - overruled Whitney Claimed free speech/press do not permit state to forbid or proscribe advocacy unless where speech is encouraging violence Imminent lawless action -- subjective and objective Have to intend and be likely to induce imminent lawless action

*Boy Scouts of America v. Dale*

Freedom of Association Dale admitted to prestigious order of the arrow and achieved eagle scout Adult member; assistant scoutmaster College: came out and devoted his time to Gay/Lesbian alliance where he was photographed Monmouth Council revoked membership because the scouts "specifically forbid membership to homosexuals" Dale claimed termination violated NJ law prohibiting discrimination based on sexual orientation in public accommodations Boy scouts countered as a private, nonprofit organization, it had a right under the freedom of association guarantees to deny membership to individuals whose views are not consistent with the group's values Boy Scouts Arguments: Requiring a boy scout troop to appoint an adult leader who opposes organization's moral code violates freedom of speech and expressive association Case should be controlled by hurley As intimate association, troops have constitutional right to decide from themselves who to select to supervise other people's children No state interests justifies these infringements on 1st amendment Dale arguments: Scouts is a large, national relatively unselective organization with significant commercial activities; not an intimate private group that is immune from government regulation Hurley does not apply; case involves identity-based exclusion, not compelled speech Pluralism and diversity characterize the ideology of the scouting movement, not a condemnation of homosexuality Reinstating dale would have no significant effect on scouts carrying out its expressive purposes Ruling: constitutional "applying New Jersey's public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts' First Amendment right of expressive association." In effect, the ruling gives the Boy Scouts of America a constitutional right to bar homosexuals from serving as troop leaders. Chief Justice Rehnquist wrote for the Court that, "[the Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill," and that a gay troop leader's presence "would, at the very least, force the organization to send a message, both to the young members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.

Roberts v. United States Jaycees

Freedom of Association Jaycees is a private organization that helps young men participate in affairs of community Had policy restricting membership of men from 18-35 Minnesota claimed organization's exclusion of women violated state law prohibiting sex-based discrimination in public accommodations Jaycees argued that applying minnesota's anti discrimination law to its membership policies was a violation of 1st amendment's freedom of association SC ruled against Jaycees Right is not absolute and does not apply equally to all private organizations Greatest degree of protection goes to small, intimate relationships, like marriage and family, and to those organizations expressing sincerely held political or ideological messages Large groups with non ideological or commercial purposes and nonselective membership policies are less deserving Jaycees have no firm ideological views and membership is based only on age and sex Is the group an expressive organization that attempts to communication viewpoints either publicly or privately? Does state regulation significantly burden the expression of these viewpoints?

Government Interests and Speech Regulation

Gov't may have legitimate reason to limit expression at certain locations or certain times. But it must apply restriction to all speech rather than making distinctions based on content of the expression Nature: More - political / Less - advertising Type of Regulation: More - content-based (and viewpoint based) / Less - content-neutral Place: More - public forum / Middle - limited public forum / Less - non-public forum

*New York Times v. Sullivan*

Libel Ny times ran ad to publicize the struggle for civil rights and to raise money L.B Sullivan took offense because although it didn't mention him by name, it offered highly critical references to police actions during a civil rights demonstration and suggested that police, under Sullivan's command, engaged in wrongdoing Sullivan bought a libel action against the paper and individuals Said it was libel; Said they sang "my country tis of there" when they actually sang star spangled banner" but the judge said the ad was "libelous per se" meaning it contained falsehood, so it was unprotected speech Jury found that the statements were made "of and concerning" sullivan, it could hold NY Times liable Supreme Court of Alabama agreed and specified words are libelous per se when they "Tend to injure a person libeled by them in his reputation, profession, trade or business, or charge him with an indictable offense, or tend to bring the individual into public contempt" NY Times sought SC review NY Times arguments: Political expression is protected by 1st amendment and is not subject to truth test; 1st amendment does not support punishment for criticism of government officials merely because such criticism may harm their official reputations In balancing state's interest in protecting the reputation of its officials against the constitution's protection of political expression, libel should found only where a public official proves that falsehoods were published with knowledge of their falsity or "actual malice" Sullivan arguments: Libel is outside realm of constitutionally protected speech Commercial advertisements are not protected by 1st amendment guarantees of speech and the press The doctrine of libel per se is common-law doctrine, used in many other states, and does not violate first amendment Ruling: constitutional The Court held that the First Amendment protects the publication of all statements, even false ones, about the conduct of public officials except when statements are made with actual malice (with knowledge that they are false or in reckless disregard of their truth or falsity) Calling previous rules of falsehood and defamation "constitutionally deficient" Had to demonstrate statement was false, damaging, and made with actual malice Doesn't apply commercial speech (economic interest of speaker and hearer) bc it's about a political and social issue

Expanding the New York Times test

Libel look at textbook Curtis Publishing Company v. Butts: Article that asserted that Wally Butts, football coach at Georgia, had given all the plays, defensive patterns, and all significant secrets to Paul Bryant, coach at Bama and that Butts was attempting to fix a game Author claimed he had heard this info from an atlanta insurance salesman who overheard conversation Butts sued saying it was false Also alleged that actual malice had occurred because it departed greatly from standards of good investigation and reporting Magazine found liable and appealed on NY times ground but judge said Butts is not a public official and even if he was, there was sufficient evidence to conclude the magazine acted with "reckless disregard for the truth" Associated Press v. Walker: Eyewitness account of riots at Uni. of Mississippi triggered by government ordered admission of black student Story said retired general edwin walker took command of the violent crowd and led a charge against federal marshals and also gave segregationists instructions on how to combat effects of tear gas Walker sued Walker was not a public official, but instead a public figure, so he had to prove actual malice under the NY Times standard

Jacobellis v. Ohio

Obscenity Jacobellis, manager of movie theater, had been charged for showing a obscene film -- "The Lovers" which contained one explicit love scene Brennan refined Roth test by stating that contemporary community standards were those of the nation, not a local community In doing so, he not only held the film to be protected speech, but also liberalized roth It is bound to be the case that individual communities seeking to ban obscenity have stricter standards than those of the country at large (ex; tulsa would be held by same obscenity standards of nyc) Added a new provision of roth test: Contemporary NATIONAL standards, not only must material meet all provisions of the test to be legally obscene but it also must be found to be "utterly without redeeming social importance" Makes it harder to define something as obscenity: more things are protected

*Miller v. California*

Obscenity Marvin miller, vendor of adult material, conducted a mass-mail campaign to drum up sales for his books Pamphlets were explicit If he sent the brochures to interested individuals, he might have not been caught but since he did it by mass mail, people who did not want them got them Arrested when someone complained Marvin Miller arguments: CA's use of statewide decency standard as the contemporary community standard test required under roth is a violation of the first amendment The proper standard is a national standard; a national standard best serves both the state's interest in protecting morals and the constitutional interest promoting free expression Brochure were not obscene because they were not utterly without redeeming social value CA arguments: Statewide standard from contemporary community standards is proper because the brochures being regulated are matters of local concern; miller presents no evidence that CA's standards differed substantially from national ones Brochures depict hard-core pornagraphy and are obscene as a matter of law Ruling: Court held that obscene materials did not enjoy First Amendment protection Modified decisions in Roth v. United States and Memoirs v. Massachusetts, holding that "[t]he basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Changes from Jacobellis: back to contemporary COMMUNITY standards, portrays sex in a particularly offensive way, rejected the "utterly without redeeming social value" test of the Memoirs decision, add no serious SLAPS value

*Roth v. United States*

Obscenity Roth v. United States: US government obtained 26 count indictment against Samuel Roth, published/sold books, photographs, and magazines, for violating federal obscenity law Not first time: had been distributing obscene materials and had been in jail; also violated copyright understandings Police claimed roth send "obscene, indecent, and filthy matter" through the mail Judge gave jury definition of obscene: "must be calculated to debauch the minds and morals of those into whose hands it may fall and that the test in each case is effect of the book, picture, or publication considered as a whole, not upon any particular class, but upon all those whom it is likely to reach; in other words, you determine its impact upon the average person in the community" Found guilty; appealed to SC Roth arguments: "Congress shall make no law... abridging freedom of speech or press", the framers did not intend to make obscenity exception to the first amendment Obscenity does not fit narrow expectations to the 1st amendment such as justice holmes' "clear and present danger" test, because there is no evidence that it has an appreciable effect of people's conduct Because the federal obscenity law is vague and relies on local standards, a person could not tell with "reasonable certainty" whether he or she violated it US arguments: 1st amendment is not an absolute right and must be weighed against competing societal interests Obscenity has little social value in the marketplace of ideas and it is apparent from history and earlier decisions that it lies outside 1st amendment protection Protection of public morals is important enough to justify this restraint on freedom of speech Ruling: constitutional Court held that obscenity was not "within the area of constitutionally protected speech or press." The Court noted that the First Amendment was not intended to protect every utterance or form of expression, such as materials that were "utterly without redeeming social importance." Roth Test to determine obscenity was "whether to the average person, applying contemporary community standards, the dominant theme of whole material, taken as a whole appeals to prurient interest." the Court held that such a definition of obscenity gave sufficient fair warning and satisfied the demands of Due Process

*Snyder v. Phelps*

Offensive and Hateful Speech First amendment protects speech even if it causes intentional emotional distress. Marine lance corporal matthew snyder died while serving in iraq Phelps founded westboro baptist church and served as its only pastor until his death Church teaches that god hates homosexuality and punishes the US and its military for being tolerant of gays Decided to picket snyder funeral and notified local authorities of its intent Protesters complied with all local ordinances and police directions Picketing took place 1000 feet away from church in a fenced in area on public land None of the protesters approached the mourners No obstruction of people attending the funeral Protesters held homemade signs indicating their opposition to the military, gays, and catholic church Church members sand hymns and recited bible verses Albert snyder, father of matthew, did not observe the demonstration but saw a news program showing the protest Filed civil suit claiming intentional infliction of emotional distress among other things Snyder claimed he received severe and lasting emotional injury as a result of the church's actions causing him to be tearful, angry, and wanting to vomit Alleged he could not think of son without visualizing the protest signs Protest worsened diabetes and depressions Daughter of phelps argued that protesters' words were expressions of opinion on public issues and hyperbole rather than factual statements and thus were to protected by first amendments Snyder argument: Westboro's speech had no rational connection to matters of public concern; snyder did nothing to attach himself to any public event or controversy Court never extended absolute protection to rhetorical hyperbole that cannot reasonably be interpreted as stating facts Survivor had the right to privacy in protecting the memory of the dead Westboro's expression restricted snyder's ability to enjoy his free exercise of religion and peaceful assembly Phelps arguments: Westboro's expressions concerned public issues Language used was loose, figurative, and hyperbolic which no reasonable person would interpret as actual facts Snyder made himself a limited-purpose public figure by speaking to the press about his son Westboro's expression occurred well outside any zone of privacy that might reasonably be accorded to a funeral Westboro's speech in no way curtailed the right of snyder and others to engage in the religious rituals associated with the funeral Ruling: unconstitutional First Amendment shields those who stage a protest at the funeral of a military service member from liability Public (more protection) vs. private speech (less protection) This is public speech so it gets higher protection

Wisconsin v. Mitchell

Offensive and Hateful Speech Court upheld 4 year prison sentence on a man charged with aggravated battery because his victim was selected exclusively on the basis of racial hatred

United States v. Carolene Products, footnote 4

Preferred Freedoms Doctrine Federal ban on shipping of certain kind of milk Footnote: became known as preferred freedom doctrine - judiciary will apply special scrutiny to laws that appear to restrict freedom of expression whenever a gov't regulation appears to be in conflict with the bill of rights, the usual presumption that laws are constitutional should be reduced or waived all together Hints that judiciary has a special responsibility to defend those rights essential to the effective functioning of the political process, a class of liberties that clearly includes freedom of expression rights Suggests a special role for court in protecting rights of minorities and unpopular groups

Thomas v. Collins

Preferred Freedoms Doctrine RJ Thomas arrived in Houston to deliver a speech of workers the CIO (Congress of Industrial Organizations) wanted to organize Before he was to speak, tX authorities served him with a restraining order, prohibiting him to speak Believing the order violated free expression, he spoke anyways Meeting was "peaceful and orderly" but police arrested him anyways Appealed to SC, claim of free speech infringement Ruling: unconstitutional Actions secured by 1st amendment; restricted liberties must be justified by clear, present public interest, threatened or not by a clear, present danger Preferred doctrine provides appropriate solution to 1st amendment problems Combined CPD with preferred freedoms

Stromberg v. California

Preferred Freedoms Doctrine Yetta Stromberg, member of young communist league, was a counselor at a summer camp Introduced campers to marxist theory, generality, not encouraging them to overthrow gov't Raised red banner and led children in reciting a workers' pledge of allegiance Convicted of violating state statute that made it a crime to raise a red flag or banner publicly as a symbol of opposition to organized gov't or in support of anarchy Ruling: unconstitutional: SC reversed conviction CA was excessively broad applying not only to those who advocated violent overthrow of gov't but also those who supported political change by orderly and peaceful means Vagueness and ambiguity do not comport with the demands of the 1st amendment

*Near v. Minnesota*

Prior Restraint Establishing a Standard 1925 law provided for "the abatement"- public nuisance of a malicious, scandalous, and defamatory newspaper, magazine, or other periodical Attorney's view: Saturday Press, Jay Near's paper, was the epitome of malicious, scandalous, and defamatory publication SP committed itself to exposing corruption, bribery, gambling, and prostitution in Minneapolis Paper attacked city officials and printed racist, anti-semitic attitudes Challenged minnesota law as violation of 1st amendment Near Arguments: Law violates freedom of press by imposing restraints prior to publication; prior restraints violate traditional notions of free press, which allow publication of any material, regardless of its nature; any abusers should be punished after publication State does not have power to prevent publication of any material unless it advocates violent overthrow of the government or breach of law; general concern for public welfare is insufficient to overcome the right to free press Minnesota Arguments: Right to free press does not extend to press that is obscene, scandalous, or defamatory; law is narrow and applies only to irresponsible press that is "malicious, scandalous, or defamatory" and is therefore not protected by the 1st amendment State has power to restrict press that is injurious to public health, safety, and morals; the law promotes public peace by prohibiting dangerous press Publication can demonstrate that the material to be published is true and published in good faith, therefore lawful publications will not be affected by the statute Ruling: statute unconstitutional as applied History had shown that the protection against previous restraints was at the heart of the First Amendment. The Court held that the statutory scheme constituted a prior restraint and hence was invalid under the First Amendment. Thus the Court established as a constitutional principle the doctrine that, with some narrow exceptions, the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding. There may be exceptional circumstances: protection of national security, the regulation of obscenity, prohibition of expression that would incite violence

*McCullen v. Coakley*

Public Forums and the Preservation of Order Overview: right to free expression vs. right to abortion Tend to come in conflict with each other State court held injunction prohibiting 36 feet was constitutional Had to stay 16 ft. away from people if giving pamphlets have to ask for consent MA amended its reproductive health care facilities act - enacted to deal with clashes between abortion opponents and advocates outside abortion clinics Amended version of the act made it a crime to knowingly stand on a public way or sidewalk within 35 feet of an entrance or driveway to any reproductive health care facility Exempted were 4 classes of individuals, including employees or agents of such facility acting within scope of their employment McCullen, engaged in pro-life counseling, sued attorney general Martha Coakley, claiming the law violated the first amendment and asking that the state be enjoined from enforcing it McCullen arguments: Act not a permissible time, place, or manner restriction; public sidewalks are quintessential public forums Act is not content neutral because it creates speech exclusion zones only at abortion clinics and as a practical matter only affects speech about abortion Act is not viewpoint neutral because it exempts employees or agents of center Law is not narrowly tailored because it restricts core speech activities such as consensual conversations and leafleting, as well as limiting the distance between speaker and audience Attorney General arguments: Act is lawful time, place, or manner restrictions on conduct that compromises patient access and public safety Law does not target speech but target's location of congregated people who may create danger to public safety and inhibit access to medical care Law does not attack the petitioners' message or favor any speaker or topic Law is based on twenty years of experience protecting safety and public access; earlier regulatory attempts have been unsuccessful Ruling: unconstitutional Content neutral Not about what you say, it's about the location 2 legal rules: If someone is try to communicate with you on a sidewalk, you have to acknowledge them Inability to look away Content neutral v Content based Content Neutral (isn't based on what you say, but where you say it): Significant interest Narrowly tailored Content-based: Compelling interest Least restrictive means ^^^^^ strict scrutiny Government had a significant interest but it was not narrowly tailored

Restraints on Government Power

Restraints on Government Power: Appropriate purpose Gov't has to be doing something they're allowed to do Prior restraint Preventing someone from expressing opinion before it happens Content and viewpoint discrimination Not government role to evaluate expression based on position taken by speaker Overbreadth Too broad Vagueness If you can't tell what's allowed and what isn't, that's a problem Wants to avoid chilling effect: law makes people concerned so they don't make law very specific Chilling Effect Law intended to regulate certain forms of illegitimate expressions cannot be written so as to make people fearful of engaging in legitimate activity

Bethel School District No. 403 v. Fraser

Student Speech Dispute over a speech presented a high school assembly filled with sexual innuendo Suspended for violating the school policy against the "use of obscene, profane language or gestures" Justices upheld suspension First amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent's would undermine the school's basic educational mission Not being punished for a political statement

*Tinker v. Des Moines Independent Community School District*

Student Speech Group of adults and secondary students devised 2 strategies to demonstrate opposition to the Vietnam War: they would fast and wear black armbands Principals of the kids' schools heard about demonstration and feared it would be disruptive As a consequence, they announced that students wearing armbands to school would be suspended All but 5 complied 3 who didn't had a history in participating in other civil rights and antiwar speech They were suspended Argued that the armbands constituted legitimate symbolic speech and that, by suppressing such expression, the school officials had engaged in unconstitutional prior restraint Tinker/Eckhardt arguments: 1st amendment protects right of public school students to free speech in their schools and classrooms Prohibition against wearing the armbands was an unconstitutional prior restraint on freedom of speech Wearing armbands caused no disturbance or disruption of school day Des Moines arguments: School officials should be given wide discretion to carry out their responsibility to maintain a scholarly, disciplined atmosphere in the environment; school policy at issue reasonably calculated to promote goal Des moines school officials properly allowed full classroom discussion of public issues, such as the vietnam war, but demonstrations are inappropriate inside school Disturbances at school cannot be measured by the same standards used for adults in other environments Ruling: unconstitutional armbands represented pure speech that is entirely separate from the actions or conduct of those participating in it students did not lose their First Amendment rights to freedom of speech when they stepped onto school property In order to justify the suppression of speech, the school officials must be able to prove that the conduct in question would "materially and substantially interfere" with the operation of the school. In this case, the school district's actions evidently stemmed from a fear of possible disruption rather than any actual interference Public School: materially/substantially interfere OR Invasion of others rights, Actions that infringe on rights of others Armbands didn't do either

*New York Times v. United States*

Prior Restraint National Security NY Times and Washington Post began publishing articles based on 2 government docs: Gulf of Tonkin Incident and Decision making process on Vietnam Policy ("Pentagon Papers") Secret study photocopied and sent to press by a defense department employee Government brought a motion in federal district court asking the court to order the paper to stop publishing any more installments Said articles would cause "irreparable injury" To support this, government said the study was top secret, a classification applied only to that information or material the defense aspect of which is paramount and the unauthorized disclosure of which could result in exceptionally grave damage of the nation Newspaper disagreed: material was largely of historical, not current, interest, and that nothing in documents related to a time period after 1968 so government's attempt amounted to nothing less than prior restraint Equity: ask judge to do something because it's right NY Times Arguments: Government must meet a heavy burden of proof to overcome the well-established presumption that prior restraint violates freedom of press In order to meet Near's national security exception, it must be shown that publication of the material would cause an unavoidable, disastrous outcome; publication does not meet this standard Although there may be some circumstances that justify prior restraint, the executive branch does not have the inherent power to limit freedom of the press; at a minimum, there must be a clear mandate from the legislative branch US Arguments: Publication of material in question poses irreparable and grave danger to the US, and so the government is justified in imposing prior restraint; secrecy and confidentiality are critical to the successful conduct of foreign affairs Court should defer to the executive branch because as the controlling branch of foreign affairs and commander of chief of the military, it is in the best position to judge the effects of public action In order to impose prior restraint, government only needs to show a likelihood of harm because it's impossible to predict the exact consequences of publication Ruling: government restraint unconstitutional court held that the government did not overcome the "heavy presumption against" prior restraint of the press in this case. justices Black and Douglas argued that the vague word "security" should not be used "to abrogate the fundamental law embodied in the First Amendment." Justice Brennan reasoned that since publication would not cause an inevitable, direct, and immediate event imperiling the safety of American forces, prior restraint was unjustified Secrecy not good for government; help public figure things out For prior restraint to be okay, harm would have to be really bad with certain consequences

*Hazelwood School District v. Kuhlmeier*

Prior Restraint Student Press Student newspaper planned to publish articles on divorce and teenage pregnancy Principal Reynolds decided to excise 2 pages the newspaper's staff produced because "the students and families in the articles were described in such a way that the readers could tell who they were; when it became clear they were going to tread on privacy of students and parents, i stepped in to stop the process" Spectrum staff objected principal's decision Believing it had amounted to the same kind of prior censorship that the court had condemned in Near, Kuhlmeier and other student editors hired a lawyer and challenged decision in court District court ruled for principal - no violation had occurred Court of appeals reversed: Spectrum was a public forum because it "was intended to be operated as conduit for student viewpoint"; its status as a public forum prevented principal from censoring its contents except "when necessary to avoid material and substantial interference with school work or discipline... or rights of others" and the court could not find evidence of such Hazelwood Arguments: School newspaper not a public forum but part of an educational curriculum; newspaper is subject to reasonable teacher supervision and editorial control Because of educational concerns, constitutional rights of students in public school are more limited than those of adults in other settings; court should defer to the judgment of educators in controlling their curricula Decision to censor the articles should be judged by a reasonable standard; the decision to censor was reasonable because of concerns about privacy of subjects and the appropriateness of material Kuhlmeier Arguments: School newspaper is a limited public forum created for students to share ideas openly; publication has all protections of free press afforded by 1st amendment Allowing free press in education institutions promotes democracy by encouraging the open sharing of ideas among citizens Censorship of the articles was unreasonable because they did not violate any legal privacy rights; appropriateness of articles is not a proper measure of the school's right to censor them Ruling: constitutional Court held that the First Amendment did not require schools to affirmatively promote particular types of student speech. The Court held that schools must be able to set high standards for student speech disseminated under their auspices, and that schools retained the right to refuse to sponsor speech that was "inconsistent with 'the shared values of a civilized social order.'" Educators did not offend the First Amendment by exercising editorial control over the content of student speech so long as their actions were "reasonably related to legitimate pedagogical concerns." The actions of principal Reynolds, the Court held, met this test

*Cohen v. California*

Public Forums and the Preservation of Order Height of Vietnam War protests, Cohen visited friends in LA While they were discussing the war, someone scrawled on his jacket, "F*ck the Draft" and "Stop the War" Knowing it was on his jacket, he wore it in the corridors of a LA courthouse, where men, women, and children were present Although he took it off before he entered the courtroom, a police sarge had observed it in the corridor Officer asked the judge to cite cohen for contempt of court, charging him with "willfully and unlawfully and maliciously disturbing the peace and quiet by engaging in tumultuous and offensive conduct" No violence, no large groups of people Attracted attention of ACLU Decided that cohen's case presented a significant issue -- that the message of his jacket represented a form of protected expression and financed his case Cohen arguments: No threat of violence from Cohn or from anyone who observed his expression Cohen's expression was not obscene 1st amendment protects offensive and non-offensive speech equally Profanity is a part of language in contemporary society and an indispensable ingredient in democratic dialogue CA arguments: 1st amendment not absolute; must be balanced against other public interests Children, women, and men in courthouse were forced to observe offensive message Cohen's form of protest was so inherently inflammatory as to come within the class of words that are likely to provoke the average person to retaliation and thereby cause a breach of the peace A person may commit a breach of the peace by making statements that are likely to provoke violence and disturbance of good order, even if that is not the intended effect Ruling: unconstitutional Not directed towards anyone No evidence it would cause physical action Protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas)

*Chaplinsky v. New Hampshire*

Public Forums and the Preservation of Order Jehovah's Witness member Chaplinsky was selling biblical pamphlets and literature on a public street in New Hampshire Crowd of 50 began to gather Several took offense and complained to city marshal Marshal warned Chaplinsky but he continued to express his religious views and pass out his literature One person tried to attack Chaplinsky -- marshal intervened and forcibly began to take him to city hall Chaplinsky became agitated and wanted to know why he got arrested Officer told him to "Shut up, you damn bastard" so Chaplinsky called him a "damned fascist" and "a ********ed racketeer" Charged with law prohibiting the use of "any offensive, derisive, or annoying word to any other person who is lawfully in the street" State court: by annoying- make people want to fight you Convicted and received a fine Chaplinsky arguments: Unlawfully arrested and violently removed him even though he was peacefully exercising his right to freedom of expression; police taunted and assaulted him Rather than physically resisting arrest, he boldly expressed his righteous indignation about government's wrongful conduct toward him Fact that speech is likely to cause violence is no grounds for suppressing him; in any event, there is no reason to believe that chaplinsky words would lead to violence by police officers to whom words were directed New Hampshire arguments: Challenged law is a reasonable regulation to promote public order Statute does not violate the appellant's right to free exposition of his ideas because the verbal conduct it prohibits bears no relationship to the process of attaining and disseminating truth Ruling: constitutional Some forms of expression, such as obscenity and fighting words, are not protected by 1st amendment Government may regulate directed at another individual "which by their every utterance inflict injury or tend to incite an immediate breach of peace"

Ward v. Rock Against Racism (1989)

Public Forums and the Preservation of Order Justices upheld NY regulation that required groups performing in the Central Park band shell to use city-supplied amplification equipment supervised by a city-authorized sound technician to ensure volume would not unreasonably disturb local residents So people would not unwillingly hear music they didn't want to from their homes Court concluded this was a valid time, place, and manner restriction

*Rumsfeld v. Forum for Academic and Institutional Rights*

The Right to Not Speak Solomon amendment: says that if any part of a college or university denies military recruiters the same access granted to other employers, the entire institution may lose funding Passed law after some began protesting about government's since renounced policy about homesexuals in military by refusing to allow armed forces recruiters on campus FAIR is an association of law schools and law faculties with a mission to promote academic freedom, support education institutions in opposing discrimination, and vindicate the rights of institutions of higher education FAIR members have adopted policies against discrimination -- opposed military's policy on homosexulatly and recruitment efforts on law school campuses Filed suit to have solomon amendment declared unconstitutional Argued that forced inclusion and equal treatments of military recruiters violated its members' 1st amendment freedoms of speech and association Rumsfeld arguments: Solomon amendment is a carefully tailored exercise of congressional authority to raise and support the armed forces The amendment does not interfere with law school's right to associate for expressive purposes, force a law school to take a position it does not agree with, or affect internal composition of a law school Law schools can avoid the equal access requirements by declining federal funds FAIR arguments: Solomon amendment effectively forces schools to disseminate military recruiting messages Amendment prohibits law schools from teaching their lessons of non discrimination in most effective way Amendment forces law schools to associate with military recruiters Penalty for not complying, the loss of federal funds, is the same as a command Ruling: constitutional regulated conduct, not speech "Inherently expressive" -- someone's gotta know what you mean just from what you did Including military recruiters in receptions and interviews does not necessarily indicate university endorsement of the recruiters, so requiring their inclusion does not constitute compelled speech in violation of the First Amendment. This would be true even if Congress had decided to make the requirement direct, rather than making it indirect as a condition for receiving federal funds. Roberts wrote, "Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment's access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds." Provides example of Court's traditional deference to the needs of the military and how congress often places conditions on the appropriation of federal funds in order to attain its policy goals