First Amendment

Fighting Words Test:

"Personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. vi. Limited to face-to-face provocations, rather than generally at a group. 1. CAN insult a crowd 2. CAN burn a flag

Erogenous Zoning

"—Pushing this kind of speech to the outside of our diagram. Not CORE speech, for which ANY regulation is offensive. Two-tiers?

Spence v. Washington: Test for Symbolic Speech

-Taped a peace sign on the American flag -Factors for deciding that this conduct was communicative 1) Intent to convey a particularized message 2) In the surrounding circumstances, the likelihood was great that those viewing The conduct would know the message. -Reasonable people seeing the message -This cheats those whose messages are so sophisticated that most of us wouldn't Get it. -IF we can answer YES to both of those factors- then it is protected speech. -When can the government regulate this type of information?

Bolger v. Young Drug Products Corp

.—Unsolicited advertisements for contraceptives are commercial speech notwithstanding the fact that they discuss important public issues (like human sexuality and venereal disease) and are "entitled to the qualified but nonetheless substantial protection accorded to commercial speech."

Content Neutral Laws: 2 Types

1) Aimed at speech, but not at any particular content- Time place and manner -The formulation for Intermediate Scrutiny a) Look @ the governmental interest at stake (Substantial or significant), less than compelling b) Look @ the tailoring- not as hard- close tailoring not least restrictive means. -Does have to have means and fit. c) Ample alternative avenues of communication 2) Not aimed at speech, but have an incidental restriction of speech for an expressive purpose. -Subjected to Intermediate Scrutiny -Remember also the pig pen analysis- Renton and secondary effects analysis. -Categorized symbolic speech here.

Strict Scrutiny

1) Compelling Governmental Interest 2) Narrowly Tailored- Least Restrictive Means

Miller v. California

1) average person using community standards find that the whole work appeals to prurient interest, (2) work depicts patently offensive sexual conduct specifically defined by applicable state law, and (3) work taken as a whole lacks serious value The serious value was raising the standard. Unsolicited obscene materials. Under this holding, no one will be subject to prosecution for the sale or exposure of obscene material unless these materials depict or describe patently offensive "hard core" sexual conduct specifically defined by the regulating state law.

Jurisprudence: Absolute v. Balancing

1. Black—No balancing: all speech - Absolute a. It is an unequivocal command. Freedom of speech means all speech. b. The drafters of BOR already have done all of the balancing needed, to create any more 'tests' by which speech is left unprotected under certain circumstances is a "standing invitation to abridge it." i. But this ideas did not make any sense to allow all speech. 1. What about conspiracy? 2. What about threatening the President? ii. So what is speech? 2. Frankfurter and Harlan: not all speech created equal a. Harlan in Konisberg-upheld a denial of bar admission to an applicant who had refused to answer questions about Communist Party membership, "[W]e reject the view that freedom of speech and association [are] "absolutes". b. Freedom of Speech is Qualified and Varied

Jurisprudence: Categorizatoin v. Balancing

1. Categorization-basically strict scrutiny that gives clearer notice to speakers. a. Attraction=clarity and provides guidance to judges and gov't officials.\ b. Negative=may cast entire classes of speech outside the 1st Amend w/o adequate examination

Child Pornography: Kids as viewers

1. Kids as Viewers:a. Protected for adults but not ideal for minors b. Ginsburg v. New York—May take extra measures to keep sexually explicit (though not obscene) materials from minors. i. Convicted for selling Playboy to minor. Magazines definitely protected for adults, but... ii. State has to be REALLY careful so as to limiting ONLY minors. Must use LEAST RESTRICTIVE MEANS. Can't burn the house to cook the pig.

Time Place and Manner Restrictions:

1. Prior Restraints are the MOST disfavored!!! A.K.A., Licensing Scheme a. Carries a particularly high risk of content control b. Have no way of knowing WHY rejected c. Marketplace of ideas concerns—How do you find/scrutinize the truth? 2. Hone in on STANDARDLESS DISCRETION!!! 3. Slippery slope—My job is to prohibit annoying sounds and your MESSAGE is annoying

What is content v. non-content based speech?

1. Regulation of content/message vs. Regulation not of message a. Content-based: i. Regulations made on the content or the message being conveyed. ii. No signs saying "Obama for President" iii. I.e., City says no protest of healthcare reform. b. Not content-based: i. No signs of ANY sort ii. City says NO demonstrations outside the hospital between 6pm & 8am or no speech through bullhorns iii. Regulations made on the: Time, Place, or Manner of speech 2. The dividing line: a. If message, presumed unconstitutional unless Govt. survives a VERY Strict Scrutiny i. Very compelling reason ii. Least restrictive means b. If not message, lower scrutiny 3. Major fight: if the regulation is really content or not content?

Content Based v. Content-Neutral Regulations: Defined

1. Viewpoint restrictions (CARDINAL SIN)—Restriction of the expression of a particular point of view a. The paradigm violation of the 1st Amendment b. The 1st Amendment' basic guarantee is of freedom to advocate ideas. 2. Subject matter restrictions—Banning an entire topic a. Strict Scrutiny

What is speech v. what is not speech?

1. What is speech? Look to circle analysis. content v. non-content- anything that isn't forbidden is speech. 2. What is NOT speech? Govt. can do whatever it wants, even if based on content a. So truly harmful or bereft of social utility: No 1st Amendment Protection i. Incitement ii. Obscenity (child pornography) iii. Fighting Words iv. Others

Valentine v. Christensen

1st Amendment imposes no "restraint on government as respects purely commercial advertising." i. Valentine mixed an advertisement with a protest flier (different sides of a flier) in order to get around a ban on political fliers ii. This is just a business regulation iii. Messy in practice—Political Ads and Press Freedoms (N.Y. v. Sullivan) d. But speakers CAN have a commercial motive

Cantwell v. Chaplinsky (what are their differences?)

2. Different b/c: a. Audience did vs. didn't react b. To whom the fighting words were aimed (officers vs. citizens) iv. Hypos: 1. "****** Beware" on the side of a building—protected a. Focus on order, not on morality 2. "****** Beware" only black family's store—closer 3. Have to look at the statute (see Gooding)

Hate Speech: Skokie

2. SCOTUS upheld lower court's decision to strike down Skokie's complicated ordinances designed to keep the Nazi's from demonstrating. a. It is better to allow those who preach racial hate to expend their venom in rhetoric rather than to be panicked into embarking on the dangerous course of permitting the government to decide what its citizens may say and hear.

Pornography as subordination of women- American Bookseller's Ass'n v. Hudnut

A state MAY prosecute actual injury during porn filming but may NOT prosecute filming b/c discriminating against women 1. Indy ordinance defined "pornography" as a practice that discriminates against women. Very different from "obscenity," which is not protected by the 1st Amendment. 2. Pornography defined as subordination of women—sexual objects who enjoy pain or humiliation, experience sexual pleasure in being raped, tied up, cut up,... (doesn't look like average Playboy spread would fit) 3. Ordinance discriminates on the ground of content AND viewpoint. Per se protected. a. Speech treating women in the correct/incorrect way. b. Who decides? 4. Marketplace of ideas argument. a. Reasonable people can disagree about whether this is subjugative 5. Pornography is low value speech, but Indy left this out of the ordinance, so the argument couldn't be brought to bear.

Schenck v. United States

Anti-Espionage Case- Mailed circulars to draftees suggesting that the draft was wrong. Do not submit to intimidation Clear and Present Danger Test: But the character of every act depends upon the circumstances in which it is done. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. 1. It is a question of proximity and degree. Clear: (Likelihood)- speaker will bring about some substantive evil- defined as bigness Present: (Imminence)- The immediacy of the action.- becomes much more prominent later

Edwards v. South Carolina

Black protesters arrested when they refused to disperse. SCOTUS reversed conviction because protest was peaceful. No violence by the demonstrators or the onlookers, no fighting words.

Young v. American Mini Theaters

CAN'T ban but CAN locate 2. SCOTUS identified the communication as lower value than core, political speech a. Though we recognize that the 1st Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate. 3. Powell's Concurrence (5th vote in 5-4 decision)—two inquiries: a. Does the ordinance impose an content limitation on the creators of adult movies or their ability to make them available to whom they desire b. Does it restrict in any significant way the viewing of these movies by those who desire to see them?

Bigelow v. Virginia

CANNOT criminalize advertisement in Virginia newspapers of the availability of abortions in New York.

City of Los Angeles v. Alameda Books, Inc.

CANNOT hold erogenous zoning unconstitutional on summary judgment 2. City bears burden of showing that the study applies to "department stores," it gets the chance to make the argument: "we specifically refused to set such a high bar, [holding instead that] a municipality may rely on any evidence that is 'reasonably believed to be relevant' for demonstrating a connection between speech and a substantial, independent government interest." 4. Confirms no strict scrutiny by lesser scrutiny to time, place, and manner restrictions. 5. Erogenous Zoning based on secondary effects are DEEMED Content-Neutral 6. Kennedy's Concurrence (5th vote)—such zoning laws are really content-based but such laws should be subject to intermediate, NOT strict scrutiny because secondary effects are legitimate. Still, cannot substantially reduce speech.

Feiner v. New York

Can a state keep a man from speaking in public if that speech is causing a breach of the peace? Yes. F: Feiner (WWII vet) spoke to a crowd, criticizing the government and opining that the black community should rise up in arms and fight for their rights. Listener told a police that if he didn't remove Feiner the listener would. Police asked Feiner to stop speaking. F arrested for "ignoring and refusing to heed and obey reasonable police orders issued to regulate and control said crowd and to prevent a breach of the peace/injuries to pedestrians attempting to use said walk." 5. Probably wouldn't go this way today: better crowd control and more afraid of the Heckler's veto 6. Widely viewed as an aberration. Courts today will need real proof of real and immediate fight. These words were TRULY just a punch to start a fight.

Renton v. Playtime Theatres Inc.

Can locate because of feared secondary effects: 1. Zoning law that concentrated theaters. Zones the existence out of them. 2. Though speech is protected, so-called "content-neutral" time, place, and manner regulations are acceptable and do not unreasonably limit alternative avenues of communication. 3. Ordinance is not aimed at the content of the films shown but the "secondary effects" of such theaters on the surrounding community. Inevitably produced. State doesn't hate the speech, they hate the specialty effects. Pigpen (from Peanuts) argument? 4. Because the ordinance focuses on the secondary effects, we're now content-neutral. So long as it is designed to serve a substantial governmental interest (crime, safe neighborhoods, property values, etc.) AND allows for reasonable alternative avenues of communication, it can survive constitutional scrutiny. 5. Only about 5% of land remained available after zoning. 6. Moved to the bottom half of the circle (content-neural). So no strict scrutiny.

RAV v. City of St. Paul

Can outlaw ALL fighting words, but CANNOT outlaw SOME fighting words and NOT others 1. Teenagers burn homemade cross on black family's yard. Instead of charging with arson, terroristic threatening, etc., the kids are charged under St. Paul's Bias-Motivated Crime Ordinance: can't put swastika or anything else "which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." Kids argue the ordinance is substantially overbroad and impermissibly content-based; therefore, facially invalid. 3. Even if ALL the expression reached by the ordinance fit under the "fighting words" doctrine, STILL unconstitutional because the ordinance prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses. a. Even though you're aiming at unprotected speech (outside the circle), you're still basing on content. CAN'T do it! (Squiggly line goes on forever) 8. St. Paul goes beyond content discrimination to viewpoint discrimination a. Content vs. Viewpoint—Viewpoint is a subset of content. Content is race, color, creed, religion, gender. Viewpoint is how you feel/what you have to say about the content. b. Hate is a viewpoint. 11. If the basis for the content discrimination consists ENTIRELY of the very reason that the entire class is proscribable, then we're not worried. Just shaving off the worst of the worst. a. Super obscene (though you could proscribe all obscenity) b. Only threats to the President's life (though you could proscribe all threats) 12. Fix this with a flat ban! All or nothing. a. Unconstitutional because covered TOO LITTLE! Scalia: The law was underinclusive- Viewpoint discrimination Concurrence: Overinclusive Law: It is inconsistent to hold that the government may proscribe an entire category of speech because the content of that speech is evil (child pornography, obscenity, and most libel), but that the government may not treat a subset of that category differently without violating the First Amendment. (Translation: Leave our damn squiggly line alone!) a. The content of the subset is, by definition, worthless and has no protection b. Legitimizes hate speech as a form of public discussion C. Law was overbroad

City of Ladue v. Gilleo

Can't ban signs to minimize visual clutter -A HOA Can ban because its private property

Schneider v. State (Flat Bans on Manner)

Can't completely ban otherwise legal and constitutionally protected speech. d. Doesn't matter if this right COULD be exercised elsewhere, you have a RIGHT to exercise it here. i. The existence of some adequate alternative avenue CANNOT on its own justify shutting down speech in a public forum.

Whitney v. California (Criminal Syndicalism/Anti Communism Case)

Charlotte Anita Whitney, a member of the Communist Labor Party of California, was prosecuted under that state's Criminal Syndicalism Act—being a member of an organization that teaches to do bad things. She voted to achieve the CLP's goals through the traditional political process, but a more militant program was adopted, and W remained a member. Brandeis: Only clear, present, and imminent threats of "serious evils" could justify suppression of speech. 2. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. 3. Even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference b/w advocacy and incitement, preparation and attempt, assembling and conspiracy must be borne in mind Take Aways: a. Asserts the role of the court—Legislature has deemed a whole category of speech to necessarily present a clear and present danger. Court should strike down laws inimical to the constitution. Don't take the legislature's word. Passing the statute does NOT establish as fact that this speech if dangerous. b. Judicial justifications for 1st Amendment protection for advocacy of a criminal act—The fitting remedy for evil counsels are good one. Participation in the democratic process: thinking and talking are critical means of political stability. Ends/Means. Safety valve argument. Speech as check. c. Clarifies the elements of the Clear & Present Danger Test—C&P: Whether the words used are in SUCH CIRCUMSTANCES and are of such a nature as to create a CLEAR and PRESENT danger that they will bring about the SUBSTANTIVE EVILS that Congress has a right to prevent. i. Really Bad ii. Really Immediate iii. Definite Incitement

New York v. Ferber

Child Pornography is Outside of 1st Amendment Protection a. Prohibited distribution of material depicting children engaged in sexual conduct; it did not require that the material be legally obscene. Selling, not actually photographing. Not connected with actual production or kids. b. First, State's interest in safeguarding the physical and psychological well being of a minor is compelling c. Second, the distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways: i. Production is a permanent record of the children's participation and the harm to the child is exacerbated by their circulation ii. Distribution network must be closed if to be effectively controlled d. Third, advertising and selling provides an economic motive and is an integral part. Kill the distribution/advertising/selling will kill production and protect the kids. e. Fourth, Value is exceedingly modest, if not de minimis. f. Fifth, Does NOT violate stare decisis because this work isn't held to the same standards because of the incredibly strong interests in preventing ACTUAL HARM. ALL Child Pornography (with kids as subjects), doesn't have to be obscene and CAN be artistic. g. Limited to visual works

Clear and Present Danger Test:

Clear and Present Danger Test: But the character of every act depends upon the circumstances in which it is done. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Hamling v. United States

Community standards for obscenity are local not statewide or national .

Gooding v. Wilson

Conviction thrown out because Georgia statute covered more than just fighting words (words that have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed).

Terminiello v. Chicago

D shouts mean things to crowd and is arrested. SCOTUS reversed conviction; but b/c of a jury charge, not a hostile audience argument. 1. Free speech is supposed to invite dispute. This serves a higher good and must be protected. 2. But the Court admits that such a conviction is possible—reaction engendered

Abrams v. United States (Anti-Espionage Case)

Do the amendments to the Espionage Act or the application of those amendments violate the free speech clause of the First Amendment when citizens are imprisoned for distributing leaflets encouraging the curtailment of the war effort? No and No Background: The defendants were convicted on the basis of two leaflets they printed and threw from windows of a building. One leaflet signed "revolutionists" denounced the sending of American troops to Russia. The second leaflet, written in Yiddish, denounced the war and US efforts to impede the Russian Revolution. You're making bullets to kill Russians. The defendants were charged and convicted for inciting resistance to the war effort and for urging curtailment of production of essential war material. They were sentenced to 20 years. The court used the bad tendency test to find that the convictions should be upheld. General intent to do harm was all that was necessary Dissent: Holmes and Brandeis dissented on narrow ground—the necessary intent had not been shown: intent by such curtailment to cripple or hinder the U.S. in the prosecution of the way with Germany. 1. Moreover, Holmes emphasizes that the danger must be genuinely IMMEDIATE. vi. Holmes focuses on INTENT & MOTIVE, not accidental effects. 1. These guys were okay with killing Germans, but they wanted to support Russia vii. The COST of the GENERAL INTENT standard is TOO GREAT. We're going way too far toward advocacy on the continuum. 1. Hampers speech exponentially. General intent allows it to be shut down too early. 2. With a specific intent theory you have more protection.

Jenkins v. Georgia

Even though questions of appeal to the "prurient interest" or of patent offensiveness are 'essentially questions of fact,' it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is 'patently offensive.'" Nudity alone is not enough.

Texas v. Johnson

Expressive Conduct CAN BE Speech (Gets Intermediate or Strict Scrutiny, depending on whether regulation's purpose was to suppress free expression) a. Did the flag burning constitute expressive conduct? (Speaker's Intent AND Would the message be understood by the audience?) i. If NO, banning is constitutional ii. If YES, Was the State's regulation related to the suppression of free expression? 1. If NO (content-neutral), Use O'Brien Test: a. Does legislative body have some other affirmative right to write this legislation? b. Govt.'s interest must be important or substantial (more than plausible but less than compelling) c. The incidental restriction on the alleged 1st Amendment freedom must be NO greater than is essential to the furtherance of that interest. i. Not least restrictive means 2. If YES (Content-based), Use Strict scrutiny: a. Narrowly tailored (least restrictive means) (1) b. Serve Compelling state interest (2) c. Govt. must demonstrate that the regulation does not "unnecessarily circumscribe protected expression."

Cohen v. California

F. The Draft. 2. Only conduct State punished was communication. State lacks power to punish D for the underlying message. No showing of intent to incite disobedience to the draft. 3. Also: a. "Offensive Conduct" in the statute insufficiently informs the public b. "F" wasn't directed at any one person Solution: Look away rather than censor the speech. 4. Undoing Chaplinsky: a. Cohen made clear that profanity was at least sometimes protected i. Court can't cleanse public debate! Who decides what is offensive and how much? One man's vulgarity is another man's lyric ii. These words were chosen for their emotive as well as for their cognitive force iii. If you regulate words, you regulate ideas b. Cohen reiterated the fact that fighting words had to be directed to an individual, not the world c. Cohen undermined the notion that the very utterance of words is harmful and said the preventing psychic offense was insufficient to hamper speech d. Now ONLY the breach of the peace is at issue. e. MUST provoke a violent action 5. Not obscene because not using "F" sexually. 6. Not Captive Audiences Doctrine—Sensitive folks who have seen this message and can't force other people to look at it. A right NOT to be a captive audience. But won't take that doctrine very far. Simply avert your eyes.

US v. Eichman

Facial Purpose is to Suppress Expression so Strict Scrutiny a. SCOTUS struck down 1989 Federal flag protection law. Though the terms of the act are more broad than the Texas statute, it still suppresses expression out of concern for its likely communicative impact. i. Verbs convey CAN'T disrespect but CAN burn if done RESPECTFULLY

History: Evils

First Amendment was specifically designed to avert: 1. Prior Restraint through licensing—can't use that printing press w/out a license a. Prior Restraints = Restraints the occur before the speech is ever shared b. Presumptively unconstitutional 2. Seditious Libel—Only needed to show that defendant had intended to publish writings having a seditious tendency, NOT the malicious intent to cause sedition. Judge not jury decided seditious tendency. Truth was NOT a defense.

Greater New Orleans Broadcasting Association v. U.S.

Gov't cannot ban broadcast advertising of lotteries and Casino Gambling

Barnes v. Glen Theatre, Inc.

Govt. CAN completely ban Nudity in a public place. O'Brien PLUS morality justification. 1. Indiana law prohibited all nudity in a public place 2. Nude dancing IS expressive conduct "within the outer perimeters of the First Amendment." 3. Plurality Uses O'Brien Test -Can do so because its intermediate scrutiny and the government's interest in health and safety meets the requirements.

Pittsburgh Press Co. v. Pissburgh Human Relations Comm'n

Govt. CAN prohibit newspapers from listing employment advertisements in gender-designated columns.

Rice v. Paladin Enterprises

Hit Man manual NOT protected by 1st Amendment. i. Author stipulated directed. ii. But NOT imminent. iii. Court did NOT protect speech and SCOTUS didn't review the case. iv. No value in speech but to inform about how to be a criminal.

Ginzburg v. U.S.

I know it when I see it.

Frohwerk Case

If it has any tendency to inflame i. You have to prove that your speech didn't have a tendency or an effect.

Central Hudson Gas v. Public Service Comm'n

Intermediate Scrutiny for regulations of truthful commercial speech on the basis of its content. Regulation must "directly advance" a "substantial" government interest by means that are "not more extensive than necessary." Four part Test: 1. Is the expression protected commercial speech (protected by the 1st Amendment)?—Must be lawful activity and CANNOT be misleading or false 2. Is the asserted governmental interest substantial? Not compelling (Govt. will die) and Not rational basis (survives laugh test) 3. If yes to both: a. Does the regulation directly advance the governmental interest asserted? b. Is the regulation "not more extensive than is necessary to serve that interest?" i. Can be a little more extensive because this is commercial speech ii. CORE speech takes this very seriously. LEAST RESTRICTIVE c. a + b = Govt. must have used a reasonably tailored means

Gitlow v. New York (Criminal Anarchy)

Is the New York law punishing advocacy to overthrow the government by force an unconstitutional violation of the free speech clause of the First Amendment? No i. Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterances without propensity to incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law. Does first Amendment apply to the states? YES- via the 14th amendment. However, the court in this case used a Rational basis scrutiny, which is flatly inconsistent with caroline products FN 4. Caroline gave Strict Scrutiny, not rational basis scrutiny. This case is problematic because it once again ignored the imminence requirement of the C&PD test.

Chaplinsky v. New Hampshire

JW proselytizing and a disturbance broke out. Police escort JW away. JW asks City Marshal to arrest the citizens. Marshall says no. JW calls him a "*** ****ed racketeer" and "a damned Fascist." NH law outlaws "address[ing] any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name." 1. Court found that the epithets were likely to provoke the average person to retaliation, and thereby case a breach of the peace.... There are certain well-defined and narrowly limited classes of speech [that aren't protected]. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. a. No essential part of any exposition of ideas and of such slight social value as a step to truth that: b. Any benefit that might be derived is clearly outweighed by the social interest in order and morality. 2. Epithets likely to provoke the average person to retaliation 3. Contrary to morality (hurt feelings)—Speaker-caused harm (NOW DEAD) 4. Contrary to the social interest (retaliation)—listener-caused harm (MAYBE) 5. Difference b/w fighting words (harm to speaker) and Incitement (harm to govt.) 6. Policy—regulating speaker (gives reactors control of what can say—ooh, I'm mad you better stop him) vs. regulating reactors 7. Tools intended to inflict harm rather than intended to convey ideas

Cantwell v. Connecticut

JW proselytizing in New Haven and arrested for inciting a breach of the peace. Court invalidates the conviction. C&P danger test used. D played record that attached all organized religions, singling out the Roman Catholic church but offending everyone. Listening told D to go or get punch. D left. 1. Although the contents of the record not unnaturally aroused animosity, we think that, in the absence of a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State, the petitioner's communication, considered in the light of the constitutional guarantees, raised no such clear and present menace to public peace and order as to render him liable to conviction."

44 Liquor Mart

Law: Prohibited advertising about the costs of liquor outside of the store Govt. CANNOT entirely prohibit the dissemination of truthful, non-misleading commercial messages for reasons unrelated to the preservation of a fair bargaining process. In Vice contexts- there is heightened scrutiny of Central Hudson -There are many alternative forms of regulation that yol could use as a gov't that do not restrict speech that would be as likely or more likely to promote the speech. -What could we do that would be less restrictive? Tax it! -Opposing speech -educational campaign -Warning labels? -Court will be uncomfortable if the sole reason for regulating the speech because it is Attached to some kind of vice. Posados is overruled- So maybe ignore it.

Memoirs v. Mass

Memoir not obscenity because must be "utterly without redeeming social value" and prosecution has the burden of showing this. a. Prove a negative! b. Interpretation of Roth was unworkable. c. SCOTUS became a totally unreviewable board of censorship

Osborne v. Ohio

Mere Possession of Child Pornography is Unlawful—mere nudity is okay Stanley v. Georgia does not apply here.

Theory: John Stuart Mill

Mill argued that the suppression of opinion is wrong, whether or not the opinion is true: if it is true, society is denied the truth; if it is false, society is denied the fuller understanding of truth which comes from its conflict with error; and when the received opinion is part truth and part error, society can know the whole truth only by allowing the airing of competing views. i. Those who are forced to think about/support their ideas are better for it ii. Founding fathers believed in the marketplace of ideas (very strong evidence) 1. The colonists were very wary about prohibitions in allowing freedom of speech (prior restraints), putting it out there to allow counters, if it is bad punishment can be made afterwards with the behavior.

Paris Adult Theatre I v. Slaton

No fundamental privacy to watch obscene movies in places of public accommodation 3. "[T]here are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passerby." 4. "Secondary Effects" argument—harms society, ruins the core moral/values, more likely to act out in these ways -It is not for the Court to resolve empirical uncertainties underlying state legislation. a. Stanley explicitly rejected this argument for material in the home, unless you can prove it. Dissent: a. Can't separate obscenity from other sexually oriented yet protected materials. b. Problems: i. Lack of fair notice ii. Chill on protected expression iii. Severe stress on the state and federal judiciary machinery c. Alternatives: i. Draw a line between protected and unprotected—impossible without giving far too much power to the state

Cox v. Louisiana

No standards means that it is unconstitutional

Schad v. Mount Ephraim

Nude dancing protected (not ALL nude dancing is obscene) 1. Total bans on nudity are impermissible

Erznoznik v. Jacksonville

Nudity at drive-ins protected (overbroad—applied to obscene AND non-obscene films) 1. Ban applied to non-obscene films 2. Content discrimination 3. Minors? Overbroad 4. Once you're in, you're in

Roth v. united States

Obscenity is not within the area of constitutionally protected speech. Obscenity was/is rejected because: (1) it is utterly without redeeming social importance and (2) there is a state interest in preserving morality. Impossible standard to practice.

Ashcroft v. Free speech Coalition

Okay if not ACTUAL Child a. Material depicting child pornography but no actual children involved is okay i. This is called "virtual child pornography" 1. Includes computer-generated images b. A law proscribing virtual child pornography proscribes the visual depiction of an idea that has been a theme in art and literature throughout the ages—think Romeo & Juliet c. No actual sexual abuse here d. The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. Need significantly stronger, more direct connection between virtual child porn and real child abuse. e. Can't prohibit mere suggestion/advertisement

Cox v. New Hampshire

Permit requirements are OKAY if they contain some objective criteria that curtail the possibility of discrimination

Watchtower Bible Society v. Stratton

Permits to engage in door to door selling was too much of a restriction on speech. -Privacy could be obtained through less restrictive means.

City of Erie v. Pap's A.m.

Plurality: Nude Dancing gets O'Brien Test. Wholehearted Secondary Effects Analysis. Plurality uses O'Brien 6. Morality alone is ABANDONED as a justifiable reason

Debs Case

Presidential Candidate who received 1 million votes gives speech supporting socialism/admiring those who have obstructed recruitment/loath war & recruitment and is convicted for obstructing recruitment. i. He urges listeners to follow those who were convicted of obstructing the draft and the war ii. Court uses bad tendency test 1. Jury: Had as their natural tendency to obstruct the draft and the war.

Virginia Pharmacy Board v. Virginia Citizens Consumer Council

Purely Commercial Speech is Protected by the 1st Amendment, but CAN be regulated by time, place, manner restrictions. Virginia law provided that pharmacists were guilty of "unprofessional conduct" if they advertized the prices of prescription drugs. Consumers claimed that the 1st Amendment entitled them to the information. This is a CONTENT-BASED prohibition of speech. Our question is whether speech which does "no more than propose a commercial transaction" is so removed from any "exposition of ideas" and from "truth, science, etc." that it lack all protection. NO!!! v. Having purely economic motives does NOT disqualify from 1st Amendment protection viii. Can't protect public by keeping them ignorant. 1st Amendment totally forbids the state from deciding that ignorance is preferable to the free flow of information 1. IGNORANCE is NEVER a LEGITIMATE legislative GOAL—Blockbuster case (integrated neighborhoods) h. Free speech protection does NOT extend to: i. Illegal transactions ii. Factually false or misleading advertisement iii. The ban on prior restraint against laws that are overbroad Prior restraint may still be acceptable.

Masses Publishing Co. v. Patten (Anti-espionage Case)

QP: Did a magazine violate the espionage act by publishing revolutionary text and cartoons? F: New York Postmaster General refused to mail Magazine. Plaintiff applies for a preliminary injunction against Patten, the Defendant postmaster of New York (Defendant), to forbid his refusal to accept its magazine in the mails. Defendant claimed that the August issue tended to produce violations of the Act, encourage enemies of the United States and hamper the Government in the conduct of war. TEST: One may not counsel or advise others to violate the law 1. Look at the actual words, not the circumstances or tendency 2. Did the actual words counsel or advice a violation of the law? NOT: COULD THEY? Law Reqiures: 1. False Statements with Intent to interfere a. Dissension within a country is a high source of comfort and assistance to its enemies. All this, however, is beside the question whether such an attack is a willfully false statement. Utterer must KNOW them to be false. These are opinions, not statements of fact. 2. Willfully CAUSE insubordination, etc. a. To interpret the word "cause" so broadly would suppress all hostile criticism. Only the clearest expression of such power justifies the conclusion that it was intended.

Forsyth County Georgia v. Nationalist Movement

SCOTUS invalidated county ordinance requiring demonstrators on public property to pay a $1000/day fee to cover public cost that "exceeds the usual and normal cost of law enforcement." 1. Invalid because "no articulated standards either in the ordinance or in the county's established practice." No objective factors need to be relied upon and no explanation for decision necessary. 2. This legitimates a heckler's veto 3. Suggests that the public should bear the cost of protecting a speaker who is likely to provoke a hostile audience (though it does not rule out a flat fee without regard to possible hostility)

Police Department v. Mosley (Subject Matter)

Selective exclusion of speech from a public place based on subject matter is unconstitutional. Strict Scrutiny Peaceful Picketers were allowed to be within a certain area, but no one else was allowed near the school during school hours. Problematic because we could get rid of the exception and the regulation would be constitutional. However, the exception creates a preference for one group over the other and thus engages in viewpoint discrimination. Would have to satisfy Strict Scrutiny:

NAACP v. Claiborne

Speech referred to the possibility of necks being broken and implicitly conveyed a sterner message but "generally contained an impassioned plea for black unity" and did NOT transcend the bounds of protected speech.

Burson v. Freeman

Speech that partakes in voter intimidation outside of a polling place. -Looks parallel to these other cases. -Clearly speech and clearly content based -However, the interest in protecting the right to vote trumps the first amendment. -Plus the interest in having an accurate vote count (avoiding voter fraud). -Maybe have a time place and manner restriction by just saying you can't speak when you Hit the boundary of the votes?

Wisconsin v. Mithcell

Though government may NOT selectively regulate unprotected speech on the basis of the viewpoint of the speaker, government MAY regulate conduct based solely on the viewpoint of the actor. 1. Illegal to hurt other people. After the fact, at sentencing, Viewpoint CAN make a difference—if you picked your victim. 2. Conduct is different than expression? Punching is different than burning a cross? 3. Wisconsin penalty-enhancement statute if crime motivated based on race. a. Still have to look at his words.

TPM Generally:

Time, Place, and Manner Restrictions are Constitutional if (1) Justified w/out reference to content, (2) Serve significant interest, and (3) Leave ample alternatives.

Saia v. NY

Uncontrolled discretion in the issuance of permits is a device for suppression of free communication of ideas

Lovell v. Griffin v. CIO

Unfettered discretion is "void upon its face"

Bad Tendency Test

Used prior to clear and present danger test: Cons: 2. Tendency is a much lower standard, much easier to convict. 3. LESS protective 4. Benefits of Tendency Test: a. Sort of a Reasonable Person standard i. If a reasonable person that these negative consequences could occur sometime down the line. ii. We might want to err on the safety side in time of war. b. More protection and safer to shut the speech off earlier 5. What did the leaflet actually do 6. Where in the continuum from idea to outright call to action can govt. step in? ix. During wartime, utterances tolerable in peacetime can be punished.

US v. O'Brien

When speech and nonspeech elements are combined in the same course of action (Conduct regulations with incidental restrictions on speech), a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitation on 1st Amendment freedoms, but (1) the Govt. interest must be UNRELATED to the suppression of free expression and (2) the incidental restriction on the alleged 1st Amendment freedom must be NO greater than is essential to the furtherance of that interest. A) Incidental regulation of symbolic conduct? -Tell us whether we should be moving on or not. -Court refused to look @ the legislative history. -Rather the court will focus on what was actually done. B) 4 Characteristics of regulation 1) Is it within the constitutional power of government? This non-speech thing, do we let Government regulate this ordinarily? 2) Furthers an important or substantial governmental interest (Intermediate Scrutiny) 3) the interest is unrelated to the suppression of free expression 4) If the incidental restriction on alleged first amendment freedoms is no greater than is Essential to the furtherance of that interest. (Tailoring piece) Significance of O'Brien: Wasn't Congress's specific purpose to put an end to antiwar protest? SCOTUS rejected any inquiry into congressional motive.

Virginia v. Black

While a State may prohibit cross burning with intent to intimidate, the State may NOT treat any cross burning as prima facie evidence of intent to intimidate. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group with the intent of placing the victim in fear of bodily harm or death. Some cross burnings fit within this meaning of intimidating speech. Some does not—group solidarity (saying something to other similar believers). Reasoning: -Intimidation/True threats are outside the circle. -Cross burning's only purpose is to intimidate

Simon and Schuster v. Members of NY State Crime Victims Board

Writing a book about crimes to profit. Analysis 1) Is this speech? 1. State had undisputed compelling interest 2. State did not show any greater interest in compensating victims from proceeds than from any of the criminal's other assets. 3. Law is significantly overinclusive. a. Would prohibit an autobiography of Malcolm X. iii. "Tayloring" is kind of like a suit— 1. If your taylor makes it too much or too little, both are bad outcomes. 2. Can't be either under or overinclusive

Commercial Speech: Defined:

a. Definition—Commercial advertising, or speech that merely proposes a commercial transaction b. Protected, but not fully protected—lower value speech not entitled to the high degree of protection afforded to "core" speech.

Smith v. U.S.

a. HOWEVER, the "literary, artistic, political, or scientific value" factor of the Miller test is NOT to be measured by local community standards

Theory: Truth: Marketplace

a. Marketplace of Ideas—marketplace just like any other marketplace. The best stuff will rise to the top of that market; likewise, truth will then arise. i. We have a really clear picture of what is Truth when it is faced up against falsity. ii. We also cherish Truth more when it has to fight reinforces it.

Theories: Promotes Individual Autonomy

a. The inherent worth of speech b. Founding Fathers valued speech as both a means AND an END in and of itself c. Justice Brandeis, "[t]hose who won our independence believed that the final end of the State was to make men free to develop their faculties; [they] valued liberty both as an end and as a means." d. Not a serious argument; otherwise, every self-fulfilling action should be protected by the constitution (gorging on ice cream and watching chick flicks) i. More of a policy reasoning.

Theory: Democracy and Self Government: Free Speech

b. Free Speech is important in fostering the democracy, free government, we have going on. i. Not protecting because we think it will lead to Truth, but because we believe it will keep the democracy free. ii. Less elusive than the search for Truth and marketplace of ideas rationale, but under this rationale we will always need free speech because it is what good governments are made up of.

Incitement: Advocacy to Illegal Action Generally:

b. Opinions should be protected, but opinions are expressed in order to instigate violence, they lose that protection. i. Is the speaker's message furthering dialogue or merely endangering stability ii. We protect speech that furthers dialogue and the marketplace of ideas, but when something does not further this idea 1. I.e., like someone yelling in front of an armed mob in front of the White House, "Let's go in and kill them." Is not protected, it is incitement. It does not further the dialogue and the marketplace of ideas. c. Opinion vs. Instigation i. Political Dissent/Advocacy of idea vs. Beyond advocacy to the incitement of illegal action d. Should subversive speech be regulated only when it presents a "clear and present danger" of violence? Congress enacted such, making it illegal to: i. Willfully make or convey false reports or false statements with intent to interfere with the success of U.S. military operations or promote the success of enemies when U.S. is at war ii. Willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military when U.S. is at war iii. Willfully obstruct the recruiting or enlistment service of the U.S.

Sexually Explicit Expression: Obscenity: Eventual Test

defined as speech that deals with sex in a prurient (to itch or long) manner o 1) Whether the average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest Prurient- marked by an arousing or immodest appeal to a sexual desire Inordinately or morbidly focused on sexual matters. o 2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law. o 3) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Theory: Democracy and Self Government: Caroline Products

footnote 4—Most important set of lines in all of constitutional doctrine i. Constitutional provisions that are specific in their contours (clear, like 1st amendment) and serve the political process (like 1st amendment), will demand a stricter scrutiny than will be given to government action outside those realms, such as ordinary economic or social welfare (rational basis scrutiny). ii. These values in the First Amendment are so core to our civilization that we have to rely on the courts to more vigorously promote those principles, and only for very compelling reasons.

Clear and Present Danger Refined:

i. An intermediate, consequentialist approach 1. Restriction on speech (especially political speech) is NEVER legitimate. Punishment must be limited to illegal action, even if the speech directly "incites" that action. 2. Vs. 3. There should be no constitutional protection for ANY speech advocating the violation of law. ii. Intent—What if the speaker believes there's a fire?

Hostile Audiences and Heckler's Veto

i. Fighting words are offensive ONLY because of the form the message takes (G.D. S.H.! vs. You are less than honorable). Words that are the functional equivalent of a punch. Hostile audiences cases arise because of both the form AND the message itself.

Dennis v. United States

i. In 1948, the leaders of the Communist Part of America were arrested and charged with violating provisions of the Smith Act. The Act made it unlawful to knowingly conspire to to form a party to teach and advocate the overthrow or destruction of the United States government. Conspiracy to conspire to speak? Party leaders were found guilty and lower courts upheld the conviction. Rule—Does the gravity of the evil, discounted by its improbability, justify such invasion of free speech as is necessary to avoid the danger? a. If G(e)-I ≥ 0, regulating speech is okay b. If G(e)-I < 0, regulating speech is not okay c. If the Gravity is huge, then improbability might not be enough, even if it's really big too. d. The Bare Improbability (of the movement in general), not the probability of this one speaker. e. Presentness takes a back seat when the evil is REALLY grave. f. Also, risking a grave evil that is NOT probable at all. g. Really: CLEAR & present

Theory: Democracy and Self Government: Four Functions

i. Informs and improves the making of public policy 1. We want to have conversation about the best laws, running the gov't, etc. ii. Prevents govt. from entrenching itself indefinitely—it keeps clear the "channels of political change" 1. Keeps tyrannies from squelching their opposition iii. Prevents govt. abuse of power 1. Checking/Watchdog function 2. Can serve in checking the abuse of power by public officials. iv. Promotes political stability by providing a safety valve for dissent (Safety Valve Theory) 1. Talking it out allows people to come to a solution and peaceful outcome. 2. Speaking angrily keeps people from acting angrily 3. Justice Brandeis: Fear breeds repression; that repression breeds hate; that hate menaces stable government [and] that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies

Symbolic Speech:

i. Intent to convey a particularized message? 1. Use objective standard, which collapses into the second and this becomes pointless ii. In light of the totality of the circumstances, was the likelihood great that the message would be understood by those viewing it? 1. Reasonable "targeted" person standard (in the audience) 2. If it is, may the government regulate it because it has a significantly strong interest or no other alternatives

History: Issues

i. Non-issues: (no 1st Amend protection) bribery, perjury, antitrust conspiracies, and solicitation to murder ii. Issues: incitement, fighting words, libel, obscenity, and child pornography

Jurisprudence:Special Protection

i. Special Protection—govt. action directed at expression must satisfy a greater burden of justification than governmental action directed at most other forms of behavior. 1. Justifying Special Protection—Free speech vs. free market a. The Court treats speech as enjoying strong presumptive protection, and frequently intervenes to strike down government regulation. i. Thus, the Court has declined to read the 14th Amend as mandating laissez-faire in economic markets, but it has read the 1st Amend to require considerable amount of laissez-faire in the marketplace of ideas.

Sexually Explicit but non-obscene expression

i. Stevens advocates "lower value" approach but court has not adopted ii. SCOTUS has invalidated bans on: 1. Nudity in drive-ins 2. Effective bans on nude dancing 3. Ban on "dial-a-porn" telephone services. iii. But SCOTUS has upheld less severe restrictions on sexually explicit but non-obscene expression—prohibitions okay so long as not "de facto prohibitions on dissemination." 1. Balance between value and state interest a. Erogenous Zoning 2. But such restrictions would not be allowed for political speech 3. Lower value speech in practice?

Brandenburg v. Ohio (Criminal Syndicalism)

ii. Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law because he said bad things about blacks and Jews. "If Govt. keeps persecuting white folks, we might have to take revengance." The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." 1.The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" AND (2) it is "likely to incite or produce such action." c. So directed AT imminent evil AND likely

Theories: Negative theories

ii. Negative Theories—Not so much "speech is good," but distrust Govt. in the realm of speech regulation 1. Even if the marketplace is inefficient, what better option is there? 2. Control of the Media channels is highly controlled and concentrated 3. Presupposes one truth 4. Distrust that truth will actually beat out falsity 5. Once we reach truth, do we need free speech?

Brandenburg Test with other previous tests integrated

o [The First Amendment does not] permit a state to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is o 1) Directed to(specific intent) inciting (Learned Hand) or producing imminent(Present), lawless actions (Dennis, Brandeis- either substantive evil or gravity of the evil) AND o 2) Is likely(Probability/Circumstances) to incite or produce such action o Good about this test- It is very speech protective- it involves all the elements Brandenburg also cut off anything beyond imminent incitement.

Posadas de Puerto Rico Assocs v. Tourism Company of Puerto Rico

the Greater includes the lesser" -What's the problem when we think of the regulation of speech as the lesser -No constitutional right for gambling, but there is a constitution al right for speech -Speech can never be the lesser in the analysis. -"We can ban gambling for everyone, but for the greater good, we allow everyone over 21 to do it. -Commercial speech was so limited that you could ban advertising about something but still Allow the activity to go on. -Truthful speech should not be regulated when its based on the belief that the information is bad.

Martin v. Struthers (Flat Ban)

—Can't outlaw door-to-door distribution of circulars. -Door to door distribution is essential to the poorly financed causes of little people.

Fighting Words Policy:

—No time for the marketplace of ideas to work; they only creates a flashpoint. Also, they have very little social, political, philosophical, intellectual value, etc