Civil Liberties Lecture 4: Part 1

What does Justice Robert Jackson say about flag statute controversy?

"No official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matter of opinion of force citizens to confess by word or act their faith therein"

Chaplinsky v. New Hampshire

(1942) The Court ruled that the first amendment did not protect "fighting words" -Speech could be punished if inflicted injury or created danger person addressed would resort to violence -Police officer called "damned Nazi racketeer"

The Hicklin Test

(from English common law) -is that which has a "tendency to deprave and corrupt minds of those open to such influences." -pre-1957 obscenity was measured with reference to its supposed impact on the most vulnerable

Hustler Magazine v. Falwell

- A public figure must show actual malice to sue for intentional infliction of emotional distress

What is the symbolic speech in the Vietnam era like?

- the many protests of the Vietnam war era produced a number of first amendment cases 1. U.S. v. O'brien 2. Tinker v. Des Moines Independent Community School District

What is hate speech?

-1980's communities adopted these laws -offenses motivated by racial and other group-related hatred

What are fighting words?

-Chaplinsky v. New Hampshire -certain words have no essential exposition of ideas -lewd, profane, obscene, libelous, insulting, or fighting words -mere utterance inflicts injury or tends to incite an immediate breach of peace -Speech could be limited due to possible reaction of listener -social value of such speech? -"heckler's veto"? -should a police officer be expected not to control self? -used to suppress street corner orator unpopular with crowd -the goal is order

What is the "Clear and Probable Cause" Test: Dennis v. United States (1951)

-Cold War of the 1950s raging -The Supreme Court upheld Federal convictions of 11 leaders of the American Communist Party -Adopted Judge Learned Hand's Less Protective Test: "Clear and Probable Danger" -Less subjective and less protective

Libel Suits brought by "public persons"

-Curtis Publishing Co. v. Butts -expanded principle to "public figures" Public figures: prominent and those who put themselves into spotlight Theory: public figures and officials have sufficient access to the media to defend themselves against false charges and thus normally do not need help of libel suit

What is defamation?

-Defamation of character in intentionally damaging someone's reputation by making false public statements about a person -not a crime -it is a tort. A civil wrong compensable with money damages -Truth is always a defense

Street v. New York (1969) FLAG BURNING

-Defendant was convicted of malicious mischief for burning the American flag on a Brooklyn street corner following the assassination of James Meredith in Mississippi saying, "We don't need no damn flag" Also, convicted of law making it a crime to deface or defile the flag -Supreme Court said that the D might have been convicted speech and flag burning. Therefore, reversed conviction: Defendant cannot be punished for WORDS. -The Court did not decide the question of whether D could be punished for flag burning, but admitted that flag burning was an act of protest

texas v. Johnson (1989) FLAG BURNING

-Flag burning is protected by the first amendment -Defendant burned flag outside the 1984 republican national convention. Convicted of Texas Law outlawing flag desecration -Justice Brennan (5-4) said it was protected speech: "expressive, overtly political." Did not threaten to disturb the peace. Symbolism of Flag not enough to overcome first amendment -Justice Rehnquist Dissent: No political speech. Not to express idea but to antagonize others (like fighting words). Flag in unique position and justifies protection. -brennan response: Way to preserve flag's special rile is not to punish those who feel differently -some called for a constitutional amendment to put flag burning beyond first amendment protection -Congress enacted statute: federal flag protection ACT of 1989. Struck down as unconstitutional as applied to flag burning as a form of political protect in U.S. v. Eichman

What is Ad Hoc balancing?

-Focus on circumstances -weighed private interest against public interest -not a clear doctrine

"The Pentagon Papers Case" New York Times v. United States (1971)

-Found unconstitutional prior restraint effort to stop publication of stolen military documents -does not say all prior restraints are unconstitutional -found not threat to national security here

Warren Court (1953-1969)

-Freedom of expressive rights -Press has no greater rights than the individual -Press runs into more problems though b/c of the type of speech their using -Congress shall make no law abridging Freedom of Speech -Supreme Court doesn't interpret 1st Amendment as Absolute

United States v. Progressive (1979)

-Govt sought injunction against publication of article, "How to build a hydrogen bomb" -Case dismissed: Already published in another magazine with no damage

"The Clear and Present Danger" Doctrine: Schenck v. U.S. (1919)

-Justice Oliver Wendell Holmes, Jr. rejected absolute protection -there are times when speech normally protected may be punished by the govt. -Holmes' example: "shouting fire in a theater" -look to circumstances and nature of words -will words create a "clear and present danger" to bring about the evils govt has a right to prevent? -If it is a "proximity" test -in Schenk, a socialist party official was convicted for conspiracy to print & publish pamphlets calling for resistance to WWI Draft Law -Supreme Court Unanimously upheld fed. conviction under Holmes' test -Holmes: What might be said in peacetime may not be protected in wartime

New York Times v. Sullivan (1964)

-Need "actual malice" to recover against a public official -Know it's false or - reckless disregard of the truth -if no malice, public official cannot recover

Roth v. United States (1957)

-Obscenity is "utterly without redeeming social importance" and therefore is not protected by the 1st Amendment - Roth test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals the prurient interest

Bad Tendency Triumphant: Gitlow v. N.Y (1925)

-The Supreme Court state Law upheld conviction -applied the bad tendency test -incorporated freedom of speech right after previously declining incorporation -socialist publication called for destruction of Govt. and replacement with dictatorship -likelihood of success NOT the focus -Justice Edward T. Sanford for majority: can punish those who abuse freedom of speech. State not required to measure danger. Can "extinguish the spark w/o waiting until it has blazed" - Holmes and Brandeis dissented. Argued "No clear and present danger." Looked to circumstances around words. Argued for "free marketplace of ideas"

Symbolic Speech and Expressive conduct

-applies to a wide range of nonverbal communication (already seen in 1st amend. covers more than words and pure speech in Cohen and r.a.v.) -not all symbols are protected. depends on circumstances

Justice Hugo Black

-champion of civil rights on court -he was in a great minority on the court -ANY speech is absolute (framers didn't intend this interpretation even though it is written that way)

R.A.V. v. St. Paul

-city ordinance outlawed (a misdemeanor) symbols, graffiti, etc. (cross burning, swastika) known to cause anger, alarm, or resentment because of race, gender, or religion -ordinance declared unconstitutional -Justice Scalia for majority: even if "fighting words" cannot prohibit otherwise permitted speech solely on the basis of the subject the speech addresses

Cohen v. California: erosion of the fighting words exception

-court held that "F-- the DRAFT" on jacket worn in L.A. courthouse are NOT fighting words and reversed conviction -would not be seen as a direct insult -do not need police power to stop provocation -fighting words exception still recognized, but not applied in recent years

Wisconsin v. Mitchell (1993)

-focus of CONDUCT, as opposed to subject, is constitutional -court upheld statute that increased severity of punishment if victim chosen on basis of race or other designated characteristics -court stressed aim at CONDUCT not BELIEF -punishing conduct not speech. Such does not infringe of defendant's freedom on conscience -many believe inconsistent with R.A.V. v. St. Paul

Tinker v. Des Moines Independent Community School District

-high school students wore black armbands to protest war. school had written policy that refusal to remove could result in suspension until agree to return without armbands -the Supreme Court said this was protected speech - divorced from actual or potential disruption - school needed to show more than discomfort of unpopular view

The "Bad Tendency" test: Abrams v. U.S. (1919)

-just 8 months after schenck v. U.S. -upheld fed. conviction of "anarchists-socialists" for distribution of pamphlets urging workers to resist American intervention in Russia against the New communist govt. -Court applied Common Law's Bad Tendency test -did the statements have a natural tendency to produce the forbidden consequences -look to the words not the circumstances or proximity -focused on the possible harm to war effort, not likelihood of causing feared harm -less 1st amendment protection than clear & present danger test -Holmes & Brandeis dissented arguing for the clear & present danger test -in 1920s, the court's majority followed the bad tendency test with Holmes and Brandies dissenting

Invasion of privacy

-many states permit private individuals to sue the press for unwarranted invasion of privacy. However, the Supreme Court began to restrain such suits after New York Times v. Sullivan

The Florida star v. B.J.F.

-overturned verdict against reporter who reported rape victim's name. Got name from police report that had been released in violation of state law.

What is the highest protection under the 1st amendment?

-political speech receives the highest protection

Hazelwod School District v. Kuhlmeier

-prior restraint of high school newspaper upheld -dealt with divorce and teen pregnancy. Principal said possibility of identification of students who had dealt with issue -school officials can have editorial control due to pedagogical concerns -most believe court wouldn't permit same censorship of college newspaper -court has given protection to some expressive activities in high school (ex. arm bands)

Prune Yard Shopping Center v. Robins (1980)

-property rights at odds w/ freedom of expression -right vs. right -shopping center had a policy outlawing all expressive speech that wasn't commercial speech -High School students with petition -CA state Supreme Court said their petition in the shopping center is protected -Justice Rehnquist stated shopping center's rights weren't violated -Prune said it violates because it is a taking of their property by letting people express political speech -Court: it doesn't unreasonably diminish value of property -Supreme: State Supreme Court didn't violate rational basis test

The "imminent lawless action" standard (return of a modified clear and present danger test

-rise of early 20th century criminal syndicalism statutes (violent revolution) -such statutes upheld in the past, but warren revisited the issue in the 1960s -court declared such laws unconstitutional in Brandenburg v. Ohio -Court expanded 1st Amend. protection with reformed clear and present danger test -state cannot forbid advocacy of use of force or law violation unless "inciting or producing imminent lawless action and is likely to incite or produce such action" -Rule followed by subsequent courts. protective for political dissent

What is profanity?

-same words may be both profanity and fighting words -holdings that profanity is not protected has been eroded like the fighting words exception -yet court in chaplinsky v. New Hampshire, the court specifically said profanity is so lacking in value as to not merit 1st amend. protection -In Cohen, Justice John Marshall Harlan II said, "One Man's vulgarity is another's lyric" -there is no specific holding that profanity is protected speech

Near v. Minnesota (1931)

-state censorship law found unconstitutional -incorporated the first amendment freedom of the press into the Due Process clause of the 14th Amendment -not an absolute adoption of the rule against prior restraint: national security

Return of clear and present danger: Herndon v. Lowery (1937)

-the Supreme Court applied the clear and present danger test in defense of Free Speech -reversed Georgia conviction under statute outlawing "incitement of insurrection" -court began to apply the Clear and Present Danger Test to other speech, not just sedition. Looking to circumstance.

Gertz v. Robert Welch, Inc.

-there are different types of public figures -all purpose public figure (pervasive fame or notoriety) Must always show malice -limited purpose public figure: must only show malice when concerns limited issues or public controversy into which figure interjected -Publicly doesn't make one a "public figure" for libel purposes

Barnes v. Glen Theater, Inc.

-upheld statute requiring pastes and G string. Nude dancing is "expressive conduct within outer perimeters of he first amendment, but state's interest in order and morality justified minimal burden on free expression Dissent: Nudity allowed at Lincoln Center But not at bar. Communication deserves protection at both.

Defamation and Public Officials

1. Actual Malice: Broadened 1st Amendment protection

What constitutes as Nude performances?

1. Every state has law against indecent exposure. Generally applies where individuals exposes themselves to public or private to unwilling viewers. 2. What about mutual consent, such as at a night club featuring nude dancing? 3. As part of a play or performance that is not legally obscene, nudity may be considered symbolic protected speech 4. Nudity as art may get protection 8. New Laws passed against nude dancing, many where alcohol is served

What are interpretive foundations of expressive freedom?

1. Freedom of speech is a modern concept arising with Modern Democracies 2. Freedom of speech unthinkable in ancient and medieval worlds 3. Idea emerged in English democracy 4. Of highest value to American revolutionary generation 5. Freedom of press rooted in Great Britain and Colonial experience 6. The federalist papers and the anti-federalist essays 7. sedition act of 1789 8. Some suppression during civil war, but no freedom of expression cases reached Supreme Court

What is the flag salute controversy?

1. Minersville School District v. Gobitis: upheld school board requirement that public school students salute the flag 2. West Virginia Board of Education v. Barnett: said school children have a right to refrain from saluting the flag -Jehovah's Witness students object because of religious beliefs - there is a first amendment right NOT to speak

What are the two kinds of defamation?

1. Slander 2. Libel

The Rise and Incorporation of the Freedom of Speech and Press

1. The Red Scare 2. The Supreme Court's New Civil Liberties Agenda 3. Justice Benjamin Cardozo: "The Indispensable Condition" 4. "Preferred Freedoms?" 5. The Warren Court Agenda (1953-1969) 6. Freedom of Speech and Press are the same in the 1st Amendment. Press is just a form of Speech

Are first amendment protections absolute?

1. The first Amendment states: "Congress shall make no law..." 2. But never interpreted as absolute 3. Justice Hugo Black's unsuccessful argument for absolute protection - limited to "pure" speech -no protection for expressive conduct -but the court has denied protection to certain types of expression obscenity, fighting words, and defamation are not protected 4. Supreme Court has said that speech normally protected may lose protection 5. first amendment protections are not limited to pure speech

What is the prohibition against prior restraint (censorship)?

1. The rule against prior restraint is rooted in English common law 2. The Supreme Court adopts the rule against prior restraint

Some clarifications of the miller test

1. court rejected "utterly without redeeming social importance" standard 2. Community standards are local or at least statewide 3. Later the court said that "only patently offensive hard-core sexual conduct"

Are hate crime statutes constitutional since they are subject based?

Alternative: communities can use other traditional laws: vandalism, trespass, malicious mischief Alternative: enhancing penalties based on characteristics of crime or victim

Doran v. Salem Inn (1975) Nude Performance

Bar room nudge dancing might get minimal first amendment protection under some circumstances

What are problems with the Roth test?

Court could still not agree as to what constituted "prurient interest," "redeeming social importance," or "community" (the nation as a whole or locality). Most justices agreed that hardcore pornography should not be protected, but they could not define it. Justice Potter Steward could not define obscenity, but said "I know it when I see it."

What is freedom of expression?

Speech, Press, Assembly, and Association -"the first freedoms"

Miller v. California (1973)

The Miller test (more restrictive of free expression): -Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, and - whether the work depicts or describes, in patently offensive ways, sexual conduct specifically defined by the applicable state law, and -whether the work, taken as a whole, lacks serious artistic or scientific value

What happened in Brandenburg v. Ohio?

The court reversed conviction of KKK leader who held televised rally at which he called for violent overthrow of the government

Time Inc. v. Hill

The first amendment precluded application of N.Y. statute to recover false reports in press of matters of public interest without proof of actual malice

Time Inc. v. Firestone (1976)

To be a "public figure" the alleged defamation must involve a public controversy, not merely a private dispute

What is libel?

Written defamation -most common for 1st amendment purposes is libel alleged to be committed by newspapers -traditionally, libelous publications not protected by first amendment -Since the 1960s, the Supreme Court has made it easier for newspapers in libel suits brought by "public persons" to avoid liability. Thus, first amendment protection has entered area traditionally governed by tort law. Reflects commitment to freedom or public debate

Cox Broadcasting v. Cohn (1975)

cannot retain press from reporting identity of crime victims. Stressed name in public records

First amendment

it protects communication regardless of medium

Pope v. Illinois

modified "contemporary community standards." Justice Byron White wrote: "the proper inquiry is not whether an ordinary. member of any given community would find serious literary, artistic, political and scientific value in the allegedly obscene material, but whether a reasonable person would find such value in the material taken as a whole

Did the Supreme Court adopt the clear and probable cause test?

no, it wasn't adopted by the whole court (plurality opinion)

What is sanction?

punished after it's said -usually criminal prosecution

What is censorship?

punishment before it's said -protection before it's published

What is slander?

spoken (verbal) defamation

What is the doctrine of incorporation?

the Supreme Court has concluded that the concept of due process includes many other basic rights including privileges and immunities, freedom of speech, freedom of religion, equal protection

U.S. v. O'Brien (1968)

the court rejected argument that burning a draft card was protected symbolic speech. Law said it was illegal to destroy such certificates. -law is constitutional -card belongs to government