First Amendment Final

Per curiam

A decision issued collectively. Unanimous decision

Vaccination quote

"a fireman need not obtain the consent of an owner before putting out a fire"

Morse v. Frederick

(bong hits for Jesus) Take-away: School officials can prohibit students from displaying messages that promote illegal drug use. Facts: Frederick held up a banner with the message "Bong Hits 4 Jesus" at a school-sponsored event. Principal took it away and suspended him Questions: (1) Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events? (2) Does a school official have qualified immunity from a damages lawsuit when, in accordance with school policy, she disciplines a student for displaying a banner with a drug reference at a school-supervised event? Decision: (1) 5-4 Yes. (2) Unreached. 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. 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.

What should social media do about hate speech?

(opinion question) consider: is it worth it to censor speech to preserve feelings? If so, Who decides what hate speech is? Would they have to hire more people to work on that? Would it be automatic? Does context matter?

Define defamation

-untrue statements about another which damages that person's reputation -if in print, it's libel. If stated (not broadcasted), it is slander.

What is a grand jury?

-A group of people that meets in private. -Acts as investigative body by listening to evidence presented by prosecutors -Determines whether or not to return an indictment -Can compel further evidence, including witness testimony and subpoena of documents

Reasons we protect the press

-holds the gov accountable -transparency -marketplace of ideas -self actualization

Reasons for prior restraint on publication of a news story

-to protect national security -maintain ability to find an unbiased jury

Citizens United Decision

5-4 "political speech is indispensable to a democracy, which is no less true because the speech comes from a corporation" Kennedy said that corporations have a first amendment right to spending money towards supporting candidates. Spending money is critical to exercising free speech

Reporter shield laws

A law to protect journalists against the compelled disclosure of confidential information, including the identities of sources or the forced surrender of material collected during news gathering. Allows a reporter to claim "privilege" or exception to testifying

Precedent

A rule established in a prior legal case

En banc

A session in which a case is heard by all the judges

Certiorari

A writ or order by which a higher court reviews a decision of a lower court

Injunction

An order from a judge restraining a person or entity from beginning or continuing an action

Schneck v. U.S.

Basic idea: Courts give gov. more leniency during times of war- clear and present danger test Facts: Schenck was indicted by the United States Government for the charge of "conspiracy to violate the Espionage Act" after he mailed literature to draftees during World War I that criticized the draft. Question: Whether the Espionage Act prohibiting certain forms of otherwise protected speech during wartime violates the First Amendment. Decision: No Unanimous. The literature arguably would not have been sent unless it was intended to have the effect of encouraging draftees not to join the draft. Would have been fine if not wartime. Overturned in Brandenburg v. Ohio

Buckley v. Valeo

Can't restrict independent spending by individuals or groups (but some limits are okay)

Text of the First

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Time-place-manner regulations

Even if speech is in a public forum, the gov may impose reasonable time, place, and manner restrictions must be justified without reference to the content of the regulated speech restrictions must be narrowly tailored to serve a significant gov. interest restrictions should leave open ample alternative channels for communication of information

Branzburg v. Hayes

Facts: After observing and interviewing a number of people synthesizing and using drugs in a two-county area in Kentucky, Branzburg, a reporter, wrote a story which appeared in a Louisville newspaper. On two occasions he was called to testify before state grand juries which were investigating drug crimes. Branzburg refused to testify and potentially disclose the identities of his confidential sources. Question: Is the requirement that news reporters appear and testify before state or federal grand juries an abridgement of the freedoms of speech and press as guaranteed by the First Amendment? Decision: 5-4, no The Court found that requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the First Amendment. JPS's dissent: wrote that it is legally appropriate to seek confidential information from journalists only if the information is highly relevant to the investigation, the government has a compelling and overriding interest in obtaining the information, and the information cannot be obtained through other means. Now blueprint for shield laws.

Bell v. Itawamba

NOT SCOTUS CASE Facts: Bell wrote and recorded a rap off campus involving/threatening two teachers, which could be seen and heard by the school community. Was suspended. Question: Does Bell's punishment go against his first amendment rights? Decision: No because it could reasonably be seen as a threat against the teachers.

Engel v. Vitale

NY State board of regents authorized a short, voluntary prayer for recitation at the state of each school day. Question: Does the reading of a nondenominational prayer at the start of the school day violate the "establishment of religion" clause of the First Amendment? Decision: Yes, 6-1 The state cannot hold prayers in public schools, even if participation is not required and the prayer is not tied to a particular religion. Court ruled that the constitutional prohibition of laws establishing religion meant that government had no business drafting formal prayers for any segment of its population to repeat in a government-sponsored religious program.

In what case did Brennan say debate of public issue should be uninhibited, robust, etc.?

NY Times v. Sullivan

Masterpiece Cakeshop v. Colorado Civil Rights Commission

Facts: Question: Does the application of Colorado's public accommodations law to compel a cake maker to design and make a cake that violates his sincerely held religious beliefs about same-sex marriage violate the Free Speech or Free Exercise Clauses of the First Amendment? Decision: No, 7-2 -Colorado Civil Rights Commission's conduct in evaluating a cake shop owner's reasons for declining to make a wedding cake for a same-sex couple violated the Free Exercise Clause. - while gay persons and same-sex couples are afforded civil rights protections under the laws and the Constitution, religious and philosophical objections to same-sex marriage are protected views and can also be protected forms of expression. -because the baker was willing to provide other items to the couple, it wasn't discrimination -Phillips did not receive this neutral treatment, with members of the Commission showing clear and impermissible hostility toward his religious beliefs. Commission's actions violated the State's duty under the First Amendment not to use hostility toward religion or a religious viewpoint as a basis for laws or regulations. RBG (/Sotomayor) dissented saying that his beliefs didn't allow him to discriminate

Curtis Publishing v. Butts

Facts: An article alleged that former a football coach (Butts) conspired with another coach to fix a 1962 football game in Alabama's favor. The article's source was George Burnett, an Atlanta insurance salesman who had allegedly overheard a telephone conversation between the coaches. Butts brought and won a libel suit against Curtis Publishing, owner of the periodical. Soon after the Court's ruling in New York Times, Curtis moved for a new trial. The trial judge rejected the argument because Butts was not a public official. Question: In light of the Court's ruling in New York Times Co. v. Sullivan, were the allegations made against Butts libelous? Decision: 5-4, yes public figures who are not public officials may recover damages for libel stemming from false reports based on "highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers." The Court concluded that Curtis' investigation of its allegations against Butts failed to meet this standard. The company printed a questionably reliable source's allegations without any attempt to verify his claims, and the story in question was not a pressing event or immediately newsworthy.

Elonis v. US

Facts: Elonis was convicted for posting threats to injure his coworkers, his wife, the police, a kindergarten class, and a Federal Bureau of Investigation agent on Facebook. The district court instructed the jury that a "true threat," which falls outside the scope of First Amendment speech protections, requires an objective intent to threaten. Question: Does a conviction of threatening another person under 18 U. S. C. §875(c) require proof of the defendant's subjective intent to threaten? Decision: Yes, 8-1 Roberts (majority): Court held that the prosecution needed to show that Elonis intended the posts to be threats, and therefore that there was a subjective intent to threaten. An objective reasonable person standard does not go far enough to separate innocent, accidental conduct from purposeful, wrongful acts. The Court held that, in this case, an objective standard would risk punishing an innocent actor because the crucial element that makes this behavior criminal is the threat, not merely the posting. Can't define "reasonable" Alito (Concurring): he agreed that the prosecution only needed to prove negligence, but he argued that the majority opinion should have addressed what the proper instruction should be. By leaving out what the prosecution did need to show, attorneys and judges are left to guess whether knowledge or recklessness is the appropriate standard. Also argued that recklessness should be the standard because a higher standard would effectively change the law rather than clarify it. Thomas (dissent): argued that nine of the eleven circuit courts of appeals had already addressed this issue and resolved it with a general intent standard. The majority opinion not only overturns their rulings but also leaves the courts uncertain as to whether an intent to threaten is required or whether recklessness will suffice. argued that knowledge of posting the relevant threats is enough to establish the intent element because knowledge of those facts is required to make the actions illegal; ignorance of those actions being illegal should not provide shelter from the law.

NYT v. US

Facts: Nixon Administration attempted to prevent the New York Times and Washington Post from publishing materials belonging to a classified Defense Department study regarding the history of United States activities in Vietnam. The President argued that prior restraint was necessary to protect national security. Question: Did the Nixon administration's efforts to prevent the publication of what it termed "classified information" violate the First Amendment? Decision: per curium, yes 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."

Packingham v. North Carolina

Facts: Packingham was convicted of taking "indecent liberties" with a minor as a 21-year-old college student. Was released with no special instructions other than to avoid the minor. Was arrested after authorities came across a post on his Facebook profile, thanking God for having a parking ticket dismissed. He was arrested for violating North Carolina's laws regarding convicted sex offenders, which barred the offender's access to social media websites. Argued that the law violated his First Amendment rights. He was convicted in trial court, which found that the state had a weighty interest in keeping sexual predators off of social media websites for the "protection of minors." Court found that the state had a sufficient interest in "forestalling the illicit lurking and contact" of registered sex offenders and their potential future victims. Question: Does a North Carolina law prohibiting registered sex offenders from accessing various websites, where minors are known to be active and have accounts, regardless of whether or not the sex offender directly interacted with a minor, violate the First Amendment? Decision: Unanimous, yes In order to be valid under 1A, a content-neutral regulation must be narrowly tailored to serve a significant gov interest. Law cannot burden substantially more speech than necessary to advance the government's legitimate interest. Equated internet to public parks/streets.

Cutter v. Wilkinson

Facts: Religious Land Use and Institutional Persons Act (2000, RLUIPA) prohibited government from imposing a substantial burden on prisoners' religious exercise, unless the burden furthered a "compelling government interest." Prisoners in Ohio alleged in federal district court that prison officials violated RLUIPA by failing to accommodate the inmates' exercise of their "nonmainstream" religions. Prison officials argued that the act improperly advanced religion and thus violated the First Amendment's establishment clause. Question: Did federal law prohibiting government from burdening prisoners' religious exercise violate the First Amendment's establishment clause? Decision: Unanimous, no On its face, RLUIPA made an accommodation allowed by the First Amendment. The Court reasoned that the law was an effort to alleviate the "government-created burden" on religious exercise that prisoners faced. Nor did the section three discriminate between mainstream and non-mainstream religions. Court did point out that constitutional problems could arise if RLUIPA were enforced improperly and religious prisoners received favored treatment, or if religious exercise and security concerns were no properly balanced.

Cox v. New Hampshire

Facts: state statute prohibited parades, processions, and open-air gatherings in public spaces without a special license granted by the town selectman or licensing body. Cox and others conducted an "information march" during which they would carry signs and hand out leaflets. The group did not apply for a permit. Question: Does the New Hampshire state statute that prohibits unlicensed parades violate the First Amendment's guarantees of freedom of speech and assembly as applied to the states by the Fourteenth Amendment? Decision: No, unanimous Court held that a municipality's ability to impose regulations that create order and safety for its populace does not infringe on the civil liberties of its people. Because the statute in question only grants a town selectman or licensing board the limited authority to ensure that a proposed parade will not interfere with the proper uses of streets, there is not opportunity for it to wield undue or arbitrary power that would infringe on constitutional rights.

Prince v. Massachusetts

Facts: A Jehovah's Witness woman named Sarah Prince was convicted for violating child labor laws. She was the guardian of a nine-year-old girl, Betty M. Simmons, whom she had brought into a downtown area to preach on the streets. The preaching involved distributing literature in exchange for voluntary contributions. The child labor laws that she was charged with violating stipulated that no boys under 12 and no girls under 18 were permitted to sell literature or other goods on public thoroughfares. Prince argued that the state's child labor laws violated her Fourteenth Amendment rights to exercise her religion and her equal protection rights, in particular because the children themselves were ministers of their religion as well. Question: Do child labor laws violate freedom of religion by restricting their ability to take part in religious action? Decision: 5-4, no The decision asserted that the government has broad authority to regulate the actions and treatment of children. Parental authority is not absolute and can be permissibly restricted if doing so is in the interests of a child's welfare. While children share many of the rights of adults, they face different potential harms from similar activities.

Beauharnais v. Illinois

Facts: Beauharnais was distributing pamphlets petitioning Chicago government officials to stop the "encroachment, harassment, and invasion of white people" and called on whites to "Unite against violence perpetrated by African Americans." Convicted for libel Question: did that conviction violate is 1A rights? Decision: 5-4 no. He was spreading libel. Speech was provocative (esp. considering racial tensions) and was spread with the intent of creating a strong emotional effect No longer good law

UWM Post v. Board of Regents

Facts: The UW "Design for Diversity" includes speech restrictions. The restriction is crafted by the Law School, apparently, and requires intent to demean or intimidate. Question: Is this invalid because it is facially overly broad? Decision: Yes- needs to be more narrowly tailored. This rule restricts discriminatory speech regardless of whether it's likely to start a fight.

Lynch v. Donnelly

Facts: in RI, a christmas display is put up annually. It includes objects like Santa Claus's house, a tree, a "seasons greetings" banner, and a nativity scene. It'd been displayed for over 40 years. Question: Did the inclusion of a nativity scene violet the First? Decision: No. 5-4 Found that the displayed, viewed in the context of the holiday season, was not a purposeful or surreptitious effort to advocate a particular religious message. The Court found that the display merely depicted the historical origins of the Holiday and had "legitimate secular purposes." The Court held that the symbols posed no danger of establishing a state church and that it was "far too late in the day to impose a crabbed reading of the [Establishment] Clause on the country." "Plastic reindeer rule": just throw some plastic reindeer in the scene and you're good

Trump v. Hawaii

Found that the Trump administration's travel restriction fell "squarely" within the president's authority Majority said that because "there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart form any religious hostility, we must accept that independent justification." Kennedy concurrence: "An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts." Sotomayor dissent: "Based on the evidence in the record, a reasonable observer would concluding that the EO was motivated by anti-muslim rhetoric in violation of the EC" -details Trump's repeated anti-Muslim statements and the prior EO's related to travel from particular countries.

Citizens United v. Federal Election Commission Questions

Four questions: Did the Supreme Court's decision in McConnell resolve all constitutional as-applied challenges to the BCRA when it upheld the disclosure requirements of the statute as constitutional? -No Do the BCRA's disclosure requirements impose an unconstitutional burden when applied to electioneering requirements because they are protected "political speech" and not subject to regulation as "campaign speech"? -No. If a communication lacks a clear plea to vote for or against a particular candidate, is it subject to regulation under the BCRA? -Yes Should a feature length documentary about a candidate for political office be treated like the advertisements at issue in McConnell and therefore be subject to regulation under the BCRA? -Yes

Near v. Minnesota

GAG LAW CASE Facts: Jay Near and Howard Guilford accused local officials of being implicated with gangsters in a local paper. Minnesota officials sought a permanent injunction on the grounds that it violated the Public Nuisance Law because it was malicious, scandalous, and defamatory. The law provided that any person "engaged in the business" of regularly publishing or circulating an "obscene, lewd, and lascivious" or a "malicious, scandalous and defamatory" newspaper or periodical was guilty of a nuisance, and could be enjoined from further committing or maintaining the nuisance. Question: Does the Minnesota "gag law" violate the free press provision of the First Amendment? Decision: 5-4, yes Court held that the statute authorizing the injunction was facially unconstitutional, meaning the decision was based on an analysis of the law's general applications, not the specific context of this case. The statutory scheme constituted a prior restraint and hence was invalid under the First Amendment. 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.

Dejonge v. Oregon

Held that "the holding of meetings for peaceable political action cannot be proscribed" Found that the right of peaceable assembly is just as important as the rights of free speech and free press.

clear and present danger test

If the gov. finds that the speech has a clear and present danger to the public, they have the right to regulate

Incitement v. fighting words

Incitement: Speech that is intended to provoke imminent lawless action and is likely to produce imminent lawless action Fighting words: Words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. ("invitation to fisticuffs")

Difference between incitement and fighting words

Incitement: speech that is intended to provoke imminent lawless action and is likely to produce imminent lawless action Fighting words: words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. "Invitation to fisticuffs"

SCOTUS Justices

John Roberts (Chief) Clarence Thomas Ruth Bader Ginsberg Stephen Breyer Samuel Alito Sonia Sotomayor Elena Kagen Neil Gorsuch Brett Kavanaugh

Lemon v. Kurtzman

LEMON TEST Facts: PA and RI had statutes that provided for the state to pay for aspects of non-secular, non-public education. Appellants in PA case represented citizens and taxpayers in PA who believed that the statute violated the separation of church and state described in the First Amendment. Lemon had a kid in PA public school. RI case, appellees were citizens and tax payers of RI who sued to have statute in question declared unconstitutional by arguing that it violated the Establishment Clause of the First Amendment. Question: Do statutes that provide state funding for non-public, non-secular schools violate the establishment Clause of the First Amendment? Decision: 8-1 RI, 8-0 PA, yes Court held that both the state statutes in question had secular legislative purposes because they reflected the desire of states to ensure minimum secular education requirements were being met in the non-public schools. Government financial involvement in such institutions inevitably leads to "an intimate and continuing relationship" between church and state. Noted potential political implications of public funding, as there is a risk of religious issues becoming politically divisive.

14th Amendment

Makes the BOR applicable to the states

"Fire in a theater" case

Schneck v. US Clear and present danger test Oliver Wendel Holmes

Brandenburg test

Speech can be prohibited under the imminent lawless action test If speech... 1) is directed at or inciting imminent lawless action 2) if it is likely to incite or produce such action

R.A.V. v. St. Paul

Take-away: "Fighting words." You can't regulate things just because you don't like them. Facts: Several teenagers allegedly burned a crudely fashioned cross on a black family's lawn. The police charged one of the teens under a local bias-motivated criminal ordinance which prohibits the display of a symbol which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." Question: Is the ordinance overly broad and impermissibly content-based in violation of the First Amendment free speech clause? Decision: Yes Unanimous. Because the law "prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses"

Bethel School District v. Fraser

Take-away: "The constitutional rights of students at public school are not automatically coextensive with the rights of adults" Facts: Matthew Fraser made a speech nominating a fellow student for elective office. In his speech, Fraser used what some observers believed was a graphic sexual metaphor Was suspended for two days as a result of code against conduct which "substantially interferes with the educational process" Question: Does the First Amendment prevent a school district from disciplining a high school student for giving a lewd speech at a high school assembly? Decision: 7-2 No. The Court found that it was appropriate for the school to prohibit the use of vulgar and offensive language.

Brandenburg v. Ohio

Take-away: Brandenburg test Facts: KKK leader was arrested under syndicalism law after giving a speech. Law prohibited advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform." And assembling groups "of any persons formed to teach or advocate the doctrines of criminal syndicalism" Question: Is Ohio's criminal syndicalism law unconstitutionally prohibitive Decision: Per curiam yes. Law made advocacy and teaching of doctrines illegal whether or not they incite action.

Snyder v. Phelps

Take-away: Context, form, and content. It was okay because it was a public matter, they'd done similar protests before, etc. Facts: Family of deceased filed lawsuit against WBC for protesting his funeral. The family accused the church and its founders of defamation, invasion of privacy and the intentional infliction of emotional distress for displaying highly offensive signs. Question: Does the First Amendment protect protesters at a funeral from liability for intentionally inflicting emotional distress on the family of the deceased? Decision: 8-1 Yes. The Court held that the First Amendment shields those who stage a protest at the funeral of a military service member from liability.

US v. O'Brien

Take-away: O'Brien test. Facts: David O'Brien burned his draft card at a Boston courthouse. He said he was expressing his opposition to war. He was convicted under a federal law that made the destruction or mutilation of drafts card a crime. Question: Was the law an unconstitutional infringement of O'Brien's freedom of speech? Decision: No 7-1 majority. Established a test to determine whether governmental regulation involving symbolic speech was justified.

Hazelwood School District v. Kuhlmeier

Take-away: The First Amendment does not require schools to affirmatively promote particular types of student speech. Facts: Principal received pages of school paper to approve, thought two articles were inappropriate. Ordered that the pages on which the articles appeared be withheld from publication Question: Were the student's First Amendment rights being violated by the principal by having their articles cut? Decision: 5-3 No. 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."

Tinker v. Des Moines

Take-away: students still have rights at school. Substantial disruption test. Facts: group of students plan a public showing of their support for a truce in the Vietnam war. The principals of the Des Moines school learned of the plan and met to create a policy that stated that any student wearing an armband would be asked to remove it, with refusal to do so resulting in suspension. Question: Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate their 1A rights Decision: 7-2 yes. Held that the armbands represented pure speech. Held that the 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.

Texas v. Johnson

Take-away: symbolic expression is protected by the First Facts: Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration Question: Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment? Decision: Yes 5-4. The fact that an audience takes offense to certain ideas or expression does not justify prohibitions of speech.

Holding

The decision of the court

Lemon test

Three-pronged test re: establishment clause -statute must have a secular legislative purpose -its principal or primary effect must be one that neither promotes nor inhibits religion -must not foster "excessive government entanglement with religion"

Substantial Disruption Test

Tinker v. Des Moines Determines when public school officials may discipline students for their expression. Did the speech or expression of the student "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school?" Said schools do not have to wait for actual disruption is there is a "reasonable forecast of disturbance"

Actual Malice standard

a public official plaintiff must show that the defendant acted with knowledge of the statements falsity or with reckless disregard for the trust (private individuals must only prove the defendant acted with negligence)

O'Brien Test

a test used to determine whether a content-neutral law is constitutional -Is the law within the constitutional power of the government? -Is there an important and substantial government interest? -Is that interest unrelated to the suppression of free expression? (content-neutral) -Does the law prohibit no more speech than is necessary to further the government interest?

Content-based regulation

based on the substance of the message being communicated, rather than the manner or method in which the message is being expressed

NYT v. Sullivan

establishes "actual malice" standard necessary for public officials to prove defamation action. Facts: New York Times published an ad for contributing donations to defend Martin Luther King, Jr., on perjury charges. The ad contained several minor factual inaccuracies. The city Public Safety Commissioner felt that the criticism of his subordinates reflected on him, even though he was not mentioned in the ad. Sullivan sent a written request to the Times to publicly retract the information, as required for a public figure to seek punitive damages in a libel action under Alabama law. Question: Did Alabama's libel law unconstitutionally infringe on the First Amendment's freedom of speech and freedom of press protections? Decision: Unanimous, no. When a statement concerns a public figure, the Court held, it is not enough to show that it is false for the press to be liable for libel. Instead, the target of the statement must show that it was made with knowledge of or reckless disregard for its falsity.

Gertz v. Robert Welch, Inc.

facts: Gertz was an attorney hired by a family to sue a police officer who had killed the family's son. In a magazine called American Opinion, the John Birch Society accused Gertz of being a "Leninist" and a "Communist-fronter" because he chose to represent clients who were suing a law enforcement officer. question: Does the First Amendment allow a newspaper or broadcaster to assert defamatory falsehoods about an individual who is neither a public official nor a public figure? Decision: 5-4, no Powell argued that the application of the New York Times v. Sullivan standard in this case was inappropriate because Gertz was neither a public official nor a public figure. Public figures consent to public scrutiny, private do not. This would threaten the right for representation for those involved in controversial cases.

Ashcroft v. ACLU

facts: Congress passed the Child Online Protection Act (COPA) to prevent minors from accessing pornography online. ACLU and online publishers sued in federal court to prevent enforcement of the act, arguing that it violated the Free Speech clause of the First Amendment. question: Is the Child Online Protection Act's requirement that online publishers prevent children from accessing "material that is harmful to minors" likely to violate the First Amendment by restricting too much protected speech and using a method that is not the least restrictive one available? Decision: Yes; 5-4 Court found that Congress had not yet met its burden to show that the COPA requirements were more effective than other methods of preventing minors. "Community standards" isn't a real thing- something that's inappropriate in a more conservative community may not be in others. Content-based restriction

Other types of unprotected speech

obscenity, child pornography, libel and slander, crimes involving speech (perjury/extortion)

content-neutral regulation

restriction on the manner in which an expression can be communicated and applies equally to all communications regardless of the message or view being espoused

Basic 1A concepts

stops the gov from regulating the content of speech doesn't generally apply to private parties

Fighting words

words that... "by their very utterance inflict injury or tend to incite an immediate breach of the peace" (Chaplinksy) "Direct personal insult or an invitation to exchange fisticuffs" (Texas v. Johnson) Unprotected speech because they are considered to lack social value in the marketplace of ideas.