Readings for 9/19

symbolic speech

Only actions that are "closely akin to 'pure speech'"

true threat

Speech directed toward an individual or historically identified group with the intent of causing fear of harm

Free speech serves society as a safety valve...

allowing people to blow off steam before they resort to physical violence

heckler's veto

allows unhappy listeners to abridge others' freedom of speech

O'Brien ruling

established intermediate scrutiny as the standard of judicial review of content-neutral laws that incidentally infringed protected speech

Chaplinsky v. New Hampshire (1942)

established that government may punish speech that provokes violent listener reaction. Chaplinsky called the officer a "*******ed racketeer" and a "damned Fascist." Chaplinsky was convicted under a state law that defined disturbing the peace as publicly calling someone "any offensive, derisive or annoying word ... or name ... with intent to deride, offend or annoy." The Court said Chaplinsky's comments were unprotected fighting words that "by their very utterance inflict injury or tend to incite immediate breach of peace."

effect

how the law operated

intent

why the government had enacted the law

underinclusive

A First Amendment doctrine that disfavors narrow laws that target a subset of a recognized category for discriminatory treatment

hate speech

A category of speech that includes name-calling and pointed criticism that demeans others on the basis of race, color, gender, ethnicity, religion, national origin, disability, intellect or the like

The Constitution also generally protects...

- exaggeration - hyperbole and - excess in speech ...by looking to the context to determine whether the words should be taken on their face.

The First Amendment does not protect words that...

1. are directed at an individual and 2. innately inflict emotional harm or trigger violence.

In a rare ruling of its kind, the Fourth Circuit Court of Appeals held a book publisher liable because it intended for criminals to buy and use the book "Hit Man: A Technical Manual for Independent Contractors" as a how-to for murder.

After a killer mimicked the book's detailed instructions to murder a woman, her son and the son's nurse, the court said the First Amendment did not protect Paladin Press because it encouraged, aided and abetted a crime.

viewpoint-based discrimination

Government censorship or punishment of expression based on the ideas or attitudes expressed. Courts will apply a strict scrutiny test to determine whether the government acted constitutionally

Cohen v. California (1971)

Paul Robert Cohen appealed his conviction for disturbing the peace for opposing the Vietnam War by wearing a jacket bearing the phrase "**** the Draft" in the Los Angeles courthouse. Cohen said the First Amendment protected his pure political speech. The Supreme Court agreed and said the First Amendment protected both the content and the feelings expressed through a message.

Virginia v. Black (2003)

The Court ruled that the First Amendment allows states to punish individuals who set crosses ablaze with the intent to intimidate.

Terminiello v. Chicago (1949)

The Court speech "may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are or even stirs people to anger." The First Amendment protects such speech "unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest."

One case of media incitement involved a Hustler magazine article titled "Orgasm of Death," describing autoerotic asphyxiation. The parents of a 14-year-old boy who hanged himself with a copy of Hustler open to the story sued Hustler.

The Fifth Circuit Court of Appeals said Hustler was not liable and did not incite the boy's actions. The magazine not only did not urge readers to perform the act described; it repeatedly warned against it.

Texas v. Johnson (1989)

The Supreme Court used strict scrutiny to strike down a Texas law that made it a crime to desecrate the flag. The state of Texas said its ban on flag desecration preserved an important symbol of national unity and prevented breach of the peace. Johnson argued that the law violated his right to free speech. The Supreme Court agreed. Finding flag burning to be a form of symbolic speech, the Court struck down the Texas law as unconstitutionally content based.

fighting words

Words not protected by the First Amendment because they are directed at an individual and cause immediate harm or trigger violent response

To dictate a limit on violent content would violate...

the First Amendment rights of the networks and the public, the court held