Media Law First Amendment Tests

The court said a true threat encompasses what?

those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals

In Bible Believers, the speakers were at odds with the crowd, who reacted against the speakers. But in Nwanguma v. Trump, the crowd supported Trump and reacted against the protesters.

true

As a constitutional matter, the statute can criminalize only which threats?

true threats

In Watts, the SCOTUS had again recognized a profound national commitment to the principle that debate on public issues should be what and might well include what?

uninhibited, robust, and wide open and might well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials

Apply the Brandenburg Test to then-President Trump's words in the first paragraph of the article. Explain if a court would likely find that his speech was unprotected incitement?

It would be difficult because it's hard to tell if he established incitement

Under the First Amendment, ...

Political speech receives more protection than commercial speech.

In Gerhart v. State, the Oklahoma Court of Criminal Appeals AGREED ...

The right of citizens to dissent and express their desires must be continually preserved even when such speech does little to advance the speaker's cause.

In Alvarez, the SCOTUS said one costs of the First Amendment is that it protects which speech?

The speech we detest as well as the speech we embrace

What were the facts of the case? (Nwanguma v. Trump)

Three protestors at a Trump rally sued and said Trump's speech caused Trump supporters to eject them from the rally with force because Trump said "get 'em out of here." He also said "don't hurt 'em."

Why is unrefined, disagreeable and even hurtful speech protected?

To ensure that we don't stifle public debate

In Whitney v. California, Justice Louis Brandeis said the remedy is more speech, not enforced silence, when there is time for what?

To expose the falsehoods and fallacies

What was the court's reasoning that Trump's speech was protected by the First Amendment because it didn't constitute incitement under Brandenburg?

Trump's words may arguably have had a tendency to encourage unlawful use of force, but they did not specifically advocate for listeners to take unlawful action and are therefore protected

In Hess v. Indiana (1973), the SCOTUS clarified that for the speech to constitute unprotected incitement, it must advocate for illegal action to take place when?

immediately

Is the mere tendency of speech to encourage unlawful acts sufficient reason to punish the speech?

no

Must criminal prosecutions for incitement comport with the Brandenburg Test?

no

Was it necessary for a riot to have actually ensued?

no

Would it be unprotected incitement if the advocated illegal action would take place at some indefinite future?

no

Which speech would NOT be protected under Brandenburg and Hess?

Speech telling a willing audience to "take these rocks and stone him now."

Brandenburg Test Applied

Speaker wanted audience to do what? Would that action be: •Imminent•Illegal• Was the crowd likely to take that action?

To what does the author attribute the different outcomes in the cases?

"The only distinction I can see between the cases is one which—by the rules of mainstream public discourse—I am not supposed to mention. " The fifth circuit is made up of southern states with a forgotten history of slavery and slave revolt. "This suggestion will produce the obligatory ceremonial outrage. Judge X, I am sure, is a doughty companion to one and all; Judge Y must certainly have a variegated circle of friends; Judge Z's body, no doubt, utterly lacks that anatomically elusive "racist bone." But still: Tell me race has nothing to do with this case and I will (to quote the late Professor Charles Black of Yale on a similar topic) "exercise one of the sovereign prerogatives of philosophers—that of laughter.""

What three criteria did the court use to determine if speech should not be protected under Brandenburg?

(1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends that his speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech.

Know the steps to think through and answer a hypothetical question.

1. How to approach problem: Is it part of the test, definition or rule focused on at the start? What is the threshold question? 2. Identify which facts are key. 3. Apply the element of the test, definition or rule using the appropriate facts. 4. Reach a conclusion.

Know the hierarchy of protected speech: politically and socially valuable expression, commercial speech, obscenity, false advertising, true threats and fighting words.

1. Political speech has the most protection 2. Commercial speech has less protection: Sturdy: tendency to survive despite restrictions Speaker has vested interest in seeing it survive 3. Obscene material, false advertising and fighting words receive NO protection

Understand the elements of the Brandenburg Test and how to apply it in hypothetical situations to determine which speech is protected and which is not.

1. speech can be prohibited if its purpose is to incite or produce imminent lawless action; and 2. doing so is likely to incite or produce such an action.

Why would that ruling have a chilling effect?

A hostile jury verdict might bankrupt a defendant; anyone might hesitate to lead or take part in a protest if a plaintiff could take away his or her house/retirement fund because of something someone else does at the event.

What were the facts in the case? (U.S. v Heineman)

A white supremacist emailed a threatening poem to a professor saying "Come the time of the revolution[,] we will convene to detain you [a]nd slay you . . . ."

Without the requirements of intent, imminence and likelihood, American law allowed government to criminalize what?

All speech urging people to break laws or even think about breaking them

The Tenth Circuit relied upon which SCOTUS case?

Black v Virginia

Which statement about First Amendment protection for speech is LEAST accurate?

Blatantly offensive speech intended to provoke an audience into hostility against the speaker is not protected.

What test was produced in this case (Brandenburg v Ohio)?

Brandenburg test

What test was created in these cases? (Schenk and Abrams)

Clear and present danger test

Instead of government-imposed silence within the marketplace of ideas, the best remedy for unwanted speech is what?

Countering speech that can qualify or refute harmful rhetoric

Understand the doctrine of counterspeech, including its strengths and weaknesses.

Counterspeech doctrine envisions additional, opposing speech as the appropriate remedy for problematic expression. Embracing that concept, this Note advocates a bright-line regulation providing for immediate candidate response to preelection ads referencing those candidates. This method can enhance debate and campaign accountability in a manner consistent with the first amendment. When forms of expression carry detrimental effects for democracy, counterspeech doctrine envisions additional speech as the prescribed solution, not imposed silence

What are the drawbacks or failings of the counterspeech doctrine?

Counterspeech falters when it cannot address the same audience as the original "harmful" speech. Victims of attack speech may also suffer from discredit before they can respond.

What examples were given?

Criticizing the war effort in WWI might make people want to refuse the draft so the Supreme Court allowed the government to imprison socialist leaders for "Sedition".

The U.S. Constitution protects what kind of methods of stating political opposition? WHY?

Crude; it is part of the friction and grist intended by our Founders in forming this nation

To preserve the Republic, we must continually preserve the right of the citizen to do what?

Dissent and express their desires

Describe Justice Holmes reasons for supporting and then opposing that test?

He supported it because he thought it was progressive because it was moving away from the bad-tendency test, but he began to see that freedom of speech enjoys little protection if speakers can be jailed because their speech could cause some undefined harm at some undefined time

Which statement about application of the counterspeech doctrine is LEAST accurate?

In Linmark Associates Inc. v. Township of Willingboro, Justice Thurgood Marshall agreed with banning "for sale" signs in the midst of white flight because the township could not sufficiently educate the public to promote integrated housing.

In United States v. Alvarez, Justice Kennedy said that instead of making it a crime to lie about having earned military honors and medal, the government could do what?

Inform the public who actually received those honors

How is the government's antismoking campaign an example of counterspeech?

Instead of banning cigarette ads, this state solution countered those messages with education.

In the wake of Virginia v. Black, it seems clear the speaker must actually intend, through a statement, to do what? Is this a subjective or objective standard?

Instill fear in the recipient; subjective

What comparison did the court draw between this case and its decision in Bible Believers (the Dearborn case)?

It follows that if Trump's speech is protected—because it, like that of the Bible Believers, did not include a single word encouraging violence—then the fact that audience members reacted by using force does not transform Trump's protected speech into unprotected speech.

What were the facts in the case decided by federal Judge Cormac J. Carney in California and the one decided by the Fifth Circuit involving the organizer of a Black Lives Matter protest in Baton Rouge?

Mckesson is an African American civil-rights leader who has been prominently involved in the Black Lives Matter movement. As readers of this page know, Mckesson was at a protest in Baton Rouge where someone threw an object that injured a police officer; now the officer, proceeding under a pseudonym, wants Mckesson to pay him for his injuries, claiming that Mckesson "did nothing to calm the crowd" and "incited the violence."

What were the elements of the bad tendency test?

NOT USED ANYMORE Accepted by a majority of the Supreme Court in the early 1900s Provided virtually no first amendment protection for speech Expression could be halted or punished if it presented the slightest "tendency to create a substantial evil" Unconstitutionally vague because it fails to warn a speaker when speech may be punished Virtually any social or public interest justified suppressing speech Would cut off speech long before it posed a danger to society

Is the First Amendment absolute?

No, only absolute protection for: Political speech, Broadcasters fulfilling equal time requirements mandated by federal law

Holmes said we must tolerate even which opinions unless they do what?

Opinions we "loathe and believe to be fraught with death" "unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."

Brandenburg

Protects advocating an abstract idea, even use of force or illegal conduct in the abstract. Does NOT protect speech directed to inciting imminent, illegal action and that is likely to incite such action. Does NOT have to actually incite imminent, illegal action. Just be directed to doing so and likely to do so.

Based on Virginia v. Black (2003) and United States v. Heineman (10th Cir. 2014), which statement about true threats in Oklahoma is LEAST accurate?

Speech may be deemed unprotected as a true threat if a reasonable person would objectively regard the statement as a threat.

Which statement about the counterspeech doctrine is LEAST accurate?

Rigorous debate and counterproposals are unlikely to subject malicious speakers to scrutiny or flesh out policies most attractive to the populace.

How is imminence missing from The Anti-Riot Act's application in the case heard by Carney?

Some of the acts alleged in the indictment took place hours or days before any violence. Punishing speech because of later acts, Carney noted, also runs up against a venerable civil-rights era precedent called NAACP v. Claiborne Hardware, in which Mississippi sought to punish a civil-rights group because one of its leaders made "an impassioned speech, which was later followed by acts of violence."

Be familiar with examples of courts applying the test such as in NAACP v. Claiborne Hardware Co. (1982) and Rice v. Paladin Press (the Hit Man case).

Statutes affecting the right of assembly, like those touching on freedom of speech, must observe the established distinctions between mere advocacy and incitement to imminent lawless action

Rigorous debate and counterproposals can do what?

Subject malicious speakers to scrutiny and flesh out policies most attractive to the populace

Why does the First Amendment protect hate speech?

The First Amendment protects such hateful speech, not because it is harmless—it is not—but because a government that can outlaw such speech can outlaw criticism of itself.

The Tenth Circuit said Heineman could be convicted of making a true threat only if he intended what?

The professor to feel threatened

But how is the relationship between the speaker, the speaker's words and the crowd reaction in Bible Believers different from those elements in the Trump case?

The reaction of listeners does not alter the otherwise protected nature of speech.

Know what got whom into trouble and the outcome of the case. (Brandenburg v. Ohio)

The record shows that a man, identified at trial as the appellant, telephoned an announcer-reporter on the staff of a Cincinnati television station and invited him to come to a Ku Klux Klan 'rally' to be held at a farm in Hamilton County. With the cooperation of the organizers, the reporter and a cameraman attended the meeting and filmed the events. Portions of the films were later broadcast on the local station and on a national network. The Supreem Court found that the Ohio law violated Brandenburg's right to freedom of speech.

Brandenburg Test Applied

Was the speech directed to inciting Imminent Illegal action And was likely to do so. Must meet all four parts

The counterspeech doctrine derives from the theory that audiences, or recipients of the expression, can do what?

Weigh for themselves the values of competing ideas and hopefully follow the better approach

What were the facts of that previous case? (Bible Believers)

a group of evangelical Christians who marched around Dearborn with a pig's head on a pole while telling Muslims they would "burn in hell" at a festival. The Supreme Court denied hearing it and the appeals court had previously ruled in favor of the demonstrators.

In Hess v. Indiana (1973), the SCOTUS clarified that for the speech to constitute unprotected incitement, it must advocate for illegal action to take place when?

at a definite time

The intent must be to place the victim in fear of what?

bodily harm or death

The Fifth Circuit said Mckesson could be sued not because of his intent but because he was what?

careless

The new test was a departure from which previous test?

clear and present danger test

In Linmark Associates Inc. v. Township of Willingboro, Justice Thurgood Marshall said that instead of banning "for sale" signs in the midst of white flight, the township could do what?

engage in the "processes of education" to promote integrated housing/give widespread publicity to "not for sale" signs

Why do speakers often prevail under the test?

inability to prove that the language used was a call to violence or that the illegal action would take place immediately.

Do true threats include political hyperbole and joking statements, i.e., statements uttered in jest?

no

Does hostile reaction of a crowd transform protected speech into incitement?

no

Are true threats protected by the First Amendment?

no

He also said "the response to the unreasoned is the ______ ; to the uninformed, the _____; to the straight-out lie, the ______

rational; enlightened; simple truth

Carney said imminent under Brandenburg means what?

only speech that is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

The three factors in Watts v. United States (1969) were (1) that the comments were made during a ______ ; (2) the _____ nature of the threat; and (3) the ______ of the _______.

political debate; conditional; reaction; listeners

Understand what the Tenth Circuit in United States v. Heineman said the government must prove to obtain a conviction in a true-threat case

specific intent

In Virginia v. Black, the SCOTUS said prosecutors must prove what in a true-threat case?

that the act was intended as a threat and not as a form of symbolic expression

What are the three Watts factors?

the fact that the comments were made during a political debate, the conditional nature of the threat and the reaction of the listeners

Whom did the bad tendency test heavily favor: the speaker or the government?

the government

What is the counterspeech doctrine?

the proper response to negative speech is to counter it with positive expression

What was the court's reasoning in that case? (Bible Believers)

the speech was protected

The political process places those who seek to serve as legislators in the crosshairs of what?

the views of the public