Constitutional Law II
Unprotected Speech
April 12, 2005
Spring 2005
Con Law II
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How can speech be unprotected?
Interpretive theory



Strict textualism: no distinction among subjects
of speech, even if some modes not protected
Original intent: framers probably did not intend
speech that doesn’t
to protect libel, indecency,serve
threats,
etc.
any underlying
(perhaps only “prior restraints”)
purpose of the 1st Am.
be unprotected
Broad textualism/dynamic,may
evolving
const: core
values underlying the 1st Amendment:
 Self-fullfilment / personhood
 Search for truth / marketplace of ideas
 Self-governance / political marketplace
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How can speech be unprotected?
Functions of speech (speech act theory)


Expressive (illocutionary, informational)
Instrumental (perlocutionary)
 Speech is the “trigger of action” (so closely
associated with action)


as to disallow any intermediation (free will)
 shouting “fire” in a crowded theater
treated functionally as part of the action
 Instrumental speech is not speech; it is conduct

Performative speech
 Saying “this is a holdup” means (literally) this is a
holdup

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The words and the act are unitary
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How can speech be unprotected?
Interpellative effect of speech on listener

Speech Impact (emotional effect)
 “I am going to kill you” is not merely expressive;
 it creates an emotional response
if one
or more of these
 “Sticks and stones” theory
notwithstanding

apply,
you may have
dary
Not to be confused withunprotected
“2
effectsspeech
doctrine”
Summary:



Speech that doesn’t serve 1st am purposes
Instrumental speech
Injurious speech
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Categories of unprotected speech
Subversion
Incitement of imminent lawlessness
Threat/Solicitation of crime
Fighting Words
Defamation
Hate Speech (“group libel”)
Obscenity
Functional (Performative) Speech
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Chaplinsky v. NH
(1942)
“You are a God damned racketeer and a
damned Fascist”
“No person shall address any offensive, derisive or annoying word to any other person …”
Are “fighting words” speech?

Injurious utterance
 True of any epithet?

Instrumental (trigger of action)
 Likely to provoke the average person to retaliation
 The words are integrated with the violent response
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Fighting Words Doctrine
Limited by Chaplinsky test

objectively likely to incite a breach of the peace
 reasonable listener standard

Injurious utterance theory narrowed
 There may be expressive value to epithets
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R.A.V. v. St. Paul
(1992)
Is cross-burning speech?


Symbolic speech
What message is being communicated?
ideological (protected
political speech)
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R.A.V. v. St. Paul
(1992)
Is cross-burning speech?


Symbolic speech
What message is being communicated?
threats of violence
(not protected)
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R.A.V. v. St. Paul
(1992)
Is cross-burning speech?


Symbolic speech
What message is being communicated?
ideological (protected
political speech)
AND
“True Threats”
(unprotected)
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R.A.V. v. St. Paul
(1992)
As speech, cross-burning can be both
protected and unprotected
St. Paul prohibits cross-burning that

“arouses anger, alarm or resentment in others
on the basis of race, color, creed, religion, sex”
 As construed by state supreme court, this term is
equivalent to “fighting words” [intimation similar]

But: not all fighting words prohibited; only
those based on race, etc.
 Viewpoint-based distinction within a category of
unprotected speech
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R.A.V. v. St. Paul
(1992)
Discrimination within unprotected speech



E.g., some obscenity, libel, fighting words, etc.
permitted depending upon viewpoint expressed
Government-imposed orthodoxy violates 1st,
whether speech allowed is protected or not.
This doesn’t mean gov’t must proscribe all of a
category of unprotected speech; it may select
 So long as the basis for distinguishing tracks the
reason that category is unprotected in the first place
 E.g., especially provocative “fighting words”
doesn’t
this
describe  Or
the St.
 Or
Paul
law?
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because of “2dary effects” (adult speech only)
reasons unrelated to gov’t approval of views
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Virginia v. Black
(2003)
VA Statute:

“unlawful for any person … with the intent of
intimidating any person … to burn … a cross on
the property of another [or a] public place”
Conduct or Speech?

Which is the VA law prohibiting?
 I.e., is this an anti-speech or non-speech regulation?
 proscribes only intimidation (“true threats”)

Does it survive R.A.V.?
 Yes, to extent it prohibits all intimidation
(unprotected speech)
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Virginia v. Black
(2003)
Wisconsin v. Mitchell (1993)

Enhanced punishment for hate motivated crimes
 Punishment for conduct, not speech

hate crimes inflict greater individual & societal
harms
 emotional harm
beyond basic
injury
 more likely to
incite retaliatory
crimes
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Virginia v. Black
(2003)
VA Statute:

“any such burning of a cross shall be prima
facie evidence of an intent to intimidate a
person or group of persons”
 ignores all of the contextual factors necessary to
decide whether a particular X-burning intimidates
 because it captures both protected symbolic speech
and unprotected intimidating speech, it is

Overbroad (standing) [perhaps means too]
 Black (protected speech)
 Elliot/O’Mara (unprotected) (jus tertii standing)

the provision is facially unconstitutional
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Defamation
Libel & Slander





publication of a
false & injurious
statement of fact
“of and concerning”
plaintiff
Damages



Special
General
Punitive
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NY Times v. Sullivan
(1964)
Where’s the state action?


State libel law (positive or common law)
1st amd used as defense to the cause of actioin
Principles

Robust debate on issues of public concern
 Any liability tends to chill speech
 strategic protection for speech means even some
falsity must be tolerated



Public officials
Public figures
Private persons
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NY Times v. Sullivan
(1964)
Truth & Falsity
Truth must be a defense
 Only provably false statements are actionable

 Only statements of fact fit this requirement
 Not opinions, parodies (not reasonably taken as fact)

Falsifiable statements actionable only if
 Private figure
 Public official/figure – actual malice standard


knowledge that the statement is false
reckless disregard for whether it is false or not
 negligence (e.g., failure to check facts) not sufficient
 Is there any value in false speech?
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NY Times v. Sullivan
(1964)
Burden of proof
On plaintiff at all times
 By clear and convincing standard

Damages
Actual malice – full range
 Private figure(no malice) – actual damages only

Public Persons
Public officials
 Public figures

 “those by reason of the notoriety of their achieveSpring 2005
ments, or by the holding of the public’s attention”
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Gertz v. Welch
(1974)
Provable case of libel (per se)

Unless “actual malice” required
Public figures


access to self-help (channels of communicat’n)
voluntary assumption of close public scrutiny
 Involuntary public figure? No, see Time v. Firestone

General purpose public figure
 general fame or notoriety; like high public official

Limited purpose public figure
 if thrust into limelight re subject matter of libel
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Dun & Bradstreet v Greenmoss (1985)
Matters of public vs private concern


Greater 1st amd interest in promoting robust
debate on public issues
Greater private interests otherwise
Negligent defamation on private matter



Actual (compensatory) damages
Presumed (general) damages
Punitive damages
Is the credit report a public or private
matter?
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Cohen v. California
(1971)
What theory to claim profanity (“Fuck the
Draft”) is unprotected


Obscenity
Fighting words (gross insults, epithets)
 not used (or claimed) in this way here



Incitement to violence (imminent lawlessness)
Injurious utterance
Non-expressive component of speech
 Is profanity an expression of ideas or an instrument
of assault?

Secondary effects?
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Cohen v. California
(1971)
What theory to claim profanity (“Fuck the
Draft”) is unprotected





Obscenity No appeal to prurient interest
Fighting words
(gross
epithets)
 Not
likelyinsults,
to provoke
violent
 not used (orreaction
claimed) in this way here
 to
Doesn’t
Incitement
violenceadvocate
(imminentlawlessness
lawlessness)
 Shocking but not harmful
Injurious utterance
 Highly
expressive
(& political)
Non-expressive
component
of speech
 Is profanity an expression of ideas or an instrument
of assault?

Only impact is on viewer
Secondary effects?
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Cohen v. California
(1971)
Could state have regulated Cohen’s speech
even though it was protected?


via Subject-Matter restrictions in a non-public
forum
courthouses are not a traditional venue for free
speech
Why didn’t it?
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FCC v. Pacifica (1978)
18 USC § 1464

“Whoever utters any obscene,
indecent, or profane language by
means of radio communication shall
be fined under this title or imprisoned
not more than two years, or both.”
Claims

Wikipedia
Overbreadth
H. R. 3687
 Doesn’t apply


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Carlin not prosecuted under criminal statute
FCC order based on gen’l regulatory power
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FCC v. Pacifica (1978)
Claims

Protected non-obscene speech (indecent/profane)
Protection for profane speech


“slight social value”
Value varies with context
Special rules for broadcast



Uniquely pervasive presence (uninvited guest)
Uniquely accessible to children (daytime hours)
Licensing to promote public interest
Doesn’t apply to other telecom (Sable v. FCC)
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Obscenity
Categorical Balancing for Obscene Speech




Textualism – protected
Originalism – not protected by states in 1792
Dynamic – lacks any social value
Non-interpretivism – universal judgment
 federal legislation
 state
 international
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Roth v. US (1957)
Roth standard:

material that deals with sex in a manner
appealing to prurient interest
 material tending to excite lustful thoughts
 lascivious desire or thought

utterly without redeeming social importance
The intractable obscenity problem


Objective vs. subjective standards
Stewart in Jacobellis v. Ohio (1964): “I know it
when I see it”
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Paris Adult Theatre v. Slaton (1973)
Beyond unprotected speech

Obscenity is action not speech
 arouses physical emotion
 cognitive, emotional, reflexive?

Correlation betw. obscenity & crime
 secondary effects - violence ag. women

Leads to antisocial behavior
ok for
state to
act on
unproven
assumptions
 corrupts morals
 offends sensibilities of unwilling viewers/listeners
 desensitizes people to rational thought

Fails to serve any underlying 1st am purpose
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Miller v. California
(1973)
Standards for unprotected obscenity


Works that depict or describe sexual conduct
Taken as a whole, appeals to the prurient
interest in sex
 using contemporary community standards

Portray sex in patently offensive way (hard core)
 intercourse (normal or perverted)
 masturbation, excretion, lewd exhibition of genitals

Taken as a whole, do not have serious literary,
political, or scientific value
 objective national standards
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Miller v. California
(1973)
Standards for unprotected obscenity


Works that depict or describe sexual conduct
Taken as a whole, appeals to the prurient
interest in sex
 speech as conduct

Portray sex in patently offensive way (hard core)
 injurious speech

Taken as a whole, do not have serious literary,
political, or scientific value
 no first amendment values
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Am. Book v. Hudnut
(7th Cir. 1985)
Indianopolis law barring non-obscene porn


Pornography depicting women in demeaning
way, as sexual objects, or pleasure in pain
Theories for expanding category of
unprotected speech
 Promotes violence against women
 Promotes social bias against women
 Making of porn exploits women
Holding: Viewpoint-based discrimination

Whether material is banned depends upon the
message, not the pornographic content
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Ashcroft v. Free Speech
(2002)
New York v. Ferber (1982)

Non-obscene child pornography can be banned
because of the state’s important interest in
protecting children from sexual abuse
 children involved in film production
Child Pornography Prevention Act (CPPA)

Includes images (real or virtual) that appear
to, but don’t actually, include children
 can’t be justified on basis of protecting child actors
 encourages pedophilia?
 assists in prosecution of real child pornography
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