Table of contents:
1. Speech that incites unlawful conduct:......................................................................... 5
a. Basic test: ................................................................................................................ 5
ii. policy arguments: ................................................................................................ 6
b. general test: ............................................................................................................. 6
i. Brandenburg v. Ohio: Brandenburg test ............................................................ 6
5. problem b “abortionists are murders”: .......................................................... 6
6. problem c, “Cop Killer”:................................................................................ 7
c. Speech that interferes with the war effort: intent and likelihood in a war time
setting: ............................................................................................................................. 7
i. As a general rule the emergency powers and the like can restrict freedom of
speech during war time because of the harm it might cause to the nation. This led to
several cases there the imminence was not met but the speech was still restricted
because of the likelihood of causing a crime: ............................................................. 7
1. Schenck v. United States: SThe circumstances of the war made this a
permissible restriction of speech. ............................................................................ 7
a. Test: there must be intent and likelihood but not imminence ..................... 7
2. Debs v. United States: ..................................................................................... 8
a. Test: Intent and likelihood of harm to the draft ......................................... 8
3. Abrams v. United States: When there can be no other intent, the intent
inferred is the correct one. ...................................................................................... 8
a. Test: was there intent to obstruct the draft and the materials could do so? 8
4. Gilbert v. Minnesota: . ................................................................................... 8
a. Test: there must be a prohibited purpose to the speech and an intent to
reach that purpose ............................................................................................... 9
ii. Problem a: Advocacy in wartime:....................................................................... 9
d. Speech advocating crime: ....................................................................................... 9
i. Problem a, the murder advocacy exception: ...................................................... 9
1. Gitlow v. New York: Is it reasonably implied? .............................................. 9
a. Test: Is there speech that can be reasonably implied that it will lead to
violence and overthrow of the government? ....................................................... 9
2. Whitney v. California: ................................................................................... 10
a. Test: is there a presumption that this speech will intentionally lead to
violent actions? Is the defendant a communist? .............................................. 10
e. Communist Conspiracies: ..................................................................................... 12
1. Dennis v. United States: ................................................................................ 12
a. Test: Is the defendant a communist? Is the speech directed to advocacy
and has a potential of causing violence or harm? ............................................. 12
2. Yates v. US: . ................................................................................................ 13
a. Test: is there clear and present danger or is the teaching so divorced from
the action that there is no danger?..................................................................... 13
3. Barenblatt v. US (Black, dissenting): ......................................................... 13
ii. Problem, the Westwood Militia: ....................................................................... 13
2. False Statements of Facts: ......................................................................................... 14
a. Basic principles: .................................................................................................... 14
1
b. Doctrinal framework: Is the statement about a public person and a matter of
public concern? Is it a private speaker and a public concern? Or is it only a matter of
private concern? ............................................................................................................ 14
i. Public public: .................................................................................................... 14
ii. public, private: these are unprotected if made negligently .............................. 14
iii.
Private, private: unprotected even if not negligent ....................................... 14
vi.
Subsidiary rules:............................................................................................ 14
1. Who is a public figure? ................................................................................. 14
2. What is public concern? ................................................................................ 14
3. what is reckless disregard of the facts: ......................................................... 14
4. remedies and procedures: .............................................................................. 15
5. burden of proof…See page 73 ...................................................................... 15
6. policies: ......................................................................................................... 15
1. NYT v. Sullivan: .......................................................................................... 15
a. Test: is the Sheriff, as the head of the police, protected from criticism? .. 15
e. Black Letter: A public official may not recover unless there is actual
malice ................................................................................................................ 16
2. Gertz v. Robert Welch, Inc: ......................................................................... 16
a. Test: is an attorney who works on a public case a public figure? ............ 16
3. Dunn & Bradstreet v. Greenmoss: .............................................................. 17
a. Test: is this a matter of public concern? .................................................. 17
d. Black letter: the rule of private-private concern us that there may be
recovery even in the absence of malice ............................................................ 17
1. A, Governor v. Professor, page 76:............................................................... 17
2. Professor v. governor, page 107: .................................................................. 17
3. Electronic Employment: ............................................................................... 17
4. Private figure Libel Amendment: ................................................................. 18
c. Facts v. Opinions: ................................................................................................. 18
i. Milkovich v. Lorain Journal:. ........................................................................... 18
1. Test: were the statements facts? ................................................................... 18
ii. Beauharnias v. Illinois:. .................................................................................... 18
1. Test: are these defamatory statements opinion? .......................................... 18
i. Beauharnias Jr page 134: is this a public official? A matter of public concern?
19
e. False Light invasion of Privacy: ........................................................................... 19
i. Time, Inc. v. Hill: ............................................................................................ 19
1. Test: Did time have the requite mens rea? ................................................... 19
f. Obscenity: the government is concerned about the persuasive powers of words,
but the difference is the immediate response and the longer response to the effects of
obscenity. ...................................................................................................................... 19
i. Basic rules: ........................................................................................................ 19
ii. subsidiary rules: ................................................................................................ 20
iii.
See Policies on 149-50 .................................................................................. 20
1. Miller v. California: ...................................................................................... 20
2
a. Test: would the average person applying community standards finds that
this appeals to the prurient interest in a patently offensive way and without nay
redeeming qualities? ......................................................................................... 20
2. Paris Adult Theater v. Slaton I: .................................................................. 20
a. Test: Can the state prevent the showing of something that totally lacks in
artistic value? .................................................................................................... 21
1. Mafiosi in Love, page 150: ........................................................................... 21
2. The Montana Constitution, page 155: .......................................................... 21
g. Child Pornography: ............................................................................................... 21
i. Basic rule: Speech is unprotected if it.............................................................. 22
ii. subsidiary rules: ................................................................................................ 22
1. New York v. Farber: ................................................................................... 22
a. Test: May the state outright prohibit the making and sale of child
pornography? .................................................................................................... 22
2. Osborne v. Ohio: Osborne was convicted of possessing child pornography
which was against the law in the state. ................................................................. 22
1. Computer graphics, page 169: ...................................................................... 22
2. Crush Video: Seen notes 2/13/02................................................................. 23
h. Offensive Speech/risk of violent reaction: ............................................................ 23
i. Basic rule 1: it is still unprotected if it is fighting words ................................. 23
ii. policy: ............................................................................................................... 23
iii.
basic rule 2: ................................................................................................... 23
iv.
basic rule 3: ................................................................................................... 23
v. see 179-80 for more policy ............................................................................... 23
1. Chaplinsky v. New Hampshire:..................................................................... 23
a. Test: does the law prevent acts of violence? ............................................. 23
2. Cohen v. California: ................................................................................... 24
a. Test: will this provoke violence? Is this clearly directed to someone?... 24
3. Texas v. Johnson: .......................................................................................... 24
a. Test: is there a threat of violence as an immediate reaction? Is this
directed toward someone?................................................................................. 24
4. Hustler v. Farwell: ........................................................................................ 24
a. Test: Can a public official sue for emotional harm inflicted in a public
manner............................................................................................................... 24
1. insulting a widow, page 180: ........................................................................ 25
2. Captive audiences, page 180-1: .................................................................... 25
i. Exceptions from Protection—Treats: ................................................................... 25
i. Basic principle: threats of violence/illegal conduct are prohibited .................. 25
ii. Caveats: ............................................................................................................. 25
iii.
WATCH OUT FOR mixture of threat and politics—look at the context of the
speech. Look to see if it is an actual threat or hyperbole ......................................... 26
iv.
Policy, see 205 .............................................................................................. 26
1. Watts v. US: Watts was convicted of making a threat on the president....... 26
a. Test: is this hyperbole? ............................................................................ 26
2. NAACP v. Claiborne Hardware: .................................................................. 26
a. Test: is a threat made as part of a boycott protectable? ........................... 26
3
3.
NLRB v. Gissel Packing Co: t ..................................................................... 26
a. Test: were the words calculated to shape the election and labor context?26
1. The anti-abortion campaign, page 205-6. see notes 2/27/02 ....................... 26
j. Exemptions from Protection—Speech owned by others: ..................................... 26
i. Basic problem: Various IP rights, are speech restrictions ............................... 26
ii. policy: ............................................................................................................... 27
1. Harper & Row v. nation Enterprises: ......................................................... 27
a. Test: does the copyright law lawfully prohibit this? ................................ 27
2. Zacchini v. Scripps-Howard Board. Co.: . .................................................. 27
a. Test: Was this expression an unfair commercialization of the plaintiffs
copyright? ......................................................................................................... 27
a. unauthorized Biography: see discussion on 2/27/02 ................................ 27
b. unauthorized bust: see discussion on 2/27/02 .......................................... 27
c. Copyright remedies: see discussion on 2/27/02. ...................................... 27
3. Strict Scrutiny: .......................................................................................................... 27
i. Basic rule: if the speech does not fall into an exceptions category or into a
diminished protection category, then usually the government cannot suppress it. It
may be suppressed however it can show that it passes strict scrutiny—narrowly
tailored to protect a compelling state interest. Strict scrutiny usually means the
death of the statute. ................................................................................................... 27
ii. Workings of this:............................................................................................... 28
1. the law must serve a compelling state interest: what is the ends ................. 28
2. under inclusive: fails to reach all of the speech shows the interest is not as
compelling as their say it is; if it was there would be a broader restriction .......... 28
3. the speech must be narrowly tailored: do the means satisfy the ends ........... 28
i. Sable Communications v. FCC: ...................................................................... 29
1. Test: Does the statute pass strict scrutiny? .................................................. 29
ii. Carey v. Brown: ................................................................................................ 29
1. test: is there a compelling state interest: ...................................................... 29
iii.
Florida State v. BJF:..................................................................................... 30
1. Test: is the law overbroad? ........................................................................... 30
i. Drive in Nudity: See discussion 3/27/02 ......................................................... 30
ii. Violence on TV ................................................................................................. 30
d. Content Discrimination within the Exceptions to protection:............................... 30
ii. Exceptions ......................................................................................................... 30
1. RAV v. City of St. Paul: ............................................................................... 31
a. Test: is this distinction among fighting words content discriminatory? .. 31
1. Absolute immunity in Libel cases: See discussion on 4/3/02 ...................... 32
vi.
Content Neutral Speech restrictions.............................................................. 32
1. basic rule: The time, place or manner of the speech can be regulated if they
are: 32
2. CAUTION: this does not mean that all speech restrictions on the TPM are
allowable because they do that. ............................................................................ 32
3. policy: ........................................................................................................... 32
a. Schneider v. New Jersey: ........................................................................ 33
i. Test: what is the substantial interest and does it meet the ends? ......... 33
4
iii.
Black letter: so long as the legislation to this end does not abridge
the constitutional liberty of on rightfully upon the street to impart
information through speech or the distribution of literature, it may lawfully
regulate the conduct of those using the street. .............................................. 33
b. Frisby v. Schultz:. ..................................................................................... 33
i. Test: it the ordinance narrowly tailored to serve a significant interest
and are there ample other alternatives for the speech ................................... 33
c. City of Ladue v. Gilleo: Ladue made it illegal to put up yard signs. Gilleo
did just that and was fined. ............................................................................... 34
i. Test: is there a less onerous alternative? .............................................. 34
a. door to door solicitation, page 367 ........................................................... 34
b. publication of intercepted communications, page 367 ............................. 34
e. Restrictions on expressive conduct ....................................................................... 34
i. Basic rule: there are some restrictions that apply whether or not one has an
expression in mind. ................................................................................................... 34
ii. Threshold inquiry: ............................................................................................. 34
iii.
test: if the threshold is satisfies then the law may be applied if it is; ........... 34
1. US v. O’Brien: .............................................................................................. 34
a. Test: is the burning of a draft card symbolic speech? Does the
government have a compelling interest in preventing destruction of draft cards?
35
2. Clark v. CCNV: C ......................................................................................... 35
a. Test: is the limitation as applied a limitation of free expression .............. 35
3. Texas v. Johnson: Johnson was convicted of burning a flag. ....................... 35
a. Test: is burning the flag expressive conduct? Does Texas have a
substantial interest? ........................................................................................... 36
1. the marijuana performance art, page 367 ...................................................... 36
2. wearing a police uniform, 367 ...................................................................... 36
Constitutional Law First Amendment Course Outline:
1. Speech that incites unlawful conduct:
a. Basic test:
i. Advocacy of the use of force or of law violation is unprotected
when it is
1. Directed to inciting or producing
2. Imminent lawless action
3. And is likely to produce such action
4. Exception: the communist advocacy cases—these have
generally been thought to be overruled
5. Policies:
a. perceived harm justifies the suppression of speech
b. and the likely harm is really imminent
c. for the narrowness of the unprotected area:
i. advocacy might convince people that the
law should be changed
5
ii. sometimes the speech will praise or urge
illegal conduct
6. solicitation of a crime is not ever protected because it falls
under criminal solicitation
ii. policy arguments:
1. some evil speech, even when it might incite people to do
bad things is protected
2. the government cannot really restrict speech just because it
has a tendency to change peoples viewpoints
3. when the speech is about the lead to imminent harm then it
can be restricted
b. general test:
i. Brandenburg v. Ohio: A KKK member invited a TV reported to
film a rally. There they spoke about the perceived need to band
together to suppress blacks and Jews. In the clips shown on TV,
revenge was talked about as well as returning blacks to Africa and
Jews to Israel. Brandenburg was subsequently arrested and
convicted. Brandenburg test
1. Test: the constitutional guarantee of free speech and press
does not permit the State to forbid speech that advocates
the use of force or the violation of a law unless the
advocacy is directed to inciting or producing such
imminent lawless action and the advocacy is likely to incite
this. The Ohio law in question does not do this. There is
an intent requirement and a imminence requirement
2. Rationale: there is not a difference in this statute between
likely to incite and likely to commit imminent lawless
action. Since this law purports to punish mere advocacy it
cannot be sustained. There is a distinction between mere
advocacy and imminence.
3. Concurrence: there is no clear and present danger in the
law as written but the test is not clear and relies on a caseby-case analysis.
4. Douglas concurring: Speech unless followed with action is
not proscribable.
5. problem b “abortionists are murders”:
a. Directed to inciting or producing: this is directly
related to inciting or producing because of the ‘any
means necessary’. The speaker intended for the
listeners to go out and try to stop abortions
b. Imminent lawless action: again the any means
necessary has the intent of getting people out there
immediately to try to stop abortion
c. And is likely to produce such action: here this did
produce such an action
6
d. Criticism: the speaker intended for the listeners to
go out and stop abortions in the way the speaker had
set the example—by speaking out about abortion.
This is more susceptible to attach because of the
imminence requirement—it was unlikely that the
listeners would immediately go out and shoot a
doctor. Here the shooter waited a month—who
knows what drove the shooter to commit the act.
This statute is too broad and sweeping and purports
to convict people who had no intent in their speech
and when there is not immediate action.
6. problem c, “Cop Killer”:
a. Directed to inciting or producing: this looks at the
intent of the DJ who played the song and unless it
can be proven that he did so to incite someone there
is a problem with this
b. Imminent lawless action: in the vast audience of
listeners it is likely that one person might act on the
words of the song and take matters into his own
hands
c. And is likely to produce such action: it seems
unlikely that normal rational law abiding people
will act on this even though it is violent; the DJ
does not have to take into account that his listeners
might not abide by the laws and might do
something irrational. He does not have to foresee
the irrationality of people he cannot see.
c. Speech that interferes with the war effort: intent and likelihood in a war
time setting:
i. As a general rule the emergency powers and the like can restrict
freedom of speech during war time because of the harm it might
cause to the nation. This led to several cases there the imminence
was not met but the speech was still restricted because of the
likelihood of causing a crime:
1. Schenck v. United States: Schenck was convicted under the
Espionage act of 1917 for attempting to cause
insubordination among the US troops. Specifically he was
charged with obstructing the draft by mailing a circular
advocating resistance via the communist party. He called
the draft a system of slavery and servitude. The
circumstances of the war made this a permissible restriction
of speech.
a. Test: there must be intent and likelihood but not
imminence
b. Rationale: the document would not have been sent
without a reason and that reason was to influence
7
those eligible for the draft and talk them out of it.
The character of every act depends on the
circumstances in which it was said—this is a
wartime situation and the circumstances and the
works combine to show that there is a clear and
present danger. This is a question of proximity and
degree.
2. Debs v. United States: Debs, a socialist was convicted of
attempting to obstruct the draft. He told his listeners that
he could not say all that was on his mind but that he was
proud of those that had dodged the draft.
a. Test: Intent and likelihood of harm to the draft
b. Rationale: it is natural that his language, as
evidenced by his personal political views, was to
obstruct the draft. His intent was to do so and he
would not have said the words without this intent.
The court did look at the natural conclusion that he
chose words to lead to the actions that he
proscribed.
3. Abrams v. United States: Abrams was charged with
conspiring to print or publish materials that would obstruct
the war. The question was whether the evidence was
substantial enough to uphold the conviction. A along with
others had printed circulars but they were never distributed.
When there can be no other intent, the intent inferred is the
correct one.
a. Test: was there intent to obstruct the draft and the
materials could do so?
b. Rationale: here the defendant is liable for a
judicially constructed meaning of his intent. He
may or may not have intended to obstruct the draft
but it is a reasonable reading of what he was trying
to do so. This is a fair interpretation of his intent.
Although there might not have been an immediate
outbreak of lawlessness this was the intent of the
circular.
c. Dissent: there does not have to be intent because it
is so vague and tends to be judicially constructed.
The statute (espionage act) should be read within its
context; otherwise people cannot speak an opinion.
The only time speech can be restricted is when it
does bring about imminent lawless behavior, not
when it is about an opinion. There must be a clear
and specific intent to bring about lawlessness.
4. Gilbert v. Minnesota: Gilbert was charged under a
Minnesota law that prevented obstruction of the war effort.
8
a. Test: there must be a prohibited purpose to the
speech and an intent to reach that purpose
b. Rationale: free speech is not absolute; it can be
restricted in a time of war. Additionally, Gilbert
was learned and he knew his words were false
ii. Problem a: Advocacy in wartime:
1. what is wrong with the tests as described above. Why not
punish speech that has knowledge plus likelihood?
2. The policy behind not punishing this is because this can be
so construed to reach knowledge plus intent. This would
have an effect of chilling speech. There must be an
imminence requirement as so to not overly burden speech
d. Speech advocating crime:
i. Problem a, the murder advocacy exception:
1. Speech that advocates or defends unlawful killing should
be unprotected. Identify the speech this will cover and
what it might cover depending on how it is interpreted:
2. It will cover discussions of Nazi-revisionist history and
many other debates about history.
3. It might also cover discussions about the death penalty and
war time deaths if one is opposed to those
ii. Cases:
1. Gitlow v. New York: Gitlow was convicted of criminal
anarchy because he was a radical socialist and advocated
strikes and the overthrow of the government in a
newsletter. Is it reasonably implied?
a. Test: Is there speech that can be reasonably implied
that it will lead to violence and overthrow of the
government?
b. Rationale: the statute is designed to prohibit
language that is advocating the overthrow of the
government; these words impel a call to action. A
manifesto is not an innocent profession of one’s
viewpoint—it is intended to lead to lawless action.
These words necessarily imply violence and the
overthrow of government. This is a valid exercise
of the police power of the state as it is protecting the
state from imminent lawless action; this is so
inimical to the welfare of the government that there
is a danger just in the works. The actions cannot be
reasonably foreseen but this does not matter—this
seeks to extinguish the sparks before they reach a
blaze.
c. Dissent: this is overbroad because this is
purportedly a theory. T he only difference in the
expression of a theory and of incitement is the
9
speaker’s enthusiasm for the result. This is too
futile and remote to punish.
2. Whitney v. California: Whitney was convicted of the
criminal syndicalism act of California that basically
outlawed the communist party because it might get some
people to support it and the overthrow of the government.
The conviction was based on the theory that it might aid or
abet criminalize. The court held that this is not an invalid
restraint of speech
a. Test: is there a presumption that this speech will
intentionally lead to violent actions? Is the
defendant a communist?
b. Rationale: the presumptions of the states reason
must be drawn in favor of the state for it is their
well-being that they are trying to protect. Never
mind that there was not violence, the speech takes
the nature of a criminal conspiracy because
communism lives in the dark.
c. Brandeis concurring: when there is a criminal
syndicate there is a substantial threat of harm to the
government; these may be punished when there is a
threat to the government. The states are allowed
board powers to fight violence, although fear of
violence alone is not enough to suppress speech.
Rather, there must be a reasonable ground for the
suppression. There must be clear and present
danger shown by good evidence. The evil must also
be serious before it may be punished. Just because
speech might have bad consequences is not enough.
iii. Policy—for restricting some speech and for the cases listed above:
1. Basic argument of the Search for truth/Marketplace of
ideas: (as an argument for protection): this speech
restriction will make it harder for people to discover the
truth about ______ because ____
a. Supporting argument: even though the government
might think it knows the truth and that the restricted
speech will not lead to the truth, this is not so
because_______
b. The best reason to allow speech in the marketplace
of ideas is to allow people to discover it is false
c. Attack: the marketplace for ideas might not be able
to discredit the idea because of innate prejudices
d. Allowing the law to say what is protected runs the
risk of error but people accept the error because the
courts will either correct it or society will
10
2. Basic argument for restriction: the speech restriction will
not interfere with the search for truth because or it will
advance the search for truth because:
a. Only speech that actually contributes to the wealth
of ideas should have protection; other speech
distracts from the search for truth
b. Attack: all speech should be allowed for the
reasons listed above at one
c. Rebuttal: people are not able to determine which
speech is the truth so we should keep out speech
that confuses people; the courts are the best way to
filter this out
d. Attack to C: this shows the marketplace is working
and may make valuable contributions to the
marketplace which may be dismissed if they are
false.
e. Attack to D: keeping out some speech is the natural
function of the marketplace of ideas
3. Policy: Self-Government as an argument for speech
protection
a. Speech may help the majority decide on what is the
right course for the government and all ideas will
help better shape this mold
i. Ideas will lead to good government and help
the government function
b. Attack: Some speech may advocate a policy that the
government will not accept so it is not a burden to
restrict this because it will be ignored anyway; these
may be taken off of the table because they will
never be adopted
c. Rebuttal to b: even though they will not be adopted
by the majority is no reason to dismiss them
outright—we should not protect what the majority
wants to hear at the minority’s expense. People
value speech differently.
4. Policy: Self-government as an argument for speech
restriction:
a. Basic argument: Some speech does not contribute
to democracy because it might actually attach
democracy and advocate a new way and there is no
problem in restricting this/it interferes with
democracy because of its attacks on such
i. Presenting false information to the people
will not enhance democracy in any way and
attempts to destroy the government will
distract it from its other tasks. This speech
11
is also about a minority who wants to
overthrow the majority
b. Attack: Speech is not always protected because it
fosters democracy; there are other reasons to protect
speech such as expression. The only good reason to
restrict speech is because of emergency
c. Rebuttal: counter-speech cannot undo the harms;
the alternative does not look as good as the reasons
for restricting speech.
e. Communist Conspiracies:
i. Cases:
1. Dennis v. United States: Dennis was convicted under the
Smith act which basically made being a communist illegal.
He was specifically convicted of wishing to overthrow the
government through violent means. The court held that the
purpose of the statute was to protect the government from
change through violent means
a. Test: Is the defendant a communist? Is the speech
directed to advocacy and has a potential of causing
violence or harm?
b. Rationale: the court is confronted with the clear
and present danger test and feels that the teaching of
communist ideas is enough to satisfy clear and
present danger. The revolutionists claim they will
strike when the time is ripe; we will not know when
that time is so the danger could be imminent. There
is a balance between the likelihood and the
improbability of action for the clear and present
danger and since these are communists, restricting
the speech is enough to find it is necessary to avoid
the danger. Their formation into organized and
secret cells is enough to show they are dangerous
and they teach about the violent overthrow of the
government. What more could you want? There is
an interpretation of the intent.
c. Frankfurter concurring: government has the right to
protect its own self existence at the expense of free
speech. Although this should not be an absolute
rule of prohibition of speech allowing an exception
here because no violence has occurred will erode
the rule. The court should consider the proximity
and degree of the speech and find that the speech is
protected when it purports to further other essential
freedoms. Speech of the sort above ranks low
because it does not promote democracy. The
government has a compelling interest in self-
12
protection and although they may not silence every
critic they may silence those that advocate violence.
d. Jackson concurring: the communists are
unscrupulous and they will resort to violence. The
clear and present danger test is outmoded in light of
the threat of the communists. These freedoms are
applied too generously and will end up hurting out
society. Although we are called on to see when the
revolution might come, we should stop it now.
e. Black, dissenting: here they agreed to do something
at a later date. This is simply too speculative and
there is no clear and present danger. The only
reason for the conviction is fear; this waters down
the possibility of free speech
f. Douglas dissenting: free speech is the rule, not the
exception. This has destroyed a political party and
they will never be able to do as they wish. They are
politically impotent and so there is no clear and
present danger. This is an attempt at political
censure and a sacrifice of free speech.
2. Yates v. US: Yates was convicted of being a communist
and advocating the overthrow of the government. The
question is whether the smith act should punish the
advocacy of the overthrow of the government when there is
no intent to spring into action.
a. Test: is there clear and present danger or is the
teaching so divorced from the action that there is no
danger?
b. Rationale: congress was aware of the difference in
teaching about overthrow and advocating it. If the
defendant was engaged in an attempt to overthrow
the government then this would be punishable, but
this is too far divorced from action. Although the
doctrine is vague at times, there is nothing more
than teaching about a position.
3. Barenblatt v. US (Black, dissenting: we cannot outlaw the
communist party as such because this would open a
slippery slope. Although their political aims might be
abhorrent, we cannot simply strike them down. We have to
allow ideas we do not like because there is not a danger in
them in and of themselves.
ii. Problem, the Westwood Militia:
1. Considering the intent, the government will have to show
that he intends to overthrow the government or otherwise
incite violence. If he does not then this is a discussion of a
political alternative and we should allow it because it will
13
promote democracy. Simply striking down language and
theory is not enough even when it is abhorrent
2. Did he intend the overthrow the government? The
government under Brandenburg will have to show that he
knew or should have known. Here is seems to be more
advocacy of a political idea
3. If this is looked at under Dennis and Yates, if the cells are
active and a threat then it will be disallowed because there
is a strong governmental interest in protecting itself. If the
theory has been discredited then there is no danger.
2. False Statements of Facts:
a. Basic principles:
i. There is no value in a false statement of facts
ii. Although errors in fact are not protectable they do invite debate.
Punishment runs the risk of chilling speech
iii. There is no such thing as a false idea
b. Doctrinal framework: Is the statement about a public person and a matter
of public concern? Is it a private speaker and a public concern? Or is it
only a matter of private concern?
i. Public public:
1. speaker knows the speech to be false
2. the speaker is reckless about the falsehoods; he knows they
might be false and disregards this
3. this is known as actual malice but should be the reckless or
worse; negligence is not sufficient
ii. public, private: these are unprotected if made negligently
iii. Private, private: unprotected even if not negligent
iv. False statements about the government do not seem to be
punishable at all
v. Statements on public concern but not the people appear
unprotected if there is actual malice
vi. Subsidiary rules:
1. Who is a public figure?
a. government officials but not lower level. If the
public wants to know about the people then they are
public figures; have an influential role in ordering
society, have achieved fame or notoriety or
voluntarily injected themselves into the public
sphere
b. those who have chosen to enter the fray are limited
public officials; this does not include those who are
not part of a matter of public concern though
2. What is public concern?
a. Anything that touches on fitness for office, what we
should be concerned about
3. what is reckless disregard of the facts:
14
4.
5.
6.
7.
a. seriously entertaining doubts of the truth; not failure
to investigate alone
remedies and procedures:
a. public concern—only when there is actual malice
b. private concern, available generally
c. presumed damages are a guess act compensatory
damages
burden of proof…See page 73
policies:
a. harm to particular people
b. harm to listeners and society—hinder the search for
the truth
c. harm to the quality of participation in democracy
d. not valuable because they do not contribute to the
search for truth and effective self-government
e. for the limits:
i. risk of liability might chill publication
overall: Some false speech is of low value and can be
punished but WATCH OUT FOR PROCEDURE
vii. cases:
1. NYT v. Sullivan: Sullivan was a sheriff in Montgomery
Alabama. There was a derogatory ad taken out about the
police in Alabama and he felt he was injured even though
he was not mentioned. He felt that since he was the head of
the police he was their representative and what was said
that was bad about the police was speaking about him. The
ad person accepted this ad without checking the files to see
if it was false because the person who submitted it was
known to the company and had not tries anything like this
before
a. Test: is the Sheriff, as the head of the police,
protected from criticism?
b. Rationale: although papers are not allowed to print
libelous statements, we have to look further into the
publication. This was made when the debate on the
police’s treatment of protesters was attracting
debate and so there might be some unpleasant
attacks on people. There is no reason to suppress
the speech here because it is a public concern.
Criticism of conduct is not enough to give rise to
libel because he is a public official. The truth may
be a defense, as may be the lack of factual error and
the discussion of official conduct. This is an attempt
for the state to inject the criminal law of negligence
into libel. In order to prevent the chilling of the
debate, there must be stricter safeguards. There
15
must be a showing of actual loss and the statements
must be made in knowing disregard of the truth.
Although the defendant has the defense of truth on
his side, this is too high of a standard. He must be
reckless, as negligence sets too high a standard.
Additionally, people know that the sheriff is under
the control of others—and statements generally
about the police do not attach to one sheriff. The
statements must be about a particular sheriff.
c. Black and Douglas, concurring: the libel laws
threaten the papers and as such, this could
unnecessarily chill speech. Therefore the papers
should publish without fear of suit unless they
outright lie
d. Goldberg, concurring: false speech may have no
value but this is not the debate here. Rather this is a
debate of the propriety of a damage to the sheriff
e. Black Letter: A public official may not recover
unless there is actual malice
2. Gertz v. Robert Welch, Inc: Gertz had offended a Police
officer who was convicted of shooting someone. A
magazine wrote a story about Gertz which was inaccurate.
The editor made no attempt to discover if the statements
were true. The editor and the magazine were found guilty
of libel.
a. Test: is an attorney who works on a public case a
public figure?
b. Rationale: there is no value in false statements of
fact. The rule of strict liability might lead to too
much censorship and lead to a timid press. But
when the person hurt is a private person they might
not have the opportunity to rebut the statements so
there is an underlying difference between public
and private officials. He has not injected himself
into the public limelight simply by being a lawyer;
he has no adequate remedy. When the publisher
does not check his sources about a private person
and publishes libel about them, then there is
liability. The mens rea may not be any lower than
negligence—this will not overly chill speech. It
may be hard for the private person to show damages
so punitive are allowed. Virtually unrestrained
publication of defamatory statements will deter
people from even becoming limited public officials.
Absent a clear showing that someone has reached
16
fame and notoriety in the public limelight we will
not find he is a public official.
c. Dissents,: See pages 98-106mere negligence will be
hard to apply; social interaction exposes all of us to
criticism—this will chill the publishers too much;
this is trying to supplant the ordinary care shown in
the industry with a standard that is too low
3. Dunn & Bradstreet v. Greenmoss: D&B provides credit
reports to individuals. One of their credit reports contained
a serious inaccuracy about the financial status of
Greenmoss. They corrected the statement and sent it to
those that had ordered the report. D&B refused to tell g
who had received it though. G sued for defamation.
a. Test: is this a matter of public concern?
b. Rationale: when the matter is not one of public
concern then there may be damages and this may
include punitive damages. The credit report was
given to so few people it is hard to see that it is a
public concern; it does not uphold the free flow of
commercial information.
c. Dissent: this may not be a concern of the whole
public but it is one of concern to a limited public
audience. This had a substantial effect on the public
quality of the business and its economic health.
This is a matter of public concern.
d. Black letter: the rule of private-private concern us
that there may be recovery even in the absence of
malice
viii. Problems:
1. A, Governor v. Professor, page 76:
a. the governor is a public official and this was a
matter of public concern because it speaks about
matters the public is interested in. The professor is
motivated by malice, which is more than
recklessness. However until the speech is proven
false there is no case. The defense of truth is
available. There may be malice, but there must be
malice toward the disregard of the truth.
2. Professor v. governor, page 107:
a. the professor is a private individual. For the
professor to win he must prove the truth. If the
governor has acted in disregard of it there is a
definite case. The speech, if false is not protected at
all. There may be a recovery even in the absence of
negligence.
3. Electronic Employment:
17
a. I would advise them to either not put up the board at
all or if they did to reasonably monitor it. This will
prove that they are not negligent and remove the
possibility of liability. If there are defamatory
statements then they should remove them. The
problem is who they would prove that the
statements were defamatory.
4. Private figure Libel Amendment:
a. the private figure that is part of a matter of public
concern should not enjoy as much protection. This
is why there must be negligence shown before there
is liability.
c. Facts v. Opinions:
i. Milkovich v. Lorain Journal: M was a high school coach of a team
that was punished for fighting. Then the ban was lifted and an
unflattering account of this was published in the local paper. He
sued the paper for these statements.
1. Test: were the statements facts?
2. Rationale: sometimes it is hard to separate facts from
opinions. If the speaker bases his opinion of bad facts then
he might be liable for his opinion also being false. Not
punishing opinions for falsity when the speaker knows they
are false just allows circumvention of libel law. There is no
reason to separate the two.
3. Dissent: statements of opinion allow one to draw a
conclusion. The facts themselves are what is actionable,
not the final conclusion. There are also occasions when
one knows they are looking at an opinion and they are
capable of weighing its credibility.
ii. Beauharnias v. Illinois: Defendant was convicted of unlawfully
talking about blacks and defaming them. The state convicted him
for such speech.
1. Test: are these defamatory statements opinion?
2. Rationale: the state may decide to protect a group of
people; they do not have to await the outbreak of violence
before giving legal protection. Striking this law is
overstepping the separation of government. Although this
may stifle some discussion it does not prevent discussion of
those things based on fact.
3. Dissent: this puts speech at the mercy of the state; we
cannot punish people simple because they want a say in the
public arena even though the speech is abhorrent. There
should be search for truth no matter how ugly some speech
is.
d. Problems:
18
i. Beauharnias Jr page 134: is this a public official? A matter of
public concern?
1. This is a matter of public concern—the equality of the races
has been a public concern for quite a while. B might or
might not be a public official. If he is then he is held to a
standard of actual malice, which he is not guilty of. He is
simply trying to get his point across. If he is not then he
might be negligent. The problem is also whether the
plaintiff is a public official. If he is not then there might
not be damage if he cannot prove that there was negligence
in the speech. This is an opinion and contributes to the
freedom of speech. The plaintiff has the burden of
showing falsity which might be hard to do because black
do commit crimes in higher percentage numbers than
whites. Since this is an opinion there is no liability
2. Problem: holocaust denial: it is pretty evident that the
holocaust occurred. It is a matter of public concern. The
person who made the claim will be convicted. It is easy for
the state to show the claim is false. His mens rea has to be
shown and if he really thinks there was no holocaust then
he cannot be punished for simply having an opinion.
e. False Light invasion of Privacy:
i. Time, Inc. v. Hill: The hills were involved in a hostage situation
where they were treated humanely. There was a play sort of based
on this and time reported on the play saying that is was based on a
real family. They sued because it brought them back into the
public specter and in a false, yet not libelous manner
1. Test: Did time have the requite mens rea?
2. Rationale: there are errors made in publications and we
cannot impose liability for innocent errors. The defendant
must act in reckless disregard of the truth (knew or should
have known). This tolerates free speech but prevents
calculated falsehoods.
3. Concurrence: this might over duly burden the press; there
is a difference in protecting the private individual and
punishing the press.
4. Dissent: this immunizes the press too much and does not
meet the needs of the people.
f. Obscenity: the government is concerned about the persuasive powers of
words, but the difference is the immediate response and the longer
response to the effects of obscenity.
i. Basic rules:
1. the average person applying community standards would
find the work appeals to prurient interests
19
2. the work depicts or describes in a patently offensive way
under community standard conduct defines by statute as
illegal
3. the work as a whole lacks artistic value
ii. subsidiary rules:
1. distribution and transport can be outlawed but not private
consumption
2. prurient sexual interests is an appeal to shameful or morbid
interests, not normal ones
3. when it is for a deviant group rather than the public at large
then it is prurient
4. the serious value looks art whether the reasonable person
would find value not the ordinary community member
5. punishment only for knowing/having reason to know of it s
nature; ignorance is a defense
6. mistake of the law is not a defense
7. government bay ban
a. selling to minors
b. things that are obscene to minors
iii. See Policies on 149-50
iv. Cases:
1. Miller v. California: Miller was convicted for mailing a
flyer advertising the sale of illustrated adult materials. He
was convicted under a California law making it illegal to
distribute obscene material
a. Test: would the average person applying
community standards finds that this appeals to the
prurient interest in a patently offensive way and
without nay redeeming qualities?
b. Rationale: there should be a more definite standard
for punishment of this type of conduct. It has been
previously held that there is a great social interest in
preventing distribution of this material because the
value of it is low. The court specifically rejects the
test of utterly without redeeming social value. The
jury is the one who should determine if this is
deviant and without value. Sex and nudity have a
place and are not always without value. No one
should be punished for appealing to normal sexual
appetites unless the material is patently offensive.
Again, this should be measured by the finder of fact
because tastes will and do vary.
c. Dissent: the law is overly broad as written
2. Paris Adult Theater v. Slaton I: defendant in Atlanta was
convicted of running an adult theater which appealed to the
20
prurient interests of citizens. The films shown were
claimed to be hard core pornography.
a. Test: Can the state prevent the showing of
something that totally lacks in artistic value?
b. Rationale: there is a good reason for blocking these
films and although this calls for the court to make a
judgment of the motives of the legislature this is
something the courts can reasonably do. We may
premise our action on free will but this should not
be unfettered. When the state prevents display of
things that totally lack artistic value they are not
preventing free will. This has a tendency to injure
the community as a whole and the right to maintain
a decent society so this may be prevented
c. Dissent: sex and obscenity are not synonymous.
None of the tests work to determine if something is
obscene. The statute does not say what it forbids
and is overbroad. There is no predictability in the
statute. There are times when the tests work like
the state wants to protect children. There is also no
empirical value that shows when the community is
injured by the presence of such material.
v. problems:
1. Mafiosi in Love, page 150:
a. the renter should not be prosecuted. There is a
defense in not knowing and the patron was ignorant
of the material in the video. If it can be shown that
she rented it knowing that this was obscene, then
the 3 part Miller test has to be applied. The same
might go for the owner of the store, but it will be
easier to prove he knew because he should know
what he is putting on his shelves. Again, the miller
test will apply. If this is normal intercourse and is
not over the top hard core pornography then there is
no problem. Since this is a Hollywood production
then it might be protected because it was designed
to make a profit which means it has to appeal to
most people.
2. The Montana Constitution, page 155:
a. State sovereign immunity? This might be a simple
reflection of what is protected under the US
constitution and it may be trying to punish more. If
there is a libel against the public figure, there is no
mens rea in the constitution and this might set up a
conflict.
g. Child Pornography:
21
i. Basic rule: Speech is unprotected if it
1. visually depicts children
2. performing or exposing
3. it does not matter if it meets any prong of the miller test
because it is so harmful to children
ii. subsidiary rules:
1. ownership may be outlawed
2. May be punished if they knew/should have known, but
reasonable mistake of fact is a defense.
3. if its not a picture of a real child or does not involve
children it may be allowed
iii. cases:
1. New York v. Farber: It is illegal to use children under the
age of 16 in a porno or any representation for an audience.
Ferber was convicted of making a movie that had children.
a. Test: May the state outright prohibit the making
and sale of child pornography?
b. Rationale: protecting children is a valid
governmental interest. This protects their
psychological and physical well-being. The states
have greater leeway here because the actors are
children. The miller test does not have to be met,
but if it does, this is patently offensive. The value
of this speech is modest if it exists at all. The
statute is written to reach child pornography and not
prevent the publication of medical texts, so it is not
overbroad.
c. Concurrence: there is a completing interest of the
state to prevent this to help children and because
there is no reason for it—it is tasteless.
2. Osborne v. Ohio: Osborne was convicted of possessing
child pornography which was against the law in the state.
a. Test: is the state regulating the mind or protecting
children
b. Rationale: the state does not pretend to regulate
one’s thoughts here. It is simply trying to protect
children by during up the demand for such
materials. There is a patent state interest in
protecting children
iv. Problems:
1. Computer graphics, page 169:
a. there is not a child used here so the states interest is
less. Applying Osborne, there might be an interest
in drying up the demand for such materials, which
in the long run protects children from deviance.
The tests for the two may be merged when
22
appropriate. Under the miller test, however, the
court mentioned in dictum in Ferber that child porn
does not have any value and appeals to the prurient
interests of the society so this might block it.
2. Crush Video: Seen notes 2/13/02
h. Offensive Speech/risk of violent reaction:
i. Basic rule 1: it is still unprotected if it is fighting words
1. tends to incite an immediate breach of the peach
2. individually addressed to the person who is insulted
3. conflict: maybe if it has no value, but maybe not for an
expression
ii. policy:
1. risk of immediate violence—prevention of fights and
retaliation
2. some ideas can be said in a better way
3. counter:
a. why should we prevent fights among people
b. why restrict one for reactions from another
c. it might suppress important speech
d. sometimes there is no better way to say it
iii. basic rule 2:
1. very utterance inflicts injury
2. litigations
a. this is hard to predict in application
b. to low value speech in most cases—but this might
not be good law
iv. basic rule 3:
1. intentionally, knowingly or recklessly inflicts
2. severe emotional distress
3. in an outrageous way
4. on a private figure or a public one if out of the context of a
debate
v. see 179-80 for more policy
vi. cases:
1. Chaplinsky v. New Hampshire: C, a member of the Jehovah
witnesses was calling the police fascists and racketeers to
their face. A law made it illegal to say these things to a
police officer.
a. Test: does the law prevent acts of violence?
b. Rationale: these types of utterances have no value
as they do not promote free speech or democracy.
They are not a proper communication. Offense may
end up in violence. The statute is not over board.
There are other ways to say these things and they
are like to provoke a violent reaction.
23
2. Cohen v. California: Cohen was arrested for wearing a
jacket that said “fuck the draft”. The law prevents
disturbing the peach through offensive conduct.
a. Test: will this provoke violence? Is this clearly
directed to someone?
b. Rationale: although the language may be
distasteful it is cannot be maintained that this will
lead to violent reactions. There must be someone
that the language is directed towards. The general
public does not suffice. There is not an attempt to
prohibit the transmission of this into ones home.
This is not speech that may be prohibited; although
some many find it offensive it is not directed to
them and they may avert their eyes. The right of
free expression brings more ideas into the
marketplace and although the speech may be
offensive to some will bring in debate.
c. Concurrence: this is conduct and not speech, so
there is not a need to find this under the first
amendment
3. Texas v. Johnson: Johnson burned a flag during the
Republican Party convention. He was convicted under a
Texas law preventing flag burning
a. Test: is there a threat of violence as an immediate
reaction? Is this directed toward someone?
b. Rationale: the audience may take offense at the
display but for this to be prohibited there must be
the real threat of actual violence. There is not this
reaction. Some people may find this offensive but it
is not likely to cause violence. Additionally, there
is no special protection for a symbol, the American
flag that should vault this above the value of other
speech. The state may want to encourage the proper
treatment of the flag—this is a good state interest
but is not sufficient here to snuff out debate about
its value as a symbol.
c. Dissent: the symbol is powerful one and will invoke
powerful reactions. This in turn will lead to fights
and violence. He was free to make verbal
denunciations but the burning is likely to invoke
violence.
4. Hustler v. Farwell: hustler magazine published a parody ad
about Farwell that was very distasteful to Farwell. He sued
for emotional harm.
a. Test: Can a public official sue for emotional harm
inflicted in a public manner
24
b. Rationale: this is not placed in a context of robust
debate. Generally one may criticize those officials
involved in the debate even though such criticism is
not always well-heeled. Even when a speaker is
motivated by ill will and the wish to do harm the
speech is protected in a private context. Just
because speech is offensive is not a good reason to
ban it. For a public official to recover for emotional
harm the debate must be outside of the political
debate and must be made with actual mile sufficient
to show there was aim intent to harm the person.
vii. Problems:
1. insulting a widow, page 180:
a. The speech was directed towards the widow and
carried a high chance of inflicting emotional harm.
She is a limited public figure by the fact that the
Stanze murder was well chronicled. She might not
be considered a public figure outside of St. Louis
though. The speaker knew he was going to cause
harm and the card was outside of the context of the
debate.
2. Captive audiences, page 180-1:
a. Captive audiences are described as those that cannot
leave the place they are in. Examples are children
in school and prisoners. To determine whether
these people are a captive audience, there must be a
legal way for them to leave their location. The
means do not have to be reasonable; there must be
no alternative to them being captive. If the
audience is so determined captive then the speech
must either tend to incite imminent violence or
lawlessness or quantifiable emotional harms. The
harms must be imminent and directed towards the
audience. Simple offensive language is not
sufficient. The speaker must also intend to harm the
audience or recklessly disregard the context of the
audience.
i. Exceptions from Protection—Treats:
i. Basic principle: threats of violence/illegal conduct are prohibited
ii. Caveats:
1. not if reasonable person understands it as hyperbole
2. threats of social ostracism/political boycotts are protected
3. speech trying to pressure something is protected
4. no punishment for a threatening environment
25
iii. WATCH OUT FOR mixture of threat and politics—look at the
context of the speech. Look to see if it is an actual threat or
hyperbole
iv. Policy, see 205
v. Cases:
1. Watts v. US: Watts was convicted of making a threat on
the president.
a. Test: is this hyperbole?
b. Rationale: this speech is angry and must be looked
at in its context. Since there was no other way for
the petitioner to discuss his anger, this is allowed;
the conviction was an overreaction.
2. NAACP v. Claiborne Hardware: the NAACP helped blacks
march in Mississippi as part of a boycott. This hurt the
hardware business and so they sued for threatening
language.
a. Test: is a threat made as part of a boycott
protectable?
b. Rationale: the boycott had as its reasons legitimate
ones. The state is trying to punish its expressions.
The speech was used to further the boycott and
open political debate made as a general rule
boycotts are protected. Where they are violent they
are not protected and when they are peaceful, albeit
threatening they are protected. The emotional
charge of this did not transcend the allowable. This
did not have as its interest violence or illegality.
3. NLRB v. Gissel Packing Co: the Union wanted to strike
against a company for several labor demands. The owner
of the company did not want a strike and threatened to
close the plant. He spoke to the employees and
communicated this treat
a. Test: were the words calculated to shape the
election and labor context?
b. Rationale: usually a discussion of how to vote and
ones choices are protected. There was an unspoken
threat of reprisals afoot here through. The
employees took this as coercive and since there is a
power relationship the speech may be prevented.
vi. Problem
1. The anti-abortion campaign, page 205-6. see notes 2/27/02
j. Exemptions from Protection—Speech owned by others:
i. Basic problem: Various IP rights, are speech restrictions
1. copyright is an allowable restriction
2. publicity law, and preventing unwarranted publicity is also
allowed
26
ii. policy:
1. prevention of unfair profits at another’s expense, unfair
competition, diminishment of incentive to create,
immorality
2. people can still use the underlying facts
iii. cases:
1. Harper & Row v. nation Enterprises: Nation scooped a
story from H&R. This hurt the H agreement with time.
a. Test: does the copyright law lawfully prohibit this?
b. Rationale: copyright law gives a limited grant of
protection to the author. There is a fair use of the
work when another makes use of the underlying
facts, but the expressions are protected. Just
because the public thinks this is an important issue
is not sufficient to allow outright stealing.
2. Zacchini v. Scripps-Howard Board. Co.: Z performs a
human cannonball and has gone to great lengths to protect
this from videotaping. The defendant here did just that and
aired it on TV. Z sued for copyright infringement.
a. Test: Was this expression an unfair
commercialization of the plaintiffs copyright?
b. Rationale: the defendant had the right to report on
the underlying facts but the broadcast was a threat
to the viability of the plaintiff as a performer
economically. The entire broadcast was in effect
stealing of the expression of the plaintiff. The
protections of the law reward his performance and
induce him to do it.
3. problems:
a. unauthorized Biography: see discussion on 2/27/02
b. unauthorized bust: see discussion on 2/27/02
c. Copyright remedies: see discussion on 2/27/02.
i. I would recommend that Neil does not
challenge the verdict. He was likely an
intentional infringer. The only way I would
recommend going forward with this claim is
if he can show that he had no access to the
work and simply mirrored the ideas in it. If
he wrote on the same ideas thin it is likely
that they came from the same source. If that
is so, then there is no infringement.
3. Strict Scrutiny:
a. Generally
i. Basic rule: if the speech does not fall into an exceptions category
or into a diminished protection category, then usually the
government cannot suppress it. It may be suppressed however it
27
can show that it passes strict scrutiny—narrowly tailored to protect
a compelling state interest. Strict scrutiny usually means the death
of the statute.
ii. Workings of this:
1. the law must serve a compelling state interest: what is the
ends
a. it cannot pick a subclass of the speech (unless it is
content neutral)
b. it must be an interest other than avoiding offense
and bad ideas; this can be part of the reasons but not
the only one
i. good interests include: protection of
children, protecting voters, protecting the
press, maintaining a stable political system
(maybe, in dicta), ensuring criminals do not
profit from their crime (maybe), protecting
members of groups historically subject to
discrimination;
ii. non compelling interests include: equalizing
access at elections, reducing the price of
political campaigns, preserving party unity
during a primary, protecting those who
cannot protect themselves
iii. compelling is looked at through common
sense, legislative history, comparing and
contrasting interests and arguing
counterexample
2. under inclusive: fails to reach all of the speech shows the
interest is not as compelling as their say it is; if it was there
would be a broader restriction
a. there cannot be an interest in fighting one narrowly
defines ill without fighting those that ate
indistinguishable from that one ill
3. the speech must be narrowly tailored: do the means satisfy
the ends
a. advancement of the stated interest; does not have to
be to the highest degree or scientifically provable
b. cannot be over inclusive:
i. does the restriction work in fact but does not
frustrate other interests; or, does it restrict
those who are identified up front and no one
else
c. least restrictive alternative:
i. Are there possible less restrictive alternative
that will serve the interests just as well?
28
ii. this does not have to be an alternative that
does not reach the end
iii. the alternative does not have to be exactly as
effective, just very close
d. cannot be under inclusive:
i. it suggests the restriction isn’t all that
important
ii. it suggests the interest is not the stated one
iii. may show the presence of discrimination
e. permissible tailoring (not held by the court, see
pages 278-9)
b. cases:
i. Sable Communications v. FCC: Sable had adult oriented phone
messages on a 1-900 number. The FFC wanted to stop this and
Sable was convicted under a law in DC making these messages
illegal
1. Test: Does the statute pass strict scrutiny?
2. Rationale: Government may only regulate this is there is a
compelling interest and if this is the least restrictive means.
There is a compelling interest in protecting minors from
things that might not be obscene by adult standards but the
law must be narrowly tailored to do this. Restricting all
people firm this is overbroad because it restricts all from
seeing it and puts adults on a child’s standard. There is a
less restrictive, effective way to do this. Although some
disobedient children might be able to still hear the message
restricting it to adults only is the least restrictive means.
3. Concurrence: the narrowest means restrict all children
from hearing the message. Without this it is not narrow
enough
ii. Carey v. Brown: there is a bar of picketing except labor picketing
at places of employment. Defendant was arrested for picketing
outside of the mayor’s house to protest the lack of bussing.
1. test: is there a compelling state interest:
2. Rationale: the state contends it wants to keep residential
areas free of picketers. This may be permissible if
narrowly tailored to reach this. It is both over and under
broad. Additionally, the state wants to give special
concessions to labor picketing. This is rejected. Picketing
by itself is a good way to get a point across. Allowing
some picketing does not prevent what the state sets out to
do, which is have peaceful neighborhoods. There might be
some picketing in residential neighborhoods when a house
employs a maid or other domestic worker.
29
iii. Florida State v. BJF: Florida Law makes it a crime to publish the
full name of a rape victim’s name in the paper. When the paper
did this she sued.
1. Test: is the law overbroad?
2. Rationale: Papers can lawfully obtain the police reports;
they may not publish the names under the statute despite a
compelling interest to do so. The government may classify
some information but punishing the press for something
lawful obtained will chill the press. The court then looked
at the reason for the law which was to prevent the privacy
of the victims, protect the safety of the victims and
encourage those similarly situated to come forward. These
are substantial interests. The government itself is the one
that gave out the information though. They are the ones in
the best position to keep it secret, not the press. This shows
they were not really meeting their interest. This censorship
will chill newspapers. The law as such is overbroad. It is
also under inclusive because it does not prevent word of
mouth discussion of the case and the name of the victim.
3. concurrence: this does not reach the end because it does
not prevent all communications
4. Dissent: the state has taken every step possible to prevent
this and the law is narrowly tailored to reach a permissible
end.
c. Problems:
i. Drive in Nudity: See discussion 3/27/02
ii. Violence on TV
d. Content Discrimination within the Exceptions to protection:
i. Basic rule: a restriction on unprotected speech must still fact strict
scrutiny if it is included a content discrimination beyond the one
that makes it protected
ii. Exceptions
1. an extra content discrimination within a category need not
be justified under strict scrutiny when the basis for the
content consists entirely of the very reason the entire class
of speech is proscribable
a. a state can proscribe obscenity that has lascivious
displays of sexual activity; making it a crime to
threaten the president
i. exception: the discrimination at issue is not
based on content but the content embodies
something particularly intolerable—RAV
2. when the subclass it is protecting experiences the particular
secondary effects encompassed in the speech
30
a. permitting all sexually oriented live performances
except those with minors; the offensiveness is not
the secondary effect though
3. a generally applicable law applies to speech and conduct
may not have strict scrutiny when a particular subcategory
is swept up incidentally in the reach of the statute directed
toward the conduct
a. prevention of sexually derogatory fighting words
4. when the nature of the content shows that there is no
official suppression afoot
iii. Distinction: RAV only deals with bigoted speech. The intent of
the actor is not at issue.
iv. Cases:
1. RAV v. City of St. Paul: the city makes it illegal to burn a
cross or use Nazi symbols to hurt someone based on color,
race, sex, creed, national origin, religion or gender. RAV
was convicted of burning a cross on a black’s front yard.
a. Test: is this distinction among fighting words
content discriminatory?
b. Rationale: the statute is set out to prevent a certain
class of fighting words. Some people have been the
target of discrimination and reprisals for a long
time. Speech can be regulated on the basis of its
proscribable content but the proscription cannot
discriminate among certain classes of unprotected
speech. These words do not protect everyone. The
reason for the words is to protect those that have
long been the subject of discrimination. This shows
that this is under inclusive as it does not protect all
of those subject to discriminations, like gays and the
handicapped. Words directed to blacks are not
qualitatively different than those directed towards
gays. The distinction the city is trying to make is on
the class of the speech, not the speech as a whole.
There is a danger of censorship and of state
approval of some fighting words but not all. If the
same speech can be outlawed by banning a larger
category of speech then the smaller category will
not work. This shows an over-tailoring so the law
is now under inclusive.
c. Concurrence: the speech is reprehensible but the
law is not narrowly tailored. Fighting words are
designed to hurt someone and provoke violence.
This is not under broad, it is overbroad. There is a
problem with EPC because not all of the speech
receives the same protections.
31
v. Problems:
1. Absolute immunity in Libel cases: See discussion on
4/3/02
vi. Content Neutral Speech restrictions
1. basic rule: The time, place or manner of the speech can be
regulated if they are:
a. justified without reference to the content of the
regulated speech
b. serve a governmental interest—most interests
qualify
c. are narrowly tailored to reach this interest—THIS
IS NOT STRICT SCUTINYT
i. this may not burden a substantial amount of
the speech that does not implicate the state’s
interest
ii. or impose a burden on the speech that is
disproportional the degree which the speech
implicates the interest
iii. the law does not have to be the least
restrictive means
d. it leaves open alternative channels of
communication
i. it is inadequate if it is too expensive
ii. or it will not reach the same audience
iii. if it will carry a significantly different
message
2. CAUTION: this does not mean that all speech restrictions
on the TPM are allowable because they do that.
a. It is also hard to tell prima facia if it is CB or CN.
Look to see what the communicative impact of the
regulated speech is.
3. policy:
a. some speech activities has undesirable side effects
that are unrelated to the speech
b. if there are ample alternative present then the
restriction does not ban speech, just a form of it
c. it does not cause an undue burden
i. this means it only has to pass the rational
basis test
d. if there is a substantial burden then the TPM is a
façade
e. if there is an insubstantial burden then it passes
intermediate scrutiny (substantial interest and does
not restrict more than necessary
4. cases:
32
a. Schneider v. New Jersey: Municipal authorities
have prohibited the handing out of literature.
i. Test: what is the substantial interest and
does it meet the ends?
ii. Rationale: the town has a duty to keep the
streets free; this does not abridge the speech.
But this end of keeping the streets free of
litter is not necessarily caused by the
handing out of such bills. The ends are
insufficient to meet the means. There are
more obvious ways to prevent littering.
iii. Black letter: so long as the legislation to
this end does not abridge the constitutional
liberty of on rightfully upon the street to
impart information through speech or the
distribution of literature, it may lawfully
regulate the conduct of those using the
street.
b. Frisby v. Schultz: A city made it illegal to picket in
front of residences. The picketers arrested were
picketing in from of an abortion doctor’s home.
i. Test: it the ordinance narrowly tailored to
serve a significant interest and are there
ample other alternatives for the speech
ii. Rationale: there is a limited focus to the ban
and there are other manners in which to
disseminate the same message. There is an
interest in protecting privacy in ones home;
people have the right to avoid unwarranted
speech from entering their homes. The evil
is the unwarranted intrusion so the statute
must narrowly be tailored to end that. This
ban is designed to do that because of the
other ample alternatives available. These
picketers seek to bother the resident, not
disseminate a message. They are prevented
from doing so.
iii. Dissent: the application of the intermediate
scrutiny test requires that the government
demonstrate that the offending aspects of the
prohibited manner of speech cannot be
separately and less intrusively controlled.
The argument of what the evil is though is
flawed because the picketers were
attempting to demonstrate about a particular
person, not to the person
33
c. City of Ladue v. Gilleo: Ladue made it illegal to put
up yard signs. Gilleo did just that and was fined.
i. Test: is there a less onerous alternative?
ii. Rationale: there might not be another good
media for expressing these ideas. When an
entire medium of speech is cut off then there
is a bad impact. There are not less onerous
means if the entire means is cut off. The
residential signs are the only means to
cheaply and effectively get ones massage
across; there are no other means that
approaches this for ease and price.
5. problems:
a. door to door solicitation, page 367
b. publication of intercepted communications, page
367
e. Restrictions on expressive conduct
i. Basic rule: there are some restrictions that apply whether or not
one has an expression in mind.
ii. Threshold inquiry:
1. does this convey a particularized message
2. and is there a high likelihood that the message is
understood by those who see it OR is it within a generally
protected category such as painting, singing and the like
even if it is abstract or nonsensical
iii. test: if the threshold is satisfies then the law may be applied if it is;
1. justified without reference to the impact of the conduct
a. does the conduct endanger some interest because of
the message conveyed
b. the court will not look at the legislatures real motive
if they think it is bad
2. and serves a significant governmental interest
3. and does not burden the substantial amount of conduct that
does not implicate the interest or impose a burden on the
conduct that is disproportional to the degree to which the
conduct implicates the interest
4. under inclusiveness is not a problem
5. THIS IS THE SAME AS CONTENT NEUTRAL
WITHOUT THE AMPLE ALTERNATIVES PRONG
iv. Cases:
1. US v. O’Brien: O burned his draft cars on the courthouse
steps as a form of protest. The draft card act made this
illegal and he was convicted of this despite of his intent to
protest the Vietnam War.
34
a. Test: is the burning of a draft card symbolic speech?
Does the government have a compelling interest in
preventing destruction of draft cards?
b. Rationale: there is a limitless amount of conduct
that could be labeled speech. The draft cards were
put in place to have a ready means of identification
of a young man’s draft status without headache or
worry. This is a compelling interest and is within
the broad scope of congressional powers. Many of
the purposes of this system would be frustrated if
the speech is regulated. Not allowing destruction of
the cards furthers the goals of this system. The
purpose of this was to not suppress the freedom of
speech—it was to help raise an army. The purpose
on its face is valid.
c. Concurrence: incidental restrictions on speech are
not enough to render them invalid.
2. Clark v. CCNV: CCNV wanted to stage a sleep-in at the
national park in view of the white house. The forest service
does not allow anyone to sleep in national parks that do not
have a campground. They did not give CCNV a permit but
did allow them to erect a tent—just no sleeping in it.
a. Test: is the limitation as applied a limitation of free
expression
b. Rationale: the court assumes there is a valid reason
for preventing people from sleeping in the national
parks. There is also a way for the people to get
their message across without sleeping in the park.
The regulation did not seek to prevent the
expression of the plight of the homeless. The
regulation is narrowly focused on a substantial
interest of keeping the parks clean and orderly. The
major value of the demonstration is to show the
plight of the homeless, and there is not better way
than to show them sleeping in the parks but the ban
is narrowly tailored and serves a substantial interest
c. Dissent: the primary of purpose of this was to sleep
in the national; park that overlooks the white
house—there is no better way to draw attention to
the plight of the homeless. The expression would
be understood by those who saw it. This is not a
reasonable TMP restriction. They are already
allowing them there for 24 hours—why not let them
sleep too?
3. Texas v. Johnson: Johnson was convicted of burning a flag.
35
a. Test: is burning the flag expressive conduct? Does
Texas have a substantial interest?
b. Rationale: the flag is a potent symbol and setting
something ablaze is an expression of distaste of that
symbol. People will understand what he means by
burning the flag. The government can generally
restrict more expressive conduct than spoken words.
The ban by the state is related to the conduct they
want to punish though. This was banned because it
could cause serious offense to the person who saw
it. The law was not designed to protect the flag but
to prevent burning it as a means of expression
c. Dissent: this might reach the one who burns the flag
because it is dirty and unfit for service. But there is
prevention of all burning, so the statute is not
written for the special reason of preventing
demonstration
v. Problem:
1. the marijuana performance art, page 367
2. wearing a police uniform, 367
36