I)
II)
Theoretical underpinnings of the First Amendment
a)
History
i)
Licensing- literal prior restraint; could not publish without permission from the crown
(1) Expired due to expediency concerns, not free speech concerns
ii)
Constructive treason- even imagining the death of the king was a crime
iii) Seditious libel-bringing the government into disrepute
(1) Covered both true and false claims
(2) Blackstone- only prior restraint was prohibited; anything could be punished after it was said
(3) Zenger trial- jury verdict; exonerated on the basis that what he said was true. NOT a judicial ruling- defense of
truth not yet created
(4) Patterson v. Colorado- 1907; Justice Holmes held that the First Amendment applied only to prior restraint
iv) No clear consensus on the intent of the Framers; might have been Blackstone view, might have been what has
developed
b)
Six major theories
i)
The Search for Truth.
(1) A free society needs to be able to address all possible interpretations
(2) True ideas can defeat false ideas- counterspeech principle
(3) Criticisms(a) Assume speople primarily value truth
(b) Not all speech expresses an idea (low value speech)
(c) Presupposes a market model
(d) No such thing as absolute truth
ii)
Self governance- Meicklejohn. We protect speech because it enables us to better govern ourselves
(1) Allows some punishment of speakers, so long as the idea is out there- can't make an omelet
(2) Lots of art has no direct application to government; Meicklejohn's response was that a better/more broadly
educated public makes better decisions
iii) Self-fulfillment- concerned with the development of mature, developed individuals. Only then can we we have
independent/free people
(1) Bork's criticism- same concerns of self-fulfillment apply to non-expressive acts/conduct: sexuality, drug use,
etc. This is how pornography and sexual expression ARE usually justified
iv) The checking value- speech acts as a check on abuses of government power
v)
"Safety valve"- leads to social stability. Losers in the political arena can express themselves rather than resisting;
vi) Tolerance- Free speech carves out an area of law for self-restraint and tolerance of ideas, makes us tolerant of
opposing ideas
Suppression of dangerous ideas and information
a)
Bad tendency test- govt. has the power to punish speech that had any tendency, no matter how remote, to bring about
breaches of law
i)
Shaffer v. US ( 9th Cir. 1919)- convicted under the Espionage Act
b)
Constructive intent- if you advocate spending less money on A, and that hinders the war effort, you have the intent to
hinder the war effort
c)
Espionage Act cases- Espionage Act passed in 1917
i)
Masses v. Patten (1917)- Learned Hand deviates from Bad Tendency test
(1) Begins to distinguish "advocacy" from "incitement"
(2) Hand prefers a "test based on the nature of the utterance itself"
(3) Focus on "trigger of action"
(a) "the draft is stupid" = advocacy/agitation
(b) "the draft is stupid, let's kill all the pigs" = incitement
(4) No direct instigation
ii)
Schenck (1919)- "the character of an act depends on the circumstances"- Shouting fire in a crowded theater Holmes
(1) Schenck opposed the draft (not necessarily the war); advocated writing to congressmen, voting, etc. - purely
legal means
(2) Bad Tendency- would have the tendency to encourage opposition to the draft; Learned Hand might let him
slide as the "clever agitator
(3) Beginning of Clear and Present Danger test(a) "it is a question of proximity and degree"
iii) Frohwerk (1919) German language paper, opposed to war , convicted of conspiring to cause disloyalty. Holmes
upheld conviction; CPD standard alluded to
iv) Debs v. US (1919) Eugene Debs convicted of obstructing enlistment. Court rejected Debs' claim that the conviction
violated the First Amendment. Main topic, Socialism, was ok, but the obstruction aspect wasn't. No reference to CPD
v)
Abrams (Fall 1919). Russian immigrant socialists distributed flyers opposing the US intervention at Murmansk and
Vladivostok; called for general strike. Supreme Court upheld convictions, referring to Schenck and Frohwerk;
(1) Bannable under Blackstone (no prior restraint, subsequent punishment OK); Bad Tendency; even under Hand's
Masses test- direct incitement to immediate lawbreaking
(2) Holmes dissent more important
(a) Looked for specific intent to hinder the draft effort; their intent was to help Russia
(b) Looked for CPD- "a silly leaflet by an unknown man"- put teeth into the "clear" aspect of CPD
(c) Refers to marketplace of ideas theory- "who knows what the truth is?"
(d) Should not limit expression of even vile ideas, unless they "so imminently threaten immediate
interference.."
d)
Holmes and Brandeis- development of CPD
i)
Gitlow (1925)convicted of criminal anarchy, NOT under Espionage Act. Argued the statute violated due process
clause of 14th Amendment. Clearly advocated overthrow of the state. Backdrop was labor strife, rise of socialsim.
There was an assumption that the 1st applied to the state via the 14th.
(1) Court focused not on the free speech aspect, but on correct use of the police power- so long as the statute isn't
unreasonable, it's OK. Evoked bad tendency test
(2)
e)
f)
Holmes' dissent(a) Must be an immediate threat; dangerous speech can only be punished when it calls for immediate
violence/lawbreaking
(b) Put teeth into the "present" part of CPD
(3) Standard of review- how much deference should state laws be given?
(a) Court opinion gave wide deference to the state's determination that an entire class of speech was
dangerous/punishable
(b) Espionage Act cases hadn't dealt with classes of speech, but "obstruction"; courts determined what was
obstruction
(c) Not much deference currently
(4) Statute outlawed violence to destabilize government, but not to preserve it- Underinclusion?
ii)
Whitney v. CA (1927) Anita whitney attended the convention of the socialists; group became more radical (category
3, "at some point we'll need to get violent"). convicted of joining an organization that advocated the commission of
crime, etc., as a means of achieving political change. CA law didn't require speech or action, just membershippunished association rather than speech or conduct.
(1) Court deferred to the legislature
(2) Brandeis's concurrence the important part
(a) Imminence- even express advocacy can't be punished unless it incites immediate violence
(b) Seriousness of the harm- advocated "harm" must be serious (not incitement to trespass/jaywalk, etc.)
(c) New rationale/ theory for free speech- self-governance; more utilitarian than marketplace of ideas
(d) Counter speech: the remedy for bad idea isn't repression, but GOOD ideas
(e) Answered the majority's deference argument- acts that infringe freedom of speech are no less arbitrary
than regulation of property rights; not quite strict scrutiny, but approaching it.
First Amendment comes of age, 1920-1950
i)
Injection of modernism- idea that humans have agency, can discover the truth
ii)
Capitalism and political rights
(1) Belief in unregulated capitalism was declining
(2) Belief/adherence to democratic theory increasing
iii) Carolene Products / bifurcated review project- separate standards of review for restrictions on political/constitutional
rights (strict-er scrutiny) and economic policies (more deference/ intermediate scrutiny)
iv) Between Whitney and Dennis, the court invalidated three subversive advocacy convictions on technical grounds.
Importance of the cases not on the rulings/results, but the changing rhetoric the Court used
(1) Fiske (1927)- lack of evidence that the organization Fiske joined actually advocated violence
(2) Herndon (1937)- the court determined that soliciting individuals for membership in the Communist Party was
insufficient fir a conviction under subversion laws; determined under freedom of assembly grounds, not due
process
(3) DeJonge (1937)- mere assistance in the conduct of a meeting is a different matter than teachingor otherwise
"inciting" individuals to overthrow the government or other subversive acts. No evidence provided that the
meeting the defendant helped with had any advocacy of governmental overthrow
v)
Stromberg v. California (1931) CA children's communist day camp flew a red flag; state statute prohibited flying a
red flag as a symbol of opposition to the government.
(1) Court ignored the symbolic aspect
Dennis, Brandenberg, and modern subversive advocacy jurisprudence- culmination of modern subversive advocacy cases.
Tied in with second Red Scare
i)
Dennis v. United States (1951). Defendants were CPUSA members, convicted of Smith Act violations- unlawful for
any person to knowingly or willfully advocate, etc., the duty/necessity/desirability of overthrowing any government
of the United States. Trial lasted 9 months, 16000 pages of evidence. Statute outlawed "Category 3" speech
("advocating violence/lawbreaking at some time in the future")
(1) No majority opinion
(2) Finally officially adopts the CPD standard, BUT ruled that doesn't mean you have to wait until the rifles are
already being handed out, etc.
(a) Vinson's CPD isn't from Brandeis's Whitney concurrence, but more akin to Learned Hand
(b) If the [Evil to be avoided by the law], divided by [probability of the evil] is greater than the damage of the
invasion on free speech, then the invasion is justified
(c) No requirement of imminence
(d) Holmes and Brandeis had no such equation; gave less deference to the legislature
(3) Court ruled that "mere discussion of ideas" is protected (def. includes Category 1, maybe Category 2)continued liberalization of the jurisprudence
(4) Imminence- "government need not wait for the eve of the putsch"
(a) Government doesn't need to "fight fair", can cheat
(b) When the survival of the state is at stake, nothing else matters (Ben Franklin would argue…)
(5) Deference(a) Frankfurter- defers to Congress, realizes the risk of a "chilling effect", but it's not the court's job to strike
that balance
(b) Jackson- severity of the harm is key
(c) Douglas- DISSENTS. "This conviction is for presenting the teachings of four books"
(i) Like burning books, and WE don’t do that
(ii) Free speech is great for other reasons- marketplace of ideas, etc.
(iii) It's partially through free speech that Hitler was defeated and communism was discredited.
(iv) Advocated more counter-speech before criminalizing
(6) Did the Court use a "bad tendency" test dressed up in CPD clothes?
(a) Might be why Black wanted to scrap CPD as underprotective
(7) Self-government is good, but violent revolution contributes nothing to our First Amendment values
(8) Doctrinal revolution(a) 7 of 8 justices reject Gitlow's extreme deference
(b) 7 of 8 reject bad tendency test (?)
g)
h)
(c) 7 of 8 agree that Whitney is no longer good law, and adopt CPD, at least in name
(d) 6 of 8 agree that express advocacy is less protected than other forms of speech
(e) A majority of the Court adopts SOME version of CPD
ii)
Between Dennis and Brandenberg(1) Yates v. United States (1957)- ruled that the Smith Act does not prohibit advocacy of forcible overthrow as an
abstract principle
(2) Support for war resisters increased, as Vietnam dragged on
iii) Brandenberg v. Ohio (1969)- Brandenberg was a Klan leader, convicted under an Ohio statute for advocating the
duty, etc., of lawbreaking as a means of accomplishing political reform. Invited a Cincinnati TV station to his Klan
rally; filmed a cross burning, some threats of "possible revengence"
(1) "Whitney has been thoroughly discredited by later decisions"
(2) Constitutional guarantees do no permit prohibition of advocacy of force or lawbreaking unless it is directed to
imminent lawless action, and is likely to incite or produce such action- CPD
(3) Brandenberg test: prohibited speech must have not just the abstract discussion of ideas, but also:
(a) advocacy (rather than abstract expression of ideas, and must be intentional, you must want it to happen)
(b) Immediate lawbreaking that is
(c) Likely to occur
(4) Not many incitement cases after Brandenberg
(a) Clear and present danger test is done
(b) Seriousness has fallen out
(c) Most speech protective standard yet
iv) One story of evolution of cases:
(1) Ct. stuggles starting w. Schenck to give content to “clear and present danger” and it was ultimately
unsuccessful. Faced w/ the fact that clear and present danger did not protect its core defendant’s (Dennis, etc.)
it was doomed. Brandenberg can then be seen as rejecting the clear and present danger test as being far too
maliable. Its not that protective because you can make it mean whatever you want it too. Brandenberg can be
viewed as culmination of Holmes/Brandeis in that they helped further the things that came to fruition in
Brandenberg.
Threats and provocations
i)
Bridges v. California (1941)-arose out of litigation between two rival unions. Bridges, president of the losing unions,
published a telegram he had sent to the Secretary of Labor threatening to tie up the West Coast with a strike if the
decision against them was enforced. Found guilty of contempt of court.
(1) Justice Black wrote the opinion, invalidating the convictions
(2) Substantive evil must be imminent and risk must be extremely high. Robust CPD test
(3) Two possible substantive evils
(a) Disrespect to judiciary
(b) Unfair administration of justice
(4) Black reasoned that the strike will occur anyway, so prohibiting the words won’t change the risk
(5) Frankfurter's dissent would only require a reasonable likelihood of actually influencing the cases' outcome,
Black would require a "robust" likelihood.
ii)
Black letter law- true threats are not protected by the First Amendment; that's why blackmail is not protected
speech.
iii) Provocation- when can a person be punished for saying things?
(1) Schneider v. State- held that 1st Amendment does not generally prohibit government from regulating public
streets with one important exception, BUT- invalidated anti-littering ordinance designed to stop Jehovah's
Witnesses from distributing literature
(2) Cantwell v. CT (1940) arguably the first important First Amendment case after Carolene Products. Members of
the Witnesses were seeking donations, also playing anti-Catholic records for people. One man threatened to
kick Cantwell's ass. Cantwell's convicted of 1) soliciting money for religious purposes without a permit 2)
common law breach of the peace
(a) Both convictions overturned
(b) Statute requiring permit was prior restraint of free exercise of religion; they believe their religion requires
them to go out and collect $$, so prior restraint is unconstitutional (???)
(i) Prior restraint usually applies to speech
(c) Common law breach of peace(i) Weren't the Cantwells just asking for an ass-kicking?
(ii) What's at stake is the right of people to at least try to convince others of the rightness/wrongness of
deeply held religious beliefs- marketplace of ideas
(3) Is Cantwell a free speech case?
(a) Free speech formulations- Clear and Present Danger
(b) Roberts treated speech and religion as co-equal liberties
(c) Two weeks after Cantwell, Court handed down Gobitus, which affirmed a mandatory Pledge of Allegiance;
more or less reversed in West Virginia v. Barnette
(d) involved prior restraint
(e) Laid groundwork for later free speech jurisprudence
(i) CPD. Fighting Words, preferred freedoms doctrine, bifurcated review project, time/place/manner
restrictions, home as bastion of privacy against unwanted speech,
(ii) Most
Fighting Words
i)
Why would "fighting words" be unprotected?
(1) Intended to inflict harm, not communicate ideas, and therefore not really "speech" at all
(2) Likely to provoke the average person to retaliation, and thereby likely to cause a breach of the peace
(3) Fighting words should be unprotected because they are "no essential part of any exposition of ideas"
ii)
What constitutes fighting words?
iii)
Chaplinski v. New Hampshire (1942). Essentially a breach of peace case. Chaplinski was distributing leaflets, city
marshal warned him that the crowd was getting restless, Chaplinski kept ranting, called the marshal a "fascist and a
god-damned racketeer". Court affirmed his conviction
(1) Justice Murphy's opinion categorically excluded from First Amendment protections "the lewd, the profane, the
libelous, and fighting words"
(2) Which, by their very utterance tend to inflict injuray or an immediate breach of the peace
(3) Have low social value
(a) Not an essential part of any exposition of ideas (marketplace theory doesn’t apply)
(b) Not reasoned debate or dialogue
(4) Statute in question was extremely broad: "no person shall address any offensive, derisive, or annoying word to
any other person who is lawfully in the street or any other public place"
(a) ANYTHING can be annoying or possibly inspire someone to violence
(b) Nearly identical statute was invalidated as overbroad 30 years later in Gooding v. Wilson
(c) Nonetheless, the Court characterized it as "limited in scope"
(5) Court restricted itself to facial review of the statute
iv) Terminiello v. Chicago (1942) Terminiello was convicted of disorderly conduct; called listeners "slimy scum",
"snakes", and "bedbugs". Court ruled that jury instructions/statute was invalid- "A function of free speech under our
system of government is to invite dispure"
(1) Stands for idea that speech cannot be restricted because the idea expressed offends the audience
v)
Feiner v. New York (1951) disorderly conduct conviction. Called Truman a bum, the American Legion "gestapo".
(1) Court affirmed- incitement to riot; police not powerless to protect from harm of riots
(2) Dissent- Hugo Black
(a) Looks to imminence of actual riot- CPD?
(b) If, in the name of preserving order, the police can interfere with a lawful public speaker, they must first
make all reasonable efforts to protect him"- disavowal of heckler's veto
(c) "I understand people in authoritarian contries must obey arbitrary orders. I had hoped there was no such
duty in the United States."
vi) Street v, New York (1969). Street, a black man, said "we don’t need no damn flag." NY argued he could be
prosecuted because listeners might retaliate. Court ruled "cannot say his remarks are so inflammatory as to come
within that small calls of fighting words"
vii) Cohen v. California (1971) "Fuck the draft" on a jacket, in court. Court ruled fighting words didn’t apply, as it was
"clearly not directed to the person of the hearer."
viii) Gooding v. Wilson (1972) "You white son of a bitch, I'll kill you". Convicted under a statute prohibiting use of
language likely to cause a breach of peace. Court rejected as overbroad, because GA courts had repeatedly
interpreted it as reaching clearly protected expression."- Gooding's speech not protected, but the law still failed
ix) Rosenfeld v. New Jersey / Brown v. Oklahoma (1972) use of "motherfucker", convictions under state law banning
profanity in public. Both reversed in light of Gooding. Rehnquist dissented under some Wild West bullshit theory
x)
Texas v. Johnson (1989) Johnson convicted for flag-burning, reveresed- "no reasonable onlooker wouls have
regarded the defendants expression of dissatisfaction as a direct personal insult or an invitation to exchange
fisticuffs."
xi) Skokie- Nazi Party wanted to march in a heavily jewish suburb of Chicago.
(1) City argued for a heckler's veto- if they march, there will be violence (by people opposing them)
III) Disclosure of confidential, secret, or private information
a)
Landmark Communications v. Virginia (1978)(1978)- Newspaper reported that the VA judicial Inquiry and Review
Commission was contemplating investigating a particular judge; convicted of violating a statute prohibiting disclosure of
information pertaining to confidential matters pending before the commission. Court found the statute unconstitutional
i)
Held that the publication VA sought to punish was "near the heart of the First Amendment"; VA's interests were
insufficient to justify the infringements on free speech
ii)
Even legitimate state interests may be insufficient to infringe on speech
iii) "possibility that other measures will serve the State's interests must be weighed"
(1) Much of the risk can be dealt with via careful INTERNAL procedures- not let the info leak in the first place
iv) Questioned relevance of CPD standard
v)
Brandeis's "counterspeech" argument loses force when dealing with private/confidential information
b)
Nebraska Press Ass/n v. Stuart (1976) NE trial judge issued gag order preventing publication/broadcast of any info that
would be "strongly implicative" of accused in an upcoming multiple murder case. Court ruled the order was
unconstitutional.
i)
Recognized Sixth Amendment right to jury trial (state interest); duty of trial judge to protect the rights of the
defendant
ii)
Gag order amounted to prior restraint- most serious and least tolerable infringement on First Amendment rights
(1) Immediate and irreversible sanction
iii) Dennis consideration of whether the "gravity of the evil, discounted by its improbability, justifies each invasion of
free speech as necessary to avoid the danger"; three considerations
(1) Court was right to determine publicity might affect defendants right to a fair trial
(2) But, there were less restrictive alternatives that should have been considered
(3) Because the court's jurisdiction was limited, other media outlets were not subject to the gag order; therefore,
the gag order was likely ineffective
iv) Resort to prior restraints constitutionally impermissible
c)
New York Times Co. v. US / US v. Washington Post (1971)- Pentagon papers cases; government sought injunctions
against the papers, preventing from running the excerpts. Injunctions were denied
i)
Per curiam opinion- any prior restraint carries a heavy presumption against its constitutional validity; the
government had NOT met that burden
ii)
Black's opinion(1) referred to marketplace and self-government theories
(2) Only a free and unrestrained press can effectively expose deception in government
iii) Douglas-
IV)
(1) "these disclosures may have a serious impact, but that is no basis for sanctioning a prior restraint on the press"
(2) Secrecy in government us fundamentally antidemocratic
iv) Brennan(1) first Amendment tolerates absolutely no prior judicial restraints predicated upon surmise or conjecture that
untoward consequences may result." (reference to bad tendency, rather than CPD, test?)
(2) "No one would question but that a government might prevent actual obstruction to its recruting service, or the
publication of the sailing dates of ships, or the number and location of troops." (Near) imminence, clear- CPD?
(3) Government established no prima facie case of harm
v)
Stewart- somewhat deferential to government
(1) Executive has pressed its power vfery far, with little checking from legislative or judicial branches
(2) Refers to self-government and marketplace of ideas theories
(3) "The responsibility must be where the power is" - it's up to the executive to keep the secrets, not to the
judiciary to clean up after them
(4) "cannot say that disclosure will result in direct, immediate, and irreparable harm to the Nation or its people"
(CPD reference?)
vi) White- only concurs based on resistance to prior restraint
(1) Entertains possibility of post-publication prosecution
(2) Congress did NOT authorize injunctive relief, but it allowed for criminal prosecution
vii) Marshall- Ultimate issue is whether Court or Congress has the power to make the law- Congress didn’t allow for
injunctive relief, so we won’t give it
viii) Burger-DISSENT- first Amendment isn’t an absolute
(1) Times had unauthorized possession for months; no need for speed NOW
(2) Essentially, Burger wanted to punt
ix) Harlan- DISSENT(1) Some deference to government's claim of
(2) Judiciary may not properly go beyond the two inquires of 1)disclosure would irreparably damage national
security, or 2) make sure subject matter does lie properly within the Executive Branch's foreign policy authority
(3) Scope of judicial review must be extremely narrow
x)
Blackmun(1) First Amendment is only ONE part of the Constitution
(2) Dsiclosure likely to result in great harm to the nation
d)
Should disclosure of historical information ever be prevented? Recal problem of "true cry of fire"
e)
The Progressive Controversy (1979) the Progressive magazine put together a how-to of how to make an H-Bomb, from
entirely non-classified sources
i)
Could have sped up another nations H-Bomb program
ii)
Court granted an injunction- could find no plausible reason why the public needs to know the technical details of hbomb construction to carry on an informed debate on the issue"
f)
Haig v. Agee (1981) former CIA agent exposed CIA agents on other nations
i)
Evidence his disclosures resulted in violence against persons and organizations identified
g)
Cox Broadcasting Corp. v. Cohn (1975)reporter discovered and station disclosed the name of a 17 year old rape/murder
victim, contrary to GA law, which made it a misdemeanor to publish/broadcast the anme of a rape victim. Victim's father
claimed his right to privacy had been violated. Victim's name was discovered through public records. GA Supreme Court
found "no public interest" in the name of the victim that would rise to level of First Amendment protection; SCOTUS
reversed and held that Cox was not liable
i)
Opinion accepted the "zone of privacy", without determining its boundaries
ii)
Plaintiff claims right to be free from unwanted publicity about his private affairs, which, although wholly true, would
be offensive to a person of ordinary sensibilities."- fails
iii) "Interests in privacy fade when the information involved already appears on the public record." "If there are privacy
interests to be protected in judicial proceedings, the States must respond by means which avoid public
documentation or other exposure of private information"… "by placing the information in the public domain on
official court records, the State must be presumed to have concluded that the public interest was thereby being
served."
h) Arguments for/against privacy:
i)
The harm of disclosure of private information is not mitigated by counterspeech
ii)
Zimmerman- gossip contributes to the marketplace of ideas, because talk of public figures private lives serves to
enforce/undermine social norms
iii) If what is revealed was concealed by the individual in order to misrepresent himself, no real argument against
disclosure
i)
Unlawfully obtained information?
Overbreadth, Vagueness, and prior restraint
a)
Prior restraint- assuming that speech CAN be regulated, what tools are available? The classic prior restraint was the
English licensing system
i)
Why is prior so special as to be almost always unconstitutional?
ii)
Why is it worse to impose prior restraint than subsequent punishment?
iii) Lovell v. Griffin (1938) GA city had an ordinance against distribution of any literature. Lovell, a Jehovah's Witness,
was convicted under the ordinance
(1) Court (Hughes writing) held the ordinance unconstitutional on its face
(2) Lack of standards allowed the city to grant/deny licenses arbitrarily
(3) Not so much that the Witnesses had the right to distribute, necessarily, but the city had no right to deny them
"First Amendment Due Process"
iv) Other standardless licensing issues(1) "rule against standardless licensing flushes out bad motive by establishing a safeguard agaionst administrative
action based on the content of expression"
(2) Licensing of expressive acts that are not themselves protected by the First Amendment:
(a) Anything can be applied in a discriminatory manner
v)
Objections to licensing:
(1)
(2)
(3)
b)
V)
System of licensing brings increased proportion of machinery of communication under the government's control
Banned communication never reaches the marketplace of ideas at all
Subsequent punishment forces longer and harder thought on the part of the government official making the
decisions
(4) Subsequent punishment, through criminal prosecution, carries greater procedural protection than prior restraint
(5) Little or no opportunity for public appraisal of the machinery of prior restraint
(6) The function of the censor is to censor- they HAVE to find things to censor to be doing their jobs
(7) Penal proceedings in subsequent punishment simpler, usually- was the communication made without prior
approval. Less room to question whether the material SHOULD have been restrained
vi) Near v. Minnesota (1931) MN statute allowed for public nuisance of "malicious, etc. newspapers, etc."; allowed for
the defense that "the truth was published with good motives and for justifiable ends". Paper ran stories highly
critical of Chief of Police; was enjoined from publishing any "scandalous/defamatory newspaper" (essentially, they
could only publish that which was both true and nice), SCOTUS reversed
(1) Purpose was suppression of the offending periodical- the essence of censorship
(2) Famous line: "No on would question but that a government might prevent actual obstruction to its recruiting
service or the publication of the sailing dates of transports or the number and locations of troops…"-- CPD
standard?
(3) False statements have remedy in libel laws (well, not really), not prior restraint
(4) Otherwise, would allow congress to make publishers come and prove the truth of their statements BEFORE
publication (chilling effect)
(5) Butler dissent- existing libel laws insufficient
vii) Arguments for/against
(1) Injunctions are for specific individuals, so unlikely to have a broad chilling effect
(2) Injunctions issued by judges, not censors whose business it is to censor
(3) Injunctions more likely than criminal statutes to be obeyed- specific; someone is already watching them to
make sure they're being complied with
(4) Collateral bar rule- injunctions must be obeyed; contempt for violation of an injunction cannot be defended byt
arguing the injunction shouldn’t have been granted; even if the injunction IS invalid, a person is still liable if
they don’t comply
(5) Prior restraint is necessary, because post-publication civil penalties require the plaintiff have the resources to
fight the lawsuit
Overbreadth
i)
Overbreadth generally- when a law can be applied against protected speech as well as unprotected speech; fighting
words is a substantive doctrine, overbreadth is procedural
(1) different from the "as applied" standard; based on potential/future applications as opposed to past applications
(2) Acts as "third party standing" and allows parties to escape standing requirement
(3) Pros(a) Allows invalidation of unconstitutional statutes without allowing them time to take effect and chill speech
(cases or controversies?)
(b) Allows determination of questions not on the record
(4) Cons
(a) Might frustrate legitimate state interests; guilty people such as Wilson go free
(b) Enables the Court to act as a "roving commission" to find and stop unconstitutionality
(c) Invites Court to escape possibly difficult decisions ("should we get rid of the fighting words doctrine?
Dunno, let's use overbreadth and punt")
(d) Gives legislature
ii)
Gooding v. Wilson (1972) antiwar demonstrator at recruiting center, told a cop "I'll choke you you white son of a
bitch", etc. convicted for "abusive language tending to cause a breach of the peace". Court overturned the conviction
(1) Contrary to Chaplinski, although the opinion claimed Chaplinski was still good law; cut back on it without
overruling it
(2) Referrals to other cases where harsh language wasn't actually directed at anyone, this was
(3) Statute was overbroad; covered not only "fighting words", but could be , and was, construed to cover First
Amendment protected speech
(a) Because the statute covered protected speech, it was overbroad and therefore unconstitutional
(b) Wilson's speech WAS fighting words, but the statute was invalid; NH court had limited their statute to
fighting words, but GA courts (here) hadn't
(4) Court demurred from interpreting the law in a manner that would make it OK- "up to GA courts, etc."
(a) Claimed not to have the power to modify the law, so they killed it.
Broadrick v. Oklahoma (1973)
a)
Required the statute be "substantially overbroad", in relation to the statute's plainly legitimate sweep
VI) Vagueness Like overbreadth, not unique to First Amendment law; Requires that "a person of ordinary intelligence" be able to
tell what a law means (related to Chaplinski's rule that "men of common intelligence" know what is/isn't fighting words. Great
overlap between vagueness and overbreadth.
a)
Pros of vagueness doctrine
i)
Vague laws have a greater chilling effect than precise laws
ii)
Invalidating for vagueness theoretically pushes a legislature to be more careful
VII) Statutes which regulate, on their face, the content of speech MUST be crafted with precision
VIII) Content based regulation of "low value" speech
a)
Defamation slander = oral false statements of fat (civil penalties); libel = written false statements of fact (civil);
seditious libel= criminal offense. Defamation is an ancient form of tort law, based on the protection of the value of
reputations; Sedition Act allowed the truth to serve as a defense. In these cases, the plaintiff tends to be the powerful,
NOT the powerless
i)
NYT v. Sullivan (1964) Times ran an ad that had been sponsored by the NAACP and Harry Bellfonte, alleging the
Alabama cops were racist bastards; some of the details were a little off- mistated the # time MLK was arrested.
ii)
iii)
iv)
v)
vi)
Sullivan was the AL Commissioner of Police, alleged that criticism of the police was criticism of him. AL court
awarded him a half million in damages. Court reversed
(1) Times argued that the award would chill news reporting, by requiring a ridiculous standard of fact checking
(2) Brennan's opinion argued that civil liabilities shouldn’t be used to curtail speech
(a) We consider this case against the background that … debate should be uninhibited, robust, and wideopen"
(b) What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the
reach of its civil law of libel"
(c) Noted that the award in this case was 1000 greater than the maximum penalty for criminal libel
(d) Criticism of a public official should not lose its protection merely because it is EFFECTIVE criticism
(3) Constitution requires that a public official should not recover for defamation unless he can prove actual
malice
(4) Requires showing the defendant had knowledge that the statement was false, or a showing of
negligence/reckless disregard regarding the falsity of the claim.
(5) State claims for defamation must allow for a minimum level of protection for defendants
(6) "the Marbury v. Madison of First Amendment (low value) law"
(7) Effects ALL public official defamation cases
What theories underlie the protection of non-malicious FALSE statements of fact?
(1) Fear of chilling effect- false statements inevitably enter the discourse; people fearing liability for statements
they are only 99% sure are true might not make them
(2) Marketplace of ideas- even false statements might make a valuable contribution, because it brings a clearer
perception of the truth, through truth's collision with error"
(3) Elements of self-government theory
Definitional balancing v. ad hoc balancing
(1) Is the "actual malice" standard under or over-protective?
(a) Under(i) Allows harassment suits, expensive to defend
(b) Over(i) Allows a number of "get out of liability free" cards
(ii) Reputation might actually be important; allowing disclosure of false, or true-but-private, statements
might drive/keep people out of public life
(iii) By allowing liability for false statements, people might be more careful before speaking
Gertz v. Welch (1974) defamation of private individuals John Birch Society ran an article, accusing a lawyer of
being a communist- the lawyer was litigating a civil case against a cop who had shot a kid. The lower courts
determined that Gertz was a public figure and applied the NYT standard. SCOTUS reversed
(1) NYT should NOT be the test for suits by private individuals
(2) States may not allow recovery for punitive damages where the liability is not based on a showing of knowledge
of falsity or reckless disregard for the truth
(3) Absent clear evidence of "general fame or notoriety", an individual should not be deemed a public personality
for all aspects of his life; should look to the nature and extent of an individual's participation in a given
controversy giving rise to the defamation (Gertz was not a public figure); "plainly did not thrust himself into the
vortex of this public issue"
(a) No value in false statements, even though they are inevitable. Strict liability would be too strict a standard
(4) Rationale for distinction between public/private individuals- detours from "search for truth" as in NYT
(a) Public figures have thrust themselves into the public eye
(b) Public figures have greater access to channels of effective communication, and therefore the ability to
counter false statements, than do private individuals
(c) Use of NYT test for private individuals would force judges to decide on an ad hoc basis
(5) Two kinds of public figures:
(a) "all purpose" public figures- people of general fame or notoriety, their opinions on most issues are
valued/listened to (Oprah, former President Clinton)
(b) "limited purpose" public figures- public for one discrete issue, involved in a particular controversy; private
individuals for everything else . Oprah's husband, but only for Oprah-related matter; the cop who shot the
kid in this case, for this case; etc.
(6) Problems(a) Definition of "newsworthy" as "what the news reports"
(b) Celebrity as proxy for "what people want to know about", as a proxy for "what is valuable/important for
people to know about
Dun & Bradstreet v. Greenmoss Builders (1985) Dun, a credit reporting agency, sent a false report that Greenmoss
had filed for bankruptcy. Greenmoss brought a defamation action
(1) Issue- Do you use the Gertz balance when the libel involves matters that are NOT of public concern?
(a) Yes; you must balance the state's interest in compensating private individuals against the First
Amendment interest in protecting this type of expression. Here, because this speech is not of public
concern, it is less protected, and the State's interest supports awards of punitive damages, even absent
actual malice
(b) Rationale(i) Same state interest as in Gertz, but the First Amendment interest is weaker; not threat to "open and
robust debate"- credit report was not a matter of public concern
(2) False speech must be a matter of public concern (either the high NYT standard or the lower level of public
concern in Gertz) to be protected
Hustler v. Falwell (1988) Hustler ran a mean cartoon about Falwell. Falwell's libel claim failed, argued for intentional
infliction of emotional harm; tried to distinguish it from "normal" political cartoons because it was so much more
outrageous.
(1) Issue- should the NYT standard apply in "intentional infliction of emotional harm" cases?
(2) First Amendment prohibits such results in the area of public debate about public figures
(3)
b)
The appeal of political cartoons is based on [factors]…often calculated to injure the feelings of the subject of the
portrayal"
(a) [the argued for "outrageousness standard"] runs afoul of our longstanding refusal to allow damages to be
awarded because the speech in question may have an adverse emotional impact on the audience
(4) Value of parody- self-government??
(5) NYT is a serious roadblock in libel suits
Commercial speech
i)
Early commercial speech doctrine
(1) Valentine v. Chrestensen (1942)- court upheld a prohibition on the distribution of any handbill or other
advertising- No protection for "commercial speech": "no such restraint on government as respects purely
commercial advertising"
(a) In Chrestensen, the handbill also had a protest against the city not lettin him moor his submarine; court
ignored the "protest" aspect to maintain the distinction between political speech and advertising as part of
the post Carolene Products regime
(2) Breard v. Alexandria (1951)- expressly upheld Valentine in a case regarding a prohibition on door-to-door
solicitation for magazine subscriptions
ii)
Narrowing of commercial speech doctrine
(1) Bigelow v. Virginia (1975) reversed conviction of a newspaper publisher who ran ads for abortion services (preRoe); distinguished Bigelow from Chrestensen as containing factual material of "clear public interest"
(a) Bigalow- the advertising was for abortion services; court protected as part of protecting abortion (postRoe) case
iii) Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976) VA statute providing pharmacists
were guilty of unprofessional conduct if they published, advertised, etc. for any prescription drugs. SCOTUS held the
statute invalid
(1) First addressed "settled propositions"
(a) Speech doesn’t lose First Amendment protections b/c money is spent to protect it, as in a paid ad (NYT v.
Sullivan)
(b) Speech is protected even though it is carried in a form that is "sold" for profit or may involve a solicitation
to purchase or contribute money
(2) The advertisers interests don’t matter- purely economic
(3) Consumers' interest in the free flow of commercial information may be greater than their interest in more
abstract political debate- the poor/sick/elderly care more about how to get all their immediate physical needs
filled on a limited budget than in political issues; society has strong interest in commercial information
(4) Blackmun shot down the VA arguments in favor of the law with the argument that close regulation of
pharmacists will protect those interest
(5) Allowable limits on commercial speech
(a) Time/place/manner restrictions
(b) False statements
(c) Illegal information
(6) Rehnquist- DISSENT
(a) This decision placed commercial speech on the same plane as the "marketplace of ideas"
(b) May open the door for all kinds of truthful advertising we don’t want
(7) The content of the speech, rather than the speaker's commercial/profit motivation, is determinative
iv) Bolger v. Young Drugs Product Corp. (1983) ruled that various "informational pamphlets" dealing with contraceptive
constituted "commercial speech"
(1) Combination of various factors (the concession it WAS an advertisement, the reference to specific products,
Young's economic motivation), none of which were sufficient to establish it as commercial speech alone,
established the speech as commercial
(2) Fact that the pamphlets were related to issues of public interest did not entitle it to the same protections as
non-commercial speech
v)
Bates v. State bar of Arizona (1977) SCOTUS invalidated a state court rule prohibiting atty advertising
vi) Linmark Ass'n v. Township of Willingboro (1977)Court invalidated an ordinance prohibiting the display of "for sale"
or "sold" signs on all homes but model homes, designed to restrict "panic selling" in a recently integrated
neighborhood- Court held you can’t restrict the dissemination of such information
vii) Carey v. Population Services Intl. (1977) Court invalidated a prohibition against advertising contraceptives, over
objections it would be offensive and embarrassing to those exposed to them and would legitimate the sexual activity
of young people
viii) Central Hudson Gas v Public Service Comm'n of New York (1980) Commission permitted utilities to engage in
institutional and informational advertising, but prohibited utilities to engage in promotional adverstising designed to
stimulate use of electricity. Court ruled the order was invalid
(1) Fourt part analysis:
(a) Must determine if the expression is protected by the First Amendment. For commercial speech, it AT
LEAST must concern lawful activities, and not be misleading
(b) Must ask whether the asserted governmental interest is substantial
(c) If both are answered positively, then must determine whether the regulation "directly advances the
governmental interest"
(d) If the governmental interest can be served as well by a more limited restriction on commercial speech, the
excessive restrictions cannot survive
(2) Court found the ban in question problematic on the fourth factor(a) No exceptions for promotional advertising that might increase use of electricity, but reduce TOTAL energy
use by diverting demand from less efficient sources
(b) Commission had not demonstrated tha its interests cannot be adequately protected by more limited
regulations
(3) Dissent- Rehnquist- NY order is essentially an economic regulation to which the Court should grant complete
deference
ix) Why should advertising/commercial speech be less protected?
(1)
c)
Commercial speech is hardier- Companies have an economic incentive to advertise; not like political speech
where there is a chilling effect
(2) More objectively verifiable as true or false (brand advertsing, performance ratings; image or brand advertising
isn’t verifiable)
x)
Central Hudson Test: Four part analysis; essentially "intermediate scrutiny"
(1) Must determine if the expression is protected by the First Amendment. For commercial speech, it AT LEAST
must concern lawful activities, and not be misleading
(2) Must ask whether the asserted governmental interest is substantial
(3) If both are answered positively, then must determine whether the regulation "directly advances the
governmental interest"
(4) If the governmental interest can be served as well by a more limited restriction on commercial speech, the
excessive restrictions cannot survive
xi) Debate in commercial speech in the 1990s- Stevens/Thomas
(1) Should commercial speech get strict or medium scrutiny protection?
(2) In Fox, the court clarified that the 4th step of the Hudson analysis did NOT require the least restrictive means,
if the least restrictive means was not substantially less restrictive than what was used
xii) Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico (1986)Court upheld a Puerto Rico statute that
legalized certain forms of casino gambling but prohibited any advertising of the casinos directed at residents of PR
(1) Court used the Central Hudson test, which Rehnquist usually hated
(a) Was the speech lawful- yes; true, legal, not misleading
(b) Substantial interest? Yes, unlawful/undesirable effects PR wanted to minimize was the reason why most
states outlawed gambling altogether
(c) Does the challenged restriction advance the interest? Yes, again- reasonably believed restricting
advertising would reduce the demand for gambling
(d) Is there a significantly less restrictive alternative? NO
(i) Court rejected argument that PR's government was obliged to use counter-speech to reduce
gambling, rather than restrictions on advertising
(ii) Court held the PR legislature could decide whether or not such counterspeech would be as effective
as a restriction on advertising
(2) Distinguished from Bigelow and Carey
(a) Those cases involved advertising for something that was constitutionally protected; gambling isn’t
(b) The power to outlaw gambling altogether is the power to regulate it- greater includes the lesser this
prong of the argument has since been rejected and it n longer good law
(3) Brennan dissent: no reason to afford commercial speech less protection than non-commercial speech where, as
here, the speech seeks to provide consumers with accurate factual information; legislature has, by allowing
gambling at all, has determined it is sufficiently "safe", so they shouldn't be able to characterize their interest
in restricting it as "substantial"
xiii) 44 Liquormart, Inc. v. Rhode Island (1996) invalidated an RI statute prohibiting advertising in any manner the price
of alcohol offered for sale
(1) Rationale- when the state prohibits the dissemination of truthful, nonmisleading messages, the court should
apply the same rigorous review the first amendment always demands
(2) Rejected the "greater power includes the lesser power" argument
(3) Concurrence by Thomas- when the state wants to keep legal users of a product or service ignorant in order to
manipulate the market, Hudson analysis is unnecessary, because the interest is per se illegitimate.
xiv) Lorillard Tobacco Co. v. Reilly (2001) invalidated a MA regulation banning advertising tobacco products within 1000
feet of a public playground or school
(1) No reasonable fit between the ends and the means used; would prevent advertising in 87-91% of Boston
(2) While the State's interest in preventing underage tobacco use is substantial, the sale of tobacco products by/to
adults is a legal activity
(3) Bars nearly all truthful information about this legal product to adult consumers (but there's little actual
informational content; Image advertising)
xv) Thompson v. Western States Med. Center (2002) drug compounding is a traditional pharmacy practice, used to
prepare drugs combinations that are not typically available. FDA prohibit manufacture/sale of new drugs without
FDA approval; Modernization Act exempted compounded drugs from the approval process, so long as they were not
advertised. Court struck the regulation down
(1) Gov't failed to demonstrate that the regulations were not more extensive than necessary to serve its interests
Obscenity - 1860si)
History
(1) Anthony Comstock spurred efforts leading to anti-obscenity legislation. Something was obscene if "the
tendency of the matter is to deprave and corrupt those whose minds are open to such immoral influences.
(2) United States v. One Book Called Ulysses (2d Cir. 1934) changed this test- focused on the effect on the
average person of the dominant theme of the work as a whole
(3) Generally assumed until Roth that obscenity was totally unprotected by the First Amendment; Chaplinski had
included obscenity in the list of unprotected utterances.
(4) Three main questions the Court has struggled with:
(a) Is obscenity "low value speech"?
(b) What IS obscenity?
(c) What interests justify the suppression of obscenity?
ii)
Roth v. United States; Albert v. California (1957) Roth was convicted under a statute banning the mailing obscene
material; Alberts was convicted for violating a CA statute against writing, printing, or selling any obscene writing.
(1) Holding:
(a) Obscenity is not within the area of constitutionally protected speech or press
(b) Obscene material may be suppressed without proof that it will create a clear and present danger of
antisocial conduct
(c) The proper test for obscenity(i) whether the average person,
(ii) Applying contemporary community standards, would find that
(iii) The dominant theme of the materials appeals to the prurient interest
(2) Rationale: "Implicit in the history of the First Amendment is the rejection of obscenity as utterly without
redeeming social importance."
(a) Later, the Court expressly refused to adopt the standard that something must be utterly without social
importance to be obscene
iii) Theoretical foundations for excluding obscenity from protections of First Amendment
(1) Low First Amendment value- adds nothing to debate
(a) Court has generally assumed non-obscene literature to be protected- "what is one man's amusement
teaches another's doctrine"
(2) Argument that pornography is essentially a physical, rather than a mental stimulus… hardcore pornography IS
sex, not speech"- Schauer
(3) Obscenity is of such slight value as a step in the search for truth that the gov. interest in prohibiting it far
outweighs its value
(a) No reason to believe that the decision to view or not to view porn is not as fundamental to this selfmastery as the freedom to decide upon any other communicative contents."
(4) Laws against obscenity are not restrictions on ideas, but the means of expression of those ideas
(a) "to the extent that obscenity is associated with a particular ideological message… it is especially
problematic, for it alters one's tastes and preferernces"
(b) Doesn’t the very concept of obscenity not imply an inherent value judgment re: tastes and preferences
iv) Interests served in regulation of obscenity
(1) State may suppress obscenity it may cause violent anti-social conduct
(a) No real causal connection
(b) Lots of the researchers whose work the Meese commission relied on insisted that the studies did not
support the conclusions the Commission reached
(2) State may suppress obscenity because it "corrupts character", impairs mental health, and has a deleterious
effect on the individual from which the community should protect him
(3) State has an interest in preventing the erosion of moral standards
(4) State may suppress obscenity because it erodes moral standards through an "indirect degradation of values",
and not through conscious, rational persuasion which would be subject to counter-speech
(5) The state may suppress obscenity to prevent the "shock effect" of unwanted exposure to such expression,
because such expression has all the characteristics of a physical assault"
(6) The State may suppress the distribution of obscenity because of its effect on minors
v)
Developments between 1957 (Roth) and 1973
(1) Breakdown in consensus on definition of obscenity. By Miller, there were multiple standards:
(a) Clark and White adhered to Roth: whether the average person, applying contemporary community
standards, would find that the dominant theme of the material appeals to the prurient interest."
(b) Black and Douglas maintained that the government was wholly powerless to regulate sexually oriented
material on the grounds of obscenity
(c) Harlan maintained that the federal government could only regulate "hardcore" porn
(d) Stewart: "I know it when I see it."
(e) Brennan, Warren, and Fortas had a three part test (parts 2 and 3 added to Roth):
(i) The dominant theme of the material, as a whole, must appeal to a prurient interest in sex
(ii) It must affront community standards relating to the description or representation of sexual matters
(iii) It must be utterly without redeeming social value
(2) Definition of obscenity- "obscene for minors"
(a) Butler v. Michigan (1957) the state may not "reduce the adult population of Michigan to reading only what
is fir for children"
(b) Ginsberg v. NY (1968) dealt with the distribution of obscenity to children
(i) Power of the state to control the conduct of children is greater than the power to control the conduct
of adults
(ii) States have an independent interest in the well being of youth
(iii) Parents are entitled to laws which support and reinforce their ability to raise their children as they
see fit
(3) Redrup for a few years, the Court punted- when a majority of the members, using their own preferred tests,
deemed the material to be non-obscene, they reversed the conviction per curiam
(4) Stanley v. Georgia (1969) dealt with the possession of porn, not its distribution (distinguished from Roth on
that basis) "Also fundamental is the right to be free, except in very limited circumstances, from unwanted
intrusions into one's privacy"
(a) Reidel v. US (1973) rejected the extension of the "right to possess" to the allegedly concurrent right to
deliver and sell
vi) Miller v. California (1973) Miller was convicted of mass-mailing sexually-explicit brochures, unsolicited, through the
mail.
(1) Reaffirmed Roth's holding that obscene material isn’t protected. States can regulate obscenity without showing
it is utterly without redeeming social value; and what is obscene is determined by applying contemporary
community standards; hard core pron is a far cry from a robust debate, etc.
(2) Changed the third prong of the Brennan/Warren/Fortas test to "lacks serious literary, artistic, political, or
scientific value"
(3) While the protections of the First Amendment do not vary from community to community, it does not follow
that there should be a single, national standard as to what constitutes obscenity- the people of NY don’t need
to be held the same standards as the people of mississippi, etc., or vice versa
vii) Paris Adult Theatre I v. Slaton (1973) - standard for suppression of obscenity. Theatre prosecuted for showing of
obscene material; trial court found the material obscene, but dismissed the complaint because the showings were
permissible, due to the precautions preventing minors from seeing the film. GA Supreme Court reversed, SCOTUS
vacated and remanded for further consideration in light of Miller.
(1)
d)
Distinguishable from Miller in that, in that case, the brochures were being sent to non-consenting parties; here,
the patrons expressly consented
(2) "there are legitimate state interests at stake in stemming the tide of commercialized obscenity"
(3) Rationale:
(a) States have an interest in the quality of life, tone of commerce in city centers, and public safety; Argued
for deference to GA legislature
(i) "We categorically disapprove the theory that obscene, pornographic films acquire constitutional
immunity … simply because they are exhibited for consenting adults only"
(b) "if we accept that good books [do good moral/intellectual things], shouldn't states be able to act on the
corollary assumption that obscenity tends to corrupt, and lead to anti-social [and therefore ban it]?"
shitty analogy
(c) Rejects argument that GA is trying to control thoughts and fantasies
(i) Probably more akin to a time/place/manner restriction
(ii) However, there was an overall restriction of the supply of a "stream of an idea"; marketplace theory
falls down here
(d) "For us to say that our Constitution incorporates the proposition that conduct involving consenting adults
only is always beyond regulation is a step we are unable to take"
(i) See Hardwick and its parade of horribles- duels, self mutilation, etc.. Except duels are CONDUCT
(4) Brennan's dissent:
(a) vagueness of obscenity standard leads to: A lack of fair notice; a chilling effect on protected expression;
severe stress on the judicial machinery
(b) Objected to the new test for obscenity, because "Roth held that certain expression is obscene… precisely
because it lacks even the slightest redeeming social value."
viii) Miller and Paris Theatre still represent the settled state of the law; as of now, local standards are applied to the
internet
ix) New York v. Ferber (1982) CHILD PORN. Ferber was arrested for selling films depicting young boys masturbating.
The films were determined not to be obscene, but he was convicted under a statute banning any person from
producing, promoting, directing, etc. any material depicting a sexual performance by a child under sixteen.
(1) Court used a categorical balancing test, looking at the entire universe of sexually explicit performance by
children
(a) State interests very high:
(i) Safeguarding physical well being- use of children in porn does them harm
(ii) Child porn intrinsically related to sexual abuse
(iii) Advertising and selling of child porn provides an economic motive for production of such porn
(iv) Value of permitting it is very modest, if not de minimis
(v) Recognizing child porn is unprotected is consistent with other First Amendment decisions
(2) Banning possession is an effective means of stopping production
(3) The harm at issue is a creation harm, not a consumption harm (want to "dry up the market" for this stuff)
Same argument is rejected in the context of adult obscenity
x)
Ashcroft v. Free Speech Coalition (2002) "virtual child porn" case. Statute outlawed ANY depiction of sexual activity
by children, whether real children, computer created, or adult actors who appear to be underage; INVALIDATED
(1) Court opinion acknowledged there might be some value to depictions of underage sex- Romeo & Juliet;
American Beauty; etc.
(2) In the virtual area, the production harms are non-existent: weakened governmental interest
(3) Rejects the argument that "protected speech may be banned as a means to ban unprotected speech"
xi) Two contemporary issues:
(1) "Google issue"- DOJ subpoenaed Google for a list of seach terms, to figure out how people are finding child
porn. Google refused it
(2) 18 USC 2257- requires porn distributors to keep records of ages of porn performers, aliases used, etc.
(a) Imposition of the record keeping requirement may make it too onerous, so people are driven out of the
business. At what point does over-regulation become unconstitutional, where an outright ban would be
unconstitutional?
(b) To what degree is child porn being used as a wedge, or pretext, to go after adult obscenity?
Lewd/Profane/Indecent speech
i)
Back to Chaplinksi's list of "low value speech". Indecent speech is offesnive to readers/listeners; can be regulated
merely because of its offensiveness- "which by their very utterance cause injury". What are the costs for which it
can be regulated? What state interests are there?
ii)
Cohen v. California (1971) Cohen protested the draft by wearing a jacket on which he had written "Fuck the Draft",
in a CA courthouse. Arrested for "maliciously and willfully disturbing the peace", although he was actually being
fairly quiet and well behaved. Court reversed his conviction
(1) His speech was restricted because of the words he used, rather than the content.
(a) No libel- no untrue statements of fact
(b) No fighting words- not directed at anyone
(c) Not obscene- no sexual content. Further narrowed obscenity to "arousing" sexual speech
(d) Not a hostile audience case
(e) No captive audience/invasion of privacy- people free to avert their eyes
(2) Cohen's use of "fuck" was emphatic and added emotional content; "one man's vulgarity is another man's lyric"
(a) Clearly political speech
(b) Form taken is irrelevant
(c) Issue of definitional problems- can't leave it to the state to determine what is or isn’t offensive
(3) Possible state interests?
(a) Might cause violent reactions? Not enough of a threat
(b) Protecting sensibilities of others in the courthouse: might be a legitimate interest, but not so much as to
overcome the First Amendment
iii) Lehman v. City of Shaker Heights (1974). Plurality opinon upheld a city policy allowing commercial advertising in the
interior of city buses, but not more explicitly political or generally controversial ads- "captive audience"
iv)
v)
vi)
vii)
viii)
ix)
x)
xi)
xii)
xiii)
Erzoznik v. Jacksonville (1975) Jacksonville ordinance prohibited showing any movies displaying breasts, buttocks,
or human pubic areas, if such movie is visible from any street or public place. Erzoznik ran a drive-in. City conceded
that the movies in question did not rise to the level of obscenity. Court invalidated ordinance
(1) When government undertakes selectively to shield the public from some kinds of speech pn the grounds that
they are more offensive than others, the First Amendment strictly limits its power.
(a) Danger of selective enforcement/government manipulation
(b) Government might use nudity, etc., as a pretext to regulate other ideas
(2) City argued that it was necessary to protect children
(a) "clearly, all nudity cannot be deemed obscene even as to minors"
(b) Both overbroad (not all nudity does the harm) and underinclusive (no restriction for violence)
(c) Level of public discourse shouldn't be set by what's suitable for children
(3) Argument based on traffic safety met the same objections
(4) "limited privacy interest of people on the street cannot justify this censorship of otherwise protected speech on
the basis of its content"
FCC v. Pacifica (1978)- NYC radio station played Carlin's "7 Dirty Words" on a weekday at 2PM. A man whose son
heard the show. Pacifica argued that they had broadcast a warning before the monologue. FCC registered the
complaint, put it in the "permanent record". Court ratified the FCC's action, under two rationales:
(1) Part IV B of the opinion (not majority, and therefore not law)- this is indecent speech, and indecent speech is of
less than full value (inconsistent with Cohen)
(a) The content of Carlin's monologue was protected, but not the words he used
(b) Powell and Blackmun expressly departed from this opinion; focused on the context aspect
(2) Part IV C (majority opinion)
(a) Not a categorical balancing; the costs and benefits vary according to time/place/manner
(b) Ad hoc balancing - specifically, broadcasting THIS Carlin bit, at 2PM, when children might be listening
(similar ad hoc balancing like in Abrams - "this particular forgotten leaflet by a foolish man…")
(i) Low value speech
(ii) Particular accessibility of broadcasrt media to children, even illiterate children
(iii) People might not hear the warning if they tune in part way
(iv) "aversion of eyes"- the words themselves do damages, and it's too late to run from the assault once
the first punch lands.
(v) Privacy of the home doesn't apply quite so much in the car
(vi) Overall nuisance rationale- "a good thing in a bad place"
(vii) Time of day
Issues raised by Pacifica
(1) Is it really low value speech?
(a) Argument is that Carlin was engaged in social satire, not "low value speech". Choice of words is entirely,
open to interpretations that are either obscene or innocuous. Standards of polite discourse are arbitrary,
hypocritical, and deserve to be mocked
(2) Response:
(a) No need for a broadcast; people can go to nightclubs or buy the record. But where will people get their
first exposure?
(b) No need to use "dirty words" to make the point. This argument is straight up ridiculous, and suts against
Cohen.
(c) Carlin has no more a right to protest the norms of social discourse than pornographers have the right to
protest obscenity laws by making porn (analogy fails, obscenity is entirely unprotected whereas indecent
speech is at least partly protected)
Sable Communications, Inc. v. FCC (1989) phone sex case. Court distinguished Pacifica
(1) Telephone is different from radio, you have to take an affirmative step, give credit card #
(2) "the invalid effect of limiting the content of adult telephone conversations to that which is suitable for children
to hear"
(3) White recognized the interest in "adult discourse"; yet again, adults shouldn’t be held to children's standards
(4) "what about the children?"
Denver Area Educational Telecom Consortium v. FCC (1996) part of a statute required an affirmative step by
consumers before they could access adult content.
(1) Court ruled it overbroad
(a) Risk of disclosure
(b) Kind of embarrassing to have to ask for porn
Reno v. ACLU (1997) Struck down the Communications Decency Act of 1996, which was designed to protect minors
from "indecent" and "patently offensive" internet content
(1) The internet is more like a newspaper than TV or radio, more protected
(2) Like a telephone (Sable), requires affirmative steps to reach the content
(3) Can't keep discourse at the level appropriate for children, even if there is no less restrictive means or
protecting children
ACLU v. Ashcroft (2004) Court again struck down regulation of internet; ruling that filtering technology was more
effective and less restrictive
Red Lion Broadcasting (1969) Because there is a limited TV/radio spectrum, only so many different opportunities for
speech, therefore, the "most valued speech" gets preference
US v. Playboy Enterprises (2000). Case involved channel blocking; Section 205 of the 1996 Communications Act
required cable operators to either fully block channels with primarily seual content, or limit the broadcast to set
hours. Court applied strict scrutiny
(1) Statute was overbroad
(2) There was a chilling effect
(3) Not narrowly tailored- cable channels could be blocked on a house-by-house (opt-out) basis
ZONING AND INDECENT SPEECH- concerns with "secondary effects"
e)
xiv) Young v. American Mini-Theatres (1976) Detroit ordinance required that adult theatres be dispersed; "in the opinion
of urban planners and real estate experts, grouping of such businesses tended to attract and undesirable
quality/quantity of transients. SCOTUS upheld the ordinance.
(1) Indecent content had no political/artistic/etc. value
(2) "it is manifest that society's interest in protecting this type of expression is of a wholly different, and lesser,
magnitude than the interest in untrammeled political debate that inspired Voltaire's immortal comment."
(a) Few of us would send kids to war for the right to see "specified sexual activitities"
(3) Deference to state- "we conclude that the city's interest in the present and future character of its
neighborhoods adequately supports its classification of motion pictures."
(4) Powell's concurrence dealt with degrees of encroachment
(5) Dissent: "Court rides roughshod over cardinal principles of the First Amendment… which require that time,
place, and manner restrictions that affect protected expression be content neutral except in the limited context
of a captive or juvenile audience"
(a) If the guarantees of the First Amendment were restricted to those that more than "few of us" would take
uo arms to defend, then the right of free expression would be defined and circumscribed by popular
opinion"
xv) City of Renton v. Playtime Theatres (1986) city ordinance prohibited adult theaters within 100 feet of any residential
zone, etc. Court upheld the ordinance
(1) Ordinance not aimed at the content of the film, but the "secondary effects"; it is completely consistent with our
definition of "content neutral" speech regulations as those that are 'justified without regard to the content of
the regulated speech."
(2) Ordinance would be upheld if the city showed it was designed to serve a substantial government interest and
reasonable alternative avenues of communication were left open.
(3) Rejected
(a) Argument that the city had made the decision without sufficient factual basis
(b) argument of under-inclusiveness
(c) Argument that the ordinance did not leave "reasonable alternative avenues of communication."
(4) Dissent: even if content neutral, it should be invalidated because it greatly restricts access to lawful speech
xvi) City of Los Angeles v. Alameda Books (2002) LA ordinance prohibited more than one adult business in one building,
even if they had the same owner. Court upheld the restriction
(1) Met Renton requirements of substntial government interest and reasonable alternative avenues
(2) Kennedy concurrence:
(a) Zoning regulations do not automatically raise the specter of impermissible content discrimination, even if
they are content based, because the zoning context provides a built in legitimate rationale
(b) Intermediate, rather than strict, scrutiny should apply because zoning ordinances like this one may
reduce the costs of secondary effects without substantially reducing speech
(c) Forced relocation of some businesses is just the price to pay
(3) Dissent:
(a) risk applies in the fact that when a law applies selectively only to speech of particualr content, the more
precisely the content is identified, the greater is the opportunity for government censorship
(b) This case left without substantial justification for viewing the restriction as content-neutral
xvii) Nude Dancing:
(1) Schad v. Borough of Mt. Ephraim (1981) zoning ordinance prohibited all live entertainment; applied to
strippers. Court invalidated as overbroad; at least SOME live entertainment is definitely protected
(2) California v. LaRue (1972) Court upheld as "reasonable" a regulation prohibiting nude dancing in
establishments licensed to sell liquor, because of administrative findings that there was a correlation between
booze and rape/prostitution/unlawful public acts of sexuality
(3) Barnes v. Glen Theatre, Inc. (1991) In response to an Indiana statute against "any person appearing in a state
of nudity", Court ruled that nude dancing is "expressive conduct within the outer limits of the First
Amendment"; however, also concluded that a requirement dancers wear "pasties and a G-string" did not
violate First Amendment, as the nudity restriction was not directed ar nude dancing, and thus had only an
"incidental effect" on constitutionally protected activity.
Hate speech
i)
General
(1) What is hate speech?
(2) Arguments for and against its protection
(a) against
(i) Words that by their very utterance inflict injury
(ii) Little/no contribution to the marketplace of ideas
(iii) Arguably handicaps the exchange of ideas
1.
Saying -_____ about group X makes it less likely they will participate in the general debate
(iv) Regulation of hate speech is justified by the governmental interest in protecting equal rights and due
process (14th Amendment Section 5)
(v) Some forms of hate speech (burning a cross on someone's lawn, painting a swastika on a jewish
family's home) have elements of a true threat
(b) For
(i) Government cannot regulate the marketplace of ideas; the assumed preferability of tolerance, etc.,
cannot be imposed
(ii) This speech IS on a matter of public concern; can't handicap the full spectrum of ideas
(iii) Arguments against hate speech are the same as have ALWAYS been used to justify restrictions on
speech
(iv) Non-protection of hate speech turns the First Amendment on its head- First Amendment generally
protects individuals from the dominant group; hate speech doctrine protects groups from individuals
ii)
Beauharnais v. Illinois (1952) Beauharnais was leader of a white-supremacy group, distributed a racist leaflet calling
for whites to resist the "invasion" of Chicago by negroes. Convicted under an IL statue prohibiting portrayals of
"depravity, unchastity or lack of virtue of a class of citizen… which exposes the class of citizen… to contempt,
derision, or obloquy or which is productive of breach of the peace or riots." Trial judge refused to instruct jury that
the leaflet was likely to create a clear and present danger. Essentially a group libel statute. Frankfurter used
"rational review" to uphold the statute.
(1) IL had a legitimate interest in preventing outbreaks of racial violence, and such utterances had played a part in
such outbreaks
(2) Likened libel of a group to libel of an individual, which is obviously punishable
(a) Statements about individuals can be proved or disproved, not so with "group libels"
(b) Reputation analogized to property interests
(3) Deference to legislature in how to solve a serious problem
(4) Dissent:
(a) rejects idea of "group libel"
(b) Majority's references to Chaplinski inapposite; "fighting words" must be directed at individuals, not groups
(c) Peril of speech must be clear and present
iii) Beauharnais under current doctrine
(1) No rational review basis; did not allow for defense of truth; after NYT v. Sullivan, even false statements allowed
some protections
(2) Beauharnais's speech had an unmistakably political component
(a) Criticized the policies of the city of Chicago
(b) Stating his opinion on matters of public concern
(3) Almost certainly protected under modern libel law
(4) Incitement?
(a) No clear and present danger- no imminence, questionably serious, questionable likelihood
(5) Not obscenity
(6) Not fighting words- not directed at an idividual
(7) Hate speech?
(a) Offensive
(b) Likely to be untrue as to the majority of the group
(c) Likely to corrupt the public discourse
iv) RAV v. City of St. Paul (1992) St. Paul ordinance banned the display of burning crosses, swastikas, or "other
symbols that one knows or has reasons to know arouses anger, alarm, or resentment in others on the basis of race,
color, creed, religion, or gender." RAV burned a cross on a black family's lawn. Court invalidated, Scalia wrote the
opinion
(1) Scalia characterized the statute as being not only content-based, but viewpoint-based, which are worse
(a) Not just outlawing a category, but views within that category
(b) The broader category is unprotected
(i) Outlawing "fighting words" is fine, but outlawing only fighting words one group would use against
another is ainvalid
(c) No analogous penalty for black hate speech against whites
(d) Statute protects "tolerant" speech, but not "intolerant" speech
(2) Aren't all low-value categories content based?
(a) You can draw lines based on content, if the content is why the speech is unprotected anyway: you can
punish "just" the obscenity with no redeeming social value at all (while allowing the some-but-notsignificant social value), but not just the obscenity criticizing the government
(i) But doesn’t the political element remove it from the realm of obscenity anyway? Fuck, I hate Scalia
(3) Other possible responses
(a) Closest category of unprotected speech is fighting words
(b) RAV also liable for arson, trespass, true threat
(4) Scalia: "this statute imposes particular burdens on bigots, and is therefore unfair to bigots…"; Stevens
responds "the burdens are imposed because bigots use particular harsh/damaging weapons, and this statute
levels the playing field"
(5) White's concurrence: this statute is unconstitutional because it is substantially overbroad
(a) But aren’t ALL "fighting words" statutes overbroad?
v)
Wisconsin v. Mitchell (1993) Mitchell, a black man, saw Mississippi Burning, and led a group of black men in beating
a white boy. Mitchell was convicted of aggravated battery; because the jury found he selected his victim on the
bases of race, his sentence was increased based on WI's hate-crime penalty enhancement statute. Court found the
statute was aimed at conduct unprotected by the First Amendment.
(1) Distinguished from RAV:
(a) In RAV, the crime was the expression (cross burning); in Mitchell, the crime was the assault
(i) Motive counted, but criminal law takes motive into account in all kinds of areas
(2) If the crime is defined in terms of expression, we're on the RAV path, but if it’s defined in terms of conduct,
then Mitchell applies, and sentences can be increased
vi) Virginia v. Black (2003) VA statute prohibited burning a cross on the property of another, on a highway, or any
other public area, if the burning is with the intent of intimidation; however, the act of burning the cross was to
be prima facie evidence of such intent. Court invalidated the statute
(1) Prima facie evidence provision failed to take into account many things
(a) Cross burnings are generally meant to intimidate, but not always
(b) Cross burning may be "potent symbols of a shared group identity"
(2) The state could prohibit cross burning with intent to intimidate
(a) Content based discrimination within an already-prohibited category (fighting words/true threat)
(b) Not "viewpoint discrimination", but a "particularly virulent threat"
vii) Campus speech codes/ sexual harassment
(1) Can they allow the ideas but regulate the words used?
(2) Possible interests in regulating speech
(a) Creating an environment conducive to learning
(b) Preventing unrest/tension
(c) 14th Amendment interest in Equal Protection
(3)
IX)
Why is regulation more acceptable in a workplace environment than in a university environment?
(a) Workplaces more hierarchical than universities
(b) Universities are meant for the exchange of ideas, even vile ones
(c) People have to work, also spend much more of their lives in the workplace
(4) Types of harassment
(a) Failure to promote- more akin to conduct, and can be regulated as such
(b) Hostile work environment- more speech based, at least arguably
(c) Speech/conduct line is somewhat arbitrary, ultimately based on ideological concerns
viii) Pornography as hate speech
(1) Arguments made against protecting porn/for categorizing it as hate speech
(a) Porn is insidious
(i) Changes people's minds, attitudes, and beliefs on a subconscious level, based on the imagistic view
of women's bodies
(ii) "Women like to be beaten" not backed by scientific studies, but by movies, stories, pictures
(iii) Like subliminal advertising, doesn’t operate on the normal levels of cognition
(iv) Therefore, more dangerous
(v) COUNTER: traditional counterspeech response- make women-friendly porn
(b) Porn is harmful
(i) Question the premise that porn causes harm to women- "sex-positive feminists"
(ii) Look at through the framework of incitement:
1.
Like the rejected "bad tendency test"
2.
Marketplace of ideas theory doesn’t work herea.
Insidiousness
b.
Multi-billion dollar industry behind it
c.
Has the backdrop of the subordination of women
f)
LOW VALUE SPEECH IN GENERAL
i)
Grand unifying theory of low value speech?
(1) Sunstein's four factor test:
(a) Speech must be far afield from the central concerns of the First Amendment
(b) A distinction must be drawn between cognitive and non-cognitive aspects of the speech
(c) The purpose of the speaker counts- if he's trying to convey a message, the speech is more protected than
if he is not
(d) Various classes of low-value speech reflect a judgment that in certain areas, the government is unlikely to
be acting for impermissible reasons or producing constitutionally troublesome harms.
(2) No judge is going to be wholly divorced from the society in which he lives
ii)
Why does society disfavor sexual speech more than violence
(1) Obscenity/porn/indecency are sexual categories
(2) Nothing similar for violence
Content neutral restrictions
a)
Intro-Government's ability to regulate speech regardless of the content
i)
Imagine three different statutes
(1) Prohibits any one placing a message criticizing the war on a billboard (Viewpoint-based)
(a) Presumptively invalid
(b) Subject to strict or super-strict scrutiny
(c) Recall RAV - even in unprotected categories, viewpoint-based distinctions are invalid
(2) Prohibits any messages concerning the war on a billboard (content based)
(a) Subject to strict scrutiny
(b) Less threatening than viewpoint-based restrictions
(i) Not trying to "control outcomes"
(ii) But limiting discussion on matters of public concern
(iii) Opposition, support, ambivalence all equally limited
(c) Reduces the total amount of speech on a topic/total amount of speech
(i) Cannot be a reason in and of itself to strike it down; content-neutral restrictions also reduce total
speech
(ii) Still likely to have a disparate impact:
1.
Problem - those satisfied with status quo less likely to want to discuss; opposition/minority
viewpoints might be the only ones who want to discuss/debate
2.
Opponents NEED to persuade others, denied the opportunity
(3) Prohibits messages on billboards (Content neutral)
(a) Subject to intermediate scrutiny
(b) ALL speech is restricted- political, commercial
(c) Impact on speech
(i) Reduces total speech
(ii) Also carries risk of disparate impact; certain fora more accessible to to the disenfranchised, etc.
(iii) Much lower risk of subtle viewpoint discrimination than in content-based restrictions
ii)
Usually given intermediate scrutiny
(1) Government has significant interest, balanced against constitutional interests
(a) Court never establishes what basis they use to judge the relative values of interests
(b) Frequently reasoning by analogy to other cases
(c) Making assumptions about what you see when the laws have nothing to do with speech
(i) When the law goes "too far" from what the state normally does, the laws usually get struck down
(ii) Baselines are the stuff of common law- nuisance, trespass, etc.
(iii) Essentially a conservative inquiry- assumes the state has the power to continue doing what it has
done in the past
b)
Handbills, sound trucks, etc.- 1930s and 1940s
i)
Schneider v. State (1939) Court invalidated city ordinance banned distribution of handbills; Schneider arrested
(1) City based it's interest on prevention of litter, etc.
(2) Speaker's interest in speaking is NOT outweighed by the city's interest in preventing litter
(3) Self-government/ marketplace Theories
(4) "Can't regulate leafletting"
ii)
Martin v. City of Struthers (1943) Jehovah's Witnesses went ringing doorbells, etc.; ordinance prevented "ringing
doorbell's for the purpose of distributing handbills, etc."- invalidated
(1) Interests balanced
(a) Private interest of homeowners to hear/not hear, to determine what they hear
(b) Private Interest of Witnesses in being heard
(c) City's interest in prevention of nuisance, crime
(2) Overbroad; ordinance not sufficiently narrow tailored
(a) Homeowners' right to not hear outweighed the Witnesses' right to be heard, but the City cast too wide a
net
(b) Homeowners could have posted "No Soliciting" signs
(c) Showcases the primacy of the home in First Amendment cases
(3) People should be able to enjoy the privacy of their own homes without interruption, but the state cannot issue
blanket bans
(4) Baseline- law of trespass
iii) Kovacs v. Cooper (1949) Soundtrucks- Court upheld statute prohibiting use of soundtrucks on public streets
(1) Interests
(a) City interest - anti-nuisance, but a much stronger interest than the previous two cases
(b) Private interest of speaker
(c) Private interest of homeowners/residents to not be disturbed
(2) Speaker could still get message across; could even use sound trucks, just at a lower decibel level
(3) "freedom of speech does not require legislators to be insensible to claims by citizens to comfort and
convenience"
(a) Contra Cohen ("there is no right to not be offended"), but Cohen didn't involve the hiom
(b) Modern First Amendment theory would reject this theory
(4) Frankfurter characterized it as "aural aggression"; "surely, there is not a constitutional right to force unwilling
people to listen"
iv) Metromedia, Inc. v. San Diego (1981) Court invalidated a city ordinance bannign virtually all outdoor display signs
(1) Brennan, Blackmun, reasoned that the city hadn't properly established its interest in banning the billboards
(a) No empirical evidence presented
(b) "not necessarily apparent that their elimination would have more than a negligible impact on aesthetics"
(c) Before deferring to the city's judgment, a court mu be convinced that the city is seriously and
comprehensively addressing [legitimate interests]"
(2) Stevens dissent:
(a) net effect will be a reduction in communications in San Diego, but that does not in itself render the
ordinance invalid
(b) Community has the right to decide that it's [aesthetic interests] outweigh the countervailing interest in
uninhibited expression by means of words and pictures in public places
(c) Likened to any other zoning regulation
(d) Two separate questions
(i) Is there any reason to believe the regulation is biased in favor of one point of view?
(ii) are the remaining avenues for communication "ample" and not threated with gradually increasing
restraint
v)
City of Ladue v. Gilleo (1994) Court invalidated a city ordinance prohibiting homeowners from displaying signs on
their property
(1) Interest
(a) City's interest- elimination of "clutter"
(b) Speech interest- yard/window signs are easy, cheap, carry distinct message-imprimatur of the speaker
(2) Although there is no viewpoint discrimination, the danger they pose to freedom of speech is readily apparent
(3) Even time/place/manner regulations must allow ample alternative channels
(4) Special status of the home in First Amendment law
vi) Bartnicki v. Vopper (2001) Court ruled that Vopper could not be held liable for broadcast of an illegally obtained
recording of a phone call (invalidated)
(1) Issue: can the government publish publication/broadcast of illegally obtained (but publisher broke no laws
themselves) information?
(2) Governmental interests
(a) Interest in removing incentive for parties to intercept private communications
(b) Interest in minimizing the harm to the person whose privacy has been invaded/conversations recorded
(stronger interest; fear of disclosure might have a "chilling effect")
(3) Speech by a law-abiding possessor of information cannot be suppressed in order to deter conduct by non-lawabiding third parties
vii) Current state of content-neutral restrictions law- Four part test for validity
(1) Regulation must be justified without reference to the content of the speech (must actually be content neutral),
(2) Narrowly tailored to
(3) A significant government interest (greater than "legitimate interest", but not necessarily "compelling"; may be
the same as a "substantial interest"), and still
(4) Leave "ample alternative channels of communication
viii) Exceptions/ special instances
(1) When the law is facially content-neutral, but turns on people's reaction to what the speaker is saying- often
treated as content-based. See Terminiello, Cantwell, and Edwards
(2) Law may be content based on its face, but defended in terms of its secondary effects unrelated to
communicative impact (Renton)
c)
X)
Public forum and speech on public property-the government has no interest in restricting the people from private
individuals' "living room"; what about when it's happening in the government's "living room"? Initially, the government
had the same right to restrict access, almost unequivocally, but now, NO
i)
Commonwealth v. Davis (1897) SJC upheld Boston restriction on use of the Common without a permit; in this case
for preaching
(1) Case comes before the 20th century evolution n First Amendment law, or incorporation of the 1st to the states
by the 14th; indicative of Holmes's pre-Abrams views
(2) Characterized as a use restriction, not a speech restriction
ii)
Hague v. CIO (1939)- municipal ordinance banning meetings in streets or other public places without a permit;
invalidated
(1) Streets and parks have been open to the public since "time out of mind"
(2) Privilege to use is not absolute, but relative, and must be exercised in subordination to the general comfort and
convenience… but it must not, in the guise of regulation, be abridged or denied."
iii) Schneider v. State (1939) Handbill case; city's interest in clean streets insufficient to overcome First Amendment
interests
iv) Ward v. Rock Against Racism (1989) Noise in a public park
(1) City clearly had a substantial interest in protecting its citizens from unwelcome noise
(2) Restriction left open "ample" alternative channels
(3) Time/place/manner restrictions must be narrowly tailored, but not necessarily the least restrictive option
v)
Madsen v. Women's Health Center, Inc. (1994) blocking/demonstrating near an abortion clinic. Appellants
had repeatedly violated injunction barring them from blocking access, harassing doctors and patients at work and at
home.
(1) Court upheld 36' buffer zone: "some deference must be given" to the state's familiarity with the facts
(2) Invalidated restriction on exhibiting "images observable" to patients within the clinic
(a) Proper response is to pull the curtains
vi) Schenck v. Pro-Choice Network of Western New York (1997) blockades of abortion clinics
(1) Upheld "buffer zones" : "the District Court was entitled to conclude that the protestors would continue to do
what they had done before: aggressively follow, then crowd individuals, then refuse to move (and allow them
to enter)… block or impede traffic..etc."
(2) Invalidated "floating buffer zones"
(a) Would prevent protestors from communicating messages from a normal conversational distance
(3) Upheld "cease and desist" order on "sidewalk counsellors"
vii) Adderly v. Florida (1966) Protestors blocking entrance to the jail, arrested
(1) Recreation of Davis v. Commonwealth, but in a prison setting
(2) "the state, no less than a private owner of property, has power to preserve the property under its control for
the use to which it is lawfully dedicated"
viii) Police Department of Chicago v. Mosley (1972) Chicago ordinance allowed picketing regarding a labor dispute, but
not other picketing, near a school.
(1) "central problem is that Chicago's ordinance describes permissible picketing in terms of its subject matter".
Peaceful labor picketing OK, other peaceful picketing not
(2) Reasonable time/place/manner restrictions must be content/viewpoint neutral
ix) Lehman v. City of Shaker Heights (1974) restrictions on ads on mass transit
x)
How does governmental ownership effect its power to regulate the content of speech? The answer seems
to change, based largely on what kind of property it is; while public parks must be open, not all other public
properties need be
(1) In a real sense, the public forum doctrine requires the government to subsidize speech- Richards's "elephant
parade" analogy
(2) If the government sets up a forum, it can close the forum, but can it regulate speech in the forum?
(3) Types pf public areas
(a) Traditional public fora - streets, parks, etc.
(i) Even in a case like Marsh, where the town was literally owned and run, the streets had to be open for
speech
(ii) Cohen was not a public forum case, despite the location being a courthouse
(b) Non-public for a- places the government can regulate, such as military bases, police stations, the
President's bathroom
(c) Limited public fora/ designated public fora: Places the government could close entirely to speech, but
allows to be used for some speech. Public university campuses (especially when some student groups are
allowed to use it, ALL student groups must be allowed)
(i) Good News Club
Symbolic conduct
a)
Basic:
i)
"A constitutional distinction between speech and conduct is specious. Speech is conduct, and actions speak"
ii)
"All behavior is capable of being understood as communication."
iii) How does this affect claims by criminals that their intent was communicative?
b)
United States v. O'Brien O'Brien burned his draft card, in violation of a law against defacing, altering, etc. Court of
Appeals held the relevant Amendment unconstitutional; SCOTUS upheld the statute.
i)
Amendment di not abridge speech on its face; did not differentiate between private and public speech
ii)
Court held the government had a "sufficiently important interest in regulating the non-speech element", an thusly
could justify "incidental infringements" on First Amendment Freedoms
iii) "both the governmental interest and the operation of the 1965 Amendment are limited to the noncommunicative
aspect of O'Brien's conduct"
iv) O'Brien argued Congress's purpose was "to suppress freedom of speech", "We reject this argument because under
settled principles the purpose of Congress… is not a basis for declaring this legislation unconstitutional."
v)
It is entirely a different matter when we are asked to void a statute that is… constitutional on its face"
vi) For/against
(1)
(2)
c)
d)
e)
f)
g)
h)
i)
j)
k)
XI)
"much of the effectiveness of O'Brien's speech derived precisely from the fact that it was illegal"
"As applied to expression, the O'Brien statute had a disparate impact on those who opposed government policy,
for who would destroy a draft card as an expression of support for government policy?"
vii) Test: "we think it clear that a government regulation is sufficiently justified if
(1) It is within the constitutional power of the government
(2) It furthers an important or substantial government interest
(3) If the governmental interest is unrelated to the suppression of free expression, and
(4) If the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the
furtherance of that interest
Tinker v. Des Moines Independent Community School district (1969) Invalidated high school students' suspension for
wearing black armbands worn in opposition to the war in Viet Nam
Schact v. US (1970) Schact participated in an antin-Vietnam skit, convicted under a statute banning the unauthorized
wearing of a military uniform (18 USC 792). Court reversed the conviction
i)
Although the statute was valid on its face, another statute (10 USC 772(f)) authorized wearing a uniform in a
theatrical production, "if the portrayal does not tend to discredit the armed forces."
ii)
The skit qualified as a "theatrical production" under 772(f)
iii) 772(f) left people free to praise the war in Vietnam, but not to criticize it- invalid
Mitchell v. Wisconsin (1992)
Street v. New York (1969)Court ignored the "basic question presented"- "whether the deliberate act of burning a flag in
public as a protest may be punished as a crime."
Smith v. Goguen (1974) MA statute forbade publicly mutilating, trampling upon, defacing, or treating contemptuously an
American flag. Court found it unnecessary to determine whether it was "overbroad", instead invalidated it for
vagueness.
Spence v. Washington (1974) Spence displayed an American flag with a peace symbol on it. Court invalidated the
statute (forbidding flag "misuse")- "It is directly related to expresssion in the context of an activity like that undertaken
by appellant… there was no risk that appellant's acts would mislead viewers into assuming that the government endorsed
his viewpoint"
Texas v. Johnson (1989) Johnson burned a flag as a protest at the GOP convention, convicted under a TX statute; court
overturned
i)
Johnson's flag-burning was conduct sufficiently imbued with elements of communication to implicate the first
amendment
ii)
Government has a freer hand in rgulating conduct than the written or spoken word, but it cannot regulate conduct
because of it's expressive elements
United States v. Eichman (1990) Invalidated the Flag Protection Act of 1989
i)
Although the Act contains no explicit mentionof content based distincitons, "it is nevertheless clear that the
Government's asserted interest is related to the suppression of free expression."
ii)
Precise language of the act confirms the interest in the communicative impact of flag desecration
NUDE DANCING
Litigation, association, and the right not to speak