SURVIVOR: FREE SPEECH ISLAND
1. Incitement of Illegal Activity
Case: In Hess v. Indiana (1973), the Supreme Court held that the statements were not directed to any person or group
of persons and at worst were meant to incite illegal action at some indefinite time in the future.
LEGAL STANDARD: Did the person have an intent to incite or produce imminent, illegal action and was his
speech likely to incite or produce such action?
2. Fighting Words
Case: In Gooding v. Wilson (1972), the Supreme Court held that such statements were not likely to actually incite
violence. (Vietnam protestor told policeman “I’ll choke you to death.”)
LEGAL STANDARD: Was the speech directed at another and likely to provoke a violent response? Fighting
words are not prohibited because of the idea behind it, but the manner in which it is conveyed.
3. Hate Speech
Definition: Hate Speech refers to expressions that targets individuals or groups by reason of their race, ethnicity, sex
or sexual preference.
Case: In R.A.V. v. City of Saint Paul (1992), a teen burned a cross in the backyard of a home of a black family. The
U.S. Supreme Court held that an ordinance is facially unconstitutional if it prohibits otherwise permitted speech solely
on the basis of the subject the speech addresses and if it goes beyond mere content discrimination, to actual viewpoint
discrimination. NOTE: Conduct can be regulate without reference to the content of the speech. (Example: Eminem
can be convicted for gay bashing, but not for singing about it.)
LEGAL STANDARD: Is the speech restricted because of the viewpoint of the subject or is all speech about the
subject prohibited?
4. Commercial Speech
Case: In Lorrillard Tobacco Co. v. Reilly (2001), the Supreme Court held that an ordinance which constitutes a nearly
absolute ban on truthful information to adult consumers is in violation of the First Amendment. (Regulation
prohibiting the outdoor advertising of tobacco products in any location within 1,000 of a school)
LEGAL STANDARD: Commercial speech must concern lawful activity and not be misleading.
5. Secondary Effects
Definition: Secondary Effects are indirect consequences of protected speech which justify regulation of the places
where speech may occur.
Case: In City of Renton v. Playtime Theatres (1986), the U.S. Supreme Court held that zoning ordinances designed to
combat the undesirable secondary effects of such businesses are to be reviewed under the standards applicable to
“content-neutral time, place and manner” regulations. (Zoning ordinance prohibited adult motion picture theaters
within 1,000 feet of any residential zone, church, park or school) Justice Marshall dissented, saying that Renton has not
shown adult movie theaters would necessarily result in undesirable “secondary effects” or that these problems could
not be effectively addressed by less intrusive restrictions.
LEGAL STANDARD: Is the ordinance designed to serve a substantial government interest and does it provide for
reasonable alternative avenues of communication?
6. Time, Place, and Manner Restrictions
Case: In Ward v. Rock Against Racism (1989), the Supreme Court held that even in a public forum the government
may impose reasonable restrictions on time, place, or manner of protected speech.
LEGAL STANDARD: Is the speech regulated because the city disagrees with the content of the speech? (BAD)
And does the regulation serve a significant government interest? (GOOD) And does the regulation leave open
other ways to communicate the message? (GOOD)
7. Defamation
Case: In Hustler Magazine v. Falwell, the U.S. Supreme Court held that a public official cannot recover damages for
the tort of intentional infliction of emotional distress for damage to reputation unless the official can prove that that the
statement was false and that the defendant acted with actual malice or reckless disregard for the truth. Reckless
disregard means that the defendant entertained serious doubts as to the truth of the statement. Making the speaker
automatically liable for telling falsehoods would have a chilling effect on speech.
LEGAL STANDARD: Did the speaker write or speak a false statement that the speaker knew was false and did
the statement cause actual damage to the plaintiff?
LEGAL STANDARD (for defamation of a public figure): Is the plaintiff a public official or running for public
office and did the plaintiff prove by clear and convincing evidence that the defendant’s statement was false and
that the defendant acted with actual malice or with reckless disregard for the truth?
8. Lewd and Obscene: Child Pornography
Case: In Ashcroft v. Free Speech Coalition, the U.S. Supreme Court held that a statute that prohibits depictions of
child pornography that are neither obscene nor actually involve children (i.e. virtual child pornography) are
unconstitutional. To defend against a charge of virtual child pornography, the defendant must prove that people in the
porn were adults or that the image was completely virtual. The mere tendency of speech to encourage unlawful acts is
not sufficient reason for banning it.
LEGAL STANDARD: Is the pornography obscene or does it involve children? Then it can be declared not
constitutionally protected speech.
9. Offensive Speech
Case: In FCC v. Pacifica Foundation (1978), the U.S. Supreme Court held that the FCC was warranted in deciding
that the broadcast was indecent and censoring it. The context of the indecent broadcast is important in deciding
whether it may be censored. Broadcasted speech gets the least amount of protection under the First Amendment
because its expansive presences in peoples’ lives and because it is uniquely accessible to children.
LEGAL STANDARD: Was the speaker on notice that certain types of offensive speech or conduct are prohibited
by law and was the speech done in a forum that’s appropriate for regulation?
10. Public Forum
Case: In Grayned v. Rockford (1972), the U.S. Supreme Court held that the antinoise statute was constitutional
because it was written specifically for the school context and obviously was for the purpose of not disrupting school
while in session. Because the antipicketing ordinance prohibited peaceful demonstrations in public places, it was
unconstitutional.
LEGAL STANDARD: Is the manner of expression incompatible with the normal activity of a particular place at a
particular time?
11. Expressive Conduct
In Tinker v. Des Moines School (1969), the Supreme Court held that the school could not punish students for wearing
black armbands to school in protest of the Vietnam war. The armbands are expressive conduct. Free expression cannot
be barred from school campuses. The armband was a symbolic act and carried no threat of actual or potentially
disrupted conduct, and so is protected speech under the First Amendment.
LEGAL STANDARD: Does the prohibited action involve expressive conduct? (i.e. was an intent to convey a
particularized message present, and was the likelihood great that the message would be understood by those who
viewed it?