RIGHT/ CLASSIFICATION
PURPOSE/STATUTORY FIT
1) FUNDAMENTAL/SUSPECT =
COMPELLING/NECESSARY TO THE
ACCOMPLISHMENT OF
2) INTERMEDIATE = IMPORTANT/SUBSTANTIALLY
RELATED
3) MERE = LEGITIMATE/RATIONALLY RELATED
BASIC FIRST AMENDMENT FOUNDATION:
1) CONGRESS/STATE (14 AMENDMENT) CAN VIOLATE
FIRST AMENDMENT
2) PRIVATE = TORT, NOT FIRST AMENDMENT
VIOLATION
3) MANY CRAZY LAWS AND ORDINANCES IN
EXISTENCE. USSC DOES NOT REPEAL – STILL ON
BOOKS
4) MANY PRACTICES VIOLATING THE FIRST
AMENDMENT AREN’T CHALLENGED (EG PUBLIC
PROFANITY)
BASIC – WHAT IS THE MEANING OF FIRST
AMENDMENT ? ASSUME NO KNOWLEDGE OF CASE
LAW.
1) MUSIC ? RHAPSODY IN THE RAIN BY LOU CHRISTIE
2) PROCREATE, INTERCOURSE YOURSELF
3) GENOCIDE ? HATE SPEECH ?
4) SNOWDEN AND THE HACKIVISTS
5) TRY TO BRIBE JUDGE ?
6) BIG DATA AND ITS PROBLEMS
DEFINE:
OPINION
ADVOCACY
INCITEMENT
CONSPIRACY
CONDUCT
SOLICITATION ON THE SIDEWALK – CAN
GOVERNMENT STOP ?
GOVERNMENT CAPACITIES – HANDOUT FA1.
MANY USSC CASES FOCUS ON THE NEGATIVE –
WHAT IS NOT PROTECTED. LEAVES UNCLEAR
WHAT IS PROTECTED.
FREE SPEECH HISTORY:
1) MODERN DOCTRINE – 1919 BEGINNINGS; LATE
1960’S MODERN RULES - WHY MODERN CONCERN ?
2) WAR (WWII EXCEPTION)
3) COMMON LAW
A. PRIOR RESTRAINT – BAN BEFORE SPEECH –
FOCUS OF MILTON AND BLACKSTONE AT CL
B. SEDITIOUS LIBEL - 886 – CRITICIZE
GOVERNMENT (CRIMINAL AT CL) – ALIEN AND
SEDITION ACTS OF 1798 (887)
THEORIES (PP 888 - 893)
LIBERAL
1) JS MILL – MARKETPLACE OF IDEAS - 889
2) ALEXANDER MEIKLEJOHN – SELF-GOVERNMENT IN
A DEMOCRACY -890 – 891. SEE 4 FUNCTIONS.
3) THOMAS I EMERSON – 891 - 892 - PERSONAL
AUTONOMY
4) FRED SCHAUER – GOVERNMENTAL
INCOMPETENCE
CRITIQUES OF LIBERALS:
1) C. MACKINNON -- HANDOUT
2) DOES TRUTH WIN ? ISIS ?
3) WHY DO LIBERALS WANT ECONOMICS
REGULATED BUT NOT SPEECH ?
4) AUTONOMY – THE END OF ALL TRADITIONAL
VALUES ?
BASIC FA SPECTRUM:
EXPRESSION – HIGHEST PROTECTION
(ABSOLUTE ?)
SYMBOLIC SPEECH - BALANCING
CONDUCT – LEAST PROTECTION (NONE)
OPINION – ADVOCACY – INCITEMENT –
CONSPIRACY (ATTEMPT) - CONDUCT
MODERN PERSPECTIVE:
1. GOVERNMENT CAPACITY - FA 1
2. WHERE DOES SPEECH TAKE PLACE ? OLD
PARADIGM = LEAFLET, PAPER OR SPEECH.
3. CONTENT NEUTRAL =
A. VIEWPOINT – SIDE
B. SUBJECT MATTER – ISSUE
C. SPEAKER IDENTITY - STATUS
1791 – 1919 – EFFECTIVELY NO CASES
1919 – 1964 – NOT MUCH PROTECTION
MODERN FOUNDATION – 5 CASES THAT CHANGED
AMERICA (TWICE – HISTORICAL AND SUBJECT):
1. NY TIMES v SULLIVAN (1964)
2. BRANDENBURG v OHIO (1969)
3. COHEN v CALIFORNIA (1971)
4. MILLER v CALIFORNIA (1973)
5. FCC v PACIFICA (1978)
NYT v SULLIVAN (1964):
1. P 979 – DISLIKE CATEGORIES
2. P 979 - FREE SPEECH THEORY
3. P 979 - 980 - ALIEN AND SEDITION ACT
4. P 980 - FREE CRITICISM OF GOVERNMENT
BRANDENBURG v OHIO (1969):
CRIMINAL SYNDICALISM STATUTE – 931 - 932
1. P 932 – ADVOCACY PROTECTED UNLESS DIRECTED
(INTENDED) TO INCITING/PRODUCING IMMINENT
LAWLESS ACTION AND LIKELY TO
2. FACT SPECIFIC
3. VIDEOTAPE
COHEN v CALIFORNIA (1971):
1. P 950 – STATUTE – DISTURB/OFFENSIVE – DO WE
LIKE STATUTES LIKE THIS ?
2. MEANING OF MESSAGE ? WHY ARE THESE
SOUNDS SO OFFENSIVE ? DOES IMPACT CHANGE IF
INTERCOURSE THE DRAFT; PROCREATE THE DRAFT;
RESIST THE DRAFT.
3. 952 – 953 – FA THEORY. NOT EROTIC – DIFFICULT
FOR WORDS TO BE OBSCENE
4. NEXT CASE – REWRITE THE STATUTE
MILLER v CALIFORNIA (1973):
1. TEST - 1015 - 1016
A. PRURIENT INTEREST AND
B. PATENTLY OFFENSIVE AND
C. LACKS SERIOUS ARTISTIC, ACADEMIC OR LITERARY
VALUE. WHAT IS THE SOURCE OF TEST ?
2. OBSCENITY NEVER PROTECTED – DEFINITION AND ITS
APPLICATION CHANGED DRAMATICALLY. PORNOGRAPHY =
NON-OBSCENE BUT SEXUALLY EXPLICIT (OFFENSIVE ?
VIOLENT ?)
3. OBSCENITY = BAN (LEGITIMATE PURPOSE)
PORNOGRAPHY = REGULATE
FCC v PACIFICA (1978): 1054 - 7 WORDS (PARA 2)
1. WHO WON ? WHAT IS THE HOLDING ? NOT
OBSCENE – NOT UNPROTECTED. OFFENSIVE.
DEPENDS
2. 1055 - EACH MEDIUM UNIQUE AND IT’S OWN LAW
3. RADIO – PERVADES HOME AND ACCESSIBLE TO
MINORS
4. DIFFERENT RESULT IF ANOTHER TIME OR MEDIUM
5. NO ONE ARGUING TOTAL BAN VALID - REGULATE
GOVERNMENT REGULATING ON CONTENT
CONTENT 1 – POLITICAL SPEECH (USUALLY
ILLEGALITY) AND THE CLEAR AND PRESENT DANGER
TEST:
1) ESPIONAGE ACT OF 1917 (P 899):
A. FALSITY WITH INTENT TO INTERFERE
B. WILFULLY CAUSE OR ATTEMPT
INSUBORDINATION, DISLOYALTY, MUTINY OR
REFUSAL OF DUTY
C. WILFULLY OBSTRUCT RECRUITING OR
ENLISTMENT
SCHENCK v UNITED STATES (1919 – 899):
1) 901 - CLEAR AND PRESENT DANGER TEST ACT, TENDENCY AND INTENT.
2) WHAT IS SOURCE OF THE TEST ?
3) NOT ON SUCCESS – ACTUAL AUDIENCE
RESPONSE ?
FROHWERK v UNITED STATES (1919 – 901):
1. NOT ALL SPEECH PROTECTED. CAN’T
COUNSEL MURDER. SCHENCK – CAN BE
CONSIRACY BY WORDS OF PERSUASION.
2. NO SPECIAL EFFORT TO REACH AUDIENCE
BUT COULD BE THE SPARK (902).
DEBS v UNITED STATES (1919 – 902):
1. 902 - IF PART OBSTRUCTS, NOT SAVED BY
OVERALL NON-INCITING
2. 903 - NATURAL TENDENCY/REASONABLY
PROBABLE EFFECT AND SPECIFIC INTENT
3. PRESIDENTIAL CANDIDATE JAILED FOR
SPEECH – SENTENCED TO 10 YEARS. SERVED
ALMOST 2 YEARS.
LETTERS BETWEEN HAND AND HOLMES (909 –
910) HAND POSITION –
1. UNPROTECTED IF FALSE FACT AND SPEAKER
KNEW IT WAS FALSE WHEN UTTERED
2. SPEAKER COUNSELS OR ADVISES IN
LISTENER’S INTEREST OR LISTENER’S DUTY TO
VIOLATE
3. HAND MORE LIBERAL – WANTS MORE
SPEECH PROTECTED. CLOSER TO CONDUCT.
ABRAMS v UNITED STATES (1919 – 903):
1. 904 - EXCITING AND HINDER WWI
HOLMES AND BRANDEIS (DISSENT):
1. 905 - DEFINITION OF INTENT
2. 905 - 906 – IMMINENT, IMMEDIATE.
SURREPTITIOUS AND SILLY. 906 – 907 FAMOUS
QUOTE
3. WHAT HAPPENED TO THE SPARK ?
ACADEMIC DISCUSSION – HIGHEST PROTECTION
(OPINION)
ADVOCACY
INCITEMENT
CONSPIRACY
CONDUCT - LOWEST PROTECTION
BRANDENBURG v OHIO (1969 – 931):
1. 932 - INCITING OR PRODUCING IMMINENT
LAWLESS ACTION AND LIKELY TO PRODUCE
SUCH ACTION
2. LOWER COURT DIDN’T DISTINGUISH
BETWEEN ADVOCACY AND IMMINENCE NEEDED
3. DOUGLAS – LINE BETWEEN IDEA AND ACT
4. IMPORTANCE OF VIDEOTAPE
WATTS v UNITED STATES (1969 – 972)
1. REAL THREAT v POLITICAL HYPERBOLE
2. NY TIMES – ROBUST DEBATE AND CRITICISM
3. AUDIENCE REACTION - LAUGHTER
HESS v INDIANA (1973 – 934)
1. “LATER OR AGAIN” – INDEFINITE
FUTURE TIME – NOT IMMINENT
2. FACT DEPENDENT (NOT
REALISTIC IN EMOTIONAL SETTING)
NAACP v CLAIRBORN HARDWARE (1982 – 934):
1. MERE AVOCACY OF FORCE IS PROTECTED
2. VIOLENCE IN FUTURE (“WILL BE”)
3. SAME RESULT IF GRAND WIZARD (KKK) ?
MODERN TEST (BRANDENBURG):
1. SUBJECTIVE - INTENT – DIRECTED TO INCITE
OR PRODUCE IMMINENT LAWLESS ACTION HESS, CLAIRBORNE
AND
2. OBJECTIVE - LIKELY TO PRODUCE IMMINENT
LAWLESS ACTION - WATTS
QUESTIONS :
1. 935 - ANTI-ABORTION WEBSITES. TRUE THREATS
DIFFERENT ? DISTINGUISH CLAIRBORNE ?
INTIMIDATION PROTECTED ?
2. 2 PEOPLE CAUGHT IN BALTIMORE WITH BOMBS
AND GUNS AND MAGAZINE ON HOW TO MAKE
BOMBS. MAGAZINE ILLEGAL ? 937 – FEDERAL BOMB
INSTRUCTION STATUTE.
3. TERRORISTS WATCH LIST - HOW SOON CAN YOU
ARREST ? BIG DATA USEAGE ? GLORIFICATION OF
TERRORISTS ?
CONTENT 2 – FIGHTING WORDS
CANTWELL v CONNECTICUT (1942 – 943)
1. BREACH OF SPEECH STATUTE VAGUE
2. NO C AND P DANGER OF RIOT – D LEFT
3. RIGHT TO BE ON STREET – WHY ?
4. 943 - DEFINITION OF FIGHTING WORDS
5. DIFFERENT IF PROFANE, INDECENT, ABUSIVE.
DIRECTED TO PERSON MESSAGE CAN’T BE PUNISHED.
CHAPLINSKY v NEW HAMPSHIRE (1942 – 938) –
1. 938 - STATUTE
2. 939 - FIGHTING WORDS DEFINED
3. 939 – CATEGORIZATION – NO ESSENTIAL PART OF
EXPOSITION OF IDEAS. DOMINATED UNTIL 1964.
COHEN v CALIFORNIA (1971 – 950)
950 – STATUTE – DISTURBING BY OFFENSIVE
CALIFORNIA’S ARUGMENTS:
1. CONDUCT
2. CLEAR AND PRESENT DANGER
3. COURTROOM IS A SPECIAL PLACE
4. OBSCENE
5. FIGHTING WORDS – 951 - 952
6. INTRUDE ON UNWILLING
7. BAN THIS WORD
HARLAN :
1. 951 – THIS IS ON WORDS, SPEECH – NOT
CONDUCT, NOT REGULATION. MESSAGE PROTECTED
2. NOT C AND P DANGER – NOT INCITING
3. NOT SPECIFIC STATUTE COURT DIGNITY
4. 951 - NOT OBSCENE – NOT EROTIC – WORDS
5. 951-2 - NOT FIGHTING WORDS - PERSONALLY
ABUSIVE, INDIVIDUALLY DIRECTED. FORFEIT SOME
PRIVACY WHEN YOU LEAVE HOME. UNWILLING
LISTENERS NOT ENOUGH
6. CAN’T BAN THIS WORD – WHAT IS NEXT ?
7. 952-953 - HARLAN’S FIRST AMENDMENT THEORY
1. LEAVING CHAPLINSKY CATEGORIES IN FAVOR OF
BALANCING FREE SPEECH v STATE INTERESTS.
2. PRIVACY IN PUBLIC ?
3. DOES MEDIA CHANGE ? DOES CYBERBULLYING
= FIGHTING WORDS ?
GOODING v WILSON (1972 – 941)
941 - STATUTE – OPPROBRIOUS OR ABUSIVE
LANGUAGE
941 - DEFINITION OF FIGHTING WORDS INDIVIDUALLY DIRECTED
TEXAS v JOHNSON (1981 – 941)
941 – NO PER SE FIGHTING WORDS. NOT
DIRECT PERSONAL INSULT OR INVITATION TO
EXCHANGE FISTICUFFS.
DOES THIS ALLOW TOO MUCH ?
WORSE FOR WOMEN ? HOSTILE WORK
ENVIRONMENT ?
SPECIFIC – TURNS ON EXACTLY WHAT WAS SAID
CONTENT 3 – DEFAMATION
1. DEFAMATION APPLIES TO ALL HARM TO
REPUTATION - LIBEL = WRITING; SLANDER =
VERBAL.
2. ANOTHER ONE OF CHAPLINSKY CATEGORIES
THOUGHT TO BE OUTSIDE FA PROTECTIONS
UNTIL WARREN COURT
NY TIMES v SULLIVAN (1964 – 978)
1. 979 – ALABAMA CL TORT LAW – LIBEL PER SE –
TRUTH ONLY DEFENSE, PRESUMED DAMAGES,
PUNITIVES AVAILABLE.
2. 979 - FIRST AMENDMENT THEORY
3. 980 - DEFAMATION RULE - ACTUAL MALICE KNOWINGLY UTTER FALSE STATEMENT
4. JUSTICE BLACK – SHOULD BE ABSOLUTE
PROTECTION FOR NY TIMES
1. 983 - 984 - BURDEN OF PROOF ON PLAINTIFF –
MUST BE CLEAR AND CONVINCING EVIDENCE –
APPELLATE COURTS DE NOVO ON FALSITY
2. GARRISON v LOUISIANA EXTENDS RULE TO
CANDIDATE
3. CRITIQUES OF NY TIMES – TOO MUCH
PROTECTION TO MEDIA. FALSEHOODS GO
UNPUNISHED – SHOULD HAVE JUST LIMITED
DAMAGES (983)
CURTIS PUBLISHING v BUTTS; AP v WALKER
(1967 – 984)
BUTTS – GEORGIA AD
WALKER – RETIRED GENERAL
1. PUBLIC FIGURE = PUBLIC OFFICIAL
ROSENBLOOM v METROMEDIA (1971 – 985)
ON THE PUBLIC VALUE OF THE EVENT, NOT
STATUS OF PLAINTIFF (PO/PF/PVT) ALLEGED
GERTZ v ROBERT WELCH (1974 – 986)
1. NO SUCH THING AS A FALSE IDEA BUT NO VALUE
IN A FALSE STATEMENT OF FACT
2. NOT PF. ALL – SMALL – NEEDS TO BE VOLUNTARY
TO BE PUBLIC FIGURE (988)
3. PRIVATE INDIVIDUAL HERE. RULES (988-989)
A. NO LIABILITY WITHOUT FAULT (NEGL)
B. STATEMENT MUST MAKE SUBSTANTIAL
DANGER TO REPUTATION APPARENT
C. COMPENSATION FOR ACTUAL INJURY – NO
PRESUMED (BUT INCLUDES ANGUISH AND
HUMILIATION)
D. PUNITIVE = NYT ACTUAL MALICE
DUNN AND BRADSTREET v GREENMOSS BUILDERS
(1985 – 990)
1. NOT ALL SPEECH OF SAME IMPORTANCE. PUBLIC
v PRIVATE CONCERN. APPLY OLD COMMON LAW
RULES WHERE TRULY PRIVATE - STATE INTEREST IN
VINDICATING REPUTATION JUSTIFIES PRESUMED AND
PUNITIVE DAMAGES
2. FACT v OPINION - USSC SAYS WRONG ANALYSIS –
MUST BE PROVABLY FALSE – BURDEN ON PLAINTIFF
BY CLEAR AND CONVINCING - “ALLEGED”
STATUS OF PLAINTIFF
TEST
1. PO (CANDIDATE)
NYT
2. PF (VOLUNTARY)
NYT
PUBLIC ISSUE (MEDIA) GERTZ
3. PVT
PRIVATE ISSUE
COMMON LAW
SOME IN FOR ALL, SOME ONLY FOR FAMOUS/PUBLIC
PART. PRESIDENT OF US v BALTIMORE SCHOOL BD.
1. CHRIS DAVIS (ORIOLES) –
A. INVOLVED IN PED SCANDAL
B. GOT 15 YEAR OLD GIRL PREGNANT
2. KARDASHIANS – WHAT ARE THEY ? NEW MEDIA –
GRUMPY CAT (AS P) OWNER = PUBLIC ? TAYLOR SWIFT –
INSTAGRAM MAKING PRIVATE = PUBLIC ?
3. ASSISTANT STATE’S ATTORNEY ON STAND – DID SHERIFF
CALL YOU FOR ADVICE ? NO (DID CALL, BUT JUST TO
REPORT, DIDN’T ASK ADVICE). PAPER SAYS FALSE
TESTIMONY – FIRED AFTER 20 YEARS. SUE PAPER ?
4. REMEMBER MALICE HAS NOTHING TO DO WITH ILL WILL
OR INTENT TO HARM. KNOWING FALSITY
MASSON v NEW YORKER - USED QUOTE MARKS BUT
CHANGED STATEMENT. PLAINTIFF – ANY ALTERATION
BEYOND GRAMMATICAL CORRECTIONS = ACTUAL
MALICE.
1. USSC – IN PF SETTING, ACTIONABLE ONLY IF
THERE HAS BEEN A MATERIAL CHANGE IN MEANING.
IF EVERY ALTERATION WRONG, FREEEDOM OF PRESS
SUBSTANTIALLY ALTERED.
2. DISSENT – KNOWING FALSE ALTERATION SHOULD
BE ENOUGH.
NON-DEFAMATION TORTS
HUSTLER MAGAZINE v FALWELL (1988 – 999)
1. CAN’T SUBSTITUTE EMOTIONAL DISTRESS TO
AVOID FIRST AMENDMENT
2. 1000 – TEST OF OUTRAGEOUS IS TOO SUBJECTIVE.
CARTOONISTS AND SATIRISTS SINCE REVOLUTION –
TOUGH AND SARCASTIC. ACTUAL MALICE FOR
PUBLIC OFFICIALS AND PUBLIC FIGURES
3. NO ACTUAL MALICE – NOT REALLY A STATEMENT
OF FACT – NO REASONABLE PERSON THOUGHT THIS
WAS SERIOUS. REAL v HYPERBOLE
COX BROADCASTING v COHN (1975 – 993)
PLAINTIFF = COMMON LAW PRIVACY CLAIM. COURT
RECORDS
1. INTERESTS ON BOTH SIDES BUT CAN’T PUNISH
BROADCASTER FOR ACCURATE REPORT OF MATTER IN
OFFICIAL COURT RECORDS.
FLORIDA STAR v BJF (1989 – 993)
FLORIDA STATUTE BARRED PUBLICATION. POLICE ROOM
STATUTE UNCONSTITUTIONAL WHEN APPLIED TO
TRUTHFUL AND FOUND IN PUBLIC
BARTNICK v VOPPER (2001 – 994)
ILLEGALLY TAPED – GIVEN TO 3RD PERSON – GIVEN TO
RADIO
995 - EVEN THOUGH KNEW PROBABLY ILLEGAL,
PUBLISHING TRUTHFUL INFORMATION OF PUBLIC
INTEREST = PROTECTED. BUT ONLY IF
1) BROADCASTER NOT INVOLVED IN ILLEGAL
2) BROADCASTER GOT LAWFULLY
3) MATTER OF PUBLIC CONCERN
PROBLEMS IF DIRECT FROM SNOWDEN ?
ZACCHINI v SCRIPPS HOWARD (1977 – 994)
1. NOT PRIVACY OR FALSE LIGHT OR
DEFAMATION. ECONOMIC APPROPRIATION.
2. ACTIONABLE WHEN IN EFFECT
BROADCASTING WHOLE ACT.
3. COPYRIGHT AND TRADEMARK LAWS = VALID.
NO FIRST AMENDMENT EXCEPTION
4. ESPN BROADCASTING HIGHLIGHTS ?
SNYDER v PHELPS (2011 – 1001)
ANTI-GAY PICKETING AT MILITARY FUNERAL. TORT CLAIM
1. MATTER OF PUBLIC CONCERN – CONTENT, FORM AND
CONTEXT.
2. ON PUBLIC LAND NEXT TO A PUBLIC STREET
3. VERDICT ON CONTENT AND VIEWPOINT OF MESSAGE.
4. REJECT OUTRAGEOUS – FA TOLERATES PAIN
5. STATE CAN RESTRICT TIME, PLACE AND MANNER.
UNITED STATES v ALVAREZ (2012 – 1004)
STOLEN VALOR ACT. ALVAREZ CLAIMED MEDAL OF HONOR
IN PUBLIC MEETING.
KENNEDY (+ 3)
1. 1005 – REVIEW OF ALLOWABLE CONTENT BASED
RESTRICTIONS.
2. HERE FALSITY AND NOTHING MORE. NO MATERIAL
GAIN.
3. WOULD ALLOW GOVERNMENT TO CRIMINALIZE FALSITY
IN ONLY CERTAIN SUBJECTS.
4. HIGHEST SCRUTINY. 1006 – GOV’T PURPOSES
5. PURPOSES DON’T SATISFY. REMEDY FOR SPEECH IS
COUNTERSPEECH.
6. FREE SPEECH FROM INALIENABLE RIGHT
BREYER (KAGAN) C
1. INTERMEDIATE SCRUTINY. FAILS FIT (SUBSTANTIALLY
RELATED). TOO BROAD
ALITO (+ 2)
1. NARROW – SPEAKER KNOWS, BEYOND REASONABLE
DOUBT, NO DRAMATIC PERFORMANCES
2. MUCH HARM, CONGRESS DIDN’T FEEL
ALTERNATIVES EFFECTIVE.
3. NO RISK TO VALUABLE SPEECH – VERIFIABLY FALSE.
PHELPS – ANTI-GAY AT MILITARY FUNERAL – WHAT
IS THE HOLDING ?
ALVAREZ – CAN’T LIE ABOUT MEDAL OF HONOR –
WHAT IS THE HOLDING ?
ASSUME YOU ARE AN AIDE FOR A MEMBER OF THE
HOUSE. SHE HAS ASKED YOU TO DRAFT THE MOST
RESTRICTIVE, CONSTITUTIONAL STATUTE POSSIBLE
IN BOTH CASES. PLEASE COMPLY.
CONTENT 4 – GROUP LIBEL AND HATE SPEECH
HOW DO YOU REACT TO SPEECH YOU DESPISE ?
BEAUHARNAIS v ILLINOIS (1953 – 955)
RACIST SPEECH PUNISHED UNDER STATE GROUP LIBEL STAT.
USSC SUSTAINS VALIDITY OF STATE GROUP LIBEL STATUTE –
956 – IF LIBEL AGAINST AN INDIVIDUAL IS NOT PROTECTED,
LIBEL AGAINST A GROUP IS NOT PROTECTED.
AFTER NYT v SULLIVAN AND LATER CASES, EVERYONE
THOUGHT BEAUHARNAIS NO LONGER GOOD LAW –
EFFECTIVELY OVERRULED.
NAZI v SKOKIE (1977 – 844)
STATE COURTS ENJOIN MARCH – CAN’T PARADE IN
UNIFORM, DISPLAY SWASTIKAS OR DISTRIBUTE
PAMPHLETS. USSC REVERSES PER CURIAM - ILL SUP CT
REVERSES ENTIRE INJ – CITIZENS MUST AVOID. NOT
FIGHTING WORDS (960)
SKOKIE PASSES ORDINANCES: PERMITS AND LIABILITY
INSURANCE ($300,000) FOR ALL PARADES AND MARCHES,
CAN’T INCITE HATE AND NO POLITICAL PARTIES IN MILITARY
UNIFORMS.
COLLIN v SMITH (7TH CIR. 1978 – 958)
1. IDEAS REPUGNANT, BUT CAN’T INVALIDATE ON
THAT. GOV’T CAN’T RESTRICT BECAUSE OF MESSAGE,
IDEAS, SUBJECT MATTER OR CONTENT. COHEN
2. NOT OBSCENE, FIGHTING WORDS, FALSE FACT, OR
TENDENCY TO VIOLENCE.
3. DISTURBANCE TO AUDIENCE ON RESIDENTS NOT
ENOUGH TO JUSTIFY SUPPRESSION. COHEN
1. REPRESENT TOWN OR MUNICIPALITY – COSTS AND
INSURANCE.
2. ARE YOU WILLING TO REPRESENT NAZIS ?
3. FOR REGULATING HATE SPEECH – BEAUHARNAIS,
FIGHTING WORDS, NEW CATEGORY (TENDENCY TO
VIOLENCE OR DEGRADATION), EQUAL PROTECTION
COMPELLING
4. AGAINST – ON CONTENT, WHO DETERMINES
WHAT IS HARMFUL, SUPPRESSION FUTILE – DOESN’T
REALLY CURE RACISM – JUST SILENCES
RACIST SPEECH ON CAMPUS
1. 961 - MICHIGAN – DC INVALIDATES –
OVERBROAD AND VAGUE
2. 961 - STANFORD – STIGMATIZE, VICTIMIZE OR
PERJURATIVE TOWARDS = VILIFICATION
CALIFORNIA STATE COURTS INVALIDATE
3. ARE MICHIGAN AND STANFORD ONE WAY –
BLACK STUDENT NOT PUNISHED FOR INSULTING
WHITE BECAUSE NO STIGMA ?
RAV v CITY OF SAINT PAUL (1992 – 962)
1. 962 – BIAS MOTIVATED CRIME ORDINANCE 9 – 0
INVALID
2. ARGUMENTS FOR SAINT PAUL
3. SCALIA - REALLY AGAINST MESSAGE – SUPRESSING
IDEA. VIEWPOINT DISCRIMINATION. PRO-RACE OR
PRO-RELIGION CAN USE FIGHTING WORDS AND NOT
VIOLATE THE STATUTE. ALSO NOT NECESSARY TO
ACCOMPLISHMENT OF.
4. WHITE – OVERBROAD RESOLVES CASE – NOT
FIGHTING WORDS. STEVENS – 967 QUOTE.
WISCONSIN v MITCHELL (1993 – 970)
1. 971 – STATUTE. WISC SC INVALIDATED ON RAV. 9
– 0 USSC = STATUTE VALID
2. ASSAULT CLEARLY NOT PROTECTED. STATE
PURPOSE – THIS CONDUCT INFLICTS MORE HARM ON
SOCIETY – RETALIATION, COMMUNITY UNREST.
3. FA DOESN’T PROHIBIT USE OF WORDS OR MOTIVE
AS EVIDENCE.
4. CAN YOU DISTINGUISH MITCHELL FROM RAV ?
WHAT DID RAV THREATEN ?
1. IN RAV, STATUTE INVALID BECAUSE
INTENT/EXPRESSION IS THE CRIME. IN MITCHELL,
THE CONDUCT (ASSAULT) IS THE CRIME AND THE
INTENT IS PROOF YOU ACTED ON YOUR BELIEFS.
INTENT EXPLAINS CONDUCT. ALSO LESS DANGER OF
VIEWPOINT (ONE SIDE) PROBLEMS.
2. TITLE VII LIKE MITCHELL, NOT RAV
3. LAWYERS REDRAFTING LAW AFTER RAV
VIRGINIA v BLACK (2003 – 973)
ACTUALLY 2 CASES BLACK AND ELIOTT/O’MARA.
BLACK – KKK; E/O – NEIGHBOR. SPLITS ON COURT ?
VIRGINIA SC INVALIDATED ENTIRE STATUTE
1. O’CONNOR + 3 - HISTORY OF KKK. CAN BAN
FIGHTING WORDS AND INCITEMENT. 974 - CAN ALSO
BAN TRUE THREATS. BLACK NOT TRUE THREAT.
ELIOTT – REMAND – NO PRESUMPTION
2. SOUTER + 2 – BANNING MESSAGE HERE – FAILS
COMPELLING. 7 -2 STATUE INVALID.
3. SCALIA – SHOULDN’T INVALIDATE PRESUMPTION
ON FACE.DEFENDANT CAN REBUT PRIMA FACIE. ONLY
PROBLEM WHEN NO INTIMID AND NO TAKE STAND.
4. THOMAS - CONDUCT. REBUTTABLE PRESUMPTION.
1. KKK = POLITICAL MESSAGE ?
2. UNDER STATUTE, IF DEFENDANT DOESN’T TAKE
STAND, JURY INSTRUCTED TO FIND INTENT. AFTER
CASE, JURY MAY INFER INTENT FROM FACT OF
BURNING ON LAWN BUT CAN’T BE ORDERED TO DO
SO.
3. WASN’T O’CONNOR AND SCALIA AGAINST
STATUTE IN RAV ? INTENT TO INTIMIDATE ? BURNING
CROSS ON MY LAWN NOT A TRUE THREAT ?
4. DRAFTING NEXT STATUTE ?
SOUTER+2 OCONNOR+3 SCALIA THOMAS
B
WIN
WIN
E
WIN
REMAND
B
INVALID
E
INVALID
TOTAL
INVALID
WIN
LOSE
REMAND
LOSE
INVALID
VALID
INVALID
VA SC VALID
PRESUMPTION INTERP
MODERN HATE SPEECH :
1. NO BROAD STATUTE – NO PRESUMPTION
2. MITCHELL AND TITLE VII = CONDUCT +
EXPLANATION = VALID
3. TRUE THREATS UNPROTECTED - BUT NEED
SOME IMMINENCE
4. VIEWPOINT CONCERNS (ONE WAY)
CONCEPT OF INCITMENT OR TRUE THREAT V
POLITICAL BELIEF OR HYPERBOLE:
1. CLEAR AND PRESENT DANGER – WATTS v US
2. FIGHTING WORDS – GOODING v WILSON
3. TORT CLAIMS – FALWELL v HUSTLER
4. HATE SPEECH – VIRGINIA v BLACK
CONTENT 5 – COMMERCIAL SPEECH
1. DEFINITION – COMMERCIAL SPEECH =
SPEECH WHICH MERELY PROPOSES A
COMMERCIAL TRANSACTION. NOT
COMMERCIAL SPEECH JUST BECAUSE PAID FOR
IT OR SOMEONE IS MAKING A PROFIT –
POLITICAL ADS, BOOKS, MOVIES, NEWSPAPERS
(MUST PAY FOR ALL) ARE NOT COMMERCIAL
SPEECH. GOES TO CONTENT – ECONOMIC
INTEREST – PROPOSING A TRANSACTION.
VIRGINIA PHARMACY BD v CONSUMER COUNCIL
(1976 – 1085). CAN’T ADVERTISE PRESCRIPTION
DRUGS
1. WHAT IS PURPOSE OF THE LAW ?
WHO ARE THE REAL PLAINTIFFS ?
2. CATEGORY ANALYSIS NO LONGER APPLICABLE
3. 1085 – PURELY ECONOMIC DOESN’T DISQUALIFY.
4. IMPORTANCE OF PRIVATE ECONOMIC DECISIONS
5. STATE CAN ACHIEVE PROFESSIONALISM BY
REGULATION. CAN’T KEEP CONSUMERS IGNORANT
6. 1087-88 - PERMISSIBLE RESTRICTION – TPM,
FALSE OR MISLEADING, ILLEGAL TRANSACTIONS,
ELECTRONIC BROADCAST MEDIA
7. PRINT MORE PROTECTED THAN ELECTRONIC
MEDIA
8. COMMERCIAL SPEECH MORE DURABLE –
LESS FEAR OF CHILL.
9. HOW DO YOU THEORETICALLY JUSTIFY
PROTECTING COMMERCIAL SPEECH ?
CENTRAL HUDSON GAS v PSC (1980 – 1095)
1. COMMERCIAL SPEECH PROTECTED, BUT LESS SO.
1095-96 – 4 PART TEST
2. PROTECTED – NOT FALSE OR ILLEGAL
3. SUBSTANTIAL STATE INTEREST - ENERGY
CONSERVATION AND FAIR RATES SATISFY
4. DIRECTLY ADVANCES - NO RATES, YES ENERGY
5. NOT MORE THAN NECESSARY - FAILS – CAN’T
JUSTIFY BAN ON ITEMS WHICH USE LESS ENERGY
VICE
POSADAS v PUERTO RICO (1986 – 1100) 5 -4 VALID
1. LAWFUL AND NOT MISLEADING
2. IMPORTANT INTEREST IN DETERRING GAMBLING
3. DIRECTLY ADVANCED AND NARROW – COULD
HAVE BANNED COMPLETELY
4. WHAT IS REALLY AT STAKE ? WHO ARE THE REAL
PARTIES AT INTEREST ?
US v EDGE (1993 – 1100) VALID. LOTTERY
BROADCASTS INTO OTHER STATE ILLEGAL.
1. VICE LIKE POSADAS. CONGRESS BALANCING
RUBIN v COORS (1995 – 1101) INVALID
1. TEST SHOULD BE 4 PART CENTRAL HUDSON
2. FEDERAL REGS IRRATIONAL – NO ON BEER, MUST
ON WINE. POSSIBLY OK IF USE WORDS. UNIQUE
AND PUZZLING SYSTEM WON’T ACHIEVE ITS
PURPOSES.
44 LIQUORMART v RHODE ISLAND (1996 – 1101)
9 – 0 STATUTE INVALID – CAN’T ADVERTISE PRICE OF
ALCOHOL
4 = STATUTE INVALID = COMPELLING TEST AND
POSADAS OVERRULED. NOT COMPELLING IF
MOTIVE IS KEEPING CONSUMERS IGNORANT
4 = STATUTE INVALID = CENTRAL HUDSON
SCALIA = 1791 DID NOT ALLOW BAN ON TRUE
8 ON CENTRAL HUDSON FIT – MORE EXTENSIVE
THAN NECESSARY (4 COMPELLING IN ALTERNATIVE)
NEW ORLEANS BROADCASTING v US
FEDS BAN GAMBLING ADS UNLESS GOVERNMENT
LOTTERY OR NATIVE AMERICAN
INVALID UNDER CENTRAL HUDSON
LORILLARD TOBACCO v REILLY (2001 - 1106)
OUTDOOR AND INDOOR REGULATION OF SMOKELESS
TOBACCO AND CIGAR ADS INVALID UNDER CENTRAL
HUDSON PRONGS 3 AND 4 – NOT NARROWLY
TAILORED
VICE SUMMARY
1. 4 JUSTICES FOR COMPELLING BUT CENTRAL
HUDSON IS STILL MODERN LAW FOR COMMERCIAL
2. POSDAS ONLY HAD 4 VOTES ON OVERRULED BUT
CLEARLY NOT GOOD LAW. MODERN – NO REAL VICE
EXCEPTION – CENTRAL HUDSON
3. GOVERNMENT CAN’T WITHHOLD TRUTHFUL
INFORMATION TO LIMIT CONSUMPTION OR ARGUE
CITIZENS WILL ABUSE INFORMATION
LAWYER ADVERTISING CASES –
BATES v ARIZONA (1977 – 1094)
1. NOT DEALING WITH QUALITY OF SERVICES OR INPERSON SOLICITATION
2. CONNECTION BETWEEN PROFESSIONALISM AND
BAN IS STRAINED
3. CAN REGULATE IF FALSE OR DECEPTIVE
4. WHO REALLY DOESN’T WANT ADS ?
OHRALIK v OHIO STATE BAR (1978 – 1094)
1. IN PERSON DIFFERENT THAN ADS – STATE HAS
COMPELLING INTEREST IN PREVENTING FRAUD AND
COERCION.
2. QUALITY OF REPRESENTATION ?
IN RE PRIMUS AND ZAUDERER (1094)
ACLU PRO BONO SOLICITING STERILIZED
NEWSPAPER ADS FOR DALCON SHIELD VICTIMS
RIGHT OF ASSOCIATION – DIGNITY NOT ENOUGH TO
BAN. OVERTONES OF POLITICAL OR IDEOLOGICAL
FLORIDA BAR v WENT FOR IT (1095)
PROHIBITS MAIL SOLICITATION FOR 30 DAYS
FOLLOWING DISASTER. PRIVACY OF VICTIMS
1. 5 VOTES FOR VALID UNDER CENTRAL HUDSON
2. WHO REALLY WANTS THIS REGULATION ?
FA2 – TESTS AND FA3 – REGULATION OF DIRECT
SPEECH OR WRITING
SYMBOLIC SPEECH
PROBLEM WHEN THE CONDUCT OR ACTION IS
THE COMMUNICATION – CONDUCT
CONTAINING A MESSAGE. EG – BURNING
DRAFT CARD, BURNING FLAG. HARD CASE
WHEN GOVERNMENT DENIES HOSTILITY TO THE
MESSAGE BUT CLAIMS INSTEAD A CONTENT
NEUTRAL PURPOSE - EG FEAR OF RIOTS,
EFFICIENCY OF THE SYSTEM, ETC.
UNITED STATES v OBRIEN (1968 – 1124)
1. 1124 – STATUTE. WHAT ARE ARGUMENTS FOR
PLAINTIFF AND DEFENDANT ?
2. REJECT DEFENDANT’S CLAIM THAT ALL
COMMUNICATIVE CONDUCT IS PROTECTED.
1125-26 - OBRIEN TEST (REALLY BECOMES
INTERMEDIATE SCRUTINY)
3. NARROW STATUTE – EFFICIENT RUNNING OF
DRAFT PROCESS. NOT HOSTILE TO MESSAGE.
4. WHAT IF CLEAR EVIDENCE IN CONGRESSIONAL
RECORD 0F ANTI- WAR PROTESTER BIAS ?
1. FLAG BURNING
1969 - 1974 CASES – STREET, GROGAN AND SPENCE
(1131-32) – ALL FREED PEOPLE JAILED FOR BURNING
OR USING FLAG AS SYMBOL OF PROTEST.
RATIONALES CONFUSED. INCITEMENT, FIGHTING
WORDS, SHOCK PASSERBYS, PROPER RESPECT - ALL
FAIL. VAGUE, VIEWPOINT.
TEXAS v JOHNSON (1989 – 1133)
1. 1134, FN1 – STATUTE
2. TEXAS ARUMENTS IN THE CASE (4) ?
3. OBRIEN ONLY IF CONTENT NEUTRAL. IF AGAINST
MESSAGE, COMPELLING TEST. POLITICAL
EXPRESSION HERE – INTENDED AND UNDERSTOOD
4. 1135 – STATE INTERESTS – BREACH OF PEACE AND
FLAG AS SYMBOL OF NATIONAL UNITY. FIRST NOT IN
THE CASE, SECOND RELATED TO CONTENT.
5. TEXAS – FLAG = COMPELLING. CAN BURN TO
DISPOSE – ONLY CRIMINAL WHEN BURN WITH
MESSAGE. CAN’T ALLOW ONE WAY SYMBOLS –
CAN’T BAN BECAUSE OFFENSIVE
6. WON’T MAKE UNIQUE EXCEPTION FOR FLAG
DISSENT
1. FLAG = UNIQUE – FEDERAL AND 48 STATES
2. FA NOT ABSOLUTE – THIS IS SIMPLY
ANTAGONIZING. OTHER WAYS TO GET SAME
MESSAGE.
STEVENS
CAN’T LIMIT MESSAGE BUT CAN LIMIT
CONDUCT. CAN’T SPRAY PAINT LINCOLN MEM.
US v EICHMAN (1990 – 1141)
AFTER JOHNSON, CONGRESS PASSES FLAG
PROTECTION ACT.
NO ONE DIED – NO ONE CHANGED. POLITICAL
PRESSURE ON THE COURT.
THEREFORE – SYMBOLIC GETS INTERMEDIATE
SCRUTINY BUT HIGHER IF VIEWPOINT.
PROBLEM - MOST REGULATION OF SYMBOLIC
SPEECH LOOKS LIKE VIEWPOINT.
HOLDER v. HUMANITARIAN LAW PROJECT (2010 –
1143)
FED. STATUTE – CAN’T PROVIDE MATERIAL SUPPORT
TO TERRORIST GROUP. P – ONLY GIVING TO LAWFUL
PURPOSES. 6 – 3 STAT. VALID
1. NOT CRIMINALIZING ANY SPEECH OR ADVOCACY IN
FAVOR OF THE GROUPS. FA RIGHT TO GIVE $$$.
2. NOT OBRIEN. ON MESSAGE = CONTENT =
COMPELLING TEST. ISSUE HERE = NECESSARY TO
ACCOMPLISHMENT OF.
3. GOVERNMENT CAN CONCLUDE THAT ALL MATERIAL
SUPPORT SUPPORTS TERRORIST ACTIVITIES, EVEN
TEACHING AND TRAINING LAWFUL MEANS. LEGITIMACY.
RESPECT CONGRESS AND STATE DEPARTMENT ON
FUNGIBLE.
BREYER (+ 2) D
1. CLEARLY CAN BAN $$$, ISSUE IS TEACHING.
2. CONTENT = COMPELLING TEST. NOT NECESSARY TO
ACCOMPLISHMENT OF. ACTIVITIES CAN BE SEGREGATED.
ILLEGAL ONLY IF P KNEW SUPPORTING TERRORIST
ACTIVITIES.
HOW DEFINE TERRORIST ? BLACK PANTHERS ?
BARNES v GLEN THEATER (1991 – 1151)
2 BARS AND DANCERS WANT TO DANCE IN
TOTAL NUDITY. INDIANA LAW REQUIRES SOME
COVER. BARS FEATURE ADULT ENTERTAINMENT
OF ALL KINDS – ISSUE IS TOTAL NUDITY.
PROBLEMS
1. WHAT IS THE MESSAGE v STATE’S INTEREST
2. WHAT ABOUT HAIR AND EQUUS ?
SCALIA – NON-PROTECTED - LEGITIMATE
REHNQUIST (OCONNOR AND KENNEDY) –
INTERMEDIATE - SYMBOLIC
SOUTER – SECONDARY EFFECTS
DISSENT (WHITE, MARSHALL, BLACKMUN AND
STEVENS) – COMPELLING
WHAT IS THE MESSAGE IN ART GENERALLY ?
1. SCALIA – ON CONDUCT = NOT PROTECTED. NO
DOCTRINE OF PROTECTED IF NO ONE ELSE HURT.
MORALITY SATISFIES LEGITIMATE/RATIONAL
RELATION.
2. REHNQUIST (+2) – EXPRESSIVE BUT MARGINALLY.
O’BRIEN – IMPORTANT/ SUBSTANTIALLY RELATED.
SATISFIED BECAUSE NOT ON EROTIC MESSAGE BUT
PUBLIC NUDITY. PUBLIC NUDITY BANNED IF NOT
DANCING.
3. SOUTER – INTERMEDIATE SATISFIED BECAUSE ON
SECONDARY EFFECTS. PREVENTING PROSTITUTION,
SEXUAL ASSAULTS AND OTHER CRIMES
DISSENT
1. DANCING WITHIN FA PROTECTION. ON
EROTIC MESSAGE – EITHER CONTENT BASED OR
IRRATIONAL. COMPELLING/ NECESSARY TO THE
ACCOMPLISHMENT OF.
2. DON’T LIKE INTENSIFIED EMOTIONAL OR
EROTIC MESSAGE – ON CONTENT. GENERATING
THOUGHTS AND EMOTIONS IS THE ESSENCE OF
COMMUNICATION.
3. NUDITY IS ALLOWED IN OTHER SETTINGS.
GOVERNMENT CAPACITIES
GOVERNMENT AS PROPERTY OWNER
2. HOLMES – 1157 – 1897 – NO FA RIGHTS ON
PUBLIC PROPERTY – LIKE PRIVATE OWNER
3. HAGUE v CIO (1939 – 1157) – MODERN RULE STREETS, SIDEWALKS AND PARKS = FA RIGHTS
4. FOR THESE TRADITIONAL PUBLIC FORUMS, IS IT
GUARANTEED ACCESS OR EQUAL ACCESS ? ARE ALL
TRADTIONAL PUBLIC FORUM CASES DATED GIVEN
NEW TECHNOLOGY (SOCIAL MEDIA) ?
SCHNEIDER v STATE (1939 – 1161)
INVALIDATED ORDINANCE BANNING LEAFLET
DISTRIBUTIONS ON STREET. ANTILITTER NOT
ENOUGH TO OVERCOME
MARTIN v STRUTHERS (1943 – 1161)
INVALIDATED ORDINANCE BANNING DOOR BELL
RINGING. STATE CAN’T DO IT – STATE CAN ENFORCE
WISHES OF PRIVATE HOMEOWNER.
COX v NEW HAMPSHIRE (1941 – 1159)
STATUTE – NEED A LICENSE FOR PARADE OR
PROCESSION ON PUBLIC STREET OR SIDEWALK. COX
MARCHED ON SIDEWALK – IN 4/5 GROUPS SINGLE
FILE. VALID
1. GOVERNMENT INTEREST IN SAFETY – CAN’T
IGNORE RED LIGHTS. 1159 – 60 – QUOTE BALANCING
2. 1160 - VALID TIME, PLACE AND MANNER
PERMIT OK AS LONG AS NO DISCRIMINATION.
3. 1160, FN 1 - ADMINISTRATIVE FEE OK.
DISLIKE IN TPF (EARLY CASES)
1. TOTAL BAN – REGULATION BETTER
2. CONTENT EXCEPTIONS
3. TOO MUCH ADMINISTRATIVE DISCRETION
4. COX v LOUISIANA – 1168 – QUOTE ON TPM
NECESSITY.
5. THESE EARLY TENDENCIES GET INCORPORATED
INTO MODERN TPM
WATCHTOWER BIBLE v STRATTON (2002 – 1165)
1165 - ORDINANCE. USSC INVALIDATES
ORDINANCE. MAYBE VALID IF LIMITED TO
COMMERCIAL OR $$$ SOLICITATION BUT NOT
RELIGIOUS AND POLITICAL. INHIBITS
ANONYMOUS AND SPONTANEOUS SPEECH.
HOMEOWNER CAN POST OR TELL JW TO LEAVE
TPF = STREETS, SIDEWALKS (DOOR BELLS ) AND
PARKS.
RIGHT OF ACCESS
HOSTILE AUDIENCE REACTION (DISTINGUISH CLEAR AND
PRESENT DANGER AND FIGHTING WORDS)
CANTWELL v CONNECTICUT (1940 – 943)
JEHOVAH’S WITNESS ON STREET OF NEW HAVEN
RECORD PLAYER.
1. 943 – EARLY QUOTE ON DISTURBANCE – PACKED UP
AND MOVED
2. 943 - NOT FIGHTING WORDS – NOT INDIVIDUALLY
DIRECTED
TERMINIELLO v CHICAGO (1949 – 944) – ANTI-SEMITIC.
CROWDS OUTSIDE AUDITORIUM. SNAKES AND SLIMY
SCUM. RIOTS, BUT MAJORITY PROTECTED SPEECH.
FEINER v NY (1951 – 945)
SIDEWALK – DEROGATORY ABOUT TRUMAN, MAYOR
– BLACKS SHOULD PROTEST. CROWD – “IF YOU
DON’T …”
1. NOT ON CONTENT – PROPER CONCERN FOR
SAFETY AND PUBLIC WELFARE
2. WORRIED ABOUT TOO MUCH DISCRETION IN
POLICE. HERE – CLEAR INCITEMENT OF RIOT
3. DISSENT – NO RIOT – ONE ISOLATED THREAT.
COPS SHOULD TRY AND PROTECT THE SPEAKER FIRST.
1. PREVIDEO – MORE ON LAWYER’S SKILLS
2. CROWD REACTION TO CONTENT – NOT
FIGHTING WORDS. NOT ADVOCATING
ILLEGALITY.
3. WHAT IF NO REQUEST BY COP TO STOP –
JUST ARREST SPEAKER ON COMMENT ? BREAK
UP SPEECH V JAIL ?
4. MUST THE POLICE MAKE AN EFFORT TO
PROTECT THE SPEAKER (BLACK DISSENT) ?
EDWARDS v SOUTH CAROLINA (1963 – 947)
1. GENERAL STATUE ON BREACH OF PEACE. NO
FIGHTING WORDS – NO EVIDENCE OF VIOLENCE BY
EITHER SIDE.
2. FAR CRY FROM FEINER
3. DOES THIS DEPEND ON AUDIENCE REACTION ?
REWARD VIOLENCE ?
4. DIFFERENT IF ONE OBSERVER HAD SAID “IF YOU
DON’T STOP, I WILL” ?
COX v LOUISIANA (1965 – 948) 2000 V 300
LIKE EDWARDS. ON VIDEOTAPE, PEACEFUL – NOT
VIOLENCE ABOUT TO ERUPT
GREGORY v CHICAGO (1969 )
EDWARDS.
MODERN - HOSTILE AUDIENCE STILL VALID BUT
MODIFIED BY CIVIL RIGHTS ERA CASES – COPS MUST
TRY TO PROTECT THE SPEAKER
WHY HAS HOSTILE AUDIENCE DIMINISHED ?
TIME PLACE AND MANNER RESTRICTIONS
HEFRON v KRISHNAS (1981 – 1168) VALID
FAIRGROUND BOOTHS ON FIRST COME BASIS –
LITERATURE AND $$ ONLY AT BOOTHS. SANKIRTAN $$ WITHOUT BOOTH.
1. RELIGIOUS VIEWS AND $$$ PROTECTED BUT
REASONABLE TPM ALLOWED - 1169 – TEST.
A CONTENT NEUTRAL
B. SIGNIFICANT GOVERNMENTAL PURPOSE
C. AMPLE ALTERNATIVE CHANNELS
STATE PURPOSES = CROWD CONTROL AND NO FRAUD
2. FAIR NOT STREET FOR STATE PURPOSES
3. DON’T NEED TO JUSTIFY REFUSAL TO GRANT
KRISHNAS EXCEPTION
4. ALTERNATIVE FORUMS OUTSIDE FAIRGROUNDS,
AT BOOTH AND CIRCULATING FOR MESSAGE.
BRENNAN (+ 2)
DISTRIBUTION, SALE AND $$$. CAN LIMIT LAST 2 TO
BOOTH BUT DISTRIBUTION OF LITERATURE SHOULD
BE ALLOWED LIKE SPEECH – DON’T NEED BOOTH.
CLARK v COMMUNITY FOR CREATIVE
NON-VIOLENCE (1984 – 1178)
1. SLEEPING HERE IS EXPRESSIVE
CONDUCT = PROTECTION. BUT
SUBJECT TO TPM – 1179 – TEST –
ADDS NARROWLY TAILORED NOT
MODERN
2. 1180 FN 5 - TPM AND SYMBOLIC
SPEECH ARE THE SAME TEST
MARSHALL (BRENNAN) DISSENT
1. 1181 – FN 6- AGREE ON INTERMEDIATE TEST. THIS
ISN’T CAMPING – EMPHASIZE PLIGHT OF THE
HOMELESS. NO REAL ADMINISTRATIVE PROBLEMS
SEPARATING FROM IMPOSTERS.
2. NO SUBSTANIAL INTEREST – NO PROOF SYMBOLIC
SPEECH CAUSING WEAR AND TEAR
3. MAJORITY STOPS ONCE CONTENT NEUTRAL. NOT
FAIR TO EQUATE SYMBOLIC SPEECH WITH ALL
CAMPERS.
US v GRACE (1983 – 1191)
STATUTE ON 1191
1. HERE ON PUBLIC SIDEWALKS - A TRADITIONAL
PUBLIC FORUM. THIS IS NOT TPM – THIS IS A BAN.
STATE PURPOSES NOT FURTHERED BY BAN IN TPF.
ONLY AS APPLIED TO PUBLIC SIDEWALKS.
2. TPM IN TPF = INTERMEDIATE SCRUTINY
3. CONTENT NEUTRAL IN TPF = NO VIEWPOINT,
SPEAKER IDENTITY OR SUBJECT MATTER
DISTINCTIONS.
FORSYTH COUNTY GEORGIA v NATIONALIST
MOVEMENT (1992 - 949) 90/400 -20,000/1,000/3,000 (COPS) - $ 670,000 949 –
STATUTE – FEE UP TO $ 1,000 PER DAY. ASSESSED $
100
2. IMPERMISSIBLE STANDARDLESS DISCRETION IN
COUNTY ADMINISTRATOR. VIEWPOINT.
3. CAN’T HAVE FEE BASED ON ASSESSMENT OF LEVEL
OF CROWD REACTION. CAN’T BURDEN SPEECH
BECAUSE IT MIGHT OFFEND A MOB. VALIDATES THE
HECKLERS VETO. CAP OF $ 1,000 DIDN’T SAVE.
CAN YOU REWRITE THIS STATUTE TO BE VALID ?
FRISBY v SCHULTZ (1988 – 1183)
ORDINANCE BANS FOCUSED PICKETING
1. 1184 - TEST. INTERMEDIATE SATISFIED HERE –
CONTENT NEUTRAL, NARROWLY TAILORED TO
SIGNIFICANT PURPOSE AND AMPLE ALTERNATIVES.
PRIVACY SUBSTANTIAL AND CAN MARCH IN STREET
OR DISTRIBUTE LITERATURE. CAN’T MAKE CAPTIVE.
2. DISSENT ON OVERBROAD. BANS GET WELL
JOHNNY MESSAGE FROM BASEBALL TEAM.
MADSEN v WOMEN’S HEALTH CENTER (1994 – 1185)
PROBLEM WITH ALL INJUNCTIONS - CONTENT BASED
FIRST INJUNCTION IGNORED – SECOND INJUNCTION
MUCH MORE RESTRICTIVE
1. 1185 – DEFENDANT ARGUES VIEWPOINT – ONLY
AGAINST PRO-LIFE. WANTS STRICT SCRUTINY. NO
BECAUSE ALL BASED ON PAST CONDUCT. HERE ALL
VIOLATORS SHARED THE SAME VIEWPOINT. ON THE
VIOLATION.
2. 1185 - INTERMEDIATE. DIFFERENCE BETWEEN
ORDINANCE AND INJUNCTION BECAUSE OF
CULPABILITY. HERE VIOLATION AND PROTECT
RIGHTS OF PATIENTS SPECIFICALLY.
3. SOME PARTS OF THE INJUNCTION FAIL
INTERMEDIATE SCRUTINY BECAUSE TOO BROAD.
SCALIA + 2
VIEWPOINT – SHOULD BE COMPELLING HERE.
ANGRY JUDGE SUPRESSING POLITICAL VIEWPOINT.
CAN’T IGNORE INJUNCTION APPEAL HANDOUT – FA 4
HILL v COLORADO (2000 – 1189)
CAN’T APPROACH WITHIN 8 FEET OF ANOTHER WITH
LEAFLET OR SIGN NEAR ABORTION CLINIC. VALID 6 – 3.
McCULLEN v COAKLEY (2014 – S 51)
STATUTE 35 FOOT BUFFER ZONE AROUND ABORTION
FACILITIES. INVALID
5 – SAID INVALID – NOT NARROWLY TAILORED –
INFORMED, CARING BANNED
4 – SAID INVALID – NOT CONTENT NEUTRAL