Law Outlines First Amendment Law Outlines
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First Amendment Outline
Unprotected or Partially Protected Speech
Incitement – Brandenburg, clear & present danger
True threats, crime manual (instruction vs. advocacy)
Fighting words and hostile audiences
Hate Speech
Defamation and other Torts
Libel
Modifies common law libel for public issues and public figures NYT
IIED
Hustler & Snyder (not actionable)
Breach of contract & promissory estoppel
Cowles Media (actionable) – can you distinguish?
Right to Privacy
False light
Disclosure of victim identity
Electronic eavesdropping
Hate speech
Obscenity
Sexually explicit but not obscene
Zoning - Secondary effects
Child Pornography
Stanley v. Georgia doesn’t apply
Crush videos & video games
Commercial speech
Right of audience to receive/ be informed
Compelled advertising fees
Keeping people in dark vs. direct regulation
Vice tax
Content based (direct regulation)
Subject matter
Viewpoint
Speaker status
Communicative impact
Content neutral (side swipes)
Aimed at conduct, but incidentally suppresses symbolic speech
O’Brien
Flag burning
Nude dancing
Providing legal counsel to terrorist organizations?
Aimed at speech, but not due to content.
TPM
Total Medium Ban – heavily scrutinized
Permits
Government as Proprietor, Employer, Educator, Patron
Public Forum/Designated public forum, non-public forum
Libraries, military bases, schools, jails, mailboxes, airports, buses, broadcasting, municipal theater
School speech - to what extend does 1st A protection extend to schools?
Speech & Religion – can’t discriminate against religious speech
but also can’t discriminate in favor of religious speech
Penalty, non-subsidy, government speech
Compelled Speech and Association
Right not to speak
Pledges, license plates, etc.
Public voting
Compelled Access – right not to mouthpiece for someone else
Broadcasting and cable cases are special enclave.
Access to private property
Expressive Association – denial of government benefits (bar membership)
Compelled membership (antidiscrimination laws)
Access to information (generally press)
membership lists (association)
Access to government information
Law enforcement (demand by Government for Press info)
Open courtroom proceedings (demand by press of government)
Election Procedures (association)
Who may vote in primaries
Political party association - fusion candidates etc.
Political contributions (free speech & association)
Religion
Defining religion
Free Exercise
Statutes directed at burdening or prohibiting religious practice
Constitutionally required accommodations (side swipes)
Establishment Clause
Symbolic displays and Religious Rituals
Schools are special situation
Funding and Government Benefits
Financial aid to religious education
Religion and school curriculum
Impermissible accommodations
Lemon, coercion, acknowledgement (respects FE), endorsement, improper inducement?, etc
Separatism (Lemon), non-preferentialism, neutrality (endorsement), voluntarism (coercion)
I: Unprotected or only Partially Protected Speech
A. Incitement
Tests:
Clear and Present Danger test: Whether nature of speech creates a clear and present danger of the substantive evil that Congress has right to prevent. (proximity and degree) Schenck
Dennis test: Gravity of evil, discounted by the improbability, justifies the invasion of free speech. Dennis. (HAND’s BPL formula from Carol Towing!) (Criticism - this reduces 1st A. to a tort! 1st A should add something to the BPL equation to)
NOW Brandenburg test: Speech is permitted that
Advocates force or legal violation, unless such advocacy is
Intended to incite
imminent lawlessness and
likely to produce such action.
Schenck/Frohwerk/Debs/Abrams 1919 – Clear and present danger (SPEECH UNFRIENDLY)
Schenck (HOLMES 1919) - Court upholds conviction for conspiracy to violate the espionage act by printing and circulating documents intended to cause insubordination and obstruction under clear and present danger test. Note: actual offense - obstructing recruitment – doesn’t require speech.
Used to convict anti-war speakers based not on advocacy/ opinion, but on effect of words:
Frohwerk (HOLMES 1919) – Court upholds conviction for publishing and circulating twelve newspaper articles. Debs (HOLMES 1919) – leader and presidential candidate for socialist party. Court upheld conviction for inciting insubordination, disloyalty, mutiny, and refusal of duty in armed forces when delivering speech at state convention.
Used to convict anti-war speakers by looking at words’ “plain purpose”, but Holmes argued this looks into viewpoint too much, and doesn’t protect speech.
Abrams (CLARKE 1919) - Russian immigrants wrote and distributed circulars advocating workers to stop producing weapons to be used against the Russian revolutionaries. HOLMES dissented based on intent and immediacy. No immediate danger caused by the “publishing of a silly leaflet by an unknown man.” & no specific intent. Ds intended to protect Russian revolutionaries, not to interfere w/ German war efforts.
Gitlow/Whitney 1925 - Clear and Present Danger 2.0
red scare, laws banned certain classes of speech rather than looking at incitement to violence. Holmes dissented/concurred, arguing the CPD test requires immediate violence. Courts later followed Holmes/Brandeis reasoning.
In contrast to Schenck/Debs, etc., in Gitlow/Witney, the forbidden act is the speech itself. Thus, the proximity inquiry of clear and present danger doesn’t work.
Gitlow (SANFORD 1925) –member of the socialist party, charged with criminal anarchy for publishing an article called Left Wing Manifesto. The Court upholds the statute saying that legislative determination that the speech was “so inimical to the general welfare and involve such danger of substantive evil” is entitled to judicial deference. HOLMES dissent argues that the legislature was not after speech, but the...
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