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FIRST AMENDMENT OUTLINE
1. Unprotected or Partially Protected Speech a. Incitement - Brandenburg, clear & present danger b. True threats, crime manual (instruction vs. advocacy)
c. Fighting words and hostile audiences d. Hate Speech e. Defamation and other Torts i. Libel
1. Modifies common law libel for public issues and public figures
1. Hustler & Snyder (not actionable)
iii. Breach of contract & promissory estoppel
1. Cowles Media (actionable) - can you distinguish?
iv. Right to Privacy
1. False light
2. Disclosure of victim identity
3. Electronic eavesdropping v. Hate speech f. Obscenity g. Sexually explicit but not obscene i. Zoning - Secondary effects ii. Child Pornography
1. Stanley v. Georgia doesn't apply iii. Crush videos & video games h. Commercial speech i. Right of audience to receive/ be informed ii. Compelled advertising fees iii. Keeping people in dark vs. direct regulation iv. Vice tax
2. Content based (direct regulation)
a. Subject matter b. Viewpoint c. Speaker status d. Communicative impact
3. Content neutral (side swipes)
a. Aimed at conduct, but incidentally suppresses symbolic speech i. O'Brien ii. Flag burning iii. Nude dancing iv. Providing legal counsel to terrorist organizations?
b. Aimed at speech, but not due to content.
1. Total Medium Ban - heavily scrutinized
1 4. Government as Proprietor, Employer, Educator, Patron a. Public Forum/Designated public forum, non-public forum b. Libraries, military bases, schools, jails, mailboxes, airports, buses, broadcasting,
municipal theater c. School speech - to what extend does 1st A protection extend to schools?
d. Speech & Religion - can't discriminate against religious speech i. but also can't discriminate in favor of religious speech e. Penalty, non-subsidy, government speech
5. Compelled Speech and Association a. Right not to speak i. Pledges, license plates, etc.
ii. Public voting b. Compelled Access - right not to mouthpiece for someone else i. Broadcasting and cable cases are special enclave.
ii. Access to private property c. Expressive Association - denial of government benefits (bar membership)
d. Compelled membership (antidiscrimination laws)
e. Access to information (generally press)
i. membership lists (association)
ii. Access to government information iii. Law enforcement (demand by Government for Press info)
iv. Open courtroom proceedings (demand by press of government)
f. Election Procedures (association)
i. Who may vote in primaries ii. Political party association - fusion candidates etc.
g. Political contributions (free speech & association)
6. Religion a. Defining religion b. Free Exercise i. Statutes directed at burdening or prohibiting religious practice ii. Constitutionally required accommodations (side swipes)
c. Establishment Clause i. Symbolic displays and Religious Rituals
1. Schools are special situation ii. Funding and Government Benefits iii. Financial aid to religious education
1. Religion and school curriculum iv. Impermissible accommodations v. Lemon, coercion, acknowledgement (respects FE), endorsement, improper inducement?, etc vi. Separatism (Lemon), non-preferentialism, neutrality (endorsement),
2 I: UNPROTECTED OR ONLY PARTIALLY PROTECTED SPEECH
- 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)
- 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.
o 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.
o 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.
3 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 evils of violence and incitement. Thus, he makes the "ultimate evil" the crime and then applies clear and present danger test to the speech. Concludes that intent (to cause anarchy) was not demonstrated.
Whitney (SANFORD 1927) - Defendant, member of Communist Labor Party, convicted of aiding and abetting liability for acts of other more radical party members. HOLMESBRANDEIS concurrence emphasized that there must be reasonable grounds to believe that danger is imminent and warned that "it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; and hate menaces stable government.
Dennis (1951) - communist leaders prosecuted for criminal anarchy. Court replaces the HolmesBrandeis immediacy test with Learned Hand's balancing test: "whether the gravity of the evil discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." FRANKFURTER concurrence - who are we, 9 judges,
to evaluate the gravity of the evil? BLACK dissent -burden of proscribing speech is infinity. DOUGLAS dissent - If the books are themselves not outlawed, then how can teaching from them be a crime? Intent of the speaker determines whether or not it's a crime. Also requires plain and objective proof of imminent danger.
Brandenburg - "Imminent Lawless Action"
➢ Court returned to Holmes-Brandeis formulation to overrule Whitney, and held that there is incitement "where [advocacy of the use of force or of law violation] is directed to
(specific or general intent?) inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio (1969) (per curiam)
○ Test requires: specific intent + grave danger + imminence.
○ Applied in Hess (1973) Defendant stated "We'll take the fucking streets later"
during a campus anti-war demonstration. Court said there was no imminent violence - rather advocacy of action at some indefinite future time.
○ Was not applied in HLP v. Holder (2013), but the Court did not implicitly overturn Brandenburg, so it still seems to remain good law.
4 B. True Threats, Instruction Crime Manuals:
Planned Parenthood (9th Cir en banc 2002) - Wanted posters identifying abortion physicians,
with lines drawn through the names of doctors who had been killed or wounded. Court distinguishes posters from incitement as "true threats." "While advocating violence is protected, threatening a person with violence is not." (threats are bad because of the fear it incites, not merely because the threatened action might result). Dissent: Inciting fear
(scary movie) is not the same thing as a threat. Not threat when bad consequences aren't in the control of the speaker, even if intent to scare exists. Warnings would be criminalized. (On the other hand, the posters increase the probability of the bad event happening. Thus, while no direct control, influence.)
Rice v. Paladin (4th Cir. 1997) - Books facilitating crime. Hit Man, technical manual for would be murderers. Distinguishing instruction vs. advocacy. Not protected due to comprehensiveness, detail, and clarity of instruction, notable absence of ideas the 1Awas designed to protect, and lack of legitimate purpose.
C. Fighting Words (one on one) and Hostile Audiences (heckler's veto)
➢ offensive because of the form they take. (not bc underlying message is offensive).
➢ Fighting words are those "by their very utterance inflict injury" or "which tend to incite an immediate breach of the peace." Chaplinsky (1942)
○ The first prong was rejected in Cohen (1971), where it held that profanity is at least sometimes protected speech, which undermined the notion that there is any unprotected category of words that by their very utterance inflict injury.
○ Second prong: generally limited in later cases to words directed face to face to individual rather than a group. Torminiello, Cohen
○ Chaplinsky was never overruled, and sometimes cited in dissent, Snyder v.
Phelps (2011) (Alito dissenting), but the Court has not sustained a fighting words conviction ever since. See Gooding v. Wilson (1972); Texas v. Johnson (1989).
○ Chaplinsky (MURPHY 1942) -convict Jehovah's Witness who attracted a restless crowd by denouncing all religion as "racket." D called Marshal a "God damned racketeer" and "a damned Fascist."
○ Gooding (BRENNAN 1972) - reversed conviction of anti-war picketers who said to police "White son of a bitch, I'll kill you." statute void on its face because it swept in protected speech beyond fighting words.
○ Cohen (HARLAN 1971) -reverses breach-of-peace conviction for wearing a
"Fuck the Draft" jacket. Profanity can sometimes be protected. Also, fighting words must be directed at a person, not just at the world at large. Also, dual emotive and well as communicative function of language. Constitution leaves matters of taste and style to the individual. People can simply overt their eyes.
○ "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include … fighting words - those which by their
5 very utterance inflict injury or tend to incite an immediate breach of the peace."
■ many of these categories later received 1A protection
○ "such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth, that any benefit … is clearly outweighed by the social interest in order and morality." Chaplinsky
■ Balancing takes place regarding class of speech rather than case by case
○ "One man's vulgarity is another's lyric." Cohen
○ "linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force." Cohen
Hostile Audience/Heckler's Veto
➢ Hostile audience doctrine invoked when the audience is provoked either by the form of the message or by the message itself.
○ Contrasted with fighting words:
■ Hostile audience need not involve speech that is specifically directed at the listener;
■ fighting words are only offense because of form.
➢ Court balances 1A interests with the "interest of the community in maintaining peace and order on its streets." Feiner (1951)
○ 1A interests, Terminiello:
■ Speech is often provocative and challenging.
■ A function of free speech is to invite dispute.
○ Community interest:
■ Violence by demonstrators or onlookers
■ Evidence of fighting words
■ Danger of disorder or riot
■ Presence of police to maintain order
➢ Demonstrators who act in peaceful / orderly manner but attract bystanders who become hostile and unruly have a 1A right to peaceful demonstration. See Edwards v. South
Carolina (1963); Cox v. Lousiana (1965);
○ Terminiello v. Chicago (1949) strongest case to show that there is no heckler's veto - the audience's reactions can't censor the speaker.
■ Court reversed breach-of-peach conviction of speaker that condemned angry crowd as "snakes", "slimy", and "scum." Court requires clear and present danger of public unrest.
○ But Feiner upheld conviction for D who was giving a peaceful speech on the finding that grave disorder is imminent.
■ Feiner addressed crowd in predominately black area. speech caused excitement. ignored two police requests to stop speaking and was arrested.
Court upheld conviction - Feiner was not arrested for the making or content of the speech, but rather the reaction it caused. Balanced the
"interest of community in maintaining peace and order on its streets" with 1A.
6 ➢ Cohen v. California (1971 fuck the draft jacket) held that in public places, one just has to deal with other people's speech and avert their eyes, and that the Constitution leaves matter of taste and style of communication to the individual.
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