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Freedom of Speech - Why Government Restricts Speech - Unprotected & Less Protected Expression Section 1. Free Speech: An Overview Some speech isn't protected. Why?
a. Gov Interests? (very flimsy, only about 5 or 6 areas not protected) b. Categorization (obscenity, libel)(these things are outside the 1st Amend c. Less-Protected (sexually explicit, commercial)
No one should trust the government to determine or decide the worth or value of ideas Protected Speech may still get you in trouble on the street where probable cause is the rule of law not the constitution Its hard to punish speech because it doesn't fit neatly along the line of criminal law
Government Regulation: When gov. attempts to regulate/punish speech they are acting in a place they don't belong When the gov is acting in the role of employer it makes more sense to regulate/prohibit/punish certain speech
Ancillary Rights: (1)No Compelled Speech (2)Association (3)Policitical Speech & Money
First Amendment Theory (1)Truth Cant punish false opinion (2)Self-Government Does it include art & literature?
(3)Autonomy & Personal Development Here art & literature are valuable to self & are included in free speech (4)Negative Theory Don't trust your government censor
The 1st Amendment meaningfulness really began after/during world war I. This is when public speech became the issue & became meaningful & protected to varying degrees Dealing now w/ government encroachment on the 1st Amendment
If gov. tries to regulate "content" of speech it will get strict scrutiny If gov. tries to regulate "conduct" or is "content-neutral" will get a different scrutiny
Section 2. Incitement to Violence Section 3. Fighting Words & Hostile Audiences Here the problem is with speech that induces violence or potential violence on the part of listeners but instead of inciting riots the violence is directed at the speaker rather than undertaken in sympathy w/ the speakers cause The state seeks to stop the speaker in order to promote the interest in assuring order & avoiding violence One-on-one encounters gives rise to "fighting words" doctrine
Encounters btwn speaker & hostile audiences gives rise to the problem of the heckler's veto.
Fighting Words: Chaplinsky v. New York Statute made it a crime to "address any offensive, derisive, or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name" Chaplinsky called the Marshal a "god damned racketeer" and "a damned fascist" Ct. here upheld the conviction and said there certain well-defined and narrowly limited classes of speech which are not protectec by 1st Amend (libel, lewd & obscene, profane & fighting words) Ct. Defined fighting words: 'face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitute a breach of the peace by the speaker" Said such utterances are not essential part of expression of ideas & have such slight social value as a step to truth that any benefit they may have is clearly outweighed by social interest in order and morality.
After Chaplinsky, the court has focused less on the 'order &
morality" and more on the breach of the peace rational Since Chaplinsky, the court has repeatedly declined to find factual support for fighting words convictions. Gooding v. Wilson Ct. reversed a conviction under a GA statute providing that any person "who shall, w/o provocation, use to or of another, opprobrious words or abusive language, tending to cause a breach of the peace" was guilty of misdemeanor D called officer "white son of a bitch" Brennan said statute too broad and would have swept in words not punishable under Chaplisnky Texas v. Johnson Flag Burning is not "fighting words" Most cases limit "fighting words" to those directed face to face to an individual rather than generally at a group
Cohen v. California STYLE Made clear the limits of Chaplisnky Ct. reversed a breach of the peace conviction of a war protestor who wore in public a jacket that said "fuck the draft" Made clear that profanity was at least sometimes protected speech Has to do w/ situation where there is offensive, vulgar, or profane speech in public 1st Amendment is not an absolute The statute prohibiting offensive conduct was wide sweeping & too broad Tendency is a bad word- too vague & not imminent Harlan said this was not conduct but rather was "symbolic speech" So state was trying to punish for the "content" of the speech which generally can't be punished & is protected. This is not obscenity (not erotic)(not depiction of hardcore sexual behavior) Layed out categories of unprotected speech: Fighting words: must be directed at the hearer Obscenity: erotic In this situation if have sensitive or unwilling listeners: don't punish the speaker but just avert your eyes or walk away if listening Listener only prevails when privacy interests invaded in an intolerable manner (mere possibility of "unwilling" listeners not enough) Purpose of 1st Amend: to keep gov. out of the public debate. We want an informed citizenry & to facilitate representative gov & self autonomy There are necessary side effects to right of free speech & open debate ONE MANS VULGARITY IS ANOTHERS LYRIC!
Speech is Cognitive & Emotive That which is protected is the expression of ideas and the emotional content as well, otherwise we risk the suppression of ideas.
Hostile Audiences & Heckler's Veto Hostile audience decisions have addressed the problem through balancing rather than categorization
Terminiello v. Chicago A function of speech is to invite dispute A serious evil is needed that rises far above public inconvenience, annoyance, or unrest Feiner v. New York (no credibility in this case) Vet on street corner & criticizing Mayor, Pres. Etc He was arrested for antagonizing a crowd Here say that went beyond mere speech & disobeyed a police order Black Dissent (better) While yes interest to maintain peace & order but speeker has a right to make speech offensive in public & officer should have protected him not the crowd Desegregation Protests: Here there were peaceful protests & no violence occurred but people were afterward arrested Here is seemed people were convicted based on the demonstrations & not on disobeying police orders & couldn't say Feiner bad law- yes have Hostile Audience Doctrine but really can't get a conviction under it Permit Requirements for Demonstrations: Entirely okay to require permits but there are only certain ways you can do it: Kunz: The permit requirement was decided by Police commissioner & had standardless discretion= unconstitutional
Rule: if discretional then must have standard and provisions that allow for expressive speech First come first serve, time limits, etc. Permit Fees Forsyth County v. Nationalist Movement MUST STILL HAVE STANDARDS & CRITERIA & CANT BE TOO DISCRETIONARY Speech cannot be financially burdened, anymore than it can be punished or banned, simply cause it might offend a hostile mob NO TAX ON CONTENT While we say these are unprotected speech categories, the truth is it is almost impossible to get a conviction absent any severe violence or serious imminent evil!
Section 4. Injury to Reputation & Sensibility Beauharnais v. Illinois (BAD Majority Opinion) Guilty of criminal group libel- if libel a whole group you can get in trouble & it would be protected speech Used RB which is wrong, use Strict Scrutiny cause is 1st Amend but don't defer to legislation Dissent: (good opinion) Says too broad & impedes 1st Amend rights Can't punish negative opinions, generally false statements, just stuff that may be not approved of. NY Times Co. v. Sullivan STYLE There is a profound national commitment to the principal that debate on public issues should be uninhibited, robust, and wideopen, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials The truth of speech is not the "test" for protection Free debate may include erroneous assertions & opinion Just cause is a civil case is no less inhibiting on free speech cause a fear of $ damages can be just as inhibiting as fear of criminal sanction
Just cause make an allowance for "truth" defense doesn't make it less inhibiting & may still deter non-false speech for fear wont be able prove truth
Rule: The constitution guarantees a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with " actual malice" that is with knowledge that it was false or made with reckless disregard of whether it was false or not.
The knowingly false statement and the false statement made w/ reckless disregard of the truth do not enjoy constitutional protection. Cases following Sullivan Hustler Magazine v. Falwell Even though Falwell tried to use Intentional Infliction of Emotional Distress rather than libel, the ct. says Sullivan still applies Would still have to show actual malice ie. knowledge that the statement was false or w/reckless disregard as to whether it was true. Cox Broadcasting v. Cohn Release of rape victim name, where got it from public records, didn't end up in privacy liability It was truthful information But ct. never said that could never restrict this Rule: If gain the info legally that is generally avail to the public then you can publish it Bartnicki v. Vopper (privacy & electronic eavesdropping) Lawfully obtained from an unlawful source Ct said here is was dissemination of information of public concern & was truthful info
Category & Test
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