Freedom of Speech - Why Government Restricts Speech - Unprotected & Less Protected Expression

Section 1. Free Speech: An Overview

Some speech isn’t protected. Why?

Gov Interests? (very flimsy, only about 5 or 6 areas not protected)

Categorization (obscenity, libel)(these things are outside the 1^st Amend

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:

No Compelled Speech

Association

Policitical Speech & Money

First Amendment Theory

Truth

Cant punish false opinion

Self-Government

Does it include art & literature?

Autonomy & Personal Development

Here art & literature are valuable to self & are included in free speech

Negative Theory

Don’t trust your government censor

The 1^st 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 1^st 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 1^st 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

1^st 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 1^st 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

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