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Outline for First Amendment Palco v.

CT (Cardozo) Freedom of speech is a fundamental right because out history, political, and legal recognized freedom of thought and speech as the indispensable condition of nearly every other form of freedom Gitlow incorporated 1st amendment to the states Strict Scrutiny vs. Intermediate Scrutiny Strict Scrutiny i. ii. iii. compelling government interest (i.e. fundamental rights) narrowly tailored to achieve goal/interest Least Restrictive Means for achieving interest

Intermediate Scrutiny i. important governmental interest ii. substantially related to the interest iii. leave open alternative means of communication



Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[1]

- Note the two types of rights put here: o 1) Freedom of religion

o 2) Freedom of Speech/press/protest the government Why are these grouped together? historically in the evolution of these rights is the overarching right of freedom of conscience, this right to speak what you will and speak what you think Note on the text the operative words are different for each case! o NO LAW RESPECTING. this is the broadest, you really cannot make laws o No law abridging freedom of speech 1) Abridginga little more content based. What does Abridge mean? it is a highly ambiguous term! We are going to see courts react differently at heighteaned scrutiny depending on the degree of speech hit while balancing the government interest.


Why do we protect speech?

a. Speech is valuable in the search for truth John Stuart Mills marketplace of ideas. The best way to determine the correct ideas is to allow all ideas to be heard and have the best ones rise to the top Critique In the short run, the best or correct ideas do not always prevail, often with dangerous results b. Speech is essential to representative government ? Free speech is necessary for democracy. i. Open discussion of political issues is necessary for a functioning democracy. ii. Free speech prevents government from entrenching itself infinitely keeps clear the channels of political change; iii. free speech prevents govt abuses of power for dissent v. Critique: The SCOTUS has never held that free speech only applies to political speech. iv. Free speech promots political stability by providing a safety valve

c. Value of individual Autonomy, liberty, and self fulfillment i. The ability to express ones ideas is a key part of being an autonomous individual. ii. In this theory speech is intinsicially important, unlike the utilitarian views express in the previous two justifications iii. Affrimative value of speech in development of rational capacity iv. Inconsistency of censorship with autonomy Critique Why is speech more essential to the individual than other activities like making money, which we have no problem regulating? d. Promoting Tolerance Advanced by Prof. Lee Bollinger, Free Speech is essential in our society because a democracy tolerates all ideas and free speech is essential in our society because a democracy tolerates all ideas and free speech builds tolerance. Society needs to be able to control the emotions evoked by controversial speech. Critique Why be tolerant of ideas that could lead to great harm? NOTE Concepts of free speech not mutually exclusive! Can belong to more than one of these categories


Categorization vs. Balancing

a. Categorization deals with bright line rules. Distinguishes what kind of expression is within the First Amendment rom that which is outside its protection. E.g. Political speech is in, fighting words or obscenity are out. Also, distinguishes between content-based regulation (bad) and content-neutral regulation (Better). Categorization forecloses any balancing test i. See Chaplinksy: Some utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth. Or, in some cases, the government interest in imposing restrictions is so powerful that the type of expression can be wholly excluded from freedom of speech (e.g. Child porn) b. Balancing assumes that a very broad range of expression is included in 3

First Amendment protection, and can only be restricted with a showing that powerful state interests outweigh the interest in that expression. c. Dangers: With categorization, some classes of speech may be tossed out wholesale, without adequate analysis of their value. Categorization may also ignore distinctions between speech in one category and the differences in context win which that speech may be found. Government must provide an explanation for any infringement of our liberties/rights it needs a legitimate reason, a legitimate interest in our lives (e.g. right to privacy) the means must be rationally related to the ends govt has accountability, and must satisfy us that it is acting legitimately and reasonably. This applies to ALL govt actions, every govt action that constrains us in some way. A person whose liberty is restrained has a right to go to court to get explanation.

When the Govt infringes on FUNDAMENTAL RIGHTS, strict scrutiny is applies. 1st Amendment rights are FUNDAMENTAL RIGHTS. WHY? 1) Protected explicitly by the Constitution 2) They have a special quality, fundamental principles of liberty, we dont think of ourselves as free if we lose the right to express ourselves

Categories of Regulated Speech


(Important caes: Schenck, Frohwerk, Debs, Abrams, Masses Publishing, Gitlow, Whitney, Dennis, Brandenburgn, Claiborne Hardware)

a. Subversive speech speech that advocates opposition to,

and violation of, the law; including in its most potent variety the overthrow of the government.


i. to what extent should we protect speech that threatens to harm societal interest that the govt has a legitimate interest in protecting? ii. To what extent should we disable the govt from regulating things that otherwise they would have a duty to regulate?

iii. THIS IS A RECURRING THEME in 1st amendment

law in general

c. CASES (sub cases are NOTED CASES i. Schenck v. United States (US 1919) Schenk mailed thousands of anti-war pamphlets to men who had been drafted into the war upheld convictions 1. Established clear and present danger test whether the words are used in

such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." - its a question of proximity and degree
2. illegal advocacy analogous to shouting fire in a crowded movie theater because you are

recklessly and knowingly creating a situation that is dangerous ii. Frohwerk v. United States (US 1919) wrote newspaper articles in German for German Americans advocating against the draft upheld conviction 1. illegal advocacy is like someone counseling murder iii. Debs v. United States (US 1919) Debs socialist candidate for President, charged with attempt to cause and incite insubordination in armed forced with intent to do so by delivering it to an assembly of people in a public speech; and he obstructed and attempted to obstruct the recruiting and enlistment of the US with that intent 1. Natural Tendency Holmes held that his words had the natural tendency and reasonably probable effect to obstruct recruiting service iv. Noted Case 1. Baltzer v US speaker is writing to representative to case vote against war. a. Holmes dissent we shouldnt criminalize a difference of opinion

WWI era Speech Framework (intent of speaker) SPEECH -- Listener Persuasion == Illegal Conduct = HARM!!
What is the key to liability for Schenk, Debs, and Frohwerk? 1) Speech intent - In all three cases, the speakers are trying to impede the war effort through their speechintent to cause harm 2) Speech Content - it encourages people to do things that are ILLEGAL (Holmes uses the phrase words of persuasion with respect to people being told to not to go to their draft meetings) 3) Speech Context a. wartime is creating an atmosphere where you can see more clearly the causal link between speech and the harm. b. [not something the court cites]these speakers are outsiders (germanamericans; socialists who are using the War Contoversy to push for foreign type agenda, and in ABRAMS the majority describes the speakers in Abrams [Russian jewish immigrants, 3 anarchists, one socialist] as Defendant alien anarchists WHAT IS NOT HERE? 4) EFFECT of Speech! Whether the harm actually happened!!! WHY IS THIS NOT HERE? then we are just rewarding BAD criminal behavior! Then they will just learn how to be better criminals. A failed attempt was STILL a dangerous situation. i.e. times square bomber where bomb did not go off. That creates the clear and present danger regardless of not exploding. 5) The Value of Free Speech itself doesnt even consider it

A shift occurs at Abrams In Abrams, they are not speaking out against the war, they are speaking against American intervention in the Soviet Union. It may impact the war effort, but that is only an indirect effect.--> In terms of the content of the speech, their language may be the strongest speech so far, calling for a general strike!

Again, intent of strike isnt to obstruct the war. That is just a consequence.

For the first time, the Court (via dissent) looks at this case not as a way to make those who are engaged in a project of obsruction of the war effort responsible for the consequences of their actions, but instead sees a case where people are being punished for their ideas! Holmes sees a First AMENDMENT THREAT!

Three Main developments of Abrams

1) Abrams Dissent was first time First Amendment was explicitly mentioned as

protecting speech in a regulatory setting 2) Holmes begins the conversation on the Free Market of Ideas Holmes says it here to say that the First Amendment protects the expression of opinions, no matter how unpopular The default rule is the govt cannot prohibit the expression of opinion just because it is unpopular

Every speaker has a right to put his speech into the marketplace and persuade the rest of us to his or her point of view; and the government has no power to criminalize persuasion of ideas they do not like.

3) Only when speaker speaks with intent (or in a context) where the speech threatens to bypass the market and precipitate unlawful conduct that the government can step in. A persuasive speaker that acts in good faith is protected; but a bad faith speaker that seeks to create action instead of persuading is not protected. If you skip the marketplace of ideas that creates a clear and present danger of illegal action, you are abusing the First Amendment Rights and falsely shouting fire in a theater. And the person who falsely shouts fire (and in bad faith) in the theater is triggering an instinctive audience response (aka PANIC!)

v. Abrams v. United States (US 1919) Russian Jews printed two leaflets (one in English denounced sendings troops to Russia, one in Yiddish denounced war and US efforts to impede Russian revolution), call for general strike 1. HELD This doesnt violate the First amendment because these are a call to revolution 2. DISSENT (Holmes) - it has not been shown

that this would actually stop the war, but only that it was scary rhetoric that was an unpopular opinionthis is just a silly
leaflet and published by an unknown man. Holmes is looking at the specific intent, and he did not find it. vi. Masses Publishing Co. v. Patten (S.D.N.Y. 1917) learned hand held that the NY postmaster couldnt refuse circulation of antiwar journal. These articles and cartoons are opinion and are protected 1. Key Difference to highlight there is a difference between saying an unpopular idea in the name of criticism (Masses) vs. active incitement of previous cases 10

2. Rejects bad tendency test Red Scare cases (Gitlow, Whitney, Dennis) SUBVERSIVE ORGANIZATIONS vii. Gitlow v. New York [Freedom of speech] (US 1925) was on board of managers that printed revolutionary paper. He taught duty, necessity, and propriety of overthrowing govt by force, violence, and unlawful means in Left Wing Manifesto; and he printed and distrubted Revolutionary Age content based restriction criminalizing criminal anarchy 1. Held While the first amendment is implicated here, the state has the right to criminalize this kind of speech to protect public peace. 2. Effect This case incorporated First Amendment speech rights to the states through the 14th amendment; and held that subversive advocacy is NOT protected speech 3. Dissent Holmes there is no present danger in the attempt to overthrow the government. Every idea is an incitement, but thats not enough to justify state intervention.


viii. Whitney v. California [first Freedom of association case ](US 1927) Under Criminal Syndicalism Act of CA, any persoon who organized or became member of organization that assembled to advocate or teach criminal syndicalism was guilty of a felony. Anita Whitney helped organize a CA branch of Communist Labor party. She supported platform that sough change through political means, but that was voted down; replace by violent means. Whitney was convicted for her role 1. Held This law is constitutional because it penalizes those who advocate violence to overthrow the govt

2. Rule - State law is valid unless it is an arbitrary or unreasonable attempt to exercise the authority in the public interest. Each presumption is to be indulged in favor of the validity of the statute

3. Brandeis/Holmes concurrence seem to concur because this satisfied clear and


present danger, in which the association is working with the IWW and are conspiring in real time now to engage in illegal activity (acts of violence/industrial sabotage)

4. Why does this main argument succeed? if the state can ban the advocacy of overthrow of the government of ONE person, certainly it can ban joining an association that advocates for the overthrow of the government. In fact, that may be even MORE dangerous because the association would have this powerful amplifier effect

Different interpretation models for Subversive Advocacy

Model 1 Bad Tendency Model 2 Clear and Present Danger Model 3 Learned Hand in Masses

Holmes/Brandeis focusIntent/context Hands Focus content!


Holmes and Brandeis assert that a court must engage in a carefully, contextual review, looking at the speech and the circumstances (context) of which it was delivered. The court must also determine whether it was justifiable to censor speech if he was actually posing a clear and present danger of a harm that the government can legitimately safeguard us from (an emergency).

Hand (Content) consciously rejects the contextual approach. [Remember the variable that Holmes was really moving away from in the Abrams dissent. This was clearly revolutionary documents, but by a couple of people who had no possibility of overthrow]. Hand says you can criticize and discuss, but you cannot directly incite your followers to engage in this unlawful conduct. Why focus on content? o Content is fully under speakers control, while context is not o Arguably more brightline rule

Brandeis/Holmes split Marketplace of ideas and bypassing the marketplace --- Holmes conception VS Athenian Direct Democracy style Assembly -- Brandeis Conception o Brandeis conception is the ancient Athenian assembly, it is part of the liberty each of us has in an individual democracy o If government stops us from doing that, the problem isnt that it will


destroy the marketplace but that it will destroy the marketplace. o In a democracy, WE ARE SOVEREIGN. They cant shut us down!

c. Moving away from Subversive Advocacy analysisthe Dennis/Brandenburg divergence

ix. Dennis v. United States (US 1951) Communist Party leaders were charged and convicted of conspiring to teach and advocating the overthrow or destruction of the US govt (in violation of the smith act)). Respondents argued that those specific provisions of the Smith Act violated 1st/fifth amendments 1. Held mere advocacy to overthrow is not sufficient to justify non-protection, there must be SOMETHING MORE. However, here there was enough danger for state to intervene and convict. a. RULE - Absent Clear and present danger, subversive advocacy is protected


2. Hand Rule In lower case (2nd

appeals court), hand interpreted clear and present danger test as whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. this was adopted by the court as the rule. This is more the clear danger test
3. Black dissent a reasonableness

standard for suppressing speech is too broad, could lead to suppressing unpopular speech
4. Douglas Dissent petitioners were only

teaching Marxist Leninist doctrine, and you cannot criminalize the teaching of information. Only when there is an immediate risk can the state intervene.

5. NOTED CASE AFTERWARD Yates v. United States (1957) [Pre-Brandenburg] restricted holding in Dennis, ruling Smith Act


did not prohibit advocacy of forcible overthrow of the government as an abstract doctrine did not overrule dennis, but it DID render the broad conspiracy provisions of Smith Act unenforceable

x. Brandenburg v. Ohio (US 1969) KKK leader in OH called TV station and invited reporter to attend a rally with camera. Portions of film were broadcast showing 12 hooded figures, some w/guns, gathered around a large wooden cross that was burnt, said derogatory statements against blacks and jews. Df was seen making a speech conditioning future action on the acts of the executive, legislative, and judicial branches of Govt 1. Issue can OHs statute punish adovacy without defnining or distinghuisning advocacy that involves incitement to imminent lawless action. 2. Held NO!!!--> this statute punishes mere advocacy and forbids assembly with others who merely advocate the type of action in


violation of 1st and 14th amendment The Brandenburg Incitement Test [CURRENT Subversive Advocacy standard]

Advocacy of Law Violation is protectedUNLESS

1) Directed to inciting imminent lawless action 2) Likely to do so

3. Main point Mere advocacy of law violation, in and of itself, is protected speech. In order to override the protection, there must be something MORE a. To passs First amendment scrutiny the Courts must distinguish between mere advocacy v. incitement of imminent lawless action b. You are allowed to put your ideas out there, and try to persuade your audience, BUT if your speech is specifically directed toward proviking violence in your audience, its unprotected. d. Noted Cases

i. Hess v. Indiana (1973) after a campus anti-war protest, Hess cried Well take the fucking street later (or again). Court held this was not a counself for illegal action. Court said it was no evidence that there was imminent danger for illegal action 18

ii. NAACP v. Claiborne Hardware Co. (1982) Civil rights economic boycott of white merchants by civil rights activists. In order to keep solidarity in the boycott, there were nightly rallies. Charles Evers wrote lots of fiery speeches for importance of solidarity o In the course of one of the speeches, and if you break the boycott, were gonna break your damn neck [and there were instances of violence against individuals who broke the boycott] Critics worried this could lead to incite unlawful action. i.e. Evers stated that boycott violators would be disciplined by their own people

HOLDING the mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment. The Emotionally charged rhetoric of his speech did not transcend the bounds of protected speech set forth in Brandenburg Two factors in favor of acquittal 1) imminence violence occurred weeks to months later 2) context seems like this was more metaphorical neckbreaking


Provocative Speech, Fighting Words, and the Hecklers Veto

Fighting words cases Cantwell and Chaplinski Definition - Problem where the speech will cause such offense or anger that it will cause a reaction against the speaker which will cause harm.


Two elements for Fighting Words 1. Is it a personal insult 2. Is it the kind of insult likely to incite imminent lawless action Intent - The speakers know that its going to cause offense and is likely to cause a violent reaction

Hecklers Veto: The people, nto the government, are doing the silencing. Dilemma If the police sit by and do nothing, the mob will silence the speaker, possibly through violence. If the police do silence the speaker, they may be guilty of a first amendment violation Making speecha fundamental right means that the govt will necesaarily have to absorb some cost/burden in order to protect it. Fighting words cases involve typical corwn control situations, but since speech is a fundamental right, police have to recalibrate their cost-benefit analysis, but more is at stake with a fundamental right. BUT, police have a fundamental responsibility to protect the citizens, whether citizens are angry mobs, provocative speakrs, or innocent bystanders.

Standard of Review for Unproteced speech [double check this]

[SPEECH] ---- > [Freedom of Speech] = Fundamental, Strict Scrutiny \ \ \


[UNPROTECTED CATEGORY] Substantive Due Process (rational basis)

The basic structure here is when ONE engages in speech, they are presumptively protected unless they fall into one of these several, well-defined, narrowly limted categories of non-speech (unprotected speech)

When a fundamental right has NOT been triggered, all the govt has to show under SDP is that the government has a legiitimate state interst

Think about the different kinds of speakers: Provocative speakers Cantwell, Terminiello, Feiner Civil Rights cases Edwards, Cox, Gregory

What is the shift after subversive Advocacy cases? court on one hand starts to think of types of speech that, while unpopular, are protected. Court must have ability to categorize out certain classes of speech that are outside of protection, types of speech that dont fit the rationale of protection, that dont contribute to the marketplace of ideas.

a. Cantwell v. Connecticut (US 1940) Jehovas Witness was arrested while proselytizing ton the streets of New Haven,


convicted for common law offense of inciting a breach of the peace. Cantwell played record attacked all religiouns as instruments of Satan and singled out Roman Catholicism. i. Held Court overturned conviction ii. RULE State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions iii. REASONING Applies Clear and Present Danger test (CPD). There was not threat of assault or bodily harm. Instead, this was just an attempt to persuade a willing listener to buy his book or change his opinion not enough to constitute offense. He was in public where he had a right to peaceably impart his view, and there was no showing that he was being overly provocative. iv. MAIN POINT The Free Exercise Clause of the First Amendment is incorporated by the 14th amendment

b. Chaplinksky v. New Hampshire (1942) - Chaplinsky, a Jehovas witness engaged in distributing lit in Rochester, had allegedly attracted a restless crowd by denouncing all religion as a racket. Police escorted Chaplinksy away and got into argument with Chaplinksy. Mad that officer didnt arrest those responsible for disturbance, he called the City Marshal a God


damned racketeer and a damned fascist i. Held Unanimously upheld a conviction under state law stating that no person shall 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 ii. Reasoning phrases like damned racketeer and damned Fascist are epithets that likely provikke average person to retaliation. 1. This is both balancing test (no essential part of any exposition of ideas, slight social value as a step to truth) and a categorization (describing fighting words as not protected) Court has already categorized this sort of speech as one of those limited classes of speech that is outside constitutional protection, then it balances (weights the value) against the social interest in maintaining order. iii. Main Point Any value in this speech is outweighed by the harm associated with it. Therefore, any fighting words case will be evaluated WITHOUT regard to the first amendment


1. Default Rule The basic structure here is when ONE engages in speech, they are presumptive protected unless they fall into one of these several, well-defined, narrowly limted categories of non-speech (unprotected speech) 2. Fighting Words or face to face insults are akin to ACTION, words whose speaking constitutes a breach oof the peacefighting words are like a form of assault or verbal battery

iv. Key Quote - It is well understood that the right of free speech is not absolute at all times and under all circumstances 1. Fighting Words is Unprotected Speech These include the lewd and obscene, the profane, the libelous, and the insulting or fighting wordsthose which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that 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 that may be derived from them is clearly outweighed by the social interest in order and morality. Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the [constitution] Cantwell So, what does this mean? default rule after Whitney is that speech is a fundamental right. But, under Chaplinsky, not all speech acts are created equal and must be measured case-by-case. These types of speech contribut little to nothing to the marketplace of ideas

c. Cohen v. California (1971) Fuck the Draft Important Developments 1) profanity is at least sometimes protected speech 2) reiteration that fighting words exception is limited to statements directed at the person of the hearer, not addressed generally to the world at large 3) undermined the notion that there is any unprotected category of words which by their very utterance inflict injury. 4) Emphasizing the emotive power of words and suggestving that preventing psychic offense is not a sufficient justiriccation for punishing speech


In LA city courthouse. wears jacket Fuck the draft. Arrested as leaving the courthouse under CA penal code that prohibits incitement of peace, by offensive conduct. Defendant did not engage in violence or threaten anyone with it. i. HELD - Conviction is unconstitutional. Govts case lacks particularized & compelling reasons for its actions (i.e. little categories of speech that may be suppressed), cf content based, unprotected speech categories (1) No evid of intent or tendency to incite

violence/unlawfulness (thus not w/in Chaplinsky or Brandenburg) (2) Not obscenity b/c not sexually explicit or

erotic in this context (3) Not defamation or libel (doesnt hurt any

particular person) (4) Fighting wordsno b/c no one reacts to

this speech (except the bailiff). But even then, bailiff didnt breach the peace ii. REASONING a. What is States supposed interest? prevent violent outbursts Protect the audience from hearing expressions that many

dont want to hear.


b. This is content based statute, and there is NO captive audience This audience can avert their eyes.

iii. MAIN POINT 1) the State lacks the power to punish Cohen for the underlying content of the message conveyed, as long as there is no showing of an intent to incite disobedience or disprution of the draft. 2) Cohen rejects Chaplinsky content interpretation in place of context-based interpretation 3) Sometimes, profanity is ok in the expressive context for there may be value For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one mans vulgarity is anothers lyric. AFTER NOTE if this were more narrowly drawn, the statute probably could have survived i.e. no saying fuck in courthouse iv. Cohen Focus vs. Brandenburg focus a. Cohen focus on hearer (i.e. does the speakers insult provoke a reasonable hearer to imminent violence against speaker b. Brandenburg focus on speaker (i.e. does the speakers advocacy intentionally provoke hearer to imminent violence against others


v. DISSENT TWO REASONS 1) Cohens abusrd and immature antic was mainly conduct and little speech 2) The case appears to be well within the Chaplinksy sphere

NOTE - this case is moving from criticism of the message (subversive advocacy) to criticism of HOW THE MESSAGE IS COMMUNICATED

Thus, Court takes pather that Profanity is sometimes protected depending on context and a case-by-case basis (i.e. FCC regulations of TV content in home vs. saying fuck in public)

Sometimes, profanity IS done to advance the marketplace of ideas (here, fuck the draft is far stronger statement than I disagree with the draft good sir

d. Noted Cases i. Gooding v. Wilson (1972) Anti-war picketers at an Army building refused police request to stop blocking access to inductees Appellee said in ensuing scuffle to police officer White son of a bitch, Ill kill you you


son of a bitch, Ill choke you to death and you son of a bitch, if you ever put your hands on me again Ill cut you all to pieces HELD the statute is void on its face because it swept in protecting speech ranging beyond the fighting words punishable under Chaplinksy, and the state court failed to limit the statute to utterance tending to cause an immediate breach of the peace.

Hostile Audiences and the Hecklers Veto

Hostile Audience: In the hostile audience situation, a speakers expression will trigger or threatens to trigger a harmful action. Not because the audience is following the dictates of the advocacy but because they are reacting against the advocacy. Audience is reacting but still acting. The basic subversive advocacy problem is at work here. Were dealing with

criminal prosecutions of speakers whereby the speaker is held responsible for disorder and harm. o What takes the speaker outside the protection of the first amendment?

when the speaker is NOT just engaged in advocacy and the speech is not just directed to persuasion but where its directed to inciting imminent lawless action and is likely to do so a. Terminiello v. Chicago (US 1949) - Speaker had viciously


denounced various political and racial groups; and a hostile crowd gathered outside auditorium, and speaker then condemned the crows ad snakes and slimy scum. i. Held - Court reversed breach of speech conviction of an abrasive speaker on the basis of an improper charge to the jury and without directly reaching the hostile audience question ii. REASONING - Supreme Court found unconstitutional that the trial judges standard that it is a breach of the peace for speech that stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance. Court says prejudices may be terrible, but must also be protected. iii. MAIN POINT Function of free speech is to invite dispute; holds that speech cannot be regulated unless shown likely to produce a clear and present danger of serious substantive evil that rises far above public inconvience, annoyance, or unrest

b. Feiner v. New York (1951) - Speaker was on the street corner trying to stir up interest for a socialist rally in Syracuse in a mostly black neighborhood although the listeners were mixed. Spoke out against people who wanted to shut down the Socialist


party and made derogatory comments to the Truman and the Mayor of Syracuse and the American Legion He also made a suggestion that African Americans should take up arms and demand equal rights which caused a stir. One man in the audience said if you dont get that son of a bitch off, I will. The police officer then sought to remove Feiner who was arrested and convicted for disorderly conduct. i. Held this was constitutional. Feiner was not arrested or convicted for the content of his speech. Rather, it was the reaction it had engendered ii. Dissent this was clearly punishment for unpopular views, not disturbing the peace. Police couldve at least tried to resolve this by protecting the speaker from violence. Instead, they acted only to suppress speech

Civil Rights Cases and Hostile Audiences Edwards, Cox, and Gregory Court reversed breach of the peace convictions against civil rights demonstrators. The ct. found that in all cases the actual threat of violence was low, and the demonstrators were undertaking peaceful demonstrations, not inciting crowd to violence

Edwards v. South Carolina (1963) reversed beach of peace convictions of


187 black student demonstrators who walked along SC state house grounds to rotest segregation. They had been arrseted after not dispersing within 15 minutes. COURT South Carolina infringed the petitioners constitutionally protected rights Cox v Louisiana Court invalidated beach of peace conviction of civil rights demonstrator who attracted the attention of a hostile crowd FACTS 23 students from a black college were arrested in Baton Rouge for picketing stores with segregated lunch counters. Next day, Appellant Cox (a minister) led 2000 students in apeaceful march to courthouse to protest jailing. They soon enough began singing We shall overcome and such. The jailed students sang back. Cox gave a speech protesting the iollegal arrest and urged demonstrators to sit at segregated lunch counters. Sheriff viewed this appeal as inflammatory and ordered the demonstration broken up immediately. When they did not disperce, tear GAS! Then Coz arrested the next day REASONING court held that the record does nto support the assertion that the loud cheering and clapping in response to th singing from the jail turned the peaceful assemblyin into a riotous one, and the use of tear gas was unjusitifed too. Gregory v. Chicago (1969) 85 demonstrators marched peacefully to mayors residence to push for desegretation of public schools. the number of bystanders following increased


to over 1000. Onlookers shouted various threats and racial epithets,l and police broke it up to prevent civil disoprder and arrested demonstrators when they refused HELD this activity was peaceful and protected by first amendment. Also, these demonstrators were arrested for the demonstration, not a refusal to obey police officer.

c. Cohen v. California (1971) Fuck the Draft Important Developments 5) profanity is at least sometimes protected speech 6) reiteration that fighting words exception is limited to statements directed at the person of the hearer, not addressed generally to the world at large 7) undermined the notion that there is any unprotected category of words which by their very utterance inflict injury. 8) Emphasizing the emotive power of words and suggestving that preventing psychic offense is not a sufficient justiriccation for punishing speech In LA city courthouse. wears jacket Fuck the draft. Arrested as leaving the courthouse under CA penal code that prohibits incitement of peace, by offensive conduct. Defendant did not engage in violence or threaten anyone with it. i. HELD - Conviction is unconstitutional. Govts case lacks particularized & compelling reasons for its actions (i.e. little categories of speech that may be suppressed), cf content based, unprotected speech


categories (1) No evid of intent or tendency to incite

violence/unlawfulness (thus not w/in Chaplinsky or Brandenburg) (2) Not obscenity b/c not sexually explicit or

erotic in this context (3) Not defamation or libel (doesnt hurt any

particular person) (4) Fighting wordsno b/c no one reacts to

this speech (except the bailiff). But even then, bailiff didnt breach the peace vi. REASONING a. What is States supposed interest? prevent violent outbursts Protect the audience from hearing expressions that many

dont want to hear. b. This is content based statute, and there is NO captive audience This audience can avert their eyes.

vii. MAIN POINT 1) the State lacks the power to punish Cohen for the underlying content of the message conveyed, as long as there is no showing of an intent to incite disobedience or disprution of the


draft. 2) Cohen rejects Chaplinsky content interpretation in place of context-based interpretation 3) Sometimes, profanity is ok in the expressive context for there may be value For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one mans vulgarity is anothers lyric. AFTER NOTE if this were more narrowly drawn, the statute probably could have survived i.e. no saying fuck in courthouse viii. Cohen Focus vs. Brandenburg focus a. Cohen focus on hearer (i.e. does the speakers insult provoke a reasonable hearer to imminent violence against speaker b. Brandenburg focus on speaker (i.e. does the speakers advocacy intentionally provoke hearer to imminent violence against others

ix. DISSENT TWO REASONS 3) Cohens abusrd and immature antic was mainly conduct and little speech 4) The case appears to be well within the Chaplinksy sphere


NOTE - this case is moving from criticism of the message (subversive advocacy) to criticism of HOW THE MESSAGE IS COMMUNICATED

Thus, Court takes pather that Profanity is sometimes protected depending on context and a case-by-case basis (i.e. FCC regulations of TV content in home vs. saying fuck in public)

Sometimes, profanity IS done to advance the marketplace of ideas (here, fuck the draft is far stronger statement than I disagree with the draft good sir


Defamation Defined as (1) a false, statement of fact (if its opinion, it is not defamation. If it is true, it is not defamation), that (2) Injures the reputation of the subject of the defamatory speech Four basic options when dealing with libel: 1) no protection: Strict liability for false statements. Libel per se, puts people on notice that they better have their facts straight before making accusations. 2) Negligence requiring fault, reasonable case (Gertz Private Figure standard) 3) actual malice NYT v. Sullivan standard, knowledge that the statement is false or is made with reckless disregard of whether it is alse or not 4) absolute protection No liability for defamation whatsoever


Three difference approaches to defamation: 1) Chaplinksy held defamatory speech as unprotected speech looking to common law 2) Cohen FLIPS! Unprotected transformed into protected, subject to a contextual case-by-case analysis 3) Sullivan we take a middle position of subcategorizing out the class of defamatory speech; leaving undisturbed this traditional assumption that defamatory speech is unprotected, and selecting out the kind of defamatory speech in times v Sullivan.

Defamation Standards 1) Public Official/Official conduct actual malice 2) Public official/non-official conduct actual malice 3) Public Figure/Public Concern actual malice -------------------------------------4) Private figure/Public Concern Negligence (actual injury) /Actual malice (punitive damages) [see Bradstreet] [but what about private figure/private concern? What is the shift here? the private figure has more of a weighted injury interest, and state has higher interest in protecting the private figure from this kind of injury


NOTE for punitive damages, you need to show bad faith NOTE 2- all of these rules apply only to defamation through the press, but not to individual speakers because then individuals/protestors criticizing official conduct would have no free speech rights

The key to these caes is the voluntary thrusting of oneself into the public eye. If you exercised your freedom of celebrity, then the govt has less of an interest in protecting your privacy. a. New York Times v. Sullivan (1964) i. FACTS NY times carried full-page advertisement that attacked the unfair treatment of AL state college student protestors, two of which specifically mentioned unfair treatment by police. Sullivan was one of three city commissioners, whose duty was supervision of city police dept. Although none of the statements made within the advertisement directly named Sullivan, he argued he was being accused of allowing the described treatment of the students. He pointed out that some of the statements in the Ad were FALSE. Sullivan brought a libel claim ii. HELD 1) standard for public figure to recover damages for defamatory falsehood related to his official conduct is ACTUAL MALICE; 2) First


amendment protects false statements made in good faith. Only statements that are known to be false and made with malicious intent to harm is unprotected 1. def of actual malice - person 1) knew it was false/reckless disregard for the truth, and 2) had intent to injure another. the crime is publishing something that you have good reason to know is not true but you print anyway iii. REASONING you have to protect false statements because you need breathing room for mistakes. And criticism of official conduct that defames, but is true is certainly within protction of first amendment iv. what is the chaplinksy balance here? 1. Harm - potential to defame people 2. Value - free up criticism and dissent v. NOTE the ct hasnt upheld a fighting words conviction yet Chaplinsky, but chaplinsky is still good law. An insult that simply offends another person isnt actionable, its only when speech/doncut threatens or provioked violence. vi. b. Private Figures


i. Gertz v. Robert Welch, Inc. (1974) Chicago Lawyer Elmer Gertz (who had been retained by victims family in a civil suit against a Chicago policeman who had been convicted of murder) brought libel against publisher of magazine that charged Gertz was an architect in the frame-up of the policeman in the urder trial and called Gertz, inter alia, a Communist frontier 1. Held abandoned Rosenbloom, and held that a private person should be able to recover without meeting the NY Times Standard 2. Two Gertz Rules for private-figure defamation a. Gertz Rule 1 Negligence rule you dont have to find actual malice because this is a private figure defendant. But you must prove negligence to win a defamation case b. Gertz Rule 2 Punitive damages plaintiff cannot recover presumed and punitive damages unless actual malice is proved (though party can still prove


defamation withouth proving actual malice ii. Dun & Bradstreet, Inc. v. Greenmoss Builders (1985) Matters of purely private concern Case involving an erroneous report that claimed Greenmoss filed for voluntary bankruptcy 1. Held - nonmedia defendants were excluded from NY times rule, makes distinction with private and public concern. 2. Rule - For Private concern matters, a private party seeking presumed and punitive damages in defamation does not need to show actual malice 3. What makes reporting a bankruptcy a private concern? - well you can say that he did not thrust himself into the public square and did not actually declare bankruptcy; so he has not done anything that is for public consumption 4. WHAT ABOUT Private Concern and public figures? there really isnt anything thats of PRIVATE CONCERN [everything about you becomes publicly relevant


In summation of Fighting Words, Defamation, and Hecklers Veto TWO innovations/revisions of Chaplinskys All or Nothing approach 1) Subcategorization: (NYT v. Sullivan) Choice isnt all or nothing, youc an cut out subcategories of unprotected speech and protct it 2) Private Figures (Gertz) Private figures as plaintiffs with matters of public concern defamatory speech against private figures is not deserving of the same level of protectiosn afforded to speech against public officials/figures. However, some protection still exists (negligence fault standard). a. Here, unlike Chaplinsky, the Ct. isnt making distinctions between protected and unprotected speech, but distinguishing fully protected speech (strict scrutiny) form lesser protected speech (intermediate scrutiny). b. Within a subcategory, you dont have to choose between fully protected and non-protected speech.

when you find that a certain category of speech is fully protected, you narrow the govts ability to regulate to the most troubing of circumstances. So far, we have seen that these are: 1) Incitement to violence, 2) Actual Malice with lesser protected speech (intermediate scrutiny), government doesnt have carte blanche to regulate, but neither does speaker. Speech either causes more harm or has less value [Balancing test]


VIII. HATE SPEECH, Hate Crimes, and True Threats i. Hate Speech
Working def: speech that is insulting of threatening to members of groups that have suffered a history of discimrination in America

hate speech is not included in the canonincal list of unprotected forms of speech listen in Chapnlinsky. Is there any way to prohibt this speech entirely?

1) First, think about all the speech contexts in which this speech could be used. Is this speech always without 1st Am value? a) If there are NO instances with any value whatsoever, this may be green light to prohibition b) If there are any instances where this form of speech might have value, you may want to give it a less strict standard of lesser protected speech If there is cognizable harm without any value attached, you are at chaplinksy tipping point Is it possible to think of instances where speech that in one context is HATE SPEECH but could contribute to the marketplace in another context?

Hate Speech/Group Libel Cases (Beaurharnais, Skokie, R.A.V.)


True Threats (Virginia v. Black) Beauharnais v. Illinois (1952) Upheld IL criminal group libel law that prohibited the publishing, selling, or exhibiting in any public place of any publication which portrays depravity, criminality, unchasittity, or lack of virtue of a class of citizens, of any peace, color, creed or religion, or which exposes the citizens of any race, color, creed, or religion to contempt, derision,, or obloquy, or which is productive of breach of the peace or riots.

Whats the value? tricky to decide what is hate speech and what isnt, and so any speech may be good for the marketplace of ideas.

Whats the harm? has historic track record of causing substantial harm

Dissent majority is just sugar-coating a system of govt censorship. This was just suppressing his unpopular ideas

NOTE: Beauharnais hasnt stood the test of time, though it has never been overruled First Gertz and Sullivan undermined Beauharnais position that group libel is unprotected because individual libel is unprotected by positing that defamatory speech (made in good faith) should be given at least some First Amendment protection Second in Sullivan, Court held explicitly that defamation claims based on statements


that dont identify specific individuals are without merit

National Socialist Party v. Skokie (1977): -

American nazi Party wants to hold rally in Illinois Key Detail Skokie is a suburb of Chicago. At the time of the demonstration, it is a village of 70,000 residents. 40,000 are Jewish. 5,000-7,000 are survivors of German Concentration Camps Demonstrators want to wear actual Nazi stormtrooper uniform This was planned for a Sunday afternoon, was only to last 20-30 minutes, was to be a silent demonstration At the trial, there was testimony that supported TWO findings: One set of witnesses established that 15-18 jewish organizations called for counterdemonstrations, and were expected to bring in about 12-15,000 demonstrators (17-21% of the population of Skokie at the counterprotest [inherent volatility of this situation] Testimony of Concentration camp survivors testified that they were experiencing psychic trauma from the fear of this demonstration. They saw the march as demonstrating to them that they were not safe from Nazi persecution, and that the Nazis would never let up

So the question in Skokie no one is saying we should do a Dennis (outlaw the party), no one is saying they cant dress the way they want to dress and engage in that discourse; but the main concern is that this particular demonstration to do what Cohen says profanity is ok, but not the sound that comes into the home

HOLDING - Nazis permitted to march in largely Jewish community in IL. Held under Brandenburg, there must be a threat of imminent violence, not just fear of violence (which was primary justification Skokie gave for its ordinance barring the display of the swastika and parading in Nazi uniform to prevent potential violence.)


Two potential justifications 1) Violence Rationale werhan does not buy this 2) Psychic Trauma- -> should this be a legitimate interest, or is this more along the lines of offense and anger provocation that that is NOT a state legitimate interest

ii. Hate Crimes

R.A.V. v. St. Paul (1992) bias motivated crime; content discrimination St. Pauls Bias Motivated Crime statute makes it a misdemeanor for (disorderly conduct) to place on public or private ppty/ a symbol, object, etc., including but not limited to a burning cross or swastika / knowing or w/ rsbl grounds to know it / arouses others anger, alarm, resentment on the basis of race, color, creed, religion, gender. Held: (Scalias opinion): (1) Content-discrimination - This is content or viewpoint-based which discriminates on the reasons individuals display the symbol. Does not refer to all viewing/display of swastikas or burning crossesevidenced by the end of the statute which makes it clear theyre looking @ content. this is censorship, and St. Pauls way of saying we dont approve of these messages; whichi was prohibited in Skokie. Scalias big concern the ordinance is directed at prohbiting only certain types of insults. REASONING - It is acceptable to regulate certain speech as unprotectable (obscenity, defamation, etc), but cannot narrow it to specific types of speech (i.e. you can outlaw libel, but not only libel against the government (2) Unacceptable VIEWPOINT DISCIRMINATION



Viewpoint discrimination, i.e. punishing only certain viewpoints, is when only one

type of the speech in question is proscribed. (b) e.g. libel: Can regulate this speech, but cant write a law convicting libel only

against the govt or against nuns. this is going from mere content discrimination to to the level of viewpoint discrimination MAIN PURPOSE OF STAUTTE display the city countils special hostility toward the particular biases thus singled outthat is expressly forbidden by the 1sst Amendment

Main Point Content-based regulations are presumptively invalid

Werhan supplement discussion St. Pauls argument that hate speech = fighting words is tenuous because the speech it regulated didnt include only face-to-face insults The majority decision undermined the logic of categorization [> The court developed the categorization principle to allow the state to prohibit certain types of speech as long as their harm overwhelmed their First Amendment value. This decision marked the first time the Ct. invalidated a govt prohibition on speech it has already found tob e in a category of unprotected speech Cts conclusion that hate speech prohibition which is limited to fighting words constitutes govt censorship is HIGHLY DOUBTFUL. Couldnt tehse types of insults be serious enough to merit prohibition


Nature Of Speech Proscribable <--------------------

Nature Of Restriciton

What R.A.V. Holds for the first time is simply finding the speech PROSCIBABLE (condemnable), that does not necessarily authorize restrictions on other bases.

Thus, you cannot stop the promotion of an IDEA/Message.

Wisconsin v. Mitchell (1993) bias-motivated statute for violent attacks The respondent, Todd Mitchell, was with a group of other African American individuals in an apartment complex in Kenosha, Wisconsin. Members of this group were discussing the film Mississippi Burning; in particular, a scene in which a white man beat a young black boy who was praying. Then they went out and beat up a white kid and sent him to hospitla According to Wisconsin statute, Mitchell's sentence was increased, because the court found that he had selected his victim based on race. HELD court upholds a bias motivated statute that increases penalty if bias was found to motivate crime Theres an assault, they are convicted.


No one is claiming first amendment immunity for assaults. Claim here is that enhancing the penalties because it is motivated by bias by hate is an unconstitutional under R.A.V.


1. Non-speech related justification for law - Wisconsin had determined that the consequences for the victim and the community tended to be more severe when motivated by bias and the victim of a crime was chosen on account of his or her race. Thus, when the Wisconsin statute increased the sentence for such crimes, it was not punishing the defendant for his or her bigoted beliefs or statements, but rather the predicted ramifications of his or her crime. 2. NO Free speech infringement - he Court concluded that the Wisconsin statute did not violate the right to free speech because the occasion in which an average person's racist comments would be used against him or her in a court of law would arise so rarely that he or she would not feel forced to suppress them.

Whats the difference with RAV to make Mitchell constitutional? Mitchell creates aggravating factors that enhance penalty for those who have already committed a separate crime [is not punishing viewpoint, punishing motivation of someone who has committed a non-speech criminal act]; and


focused heavily on the material consequences of such conductis assumed that such violence has greater in terrorem and incendiary effects on society than ordinary violence. R.A.V. some provocative ideas are ok, some are not that is content-based restriction!!

iii. True Threats

Definition A true threat are statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group. The speaker need not actually intend to carry out the threat. Rather, the prohibition on true threats is intended to protect individuals from the fear of violence and from the disruption that fear engenders.

Virginia v. Black (2003) Cross Burning case statute targets cross burning in particular when used to intimidate a person or group of persons Provision of the law also stated that the burning of a cross is prima facie evidence of intent to intimidate

ISSUE - Freedom of Speech Whether a state law that prohibits the burning of

crosses on public and private property with the intent to intimidate violates the First Amendment.


1) The Court ruled 6-3 that a state may prohibit the burning of crosses with the intent to intimidate. a. unlike R.A.V., the state is regulating the idea/message of the conduct. Cross burnings are unique symbols which communicate both threats of violence and messages of shared ideology b. also, unlike R.A.V., the staute doesnt single out only speech diregcted toward one of the specified disfavored topics. c. No mention of particular races who the act must be directed against 2) STATUTE IS UNCONSTITUTIONAL FOR UNRELATED REASONS! the court also ruled 7-2 that the state cannot pass a provision to the law saying that the burning of a cross is prima facie evidence of an intent to intimidate.

MAIN POINT - In other words, a majority of the court determined that not every cross burner is intending to intimidate.

Class discussion on Black Question if we didnt have the prima facie provision, can the state under R.A.V. and Mitchell, can the state prohibit cross burning? ANSWER yes. They can if the cross being burned is a true threat

Difference between R.A.v. and Black


R.A.V. regulating anger Black regulating FEAR. cross burning is a threat, and is at the top of the list of regulable symbols.



a. OBSCENITY (Roth, Memoirs, Redrup, Kingsley, Stanley, Miller,

Paris Adult Theatre)

Roth v. United States; Alberts v. California (S. Ct. 1957) Roth, a new york publisher and seller, was convicted of mailing obscene advertisting and an obscene book in violation of a federal statute barring the mailing of obscenity. Alberts, engaged in the mail order business, was convicted under a California law for lewdly keeping for sale obscene and indecent books and publsiihgn an obscene advertisement of them.

HELD For the first time the court classified obscenity as not within the area of constitutionally protected speech or press.

DEFINITION OF OBSCENE MATERIAL Material that deals with sex in a manner that appeals primarily to the prurient interest

Class discussion on Roth after court makes this case against obscenity, court then says that protected sexual expression is not the same as obscenity, and we need to protect the free speech on 52

sexual issues. But obscenity is NOT protected WHY? obscenity, by definition, appeals to the prurient interest. This is different from kind and quality of speech in say Sullivan (directed at criticism of public officials Also Obscenity contirubtes very little to the marketplace of ideas, whereas the libel subcategory in Sullivan concerned politics, which is at core of 1st Am protection. What makes sexual expression have value? if the dominant appeal of your work is ART or some kind of legally protected expression. If the dominant purpose/themes are not merely prurient sexual arousal but something greater, then it has value. Justice Brennan, 1957 - all ideas having even the slightest redeeming social

importance . . . have the full protection of the guaranties [of the First Amendment]"
Thus, IDEAS are protected. But you cannot demonstrate sexuality that is nothing but sex, purely to arouse! You can be arouse by a protectable idea, but it cannot be the sole purpose. At that point, its not longer speech, and thus outside the purview of the FIRST AMENDMENT. Thus, it can be regulated.

Roths Chaplinksky balancing: Harm v. Value Whats the harm? in Roth, Brennan says we dont need CPD of harm or incitement because THERE IS NO VALUE!


There was ALWAYS been a question of identifiable harm as justification for non-protection of speech. Here, the Ct. just finds that an exclusive, no-value standard is justification enough Obscenity does go into the marketplace, but not the marketplace of ideas. It appeals only to the sexual. This isnt expression, its just SEX.

NOTE Here, there is an utter lack of tangible, identifiable, examinable harm. Instead of making the case for harm, the court merely decides that THERE IS NO VALUE

***Memoirs v Massachussets (1966) Adapted the Roth test into a 3-pronng test Test for when obscenity is regulable: 1) The dominant theme of the work taken as a whole must appeal to the prurient interest in sex. 2) The material is patently offensive because it affronts contemporary community standards. 3) The material is utterly without redeeming social value

Redrup v. New York Began the process of case-by-case review of pornographic materials to determine whether they satisfied the test or not.

Kingsley Pictures v. Regents (1959) the law banned any immoral film defined as a film that portrays acts of sexual immorality [or[ which expressly or impliedly presents such acts as desirable, acceptable, or proper patterns of behavior.


* state denied license to a film because it portrayed adultery in a positive light. Held invalidated a NY motion picture licensing law. REASONING impermissible CONTENT-DISCRIMINATION. First amendment protects advocacy of any opinion, no matter what.

Stanley v. Georgia (1969) Private Possession of Pornography it was a crime to have knowing possession of obscene matter. a search of a home for bookmaking evidence had uncovered obscene films Georgia defended its law on the basis of Roth and with the argument: If the State can protect the body of the citizen, may it [not] protect his mind Held - the first amendment prohibits making the private possession of obscene material a crime impermissible content/viewpoint discrimination by attempting to control the flow.interchange of ideas and thoughts

Reasoning [The constitutional] right to receive information and ideas, regardless of their social worth, [is] fundamental to our free society. Moreover, in the context of this casea prosecution for mere possession [in] the privacy of apersons own homethat right takes on an added dimension. Whatever justifications we have for obscenity laws, they dont extend to the privacy of our own homes. private thoughts are exempt from govt regulation


Two impacts of Stanley 1) creating a subcategory of protected obscenity out of an unprotected category, like defamation in Sullivan---> private possession. BUT 2) puts ticking time bomb on obscenity itself by rejecting outright the two principle justifications for anti-obscenity laws. [which are 1) that the appeal to the prurient interest is different from speech that conveys an actual idea; and 2) obscene speech does not contribute the marketplace of ideas and thus has NOT VALUE

Miller v. California: (1973) Like Roth, this case involves mailing sexually explicit materials to unwilling recipieints, to people who Had in no way indicated any desire to receive such materials Can the state regulate the mass-mailing of adult books/movies? HELD YES! States have a legit interst in prohibiting dissemination of obscene materials when the mode of disemmination carries the risk of offending unwilling recipients or exposure to kids. Obscene material is unprotected by the First Amendment. However, state statutes designed to regulate obscene materials must be carefully limited.

NEW MILLER TEST 1) Whether the average person applying contemporary community standards (NOT


NATIONAL) would find that the work, taken as a whole, appeals to the prurient interest (Roth) 2) Whether the work is patently offensive and fully of sexual conduct as specifically defined by the applicable state law; AND 3) Whether the work, taken as a whole, lacks serious literary, artistic, poltiical, or scientific value (NEW STANDARD!!!)

In short 1) prurient interest; 2) patently offensive sexual content; 3) no serious value

Two innovations of Miller 1) adding extra steps/defining obscenity 2) letting the jury decide based on contemporary community standards a. is that dangerous? Doesnt that vary from community to community? this is very variable. And what communities? State, town?

Class discussion Court reexamines obscenity standards of Stanley. Now recognizing that state statutes purporting to regulate obscene materials must be NARROWLY DRAWN Like Cohen, ct wants to eliminate general prohibitions and make regulation more narrow and targeted. Paris is where courts start to draw the line at continuing to subcategorize obscenity


Paris Adult Theatre v. Slaton: State regulation of adult movie theaters

HELD - The harm in obscenity is found in its effects on TOTAL COMMUNITY ENVIRONMENT. There is no constitutional right to pornography in the public accomodations REASONING The sum of experience provides sufficient basis for legislatures to find that family, community, and human relationships are debased and distorted by crass commercial exploitation of sex corrosive effects of obscenity on community Totally unlimited free will is not allowed in ours nor any other society, and thus state has power to regulate morals right of the Nation and of the States to maintain a decent society The Right to privacy is diminished in the commercial, public area as opposed to an individuals expectation of privacy in his home or car. Communication of ideas, not involved w/ individualized R2 Privacy are concerned, just b/c some utterances or thoughts are incidentally affected as a consequence does not stop the State from acting to protect its legit interests. Incidental effects on freedom of expression. where communication of ideas protected by First Amendment are not involved, or the particular privacy of the home (Stanley) arent invaded, the fact that some utterances or thoughts are incidentally affected doesnt bar the state from regulating if it has a legitimate


interst in doing so

Dissent Court has no good working def of obscenity Vagueness of the standards in this obscenity area produces a number of separate problems, such as lack of fair notice, chill on protected expression, and stress on the state and federal judicial machinery.


Variable obscenity approach

Stanley variable was privacy, court had to consider if Obscenity could have value.

Miller reworks definition of obscenity to include protected vs. non-protected obscenity

Paris makes the theoretical case for continuining to non-protect obscenity returns to Chaplinksy balancing test

Roth court did not subject the material to the balancing test because it found utterly zero value to the work, no need to identify harm. after holding in Stanley, its difficult for ct to ignore the harm factor


***Whats the rationale for regulating obscenity? -->environmental pollution analogy (Werhan likes this) The harm to the total community environment is similar to pollution. The effect isnt just on the invidiual consumerl its more invidious and affects the whole community. i.e. Second Hand Smoke

in Stanley, the Ct. says that the state cant act as a filtration device to decide whats best for the community, or the individual, to see or read [because privacy of home is sacred] o Paris shifts focus form individual to community when it is a public accommodation idea that the very PRESENCE of adult theaters will have a corrosive effect on the community, just like environmental pollution has literal corrosive effects on the community.

WHAT IS THE KEY TO OBSCENITY CASES? ** ** Key to thse cases may be on the VALUE side.


New York v. Ferber (1982) - First Child Pornography case Held Court upheld a law prohibiting the distribution of material depicting kids engaged in sexual conduct; it did not require that the material be legally obscene. REASONING


mirrored the Chaplinksky approach, the Ct. classified child porn as a category outside First Amendment protection.

Five reasons state has power to regulate Child porn. 1) State has compelling interest in protecting the physical and psychological wellbeing of children. The prevention of sexual exploitation and abuse of children is govt objective of HIGHEST IMPORTANCE 2) The distribution of child porn is intrinsically related to the sexual abuse of children a. These are permanent records of the childs participation. The harm to the child is exacerbated by their circulation b. The distribution network for child porn must be closed if the production of material that requires sexual exploitation of children is to be effectively controlled. c. The Miller standard doesnt reflect the even more compelling interest in regulating the distribution of child porn. Works with serious value may still have hard core child porn. Child doesnt care whether his abuse results in a work of serious value 3) Advertising/selling child porn financially incentivizes the production of that material, which is illegal across the nation. The First Amendment doesnt extend protection to expression used as an essential part of conduct in violation of a valid criminal statute. (Compare with Stevens animal cruelty, since that extends to subject matter that is PROTECTED by first amendment) 4) The Value of this material is de minimis


5) Recognizing and classifying child porn as a CATEGORY outside First Amendment protection is compatible with earlier decisions. The evil to be protected against so heavily outweights the expressive interests at stake that no case-by-case adjudication is necessary [BALANCING]

*** Ferber has elements of both Chapinskys exclusionary categorization approach (by casting outside of First Amendment protection the entire class of child porn, even though some of it may not be legally obscene) but the majority also speaks at length about the state interests justifying the exclusion. - in that way, Ferber also contains the definitional balancing approach used in Sullivan (in the sense that tthat case heldmalicious defamation of public officials unprotected

Osborne v. Ohio (1990) STANLEY was held to be inapplicable to the private possession of child porn. PRIVATE POSSESSION OF CHILD PORN is unlawful in any circumstances. just like states can limit distribution in Ferber, states can also be justified in eliminating the demand by criminalizing possession

Ashcroft v. Free Speech Coalition (2002) VIRTUAL CHILD PORN CASE Disputed section of law any visual depiction, including any photograph,

film, video, picture, or computer or computer-generated image or picture"


that "is, or appears to be, of a minor engaging in sexually explicit conduct,"

Another disputed Section (ultimately struck down) - bans depictions of sexually explicit conduct that are "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct." HELD Court declines to extend Ferber to pornography no produced with actual child actors on ground that statute was too broad. Otherwise, this is just censorship Statute also cover movies with redeeming social value that does not actually depict child actors i.e. American Beauty and Traffic o The fact that these videos whet the appetites of pedophiles does not justfy the law The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it, Stanley v. Georgia, 394 U. S. 557, 566, absent some showing of a direct connection between the speech and imminent illegal conduct, see, e.g., Brandenburg v. Ohio, 395 U. S. 444, 447 (per curiam). o It is implausible that rgument that virtual porn drives up market for real child porn DISSENT technology makes it more difficult to ensure tha bility to enforce prohibitions of actual child porn. How can we say who is or is not an actual child?

United States v. Stevens (Animal Cruelty/Crush videos case) (2010) Crush videos women in high heels crushing animals to death. This was


inspiration for the law What triggered prosecution? videos of a DOGFIGHT and of a dog attacking a farm pig Held statute is struck down

Standard of Review for proscribable Animal Cruelty depictions 1) harming animal 2) in violation of law 3) no serious value

Class discussion Animal cruelty vs. Child pornography Legislatures concern is not so much the message but that ACTUAL HARM of the animal subject prof says this lines up with FERBER If the harm being depicted is ILLEGAL in any state, that will activate the harm.

Why does the Court invalidate this provision? Government takes Chaplinksy balance here and cites FERBER (simply because it didnt fall into obscenity doesnt mean we cant do a Chaplinksky balance and add another category when the HARM outweighs the VALUE Question is the harm of filiming the harm of an animal the SAME as that of Child pornography or Obscenity?


Court we dont do this kind of balancing. Court did NOT Chaplinksy balance in Ferber (THAT IS NOT TRUE! They did!) R.A.V. there is no unprotectable forms of speech, only proscribable

How does the Court distinguish Stevens from Ferber? Ferber the marketing of the child porn is SO related to child porn you go after the harm by stopping the videos. The commerce of the videos are directly connected to the harming of the child. The Harm is conduct (child abuse) Child pornography statute is not about limiting expression, but a means to an end of going after that illegal conduct We not just prohibit the actual abuse of children, but everyone in the commercial process. The child would not have been abused but for this video

STEVENS however, the relationship to these animal videos is more tenuous Court saysif this was a statute to limit to crush videos, that might be different (specifically crushed for film). That may not be the same of dogfighting (would occur no matter what usually).

PROFESSOR - If were not Cost-benefit balancing, how do we explain any of these other cases??? SCALIA oral argument - there is nothing in the tradition of free speech that involves banning depictions of violence Think of defamation, for example. That is a traditional non-protected


category of speech In Stevens, what the court MAY be saying is that these categories are limited to the traditional common law categories Its not that a court did a cost-benefit analysis of value vs. harm; HISTORY DID THE BALANCING FOR US!!

So why is this struck down? Court may be holding at common law categories and may from now on AVOID the Chaplinksy balancing



TEST STUFF you need Three Things to answer the question 1) What is the Nature of the Speech?--> Fully Protected/lesser protected/unprotected) 2) What is the NATURE OF THE RESTRICTION? content-based? Or Content Neutral? 3) What is the Appropriate Standard of Review? Strict? Intermediate? Rational basis?

Beginnings Chaplinsky


Once we bought into the holmes/Brandeis notion that Freedom of Speech was a fundamental right protected by the Constitution and deserving of the heavy artillery of protection by the courts

We developed categorization to demonstrate that some speech is more valuable than others

It allows us to modulate its protection on the basis that some speech is more worthy of protection than others. In other way, some restrictions on speech are MORE PROBLEMATIC than others

Types of Content-based Restrictions 1) Viewpoint discrimination: Paradigm violation. i.e. kingsley (ban immoral movies), R.A.V., Brandenburg; you cannot protest opposing HCR (but yes in FAVOR of HCR) 2) Subject matter restrictions i.e. No demonstration on any Health Care Leigislation in D.C. restricts ALL viewpoints based on a particular subject matters


CATEGORIZATION OF SPEECH Nature of Speech Fully protected-------> Content-Neutral---------> Lesser protected----> ---------------------------------> Rational Basis Intermediate Nature of Restriction Content based ------------ > Level Of Scrutiny Strict

Unprotected --------> [Conduct: RAV/Johnson/Eichman = Fully Protected/Content-Based/Strict Scrutiny; OBrien = Lesser Protected/Content-Neutral/Intermediate Scrutiny] KEY STEP for categorization 1) Is the statute invalid for other reasons?--> [In these cases, the question of whether the speech is protected or not is IRRELEVANT. So you dont look at the Statute as-applied] a. Vagueness? b. Overbreadth? c. Barred by Prior Restraint? 2) Nature of Speech a. Fully Protected? b. Lesser Protcted? c. Or Unprotected? 3) content based or content neutral? The central concern of the first


amendment is government censorship; and the essence of censorship is content control. (Mosley) a. Content-based restrictions suggest stronger likelihood of censorship. For that reason, they presumptively violate the first amendment b. Content Neutral Restriction we are less concerned with censorship. While it is still heightened scrutiny, there is no RED ALERT EXAMPLE D.C. enacts and ordinance prohibiting all demonstrations opposed to HCR. Content based Compare a law DC enacts ordinance prohibiting all demonstrations outside a hospital content-neutral Not as worried about second law, but intermediate scrutiny

Why do we have Strict Scrutiny? 1) Fully protected nature of speech; AND 2) In each case, nature of resctirction is content based

What is the problem with content-distinction? these presumptively involve censorship by controlling content of speech becaue it disapproves of what we have to say

Police Dept v. Mosley (1972) anti-picketing law by school Held Ct invalidated an ordinance barring picketing within 150 ft of a school while in session, but exempted peaceful picketing of any school involved in a labor dispute Reasoning 69

This is selective exclusion of speech from a public place Central prolblem is ordinance differentiates acceptable/unacceptable picketing based on subject matter the operative difference is CONTENT-BASED, thus this is CENSORSHIP

Government cannot allow one group whose views it favors to picket, while denying that right to another group whose ideas it doesnt like

MAIN POINT there must be an equality of status in the field of ideas. Govt must provide everybody an equal opportunity to be heard.

Simon & Schuster v. NY State Crime Victims Board (1991) Held Court invalidates Son of Sam law, which prevented criminals from profiting from books about their crimes. Why is this content based statute singled out income coming from an expressive activity for a burden the state places on no other income, and was directed only at works with a specified content. Why Strict Scrutiny? 1) Content-based; 2) Protected Speech Thus, invalid statute

Burson v. Freeman (1992) Ct upheld law prohibiting politicking within 100 feet of a polling place. In light of risks of voter intimidation and election fraud, this survives strict scrutiny

Republican Party of MN v. White (2002) CT invalidated a law prohibiting judicial


candidates form announcing his or her views on political issues Ct found that this plaw prohibits speech on the basis of content AND burdened a category of speech (qualificatiosn of candidates for poltiicla office) that is fundamental to First Amendment freedoms States argument that it needed to preserve the appearance of impartiality of the state judiciary was not sufficiently compelling enough to trigger strict scrutiny

Boos v. Barry (1988) Ct invalidated provisions prohbiting display of any sign tending to bring a foreign govt into public odium or disrepute within 500 ft of that countrys embassy. Cy determined that it was a content-based regulation because the govt determined that an entire category (criticism of foreign govt) of speech is impermissible. Standard of review Strict Scrutiny (content based, protected speech) Court found it wasnt narrowly tailored to interest in protecting dignity of embassy employees because there wre less restrictive means of doing so. Note that this is a restriction based on the communicative impact of speech on the audience these laws are generally viewed as skeptically as direct content restrictions.


Two types 1) Laws aimed at a wider range of behavior and has only an incidental impact on speech. a. First amendment challenges to these laws generally come when the violator wants to engage in expressive conduct (See OBrien) 2) Laws aimed at expression but for reasons unrelated to its content a. E.g. laws limiting amplification of sound b. Time, Place, and Manner restrictions are the largest example of this kind of law.

Standard of Review for Content-Neutral Regulations: Intermediate scrutiny. Intermediate Scrutiny: 1) Important govt interest 2) Substantially related to the goal

Content-Neutral Regulations 1) Important governmental interest 2) Narrowly tailored (still can be less restrictive alternatives, but more than rational relationship) 3) Alternative means of speech if we dont have three, this is operating like a content-based ban.


Two types of Content-Neutral Restrictions 1) Direct DC protest regulation 2) incidental OBrien Case [you cannot destroy your draft card, while OBrien did so for EXPRESSION and has incidental effct of blocking speech]


SPEECH -----------------------------------------------------> PROTECTED

| | V CONDUCT -----------------------------------------------> UNPROTECTED

Speech=Presumptively PROTECTED Conduct = UNPROTECTED. Subject to any reasonable, leigitmate govt interest.

Think about. Brandenburg incitemeny likepy to product immediate violent/illegal conduct Mere advocacy is okay

Fighting words


True threats Child porn (problem is sexual conduct of the actors Miller/Paris (this isnt speech, its SEX. Its CONDUCT!

All of these permissibile restrictions are conduct-based, NOT MERELY SPEECH!

When does Speech fail to be protected? Chaplinsky says that when speech has low value because it contributes so little to any exposition of ideas, it may be unprotected. When it contributes anything to ideas, it will probably be protected. You can have symbolic conduct that acts a lot more like speech. In these cases, if you can show that the conduct is more like traditionally protected speech, you may be able to override the default rule against protection. E.g. RAV cross burning = speech

So what conduct do we protect? ------> Speech can lose protection if it is IDEALESS. Conversely, conduct may gain protection if its meant to express an idea. (see Johnson). This is an example of conduct functioning as speech, communicating ideas/message. If it does communicate a message, then regardless of the mode it takes, ti should be protected.

How do you capture the ways that conduct speaks, in ways that merit protection, and which ways that it speaks that should be unprotected?


---------> What is the appropriate limiting principles? How iwde should the scope of the 1st amendment be? Where do you draw the line between expressive/symbolic conduct that merits protection and expressive conduct that is harmful and should be unprotected?

R.A.V. v. Black Note that in both cases the laws at issue targeted the expressive element of conduct. The state prevails in Black because the expressive element is outside 1st Amendment protection (true threats) VS State in R.A.V. loses because the expressive element is within 1st Amendment protection (hate speech)

Content- Neutral Law and Symbolic Conduct

Speech + Conduct combinedwhen do we protect? The court has held that when speech and non-speech elements are combined in the same conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on 1st amendment freedoms. U.S. v. OBrien (1968) - Draft card burning case Court seeks to show that not EVERYTHING that you do that sends a message is protected Defendant burned his draft card and said he did it to influence others to adopt his


anti-war stance [think about Cohen] This violated a law prohibiting the burning/mutilation of draft cards. Court upheld the law Ct. here focuses not on the expressive element but on the government interest in restriction draft card burning. Facially, this is a content-neutral law says nothing about prohibiting the message of draft card burning. Question is what the nature of the restriction is. Is it aimed primarily at restricting expression, or is the restriction on speech incidental to the primary goal or furtherance of that goal? If the nature of the restriction is aimed at suppressing free speech (war/draft protest), then youre at the core of the 1st Amendment. But, if the nature of the restriction is aimed at regulating conduct that causes HARM, without regard to the message or idea imparted, then youre just in the realm of permissible govt regulations.

***Four Part Test for Content-Neutral Regulations [OBrien Test]:

A content-neutral regulation is justified if: 1) It is within the constitutional power of the govt? 2) It furthers an important or substantial govt interest 3) The govt interest is unrelated to the suppression of free expression, AND 4) If the incidental restriction on free speech is no greater than is necessary to further the substantial interest asserted (Balancing test)


Ct. finds that the regulation here satisfies the test. The govt has an important/substantial interest in maintaining the system of draft registration and may require individuals to cooperate with it. Therefore, it has substantial interest in preventing willful destruction of the cars

Also, law is closely tgailored to his interest

Nature of speech fully protected Nature of restriction Content Neutral Level of scrutiny intermediate What was the harm govt sought to protect against? protect integrity of draft cards to ensure effective implementation of Selective service THUS, this involves limiting Conduct

POST-OBrien notes congressional intent is irrelevant. Congress purpose for passiong law cannot determine constitutionality Main reason OBriend arrested noncommunicative impact of his conduct, not for the message

ARCARA v. Cloud BOOKS, Inc. (1986) Sex in bookstore closure case, ordinance banned prostitution.


HELD the closure remedy did not warrant even the less stringent scrutiny of OBrien standards

the sexual acitviity carried on here has no element of protected expression (unlike the draft card burning in OBrien) this law does not single out bookstores, this is just punishing those who had sex in the bookstore


Texas v. Johnson (1989) defendant was convicted of desecrating an American Flag. The only charge was desecreation of a venerated object. Statute prohibited flag burning when actor knows his conduct will seriously offend onlookers

Held statute is unconstitutional When does Conduct fall under the First Amendment Protection? 1) There must be an intent to convey a particular message, and 2) There must be a high likelihood that the message would be understood by those who viewed it o Texas had conceded that Defendants conduct was expressive conduct. He burned the flag as part of a political demonstration. Therefore, 78

Defendants burning of the flag constituted expressive conduct thereby permitting him to invoke the First Amendment of the Constitution. What was the harm the govt sought to protect against? SPEECH! The restriction was tied to speech because the person was convicted of desecrating a flag during a political protest Court found that TX law is aimed at protecting nothing else than how others VIEW the flag, at maintaining the sanctity of the symbol. There is no argument to be made that the interest lies in the physical maintenance of the flag (since we burn them to destroy them). Court REJECTS fighting words argument (not a direct personal insult); also rejects breach of peace argument (Brandenburg no evidence that Johnsons act caused or threatened to cause breach of peace) Court rejects that you can regulate the stop audience from being offended

DISSENT Johnson was punished for the particular symbol he sought to destroy, which congress has an intrest in protecting, NOT the message

NOTE when the govt prohibits conduct, it is more likely to be upheld than when the govt prohibits speech

US v. Eichman (1990) - Court struck down the 1989 federal law that congress amendment flag desecration act o Standard of Review most exacting scrutiny (Strict)


reasoning Court declined to classify flag burning as obscenity or fighting words as unprotected speech Govt argued that the new federal law did not target expressive conduct on the basis of the content of the message but instead sought to safeguard the physical integrity of the flag under all circumstances and that it proscribed conduct (other than disposal) that damages or mistreats a flag, without regard to the actors motive, his intended message, or the likely effects on onlookers o COURT rejected this argument. While the Act contains no explicit content-baed limitation, it is nevertheless clear that the Governments asserted interest is related to the suppression of free expression, and concerned with the content of such expression o The govts desire to preseve the flag as a symbol of certain national ideals is impicated only when a persons treatment of the flag communicates a message to others that is inconsistent with those ideals. o Each term in the text (except burns) unmistakably connotes disrespectful treatment of flag and suggests focus on those acts likely to damage the flags SYMBOLIC value o FATAL FLAW OF BILL seeks to suppress expression out of concern for its likely communicative impact How do we explain OBrien in light of Eichman? Eichman we trump the text to say this is clearly content based because there is no content-neutral explanation that is plausible OBrien we do have a content-neutral interest. That amy not be the TRUE PURPOSE, but there is a story to tell. You can trump the content neutrality of the text only when there is no content-neutral explanation available



Sexual Expression: Sexually Explicit But NONOBSCENE Expression

This covers Expression falling belowe the definition of Obsscenity. Court faces the question whether this speech deserves lesser protectionCould contentbased regulation be permitted if it doesnt completely prohibit the speech? Not a categorical exclusion, but not entirely protected either

Two SCOTUS Approaches to Sexual Expression 1) Indecent/sexually explicit speech that isnt obscene is fully protectedSTRICT SCRUTINY a. See Erzoznik v. Jacksonville 2) Sexually explicit, non-obscene speech may be restricted if they are not a de facto prohibition on dissemination INTERMEDIATE SCRUTINY a. Balancing against relevant state interests. b. erogenous zoning laws: Laws that dispense or condense sexy establishments i. see American Mini Theatres, Renton ii. These are really content-based laws that the Ct. has deemed content-neutral because of its Secondary Effects (see Renton) c. Does this approach implicitly treat sexually explicit speech as subordinate? Would this approach fly with political speech?


Sexually Explicit Speech [two branched off frameworks]

1) Communicative ImpactAudience Response Primary Effect

2) Non-communicative impactOther harms-------->Secondary

Effect Content Neutral


Jenkins v. Georgia showing of Carnal Knowledge was NOT obscenity

Erzoznik v. Jacksonville (1975) - Jacksonville wants to ban nudity from drive-in theaters. Ban coverd both obscene and NON-OBSCENE films. We can have nudity in theaters with wallscity is CHANNELLING. City argument We need to protect citizens from unwilling exposure to offensive materials and prevent distracted drivers from causing accidents Held STRICT SCRUTINY. This is a content-based restriction that prohibits constitutionally protected speech

Films containing nudity Standard of Review 1) Level of Protection? Fully protected nudity is not per se obscene (Jenkins v.


Georgia), but if it becomes pornography it becomes lesser protected. NOTE this statute in Erzoznik bans showing of bare buttocks. Thats not enough to make it pornography. 2) Content based or content neutral? Content-based. Only talking about nudity 3) Standard of Review Strict Scrutiny Reasoning State MAY protect individual privacy (viewer offense/captive audience). BUT, when govt acts as CENSOR, acting to SELECTIVELY SHIELD the public from some kidns of speech on gorund that they are more offensive than others, 1st Amendment prohibits it from doing so.

Burger Dissent this analysis was unduly simplistic and misses the point. Why? This is acceptable Time, place, manner restriction Seems to be saying this wasnt Cohen, this was a city that wrote an ordinance that was far short of a total exclusion and was narrowly drawn to regulate only certain uniqe public exhibitions of nudity [to an unwilling public]; it would be absurd to suggest that ti operates to suppress expression of ideas. What is Burgers complaint? This bil makes sense! Just because the text was content-based does not meant that the LAW was content based. The analysis of the First Amendment issue was accurate, but this didnt really implicate First Amendment issues. Burger doesnt see Govt censorship.


- Schad v. Mount Ephraim bans all live entertainment within the community. Held live entertainment is protected, you cannot totally ban it

b. Erogenous Zoning what power to communities have to restrict sexual expression that doesnt fall into one of the unprotected categories of child pornography or obscenity. i. Lesser Value Young v. American Mini Theatres (1976) Detroit passes anti-skid row ordinance Detroit wants to disperse a whole series of establishments it thinks causes problems of neighborhood degradation crime and the like (ie liquor stores, movie theaters that show sexually explicit films, billiards, bars, etc. Cannot be located within 1000 ft of the other). DOES NOT BAN THSE ENTIRELY Owner of an adult movie theater sues.

HELD this is valid ordinance REASONING Communication here is of lower value than core political speech This regulation is content based, but NOT viewpoint-discrimination. Regulation isnt concerned with the MESSAGE, but the effects on the commmunity How does Erzoznik different than Young o Erzoznik targets films containing nudity (goes after message)


o Young the movie theaters here arent being selectively targeted, but rather grouped with other uses that the city thinks in concentration with each other causes a deleterious effect on the neighborhood

Young Distinction from Erzoznik There is not the targeting of movie theaters, but rather one piece of a larger group i. Stevens Plurality in Young This is still Content-based, but the communications is or lower value than core/political speech. (so lesser protected) ii. Young may enable Jacksonville to go back and limit it case to make a new argument 2) Content-based or Content Neutral? lesser protected------>Content-basedIntermediate Scrutiny. [City doesnt have capacity to toally ban, but can do content based distinctions because we are not at intermediate scrutiny i. Does it make sense to create a lesser protected category for this kind of speech? student: while it appears content on its face, its true effect isnt to ban the speech, it just says you cannot have it in a certain area [which would have to be fully protected, content neutral, intermediate scrutiny the same path as Renton

ii. Secondary Effects Secondary Effects Balancing Test i. is regulation aimed at suppressing free speech? ii. Is the city intrerest in preventing community deteriration substantial?


iii. Were reasonable alternative avenues of communication available? iv. Is this Content based, or content neutral (Time, place, manner restriction)

Renton v. Playtime Theatres, Inc. (1986) LA ordinance attempted to CONCENTRATE adult theaters, not disperse them. Provided that such establishments may not be located within 1,000 feet of any residential zone, single- or multiple-family dweling, church, park, or school HELD This ordinance does NOT violate First Amendment these are content-neutral even though the ordinance distinghuished theaters based on content-shown were going to treat as content-neutrla, intermediate scrutiny o What is the argument for content-neutrality the purpose of the law has nothing to do with speech in the theater, but rather the secondary effects of having the theater there regarding the noncommunicative impact. The underlying justification for the law is more important than the TEXT

XII. Public Forum Doctrine

Two rights within the public forum 86

1) Right to speak 2) Right to speak on public property

this is the context in which the content-neutral restriction will arise most of our foxus in prior cases has been govt targeting types of speech due to HARM associated with that speech. It didnt matter where you spoke, it was WHAT you spoke. What mattered is there was some kind of speech content that the government thought was harmful and often govt tried to BAN IT FROM THE COMMUNITY

in the public forum cases, govt assumes regulatory interest not in what you are saying, but in the time, place, and manner.

Time, Place, Manner Restrictions

i) ii) iii) important govt interest

apply intermediate scrutiny

substantially related to goal leave open alternative means think Young/Renton, who both satisfied intermediate scrutiny

Time, Place, Manner restrictions are frequently upheld when: 1) they are content-neutral 2) serve significant/substantial govt interest 3) are substantially related to that goal 4) leave open alternative channels of communication


NOTE Total medium bans will often be STRUCK DOWN

Public Forum Argument Public Property belongs to the tax-paying public. We own the property, the govt is our agent. Govt controls/maintains the property for our use and benefit an historic common use of public spaces is to engage in conversation, to communicate ideas. They provide a meeting place for individuals to leave their home and engage with members of their community. If a citys majority can shut down the common areas as places where we can engage, then we are NOT a free community

Hague v. CIO Origin of right to speak in the public forum streets/sidewalks/parks, one purpose of this property IS to provide a forum for speech. We own it, and we have the right to be there.

Government is there to ensure equal access Rule privilege to use public forum must regulated for everyones use! Main point of Hague - If you view the right to speak in a public right as a positive right, now the government has a negative right that restricts the government from denying access to the public forum.


TOTAL MEDIUM BANS, and the Problem of Distribution

In SUM Court usually strikes down total medium bans Medium restrictions may be ok if there are alternative means of communication (i.e. Heffron, you can simply express your views ust outside the fair, and the fair doesnt last forever so its a Time, Place, Manner Restriction; in COMPARE, Watchtower highlights that Jehovas witnesses it is a tenet of their faith to go door-to-door, so this greatly restricts their freedom of speech

Balancing test Govermental interest balance with speech restriction, in addition to whether it disproportionately affects a specific group Thats why in Heffron the Court highlighted the first come, first serve element

When does govt violate intermediate scrutiny?

o Upheld Heffron v. International Society for Kirshna Booth Rule at Minnesota state fair with slots given on a First come, first serve basis Why? this is not an undue burden on exprssion, all you hav eto do is stand in line and you can say whatever you want at your booth Kovacs v. Cooper Ct upheld regulation on loudspeakesr. Prohibition wasnt absolute ban, ust applied to decibels. 89

o Struck Down Watchtower Bible & Tract Society v. Stratton (2002) court struck down municipal ordinances permit requirement for door-to-do proselytizers, reasoning that even though the ordinance was nondiscriminatory, and even though it did not amount to a total medium ban, it inhibited too much speech Court highlights tradition of Jehovas witnesses proselytizing this way, and to foreclose it (or inhibit it) in such a way is an undue burden on speech And there may not be realistic alternatives

Schneider v State you can speak, but NO LEAFLETS. Justified it on the grounds of preventing littering [p236-37] Court highlighted less restrictive means to control litter (i.e. ban on throwing literature into the street) [T]he purpose to keep the streets clean is insufficient to justify an ordinance which prohibits a person rightfully on a public street from handing literature to one willing to receive it

City of Ladue v. Gilleo doesnt like most signs at peoples houses [except for a dozen or so exceptions], bans persons AntiGulf War sign from outside her home. Woman would require permission and PERMIT to put up sign. Rationale was to ban


visual clutter. [our] prior decisions have voiced particular concern with laws that foreclose an entire medium of expression

Broad summary of Intermediate Scrutiny/Public Fora Heffron seems to say that a restrction will be ok if: If the government conscientiously regulates to address concerns of too much intrusion, Lessens speech hit as much as possible Selects reasonably narrow restrictions

= if the govt has done its best to balance govt interest and First Amendment right of access


Cox v. LA (1965) 2 laws invalidated: 1) Breach of the Peace demonstrators arrested under breach of peace ordinance arising from demonstration outside courthouse 2) Obustruction of free, convenient, and normal use of any pubic sidewalk or street by impeding traffic or passed- -> Cox was convicted for demonstrating. HELD struck down REASONING the statute here, while facially non-discrimiantory, leaves BOUNDLESS DISCRETION with officials to etermine which demonstrations to permit and which to deny. Such broad discretion allows officials to act as CENSORS


HEFFRON v. ISKCON (see above, upheld booth rule because it was first-come, first serve) Type of restriction like SCHNEIDER content neutral, secondary effects (this was upheld because it removed discretion of officals, and left open alternative methods of communicatio

Non-Traditional Public Forums

There are 3 types of forums 1) Traditional (Hague) 2) Designated forum (gvt intentionally opened nontraditional forum for public discourse 3) Non-public forum

[see pg 29-30 of Commercial outline for background]

Standard of Review for Non-Public Forums 1) Viewpoint neutrality? a. Like RAV unprotected expression, but still cannot engage in viewpoint


discrimination. If viewpoint discrimination STRICT SCRUTINY! 2) Rational basis

Perry Education Assn. v. Perry Local Educators Association (1983) A teachers union was denied access to school district mailboxes to distribute informational brochures.

Rule of Law. The government may reserve a forum for its purpose as long as the regulation is reasonable and not an effort to suppress views of its opponents.
The Trichotomy of Perry public forums [Plurality holding, so not quite firm law] 1) Traditional Public Forum (streets, sidewalks, parks Hague) a. content based subject to strict scrutiny, b. content-neutral (time, place, manner) subject ot intermediate 2) Designated Public forum government has designated this forum for the purpose of providing expressive opportunities for the public (i.e. stadium, auditorium, public theater). These are public forums, but their openness to public activity is dependent on the designated purpose of whatever the function of that entity. Government can indeed designate a limited public forum in three ways: a. Time i.e. Minnesota Fair of Heffron case b. Content/Subject matter [NOT VIEWPOINT] i.e. city council meeting in which the subject matter is school board meeting, but someone can be ruled


c. Speaker Identity state university opens university meeting rooms ONLY to enrolled students, and not other members of the public. A designated public forum is under control of its creator [government creates it, and thus can regulate what goes on there] 3) Nonforum government property that is neither traditional nor a designated forum. You have NO FIRST AMENDMENT RIGHT OF ACCESS. a. Standard of Review restriction must meet RATIONAL BASIS, and cannot be viewpoint discrimination. b. KEY under PERRY analysis Either traditional or government purpose/intent control c. The only way you get government protection is: Hague shortlist, or govt consciously designated a forum d. If a government does NOT designate it as a forum, it is not a forum, even if i. It is open to the public ii. Location could accommodate speech without question

XIII. Impermissible Methods of Restricting Speech Overbreadth, Vagueness, and Prior Restraints


Primary Value of vagueness, overbreadth, or prior restraint claim * provides an avenue of protection for people engaged in unprotected speech Is the last resort for scoundrels These can also be POWERFUL DOCTRINES even when going after protected speech

HOWEVER Courts has been careful to limit their applicability. So lawyers, many times, will just throw these words out there.



this is really a procedural due process doctrine there must be fair notice to be heard before govt convicts

idea that is statute is too vague, then individuals dont have enough notice to know that their conduct could merit prosecution

Standard Vagueness is NOT the same as ambiguity. The constitutional guarantee is NOT whether you know with certainty that your conduct is criminal. The Standard is whether you have fair notice that your conduct MAY trigger a prosecution Does the statute tell me enough that I understsand that there is a risk of prosecution?

Werhans Feel of these cases its not ambiguity, its where the court sees ambiguity as an invitation for 95

content-based censorship

Example the Miller Test this has been criticized as constitutionally vague: 1) appeal to prurient interest, 2) patently offensive; 3) lacking serious value [Huh?]

While it may be AMBIGUOUS, people who sold obscene material would at least be ON NOTICE

WHAT IS OK? i. Kovacs v. Cooper

restriction against sound trucks that emit loud and raucous noises CT that is ok

ii. Grayned v. City of Rockford

* Law prohibits demonstration on or near a school where you produce any noise or diversion that disturbs or tends to disturb the good order of a school session Ct OK!

What is not ok?


iii. Smith v Goguen person has a flag sewn in a back pocket -- > struck down law prohibiting contemptuous treatment of flag. iv. COATES v. CINCINNATI had a law against the assembly of three or more persons to assemble on any of the sidewalks and there conduct themselves in a manner annoying to persons passing by

So what makes them vague? well, annoying and contemptuous are both SUBJECTIVE, while being loud or disturbing is more objective (or at least gives people fair warning) How do you know when treatment is contemptuous? is inverting a flag stamp contemptuous? Platform for viewpoint discrimination i.e. what is annoying can fall into a disapproval of the speaker/speech; while being LOUD is a content-neutral concern


This term is similar to vagueness as it invalidates sloppily written lawss Court enforces this First Amendment Oblgiation to legislators to draft with CARE and ATTENTION when they are addressing First Amendment freedoms dont go farther than you have to go to vindicate your interest


Definition - Overbreadth applies when a statute doesnt just encompass unprotected activity, it also pulls in too much protected expression A court will strike down a law as overbroad EVEN THOUGH the law could be upheld had it been narrowly drawn to encompass only unprotected speech What is the Tipping Point? where the law is Substantially overbroad such that effects so much protected speech and chill so much speech that we cannot cure overbreadth on a case-by-case basis

Under Broadrick v. Oklahoma [p 347], a law is overbroad if 1) it includes a substantial amount of protected speech in relation to unprotected speech 2) suggested that overbradth analysis was less applicable when the challenged statute affected conduct rather than speech


Ferber (child pornography) Ferber makes an overbreadth argument, his claim (the boys masturbating) is clearly unprotected child porn, but you should invalidate statute because it would encompass PROTECTED EXPRESSION i.e Romeo and Juliet, depcitions with VALUE


Court response We are looking at the statute and we concede that there are some possible unconstitutional applications; but the statutes coverage of possibly protected expression is incredibly slight compared with its coverage of unprotected expression. So court leaves this to an as-applied basis

On the other side

Board of Airport Commissioners v. Jews for Jesus (1987) Los angeles passes law that bans all First Amendment activity if it goes against Airport policy of the Board of Airport Commissioners

Held - this is clearly overbroad on its face.

Key to substantiality U.S. v. Stevens (animal cruelty case) this could cover protected expression! * the claim was that crush videos were not worrhty of expression but it invalidated depictiosn of intentional killing of animals in violation of any state The Court in effect, held the law to be overbroad (held open possibility of addressing just crush videos) Court saw a problem for hunting videos that celebrate intentional killing of animals that is VERY DISTINCT from crush videos And since D.C. bans hunting, this could be a problem if you


viewed a huntin video in DC Here, the legitimate applications (hunting videos) DWARFT the illegitimate (Crush videos)

In Ferber, the illegitimate (child porn) DRAWRFS the legitimate (valuable representation)

C. Prior Restraint

Definition involves people being prosecuted in cases of civil liability like defamation (speech occurs, and person possibly pays a penalty) When the statute doesnt seek to impose a punishment on the speaker after the fact, but seeks to prevent before the fact speech taking place; that violates prior restraint EXAMPLE having to get a permit to have a rally in a park

How to think about these cases? court applies CONTENT DISTINCTION ON STEROIDS!!! 1) Court doesnt look just if the state HAS practiced content discrimination. A state will invalidate a standardless permit system if it runs the risk of allowing the state to approve or disapprove based on content with unfettered discretion 2) However, if a permitting system has standards that limit the discretion of the


permiting officials, and the standards are content-neutral and are sufficiently specific to disable censorship, the court will apply INTERMEDIATE SCRUTINY Prior Restrain Argument this is only available when the nature of the action isnt done to punish someone for what they have said, but rather PREVENTING them from even speaking

SEE Pp 363-65 Freedman v. Maryland (1965)