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66 Cards in this Set
- Front
- Back
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Low Level Speech: Outside 1st Amendment Protection
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Obscenity
Hate Incitement Defamation Threats |
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Levellers
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Party in England that claimed freedom of the press, free exercise of religion, and a host of procedural guarantees for those accused crime
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Sedition Act
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Made false or malicious criticism of the President or Congress a crime --> Expired at beginning of Jefferson presidency
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Daniel Worth
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Convicted under Black Tendency Theory in NC for distributing abolition materials in 1859
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Espionage Act of 1917
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Could not cause insubordination in the military or obstruct draft
-Could not promote the success of the governments enemies |
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Patterson v. Colorado (1907)
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(Justice HOLMES)
-1st was just to prohibit prior restraints |
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Sedition Act 1918
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-Prohibited saying anything with the intent to obstruct sale of war bonds; prohibited writings/language against US government and its flag
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Schenck v. United States (1919)
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(Justice HOLMES)
-Conviction under Espionage Act of socialist advocating draft resistance upheld -Clear and Present Danger Test --> Whether words used are used in such circumstances and are of a nature to bring about substantive evils |
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Debs v. United States (1919)
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(Justice HOLMES)
-Bad Tendency test of Clear and Present Danger -"Identical" situation to Schenck |
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CLEAR AND PRESENT DANGER Test [Brandenburg Test]
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[Brandenburg]
(1) Advocacy is directed to inciting or producing imminent lawless action (2) Likely to produce such action |
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Gitlow v. New York (1925)
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(Justice HOLMES)
-First case of 1st Amendment incorporation through 14th Amendment -Reasonableness Test |
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Brandenburg v. Ohio (1969)
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(Per Curiam)
-KKK leader convicted under Ohio syndicalism law overturned -Advocacy distinguished from incitement (1) Directed to inciting or producing imminent lawless action (2) Likely to incite action |
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Vagueness in Speech Statutes
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-A person of ordinary intelligence would not be able to tell what is forbidden or allowed*All vague are overbroad, not all overbroad are vague
-Avoid chilling effect on speech + Fair notice + Enforcement discretion |
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Overbreadth
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-Bans too much clearly protected speech --> "Scope exceeds proscribable content"
(1) Restricts significantly more speech than the Constitution allows to be controlled (2) Facial Challenge --> Unconstitutional to others (a) Can challenge conviction if substantially overbroad, even if could have been punished under narrower statute |
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"Saving Construction"
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State Supreme Court interpreted statute with narrower application -->On remand, Trial Court will read the statute to the jury and tell the jury that State SC interpretation
**US Supreme Court cannot apply its own saving construction to state law |
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Prior Restraint
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Governmental regulation designed to suppress speech before its dissemination to the public
*Presumption against prior restraint, but not all prior restraint unconstitutional |
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Near v Minnesota (1931)
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(Justice HUGHES)
-Minnesota law that provided injunctions of "malicious....defamatory newspaper" unconstitutional -After the fact punishment appropriate measure, not prior restraint -Prior Restraint only for: (1) Wartime secrets (2) Obscene materials (3) Incitement to acts of violence |
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New York Time v. US (1971)
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(Per Curiam)
-Pentagon Papers case, injunction on publication of secret defense history of Vietnam War was prohibited |
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Content Discrimination
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-Some types of expression presumptively unprotected
*Can ban even with rational basis --> Obscenity, etc -Commercial speech --> Intermediate Scrutiny -Banning speech on entire subject receives strict scrutiny -Viewpoint Discrimination also receives SS |
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US v. Playboy (2000)
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(Justice KENNEDY)
-SS --> Presumption that all content based regulation receives SS -Shielding children will not suffice if protection can be accomplished by a less restrictive alternative |
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Defamation and Infliction of Emotional Distress
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-False information has no societal value
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Public Official and Defamation
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-Liability --> ACTUAL MALICE for facts
-Actual Malice --> knowing that something is false, or acting with reckless disregard to the fact that it could be false -Public officials --> Hold a place of apparent importance that the public has an independent interest in their performance (Rosenblatt v Blair) -Falsity --> Do statements clearly, or by clear implication, contain factual statements (1) Must be Public official or running for public official (2) Prove case with clear and convincing evidence (3) Falsity of the statement(s) in question (4) Prove actual malice -P proves falsity and challenged behavior by clear and convincing evidence -New York Times v. Sullivan |
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Voluntary Public Figure and Defamation
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-Liability --> Actual Malice
-P proves falsity and challenged behavior by clear and convincing evidence -New York Times v Sullivan + Butts |
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Involuntary Public Figure and Defamation
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-Liability --> Negligence, no actual malice
-Actual malice = punitive damages -P proves falsity and challenged behavior by clear and convincing eivdence -Gertz v. Robert Welch Inc |
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Private Figure and Defamation
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-Liability --> Negligence/ maybe Strict Liability
-P must prove falsity, but by preponderance of the evidence |
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Beauharnais v. Illinois (1952)
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(Justice FRANKFURTER)
-Affirmed conviction of individuals who urged Mayor and City Council to protect white neighborhoods from "the Negro" -Upheld state statute that prohibited publication that portrayed race, religion, or groups of peoples in a terrible way -Due Process + RB used |
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New York Times Co. v. Sullivan (1964)
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(Justice BRENNAN)
-Elected commissioner in Alabama sued NY Times for an advertisement in Times that criticized the way police mistreated civil rights demonstrators -Tort Liability in AL violated 1st Amendment |
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Gertz v. Robert Welch, Inc. (1974)
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(Justice POWELL)
-Media cannot claim 1st Amendment privilege against private individuals --> State has strong interest in protecting its citizens *Does NOT apply when it does not involve matters of public concern -To classify, court must look at extent of individual's participation in the controversy giving rising to the defamation |
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Fairness Doctrine (Revoked 1987)
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Broadcaster were required:
(1) To cover vitally important controversial issues in their communities (2) Provide reasonable opportunity for the presentation of contracting viewpoints |
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Red Lion Broadcasting v. FCC (1969)
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-Red Lion accused of violating Fairness Doctrine
-Government may restrict who gets a license due scarcity of radio frequencies --> No constitutional rights in relation to that frequency - |
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Miami Herald v. Tornillo (1974)
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(Justice BURGER)
-Distinguished from Red Lion --> Newspapers are not limited and thus cannot be restrcited by government -Florida statute that forced newspaper to print replies to political attack = Unconstitutional -SS --> Herald is not required to give equal space to replies -Florida statute would chill speech because it would likely exclude controversial issues |
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Obscenity
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-Obscene speech falls outside the protection of 1st Amendment
-Not all pornographic material is outside protection of 1st Amendment --> Must be found to be obscene (Miller Test) (1) Whetherthe ‘average person, applying contemporary community standards would find thatthe work, taken as a whole, appeals to the prurient interest. (2) Whetherthe work depicts or describes, in a patently offensive way, sexual conductspecifically defined by applicable state law. (3) Whetherthe work, taken as a whole, lacks serious literary, artistic, political orscientific value. |
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Roth v. United States (1957)
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(Justice BRENNAN)
-Obscenity is not protected -Test: Whether average person, applying contemporary community standard, would find that the dominant theme appeals to purient interest |
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Miller v. California (1973) --> BASE OF OBSCENITY
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(Justice BURGER)
-Pamphlets advertising sexual products handed out, even to individuals who did not request (1) Whether the ‘average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest. (2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law.(3) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. |
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Paris Adult Theater I v. Slanton (1973)
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(Justice BURGER)
-States have power to make "morally neutral judgment" that public display of obscene material has a tendency to injure community as whole, endanger public safety, or contradict "decent society" -RB --> Legitimate state interest in limiting public obscenity, even if only shown to consenting adults |
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Oregon v. Henry (1987)
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(Oregon Supreme Court)
-State can raise ceiling of 1st Amendment obscenity standard, but cannot go below Miller |
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American Booksellers Association v. Hudnut (1985)
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(7th Circuit)
-MacKinnon ordinance in Indianapolis overturned --> Different standard for porn and ordinances against depiction of women as objects -Viewpoint Discrimination |
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Child Pornography
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-Outside protection of the 1st Amendment even without Miller
-Computerized or adults who look like children outside of the context --> Must satisfy Miller -Child Exploitation statutes |
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Indecent Speech
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-Sexual expression that is not obscene protected by 1st Amendment
-FCC regulation of indecency --> Languageor material that, in context, depicts or describes, in terms patently offensiveas measured by contemporary community standards for the broadcast medium,sexual or excretory activities or organs. (FCC v. Pacifica, 1978 Stevensopinion) -GOVERNMENT CAN REGULATE HOURS OF INDECENT MATERIAL ON BROADCAST RADIO/BROADCAST TELEVISION *Cannot regulate hours on cable tv, satellite radio, or internet --> Infinite "frequencies" |
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Cohen v. California (1971)
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(Justice HARLAN)
-"F**k the Draft" shirt in courtroom conviction of disturbing the peace overturned -" State has not right to cleanse public debate to the point where it is grammatically palpable to the most squeamish of us" -Just because others find it offensive doe not make it so --> SS *No "fighting words" nor "captive audience," not incitement nor obscene |
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Reno v. ACLU (1997)
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(Justice STEVENS)
-Communications Decency Act deemed unconstitutional in regards to indecent, profane language restriction through radio --> Obscene restriction upheld -All obscene material is indecent, but not all indecent material is obscene |
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City of LA v. Alameda Books, Inc (2002)
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(Justice O'CONNOR)
-Plurality upheld city ordinance preventing two adult businesses from being located within 1000 feet of each other or 500 feet from religious bld. -IS |
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Fighting Words
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-Unprotected by 1st Amendment --> Words that by their very utterance inflict injury or tend to incite an immediate breach of the breach
-Only slight social value (if any) clearly outweighed by the social interest in order/morality CHAPLINSKY TEST (1) Likely to inflict immediate emotional harm (2) Cause a violent response from the speaker |
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Chaplinsky v. New Hampshire (1942)
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(Justice MURPHY)
-Jehovah's witnesses were convicted under statue regarding "Annoying" and "offending" behavior for calling other religious factions racketeers and fascists -Fighting Words Test: Words that men of common intelligence would understand to be words likely cause an average addressee to fight |
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Hate Speech
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-Regulations must target the evil without the unduly suppressing speech that should be protected and defines with specificity
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R.A.V. v. St. Paul (1992)
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(Justice SCALIA)
-Ordinance that prohibited placing on public or private property "including burning crosses or Nazi swastikas, which one knows or has reasonable grounds to know arouses anger etc" -No content discrimination is allowed even in unprotected speech categories --> BLANKET BAN might be constitutional, not content discrimination |
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Exceptions to R.A.V
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(1) Discrimination directly advances the reason why category of speech is unprotected --> Worst kind of larger category
(2) Law directed at remedying secondary effects of speech and is justified w/o respect to content (3) Other basis to think statute is not ideologically lopsided |
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Virginia v. Black (2003)
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(Justice O'CONNOR)
-Statute made it a crime to burn a cross on public property or property of another with the "intent of intimidating any person or group" --> Black, KKK, supervised cross burning -Statute was unconstitutional --> May ban cross burning carried out with intent to intimidate, proof of intent beyond cross burning *If statute treats cross burning as prima facie evidence of intent to intimidate --> Unconstitutional -Statute did not differentiate between cross burnings done w/ anger/resentment (not proscribable) and those done with intent to intimidate *Gov't may ban all cross burnings done with intent to intimidate |
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Symbols and Silence
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-Non-verbal actions/conduct protected by 1st Amendment--> Gov't seeks to regulate conduct that accompany the speech rather than the speech itself
Symbolic Conduct Test (1) Expressive idea (2) Reasonable authority would understand the message (1) Consider nature of conduct (2) Factual context (3) Environment (4) Actor has an intent to communicate a message and whether the audience would understand the message Was state regulation suppression of protected speech? No --> O'Brien Yes --> Higher level of scrutiny O'Brien Test (1) Regulation within Constitutional Power (2) Regulation furthers an important or substantial government interest (3) Government interest is unrelated to the suppression of free expression (4) Restriction is no greater than essential |
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Minersville School Dist v. Gobitis (1940)
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(Justice FRANKFURTER)
-Statute forcing flag salute at school upheld - LLRB --> Reasonable, rational to encourage citizenship and civic pride |
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West Virginia Bd of Ed v. Barnette (1943)
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(Justice JACKSON)
-Jehovah's witnesses challenge school regulation requiring student to salute the flags --> Statute invalidated -State had no power to force students by words or act their faith in any particular view of politics, nationalism, etc. --> Individual right not to be forced when they disagreed due to religion -Implicitly accepting Carolene Products Footnote 4 |
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Wooley v. Maynard (1977)
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(Justice BURGER)
-Covering up "Live Free and Die" on license plate was illegal -State's interest in promotion of history and state pride to be insufficient --> No ends/means fit |
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Boy Scouts of America v. Dale (2000)
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(Justice REHNQUIST)
-Freedom of Association allows Boy Scouts to exclude gays in violation of anti-discrimination statute -"Expressive message" of Boy Scouts was opposition to homosexuality --> SS analysis of state anti-discrimination statute -Forced association undermines expressive message of the private group |
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United States v. O'Brien (1968)
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(Justice WARREN)
-Burning of draft cards in violation of statute -Regulation of non-speech communication: {IS} (1) Regulation within Constitutional Power (2) Regulation furthers an important or substantial government interest (3) Government interest is unrelated to the suppression of free expression (4) Restriction is no greater than essential |
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Texas v. Johnson (1989)
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(Justice BRENNAN)
-Conviction of burning flag under statute that burning flag in way the actor knows will "offend" someone--> Unconstitutional -Government interest was related to expression --> Viewpoint Discrimination *Statute only prevented communicative flag burning |
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United States v Eichmann (1990)
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(Justice BRENNAN)
-Flag Protection Act of 1989 unconstitutional -Keeping flag from being agent of communication and protest -Focused on the message --> SS |
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Commercial Speech
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Central Hudson (1980)
(1) Protected by 1st Amendment? (2) Asserted government interest substantial? (3) Directly advance the government interest asserted? (4) Regulation more extensive than necessary to serve that interest? |
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Traditional Public Forum (TPF)
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Streets, sidewalks, and parks --> Intermediate S
-1st Amendment right to use the property for speech -Content neutral regulations --> Use O'Brien -Content based regulations --> VP discrimination and SS -Must be no reasonable alternative |
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Non-Public Forum (NPF)
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-Closed related to public speech purposes
-LLRB --> Except for VP discrimination [SS] |
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Designated Public Forum (DPF)
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-Non-public forums which government has opened up to the public for speech purposes
Rules: (1) O'Brien Test (2) Narrowly tailored to significant govt interest -DPF not created w/o clear and express intent of government -More broad application of O'Brien Test + IS |
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Permissible Content Regulation v. Viewpoint Discrimination in Forums
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Permissible Content Regulation
TPF --> [IS] Narrowly tailored to serve significant government interest AND leave open ample channels of communication DPF --> [IS] NPF --> [RB] Viewpoint Discrimination -SS for All! |
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Schneider v. New Jersey (1939)
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(Justice ROBERTS)
-Statute that prohibited the distribution of leaflets on public property unconstitutional -Must allow distribution even if it imposes litter costs. Not narrowly tailored to meet this end |
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Clark v. Community of Creative Nonviolence (1984)
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(Justice WHITE)
-TPF analysis switched from SS to IS -Restriction on sleeping park served important purpose of preserving the attractiveness of the parks, and that it left adequate ways of expressing the message of CCN |
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United States v. Kokinda (1990)
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(Justice O'CONNOR)
-Upheld restriction on solicitations on Post office properties --> Sidewalks on Post office property were a nonpublic forum -DPF to certain conduct and in relation to business of Post Office |
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Perry Education Association v. Perry Local Educator's Association (1983)
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(Justice WHITE)-Upheld exclusion of rival teacher's union from using intra-school postal system-Limited resources of DPF (NPF to other union)
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Spence v. Washington (1974) |
(Justice BLACKMUN) Symbolic Conduct Test (1) Expressive idea (2) Reasonable authority would understand the message |
