2008 Constitutional Law Ii- 1St Half

Front 1

outside first amendment coverage

Back 1

not protected by first amendment:
incitement, fighting words, libel, obscenity, and child pornography

Front 2

Blackstone view

Back 2

liberty of press has no previous restraint upon publication, no censorship, heavy strict scrutiny

Front 3

how to uphold prior restraint

Back 3

1) government authority must have burden of proving that the action violates constitutional guidelines
2) procedure for making determination in the shortest possible duration
3) immediate juridical review with speedy resolution

Front 4

seditious libel

Back 4

intentional publication without lawful excuse/justification, of written blame of any public man or of the law or any institution established by law.

Front 5

free speech serves three principal values

Back 5

1) advancing knowledge and truth
2) essential to representative government. all viewpoints should be presented at a town forum to arrive at a wise national policy
3) value of individual liberty, autonomy, and self-fulfilment

Front 6

Schenk v. U.S.

Back 6

Issue: distribution of leaflets encouraging conscripts to resist the draft
Regulation of political speech
1) Right of free expression is NOT absolute. Varies with circumstances
2) Question #1: Is Congress pursuing a proper end/purpose in the legislation
3)How far can Congress before reaching the 1st amendment protection

Front 7

Clear and Present danger

Back 7

Case: Schenk
action brings about substantive evil that Congress has the right to prevent
unless the restrictive law is narrowly tailored to advance an important purpose, the freedom o f speech must prevail

specialized form of strict scrutiny
permit restriction when
1) necessary to advance a substantial, overriding governmental interest
2) only when the danger presented is such that the government has NO other option but to punish speaker

Front 8

Frohwerk v. U.S.

Back 8

issue: newspaper article create a clear and present danger
Answer: Yes. articles could kindle a larger flame to the war effort

Front 9

Debs v. U.S.

Back 9

Issue: Can political speech denouncing public policy and advocate alternative be considered a criminal act?
Answer: yes. resist draft which is an illegal activity

Front 10

Abrams v. U.S.

Back 10

Issue: Russian immigrant distribute leaflets to advocate general strike and urge worker in munition factory to stop production. Can Espionage act include defendant's goal to aid Russian revolution
Answer: Yes. stop America's war effort
Dissent: no present danger or interference with congress's action
free trade of ideas is needed for attainment of truth

Front 11

categorization

Back 11

some kinds of speech are within "the freedom" and protected.
Not in the category is not protected

Front 12

Balancing

Back 12

all speech has some potential value. government must bear the burden of justification for limit EVEN in unprotected areas

Front 13

self-government elements

Back 13

1) deliberation
2) clear channels of change
3) checks governmental abuse
4) safety valve for dissent

Front 14

what are traditional rationales

Back 14

1) self-government
2) search for truth
3) autonomy, self-realization

Front 15

Hand's incitement test

Back 15

1) duty to resist mentioned
2) interest of the person addressed in resistance is not suggested

State needs to show that the speaker urged that very action

a speaker could criticize draft laws unless that criticism took the form of urging listeners that they had the duty to dodge the draft --> the violation

Front 16

Gitlow v. New York

Back 16

Issue: Can States prohibit advocacy of criminal advocacy when there is no concrete result or likelehood of such a result
Answer: Yes, danger to general welfare, statute is not arbitrary/unreasonable
absence of actual result is irrelevant
sufficient likelihood existed

dissent: no clear/present danger

Front 17

Whitney v. California

Back 17

Issue: Can the State outlaw mere membership in a criminal organization even if the individual member intends no criminal acts

Answer: Yes. state may exercise its police power to exercise police power to outlaw organization menacing the peace/welfare of the state
Person who abuse the right of association by joining such an association is not protected by due process clause

Front 18

clear and present danger evidence rule

Back 18

1) evidence of any actual effect of the speech
2) type of language used - ex. advocacy of action
3) circumstances in which the words are spoken
4) intent of the speaker

Front 19

Dennis v. United states

Back 19

issue: may congress pass a law forbidding association with organization advocating overthrow of the gov't.
Held: Yes
Protect gov't, clear and imminent danger
Dissent: reasonableness debate, mere advocacy question

Background: communist furor background

Front 20

Brandenburg v. Ohio

Back 20

KKK leader invited tv crew to cover a private rally
Issue: may a state law prohibit advocacy of civil disruption without distinguishing between mere advocacy and incitement to imminent lawless action

Answer: no
Mere advocacy of the use of force or violence does not abrogate first amendment protection

Front 21

Cantwell v. Connecticut

Back 21

Held: no intent to assault and offend listeners to incite violence. left upon being asked, no expression of clear/present menace to public peace/order

Front 22

Chaplinsky v. New Hampshire

Back 22

statute involved interpreted narrowly
Hold: state may forbid the use of fighting words in a public place that would be likely to cause an addressee to fight

Front 23

Cohen v. California

Back 23

May a state excise as offensive conduct (wearing shirt with fuck you) public use of an offensive words
Hold: no

Gov't has special rights to regulate words=obscene, fighting words, intrude substantially privacy interest in an intolerable manner

Front 24

what are government special rights

Back 24

Gov't has special rights to regulate words=obscene, fighting words, intrude substantially privacy interest in an intolerable manner

Front 25

hostile crowd and protected speech

Back 25

Chaplinksy
by the very utterance tends to incite an immediate breach of the peace is not constitutionally protected
Compare v. clear/present danger, invitation to dispute

Front 26

Feiner v. U.S.

Back 26

Issue: May police act to suppress speech that in their judgment is causing a breach of the peace.
Hold: Yes, clear and present danger
Problem: arrest wrong person?

Front 27

Kunz v. New York

Back 27

sister case to Feiner v. U.S.
Hold: struck down a NYC ordinance that made it unlaw to hold public worship meeting on city street without first obtaining a permit from the city police commission
Held as PRIOR restraint on exercise of first amendment right
Facially invalid: ordinance assessing varying fees

Front 28

Beauharnais v. Illinois

Back 28

Issue: may group libel (ridiculing any sex/race of any color/gender) be made illegal even without showing clear/present danger.

Holding: Yes
Balance: whether or not the purpose (ie. prevent race riot) and means used by the legislation was reasonable

Front 29

NY Times v. Sullivan

Back 29

Issue: Do the First/14th amendment prohibit state rules that would allow a public official to recover damages for a defammatory falsehood related to his conduct without proof of actual malice (mens rea)

Held: Yes
Damage awards- chilling effect public criticism
uninhibited debate on public issues
does not turn on truth/ideas expressed

Front 30

defamation, Type of person and free speech impact

Back 30

if defamed person is neither a public figure not a public official, free speech consideration is as wrong
private individuals are susceptible to injury with less access to media to counteract false charges

Front 31

defammation and actual injury

Back 31

damage limited to actual injury
include: any out of pocket expenses plus impairment of reputation, personal humiliation, and mental anguish

Front 32

Intentional infliction of emotional distress requirements and public figures

Back 32

showing of falsity made with actual malice- standard used when public figures are involved

Front 33

RAV v. St. Paul

Back 33

Issue: May the government regulate "fighting words" based on the subjects the speech addresses
Held: No
-seeking to handicap the expression of particular ideas
-ordinance applies only to fighting words that insult or provoke violence

Front 34

Hate Crimes and RAV holding

Back 34

RAV ordinance was directed at expression, while hate crimes is conduct unprotected by the first amendment
Validates: enhancement statute for hate crime statute

Front 35

Virginia v. Black

Back 35

Issue: may a criminal statute provide that the burning of a cross shall be prima facie evidence of an intent to intimidate when such an intention is one of the elements of the crime?

Held: No
Intimidation is a true type of threat- under government regulation

Front 36

obscenity balancing test: Roth

Back 36

whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a while appeals to prurient interest

Front 37

Roth v. U.S, Alberts v. California

Back 37

Is obscenity, judged by the proper standard, outside the protection of the first amendment
Held: Yes
Obscenity is without redeeming social importance, no constitutional protection
obscenity is not synonymous with sex
appeal to prurient interest=unprotected

Front 38

Regulation of obscene material restricted to what?

Back 38

works that depict or describe sexual conduct and must specifically define that conduct

Front 39

Guideline for trier of fact and obscenity

Back 39

1) average person, applying modern community standards, appeals to pruient interests
2) work depicts/describe in a patently offensive way, sexual conduct specifically defined by applicable state law
3) lack of any value

Front 40

NY v. Ferber

Back 40

Issue: May a state prohibit distribution of all child pornography, even without requiring it be legally obscene

Holding: Yes. Compelling state interest in safeguarding, distribution of child porno is intrinsically related to sexual abuse of children bcs the distribution aggravates the harm of the child.
harm of abuse is unrelated to any value

Front 41

FCC v. Pacifica Foundation

Back 41

Issue: does the federal government have power to regulate a radio broadcast that is indecent BUT not obscene

Held: Yes
power to regulate, limit license, forbid the use of any "obscene, indecent, or profane" language. Disjunction. each word has its own meaning

Front 42

Broadcasting and first amendment

Back 42

has the most limited first amendment protection --> unique ability to penetrate privacy and its accessibility to children

Front 43

Content neutral

Back 43

regulation cannot be based on the content of the speech, absent substantial justification

Front 44

narrowly tailored

Back 44

regulation may not burden substantially more speech than it is necessary to further the significant government interest.
NOTE: regulation need not be the LEAST restrictive means of accomplishing the goals

Front 45

significant interest

Back 45

regulation must further an important government interest

Front 46

alternative channels open

Back 46

law must leave open alternative channels of communications so that other reasonable means for communicating the idea must be available

Front 47

obscenity contemporary community standards

Back 47

1) appeals to the prurient interest in sex
2) portrays sex in a patently offensive way
3) does not have serous literary, artistic, political, or scientific value (national/reasonable standard)

Front 48

malice definition

Back 48

knowledge that the statement was false OR reckless disregards as to its truth or falsity

Plaintiff must show that the defendant was subjectively aware that the statement he publishes was false OR
subjectively entertained serious doubts at to its truthfulness

Front 49

Two ways to become a public figure

Back 49

general fame/notoriety
involvement in particular controversy

Front 50

examples not deemed public figures

Back 50

spouse of wealthy person
person engages in criminal conduct
scientist in federally funded program

Front 51

private individual suiting on matter of public concern

Back 51

negligence is required in failing to ascertain the truth of the statement

if fail to show malice, need to provide competent evidence actual damages

Front 52

actual damage from private individual

Back 52

economic loss
injury to plaintiff's reputation in the community
personal humiliation and distress