Ls - Con Law Ii First Amendment

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Two ways speech can be abridged

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"Prior restraint (presumptively unconstitutional), Subsequent punishment"

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Level of scrutiny for 1st amendment rights

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Strict scrutiny

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Symbolic Speech Doctrine Test

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"Speech can also include conduct that rises to the level of speech for first amendment purposes. Two part test:a) An intent to convey a particularized message with that conduct.b) A substantial likelihood that the message would be understood as intended.

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List the Theories of Free Speech

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"VDCIST - safety Valve funciton, Democratic self governance, Checking function, marketplace of Ideas, Self-realization, Tolerant Society"

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Marketplace of ideas

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"A metaphor based on economic ideas. All ideas, no matter how offensive come out, rational discussion, truth comes from debate."

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Problems with Marketplace of Ideas theory

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1)     Not all ideas have equal opportunity for exposure because of unequal access 2) oversaturation 3) debate isn’t irrational 4) debate can be emotion (hate speech)

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Democratic Self-Governance Theory

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Political speech is more privileged than private speech in order to promote self-governance.

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Problems with Democratic Self-Governance Theory

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1) Line drawing between private & public speech is difficult therefore statutes that protect political speech may be vague 2) Devalues other types of speech.

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Self-fulfillment/Self-realization

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Speech can be valuable to you as an individual regardless of whether it helps anyone else out.

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The Checking Value of Free speech

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Press acts as a watchdog – 4th branch of government

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Problems with the Checking Value of Free speech

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1)     Anyone can technically be a journalist 2) we don’t want to give the press more privileges so we compress Freedom of speech w. freedom of press.

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The Safety Valve Function of Free Speech

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People speak instead of rioting.

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The Tolerant Society

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We have a collective identity and Collective goodwill is achieved by tolerating the intolerant views of others.

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Cohen v. California

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"“fuck the draft.” Absent a compelling reason for its actions, the state cannot abridge the freedom of speech. No obscenity because people can avert their eyes, not captive. Fuck doesn’t conjure fucking in this context. Not fighting words b/c it isn’t directed at one person. Court emphasized how political speech demands great protection. This is viewpoint based censorship."

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Unprotected Speech

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"FITCOPVIC - Fighting words, Incitement to violence, True threats, Commercial Speech, Obscenity, Profanity, Variable Obscenity, Indecency, Child Porn."

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Fighting Words Three part test

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1)     Addressee: directed at a person or group. 2) abusive epithets or insults that are as a matter of common knowledge inherently likely to provoke a violent reaction when addressed to the ordinary citizen. 3) words must be evaluated in the context in which they are used to determine if it is likely that the addressee would react violently.

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Chaplinsky v. New Hampshire

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"“God damned racketeers” and a “damned fascist”. Heckler’s veto. Fighting words are “words which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The Cohen Court suggested that “fighting words” must be Face-to-face, and directed at a person., Must be intended to provoke that person , They must provoke a violent reaction in a person of common intelligence. Only case where the SC has upheld a fighting words conviction"

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Vagueness/Overbreadth

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Vagueness: ordinary person wouldn’t know what it meant. Overbreadth: sweeps up too much speech so that protected speech is within the ambit of the statute.

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Texas v. Johnson

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"I. Texas statute that prohibits flag desecration. Rule: Flag burning is expressive conduct and not fighting words b/c no one would see it as a personal insult or an invitation to fight. However, when speech and non-speech elements are combined an important governmental interest in regulating the non-speech element can justify incidental limitations on first amendment freedoms. (DRAFT CARD)"

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MODERN TEST FOR INCITEMENT TO VIOLENCE:

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"1)     Lawless Conduct (Look for a statute) 2) Intent for lawless conduct (can be inferred from circs, look for express advocacy) 3) Imminence that lawless conduct will occur (Call for immediate law violation, Proximity & Degree of Harm) 4) Likeliness that lawless conduct will occur"

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Schenck v. United States

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Advocated obstructing the draft. Does it create a clear and present danger substantive evils that Congress seeks to prevent will occur? Proximity + Degree (Wartime Situation).

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Brandenburg v. ohio

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"KKK statement that if the government continues to suppress the white race they may take revenge. Test: can’t forbid speech that advocates the use of force or the violation of a law unless the advocacy is directed to inciting and is likely to incite imminent lawless . (Intent + Imminence, not conditional language)"

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Cases that dealt with imminence

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"Hess (we’ll take the fucking street later), NAACP “if we catch you going into those racist stores”"

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Cases that deal with intent

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"Hustler (orgasms of death, no intent b/c of warning), Olivia N. (no intent w/ plunger rape). Paladian Enterprises (hit man book could be held liable – had intent"

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Attack Sequence for True Threats

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1)     look for an individual or group that is threatened. 2) True threats encompass those 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 of individuals. Intent to carry out the threat is not necessary. 3) Discuss JXD Split on Subjective/Objective 4) Discuss Political Hyperbole (Watts Factors)

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JXD SPLIT on Intent for true threats

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a) Subjective – Two approaches (1)Knowingly makes statement and intends to communicate threat or (2) Knowingly makes statement and intends to place someone in fear. B) Objective – D knowingly makes a communication that reasonable person finds threatening.

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True Threat vs. Political Hyperbole

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" (Watts Factors – LBJ Case) Political hyperbole is not a true threat. How to tell if it is a true threat or political hyperbole? 1) The audience’s reaction 2) The conditionality of the triggering event 3) The public nature of the speech 4) The backdrop of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open."

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Planned Parenthood v. Am. Coal. Life Activists

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Website dossier of abortion docs w/ wanted posters. Uses Subjective intent - The only intent requirement for a true threat is that the defendant intentionally or knowingly communicates the threat with the intent to intimidate. It is not necessary that the defendant intend to or be able to carry out this threat.

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Virginia v. Black

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Virginia law banning cross burning w/ intent to intimidate where cross burning is treated as prima facie evidence of intent. statute is overbroad because it enhances the probability of prosecution and potentially chills the expression of protected speech.

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Miller v. California

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"Unsolicited Mailer for adult goods. Obscenity test (3 prong, must prove all three 1) Whether the average person, applying contemporary community standards, would find 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 the applicable state law. 3) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. - Miller allows each state to determine if it is a community or a statewide standard. Thus, first amendment rights are different from state to state."

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Should the miller test be changed?

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"Given the changes in technology since Miller was decided, “contemporary community standards” poses a huge issue for those producing borderline obscene material. The community standards prong allows for different levels of 1st amendment protections in different jurisdictions."

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Butler v. Michigan

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Court held a law invalid that prohibited the sale of lewd material to everyone that might have an influence on youth. No children’s first amendment

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Ginsberg v. New York

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"A state can constitutionally prohibit the sale to minors (under 17 years of age) of material defined to be obscene on the basis of its appeal to them whether or not it would be obscene to adults. Policy: state interest in well being of kids, parents entitled to laws that help them raise kids."

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New York v. Ferber

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"Sale of child porn. If minors are involved in the sexually explicit conduct, it does not have to rise to the Miller test. The speech and harm are intrinsically connected. The only way to produce it is to harm somebody."

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Policy rationales behind why child porn is unprotected

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1) safeguard minors 2) permanent record 3) get rid of market 4) de minimus value

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United States v. Knox

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"Videos of not nude underaged girls. Nudity is not a requirement, lascivious exhibition could be scantily clad. Series of factors to determine if something is lascivious: a) Focal point of the picture b) Setting, is it sexually suggestive c) Is the child depicted in an unnatural pose d) Is the child depicted in inappropriate attire e) Is the child fully or partially clothed or nude f) Does it suggest sexual coyness g) Is it intended or designed to illicit a sexual response"

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Ashcroft v. Free Speech Coalition

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"The court invalidated the Child Pornography prevention act b/c it prohibited sexually explicit images that appear to depict minors but were in fact produced without using real children. NOTE: Under such facts, analyze as general obscenity under Miller. "

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Osborne v. Ohio

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"Possession of regular porn ok, Possession of child pornography can be regulated because it meets the interest of protecting children"

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When can indecency and profanity be regulated?

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"When broadcast over the public airwaves. 18 U.S.C. § 1464 - statutory proscription against “utter[ing] any obscene, indecent, or profane language by means of radio communication.” Because indecent speech is protected by the First Amendment, the government must identify a compelling interest when imposing regulations on speech and must use the least restrictive means necessary to further that interest. The FCC has shown that there is a compelling governmental interest in protecting children from indecent material in broadcasts between the hours of 6 a.m. and 10 pm. "

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FCC v. Pacifica Foundation

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"George Carlin’s monologue on the seven dirty words. SCOTUS upheld the ability of the FCC to prohibit and punish indecent language over television and radio. Policy: because broadcasts are pervasive, young people have access, can’t avert your eyes."

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Two part test of indecency from FCC regs

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"1)      Must describe or depict sexual or excretory activities or organs, and 2) Must be patently offensive as measured by contemporary community standards for the broadcast medium (Note this doesn’t include violence or racist comments or religious blasphemy.)"

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What is patently offensive under FCC regs?

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"(3      factor balancing test) 1) The explicitness or graphic nature of the description 2) Whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; and 3) Whether the material panders to, titillates, or shocks the audience."

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What is Profanity under the FCC Regs?

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"The FCC has defined profanity as “including language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.” Like indecency, profane speech is prohibited on broadcast radio and television between the hours of 6 a.m. and 10 p.m."

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FCC v. Fox Television Stations

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"Cher & Nicole Ritchie’s use profanity. Court upheld the act, but didn’t decide 1st amendment issue. Court notes that Children may be more likely today to hear these words than they were when FCC v. Pacifica was decided. Pacifica was decided at a time when technology was different."

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United States v. Stevens

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Crush video legislation applied to dog fighting case. No new category of unprotected speech. (Government wants a balancing test that essentially gets rid of low value speech) The statute is struck down because it is “overbroad” and potentially outlaws protected speech.

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Va. State Bd. Pharmacy v. Va. Citizens Consumer Council

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"Prescription drug price advertising. Held that advertisement of prices is protected speech, consumer’s interest in free flow of commercial info. Can have rsnbl regulations such as TPM restrictions, false or misleading advertisements."

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Central Hudson Gas v. Public Service Commission of New York

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"Electricial utilities advertising to stimulate use of electiricity. Court held commercial Speech is governed by Intermediate Scrutiny. Test: 1) First we must determine whether the expression is protected by the 1st Amendment, for speech to come within that provision, it at least must concern lawful activity and not be misleading. 2) Whether the asserted governmental interest is substantial. 3) If both inquiries yield positive answers, we must determine whether the regulation directly advance the government interest. 4) If the government could be served as well by a more limited restriction on commercial speech, the excessive restriction cannot stand."

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44 Liquormart v. Rhode Island

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"Statute preventing outside price advertisement of liquor invalidated. Less restrictive alternative methods were available to meet gov’t interest in keeping people sober. Purchases could be limited, Educational campaigns focused on drinking problems"

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Prior Restraint

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Presumptively invalid. Look for three exceptions from Near v. Minnesota. Person arguing for prior restraint must demonstrate an important concern of the highest order. (Kobe)

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Near v. Minnesota

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Publisher runs a series of articles stating the government is allowing their illegal behavior by gangsters. The trial court enjoined the newspaper from publishing. Rule: Prior restraints are presumptively unconstitutional. Prior restraints are allowed in three areas: 1) Military issues – obstruction of recruiting or reveal troop locations/movements 2) Obscenity 3) Incitement to violence

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N.Y. Times Co. v. United States

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" “Pentagon Papers” leaked about Vietnam War. SCOTUS held any system of prior restraints of expression bears a heavy presumption against its constitutional validity, thus the gov’t has a heavy burden of showing justification for the imposition for prior restraint. The government has not met that burden in this case. Different opinions suggest that there may be wartime exception but that isn’t present here. The need for the press to function as 4th branch is emphasized. High first amendment value as political speech."

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Snepp v. U.S.

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CIA tell all. Can contract away your first amendment rights.

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Bartnicki v. Vopper

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"Rule: A station cannot be held liable for broadcasting information that was illegally obtained where the subject of the information was a matter of public concern and the broadcaster did not participate directly in the unlawful attainment, even when the broadcaster knew it was illegally obtained."

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Nebraska Press Ass’n v. Stuart

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"Restraining order issued by lower court preventing press from publishing info about trial. Balancing 1st A w/ 6th A. Does the possibility of corrupting the jury justify abridging free speech? Three part framework to examine: 1) nature of press coverage 2) less restrictive measures (change of venue, juror screening & instructions, gag orders for attorneys), 3) will a restraining order actually prevent the information from getting out. Court invalidates the order because there are less restrictive measures."

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Kobe Case

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"Media lawfully obtained truthful information about rape vic’s identity (matter of public concern). The burden therefore falls on the other side to prove there is an important concern (highest order). The court found defending the privacy of the victim's prior and subsequent sexual history was a ""state interest of the highest order.”"

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Attack outline for Examining Content-based vs. content neutral Speech regulations

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"1)      Is it a public forum, quasi public forum? (If public forum, subject to 1st amendment protections, If quasi-public forum, state can regulate speech in a reasonable manner consistent with past practices as long as it isn’t an effort to suppress expression.) 2) Is the law content based or content neutral? Government regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech. (Westboro) 3) If content based apply strict scrutiny - Compelling interest + narrowly tailored to achieve government interest (alleviate the harms to a material degree & does it achieve the purpose)+ least restrictive means 4) If content neutral apply intermediate scrutiny - Significant interest + narrowly tailored + ample alternative channels"

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Compelled speech

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Freedom of speech prohibits the government from telling people what they must say. Ex: Video Game labeling.

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Video Software Dealers Ass’n v. Schwarzenegger

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California Act that imposed restrictions on sale to minors & labeling requirement for violent video games. Rule: Content based restrictions are presumptively invalid and therefore subject to strict scrutiny. Court declined to use variable obscenity standard. Court applied SS & struck down law. Also labeling requirement is compelled speech b/c it isn’t fact based it requires the label to carry an opinion about its contents.

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Phelps-Roper v. City of Manchester

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Westboro contests law prohibiting picketing for disruption w/in 300 feet of funeral. Initial statutes were content neutral as they limited all pickets/protests w/in 300 feet. Revised version limited those that were designed to disrupt and therefore were content based. Content neutral regulations are subject to IS. Here we have SS b/c of content based statute. No significant gov’t interest b/c funeral attendees don’t have a privacy interest. Also Ordinance is not narrowly tailored. It prohibits substantially more speech than necessary to serve the goal of protecting funeral attendees.

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Ladue v. Gilleo

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"City ordinance intended to minimize visual clutter. Respondent places a sign on her front law regarding the Persian Gulf War. A city cannot constitutionally prohibit homeowners from displaying signs on their property because it suppresses too much speech. Rationale: No ample alternative channels for communication, Location of a sign at your home says something about your identity, it is a cheap and easy form of communication, They may be able to regulate (size, quantity, etc.) but they can’t completely ban signs because there is simply no adequate substitute."

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Perry Educators’ Ass’n v. Perry Local Educators’ Ass’n

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"Collective bargain agreement granting one union, but not the other union access to an inter district mail system. The existence of a right of access to public property depends on the character of the property at issue. 1) Streets and parks – quintessential public forums – No content based exclusions unless strict scrutiny standards are met. 2) Public property which the state has voluntarily opened for use by the public as a place for expressive activity. A state is not required to maintain the “open character” but it will still be subject to same standards as a public forum 3) Public property which is not by tradition or designation a forum for public communication. – The state can reserve such property for its intended purposes, so long as the regulation of speech is reasonable and not an effort to suppress expression merely b/c public officials oppose the speaker’s view."

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Snyder v. Phelps

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"Snyder (father of dead soldier) sues Westboro for state law tort claims. Issue is whether the first amendment shields them from Tort liability. Westboro’s actions – complied with instructions, quintessential public forum (street), didn’t use fighting words, stayed a short time, did not trespass, no indecency or incitement. Absent another category of “unprotected speech”, speech that is of public concern is protected speech. To ensure that public debate is not stifled, the court shields Westboro from tort liability . Public or private speech? Examine the content, form and context of that speech as revealed by the whole record."