Ls - Con Law Ii Part 1

Front 1

Two ways speech can be abridged

Back 1

"Prior restraint (presumptively unconstitutional), Subsequent punishment"

Front 2

Level of scrutiny for 1st amendment rights

Back 2

Strict scrutiny

Front 3

Symbolic Speech Doctrine Test

Back 3

"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.

Front 4

List the Theories of Free Speech

Back 4

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

Front 5

Marketplace of ideas

Back 5

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

Front 6

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)

Front 7

Democratic Self-Governance Theory

Back 7

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

Front 8

Problems with Democratic Self-Governance Theory

Back 8

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

Front 9

Self-fulfillment/Self-realization

Back 9

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

Front 10

The Checking Value of Free speech

Back 10

Press acts as a watchdog – 4th branch of government

Front 11

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.

Front 12

The Safety Valve Function of Free Speech

Back 12

People speak instead of rioting.

Front 13

The Tolerant Society

Back 13

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

Front 14

Cohen v. California

Back 14

"“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."

Front 15

Unprotected Speech

Back 15

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

Front 16

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.

Front 17

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"

Front 18

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.

Front 19

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)"

Front 20

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"

Front 21

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).

Front 22

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)"

Front 23

Cases that dealt with imminence

Back 23

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

Front 24

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"

Front 25

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)

Front 26

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.

Front 27

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."

Front 28

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.

Front 29

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.

Front 30

Miller v. California

Back 30

"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."

Front 31

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."

Front 32

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

Front 33

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."

Front 34

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."

Front 35

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

Front 36

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"

Front 37

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. "

Front 38

Osborne v. Ohio

Back 38

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

Front 39

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. "

Front 40

FCC v. Pacifica Foundation

Back 40

"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."