Media Law Final - Ch3 - Disruptive Speech

Front 1

R.A.V. v. St. Paul, USSC 1992

Back 1

RAV uses initials to hide identity b/c he’s a minor (17).

Court considered hate speech ordinance for the first time.

City ordinance banned cross-burning, displaying swastikas or expressing racial or religious hatred in other ways. Facts: a few Caucasian youths burned a homemade cross in the yard of an African American family’s home. They were charged only with violating the hate speech ordinance.

Court unanimously overturned the hate speech ordinance, but disagreed on the legal rationale. Scalia, writing for the court: “Let there be no mistake about our belief that burning a cross in someone’s yard is reprehensible..." But St. Paul has sufficient means at its disposal to prevent such behavior without adding the 1st amendment to the fire.” USSC says the gov’t may not punish those who “communicate messages of racial, gender or religious intolerance” just because those ideas may be offensive or emotionally painful to many people.”

5 of the justices (Scalia, Rehnquist, Kennedy, Souter, and Thomas) said the ordinance was “viewpoint discrimination” – punishing his viewpoint/expression. 4 of the justices (White, Blackmun, O’Connor and Stevens) said the ordinance was “overly broad”

Front 2

Virginia v Black, USSC 2003

Back 2

Virginia ordinance that called for an across the board ban on all cross burning. Ordinance included an element of intent to intimidate.

Facts: Barry Elton Black led a KKK rally at a farm, spoke out against President Clinton and his wife, Hillary Rodham Clinton, and verbally attacked African-Americans and Mexicans. The rally concluded with the singing of “Amazing Grace” and the burning of a 30-foot cross. No Violence resulted, but Black was arrested and charged under the Virginia ordinance.

Black’s conviction overturned. Why? No intent to intimidate anyone, so his burning of the cross was symbolic speech protected by the 1st Amendment. The key difference is that the St. Paul ordinance banned all cross burning, so it was overly broad and was viewpoint discrimination, whereas the Virginia ordinance included an intent to intimidate.

Bottom Line: If one burns a cross and an intent to intimidate cannot be proven by the gov’t, then that is symbolic speech protected by the 1st Amendment. But under Virginia ordinance, if an intent to intimidate can be proven, then the USSC rules that the gov’t can punish someone who does that because that falls outside of 1st Amendment protection

Front 3

Anti-government cases

Back 3

(Schenck to Brandenburg, with heavy emphasis on Brandenburg)

Front 4

Schenck v.US, USSC 1919

Back 4

Charles Schenck mailed some 1500 pamphlets urging men to dodge the draft. He was convicted convicted for violating the espionage act. Unanimous decision: Schenck speech (mailing the pamphlets) created a "clear and present danger" to the nation

Front 5

Brandenburg v Ohio, USSC 1969

Back 5

Clarence Brandenburg, KKK member, invited TV reporter to a rally. He said African-Americans should be sent back to Africa and Jews to Israel.

Also called for “revengence." Brandenburg arrested for violating an Ohio anarchy law. No violence resulted from Brandenburg’s speech.

Key question: Was this a call to action or was it merely the teaching of abstract doctrine? USSC said it was a call to action, but it wasn’t persuasive enough to cause imminent lawless action. Therefore, Brandenburg’s conviction was overturned. His speech, regardless of its perceived offensiveness, was protected by the First Amendment

Front 6

Evolution of court rulings

Back 6

Schenk – lost to the government.
Gitlow – lost to the government (though decision expanded First Amendment rights for everyone).
Dennis – lost to the government.
Yates – prevailed against the government.
Brandenburg – prevailed against the government. Brandenburg case is the law today

Front 7

School cases

Back 7

Tinker, Fraser, Hazelwood, Morse v. Frederick

Front 8

Tinker v. Des Moines, USSC 1969

Back 8

These students might have parents who are fighting in the Vietnam war, there’s a brother and sister, John and Mary Beth Tinker, John was a high school student, there’s a friend that is also involved, the school district found students were going to do this, schools said if students showed up with black armbands, students were going to be suspended.

Students wear black armbands as a symbolic protest of the Vietnam War. School officials quickly adopted a new policy: Wear black armbands and you’ll be suspended. Students were suspended, and lower courts upheld the suspensions. Supreme Court reversed, ruling that wearing black armbands was symbolic speech.

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. “In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students.” Framework: Students have free expression rights, unless it disrupts the educational process. No evidence of a disruption because of the students in the Tinker case

Front 9

Hazelwood v. Kuhlmeier, USSC 1988

Back 9

High school newspaper writes two articles: one about teenager pregnancy and the other about how students have been affected by their parents’ divorce.

Principal sees articles before publication and pulls them from the newspaper. What’s that called? Prior restraint (only constitutional if used in extreme circumstances).

USSC rules 5-3, in favor of the principal. No disruption, Tinker rule did not apply. Majority opinion. School officials have control over school-sponsored activities, such as student newspapers, theatrical productions and other expressive activities. Justice Brennan, dissent: "The young men and women, of Hazelwood East expected a civics lesson, but not the one the court teaches them today… Such unthinking contempt for individual rights is intolerable from any state official. It is particularly insidious from (a school principal) to whom the public entrusts the task of inculcating in its youth an appreciation for the cherished democratic liberties that our Constitution guarantees"

Front 10

Morse v. Frederick, USSC 2007

Back 10

Deborah Morse lets students out, Frederick is a senior makes sure to go to school and positioned himself to say “Bong HiTS 4 Jesus."

Facts: In 2002, the Olympic torch relay was being run in front of high school in Alaska. Joseph Frederick, high school senior, holds up a banner: “BONG HiTS 4 Jesus." He was standing on a public sidewalk, across the street from the high school. Principal, Deborah Morse, seized the banner and suspended Frederick.

Court ruled 5-4 in favor of Morse. School officials can prevent students from displaying messages that promote illegal drug use. The majority chose not to apply the Tinker framework. Doesn’t apply to college, college students have greater first amendment rights.

Front 11

Incorporation Doctrine

Back 11

14th amendment. “No state shall make or enforce by law which shall abridge the privileges or liberties of citizens in the US." Liberty means the rights in the first amendment. Doctrine of incorporation.