Table of contents:
1.Speech that incites unlawful conduct:......
a.Basic test:......
ii.policy arguments:......
b.general test:......
i.Brandenburg v. Ohio: Brandenburg test......
5.problem b “abortionists are murders”:
6.problem c, “Cop Killer”:
c.Speech that interferes with the war effort: intent and likelihood in a war time setting:
i.As a general rule the emergency powers and the like can restrict freedom of speech during war time because of the harm it might cause to the nation. This led to several cases there the imminence was not met but the speech was still restricted because of the likelihood of causing a crime:
1.Schenck v. United States: SThe circumstances of the war made this a permissible restriction of speech.
a.Test: there must be intent and likelihood but not imminence......
2.Debs v. United States:
a.Test: Intent and likelihood of harm to the draft......
3.Abrams v. United States: When there can be no other intent, the intent inferred is the correct one.
a.Test: was there intent to obstruct the draft and the materials could do so?.
4.Gilbert v. Minnesota: ......
a.Test: there must be a prohibited purpose to the speech and an intent to reach that purpose
ii.Problem a: Advocacy in wartime:......
d.Speech advocating crime:......
i.Problem a, the murder advocacy exception:
1.Gitlow v. New York: Is it reasonably implied?......
a.Test: Is there speech that can be reasonably implied that it will lead to violence and overthrow of the government?
2.Whitney v. California:
a.Test: is there a presumption that this speech will intentionally lead to violent actions? Is the defendant a communist?
e.Communist Conspiracies:......
1.Dennis v. United States:
a.Test: Is the defendant a communist? Is the speech directed to advocacy and has a potential of causing violence or harm?
2.Yates v. US: ......
a.Test: is there clear and present danger or is the teaching so divorced from the action that there is no danger?
3.Barenblatt v. US (Black, dissenting):
ii.Problem, the Westwood Militia:
2.False Statements of Facts:......
a.Basic principles:......
b.Doctrinal framework: Is the statement about a public person and a matter of public concern? Is it a private speaker and a public concern? Or is it only a matter of private concern?
i.Public public:......
ii.public, private: these are unprotected if made negligently......
iii.Private, private: unprotected even if not negligent......
vi.Subsidiary rules:......
1.Who is a public figure?......
2.What is public concern?......
3.what is reckless disregard of the facts:......
4.remedies and procedures:......
5.burden of proof…See page 73......
6.policies:......
1.NYT v. Sullivan:
a.Test: is the Sheriff, as the head of the police, protected from criticism?...
e.Black Letter: A public official may not recover unless there is actual malice
2.Gertz v. Robert Welch, Inc:
a.Test: is an attorney who works on a public case a public figure?......
3.Dunn & Bradstreet v. Greenmoss:
a.Test: is this a matter of public concern?......
d.Black letter: the rule of private-private concern us that there may be recovery even in the absence of malice
1.A, Governor v. Professor, page 76:......
2.Professor v. governor, page 107:......
3.Electronic Employment:......
4.Private figure Libel Amendment:......
c.Facts v. Opinions:......
i.Milkovich v. Lorain Journal:......
1.Test: were the statements facts?......
ii.Beauharnias v. Illinois:......
1.Test: are these defamatory statements opinion?......
i.Beauharnias Jr page 134: is this a public official? A matter of public concern?
e.False Light invasion of Privacy:......
i.Time, Inc. v. Hill:
1.Test: Did time have the requite mens rea?......
f.Obscenity: the government is concerned about the persuasive powers of words, but the difference is the immediate response and the longer response to the effects of obscenity.
i.Basic rules:......
ii.subsidiary rules:......
iii.See Policies on 149-50......
1.Miller v. California:
a.Test: would the average person applying community standards finds that this appeals to the prurient interest in a patently offensive way and without nay redeeming qualities?
2.Paris Adult Theater v. Slaton I:
a.Test: Can the state prevent the showing of something that totally lacks in artistic value?
1.Mafiosi in Love, page 150:
2.The Montana Constitution, page 155:
g.Child Pornography:......
i.Basic rule: Speech is unprotected if it......
ii.subsidiary rules:......
1.New York v. Farber:
a.Test: May the state outright prohibit the making and sale of child pornography?
2.Osborne v. Ohio: Osborne was convicted of possessing child pornography which was against the law in the state.
1.Computer graphics, page 169:......
2.Crush Video: Seen notes 2/13/02......
h.Offensive Speech/risk of violent reaction:......
i.Basic rule 1: it is still unprotected if it is fighting words......
ii.policy:......
iii.basic rule 2:......
iv.basic rule 3:......
v.see 179-80 for more policy......
1.Chaplinsky v. New Hampshire:
a.Test: does the law prevent acts of violence?......
2.Cohen v. California:
a.Test: will this provoke violence? Is this clearly directed to someone?...
3.Texas v. Johnson:
a.Test: is there a threat of violence as an immediate reaction? Is this directed toward someone?
4.Hustler v. Farwell:
a.Test: Can a public official sue for emotional harm inflicted in a public manner
1.insulting a widow, page 180:......
2.Captive audiences, page 180-1:......
i.Exceptions from Protection—Treats:......
i.Basic principle: threats of violence/illegal conduct are prohibited......
ii.Caveats:......
iii.WATCH OUT FOR mixture of threat and politics—look at the context of the speech. Look to see if it is an actual threat or hyperbole
iv.Policy, see 205......
1.Watts v. US: Watts was convicted of making a threat on the president......
a.Test: is this hyperbole?......
2.NAACP v. Claiborne Hardware:
a.Test: is a threat made as part of a boycott protectable?......
3.NLRB v. Gissel Packing Co: t......
a.Test: were the words calculated to shape the election and labor context?.
1.The anti-abortion campaign, page 205-6. see notes 2/27/02......
j.Exemptions from Protection—Speech owned by others:......
i.Basic problem: Various IP rights, are speech restrictions......
ii.policy:......
1.Harper & Row v. nation Enterprises:
a.Test: does the copyright law lawfully prohibit this?......
2.Zacchini v. Scripps-Howard Board. Co.: ......
a.Test: Was this expression an unfair commercialization of the plaintiffs copyright?
a.unauthorized Biography: see discussion on 2/27/02......
b.unauthorized bust: see discussion on 2/27/02......
c.Copyright remedies: see discussion on 2/27/02......
3.Strict Scrutiny:......
i.Basic rule: if the speech does not fall into an exceptions category or into a diminished protection category, then usually the government cannot suppress it. It may be suppressed however it can show that it passes strict scrutiny—narrowly tailored to protect a compelling state interest. Strict scrutiny usually means the death of the statute.
ii.Workings of this:......
1.the law must serve a compelling state interest: what is the ends......
2.under inclusive: fails to reach all of the speech shows the interest is not as compelling as their say it is; if it was there would be a broader restriction
3.the speech must be narrowly tailored: do the means satisfy the ends......
i.Sable Communications v. FCC:
1.Test: Does the statute pass strict scrutiny?......
ii.Carey v. Brown:
1.test: is there a compelling state interest:......
iii.Florida State v. BJF:
1.Test: is the law overbroad?......
i.Drive in Nudity: See discussion 3/27/02......
ii.Violence on TV......
d.Content Discrimination within the Exceptions to protection:......
ii.Exceptions......
1.RAV v. City of St. Paul:
a.Test: is this distinction among fighting words content discriminatory?...
1.Absolute immunity in Libel cases: See discussion on 4/3/02......
vi.Content Neutral Speech restrictions......
1.basic rule: The time, place or manner of the speech can be regulated if they are:
2.CAUTION: this does not mean that all speech restrictions on the TPM are allowable because they do that.
3.policy:......
a.Schneider v. New Jersey:
i.Test: what is the substantial interest and does it meet the ends?......
iii.Black letter: so long as the legislation to this end does not abridge the constitutional liberty of on rightfully upon the street to impart information through speech or the distribution of literature, it may lawfully regulate the conduct of those using the street.
b.Frisby v. Schultz:......
i.Test: it the ordinance narrowly tailored to serve a significant interest and are there ample other alternatives for the speech
c.City of Ladue v. Gilleo: Ladue made it illegal to put up yard signs. Gilleo did just that and was fined.
i.Test: is there a less onerous alternative?......
a.door to door solicitation, page 367......
b.publication of intercepted communications, page 367......
e.Restrictions on expressive conduct......
i.Basic rule: there are some restrictions that apply whether or not one has an expression in mind.
ii.Threshold inquiry:......
iii.test: if the threshold is satisfies then the law may be applied if it is;......
1.US v. O’Brien:
a.Test: is the burning of a draft card symbolic speech? Does the government have a compelling interest in preventing destruction of draft cards?
2.Clark v. CCNV: C......
a.Test: is the limitation as applied a limitation of free expression......
3.Texas v. Johnson: Johnson was convicted of burning a flag......
a.Test: is burning the flag expressive conduct? Does Texas have a substantial interest?
1.the marijuana performance art, page 367......
2.wearing a police uniform, 367......
Constitutional Law First Amendment Course Outline:
- Speech that incites unlawful conduct:
- Basic test:
- Advocacy of the use of force or of law violation is unprotected when it is
- Directed to inciting or producing
- Imminent lawless action
- And is likely to produce such action
- Exception: the communist advocacy cases—these have generally been thought to be overruled
- Policies:
- perceived harm justifies the suppression of speech
- and the likely harm is really imminent
- for the narrowness of the unprotected area:
- advocacy might convince people that the law should be changed
- sometimes the speech will praise or urge illegal conduct
- solicitation of a crime is not ever protected because it falls under criminal solicitation
- policy arguments:
- some evil speech, even when it might incite people to do bad things is protected
- the government cannot really restrict speech just because it has a tendency to change peoples viewpoints
- when the speech is about the lead to imminent harm then it can be restricted
- general test:
- Brandenburg v. Ohio: A KKK member invited a TV reported to film a rally. There they spoke about the perceived need to band together to suppress blacks and Jews. In the clips shown on TV, revenge was talked about as well as returning blacks to Africa and Jews to Israel. Brandenburg was subsequently arrested and convicted. Brandenburg test
- Test: the constitutional guarantee of free speech and press does not permit the State to forbid speech that advocates the use of force or the violation of a law unless the advocacy is directed to inciting or producing such imminent lawless action and the advocacy is likely to incite this. The Ohio law in question does not do this. There is an intent requirement and a imminence requirement
- Rationale: there is not a difference in this statute between likely to incite and likely to commit imminent lawless action. Since this law purports to punish mere advocacy it cannot be sustained. There is a distinction between mere advocacy and imminence.
- Concurrence: there is no clear and present danger in the law as written but the test is not clear and relies on a case-by-case analysis.
- Douglas concurring:Speech unless followed with action is not proscribable.
- problem b “abortionists are murders”:
- Directed to inciting or producing: this is directly related to inciting or producing because of the ‘any means necessary’. The speaker intended for the listeners to go out and try to stop abortions
- Imminent lawless action: again the any means necessary has the intent of getting people out there immediately to try to stop abortion
- And is likely to produce such action: here this did produce such an action
- Criticism: the speaker intended for the listeners to go out and stop abortions in the way the speaker had set the example—by speaking out about abortion. This is more susceptible to attach because of the imminence requirement—it was unlikely that the listeners would immediately go out and shoot a doctor. Here the shooter waited a month—who knows what drove the shooter to commit the act. This statute is too broad and sweeping and purports to convict people who had no intent in their speech and when there is not immediate action.
- problem c, “Cop Killer”:
- Directed to inciting or producing: this looks at the intent of the DJ who played the song and unless it can be proven that he did so to incite someone there is a problem with this
- Imminent lawless action: in the vast audience of listeners it is likely that one person might act on the words of the song and take matters into his own hands
- And is likely to produce such action: it seems unlikely that normal rational law abiding people will act on this even though it is violent; the DJ does not have to take into account that his listeners might not abide by the laws and might do something irrational. He does not have to foreseethe irrationality of people he cannot see.
- Speech that interferes with the war effort: intent and likelihood in a war time setting:
- As a general rule the emergency powers and the like can restrict freedom of speech during war time because of the harm it might cause to the nation. This led to several cases there the imminence was not met but the speech was still restricted because of the likelihood of causing a crime:
- Schenck v. United States: Schenck was convicted under the Espionage act of 1917 for attempting to cause insubordination among the US troops. Specifically he was charged with obstructing the draft by mailing a circular advocating resistance via the communist party. He called the draft a system of slavery and servitude. The circumstances of the war made this a permissible restriction of speech.
- Test: there must be intent and likelihood but not imminence
- Rationale: the document would not have been sent without a reason and that reason was to influence those eligible for the draft and talk them out of it. The character of every act depends on the circumstances in which it was said—this is a wartime situation and the circumstances and the works combine to show that there is a clear and present danger. This is a question of proximity and degree.
- Debs v. United States: Debs, a socialist was convicted of attempting to obstruct the draft. He told his listeners that he could not say all that was on his mind but that he was proud of those that had dodged the draft.
- Test: Intent and likelihood of harm to the draft
- Rationale: it is natural that his language, as evidenced by his personal political views, was to obstruct the draft. His intent was to do so and he would not have said the words without this intent. The court did look at the natural conclusion that he chose words to lead to the actions that he proscribed.
- Abrams v. United States: Abrams was charged with conspiring to print or publish materials that would obstruct the war. The question was whether the evidence was substantial enough to uphold the conviction. A along with others had printed circulars but they were never distributed. When there can be no other intent, the intent inferred is the correct one.
- Test: was there intent to obstruct the draft and the materials could do so?
- Rationale: here the defendant is liable for a judicially constructed meaning of his intent. He may or may not have intended to obstruct the draft but it is a reasonable reading of what he was trying to do so. This is a fair interpretation of his intent. Although there might not have been an immediate outbreak of lawlessness this was the intent of the circular.
- Dissent: there does not have to be intent because it is so vague and tends to be judicially constructed. The statute (espionage act) should be read within its context; otherwise people cannot speak an opinion. The only time speech can be restricted is when it does bring about imminent lawless behavior, not when it is about an opinion. There must be a clear and specific intent to bring about lawlessness.
- Gilbert v. Minnesota: Gilbert was charged under a Minnesota law that prevented obstruction of the war effort.
- Test: there must be a prohibited purpose to the speech and an intent to reach that purpose
- Rationale: free speech is not absolute; it can be restricted in a time of war. Additionally, Gilbert was learned and he knew his words were false
- Problem a: Advocacy in wartime:
- what is wrong with the tests as described above. Why not punish speech that has knowledge plus likelihood?
- The policy behind not punishing this is because this can be so construed to reach knowledge plus intent. This would have an effect of chilling speech. There must be an imminence requirement as so to not overly burden speech
- Speech advocating crime:
- Problem a, the murder advocacy exception:
- Speech that advocates or defends unlawful killing should be unprotected. Identify the speech this will cover and what it might cover depending on how it is interpreted:
- It will cover discussions of Nazi-revisionist history and many other debates about history.
- It might also cover discussions about the death penalty and war time deaths if one is opposed to those
- Cases:
- Gitlow v.