RIGHT/ CLASSIFICATION PURPOSE/STATUTORY FIT
1) FUNDAMENTAL/SUSPECT = COMPELLING/NECESSARY TO THE ACCOMPLISHMENT OF
2) INTERMEDIATE = IMPORTANT/SUBSTANTIALLY RELATED
3) MERE = LEGITIMATE/RATIONALLY RELATED CHARLOTTESVILLE - ALT RIGHT MARCHING IN REVERSE (LIBERAL COLLEGE TOWNS, JEWISH CITY)
FACT SPECIFIC – WHAT SAID, WHERE
1. SOME SPEECH SO HATEFUL NOT PROTECTED
2. RIGHT TO MARCH THROUGH STREETS OR SIDEWALKS (COSTS AND LIABILITY)
3. RIGHT TO MARCH THROUGH CAMPUS OF PUBLIC UNIVERSITY
4. RIGHT TO MARCH THROUGH CAMPUS OF PRIVATE UNIVERSITY BASIC FIRST AMENDMENT FOUNDATION:
1) CONGRESS/STATE (14 AMENDMENT) CAN VIOLATE FIRST AMENDMENT
2) PRIVATE = TORT, NOT FIRST AMENDMENT VIOLATION
3) MANY CRAZY LAWS AND ORDINANCES IN EXISTENCE. USSC DOES NOT REPEAL – STILL ON BOOKS
4) MANY PRACTICES VIOLATING THE FIRST AMENDMENT AREN’T CHALLENGED (EG PUBLIC PROFANITY) BASIC – WHAT IS THE MEANING OF FIRST AMENDMENT ? ASSUME NO KNOWLEDGE OF CASE LAW. EVERYONE IS A FIRST AMENDMENT LIBERAL.
1) MUSIC ? RHAPSODY IN THE RAIN (1966).
2) PROCREATE, INTERCOURSE, FREAKING
3) GENOCIDE ? HATE SPEECH ? INTERNET TROLLS ?
4) SNOWDEN AND THE HACKIVISTS
5) TRY TO BRIBE JUDGE ?
6) BIG DATA AND ITS PROBLEMS DEFINE:
OPINION
ADVOCACY
INCITEMENT
CONSPIRACY
CONDUCT
EXPRESSION SPECTRUM ARE MOVIES PROTECTED BY THE FIRST AMENDMENT ? BOOKS ?
SOLICITATION ON THE SIDEWALK – CAN GOVERNMENT STOP ?
TECHNOLOGY AND NEW MEDIA ?
GOVERNMENT CAPACITIES – HANDOUT FA1.
MANY USSC CASES FOCUS ON THE NEGATIVE – WHAT IS NOT PROTECTED. LEAVES UNCLEAR WHAT IS PROTECTED. FREE SPEECH HISTORY:
1) MODERN DOCTRINE – 1919 BEGINNINGS; LATE 1960’S MODERN RULES - WHY MODERN CONCERN ?
2) WAR (WWII EXCEPTION)
3) COMMON LAW
A. PRIOR RESTRAINT – BAN BEFORE SPEECH – FOCUS OF MILTON AND BLACKSTONE AT CL B. SEDITIOUS LIBEL - 886 (932)– CRITICIZE GOVERNMENT (CRIMINAL AT CL) – ALIEN AND SEDITION ACTS OF 1798 (887; 933) THEORIES (PP 888 – 893; 935-940) LIBERAL
1) JS MILL – MARKETPLACE OF IDEAS – 889;935
2) ALEXANDER MEIKLEJOHN – SELF-GOVERNMENT IN A DEMOCRACY -890 – 891; 936-938. SEE 4 FUNCTIONS. POLITICAL SPEECH.
3) THOMAS I EMERSON – 891 – 892;938-939 - PERSONAL AUTONOMY
4) FRED SCHAUER – GOVERNMENTAL INCOMPETENCE CRITIQUES OF LIBERALS:
1) C. MACKINNON -- HANDOUT
2) DOES TRUTH WIN ? ISIS ? HITLER ?
3) WHY DO LIBERALS WANT ECONOMICS REGULATED BUT NOT SPEECH ?
4) PERSONAL AUTONOMY – THE END OF ALL TRADITIONAL VALUES ?
MODERN PERSPECTIVE:
1. GOVERNMENT CAPACITY - FA 1
2. WHERE DOES SPEECH TAKE PLACE ? DIFFERENT PUBLIC FORUMS, NEW MEDIA. OLD PARADIGM = LEAFLET, PAPER OR SPEECH.
3. CONTENT BASED (NEUTRAL IS ABSENCE) = A. VIEWPOINT – SIDE - NEVER B. SUBJECT MATTER – ISSUE - MAYBE C. SPEAKER IDENTITY – STATUS - MAYBE 1791 – 1919 – EFFECTIVELY NO CASES 1919 – 1964 – NOT MUCH PROTECTION
MODERN FOUNDATION – 5 CASES THAT CHANGED AMERICA (TWICE – HISTORICAL AND SUBJECT):
1. NY TIMES v SULLIVAN (1964)
2. BRANDENBURG v OHIO (1969)
3. COHEN v CALIFORNIA (1971)
4. MILLER v CALIFORNIA (1973)
5. FCC v PACIFICA (1978) NYT v SULLIVAN (1964):
1. P 979; 1008 – DISLIKE CATEGORIES
2. P 979; 1008 - FREE SPEECH THEORY
3. P 979 – 980; 1009 - ALIEN AND SEDITION ACT
4. P 980; 1009 - FREE CRITICISM OF GOVERNMENT BRANDENBURG v OHIO (1969):
CRIMINAL SYNDICALISM STATUTE – 931 – 932; 979
1. P 932; 980 – ADVOCACY PROTECTED UNLESS DIRECTED (INTENDED) TO INCITING/PRODUCING IMMINENT LAWLESS ACTION AND LIKELY TO
2. FACT SPECIFIC
3. VIDEOTAPE COHEN v CALIFORNIA (1971):
1. P 950; 999 – STATUTE – DISTURB/OFFENSIVE – DO WE LIKE STATUTES LIKE THIS ?
2. MEANING OF MESSAGE ? WHY ARE THESE SOUNDS SO OFFENSIVE ? DOES IMPACT CHANGE IF INTERCOURSE THE DRAFT; PROCREATE THE DRAFT; RESIST THE DRAFT.
3. 952 – 953; 1000-1001 – FA THEORY. NOT EROTIC – DIFFICULT FOR WORDS TO BE OBSCENE
4. NEXT CASE – REWRITE THE STATUTE MILLER v CALIFORNIA (1973):
1. TEST - 1015 – 1016; 1064 A. PRURIENT INTEREST AND B. PATENTLY OFFENSIVE AND C. LACKS SERIOUS ARTISTIC, ACADEMIC OR LITERARY VALUE. WHAT IS THE SOURCE OF TEST ?
2. OBSCENITY NEVER PROTECTED – DEFINITION AND ITS APPLICATION CHANGED DRAMATICALLY. PORNOGRAPHY = NON-OBSCENE BUT SEXUALLY EXPLICIT (OFFENSIVE ? VIOLENT ?)
3. OBSCENITY = BAN (LEGITIMATE PURPOSE) PORNOGRAPHY = REGULATE FCC v PACIFICA (1978): 1054; 1103 - 7 WORDS (PARA 2)
1. WHO WON ? WHAT IS THE HOLDING ? NOT OBSCENE – NOT UNPROTECTED. OFFENSIVE. DEPENDS
2. 1055; 1104 - EACH MEDIUM UNIQUE AND IT’S OWN LAW
3. RADIO – PERVADES HOME AND ACCESSIBLE TO MINORS
4. DIFFERENT RESULT IF ANOTHER TIME OR MEDIUM
5. NO ONE ARGUING TOTAL BAN VALID – REGULATE GOVERNMENT REGULATING ON CONTENT CONTENT 1 – POLITICAL SPEECH (USUALLY ILLEGALITY) AND THE CLEAR AND PRESENT DANGER TEST:
1) ESPIONAGE ACT OF 1917 (P 899;946-47):
A. FALSITY WITH INTENT TO INTERFERE
B. WILFULLY CAUSE OR ATTEMPT INSUBORDINATION, DISLOYALTY, MUTINY OR REFUSAL OF DUTY
C. WILFULLY OBSTRUCT RECRUITING OR ENLISTMENT SCHENCK v UNITED STATES (1919 – 899;947):
1) 900, 947 - DOCUMENT AND CLEAR AND PRESENT DANGER.
2) 901, 948 - CLEAR AND PRESENT DANGER TEST - ACT, TENDENCY AND INTENT.
3) WHAT IS SOURCE OF THE TEST ?
4) NOT ON SUCCESS – ACTUAL AUDIENCE RESPONSE ? FROHWERK v UNITED STATES (1919 – 901, 949):
1. NOT ALL SPEECH PROTECTED. CAN’T COUNSEL MURDER. SCHENCK – CAN BE CONSIRACY BY WORDS OF PERSUASION.
2. NO SPECIAL EFFORT TO REACH AUDIENCE BUT COULD BE THE SPARK (902,949). DEBS v UNITED STATES (1919 – 902, 949):
1. 902, 950 - IF PART OBSTRUCTS, NOT SAVED BY OVERALL NON-INCITING
2. 903, 950 - NATURAL TENDENCY/REASONABLY PROBABLE EFFECT AND SPECIFIC INTENT
3. PRESIDENTIAL CANDIDATE JAILED FOR SPEECH – SENTENCED TO 10 YEARS. SERVED ALMOST 2 YEARS. LETTERS BETWEEN HAND AND HOLMES (909 – 910, 957) HAND POSITION –
1. UNPROTECTED IF FALSE FACT AND SPEAKER KNEW IT WAS FALSE WHEN UTTERED
2. SPEAKER COUNSELS OR ADVISES IN LISTENER’S INTEREST OR LISTENER’S DUTY TO VIOLATE
3. HAND MORE LIBERAL – WANTS MORE SPEECH PROTECTED. CLOSER TO CONDUCT. ABRAMS v UNITED STATES (1919 – 903,951):
1. 904, 951-52 - EXCITING AND HINDER WWI
HOLMES AND BRANDEIS (DISSENT):
1. 905, 953 - DEFINITION OF INTENT
2. 905 – 906, 953 – IMMINENT, IMMEDIATE. SURREPTITIOUS AND SILLY. 906 – 907, 954 FAMOUS QUOTE
3. WHAT HAPPENED TO THE SPARK ? ACADEMIC DISCUSSION – HIGHEST PROTECTION (OPINION) 3 2) HYPERBOLE ADVOCACY 3 ------1) BRANDENBURG TEST INCITEMENT 3 2) TRUE THREAT CONSPIRACY 3
CONDUCT - LOWEST PROTECTION BRANDENBURG v OHIO (1969 – 931, 979):
1. 932, 980 - INCITING OR PRODUCING IMMINENT LAWLESS ACTION AND LIKELY TO PRODUCE SUCH ACTION
2. LOWER COURT DIDN’T DISTINGUISH BETWEEN ADVOCACY AND IMMINENCE NEEDED
3. DOUGLAS – LINE BETWEEN IDEA AND ACT
4. IMPORTANCE OF VIDEOTAPE WATTS v UNITED STATES (1969 – 972, 1050)
1. REAL THREAT v POLITICAL HYPERBOLE
2. NY TIMES – ROBUST DEBATE AND CRITICISM
3. AUDIENCE REACTION - LAUGHTER HESS v INDIANA (1973 – 934, 982)
1. “LATER OR AGAIN” – INDEFINITE FUTURE TIME – NOT IMMINENT
2. FACT DEPENDENT (NOT REALISTIC IN EMOTIONAL SETTING) NAACP v CLAIRBORNE HARDWARE (1982 – 934, 982):
1. MERE AVOCACY OF FORCE IS PROTECTED
2. VIOLENCE IN FUTURE (“WILL BE”)
3. ACTUAL VIOLENCE SOME WEEKS LATER DOESN’T CHANGE RESULT.
4. SAME RESULT IF GRAND WIZARD (KKK) ? MODERN TEST (BRANDENBURG):
1. SUBJECTIVE - INTENT – DIRECTED TO INCITE OR PRODUCE IMMINENT LAWLESS ACTION - HESS, CLAIRBORNE
AND
2. OBJECTIVE - LIKELY TO PRODUCE IMMINENT LAWLESS ACTION - WATTS (ACTUAL AUDIENCE REACTION), CLAIRBORNE QUESTIONS :
1. 935,983 - ANTI-ABORTION WEBSITES. TRUE THREATS. NFL PLAYER TWEETING PICTURE OF COP WITH THROAT SLASHED ? INTIMIDATION PROTECTED ?
2. 2 PEOPLE CAUGHT IN BALTIMORE WITH BOMBS AND GUNS AND MAGAZINE ON HOW TO MAKE BOMBS. MAGAZINE ILLEGAL ? 937, 985 – FEDERAL BOMB INSTRUCTION STATUTE.
3. TERRORISTS WATCH LIST - HOW SOON CAN YOU ARREST ? BIG DATA USEAGE ? GLORIFICATION OF TERRORISTS ? MATERIAL SUPPORT – 938, 986 CONTENT 2 – FIGHTING WORDS
CANTWELL v CONNECTICUT (1942 – 943, 991)
1. BREACH OF PEACE COMMON LAW VAGUE
2. NO C AND P DANGER OF RIOT – D LEFT
3. RIGHT TO BE ON STREET – WHY ?
4. 943, 992 - DEFINITION OF FIGHTING WORDS
5. DIFFERENT IF PROFANE, INDECENT, ABUSIVE. DIRECTED TO PERSON MESSAGE CAN’T BE PUNISHED. CHAPLINSKY v NEW HAMPSHIRE (1942 – 938, 987) –
1. 938, 987 - STATUTE
2. 939, 987-88 - FIGHTING WORDS DEFINED
3. 939, 987 – CATEGORIZATION – NO ESSENTIAL PART OF EXPOSITION OF IDEAS. DOMINATED UNTIL 1964.
COHEN v CALIFORNIA (1971 – 950, 999)
950, 999 – STATUTE – DISTURBING BY OFFENSIVE
CALIFORNIA’S ARGUMENTS: 1. CONDUCT
2. CLEAR AND PRESENT DANGER
3. COURTROOM IS A SPECIAL PLACE
4. OBSCENE
5. FIGHTING WORDS – 951 – 952, 1000
6. INTRUDE ON UNWILLING
7. BAN THIS WORD HARLAN : 1. 951, 999 – THIS IS ON WORDS, SPEECH – NOT CONDUCT, NOT REGULATION. MESSAGE PROTECTED 2. NOT C AND P DANGER – NOT INCITING 3. NOT SPECIFIC STATUTE COURT DIGNITY 4. 951, 1000 - NOT OBSCENE – NOT EROTIC – WORDS
5. 951-2, 1000 - NOT FIGHTING WORDS - PERSONALLY ABUSIVE, INDIVIDUALLY DIRECTED. FORFEIT SOME PRIVACY WHEN YOU LEAVE HOME. UNWILLING LISTENERS NOT ENOUGH 6. CAN’T BAN THIS WORD – WHAT IS NEXT ? 7. 953,1001-02 - HARLAN’S FIRST AMENDMENT THEORY 1. LEAVING CHAPLINSKY CATEGORIES IN FAVOR OF BALANCING FREE SPEECH v STATE INTERESTS.
2. PRIVACY IN PUBLIC ?
GOODING v WILSON (1972 – 941, 989)
941, 989 - STATUTE – OPPROBRIOUS OR ABUSIVE LANGUAGE – “I WILL KILL YOU”
941, 989 - DEFINITION OF FIGHTING WORDS - INDIVIDUALLY DIRECTED POLICE MUST HAVE THICKER SKIN – TRAINED. TEXAS v JOHNSON (1981 – 941, 990)
941, 990 – NO PER SE FIGHTING WORDS. NOT DIRECT PERSONAL INSULT OR INVITATION TO EXCHANGE FISTICUFFS.
DOES THIS ALLOW TOO MUCH ?
WORSE FOR WOMEN ? HOSTILE WORK ENVIRONMENT ?
DOES MEDIA CHANGE ? DOES CYBERBULLING = FIGHTING WORDS ? CONTENT 3 – DEFAMATION
1. DEFAMATION APPLIES TO ALL HARM TO REPUTATION - LIBEL = WRITING; SLANDER = VERBAL.
2. ANOTHER ONE OF CHAPLINSKY CATEGORIES THOUGHT TO BE OUTSIDE FA PROTECTIONS UNTIL WARREN COURT NY TIMES v SULLIVAN (1964 – 978, 1007)
1. 979, 1008 – ALABAMA CL TORT LAW – LIBEL PER SE – TRUTH ONLY DEFENSE, PRESUMED DAMAGES, PUNITIVES AVAILABLE.
2. 979, 1008 - FIRST AMENDMENT THEORY
3. 980, 1009-10 - DEFAMATION RULE - ACTUAL MALICE - KNOWINGLY UTTER FALSE STATEMENT
4. JUSTICE BLACK – SHOULD BE ABSOLUTE PROTECTION FOR NY TIMES 1. 983 – 984, 1014 - BURDEN OF PROOF ON PLAINTIFF – MUST BE CLEAR AND CONVINCING EVIDENCE – APPELLATE COURTS DE NOVO ON FALSITY
2. GARRISON v LOUISIANA EXTENDS RULE TO CANDIDATE
3. CRITIQUES OF NY TIMES – TOO MUCH PROTECTION TO MEDIA. FALSEHOODS GO UNPUNISHED – SHOULD HAVE JUST LIMITED DAMAGES (983, 1013) CURTIS PUBLISHING v BUTTS; AP v WALKER (1967 – 984, 1014)
BUTTS – GEORGIA AD WALKER – RETIRED GENERAL
1. PUBLIC FIGURE = PUBLIC OFFICIAL
ROSENBLOOM v METROMEDIA (1971 – 985, 1016)
ON THE PUBLIC VALUE OF THE EVENT, NOT STATUS OF PLAINTIFF (PO/PF/PVT) ALLEGED GERTZ v ROBERT WELCH (1974 – 986, 1016)
1. NO SUCH THING AS A FALSE IDEA BUT NO VALUE IN A FALSE STATEMENT OF FACT 2. NOT PF. ALL – SMALL – NEEDS TO BE VOLUNTARY TO BE PUBLIC FIGURE (988, 1018) 3. PRIVATE INDIVIDUAL HERE. RULES (988-989, 1018-19) A. NO LIABILITY WITHOUT FAULT (NEGL) B. STATEMENT MUST MAKE SUBSTANTIAL DANGER TO REPUTATION APPARENT C. COMPENSATION FOR ACTUAL INJURY – NO PRESUMED (BUT INCLUDES ANGUISH AND HUMILIATION) D. PUNITIVE = NYT ACTUAL MALICE DUNN AND BRADSTREET v GREENMOSS BUILDERS (1985 – 990, 1020)
1. NOT ALL SPEECH OF SAME IMPORTANCE. PUBLIC v PRIVATE CONCERN. APPLY OLD COMMON LAW RULES WHERE TRULY PRIVATE - STATE INTEREST IN VINDICATING REPUTATION JUSTIFIES PRESUMED AND PUNITIVE DAMAGES
2. FACT v OPINION - USSC SAYS WRONG ANALYSIS – MUST BE PROVABLY FALSE – BURDEN ON PLAINTIFF BY CLEAR AND CONVINCING - “ALLEGED” STATUS OF PLAINTIFF TEST
1. PO (CANDIDATE) NYT
2. PF (VOLUNTARY) NYT
PUBLIC ISSUE (MEDIA) GERTZ 3. PVT PRIVATE ISSUE COMMON LAW
OFFICIAL CONDUCT OR FAME - SOME IN FOR ALL, SOME ONLY FOR FAMOUS/PUBLIC PART. PRESIDENT OF US v BALTIMORE SCHOOL BD. 1. CHRIS DAVIS (ORIOLES) – INVOLVED IN PED SCANDAL v GOT 15 YEAR OLD GIRL PREGNANT
2. BLOG SAYS TRUMP TORTURED SMALL ANIMALS AS A CHILD – SURE SIGN OF MENTAL ILLNESS. BARRON ?
3. KARDASHIANS – WHAT ARE THEY ? TAYLOR SWIFT – INSTAGRAM MAKING PRIVATE = PUBLIC ?
4. ASSISTANT STATE’S ATTORNEY ON STAND – DID SHERIFF CALL YOU FOR ADVICE ? NO (DID CALL, BUT JUST TO REPORT, DIDN’T ASK ADVICE). PAPER SAYS FALSE TESTIMONY – FIRED AFTER 20 YEARS. SUE PAPER ? 5. REMEMBER MALICE HAS NOTHING TO DO WITH ILL WILL OR INTENT TO HARM. KNOWING FALSITY MASSON v NEW YORKER - USED QUOTE MARKS BUT CHANGED STATEMENT. PLAINTIFF – ANY ALTERATION BEYOND GRAMMATICAL CORRECTIONS = ACTUAL MALICE.
1. USSC – IN PF SETTING, ACTIONABLE ONLY IF THERE HAS BEEN A MATERIAL CHANGE IN MEANING. IF EVERY ALTERATION WRONG, FREEEDOM OF PRESS SUBSTANTIALLY ALTERED.
2. DISSENT – KNOWING FALSE ALTERATION SHOULD BE ENOUGH. NON-DEFAMATION TORTS
HUSTLER MAGAZINE v FALWELL (1988 – 999, 1029)
1. CAN’T SUBSTITUTE EMOTIONAL DISTRESS TO AVOID FIRST AMENDMENT
2. 1000,1030-31 – TEST OF OUTRAGEOUS IS TOO SUBJECTIVE. CARTOONISTS AND SATIRISTS SINCE REVOLUTION – TOUGH AND SARCASTIC. ACTUAL MALICE FOR PUBLIC OFFICIALS AND PUBLIC FIGURES
3. NO ACTUAL MALICE – NOT REALLY A STATEMENT OF FACT – NO REASONABLE PERSON THOUGHT THIS WAS SERIOUS. REAL v HYPERBOLE COX BROADCASTING v COHN (1975 – 993, 1023)
PLAINTIFF = COMMON LAW PRIVACY CLAIM. COURT RECORDS
1. INTERESTS ON BOTH SIDES BUT CAN’T PUNISH BROADCASTER FOR ACCURATE REPORT OF MATTER IN OFFICIAL COURT RECORDS.
FLORIDA STAR v BJF (1989 – 993, 1024)
FLORIDA STATUTE BARRED PUBLICATION. POLICE ROOM
STATUTE UNCONSTITUTIONAL WHEN APPLIED TO TRUTHFUL AND FOUND IN PUBLIC BARTNICK v VOPPER (2001 – 994, 1025)
ILLEGALLY TAPED – GIVEN TO 3RD PERSON – GIVEN TO RADIO
995, 1025 - EVEN THOUGH KNEW PROBABLY ILLEGAL, PUBLISHING TRUTHFUL INFORMATION OF PUBLIC INTEREST = PROTECTED. BUT ONLY IF 1) BROADCASTER NOT INVOLVED IN ILLEGAL 2) BROADCASTER GOT LAWFULLY 3) MATTER OF PUBLIC CONCERN (DEFINITION ?)
PROBLEMS IF DIRECT FROM SNOWDEN ? WEBSITE IN SWEDEN ? ZACCHINI v SCRIPPS HOWARD (1977 – 994, 1024)
1. NOT PRIVACY OR FALSE LIGHT OR DEFAMATION. ECONOMIC APPROPRIATION.
2. ACTIONABLE WHEN IN EFFECT BROADCASTING WHOLE ACT.
3. COPYRIGHT AND TRADEMARK LAWS = VALID. NO FIRST AMENDMENT EXCEPTION
4. ESPN BROADCASTING HIGHLIGHTS ? SNYDER v PHELPS (2011 – 1001, 1031) ANTI-GAY PICKETING AT MILITARY FUNERAL. TORT CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
1. MATTER OF PUBLIC CONCERN – CONTENT, FORM AND CONTEXT.
2. ON PUBLIC LAND NEXT TO A PUBLIC STREET
3. VERDICT ON CONTENT AND VIEWPOINT OF MESSAGE.
4. REJECT OUTRAGEOUS – FA TOLERATES PAIN
5. STATE CAN RESTRICT TIME, PLACE AND MANNER. LAWFUL AND COMPLIED WITH POLICE. STATUTES ? UNITED STATES v ALVAREZ (2012 – 1004) STOLEN VALOR ACT. ALVAREZ CLAIMED MEDAL OF HONOR IN PUBLIC MEETING.
KENNEDY (+ 3) 1. 1005 – REVIEW OF ALLOWABLE CONTENT BASED RESTRICTIONS.
2. HERE FALSITY AND NOTHING MORE. NO MATERIAL GAIN.
3. WOULD ALLOW GOVERNMENT TO CRIMINALIZE FALSITY IN ONLY CERTAIN SUBJECTS.
4. HIGHEST SCRUTINY. 1006 – GOV’T PURPOSES 5. PURPOSES DON’T SATISFY. REMEDY FOR SPEECH IS COUNTERSPEECH.
6. FREE SPEECH FROM INALIENABLE RIGHT
BREYER (KAGAN) C
1. INTERMEDIATE SCRUTINY. FAILS FIT (SUBSTANTIALLY RELATED). TOO BROAD
ALITO (+ 2)
1. NARROW – SPEAKER KNOWS, BEYOND REASONABLE DOUBT, NO DRAMATIC PERFORMANCES 2. MUCH HARM, CONGRESS DIDN’T FEEL ALTERNATIVES EFFECTIVE.
3. NO RISK TO VALUABLE SPEECH – VERIFIABLY FALSE. SNYDER– ANTI-GAY AT MILITARY FUNERAL – WHAT IS THE HOLDING ? NOTE - NOT GOVERNMENT DEFENDANT.
ALVAREZ – CAN’T LIE ABOUT MEDAL OF HONOR – WHAT IS THE HOLDING ?
ASSUME YOU ARE AN AIDE FOR A MEMBER OF THE HOUSE. SHE HAS ASKED YOU TO DRAFT THE MOST RESTRICTIVE, CONSTITUTIONAL STATUTE POSSIBLE IN BOTH CASES. PLEASE COMPLY. CONTENT 4 – GROUP LIBEL AND HATE SPEECH
HOW DO YOU REACT TO SPEECH YOU DESPISE ?
BEAUHARNAIS v ILLINOIS (1953 – 955, 1004)
RACIST SPEECH PUNISHED UNDER STATE GROUP LIBEL STAT.
USSC SUSTAINS VALIDITY OF STATE GROUP LIBEL STATUTE – 956, 1005 – IF LIBEL AGAINST AN INDIVIDUAL IS NOT PROTECTED, LIBEL AGAINST A GROUP IS NOT PROTECTED.
AFTER NYT v SULLIVAN AND LATER CASES, EVERYONE THOUGHT BEAUHARNAIS NO LONGER GOOD LAW – EFFECTIVELY OVERRULED. NAZI v SKOKIE (1977 – 958, 1035)
STATE COURTS ENJOIN MARCH – CAN’T PARADE IN UNIFORM, DISPLAY SWASTIKAS OR DISTRIBUTE PAMPHLETS. USSC REVERSES PER CURIAM - ILL SUP CT REVERSES ENTIRE INJ – CITIZENS MUST AVOID. NOT FIGHTING WORDS (960, 1038)
SKOKIE PASSES ORDINANCES: PERMITS AND LIABILITY INSURANCE ($300,000) FOR ALL PARADES AND MARCHES, CAN’T INCITE HATE AND NO POLITICAL PARTIES IN MILITARY UNIFORMS. COLLIN v SMITH (7TH CIR. 1978 – 958, 1035)
1. IDEAS REPUGNANT, BUT CAN’T INVALIDATE ON THAT. GOV’T CAN’T RESTRICT BECAUSE OF MESSAGE, IDEAS, SUBJECT MATTER OR CONTENT. COHEN
2. NOT OBSCENE, FIGHTING WORDS, FALSE FACT, OR TENDENCY TO VIOLENCE.
3. DISTURBANCE TO AUDIENCE ON RESIDENTS NOT ENOUGH TO JUSTIFY SUPPRESSION. COHEN 1. REPRESENT TOWN OR MUNICIPALITY – COSTS AND INSURANCE.
2. ARE YOU WILLING TO REPRESENT NAZIS ?
3. FOR REGULATING HATE SPEECH – BEAUHARNAIS, FIGHTING WORDS, NEW CATEGORY (TENDENCY TO VIOLENCE OR DEGRADATION), EQUAL PROTECTION COMPELLING
4. AGAINST – ON CONTENT, WHO DETERMINES WHAT IS HARMFUL, SUPPRESSION FUTILE – DOESN’T REALLY CURE RACISM – JUST SILENCES RACIST SPEECH ON CAMPUS
1. 961, 1038 - MICHIGAN – DC INVALIDATES – OVERBROAD AND VAGUE
2. 961, 1039 - STANFORD – STIGMATIZE, VICTIMIZE OR PERJURATIVE TOWARDS = VILIFICATION CALIFORNIA STATE COURTS INVALIDATE
3. ARE MICHIGAN AND STANFORD ONE WAY – BLACK STUDENT NOT PUNISHED FOR INSULTING WHITE BECAUSE NO STIGMA ? RAV v CITY OF SAINT PAUL (1992 – 962,1039) BURNED CROSS IN BACKYARD – STATE DIDN’T USE TRESPASS 1. 962, 1040 – BIAS MOTIVATED CRIME ORDINANCE 9 – 0 INVALID 2. ARGUMENTS FOR SAINT PAUL
3. SCALIA - REALLY AGAINST MESSAGE – SUPRESSING IDEA. VIEWPOINT DISCRIMINATION. PRO-RACE OR PRO- RELIGION CAN USE FIGHTING WORDS AND NOT VIOLATE THE STATUTE. ALSO NOT NECESSARY TO ACCOMPLISHMENT OF.
4. WHITE – OVERBROAD RESOLVES CASE – NOT FIGHTING WORDS. STEVENS – 967, 1044-45 QUOTE. INJURED FEELINGS TOO BROAD. BUT NOT VIEWPOINT WISCONSIN v MITCHELL (1993 – 970, 1048)
1. 971, 1049 – STATUTE. WISC SC INVALIDATED ON RAV. 9 – 0 USSC = STATUTE VALID
2. ASSAULT CLEARLY NOT PROTECTED. STATE PURPOSE – THIS CONDUCT INFLICTS MORE HARM ON SOCIETY – RETALIATION, COMMUNITY UNREST.
3. FA DOESN’T PROHIBIT USE OF WORDS OR MOTIVE AS EVIDENCE.
4. CAN YOU DISTINGUISH MITCHELL FROM RAV ? WHAT DID RAV THREATEN ? 1. IN RAV, STATUTE INVALID BECAUSE INTENT/EXPRESSION IS THE CRIME. IN MITCHELL, THE CONDUCT (ASSAULT) IS THE CRIME AND THE INTENT IS PROOF YOU ACTED ON YOUR BELIEFS. INTENT EXPLAINS CONDUCT. ALSO LESS DANGER OF VIEWPOINT (ONE SIDE) PROBLEMS.
2. TITLE VII LIKE MITCHELL, NOT RAV
3. LAWYERS REDRAFTING LAW AFTER RAV
VIRGINIA v BLACK (2003 – 973, 1051) ACTUALLY 2 CASES BLACK AND ELIOTT/O’MARA. BLACK – KKK (PRIVATE PROPERTY NEAR STATE HIGHWAY – CROSS 300 YARDS AWAY) ; E/O – NEIGHBOR AFTER GUN INCIDENT. SPLITS ON COURT ? VIRGINIA SC INVALIDATED ENTIRE STATUTE
1. O’CONNOR + 3 - HISTORY OF KKK. CAN BAN FIGHTING WORDS AND INCITEMENT. 974, 1053 - CAN ALSO BAN TRUE THREATS. BLACK NOT TRUE THREAT. ELIOTT – REMAND – NO PRESUMPTION
2. SOUTER + 2 – BANNING MESSAGE HERE – FAILS COMPELLING.
3. SCALIA – SHOULDN’T INVALIDATE PRESUMPTION ON FACE.DEFENDANT CAN REBUT PRIMA FACIE. ONLY PROBLEM WHEN NO INTIMID AND NO TAKE STAND.
4. THOMAS - CONDUCT. REBUTTABLE PRESUMPTION. 1. KKK = POLITICAL MESSAGE ?
2. UNDER STATUTE, IF DEFENDANT DOESN’T TAKE STAND, JURY INSTRUCTED TO FIND INTENT. AFTER CASE, JURY MAY INFER INTENT FROM FACT OF BURNING ON LAWN BUT CAN’T BE ORDERED TO DO SO.
3. WASN’T O’CONNOR AND SCALIA AGAINST STATUTE IN RAV ? INTENT TO INTIMIDATE ? BURNING CROSS ON MY LAWN NOT A TRUE THREAT ?
4. DRAFTING NEXT STATUTE ? SOUTER+2 OCONNOR+3 SCALIA THOMAS
B WIN WIN WIN LOSE
E WIN REMAND REMAND LOSE
B INVALID INVALID INVALID VALID
E INVALID INVALID VA SC VALID TOTAL PRESUMPTION INTERP MODERN HATE SPEECH :
1. NO BROAD STATUTE – NO PRESUMPTION
2. MITCHELL AND TITLE VII = CONDUCT + EXPLANATION = VALID
3. TRUE THREATS UNPROTECTED - BUT NEED SOME IMMINENCE
4. VIEWPOINT CONCERNS (ONE WAY) CONCEPT OF INCITMENT OR TRUE THREAT V POLITICAL BELIEF OR HYPERBOLE:
1. CLEAR AND PRESENT DANGER – WATTS v US
2. FIGHTING WORDS – GOODING v WILSON
3. TORT CLAIMS – FALWELL v HUSTLER
4. HATE SPEECH – VIRGINIA v BLACK CONTENT 5 – COMMERCIAL SPEECH
1. DEFINITION – COMMERCIAL SPEECH = SPEECH WHICH MERELY PROPOSES A COMMERCIAL TRANSACTION. NOT COMMERCIAL SPEECH JUST BECAUSE PAID FOR IT OR SOMEONE IS MAKING A PROFIT – POLITICAL ADS, BOOKS, MOVIES, NEWSPAPERS (MUST PAY FOR ALL) ARE NOT COMMERCIAL SPEECH. GOES TO CONTENT – ECONOMIC INTEREST – PROPOSING A TRANSACTION. VIRGINIA PHARMACY BD v CONSUMER COUNCIL (1976 – 1085, 1134). CAN’T ADVERTISE PRESCRIPTION DRUGS
1. WHAT IS PURPOSE OF THE LAW ? WHO ARE THE REAL PLAINTIFFS ?
2. CATEGORY ANALYSIS NO LONGER APPLICABLE
3. 1085, 1135 – PURELY ECONOMIC DOESN’T DISQUALIFY.
4. IMPORTANCE OF PRIVATE ECONOMIC DECISIONS
5. STATE CAN ACHIEVE PROFESSIONALISM BY REGULATION. CAN’T KEEP CONSUMERS IGNORANT 6. 1087-88, 1136-1137 - PERMISSIBLE RESTRICTION – TPM, FALSE OR MISLEADING, ILLEGAL TRANSACTIONS, ELECTRONIC BROADCAST MEDIA
7. PRINT MORE PROTECTED THAN ELECTRONIC MEDIA
8. COMMERCIAL SPEECH MORE DURABLE – LESS FEAR OF CHILL.
9. HOW DO YOU THEORETICALLY JUSTIFY PROTECTING COMMERCIAL SPEECH ? CENTRAL HUDSON GAS v PSC (1980 – 1095, 1144)
1. COMMERCIAL SPEECH PROTECTED, BUT LESS SO. 1095-96, 1144 – 4 PART TEST
2. PROTECTED – NOT FALSE OR ILLEGAL
3. SUBSTANTIAL STATE INTEREST - ENERGY CONSERVATION AND FAIR RATES SATISFY
4. DIRECTLY ADVANCES - NO RATES, YES ENERGY
5. NOT MORE THAN NECESSARY - FAILS – CAN’T JUSTIFY BAN ON ITEMS WHICH USE LESS ENERGY VICE
POSADAS v PUERTO RICO (1986 – 1100, 1148) 5 -4 VALID
1. LAWFUL AND NOT MISLEADING
2. IMPORTANT INTEREST IN DETERRING GAMBLING
3. DIRECTLY ADVANCED AND NARROW – COULD HAVE BANNED COMPLETELY
4. WHAT IS REALLY AT STAKE ? WHO ARE THE REAL PARTIES AT INTEREST ? US v EDGE (1993 – 1100, 1149) VALID. LOTTERY BROADCASTS INTO OTHER STATE ILLEGAL.
1. VICE LIKE POSADAS. CONGRESS BALANCING
RUBIN v COORS (1995 – 1101, 1149) INVALID
1. TEST SHOULD BE 4 PART CENTRAL HUDSON
2. FEDERAL REGS IRRATIONAL – NO ON BEER, MUST ON WINE. POSSIBLY OK IF USE WORDS. UNIQUE AND PUZZLING SYSTEM WON’T ACHIEVE ITS PURPOSES. 44 LIQUORMART v RHODE ISLAND (1996 – 1101, 1150) 9 – 0 STATUTE INVALID – CAN’T ADVERTISE PRICE OF ALCOHOL
4 = STATUTE INVALID = COMPELLING TEST AND POSADAS OVERRULED. NOT COMPELLING IF MOTIVE IS KEEPING CONSUMERS IGNORANT
4 = STATUTE INVALID = CENTRAL HUDSON
SCALIA = 1791 DID NOT ALLOW BAN ON TRUE
8 ON CENTRAL HUDSON FIT – MORE EXTENSIVE THAN NECESSARY (4 COMPELLING IN ALTERNATIVE) NEW ORLEANS BROADCASTING v US
FEDS BAN GAMBLING ADS UNLESS GOVERNMENT LOTTERY OR NATIVE AMERICAN
INVALID UNDER CENTRAL HUDSON
LORILLARD TOBACCO v REILLY (2001 – 1106, 1155)
OUTDOOR AND INDOOR REGULATION OF SMOKELESS TOBACCO AND CIGAR ADS INVALID UNDER CENTRAL HUDSON PRONGS 3 AND 4 – NOT NARROWLY TAILORED VICE SUMMARY
1. 4 JUSTICES FOR COMPELLING BUT CENTRAL HUDSON IS STILL MODERN LAW FOR COMMERCIAL
2. POSDAS ONLY HAD 4 VOTES ON OVERRULED BUT CLEARLY NOT GOOD LAW. MODERN – NO REAL VICE EXCEPTION – CENTRAL HUDSON
3. GOVERNMENT CAN’T WITHHOLD TRUTHFUL INFORMATION TO LIMIT CONSUMPTION OR ARGUE CITIZENS WILL ABUSE INFORMATION LAWYER ADVERTISING CASES –
BATES v ARIZONA (1977 – 1094, 1142)
1. NOT DEALING WITH QUALITY OF SERVICES OR IN- PERSON SOLICITATION
2. CONNECTION BETWEEN PROFESSIONALISM AND BAN IS STRAINED
3. CAN REGULATE IF FALSE OR DECEPTIVE
4. WHO REALLY DOESN’T WANT ADS ? OHRALIK v OHIO STATE BAR (1978 – 1094, 1142)
1. IN PERSON DIFFERENT THAN ADS – STATE HAS COMPELLING INTEREST IN PREVENTING FRAUD AND COERCION.
2. QUALITY OF REPRESENTATION ?
IN RE PRIMUS AND ZAUDERER (1094, 1142-43)
ACLU PRO BONO SOLICITING STERILIZED NEWSPAPER ADS FOR DALCON SHIELD VICTIMS
RIGHT OF ASSOCIATION – DIGNITY NOT ENOUGH TO BAN. OVERTONES OF POLITICAL OR IDEOLOGICAL FLORIDA BAR v WENT FOR IT (1095, 1143)
PROHIBITS MAIL SOLICITATION FOR 30 DAYS FOLLOWING DISASTER. PRIVACY OF VICTIMS
1. 5 VOTES FOR VALID UNDER CENTRAL HUDSON
2. WHO REALLY WANTS THIS REGULATION ?
FA2 – TESTS AND FA3 – REGULATION OF DIRECT SPEECH OR WRITING SYMBOLIC SPEECH
PROBLEM WHEN THE CONDUCT OR ACTION IS THE COMMUNICATION – CONDUCT CONTAINING A MESSAGE. EG – BURNING DRAFT CARD, BURNING FLAG. HARD CASE WHEN GOVERNMENT DENIES HOSTILITY TO THE MESSAGE BUT CLAIMS INSTEAD A CONTENT NEUTRAL PURPOSE - EG FEAR OF RIOTS, EFFICIENCY OF THE SYSTEM, ETC. UNITED STATES v OBRIEN (1968 – 1124, 1180) 1. 1124, 1180 – STATUTE. WHAT ARE ARGUMENTS FOR PLAINTIFF AND DEFENDANT ?
2. REJECT DEFENDANT’S CLAIM THAT ALL COMMUNICATIVE CONDUCT IS PROTECTED. 1125-26, 1181 - OBRIEN TEST (REALLY BECOMES INTERMEDIATE SCRUTINY)
3. NARROW STATUTE – EFFICIENT RUNNING OF DRAFT PROCESS. NOT HOSTILE TO MESSAGE.
4. WHAT IF CLEAR EVIDENCE IN CONGRESSIONAL RECORD 0F ANTI- WAR PROTESTER BIAS ? 1. FLAG BURNING 1969 - 1974 CASES – STREET, GROGAN AND SPENCE (1131-32, 1187-88) – ALL FREED PEOPLE JAILED FOR BURNING OR USING FLAG AS SYMBOL OF PROTEST. RATIONALES CONFUSED. INCITEMENT, FIGHTING WORDS, SHOCK PASSERBYS, PROPER RESPECT - ALL FAIL. VAGUE, VIEWPOINT.
TEXAS v JOHNSON (1989 – 1133, 1189)
1. 1134, 1190 FN1 – STATUTE
2. TEXAS ARUMENTS IN THE CASE (4) ? TEXAS:
1. CONDUCT = FIGHTING WORDS PER SE
2. IF NOT PER SE FW, SATISFIES CENTRAL HUDSON – INTERMEDIATE
3. IF CONTENT BASED, SATISFIES COMPELLING
4. IF NOT COMPELLING, SPECIAL EXCEPTION FOR FLAG.
LOSES 5 – 4. 3. OBRIEN ONLY IF CONTENT NEUTRAL. IF AGAINST MESSAGE, COMPELLING TEST. POLITICAL EXPRESSION HERE – INTENDED AND UNDERSTOOD
4. 1135, 1191 – STATE INTERESTS – BREACH OF PEACE AND FLAG AS SYMBOL OF NATIONAL UNITY. FIRST NOT IN THE CASE, SECOND RELATED TO CONTENT.
5. TEXAS – FLAG = COMPELLING. CAN BURN TO DISPOSE – ONLY CRIMINAL WHEN BURN WITH MESSAGE. CAN’T ALLOW ONE WAY SYMBOLS – CAN’T BAN BECAUSE OFFENSIVE 6. WON’T MAKE UNIQUE EXCEPTION FOR FLAG REHNQUIST + 2 (D)
1. FLAG = UNIQUE – FEDERAL AND 48 STATES
2. FA NOT ABSOLUTE – THIS IS SIMPLY ANTAGONIZING. OTHER WAYS TO GET SAME MESSAGE.
STEVENS
CAN’T LIMIT MESSAGE BUT CAN LIMIT CONDUCT. CAN’T SPRAY PAINT LINCOLN MEM. US v EICHMAN (1990 – 1141, 1191)
AFTER JOHNSON, CONGRESS PASSES FLAG PROTECTION ACT.
NO ONE DIED – NO ONE CHANGED. POLITICAL PRESSURE ON THE COURT.
THEREFORE – SYMBOLIC GETS INTERMEDIATE SCRUTINY BUT HIGHER IF VIEWPOINT. PROBLEM - MOST REGULATION OF SYMBOLIC SPEECH LOOKS LIKE VIEWPOINT. 2017 INTERMEDIATE SCRUTINY
1. CONTENT NEUTRAL (TO COMPELLING IF CONTENT BASED).
2. IMPORTANT STATE PURPOSE
3. MEANS SUBSTANTIALLY RELATED TO PURPOSE
4. AMPLE ALTERNATIVES FOR COMMUNICATION HOLDER v. HUMANITARIAN LAW PROJECT (2010 – 1143, 1199)
FED. STATUTE – CAN’T PROVIDE MATERIAL SUPPORT TO TERRORIST GROUP. P – ONLY GIVING TO LAWFUL PURPOSES. 6 – 3 STAT. VALID
1. NOT CRIMINALIZING ANY SPEECH OR ADVOCACY IN FAVOR OF THE GROUPS. FA RIGHT TO GIVE $$$.
2. NOT OBRIEN. ON MESSAGE = CONTENT = COMPELLING TEST. ISSUE HERE = NECESSARY TO ACCOMPLISHMENT OF. 3. GOVERNMENT CAN CONCLUDE THAT ALL MATERIAL SUPPORT SUPPORTS TERRORIST ACTIVITIES, EVEN TEACHING AND TRAINING LAWFUL MEANS. LEGITIMACY. RESPECT CONGRESS AND STATE DEPARTMENT ON FUNGIBLE.
BREYER (+ 2) D
1. CLEARLY CAN BAN $$$, ISSUE IS TEACHING.
2. CONTENT = COMPELLING TEST. NOT NECESSARY TO ACCOMPLISHMENT OF. ACTIVITIES CAN BE SEGREGATED. ILLEGAL ONLY IF P KNEW SUPPORTING TERRORIST ACTIVITIES. HOW DEFINE TERRORIST ? BLACK PANTHERS ? BARNES v GLEN THEATER (1991 – 1151, 1208)
2 BARS AND DANCERS WANT TO DANCE IN TOTAL NUDITY. INDIANA LAW REQUIRES SOME COVER. BARS FEATURE ADULT ENTERTAINMENT OF ALL KINDS – ISSUE IS TOTAL NUDITY.
PROBLEMS
1. WHAT IS THE MESSAGE (ART) v STATE’S INTEREST
2. WHAT ABOUT HAIR AND EQUUS ? SCALIA – NON-PROTECTED - LEGITIMATE
REHNQUIST (OCONNOR AND KENNEDY) – INTERMEDIATE - SYMBOLIC
SOUTER – SECONDARY EFFECTS
DISSENT (WHITE, MARSHALL, BLACKMUN AND STEVENS) – COMPELLING 1. SCALIA – ON CONDUCT = NOT PROTECTED. NO DOCTRINE OF PROTECTED IF NO ONE ELSE HURT. MORALITY SATISFIES LEGITIMATE/RATIONAL RELATION.
2. REHNQUIST (+2) – EXPRESSIVE BUT MARGINALLY. O’BRIEN – IMPORTANT/ SUBSTANTIALLY RELATED. SATISFIED BECAUSE NOT ON EROTIC MESSAGE BUT PUBLIC NUDITY. PUBLIC NUDITY BANNED IF NOT DANCING.
3. SOUTER – INTERMEDIATE SATISFIED BECAUSE ON SECONDARY EFFECTS. PREVENTING PROSTITUTION, SEXUAL ASSAULTS AND OTHER CRIMES DISSENT (4)
1. DANCING WITHIN FA PROTECTION. ON EROTIC MESSAGE – EITHER CONTENT BASED OR IRRATIONAL. COMPELLING/ NECESSARY TO THE ACCOMPLISHMENT OF.
2. DON’T LIKE INTENSIFIED EMOTIONAL OR EROTIC MESSAGE – ON CONTENT. GENERATING THOUGHTS AND EMOTIONS IS THE ESSENCE OF COMMUNICATION.
3. NUDITY IS ALLOWED IN OTHER SETTINGS. GOVERNMENT CAPACITIES
GOVERNMENT AS PROPERTY OWNER
2. HOLMES – 1157, 1213 – 1897 – NO FA RIGHTS ON PUBLIC PROPERTY – LIKE PRIVATE OWNER
3. HAGUE v CIO (1939 – 1157, 1214) – MODERN RULE - STREETS, SIDEWALKS AND PARKS = FA RIGHTS
4. FOR THESE TRADITIONAL PUBLIC FORUMS, IS IT GUARANTEED ACCESS OR EQUAL ACCESS ? ARE ALL TRADTIONAL PUBLIC FORUM CASES DATED GIVEN NEW TECHNOLOGY (SOCIAL MEDIA) ? SAIA V NY (1948 – 1158, 1215) – CAN’T REQUIRE PERMIT FOR SOUND TRUCK
SCHNEIDER v NJ (1939 – 1161, 1217)
INVALIDATED ORDINANCE BANNING LEAFLET DISTRIBUTIONS ON STREET. ANTILITTER NOT ENOUGH TO OVERCOME
MARTIN v STRUTHERS (1943 – 1161, 1218)
INVALIDATED ORDINANCE BANNING DOOR BELL RINGING. STATE CAN’T DO IT – STATE CAN ENFORCE WISHES OF PRIVATE HOMEOWNER. COX v NEW HAMPSHIRE (1941 – 1159, 1216)
STATUTE – NEED A LICENSE FOR PARADE OR PROCESSION ON PUBLIC STREET OR SIDEWALK. COX MARCHED ON SIDEWALK – IN 4/5 GROUPS SINGLE FILE. VALID
1. GOVERNMENT INTEREST IN SAFETY – CAN’T IGNORE RED LIGHTS. 1159, 1216 – 60 – QUOTE - BALANCING
2. 1160, 1217 - VALID TIME, PLACE AND MANNER PERMIT OK AS LONG AS NO DISCRIMINATION.
3. 1160, 1217 FN 1 - ADMINISTRATIVE FEE OK. DISLIKE IN TPF (EARLY CASES)
1. TOTAL BAN – REGULATION BETTER
2. CONTENT EXCEPTIONS
3. TOO MUCH ADMINISTRATIVE DISCRETION
4. COX v LOUISIANA – 1168, 1225 – QUOTE ON TPM NECESSITY.
5. THESE EARLY TENDENCIES GET INCORPORATED INTO MODERN TPM WATCHTOWER BIBLE v STRATTON (2002 – 1165,1222) 1165, 1222 - ORDINANCE. USSC INVALIDATES ORDINANCE. MAYBE VALID IF LIMITED TO COMMERCIAL OR $$$ SOLICITATION BUT NOT RELIGIOUS AND POLITICAL. INHIBITS ANONYMOUS AND SPONTANEOUS SPEECH.
KOVACS V COOPER (1949 - 1162, 1219) – OK TO BAN “LOUD AND RAUCOUS SOUND TRUCKS LADUE v GILLEO (1994 – 1164, 1221) – CAN’T BAN ALL LAWN SIGNS – EXCEPTIONS DON’T SAVE.
HOMEOWNER CAN POST OR TELL JW TO LEAVE TPF = STREETS, SIDEWALKS (DOOR BELLS ) AND PARKS. RIGHT OF ACCESS HOSTILE AUDIENCE REACTION (DISTINGUISH CLEAR AND PRESENT DANGER AND FIGHTING WORDS)
CANTWELL v CONNECTICUT (1940 – 943, 991) JEHOVAH’S WITNESS ON STREET OF NEW HAVEN RECORD PLAYER.
1. 943, 992 – EARLY QUOTE ON DISTURBANCE – PACKED UP AND MOVED 2. 943, 992 - NOT FIGHTING WORDS – NOT INDIVIDUALLY DIRECTED
TERMINIELLO v CHICAGO (1949 – 944, 992) – ANTI- SEMITIC. CROWDS OUTSIDE AUDITORIUM. SNAKES AND SLIMY SCUM. RIOTS, BUT PROTECTED SPEECH. FEINER v NY (1951 – 945, 994)
SIDEWALK – DEROGATORY ABOUT TRUMAN, MAYOR – BLACKS SHOULD PROTEST. CROWD – “IF YOU DON’T …”. IGNORED POLICE REQUEST TO STOP.
1. NOT ON CONTENT – PROPER CONCERN FOR SAFETY AND PUBLIC WELFARE
2. WORRIED ABOUT TOO MUCH DISCRETION IN POLICE. HERE – CLEAR INCITEMENT OF RIOT
3. DISSENT – NO RIOT – ONE ISOLATED THREAT. COPS SHOULD TRY AND PROTECT THE SPEAKER FIRST. 1. PREVIDEO – MORE ON LAWYER’S SKILLS
2. CROWD REACTION TO CONTENT – NOT FIGHTING WORDS. NOT ADVOCATING ILLEGALITY.
3. WHAT IF NO REQUEST BY COP TO STOP – JUST ARREST SPEAKER ON COMMENT ? BREAK UP SPEECH v JAIL ?
4. MUST THE POLICE MAKE AN EFFORT TO PROTECT THE SPEAKER (BLACK DISSENT) ? EDWARDS v SOUTH CAROLINA (1963 – 947, 996)
1. GENERAL STATUE ON BREACH OF PEACE. NO FIGHTING WORDS – NO EVIDENCE OF VIOLENCE BY EITHER SIDE.
2. FAR CRY FROM FEINER
3. DOES THIS DEPEND ON AUDIENCE REACTION ? REWARD VIOLENCE ?
4. DIFFERENT IF ONE OBSERVER HAD SAID “IF YOU DON’T STOP, I WILL” ? COX v LOUISIANA (1965 – 948, 996) 2000 V 300
LIKE EDWARDS. ON VIDEOTAPE, PEACEFUL – NOT VIOLENCE ABOUT TO ERUPT
GREGORY v CHICAGO (1969 )
EDWARDS.
MODERN - HOSTILE AUDIENCE STILL VALID BUT MODIFIED BY CIVIL RIGHTS ERA CASES – COPS MUST TRY TO PROTECT THE SPEAKER. ASK TO STOP, NOT JUST ARREST. TIME PLACE AND MANNER RESTRICTIONS
HEFRON v KRISHNAS (1981 – 1168, 1225) VALID
FAIRGROUND BOOTHS ON FIRST COME BASIS – LITERATURE AND $$ ONLY AT BOOTHS. SANKIRTAN - $$ WITHOUT BOOTH.
1. RELIGIOUS VIEWS AND $$$ PROTECTED BUT REASONABLE TPM ALLOWED – 1169, 1226 – TEST.
A CONTENT NEUTRAL B. SIGNIFICANT GOVERNMENTAL PURPOSE C. AMPLE ALTERNATIVE CHANNELS STATE PURPOSES = CROWD CONTROL AND NO FRAUD
2. FAIR NOT STREET FOR STATE PURPOSES
3. DON’T NEED TO JUSTIFY REFUSAL TO GRANT KRISHNAS EXCEPTION
4. ALTERNATIVE FORUMS OUTSIDE FAIRGROUNDS, AT BOOTH AND CIRCULATING FOR MESSAGE.
BRENNAN (+ 2) DISTRIBUTION, SALE AND $$$. CAN LIMIT LAST 2 TO BOOTH BUT DISTRIBUTION OF LITERATURE SHOULD BE ALLOWED LIKE SPEECH – DON’T NEED BOOTH. CLARK v COMMUNITY FOR CREATIVE NON-VIOLENCE (1984 – 1178, 1235)
1. SLEEPING HERE IS EXPRESSIVE CONDUCT = PROTECTION. BUT SUBJECT TO TPM – 1179, 1236 – TEST – ADDS NARROWLY TAILORED NOT MODERN
2. 1180, 1237 FN 5, 1181, 1238 FN 6 - TPM AND SYMBOLIC SPEECH ARE THE SAME TEST MARSHALL (BRENNAN) DISSENT
1. 1181, 1238 – FN 6- AGREE ON INTERMEDIATE TEST. THIS ISN’T CAMPING – EMPHASIZE PLIGHT OF THE HOMELESS. NO REAL ADMINISTRATIVE PROBLEMS SEPARATING FROM IMPOSTERS.
2. NO SUBSTANIAL INTEREST – NO PROOF SYMBOLIC SPEECH CAUSING WEAR AND TEAR
3. MAJORITY STOPS ONCE CONTENT NEUTRAL. NOT FAIR TO EQUATE SYMBOLIC SPEECH WITH ALL CAMPERS. US v GRACE (1983 – 1191, 1249)
STATUTE ON 1191, 1249-50
1. HERE ON PUBLIC SIDEWALKS - A TRADITIONAL PUBLIC FORUM. THIS IS NOT TPM – THIS IS A BAN. STATE PURPOSES NOT FURTHERED BY BAN IN TPF. ONLY AS APPLIED TO PUBLIC SIDEWALKS.
2. TPM IN TPF = INTERMEDIATE SCRUTINY
3. CONTENT NEUTRAL IN TPF = NO VIEWPOINT, SPEAKER IDENTITY OR SUBJECT MATTER DISTINCTIONS. FORSYTH COUNTY GEORGIA v NATIONALIST MOVEMENT (1992 – 949, 998) 90/400 -- 20,000/1,000/3,000 (COPS) - $ 670,000 949, 998 – STATUTE – FEE UP TO $ 1,000 PER DAY. ASSESSED $ 100
1. IMPERMISSIBLE STANDARDLESS DISCRETION IN COUNTY ADMINISTRATOR. VIEWPOINT.
2. CAN’T HAVE FEE BASED ON ASSESSMENT OF LEVEL OF CROWD REACTION. CAN’T BURDEN SPEECH BECAUSE IT MIGHT OFFEND A MOB. VALIDATES THE HECKLERS VETO. CAP OF $ 1,000 DIDN’T SAVE.
CAN YOU REWRITE THIS STATUTE TO BE VALID ? FRISBY v SCHULTZ (1988 – 1183, 1241)
ORDINANCE BANS FOCUSED PICKETING
1. 1184, 1241 - TEST. INTERMEDIATE SATISFIED HERE – CONTENT NEUTRAL, NARROWLY TAILORED TO SIGNIFICANT PURPOSE AND AMPLE ALTERNATIVES. PRIVACY SUBSTANTIAL AND CAN MARCH IN STREET OR DISTRIBUTE LITERATURE. CAN’T MAKE CAPTIVE.
2. DISSENT ON OVERBROAD. BANS GET WELL JOHNNY MESSAGE FROM BASEBALL TEAM. MADSEN v WOMEN’S HEALTH CENTER (1994 – 1185, 1242)
PROBLEM WITH ALL INJUNCTIONS - CONTENT BASED
FIRST INJUNCTION IGNORED – SECOND INJUNCTION MUCH MORE RESTRICTIVE
1. 1185, 1242 – DEFENDANT ARGUES VIEWPOINT – ONLY AGAINST PRO-LIFE. WANTS STRICT SCRUTINY. NO BECAUSE ALL BASED ON PAST CONDUCT. HERE ALL VIOLATORS SHARED THE SAME VIEWPOINT. ON THE VIOLATION. 2. 1185, 1243 - INTERMEDIATE. DIFFERENCE BETWEEN ORDINANCE AND INJUNCTION BECAUSE OF CULPABILITY. HERE VIOLATION AND PROTECT RIGHTS OF PATIENTS SPECIFICALLY.
3. SOME PARTS OF THE INJUNCTION FAIL INTERMEDIATE SCRUTINY BECAUSE TOO BROAD.
SCALIA + 2
VIEWPOINT – SHOULD BE COMPELLING HERE. ANGRY JUDGE SUPRESSING POLITICAL VIEWPOINT.
CAN’T IGNORE INJUNCTION APPEAL HANDOUT – FA 4 HILL v COLORADO (2000 – 1189, 1246)
CAN’T APPROACH WITHIN 8 FEET OF ANOTHER WITH LEAFLET OR SIGN NEAR ABORTION CLINIC. VALID 6 – 3.
McCULLEN v COAKLEY (2014 – S 81, 1247)
STATUTE 35 FOOT BUFFER ZONE AROUND ABORTION FACILITIES. INVALID
5 – SAID INVALID – INTERMEDIATE SCRUTINY - NOT NARROWLY TAILORED – INFORMED, CARING BANNED
4 – SAID INVALID – NOT CONTENT NEUTRAL – COMPELLING TEST.