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, PORTLAND - ALT RIGHT MARCHING IN REVERSE (LIBERAL COLLEGE TOWNS, JEWISH CITY) FACT SPECIFIC – WHAT SAID, WHERE 1. RIGHT TO MARCH THROUGH STREETS OR SIDEWALKS (COSTS AND LIABILITY) ? 2. RIGHT TO MARCH THROUGH CAMPUS OF PUBLIC UNIVERSITY ? 3. RIGHT TO MARCH THROUGH CAMPUS OF PRIVATE UNIVERSITY ? ACTUALLY PRACTICE THIS – EVEN IN SMALL TOWNS. BASIC FIRST AMENDMENT FOUNDATION: 1) CONGRESS/STATE (14 AMENDMENT) CAN VIOLATE FIRST AMENDMENT (NOT EMPLOYER – NFL - KAPERNICK) 2) PRIVATE = TORT, NOT FIRST AMENDMENT VIOLATION 3) BEWARE IF NON SPEECH ELEMENT – CAN BE PUNISHED EG SPRAY PAINT ANTI-SEMETIC ON SCHOOL WALLS 4) MANY CRAZY LAWS AND ORDINANCES IN EXISTENCE. USSC DOES NOT REPEAL – STILL ON BOOKS 5) MANY PRACTICES VIOLATING THE FIRST AMENDMENT AREN’T CHALLENGED (EG PUBLIC PROFANITY ARREST) 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, FORNICATE, FREAKING 3) GENOCIDE ? HATE SPEECH ? INTERNET TROLLS ? 4) SNOWDEN AND THE HACKIVISTS 5) TRY TO BRIBE JUDGE ? 6) WHEN CAN GOV’T ARREST ? BIG DATA AND PROBLEMS USA TODAY - AUGUST 19, 2019 1. CONNECTICUT – TRYING TO BUY HIGH CAPACITY RIFLE MAGAZINES ON LINE AND FACEBOOK “AN INTEREST IN COMMITTING A MASS SHOOTING”. COPS FOUND 2 GUNS, AMMUNITION, BODY ARMOR AND OTHER EQUIP. 2. FLORIDA – MULTIPLE TEXTS WITH PLANS TO COMMIT A MASS SHOOTING. “LARGE CROWD FROM 3 MILES AWAY. 100 KILLS WOULD BE NICE. I HAVE A LOCATION “. NO WEAPONS FOUND. 3. OHIO – ONLINE VIDEO ID HIM AS SHOOTER AT JEWISH COMMUNITY CENTER WHICH HASN’T HAPPENED. ROUNDS OF AMMO, SEMI-AUTO WEAPONS AND ANTI-SEMITIC LIT. 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 ? MANY USSC CASES FOCUS ON THE NEGATIVE – WHAT IS NOT PROTECTED. LEAVES UNCLEAR WHAT IS PROTECTED. I AM IMPOSING AN ORDER. CASES ALL OVER. 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 REGULATION OF DIRECT SPEECH – 5 CATEGORIES //// THEN WHERE DOES SPEECH OCCUR ? //// 1. GOV’T AS PROPERTY 2. MEDIA – TYPE, OWNER – USUALLY TECHNOLOGY TRADITIONAL PUBLIC OR FORUM – STREETS, SIDEWALKS, PARKS ____________________________________________ SIDE ISSUES: 1. GOV’T AS EDUCATOR 5. FREE EXERCISE - RELIGION 2. GOV’T AS EMPLOYER 6. ESTABLISHMENT CLAUSE 3. GOV’T AS PATRON 7. SYMBOLIC SPEECH 4. CAMPAIGN SPENDING 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 ? DIFFERENT IF JUDGE KICKS OUT OF COURTROOM ? 2. MEANING OF MESSAGE ? WHY ARE THESE SOUNDS SO OFFENSIVE ? DOES IMPACT CHANGE IF INTERCOURSE THE DRAFT; PROCREATE THE DRAFT; RESIST THE DRAFT. WORD DETERMINES ANALYSIS. 3. 952 – 953; 1000-1001 – FA THEORY. NOT EROTIC – DIFFICULT FOR WORDS TO BE OBSCENE 4. YOU ARE CLERK FOR STATE LEGISLATOR INCENSED BY THIS. SHE ASKS YOU WHAT CAN BE DONE ABOUT IT. 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. WHY DIDN’T COHEN CONTROL ? 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 6. DO ANY OF YOU USE ON AIR RADIO OR TV ? 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): OLIVER WENDELL HOLMES 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 ? 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 ADVOCACY 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 ACADEMIC DISCUSSION – HIGHEST PROTECTION (OPINION) 3 2) HYPERBOLE ADVOCACY 3 ------------------- 1) BRANDENBURG TEST INCITEMENT 3 2) TRUE THREAT CONSPIRACY 3 CONDUCT - LOWEST PROTECTION QUESTIONS : 1. 935,983 - ANTI-ABORTION WEBSITES. TRUE THREATS. DISSENT SAYS INTIMIDATION PROTECTED. NFL PLAYER TWEETING PICTURE OF COP WITH THROAT SLASHED ? 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 ? GLORIFICATION OF TERRORISTS ? MATERIAL SUPPORT – 938, 986. HOLDER – CAN’T SAY $$$ FOR PEACEFUL PURPOSES. 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. BUT 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.