Transcript Con Law II PP - University of Baltimore School of Law

RIGHT/ CLASSIFICATION
PURPOSE/STATUTORY FIT
1) FUNDAMENTAL/SUSPECT =
COMPELLING/NECESSARY TO THE
ACCOMPLISHMENT OF
2) INTERMEDIATE = IMPORTANT/SUBSTANTIALLY
RELATED
3) MERE = LEGITIMATE/RATIONALLY RELATED
BASIC CONSTITUTIONAL FOUNDATION:
1) CONGRESS/STATE (14 AMENDMENT)
2) PRIVATE = TORT, NOT FIRST AMENDMENT
VIOLATION
BASIC – WHAT IS THE MEANING OF FIRST
AMENDMENT ? ASSUME NO KNOWLEDGE OF CASE
LAW.
1) MUSIC ? RHAPSODY IN THE RAIN BY LOU CHRISTIE
2) GENOCIDE ? HATE SPEECH ?
3) SNOWDEN AND THE HACKIVISTS
4) TRY TO BRIBE JUDGE ?
5) BIG DATA AND ITS PROBLEMS
DEFINE:
OPINION
ADVOCACY
INCITEMENT
CONSPIRACY
CONDUCT
SOLICITATION IN THE SUBWAY – CAN
GOVERNMENT STOP ?
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 - 762 – CRITICIZE
GOVERNMENT (CRIMINAL AT CL) – ALIEN AND
SEDITION ACTS OF 1798 (763)
THEORIES (PP 763 - 767)
LIBERAL
1) JS MILL – MARKETPLACE OF IDEAS - 763-4
2) ALEXANDER MEIKLEJOHN – SELFGOVERNMENT IN A DEMOCRACY -765
3) THOMAS I EMERSON – 766 - PERSONAL
AUTONOMY
4) FRED SCHAUER – GOVERNMENTAL
INCOMPETENCE
CRITIQUES OF LIBERALS:
1) C. MACKINNON -- HANDOUT
2) DOES TRUTH WIN ?
3) WHY DO LIBERALS WANT ECONOMICS
REGULATED BUT NOT SPEECH ?
4) AUTONOMY – THE END OF ALL TRADITIONAL
VALUES ?
BASIC FA SPECTRUM:
EXPRESSION – HIGHEST PROTECTION
(ABSOLUTE ?)
SYMBOLIC SPEECH - BALANCING
CONDUCT – LEAST PROTECTION (NONE)
OPINION – ADVOCACY – INCITEMENT –
CONSPIRACY (ATTEMPT) - CONDUCT
MODERN PERSPECTIVE:
1. GOVERNMENT CAPACITY - FA 1
2. WHERE DOES SPEECH TAKE PLACE ? OLD
PARADIGM = LEAFLET, PAPER OR SPEECH.
3. CONTENT NEUTRAL =
A. VIEWPOINT – SIDE
B. SUBJECT MATTER – ISSUE
C. SPEAKER IDENTITY - STATUS
MODERN FOUNDATION – 5 CASES (THAT CHANGED
AMERICA):
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)
TWICE – HISTORICAL HERE, SUBJECT MATTER LATER
NYT v SULLIVAN (1964):
1. P 827 – DISLIKE CATEGORIES
2. P 827 - FREE SPEECH THEORY
3. P 827 - ALIEN AND SEDITION ACT
4. P 828 - FREE CRITICISM OF GOVERNMENT
BRANDENBURG v OHIO (1969):
1. P 805 – 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 814 – STATUTE – DISTURB/OFFENSIVE – DO WE
LIKE GENERAL STATUTES ?
2. MEANING OF MESSAGE ? WHY ARE THESE
SOUNDS SO OFFENSIVE ? DOES IMPACT CHANGE IF
INTERCOURSE THE DRAFT; PROCREATE THE DRAFT
3. 816 – 817 – FA THEORY. NOT EROTIC – WITH
MILLER, DIFFICULT FOR WORDS TO BE OBSCENE
4. NEXT CASE – REWRITE THE STATUTE
MILLER v CALIFORNIA (1973):
1. TEST - 867 - 868
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): 903 - 7 WORDS (PARA 2)
1. WHO WON ? WHAT IS THE HOLDING ? NOT
OBSCENE – NOT UNPROTECTED. OFFENSIVE.
DEPENDS
2. 905 - 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 AND THE CLEAR AND
PRESENT DANGER TEST:
1) ESPIONAGE ACT OF 1917 (P 773):
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 – 773):
1) 774 - CLEAR AND PRESENT DANGER TEST ACT, TENDENCY AND EFFECT.
2) WHAT IS SOURCE OF THE TEST ?
3) NOT ON SUCCESS – ACTUAL AUDIENCE
RESPONSE ?
FROHWERK v UNITED STATES (1919 – 775):
NO SPECIAL EFFORT TO REACH AUDIENCE BUT
COULD BE THE SPARK.
DEBS v UNITED STATES (1919 – 775):
1. 776 - IF PART OBSTRUCTS, NOT SAVED BY
OVERALL NON-INCITING
2. 776 - NATURAL TENDENCY/REASONABLY
PROBABLE EFFECT AND SPECIFIC INTENT
3. PRESIDENTIAL CANDIDATE JAILED FOR
SPEECH – SENTENCED TO 10 YEARS.
LETTERS BETWEEN HAND AND HOLMES (783 –
784) 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 – 777):
1. 778 - EXCITING AND HINDER WWI
HOLMES AND BRANDEIS (DISSENT):
1. 779 - DEFINITION OF INTENT
2. 779 – IMMINENT, IMMEDIATE. SURREPTITIOUS
AND SILLY. 780 – FAMOUS QUOTE
3. WHAT HAPPENED TO THE SPARK ?
ACADEMIC DISCUSSION – HIGHEST PROTECTION
(OPINION)
ADVOCACY
INCITEMENT
CONSPIRACY
CONDUCT - LOWEST PROTECTION
BRANDENBURG v OHIO (1969 – 804):
1. 805 - 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 – 856)
1. REAL THREAT v POLITICAL HYPERBOLE
2. NY TIMES – ROBUST DEBATE AND CRITICISM
3. AUDIENCE REACTION - LAUGHTER
HESS v INDIANA (1973 – 806)
1. “LATER OR AGAIN” – INDEFINITE
FUTURE TIME – NOT IMMINENT
2. FACT DEPENDENT (NOT
REALISTIC IN EMOTIONAL SETTING)
NAACP v CLAIRBORN HARDWARE (1982 – 807):
1. MERE AVOCACY OF FORCE IS PROTECTED
2. VIOLENCE IN FUTURE (“WILL BE”)
3. SAME RESULT IF GRAND WIZARD (KKK) ?
2014 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
QUESTIONS :
1. 807 - ANTI-ABORTION WEBSITES. REAL THREATS
DIFFERENT ? DISTINGUISH ?
2. 2 PEOPLE CAUGHT IN BALTIMORE WITH BOMBS
AND GUNS AND MAGAZINE ON HOW TO MAKE
BOMBS. MAGAZINE ILLEGAL ?
3. TERRORISTS WATCH LIST - HOW SOON CAN YOU
ARREST ? BIG DATA USEAGE ? GLORIFICATION OF
TERRORISTS ?
4. 809 - FEDERAL BOMB INSTRUCTION STATUTE
CONTENT 2 – FIGHTING WORDS
CANTWELL v CONNECTICUT (1942 – 810)
1. BREACH OF SPEECH STATUTE VAGUE
2. NO C AND P DANGER OF RIOT
3. RIGHT TO BE ON STREET – WHY ?
4. 811 - DEFINITION OF FIGHTING WORDS
5. DIFFERENT IF PROFANE, INDECENT, ABUSIVE.
DIRECTED TO PERSON MESSAGE CAN’T BE PUNISHED.
CHAPLINSKY v NEW HAMPSHIRE (1942 – 811) –
1. 811 - STATUTE
2. 811-12 - FIGHTING WORDS DEFINED
3. 812 – CATEGORIZATION – NO ESSENTIAL PART OF
EXPOSITION OF IDEAS. DOMINATED UNTIL 1964.
COHEN v CALIFORNIA (1971 – 814)
814 – STATUTE – DISTURBING BY OFFENSIVE
CALIFORNIA’S ARUGMENTS:
1. CONDUCT
2. CLEAR AND PRESENT DANGER
3. COURTROOM IS A SPECIAL PLACE
4. OBSCENE
5. FIGHTING WORDS
6. INTRUDE ON UNWILLING
7. BAN THIS WORD
HARLAN :
1. 815 – THIS IS ON WORDS, SPEECH – NOT
CONDUCT, NOT REGULATION.
2. NOT C AND P DANGER – NOT INCITING
3. NOT SPECIFIC STATUTE COURT DIGNITY
4. 815 - NOT OBSCENE – NOT EROTIC – WORDS
5. 815-6 - 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. 817 - HARLAN’S FIRST AMENDMENT THEORY
1. LEAVING CHAPLINSKY CATEGORIES IN FAVOR OF
BALANCING FREE SPEECH v STATE INTERESTS.
2. PRIVACY IN PUBLIC ?
3. DOES MEDIA CHANGE ? YOUTUBE, TWITTER,
FACEBOOK. CYBERBULLYING
GOODING v WILSON (1972 – 813)
813 - STATUTE – OPPROBRIOUS OR ABUSIVE
LANGUAGE
813 - DEFINITION OF FIGHTING WORDS INDIVIDUALLY DIRECTED
TEXAS v JOHNSON (1981 – 813)
813-4 – 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 ?
SPECIFIC – TURNS ON EXACTLY WHAT WAS SAID
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 – 826)
1. 827 – ALABAMA CL TORT LAW – LIBEL PER SE –
TRUTH ONLY DEFENSE, PRESUMED DAMAGES,
PUNITIVES AVAILABLE.
2. 827 - FIRST AMENDMENT THEORY
3. 828 - DEFAMATION RULE - ACTUAL MALICE KNOWINGLY UTTER FALSE STATEMENT
4. JUSTICE BLACK – SHOULD BE ABSOLUTE
PROTECTION FOR NY TIMES
1. 831 - 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 (830-831)
CURTIS PUBLISHING v BUTTS; AP v WALKER
(1967 – 832)
BUTTS – GEORGIA AD
WALKER – RETIRED GENERAL
1. PUBLIC FIGURE = PUBLIC OFFICIAL
ROSENBLOOM v METROMEDIA (1971 – 834)
ON THE PUBLIC VALUE OF THE EVENT, NOT
STATUS OF PLAINTIFF (PO/PF/PVT) ALLEGED
GERTZ v ROBERT WELCH (1974 – 834)
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
3. PRIVATE INDIVIDUAL HERE. RULES (834)
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 – 835)
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
SOME IN FOR ALL, SOME ONLY FOR FAMOUS/PUBLIC
PART. PRESIDENT OF US v BALTIMORE SCHOOL BD.
1. DEREK JETER –
A. INVOLVED IN PED SCANDAL
B. GOT 15 YEAR OLD GIRL PREGNANT
2. KARDASHIANS – WHAT ARE THEY ? NEW MEDIA –
GRUMPY CAT (AS P) OR YOUR BLOG (AS D) ?
3. 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.
4. 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 – 837)
1. CAN’T SUBSTITUE EMOTIONAL DISTRESS TO AVOID
FIRST AMENDMENT
2. 838 – TEST OF OUTRAGEOUS IS TOO SUBJECTIVE.
CARTOONISTS AND SATIRISTS SINCE REVOLUTION –
TOUGH AND SARCASTIC
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 – 840)
PLAINTIFF = COMMON LAW PRIVACY CLAIM
1. INTERESTS ON BOTH SIDES BUT CAN’T PUNISH
BROADCASTER FOR ACCURATE REPORT OF MATTER
IN OFFICIAL COURT RECORDS.
FLORIDA STAR v BJF (1989 – 840)
FLORIDA STATUTE BARRED PUBLICATION
STATUTE UNCONSTITUTIONAL WHEN APPLIED TO
TRUTHFUL AND FOUND IN PUBLIC
BARTNICK v VOPPER (2001 – 840)
ILLEGALLY TAPED – GIVEN TO 3RD PERSON –
GIVEN TO RADIO
EVEN THOUGH KNEW PROBABLY ILLEGAL,
PUBLISHING TRUTHFUL INFORMATION OF
PUBLIC INTEREST = PROTECTED. BUT NOT
ABSOLUTE – PRIVACY CONCERNS.
PROBLEMS IF DIRECT FROM SNOWDEN ?
ZACCHINI v SCRIPPS HOWARD (1977 – 843)
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 ?
CONTENT 4 – GROUP LIBEL AND HATE SPEECH
HOW DO YOU REACT TO SPEECH YOU DESPISE ?
BEAUHARNAIS v ILLINOIS (1953 – 824)
USSC SUSTAINS VALIDITY OF STATE GROUP LIBEL
STATUTE – 824 – IF LIBEL AGAINST AN INDIVIDUAL IS
NOT PROTECTED, LIBEL AGAINST A GROUP IS NOT
PROTECTED.
AFTER NYT v SULLIVAN, EVERYONE THOUGHT
BEAUHARNAIS NO LONGER GOOD LAW –
EFFECTIVELY OVERRULED.
NAZI v SKOKIE (1977 – 844)
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.
SKOKIE PASSES ORDINANCES: PERMITS AND LIABILITY
INSURANCE ($300,000) FOR ALL PARADES AND
MARCHES, CAN’T INCITE HATE AND NO POLITICAL
PARTIES IN MILATERY UNIFORMS.
DC AND COFA INVALIDATE ALL 3 ORDINANCES - 844 QUESTION VALIDITY OF BEAUHARNAIS
1. REPRESENT TOWN OR MUNICIPALITY – COSTS AND
INSURANCE.
2. ARE YOU WILLING TO REPRESENT NAZIS ?
3. FOR REGUALTING 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. 845 - MICHIGAN – DC INVALIDATES –
OVERBROAD AND VAGUE
2. 846 - 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 – 846)
1. 847 – 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
WISCONSIN v MITCHELL (1993 – 855)
1. 855 – 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
2. LAWYERS REDRAFTING LAW AFTER RAV
VIRGINIA v BLACK (2003 – 857)
ACTUALLY 2 CASES BLACK AND ELIOTT/O’MARA.
BLACK – KKK; E/O – NEIGHBOR. SPLITS ON COURT ?
VIRGINIA SC INVALIDATED ENTIRE STATUTE
1. O’CONNOR + 3 - HISTORY OF KKK. CAN BAN
FIGHTING WORDS AND INCITEMENT. 858 - CAN ALSO
BAN TRUE THREATS. BLACK NOT TRUE THREAT.
ELIOTT – REMAND – NO PRESUMPTION
2. SOUTER + 2 – BANNING MESSAGE HERE – FAILS
COMPELLING. 7 -2 STATUE INVALID.
3. SCALIA – DEFENDANT CAN REBUT PRIMA FACIE.
4. THOMAS - REAL FEAR OF VIOLENCE. THIS IS
CONDUCT. NOT IRREBUTABLE 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 ? BURNING CROSS ON MY LAWN
NOT A TRUE THREAT ?
4. DRAFTING NEXT STATUTE ?
SOUTER+2 OCONNOR+3 SCALIA THOMAS
B
WIN
WIN
LOSE
LOSE
E
WIN
REMAND
LOSE
LOSE
B
INVALID
VALID
VALID
E
INVALID
TOTAL
INVALID
INVALID
VALID VALID
PRESUMPTION PROOF
2014 HATE SPEECH :
1. NO BROAD STATUTE – NO PRESUMPTION
2. MITCHELL AND TITLE VII = CONDUCT +
EXPLANATION
3. TRUE THREATS UNPROTECTED - BUT NEED
SOME IMMINENCE
4. VIEWPOINT CONCERNS (ONE WAY)
TRUE THREATS V 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 – 923)
1. WHAT IS PURPOSE OF THE LAW ?
WHO ARE THE REAL PLAINTIFFS ?
2. CATEGORY ANALYSIS NO LONGER APPLICABLE
3. 924 – PURELY ECONOMIC DOESN’T DISQUALIFY.
4. IMPORTANCE OF PRIVATE ECONOMIC DECISIONS
5. STATE CAN ACHIEVE PROFESSIONALISM BY
REGULATION. CAN’T KEEP CONSUMERS IGNORANT
6. 925 - PERMISSIBLE RESTRICTION – TPM,
FALSE OR MISLEADING, ILLEGAL TRANSACTIONS
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 – 935)
1. COMMERCIAL SPEECH PROTECTED, BUT LESS SO.
936 – 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 – 941) 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 – 942) VALID
1. VICE LIKE POSADAS. CONGRESS BALANCING
RUBIN v COORS (1995 – 943) 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.
44LIQUORMART v RHODE ISLAND (1996 – 944)
9 – 0 STATUTE INVALID
3 = STATUTE INVALID = COMPELLING TEST
4 = STATUTE INVALID = CENTRAL HUDSON
4 = POSDAS OVERRULED
SCALIA = 1791 DID NOT ALLOW BAN ON TRUE
3 COMPELLING + THOMAS = OVERRULE
8 ON CENTRAL HUDSON FIT – MORE EXTENSIVE
THAN NECESSARY (3 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)
OUTDOOR AND INDOOR REGULATION OF SMOKELESS
TOBACCO AND CIGAR ADS INVALID UNTER CENTRAL
HUDSON PRONGS 3 AND 4 – NOT NARROWLY
TAILORED
VICE SUMMARY
1. 3 JUSTICES FOR COMPELLING BUT CENTRAL
HUDSON IS 2014 LAW FOR COMMERCIAL
2. POSDAS ONLY HAD 4 VOTES ON OVERRULED
BUT CLEARLY NOT GOOD LAW. 2014 – 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 – 932)
1. NOT DEALING WITH QUALITY OF SERVICES OR INPERSON 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 – 932)
1. IN PERSON DIFFERENT THAN ADS – STATE HAS
COMPELLING INTEREST IN PREVENTING FRAUD AND
COERCION.
2. QUALITY OF REPRESENTATION ?
IN RE PRIMUS AND ZAUDERER
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 (934)
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 – 967)
1. 967 – STATUTE. WHAT ARE ARGUMENTS FOR
PLAINTIFF AND DEFENDANT ?
2. REJECT DEFENDANT’S CLAIM THAT ALL
COMMUNICATIVE CONDUCT IS PROTECTED.
968 - 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
OLD CASES – STREET, GROGAN AND SPENCE (974-5) –
ALL FREED PEOPLE JAILED FOR BURNING OR USING
FLAG AS SYMBOL OF PROTEST. RATIONALES
CONFUSED. INCITEMENT, FIGHTING WORKS, SHOCK
PASSERBYS, PROPER RESPECT - ALL FAIL. VAGUE,
VIEWPOINT.
TEXAS v JOHNSON (1989 – 976)
1. 976 – STATUTE
2. TEXAS ARUMENTS IN THE CASE (4) ?
3. OBRIEN ONLY IF CONTENT NEUTRAL. IF AGAINST
MESSAGE, COMPELLING TEST. POLITICAL
EXPRESSION HERE – INTENDED AND UNDERSTOOD
4. 977 – STATE INTERESTS – BREACH OF PEACE AND
FLAG AS SYMBOL. FIRST NOT IN THE CASE, SECOND
RELATED TO SUPPRESSION OF EXPRESSION.
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
DISSENT
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 – 982)
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.
BARNES v GLEN THEATER (1991 – 984)
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 v STATE’S INTEREST
2. WHAT ABOUT HAIR AND EQUUS ?
SCALIA
REHNQUIST (OCONNOR AND KENNEDY)
SOUTER
DISSENT (WHITE, MARSHALL, BLACKMUN AND
STEVENS)
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
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
1 – GOVERNMENT AS PROPERTY OWNER.
2. HOLMES – 990 – 1897 – NO FA RIGHTS ON PUBLIC
PROPERTY – LIKE PRIVATE OWNER
3. HAGUE v CIO (1939 – 991) – 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) ?
SCHNEIDER v STATE (1939 – 994)
INVALIDATED ORDINANCE BANNING LEAFLET
DISTRIBUTIONS ON STREET. ANTILITTER NOT
ENOUGH TO OVERCOME
MARTIN v STRUTHERS (1943 – 995)
INVALIDATED ORDINANCE BANNING DOOR BELL
RINGING. STATE CAN’T DO IT – STATE CAN
ENFORCE WISHES OF PRIVATE HOMEOWNER.
COX v NEW HAMPSHIRE (1941 – 993)
STATUTE – NEED A LICENSE FOR PARADE OR
PROCESSION ON PUBLIC STREET. COX MARCHED ON
SIDEWALK – IN 4/5 GROUPS SINGLE FILE.
1. GOVERNMENT INTEREST IN SAFETY – CAN’T
IGNORE RED LIGHTS
2. 993-4 - VALID TIME, PLACE AND MANNER
3. PERMIT OK AS LONG AS NO DISCRIMINATION.
4. 994, 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 – 1002 – QUOTE ON TPM
NECESSITY.
5. THESE EARLY TENDENCIES GET INCORPORATED
INTO TPM IN 2014
WATCHTOWER BIBLE v STRATTON (2002 – 999)
999 - ORDINANCE. USSC INVALIDATES
ORDINANCE. MAYBE VALID IF LIMITED TO
COMMERCIAL OR $$$ SOLICITATION BUT NOT
RELIGIOUS AND POLITICAL. INHIBITS
ANONYMOUS AND SPONTANEOUS SPEECH.
HOMEOWNER CAN POST OR TELL JW TO LEAVE
TPF = STREETS, SIDEWALKS (DOOR BELLS ) AND
PARKS.
RIGHT OF ACCESS
HOSTILE AUDIENCE EXCEPTION
FEINER v NY (1951 – 819) SIDEWALK – DEROGATORY
ABOUT TRUMAN, MAYOR – BLACKS SHOULD
PROTEST. CROWD – “IF YOU DON’T …”
1. NOT ON CONTENT – PROPER CONCERN FOR
SAFETY AND PUBLIC WELFARE
2. WORRIED ABOUT TOO MUCH DISCRETION IN
POLICE. HERE – CLEAR INCITEMENT OF RIOT
3. DISSENT – NO RIOT – ONE ISOLATED THREAT.
COPS SHOULD TRY AND PROTECT THE SPEAKER FIRST.
1. PREVIDEO – MORE ON LAWYER’S SKILLS
2. CROWD REACTION TO CONTENT – NOT
FIGHTING WORDS. NOT ADVOCATING
ILLEGALITY.
3. WHAT IF NO REQUEST BY COP TO STOP –
JUST ARREST SPEAKER ON COMMENT ? BREAK
UP SPEECH V JAIL ?
4. MUST THE POLICE MAKE AN EFFORT TO
PROTECT THE SPEAKER (BLACK DISSENT) ?
EDWARDS v SOUTH CAROLINA (1963 – 821)
1. GENERAL STATUE ON BREACH OF PEACE. NO
FIGHTING WORDS – NO EVIDENCE OF VIOLENCE BY
EITHER SIDE.
2. FAR CRY FROM FEINER
3. DOES THIS DEPEND ON AUDIENCE REACTION ?
REWARD VIOLENCE ?
4. DIFFERENT IF ONE OBSERVER HAD SAID “IF YOU
DON’T STOP, I WILL” ?
COX v LOUISIANA (1965 – 821) 2000 V 300
LIKE EDWARDS. ON VIDEOTAPE, PEACEFUL – NOT
VIOLENCE ABOUT TO ERUPT
GREGORY v LOUISIANA (1969 – 822)
EDWARDS.
2014 - HOSTILE AUDIENCE STILL VALID BUT
MODIFIED BY CIVIL RIGHTS ERA CASES – COPS MUST
TRY TO PROTECT THE SPEAKER
WHY HAS HOSTILE AUDIENCE DIMINISHED ?
TIME PLACE AND MANNER RESTRICTIONS
HEFRON v KRISHNAS (1981 – 1002) VALID
FAIRGROUND BOOTHS ON FIRST COME BASIS –
LITERATURE AND $$ ONLY AT BOOTHS. SANKISTAN $$ WITHOUT BOOTH.
1. RELIGIOUS VIEWS AND $$$ PROTECTED BUT
REASONABLE TPM ALLOWED - 1003 – 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 – 1011)
1. SLEEPING HERE IS EXPRESSIVE
CONDUCT = PROTECTION. BUT
SUBJECT TO TPM – 1012 – TEST –
ADDS NARROWLY TAILORED NOT 2014
2. 1013 FN 5 - TPM AND SYMBOLIC
SPEECH ARE THE SAME TEST
MARSHALL (BRENNAN) DISSENT
1. 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 – 1024)
STATUTE ON 1024
1. SIDEWALKS ARE 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 - 823) 90/400 -20,000/1,000/3,000 - $ 670,000 823 – STATUTE – FEE
UP TO $ 1,000 PER DAY. ASSESSED $ 100
2. IMPERMISSIBLE STANDARDLESS DISCRETION IN
COUNTY ADMINISTRATOR. VIEWPOINT.
3. 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 – 1017)
ORDINANCE BANS FOCUSED PICKETING
1. 1017 - TEST. INTERMEDIATE SATISFIED HERE
– CONTENT NEUTRAL, 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 – 1018)
PROBLEM WITH ALL INJUNCTIONS - PRIOR
RESTRAINT AND CONTENT BASED
FIRST INJUNCTION IGNORED – SECOND INJUNCTION
MUCH MORE RESTRICTIVE
1. 1018 – 19 – 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. 1019 - 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