Chapter 7: Free Speech

Chapter 7: Free Speech

A. Introduction

Purpose of 1st Amendment protection of free speech – keep the government from unreasonably interfering with the right to expression

1st Amendment doesn’t restrict private actors/entities

Main idea of 1st Amendment and BOR: individual rights trump the majority will

History – Bill of Rights established to protect rights England had deprived colonists of

Virtually everything in the BOR now applies to the states as well as the federal government

European free speech – free speech as long as it does not offend people

Theories of interpretations of the Constitution:

Original intent theorists

Textual theorists

Living document theorists

Historical ways to restrict speech:

Licensing and seditious libel

Sedition Act

War time and the right to free speech

Theories/justifications for the right to free speech:

Marketplace of ideas theory

Self-governance theory

Self-fulfillment theory

B. Content-Based Restrictions: Dangerous Ideas and Information

Speech that causes unlawful conduct

Shaffer v. U.S.

Bad Tendency Test

Masses Publishing Co. v. Patten

Express Intent Test

Schenck v. U.S.

Clear and Present Danger Test: imminence of evil, seriousness of threat, deference to the legislature

Abrams v. U.S.

Holmes’s Dissent: marketplace of ideas theory

Gitlow v. New York

1st Amendment incorporated

Deference to the legislature issue

Whitney v. California

1st Amendment and right of association

Dennis v. U.S.

Government doesn’t have to wait until overthrow to act

Content-based discrimination v. content-neutral discrimination

Patriot Act

Alien and Sedition Acts

Espionage Act

Brandenburg v. Ohio

Overruled Whitney

Advocacy of violence for political reform is protected unless the speech is advocating imminent lawlessness and is likely to produce violence

Imminence, likelihood of lawless activity, express advocacy, degree of harm, intent

Express Imminent Danger Future Danger

Advocacy of Crime 1 3

Discussion of Ideas 2 4

Contempt of Court v. Contempt of Congress

Speech that threatens

Bridges v. California

Prior restraint – must have clear and present danger; high scrutiny

Watts v. U.S.

True threats are unprotected

Planned Parenthood v. American Coalition of Live Activists

Posters of abortion doctors were unprotected death threats

Speech that provokes a hostile audience reaction

Terminiello v. Chicago

Offensive speech that doesn’t produce a CPD is protected

Cantwell v. Connecticut

CPD doesn’t have to materialize to be punished for it

Feiner v. NY

Heckler’s veto; subsequent cases distinguished

Chaplinsky v. New Hampshire

Fighting, lude, obscene, profane and libelous words are not protected (note: all are low-value speech)

Lude and profane words are now protected

Obscene are now protected to a degree

Libelous words are sometimes protected now

Fighting words are still unprotected

Test: words that are likely to cause an average lessee to fight (i.e., likely to incite an immediate breach of peace); must be directed at someone (Cohen v. California); cuss words aren’t fighting words (Rosenfeld v. New Jersey)

Fighting words v. hate speech

Logic behind hate speech legislation came from Chaplinsky

Skokie Controversy

Speech that discloses confidential information

Landmark Communications v. Virginia

Ban on newspapers prohibiting them from reporting facts

State supreme court can’t defer to state legislature

Questioned the CPD test

Nebraska Press Association v. Stuart

Can’t prohibit newspaper from reporting facts about a trial, even if it deprives the D of a fair trial; can’t censor the press

Other safeguards: venue change, postponement of trial, barring press from courtroom

3 steps: examine nature and extent of pretrial news coverage, alternatives to alleviate problem, determine effectiveness of restraining order

Prior restraints are usually unconstitutional, but facts, such as if this were a university newspaper, might change things

Near v. Minnesota

3 times when prior restraints are allowed: publications that would jeopardize national security in wartime, obscene publications, and publications that threaten to incite violence and/or the violent overthrow of government

NY Times v. U.S. / U.S. v. Washington Post (i.e., Pentagon Papers case)

Government didn’t meet the burden of justifying the prior restraint even though the publication might undermine national security

Brennan ship at sea test

Must have overwhelming evidence of an impending catastrophe to justify a prior restraint of the press

Progressive Controversy

Prior restraint not allowing publication article on construction of the hydrogen bomb is constitutional b/c it is technical and the disparity of risk at issue

C. Overbreadth, Vagueness, and Prior Restraint

Overbreadth and Vagueness

Gooding v. Wilson

Statute was applied to more than just fighting words, so it was overbroad and unconstitutional

Statute itself wasn’t unconstitutional, just the way the state had construed the statute

Fighting words are limited to language that has a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed

Overbreadth doctrine tests the constitutionality of legislation in terms of its potential applications

A law is void on its face if it is so vague that persons of common intelligence must necessarily guess at its application

Prior restraint

Requiring a permit to be obtained before marching, protesting or distributing can also be considered a prior restraint just like with prohibiting publication can

Lovell v. Griffin

If there is a permit process, you have to have clearly articulated standards, otherwise there is selective enforcement

This doesn’t necessarily apply to businesses being charged a fee to pass out advertisements b/c that is commercial speech

Near v. Minnesota

Statute authorizing injunction of publication was censorship

Collateral Bar Rule: injunction must be obeyed until it is set aside, and that person subject to the injunction who disobeys it may not defend against the ensuing charge of criminal contempt on the ground that the order was erroneous or even constitutional

You can’t argue that the injunction is unconstitutional, just that you didn’t violate the injunction

D. Content-based restrictions: low value speech

False statements of fact

NY Times v. Sullivan

1st Amendment protects statements, even false statements, made about a public official unless they were made with actual malice

Curtis Publishing v. Butts / AP v. Walker

NY Times standard applies to public figures too

More of a “reckless” standard than a “malice” standard

Gertz v. Robert Welch

States may define the appropriate standards of liability for a publisher of defamatory falsehood injurious to a private individual, as long as the standard is not strict liability (i.e., liability without fault)

Factors considered when determining whether someone is a public figure: issue, influence, thrusting into spotlight

Dun & Bradstreet v. Greenmoss Builders

No reason to give special protection when the speech doesn’t involve matters of public concern

Hustler Magazine v. Falwell

Public figures and officials may not recover for intentional infliction of emotional distress without showing in addition that the publication contains a false statement of fact which was made with actual malice (i.e., knowledge that the statement was false or with reckless disregard as to whether or not it was true)

Interest in free speech overrides the interest in protecting public figures from emotional distress

Nonnewsworthy disclosures of private information

Cox Broadcasting Corp. v. Cohn

Once true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it, or it would invite self-censorship and suppression of public issues

Commercial speech/advertising

Commercial speech should be regulated so it’s more accurate and not false advertising; it’s geared towards making a profit, advertising, and competition; it proposes a commercial transaction; if the speech is false or misleading or proposes an illegal activity, the commercial speech is unprotected

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Counsel

Commercial speech is protected but at a lower level b/c of the consumer’s interest and it can be regulated

If commercial speech is false, it can be sanctioned or punished

Value of commercial speech is the free flow of commercial information

If you have the right to ban selling something, you have the right to ban advertising that item

HOWEVER you can ban violence, but not speech about violence

Central Hudson Gas v. Public Service Commission of NY

Test for whether commercial speech is protected: not misleading, not unlawful activity, regulation of speech must be on the basis of a substantial government interest, regulation must directly advances interest, regulation must not be more extensive than necessary (i.e., narrowly tailored)

Commercial speech gets less protection

Intermediate level of scrutiny applied to this regulation

44 Liquormart v. Rhode Island

Ban did not advance state’s interest and was more extensive than necessary

“Adults can handle information” logic is not used today

Lorillard Tobacco v. Reilly

AG failed to show that regulations governing advertising of cigarettes were not more extensive than necessary

Thompson v. Western States Medical Center

Ban on advertising the fact that you can compound drugs was unconstitutional restriction on commercial speech

Court used anti-paternalism approach even in the highly regulated drug industry

Obscenity

Roth v. U.S. / Alberts v. California

Obscene material (i.e., porn) is not protected and may be suppressed without proof that it will create a CPD

Test: applying contemporary community standards, whether the dominant theme of the material as a whole appeals to the prurient interest of an average person

Obscene material is unprotected (arguably) b/c it is utterly without redeeming social importance and doesn’t contribute to the marketplace of ideas

Distinguish obscene material from art

Miller v. California

Miller’s 3-part standard that is used today:

1. Average person, applying contemporary community standards would find that the work, taken as a whole appeals to the prurient interest

2. Whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law

3. Whether the work taken as a whole lacks serious literary, artistic, political, or scientific value

Obscenity must now be sexual and offensive to be unprotected

Paris Adult Theatre 1 v. Slaton

Porn theatre not protected just because it was exhibited to consenting adults; state has power to make a morally neutral judgment that the public exhibition of obscene material has a tendency to injure the community as a whole, endanger the public safety or to jeopardize the states right to maintain a decent society

NY v. Ferber

Test for child porn is different than the test for obscenity; child porn is not protected whether it is obscene or not

States can regulate child porn b/c:

1. Physiological, emotional, and mental health of the child

2. Miller test not a satisfactory solution to problems of child porn

3. Advertising and selling of child porn provide an economic motive for an illegal activity

4. Value of child porn is de minimis

5. Categorical ban is compatible with precedent

Ashcroft v. The Free Speech Coalition

Porn appearing to depict minors (i.e., virtual child porn) is protected b/c it is not intrinsically related to the sexual abuse of children

U.S. v. Williams

Statute prohibiting someone from selling virtual child porn, which is legal, under the pretext that it is actual child porn is constitutional

Issue of intent and commercial speech (you don’t have a right to make false advertisements)

Lewd, Profane, and Indecent

Cohen v. California

State may not make the simple public display of the word “Fuck” a criminal offense; no state interest found

“One man’s vulgarity is another’s lyric”

Erznoznik v. Jacksonville

Ordinance making it a nuisance for a drive-in theatre to show nudity was both over and under-inclusive and thus invalid

FCC v. Pacifica Foundation

Constitutional for Carlin’s 7 Filthy words to not be broadcast when children would be in the audience

Restriction was to form instead of substance

Sable Communications v. FCC

Statute prohibiting “dial-a-porn” services is unconstitutional b/c it limits the content and not just the form of the speech

Reno v. ACLU

Communications Decency Act was invalid b/c it was overly broad

Remember: indecent language is protected; obscene is not

Government may not ban large amounts of protected speech directed to adults in the name of protecting children, even if there is no less restrictive method available for protecting children

Ashcroft v. ACLU

Injunction against the Child Online Protection Act was upheld because there were plausible, less restrictive alternatives

Decision suggests that indecent speech gets full constitutional protection instead of lower constitutional protection

Young v. American Mini-Theatres

State has an interest in preserving quality of residential areas and thus could regulate where adult theatres were located based on the content of the films

Zoning is hard to challenge on a constitutional base b/c you can always find a state interest to justify the regulation

City of Renton v. Playtime Theatres

B/c ordinance was not aimed at content of the films, but instead at the secondary effects of the theatres on the community, it is consistent with content-neutral regulations and is thus constitutional

You need a factual basis to make the secondary effects argument, but courts don’t require a high threshold of proof in cases like this

Secondary effects analysis only applies to sexual speech

Hard to challenge a time, place, and manner restriction on constitutional grounds

City of Los Angeles v. Alameda Books

City met the evidentiary requirement to prove that the ordinance was designed to serve a substantial government interest and that there were reasonable alternative avenues of communication still available; however, this didn’t really support the final rule that you can’t have more than 1 adult business in one building

City made a secondary effects argument and Court bought it

5-4 split of whether to defer to the legislature

Hate speech and porn

Beauharnais v. Illinois

Convicted of defaming the black race; court must uphold statute and convictions under the statute unless it can say that it is a willful and purposeless restriction unrelated to the peace and well-being of the state

Libel (false statement of fact) is not protected

True statements are protected

Opinions are protected

R.A.V. v. City of St. Paul

Hate speech statute was invalid b/c it prohibited speech solely on the basis of content

Even if the speech is unprotected, if the statute prohibiting it is content and view-point based, the statute might still be unconstitutional

Content-based restrictions are presumptively unconstitutional but can sometimes survive