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