Freedom of Speech: 1st Amend.

Intro

  1. Theories
    1. Instrumental Theories
      1. Self govt 2 disc. all
      2. Human prog. & mkt place of ideas
      3. Toleration in heterogenous soc.
    2. Other Theories
      1. Self exp. / end theory
      2. Default princ. of inability 2 check govt
  2. Positions
    1. 1st is pref'ed rt
    2. Value of Speech
      1. Political
      2. Social
      3. Scientific
      4. Commercial
      5. Sexual / vulgar
      6. Libelous, obscene, crim., fraud, / fighting (unprotected)
  3. Appellate Rev. in Free Speech Area
    1. Indep. Appellate Rev. of Facts 4
      1. Speaker's intent
      2. Inciting charact. of speech
      3. Likelihood of disorder from speech

Unlawful Advocacy

  1. Clear & Present Dang. No Longer the Test
  2. Dif. Types of Advocacy
    1. Abstract
      1. Only theory so not dir'ed @ anybody
    2. Specif.
      1. Imm. sit. w/specif. axn described, indiv. ID'ed, etc.
  3. Communist Party Cases
    1. Unprotected Advocacy Rules
      1. Gravity of evil - improbability = justif. 4 infring. speech (Dennis)
      2. Advocacy of imm. overthrow
      3. Creating & teaching disciplined group 4 viol. overthrow in future
    2. Protected Advocacy Rules
      1. Advocacy of abstract doc. even if think about future illegal axn (Yates)
    3. For Org. & Membership
      1. Can't advocate viol. overthrow by illegal axn, imm'ly / in future
      2. Mere membership is protected
      3. Knowing / active membership w/knowledge + specif. intent 2 further illegal aim isn't protected
    4. Evid. of Illegal Advocacy
      1. Teaching viol. overthrow, w/specificity 4 illegal axn in future
      2. Teaching viol. overthrow w/legal present axn, specif'ly aimed 2 make later illegal axn effective
      3. Can convict membership of Communist Party, need present advocacy of viol. overthrow imm'ly / in future b/c intent 2 advocate in future / conspiracy insuff.
    5. Govt Can't Outlaw Belief / Doc. By Leg.

Obj'able Speech

  1. Categories
    1. Inciting Speech
    2. Fighting words
    3. Provocative speech
    4. Injurious speech
      1. Offensive
      2. Taboo
      3. Insults
      4. Harassing
      5. Context dep. offensive
      6. Libel & group libel
      7. Unwanted discl.
      8. Intentional infliction of emotional distress
  2. Inciting Speech
    1. Brandenburg Rule: Not Gen. Utility Test
      1. Can't forbid advocacy of force / viol. unless dir'ed 2 incite / prod. imm. lawless axn
        1. Speaker's intent 2 incite / prod. imm. lawless axn
        2. Conseq. of words / words likely 2 incite lawless axn in imm. future
      2. If can see stmt as lawful advocacy, assume that unless contrary evid.
      3. Need imm. which is dif. from communist party sit's
  3. Fighting Words
    1. Unprotected
    2. Chaplinsky Rule (Undermined by later cases but not overruled)
      1. Dir. pers'al insults aimed 2 partic. listener such that
      2. Likely 2 cause disturbance of peace / inflict injury by just saying them
    3. Context indep. & content insensitive rule
  4. Libel
    1. Pub. Officials & Pub. Figures in Pub. Concern: Media & Nonmedia D's
      1. P must prove D publ'ed w/actual malice / knowledge of falsity / reckless disregard of truth (NY X Case)
      2. Reckless disregard if publ'er had doubts about truth but publ'ed anyway
      3. Pub. figures can B gen. fame / ones in controv.
      4. Damage of actual, presumed & punitive damages
    2. Priv. Party in Pub. Concern (Gertz)
      1. States can create neg. based axn 4 priv. parties defamed when invol'ly involved in pub. concern
      2. Can't impose liab. w/o fault 4 libel
      3. Damage only 4 actual injury
    3. Priv. Party in Priv. Concern (Greenmoss)
      1. Can have libel liab. w/o fault
      2. Damage 4 presumed & punitive damages
  5. Invasion of Pvcy: Truth But Private Stuff
    1. Pub. Officials & Figures
      1. Probably can publ. something true if can publ. false by NY X
    2. Priv. Parties
      1. Should have invasion of pvcy axn 4 truthful & priv. concern
      2. But no axn if priv. info available in pub. record
  6. False Light Axn: True But Mislead 2 Wrong Concl.
    1. Two Ways
      1. Invasion of pvcy
      2. Libel through false impression

Obscenity & Child Pornography

  1. Obscenity: Unprotected Speech
    1. Miller Test: 3 Part Test
      1. Dom. theme of material as whole appeals 2 prurient int. 2 av. person in contemp. comm. stand.,
        1. Prurient int. is beyond normal 2 morbid int. 4 sexual stimulation
        2. Avg person can B avg person in subclass
        3. Ad can make it obscene
        4. Jury det's comm. stand.
      2. Work depicts in patently offensive way, sexual conduct specif'ly def'ed by stt. as unlawful,
        1. True hard core porno & depict graphically sex, excretory fns, / genitals
        2. Jury det's comm. stand.
      3. Work as whole lack serious lit., artistic, polit., / scientific value
        1. Obj. rsbl person stand., not jury stand.
    2. Can Poss In Own Home But Not View In Pub. Theatre
  2. Child Pornography: Unprotected
    1. Ferber Rule
      1. Even if not meet Miller test, states can ban use of ch. in porno
    2. Can't Poss Priv'ly of Child Porno
  3. Pornography
    1. Subord. Def. of Porno UnConst'al
      1. Idea that msg of women as sexually subord. det's porno

Reg'ing Protected Speech

  1. Indecent & Offensive Speech
    1. Protected B/C Not Obscene
    2. Pub Forum
      1. Can't ban speech b/c offends sensibilities of listerners unless can show specif. harm (Cohen)
      2. Can't reg. content
    3. Zoning
      1. If content neutral & there's adeq. alt. place, can desig. areas 4 sexually explicit speech whether dispersed / concentrated
      2. Theories
        1. Sexually explicit speech is lwr value
        2. Zoning land w/incidental effect on speech
        3. 2ndary effect theory of trying 2 reg. effects assoc'ed w/speech
    4. Broadcast & Ch
      1. Can channel indecent / profane b/c
        1. Captive audience
        2. Ch in audience
      2. Can't ban altogether
  2. Comm'l Speech
    1. Truthful Comm'l Speech Protected
      1. So state can ban / req. discl. of misleading, deceptive, false / illegal info
      2. Lwr value than polit. speech so can reg. by interm. scrutiny
    2. Interm. Scrutiny Test (Central Hudson)
      1. Truthful & lawful so protected
      2. Subst'l govt'al int.
      3. Reg. dir'ly serve govt int.
      4. Reg. narrowly tailored / rsbly nec.
    3. Def. of Comm'l Speech
      1. Does no more than propose comm'l trxn
      2. Ad / econ. motivation not by itself make it comm'l speech
      3. Ad that promote / refer 2 partic. prod. 4 sale may B comm'l speech even if also has noncomm'l speech
    4. Misc Rules
      1. No chilling impact rubric applied
      2. No vague & overbreadth protections
      3. Govt can supervise 4 truthfulness
      4. Prior restraint not apply
      5. Trade names can B prohibited if deceptive
    5. Vice Activites
      1. Posadas Case says state might B able 2 suppress ad even if truthful (like gambling)
      2. But 44 Liquor Mart seems 2 say no
    6. Attys & Solicitation
      1. Can reg. ads 4 quality of serv. but not ban 4 routine true legal serv's ads
      2. Can reg. overreaching on atty's part
        1. Can reg. direct face 2 face solicitation
        2. But cna't 4 direct mail solicitation
      3. Can req. discl.
      4. Ideological firms not under comm'l speech so protection higher
        1. Could ban comm'l billbds as long as other venues exist

1st Amend. Variables

  1. Vagueness & Overbreadth
    1. Vagueness: If person must guess 2 its meaning & differ 4 applic.
      1. Can construe so more def.
      2. Prob's of no notice, discretion 2 interp., & chilling effect
    2. Overbroad: If applies 2 both protected & unprotected speech
      1. Can construe 2 reach only unprotected
      2. 3rd party standing 4 those who did unprotected stuff on ground applic. 2 people who do protected things will B unConst'al 2 strike entire stt
      3. Only allow 4 subst'ly overbroad 2 sig'ly affect 3rd party & will chill
      4. If protected speaker raises overbreadth, then only excise unConst'al part
    3. All Vague Stt's R Overbroad But Not All Overbroad R Vague
  2. Prior Restraint
    1. Gen'ly
      1. Strong presumption against prior restraint / preventing from publ'ing until approval
    2. Rule 4 Prior Restraint: Obscene Movies, Adult Bkstore, etc.
      1. State has b/p 2 show exp. unprotected
      2. Rev. must B fast & delays on publ'ing is brief
      3. After rev., censor must license / go 2 ct
      4. Ct order restraining publ'ing must B shortest per. of X possible
      5. Proced. must guarantee prompt, final jud. dec.
    3. Collateral Bar
      1. Can't refuse 2 obey ct even if unConst'al ruling
    4. Licensing & Permit Sys.
      1. Ok if not confer discretion & it's X, place, & manner reg.
      2. UnConst'al if official can use discretion 2 refuse by content / viewpt
      3. Facially invalid, then speaker can ignore
      4. But if facially valid, must seek legal rev.
  3. Content Neutrality
    1. Want Subj. Matter & Viewpt Neutrality
      1. Format neutrality isn't content but mode of exp neutrality
    2. X , Place, Manner Reg OK
      1. Content neutral & govt has subst'l int. in X, manner, & place of speech
      2. Defect is that govt must permit all / ban all
    3. Captive Audience
      1. If @ home / office so can't escape from speech
    4. Unprotected Speech Reg.
      1. Rsn 4 reg'ing unprotected speech must B b/c it's unprotected not 4 content
      2. So either ban whole categ. / neutral ban on subset
  4. Symbollic Speech
    1. Level of Rev: If Govt Reg's Conduct Which Is Protected Expression
      1. SS if aimed @ reg'ing expression (unless unprotected exp)
      2. Interm. scrutiny if aimed @ conduct unrel'ed 2 exp
    2. O'Brien Gen Utility Test
      1. Govt must have imp. int. unrel'ed 2 suppressing speech
      2. Restriction on exp. is no greater than req'ed 2 serve int.
    3. Applic. of O'Brien
      1. Only when govt reg. sig. protected exp. activity / single out exp. activity
    4. Flag Desecration
      1. SS
      2. If flag desecration creates breach of peace threatening imm. riot / viol. some other law unrel'ed 2 suppression of exp., then can reg.
    5. Nude Dancing
      1. Can prohibit 4 morality & decency
  5. Pub. Forum
    1. Rts in Pub. Forum
      1. Assemble
      2. Display sign from home
      3. Gather
      4. Loudspeaker
      5. Picket
        1. Can reg. focused picketing
      6. Parade
        1. Rt of ass'n 2 def. whatever msg 4 parade
      7. Solicit
      8. Speak
        1. Even controversial stuff (Edwards Rule)
        2. Officer must control crowd, not speaker unless insuff. # of officer then can stop speaker
    2. Trad'al Pub. Forum
      1. Places
        1. St & sidewalk
        2. Pub. Parks
        3. Places around pub. monument
        4. Pub. theatre by designation
        5. State fair
      2. Charact's
        1. Guaranteed access / = access so can't shut down
        2. Gen'ly alt. forum irrelev. 2 whether can reg. / not
      3. Det by
        1. History / obj. by looking @ ref. 2 history & trad. 4 fn. / princ. use
        2. Designation where govt open up nontrad'al place
          1. Must B intentional
      4. Rsbl X, Place & Manner Reg. As Long As Consistent w/Competing Use
        1. Content neutral
        2. Balancing harm from speech v. harm 2 sig. pub. int. w/more wt 2 speech + less restrctive alt. analysis
        3. Sig. pub. int. is like traffic control, accomodation of competing use, / plus of speech plus
        4. Rigorous vagueness & overbreadth analysis / key on precision
        5. License & permit sys. ok if nondiscrim. / content neutral
      5. Specif. Pub. Forum Can Have Restriction
    3. Limited Pub. Fora
      1. Limited / spec'ed use 4 pub.
        1. Zoo
        2. Mailbox
      2. Open 4 communication rel'ed 2 fn
      3. Govt gen'ly has no pwr 2 excl exp. activity compatible w/forum's purpose but can proscribe what's incompatible by content neutral reg. & alt. fora's existence
    4. Non Pub. Fora Places
      1. Pub'ly owned prop's, facilities, / institutions 4 spec'ed pub. busi. conducted but not gen'ly open 2 pub. like cts
      2. Content neutral reg. & alt. fora's existence may B imp.
    5. Broadcasting v. Print Media
      1. In broadcasting, rt 2 reply ok
      2. In print media, editorial rts strong so rt 2 reply unConst'al
      3. Dif. editorial & access rts 4 2 mediums

Free Speech in Polit. Sys.

  1. Polit. Campaign
    1. Buckley Rule 4 Candidate Campaign
      1. Protect party's polit. expenditure
        1. If coord. expenditure from other indiv. / org., then treated as contrib.
      2. Contrib. can B limited 4 actual / apparent corruption rsns
      3. Reports & discl. ok but might exempt min. party candidates
    2. Ballot Meas's
      1. Contrib. can't B limited
      2. Reporting & discl. ok
    3. Seg'ed Funds 4 Profit Making Corp, Union, & Gen. Busi. 4 Candidate Campaign
      1. Govt can req. seg'ed funds 4 indep. campaign expenditure
      2. For ideological, nonprofit, / no busi. int. org's, govt can't prevent vol. ass'n org'ed 4 polit. purpose from using gen. ass'al funds 4 polit.
    4. Political Axn Committees
      1. Can't reg. indep. expenditures supporting candidate / campaign
      2. Can limit expenditure which candidate controls / PAC coord. w/candidate
      3. Can limit contrib's parties make 2 PAC
  2. Pub. Ee Speech
    1. Can't Do Active Polit. Stuff
    2. If Pub. Concern & Not Interfere w/Working Rel, Free Speech So Can't Fire
      1. Look @ content, form, & context of communication 2 det. pub. concern
      2. Even if pub. concern, if destroy working rel, can B fired
      3. If discharged, then govt has opp. 2 show would've discharged anyway
  3. Civil & Non-Civil Serv. Ee
    1. Can't Discharge
      1. Civil serv. ee by Act
      2. Non civil can't B discharged from job / improperly transferred 4 polit. affiliation rsn unless req'ed by job

Freedom of Ass'n & Press

  1. Freedom of Ass'n
    1. Two Types of Rts
      1. Org. rt of ass'n
      2. Indiv. rt of ass'n
    2. Ass'al Freedom 4 Litig.
      1. Full protected 1st amend. activity whether polit. / ideological / not
    3. Two Types of Ass'al Rts
      1. Rt of intimate ass'n which is pers'al
      2. Rt of expressive rel.
        1. Large org.
        2. Can't force 2 accept members if trample on ass'n msg
        3. Msg can B def'ed by excl. of members
  2. Freedom of Press
    1. Govt Has High Burden Before Getting Prior Restraint
      1. Some level of dang. can justify prior restraint
    2. No Spec. Priv's 4 Being Press
      1. No priv. 4 GJ subpoena, srch warr., prison access, etc.
      2. When allowed access, allowed 2 use tools of trade / camera
    3. Gag Order of Press 4 Fair Trial Only In Extreme Case

This material is copyrighted by the author. Use of this material for profit is strictly prohibited without written consent from author.

12/7/1996

Ms. Haeji Hong

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