Professional Documents
Culture Documents
a. Test: would the average person applying community standards finds that
this appeals to the prurient interest in a patently offensive way and without nay
redeeming qualities? ......................................................................................... 20
2. Paris Adult Theater v. Slaton I: .................................................................. 20
a. Test: Can the state prevent the showing of something that totally lacks in
artistic value? .................................................................................................... 21
1. Mafiosi in Love, page 150: ........................................................................... 21
2. The Montana Constitution, page 155: .......................................................... 21
g. Child Pornography:............................................................................................... 21
i. Basic rule: Speech is unprotected if it.............................................................. 22
ii. subsidiary rules: ................................................................................................ 22
1. New York v. Farber: ................................................................................... 22
a. Test: May the state outright prohibit the making and sale of child
pornography? .................................................................................................... 22
2. Osborne v. Ohio: Osborne was convicted of possessing child pornography
which was against the law in the state. ................................................................. 22
1. Computer graphics, page 169: ...................................................................... 22
2. Crush Video: Seen notes 2/13/02................................................................. 23
h. Offensive Speech/risk of violent reaction:............................................................ 23
i. Basic rule 1: it is still unprotected if it is fighting words................................. 23
ii. policy: ............................................................................................................... 23
iii.
basic rule 2: ................................................................................................... 23
iv.
basic rule 3: ................................................................................................... 23
v. see 179-80 for more policy ............................................................................... 23
1. Chaplinsky v. New Hampshire:..................................................................... 23
a. Test: does the law prevent acts of violence?............................................. 23
2. Cohen v. California: ................................................................................... 24
a. Test: will this provoke violence? Is this clearly directed to someone?... 24
3. Texas v. Johnson:.......................................................................................... 24
a. Test: is there a threat of violence as an immediate reaction? Is this
directed toward someone?................................................................................. 24
4. Hustler v. Farwell:........................................................................................ 24
a. Test: Can a public official sue for emotional harm inflicted in a public
manner............................................................................................................... 24
1. insulting a widow, page 180: ........................................................................ 25
2. Captive audiences, page 180-1: .................................................................... 25
i. Exceptions from ProtectionTreats: ................................................................... 25
i. Basic principle: threats of violence/illegal conduct are prohibited.................. 25
ii. Caveats:............................................................................................................. 25
iii.
WATCH OUT FOR mixture of threat and politicslook at the context of the
speech. Look to see if it is an actual threat or hyperbole......................................... 26
iv.
Policy, see 205 .............................................................................................. 26
1. Watts v. US: Watts was convicted of making a threat on the president....... 26
a. Test: is this hyperbole? ............................................................................ 26
2. NAACP v. Claiborne Hardware: .................................................................. 26
a. Test: is a threat made as part of a boycott protectable? ........................... 26
3.
iii.
Black letter: so long as the legislation to this end does not abridge
the constitutional liberty of on rightfully upon the street to impart
information through speech or the distribution of literature, it may lawfully
regulate the conduct of those using the street. .............................................. 33
b. Frisby v. Schultz:. ..................................................................................... 33
i. Test: it the ordinance narrowly tailored to serve a significant interest
and are there ample other alternatives for the speech ................................... 33
c. City of Ladue v. Gilleo: Ladue made it illegal to put up yard signs. Gilleo
did just that and was fined. ............................................................................... 34
i. Test: is there a less onerous alternative?.............................................. 34
a. door to door solicitation, page 367 ........................................................... 34
b. publication of intercepted communications, page 367 ............................. 34
e. Restrictions on expressive conduct....................................................................... 34
i. Basic rule: there are some restrictions that apply whether or not one has an
expression in mind. ................................................................................................... 34
ii. Threshold inquiry:............................................................................................. 34
iii.
test: if the threshold is satisfies then the law may be applied if it is;........... 34
1. US v. OBrien: .............................................................................................. 34
a. Test: is the burning of a draft card symbolic speech? Does the
government have a compelling interest in preventing destruction of draft cards?
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2. Clark v. CCNV: C ......................................................................................... 35
a. Test: is the limitation as applied a limitation of free expression .............. 35
3. Texas v. Johnson: Johnson was convicted of burning a flag. ....................... 35
a. Test: is burning the flag expressive conduct? Does Texas have a
substantial interest?........................................................................................... 36
1. the marijuana performance art, page 367...................................................... 36
2. wearing a police uniform, 367 ...................................................................... 36
Constitutional Law First Amendment Course Outline:
1. Speech that incites unlawful conduct:
a. Basic test:
i. Advocacy of the use of force or of law violation is unprotected
when it is
1. Directed to inciting or producing
2. Imminent lawless action
3. And is likely to produce such action
4. Exception: the communist advocacy casesthese have
generally been thought to be overruled
5. Policies:
a. perceived harm justifies the suppression of speech
b. and the likely harm is really imminent
c. for the narrowness of the unprotected area:
i. advocacy might convince people that the
law should be changed
those eligible for the draft and talk them out of it.
The character of every act depends on the
circumstances in which it was saidthis is a
wartime situation and the circumstances and the
works combine to show that there is a clear and
present danger. This is a question of proximity and
degree.
2. Debs v. United States: Debs, a socialist was convicted of
attempting to obstruct the draft. He told his listeners that
he could not say all that was on his mind but that he was
proud of those that had dodged the draft.
a. Test: Intent and likelihood of harm to the draft
b. Rationale: it is natural that his language, as
evidenced by his personal political views, was to
obstruct the draft. His intent was to do so and he
would not have said the words without this intent.
The court did look at the natural conclusion that he
chose words to lead to the actions that he
proscribed.
3. Abrams v. United States: Abrams was charged with
conspiring to print or publish materials that would obstruct
the war. The question was whether the evidence was
substantial enough to uphold the conviction. A along with
others had printed circulars but they were never distributed.
When there can be no other intent, the intent inferred is the
correct one.
a. Test: was there intent to obstruct the draft and the
materials could do so?
b. Rationale: here the defendant is liable for a
judicially constructed meaning of his intent. He
may or may not have intended to obstruct the draft
but it is a reasonable reading of what he was trying
to do so. This is a fair interpretation of his intent.
Although there might not have been an immediate
outbreak of lawlessness this was the intent of the
circular.
c. Dissent: there does not have to be intent because it
is so vague and tends to be judicially constructed.
The statute (espionage act) should be read within its
context; otherwise people cannot speak an opinion.
The only time speech can be restricted is when it
does bring about imminent lawless behavior, not
when it is about an opinion. There must be a clear
and specific intent to bring about lawlessness.
4. Gilbert v. Minnesota: Gilbert was charged under a
Minnesota law that prevented obstruction of the war effort.
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vii. cases:
1. NYT v. Sullivan: Sullivan was a sheriff in Montgomery
Alabama. There was a derogatory ad taken out about the
police in Alabama and he felt he was injured even though
he was not mentioned. He felt that since he was the head of
the police he was their representative and what was said
that was bad about the police was speaking about him. The
ad person accepted this ad without checking the files to see
if it was false because the person who submitted it was
known to the company and had not tries anything like this
before
a. Test: is the Sheriff, as the head of the police,
protected from criticism?
b. Rationale: although papers are not allowed to print
libelous statements, we have to look further into the
publication. This was made when the debate on the
polices treatment of protesters was attracting
debate and so there might be some unpleasant
attacks on people. There is no reason to suppress
the speech here because it is a public concern.
Criticism of conduct is not enough to give rise to
libel because he is a public official. The truth may
be a defense, as may be the lack of factual error and
the discussion of official conduct. This is an attempt
for the state to inject the criminal law of negligence
into libel. In order to prevent the chilling of the
debate, there must be stricter safeguards. There
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ii. policy:
1. prevention of unfair profits at anothers expense, unfair
competition, diminishment of incentive to create,
immorality
2. people can still use the underlying facts
iii. cases:
1. Harper & Row v. nation Enterprises: Nation scooped a
story from H&R. This hurt the H agreement with time.
a. Test: does the copyright law lawfully prohibit this?
b. Rationale: copyright law gives a limited grant of
protection to the author. There is a fair use of the
work when another makes use of the underlying
facts, but the expressions are protected. Just
because the public thinks this is an important issue
is not sufficient to allow outright stealing.
2. Zacchini v. Scripps-Howard Board. Co.: Z performs a
human cannonball and has gone to great lengths to protect
this from videotaping. The defendant here did just that and
aired it on TV. Z sued for copyright infringement.
a. Test: Was this expression an unfair
commercialization of the plaintiffs copyright?
b. Rationale: the defendant had the right to report on
the underlying facts but the broadcast was a threat
to the viability of the plaintiff as a performer
economically. The entire broadcast was in effect
stealing of the expression of the plaintiff. The
protections of the law reward his performance and
induce him to do it.
3. problems:
a. unauthorized Biography: see discussion on 2/27/02
b. unauthorized bust: see discussion on 2/27/02
c. Copyright remedies: see discussion on 2/27/02.
i. I would recommend that Neil does not
challenge the verdict. He was likely an
intentional infringer. The only way I would
recommend going forward with this claim is
if he can show that he had no access to the
work and simply mirrored the ideas in it. If
he wrote on the same ideas thin it is likely
that they came from the same source. If that
is so, then there is no infringement.
3. Strict Scrutiny:
a. Generally
i. Basic rule: if the speech does not fall into an exceptions category
or into a diminished protection category, then usually the
government cannot suppress it. It may be suppressed however it
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iii. Florida State v. BJF: Florida Law makes it a crime to publish the
full name of a rape victims name in the paper. When the paper
did this she sued.
1. Test: is the law overbroad?
2. Rationale: Papers can lawfully obtain the police reports;
they may not publish the names under the statute despite a
compelling interest to do so. The government may classify
some information but punishing the press for something
lawful obtained will chill the press. The court then looked
at the reason for the law which was to prevent the privacy
of the victims, protect the safety of the victims and
encourage those similarly situated to come forward. These
are substantial interests. The government itself is the one
that gave out the information though. They are the ones in
the best position to keep it secret, not the press. This shows
they were not really meeting their interest. This censorship
will chill newspapers. The law as such is overbroad. It is
also under inclusive because it does not prevent word of
mouth discussion of the case and the name of the victim.
3. concurrence: this does not reach the end because it does
not prevent all communications
4. Dissent: the state has taken every step possible to prevent
this and the law is narrowly tailored to reach a permissible
end.
c. Problems:
i. Drive in Nudity: See discussion 3/27/02
ii. Violence on TV
d. Content Discrimination within the Exceptions to protection:
i. Basic rule: a restriction on unprotected speech must still fact strict
scrutiny if it is included a content discrimination beyond the one
that makes it protected
ii. Exceptions
1. an extra content discrimination within a category need not
be justified under strict scrutiny when the basis for the
content consists entirely of the very reason the entire class
of speech is proscribable
a. a state can proscribe obscenity that has lascivious
displays of sexual activity; making it a crime to
threaten the president
i. exception: the discrimination at issue is not
based on content but the content embodies
something particularly intolerableRAV
2. when the subclass it is protecting experiences the particular
secondary effects encompassed in the speech
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v. Problems:
1. Absolute immunity in Libel cases: See discussion on
4/3/02
vi. Content Neutral Speech restrictions
1. basic rule: The time, place or manner of the speech can be
regulated if they are:
a. justified without reference to the content of the
regulated speech
b. serve a governmental interestmost interests
qualify
c. are narrowly tailored to reach this interestTHIS
IS NOT STRICT SCUTINYT
i. this may not burden a substantial amount of
the speech that does not implicate the states
interest
ii. or impose a burden on the speech that is
disproportional the degree which the speech
implicates the interest
iii. the law does not have to be the least
restrictive means
d. it leaves open alternative channels of
communication
i. it is inadequate if it is too expensive
ii. or it will not reach the same audience
iii. if it will carry a significantly different
message
2. CAUTION: this does not mean that all speech restrictions
on the TPM are allowable because they do that.
a. It is also hard to tell prima facia if it is CB or CN.
Look to see what the communicative impact of the
regulated speech is.
3. policy:
a. some speech activities has undesirable side effects
that are unrelated to the speech
b. if there are ample alternative present then the
restriction does not ban speech, just a form of it
c. it does not cause an undue burden
i. this means it only has to pass the rational
basis test
d. if there is a substantial burden then the TPM is a
faade
e. if there is an insubstantial burden then it passes
intermediate scrutiny (substantial interest and does
not restrict more than necessary
4. cases:
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