Freedom of Speech


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Lecture given to students in the University of Osnabrück's Foreign Law Program

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  • respecting establishment of religion = Establishment Clause prohibiting the free exercise = Free Exercise Clause abridging freedom of speech = Freedom of Speech of the press = Freedom of the Press peaceably to assemble = Freedom of Association petition the Government for a redress = Freedom to Petition
  • Who is Congress? Clearly the legislative branch of the federal government. But also any branch or agency of the federal government. Any person acting on behalf of the federal government. Since 1925, via the 14 th Amendment's Due Process Clause, State and local governments. Including people acting on behalf of state and local government. Thus, a law passed by a city counsel restricting speech is not different than a law passed by Congress restricting speech. The 1 st Amendment applies to each equally. Shall Make no Law? Does this really bar Congress, or any other government entity from passing laws that regulate speech, deal with religion, etc.? NO
  • Spoken – any form of verbal communication including protests, rallies, speeches, music, etc. Written – books, poems, signs, bumper stickers, writing on T-Shirts, etc. Symbolic Speech & Expressive Conduct – SEE NEXT SLIDE
  • TEST must have intent to convey a message message must be easily understood by those receiving it. Examples: Students wear black armbands in school as a form of protest to the Vietnam war. - Protected symbolic speech Flag burning Is It Speech? Close Calls. Nude Dancing Campaign Contribution REMEMBER: This is only the first step. It can still be regulated, as we will later discuss.
  • QUESTION – what is being prohibited by this Act? What does the second section listed here achieve? What is it saying? Why would Congress include a section like this?
  • SPEECH - The court first found that Johnson's burning of the flag was expressive conduct protected by the First Amendment. LEVEL of SCRUTINY: Therefore in order for a state to criminalize or regulate such conduct it would have to serve a compelling state interest that would outweigh the protection of the First Amendment. The court concluded that criminally sanctioning flag desecration in order to preserve the flag as a symbol of national unity was not a compelling enough interest to survive the constitutional challenge. It also held that while preventing breaches of the peace qualified as a compelling state interest the statute was not drawn narrowly enough to only punish those flag burnings that would likely result in a serious disturbance. Further, it stressed that another Texas statute prohibited breaches of the peace and could serve the same purpose of preventing disturbances without punishing this flag desecration.
  • How does the Government claim that this law is different than one struck down by the Court in Texas v. Johnson? The Texas law specifically prohibiting burning where the actors knows that burning the flag will offend. In this law, whether the burning will offend or not is irrelevant. This simply targets the ACT of destroying the flag. Why does the Court reject this argument? The terms used in the Act clearly indicate that Congress was only concerned with acts that were disrespectful of the flag. By doing so, Congress has enacted a content-regulation of speech. NOTE – the edited version of this case does not say it, but the Court was also noted that the Act excluded some burning from its reach because burning the flag is the proper way of disposing of an old one. Do you know what the law is here in Germany? Under German criminal code (§90a StGB) it is illegal to revile the German federal flag as well as any flags of its states. Offenders can be fined or sentenced for a maximum of three years in prison. As for flags of foreign countries, it is illegal to damage or revile them, if they are shown publicly by tradition, event or routinely by representatives of the foreign entity (§104 StGB). On the other hand it is not illegal to desecrate such flags that serve no official purpose (especially including any the one willing to desecrate them brings by himself for that purpose)
  • Obscenity - “I'll know when I see it” whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest. NOTE community standards prurient = shameful interest in sex must look at entire work whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; AND whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. If it has value, cannot be banned. EXAMPLE (SEE Jenkins v. Georgia) – Carnal Knowledge - “there is no exhibition whatever of the actors' genitals, lewd (vulgar, gross, dirty) or otherwise . . . . There are occasional scenes of nudity, but nudity alone is not enough . . . under Miller.” Child Pornography – does not have to meet the test for obscenity. Court said these laws are really aimed at protecting children, not any message contained in the films. In 2002 Court struck down ban on virtual child pornography. Fighting Words – speech that is directed at another and likely to provoke a violent response. NOTE, since 1942, the Court has never again upheld a fighting words conviction. Incitement of Imminent Illegal Activity – SEE NEXT SLIDE Defamation – Laws allowing for civil damages for defamation are OK.
  • FACTS – defendant was arrested after police became aware of news tape that showed defendant addressing a small group and making racist comments. At the end of the speech, D urged like-minded people to join him in a march on Washington D.C. TEST - Incitement of Illegal Activity – the speech must incite imminent lawlessness. EXAMPLE: After a protest is broken up, a protester shouts “We'll take the fucking street later.” - Court says this is protected speech. Not imminent.
  • Rice v Paladin Enterprises considered the First Amendment arguments of a publisher of a how-to guide for hit men. Paladin's book, Hit Man: A Technical Manual for Independent Contractors, was concededly used by a reader as a guide for committing the brutal contract killing of three persons. A panel of the Fourth Circuit Court of Appeals ruled unanimously in Rice that Brandenburg did not bar a jury from imposing civil liability on Paladin for aiding and abetting murder. The Fourth Circuit read Brandenburg not to require imminence for the type of speech involved in Rice. In 1998, the Supreme Court denied cert in Rice. The Limitations of this case: Author admitted that he wrote the book to be used by people who actually wanted to be hitmen. It really was a how-to guide to killing someone. This case says he can be held liable for writing the book. It does NOT say that he is prohibited from publishing and selling it. The cover of Hit Man states that readers of the book will "learn how a pro makes a living at this craft [of murder] without landing behind bars" and, "how he gets hit assignments, creates a false working identity, makes a disposable silencer, leaves the scene without a trace of evidence, watches his mark unobserved, and more . . . how to get in, do the job, and get out -- without getting caught." Nuremberg Files Example: Could a prosecution be brought, consistent with the First Amendment, against a person who posts pictures and addresses of abortion doctors, compares the doctors to genocidal Nazis, and crosses out the names of of doctors who have been murdered by anti-abortion extremists? The 9th Circuit, in a case involving the so-called "Nuremberg Files," ruled such speech protected. See Planned Parenthood v American Coalition of Life Activists, 3/28/01.
  • FACTS: Robert Stevens is a self-described dog trainer, author, and documentarian. He owned and operated Dogs of Velvet and Steel, a business he claimed provided books, videos, and other materials about training pit bulls. Three films were purchased through the mail by Pennsylvania law-enforcement agents, who were concerned about one scene that pictured a pit bull attacking a pig, and a second clip that depicted pit bulls fighting each other in Japan, where such activities are legal. At trial, Stevens asserted that his videos demonstrated the right and wrong way to train pit bulls for hunting. NOTE – the ACT of animal cruelty is clearly punishable by law. The question in this case is whether DEPICTING the act can be punishable. THIS IS IMPORTANT – child pornography or obscenity offer good examples NOTE – depictions of illegal acts are usually protected. EXAMPLE – film of Kennedy being assassinated. Child Porn – the ACT is illegal, but the Court said the depiction of the Act was also illegal. Obscenity – the ACT may actually be legal, although sex for pay violated prostitution rules, but with obscenity the question is whether it can be depicted. District Court: Stevens sentenced to 37 months in prison by federal jury. Court of Appeals Ruling : Reversed on grounds that law violated the First Amendment. The argument of protecting animals: 1) can be served by existing laws 2) does not rise to the level of protecting children.
  • How to Determine if a law is Content-Based Cannot regulate speech based upon the content or subject of the message unless can meet strict scrutiny test. EXAMPLES: Washington D.C. had law that banned protesters from coming within 500 feet of an embassy. The very nature of this law bans content, i.e. opposition to a particular government. St. Louis Presidential Protesters case moved to protesters to “free speech zone” while allowing supporters of the President to line the motorcade route. Federal law aimed at “signal bleed” of sexual images on scrambled cable T.V. stations. law required cable companies to either completely eliminate signal bleed or show “sexual” programming only at night. Content-Based – law was only targeted at certain kind of signal bleed.
  • ACLU v. Reno Example of Content-Based Regulation that was valid Burson v. Freeman - State law prohibits any kind of campaigning, including distribution of political literature, within 100 feet of polling place. Content Based? - YES. Only targets political speech Compelling Gov't Interest? YES, protect voting process Necessary – YES – gov't used least restrictive means. It only regulated within 100 feet, leaving ample opportunity for political speech outside of the 100 feet zone.
  • FACTS: In the early morning hours of June 21, 1990, the petitioner and several other teenagers allegedly assembled a crudely made cross by taping together broken chair legs. The cross was erected and burned in the front yard of an African American family that lived across the street from the house where the petitioner was staying. Petitioner, who was a juvenile at the time, was charged with two counts, one of which a violation of the St. Paul Bias-Motivated Crime Ordinance. The Ordinance provided: “Whoever places on public or private property, a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.” Petitioner moved to dismiss the count under the Bias-Motivated Crime Ordinance on the ground that it was substantially overbroad and impermissibly content based, and therefore facially invalid under the First Amendment
  • What is a public forum? government owned property Quintessential public forums – parks, sidewalks and streets Classic Time, Place and Manner Restriction – Parade Permit Examples of Valid Regulations: No distribution of literature or solicitation of funds at State Fair except at booths. Heffron Content neutral? Yes, applied to everyone at the fair. Important government interest? regulating pedestrian traffic at fair. Alternatives? Yes. Get a booth. No loud noise that divert school classes during school time. Graynard v. Rockford Content neutral? Yes, any loud noise Important government interest? Education Alternatives? Outside school hours. No sleeping overnight in national park as form of protest. Clark v. Community for Creative Non-Violence Content neutral? YES. no one can sleep in park Important interest? preserving attractiveness of park Alternatives? Can put up tents as form of protest against homelessness, just cannot sleep in them. Examples of Invalid Regulations Restriction of speech on sidewalks around U.S. Supreme Court. Grace No important government interest. There is no way that protests, for example, could interfere with the Court. NOTE – this test and these cases deal only with traditional public forums.
  • Encouraging Business Examples Cannot be regulated: ads for abortions ads listing medicine prices ads allowing lawyers to advertise for clients advocacy groups soliciting clients placement of for sale signs alcohol ads Can be regulated: lawyers soliciting specific clients (ambulance chasers) gambling ads
  • Affords less protection Court recognized the “common sense distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” NOTE – despite the fact that this is arguably a content-based regulation of speech, the court came up with something that looks like the intermediate test. Central Hudson Gas b. Public Service Commission (1980) The Court made it clear that government may regulate commercial speech that relates to unlawful activity. The Court has also made it clear that the government may curtail untruthful or misleading commercial speech. Compare that to other speech! The government must show it has a SUBSTANTIAL interest before it can regulate this speech. NOTE how this is the intermediate level scrutiny language. There must be a direct relationship between the interest and the government regulation. this is really up to the Court to decide. NOTE – more recent cases have used the term “substantially related”. The regulation must be narrowly tailored. The original test seemed to imply that government had to show that this was the least restrictive alternative. NOW the test seems to be that the regulation must be narrowly tailored.
  • Is ALL commercial speech subject to Central Hudson? NO “When a State regulates commercial messages to protect consumers from misleading, deceptive, or aggressive sales practices, or requires the disclosure of beneficial consumer information, the purpose of its regulation is consistent with the reasons for according constitutional protection to commercial speech and therefore justifies less than strict review. However, when a State entirely prohibits the dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process, there is far less reason to depart from the rigorous review that the First Amendment generally demands. How should the Court rule applying Central Hudson? Lawful Activity – of course. Consumption of alcohol is not prohibited. “there is no question that Rhode Island's price advertising ban constitutes a blanket prohibition against truthful, nonmisleading speech about a lawful product .” Substantial Government Interest – court finds reducing alcohol consumption might be a substantial government interest BUT Directly Advance Interest – common sense may say that lower prices might result in more sales, but without actual evidence that lower prices increases consumption, state cannot prevail. Narrowly Tailored - “The State also cannot satisfy the requirement that its restriction on speech be no more extensive than necessary. It is perfectly obvious that alternative forms of regulation that would not involve any restriction on speech would be more likely to achieve the State's goal of promoting temperance.”
  • Regulating Expressive Conduct – test is used when government is trying to regulate non-speech conduct and incidentally regulates speech as well. Test – O'Brien: furthers important government interest interest is unrelated to the suppression of free expression incidental regulation of protected expression is no greater than necessary. O'Brein Case – burning of draft card. Compare Texas v. Johnson – suppression of speech was much more than incidental. Nude Dancing: requirement that dancers where G-strings and pasties does not take away from erotic message. Conduct of being nude is only thing being regulated. Thus, perceived evil was public nudity, not erotic dancing.
  • Profane Language Protected - “fuck the draft case” Exceptions Schools – Bethel v. Fraser – school could punish student who gave a sexually suggestive student counsel nomination speech. Court emphasized giving deference to school administrators in order to carry out educational mission. "I know a man who is firm -- he's firm in his pants, he's firm in his shirt, his character is firm – but most . . . of all, his belief in you, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts -- he drives hard, pushing and pushing until finally -- he succeeds. Jeff is a man who will go to the very end -- even the climax, for each and every one of you. So vote for Jeff for A. S. B. vice-president -- he'll never come between you and the best our high school can be." Broadcast Media – George Carlan dirty words case. can be regulated NOTE – this does not apply to Internet!
  • Freedom of Speech

    1. 1. American Constitutional Law The First Amendment
    2. 2. First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. <ul><li>How many rights are in here? </li></ul>
    3. 3. Scope “Congress shall make no law” <ul><li>Who is “Congress”?
    4. 4. What does “shall make no law” mean? </li></ul>
    5. 5. Organization of this lecture <ul><li>What is protected speech
    6. 6. What is NOT protected
    7. 7. Presumptively invalid regulations of speech </li><ul><li>Content-Based, Overbroad, Prior-Restraint </li></ul><li>Potentially valid regulations of speech </li></ul>
    8. 8. Step 1: Is it Speech? <ul><li>Spoken word
    9. 9. Written word
    10. 10. Symbols that intend to communicate a message that can be easily understood.
    11. 11. Expressive conduct that communicates a message that is easily understood by a reasonable person. </li></ul>
    12. 12. Symbols & Conduct <ul><li>The Test: </li><ul><li>must have intent to convey a message
    13. 13. message must be easily understood by those receiving it. </li></ul></ul>
    14. 14. Flag Protection Act of 1989 <ul><li>(a)(1) Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.
    15. 15. * * * * * *
    16. 16. (d)(1) An appeal may be taken directly to the Supreme Court of the United States from any interlocutory or final judgment, decree, or order issued by a United States district court ruling upon the constitutionality of subsection (a). (2) The Supreme Court shall, if it has not previously ruled on the question, accept jurisdiction over the appeal and advance on the docket and expedite to the greatest extent possible. </li></ul>
    17. 17. Texas v. Johnson <ul><li>The First Amendment literally forbids the abridgment only of &quot;speech&quot;, but we have long recognized that its protection does not end at the spoken or written word. . . . we have acknowledged that conduct may be &quot;sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments,&quot; . . .
    18. 18. . . . Johnson burned an American flag as part - indeed, as the culmination - of a political demonstration that coincided with the convening of the Republican Party and its re-nomination of Ronald Reagan for President. The expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent. . . </li></ul>
    19. 19. U.S. v. Eichman <ul><li>How does the Government claim that this law is different than one struck down by the Court in Texas v. Johnson?
    20. 20. Why does the Court reject this argument?
    21. 21. Do you know what the law is here in Germany? </li></ul>
    22. 22. Step 2: Is it “Non-Speech” <ul><li>Non-speech is what we call those forms of speech that the Court has deemed to be lacking any value worth protecting. This includes: </li><ul><li>Obscenity </li><ul><li>child pornography </li></ul><li>Fighting Words
    23. 23. Incitement of illegal activity </li><ul><li>see Brandenburg v. Ohio </li></ul><li>Defamation </li></ul></ul>
    24. 24. Brandenburg v. Ohio <ul><li>What happened in this case? Who was charged and what did he do?
    25. 25. What was the defendant advocating in the speech?
    26. 26. Does the Court say that the state is powerless to punish any form of advocacy? </li><ul><li>If no, then when can the state punish advocacy? </li></ul></ul>
    27. 27. Expansion of Incitement? <ul><li>Does publisher have right to print and sell guide on how to be a hitman?
    28. 28. No, says the 4 th Circuit.
    29. 29. What about a guide to building a nuclear bomb? </li></ul>
    30. 30. U.S. v. Stevens (2010) <ul><li>Remember, “non-speech” applies to entire categories of speech, not to the content of an individual message.
    31. 31. In U.S. v. Stevens the Court was asked whether a federal law that makes it a crime to create, sell, or possess depictions of animal cruelty for commercial gain is constitutional. </li></ul>
    32. 32. Step 3: Regulation of Content? <ul><li>Once it has been determined that speech is being regulated AND
    33. 33. The speech has protection </li><ul><li>i.e. is not “non-speech” </li></ul><li>Then the question is whether the regulation is content-based or content neutral. </li></ul>
    34. 34. Downtown STL
    35. 35. Content-Based Laws <ul><li>The very core of the First Amendment is that the government cannot regulate speech based on its content. </li><ul><li>the government cannot pick and choose between ideas it likes and ideas it does not.
    36. 36. content based restriction are presumptively invalid and must meet the strict scrutiny test. </li><ul><li>necessary to advance compelling government interest. </li></ul><li>NOTE – content-neutral regulations are judged under intermediate scrutiny </li></ul></ul>
    37. 37. RAV v. City of St. Paul <ul><li>Things to note about Scalia's decision: </li><ul><li>This is really one of the first SCOTUS decisions to talk about “content discrimination.” (p. 144)
    38. 38. Thus, the government may punish “fighting words” but may not punish some while permitting others. </li><ul><li>This, according to Scalia, is content discrimination. </li></ul><li>He then applies strict scrutiny and finds restriction is not necessary because there are content neutral alternative. </li><ul><li>Like what? Can you think of any? </li></ul></ul></ul>
    39. 39. Substantial Overbreadth A law is overbroad if it regulates substantially more speech than the Constitution allows (chilling effect)
    40. 40. Areas Where Government May Regulate <ul><li>Content-Neutral, Time, Place and Manner Restriction
    41. 41. Commercial Speech
    42. 42. Some Indecent and/or Symbolic Speech </li></ul>
    43. 43. Time, Place and Manner <ul><li>Government can regulate speech in a public forum so as to minimize disruption of a public place while still protecting freedom of speech.
    44. 44. Test (intermediate scrutiny) </li><ul><li>content neutral
    45. 45. narrowly tailored
    46. 46. serve significant government interest
    47. 47. leave open ample alternative avenues of communication. </li></ul></ul>
    48. 48. Commercial Speech <ul><li>Commercial Speech that can be prohibited: </li><ul><li>ads for illegal activity
    49. 49. false or misleading ads
    50. 50. true ads that risk becoming false or misleading </li></ul><li>The rest: </li><ul><li>Encouraging business – usually protected
    51. 51. usually reviewed using some kind of intermediate scrutiny test. </li></ul></ul>
    52. 52. Central Hudson Test <ul><li>“The constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.”
    53. 53. TEST </li><ul><li>speech must concern lawful activity
    54. 54. substantial government interest
    55. 55. does regulation directly advance interest
    56. 56. is regulation narrowly tailored </li><ul><li>this is not part of original test </li></ul></ul></ul>
    57. 57. The 44 Liquormart Case <ul><li>Rhode Island had law that prohibited alcohol retailers from publishing price of alcohol except on price tags or next to the alcohol in the store.
    58. 58. D took out in newspaper talking about sales of items including alcohol. No specific price was published. D was fined for violating R.I. law.
    59. 59. Dist. Ct. found “as a fact that Rhode Island's off-premises liquor price advertising ban has no significant impact on levels of alcohol consumption in Rhode Island.&quot; Thus, the law was not directly related to state's interest in curbing alcohol consumption.
    60. 60. Ct of Appeals reversed saying the that competitive price advertising would lower prices and that lower prices would produce more sales. </li></ul>
    61. 61. Expressive Conduct <ul><li>Test is used when government is trying to regulate non-speech conduct and incidentally regulates speech as well.
    62. 62. Test – O'Brien: </li><ul><li>furthers important government interest
    63. 63. interest is unrelated to the suppression of free expression
    64. 64. incidental regulation of protected expression is no greater than necessary. </li></ul></ul>
    65. 65. Indecent Speech <ul><li>Commentators call this “low value” speech
    66. 66. Nude Dancing – viewed as conduct, apply test used to regulate symbolic speech.
    67. 67. Profane Language – generally protected with exceptions </li><ul><li>Schools
    68. 68. Broadcast Media </li></ul></ul>