Constitutional Law for criminal justice, Fourteenth Edition Jacqueline R. Kanovitz © taylor & francis, 2015 Chapter 2 Freedom of Speech © taylor & francis, 2015 Introduction Congress shall make no law . . . 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. -- The First Amendment © taylor & francis, 2015 Concept of Speech The concept of speech under the First Amendment (Figure 2.2) includes the right to:  Gather information Maintain ideas and beliefs Communicate them to others Engage in ideological silence Engage in symbolic speech © taylor & francis, 2015 Speech and Conduct The First Amendment distinguishes between the message and conduct associated with the delivery. Restrictions on conduct are valid when they further a substantial government interest that is unrelated to suppressing the message. The general laws of the community (i.e., trespass, breach of the peace, disorderly conduct, blocking public passage, etc.) may be enforced against people engaged in conduct associated with speech. Restrictions on content are invalid unless the speech falls within an excluded category © taylor & francis, 2015 Excluded Speech Categories Although free speech generally means freedom to speak on any matter, a small number of speech categories have been excluded from the First Amendment: Obscenity Child pornography Fighting words Speech integral to criminal conduct Incitement to immediate unlawful action © taylor & francis, 2015 Obscenity and Child Pornography The test for obscenity established in Miller v. California. The work, taken as a whole, must: Appeal to prurient interests Depict hard-core sexual acts previously defined by state law in a patently offensive way Lack serious literary, artistic, political, scientific, or other value Child pornography does not have to satisfy the Miller test to be banned when real children are used as subjects. © taylor & francis, 2015 Fighting Words Whether language constitutes "fighting words" requires an examination both of the words used and the context in which they are uttered.   A person may be arrested for using "fighting words" only if the person's language is: Abusive, derisive, or insulting Spoken in a face-to-face encounter Under circumstances inherently likely to provoke the average person to retaliate with violence © taylor & francis, 2015 Speech Integral to Criminal Conduct The First Amendment does not protect speech integral to criminal conduct, such as such as blackmail, bribery, extortion, perjury, threats, etc. To constitute a true threat, the speaker must intent his statement to be understood as a serious expression of intent to commit an act of unlawful violence against a particular person or group of persons. © taylor & francis, 2015 Incitement to Immediate Unlawful Action Speech advocating violence or other unlawful actions cease.

1. Constitutional Law for criminal justice, Fourteenth Edition
Jacqueline R. Kanovitz
© taylor & francis, 2015
Chapter 2
Freedom of Speech
© taylor & francis, 2015
Introduction
Congress shall make no law . . . 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.
-- The First Amendment
© taylor & francis, 2015
Concept of Speech
The concept of speech under the First Amendment (Figure 2.2)
includes the right to:
Gather information
Maintain ideas and beliefs
Communicate them to others
Engage in ideological silence
Engage in symbolic speech
© taylor & francis, 2015

2. Speech and Conduct
The First Amendment distinguishes between the message and
conduct associated with the delivery.
Restrictions on conduct are valid when they further a substantial
government interest that is unrelated to suppressing the
message.
The general laws of the community (i.e., trespass, breach of the
peace, disorderly conduct, blocking public passage, etc.) may be
enforced against people engaged in conduct associated with
speech.
Restrictions on content are invalid unless the speech falls
within an excluded category
© taylor & francis, 2015
Excluded Speech Categories
Although free speech generally means freedom to speak on any
matter, a small number of speech categories have been excluded
from the First Amendment:
Obscenity
Child pornography
Fighting words
Speech integral to criminal conduct
Incitement to immediate unlawful action
© taylor & francis, 2015
Obscenity and Child Pornography
The test for obscenity established in Miller v. California. The
work, taken as a whole, must:
Appeal to prurient interests
Depict hard-core sexual acts previously defined by state law in
a patently offensive way

3. Lack serious literary, artistic, political, scientific, or other
value
Child pornography does not have to satisfy the Miller test to be
banned when real children are used as subjects.
© taylor & francis, 2015
Fighting Words
Whether language constitutes "fighting words" requires an
examination both of the words used and the context in which
they are uttered.
A person may be arrested for using "fighting words" only if the
person's language is:
Abusive, derisive, or insulting
Spoken in a face-to-face encounter
Under circumstances inherently likely to provoke the average
person to retaliate with violence
© taylor & francis, 2015
Speech Integral to Criminal Conduct
The First Amendment does not protect speech integral to
criminal conduct, such as such as blackmail, bribery,
extortion, perjury, threats, etc.
To constitute a true threat, the speaker must intent his statement
to be understood as a serious expression of intent to commit an
act of unlawful violence against a particular person or group of
persons.
© taylor & francis, 2015
Incitement to Immediate Unlawful Action
Speech advocating violence or other unlawful actions ceases to

4. be protected by the First Amendment when it is both:
Directed toward inciting imminent lawless action, and
Likely to produce such an action
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Hate Speech
Hate speech refers to speech that denigrates, belittles, or
expresses contempt for others because of their race, color,
religion, sexual orientation, or other characteristics that make
them vulnerable.
Hate speech is protected only so long as it remains an expressed
belief. The First Amendment confers absolutely no protection
on hate-motivated conduct.
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Government Property & Speech
The constitutionality of restricting the use of government
property for speech is determined through an approach called
forum analysis.
There are two kinds of forums:
Public forums
Nonpublic forums
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Public Forums
Traditional
Streets, sidewalks, parks
By designation
Municipal auditoriums, meeting halls
Restrictions

5. Compelling government interest is needed to exclude speech or
ban use of important medium
A substantial government interest is needed to restrict the time,
place, and manner of use
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Non-Public Forums
Government's business property
Office buildings, military bases, police stations, jails, municipal
airports, etc.
Restrictions are valid, provided that they are:
Neutral as to viewpoint
Reasonable in light of the purpose the particular facility serves
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Permit Schemes
Laws requiring a permit to engage in First Amendment activity
must contain:
narrow objective standards
short waiting periods
fixed or ascertainable fees
required only for activities where advance notice is needed
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Statutes Police Should Not Use
Police should never use these types of statutes to make arrests
in a speech context:
Statutes authorizing arrests for "disturbing," "annoying," or
"offensive" conduct
Statutes authorizing arrests for loitering

6. Statutes that make it illegal to disobey a police officer's order to
move or that lack narrow objective standards for when such
orders may be issued.
© taylor & francis, 2015