AMEND 1: Speech [DONE]

Question 1

NYT v. Sullivan

Answer 1

[Case on point for Public Official Defamation]

Facts: Montgomery, Alabama police commissioner sues the NYT for purportedly libelous statements printed about police actions in Alabama.

Rule: A public official cannot recover damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

Question 2

Hustler v. Falwell

Answer 2

Facts: Falwell (P) sued Hustler (D) after it ran a parody advertisement suggesting that he had an incestuous relationship with his mother, but the fake ad was clearly represented as a parody; even so, he sued for emotional distress, and the court found in his favor.

Rule: Public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of a parody-type publication without showing that the publication contains a false statement of fact that was made with actual malice: i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.

Question 3

Snyder v. Phelps

Answer 3

Instant Facts: A teenager is prosecuted under a Bias-Motivated Crime Ordinance for burning a cross on the lawn of an African-American family’s home.

Black Letter Rule: Government may not regulate speech, including fighting words, based on hostility or favoritism towards the underlying message expressed.

Question 4

RAV v. St. Paul

Answer 4

Instant Facts: A teenager is prosecuted under a Bias-Motivated Crime Ordinance for burning a cross on the lawn of an African-American family’s home.

Black Letter Rule: Government may not regulate speech, including fighting words, based on hostility or favoritism towards the underlying message expressed.

Main thing to capture If a statute is expressed too broadly then it captures more than what the courts recognize to be a compelling interest. Compelling government interests.

Question 5

VA v. Black

Answer 5

Intimidation or threats not ok. Just burning the cross is not quite enough to create the prima facie case of intent to intimidate. You have to show the intent to intimidate. Have to prove the person intended to intimidate.

Question 6

Counterman

Answer 6

[Case on Point for Chilling Effect]
threats/making threats crime defined as repeated communications in a manner that would cause a reasonable person to suffer severe emotional distress and it does cause them emotional distress. grappling with requiring intention to establish 1st amendment protection of threats.
Without intent or mental state, someone could go to prison without knowing what they did was wrong. The definition of a threat vanishes. Creates a chilling effect on speech.

Reckless standard

Question 7

Masses

Answer 7

Learned Hand: Masses case. Emphasized illegality.
–> Hand was never a Supreme Court judge

Oliver Wendell Holmes: Emphasizes the actual likelihood/probability of imminent bad effects. Clear and present danger.

[ONLY GOING TO COME UP AS MC, NO LONGER GOOD LAW]

Question 8

Dennis [WHY IS THIS SO LONG]

Answer 8

Statute prohibits anyone from trying to overthrow the government by force and by violence. Is advocating for the overthrow of the government by force and violence always the wrong thing to do? Wasn’t wrong in 1776.

people convicted for advocating communist revolution. Advocating lawless revolution, but it was not imminent. Was what they said objectively likely, real questions about it. The court upheld conviction and calls it a clear and present danger. Have to look at gravity of the evil and discount it by how unlikely it is to happen.

Used likely to incite such actions test for serious risk of serious evil but neglect the first prong.

At the time the nation felt threatened. Traction with communist investigations by McCarthy.

Question 9

Brandenburg v. Ohio [Case on Point]

Answer 9

Brandenburg: [This test is likely what the court will apply. This is the modern and most useful test.] constitutional guarantees of free speech and free press do not stop from the advocacy of the use of force or violating the law, govmt. can stop you only when your advocacy is:

(1) Directed to inciting imminent lawless action;

&

(2) Likely to incite such action [Holmes Test: serious risk of serious evil]

By combining both tests, you protect a lot of people who are saying potentially violent things in the future.

Question 10

Schenk

Answer 10

Speech prohibited by congress of criticism of handling of WWI because it would discourage recruitment to the military. Is that good enough? Dilemma*

Question 11

Chaplinsky

Answer 11

“Fighting words” that incite others to violence are not protected by the First Amendment from governmental regulation.

Skokie Discussion + Hate Speech Allowed or Banned:
Skokie, Illinois: approach: hate speech is allowed.

Question 12

Feiner

Answer 12

Facts: A street protester is arrested when the speech he is giving on the public sidewalk stirs up the crowd and results in some pushing and shoving.

Rule: When a public speaker passes the bounds of argument or persuasion and undertakes incitement to riot, police can stop the speaker from speaking, even if it means a suppression of the speaker’s ideas, in the interest of maintaining the safety and welfare of the community.

Justice Black Dissent: Police were there to make sure the crowd did not get violent. Should have regulated the crowd instead of speaker.

Majority Approach: Regulate the speaker.

Question 13

Roth

Answer 13

material is considered obscene, and thus not protected by the constitutional guarantees of freedom of speech, if it goes substantially beyond customary limits of candor in description or representation of sexual matters

also emphasizes that obscenity is excluded from constitutional protection only because it is utterly without redeeming social importance.

Question 14

Is sex obscene?

Answer 14

Not necessarily - The portrayal of sex, for instance, in art, literature, and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.

Material dealing with sex in a manner that advocates ideas, or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied constitutional protection

Question 15

Cohen

Answer 15

Facts: Certification to the US Supreme Court of an appeal of a conviction for disturbing the peace by engaging in offensive conduct.

Rule: Unless it is likely to incite lawlessness and violence, the government cannot restrict speech simply because it is offensive.

Question 16

Miller [Obscenity COP]

Answer 16

Facts: Distributor of unsolicited obscene advertising by mail was prosecuted under anti-obscenity law.

Rule: Obscene material is not protected by 1st amendment, and can be regulated by states without a showing that the material is utterly without redeeming social value, so long as the statutes which address restrictions are carefully limited, specifically define what actions are inappropriate, and comply with constitutional standards for defining obscenity.

Question 17

Hudnut

Answer 17

Facts: Distributors of sexually explicit material brought suit seeking to have a pornography statute which detailed the prohibited acts declared unconstitutional.

Rule: A state may not declare one perspective right and silence opponents of that perspective by making their actions illegal.

Question 18

Ferber

Answer 18

Facts: Ferber was charged with violating a NY child porn law that prohibited persons from knowingly promoting sexual performances by children under the age of sixteen by distributing material that depicted such performances.

Rule: The production and distribution of child pornography is not protected by the First Amendment.

Question 19

Ashcroft v. FSC

Answer 19

Facts: The Free Speech Coalition challenged a statute that extended the prohibition on child pornography to pornographic images that appeared to include children, even if the subjects were actually adults or were only computer-generated images.

Rule: Speech restrictions prohibiting a substantial amount of protected speech are overbroad and unconstitutional.

Dissenters: Congress has a compelling interest in protecting the safety of America’s youth, + broad deference to deal with technological advancements. Computer generated images can be so good people will not be able to tell.

Question 20

Reno

Answer 20

Rule: Laws regulating the access of minors to indecent and sexually-explicit content must be written in such a way that they do not infringe upon the rights of adults to access the same material.

Overbroad covering more than obscenity by prohibiting the knowing transmission by means of telecom device any obscene or indecent message, comment, image, or request to anyone under the age of eighteen. The second prohibits the knowing sending or displaying of patently offensive messages, comments, images, or requests, depicting sexual or excretory activities or organs in a manner available to a person under 18 by means of interactive computer service.

Question 21

Ashcroft v. ACLU

Answer 21

Facts: Congress passed the COPA (Child Online Protection Act) to prevent minors from accessing porn online. ACLU sues saying COPA violates 1st amendment free speech clause.

Rule: Fails the strict scrutiny test because it would prevent online publishers from publishing some material that adults had a right to access. It was not the least restrictive means possible to protect children. Filtering and blocking software are the least restrictive.

Why do dissenters not think filtering and blocking is plausible?
Software costs money and may not be able to every family. Sometimes filters more than it should and less than it should. Accessibility issues created for average families.

Question 22

Stevens

Answer 22

Facts: Stevens was convicted of violating a statute that criminalized the commercial depiction of animal cruelty, and he argued that the statute was unconstitutional.

Rule: Under the 1st amendment, the govmt. has no power to restrict expression because of its message, ideas, subject matter, or content.

Too overbroad or vague. Hunting videos do not have obscenity.

Question 23

VA Pharmacy Board

Answer 23

Suit over a Virginia Law prohibiting pharmacists from advertising the prices of prescription drugs.

Majority says not sufficiently justified to restrict drug advertising. Commercial speech can be regulated more than political speech. But the interest has to be pretty strong before you regulate commercial speech. Interest in preventing it is low. Nowhere else in the world is this common.

Question 24

Central Hudson Gas

Answer 24

1. Substantial interest [important] (doesn’t have to be compelling)
2. Regulation has to directly advance the interest
3. Not more extensive than necessary (not necessarily the least restrictive)

Facts: Suit over a public service commission ban of promotional advertising designed to increase demand for electricity.

Rule: Restrictions on commercial speech that serve a substantial governmental interest must restrict speech in the most limited way possible and must be tailored in such a way that they do not restrict speech unrelated to the government interest.

Question 25

O’Brien

Answer 25

O’Brien Court sets a test on content-neutral laws:

Intermediate scrutiny if law is content neutral: furthers an important or substantial government interest and incidentally suppresses some ideas.
IF regulation for reasons, not simply to shut down ideas, then that helps the regulation of the behavior survive scrutiny and get intermediate treatment.

Always balancing do we have strong enough reasons with content-based restriction it can survive: fighting words.

Question 26

Austin

Answer 26

Facts: State of Michigan enacted a statute that prohibited corporations from using corporate funds for contributions or independent expenditures to support or oppose any candidate in elections for state office.

Rule: States can constitutionally restrict corporations’ independent expenditures to support or oppose political candidates. The mere fact that corporations may collect large amounts of wealth, alone, does not justify the restriction. However, the unique corporate structure that allows corporations to collect that wealth does justify the restriction. Corporations can use independent expenditures to “unfairly influence elections.”

Question 27

Metromedia v. San Diego

Answer 27

Dissent: Availability of other avenues to get the message/speech out.

The restriction must: (1) concern speech that constitutes lawful activity that is not misleading; (2) implement a substantial governmental interest; (3) directly advance that interest; and (4) reach only as far as necessary to achieve the governmental purpose.

Question 28

TX v. Johnson

Answer 28

Facts: Appeal of the conviction of man who burned an American flag as a part of a political protest. Clearly political protest. Both content-based and content-neutral. Content-based that survives strict scrutiny fighting words. Conclude its not fighting words because it was not targeted towards someone in specific.

Rule: When the government’s interest in restricting speech is based on a desire to suppress the ideas or viewpoints expressed by the speech, strict scrutiny applies and the government has a high burden of proof that it must bear in order to justify the restriction.

Question 29

Coates

Answer 29

Facts: Cincinati made it a criminal offense for three or more people to assemble on a city sidewalk and “conduct themselves in a manner annoying to persons passing by.”

Rule: An ordinance that prohibits more than three persons from assembling and engaging in annoying conduct on public property is unconstitutionally vague and impermissibly infringes upon the constitutional right to free assembly. Way too overbroad and way too vague.

Question 30

Pentagon Papers NYT v. US

Answer 30

Facts: The United States brought suite seeking to have NYT and WP enjoined from publishing the contents of a classified government study.

Rule: Prior restraints on expression are presumptively unconstitutional, and will only be permitted when the government meets the heavy burden of showing that the restraint is justified.

In what situations would the court pre-emptively shut down the speech?
War time giving away movements of troops and ships. If you are compromising nation’s ability to fight a war successfully that could be shut down.
Court distinguishes this information from the NYT information or WikiLeaks publishing confidential stuff.

Question 31

Citizens United

Answer 31

Facts: A nonprofit corporation made a documentary film that was critical of Hillary Clinton and sought to advertise the film right up until the presidential election in which she was a candidate.

Rule: The government may not suppress political speech on the basis of the speaker’s corporate identity. [Overruling Austin case, which permitted banning the political speech of millions of small corporations. Austin undermined by experience since its announcement.]

Question 32

Buckley v. Valeo

Answer 32

Facts: In the wake of the Watergate affair, Congress attempted to ferret out corruption in political campaigns by restricting financial contributions to candidates.
Among other things, the law set limits on the amount of money an individual could contribute to a single campaign and it required reporting of contributions above a certain threshold amount.
The Federal Election Commission was created to enforce the statute.

Conclusion:
First, it held that restrictions on individual contributions to political campaigns and candidates did not violate the First Amendment since the limitations of the FECA enhance the “integrity of our system of representative democracy” by guarding against unscrupulous practices.
Second, the Court found that governmental restriction of independent expenditures in campaigns, the limitation on expenditures by candidates from their own personal or family resources, and the limitation on total campaign expenditures did violate the First Amendment.
Since these practices do not necessarily enhance the potential for corruption that individual contributions to candidates do, the Court found that restricting them did not serve a government interest great enough to warrant a curtailment on free speech and association.

Question 33

303 Creative

Answer 33

Chilling effect exception, bringing a facial challenge because of risk of prosecution.

Facts: Website designer Lorie Smith wanted to design a wedding website that only advertised marriage between a man and a woman and did not partake in any same-sex weddings.

Rule: A website designer’s creation of original custom websites to communicate ideas is pure speech protected by the First Amendment. The government may not, by threat of sanctions, compel the website designer to speak (i.e., create website designs) conveying government-preferred messages with which the designer does not agree.

Minority/Dissent:

Misreading Colorado restriction and what it requires. Restriction says you can’t turn down a customer based on sexual orientation. You can refuse to give certain kinds of messages.

Black person served take out not table service and Offering gay couples other websites not wedding websites. Compelling interest here.

When its just a rule about not discriminating against customer but controlling what you are going to advertise that may not be a free speech issue.