Cases Flashcards
Sable (note case) indecent speech
Total ban on indecent speech unjustified
dial-a-porn case. Indecent speech case. Even though there was a compelling interest to protect children, this was not narrowly tailored.
Ginsburg (note case) indecent speech
Court upheld restrictions on distribution of porn to children that would have been invalid if it applied to distributing to adults. helps parents/guardians to protect their kids against some indecent speech.
FCC v. Pacifica Foundations - indecent speech
Court upheld FCC reprimand to radio station for playing the Seven Filthy Words on their station during a time that it could reach children in their own homes.
Rowan (note case) indecent speech
Court upheld federal law permitting recipients to ask the Postal Service to stop mailing advertisements for regular pornography.
Terminiello - Hostile Audience
Minister gave a well-publicized speech telling the crowd to defy the crowd outside. Convicted under breach of peace statute- “misbehavior that stirs public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance”. The Court struck this down, saying that this violates the First Amendment. It is not unprotected speech merely because it stirs anger or unrest in audience.
Feiner
Feiner was provoking a crowd of people- saying African Americans should rise up against Caucasions. The crowd was getting angry. Police officer tried multiple times to de-escalate the situation, Feiner refused. He was then taken into custody. Court upheld his conviction - very narrow exception to Terminiello. Can be convicted of your speech if it is to a hostile audience and you resist police authority multiple times.
RAV v. City of St Paul (hate speech)
Cross-burning. Statute bans individuals from placing on another property a symbol, such as a burning cross, that they know will arouse anger in others on the basis of race, color, creed, religion, or gender.
Court struck down statute, holding that generally, the government cannot regulate even unprotected speech based on content discrimination.
Three Exceptions:
(1) - basis of content discrimination is on the very grounds the speech is proscribable (very obscene speech or true threats at government officials)
(2) Secondary effects
(3) when the speech is swept up incidentally in a law directed at conduct, not the speech.
Dif btwn this and Virginia? Virginia is not on the basis of race, and Virginia is prohibiting extreme true threats in accordance with exception (1) above.
Wisconsin v. Mitchell (hate crime, not hate speech)
Mitchell told a group of people to attack a white boy. His speech before doing this proved that it was racially motivated. The Court upheld a law that increased criminal penalties for conduct motivated by racial animus. This was a conduct crime- and the speech was just used to prove an element of it that allowed for increase penalty. It was not protected speech because this was part of a conduct crime
Cohen v. California - offensive speech
F the Draft. Establishes that offensive speech cannot be regulated merely because it offends. (this was not obscenity, fighting words, hostile audience, or captive audience).
Erznoznik v. Jacksonville - offensive speech note case
voiding statute preventing movie nudity visible to public streets, rejecting argument that “the unwilling viewer” can be protected from offensive sights.
Matal v. Tam - Offensive speech
The Slants band. Trademark law prohibited registration of trademarks that “disparage or bring into contempt or disrepute any persons, living or dead.” The Court struck this down saying that it was over-broad. It put too much discretion into hands of government, even in the narrow area of trademarks
Chaplinsky (fighting words)
Chaplinsky was a JW- he was preaching. People were getting upset. He was escorted to police station, and on the way he called one of the officers a fascists and racketeer.
This case is almost theoretical today. Court held that these fighting words, i.e. words that by their very utterance tend to incite an immediate breach of the peace are unprotected by the First.
Miller v. California - obscenity
Miller (defendant) conducted a mass-mailing campaign advertising the sale of obscene books by sending mailings depicting sexual acts to unwilling recipients through the mail. He was convicted under California obscenity statute.
Court upheld conviction. They defined obscenity as:
1. Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interests
2. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law
3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value
This material was obscene.
Paris Adult Theatre - obscenity
An adult theatre displayed content that was obscene under the Miller test. But they only distributed it to consenting adults. They were convicted under Georgia obscenity statute.
Court upheld their conviction. Obscene content is still unprotected from government regulation when distributed to consenting adults.
Stanley v. Georgia - obscenity cannot be regulated when mere possession
1st amendment free speech clause protected a person from being prosecuted for mere possession of obscene material in his home. Mere possession vs. distribution.
New York v. Ferber
Ferber owned a bookstore in NY where he distributed child pornography. Convicted of child porn statute in NY.
Court upheld his conviction. Child pornography does not need to be obscene to be unprotected from First amendment. Focused primarily on the inherent connection between child pornography and child sexual abuse.
mere possession of child pornography can be criminalized, unlike mere possession of obscene material
Ashcroft v. Free Speech Coalition - fake child pornography
CPPA criminalized content that was neither (1) obscene or (2) child pornography.
Even simulated child pornography is OK, as long as it is not real children. This is because then there is no inherent connection between simulated child porn and child sex abuse.
United States v. Stevens - animal cruelty putative analog
A law was passed in response to crush videos and dog fighting videos that criminalized the distribution of depictions of animal cruelty. Stevens was convicted because he sold videos of dog fighting.
Court struck down the law, saying that it did not fall into any of the categories of unprotected speech. Court rejected the argument that you can determine what is protected speech by doing the balancing test. The categories must be identified by history.
Brown v. Entertainment Merchants Association - violent video games
California state law prohibited the sale or rental of violent video games to minors. California video game company filed suit against CA governor, saying this law violated the First.
Court struck down this law. Applied strict scrutiny to this content based regulation. The law was not narrowly tailored to achieve the compelling interest of protecting minors from harm. The only justification was that violent video games tend to make some teenagers more aggressive. This was not enough.
Virginia v. Black
Black led a KKK rally, in the which they burnt a cross (on their own property). Black was charged with violating a Virginia statute that made it illegal to burn a cross if the burning was done with intent to intimidate someone.
Importantly, the statute stated that burning a cross itself was prima facie evidence that there was intent to intimidate.
Court generally upheld this regulation, but ultimately strike the statute due to the prima facie evidence. Without this requisite intent, it is not an unprotected speech true threat, it is merely protected speech.
Claiborne Hardware
NAACP official said that if people didn’t start joining the boycott, “necks would be broken.” Not a true threat though, because it was not a threat to a particular person/group. It was a threat to a potential group.
It was also not unprotected because of incitement - lacked imminence and likelihood of crime
Brandenburg v. Ohio
KKK leader says “we are not a revengent organization, but if our President, Congress, Supreme Court, continues to suppress the white race than there might have to be some revengeance taken.”
Court reversed conviction. This speech was protected (not incitement) because it was not sufficiently imminent.
Created test for incitement of immediate crime test. Government can only regulate this speech if it is:
1- directed to producing imminent lawless action
2- likely to incite or produce such an action.
Hess v. Indiana
- Anti-war protestor yelled to police, after being pushed off of street “we’ll take the f-ing street again [or later]”
- Court reverted conviction of demonstrator under Brandenburg standard, finding lack of imminence
Reno v. ACLU
invalidates law restricting availability of internet porn to children because didn’t meet “narrowly tailored” requirement; limiting Pacifica’s application to internet. Adults have constitutional right to porn, cannot restrict that even with the important government interest of protecting children.
NY Times v. Sullivan
Commissioner of the Police (a public official), brought suit against NY Times for including an advertisement that had a false statement on it.
Court held that this Public Official Plaintiff must show “actual malice” with convincing clarity” to recover any damages for defamation (actual, presumed, or punitive)
Gertz v. Robert Welch, Inc.
Gertz was an attorney who represented a family in suing a police officer for civil suits arising from his killing of their son. Defendant, a monthly magazine, ran an article that claimed Gertz had framed this police officer.
The Court held that- If the plaintiff is a private figure suing on a matter of public concern:
- she need show only negligence to recover actual damages for “actual injury”;
- but must show actual malice to recover presumed or punitive damages.
Dunn v. Greenmoss
if the plaintiff is a private figure suing on a matter of private concern, she need not show actual malice, under the 1st amendment, to recover for actual, presumed, or punitive damages (presumably only needs to show negligence)
United States v. Alvarez
The regulation made it illegal to lie about receiving military medals. This was too broad.
- The government interest of expressing gratitude for acts of heroism in military sacrifice as well as fostering morale, mission, and accomplishment are certainly important/compelling government interests.
- But this is far too broad, i.e. not narrowly tailored. It is not “actually necessary” because it could cause all sorts of false statements to be prosecuted, whether or not they further this government interest.
Hustler Magazine
Public Figure, no false statement of fact
Hustler magazine had 1st A protection in creating a parody of the public figure plaintiff (a public minister). This is because a parody cannot be seen as false because it is not stating a fact. Also, the plaintiff was a public figure
