Chapter 7: Provocation to Anger and Words That Wound Flashcards
Cantwell v. Connecticut
Facts: Cantwell (Jehova’s Witness) is arrested for playing a recording that denounces the catholic church. Violates 2 laws: (1) soliciting for a religious cause without a permit (2) causing a breach of the peace
Decision: SCOTUS rules in favor of Cantwell for both convictions
Significance:
1. States get less discretion over speech (permits)
2.offensive language that creates a breach of the peace is NOT protected → Cantwell’s speech does not qualify
Chaplinsky v. New Hampshire
Facts: Chaplinksy (Jehova’s Witness) is convicted for calling the city marshal a “god damned racketeer” and a “damned fascist”
Decision: SCOTUS upholds the NH law that bans offensive speech
Significance:
- The obiter dictum establishes that there is worthwhile speech and worthless speech.
- Asserts that “fighting words” are worthless and unprotected
- Defines fighting words as (1) words that inflict injury by their very utterance and (2) words that incite an immediate breach of peace
Two-Tier Theory or The Categorical Approach
- Worthwhile Speech: expressions that have social value as a step to truth and receive 1st amendment protection
- Worthless Speech: expressions that have little social value as a step to truth and do not receive 1st amendment protection
- Obscenity/Profanity
- Slander/Libel
- Fighting words
Modern “Worthless” Speech:
- true threats
- child pornography
- misleading/unlawful advertising
US v. Stevens
Facts: Stevens is arrested for selling dog fighting videos
Decision: SCOTUS overturns the ruling because dogfighting doesn’t fit into an existing category of unprotected speech and they don’t want to create a new category
Significance: SCOTUS uses the categorical approach to justify their decision
Terminiello v. Chicago
Facts: Terminiello is arrested for giving a racist speech that incites mob violence. He is charged with facilitating disorderly conduct.
Decision: SCOTUS sides with Terminiello
Significance: Speech that leads to public anger is protected. Rejects the heckler’s veto.
Feiner v. NY
Facts: Feiner is arrested for making a speech that causes an angry crowd to form
Decision: SCOTUS sides with the state
Significance: Speech that incites clear and present danger is not protected. Upholds the heckler’s veto
Cohen v. California
Facts: Cohen was arrested for wearing a “Fuck the Draft” jacket in the LA county courthouse
Decision: SCOTUS sides with Cohen
Significance:
- “Offensiveness” cannot be a standard for suppressing speech because it’s too subjective.
- Limits “fighting words” to words that are likely to incite an immediate breach of the peace
Gooding v. Wilson
Facts: Wilson is convicted of yelling hurtful things at an officer during an arrest
Decision: SCOTUS sides with Wilson
Significance:
- reinforces the Cohen decision
- limits “fighting words” to words that are likely to incite an immediate breach of the peace
- the words must be said face-to-face
Mother-Fucker Trilogy
In each of the following cases, the defendant used the word “mother-fucker” and SCOTUS ruled that it did not constitute a fighting word
- Rosenfeld v. New Jersey: at a school board meeting
- Lewis v. City of New Orleans: admonishing police for arresting his son
- Brown v. Oklahoma: referring to police in a public speech
Content v. Viewpoint-based discrimination
Content: restricts speech on a given subject matter
Viewpoint: singles out a particular opinion or perspective
RAV v. St Paul
Facts: RAV is convicted under a St. paul ordinance that made it a misdemeanor to place a burning cross on public on private property
Decision: SCOTUS rules that the ordinance is unconstitutional
Significance: SCOTUS is unwilling to support laws that ban specific viewpoints
Virginia v. Black
Facts: Two cases combined into one
1. Black is convicted for burning a cross in a rural area
2. Elliot is convicted for burning a cross in the yard of an interracial couple
Law: Virginia Law made it a felony to burn a cross with the intent to intimidate. The law presumed that all cross-burning was a form of intimidation.
Decision: SCOTUS upholds the first part of the law, but rejects second
1. Black’s conviction is overturned
2. Elliot’s conviction is upheld
Significance: SCOTUS is willing to support laws that ban specific content (ex. burning a cross with the intent to intimidate)
Doe v. Michigan
Facts: Doe asks the court to issue an injunction against the University of Michigan’s speech code, which prevented stigmatizing and victimizing speech.
Decision: A federal court sides with Doe
Significance: the courts will not support speech codes that are
1. overbroad: institute a ban on offensive speech
2. vague: fail to properly define punishable speech
