Commercial Advertising & Obscenity, Child Porn, Animal Cruelty and Violent Expression, Classified information Flashcards
Commercial Advertising:
Speech that no more than promotes a commercial transaction
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council
if there is a right to speak, there is, in turn a right to hear.
Facts: Virginia had a law that effectively prevented the dissemination of any prescription drug price information.
Issue: Whether a state may completely suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information’s effect upon its disseminators and its recipients. The communication is simply, “I will sell you the X prescription drug at the Y price.”
Trial Court Holding: the law is invalid
SC Holding: No. Speech that does no more than propose a commercial transaction is protected by the 1st amendment. Society has an interest in protecting minority groups that are affected by not knowing drug prices and in the free flow of commercial information. It is a matter of public interest that private economic decisions be intelligent and well informed.
Commercial speech that is regulated: untruthful speech; serve a significant governmental interest; leave open amply alternative channels for communication of the info.
Central Hudson Gas v. Public Service Commission of New York
Facts: the commission prohibited electric utilities to engage in promotional advertising designed to stimulate the use of electricity.
Issue:
Holding: Four part analysis for commercial speech:
-determine whether the expression is protected by the 1st amendment. It at least must concern lawful activity and not be misleading.
-ask whether the asserted governmental interest is substantial
-if both inquiries yield positive answers, determine whether the regulation directly advances the governmental interest
-if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive
The commission said the expression was not inaccurate.
The state’s interest in energy conservation is substantial.
The order directly advances the state’s interest
However, this complete ban is too extensive because the commission has not shown that their interests would be served by a more limited regulation.
Obscenity: Keep in mind from chaplinsky (there are certain well-defined and narrowly limited classes of speech, the prevention and the punishment of which have never been thought to raise any constitutional problem)
Obscenity
Keep in mind from chaplinsky (there are certain well-defined and narrowly limited classes of speech, the prevention and the punishment of which have never been thought to raise any constitutional problem) `
Miller v. California
https://www.quimbee.com/cases/miller-v-california
Facts: Miller conducted a mailing campaign to advertise nudie mags.
Issue:
Holding: state statutes designed to regulate obscene materials must be confined to works which depict or describe sexual conduct. (must be “hardcore”). It has no serious literary, artistic, political, or scientific value.
Guidelines:
- whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest
- whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law
- whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value
Does not use the same language from previous cases of “utterly lacking”
Paris Adult Theatre I v. Slaton
https://www.quimbee.com/cases/paris-adult-theatre-i-v-slaton
Facts: two movie adult movie theatres in Atlanta were showing pronos. They didn’t have any pics outside and had a sign warning of what was inside. The state got mad and sued to make them stop showing the films.
Issue:
Trial Court Holding: found the films obscene, but said the state couldn’t stop them from showing them.
Georgia SC: Reversed and stopped the theaters from showing the movies.
Holding: Vacated and Remanded. The Georgia legislature needs to look at this issue and decide if public exhibition of obscene material has a tendency to injure the community as a whole, to endanger the public safety, or jeopardize the states’ right to maintain a decent society
Dissent: In the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the 1st and 14th amendments prohibit the state and federal governments from attempting to suppress sexually oriented materials on the basis of their allegedly obscene contents.
Child Pornography, Animal Cruelty, and Violent Expression
New York v. Ferber
Ashcroft v. The Free Speech Coalition
United States v. Steven
Brown v. Entertainment Merchants Association
New York v. Ferber
Facts: Ferber sold an undercover cop two kiddie porn films. He was convicted of violating a NY statute that says you can’t distribute kiddie porn.
Issue: Was the trial court’s conviction correct?
Holding: Kiddie porn is not protected by the 1st amendment. The state’s interest in safeguarding the physical and psychological well being of a minor is compelling. The distribution of kiddie porn is related to the sexual abuse of children. The value of kiddie porn is very small.
Difference between obscenity and pornography:
Ashcroft v. The Free Speech Coalition
Facts: The Child Pornography Prevention Act of 1996, which extended the prohibition against child porn to sexually explicit images that appear to depict minors, but were in fact produced without using real children was invalidated.
Issue: Is the invalidation of CPPA unconstitutional?
Holding: Yes, the CPPA does not deal with obscenity. The CPPA prohibits speech that records no crime and creates no victims by its production. Virtual kiddie porn is not intrinsically related to child sexual abuse. The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The government may not suppress lawful speech as the means to suppress unlawful speech.
Miller requirements:
-must prove that the work appeals to the prurient interest:
-is patently offensive in light of community standards:
-lacks serious literary, artistic, political, or scientific value:
Dissent: The CPPA can regulate computer images, but not young looking adults.
United States v. Stevens
Rule of Law
A federal law that seeks to ban visual and auditory depictions of animal cruelty is overbroad in violation of the First Amendment.
Facts
Partially in response to the growing prevalence of dog fighting and animal torture videos called “crush” videos, Congress enacted 18 U.S.C. § 48, which criminalized the creation, sale, or possession of certain depictions of animal cruelty. The law defined a depiction of “animal cruelty” as one in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed. The statute did not address the underlying acts harmful to animals. Utilizing the statute, the federal government brought suit against Robert Stevens (defendant), who owned a business that sold videos of pit bulls engaging in dogfights and attacking other animals. Stevens filed a motion to dismiss the indictment, arguing that § 48 violated the First Amendment. The district court denied the motion and held that the depictions were likened to obscenity or child pornography and thus were not protected by the First Amendment. A jury convicted Stevens and sentenced him to three concurrent sentences of 37 months in prison. The court of appeals, sittingen banc, reversed and declared § 48 unconstitutional and vacated Stevens’ conviction. The U.S. Supreme Court granted certiorari to review.
Issue
Is a federal law that seeks to ban visual and auditory depictions of animal cruelty overbroad in violation of the First Amendment?
Holding and Reasoning(Roberts, C.J.)
Yes. Generally, the First Amendment means that the federal government lacks the power to restrict expression because of its message, its ideas, its subject matter, or its content.Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002). Here, § 48 explicitly regulates expression based on content, namely, visual and auditory depictions of animal cruelty. Consequently, the statute is presumptively invalid and the burden lies with the government to show that the law serves some compelling interest. The government’s argument that the Court should use a balancing test to determine whether depictions of animal cruelty should be added to other categories of restricted speech, such as obscenity, defamation, fraud, and incitement, is without merit. When the Court has held those types of categories of speech are outside the protection of the First Amendment, it was not based on some cost-benefit analysis. Rather, it was based on how narrowly a governmental entity fashioned a law to achieve some compelling interest. Here, the statute is overbroad and reaches too much protected speech. Although the law seeks to ban “crush” videos and other similar content, it also applies to depictions of hunting, an activity enjoyed by a large portion of the country. The only thing standing between defendants who sell popular hunting videos and possibly five years in federal prison is the statute’s exceptions clause. Section 48’s exceptions clause exempts from the prohibition “any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value.” The Government argues that hunting can fall into one of these categories. However, determining whether a particular depiction falls within one of the excepted categories is too tenuous to withstand constitutional scrutiny. For example, what is considered “educational” to one person may not be to another person. Although there may be a broad societal consensus against cruelty to animals, there is substantial disagreement on what types of conduct are properly regarded as cruel. Because the statute is overbroad and applies to a considerable amount of protected speech it violates the First Amendment. Nevertheless, the government states that it will not prosecute an individual or group unless the depiction is of “extreme” cruelty. The government’s statement strengthens the Court’s argument that § 48 is too vague and ambiguous to discern what depictions would be banned and what would be allowed. The Court will not uphold an otherwise unconstitutional law merely because the government promises to use it responsibly. The judgment of the court of appeals is affirmed.
Dissent(Alito, J.)
The majority incorrectly concludes that the statute is too overbroad to uphold and specifically cites hunting as a major reason why the law is unconstitutional. However, activities like hunting clearly fall under the statute’s exceptions clause for depictions that have serious scientific, educational, or historical value. In fact, § 48 does not have a large number of unconstitutional applications. Invalidation of a law for overbreadth is appropriate only if the challenged statute suffers from substantial overbreadth, judged not just in absolute terms but also in relation to the statute’s “plainly legitimate sweep.” The First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct, even ifengaged in for expressive purposes. Here, Congress enacted a constitutional law that sought to ban “crush” videos and related content because they were so closely linked with violent criminal conduct.
Brown v. Entertainment Merchants Association
Issue: Is a California law imposing restrictions on violent video games to minors unconstitutional?
Holding: Video games communicate ideas through many familiar literary devices and through features distinctive to the medium. This suffices to confer 1st amendment protection. There is no long standing tradition of specially restricting children’s access to depictions of violence. California cannot show that the restriction is justified by a compelling interest and is narrowly drawn to serve that interest.
Indecency
Cohen v. California: REMEMBER THIS CASE FOR THE REGULATION OF OFFENSIVE SPEECH
Facts: Cohen wore a jacket that said “Fuck the Draft.” There were women and children around him. No one threatened any violence. He was charged and sentenced to 30 days in prison.
Issue: Whether CA can excise, as offensive conduct, one particular scurrilous epithet from the public discourse, either upon the theory that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary.
Holding: Nobody was violently aroused and Cohen did not intend such a result. Substantial privacy interests must be invaded in order for the state to ban public speech. An apprehension of disturbance is not enough to overcome the right to freedom of expression. Offensive utterances are necessary side effects of the broader enduring values which the process of open debate permits us to achieve. Forbidding certain words would suppress ideas. Profanity can also express emotions.
Beauharnais v. Illinois
Facts: π, a member of the White Circle League, distributed a leaflet that said blacks were encroaching on whites’ livelihood. He was convicted.
Issue: whether the constitution prevents a state from punishing such libels (falsely charging another with being a rapist, robber, carrier of knives and guns, and user of marijuana) as criminal libel has been defined, limited and constitutionally recognized time out of mind – directed at designated collectivities and flagrantly disseminated.
Holding: Illinois has been a part of many racial fights, many of which have started from utterances of the character here in question. Speech that concededly punishable when immediately directed at individuals cannot be outlawed if directed at groups with whose position and esteem in society the affiliated individual may be inextricably involved. There is no need to use the Clear and Present Danger Test.
R.A.V. v. City of St. Paul
Facts: A teenager burned a cross on a black family’s lawn. He was charged and convicted. The ordinance prohibits the display of a burning cross, a swastika, or other symbol that one knows or has reason to know “Arouses anger, alarm or resentment in others: on the basis of race, color, creed, religion, or gender.
Issue: Whether St. Paul’s ordinance is unconstitutional.
Holding: This ordinance is unconstitutional because it prohibits speech solely on the basis of the subjects the speech addresses. It applies only to “fighting words” that insult, provoke violence, “on the basis of race, color, creed, religion or gender.” The 1st amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects. It is essentially viewpoint discrimination. St. Paul cannot license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules.
Wisconsin v. Mitchell
Facts: After viewing Mississippi Burning, Mitchell, a black man, urged a group of blacks to assault a white boy who was walking by. They beat the white boy severely. He was charged and his conviction was elevated because it was categorized as a hate crime. The Wisconsin SC said this hate-crime penalty violated the 1st amendment.
Issue: Does the hate-crime penalty violate the 1st amendment?
Holding: A physical assault is not expressive conduct protected by the 1st amendment. This penalty is aimed at conduct unprotected by the 1st amendment, which is different than the situation in R.A.V. Bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.
