Conlaw II - Freedom of Speech

Question 1

what’s the marketplace of ideas arg?

Answer 1

“when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.” Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

Question 2

What was the law of seditious libel?

Answer 2

most extreme form made it a crime for any person to make any statement which brought govt ppl, policies, laws, etc. into potential disrepute

• (controversial, but they didn’t discuss it in drafting)
  
  • We know that some framers were very critical of seditious libel
  • BUT Congress enacted the sedition act of 1808 to protect the Adams administration

Question 3

what did Blackstone think freedom of speech was?

Answer 3

​

• Blackstone: freedom of speech includes freedom from prior restraint, but not from punishment after publishing
  
  • I.e., Freedom of Speech is just the freedom from licensing

Question 4

why would free speech be important for listeners?

Answer 4

• Search for truth/marketplace of ideas
  
  • Right of the LISTENER not the SPEAKER to freely for opinions
  • Mill: concern with fallibility of censors re: what the truth is
    
    • But Baker: conduct, which we prohibit all the time, also helps search for truth; and people also use freedom of speech to spread misinformation; free speech is biased in favor of majority
  • Greenwalt: might still be lesser evil if we’re very confident oppressive government will propagate lies
    
    • But Wellington: maybe truth wins in the long term, but short-term losses are very costly, e.g. Holocaust

Question 5

What is the self governance rationale for freedom of speech?

Answer 5

• Meiklejohn: can’t have democracy without free public speech – need for info
  
  • But Chafee: problem is line between public/private speech is blurry
    
    • Meiklejohn: it includes education, philosophy/sciences, literature/arts, and public discussion of public issues b/c feed into beliefs and thus voting
• Bork: 1a only protects political speech
• Sunstein: political speech ought to be given special protection b/c
  
  • Supported by history and the view of the framers
  • This is the area where government is most likely biased
  • Self-perpetuating restrictions—can’t criticize restrictions

Question 6

What is the self-fulfillment/autonomy (Richards) rationale for free speech?

Answer 6

• Right of the SPEAKER not the LISTENER to express oneself
• But Bork: doesn’t distinguish speech from conduct, which we prohibit a lot

Question 7

What are three other rationales for protecting free speech?

Answer 7

• Abuse of power – people retain a veto power in public discourse (Blasi)
• Cultivation of useful character traits: curiosity, skepticism, etc. (Blasi)
• Cultural democracy – protects right to participate in the culture (Balkin)

Question 8

What are the content-based restrictions?

Answer 8

“content-based restrictions on speech are presumptively invalid and will only be upheld if the underlying speech is itself unprotected, or if the restrictions can be shown to be narrowly tailored to satisfy a compelling government interest, that is, if they survive strict scrutiny. [R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).] “

“But whereas a lack of content neutrality will typically be apparent on the face of a speech restriction, the Supreme Court has held that otherwise content-based restrictions will nevertheless be treated as content neutral if they are designed and intended to prevent the speech’s adverse secondary effects. For instance, the Court upheld a local ordinance that prohibited adult-movie theaters from operating within 1,000 feet of churches, parks, schools, or residential zones. [Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47–48 (1986).] Finally, there are some situations in which governments must make content-based choices, such as when the government operates a movie theater or funds specific artistic projects. In those circumstances, the Supreme Court has held that content-based government action is permissible if the government’s action is neutral as to the viewpoint of the speech. [See, e.g., Bd. of Regents v. Southworth, 529 U.S. 217 (2000).]”

Dangerous Ideas and Information

Speech that Causes Unlawful Conduct

Speech that Provokes a Hostile Reaction

Fighting Words Doctrine

Question 9

Shaffer v. United States (9th 1919)

Answer 9

Shaffer was convicted under the Espionage Act for mailing a book that declared that the “war itself is wrong.”

Espionage Act: criminalized utterances that (1) are false reports purposed at undermining the war effort; (2) willfully cause or attempt to cause insubordination; (3) willfully obstruct the recruiting or enlistment

Holding: Natural and probable consequence of sending this book is the obstruction of recruitment, so this book is not protected speech

Bad Tendency Test: If one intends to incite unlawful conduct through their speech, this speech is unprotected. One must be thought to intend those consequences that flow naturally from their actions [“Constructive intent”].

Question 10

What is constructive intent?

Answer 10

One must be thought to intend those consequences that flow naturally from their actions

Question 11

What is the bad tendency test?

Answer 11

If one intends to incite unlawful conduct through their speech, this speech is unprotected.

Question 12

Masses Publishing Co v. Patten (SDNY 1917)

Answer 12

Masses revolutionary journal was refused delivery by the NY postmaster pursuant to the Espionage Act

Rule: If the content of the speech includes an incitement to violate the law, then it is per se unprotected

Rationale: Disavowed bad tendency test out of fear of chilling speech if courts wade to deep into discerning intent

Holding 1: [Hand] The Espionage Act must be narrowly construed to avoid trampling on the Freedom of Speech.

Holding 2: [Express incitement test] Speech must expressly advocate resistance to the war effort, including the draft, to constitute a violation of the Act. Therefore, the postmaster had no legal authority for its exclusion.

Stone: Hand did not hold that the exclusion of the Masses from the mail was unconstitutional – this was a case of statutory interpretation

Stone: Disavowed the Bad Tendency Test based on avoidance-canon-type reasoning

Outcome: 2d circuit reversed Hand unanimously – Masses editors were criminally convicted

Learned Hand was hated for this decision – took him longer to get to the 2d circuit

Question 13

What is the express indictment test?

Answer 13

[Express incitement test] Speech must expressly advocate resistance to the war effort, including the draft, to constitute a violation of the Act. Therefore, the postmaster had no legal authority for its exclusion.

Question 14

How might the express indictment test over or under protect free speech?

Answer 14

• Underprotects freedom of speech:
  
  • Doesn’t protect euphemistic and sarcastic advocacy of unlawful conduct
  • E.g., yelling “kill the umpire”
• Overprotects freedom of speech:
  
  • Indirect advocacy of unlawful conduct should not be protected if it naturally and predictably leads to that conduct
  • E.g., Trump tells Jan 6^th rioters to “make their presence known on capitol hill”

Question 15

Three individuals hypo - who does Hand punish if one person advocates unlawful conduct expressly and two people advocate unlawful conduct implicitely but only the first two intend for unlawful conduct to result? What is the rationale?

Answer 15

Three Individuals Hypo

1. Speaker 1 expressly advocates unlawful conduct and intends such a result
   
   1. Hand – goes to prison
2. Speaker 2 does not expressly advocate unlawful conduct, but intends such a result
   
   1. Hand – goes free
3. Speaker 3 gives same speech as Speaker 2, but does not intend such unlawful conduct
   
   1. Hand – goes free

Question 16

Schenck v. United States (1919)

Answer 16

Ds circulated to those drafted a document asserting that conscription is despotism and a violation of the 13^th amendment.

Rule: [Clear and Present Danger Test] The freedom of speech does not protect individuals when their false speech creates a clear and present danger to bring about substantive evils that Congress is empowered to prevent. It can be assumed that speech that naturally tends to bring about such illegal conduct was intentional.

Stone: Important that the speech was false – otherwise yelling “fire” is protected

Elements of the Clear and Present Danger Test

• (1) Danger must be clear – significant probability that the danger would become a reality
• (2) Danger must be present – harm must be imminent because (1) if the danger is long away, it is hard to predict whether there is a danger at all (2) want government to take other steps other than suppressing the speech if danger is far out
• (3) Danger is one that Congress is allowed to prevent
• (4) Danger must be grave ***never mentioned, but implicit
• Stone: Really just balancing the value of free speech vs harm of the free speech
• Aggregation: Although the Ds alone couldn’t have a substantial effect, the aggregate impact of all similarly situated would have a substantial effect

Holding: [Holmes] The espionage act is not unconstitutional because the freedom of speech does not protect speech that is a hinderance to the war effort during a war

Note: This is the “screaming fire in a theatre” case

Stone: Holmes assumed that freedom of speech was not simply a protection from prior restraint and that the freedom of speech is not absolute

Outcome: Despite the fact that the jury was not instructed on the Clear and Present Danger test, the case was not remanded – indicating that the “clear and present danger” language was dicta

Question 17

Frohwerk v. United States (1919)

Answer 17

German speaking newspaper published articles stating that sending soldiers to France was a “monumental mistake” and the war was “outright murder”

Holding: [Holmes] No first amendment violation – speech that may be permitted during peacetime can be criminalized during war when its purpose was to kindle resistance

Stone: This is essentially the bad tendency test – Holmes never mentions Clear and Present Danger Test, indicating this it was probably dicta

Note: Hand would have overturned because there was no express incitement

Question 18

Debs v. United States (1919)

Answer 18

Debs, the Socialist candidate for president, praised those that dodged the draft and stated that the crowd was worth more than cannon fodder

Rule: [Holmes] [Again, Bad Tendency Test] If “one purpose of the speech, whether incidental or not does not matter, was to oppose [the] war, and if, in all the circumstances, that would be its probable effect, it would not be protected”

Stone: Decided a week after Schenck – Likely SC wanted Schenck on the book so that they go after the better-known Debs

Note: Again, did not use the clear and present danger test

Question 19

Abrams v. United States (1919)

Answer 19

Russian immigrants circulated leaflets calling for a general strike in reaction to America’s aggression against the Bolshevik Revolution. Convicted under Sedition Act.

Holding: Summary affirmance of conviction citing Frohwerk and Schenck.

Potential rationales per Stone: Low standard of review for wartime laws; want to uphold popular opinion of the court; want to support country at war

Dissent, Holmes:

• Rule: Freedom of speech does not protect speech that (1) present danger of immediate harm OR (2) specific intent to create such a danger

Stone: 2^nd element makes test less protective b/c need not actually create harm

• Application:

(1) Holmes argues that the group of recent immigrants did not create a clear and present danger because they were “poor and puny anonymities”

Stone: Clear and present danger must also be a grave danger

(2) Holmes argues they only had a specific intent to help Russia—NOT harm war effort

• Holmes Contribution to Free Speech: Holmes expressed support for the best test of truth and marketplace of ideas rationales and condemns seditious libel laws

Stone: Although there were two seditious libel charges, the court did not reach the issue of whether they were constitutional because the sentences were to run concurrently, so the court need not reach seditious libel constitutionality because they upheld the fourth charge

Gilbert: Court almost adopts seditious libel common law – VERY limited freedom of speech

Question 20

Gitlow v. New York (1925)

Answer 20

Gitlow helped publish a manifesto that promoted the overthrow of the government by the proletariat through mass action – advocated revolution at advantageous time in the indefinite future. He was indicted under a NY law that forbade the teaching of the duty/necessity to overthrow govt through violence.

Rule: State laws regulating dangerous speech are valid so long as they are reasonable

Holding: Where a state has a law against speech that induces a substantive evil that the state may punish pursuant to its police powers, whether the specific utterance is likely to bring about the evil is not a relevant consideration

Rationale: “A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration…it cannot reasonably be required to defer the adoption of measures of its own peace and safety until the revolutionary utterances lead to actual disturbances.”

Limiting Principle: Statutes may not criminalize “abstract doctrine,” “academic discussion,” “historical or philosophical essays,” or advocacy of changes in the form of government by constitutional and lawful means.”

Dissent, Holmes: Reiterates clear and present danger test and marketplace of ideas. Argues that the manifesto could not have presented an imminent danger of violent overthrow because only a small minority harbor the views and the manifesto only sought uprising in indefinite future

Rationale: Government cannot and should not have the power to suppress speech that attempts to use the democratic process to bring about substantive evils

 Majority points out that the defendants were not using democratic process

Stone: “Every idea is an incitement.” Holmes does not want to discuss whether express incitement is per se illegal (Hand’s theory)

Note: Both majority and dissent agree that the freedom of speech is one of the “libert[ies]” mentioned in the 14^th amendment such that it applies against the states

Rule: States also cannot abridge the freedom of speech

Question 21

Which two types of cases were exemplified by Scheneck and Gitlow?

Answer 21

Two types of cases:

1. A person is punished under an act that prohibits certain acts (like obstructing the war effort) – so the legislature has made no decision as to what speech is criminalized
   
   • E.g., Schenck
   • Here, it falls to the judiciary to decide whether the speech could be said to have violated the statute and whether it is protected by the First Amendment
2. A person is punished under an that prohibits certain categories of speech expressly
   
   • E.g., Gitlow
   • Here, the judiciary must give deference to the independent judgement of the legislature re: First Amendment reach, so long as the statute is reasonable
     
     • Rationale: Legislators have their own duty to constitution
     • Stone: This is kind of like the rational basis test. This level of deference is bad because they have incentive to restrict freedom of speech to suppress minority opinions and maintain their power

Question 22

Whitney v. California (1927)

Answer 22

Member of Communist Labor Party of CA was part of an organization that advocated a platform similar to Gitlow and sought to achieve its goals through violence. Whitney did not intend that the party be an instrument of terrorism. She was charged under a law that criminalized knowingly being a member of an organization that advocates the use of violence to accomplish a change in industrial ownership or form of government

Holding: The state may determine by law under what circumstances the formation of an assembly to advocate criminal syndicalism constitutes a clear and present danger of substantive evils

Rationale: (1) “United and joint action involves even greater danger to the public peace and security than the isolated utterances and acts of individuals.” (2) State enactments should be given deference

Concur, Brandeis: The state is not owed deference to determine under what circumstances an assembly constitutes a clear and present danger. In all cases, the defendant must be able to argue that (1) there was no danger; (2) the danger was not imminent or prior to full discussion; or (3) evil to be prevented was not substantial enough to justify the stringent restriction

Stone: Third major development in Holmes-Brandeis counter-tradition:

(1^st was C&PD language; 2^nd was eloquence Abrams) Originalist underpinnings

Five Assertions about the Framers thought about Freedom of Speech:

(1) Final end of the states is to make men free to develop their faculties
(2) Freedom of speech is indispensable to discovering political truths
(3) Eschewed silence coerced by law
(4) Fitting remedy for evil consuls is good ones
(5) Did not exalt order at the expense of liberty

***Based on these: fear of injury cannot alone justify suppression of speech

Note: Whitney was not prosecuted for her own speech—but being part of an organization that advocates the use of violence to accomplish a change in industrial ownership

Stone: Joining an organization is a form of speech if that organization expresses certain views

Scales: A member can be punished under the Smith Act only if they are (1) an “active” member who (2) knew about illegal conduct and (3) specifically intended to bring about the overthrow of the government as speedily as circumstances would permit.

Rationale: A blanket prohibition of knowing membership in an organization “having both legal and illegal aims” might pose “a real danger that legitimate political expression or association would be impaired”

Question 23

Court’s Present Opinion on Deference to Legislation:

Answer 23

Court’s Present Opinion on Deference: Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake (Landmark Communications, Inc. vs. Virginia (1978))

Question 24

Dennis v. United States (1951)

Answer 24

Petitioners, as the leaders of the communist party, intended to initiate a violent revolution whenever the occasion arose. They were convicted under the Smith Act for willfully conspiring to teach the duty/necessity of overthrowing the govt by force

Rule: [Hand’s New Balancing Test] For an impediment on free expression to be permissible, the gravity of the evil, discounted by its improbability of coming about, must sufficiently outweigh the invasion of free speech necessary to avoid the danger.

Stone: This was the first case where the plurality (only 4 justices) explicitly adopts the Holmes**/**Brandeis view that bad tendency/reasonableness test was incorrect and clear and present danger applies across the board – otherwise would have applied reasonableness

Holding: The extreme danger of the highly organized conspiracy to overthrow the government warrants the invasion of freedom of speech restriction against the communist party

Stone: If court actually adopted clear and present danger test, they would have had to reverse the convictions because the danger was not imminent nor likely

Note: This new test allows a conspiracy to advocate to be criminalized—not merely the advocacy itself

Concur, Frankfurter: Congress gets to decide whether security risks warrant restrictions on freedom of speech

Concur, Jackson: Clear and present danger standard should be the rule unmodified—but only in relatively simple cases like jaywalking and advocating draft avoidance. But in hard situations with a lot of moving variables, we should defer to reasonable legislative judgments

Dissent. Black: Founders accounted for the risk of seditious speak when they made the freedom of speech. Impossible to reconcile this case with the clear and present danger test – there was no direct advocacy of government overthrow, only an advocacy of communist doctrine

Dissent, Douglas: The Smith Act requires an element of intent, which makes the freedom of speech turn on the intent of the speaker rather than what is said … which is a slippery slope since we are not good at discerning intent. Would have concurred if they were teaching methods of assassinating the president instead of a rival political organization. Danger was very low here.

Question 25

Yates v. United States (1957)

Answer 25

Communists were prosecuted for conspiracy to violate the Smith Act for advocating that the only way to achieve their idealistic policy agenda was through violence

Rule: Advocacy to do something can be criminalized; advocacy to believe something cannot.

Holding: The mere doctrinal justification and morality of forcible overthrow, if engaged in with the intent to accomplish said overthrow, is not punishable under the Smith Act

Rationale: [Avoidance Canon] To permit the advocacy of a belief to be criminalized treads in a “constitutional danger zone,” so we cannot assume that Congress sought to criminalize it

See Masses (also a case of statutory interpretation that drew the line at express advocacy)

Stone: Court focused on content of the speech NOT the actual danger – maybe b/c red scare died

Decisions over next several year indicate a more expansive freedom of speech

Question 26

Brandenburg v. Ohio (1969)

Answer 26

Leader in the Ku Klux Klan made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law (similar to law upheld in Whitney).. The law made illegal advocating “unlawful methods of terrorism as a means of accomplishing industrial or political reform,” as well as assembling “with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.”

Rule: Speech can be prohibited if it is (1)“directed at inciting or producing imminent law violation” and (2) it is “likely to incite or produce such action.”

AKA: (1) Express advocacy of law violation (2) law violation must be immediate (3) immediate law violation must be likely to occur

Stone: Also a requirement that the speaker (4) specifically intend the (5) grave violation

Holding: Because the KKK leader was merely advocating the propriety of using force to achieve his ends and not preparing a group for violent action, his speech is protected.

Concur, Black: Clear and present danger test has no place in First Amendment jurisprudence

Concur, Douglas: The “clear and present danger” test is disconcerting. First, the threats to which it was applied were often loud but puny. Second, the test was so perverted as to make trial of those teachers of Marxism all out political trials, which had the effect of eroding substantial parts of the First Amendment of the Constitution.

Stone: Court has not faced any freedom of speech case where the gravity of harm was seen as substantial – unclear whether court would insist on this standard if the harm was far graver

Question 27

What Justice have learned over their free speech jurisprudence

Answer 27

What Justice have learned over their free speech jurisprudence

1. Chilling effect – speech is easily chilled by law because benefits to speech are often small
2. Pretext effect – the powers that be are very willing to restrict speech of political rivals under the pretext that they are posing a grave threat to society
3. Crisis effect – freedom of speech is often restricted during times of crisis
4. A hallmark of free speech is that the dissenters Holmes and Brandeis were able to change the law to their view through consistent effort

Question 28

Constitutional Convictions/Prohibitions

Answer 28

• Instructions for murder -> someone murders—publisher intended to be used to execute crime of murder for hire, Rice

Screen teachers for fitness to maintain integrity of school  upheld law providing that no person who is a member of organization advocating violent overthrow of gov’t to be public school teacher, Adler

Question 29

Unconstitutional Convictions/Prohibitions

Answer 29

• “We’ll take the fucking street later or again” during antiwar demonstration—“nothing more than advocacy of illegal action at some indefinite future time”, Hess
• “if we catch any of you going in any of them racist stores, we’re gonna break your damn neck” where violence occurred weeks to month after speech—not immediate, NAACP v Claiborne Hardware
• Magazine instructions for autoerotic asphyxiation, Herceg

Require state employees take oath that not member of communist party, Elfbrand

Question 30

Abridgement of Speech Other than by Direct Criminal Prosecution

Answer 30

1. Disclosure
   
   1. Barenblatt (1959): 5–4 decision, no 1a violation to hold in contempt for refusing to answer HUAC questions re: CPUSA membership
   2. Gibson (1963): 1a violation for same but refusing to answer if communists were in NAACP
   3. Distinction: NAACP is a lawful organization
2. Firing government employees
   
   1. McAuliffe (Mass. 1892): no violation to fire policeman for soliciting campaign contributions
      
      1. Holmes: right to talk politics, but no right to be policeman
   2. But Frost (1926): same 1a analysis should generally apply to state-granted privileges as to rights; Court has generally followed this
      
      1. Perry v. Sindermann (1972) for government benefits
      2. Pickering (1968): had to balance state’s interest as employer though
3. Loyalty oaths for public employees
   
   1. Adler (1952): no 1a violation
   2. Elfbrandt (1966): 1a violation to make state employees give oath they weren’t in CP
      
      1. Court: just extension of Scales, organization with mixed ends and mere membership
      2. Robel (1967): extended this to statutes re: employees in defense facilities
4. School speech cases (recall from Driver)
5. Speech rights and military discipline
   
   1. Parker v. Levy (1974): fewer 1a rights in military, it’s not a deliberative body

Question 31

Terminiello v. Chicago (1949)

Answer 31

 Speech may not be restricted because the ideas expressed offend the audience (in absence of a clear and present danger of a substantive evil)

Stone: Some intimation that any danger was not grave enough

Question 32

Cantwell v. Connecticut (1940)

Answer 32

Jehovah’s witness played a phonograph on a street corner that attacked the Catholic church and offended passersby/tempted them to violence

Holding: Exaggeration, vilification, even false statement in the interest of persuasion does not rise to the clear and present danger that common law criminalizes

Rationale: The People made the decision to permit such speech and debate as “essential to enlightened opinion and right conduct on the party of the citizens of a democracy”

Note: Decision leaves open possibility that a statute can define a narrow set of similar conduct as a clear and present danger

Question 33

Feiner v. New York (1951)

Answer 33

Petitioner was speaking to a crowded street corner, urging black people to fight for equal rights. He was asked to stop by police, sensing its effect on the crowd. He refused and was arrested for disorderly conduct under a NY law that criminalized his congregation and insults when done with the intent to provoke a breach of the peace.

Rule: [Quoting Cantwell] “When clear and present danger of riot, disorder, interferences with traffic upon a public street, or other immediate threat to public safety, peace or order appears. The power of the State to prevent or punish is obvious”

Heckler’s Veto: Problem is that others can stop speech just by threatening violence

Stone: Court has not expressly disavowed Feiner, but they cannot stop speech unless

Holding: Speech at issue here went beyond persuasion and sought to incite a riot, which is conduct that the police must be able to stop

Dissent, Black: (1) Police can only interfere with lawful speech after making all reasonable efforts to protect the speaker. These efforts are not borne out by the record. (2) There was no imminent threat of a riot – pushing is expected in public gatherings and one isolated threat against the speaker is cause for action against the threatener not the speaker.

Stone: What are the rights of the audience to hear the speaker, even if there are other members of the audience who are threatening violence? The police must eliminate threats to speaker because speaker has first amendment right to speak and the audience has the right to hear

Edwards (1963)  Black college student peacefully picketed discrimination. There were 200 onlookers, but none threatened violence. No interference with vehicular or pedestrian traffic. Threatened with arrest if did not disperse in 15 minutes.

Holding: The facts here were a “far cry” from Feiner because there was no evidence of violence or threat of violence on the part of crowd or protesters and police protection was sufficient to meet any possible disorder

Stone: Actually worse than Feiner, but Court is uncomfy with the heckler’s veto

Question 34

Chaplinski v. New Hampshire (1942)

Answer 34

Jehovah’s witness called a police marshall “a goddamned racketeer” and “a damned fascist.”

Rule: Fighting words or offensive words that a man of common intelligence would understand to cause an average addressee to fight and breach the peace are not safeguarded by the constituion

Holding: “damned racketeer” and “damned fascist” are epithets likely to provoke the average person to retaliate and can thereby be criminalized by NH

Two Level Speech Theory: Speech is either protected or unprotected based on the court’s evaluation of its value – fighting words inflict harm and do not communicate ideas

C/P/D Explanation: Fighting words are unprotected because they are likely to cause a breach in the peace since they have that effect on a man of average intellect

Narrowing Doctrine: Subsequent decisions indicate the doctrine only applies to use of epithets that describe a particular individual + are addressed to them in a face-to-face encounter (Cohen)

Question 35

Snyder v. Phelps (2011)

Answer 35

Westboro Baptist Church picketed a military funeral on public land with signs that said “God hates fags.” The Church was sued for intentional infliction of emotional distress.

Rule: Speech that, due to its “content, form, and context,” is public rather than private is protected by the First Amendment even if it offends others

Holding: Because the Church’s speech was at a public place on a matter of public concern, it cannot be restricted simply because it is upsetting or arouses contempt

Dissent, Alito: First amendment does not preclude liability for the intentional infliction of emotional distress by the means of speech

Stone: If this same incendiary speech was done in the private sphere, it may have been IIED

Localities can adopt laws that protesting within a certain distance of funerals because

Question 36

New York Times v. United States (1971)

Answer 36

Pentagon Papers related to Vietnam were published by the press. The government sued to enjoin further publication.

Rule: Presumption against the constitutionality of prior restraints to expression

Concur, Black: Only a free and unrestrained press can expose deception in the government as the framers intended. “Security” is vague generality that cannot be invoked to abrogate 1a rights

Concur, Douglas: Even if such disclosures have a big impact, that is no basis to censor them. 1a was adopted to ensure a well-informed populace could self-govern and public debate with full info is essential to maintain that.

Concur, Brennan: Precedent assumes that 1a may only tolerate prior restraint to expression when the country is at war and deployment dates or draft obstruction is at issue. Neither situation is present here.

Concur, Stewart: Dilemma – Exec is endowed with exclusive power over national defense and only informed citizenry can check that power VS Exec needs to be secure in her confidences in order to formulate international police. Solution – Exec has sole responsibility to ensure confidentiality and courts will not stand in the way of whistleblowers unless there is proof that disclosure will “surely result in direct, immediate, and irreparable damage to our Nation or its people”

Concur, White: Govt has not met its very heavy burden to sustain injunction. Govt could have proceeded through criminal prosecution of whistleblower and that prob would have been effective

Concur, Marshall: It is not for the courts to provide the president with a new power that Congress refused him.

Dissent, Burger: 1a is not absolute. Would have affirmed 2d Cir. and completed the trial in the district court to fully discover all relevant facts.

Dissent, Harlan: Scope of judicial review of exec action in the field of international relations is narrow – exec is owed deference re: impairment to national security, but the Court can insist that head of Dept make that determination personally. No indication that lower courts accorded exec proper deference.

Dissent, Blackmun: Sustain injunction while appropriate standards are developed to weigh broad right of press and narrow right of government to prevent.