First Amendment - Content Based Flashcards
Coates v. Cincinnati
A Cincinnati ordinance criminalizes the assembly of three or more individuals on sidewalks or street corners if they conduct themselves in a manner annoying to passersby.
Whether the law was unconstitutional on its face.
Yes considered vague bc the law “subjects the exercise of the assembly to an unascertainable standard.”
Laws are considered unconstitutionally broad when the law “authorizes punishment of constitutionally protected conduct.”
- “Annoying” is too vague because there’s not standard on what conduct is prohibited
- Gave police too much discretion to decide what is annoying
Broadrick v. Oklahoma
law restricts political activities of the State’s classified civil servants
Broaderick participated for re-election of the commissioner who was their boss
· Sued that it was overbreadth
must be SUBSTANTIALLY overbreadth in order to be struck down as unconstitutional
A party whose alleged conduct falls within a statute’s legitimate bounds cannot challenge the statute on the grounds that it might be unconstitutionally overbroad, if applied to other persons or circumstances not before the court.
standing requirement
^ must have personal standing when it involves conduct (not just speech)
Substantial = is there legitimate state interest in avoiding harmful conduct
- There is a legitimate state interest
- Regulates conduct, not pure speech
- Prohibits all political activity, not only for certain party
- ISNT substantially overbroad
intermediate
(Bd. of Airport Commissioners v. Jews for Jesus)
Snyder, a minister, was stopped by a Department of Airports peace officer while distributing free literature on a pedestrian airport in the LAX airport. This was in violation of an LAX rule which said there would be no First Amendment activity in that zone.
A sweeping ban prohibiting all First Amendment conduct, without any kind of narrowing provisions, is prohibited by the rights enumerated in the First Amendment.
Abrams v. US)
Abrams and four others were convicted of violating the Espionage Act. Abrams printed the leaflets, written in English and Yiddish, which denounced the US’s decision to send troops.
The US may punish speech that produces or is intended to prove a “clear and imminent danger” that it will bring about certain substantive evils the US may constitutionally seek to prevent.
ordinarily-protected speech can be limited in war time if there is clear and present danger to a Congressional purpose.
(Brandenburg v. Ohio)
Brandenburg was the leader of the KKK and was convicted under Ohio’s Syndicalism Act. He was arrested after inviting a reporter to watch a KKK demonstration. The reporter filmed him in garb, burning a cross.
Must meet incitement definition - not met here
the mere abstract teaching of a need to resort to force or violence is upheld as protected by the First Amendment because this activity is far different from preparing a group for violent action and encouraging it to commit that action.
A statute that does not distinguish between the former and latter types of speech violates the First and Fourteenth Amendments because it is over-inclusive
old rule = clear and present danger test
new rule = imminent and likely to incite
Chaplinsky v. New Hampshire
Appellant, a member of the Jehovah’s Witnesses, unlawfully repeated words in violation of a New Hampshire statute, which said no one should address anyone with offensive, derisive, or annoying words to any person lawfully in a public place. The crowd became mad and when he was arrested he said people were fascists and racketeers.
The test is what men of common intelligence would understand would be words likely to incite a fight and needs to be face-to-face communication. The statute here just prevents someone from breaching the peace, meaning that the statute is narrowly tailored.’
fighting words = no 1st amendment protection
(Beauharnais v. Illinois)
Defendant violated Illinois code that prohibited distributing materials or literature that was derogatory to classes of citizens of any race, color, creed, or religion.
Beauharnais was arrested after he printed and distributed a lithograph that made offensive statements about African Americans
Libelous speech is not protected.
They can prohibit speech against groups of people unless the regulation is arbitrary and unrelated to a state interest. Illinois relied on an extensive history of racism to determine the need to criminalize this behavior. Illinois acted reasonably to pass the statute to curb false or malicious speech of racial groups in public places. The statute was narrowly constructed.
(Virginia v. Black)
Black led a KKK rally. When the rally was over, people burned the cross. He was charged with violating a statute that made it illegal to burn crosses if the burning was done with the intent to intimidate. The burning statute also established a prima facie case of an intent to intimidate.
Yes. The prima facie case provision is unconstitutional. Burning a cross is a form of intimidation. However, it is also used to express ideas and represents art forms. The prima facie provision does not allow to distinguish between cross burning as in violation of the statute and cross burning for some other purpose. It chills free speech.
Elonis v. US
A federal law prohibited any communication online containing any threat to injure the person of another.
Elonis made threats to injure patrons, employees of an amusement park, his wife, police officers, kindergarteners, and an FBI agent. The Ct. of App. said that intent was what a reasonable person would perceive as a threat.
The statute does not specify what mental state is necessary and does not indicate intent to communicate the threat.
must have intent to communicate threat (not negligence)
MUST have mens rea to communicate a threat (can’t be didn’t realise people perceived it as a threat)
(Roth v. US)
Roth was convicted of mailing obscene materials in violation of a federal statute.
Rule: Obscenity is not constitutionally protected.
Speech is only obscene, and thus outside the protection of the First Amendment, if it deals with sex in a manner appealing to prurient interest.
Miller v. California
Miller conducted a mass-mailing campaign advertising the sale of obscene books by sending mailings depicting sexual acts to unwilling recipients through the mail.
3-part test to determine if material is obscene
The 3-part test:
Whether the average person, applying contemporary community standards, would fine that the work, taken as a whole, appeals to the prurient interests.
Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; AND
Whether the work, taken as a while, lacks serious literary, artistic, political, or scientific value.
Stanley v. Georgia
Appellant’s home was searched on a warrant. Police found a video and played it, finding porn on the video.
private possession of obscene materials DOES NOT violate the First Amend.
Can have at home
(NY v. Ferber)
the case deals with a statute that prohibits knowingly letting children under 16 performing and distributing the materials.
Whether the NY law violates the First Amend.
States have great leeway to regulate child porn for the following reasons:
(1) state has a compelling interest in protecting children;
(2) distribution of literature is intrinsically related to sexual abuse in 2 ways – (a) materials are a permanent record of child’s participation and the harm to the child, (b) the distribution network must be closed if production is to be controlled;
(3) advertising and selling provides economic motive for and are an integral part production, an activity illegal through the Nation;
(4) the value of the live performance and photographic reproduction of children is valued modestly if not de minimis;
(5) making child porn a category outside of the First Amend. is not incompatible with earlier decisions.
Miller cannot be applied here because it does not take into account the physical harm to the child.
Narrow view: child involved in the pornography
Ashcroft v. Free Speech
Congress passed the Child Porn Protection Act in 1996 to federally prohibit producers of child porn from distributing materials that depict children doing sexually explicit acts, but the actors are instead adults and not children.
records no crime and creates no victims by its production and virtual child pornography is not “intrinsically related” to the sexual abuse of children, as were the materials in Ferber
law is overbroad, therefore, they are unconstitutional.
Virtual child porn is protected unless obscene where the conduct can be punished under obscenity statute
(Cohen v. California)
Cohen wore a jacket that had “F the Draft” on it to the courthouse. He wore the jacket around women and children and some people found it offensive. He did not engage or threaten, nor did anyone threaten to commit violence by his wearing the jacket.
Cohen was punished not because of conduct but because of the offensiveness of his speech. This case does not fall into any category of unprotected speech.
The government can only regulate disclosure to prevent others from hearing it if it substantially violates privacy interests in an essentially intolerable manner. They could easily just avert their gaze away from his jacket.
Absent a more particularized and compelling reason for its actions, the State may NOT, make the simple public display of the f-word a criminal offense
the government cannot ban particular words without risking the suppression of ideas and dissent.
