Free Speach & advocasy of illegal action Flashcards
The brandenburg Test
1st A doesn’t let the state forbid or proscribe advocasy of the use of force or law violation except where such advocasy is directed to:
1. inciting or producing immenent (relativly serious) lawless action; AND
2. is likely to incite or produce such action.
Does the brandenburg test differentiate between types of crimes?
Yes, there is more protection offered for incitement of minor crimes.
Telling people to Jaywalk compared to inciting a violent riot
Brandenburg and genuine threats
Genuine threats are not protected, but there must be awareness of the victim of the threat
DIstinction between regular speech and participation in a conspiricy
The speech isn’t being punished, but is evidence of your participation I the group.
Assisting a terrorist organization by speech can be punished, but independent advocacy can’t be punished.
Brandenburg & calls for imminent action
Must be concrete (a concrete plan, told to do something). More than just a call to do anything, must be to do a specific action.
Advocasy v. Incitement
- State of mind (intent)
- Timing (immediate or imminent, a concrete plan)
- Probability of harm (must be likely)
- Gravity of the harm (must be serious)
When you can identify a victim, the court will be (…) protective of speech.
Less
Applies to offesnses like defemation
NYT v. Sullivan
Standard for bublic figures
Public officials (now public figures) may not recover without showing actual malice
Actual malice
Knowlede of, or reckless disregard for, falseness of a statement
What is a limited public figure?
someone who chooses to participate in the controversy. Must “thrust yourself into the controversy.”
“the best test for being a limited public figure is talking to the media”** But** “post defamation talking to the media might not be enough because you are defending yourself” - L.
Gertz v. Robert Welch
Standard for private figures
No need for a showing of actual malice. The standard is negligence
WHen would you not apply either Gertz or NYT?
When the matter is of private interest.
This is very narrow for public figures
Defemation standard for private interests
simply common law, plus fault, judged under rational basis test.
Standard for Emotional Distress
treated the same as defamation, applies NYT, and so it can’t be used to get around defamation
Daily Mail standard
lawfully obtained, truthful information about a matter of public significance may be disseminated without liability absent satisfaction of strict scrutiny.
Speech not integral to the crime itself
Speech not integral to a crime is protected
A CP video has actual victims but a book about you robbing a bank has none.
Why was Free Speech Coalition (artificial CP case) struck down?
no actual person was harmed, in Ferber there were real children.
Whhy was the U.S. v. Stevens law against depictions of animal cruelty struck down?
The statute struggled to not include videos of hunting, which are legal, and thus was too overbroad.
The stevens approach
Prior restraint & administrative licensing
You don’t need to tell the gov’t that you are going to speak but there are some TPM exceptions. For instance, a permit for a parade.
If an injunction features an unconstitutional prior restraint must it still be followed.
The injunction must be followed while it is being challenged
a State court order abating a newspaper, enjoining future publication, because of defamation of public officials in stories
The collateral Bar rule
If an injunction is issued you must attempt to have it overturned, you can’t just ignore it.
Prohibits a party from challenging the validity of a court order if the party violates the order prior to challenging the order in court.
