Pg 35 Flashcards
What is incitement to imminent lawless action?
Inciting or producing imminent lawless action that is likely to incite or produce that action.
The speaker must:
– Intend the incitement
– in context
– the words used must be likely to produce imminent lawless action
– and the words used by the speaker must objectively encourage and urge incitement
What are fighting words?
Words that are inherently likely to inflict injury or incite violence
Must:
– be directed to produce imminent lawless action
– and likely to do it
In what way are fighting words considered to be non-speech elements of communication?
They are compared to a noisy DJ truck
What does it mean that fighting words must produce imminent lawless action?
The words by their very utterance will create a probable reaction in a person of common intelligence that is likely to be violent.
Just because an audience would react hostilely toward a speaker, can that be a justification to silence the speaker?
No. Under fighting words you have to ask if the abstract character of the words is likely to provoke retaliation by an average addressee
Give an example of how the right to speech cannot depend on how much money you have
If the KKK has a rally that ended in violence and now they want the city’s permission to have another one, the city cannot say that they have to post $100,000 bond to cover police overtime. This is not allowed because it uses the heckler’s veto which silences speech by provoking disorder around the speech.
You cannot condition the granting of a permit on the posting of a bond because free-speech is more important than police overtime. It is OK to have a nominal fee for a permit or the cost of processing, but not bonds to cover the possibility of disorder.
Fighting words are limited to what kind of encounters?
Face-to-face verbal encounters that at the moment of utterance invite physical reprisal and are likely to produce disorder.
If a speaker intentionally provokes a hostile reaction and imminent disorder is likely, is that speech protected?
No, that would be classified as fighting words which are not protected, so this speaker could be arrested. But if the speaker is not intentionally inciting someone to violence, he is protected.
I.e.: if a speaker called the mayor a bum in front of a hostile audience, he can be arrested because that is deemed to be inciting a riot that created clear and present danger of disorder
What is viewpoint discrimination?
This goes beyond content and addresses the actual message of the speech. This is based on the speaker’s specific motivation, ideology, opinion, or perspective. This is where the government tries to control the ideology of the message in order to silence it. The government cannot favour or suppress attitudes and views.
What is the standard that applies to viewpoint discrimination?
Strict scrutiny
What is an example of something that would be both content and viewpoint discrimination?
A law that bans obscene movies that make fun of the president
When it comes to private speech can a government regulation favour one person’s speech over another?
No
What are the rules that are applied if a government is the one that is speaking under free-speech?
Apply these criteria:
– the central purpose of the program that the speech occurs in (like license plates with messages on them)
– the degree of editorial control used by the government or private entity over the content of the speech
– the identity of the literal speaker
– ask if the government or private entity has the ultimate responsibility for the content of the speech
Viewpoint discrimination is an egregious form of what?
Content discrimination. It is the most powerful argument that any plaintiff can make
If a university doesn’t include religion as a subject matter, but selects for disfavoured treatment student journalism with various viewpoints that are religious, what is happening?
Viewpoint discrimination. Universities cannot silence expression of selected viewpoints
