Sensibility, Insults, True Threats, and Hate Speech Flashcards
Hustler Magazine v. Falwell (1988)
Magazine published ad with sexual parody of Rev. Falwell with a disclaimer, and he sued for IIED. Public Officials/Figures cannot recover for IIED on Matters of Public Concern UNLESS they prove a false statement of fact made with Actual Malice. Political cartoons are a long part of our history/politics.
Snyder v. Phelps (2011)
Westboro Baptist Church, Picketing Military Funerals, Father sues for IIED. Despite the nature of the speech, it was protected as public speech on a matter of public concern. Distress turned on the content and viewpoint of the speech. Defines Speech of Public Concern as that which 1) relates to any matter of political, social, or other community concern or 2) the subject of legitimate news interest and value to the public.
Hess v. Indiana (1973)
Anti-War Protest on Campus blocked the street and police moved them to the curb. They said they would “take the street later/again.” Even though the speech advocated illegal activity/use of force, it was protected it was not likely or intended to provoke imminent illegal activity, just some time in the future.
NAACP v. Claiborne Hardware Co. (1982)
NAACP rep. gave speeches to encourage boycotts through social pressures and threatened to “discipline” violators. Businesses sued. The speeches were non-violent and did not amount to incitement and the businesses did not prove that NAACP had unlawful goals.
Watts v. United States (1969)
Draft Dodger at anti-war rally made threats to LBJ and was convicted. Court overturned the conviction because they were hyperbole and not knowing and willful threats to his life.
Planned Parenthood v. Coalition of American Life Activists (2002)
9th Circuit, Wanted Posters were held to be a True Threat (reasonable person would foresee to be interpreted as serious expression of intent to inflict bodily harm). Elements of True Threat: 1) Speaker intends hearer to feel intimidated/threatened, 2) hearer feels threatened, 3) reasonable person would feel threatened. Kozinski Dissent: Elements + 4) convey that speaker or his agents would carry out threat. Does not lose protection due to intimidating coercive nature. Berzon Dissent: Advocacy for the idea that violence is morally justified is protected.
Collin v. Smith (1978)
7th Circuit, See Also National Socialist Party of America v. Village of Skokie (1977), Hate Speech, NSP wanted to march through a Jewish neighborhood and village passed ordinances to prevent it. Speech was protected despite desire to inflict psychic trauma and is not a Chaplinksy category.
R.A.V. v. City of St. Paul (1992)
Hate Speech, Cross Burning, Bias-Motivated Crime ordinance held invalid as content discrimination, even though expression was fighting words (used as vehicle for content-based restriction). Fighting words are unprotected, but the addition of content called for strict scrutiny, and the ordinance failed. Distinction between content and viewpoint discrimination.
Virginia v. Black (2003)
Hate Speech, Cross Burning, Overly Broad Statute banned cross burning with intent to intimidate and made cross burning prima facia evidence of intent to intimidate. No room to distinguish the purpose of the cross burning.
Wisconsin v. Mitchell (1993)
Black kid beat up white kid based on his race and his sentence was enhanced as a hate crime. Antidiscrimination laws can address racial motives as long as the targeted conduct is not protected speech (unlike R.A.V. where biased fighting words was targeting speech). Motive is traditionally factored in by judges at sentencing.
