Unprotected and Less Protected Speech Flashcards
Types of Unprotected Speech
-Incitement of illegal activity (Brandenburg)
- Fighting words
- Obscenity
Types of Less Protected Speech
-Commercial speech if intermediate scrutiny is met
- Sexually oriented speech - more susceptible to government regulation
Incitement of Illegal Activity
Used to be clear and present danger test. Now, speech regulations are permissible ONLY IF the speech at issue is intended to produce IMMINENT lawless action and is likely to actually produce such action. (Brandenburg). In
Fighting Words
Speech regulation is permissible ONLY IF the speech at issue is intended to produce IMMINENT, LAWLESS ACTION and is likely to actually produce such action. (Brandenburg). In Brandenburg, a KKK member invited a news reporter to a KKK rally and was convicted under Ohio’s criminal syndicalism statute and made a bunch of racist statements and said he was going to enact revenge on the government. The Court held that Ohio’s statute was unconstitutional because it was over inclusive and did not distinguish between speech that advocated for violence and speech that was actually likely to produce violence
Hostile Audience
Fighting words, or words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace do not receive first amendment protection. (Chaplinksy). Has since narrowed considerably and arguably no longer exists. In order for something to be considered fighting words, speech must be directed at a particular listener and be likely to invoke a violent response. (Cohen). Burning a flag (like seen TX v. Johnson) don’t count as fighting words because it isn’t directed at a particular listener and likely to invoke a violent response. Can also argue under vagueness and overbreadth.
If content-based statute
If it is a content-based statute, Within categories of less-protected speech, content-based distinctions are permissible only if (1) the distinction advances the reason why the category is unprotected; (2) the distinction has no expressive value; or (3) the law is aimed at regulating the secondary effects of speech rather than speech itself. (R.A.V.)
Chaplinsky v. New Hampshire (1942) → Conviction Upheld
In Chaplinsky, the Court upheld Chaplinksy’s conviction for violating a statute that criminalizes using offensive, annoying, derisive words against another person when he called the City Marshal a racketeer and a fascist. The Court found that the statute was constitutional and did not violate the first amendment because fighting words have very little social value and Caplinsky’s words fell into this category that is unprotected under the 1st Amendment.
Street v. New York (1969) → Not fighting words
Facts: James Merideth criticizes the flag then burns it. Hes charged with malicious mischief
Holding/Rule: The Court holds that the fighting words exception doesn’t apply bc they were not so inherently inflammatory as to provoke a violent reaction
Cohen v. New York (1971) → Not fighting words
Facts: Guy wears jacket that says fuck the draft to courthouse. He is convicted of breaching the peace
Holding/Rule: Court holds that for the fighting words exception to apply, the speech must be directed at a particular listener and be likely to invoke a violent response
RAV v. City of St. Paul, MN (1992) → Unconstitutional
In RAV, a law that prohibits placing public symbols that “one knows or has reasonable grounds to know arouses anger, alarm, or resentment” is unconstitutional. RAV and a few others burned a cross on a black family’s lawn. The law is a content-based restriction on less-protected speech. These kind of laws are only permissible if: (1) the distinction advances the reason why the category is unprotected; (2) the distinction has no expressive value; (3) the law is aimed at regulating the secondary effects of speech rather than speech itself.
Hostile Audiences
If the police are unable to manage the crowd and there is a threat to the breach of the peace that is imminent , then speech may be restricted. (Feiner)
True Threats
True threats, or serious expressions conveying that a speaker means to commit an unlawful act of violence, are NOT constitutionally protected. (VA v. Black). In order for speech to be a “true threat” and regulated, government must show that the speaker acted with recklessness, i.e., they consciously disregarded a substantial risk that their communications would be viewed as threatening violence”. (Countermann).
Virgina v. Black
In VA v. Black, a statute that prohibited cross burning with an intent to intimidate a person or group of people on any land was constitutional, although the provision stating that cross burning is itself prima facie evidence of the intent to intimidate is struck down because it was overbroad and there are other reasons that someone might burn a cross that is not for intimidation and allows jurors to convict people without looking at all the evidence.
Countermann v. Colorado
In Counterman, Counterman was convicted under a CO law that criminalizes repeated communication with another person in a manner that would cause a reasonable person emotional distress. Counterman repeatedly messaged and harassed a woman over texts, DM, etc. The Court held that his conviction violated the first amendment because there was no evidence that Counterman was subjectively aware that the threats would be perceived as threatening . Court refuses to apply strictly an objective standard alone for the risk of chilling speech.
Hate Speech (Protected)
Hate speech is not its own unprotected category of speech. Some hate speech can be regulated because it qualifies incitement to illegal activity, hostile audiences, or a true threat. But unless it falls into one of these categories of unprotected speech, it receives First Amendment protection.
