Unprotected Speech

Question 1

FITDOC

Answer 1

Fight words: Chaplinsky
Incitement to violence: Brandenburg
True threats: Virgina v. Black
Defamation: NYT v. Sullivan
Obscenity: Miller
Child Pornography: Ferber

Question 2

Fighthings words

Answer 2

Are words by their very utterance inflict injury
OR
tend to incitement immediate breach of peace

Question 3

Incitement to violence

Answer 3

Conviction of incitement is constitutional, only if:

1. Harm is imminent
2. Speaker has intent to cause imminent harm
3. The speech has likelihood of producing illegal action

Question 4

True threat

Answer 4

True threats are not protected by First Amendment, gov’t may regulate

Intimidation = true threat when:

i. Speaker directs a threat To a person or group
ii. With intent of placing victim in fear of bodily harm or death

Question 5

Elements of Defamation

Answer 5

Libel = written; Slander = oral

Elements of defamation:

i. False statement of fact that injures someone’s reputation
ii. False statement must be publicized
iii. False statement of or concerning the plaintiff

Question 6

Defamation

Answer 6

NYT v. Sulllivan

Defamatory statements regarding official conduct of a public official are protected by the First Amendment BUT, plaintiff may recover damages if he proves:

1. with clear and convincing clarity that
2. statements were made with actual malice

Question 7

Actual Malice (defamation)

Answer 7

Speaker knew statements were false

OR

Speaker had reckless disregard as to whether the statements were false

Question 8

Who is a public official?

Answer 8

Those who appear to the public to have substantial responsibility for or control over the conduct of government affairs. Rosenblatt v. Baer

Question 9

Public figures

Answer 9

Must show actual malice

Question 10

Who is a public figure?

Answer 10

Person who voluntarily injects oneself or is drawn into a particular controversy and thereby becomes a public figure for a limited range of issues. Gertz v. Welch

Question 11

Private figure, private matter

Answer 11

Not required to show actual malice to recover

Question 12

Obscenity

Answer 12

Material is not protected by FA, if meets Miller Test:

1. Material appeals to prurient interest (that which excites lustful thoughts)
2. Material is patently offensive sexual conduct and is specifically defined by the statute
3. Lacks serious value = Taken as a whole, the material lacks serious redeeming artistic, literary, political, or scientific value

Question 13

Nudity

Answer 13

Nudity alone isn’t enough to make material legally obscene under the Miller test

Question 14

Child Pornography

Answer 14

Ferber

RULE → Gov’t may prohibit the exhibition, sale, or distribution of child pornography even if it does not meet Miller test for obscenity

BECAUSE

(a) The gov’t has compelling interest in protecting the physical and psychological well-being of a minor
(b) Child pornography is closely related to child abuse because kids are harmed by the permanent record of their involvement in making the porno

Question 15

Virtual child pornography

Answer 15

Under Ferber, virtual child pornography isn’t pornography because it doesn’t harm children

Virtual child porno doesn’t meet Miller test → so it’s protected speech → meaning gov’t can only regulate if the law meets strict scrutiny

Question 16

Possession of child pornography

Answer 16

Possession of child porno is illegal because it re-victimizes the child. Osborne v. Ohio