1 Amendment Outline - First Amendment Law

First Amendment Outline

1. Unprotected or Partially Protected Speech

   1. Incitement – Brandenburg, clear & present danger

   2. True threats, crime manual (instruction vs. advocacy)

   3. Fighting words and hostile audiences

   4. Hate Speech

   5. Defamation and other Torts

      1. Libel

         1. Modifies common law libel for public issues and public figures NYT

      2. IIED

         1. Hustler & Snyder (not actionable)

      3. Breach of contract & promissory estoppel

         1. Cowles Media (actionable) – can you distinguish?

      4. Right to Privacy

         1. False light

         2. Disclosure of victim identity

         3. Electronic eavesdropping

      5. Hate speech

   6. Obscenity

   7. Sexually explicit but not obscene

      1. Zoning - Secondary effects

      2. Child Pornography

         1. Stanley v. Georgia doesn’t apply

      3. Crush videos & video games

   8. Commercial speech

      1. Right of audience to receive/ be informed

      2. Compelled advertising fees

      3. Keeping people in dark vs. direct regulation

      4. Vice tax

2. Content based (direct regulation)

   1. Subject matter

   2. Viewpoint

   3. Speaker status

   4. Communicative impact

3. Content neutral (side swipes)

   1. Aimed at conduct, but incidentally suppresses symbolic speech

      1. O’Brien

      2. Flag burning

      3. Nude dancing

      4. Providing legal counsel to terrorist organizations?

   2. Aimed at speech, but not due to content.

      1. TPM

         1. Total Medium Ban – heavily scrutinized

         2. Permits

4. Government as Proprietor, Employer, Educator, Patron

   1. Public Forum/Designated public forum, non-public forum

   2. Libraries, military bases, schools, jails, mailboxes, airports, buses, broadcasting, municipal theater

   3. School speech - to what extend does 1st A protection extend to schools?

   4. Speech & Religion – can’t discriminate against religious speech

      1. but also can’t discriminate in favor of religious speech

   5. Penalty, non-subsidy, government speech

5. Compelled Speech and Association

   1. Right not to speak

      1. Pledges, license plates, etc.

      2. Public voting

   2. Compelled Access – right not to mouthpiece for someone else

      1. Broadcasting and cable cases are special enclave.

      2. Access to private property

   3. Expressive Association – denial of government benefits (bar membership)

   4. Compelled membership (antidiscrimination laws)

   5. Access to information (generally press)

      1. membership lists (association)

      2. Access to government information

      3. Law enforcement (demand by Government for Press info)

      4. Open courtroom proceedings (demand by press of government)

   6. Election Procedures (association)

      1. Who may vote in primaries

      2. Political party association - fusion candidates etc.

   7. Political contributions (free speech & association)

6. Religion

   1. Defining religion

   2. Free Exercise

      1. Statutes directed at burdening or prohibiting religious practice

      2. Constitutionally required accommodations (side swipes)

   3. Establishment Clause

      1. Symbolic displays and Religious Rituals

         1. Schools are special situation

      2. Funding and Government Benefits

      3. Financial aid to religious education

         1. Religion and school curriculum

      4. Impermissible accommodations

      5. Lemon, coercion, acknowledgement (respects FE), endorsement, improper inducement?, etc

      6. Separatism (Lemon), non-preferentialism, neutrality (endorsement), voluntarism (coercion)

         
         I: Unprotected or only Partially Protected Speech

A. Incitement

Tests:

• Clear and Present Danger test: Whether nature of speech creates a clear and present danger of the substantive evil that Congress has right to prevent. (proximity and degree) Schenck

• Dennis test: Gravity of evil, discounted by the improbability, justifies the invasion of free speech. Dennis. (HAND’s BPL formula from Carol Towing!) (Criticism - this reduces 1st A. to a tort! 1st A should add something to the BPL equation to)

• NOW Brandenburg test: Speech is permitted that

  • Advocates force or legal violation, unless such advocacy is

    • Intended to incite

    • imminent lawlessness and

    • likely to produce such action.

Schenck/Frohwerk/Debs/Abrams 1919 – Clear and present danger (SPEECH UNFRIENDLY)

• Schenck (HOLMES 1919) - Court upholds conviction for conspiracy to violate the espionage act by printing and circulating documents intended to cause insubordination and obstruction under clear and present danger test. Note: actual offense - obstructing recruitment – doesn’t require speech.

  • Used to convict anti-war speakers based not on advocacy/ opinion, but on effect of words:

    • Frohwerk (HOLMES 1919) – Court upholds conviction for publishing and circulating twelve newspaper articles. Debs (HOLMES 1919) – leader and presidential candidate for socialist party. Court upheld conviction for inciting insubordination, disloyalty, mutiny, and refusal of duty in armed forces when delivering speech at state convention.

  • Used to convict anti-war speakers by looking at words’ “plain purpose”, but Holmes argued this looks into viewpoint too much, and doesn’t protect speech.

    • Abrams (CLARKE 1919) - Russian immigrants wrote and distributed circulars advocating workers to stop producing weapons to be used against the Russian revolutionaries. HOLMES dissented based on intent and immediacy. No immediate danger caused by the “publishing of a silly leaflet by an unknown man.” & no specific intent. Ds intended to protect Russian revolutionaries, not to interfere w/ German war efforts.

Gitlow/Whitney 1925 - Clear and Present Danger 2.0

• red scare, laws banned certain classes of speech rather than looking at incitement to violence. Holmes dissented/concurred, arguing the CPD test requires immediate violence. Courts later followed Holmes/Brandeis reasoning.

• In contrast to Schenck/Debs, etc., in Gitlow/Witney, the forbidden act is the speech itself. Thus, the proximity inquiry of clear and present danger doesn’t work.

Gitlow (SANFORD 1925) –member of the socialist party, charged with criminal anarchy for publishing an article called Left Wing Manifesto. The Court upholds the statute saying that legislative determination that the speech was “so inimical to the general welfare and involve such danger of substantive evil” is entitled to judicial deference. HOLMES dissent argues that the legislature was not after speech, but the evils of violence and incitement. Thus, he makes the “ultimate evil” the crime and then applies clear and present danger test to the speech. Concludes that intent (to cause anarchy) was not demonstrated.

Whitney (SANFORD 1927) – Defendant, member of Communist Labor Party, convicted of aiding and abetting liability for acts of other more radical party members. HOLMES-BRANDEIS concurrence emphasized that there must be reasonable grounds to believe that danger is imminent and warned that “it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; and hate menaces stable government.

Dennis (1951) – communist leaders prosecuted for criminal anarchy. Court replaces the Holmes-Brandeis immediacy test with Learned Hand’s balancing test: “whether the gravity of the evil discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” FRANKFURTER concurrence – who are we, 9 judges, to evaluate the gravity of the evil? BLACK dissent -burden of proscribing speech is infinity. DOUGLAS dissent – If the books are themselves not outlawed, then how can teaching from them be a crime? Intent of the speaker determines whether or not it’s a crime. Also requires plain and objective proof of imminent danger.

Brandenburg – “Imminent Lawless Action”

• Court returned to Holmes-Brandeis formulation to overrule Whitney, and held that there is incitement “where [advocacy of the use of force or of law violation] is directed to (specific or general intent?) inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio (1969) (per curiam)

  • Test requires: specific intent + grave danger + imminence.

  • Applied in Hess (1973) Defendant stated “We’ll take the fucking streets later” during a campus anti-war demonstration. Court said there was no imminent violence – rather advocacy of action at some indefinite future time.

  • Was not applied in HLP v. Holder (2013), but the Court did not implicitly overturn Brandenburg, so it still seems to remain good law.

B. True Threats, Instruction Crime Manuals:

Planned Parenthood (9th Cir en banc 2002) – Wanted posters identifying abortion physicians, with lines drawn through the names of doctors who had been killed or wounded. Court distinguishes posters from incitement as “true threats.” “While advocating violence is protected, threatening a person with violence is not.” (threats are bad because of the fear it incites, not merely because the threatened action might result). Dissent: Inciting fear (scary movie) is not the same thing as a threat. Not threat when bad consequences aren’t in the control of the speaker, even if intent to scare exists. Warnings would be criminalized. (On the other hand, the posters increase the probability of the bad event happening. Thus, while no direct control, influence.)

Rice v. Paladin (4th Cir. 1997) – Books facilitating crime. Hit Man, technical manual for would be murderers. Distinguishing instruction vs. advocacy. Not protected due to comprehensiveness, detail, and clarity of instruction, notable absence of ideas the 1Awas designed to protect, and lack of legitimate purpose.

C. Fighting Words (one on one) and Hostile Audiences (heckler’s veto)

• offensive because of the form they take. (not bc underlying message is offensive).

• Fighting words are those “by their very utterance inflict injury” or “which tend to incite an immediate breach of the peace.” Chaplinsky (1942)

  • The first prong was rejected in Cohen (1971), where it held...