Professor Cimino
Drexel University School of Law
First Amendment: Fall 2014
Ø Values of Freedom of Expression –Emerson
1) Individual self-fulfillment
2) Marketplace of ideas; attainment of truth
3) Participation in democratic process
4) Safety valve
Ø Analytical Framework Under The 1st Amendment
§ Argue which test applies then provide the rule statement.
§ Start with restriction on speech/conduct.
§ Does it target toward pure conduct, or does the conduct have expressive value?
§ Speech vs. Conduct
· Conduct: look to intentà “pure conduct” vs. “expressive conduct” – O’Brien Test
· Speech: look to content and determine whether it is expressive.
§ Does the restriction facially target expression?
· Yesà Content-Based
· Noà Content-Neutral
1) If CNà Does speech belong to an excluded category? (protected vs. unprotected)
a. Yesà Unprotected; No 1st A. defense- Petitioner must argue an expressive element to the speech/conduct.
b. Noà Speech is fully protected.
2) Is it CB as applied? à Look to the secondary effects/gov’s intent
a. Yesà Unprotected- lower standard of judicial scrutiny; deference to legislature
b. Noà Protected- strict standard of scrutiny
· Content vs. Conduct
· A regulation that prohibits the expression of specific ideas, or content, is less likely to be upheld than a regulation on conduct whereas expression is incidental to speech.
o Conductà The government’s interest must outweigh any expressive value to the speaker.
o Contentà It is presumptively unconstitutional for the government to burden speech solely on the basis of its content.
§ Historical trend: Speech restrictiveà Speech protective
I. Content-Based Regulations
Unprotected Content-Based Restrictions
§ Content-based restrictions on expression are presumptively unconstitutional. However, the First Amendment does not protect certain categories of content-based restrictions. The restriction must be narrowly tailored to achieve a government compelling interest, which outweighs any potential expressive value to the speaker.
§ Statutes that prohibit overthrowing the government are facially valid bc it’s considered to fall within the gov’s regulatory authority
§ Excluded expression that has little or no value in the marketplace of ideas; opinions are very distinguishable from facts in the search for truth.
§ Must be either speech or conduct with an expressive element to assert a 1st A. defense.
§ Viewpoint Neutralityà The government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
A. Incitement To Imminent Lawlessness & “Clear and Present Danger” Doctrine
§ Rule: The First Amendment does not completely bar the government from regulating expression. [Schenck] The government can prohibit expression advocating unlawful action when it: 1) intentionally produces or incites imminent unlawful action, and; 2) will likely produce or incite such unlawful action. [Brandenburg] However, the government must narrowly define the prohibited expression. [Hess]
§ Schenck v. United States (1919) – *CONDUCT- Espionage Act convictions for dispersing leaflets encouraging people to resist military service; proximity and degree of possible harm posed sufficient threat of a CPD
§ Rule: Gov not barred from proscribing speech under 1st A. so long as it posed threat of CPD.
§ Brandenburg v. Ohio (1969) – Overturned conviction of KKK leader who made speech calling for revenge against the gov for suppressing Caucasians.
§ Rule: The 1st A. does not protect expression that intentionally incites lawless action that is both imminent and likely to occur.
§ Hess v. Indiana (1973) – Discon overturned bc D’s threat wasn't directed at anyone specific.
§ Rule: Must inquire into whether expression can be objectively understood to incite unlawful action.
· Abrams v. United States (1919) – Russian anarchists convicted under Espionage Act for distributing fliers denouncing the US; tendency and reasonably probable effect to cause a CPD.
· Dissent (Holmes): Gov should not prohibit expressive unless threat of CPD is imminent; ultimate good achieved in marketplace of ideas; best test for truth is to be accepted through power of thought.
· Gitlow v. New York (1925) – Upheld conviction a NY criminal anarchy statute; no 1st A defense.
· Rule: State legislatures have discretion to determine what constitutes sufficient harm or danger as to justify prohibition on speech. Incorporates the application of the 1st A to the states through the 14th A.
· Dennis v. United States (1951) – Convicted under Smith Act for willfully conspiring to organize the Communist Party and overthrow the gov; although Ds’ likelihood of success improbable, mere threat of violent insurrection is CPD grave enough to justify it gov’s interest in the proscription on expression.
· Holding: State given more deference to regulate expression so long as the se
depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable law, and; 3) the material, taken as a whole, lacks any serious literary, artistic, political, or scientific value. [Miller]
· Miller v. California (1973) – Modern Test
1) Whether the average person, in applying contemporary community standards, would find that the dominant theme of the material taken as a whole appeals to the prurient interest;
2) Whether the material depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable law;
3) Whether the material, taken as a whole, lacks any serious literary, artistic, political, or scientific value.
· Roth v. United States (1957) – D published obscene materials to sell for his mail order business.
· Rule: The First Amendment does not protect obscenity. The standard for obscenity is to determine whether the material taken as a whole predominantly appeals to the prurient interest.
· Ginsberg v. New York (1968) – Upheld NY law banning sale of porn magazines to minors.
· Rule: Deference given to state police power to regulate obscenity for minors.
· Stanley v. Georgia (1969) – *Obscenity Safe Harbor
· Rule: The state does not have the broad power to regulate obscenity in one’s private home.
· Paris Adult Theater I v. Slaton (1973) – Gave legislature more deference to regulate obscenity in these adult theaters as a commercial regulation on public accommodationsà the fundamental right to privacy safe harbor [Stanley] does not apply.
§ Problems With Obscenity Doctrine
· Miller test does not address the issue of harm or proof of harmà deference given to the legislative and police power to define and regulate obscenity –Ginsberg, Paris Adult Theater
· Test does not cover other potentially obscene material that aren’t erotic/sexual; but just violent, gross, distasteful, etc. Furthermore, such material may even fall outside the Miller obscenity standard.
