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First Amendment
South Texas College of Law Houston
Kelso, R. Randall

Professor Kelso
Spring 2011
First Amendment
First Amendment
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government of a redress of grievances
Theories for why the right to free speech is important
The marketplace of ideas
Exchange of different ideas
Primary justification for protecting the right to free speech
Can only get to the truth if we can discount falsity and can only do that if ideas are exchanged freely in the marketplace
Must be accessible to be an effective market
Representative democracy
Free flow of ideas provides for counter information, which allows people to hold lawmakers accountable
Allowing all ideas to get out there may also help stabilize society b/c it prevents uprising/revolt
Autonomy – self-fulfillment
1st should be read broadly to protect everyone's idea of what might be art, politics, etc
Something that is art to one person may be political or offensive to others
Government distrust
1st amendment presumes the gov't does not have the people's best interests in mind and that there is an inherent bias motivating gov't decisions
Miller v. California, 413 U.S. 15 (1973)
Miller was convicted of mailing unsolicited sexual material in violation of California law
Gov't has a legitimate interest in protecting unwitting recipients and juveniles
At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political or scientific value to merit 1st amendment value
·         Three prong test
§  Obscenity includes the following material:
·         That which that the average person, applying community standards, taken as a whole work would find appeals to the  prurient appeal (promotes lustful thoughts)
·         Lustful thoughts = images that arouse interest in sexual activity
·         Prurient appeal refers to material that gives rise to thoughts outside of the norm, thoughts that are deviant
·         That material that is patently offensive (describes/depicts sex acts, specifically defined)
·         Sex acts must be specifically defined so that people are on notice
·         Community standard applies here as well
·         Lacks serious literary, artistic, political or scientific value
·         Material can be obscene even though it has some value and be prohibited
·         Only protected if it has serious value and meets the other two prongs
·         Narrows the scope of 1st amendment protections
·         Note that this prong is judged by a national standard, unlike in the first two prongs
·         Considered under a community standard, not a national standard, to determine whether the material promotes lustful thoughts, b/c a national standard is much more hypothetical and less attainable
§  Court notes that there are different standards held by different people in different communities
§  Can be a state standard as well as a more local standard
·         A judge could choose to apply a Las Vegas standard rather than a Nevada standard
o    Review of Miller Test
·         Ask whether the average person applying contemporary standards viewing the work as a whole would find that it appeals to the prurient interest
§  Determined by a local standard
·         Must be patently defined sex acts and the offenses must be specifically defined so that everyone is on notice
·         Must not be any serious literary, artistic, political or scientific value
§  Determined by a national standard
o    Stanley v. Georgia, 394 US 557
·         Private possession
§  Privacy – risks – and the right to receive
·         People have the right to receive porn – cannot prohibit the right to have obscenity in the home of a consenting adult
§  No risk of exposure to kids here unlike as in Miller
·         Court says though that the state may be able to rely on education and punishment
·         This is a typical fall back answer the court gives to states when they strike down statutes
·         Education – promoting the marketplace of ideas
·         Punishment
·         Can still go after someone who has an intent to distribute but can only do so after establishing that intent to distribute existed
o    New York v. Ferber, 458 US 747
·         Child porn is never ok b/c here the state is trying to protect the physical and mental health of the kids
§  The Miller test bears no connection to the issue of whether a child has been harmed
·         The nature of the injury is different
·         Further, the harm lasts for the child's whole life b/c the picture pretty much never goes away
§  Court takes a broader view to dry up the source and get rid of the problem
·         Court, in dicta, suggests using youthful looking adults as an alternative to using children
·         What about textbooks or National Geographic
§  Here these publications are taken on a case by case basis
·         Considers how broadly the statute should be read
·         What can the state prohibit?
§  State can prohibit that which is adequately defined by the applicable state law, as written or authoritatively construed
§  The offense must be limited to works that visually depict sexual conduct by children below a specified age
·         “Sexual conduct” must be suitably limited and described
§  So essentially cannot have live kids, visual depictions, sex acts, must show knowledge and intent
·         Does not have to be patently offensive and does not have to appeal to the prurient interest
·         Provides state with much greater leeway in preventing child porn
·         Note that knowledge and intent are the most litigated issues in these types of cases
o    Paris Adult Theatre v. Slaton, 413 US 49
·         Commercial interests v. consenting adults
·         Court said that the state coul

tead is significantly diluted
Intent to incite the commission of a terrorist offense that causes a danger that such offenses may be committed
Under Brandenburg standard it meets the intent element
Must question whether it meets the likelihood standard
Glorifying the commission of a terrorist act when the audience could reasonably infer that the act should be emulated
Satisfies the objective prong of intent, but not the subjective prong (did they mean to?)
Imminent and likelihood elements seem pretty weak
Using a public place to propagate provocative appeals or extremist ideas or displays slogans or signs that might create disorder or harm the national unity or social peace or destabilize security or public order
“Extremist ideal” = issue here that it is pretty much a doctrine rather than an action
No objective intent, no subjective intent – the inquiry turns solely on the outcome
Does not appear imminent, uses the word “might”
Fighting Words
Intro / Slide
Words that do not promote 1st amendment values or promote truth or basically have any justification for self autonomy or emotive value
Consider it in the context of incitement speech
Similar elements in that fighting words are spoken to someone else and incite a response from the hearer
State has an interest in order and morality
The Doctrine
Cantwell v. Connecticut
Jehovah's Witness played a record that was derogatory to the listeners – they told him to stop and go away and so he did -> he was arrested, but conviction was not upheld b/c there was no clear and present danger
Court weighs interest of the state in maintaining order in the interest of the individual in expressing himself
This might be the case if the speech in question included profane speech that gave rise to fight
Notes that maintaining public order is important and may require the state to protect that interest
We are concerned here with the reaction of the hearer
Chaplinsky v. NH
Defines fighting words
Fighting words are those that inflict injury or incite an immediate breach of the peace
Test is what men of common intelligence would understand would be words likely to cause an average addressee to fight
Establishes a floor of sensitivity to the common, average person
Worried about the objective listener, not the super-sensitive one