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First Amendment
South Texas College of Law Houston
Rhodes, Charles W. "Rocky"


Prof. Rhodes

Fall 2012

I. Content-Based Regulations of Speech

a. Distinction

i. Content-Based Regulations

1. “Focuses only on the content of the speech and the direct impact that speech has on its listeners.”

ii. Content-Neutral Regulations

1. “[J]ustified without reference to the content of the regulated speech.”

iii. Test

1. Content-Based Regulations trigger Strict Scrutiny

a. Regulation “must be narrowly tailored to promote a compelling Government interest,” and it must be the least restrictive means to serve the government’s interest.

2. United States v. Playboy Entertainment Group, Inc., regulation required pornographic television channels to either fully scramble or block the signal, or time the channel for certain times. There was the capability to block each channel per house. The regulation only encompassed pornographic channels and is concerned on the impact that porn would have on minors; the regulation was content-based. The regulation was not the least restrictive, and therefore the statute does not satisfy strict scrutiny.

b. Unprotected and Less-Protected Speech

i. United States v. Stevens, Fed. statute outlawed depictions of animal cruelty, regulating based on content and triggering strict scrutiny. Gov’t claimed that depictions of animal cruelty were outside the First Amend.; it was incorrect. Exceptions are based in history and traditions, not on a cost benefit analysis. The statute was overbroad, in that it could affect traditionally protected forms of speech (e.g. depictions of hunting animals); the valid concern in targeting “crush videos” (i.e. videos of animals being crushed by being stepped on) did not salvage the statute.

c. Incitement of Illegal Activity and Seditious Libel’s History

i. Test

1. Incitement to perform illegal activities does not receive First Amend. protection, and the statute under which the person is prosecuted only receives rational basis review

ii. Clear and Present Danger Test (Old)

1. Schenck v. United States, defendant distributed pamphlets advocating socialist sympathies during World War I in violation of Fed. statute and was prosecuted. The message of the pamphlets, advocating active resistance to the war effort, constituted a “clear and present danger” to bring about “substantive evils” that Congress has a right to protect.

2. Abrams v. United States (Holmes, J., dissenting), pamphlets advocated workers to strike from manufacturing bullets that might be used against Russians. The marketplace of ideas was the appropriate forum to rebut the statements; the Government is not allowed to criminalize ideas, only actions.

3. Dennis v. United States, defendant communist was convicted of advocating the overthrow of the United States gov’t. Sup.Ct. defined the “clear and present danger” test to be an examination of whether “the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” The speech was not protected under the First. Amend.

iii. Imminent Lawless Action (Modern)

1. “Incitement” must be directed towards inciting or producing an immediate lawless action and likely to produce such action

2. Brandenburg v. Ohio, defendant KKK member convicted for holding a rally and giving a speech that made vague reference to taking “revengeance” against the country if they “continue to suppress the white, Cuacasian race.” The Gov’t did not show that the defendant intended to immediately produce lawless action, and that such action was likely, but merely showed that the defendant advocated an ideology contrary to the gov’t.

3. Hess v. Indiana, during an anti-war demonstration, with over 100 protestors on the street, police began clearing the streets. Defendant shouted “We’ll take to the street later,” and was prosecuted for incitement. The statement failed the Brandenburg test, since the lawlessness defendant was inciting was not immediate, and it was unclear whether it was likely to occur.

4. Rice v. Paladin Enterprises, Inc., defendant published a “how-to” manual on contract killings. Plaintiffs, survivors of decedents killed by people following the manual, brought wrongful death suits. The manual did not represent “abstract advocacy” but step-by-step encouragement and instruction on how to perform contract killings, and thus was outside the ambit of First Amend. protection.

d. Fighting Words, Hostile Audiences, Threats & Hate Speech

i. Definition

1. Speech that has the tendency to incite an immediate breach of the peace falls outside the protection of the First Amend., triggering only rational basis review.

ii. Foundational Fighting Words and Hostile Audiences Cases

1. Cantwell v. Connecticut, defendant, a Jehovah’s Witness, played two passerby’s a record that attacked other organized religions; there was no showing that the defendant intended to offend the listeners, but they became extremely angry at the record. The defendant stopped when asked. Defendant’s action did not constitute fighting words, and thus were afforded First Amend. protection, and his conviction was reversed.

2. Chaplinsky v. New Hampshire, defendant, a Jehovah’s Witness, distributed pamphlets attacking organized religions. Law enforcement eventually restrained defendant, though not under arrest, because a riot was forming. Defendant cursed at the officers, called them “racketeers,” and “Fascists” (during World War II). The test for fighting words is “what men of common intelligence would understand and would be words likely to cause an average addressee to fight.” In the Court’s view, the epithets slung against the officers were likely to provoke an average man to fight and breach the peace. The First Amend. does not protect against such fighting words.

3. Feiner v. New York, gathering of 75–80 people on the street, where the defendant was speaking through a loudspeaker. During the course of the speech, police arrived and monitored the scene. The police determined that the crowd was beginning to become riled up, and attempted to get the defendant to step down. The defendant refused, and the police arrested him. A breach of the peace was likely to occur if the police did not intervene, so the conviction could stand. The dissent advocates that the police should not intervene unless the speaker is in danger and there is no way for the police to protect the speaker (more modern approach).

iii. Modern Understanding

1. Cohen v. California, the defendant wore a jacket with the words “Fuck the Draft” on the back into a courthouse and was convicted of breaching the peace. The phrase was not obscene, since it could not be thought to be in any way erotic. The phrase was not directed at anyone in particular, and those offended could avert their gaze from the jacket. There was no showing that a breach of the peace was even contemplated, and thus the words were not fighting words.

2. F.C.C. v. Pacifica Foundation, radio broadcasted George Carlin’s seven dirty words at 2pm. F.C.C. sanctioned the radio station, and advised the station that they may be able to broadcast the program at a later time. The F.C.C. could regulate broadcast media more closely than non-broadcast media. The speech came into the home, instead of broadcast to the public streets. Further, the Government had an interest in protecting children from verbal speech, unlike Cohen that was written speech.

3. R.A.V. v. City of St. Paul, gov’t convicted defendant under a statute criminalizing certain speech and conduct that is offensive on the basis of several protected classifications; defendant burned a cross in someone’s front yard. The statute was overbroad and underinclusive at the same time. The gov’t cannot distinguish between various fighting words, all fighting words must be prohibited. When criminalizing the exceptions to the First Amend., the gov’t cannot distinguish between some subset of the exception against others.

4. Virginia v. Black, Virginia statute provided that cross burning with an intent to intimidate (regardless of the group intimidated), and provided that the burning of a cross was prima facie evidence of a defendant’s intent; the burden of proof was thus placed back on the defendant. A state may criminalize “true threats.” A “true threat” is when the “speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death,” of which, cross burning is an example. The statute, however, shifts the burden on the defendant to disprove his intent, and therefore is unconstitutional.

5. Edwards v. South Carolina, a hostile crowd gathered in opposition to a civil rights march on the state capitol grounds. The protestors sang religious hymns while marching and listened to speakers urging non-violent resistance. The police ordered the speakers to disperse, but they refused and the police arrested them. The state c

ona, truthful, non-misleading lawyer advertising is protected by the First Amend.

2. Ohralik v. Ohio State Bar, state can ban lawyers from soliciting clients in the hospital room in-person.

3. In re Primus, First Amend. protects lawyers soliciting clients if they are working for non-profit issue advocacy organizations.

4. Florida Bar v. Went For It, Inc., state can ban targeted solicitation within 30 days of an injury.

II. Content-Neutral Regulations

a. Symbolic or Expressive Conduct

i. O’Brien Test

1. Elements

a. The regulation is within the constitutional power of the Gov’t (duh),

b. The regulation furthers a substantial intrest,

c. The interest is unrelated to the suppression of free expression, and,

d. The incidental restriction on alleged First Amend. freedoms is no greater than is essential to the furtherance of that interest.

2. United States v. O’Brien, defendant was convicted for burning his draft card in front of a courthouse. The power to regulate draft cards was inherently within the constitutional power of Congress to raise and maintain armies. The criminalization of the destruction of draft cards furthers the substantial interest of raising and maintaining efficient and functional armies by forcing citizens to preserve their draft cards. The defendant was convicted for his conduct of burning the card, not the message being conveyed by its destruction.

3. Texas v. Johnson, defendant was convicted for burning an American flag under a statute that criminalized desecration of a venerated object (the flag). The state cannot categorically preserve certain objects as sacred, and criminalize their destruction without more.

b. Time, Place & Manner Restrictions

i. The gov’t targets speech specifically, but only for the time, place, or manner in which it is done.

ii. Test

1. The regulation is content-neutral,

2. The regulation serves a substantial interest,

3. The regulation is narrowly tailored to that interest, and,

4. The regulation leaves open ample alternative communicative channels.

iii. Clark v. Community for Creative Non-Violence, national park service prohibited protestors from sleeping in tents on national park land. The regulations were content-neutral as the ban was a general ban, not just targeting the protest group. The interest in preserving the peace, dignity and cleanliness of the parks was substantial. The regulation, although imperfect, was specifically tailored to maintaining that interest. The protestors had ample other avenues through which their message could be conveyed, aside from staging a “sleep in” on Lafayette Park and the National Mall. The prohibition is constitutional.

iv. Ward v. Rock Against Racism, city held that anyone who wanted to use a publicly-held amphitheatre had to use city-provided technicians to operate the sound equipment for the amphitheatre. The interest of noise control was substantial; the city had received numerous complaints over the years. The city was unable to address this interest in any way other than to use city-provided sound technicians, because independent technicians were unable to effectively manage the amphitheatre’s sound output. The regulation was not the least restrictive means towards promoting this interest, but it need not be. Time, place, or manner restrictions are satisfied when the means chosen are not “substantial broader” than necessary; imaginable alternatives that might be less burdensome on speech are not sufficient to defeat an otherwise adequate time, place, or manner restriction.