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

First Amendment
Spring 2011
I.                   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  redress of grievances
II.                Theories for why the right to free speech is important
a.       Five Guarantees of 1st Am: What makes up the 1st Am-
                                                              i.      (1) Religion- different parameters (Free Exercise and Establishment Clause)
                                                            ii.      (2) Methods/Modalities of Constitutional Argument- History, traditions, textual, structural, precedent/doctrinal (case law), national values (ethos)
                                                          iii.      (3) Text–Not a lot of guidance in the 1st Am; Madison (architect behind getting 1st Am. ratified) said “keep it vague, broad and general, then more likely everyone will agree”
1.      1st Am wasn’t in the original Const., the fact it comes 1st is an accident, it was the 3rd proposed Am (first 2 weren’t passed–2nd one ended up  being 27th Am)
                                                          iv.      (4) History- what did the founding fathers think of X?; what does precedent and doctrine say; the idea that certain exceptions are longstanding, and not part of what the 1st Am. was designed to protect.
                                                            v.      (5) Values/Harms: There are categories of utterances that aren’t considered “speech” for 1st Am purposes (ex: incitement, fighting words, threats, obscenities, defamation, fraud and commercial speech); this is basically a balancing standard, none of the examples have any value and cause a lot of harm, thus they’re not protected under 1st Am.
b.      The Marketplace of Ideas: All the avenues through which we get ideas
                                                              i.      Primary justification for protecting the right to free speech
                                                            ii.      Theory: If we listen to all sides, we’ll be able to make a better-educated decision; truth is best served by letting ideas compete in the marketplace)
                                                          iii.      The best way to get to the truth of the matter is for us to talk it out and figure it out
                                                          iv.      Two ways of promoting the truth
1.      Let the truth come out in marketplace (i.e. someone else does the tobacco research and refutes)
2.      Government regulation
                                                            v.      Must be accessible to be an effective market
                                                          vi.      Who has access to marketplace? Should be everyone
                                                        vii.      What is our marketplace today?
1.      Internet – has democratized the marketplace. Before internet the media had best access to the marketplace
2.      Problems – Digital divide: some people don’t have access to internet
a.       Hard to muddle through everything to get to the truth
b.      Sometimes it takes a long time for the good idea to prevail
c.       Vertical integration – same people who are putting out TV stories are the same people with ads on google
d.      NOTE: Internet Freedom Preservation Act: would put limits on the strategies that internet companies use to sell space on the internet
c.       Representative Democracy
                                                              i.      We want to promote informed decision making
                                                            ii.      Free flow of ideas provides for counter information, which allows people to hold lawmakers accountable
                                                          iii.      Helps stabilize society b/c it prevents uprising/revolt
                                                          iv.      Problems:
1.      Tendency to filter information through moral or preconceived lens – we like to look for information that confirms our own beliefs
2.      Ex. Why not force people to fill out a test in order to vote or force women to look at ultrasound before having an abortion? Some would say the information could be manipulated
d.      Government Distrust
                                                              i.      Idea of equality toward expression– gov’t shouldn’t single out certain disfavored messages, or give them unfavorable treatment.
                                                            ii.      1st amendment presumes that government doesn’t have the people’s best interests in mind and that there is an inherent bias motivating government decisions
                                                          iii.      Ex. Global warming report that was altered by an executive branch employee – made to look like global warming was still being debated
e.       Self-fulfillment and Individual Automomy
                                                              i.      1st Am should be read broadly to protect everyone’s idea of what might be art, politics, etc.
                                                            ii.      Acknowledging that some people like to watch certain kinds of movies, listen to certain songs, read certain articles (Ex: Playboy, protected under 1st Am.)
                                                          iii.      Something that is art to one person might not be art to another
f.       STEP #1 IN ANALYZING 1ST AM CASES: Content neutral vs. content based
                                                              i.      Content Based- a regulation that is based on the content; Look at the (1) text of the regulation; and (2) the justifications for the regulations.
1.      (1) Text- does the text single out certain messages for different treatment than other messages (ex: reg. that says you can’t picket at a military funeral and say God Hates Fags, but you can go and say “Go Lt. X”) can’t be one vs. the other.
2.      (2) Justifications- Must meet SS- the gov’t must have a compelling gov’t purpose, necessary, and narrowly tailored to serve a compelling government interest.
                                                            ii.      Content Neutral- Government regulations that are not based on content, but are directed to controlling the non-communicative effects of speech.
                                                          iii.      Example: You can’t burn something in a manner that might offend someone vs. You can’t burn a flag in a manner that might offend someone.
1.      Text: Does it matter what you’re burning? If no, it’s content neutral, if yes, you can’t burn something because it might offend someone, it’s content based.
2.      Justifications- Content based (SS); Content-neutral (intermediate): maintain public order/peace
g.      US vs. Playboy Entertainment, Inc. (invalid- doesn’t pass SS)
                                                              i.      Facts: Ord req’d that sexually-oriented program either be scrambled, blocked, or limited to certain time periods (10-6).
                                                            ii.      Step 1: Content neutral vs. content based
1.      Text: It singles out a certain type of programming (sexually-oriented)
2.      Justifications: Protecting Children, if they see this they’ll be scared/confused.
                                                          iii.      Step 2: Since it’s content based, apply SS:
1.      Govt Interest- protecting children (compelling- yes)
2.      Narrowly Tailored- NO- there’s other means to do this, the individuals can block it from their end, or regulate on house-by house basis (watch your kids)
h.      U.S. v. Stephens
                                                              i.      Facts- Statute criminalizes depictions of animal cruelty
                                                            ii.      Step 1: Content neutral vs. based
1.      Text: content based, distinguishes depictions of animal cruelty from any other depiction.
2.      Justifications: viewing this (ex: dog fighting) is going to destroy the moral fabric of society and the impact of seeing these things is harmful to the listener.
                                                          iii.      Problem w/ statute– this would also apply to hunting/slaughter videos (depending on how the jd defines animal cruelty).
I.                   INCITEMENT
a.      3 Situations where Incitement Arises:
                                                              i.      Speech or symbolic expression made in public
1.      Made by someone trying to get the crowd into a frenzy to engage in some illegal activity; also protests that start peaceably buy then protestors encourage others to engage in illegal activity (ex: assault, trespass)
                                                            ii.      Organization attempts to develop secret plans to overthrow the government
1.      An anarchist or terrorist group has designs to overthrow the US gov’t.
                                                          iii.      Publication or Dissemination of Materials that Romanticize Violence/Unlawful Acts
1.      Key: look at the speaker’s intent; protection is lost only when the speaker intends to incite the audience into likely, imminent unlawful acts.
b.      RULE: (Brandenburg)- Gov’t may not forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action.
c.       Schneck v. U.S. (CPD Test)
                                                              i.      Facts: 15,000 leaflets being handed out protesting the war; not likely those leaflets are going to cause the collapse of the government. (NOTE: we were at war, sometimes that changes the circumstances)
                                                            ii.      Clear and Present Danger- immediate and capable (likely to happen) ASK: whether the words are used in such a circumstance are of such a nature as to create a clear and present danger, and bring about the evils Congress has a right to prevent.
d.      Dennis v. United States (Risk Formula – Clear and present danger test)
                                                              i.      Facts: D’s punished pursuant to the Smith Act, enacted to combat growing fears about Communist spies in the US. Act criminalized the teaching or advocacy of destroying any government unit within the US by force/violence. Record shows that D planned to initiate violent revolution at an “opportune time.”
                                                            ii.      Formula- “Risk Formula”: As the danger increases there is going to have to be less of a likelihood it’s actually going to satisfy the test. (heavily deferential to gov’t)
1.      This is the clear and present danger test (Gravity – improbability = justification): question for the court
                                                          iii.      Rationale:
1.      Government shouldn’t have to wait until the Communist group is ready to attack before it acts
2.      Probability of success not a factor in whether the government should act, and it is irrelevant whether or not there is an attempt to overthrow
                                                          iv.      Dissent of Douglas:
1.      Talks about the dissent valve theory – things the Communists are a bunch of silly irritants
2.      Should be more of

without scientific data
f.       NY v. Ferber (Child Porn)
                                                              i.      Facts: D operates bookstore and sold 2 films to undercover cops depicting sex acts of kids
                                                            ii.      Generally, porno can only be banned if it’s obscene, but this case automatically makes child porno obscene without applying Miller. It’s just obscene.
                                                          iii.      Rule: The state has power to regulate child porn but may only prohibit visual depictions of sexual conduct.          
1.      To be valid statute, it has to:
a.       Ban visual depictions of specified age
b.      Define sex acts, and
c.       There has to be knowledge on the part of the D (most played out part in trial)
2.      Does not have to be patently offensive and doesn’t have to appeal to the prurient interest
3.      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.
                                                          iv.      Additional considerations by court:
1.      State has compelling interest in safeguarding the physical and psychological well-being of a minor
2.      Distribution of child porn is intrinsically linked to abuse
3.      Minors often partake in acts w/out knowing how their conduct will impact their lives.
                                                            v.      NOTE: Stanley doesn’t apply b/c even if viewing material takes place in privacy of own home, underage sex itself is a crime
g.      Ashcroft v. The Free Speech Coalition
                                                              i.      Facts: this dealt with an Act that extends the federal prohibition of child pornography to sexually explicit images that appear to depict minors but were virtually produced without using children.
                                                            ii.      SC said this was unconstitutional b/c it’s inconsistent with an essential 1st Am Rule: the artistic merit of a work doesn’t depend on the presence of a single explicit scene, the Act may not prohibit obscenity b/c it lacks the required link b/t it’s prohibitions and the affront to community standards prohibited by the definition of obscenity.
                                                          iii.      Gov’t may NOT suppress lawful speech as a means to suppress unlawful speech; the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted.
h.      Jenkins v. Georgia
                                                              i.      Facts: D was arrested for showing movie that was said to be obscene; SC found it was not.
                                                            ii.      Obscenity is a question for the jury; they don’t need to be instructed to apply national standards.
                                                          iii.      SC held that the film was not obscene, after watching it and distinguishing it from the definitions and examples given in Miller; the film didn’t depict sexual conduct in a patently offensive way.
                                                          iv.      Nudity alone is not enough to make material legally obscene under the Miller standards.
a.       Only been applied w/in the context of strip clubs and adult movie theatres. A speech regulation that appears content-based on its face should be treated as content-neutral if it is targeted at the secondary effects of the expression → intermediate scrutiny applies
                                                              i.      State Justifications- stabilize property, reduce the risk of crime, and reduce risks of STDs
b.      City of Renton v. Playtime Theaters (Secondary Effects Test)
                                                              i.      Secondary Effects Test: based on content (i.e. adult-oriented justifications)
1.      Ex) Strip Club in near the house–even if you like the message that adult oriented business give, you still may be concerned about the secondary effects of these businesses. (ex: property value, crime rate)
2.      The primary effect is the “message being given out” and the effect of the message on the viewer (you can be in favor of this), but you can still be concerned with the secondary effects that occur based on this primary effect.
3.      You can agree w/ the primary effect, but disagree that you don’t want this kind of activity and it’s consequences in your neighborhood.