Constitutional Law II Outline

 I. Unprotected Speech
A. Incitement
●     Speech that incites people to violence
●     True threats of violence are unprotected no matter what
●     Early cases use “clear and present danger” standard and “reasonableness” test
●     Schenck, Frohwerk, Debs
○     tendency and intent
○     clear and present danger
●     Loose test- “little breath would be enough to kindle a flame”
●     Abrams v. U.S.: Justice Holmes dissent advocates for a stricter standard
○     Government should only curb speech when there is a serious threat
○     “imminent threat’
○     “present danger of immediate evil”
B. Criminal Syndicalism
●     Whitney, Dennis
●     Freedom of speech AND assembly
●     Whitney- rational basis test
●     Dennis
○     Risk formula- based on Hand formula- gravity of the evil, discounted by improbability
C. Modern Rule/ Fighting Words
●     Brandenburg v. Ohio
○     KKK leader arrested after videos of the group making speeches are shown on the local news
○     Rule:
1. Imminent lawless action
2. Speech must be directed to inciting imminent lawless action (intent)
3. AND likely to produce such violence
○     Definition of “imminent” is up to the discretion of the court
●     Cantwell v. Conn.
○     Jehova’s witness playing record on the street and advocating for the religion
○     Court overturned JW conviction under state breach of the peace act
○     JW was not trying to incite anyone to violence- expressing his view of religion
●     Chaplinsky v. N. H.
○     JW was distributing literature on the street and a disturbance broke out
○     As JW was being escorted away by a police officer he called the city marshal a “racketeer” and “Fascist”
○     SC upheld his conviction under breach of peace law
○     Justice Murphy’s unprotected categories:
■     lewd and obscene
■     profane
■     Libelous
■     insulting
■     fighting words
○     Name calling was seen as fighting words
○     “narrowly defined words that by their very utterance inflict injury or tend to incite an immediate breach of the peace”
○     Wholly excludes fighting words from free speech protection
○     Also somewhat of a balancing test- do the words have social value?
●     Cohen v. C.A.
○     Protester wore a jacket in the county courthouse with the phrase “fuck the draft” on it
○     The location did not matter (courthouse)
○     Revises the Chaplinsky list by eliminating profanity and the “by their very utterance” provision
○     Narrows the application to instances when the words would actually provoke violence
○     The profanity was not directed at a particular listener to incite them to violence- also listeners could avert their eyes if offended
●     Gooding v. Wilson
○     Statute was interpreted too broadly; swept in protected speech not covered by fighting words under Chaplinsky
●     Chaplinsky- some categories MUST be unprotected- some speech has such slight social value so the infringement on constitutional rights is justified
 
D.Hostile Audiences
●     Teminiello v. Chicago
○     Court reversed breach of peace conviction for an abrasive speaker
○     Constitutionally protected speech often invites dissent and anger among listeners
○     has to be
●     Feiner v. New York
○     Court upheld conviction under breach of peace, disorderly conduct
○     J. Black Dissent: Police have a duty to first protect speakers who are expressing unpopular views to a large crowd, before suppressing the speech
●     Trend in modern cases is to protect the speaker
○     Court’s view changes in the 60’s with increase in civil protest
○     Edwards v. South Carolina; Cox v. Louisiana; Gregory v. Chicago
 
II. Libel
●     Beauharnais v. Illinois
○     Allows state laws against group libel- libel is not within Constitutional protection
○     group libel- statements made against a particular racial, ethnic or minority group
○     Broad expansion of traditional libel
○     Never formally overruled
●     New York Times Co. v. Sullivan
○     Black civil rights groups took out an ad which claimed that the police forces in the South were engaged in a “wave of terror” against nonviolent civil rights protesters in the South
○     Sullivan- AL police commissioner sued for libel
○     Issue: Do Constitutional protections on free speech limit state power to award damages in libel cases
○     AL libel statute put burden of proof on the defendant and presumed compensatory damages
○     SC holds AL statute unconstitutional
○     Plaintiff/public official must prove actual malice to recover damages
■     Knowledge that statements were reckless or false
■     Clear and convincing evidence
○     Makes libel partially protected- if it is unintentional, no actual malice
○     Court does not want to risk chilling free speech
 
Libel Chart
Liability     Truth/ falsity     Presumed Dam    Punitive Dam
 
Political official.     Actual malice. P- burden.
Public figure.         AM.                 P-burden.
Priv. fig/Pub mat.   At least neg.   P-burden.          N. Unless AM        N unless AM
Priv. Fig/ Priv mat.                                                        Y.                           Y
 
●     Curtis Publishing Co. v. Butts/ Associated Press v. Walker: extended the NY TImes rule to “public figures”
○     Court has construed the definition of “public figure” narrowly- must be someone of widespread notoriety, has an influence or prominence in affairs of society, thrust themselves or their views onto society
●     Gertz. v Robert Welch Inc.- overruled Rosenbloom- private figure involved in a public matter can recover for libel
●      
III. Hate Speech
 A. Early Cases
●     Skokie Cases: held unconstitutional a number of ordinances that would have prohibited Neo Nazis from holding a demonstration in Chicago
○     Did not formally overrule Beauharnais ruling permitting state statutes against group libel
B. Modern Rules
●     R.A.V. v. City of St. Paul
○     Held ordinance unconstitutional because it was content-based
○     Content-based = presumptively invali