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Constitutional Law I
University of Dayton School of Law
Conte, Francis J.


· Introduction
o Free speech stems from 1st Amendment (Duh!)
§ “Congress shall make no law . . . abridging the freedom of speech, or of the press . . .”
o Application
§ Applies to federal gov’t (by Amendment) and state gov’t (14th selective incorporation of Bill of Rights)
§ Does not apply to private organization or business
· Values of Free Speech
o Promotion of Truth
§ Truth and opinion lead to the whole truth through a clashing of ideas and debates on topics
§ Freedom to think as you will and to speak as you think are indispensable to discovery and spread of truth
§ Marketplace of Ideas (promote education and spread of information)
o Self Government
§ All other rights are protected by right of free speech (essential to representative gov’t)
§ Functions of free speech in Self-Governance
· Encourages broad debate → informs and improves the making of public policy
· Free speech prevents gov’t from entrenching itself → allows political change
· Prevents abuse of power
· Promotes political stability → safety valve for keeping dissenters under control (no martyrs)
o Autonomy
§ Free speech is critical to individual speakers and listeners
§ Promotes individual autonomy (individualization)
· Types of Restrictions
o Content-Based
o Content-Neutral
o Time, Place, and Manner
· Categories of Speech (Protected and Unprotected)
o Incitement
§ Defined
· Speech that encourages (incites) others to violate the law
· Law violation not targeted at speaker (burn draft card, oppose gov’t, overthrow gov’t, etc)
· Not speech that will spark violence against the speaker (fighting words below)
§ Considerations
· How inciteful does it have to be (what is being advocated)
· Who must it be directed at (audience)
· What is actually said (circumstances)
· How strong is the advocacy (towards theory or actual violence)
· Does it advocate imminent lawless action
· Is lawless action likely to follow (probability)
§ Spectrum over time
· Most Protectionß———————————————————————–àLeast protection
· 5.Brandenberg 1.Masses 2.Clear & Present Dgr 3.Bad Tendency 4.No protection
§ Current Test
· Brandenberg: Speech prohibition valid if it targets speech that;
o 1) Advocates the use of force (directly inciteful); and
o 2) Directed towards inciting imminent lawless action (intent); and
o 3) Is likely to incite or produce such action (immediacy)
· Most protective of the tests
o Must have all three
· Brandenburg v. Ohio (1969) [Created Brandenburg Test] o Facts
§ KKK convicted under Ohio Code for advocating reform through violence at a rally that was taped by a Cincinnati reporter
o Court (per curiam)
§ Court overturned conviction
§ Test for valid sp

ations (Cohen Balance test)
· What was said (how abusive was it)
· Who was it aimed at (face to face or general expression to public)
· Where was it done (public place or private area)
· Why was it done (political speech or to offend listener and lead to breach of peace)
· What was likely response (lead to imminent lawless action or not)
· Chaplinsky v. New Hampshire (1942) [Chaplinsky lays foundation for fighting words test] o Law
§ Forbid addressing “offensive, derisive or annoying word to any other person who is lawfully in any street or other public place…”
o Facts
§ Jehovah’s Witness distributing literature on streets, led to restless crowd, disturbance broke out, police escorted Chaplinsky away who then called City Marshall a “God Damned racketeer” and “damned Fascist”
o Court (MURPHY)
§ Unanimously upheld conviction
§ Test for prohibiting fighting words
· 1) Likely to provoke an average person to retaliation
· 2) Face to face confrontation
· 3) Tend to incite an immediate breach of the peace
· 4) Very words themselves cause the harm
§ Why allowed to prohibit fighting words