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Constitutional Law II
University of Mississippi School of Law
Nowlin, Jack Wade

CON.  LAW II – Nowlin (2005)
What does 1st Amendment Freedom of Speech Mean?
Blackstone view:  no prior restraints, but subsequent punishment OK
Madisonian view:  about freedom of political speech
Federalism view:  federal gov’t has no power at all to regulate speech (b/c says “Congress shall not”)
Reasons for Freedom of Speech
Search for truth – Marketplace of Ideas – a competition of speech to allow truth to win out
Self Governance – Democracy – Free discussion of political ideas
Individual Freedom – Self Fulfillment and Autonomy
Bad Tendency test:
-elements: requires bad tendency intent, but intent can be presumed from the natural and probable consequences of one’s act
            -not much speech protected under this test
Masses Publishing
Express Incitement test (Learned Hand)
            -elements: express language of incitement to break the law can be limited
            -good:  (1) more protective of speech than bad tendency test
-bad: (1) fails to punish dangerous speech if sarcasm/similar devices used
(“she’s a good person because she avoids the draft”)
                     (2) punishes speech which is not dangerous (“you should jaywalk”)
Clear and Present Danger test
            -elements:              (1) probability of danger occurring (clear)
(2) imminence of danger occurring (present)
(3) danger
(4) speaker’s express advocation of doing something bad
(5) speaker’s intent that the danger occur
– Under clear and present danger analysis, the government punishes a speaker for inciting a listener to engage in illegal activity.
            -good:  (1) more protective of speech than bad tendency test
            -bad:              (1) completely open ended test
(2) restricts speech when a group gains strength
-CPD test in Schenk applied like Bad Tendency test, and the Court used the Bad Tendency test a week later in Frowerk and Debbs
            -used the Bad Tendency test, but got an important dissent from Holmes
-Holmes argues that CPD test requires (1) that the danger really be clear and present and (2) that intent be real, not presumed intent like in bad tendency
-historical justification:  Madisonian view is right and political
                 speech should be protected
-policy justification:   test protects the free market place of ideas
Reasonableness test
-CPD test does not apply if the state legislature has statutorily proscribed a certain type of speech.  Instead the court will defer to the legislature as long as the statute is reasonable.  The reason for the reasonableness test is that the legislature has already performed a CPD test.
                        -dissent: Holmes, same as above
-applies Gitlow reasonableness test
            -dissent: Brandies
                        -endorses Holmes CPD test, but with the following clarifications:
                                    -danger must be serious (not trivial)
-danger is imminent when there is little or no time for
                                    -policy reasons: (1) endorses the free market place of ideas reason
-Brandies adds:  remedy for bad speech is more speech and speech should only be limited in the emergency situation when there in no time for counter-speak
   (2) freedom of speech protects democracy through   
political speech and self governance (i.e. speech serves as a check on government)
Balancing test (Court also calls this test the CPD test)
            -elements: gravity of harm x probability of harm v. value of speech
            -overrules Gitlow
            -bad: least protective test of freedom of speech
Brandenburg test
            -elements:             (1) speech directed towards
                                    (2) producing
                                    (3) imminent
                                    (4) unlawful activity
                                    (5) and likely to produce imminent, unlawful activity
(1) probability of danger occurring (clear)…………            (5)
(2) imminence of danger occurring (present)………..(3)
(3) danger……………………………………………(4)
(4) express advocation of doing something bad…….(1)
(5) speaker’s intent………………………………….(1)
POST BRANDENBURG (interpreting the element of imminence)
            “we’ll take that fucking store later!”
                        -not imminent because could mean restraint
NAACP v. Claiborne Hardware
            “if you break

Elements 1-3 considered in light of the good faith of law enforcement to protect the speaker and maintain order
Express Language
About the speaker  getting someone so mad that they want to breach the peace or beat you up
Fighting Words Doctrine
            -elements:             (1) Insults
(2) likely to provoke an average member of the community to 
      breach the peace or brawl
(3) directed at an individual or small group and about the  
      individual or small group
(4) face-to-face
            -unprotected speech (doesn’t apply CPD, rather bright line rule)
                        -reasons:  (1) low value speech b/c no part of exposition of ideas
                                        (2) harmful b/c likely to provoke breach of the peace
Merely solicitation of a crime with absolutely no exposition of ideas
-unprotected speech
-however, there might be some confusion about when to apply PCS and when to apply Brandenburg
            -apply Brandenburg when speaker:            (1) before crowd
(2) has no mens rea (intent) for the crime (e.g. b/c only political hyperbole)
                                                                        (3) speech involves exposition of ideas
-apply PCS when speaker:                       (1) before individual or small group
                                                                        (2) has mens rea for crime
                                                                        (3) speech involves no exposition of ideas
                        -beware grey area:   -how large/small a group?