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Constitutional Law II
University of Mississippi School of Law
Cochran, George C.

CONSTITUTIONAL LAW II
COCHRAN-FALL 2003
 
 
1st 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 to assemble, and to petition the government for redress of grievances.”
 
CHAPTER 11: FREEDOM OF SPEECH
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INCITEMENT
 
WORLD WAR I CASES: “CLEAR AND PRESENT DANGER” TEST:
 
Schenck- Courts can prohibit words used to create a clear & present danger of substantive evils.
Upheld conviction of men for handing out anti-war material to draftees violating the Espionage Act. Used the “clear and present danger” test: “whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
 
Frohwerk- Courts can forbid speech if it might lead to a harmful result, i.e. has a bad tendency.
upheld conviction of a man who set the type for a German newspaper read by German farmers, which encouraged draft riots. Court upheld conviction because it could kindle a flame.
 
Debs- Speech can be prohibited if it has the “natural tendency & reasonably probable effect” of a harmful result. Upheld conviction of Socialist party Presidential candidate for making speeches opposing the war and obstructing military recruitment. Court said words that have as their natural tendency and reasonably probable effect causing a harmful result can be proscribed.
 
Abrams- upheld conviction of Russian Jews who distributed pro-Bolshevik leaflets urging curtailment of the war effort. Clarified the clear and present danger test to provide that men can be charged with the effects that their acts are likely to cause even if such a result was not their intent. Focused on effect, not intent. HOLMES’s DISSENT is important where he talks about the importance of the free exchange of ideas. 
 
RED SCARE CASES
 
Gitlow, Whitney- States had enacted laws prohibiting the advocacy of criminal anarchy and criminal syndicalism, basically defining what is a clear & present danger, and many people were convicted under these laws; however, Gitlow and Whitney have both been overruled by Brandenburg – state legislature cannot determine what is a clear & present danger.
 
Fiske, Healy and Thompson- can’t be convicted without evidence of violence and violence can’t be imputed just because you’re a member of a group that in the past has been violent.
 
THE SMITH ACT PROSECUTIONS
(Smith Act prohibited organization to overthrow the US gov’t – anti-communist)
 
Dennis- upheld conviction of man for attempting to reorganize the Communist Party and advocating the overthrow of the U.S. government. The Court used the clear and present danger test and adopted Judge Hand’s balancing test: “the gravity of the evil, discounted by its improbability.”   This test has not been overruled even though it is very subjective: if the evil is grave and probably, then the Court will give more power to the government to proscribe it.
 
Yates- overturned conviction of member of Communist Party because he was merely advocating an abstract principle. Distinguished from Dennis by saying that the belief in something cannot be stopped, but the advocacy of bringing that thing about can be stopped. Abstract advocacy is O.K. Advocating action is not O.K.
 
Scales- upheld conviction of UNC student who was head of Communist Party for teaching others how to kill with a pencil. Passive membership is not enough to convict. Must prove:
(1)    actually a member
(2)    that the D knew of the illegal aims of the organization
(3)    Evidence of intent to carry out a crime.
 
Elfbrandt- AZ required public employees to take a loyalty oath. Loyalty oaths swearing you’re not a Communist are unconstitutional because you can be a member of the party and advocate all you want as long as you don’t have the specific intent to incite the unlawful goals.
            Membership convictions are constitutional only if there is:
(1)    knowledge of membership
(2)    specific intent to pursue unlawful goals
 
Lamont- invalidated law allowing post office to screen mail for Communist info. because there is a 1st Amendment right to receive information. Chilling speech.
 
MODERN INCITEMENT TEST
 
Brandenburg- overruled conviction of KKK leader who spoke in front of only 10 people. Speech advocating the use of force or crime can only be proscribed if the advocacy is directed to inciting or producing imminent lawless harm, and the advocacy is likely to incite or produce such actions. Test is:
(1)   D must have intent to incite
(2)   Threat must be imminent
(3)   Likely to occur
 
Hess- overruled conviction of anti-war demonstrator who said, “We’ll take the fucking street later.” Advocacy of illegal action at some future time is not sufficient…only words that will produce imminent lawless action. 
 
Claiborne- overruled conviction of Evers for speech about disciplining blacks who violated a boycott against white merchants. Names of blacks who went in white stores were read at church on Sundays, and some were harmed. Speech was protected because did not incite immediate, imminent harm.
 
Meow Media- school shooting victims’ parents sued movie and video game producers for encouraging violence. Suit dismissed because there was no intent to incite violence by the producers. If held liable would be “allowing freaks and misfits to control what the rest of the country can and cannot do, which would be the real harm.”
 
Rice- 4th Cir. upheld liability of book producers when man read book on how to be a hitman and killed someone. Publishers stipulated that they knew people who wanted to be hitmen would bu

d.
 
Cohen- overruled conviction of man who wore “Fuck the draft” t-shirt in the Courthouse. This speech was protected because it is merely OFFENSIVE SPEECH, which is protected because can avert eyes. No captive audience.
 
HOSTILE AUDIENCES
 
Feiner, Edwards, Gregory- cases involving whether the speaker can be silenced because of the reaction he will incite in an audience (i.e. protestors). 
Focus on the audience – if the speech is protected, there is a duty to protect the speaker from the crowd. Most times convictions are not upheld (except in Feiner, which has not been overruled). 
 
*The key in Feiner was that there was not enough police protection available to protect the speaker. Exception: when unable to control a crowd & the police cannot handle the problem, must arrest the speaker.
 
Cox- overruled conviction of man for encouraging protestors to sit at a segregated lunch counter. There was no threat of violence.
 
Kunz- overruled conviction of preacher for preaching on the street without a permit. Court held that the permit system was unconstitutional because is allowed impermissibly standardless discretion. You can’t stop someone from speaking just because the last time they did they said something outside of the 1st Amendment’s protection.
 
Forsyth County- invalidated ordinance requiring civil rights demonstrators to pay a $1,000 daily fee to cover costs that exceeded the usual cost of law enforcement. In effect were charging more for people who were likely to cause problems, and you can’t do this. However, 
 
Coalition on Abolition of Marijuana- you can charge a fee for administrative costs if applied uniformly.    
 
HATE SPEECH
 
R.A.V.- Overturned conviction of a man who burned a cross – he was convicted under statute that prevented symbols known to anger on the basis of race. Regulations of content-based speech will be struck down. Gov’t must regulate in a content neutral way. So even unprotected speech enjoys complete freedom from content-based regulation. 
The state may ban all fighting words, but it may not ban just those fighting words directed at the listener’s race, religion, etc.
 
Wisconsin v. Mitchell- limited the holding of R.A.V. to viewpoint-selective laws aimed expressly at otherwise unprotected words or symbols. Enhanced penalty for race-motivated crimes is O.K.