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First Amendment
University of North Carolina School of Law
Marshall, William P.

First Amendment

Professor Marshall

Fall 2010


· Expression that Induces Unlawful Conduct (Subversive Speech)

o Shaffer, Masses, and Schenck

§ Shaffer: Violation of Espionage Act of 1917, mailed a book which contained “treasonable, disloyal, and seditious utterances”

§ Question of “whether the natural and probable tendency and effect of the publication are such as are calculated to produce the result condemned by the state”

§ Evidence to show “hostile attitude of his mind,” “books were intentionally concealed on premises,” “must be presumed to have intended the natural and probable consequences of what he knowingly did”

§ Masses: Denial of mail access for monthly revolutionary journal under Espionage Act of 1917

§ Learned Hand: Cannot restrict speech unless there is a specific intent; Uses a Criminal standard of intent, not a quasi tort standard as inSchenkandDebs

§ Schenck: Circulation of anti-recruitment and enlistment materials

§ Cannot incite people to commit illegal acts.

§ Circumstances matter – constitutional regulations of speech in wartime may be unconstitutional during times of peace.

§ Requires an intent (but intent may be inferred).

o Frohwerk, Debs, and Abrams

§ Frohwerk: preparation and publication of a series of articles in a German-language newspaper

§ Under circumstances of war, “the circulation of the paper was in quarters where a little breath would be enough to kindle a flame and that fact was known and relied upon by those who sent the paper out”

§ Debs: Socialist party leader convicted of attempting to obstruct the recruiting and enlistment service of the United States.

§ Intent required (inferred, once again)

§ Requires that speech has a natural tendency and reasonable probable effectto break the law (obstruct recruitment).

§ Abrams: Russian immigrants, self-proclaimed socialists and anarchists, distributed anticapitalist leaflets.

§ Intent must be construed narrowly; proximate cause.

§ Only if true clear and present danger that’s imminent.

o Gitlow and Whitney

§ Rational Basis review of State Sedition Laws

§ If the legislature determined that speech is dangerous, defer to their judgment in all but extreme cases

§ Must be rationally related

o Dennis v. United States

§ Refined clear and present danger (Brandeis/Holmes approach in Whitney)

§ Only an emergency may justify suppression

§ Must be:

§ VERY LIKELY that there is an


§ VERY SERIOUS DANGER to the country

o Brandenburg v. Ohio (current law)

§ Intent – advocacy must be subjectivelydirected to incite violence

§ Danger must be imminent

§ Immediate violation of the law must be likely to occur.

· Expression that Provokes a Hostile Audience Reaction

o Cantwell v. Connecticut

§ Jehovah’s Witness playing a phonograph record attacking Roman Catholic church to passersby on the street

§ On public street, asked pedestrians permission to play record for them, did not distrub residents, draw crowd, or impede traffic.

§ Did not amount to a breach of the peace: “no assault or threatening bodily harm, no truculent bearing, no intentional discourtesy, no personal abuse.”

§ Hostile Audience problem: Suppress speech because audience may react against the speaker?

o Feiner v. New York

§ Person on loudspeaker in public street drawing a crowd, “gave the impression he was endeavoring to arouse the Negro people against the whites”

§ Asked by police to step down, refused, was then arrested

§ Police had a duty to prevent the clear and present danger of riot, disorder,interference with traffic, speaker had crossed from argument and persuasion to undertake incitement to riot

§ DISSENT (Black): Facts do not show imminent threat, police can only interfere with lawful public speaker if they have first made all reasonable efforts to protect.

o Chaplinsky v. New Hampshire

§ Jehovah’s Witness, distributing literature and yelling at patrons of city hall, calling them racketeers and Fascists.

§ Establishes “low value” speech: lewd and obscene, the profane, the libelous, and the insulting or “fighting words”

§ Purpose of statute was to preserve public peace, no words forbidden except such as have a direct tendency to cause acts of violence by the persons to whom, individually, the remark is addressed.

o Current Fighting Words Doctrine:

§ Language must be such that would induce a reasonable person to respond with immediate violence. (Chaplinsky)

§ State must assert and prove that there was a danger of imminent Danger (Skoki-Nazi March Case)

§ Must be directed at some individual (Cohen– Fuck the Draft)

· Libel and Privacy

o New York Times v. Sullivan

§ If plaintiff is a public official running for public office, defamation is limited to clear and convincing evidenceof the falsity of the statementsand actual malice(defendant either knew statement was false or acted with reckless disregard of the truth)

§ Statements in Times advertisement against Montgomery police treatment of civil rights demonstrators were false, but not made with actual malice (false statement is inevitable in free debate, and must be protected to give free expression “breathing space”).

§ Who is a public official? “at the very least… those among the hierarchy of government employees who have, or appear to the public to have substantial reponsibility for the control of government affairs” (Rosenblatt).

§ Appellate courts must perform de novo independent review for “convincing clarity” of the evidence

o Other Libel Cases

§ Curtis v. Butts

§ Public figures v. public officials: Allegations directed at a football coach at a state university, employed by private corporation administrating athletics.

§ Plurality opinion: “the public interest in circulation, and publisher’s interest in circulating, not less than that involved in Times”

§ Plurality would have allowed public figures to recover with less than proof of actual malice, but majority rejected. Same standards apply.

§ Gertz v. Welch

§ Distinction between expression of opinion and false statement of fact: “…there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact.”

§ Milkovich: “a statement on matters of public concern must be provable as false before there can be liability under state defamation law”

§ Figures who are neither officials nor otherwise public: While private figures should be more entitled to defamation recovery, as they have less access to the public attention to counteract false claims, defining who is and is not a public figure is more difficult.

§ “For the most part, those who attain this status have assumed roles of especial prominence in the affairs of society”

§ Gertz, a lawyer attacked by the John Birch society, held to be private figure, because he was not thrust into the public spotlight of his own accord.

§ Dun & Bradstreet v. Greenmoss

§ Credit reporting agency filed false report that construction contractor was declaring bankruptcy

§ Court determined that the figure in question and subject of the suit were not sufficiently public in nature, and thus there was no need to show actual malice, that state interest supports awards of presumed and punitive damages.

§ Hustler Magazine v. Falwell

§ Falwell sues for libel and intentional infliction of emotional distress based on parody advertisment in Hustler

§ Jury rejects libel claim, as ad could not be construed to contain actual false claims, but found in Falwell’s favor on emotional distress

§ Supreme Court reversed: “public figures as well as public officials will be subject to ‘vehement, caustic, and unpleasantly sharp attacks'” in the course of public debate, can’t hold figures accountable for their expression, even if it was intended to cause distress in its subject.

o Cox Broadcasting Corp v. Cohn

§ Is there cause of action for damages for invasion of privacy caused by the publication of the name of a deceased rape victim which was publicly revealed in connection with the prosecution of the crime?

§ Court says no, based on the fact that the paper was publishing accurately information made public in the courtroom

§ By making the information public in open court, the presumption of the public interest is established.

§ Florida Star v. BJF: Invalidates Florida statute declaring it unlawful to “print, publish, or broadcast in any instrument of mass communication” the name of the victim of a sexual offense, as applied to a publisher who had obtained the name from a publicly released police report.

· Offensive Speech

o Cohen v. California

§ Cohen in corridor of LA County Courthouse wearing “Fuck the Draft” jacket, no actual violence involved

§ Can California excise, as “offensive conduct,” one particular epithet from the public discourse based on its inherent likelihood of causing a violent reaction, or a more general assertion that the States may act as guardians of the public morality?

§ No evidence that substantial numbers of citizens are ready to lash out violently at the presence of profanity in public space, not directed at any individul

§ Immediate consequences of this freedom are verbal tumult, discord, and offensive utterance, all necessary price to preserve greater liberties of open debate

§ Court cannot pass accurate judgment, “one man’s vulgarity is another man’s ly

t obscenity is a category of speech unprotected by the First Amendment, “implicit in the history of the First Amd. is the rejection of obscenity as utterly without redeeming social importance”

§ Not synonymous with sex, but rather material dealing with sex in a manner appealing to the prurient interest, “having a tendency to excite lustful thoughts”

§ Developments, 1957-1973

§ In 13 obscenity cases decided in the decades after Roth, there were a “total of 55 separate opinions among the justices”:

§ Initial Roth formulation

§ Government wholly powerless to regulate sexually oriented expression on the ground of its obscenity

§ States have broader authority to regulate obscene expression than the federal government, which can restrict only “hard core pornography”

§ Limited entirely to “hard core pornography,” definition of “I know it when I see it”

§ Three elements coalesce:

§ Dominant theme appeals to a prurient interest in sex

§ Patently offensive because it affronts contemporary community standards

§ Utterly without redeeming social value

§ Ginzburg v. United States: Question of obscenity may include consideration of the settings in which publications were presented

§ Doctrine of Variable Obscenity:

§ Power of the state to control children is greater than its power over adults.

§ Parents entitled to the support of the laws in their social duty to raise their children

§ State has an independent interest in the well-being of its youth

§ Redrup: Per curiam reversals of convictions for materials that at least five members of the Court, applying their own standards, found not to be obscene.

§ Stanley v. Georgia: Private possession of obscene matter cannot constitutionally be made a crime, the right to receive information and ideas regardless of social worth is fundamental to a free society, and criminalization based merely on obscenity classification is a drastic invasion of civil liberties

§ Reidel: S.C. upholds statute prohibiting the use of the mail for the delivery of obscene matter, still illegal to do business in the trade of obscenity.

§ Miller v. California

§ Reaffirms Roth in holding that obscene material is not protected by the First Amendment

§ Obscene material can be regulated by the states, subject to specific safeguards, without a showing that it is “utterly without social value”

§ needs only to lack “serious literary, artistic, political, or scientific value”

§ Obscenity is to be determined using “contemporary community standards”

§ Paris Adult Theater I v. Slaton

§ Obscene material is not immune from state regulation when exhibited for consenting adults only.

§ Other legitimate state interests at play, including public quality of life and total community environment.

§ Reasonable to draw a connection between antisocial behavior and obscene material

§ No fundamental privacy right implicit in the concept of ordered liberty to watch obscene movies in places of public accomodation

§ Conduct involving consenting adults is not automatically immune from state regulation

§ Obscenity Post-Miller

§ New York v. Ferber

§ Upheld prosecution of adult bookstore owner for sale of two films depicting young boys masturbating.

§ Pornographic depiction of children, like obscenity, is unprotected by the First Amendment:

§ State’s interest in safeguarding the physical and psychological well being of a minor is compelling

§ Distribution of such material is linked to sexual abuse of children, creating a permanent record that is more damaging when circulated

§ Advertising and selling of child pornography provides an economic motive for the production of such material

§ Value of permitting live performance and photographic reproductions is exceedingly modest

§ Not a decision incompatible with earlier rulings