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Constitutional Law II
Villanova University School of Law
Moreland, Michael P.

Moreland_ConLawII_ Fall_2013

Chaplinsky v. New Hampshire

Brief Fact Summary. Chaplinsky was convicted under a State statute for calling a City Marshal a “God damned racketeer” and a “damned fascist” in a public place.

Facts. A New Hampshire statute prohibited any person from addressing any offensive, derisive or annoying word to any other person who is on any street or public place or calling him by any derisive name. Chaplinsky, a Jehovah’s Witness, called a City Marshal a “God damned racketeer” and a “damned fascist” in a public place and was therefore arrested and convicted under the statute.

Issue. Did the statute or the application of the statute to Chaplinsky’s comments violate his free speech rights under the First Amendment of the Constitution?

Synopsis of Rule of Law. “Fighting words” are not entitled to protection under the First Amendment of the United States Constitution

Held. No. The lower court is affirmed.

Considering the purpose of the First Amendment of the Constitution, it is obvious that the right to free speech is not absolute under all circumstances. There are some narrowly defined classes of speech that have never been protected by the First Amendment of the Constitution. These include “fighting words,” words that inflict injury or tend to excite an immediate breach of the peace. Such words are of such little expositional or social value that any benefit they might produce is far outweighed by their costs on social interests in order and morality.

The statute at issue is narrowly drawn to define and punish specific conduct lying within the domain of government power. Moreover, the Supreme Court of New Hampshire, which is the ultimate arbiter of the meanings of New Hampshire law, has defined the Statute as applying only to “fighting words”. Therefore, the Statute does not unconstitutionally impinge upon the right of free speech.

Discussion. By holding that “fighting words” are not protected forms of speech the Supreme Court of the United States (Supreme Court) announced a rare form of content based restriction on speech that is permissible. The student should consider what characteristics distinguish a “fight word” from a bona fide criticism. One difference may lie in the speaker’s intent. “Fighting words” are intended to inflict harm, bona-fide criticisms are intended to communicate ideas. Another difference may lie in the differing likely effects of each: “fighting words” are likely to provoke the average person to violence while bona fide criticisms are not.

Categorical content-based exclusions from first amendment protection:

1. Fighting words:

Inflammatory words that are either injurious by themselves or might cause the hearer to immediately retaliate or breach the peace. Use of such words is not necessarily protected “free speech” under the First Amendment. If the hearer is prosecuted for assault, claiming fighting words may establish mitigating circumstances.

2. True threats

3. Defamation and false statements of fact:

Limits placed on libel and slander attach civil liability and have been upheld by the Supreme Court. The Court narrowed the definition of libel with the case of Hustler Magazine v. Falwell made famous in the movie The People vs. Larry Flynt. Making false statements in “matters within the jurisdiction” of the federal government is also a crime.

4. Commercial Speech:

Restrictions on commercial speech, defined as speech that “propose[s] a commercial transaction”, is subject to a lower level of scrutiny than other speech, although recently the court has taken steps to bring it closer to parity with other speech. In Central Hudson Gas & Electric Corp. v. Public Service Commission, the Supreme Court developed a four-part test to assess the constitutionality of a law restricting commercial speech. If this test is satisfied, the law will be upheld:

a. The speech regulated is fraudulent, misleading, or proposes an illegal transaction; or

b. All of the following elements are present:

– The government’s interest in regulating the speech is substantial;

– The restriction directly advances the government interest; and

– The restriction is no more extensive than necessary to advance the government interest.

This is why the government can ban advertisements for cigarettes and false information on corporate prospectuses (which try to sell stock in a company).

5. Obscenity and child pornography:

Obscenity, defined by the Miller test by applying contemporary community standards, is one exception. It is speech to which all the following apply: appeals to the prurient interest, depicts or describes sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value. (This is usually applied to more hard-core forms of pornography.)

6. Crime-facilitating speech.

Brown v. Entertainment Merchants Association (2011)

Facts of the Case

Associations of companies that create, publish, distribute, sell and/or rent video games brought a declaratory judgment action against the state of California in a California federal district court. The plaintiffs brought the claim under the First and Fourteenth Amendments seeking to invalidate a newly- enacted law that imposed restrictions and labeling requirements on the sale or rental of “violent video games” to minors. The district court found in favor of the plaintiffs and prevented the enforcement of the law.

On appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed, holding that: (1) violent video games did not constitute “obscenity” under the First Amendment, (2) the state did not have a compelling interest in preventing psychological or neurological harm to minors allegedly caused by video games, and (3) even if the state had a compelling interest, the law was not narrowly tailored enough to meet that objective.


Does the First Amendment bar a state from restricting the sale of violent video games to minors?


Decision: 7 votes for Entertainment Merchants Association, 2 vote(s) against

Legal provision: First Amendment

Yes. The Supreme Court affirmed the lower court order in an opinion by Justice Antonin Scalia. “Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.” Justice Samuel Alito concurred in judgment, joined by Chief Justice John Roberts. Alito noted that he disagreed “with the approach taken in the Court’s opinion. In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology.” Justices Clarence Thomas and Stephen

efore, the state’s interest in preserving the flag as a symbol of nationhood does not justify Defendant’s conviction because it is not consistent with the First Amendment of the Constitution.

Dissent. It was for Defendant’s use of this symbol, not the idea that he sought to convey for which he was convicted.

The interest of preserving the flag as a symbol of nationhood is legitimate and justified the Defendant’s conviction.

Discussion. This case resulted in battle lines being drawn between those in Congress who wanted to amend the Constitution to permit restraints on flag desecration and those who supported new legislation rather than constitutional amendment.

Reasonable, Neutral Time, Place, and Manner Regulations

Renton v. Playtime Theatres, Inc.

Facts: A city ordinance limited adult entertainment establishments to one corner of the city occupying less than 5% of the city’s area.

Holding: The ordinance is constitutional. A state’s interest in regulating the secondary lad use effects outweighs the less vital first amendment interest in uninhibited exhibition of material that borders on obscene.

Reasoning: The ordinance is content-neutral. The ordinance is a time, place and manner restriction because it doesn’t ban adult theatres all together, it just bans where they can set up shop. The ordinance can pass if it serves a substantial governmental interest and doesn’t unreasonably limit alternative avenues of communication.

There is an interest in preserving property rates and reducing crime in populated areas, and the state leaves an area open for adult entertainment use. So it passes the test.

Judgment: Constitutional

Brennan dissent: The ordinance isn’t content-neutral because it doesn’t regulate similar establishments like adult bookstores, massage parlors, other motion picture theatres, etc. Further, there is no reasonable alterative avenue of communication (the corner of the city that adult entertainment clubs can use doesn’t have any open lots).

Class 5 reading notes: Incitement, subversive advocacy, and threats.

Brandenburg Test: The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of criminality except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

– “directed to” (an intent of the speaker element?)

– “inciting or producing” (words as triggers to action; not pure advocacy)

– “imminent” (no time for “answering speech” or intervening reflection?)

– “lawless action” ( of any kind? No matter how harmful the legal violation may be?)

– “and likely to produce such action” (probability of harm)