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First Amendment
Wayne State University Law School
Sedler, Robert A.

Law of the First Amendment Outline

Winter 2017

Prof. Sedler

Introduction: The Law of the First Amendment. “The ‘Law of the First Amendment’ Revisited pp.1004-1012; What Speech is Not Protected: Advocacy of Illegal Action pp. 3-4, 46-54; Reputation and Privacy
pp. 54-78, Supp. pp.2-7

History of 1A law:

Most would say the body of law is complex and conflicting, but Prof. Sedler thinks otherwise.
Components of the law of the 1A: Concept, principles, doctrines and precedents.

1A recognized beginning around the 1920s.
Concepts, principles, doctrines and precedents establish the parameters for the 1A issue and the result follows.

I.e. time, place and manner doctrine applies to Nazi parade hypo.

Not everything that is spoken or written is freedom of speech within 1A. Gov’t must justify restriction on freedom of speech, but not a verbal act.

Example: Yelling fire when there isn’t a fire. Doing that is a verbal act or inducing conduct.
Counter-example: Trying to express an idea.

No such thing as the gov’t being able to declare that something is true, i.e. hate speech. Different from the rest of the world, where hate speech is prohibited.
Limitations on freedom of speech

Hypothetical: Nazis want to have a parade down Woodward Ave in Detroit. How can we stop them?

The city can’t stop some parades and allow others.
Can control what time and day the parade happens. Known as reasonable time, place and manner.

Must be neutral, reasonable and reasonable alternative avenues of communication.

Analysis:

Is the speech protected by the 1A?

Child pornography and obscenities are not protected.

Whether the limitation the gov’t wishes to impose is permissible under the 1A.

The reason we have the 1A:

Dissent and social change function. “Peaceful revolution.”

Began with opposition to the Vietnam War and draft.

Right of the speaker to convey ideas.
Right of the public to receive information.

Advocacy of Illegal Action

Began with resistance to the draft during WWI.
The “clear and present danger” doctrine: Speech not protected by 1A if it presented a clear and present danger.

Result was courts upheld laws banning speech advocating for illegal action under this doctrine.
1960s: Many of these laws were struck down.

Response to advocacy of illegal action was Brandenburg-type laws.
Brandenburg- The “void on its face” doctrine

Facts: Klansmen hold meeting advocating violence against Jews and Black people.
Holding/Rule: Court redefines “clear and present danger” doctrine. Speech must produce imminent lawless action. OK to advocate illegal action until it becomes imminent.

Court doesn’t rule on whether B’s conduct was protected, rather, it decides the law that convicted him was unconstitutional for “overbreadth.” Creation of the “void on its face” doctrine.

Result: Laws can only prohibit illegal action that’s imminent or likely to be imminent.

Hess v. Indiana: Speech saying that students would illegally block the street after the police were gone was unlikely to produce imminent lawless action.
Solicitation of an illegal act is not protected, but what about threats? Can only prosecute true threats (offer you can’t refuse).

Hypo: Neighbor puts burning cross on black family’s lawn. Is it protected?

Can’t say whether true threat without more information.

The “void on its face doctrine”: Laws struck down for overbreadth because it prohibited conduct protected by the 1A.

Overriding concept for the course is to stop laws regulating speech from having a chilling effect on 1A activity.
Example of “overbreadth” laws: laws requiring individuals to take oaths not to overthrow the gov’t.

Reputation and Privacy pp. 81-105; Obscenity
pp. 116-141

Defamation

NYT v. Sullivan

Rule: Public officials cannot sue for defamation unless they can prove the statements were made with actual “malice.”

“Malice” meaning knowing the statements were false or reckless disregard for truth or falsity.

Theory is that we want to keep channels of communication open.

Public figures: People who voluntarily make themselves known to the public.
Damages: cannot impose punitive damages unless malice is found.

Emotional Distress

Hustler Magazine

VA court held that article publish constituted IIED.
Holding: SCOTUS reverses. P was a public figure, so Sullivan applies. P could not recover because magazine did not state P’s relationship with his mother was factual. Interview was a parody.

Synder v. Phelps

WBC protests military funerals with inflammatory signs. Father of dead Marine sues for IIED.
Holding: Picketing was protected speech because it was done in public.
Can the picketing be banned?

Maybe, would have to be very narrow so it is not a blanket ban on picketing. Perhaps ban picketing during the funeral but not before and after.
Could not violate the “reasonable place, time and manner” doctrine.”

Gov’t cannot proscribe what is true or not. Speech needs to be harmful to recover.
Disclosure of private facts

Doctrine: if a newspaper lawfully obtains truthful info about a matter of public significance, then the state cannot ban publication unless the state is furthering an interest of the highest order.
Florida Star v. B.J.F.

F

s a clear and present danger. Holding is not good law, though. Police have responsibility to protect speaker.
Ct tries to distinguish itself in Edwards v. South Carolina (pp. 147). Police protection was ample and there was no clear and present danger.

It’s assumed that police can protect speaker from hostile crowd.

Cohen: Cohen was jailed for writing “Fuck The Draft” on jacket and wearing it in a courthouse.

Rule: Emotive speech is protected.
Rationale: No incitement to break the law. The word “fuck” was used to advocate for end of the draft, not to invite anyone to fight.
Harlan: Speech should be allowed in the marketplace of ideas, meaning ideas can compete with one another.

Content neutrality.
As far as 1A is concerned, there are no lies. Up to the people to decide.
Concern is not all ideas carry the same weight, i.e., newspapers vs. bloggers.

Gooding v. Wilson/ Lewis v. New Orleans pp. 153: GA statute prohibiting vulgar speech not likely to incite violence struck down for violating 1A.

Should New Categories Be Created? pp. 154-206

Should new categories be created

REMINDER: Only form of speech not protected is obscenity; Miller test is very narrow.
Harm to children and the overbreadth doctrine

General Rule: There is no right to viewing CP.

State has an interest in prohibiting CP to children from being harmed.

NY v. Ferber: NY CP prohibition upheld.

Gov’t objective in protecting children surpasses 1A protection.
White relates overbreadth doctrine to chilling effect on protected speech. Here, law’s violation of OD would not be substantial in relation to the CP law’s sweep.

Example: Ban’s effect on CP that has scientific value is small part of the law’s overall effect.

Massachusetts v. Oakes pp. 161: CP needs to have “lascivious intent,” to be prohibited. i.e., picture of baby in bathtub vs. hardcore CP.
Auto-pornography

Are nude selfies dissemination of CP?
Ordinary nudity is not pornography.

Ashcroft: Prohibiting digital renderings of CP is overbroad under the Miller test because children aren’t being harmed pursuant to Ferber.