First Amendment
Professor Dimino
Summer 2013
I. First Amendment
a. 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 peaceably to assemble, and to petition the Government for a redress of grievances.
b. Be on the look out for
i. Why should speech be treated differently than other conduct?
ii. When should the injuries caused be treated the same/different than those from other conduct?
iii. How do we know where the line is between speech and conduct? (i.e. waving a flag)
iv. Should the audience matter?
II. Content Regulation: The Chaplinsky Exclusion
a. Speech outside the protection of the 1st Amendment
i. Fighting words
1. Mere utterance inflict injury or incite a breach of peace
2. Chaplinsky v. New Hampshire (p. 69)
a. JW yells “You are a God damned racketeer and a damned fascist and the whole govt of Rochester are Fascists or agents of Fascists…” and is convicted. This is his appeal.
b. RULE – right of free speech is not absolute at all times and under all circumstances.
i. Not protected under the Constitution (punishing them doesn’t raise any issue under the Con)
1. Lewd and obscene
2. Profanity
3. Libelous
4. Insulting or fighting words
a. Words by which by their nature leading to immediate injury or provoke an immediate breach of the peace
b. Has to be a one on one personal insult
c. What is offensive language?
i. What men of common intelligence would understand would be words likely to cause an average addressee to fight
d. Importance
i. What are fighting words and why we don’t protect them
ii. Categorical approach to 1st Amendment law (categories of speech get different protection)
e. Should we punish the fight resulting and not the speech that caused the violence?
i. Speech will still cause injury (by insult)
ii. Shouting match may result, both people end up injured
iii. Peace and tranquility of others may be interrupted.
iv. Are we willing to tolerate the injuries in order to protect the speech?
f. Why protect free speech? – Allow opinions to be heard
i. Challenge orthodoxy (promote truth)
ii. Self Expression – just want people to be allowed to do it
iii. Societal catharsis – give people an outlet to express their negative thoughts to prevent a revolution (blow off steam)
iv. Self Government – how can people know how to vote if they cannot talk freely about issues/candidates (an attempt to restrict political speech will trigger strict scrutiny)
g. General Rule – Govt can only suppress the speech if it passes strict scrutiny (this is the baseline)
i. Categorical Approach – What may be suppressed on less than strict scrutiny
1. Chaplinsky sets out the first categories that fall outside the general rule
a. Libel
b. Fighting Words
c. Obscenities
d. Profanities
ii. Sliding scale approach – might get to same result as categorical approach but how close is this speech to the core of what the 1st amendment is trying to protect (is it compelling? Etc)
1. Health
2. Campaign signs
3. How about nude dancing/performance art? Is this what James Madison intended?
a. Not fighting words
b. Is it obscene?
c. It may be further away from the initial intent of the 1st amendment and we will let the govt slide with a less compelling reason
h. Cohen is the counterpoint
3. Gooding v. Wilson (p. 72)
a. D was convicted of a misdeameanor for using abusive language. Georgia upheld the conviction, but Fed Courts set aside the conviction finding the statute was vague and overbroad. Vietnam protest said “White son of a bitch, I’ll kill you. You son of a bitch, I’ll choke you to death. You son of a bitch, if you ever put your hands on me again, I’ll cut you all to pieces.”
b. GA defines fighting words more broadly than Chaplinsky
i. Conveying or intending to cause disgrace (opprobrious)
ii. Harsh insulting language (abusive)
c. Holding that the GA statute is not limited to words that naturally tend to provoke violent resentment
d. Overbreadth Doctrine – a statute that affects First Amendment rights is unconstitutional if it prohibits more protected speech or activity than is necessary to achieve a compelling government interest. The excessive intrusion on First Amendment rights, beyond what the government had a compelling interest to restrict, renders the law unconstitutional.
i. Covers both protected and unprotected speech
ii. Prohibits more than the Constitution allows the state to prohibit
iii. Court can
1. Decide whether the speech was constitutionally protected or not OR
2. Apply the OB doctrine – if statute is too broad, any individual prosecuted under it can raise a 1st Amendment complaint and we will force the state to draft a better statute
4. City of Houston v. Hill (p. 76)
a. Is a municipal ordinance making it unlawful to interrupt a police officer in the performance of his or her duties overbroad under the 1st Amendment?
b. Hill was an activist arrested for violating such an ordinance
c. Overbreadth Doctrine (strictly a 1st Amendment issue)– only a statute that is substantially overbroad may be invalidated on its face
i. Overbroad statute because
1. Ordinance deals with speech and not criminal conduct
2. 1st Amend protects a significant amount of verbal criticism and challenge directed at police officers
3. It prohibits speech in any manner that interrupts an officer
4. Gives officers the ability to arrest people for words or conduct that annoy or offend them
ii. Analysis
1. Does it affect both protected and unprotected speech?
2. How much? Is it substantial? How much?
d. Vagueness app
ii. Not just what you say but how you say can be limited (showing a protest poster v. screaming in someone’s face)
2. Rosendfeld v. New Jersey (p. 183)
a. This is a dissenting opinion!!!! – not protected by 1st Amendment
b. GVRing a case – Grant, Vacate and Remand
i. Wipes out the previous case and asks the lower court to take another look
ii. SCOTUS doesn’t actually hear the case, they grant the pet for cert, immediately vacate the previous decision and remand it back in light of a new law
iii. Here, they ask the court to take a look at Goodling and Cohen, but the dissenters want to hear the case
c. Rosenfeld addressed a school board meeting where women and children were present and used m.fers on 4 occasions
d. 1st Amendment protection is not limited to words whose mere utterance entails a high probability of violence, but also extends to the willful use of scurrilous language calculated to offend the sensibilities of an unwilling audience
i. A statute directed narrowly to this interest does not impinge upon the values of protected free speech
ii. Policy – the shock and sense of affront, and sometimes the injury to mind and spirit, can be as great from words as from a physical attack
iv. Defamation
1. New York Times Co v. Sullivan (p. 89)
a. The Plaintiff was one of three Commissioners of Montgomery, Alabama, who claimed that he was defamed in a full-page ad taken out in the New York Times. The advertisement was entitled, “Heed Their Rising Voices” and it charged in part that an unprecedented wave of terror had been directed against those who participated in the civil rights movement in the South. Some of the particulars of the advertisement were false. Although the advertisement did not mention the Plaintiff by name, he claimed that it referred to him indirectly because he had oversight responsibility of the police. The Defendant claimed that it authorized publication of the advertisement because it did not have any reason to believe that its contents were false. There was no independent effort to check its accuracy. The Plaintiff demanded that the Defendant retract the advertisement. The Defendant was puzzled as to why the Plaintiff thought the advertisement reflected adversely on him. The jury found the ad libe
lous per se and actionable without proof of malice. The jury awarded the Plaintiff $500,000 in damages. The Alabama Supreme Court affirmed. The Defendant appealed.
b. Is the Defendant liable for defamation for printing an advertisement, which criticized a public official’s official conduct?
c. The constitutional guarantees require a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice – that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
