Offensive speech and the captive audience

1. Offensive speech and the captive audience • To what extent can government officials punish “offensive speech” because of the presence of a “captive audience”? • Cohen v. California – recognizes that the presence of a captive audience may justify regulating speech BUT also notes that it is rare to find such audiences • Govt’s ability “to shut off discourse solely to protect others from hearing it is . . . dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.” • 2 questions • Where are audiences “captive” – i.e., when is privacy invaded? • When does speech invade that privacy interest?

2. Captive Audience – public university BB arena • At a WVU basketball game against Ohio State, the students (largely led by a school sponsored organization) could be heard audibly shouting profanity at the opposing team in order to “get into the head” of their star player. This profanity from the student section has become an increasing trend at WVU games and has become so loud that it can be heard during televised broadcasts of the game. Despite school official’s pleas to tone down the profanity, students continue to use it during games. • Could the school enact a policy punishing students using profanity at games, claiming it was justified by the captive audience doctrine? • How is this situation different from the sound trucks situation and does it matter? Is it different from Cohen?

3. Feiner v. New York – hostile audiences & the 1st amendment • What did Feiner do to cause the Court to conclude that he had “undertaken incitement to riot”? • Why had he “passed the bounds of argument & persuasion” so the police were “justified” in concluding that “a clear and present danger of disorder was threatened?” • Do Feiner’s actions show “intent” to incite the crowd? Do they show that the crowd simply didn’t like what he had to say? • Was there a “clear and present danger” of disorder?

4. Feiner & Police Discretion • SCT notes that absent improper motives, police have great discretion to determine when a speaker is causing a clear & imminent danger of disorder • What kind of guidance does ‘clear & present danger of disorder’ give police who are determining whether to intervene and stop a speaker? • Can we readily discern police motives regarding why they shut speakers down? • Where should we look? • How often are they overtly “improper”?

5. Feiner& the Black dissent • Justice Black contends that the police should make “all reasonable efforts to protect” the speaker: • What would such efforts entail? • How does this approach differ from the majority’s focus on whether D was “inciting a riot” and presenting, in the police’s good faith belief, a “clear and present danger” of disorder?

6. Feiner’s Aftermath – Cox, Edwards, & Gregory • Are these cases really a “far cry from Feiner?” • Edwards – 80ish protestors/crowd of 200-300/30 police • Cox – 2000 protestors/crowd of 100-200/80 police • Gregory – 85 protestors/crowd of 1000/? police • To what extent do they establish principles different from Feiner? What are those principles?

7. Protecting the Speaker? • Police now do make efforts that allow speakers to speak while ensuring that riots and disorder don’t erupt. Such efforts can include: • Separating speakers and audience (and sometimes audience members from one another) by fences or barricades (see case in note 5 p. 100) • Requiring people attending large rallies to go through security monitors to check for weapons (Id.) • Warning that crowds should stay away because the speaker is simply trying to incite violence (Neo Nazi-March in Columbia-2007) • To what extent do such government actions interfere, if at all, with the speaker’s rights?