unprotected speech april 12 2005 l.
Download
Skip this Video
Loading SlideShow in 5 Seconds..
Unprotected Speech April 12, 2005 PowerPoint Presentation
Download Presentation
Unprotected Speech April 12, 2005

Loading in 2 Seconds...

play fullscreen
1 / 33

Unprotected Speech April 12, 2005 - PowerPoint PPT Presentation


  • 95 Views
  • Uploaded on

Unprotected Speech April 12, 2005. How can speech be unprotected?. Interpretive theory Strict textualism: no distinction among subjects of speech, even if some modes not protected

loader
I am the owner, or an agent authorized to act on behalf of the owner, of the copyrighted work described.
capcha
Download Presentation

PowerPoint Slideshow about 'Unprotected Speech April 12, 2005' - tass


An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -
Presentation Transcript
unprotected speech april 12 2005
Unprotected Speech

April 12, 2005

Con Law II

how can speech be unprotected
How can speech be unprotected?
  • Interpretive theory
    • Strict textualism: no distinction among subjects of speech, even if some modes not protected
    • Original intent: framers probably did not intend to protect libel, indecency, threats, etc. (perhaps only “prior restraints”)
    • Broad textualism/dynamic, evolving const: core values underlying the 1st Amendment:
      • Self-fullfilment / personhood
      • Search for truth / marketplace of ideas
      • Self-governance / political marketplace

speech that doesn’t serve any underlying purpose of the 1st Am. may be unprotected

Con Law II

how can speech be unprotected3
How can speech be unprotected?
  • Functions of speech (speech act theory)
    • Expressive (illocutionary, informational)
    • Instrumental (perlocutionary)
      • Speech is the “trigger of action” (so closely associated with action)
        • as to disallow any intermediation (free will)
          • shouting “fire” in a crowded theater
        • treated functionally as part of the action
      • Instrumental speech is not speech; it is conduct
    • Performative speech
      • Saying “this is a holdup” means (literally) this is a holdup
        • The words and the act are unitary

Con Law II

how can speech be unprotected4
How can speech be unprotected?
  • Interpellative effect of speech on listener
    • Speech Impact (emotional effect)
      • “I am going to kill you” is not merely expressive;
      • it creates an emotional response
      • “Sticks and stones” theory notwithstanding
    • Not to be confused with “2dary effects doctrine”
  • Summary:
    • Speech that doesn’t serve 1st am purposes
    • Instrumental speech
    • Injurious speech

if one or more of these apply, you may have unprotected speech

Con Law II

categories of unprotected speech
Categories of unprotected speech
  • Subversion
  • Incitement of imminent lawlessness
  • Threat/Solicitation of crime
  • Fighting Words
  • Defamation
  • Hate Speech (“group libel”)
  • Obscenity
  • Functional (Performative) Speech

Con Law II

chaplinsky v nh 1942
Chaplinsky v. NH (1942)
  • “You are a God damned racketeer and a damned Fascist”
  • “No person shall address any offensive, deri-sive or annoying word to any other person …”
  • Are “fighting words” speech?
    • Injurious utterance
      • True of any epithet?
    • Instrumental (trigger of action)
      • Likely to provoke the average person to retaliation
      • The words are integrated with the violent response

Con Law II

fighting words doctrine
Fighting Words Doctrine
  • Limited by Chaplinsky test
    • objectively likely to incite a breach of the peace
      • reasonable listener standard
    • Injurious utterance theory narrowed
      • There may be expressive value to epithets

Con Law II

r a v v st paul 1992
R.A.V. v. St. Paul (1992)
  • Is cross-burning speech?
    • Symbolic speech
    • What message is being communicated?

ideological (protected political speech)

Con Law II

r a v v st paul 19929
R.A.V. v. St. Paul (1992)
  • Is cross-burning speech?
    • Symbolic speech
    • What message is being communicated?

threats of violence

(not protected)

Con Law II

r a v v st paul 199210
R.A.V. v. St. Paul (1992)
  • Is cross-burning speech?
    • Symbolic speech
    • What message is being communicated?

ideological (protected political speech)

AND

“True Threats” (unprotected)

Con Law II

r a v v st paul 199211
R.A.V. v. St. Paul (1992)
  • As speech, cross-burning can be both protected and unprotected
  • St. Paul prohibits cross-burning that
    • “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion, sex”
      • As construed by state supreme court, this term is equivalent to “fighting words” [intimation similar]
    • But: not all fighting words prohibited; only those based on race, etc.
      • Viewpoint-based distinction within a category of unprotected speech

Con Law II

r a v v st paul 199212
R.A.V. v. St. Paul (1992)
  • Discrimination within unprotected speech
    • E.g., some obscenity, libel, fighting words, etc. permitted depending upon viewpoint expressed
    • Government-imposed orthodoxy violates 1st, whether speech allowed is protected or not.
    • This doesn’t mean gov’t must proscribe all of a category of unprotected speech; it may select
      • So long as the basis for distinguishing tracks the reason that category is unprotected in the first place
      • E.g., especially provocative “fighting words”
    • Or because of “2dary effects” (adult speech only)
    • Or reasons unrelated to gov’t approval of views

doesn’t this describe the St. Paul law?

Con Law II

virginia v black 2003
Virginia v. Black (2003)
  • VA Statute:
    • “unlawful for any person … with the intent of intimidating any person … to burn … a cross on the property of another [or a] public place”
  • Conduct or Speech?
    • Which is the VA law prohibiting?
      • I.e., is this an anti-speech or non-speech regulation?
      • proscribes only intimidation (“true threats”)
    • Does it survive R.A.V.?
      • Yes, to extent it prohibits all intimidation (unprotected speech)

Con Law II

virginia v black 200314
Virginia v. Black (2003)
  • Wisconsin v. Mitchell (1993)
    • Enhanced punishment for hate motivated crimes
      • Punishment for conduct, not speech
    • hate crimes inflict greater individual & societal harms
  • emotional harm beyond basic injury
  • more likely to incite retaliatory crimes

Con Law II

virginia v black 200315
Virginia v. Black (2003)
  • VA Statute:
    • “any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons”
      • ignores all of the contextual factors necessary to decide whether a particular X-burning intimidates
      • because it captures both protected symbolic speech and unprotected intimidating speech, it is
    • Overbroad (standing) [perhaps means too]
      • Black (protected speech)
      • Elliot/O’Mara (unprotected) (jus tertii standing)
    • the provision is facially unconstitutional

Con Law II

defamation
Defamation
  • Libel & Slander
    • publication of a
    • false & injurious
    • statement of fact
    • “of and concerning”
    • plaintiff
  • Damages
    • Special
    • General
    • Punitive

Con Law II

ny times v sullivan 1964
NY Times v. Sullivan (1964)
  • Where’s the state action?
    • State libel law (positive or common law)
    • 1st amd used as defense to the cause of actioin
  • Principles
    • Robust debate on issues of public concern
      • Any liability tends to chill speech
      • strategic protection for speech means even some falsity must be tolerated
    • Public officials
    • Public figures
    • Private persons

Con Law II

ny times v sullivan 196418
NY Times v. Sullivan (1964)
  • Truth & Falsity
    • Truth must be a defense
    • Only provably false statements are actionable
      • Only statements of fact fit this requirement
      • Not opinions, parodies (not reasonably taken as fact)
    • Falsifiable statements actionable only if
      • Private figure
      • Public official/figure – actual malice standard
        • knowledge that the statement is false
        • reckless disregard for whether it is false or not
          • negligence (e.g., failure to check facts) not sufficient
      • Is there any value in false speech?

Con Law II

ny times v sullivan 196419
NY Times v. Sullivan (1964)
  • Burden of proof
    • On plaintiff at all times
    • By clear and convincing standard
  • Damages
    • Actual malice – full range
    • Private figure(no malice) – actual damages only
  • Public Persons
    • Public officials
    • Public figures
      • “those by reason of the notoriety of their achieve-ments, or by the holding of the public’s attention”

Con Law II

gertz v welch 1974
Gertz v. Welch (1974)
  • Provable case of libel (per se)
    • Unless “actual malice” required
  • Public figures
    • access to self-help (channels of communicat’n)
    • voluntary assumption of close public scrutiny
      • Involuntary public figure? No, see Time v. Firestone
    • General purpose public figure
      • general fame or notoriety; like high public official
    • Limited purpose public figure
      • if thrust into limelight re subject matter of libel

Con Law II

dun bradstreet v greenmoss 1985
Dun & Bradstreet v Greenmoss (1985)
  • Matters of public vs private concern
    • Greater 1st amd interest in promoting robust debate on public issues
    • Greater private interests otherwise
  • Negligent defamation on private matter
    • Actual (compensatory) damages
    • Presumed (general) damages
    • Punitive damages
  • Is the credit report a public or private matter?

Con Law II

cohen v california 1971
Cohen v. California (1971)
  • What theory to claim profanity (“Fuck the Draft”) is unprotected
    • Obscenity
    • Fighting words (gross insults, epithets)
      • not used (or claimed) in this way here
    • Incitement to violence (imminent lawlessness)
    • Injurious utterance
    • Non-expressive component of speech
      • Is profanity an expression of ideas or an instrument of assault?
    • Secondary effects?

Con Law II

cohen v california 197123
Cohen v. California (1971)
  • What theory to claim profanity (“Fuck the Draft”) is unprotected
    • Obscenity
    • Fighting words (gross insults, epithets)
      • not used (or claimed) in this way here
    • Incitement to violence (imminent lawlessness)
    • Injurious utterance
    • Non-expressive component of speech
      • Is profanity an expression of ideas or an instrument of assault?
    • Secondary effects?
  • No appeal to prurient interest
  • Not likely to provoke violent reaction
  • Doesn’t advocate lawlessness
  • Shocking but not harmful
  • Highly expressive (& political)
  • Only impact is on viewer

Con Law II

cohen v california 197124
Cohen v. California (1971)
  • Could state have regulated Cohen’s speech even though it was protected?
    • via Subject-Matter restrictions in a non-public forum
    • courthouses are not a traditional venue for free speech
  • Why didn’t it?

Con Law II

fcc v pacifica 1978
FCC v. Pacifica (1978)
  • 18 USC § 1464
    • “Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.”
  • Claims
    • Overbreadth
      • Doesn’t apply
        • Carlin not prosecuted under criminal statute
        • FCC order based on gen’l regulatory power

Wikipedia

H. R. 3687

Con Law II

fcc v pacifica 197826
FCC v. Pacifica (1978)
  • Claims
    • Protected non-obscene speech (indecent/profane)
  • Protection for profane speech
    • “slight social value”
    • Value varies with context
  • Special rules for broadcast
    • Uniquely pervasive presence (uninvited guest)
    • Uniquely accessible to children (daytime hours)
    • Licensing to promote public interest
  • Doesn’t apply to other telecom(Sable v. FCC)

Con Law II

obscenity
Obscenity
  • Categorical Balancing for Obscene Speech
    • Textualism – protected
    • Originalism – not protected by states in 1792
    • Dynamic – lacks any social value
    • Non-interpretivism – universal judgment
      • federal legislation
      • state
      • international

Con Law II

roth v us 1957
Roth v. US (1957)
  • Roth standard:
    • material that deals with sex in a manner appealing to prurient interest
      • material tending to excite lustful thoughts
      • lascivious desire or thought
    • utterly without redeeming social importance
  • The intractable obscenity problem
    • Objective vs. subjective standards
    • Stewart in Jacobellis v. Ohio (1964): “I know it when I see it”

Con Law II

paris adult theatre v slaton 1973
Paris Adult Theatre v. Slaton (1973)
  • Beyond unprotected speech
    • Obscenity is action not speech
      • arouses physical emotion
      • cognitive, emotional, reflexive?
    • Correlation betw. obscenity & crime
      • secondary effects - violence ag. women
    • Leads to antisocial behavior
      • corrupts morals
      • offends sensibilities of unwilling viewers/listeners
      • desensitizes people to rational thought
    • Fails to serve any underlying 1st am purpose

ok for state to act on unproven assump-tions

Con Law II

miller v california 1973
Miller v. California (1973)
  • Standards for unprotected obscenity
    • Works that depict or describe sexual conduct
    • Taken as a whole, appeals to the prurient interest in sex
      • using contemporary community standards
    • Portray sex in patently offensive way (hard core)
      • intercourse (normal or perverted)
      • masturbation, excretion, lewd exhibition of genitals
    • Taken as a whole, do not have serious literary, political, or scientific value
      • objective national standards

Con Law II

miller v california 197331
Miller v. California (1973)
  • Standards for unprotected obscenity
    • Works that depict or describe sexual conduct
    • Taken as a whole, appeals to the prurient interest in sex
      • speech as conduct
    • Portray sex in patently offensive way (hard core)
      • injurious speech
    • Taken as a whole, do not have serious literary, political, or scientific value
      • no first amendment values

Con Law II

am book v hudnut 7 th cir 1985
Am. Book v. Hudnut (7th Cir. 1985)
  • Indianopolis law barring non-obscene porn
    • Pornography depicting women in demeaning way, as sexual objects, or pleasure in pain
    • Theories for expanding category of unprotected speech
      • Promotes violence against women
      • Promotes social bias against women
      • Making of porn exploits women
  • Holding: Viewpoint-based discrimination
    • Whether material is banned depends upon the message, not the pornographic content

Con Law II

ashcroft v free speech 2002
Ashcroft v. Free Speech (2002)
  • New York v. Ferber (1982)
    • Non-obscene child pornography can be banned because of the state’s important interest in protecting children from sexual abuse
      • children involved in film production
  • Child Pornography Prevention Act (CPPA)
    • Includes images (real or virtual) that appear to, but don’t actually, include children
      • can’t be justified on basis of protecting child actors
      • encourages pedophilia?
      • assists in prosecution of real child pornography

Con Law II