1 Amendment Outline - First Amendment Law

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  1. Unprotected or Partially Protected Speech
    1. Incitement – Brandenburg, clear & present danger
    2. True threats, crime manual (instruction vs. advocacy)
    3. Fighting words and hostile audiences
    4. Hate Speech
    5. Defamation and other Torts
      1. Libel
        1. Modifies common law libel for public issues and public figures NYT
        1. Hustler & Snyder (not actionable)
        1. Cowles Media (actionable) – can you distinguish?
        1. False light
        2. Disclosure of victim identity
        3. Electronic eavesdropping
        1. Zoning - Secondary effects
        2. Child Pornography
          1. Stanley v. Georgia doesn’t apply
          1. Right of audience to receive/ be informed
          2. Compelled advertising fees
          3. Keeping people in dark vs. direct regulation
          4. Vice tax
          1. Subject matter
          2. Viewpoint
          3. Speaker status
          4. Communicative impact
          1. Aimed at conduct, but incidentally suppresses symbolic speech
            1. O’Brien
            2. Flag burning
            3. Nude dancing
            4. Providing legal counsel to terrorist organizations?
            1. TPM
              1. Total Medium Ban – heavily scrutinized
              2. Permits
              1. Public Forum/Designated public forum, non-public forum
              2. Libraries, military bases, schools, jails, mailboxes, airports, buses, broadcasting, municipal theater
              3. School speech - to what extend does 1st A protection extend to schools?
              4. Speech & Religion – can’t discriminate against religious speech
                1. but also can’t discriminate in favor of religious speech
                1. Right not to speak
                  1. Pledges, license plates, etc.
                  2. Public voting
                  1. Broadcasting and cable cases are special enclave.
                  2. Access to private property
                  1. membership lists (association)
                  2. Access to government information
                  3. Law enforcement (demand by Government for Press info)
                  4. Open courtroom proceedings (demand by press of government)
                  1. Who may vote in primaries
                  2. Political party association - fusion candidates etc.
                  1. Defining religion
                  2. Free Exercise
                    1. Statutes directed at burdening or prohibiting religious practice
                    2. Constitutionally required accommodations (side swipes)
                    1. Symbolic displays and Religious Rituals
                      1. Schools are special situation
                      1. Religion and school curriculum

                      A. Incitement

                      Tests:

                      • Clear and Present Danger test: Whether nature of speech creates a clear and present danger of the substantive evil that Congress has right to prevent. (proximity and degree) Schenck
                      • Dennis test: Gravity of evil, discounted by the improbability, justifies the invasion of free speech. Dennis. (HAND’s BPL formula from Carol Towing!) (Criticism - this reduces 1st A. to a tort! 1st A should add something to the BPL equation to)
                      • NOW Brandenburg test: Speech is permitted that
                        • Advocates force or legal violation, unless such advocacy is
                          • Intended to incite
                          • imminentlawlessnessand
                          • likely to produce such action.

                          Schenck/Frohwerk/Debs/Abrams 1919 – Clear and present danger (SPEECH UNFRIENDLY)

                          • Schenck (HOLMES 1919) - Court upholds conviction for conspiracy to violate the espionage act by printing and circulating documents intended to cause insubordination and obstruction under clear and present danger test. Note: actual offense - obstructing recruitment – doesn’t require speech.
                            • Used to convict anti-war speakers based not on advocacy/ opinion, but on effect of words:
                              • Frohwerk (HOLMES 1919) – Court upholds conviction for publishing and circulating twelve newspaper articles. Debs (HOLMES 1919) – leader and presidential candidate for socialist party. Court upheld conviction for inciting insubordination, disloyalty, mutiny, and refusal of duty in armed forces when delivering speech at state convention.
                              • Abrams (CLARKE 1919) - Russian immigrants wrote and distributed circulars advocating workers to stop producing weapons to be used against the Russian revolutionaries. HOLMES dissented based on intent and immediacy. No immediate danger caused by the “publishing of a silly leaflet by an unknown man.” & no specific intent. Ds intended to protect Russian revolutionaries, not to interfere w/ German war efforts.

                              Gitlow/Whitney 1925 - Clear and Present Danger 2.0

                              • red scare, laws banned certain classes of speech rather than looking at incitement to violence. Holmes dissented/concurred, arguing the CPD test requires immediate violence. Courts later followed Holmes/Brandeis reasoning.
                              • In contrast to Schenck/Debs, etc., in Gitlow/Witney, the forbidden act is the speech itself. Thus, the proximity inquiry of clear and present danger doesn’t work.

                              Gitlow (SANFORD 1925) –member of the socialist party, charged with criminal anarchy for publishing an article called Left Wing Manifesto. The Court upholds the statute saying that legislative determination that the speech was “so inimical to the general welfare and involve such danger of substantive evil” is entitled to judicial deference. HOLMES dissent argues that the legislature was not after speech, but the.