Early cases (Schenk, Abrams Debs) SupC -->pro Gov, speech restricted way

Still valid test but Brandenberg shows that speech is limited only when intent is to produce "imminent illegal activity and is likely to produce such action"

Not later, not if, not minor illegality like tresspassing

So implamatory that it icites the listener to voilence against the speaker (flip side of clear and present danger)

"Words which by ther very utterance inflict injury or tend to incite immediate lawless action" - no social value, epithets etc. 

Can be reasonable tool for police to implement using 'hecklers veto'

Speech not directed to listeners but to speaker

Content of the message is more important than the form

Use Balancing test - cannot be a single heckler, could arrest either speaker or demonstrators, police action to be for the "preservation of order and protection of the general welfare"

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.

Four "ors"

Truth

Autonomy

Self Government

Don't trust the government

Variety of other reasons

Incitement

Libelous

Obscenity

Content-Based Regulation: A regulation of speech or expression that is based on the substance of the message

STRICT SCRUTINY

Content-Neutral Restriction: A restriction on the manner in which an expression can be communicated or conveyed.  4 part test: 

Content neutral

Narrowly tailored

Reasonable - benefit vs burden

Serve government interest & unrelated to free expression

Content based restrictions cannot allow

1. Distortion of public debate (criticizing war, abortion)
2. Improper motive by government - 
3. impact on communication - fear how people will react - hostile audience, 

Content Neutral Restrictions

Do not limit based on content or communicative impact

e.g. Ban noisy speeches in bars, billboards regulations, limit campaign contributions, no burn draft cards

Libelous Defamation

Basic information with definition of what defamatory words

Written or spoken with "permanent form" (video, internet)

Can get presumed damages (strict liability - no need to show damages)

There to protect reputation and therefore "likely to induced to shun, avoid, ridicule or despise" the plaintiff

Truth is an absolute defense

Actual malice required for Public Officials or Public Figure and must prove by clear and convincing evidence NYT vs Sullivan case - NYT won

States can set thier own liability rules from strict to limited except for liability without fault (no damages)

Damages only for actual injuries unless "actual malice" is shown

Malice=knowing false or reckless disregard of the truth

Is an actual famous person or someone who voluntarily injects himself or is drawn into a particular public controversy (Gertz the lawyer was not a public official)

Public figure only for a LIMITED range of issues

For public official you can say FALSE AND DEFAMATORY items

Does not apply to "purely private concern" such as financial situation

Does not matter regarding the platform - newspaper, TV, or a private publications - will all lead to same result

Hard to limit speech, easier to limit conduct/behavior

No liability for publishers (radio host) who lawfully obtains second hand content of private conversation even if the initial content was obtained in unlawful way (illegal recording of union boss threatening violence)

Defendant cannot play a part in the illegal interception - must act lawfully

Normally for information of public concern - not private facts or information from a typical telephone call

Part of truthful speech defense

Huslter parody of Falwell and mother drunk and immoral

Public officials and public figures must show actual malice in order to get damages from IIED

Can be FALSE and DEFAMATORY and OK for public figure

Look at other rules for libel to also be similar for IIED

Phelps (westboro) vs funeral father synder

A church protesting a military funeral on public land in a peaceful manner is protected by the First Amendment.

No IIED - peaceful manner,  public land, 1000 feet away, got permit, Synder did not see picketers signs, 

Content of the signs were related to matters of public interest and concern (even though private funeral)

Prior restraints - submit documents for gov review - not allowed except for national defense (secrets, methods)

States may only limit speech where the speech is INTENDED

to incite IMMEDIATE

ILLEGAL ACTIVITY

Publication of how to murder manual

Three factors:

1. Directed to small group likely to be used in criminal matter
2. No value that is not criminal
3. Can cause serious and extraordinary harm

Incitement (get rules for each)

Fighting words

Speech leading to criminal action

Defamation, libel, slander

Obscenity

Hate Speech

Libel - written or reduced to any permanent form - internet, video, picture, etc.  Can get presumed damages

Slader is spoken - get actual/proven damages only.  One exception is slander per se for loathsome false speech. 

Limited public official (voluntary injects self to particular public interest) issues are limited to the specific subject - for example financial situation is not relevant