1. promotion of truth 'marketplace of idea'
2. representative democratic value
3. individual autonomy

protect speech because it promotes X

speech for speech's own sake (personal autonomy)

Court factors for clear and present danger test-

• proximinity, imminence of immediate unlawful action (Holmes test)
• gravity of the evil/harm (Brandeis in Whitney)
• direct advocacy? (Leanred Hand- as long as it is not express it is protected

Abrams- Holmes' dissent puts teeth in C&PD

even speech "fraught w/ death" should be protected

prior to abrams- debs, schenk, the danger was still remote and it was essentially bad tendency 

Learned Hand's test-

direct v. indirect advocacy of law breaking

as long as D doesn't say "go brek the law" it is protected

does not like Holmes' fact specific approach b/c he thinks juries will always convict 

legislative determination of C&PD,

Brandeis Holmes dissent- 

only an emergency should justify suppression 

1. immanency

2. gravity of evil

Holmes and Brandeis C&PD articulation adopted BUT NOT USED IN THIS CASE               (1. immanence 2. evil)

conviction upheld though using Learned Hand's articulation,

gravity of evil is too great so it is weighed against the probability of occurance (immancey essentially written out) 

if danger is great enough the speech can be regulated

Brandenburg 

CURRENT INCITEMENT TEST

1. speaker subjectively intended incitement to unlawful action

2. speech is likely to produce imminent lawless action

3. words used by the speaker objectively caused action

Dennis could still be used in situations of Gov't overthorw etc. when the danger is very high

Hess- advocating blocking the street at some point in the future is not imminent 

Claiborne hardware- advocating boycott of white businesses and violence towards shoppers not imminent

1. lewd and obscene (obscenity cases)

2. profane (no longer on list after Cohen)

3. Libel (defamation)

4. fighting words

5. incitement (brandenburg)

6. true threats

court makes distinction by balencing social value against harm to order/morality - definitional problems 

one on one insults/comments that would cause the average listener to react violently 

the very utterance-

1. inflicts injury (no longer used, too subjective)

2. incites immediate breach of the peace in a violent response towards the speaker

Hostile audience

Ferner- arresting the speaker is OK, (gives too much power to 'heckler's veto') 

Black dissent- cops should make all reaaonble efforts to protect speaker, court has adopted the spirit of this dissent

Cohen "fuck the draft"

obscene= appeals to prurient interests

personal offense can't be basis for speech regulation

if you don't like it avert your eyes

context is key- home/children/captive audience

which words make the list?

contrary to marketplace of ideas

eliminates full communicative force of message

spech has an emotive element that should not be restricted

1. cognitive (ideas)

2. emotive (court says that it is often more important)

Beauharnais- nazi lit is defamation 

Colin- Skokie IL, beauharnais pry not still good law

no "hate spech" category

bans hate speech- acts that 'arouse anger'

Sclais says that unprotected categories are not invisible to the 1st 

means can not include viewpoint discrimination

exceptions to scalias own rule-

1. gov't can regulate the most extreme examples (the reasons the entire category is unprotected)

2. anti-discrimination laws regulate conduct and the spech is secondary 

VA v. Black-

cites watts (political hyperbole is not a true threat)

for a TT the speaker must communicate real violence (serious intention to commit)

intimidation is a type of true threat

this is a ban on ALL cross burning so it could fit in Scalia's exception #1, law struck down over prima facie showing issues

"truth in all it's particulars" requirement severely chills speech

sedition act of 1789 has been disaffirms by history and this is similar

plaintiff must prove actual malice (knowledge of falisty or reckless disregard to falsity) negligence not enough

"convincing clarity" is the burden of proof- b/w a proponderance and a reasonable doubt

justification for protecting false statements-

breathing space

some falsity is inevitable

NOT protecting the falsity itself

have to show actual malice

they have more media access

more protective (less media access)

strict liabiltiy is till out for compensatory damages (negligence is OK) up to individual states

punitive damages still require actual malice 

only clear this applies when the matter is of public concern and the plaintiff is a prtovate figure

no need to show actual malice for punitive /presumed damges in these cases

not clear is states can go back to stricy liaiblity though

1. intrusion in to seclusion (physical invasion, not much 1st protection)

2. public disclosure of private facts "newsworthydefense" take the teeth out 

3. false light, does not harm reputation could be positive

4. appropriation of name or likeness, more of a property issue as opposed to a privacy one

actual malice for public conern

even w/ rape victim names etc. only actual malice is actionable

gov't should be more careful w/ names 

no absolute immunity for media if statement is truthful

IIED (hustler v. falwell)

WBBC

court is worried about end run around defamation bar

actual malice standard used

no defamation b/c reasonable people would beleive this is parody

WBBC- no 'outrageous' standard for IIED, message must be personalized and target and individual

no "false statements of fact" unprotected category

value breathing room

this law is CB=SS

court is VERY hesitant to make new categories 

say that truthful counter speech can help

perhaps a more narrowly tailored version of nthe law would survive (to combat fraud etc)

roth- no evidence of harm is needed for legislative determination

court could not define for a loooong time "I know it when I see it"

appeals to pruriant interest

ideas are not obscene (lady chatterly's lvoer)

obscentity does not reach in to home (no ban on private possession of porn)

finally court gets test

1. average person community standards from roth

2. applicable state law specificially defines obscenity

3. lacks serious social/articstic value

abandons "memoirs" test that was more speech prtoective- utterly lacking in social value

1 is localized 3 is national standards

dispersion of adult theatres= CN TPM

"march our sons and daughters off to war" test

concentration, court buys secondary effects argument and treat it as CN w/  a substantial gov't interest

this justification would not fly in any other context

NEW UNPORTECTED CATEGORY

meant to prevent harm to the child not the secondary societal effect

possession can be illegal

definitional- usually any sexual aspect to depictions of children will suffice under a well drafted statute 

FCC braodcast radio special indecency authority

1. uniquely pervasive

2. kids can access it

3. scarce resources so more regulaiton is OK

operates on a public outrage rolled coaster

consumers can opt out of receiving sexual material but te gov't can't ban the mailing of ads including condom ads due to sexual content 

adult population can't be restricted to the sandbox

dial a porn service has sufficient chakcs to keep minors out

overbreadth- has to be substantially overbroad

vagueness- DP concept based on notice

speech that proposes a commercial transaction

unprotected before VA pharmacy

now it is protected subject to protections for false or misleading advertising

no speicfic level of scrutiny laid out

essentially IS, if speech is not false/misleading-

1. substantial int? significant/important

2.reasonable ends/means fit (not necessarily perfect)

3. leaves open ample alternative channels of communications

Huson said that getting people to use less electricity was a sufficient interest but this conflicts w/ VA pharmacy anti-paternalism 

posadas- gambling (could ban it all) argument fails

liquormart- want emprical evidence of direct advancement (put teeth in this part)

TEST NOW-

looks more like SS w/ central hudson name, plaintiffs always argue to overturn

Lorillard tobacco- paternalism is OK for kids, but law is too broad

1.intent to convey a message

2. likelihood message would be understood by those who view it 

if it is communicative speech move on to O'Brien test

1. w/in the constitutional powers of gov't? (not really an issue)

2. furthers important/substantial gov't interest (IS language)

3. interest is unrelated to the suppression of free expression (conduct can't be regualted b/c the message is targeted- gets you in to SS category land)

4. reasaonble fit

*gov't need not use the least restrictive means

court urges counter speech

no substantial gov't interest exists, national unity targets the content of the message 

court splits, agree that it is communicative under spence

law can't be targeted at suppression of message 

test is essentially O'Brien-

1. justified w/out reference to content/message

2. narowly tailored to significant interest (reasonable fit IS)

3. leaves open ample alternative channels for info

no standardless schemes

can't place too much discretion at hands of beaurocrat

increased fees for security not OK 

regulation can't remove entire cheap form of expression - door to door, pamphlets etc. 

assuming regualtion is CN

regualtion must be 

1. narrowly tailored

2. necessary to a significant gov't interest

3. leave open ample alternative channels

designation can be removed entirely by gov't

classrooms for afterschool use etc. 

same analysis as a regular public forums

reasonableness standard, no viewpoint discrimination

if interference is susbtantial sdame public forum rules apply

if interferecne is not substantial it need only be reaonale in light of the forum's purpose and be viewpoint nuetral 

1. speech can be limited as needed to maintain schhol discipline and fullfill educational message

2. speech advocating illegal actiivity can be banned

hazlewood- designed for pedagogical purposes= more deferential to school regulation

gov't as employer, pickering balencing test

balnece intention of citizen commenting on matters of public concern v. 

employee commenting on personal employment concern

can be fired if it is an emplyment concern

if speech if for your job you can be fired

TEST: could the employee reasaonbly think that this is a matter or public concern?

right of association is implied in 1st

TEST: is party affiliaiton relevant for this kind of job?

pickering and patronage applies to indpendent contractors 

can't attach political strings to benefits etc.

can only have strings attached consistent w/ purpose of the funds (anti-smoking) 

penalty v. non-subsidy

have to meet some kind of C&PD test- revealing troop movements etc. 

pentagon papers case

pledge can't be compelled

right of anonimity (except for ballot measure names)

newspaper/braodcast station split

CA const right to allow pamphleting in public spaces is OK

sppech was not likely to be associated w/ the shopping center

networks must carry broadcast channels, compelled under IS 

1. can't regulate beleifs or compell affirmation of faith

2. can't regulate conduct if the object of law is to regulate b/c of its religious motivations 

laws targeting relgion are rare now, 

touches on religious conduct but does not target it, usually plaintiffs are seeking an exception

court says SS but teeth get taken out in later cases

Scalia changes it to rational basis 

congress passes RFRA (only applies to fed)

separationists- keep em apart

neutralism-

1. non preferential

2. religious/nonreligious non preferential

accomadationists- religion as part of history OK in oublic places 

Lemon-

1. secular purpose 2. primary effect must not advance religion 3. no excessive entanglement

Coercion test-

J. Kennedy from Lee v. Weisman, presents definitiional issues

Endorsement test-

O'conner from Lynch v. Donnelly "nonpreferenctialism" can't endorse religion over non-relligion

1. no outright religious coercion (fines etc)

2. law must have a secular purpose

3. the law can't openly endorse and specific religion over another

$ to parochial schools- buses, vouchers are fine

WA can ban state education $ from going to chaplains b/c it is not targeting religion

kids are more impressionable & open to coercive influences

no prayer allowed in schools 

kennedy thinks that for kids peer pressure= psycological pressure as well 

scalia does not...

curricular- intelligent design is not science

Public displays EC

1. virtually all of the justices think that legislative prayer is OK

2. christmas i sort of treated as a secular holiday most of the time

creche needs a santa and candy canes w/ it

KKK cross- speech not likely to be associated w/ the gov't 

hinges on what a reasonable observer would think the purpose of the display is 

breyer switched in McCreary and Van Orden to avoid religious divisiveness 

history argument

private speech argument