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Constitutional Law II Outline - Professor Wallace - Campbell Law - Part 8

By Miller Moreau
Professor Wallace - 2020

Download the PDF version of this outline

<< Part 7 | Part 9 >>

Speech and Violence Summary

Speech that threatens violence: NOT protected under “true threat” exception— Virginia v. Black

Speech that incites violence toward others: NOT protected if it meets the Brandenburg test

Speech that provokes violent response to speaker:

  • NOT protected if fighting words (Chaplinsky) or incitement to riot against speaker (Feiner)
    • Feiner: Speaker incited riot against himself (not general riot). Cops must try to protect speaker from crowd but if they cannot do so they can shut down the speech
  • Generally protected otherwise (see Terminello, Cantewell, Edwards, Cox, Gregory) Cops can only stop speaker only if crowd control is impossible and breach of peace is imminent
    • Heckler’s veto case: When crowd wants to get speech shut down b/c they know about Feiner
      • People threaten/heckle speaker to point where violence seems imminent and it should be shut down
    • Bible Believers v. Wayne County , 805 F.3d 228 (6th Cir. 2015)—see Volokh handout

Speech that provokes violent reaction elsewhere or by third parties?

Offensive, Outrageous, and Hateful Speech

Cohen v. CA: man wears “fuck the draft” type jacket in courthouse. Convicted under statute that prohibited “maliciously and willfully disturbing the peace/quiet of anyone through offensive conduct”

  • Wearing jacket as speech?
    • Spence Test → intent and likelihood sufficient →
    • O’Brien Test → 1) Gov. interest in not letting people see “fuck” is pretty weak; 2) law is specifically aimed at speech component of conduct → content based
      • Not fighting words (directed at US, not individual people), obscene, etc.
  • Captive Audience: When people are trapped/forced to be in area so the gov. Is able to regulate speech bc they have no option to protect themselves from it. The courthouse was not a captive audience situation
    • Best government argument here (ie- protecting children that have no choice but to see it)
      • When in public- default goes to speaker (people can avert their eyes, look away)
        • Privacy interests change analysis at home, etc.
    • Should we protect unwilling hearers/viewers from messages they prefer to avoid? → Wallace: No because then gov. will be deciding what is offensive & what is not
      • Gov. likely to say things that are bad are those that are about gov.

American Booksellers v. Hudnut: Porn that is demeaning on the basis of race, gender, sexual orientation?

  • Still protected as long as not obscene

Snyder v. Phelps: Westboro Baptist would show up at military funerals w/ awful signs. Claimed that soldier died as part of us paying for condoning gays in society. Family burying their soldier son. Westboro could NOT be seen from church or graveside, but family had to pass them when driving. Family sued for IIED.

  • SCOTUS in favor of Westboro.
    • Westboro complied with TPM restrictions imposed by state
      • Doesn’t matter how outrageous the speech is → protected

Nazis in Skokie: Nazis wanted to & did march through Skokie, IL (largest number of Holocaust survivors in US.) → Does this incite violence?

  • Brandenburg Incitement Test: Speech has to be directed at inciting imminent lawless action & be likely to produce such action.
    • This doesn’t apply because speech wasn’t inviting that action. Just had Swastikas.
    • Feiner: Were they inciting violence against themselves as speakers?
      • Doesn’t meet immanency requirement
        • Ie- people not on porches with shotguns
  • Fighting words?
    • Not directed at one person
      • True threat? Debatable
        • Maybe b/c of these people’s experience in the holocaust, how seeing that first hand conveys a reasonable threat of fear to them
        • Maybe not b/c difference of seeing swastika here and in Germany
          • Nazis taking over unlikely to happen here
  • INTIMIDATION is protected unless it incites violence/is a true threat
  • Hate speech is protected
    • Tans: Asian American band wanted to trademark band name “Slants” to reclaim the word. (Referred to their eyes)
      • Gov. denied them the trademark → SCOTUS struck that down.
Group Protests

NAACP v. Clairborne: NAACP starts boycott of white businesses to pressure town board to change policies. If blacks violated boycott, NAACP would publicy condemn them. Some acts of violence took place, speech had members stake out the stores so blacks that violate the boycott could be publicly condemned.

  • Businesses sue NAACP under tort law → Court:
    1. Free Speech Clause protects collective advocacy (freedom of association for expressive purposes)
    2. Boycott = protected expressive conduct; violence = unprotected non-speech conduct
      • Boycott in itself is protected
    3. Speech does not lose protection because it is “coercive,” “intimidating,” “vilifying,” or “socially ostracizing”(p. 1041); Evers’ speech also protected (p. 1042-43)
      • Walked right up to the edge with true threats based on speech
    4. FSC does not protect VIOLENCE, but forbids holding group responsible for actions of individual members not authorized or ratified
      • Mere fact that some NAACP members took violent measures does not implicate NAACP as a whole
Abortion Protests
  • Dilemma: How to regulate abortion protests without triggering strict scrutiny
  • Hill v. CO: Court upheld a law prohibiting persons from “knowingly” approaching w/in 8feet of another person, in order to present a handbill/leaflet, counsel, or protest, in front of hospital or medical facility
    • Court said it was content - neutral & therefore intermediate scrutiny is applied.
    • Wallace thinks content-based b/c only criminalizes specific speech that “counsels or protests” → Clearly aimed at abortion protestors
    • Extends “captive audience” beyond home to public streets and sidewalks as well
  • Often, TPM used as pretext for these content-based restrictions: McCullen v. Coakley: Mass. law that prohibits protests at abortion clinics. Exempted people who worked at clinic.
    • TPM restriction. → Court upheld law.
      • Wallace not sure this law was viewpoint neutral
        • EX) What if law restricted protest in front of police station that shot Trayvon Martin?
  • Change government interest at hand
    • Legitimate state interest to provide for safety of abortion
      • Rationalizes TPM approach, etc.
      • Ie- if abortions are dangerous when women are hearing protests from inside
Free Speech Rules in Special Contexts

Implicated when government isn’t regulating as sovereign, but as

  • property owner, educator, employer, librarian, arts patron, military commander, or prison warden.
Public Forum Doctrine

Private speech on government property, facilities, programs

  • Many different types of government property, extends past real property (ie- money)

Two main issues are access and regulation

  • Access: how can gov keep you from being there?
  • Regulation: once you have access → traditional 1A rules apply

Three types of forums

  1. Traditional public forum : public streets, sidewalks, parks
    • Total bans unconstitutional
    • Same general 1A rules apply
      • Ie- content based vs. content neutral
    • Basis: right of assembly, public trust
  2. Designated (Limited) Public forum : Government has opened place/program for private expression
    • Access can be restricted by speaker ID OR subject matter if exclusion is 1) reasonable in view of forum’s purpose ; AND 2) viewpoint neutral
      • Ie- open mic @ school board for people to come and express views for education in the area → guy from NY coming in to talk about how Epstein didn’t kill himself can be properly excluded b/c both ID and subject matter do not apply
        • But- school board can’t just exclude people if they aren’t going to speak in favor of them (viewpoint)
      • Looking to reason for having forum
        • Ask: Does speech pertain to that reason?
    • Once you have access → typical regulation rules apply
  3. Nonpublic forum = whatever is not traditional or designated:
    • Regulation must be reasonable and viewpoint neutral
      • Examples: school mail system (Perry), military bases (Spock)
    • Ie- can’t just go in IRS office raising hell

UVA v. Rosenberger, UVA not funding christian publication b/c “can’t use $ for religious newspaper b/c violates establishment clause. (est. cl. Argument struck down, reassess later)

  • UVA was designated public forum open to student organizations → can’t discriminate based on content
    • UVA allowed other religious organizations to become published through school but not religious organizations → this was probably viewpoint
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