Regulating “ Offensive ” Speech

1. Regulating “Offensive” Speech • Cantwell v. Connecticut: Cannot punish speaker for offending others when the speaker is merely trying to persuade others as to his viewpoint • UNLESS speaker intends to provoke violence or disturbance of good order (hostile audiences) • UNLESS speaker uses profanity, indecent or abusive language • Chaplinsky finds that “fighting words” (often including profanity/epithets) are low value speech BUT later cases (Cohen/Gooding, etc) establish tight contextual standards for punishment • Cohen also notes that cannot regulate profanity simply to civilize discourse absent privacy interest being invaded (e.g., captive audience)

2. Cohen & the captive audience – when CAN we regulate speech that is merely offensive? • “The mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. The government may properly act . . . to prohibit intrusion into the privacy of the homeof unwelcome views and ideas which cannot be totally banned from the public dialogue, but we have at the same time consistently stressed that ‘we are often ‘captives' outside the sanctuary of the home and subject to objectionable speech.’ The ability of government, . . . to shut off discourse solely to protect others from hearing it is . . . dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.” • Note the questions this raises: • Where are audiences “captive” – i.e., when is privacy invaded? • To what kind of speech can audiences be considered captive – i.e., what does it mean for speech to be “offensive” so that it invades that privacy interest?

3. Captive Audience – Noisy Sound Trucks • City enacts a law regulating noisy sound trucks in residential neighborhoods at night based upon an interest in protecting residential privacy. • Does this entail protection of a ‘captive audience’? Why or why not? • What factors suggest the audience is “captive?” • Could you punish speaker shouting profanity through bullhorn under law preventing unwanted “obscene & profane speech” in the home?

4. Captive Audiences in Public Arenas? • At a WVU basketball game against Ohio State, the students (largely led by a school sponsored organization) could be heard audibly shouting profanity at the opposing team in order to “get into the head” of their star player. This profanity from the student section has become an increasing trend at WVU games and has become so loud that it can be heard during televised broadcasts of the game. Despite school official’s pleas to tone down the profanity, students continue to use it during games. • Could the school enact a policy punishing students using profanity at games, claiming it was justified by the captive audience doctrine? • How is this situation different from the sound trucks situation and does it matter? • Are there other ways to resolve this problem?

5. Feiner v. New York – Hostile Audiences & the 1st Amendment • What did Feiner do to cause the Court to conclude that he had “undertaken incitement to riot”? • In other words, that Feiner had “passed the bounds of argument & persuasion” and that the police “were justified” in concluding that “a clear and present danger of disorder was threatened?” • Do his actions show “intent” to incite the crowd? Does it show that the crowd simply didn’t like what he had to say? • Was there a “clear and present danger” of disorder?

6. Feiner & Police Discretion • Feiner gives police discretion to determine when a speaker is causing problems. • SCT notes that absent improper motives (i.e., desire to suppress viewpoints), police have great discretion to determine when a speaker is causing a clear & imminent danger of disorder • What kind of guidance does ‘clear & present danger of disorder’ give police when determining whether to intervene and stop a speaker? • Can we readily discern police motives regarding why they shut speakers down? • Where should we look? • How often are they overtly bad?