FREE EXPRESSION ISSUES

1. FREE EXPRESSION ISSUES 4/30/09

2. Hostile Crowd Reaction Cases

3. Terminiello v. Chicago (1949) FACT: A Catholic priest was convicted of disorderly conduct because the controversial public speech he gave angered part of his audience and opponents outside the building to the point where they started screaming and throwing rocks. DECISION: Conviction was overturned on basis that it violates 1st amendment to punish speaker solely on the grounds that he/she had stirred people to anger or brought about a condition of unrest.

4. Edwards v. South Carolina (1963) PRECEDENT: It is a violation of the first amendment, as applied to the states through the 14th amendment due process clause, for a state to use a breach of peace statute to stop a peaceful demonstration.

5. Cohen v. California (1971) PRECEDENT: It is a violation of the first amendment, as applied to the states trough the 14th amendment due process clause, for a state to punish a person for displaying a vulgar comment about a political subject on an item of clothing worn in public.

6. Cohen v. California (1971) Obscenity: QUOTE: "Whatever else may be necessary to give rise to the state's broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. It cannot plausibly be maintained that this vulgar allusion to the selective service system would conjure up such psychic stimulation in anyone likely to be confronted with Cohen's crudely defaced jacket."

7. Cohen v. California (1971) Offensiveness: • Although the mode of expression may well be offensive or distasteful to some people, that fact doesn't give state power to prohibit Cohen's actions. • State can provide some protection against invasion of privacy in home, but it cannot cut off public dialog just because others may not want to hear it. • QUOTE: "Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections."

8. Cohen v. California (1971) Offensiveness: • Other people in courthouse could avoid being offended by simply averting their eyes. • QUOTE: "Surely, the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. ... For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric."

9. Cohen v. California (1971) Fighting words: • Concept that personal insults are not protected by the 1st amendment. • QUOTE: "While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not 'directed to the person of the hearer. No individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult."

10. National Socialist Party v. Skokie ISSUES RAISED: • Do fascists have a right to free speech? • Can state ban wearing of Nazi uniforms or display of swastika symbol? • Can the march be excluded from Skokie due to its large number of Jewish and survivor residents? • Can march be stopped as result of threats of violence?

11. HATE SPEECH

12. Key Definitions • Hate speech is speech that involves the expression of hatred for, and/or violence against, a specific minority group or other protected class of people. • Politically incorrect speech is speech that uses words or expresses viewpoints that are deemed offensive by some groups of people.

13. Example of a Hate Speech Law St. Paul Minnesota Bias-Motivated Crime Ordinance that was challenged in R.A.V. v. City of St.Paul, Minnesota (1992)] read: "Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor."

14. Arguments for Restrictions on Hate Speech • What are the arguments in favor of regulating hate speech?

15. Arguments for Restrictions on Hate Speech • Racial insults should be prohibited because they are intended to injure the victim rather than to discover truth or initiate dialog. • Since hate speech causes more harm than other types of speech, the government should be able to enforce laws that focus on these special problems. • In Brown v. Bd. of Education court discussed the importance of protecting black children from practices that send a message of blacks being inferior.

16. Arguments Against Restrictions on Hate Speech • What are the counter-arguments against regulating hate speech?

17. Arguments Against Restrictions on Hate Speech • It violates the first amendment because it is a limitation on free speech. • If we excise all of what is described as hate speech, we severely truncate our discussion of important public issues. • Anger and resentment can be effective ways of motivating people to take political action. • There is no objective criteria government can use to make these determinations.

18. Arguments Against Restrictions on Hate Speech • Reference to Brown v. Bd. of Education is not appropriate because there it was the government that was sending signal of inferiority. Here the government is not associated with the message. • Protection of racist speech reinforces our society’s commitment to tolerance as a value.

19. Hate Speech Regulations There are three major questions involved in hate speech regulations: • Who should be protected? • What should they be protected from? • Are they constitutional?

20. Hate Speech Regulations • Who should be protected? Usually defined in terms of membership in certain groups such as African-Americans, gays & lesbians, women, etc. • Where do you draw the line? Arabs, Hispanics, Asians, Muslims, etc,?

21. Hate Speech Regulations What should they be protected from? • “Politically incorrect” language? • Derogatory epithets and slurs? • Threats that are designed to intimidate or invoke a violent reaction?

22. R.A.V. v. City of St.Paul, Minnesota (1992) FACTS: • Seventeen year old high school dropout and friends burned a cross on the lawn of a black family living across the street. • The defendant's attorney moved to dismiss the charges on the basis that the St. Paul Bias-Motivated Crime Ordinance upon which the prosecution was based was unconstitutional.

23. R.A.V. v. City of St.Paul, Minnesota (1992) The ordinance in question provided that: "Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor."

24. R.A.V. v. City of St.Paul, Minnesota (1992) PRECEDENT: It is a violation of the first amendment, as applied to the states through the 14th amendment due process clause for a state or local government to prohibit the use of fighting words which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.

25. R.A.V. v. City of St.Paul REASONING SUMMARY: • The ordinance is unconstitutional (even as limited to fighting words) because it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses. • First amendment prohibits gov. from proscribing speech because it disapproves of the ideas being expressed. • St. Paul ordinance only punishes fighting words involving race, color, creed, religion or gender--not those involving political affiliation, union membership, homosexuality, etc.

26. R.A.V. v. City of St.Paul REASONING SUMMARY: • Not content neutral • St. Paul ordinance only punishes fighting words that reflect racial bias and assert notions of racial intolerance and superiority--not fighting words used to express the opposite point of view. • Better alternatives available • St. Paul could achieve its compelling interest by alternative means. "...without adding the First amendment to the fire.“ • Three justices also argued that the statute was void for vagueness.

27. Virginia v. Black (2003) FACTS: • Defendants Black, Elliott, and O’Mara were charged in separate cases for having violated a Virginia statute prohibiting cross-burning • Statute prohibited burning a cross on public property or someone else’s property with the intent of intimidating any person or group of persons.

28. Virginia v. Black (2003) FACTS (Cont.): • Another part of the statute held that “Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.” • Defendants Black and Elliott pleaded not guilty while O’Mara admitted to having violated the statute while reserving his right to challenge its constitutionality. • All three argue that the statute violates the 1st amendment.

29. Virginia v. Black (2003) HOLDINGS: • It is not a violation of the 1st amendment free speech clause (as applied to the states through the 14th amendment due process clause) for a state to prohibit one from burning a cross on public property or the property of another when it is done with the intent to intimidate. • It is a violation of the 1st amendment free speech clause (as applied to the states through the 14th amendment due process clause) for a state to pass a statue against cross burning that treats any cross burning as prima facie evidence of intent to intimidate.

30. Virginia v. Black (2003) REASONING • First amendment is not absolute. • State can ban “true threats” that communicate a serious expression of an intent to commit an act of unlawful violence. • History shows cross burning is often intimidating and intended to create a pervasive fear of violence.

31. Virginia v. Black (2003) REASONING (Cont.): • Court distinguishes R.A.V. v. City of St Paul on the basis that the Virginia statute does not single out speech directed at a particular audience or a specific topic. • It doesn’t matter if the intimidation is based on race, gender, religion, political affiliation or sexual orientation.

32. American Booksellers Assn. v. Hudnut771 F.2d 323 (1985) • This is test case of the Indianapolis obscenity ordinance. • What was the nature of this ordinance?

33. Indianapolis Porn Ordinance-I Pornography is defined as the graphic sexually explicit subordination of women, whether in pictures or words, that also includes one or mor of the following: • Women are presented as sexual objects who enjoy pain or humiliation; or • Women are presented as sexual objects who experience sexual pleasure in being raped; or • Women are presented as sexual objects tied up or cut up or mutilated or bruised or physically hurt, or as dismembered or truncated or fragmented or severed in body parts; or

34. Indianapolis Porn Ordinance-II • Women are presented as being penetrated by objects or animals; or • Women are presented in scenarios of degradation, injury, abusement, torture, shown as filthy or inferior, bleeding or bruised, or hurt in a context that makes these conditions sexual; and • Women are presented as sexual objects for domination, conquest, violation, exploration, possession, or use, or through postures of servility and submission or display.

35. Porn As Hate Crime • How is this ordinance related to the concept of hate crimes?

36. Porn As Hate Crime • How is this ordinance related to the concept of hate crimes? • Because it only opposes a particular type of pornography that presents a particular point of view about women. • It portrays women in an unrealistic and uncomplimentary way. • It sends the message that it is acceptable to treat women as sex objects.

37. American Booksellers v. Hudnut HOLDING: It is a violation of the first amendment as applied to the states through the 14th amendment for the government to prohibit the portrayal of women as sexual objects.

38. American Booksellers v. Hudnut REASONING: • Ordinance is not consistent with Miller standards because there is no consideration of prurient interest, community standards, or literary, artistic, political, or scientific value. • Under this ordinance Homer’s Illiad and James Joyce’s Ulysses could be banned. • Although the court recognizes that porn can have negative consequences, but rules that it must nevertheless be treated as speech.

39. American Booksellers v. Hudnut REASONING: • Under free speech standards the ordinance is unconstitutional because it is not content neutral. • It is a form of thought control in that it establishes an “approved view of women and how they may react to sexual encounters.

40. Penalty Enhancement Statutes A penalty enhancement statute provides for a stiffer penalty if the jury finds the crime victim had been specifically selected on the basis of race, religion, color, disability, sexual orientation, national origin or ancestry.

41. Wisconsin v. Mitchell (1993) FACTS: • After seeing the movie Mississippi Burning (in which a white man beats a black boy) Todd Mitchell and several other young black men badly beat a white boy just because he was white. • Jury found the defendant’s guilty of assault and determined that the crime victim had been specifically selected on the basis of race, religion, color, disability, sexual orientation, national origin or ancestry.

42. Wisconsin v. Mitchell (1993) PRECEDENT: It is not a violation of the free speech clause of the 1st amendment (as applied to the states through the 14th amendment) for a state to increase the severity of the penalty for a crime in situations where the victim was selected because of his/her race, religion, color, etc.

43. Wisconsin v. Mitchell (1993) REASONING SUMMARY: • A physical assault does not qualify as expressive conduct under the first amendment. • Bias inspired conduct is legitimately singled out because it inflicts greater societal harm. • No realistic threat posed to chilling free speech.

44. Wisconsin v. Mitchell (1993) • ACLU opposes these types of penalty enhancement laws because they involve looking into people’s beliefs rather than their actions. • In Mitchell the Supreme Court ruled that the 1st amendment doesn't prohibit evidentiary use of speech to establish the elements of a crime or prove motive or intent.

45. FREEDOM OF THE PRESS

46. REGULATION OF BROADCAST MEDIA

47. Red Lion Broadcasting Co.,Inc. v. FCC (1969) FACTS: • FCC ordered radio station to give "equal time" to the author of a book that was criticized on a program produced at the station. • The station refused and challenged the FCC's authority to issue such an order.

48. Red Lion Broadcasting Co.,Inc. v. FCC (1969) HOLDING: It is not a violation of the first amendment for the Federal Communications Commission to condition the granting and renewals of broadcast licenses on the willingness of the broadcaster to provide "balanced" coverage on controversial issues and to provide responses to individuals who were criticized on the air.

49. Red Lion Broadcasting Co.,Inc. v. FCC (1969) REASONING: • Federal government can exercise control over broadcast media that it could not exercise over print media because government owns the “air waves” • Government can impose limits on the use of the air waves in return for licensing the privilege to use them.

50. Special Rules for Broadcast Media • Since 1969 decision in Red Lion case, the growth of cable and satellite television has created a two-tiered system in which the content of network and local station TV programs have to abide by FCC regulations, but programs sent via cable and satellite do not. • In FCC v. Fox Television Stations, Inc. Justice Thomas indicated (obiter dicta) that he would vote to overrule Red Lion. There is reason to believe that an appropriate case for that may come up next term and that other justices might support his position.