Unprotected Speech April 12, 2005

1. Unprotected Speech April 12, 2005 Con Law II

2. How can speech be unprotected? • Interpretive theory • Strict textualism: no distinction among subjects of speech, even if some modes not protected • Original intent: framers probably did not intend to protect libel, indecency, threats, etc. (perhaps only “prior restraints”) • Broad textualism/dynamic, evolving const: core values underlying the 1st Amendment: • Self-fullfilment / personhood • Search for truth / marketplace of ideas • Self-governance / political marketplace speech that doesn’t serve any underlying purpose of the 1st Am. may be unprotected Con Law II

3. How can speech be unprotected? • Functions of speech (speech act theory) • Expressive (illocutionary, informational) • Instrumental (perlocutionary) • Speech is the “trigger of action” (so closely associated with action) • as to disallow any intermediation (free will) • shouting “fire” in a crowded theater • treated functionally as part of the action • Instrumental speech is not speech; it is conduct • Performative speech • Saying “this is a holdup” means (literally) this is a holdup • The words and the act are unitary Con Law II

4. How can speech be unprotected? • Interpellative effect of speech on listener • Speech Impact (emotional effect) • “I am going to kill you” is not merely expressive; • it creates an emotional response • “Sticks and stones” theory notwithstanding • Not to be confused with “2dary effects doctrine” • Summary: • Speech that doesn’t serve 1st am purposes • Instrumental speech • Injurious speech if one or more of these apply, you may have unprotected speech Con Law II

5. Categories of unprotected speech • Subversion • Incitement of imminent lawlessness • Threat/Solicitation of crime • Fighting Words • Defamation • Hate Speech (“group libel”) • Obscenity • Functional (Performative) Speech Con Law II

6. Chaplinsky v. NH (1942) • “You are a God damned racketeer and a damned Fascist” • “No person shall address any offensive, deri-sive or annoying word to any other person …” • Are “fighting words” speech? • Injurious utterance • True of any epithet? • Instrumental (trigger of action) • Likely to provoke the average person to retaliation • The words are integrated with the violent response Con Law II

7. Fighting Words Doctrine • Limited by Chaplinsky test • objectively likely to incite a breach of the peace • reasonable listener standard • Injurious utterance theory narrowed • There may be expressive value to epithets Con Law II

8. R.A.V. v. St. Paul (1992) • Is cross-burning speech? • Symbolic speech • What message is being communicated? ideological (protected political speech) Con Law II

9. R.A.V. v. St. Paul (1992) • Is cross-burning speech? • Symbolic speech • What message is being communicated? threats of violence (not protected) Con Law II

10. R.A.V. v. St. Paul (1992) • Is cross-burning speech? • Symbolic speech • What message is being communicated? ideological (protected political speech) AND “True Threats” (unprotected) Con Law II

11. R.A.V. v. St. Paul (1992) • As speech, cross-burning can be both protected and unprotected • St. Paul prohibits cross-burning that • “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion, sex” • As construed by state supreme court, this term is equivalent to “fighting words” [intimation similar] • But: not all fighting words prohibited; only those based on race, etc. • Viewpoint-based distinction within a category of unprotected speech Con Law II

12. R.A.V. v. St. Paul (1992) • Discrimination within unprotected speech • E.g., some obscenity, libel, fighting words, etc. permitted depending upon viewpoint expressed • Government-imposed orthodoxy violates 1st, whether speech allowed is protected or not. • This doesn’t mean gov’t must proscribe all of a category of unprotected speech; it may select • So long as the basis for distinguishing tracks the reason that category is unprotected in the first place • E.g., especially provocative “fighting words” • Or because of “2dary effects” (adult speech only) • Or reasons unrelated to gov’t approval of views doesn’t this describe the St. Paul law? Con Law II

13. Virginia v. Black (2003) • VA Statute: • “unlawful for any person … with the intent of intimidating any person … to burn … a cross on the property of another [or a] public place” • Conduct or Speech? • Which is the VA law prohibiting? • I.e., is this an anti-speech or non-speech regulation? • proscribes only intimidation (“true threats”) • Does it survive R.A.V.? • Yes, to extent it prohibits all intimidation (unprotected speech) Con Law II

14. Virginia v. Black (2003) • Wisconsin v. Mitchell (1993) • Enhanced punishment for hate motivated crimes • Punishment for conduct, not speech • hate crimes inflict greater individual & societal harms • emotional harm beyond basic injury • more likely to incite retaliatory crimes Con Law II

15. Virginia v. Black (2003) • VA Statute: • “any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons” • ignores all of the contextual factors necessary to decide whether a particular X-burning intimidates • because it captures both protected symbolic speech and unprotected intimidating speech, it is • Overbroad (standing) [perhaps means too] • Black (protected speech) • Elliot/O’Mara (unprotected) (jus tertii standing) • the provision is facially unconstitutional Con Law II

16. Defamation • Libel & Slander • publication of a • false & injurious • statement of fact • “of and concerning” • plaintiff • Damages • Special • General • Punitive Con Law II

17. NY Times v. Sullivan (1964) • Where’s the state action? • State libel law (positive or common law) • 1st amd used as defense to the cause of actioin • Principles • Robust debate on issues of public concern • Any liability tends to chill speech • strategic protection for speech means even some falsity must be tolerated • Public officials • Public figures • Private persons Con Law II

18. NY Times v. Sullivan (1964) • Truth & Falsity • Truth must be a defense • Only provably false statements are actionable • Only statements of fact fit this requirement • Not opinions, parodies (not reasonably taken as fact) • Falsifiable statements actionable only if • Private figure • Public official/figure – actual malice standard • knowledge that the statement is false • reckless disregard for whether it is false or not • negligence (e.g., failure to check facts) not sufficient • Is there any value in false speech? Con Law II

19. NY Times v. Sullivan (1964) • Burden of proof • On plaintiff at all times • By clear and convincing standard • Damages • Actual malice – full range • Private figure(no malice) – actual damages only • Public Persons • Public officials • Public figures • “those by reason of the notoriety of their achieve-ments, or by the holding of the public’s attention” Con Law II

20. Gertz v. Welch (1974) • Provable case of libel (per se) • Unless “actual malice” required • Public figures • access to self-help (channels of communicat’n) • voluntary assumption of close public scrutiny • Involuntary public figure? No, see Time v. Firestone • General purpose public figure • general fame or notoriety; like high public official • Limited purpose public figure • if thrust into limelight re subject matter of libel Con Law II

21. Dun & Bradstreet v Greenmoss (1985) • Matters of public vs private concern • Greater 1st amd interest in promoting robust debate on public issues • Greater private interests otherwise • Negligent defamation on private matter • Actual (compensatory) damages • Presumed (general) damages • Punitive damages • Is the credit report a public or private matter? Con Law II

22. Cohen v. California (1971) • What theory to claim profanity (“Fuck the Draft”) is unprotected • Obscenity • Fighting words (gross insults, epithets) • not used (or claimed) in this way here • Incitement to violence (imminent lawlessness) • Injurious utterance • Non-expressive component of speech • Is profanity an expression of ideas or an instrument of assault? • Secondary effects? Con Law II

23. Cohen v. California (1971) • What theory to claim profanity (“Fuck the Draft”) is unprotected • Obscenity • Fighting words (gross insults, epithets) • not used (or claimed) in this way here • Incitement to violence (imminent lawlessness) • Injurious utterance • Non-expressive component of speech • Is profanity an expression of ideas or an instrument of assault? • Secondary effects? • No appeal to prurient interest • Not likely to provoke violent reaction • Doesn’t advocate lawlessness • Shocking but not harmful • Highly expressive (& political) • Only impact is on viewer Con Law II

24. Cohen v. California (1971) • Could state have regulated Cohen’s speech even though it was protected? • via Subject-Matter restrictions in a non-public forum • courthouses are not a traditional venue for free speech • Why didn’t it? Con Law II

25. FCC v. Pacifica (1978) • 18 USC § 1464 • “Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.” • Claims • Overbreadth • Doesn’t apply • Carlin not prosecuted under criminal statute • FCC order based on gen’l regulatory power Wikipedia H. R. 3687 Con Law II

26. FCC v. Pacifica (1978) • Claims • Protected non-obscene speech (indecent/profane) • Protection for profane speech • “slight social value” • Value varies with context • Special rules for broadcast • Uniquely pervasive presence (uninvited guest) • Uniquely accessible to children (daytime hours) • Licensing to promote public interest • Doesn’t apply to other telecom(Sable v. FCC) Con Law II

27. Obscenity • Categorical Balancing for Obscene Speech • Textualism – protected • Originalism – not protected by states in 1792 • Dynamic – lacks any social value • Non-interpretivism – universal judgment • federal legislation • state • international Con Law II

28. Roth v. US (1957) • Roth standard: • material that deals with sex in a manner appealing to prurient interest • material tending to excite lustful thoughts • lascivious desire or thought • utterly without redeeming social importance • The intractable obscenity problem • Objective vs. subjective standards • Stewart in Jacobellis v. Ohio (1964): “I know it when I see it” Con Law II

29. Paris Adult Theatre v. Slaton (1973) • Beyond unprotected speech • Obscenity is action not speech • arouses physical emotion • cognitive, emotional, reflexive? • Correlation betw. obscenity & crime • secondary effects - violence ag. women • Leads to antisocial behavior • corrupts morals • offends sensibilities of unwilling viewers/listeners • desensitizes people to rational thought • Fails to serve any underlying 1st am purpose ok for state to act on unproven assump-tions Con Law II

30. Miller v. California (1973) • Standards for unprotected obscenity • Works that depict or describe sexual conduct • Taken as a whole, appeals to the prurient interest in sex • using contemporary community standards • Portray sex in patently offensive way (hard core) • intercourse (normal or perverted) • masturbation, excretion, lewd exhibition of genitals • Taken as a whole, do not have serious literary, political, or scientific value • objective national standards Con Law II

31. Miller v. California (1973) • Standards for unprotected obscenity • Works that depict or describe sexual conduct • Taken as a whole, appeals to the prurient interest in sex • speech as conduct • Portray sex in patently offensive way (hard core) • injurious speech • Taken as a whole, do not have serious literary, political, or scientific value • no first amendment values Con Law II

32. Am. Book v. Hudnut (7th Cir. 1985) • Indianopolis law barring non-obscene porn • Pornography depicting women in demeaning way, as sexual objects, or pleasure in pain • Theories for expanding category of unprotected speech • Promotes violence against women • Promotes social bias against women • Making of porn exploits women • Holding: Viewpoint-based discrimination • Whether material is banned depends upon the message, not the pornographic content Con Law II

33. Ashcroft v. Free Speech (2002) • New York v. Ferber (1982) • Non-obscene child pornography can be banned because of the state’s important interest in protecting children from sexual abuse • children involved in film production • Child Pornography Prevention Act (CPPA) • Includes images (real or virtual) that appear to, but don’t actually, include children • can’t be justified on basis of protecting child actors • encourages pedophilia? • assists in prosecution of real child pornography Con Law II