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Feiner v. New York – hostile audiences & the 1st amendment

Explore Feiner case, police discretion, Black's dissent, post-Feiner cases, Terry Jones incident, & free speech implications.

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Feiner v. New York – hostile audiences & the 1st amendment

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  1. Feiner v. New York – hostile audiences& the 1st amendment • Cantwell recognized speaker cannot be punished for trying to persuade others about offensive ideas. BUT also that • Abusive epithets are not protected (fighting words); and • A speaker who intends to provoke violence or disturbance of good order is not protected – we deal with this situation now • What did Feiner do to cause the Court to conclude that he had “undertaken incitement to riot”? • Why had he “passed the bounds of argument & persuasion” so the police were “justified” in concluding that “a clear and present danger of disorder was threatened?” • Do Feiner’s actions show “intent” to incite the crowd against him? Do they show that the crowd simply didn’t like what he had to say? • Was there a “clear and present danger” of disorder?

  2. Feiner & Police Discretion • SCT notes that absent improper motives, police have great discretion to determine when a speaker is “undertaking to” cause a clear & imminent danger of disorder: • What kind of guidance does the concept of ‘clear & present danger of disorder’ give to the police who are trying to determine whether to intervene and stop a speaker when the crowd is hostile? • Can we readily discern police motives regarding why they shut speakers down? • Where should we look to determine police motives? • How often are such motives overtly “improper”?

  3. Feiner& the Black dissent • Justice Black contends that the police should make “all reasonable efforts to protect” the speaker: • What should such efforts entail? • How does this approach differ from the majority’s focus on whether D was “inciting a riot” and presenting, in the police’s good faith belief, a “clear and present danger” of disorder?

  4. Feiner’s Aftermath – Cox, Edwards, & Gregory • Post-Feiner cases - really a “far cry from Feiner?” • Edwards – 80ish protestors/crowd of 200-300/30 police • Cox – 2000 protestors/crowd of 100-200/80 police • Gregory – 85 protestors/crowd of 1000/? Police • What principles do they establish different from Feiner?

  5. Terry Jones & hostile audiences • In the first incident – p. 543 – Should the police have removed Jones or tried to protect him per the case law we’ve seen? • Is the restraining order “because he was likely to breach to peace” in the immediately succeeding incident (p. 544 top) markedly worse or better from a free speech perspective?

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