MEJO 340 First Exam

The Miller Test

Test whether a work is obscene:

1. “The average person, applying community standards,” would find that the work appeals to prurient interests

2. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law

3. The work lacks serious literary, artistic, political, or scientific value.

Indecency

Nonconformance with accepted standards of morality.

Protected in print media, recordings, and the internet. Can be regulated in broadcast thanks to the Communications Act of 1934. FCC Acts against it.

Spectrum Scarcity

Limitation of the number of segments on the broadcast spectrum that may be used for radio and television in a geographic area. Principal reason why the government can regulate broadcasters.

Public Interest Standard

The idea that the public interest comes before the interest of the broadcasters.

Safe Harbor Policy

FCC will not punish a broadcast station that airs indecent but not obscene material between 10 p.m. and 6 a.m.

Brandenburg Incitement Test

Speech may be punished if:

1. It is directed to inciting or producing imminent lawless action

2. It is likely to produce such action

True Threat Test (Virginia v. Black and U.S. v. Elonis) CHECK

“Creates a pervasive fear that a person is the target of violence”

Directs the message to an individual group

1. Intends to threaten, and

2. Knows a reasonable recipient will perceive the threat

Fighting Words (Chaplinsky v. New Hampshire)

1. Chaplinsky was distributing Jehovah’s Witness pamphlets, 

2. Defendant called an officer a 'god d****ed racketeer' and a ‘damned fascist’ and was arrested

3. Considered to be inciting a “breach of the peace”

FIGHTING WORDS DEFINITION

1. Include a direct personal insult addressed to the individual

2. Inherently likely to provoke violence

Media Liability for Negligence

1. Reasonably forseeable harm OR

2. Proximate (direct cause) of harm

Tinker Test

School speech can only be censored if it provides a “substantial disruption” to school activies

Court review of Non-University-Student Speech

1. Is the speech disruptive? If the speech disrupts the functioning of the public school or violates the rights and interests of other students, it may be regulated under Tinker

2. Is the speech of low value? If the speech is lewd or if it conflicts with the school’s pedgogical goals or public values, it may be regulated under Fraser

3. Is the speech sponsored by the school of perceived to reflect the school’s official position and endorsement?

Near v. Minnesota

Publisher of a Minneapolis paper printed charges that city officials allowed Jewish gangsters to run gambling businesses; court shut down paper. 

Prior Restraints on publication are unconstitutional EXCEPT when a communication is:

-Obscene

-Incites violence and the overthrow of government

-Reveals military secrets

AND the government makes a specific showing that a prioii restraint is justified.

Strict Scrutiny

-Required for content-based restriction

1. Be necessary

2. Employ the least restrictive means

3. To advance a compelling government interest.

Intermediate Scrutiny

Content-Neutral laws are constitutional if they restrict speech as little as necessary to advance an important government interest unrelated to speech. (Times, place, and manner)

U.S. v. O’Brien

O’Brien burned his draft card as an act of symbolic speech. Supreme Court upheld his conviction on the basis that the law banning burning draft cards was content-neutral, served a substantial government interest in ensuring the operation of the military draft, and caused only minimal harm to O’Brien’s speech. O’Brien could’ve expressed opposition through alternative channels.

O’Brien Test

Content Nuetral Law is constitution if:

1. Unrelated to the supression of speech,

2. Advances an important or substantial government interest

3. Narrowly tailored to acheive that interest while only incidentally restricting protected speech.

Snyder v. Phelps (Westboro Case)

Outrageous speech on a public sidewalk about a public issue cannot be punished.

Traditional Public Forums

•Places that, traditionally, have been open for citizens to speak freely. They typically include streets, parks, and sidewalks. Gov’t regulations must be content-neutral. They must be open.

•In Chapel Hill: Outside the Post Office

Designated or Limited Public Forum

•These are places that are designated for certain types of speech, but are not generally open to the public. (You can’t just walk in and start speaking. Some permission is needed.) A public university’s lecture hall or a meeting room are examples. The side of a city-owned bus for advertisements is another. The government cannot discriminate on viewpoint. Time, place, manner restrictions may be imposed, and govt’s can decide it is not open as long as the reasons are not about the content.

•In Chapel Hill: CA 33, Dean Dome

 Open to the public but people generally can’t speak without permission

University classrooms, high school newspapers, fairgrounds, bus advertisements are designated for certain kinds of speech.

-Regulations under intermediate scrutiny

Nonpublic forums

•These are government-owned facilities that are traditionally not open to speech. Office buildings, jails, military bases and airports are examples. Content-based restrictions are OK.

•In Chapel Hill: Horace Williams airport, UNC police office.

Lindke v. Freed

Public officials can’t block users or delete comments on a social media account.

1. Rationale: public official who prevents someone from commenting on the official's social media page engages in state action only if the official both

   1. Possessed actual authority to speak on the state's behalf on a particular matter

   2. Purported to exercise that authority when speaking in the relevant social media posts

U.S. v. Alvarez

Stolen Valor Act violates the Constitution. Falsity alone does not take speech outside of First Amendment protections. The marketplace of Ideas can fight against false information.

1. Compelling interest? — yes, but can be handled by counterspeech.

2. Narrowly tailored? No, not least restrictive means. 

   1. "almost limitless times and settings"

Cohen v. California

SCOTUS overturned Cohen’s conviction for wearing a jacket with the phrase: “F the Draft” in an LA courthouse. The court said that “one man’s vulgarity is another’s lyric”. Government can’t ban speech because it contains offensive language.

NYT v. US (Pentagon Papers)

1. Facts of the case

   1. NYT tries publishing papers on the start of the Vietnam war

   2. Nixon asked for injunction to prevent papers from being published and it was granted, said was threatening national security. 

2. Ban wasn’t essential to preventing 'direct, immediate and irreparable' harm to the nation or its people

3. Government bears the burden of proof

NRA v Vullo

NY Department of Financial Services Maria Vullo violated the 1st Amendment by coercing regulated financial and insurance entities to sever business ties with the NRA to suppress them.

TikTok v. Garland

1. 'Protecting Americans from Foreign Adversary Controlled Applications Act' — would make it illegal for any entity to provide services to maintain or update a foreign adversary controlled application in the US

   1. App prohibited 270 days after application designated a foreign adversary

   2. HOWEVER apps are exempt if they undergo 'qualified divestiture'

2. Applied a content-neutral test

   1. Intermediate scrutiny 

      1. Substantial interest

      2. Alternative channels

      3. Narrowly tailored 

3. Court says provisions are not 'substantially broader than necessary'

4. They HELD the decision of the Circuit Court, and said the act does not violate the 1A rights of the petitioners.

Dames et. al v. Roberts

1. Plaintiffs receive letter saying they had to depart campus by 6am on April 30th for safety reasons, they allege they never received it.

2. Plaintiffs appeal their campus bans as part of the trespassing notice

3. Limited public forum

4. NOT mounting a challenge against the ban in general, just as it is applied to them

5. Plaintiffs engaged in protected speech; but violated university policy meaning the external standard must apply.

6. COntent BASED

7. Ruled with the plaintiffs, preliminary injunction issued.

   1. University didn’t have a strong enough rationale to justify a multi-year ban. Concern with the fact that there was only one party that could decide whether or not the ban was lifted. 

   2. Seemed like the ban wasn’t applied in a neutral manner. 

   3. Past campus protesters didn’t receive the same treatment (plaintiffs managed to prove disparate treatment) 

8. Judge Schroeder found that by issuing indefinite, sweeping campus bans against specific protesters, the university likely engaged in viewpoint discrimination within that forum, which is a direct violation of the First Amendment.

Political Speech

Strict Scrutiny Test

Commercial Speech

Prohibitions on false and misleading commercial speech must satisfy the intermediate scrutiny test.

Sexual Speech

Obscenity is not protected over broadcast

Indecent speech is sometimes protected over broadcast

Violent Speech

Fighting words, incitement, and true threats are not protected

Obscenity definition

Speech in which the average person, applying contemporary community standards, would find the work taken as a whole appealed to the prurient interest, meaning “exciting lustful thoughts”

Overbreadth

Principle that directs courts to find laws unconstitutional if they restrict more activity than necessary

Vagueness

A law is unconstitutional under the First Amendment if it fails to give ordinary people fair notice of what is prohibited and lacks explicit standards of enforcement, creating a “chilling effect.”

Hate Speech

Protected by the First Amendment. Expression that seeks to malign people based on their fixed identity characteristics.

Marketplace of Ideas

Free exchange of ideas was vital to the discovery of truth. Censors invariably fail at their task. Competition of ideas is needed to separate falsehoods from facts. Falsehoods sometimes become truths. When there is an open marketplace of ideas, the best ideas can rise to the top.

Self-Governance

Free speech and a free press can serve as a powerful check on the government and are necessary for a vital democracy.

1. Alexander Meiklejohn

   1. Absolute protection for political speech

   2. Critical for self-governance

   3. Not a natural right (government gives you the power)

   4. Society can punish speech for the sake of general welfare

   5. Time, place and manner allowances needed

2. Vincent Blasi:

   1. Free speech is the checking value on government power

   2. Watchdog value

Self-fulfillment/autonomy

Free expression is a natural right, and the government has no innate ability to regulate it.

1. Thomas Emerson: Freedom of expression is essential to

   1. Speech as a natural right

   2. Developing individual self-fulfillment

   3. Advances knowledge

   4. Participate in democracy

   5. Maintain a stable community

Seditious Libel

Communication meant to incite people to change the government; criticism of the government. Protected by the first amendment and restrictions must satisfy the strict scrutiny test.

1. Alien Sedition Act 

2. Seditious libel prosecutions (criticism of the government)

3. Federalists sought to silence critics

4. NY Times v. Sullivan (1964) officially eliminated seditious libel in the US

Tinker v. Des Moines

1. Students wore black armbands to support the Vietnam War and were suspended. Didn’t disrupt classes. 

2. Symbolic expression ‘akin to pure speech’

3. Tinker established that students are protected in their ability to express themselves on school property, except when there's a substantial or material disruption to the functioning of the enterprise 

Virginia v. Black

OBJECTIVE V. SUBJECTIVE INTENT

1. State can prohibit cross burning by state if purpose of burning is to intimidate. Just because of it’s inextricable link to racial violence in the south doesn’t mean it’s necessarily a threat. 

2. Issue in this case was proving intent to intimidate. Case ASSUMED that intent was shown

3. Lower court jury instructed to see act as intimidating without determining 'actual intent'

4. Actual punishable threats must:

   1. Be directed towards one or more individuals 

   2. Intend to cause listeners to 

   3. Fear bodily harm

Brandenburg v. Ohio

1. Vague threats to KKK members to take "revengeance" against government leaders

2. Convicted as attempting to violently overthrow the government 

3. Drew a line between advocating for violence in the abstract and inciting imminent violence

   1. Defined incitement as speech ‘directed to produce imminent lawless action’ and ‘likely to produce or result in such lawless action’

4. Defendant’s conviction was overturned, court said you can advocate abhorrent ideas. 

5. Must be:

   1. Directed towards inciting or producing lawless action

   2. Be likely to produce that action. 

State action

State has to try to take AWAY your rights for them to be protected

1. Any conduct performed by a government entity, person, organization that has the right to be regulated by the constitution

2. Negative right.

How many district courts? Circuit Courts?

94; 13

How does the NC court system work? 

1. NC Court System

2. APPELLATE DIVISION

   1. Supreme Court – 6 justices plus a chief justice

   2. Court of Appeals — 15 judges, sit in panels of three. 

3. SUPERIOR courts; libel cases, misdemeanors for criminal cases, etc.

   1. Felony crimes

   2. Civil cases of more than $25,000

4. DISTRICT courts (trial courts)– civil, criminal, juvenile, magisterial, etc. This is where civil and criminal cases are filed. 

Roots of First Amendment

• English Bill of Rights

• Milton’s Areopagitica, literary defense of governments censoroing books/printing press. 

• John Locke — gov’s have no rights to mandate religious beliefs.

What does censorship look like today/how is it different?

1. Coding to prevent access to online resources

2. Press crackdowns; banning certain papers from accessing public office or the public more broadly. 

3. Intense mis/disinformation regulation. 

Objective Intent

whether a reasonable person would consider the message a threat,

Subjective intent

What the speaker intended with their words

•R.A.V. v. St. Paul (1991)

Fighting words case

–Several teens burn a cross on a Black family’s lawn

–Local bias-motivated criminal ordinance:

•Prohibits display of a symbol which “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”

–SCOTUS: Ordinance was overbroad.  Could have been convicted under other ordinances (like arson, terror threats). Statute is viewpoint discriminatory, prohibits views on disfavored subjects.