Intro & Lesser Protected Speech

Fully protected speech

Speech not within categorical exceptions

Lesser protected speech

Categorical exceptions to full protection of speech

Ex: Incitement, obscenity, threats, etc

How do you know if something is a categorical exception/lesser protected speech?

History/tradition. If there is long standing history of the speech being restricted in USA, it is lesser protected speech. 

content-based restrictions

• restrict speech based on its topic or message

• Test: Strict scrutiny 

• Ex: Law says “no abortion protests”

Content neutral restrictions

• Restrict speech based on time, place, or manner of expression

• Test: Intermediate scrutiny

• Ex: Law says “no loud trucks in residential area after 10pm”

Sullivan elements for defamation (or “actual malice”?)

need to revisit this 

What if the false speech has no legally cognizable harm?

Speech is fully protected, and any restrictions on it are subeject to intermediate scrutiny. US v. Alvarez

Incitement: 

Advocacy of lawless action 

Brandenburg Test for incitement

1. (1) Intent: the speaker intended to incite lawless action

2. (2) Likelihood: the speech was likely to incite someone to act

   1. What makes an offense likely to occur:

      1.  Context (opportunity is there) 

      2. Character of the speaker (Someone you know vs. a stranger)

      3. Character of the audience 

3. (3) Imminence: the lawless action was imminent; not an indefinite future time, but within the immediate future

   1. Would happen so quickly that counterspeech won’t have enough time to intervene

If the speech hits these 3 requirements, speech can be regulated.

Threat vs Incitement

Threat = What you are going to do 

Incitement = what you are trying to get others to do

Standard for threats

 mens rea requirement of recklessness → conscious disregard of substantial risk that statements will be viewed as threatening

if such is true, not protected by 1st Am

Fighting words definition from Chaplinsky

Direct personal insult or epithets (face-to-face context) that are likely to cause an immediate breach of the peace.

Cohen v. California

“fuck the draft” shirt

• not fighting words bc not directed at a particular person

IIED Framework (speech on public concern vs private concern)

1. IIED on public concern = protected speech (Snyder) 

   1. What is speech on a matter of “public concern”?

      1. Look at the context, form, content and overall theme/thrust of the speech. 

2. IIED on private concern = unprotected speech (we think)