Application of Brandenburg Hess v. Indiana - 1973 Facts: Vietnam protestor, “we’ll take the fucking street later or again” during a demonstration Not imminent NNACP v. Claiborne Hardware Co. – 1982 NAACP sponsored boycott of rally discriminating merchants in MS; “if you shop at the stores, we’ll break your necks” Not imminent & No likelihood Precedent condition Hyperbole Speech is protected when crowd is listening to a speaker and they are incited to act Re-cap of different tests Court formulated: BT: Blackstone Express Incitement Test: Massey - Hand CPD as BT Test: Holmes CPD as Speech Protective Test: Holmes/Brandeis Reasonableness Test: Gitlow, Whitney CPD Balancing: Dennis – Gravity x Probability of Harm vs. of Speech Brandenburg: advocacy directed to inciting or producing imminent lawless action likely to incite or produce that imminent lawless action Unlawful Advocacy vs. HAR Unlawful advocacy: A tells B to violate the law HAR: A angers B; B breaches peace Hostile Audience Response Heckler’s Veto: If listeners don’t like what the speaker is saying, the heckler can threat to riot causing the police to silence the speaker Police duty to control the crowd: Concerns: LE can use pretext to arrest the speaker; collusion with LE to heckler’s veto to win 1st duty control the crowd If police can’t control the crowd shut down the speaker Cantwell v. Connecticut - 1940 Jehovah’s Witness played a record on the street that anti-catholic propaganda; listeners wanted to beat him up; conviction – breach of peace No test articulated – CPD language Intent OR Express Language of Provocation To create a CPD of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace or order Ct looked at intent separately – Cantwell no intent to have listeners punch him No express language that is insulting individuals
Ct wants to shut down national market Low FOS value High social harm Social Value – low Ct still must define “child porn” Statutes MUST be: Specific Defining what type of speech Who is a minor To give notice O’Connor’s Concurrence: If there is a case that has serious SV – Ct will address later Brennan concurrence: If someone can show SV it is protected Osborne v. Ohio Facts: private possession of child porn (does Stanley v. GA extend to child porn) Rule: Gov’t can criminalize private possession of child porn Stanley does not extend It is about protecting the kids Ashcroft v. The Free Speech Coalition - Ashcroft II Facts: Child Pornography Prevention Act of 1996 – ban on virtual child porn (CSI or youthful looking adults) Unconstitutional substantially overbroad Reconciling with Ferber Outside the scope of Ferber - There is no injury to kids Reconciling with Miller Need a statute tied to Miller test to keep it from running against overbreadth; outside the of obscenity If statute tied to Miller probably constitutional SS Analysis: CSI – Congress concerned use of virtual porn will inhibit trying actual criminals using real kids But Ct doesn’t allow suppression of protected speech to get at unprotected speech NT - NO 2 options: pass stronger laws against pedophiles or parental safeguards O’Connor – joined in part, dissented in part Concurs - Statute unconstitutional when restricts speech youthful looking adults Dissent – Constitutional if NT when applied to CGIs because hard to prosecute US v. Williams statute that made it a crime to advertise, promote, distribute, etc. child porn; basically deals with virtual child porn that people believe to be actual porn; Fraud & solicitation
Burger & Rehnquist – Dissent: Theaters should take efforts to shield; modest burden; adults shouldn’t be subjected either – Dissent: we can protect adults & children outside of the home from offensive communications statute valid FCC v. Pacifica Foundation – 1978 [Important Case] Facts: Carlin’s 7 dirty words aired over the radio with warning during day Plurality – CN FCC may restrict speech via TPM Low value – not saying unprotected Technology: Radio, but not a ban (can play at night) Intrusiveness in the home Warning insufficient – people flip channels Audio rather than written - Children – can hear even if not old enough to read (referencing presumably unacceptable restrictions – bookstores) Single event – not recurring FCC should be given deference - Radio is finite resource SS but FCC wins Powell concurring in the judgment: Not Low Value speech, but the rest of the value is the same Brennan – Dissent: Protected speech Can turn it off; no invasion of privacy Burden on people who have to stay up late to hear the broadcast Violation of Butler v. Michigan; principle that adults have right to access info – can’t dumb adults access down to protect kids Communications v. FCC – 1989 [ very important – moving in the direction of a test] statute total ban prohibiting indirect phone communications - dial-a-porn Distinguish from Pacifica Technology: Phone – must take affirmative steps; not regulated Clearly establishes SS for CB Low value speech drops out App: Not NT - Less restrictive alternatives exist (credit cards for companies) No deference to FCC Reno v. ACLU- 1997 Facts: Communications Decency Act – restriction on non-obscene communications patently offensive to minors – early internet regs Distinguishing from Pacifica: Ban vs. TPM restriction Warning effective over interests Criminal (Reno) vs. civil punishment (Pacifica) Butler v. MI – dumbing down interests for kids SS – failed NT – filters Law is ambiguous – what does “indecent” mean? Less Restrictive Alternative exists – Credit card, v-chip, tagging, etc.
Alamdea Books - 2002 Facts: Reg. can’t have 2 adult business in one location, based on 1977 study that adult establishments are correlated with higher crime rates; closing an earlier loophole; Alameda – 2 business under same roof O’Connor – Plurality CN IS City can rely on old study from another city as factual support Kennedy – Concurring CN is pure fiction – really CB Test should be IS+ to ensure city is not attempting to ban the speech, which would be constitutional Souter – Dissenting Content Correlated; IS, but the strength of the test varies on the evidentiary support Lewd & Profane Overview Primary Effects CB (first section) Constitutional – but government generally loses on NT/Tech issues Valid CSI: Protecting children Protecting privacy of adults in home NT Application Technology Unconstitutional Invalid CSI: Offense Moral Corruption Cleansing public debate NT – doesn’t matter – invalid CSI Secondary Effects though CB – treated as CN (second section) Valid Important State Interest Property values Increased violence – skid row Urban blight Reduce crime NT: (greater deference) Factual study – to prove not pretextual Ample Alternative Avenues of Communication – NOT a complete ban (Alameda – Kennedy concur) Pornography – Feminism – Hate Speech Traditional Argument against Porn ban all porn Moral objection Feminist Argument against porn ban only porn that exhibits degradation, exploitation & oppression
Substantial infringement CSI NT Balance above against degree of intrusion Hybrid rights analysis grants strict scrutiny if a free exercise claim is combined with another constitutional claim. Yoder. Strict Scrutiny: for facially discriminatory law, i.e. targets religion. Will almost always fail. Example: Church of Lukimi Babalu Aye- city ordinance prohibits animal sacrifice. Court found this directed at religion: applied SS. Preventing animal killing for religious purposes isn’t CSI. Court calls this a Gerrymandering law. The law seems to make what the church does illegal but excepting everything that is well liked in the town. Government was obviously oppressing the religion. Locke v. Davey ad hoc balancing test: A law that i) places a mild burden on religion, and ii) state interest is a historic and substantial interest related to the separation of church and state, is constitutional. (The establishment clause would not prohibit the state giving the scholarship if the wanted took because it is filtered through private choice.) Locke- State scholarship program prohibited using it to pursue degree in devotional theology. While looks to be targeting religion which should trigger SS, Court applied ad hoc balancing. “Play in the joints” is the over-arching concept in this case. Court says that this is a historical concern v. a mild burden. This is some ad-hoc balancing test. Dissent- Wants to apply regular strict scrutiny. The Government does not have to be the adversary of religion. PERMISSIBLE ACCOMODATION Play on the Joints of the Religion Clauses Layman’s terms: you must understand that the two religion clauses often work together. The fact that the establishment clause doesn’t forbid the state from doing something does not mean that the free exercise clause mandates it. Example: State school voucher program provides vouchers, but excludes using them at religious schools. This is clearly not a violation of the establishment clause. Free Exercise analysis: Lukumi held that a law targeting religion triggers SS: this law would fail SS. Locke v. Davey held that if the burden is mind and if the state interest is a historic and substantial interest in the separation of church and state, the law can beupheld. Therefore, Locke v. Davey and the “play on the joints of the religion clauses” would suggest upholding the law