COMM371/Quick reference

From Driscollwiki

Contents 1 First Amendment exceptions we already covered 1.1 Obscenity 1.2 Incitement 1.3 Fighting Words 2 New exceptions 2.1 “True” Threats 2.2 Time, Place & Manner Restrictions 2.3 Symbolic Speech 2.4 Student speech 2.5 Campus Speech 2.6 Defamation 2.7 Privacy rights

First Amendment exceptions we already covered

Obscenity

• Three pronged Miller test
• Provided that the definition of obscenity is not unconstitutionally vague
  • Example of Overbroad (Reno)

Incitement

• Speech designed to promote imminent lawlessness (Schenck/Brandenberg)

Fighting Words

• The speaker cannot be silenced if his/her identity is the primary factor offered to justify the conclusion that violence is imminent.
• Government actors may not suppress speech if imminent spectator violence can be satisfactorily suppressed.

The Government may suppress speech if imminent spectator violence cannot be satisfactorily prevented or curbed, and if the speech itself is the cause of the impending disorder.

New exceptions

“True” Threats

• Expression of an intention to inflict evil, injury or damage on another (US v. Orozco-Santillan, 1990)
• NOT necessary that the speaker have the intent nor ability to carry out the threat
• In context, would a "reasonable person" foresee the threat would be interpreted by those to whom it was made, as a serious expression of intent to inflict bodily harm upon that person (Planned Parenthood III)
  • Horsley's archive: http://www.christiangallery.com/mainstory.htm

Time, Place & Manner Restrictions

Permitted (Ward v. Rock against Racism, 1989), where:

• the restriction is content neutral
• there is a substantial government interest and the restriction is narrowly tailored
• the restriction is not an unreasonable restriction on alternative means of expression.

Note: A "least restrictive" solution is not required.

Symbolic Speech

• Not protected where the "nonspeech" aspects of the act in question are sufficiently important to the government – a compelling governmental interest – and the restriction is a narrow means to achieve the purpose (United States v. O'Brien, 1968)
• Display of offensive words alone, are protected, unless the government can show a compelling reason for prohibiting those words (Cohen v. California, 1971)
• Offensive behavior (flag burning), is protected, unless the government can show an important governmental interest in prohibiting the act (Texas v. Johnson, 1989)

Student speech

• High School students’ rights are limited by society’s rights to inculcate students with proper civic values and behaviors (Lovell v. Poway, 1996)

Campus Speech

"The University supports on-campus free speech, provided that it does not disrupt or substantially interfere with the regular and essential operations and activities of the university" (SCampus)

Defamation

• False Statement of Fact
• Public Figures requires proof of “actual malice” (New York Times v. Sullivan, 1964)
• States must define scienter for Limited Purpose Public Figures and Involuntary Public Figures and private individuals (Gertz v. Robert Welch, 1974)
• Generally these concepts are put on a sliding scale, where the standard of proof for a
  • Private individuals as to falsity is quite low;
  • Involuntary figures next;
  • Limited purpose public figures next; and
  • The highest standard for public figures

Privacy rights

• Lawfully obtained truthful information of public significance cannot be suppressed absent a state interest of the highest order. (Florida Star v. B.J.F., 1989)