Finish this from last week:
----Casebook p. 1482-1499; Casebook p. 1520-1541; Mahanoy School District; Cohen v California
Casebook p. 1541-1546; Re-read Rosenberger (link); Casebook p. 1585- 1592-Casebook p. 1597-1609;
Then focus on compelled speech doctrine:
Barnette (link); Wooley v Maynard (link); 303 Creative (link); my article on the no-compelled-speech doctrine (link); Prof. Garnett's article on 303 Creative (link)
No class on Tuesday November 4.
From Cornell Law School Legal Information Institute:
fighting words
Fighting words are words meant to incite violence such that they may not be protected free speech under the First Amendment. The U.S. Supreme Court first defined them in Chaplinsky v New Hampshire (1942) as words which "by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."
In the decades following Chaplinsky, the U.S. Supreme Court has decided a number of cases which further clarify what speech or actions constitute fighting words.
In Terminiello v. Chicago (1949), the Supreme Court narrowed the scope of what constitutes fighting words. The Court found that words which produce a clear and present danger are unprotected (and are consider[ed] fighting words), but words which invite dispute and even cause unrest are protected (and are not considered fighting words).
In Feiner v. People of State of New York (1951), the Supreme Court held that akin to the fighting words doctrine, an incitement of a riot which creates a clear and present danger is also not protected by the First Amendment.
In Texas v. Johnson (1989), the Supreme Court redefined the scope of the fighting words doctrine to mean words that are "a direct personal insult or an invitation to exchange fisticuffs." There, the Court held that the burning of a United States flag, which was considered symbolic speech, did not constitute fighting words.
Facts:
"Appellant Paul Robert Cohen was convicted in the Los Angeles Municipal Court of violating that part of California Penal Code § 415 which prohibits "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct . . . ." He was given 30 days' imprisonment. The facts upon which his conviction rests are detailed in the opinion of the Court of Appeal of California, Second Appellate District, as follows:
"On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the corridor outside of division 20 of the municipal court wearing a jacket bearing the words 'Fuck the Draft' which were plainly visible. There were women and children present in the corridor. The defendant was arrested. The defendant testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft."
Notice the Court of Appeal affirmed his conviction because it viewed his message as "offensive conduct." There we go again--speech we dislike is not speech it's conduct. The Court says no way:
"The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only "conduct" which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon "speech," not upon any separately identifiable conduct..."
Was his speech obscene and thus not protected speech?
Did it constitute "fighting words" and thus not protected?
What about the argument that his use of the F word could be prohibited to protect "the sensitive from otherwise unavoidable exposure to [his] crude form of protest?"
Unwilling viewers should avert their eyes:
"In this regard, persons confronted with Cohen's jacket were in a quite different posture than, say, those subjected to the raucous emissions of sound trucks blaring outside their residences. Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes. And, while it may be that one has a more substantial claim to a recognizable privacy interest when walking through a courthouse corridor than, for example, strolling through Central Park, surely it is nothing like the interest in being free from unwanted expression in the confines of one's own home. Given the subtlety and complexity of the factors involved, if Cohen's "speech" was otherwise entitled to constitutional protection, we do not think the fact that some unwilling "listeners" in a public building may have been briefly exposed to it can serve to justify this breach of the peace conviction where, as here, there was no evidence that persons powerless to avoid appellant's conduct did in fact object to it, and where that portion of the statute upon which Cohen's conviction rests evinces no concern, either on its face or as construed by the California courts, with the special plight of the captive auditor, but, instead, indiscriminately sweeps within its prohibitions all "offensive conduct" that disturbs "any neighborhood or person." "
Holding:
"Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results.
It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be
Reversed."
When the University determines the content of the education it provides, it is the University speaking, and we have permitted the government to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message. In the same vein, in Rust v. Sullivan, supra, we upheld the government's prohibition on abortion-related advice applicable to recipients of federal funds for family planning counseling. There, the government did not create a program to encourage private speech but instead used private speakers to transmit specific information pertaining to its own program. We recognized that when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes. 500 U.S., at 194. When the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.
Be sure to distinguish between symbolic speech (a black armband, a pride flag t-shirt), and symbolic conduct (burning a flag or a draft card). The former is pure speech; the latter is the subject of the watered down, O'Brien Test.
Once we are dealing with symbolic acts, O’Brien gives us a four-part test for determining when a government interest in regulating the nonspeech element sufficiently justifies the regulation of expressive conduct:
The government regulation of expressive conduct is valid if:
1) it is within the Constitutional power of government [raising an army]
2) furthers an important or substantial interest [preventing harm to the smooth and efficient functioning of the Selective Service System]
3) if the governmental interest is unrelated to the suppression of free expression; and
4) if the incidental restriction on free expression is no greater than is essential to the furtherance of that interest.
By the way, notice how the Court totally rejects a "purpose" test under the Free Speech Clause. The Court's objections here (p.1586) are basically the same as Justice Scalia's objections to a "purpose" test under the Establishment Clause. Notice that, somehow, the EC seems to be an exception to every normal rule the Court applies to every other constitutional claim--standing, incorporation, purpose, government speech, etc. Where in the text of the Constitution is this special status for the EC?
