Final Study Guide - Professor Ron Den Otter PDF

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Professor Ron Den Otter...

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Final Study Guide ● Should virtual child pornogroahy (VCP) be constitutionally protected speech? Why or why not? Be sure to refer to the Ashcroft case ○ There is a strong state interest in banning real child pornography because it protects real children from harms that takes place if they are involved with real pornography. VCP raises a different issue because there are no real children are being harmed. ○ In Ashcroft, The government’s interest in banning virtual child pornograghy is that pedofiles can use virtual child pornography to seduce children. The second state interest is that it whets the appetie of pedofiles and encourage pedofiles to in engage in illegal conduct (harming children based off what they see in in VCP). The final state interest is that it makes it harder to prosecute people for real child pornography. ○ The government has not demonstrated that the first state interest is strong enough; it is just speculation. The Supreme Court finds the second state interest to be insufficient, not convincing enough. The final state interest was not strong enough because it hasn't been successful; only one case has when an attorney tried to say that the real child pornography could be Virutal child pornography ○ Based off the decision and the reasoning in the Ashcroft case (as stated above), virtual child pornography (VCP) should be constitutionally protected speech. ● Overbreadth and Vagueness ○ Overbreadth ■ A statute is overbroad if addition to proscribing speech that may be constitutionally forbidden, it also sweeps, within its overage speech, that may be constitutionally protected ● Covers too much; covers speech that is constitutionally protected ■ When it comes to overbreadth, it has to be substantially overbroad ■ The more constitutionally protected speech it covers, the more substantially overbroad it is ○ Vagueness: ■ Speech is forbidden by the statute if it’s so unclearly defined, that people of common intelligence must necessarily guess as it its meaning and differ as to its application ■ A statute can be void (vague) ● People should be given fair notice whether their speech is constitutionally protected or not (FAIR NOTICE) ● A great risk of chilling effect (self-censorship) ○ It can be interpreted in many ways ● Vague statutes lend themselves to be abused by the government ○ To curb the discretion of government officials (minimize

the likelihood of arbitrary prosecutions ○ A vague statute makes it easier to selectively prosecute some people ● Fighting Words (Chaplinsky) ○ Fighting words ■ Words that would make an average addressee respond immediately with violence (to fight) ● Average addressee - does not take in ● to consideration defining characteristics such as sexual identity, race, etc ○ Chaplinsky ■ The court thought his words would likely provoke an average addressee to respond immediately with violence ■ Fighting words types ● those which by its very utterance inflict injury ● Those to intend to incite an immediate breach of peace ■ Fighting words are no essential part of any exposition of ideas in our such slight social value as a step to truth, that Any benefit that may be derived from them are clearly outweighed by social interest of order and morality ● First amendment value is outweighed by society’s interest in preventing violence ● Shifts the blame from the person who was violent to the person who provoked the violence ● Offensive Speech (Cohen, Collin v Smith) ○ Cohen wears a jacket that says “fuck the draft” during Vietnam war ○ Justice harlan ■ Court said the message on the jacket isn't obscene because what was said was not erotic ■ These are not fighting words since they were not individually addressed (not directed to a person) ■ There wasn't a captive audience; if you were offended, could easily avert their eyes ■ No evidence that any unwilling viewer was actually offended ○ offensive speech has significant first amendment value ■ The problem with banning a word like “fuck”, there is not stopping point, there is no arbitrary way of distinction fuck from other offensive words (slippery slope), ■ The state lacks the authority to cleanse public debate when it is acceptable, ut rather squeamish among us, Taste and style should be left to the individual ■ “One man’s vulgarity, is another man’s lyrics”

■ Because of rhetorical effects of free speech ●

By choosing vulgar words with emotion latent content, the idea is expressed as effectively as possible (more effective than the use of polite words) ● The message contained not only an intellectual or political idea, or rather an inexpressible emotion ● How something is said is just as important as what is being said ○ The problem with government telling people how to say what they want to say → smoke screen for censorship ■ They might ban particular words as a pretext for the banning the expression of particular views (unpopular views) ○ Collin v Smith ■ A nazi group plans demonstration in front of a Stokey hall ● Predominantly Jewish; many survived the concentration camps; Holocaust survivors ■ Many ordinances were done to stop the demonstration ● Forbade the dissemination of “racially or religious hatred” → hate speech ● Include public display of markings, clothing of symbolic significance which would have included swastika and nazi uniform

● Should racist hate speech be constitutionally protected speech? Why or why not? ○ Yes, racist hate speech should be constitutionally protected speech based on the arguments of truth and disutility of censorship ■ Based on the argument of truth, without open discussion and free exchange of ideas, the search for truth is compromised. With government censorship, the truth might be restricted. Even if a statement is false (like hate speech), it has first amendment value because it may be valuable and can help understand our own values. By censoring certain speech (hate speech), we will remain ignorant. If the government comes in and cesnors idea, the marketplace of ideas is not functioning ■ Based on the argument of disutility of censorship, more often than not, suppression of speech is counterproductive. It does not work because it increases the odds that people believe false things. More people are interested in the suppressed idea when the government censors certain speech like hate speech. ○ RAV ■ Unfair if one side of the debate is subject to rules and the other side is not subject to any rules (anti hate speech rules) ■ The ordinance is under inclusive ● Does not apply to hate speech that concerns political affiliations, union membership, and being a member of a sexual minority (sexual identity)

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Only covers race, religious, and gender …

■ If you want to be fair, Ban all forms of hate speech (all kinds) or don't ban any hate speech → two options that government has ■ Hate speech laws actually are discriminatory on the basis of viewpoint ● If you take the politically correct position (racial equality), there is no chance you will be charged of hate speech because it is socially acceptable viewpoint (correct viewpoint) ● If you say that one race is better than the other (not a socially acceptable viewpoint; against racial equality) will be prosecuted for hate speech ● Not neutral; they negatively affect certain viewpoints more than others

● Cross-burning (RAV, Virginia v Black) ○ RAV ■ Scalia ● ●

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Unfair if one side of the debate is subject to rules and the other side is not subject to any rules (anti hate speech rules) The ordinance is under inclusive ○ Does not apply to hate speech that concerns political affiliations, union membership, and being a member of a sexual minority (sexual identity) ○ Only covers race, religious, and gender … If you want to be fair, Ban all forms of hate speech (all kinds) or don't ban any hate speech → two options that government has Hate speech laws actually are discriminatory on the basis of viewpoint ○ If you take the politically correct position (racial equality), there is no chance you will be charged of hate speech because it is socially acceptable viewpoint (correct viewpoint) ○ If you say that one race is better than the other (not a socially acceptable viewpoint; against racial equality) will be prosecuted for hate speech ○ Not neutral; they negatively affect certain viewpoints more than others

Virginia v. Black ■ The burning of a cross is prima facie evidence of intent to intimidate, on its face, the burning of the cross is evidence that it the burning was trying to intimidate others. ■ Black, then rebut the prima facie evidence to intimidate others, it shifts the burden of proof to the defendant ■ The SCOTUS found the prima facie clause problematic because the

defendant had to deal with the burden of proof. ■ Below the surface, if you believe that all or almost all cross burnings are meant to intimidate, then you don’t have a problem with the prima facie clause, because most cross burnings are a means of intimidating others. However, cross burnings could be an expression of white supremacy. ■ Cross burning may be inherently intimidating ● Threats (Watts, Claiborne Hardware, and class exercise) ○ Watts ■ What’s important ●

This is political hyperbole (exaggeration for rhetorical effect) ○ Wasn't meant to be taken literally; not really threatening LBJ ○ Allowed to criticize the government (core value) ■ Takeaway ● Speakers are allowed to exaggerate to get their point across especially if it is political criticism (criticizing the government)

○ Claiborne Hardware ■ Court concluded ●

Ever’s speech was constitutionally protected ○ It wasn't really a threat ● Like in Watts, the court said that the advocate of political speech must be free to engage in emotional appeals ○ This was a political position that Evers was taking ● Threats have to be individually addressed ■ Threats definition ● Violence has to be directly threatened against someone (who is a clear target)

○ Class exercise ● Expressive Conduct (Symbolic Speech) ○ Expressive conduct (symbolic speech) ■ Nonverbal conduct may trigger first amendment analysis when someone does something to convey a message ■ Had the intention of communicating a message ■ High likelihood that others would know that message is trying to convey something ○ Content neutral restriction case ■ Reasonable time, place and manner restriction ■ Don’t have the right at that very moment and time and location to express the expressive conduct ■ The problem isn't with the content; more about how disruptive the expressive conduct it ○ Content based speech restriction

■ Not likely to be held as constitutional ■ Looked more skeptically ■ Restriction that targets the message of the speech; the idea being conveyed

● Content-based vs Content-neutral restrictions (O’Brien, Texas v Johnson, Clark) ○ O’Brien ■ Court concludes that is content neutral speech restriction ●

Needs the draft cards to make the Selective Service work properly

■ O’Brien test (intermediate scrutiny) [content neutral speech restriction] ●

1) the government has to show that this restriction on speech, that is content neutral, furthered an important or substantial state interest ● 2) the government has to show the incidental restriction on speech was “no greater than essential to the furtherance of the important state interest” ○ The restriction of speech is absolutely necessary and without it we can't achieve the important or substantial state interest ■ In this case: ● Government’s state interest within this case ○ Administrative proficiency; selective service works properly ● Court rules that this law was necessary for the furtherance of important state interest of Administrative proficiency ■ O’Brien’s conviction was upheld ○ Texas v Johnson ■ Content based speech restriction ■ Flag desecration case ● Desecrate- deface, damage, or otherwise physically mistreat in a way the actor knows wills seriously offend one or more persons likely to observe his actions ■ Brennan ● Concerned about “seriously offend” part of desecrate definition ○ Was about the act of burning the flag; seriously offended→ the person did not like the message behind the burning of the flag (anti-american sentiment) ● “The government may not prohibit the expression of an idea; simply because the public find the idea itself offensive or disagreeable ○ Clark ■ Content neutral speech restriction ■ Apply O’Brien test ● Government’s state interest within this case

○ To minimize the wear and tear of the park → destroy the park and would make the park unfit ● Court rules that this law was necessary for the furtherance of important state interest of minimizing the wear and tear of the park ○ Not necessary; there are alternatives ■ Court says: ● This is an important state interest ● This restriction on speech is no greater than essential ○ Court rules that this law was necessary for the furtherance of important state interest of minimizing the wear and tear of the park ○ It was essential to completely ban all camping according to NPS ■ Shows how easy it to pass O’Brien test ● They used rational basis as the standard of the review ■ Dissent ● Too easy to meet both parts of the O’Brien test

● Free Speech rights of junior high (Tinker, Hazelwood, and Morse vs Frederick) ○ Tinker ■ The court held the prohibition of armbands violated the student’s first speech rights

■ Court said just fear of disruption is not enough to censor the students ■ The school has the burden of proof; they need to show they have adequate reasons for censorship (censoring student’s speech

■ Court set this standard - if the protest has substantially and (materially) interfere with the requirements of school discipline ● If the student substantially interfered with the requirements of school discipline, then and only then, would the school be justified in constitutionally ban the speech of the student

○ Hazelwood ■ Holding of the case ** ●

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If the school sponsors an activity or puts a perimeter on the activity or school associated with the event, then the school has much greater authority to ban the speech ○ Is this a school sponsored activity ■ Yes - strong presumption that the school could censor or ban student speech ■ No- then Tinker applies This is the standard (Rational Basis) ○ To censor student speech and get away with it, then all the government had to show that the restriction on student’s speech is reasonably related to a legitimate educational concern

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Three interests are considered as legitimate educational concerns ○ 1) Protect student privacy ○ 2) Shield younger students from inappropriate subject matter ○ 3) teaching journalistic fairness Gives wide discretion to school officials to censor or ban speech

○ Morse v Frederick (Bong hits 4 Jesus) ■ US Supreme Court (Roberts) ●

Frederick lost his lawsuit

■ Question addressed: ●

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Where there is no threat of disruption of educational activities, may a school punish a particular point of view which is in conflict with school’s point of view? Is viewpoint discrimination allowed? → not addressed in Hazelwood ○ If a school has an official policy, they can punish students that express a viewpoint that is contradictory with their viewpoint ○ Viewpoint discrimination is protected by this case...