Categories of Proscribable Speech Flashcards
Wholly Proscribable Speech (Burden is on the Government)
Speech Banned by the Government with no First Amendment protections.
Examples:
Defamation
Incitement
Obscenity, etc
Threat
Fighting Words
Defamation
Speech that is a false statement that injures a person’s reputation.
Exceptions:
Public Figures - requires actual malice.
Matters of public concern
Defaming Public Figures
Figures with substantial fame or public office requires proving actual malice.
Incitement
I.e., screaming fire in a crowded theater
Incitement Test
Initial Test – Clear and Present Danger of illegal conduct. With Clear and Present Danger meaning extreme measures which are appropriate if in response to extreme danger. (Schenck v. U.S. + Whitney v. Cali.)
Current Test – Speech that is intended to incite or produce imminent lawless action and is likely to succeed. We particularly care about the “imminent” illegal action! (Brandernburg v. Ohio)
Obscenity
I.e., sex, or vulgar non-mainstream images, sounds, etc.
Antiquated Standard Test - Hickland (anti-speech, pro gov)
Government is entitled to ban speech on obscenity grounds, if any part of the speech (book, etc.) would make someone susceptible to sexual suggestion, or would find it sexually arousing.
We moved away from this standard due to the strong chilling effect it had on speech for authors of normal novels that occasionally got spicy (James Joyce’ Ulysses).
Roth and Memoirs Standards for Obscenity
After Hickland but before Miller
Roth: Works that when taken as a whole appeal to the prurient interest of the average reader are utterly lacking in socially redeeming value.
Memoirs: Does the work taken as a whole tend to appeal to the prurient interest of the average reader AND is it utterly lacking in socially redeeming value?
The consequence of this was that porn producers just added filler story content. Requiring the “utterly lacking” part made it hard for gov to ban porn. But also created annoying and speech-chilling ambiguities for genuine authors.
Redrup Obscenity Review (“Movie Day”)
Justices would review material themselves on a “I know it when I see it” basis. This created the infamous “movie day”. The irony was that the justices who voted to approve everything didn’t have to watch it, but the ones more offended by it did have to watch every one.
Effectively there was no rule, and it was highly discretionary for courts.
Current Obscenity Test - Miller v. California
Miller was about unconsenting viewers who received porn in mail.
Three-Part Element Test: (REMINDER - Consent does not matter in determining if material is obscene).
1) Whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (jury question)
and
2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law (depended on community standards);
and
3) Whether the work, taken as a whole, lacks serious scientific, literary, artistic, or political value. (“SLAP” Factor) (jury question)
Must find ALL THREE. This is a true “AND” test. The internet complicated the local nature of “patently offensive”.
Examples of States Describing Patently Offensive -
Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual, or simulated.
Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.
Paris Adult Theater v. Salton
Government can regulate obscene material in public.
However, you can possess obscene materials in your own home but cannot bring it into your home. “The safest thing to do is make your own.”
Additionally, consent is irrelevant to an obscenity analysis, so long as a material is obscene and banned its illegal and proscribable speech.
Obscenity Involving Kids - New York v. Ferber
Test -
1) A trier of fact need not find that the material appeals to the prurient interest of the average person;
2) It is not required that sexual conduct portrayed be done so in a patently offensive manner; and
3) The material at issue need not be considered as a whole.
Rationale: To protect real children from physical and psychological harm.
Most judges would not protect it even if it had SLAP.
Conclusion: Obscenity involving kids is illegal and a stricter test is applied than Miller.
R.A.V. v. City of St. Paul
The government lacks unfettered ability to place content based restriction on unprotected speech, such as “fighting words,” on the basis of content.
Content-based restrictions must be related to the basis for the proscribable underlying reason.
I.e., You can ban all obscene speech or the most obscene speech, but can’t just ban obscene speech of a political figure.
Fighting Words
Calling a person a derogatory name right in their face in a way likely to provoke immediate violence.
Fighting Words Test - Chaplinsky v. New Hampshire.
Speech likely to provoke an immediate violent reaction.
Immediate means literally immediate. If you’re 10 feet away and he’s unarmed, that might not count. But if he has a gun and within shooting distance 10 feet away, then could be immediate.
Violent reaction means violent physical response.
