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Flashcards in Unprotected Speech Deck (16)
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Fight words: Chaplinsky
Incitement to violence: Brandenburg
True threats: Virgina v. Black
Defamation: NYT v. Sullivan
Obscenity: Miller
Child Pornography: Ferber


Fighthings words

Are words by their very utterance inflict injury
tend to incitement immediate breach of peace


Incitement to violence

Conviction of incitement is constitutional, only if:
1. Harm is imminent
2. Speaker has intent to cause imminent harm
3. The speech has likelihood of producing illegal action


True threat

True threats are not protected by First Amendment, gov't may regulate

Intimidation = true threat when:
i. Speaker directs a threat To a person or group
ii. With intent of placing victim in fear of bodily harm or death


Elements of Defamation

Libel = written; Slander = oral

Elements of defamation:
i. False statement of fact that injures someone’s reputation
ii. False statement must be publicized
iii. False statement of or concerning the plaintiff



NYT v. Sulllivan

Defamatory statements regarding official conduct of a public official are protected by the First Amendment BUT, plaintiff may recover damages if he proves:

1. with clear and convincing clarity that
2. statements were made with actual malice


Actual Malice (defamation)

Speaker knew statements were false


Speaker had reckless disregard as to whether the statements were false


Who is a public official?

Those who appear to the public to have substantial responsibility for or control over the conduct of government affairs. Rosenblatt v. Baer


Public figures

Must show actual malice


Who is a public figure?

Person who voluntarily injects oneself or is drawn into a particular controversy and thereby becomes a public figure for a limited range of issues. Gertz v. Welch


Private figure, private matter

Not required to show actual malice to recover



Material is not protected by FA, if meets Miller Test:

1. Material appeals to prurient interest (that which excites lustful thoughts)
2. Material is patently offensive sexual conduct and is specifically defined by the statute
3. Lacks serious value = Taken as a whole, the material lacks serious redeeming artistic, literary, political, or scientific value



Nudity alone isn't enough to make material legally obscene under the Miller test


Child Pornography


RULE → Gov’t may prohibit the exhibition, sale, or distribution of child pornography even if it does not meet Miller test for obscenity

(a) The gov’t has compelling interest in protecting the physical and psychological well-being of a minor
(b) Child pornography is closely related to child abuse because kids are harmed by the permanent record of their involvement in making the porno


Virtual child pornography

Under Ferber, virtual child pornography isn’t pornography because it doesn’t harm children

Virtual child porno doesn’t meet Miller test → so it’s protected speech → meaning gov’t can only regulate if the law meets strict scrutiny


Possession of child pornography

Possession of child porno is illegal because it re-victimizes the child. Osborne v. Ohio