14. Con Law: Unprotected Speech
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CLEAR AND PRESENT DANGER OF IMMINENT LAWLESSNESS
A state cannot forbid advocating the use of force or of aw violation unless such advocacy (1) is directed to producing or inciting imminent lawless action, and (2) is likely to produce or incite such action.
The test allows for sanctions agianst speech causing demonstrable danger to important gov'tal interests. Disclosure of US intelligence operations and personnel is clearly not protected speech.
The 1st amendment does not protect "true threats" -- statements meant to communicate an intent to place an individual or group in fear of bodily harm.
States are free to ban the use of fighting words, ie, those personally abuseive epithets that, when addressed to the ordinary citizen, are inherently likely to incite immediate physical retaliation.
Statutes regulating fighting words tend to be overbroad or vague -- the court rarely upholds punishments for the use of fighting words.
Statutes cannot be content based -- the Court will generally not allow in fighting words statutes restrictions that are designed to punish only certain viewpoints, which limits hate crimes legislation.
- Defined: a description or depiction of sexual conduct that, taken as a whole, by the average person, applying contemporary community standards:
- (1) appeals to the prurient interest in sex;
- (2) portrays sex in a patently offensive way; and
- (3) does not have serious artistic, literary, political, or scientific value -- using a nat'l, reasonable person standard, rather than a contemporary community standard.
APPEAL TO PRURIENT INTEREST: Includes that which appeals to shameful or morbid interests in sex, but not that which incites lust.
PATENTLY OFFENSIVE: A juror may draw on knowledge of the community or vicinity from which he comes, and the court may either direct the jury to apply "community standards" without specifying the community, or define the standard in more precise geographic terms.
OBSCENITY: QUESTION OF FACT AND LAW
The determination of whether material is obscene is a question of fact for the jury.
Appellate courts will conduct an independent review of constitutional claims to assure that the proscribed materials deptict or describe patently offensive sexual conduct.
In close cases, evidence of pandering by the defendant may be probative on whether the material is obscene.
OBSCENITY: STATUTES MUST NOT BE VAGUE
Attempts to define obscenity broadly have encountered difficulties before the court, but a seemingly vague obscenity statute may be saved by a state supreme court's limiting construction.
OBSCENITY: LAND USE REGULATIONS
A zoning regulation may limit the location or size of adult establishments if the reg is designed to reduce the secondary effects of such businesses. However, regs may not ban such establishments altogether.
The Court has suggested that the state may regulate the display of certain material to prevent it from being so obtrusive that an unwilling viewer cannot avoid exposure to it.
OBSCENITY: PRIVATE POSSESSION
Private possession of obscenity at home cannot be made a crime because of the constitutional right of personal privacy. However, protection does not extend beyond the home. Thus, importation, distribution, and exhibition of obscene materials can be prohibited.
The state can make private possession of child pornography a crime, even for personal viewing in a residence.
DEFAMATORY SPEECH: FALSITY
The 1st amendment places restrictions on the ability of the gov't to grant a recovery where the person suing is a public official or public figure, or where the defamatory statement involves an issue of public concern. In these cases, the plaintiff must prove not only the elements of defamation required by state law but also that the statement was false and that the person making the statement was at fault to some degree in not ascertaining the truth of the statement.
Plaintiff must prove falsity by clear and convincing evidence.
The statement must be viewed by a reasonable person as a statement of fact, rather than as a statement of opinion or a parody.
A public figure may not circumvent the 1st amendment restrictions by using a different tort theory (such as intentional infliction of emotional distress) to recover damages if a reasonable person would not understand the publication to contain a statement of fact about the public figure.
DEFAMATORY SPEECH: FAULT -- PUBLIC FIGURE/PUBLIC OFFICIAL
The degree of fault required is higher in a public official or public figure case -- MALICE -- than when plaintiff is a private person suing on a matter of public concern.
- (1) knowledge that the statement was false, or
- (2) reckless disregard as to its truth or falsity.
The plaintiff must show that defendant was subjectively aware that the statement he published was false or that he subjectively entertained serious doubts as to its truthfulness.
QUOTATION CASES: If the quote was substantially accurate, the plaintiff may not collect damages. To show malice, the public figure plaintiff must prove tha the defendant's alteration materially changed the meaning of the actual statements of the plaintiff.
- Two ways to become a public figure:
- (1) general fame or notoriety, or
- (2) involvement in particular controversy -- a public figure for a limited range of issues.
DEFAMATORY SPEECH: FAULT --
PRIVATE INDIVIDUAL SUING ON MATTER OF PUBLIC CONCERN
- When the defamatory statement involves a matter of public concern, there are two restrictions on private plaintiffs:
- (1) liability without fault is prohibited; and
- (2) presumed or punitive damages are restricted.
Plaintiff must show that defendant was negligent in failing to ascertain the truth of the statement. If plaintiff is able to show negligence, but not malice, he must also provide competent evidence of actual damages. Actual damages may be awarded for economic losses and also for injury to reputation in the community and for personal humiliation and distress.
Presumed or punitive damages are allowed only if malice is established.
Courts decide on a case by case basis whether the defamatory statement is a matter of public concern, looking at the content, form, and context of the publication.
DEFAMATION: PROCEDURAL ISSUES
In federal court, a judge should grant a motion for summary judgment unless it appears that the plaintiff could meet his burdens of proving falsity and actual malice at trial by clear and convincing evidence. It is not clear if this also applies in state court.
An appellate court must review a defamation case by conducting an independent review of the record to determine if the finder of fact could have found that the malice standard was met in the case.
DEFAMATION: FALSE LIGHT
To recover damages for depiction in a false light arising out of comments directed at activities of public interest, an individual must establish fasity and actual malice whether or not he qualifies as a public figure. However, it is assumed that the court would now modify this to the negligence rule for private plaintiffs to mirror the rule for public concern cases.
DEFAMATION: TRUE PRIVACY ACTIONS
A newspaper or broadcaster cannot be sued for publishing a true fact once it is lawfully obtained from the public record or otherwise released to the public.
A state cannot require judicial approval before the media can print the name of a juvenile charged with murder where the name of the juvenile was obtained through legal means.
A state cannot make it a crime to publish information, released in a confidential proceeding, concerning the competency of members of the state judiciary.
DEFAMATION: COMMERCIAL PRIVACY
State law could award damages to entertainer who's show was broadcast against his will.
- In determining whether a regulation on commercial speech is valid, the USSC asserts that it uses a four step process. First, determine whether the commercial speech concerns a lawful activity and is not misleading or fraudulent. Speech proposing an unlawful transaction and fraudulent speech may be outlawed. If the speech regulated concerns a lawful activity and is not misleading or fraudulent, the reg will be valid only if it:
- (1) serves a substantial gov't interest;
- (2) directly advances the asserted interest; and
- (3) is narrowly tailored to serve the substantial interest. This part of the test does not require that the least restrictive means be used. Rather, there must be a reasonable fit between the legislation's end and the means chosen.
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