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Talk is Cheap- Free Speech Isn't

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Alica Danesh Jesrai

on 19 July 2014

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Transcript of Talk is Cheap- Free Speech Isn't

Talk is Cheap- Free Speech Isn't
Supreme Court Rulings
Chaplinsky vs. New Hampshire
U.S. Supreme Court 1942
New Hampshire Law:
Citizens shall not address words that are offensive, derisive, or annoying to anyone lawfully in a public place, nor call him by any offensive or derisive name.
Chaplinsky vs. New Hampshire contd.
Walter Chaplinsky, a Jehovah’s Witness was arrested for evangelizing on the ‘harlot’ the Catholic Church and on saluting the U.S. flag. Local citizens called the police.
When arrested Chaplinsky called the marshal a “God damned racketeer” and a damned Fascist and the whole government of Rochester Fascists or agents of Fascists.
Chaplinsky was arrested for violating the state ordinance.
Supreme Court said:
Justice Murphy, writing for the majority said the “
right to free speech is NOT absolute at all times and under all circumstances...
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.
These (classes of speech) would include…… the insulting or ‘
fighting words,’ those (words) which by their very utterance inflict injury or tend to incite an immediate breach of the peace.
"
Gooding vs. Wilson
U.S. Supreme court said the “fighting words” must be in a face-to-face confrontation and lead to an immediate breach of the peace.
Village of Skokie v National Socialist Party 1978
(Illinois Supreme Court)
1976 National Socialist Party PLANNED to PEACEFULLY demonstrate in Skokie, Illinois to protest the integration of nearby Chicago schools.
Village officials required a $350,000 liability and property damage insurance policy as require by the Skokie park District ordinance. (just passed)
Skokie contd.
Skokie also ruled that a member of a political party cannot march in a military-style uniform and ruled that it is not permissible to disseminate material intended to incite racial hatred.
State & Federal Courts Ruled...
The ordinances were discriminatory or abridged Constitutionally protected right of free speech.
The Illinois Supreme Court rejected the contention that the display of such symbols as a swastika constituted ‘fighting words,’ sufficient to ‘overcome the heavy presumption against the Constitutional validity of a prior restraint.”
State Supreme Court said...
Peaceful demonstration CANNOT be totally stopped or prohibited solely because that display (Nazi symbols) may provoke a violent reaction by those who view them.
A speaker who gives prior NOTICE of his message has not compelled a confrontation with those who VOLUNTARILY listen.
R.A.V vs. St. Paul
U.S. Supreme Court 1992
In 1982, St.Paul, Minnesota enacted a local hate crime ordinance and created a new criminal offense: the bias-motivated disorderly conduct crime.
Any one who "places on public or private property a symbol, object, appellation, characterization or graffiti” was guilty of a misdemeanor offense of disorderly conduct.
R.A.V. contd.
The city amended the law in 1989 to specifically include a burning cross or a Nazi swastika.
In 1990 actions of sexual prejudice were included as well.
R.A.V. contd.
In 1990, Robert A. Viktora, a 17-year old, reportedly a high school dropout and skin head, was joined by other minors in placing a crude cross in the fenced yard of Russ and Laura Jones, the only Black family in a working-class neighborhood of St. Paul.
He was arrested and charged with violating the city ordinance. Court appointed Edward J. Cleary as his attorney. Viktora judged guilty in local and state courts.
Case appealed to the U.S. Supreme Court.
Supreme Courts Overturn Lower Courts
June 10, 1992
Justice Antonin Scalia writing for the majority said:
“Let there be no mistake about our belief that burning a cross in someone’s yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.”
Scalia said:
governments may NOT punish those who “communicate messages of racial, gender, or religious intolerance” merely because those ideas are offensive and emotionally painful to those in the targeted group.
Cohen vs. CA
U.S. Supreme Court 1971

Paul R. Cohen was criminally prosecuted for appearing in a Los Angeles County courthouse wearing a leather jacket bearing the motto “F—k the Draft.”
Convicted of violating California Penal Code 415 which prohibits: “maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct.”……
U.S. Supreme Court Ruled...
Justice John Marshall Harlan writing for the majority (in a 5-4 decision) reversed the conviction:

While the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.”
Texas vs. Johnson 1989
Texas law: prohibited citizens from burning a state or national flag in a manner that offends…
Gregory Johnson and friends were arrested when they
burned a U.S. flag at the 1984 Republican National Convention in Dallas to protest the policies of president Ronald Reagan.
He took the flag and lit it on fire on the steps of the convention center and he and others walked around the flag chanting “red, white and blue, we spit on you.”
Texas vs. Johnson contd.
Johnson convicted of violating the Texas statute and sentenced to one year in jail and fined $2,000.
The Fifth District of Appeals in Dallas upheld the conviction.
His attorney appealed to the U.S. Supreme Court on the basis that he felt the Texas law was OVERLY RESTRICTIVE of his client’s First Amendment Rights.
U.S. Supreme Court 5-4 Reversed the Conviction
The U.S. Supreme Court ruled that flag burning, especially in a political context, is a PROTECTED FORM OF SYMBOLIC SPEECH
The court noted that a “disturbing the peace” assertion was invalid.
They also ruled burning the flag would not fall under the “fighting words” exemption in the Chaplinsky case.
Justice J. Kennedy said that no matter how distasteful the result, the First Amendment compelled it (the ruling) because the defendant’s acts were speech in both the fundamental and technical sense.
Flag Protection Act 1989
Federal crime punishable by one year in jail and a $1,000 fine for desecrating the American flag.
George H.W. Bush did not sign.
Demonstrations across the nation
U.S. vs. Eichman et al. 1990
Shawn Eichman, a Revolutionary Communist Party member, with other revolutionaries, staged a demonstration before a crowd of reporters and photographers.
Witnesses reported hearing the defendants shout “burn baby burn” and “stop the fascist flag law.”
Supreme Court said...
The same 5-4 majority said: “We are aware that desecration of the flag is deeply offensive to many. But the same might be said, for example, of virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous caricatures.
There is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered and worth revering.”
John Doe v University of Michigan 1989
(Federal District Court)
Feb. 1987 U of Mich. Policy prohibited “stigmatizing or victimizing individuals or groups on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era status."
Court said in ruling the policy unconstitutional: “It is an unfortunate fact of our constitutional system that the ideals of freedom and equality are often in conflict.”
Virginia vs. Black
U.S. Supreme Court April 2003
Virginia Statute Section 18.2-423: it is a felony for any person to burn a cross with the intent to intimidate any person or group of persons; it also provides that cross burning constitutes a ‘prima facie’ evidence of an intent to intimidate.
Aug. 1998, a 25-foot-high cross was burned at a rally of the Ku Klux Klan in Cana, Va.
Virginia vs. Black contd.
The burning was witnessed by a county sheriff and resulted in the arrest and prosecution of Barry Black. The Supreme Court of Virginia invalidated the conviction based on R.A.V. v St Paul.
The court reiterated that speech can be regulated only if it falls into well-defined categories; incitement constituting a clear and present danger to the government, commercial speech, fighting words that create an immediate danger of physical violence and obscenity and child pornography.
U.S. Supreme Court said...
Operative language was “law required an intent to intimidate but did not specify the targets.”
Limiting the law to “true threats.” OK
However, in Black, the court said that the addition of the provision for ‘prima facie’ evidence, amounting as it did to a presumption of the intent to intimidate and rendered the statute unconstitutional on its face.
Justice Sandra Day O’Connor wrote that the cross burning at the Klansmen meeting was not intended to threaten anyone present, it is communicative in nature; the prima facie provision ignores this distinction.”
Full transcript