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MN law allowed state officials to prevent publication of newspapers seen as a "public nuisance." Which papers might be considered a public nuisance?
The Saturday Press published unflattering articles about MN officials; county attorney sued to have the paper closed; lost at trial and state appellate levels
SCOTUS overturned the conviction; publications may not be censored, as that violated the 1st Am.; pointed to Schenck as a case when prior restriant might be proper - when might prior restraint be proper under Schenck? The Pentagon Papers -
New York Times v. US (403 U.S. 713, 1971) FASCINATING! NY TImes and Washington Post were given secretly photocopied parts of a Defense Department study of US policy during the Vietnam War
The study showed poor International policy decisions of past presidents led the US into the war; a series of articles was planned to expose the study
After the first installment was published, Nixon demanded the newspapers stop; TRO obtaining against the Times, SCOTUS appeal; arguments: papers said pure censorship; Nixon argued national security and foreign relations nightmare; SCOTUS denied TRO
Similar, but distinguished: US v. The Progressive (467 F. Supp. 990)
Magazine was going to print instructions for a hydrogen bomb; Federal Judge forbade the magazine to print the article; The Progressive appealed, but other magazines published similar stories making the case moot; posied more questions than answered What about former government employees? US v. Marchetti (466 F.2d 1309, 1972) book and article critical of CIA; TRO by CIA; appellate court ruled only classified information could be censored
Snepp v. US (444 U.S. 507, 1980) former CIA agent Snepp wrote a book alleging CIA ineptitude in Vietnam, a violation of his employment contract; US sued for contract breach, Snepp said contract violated 1st and 5th Am. rights; SCOTUS said no
US v. National Treasury Employees Union (513 U.S. 454); banning pay for speeches and articles for low level government employed violated the 1st Amendment
Garcetti v. Ceballos (547 U.S. 410, 2006) when a public employee speaks about official duties, they are subject to employment retaliation - ? Modern Prior Restraint preventing speech: censorship; not punishment example: libel= punishment, not censorship - you can print anything if you pay for it censorship in some cases is allowed; larger threat to freedom offensive communication is protected; what is censored? What about "false speech?" Stolen Valor Act - criminal to represent military decoration - the decisions have been mixed
VA Fed. Dist court upheld the law; 9th Cir. stuck down as overbroad; 10th Cir. upheld; SCOTUS overturned the Act in 2012 Hate Speech Very troubling issue: on one hand, the goal is to make society open and diverse; on the other, the limitations on speech could limit unpopular viewpoints - suppressing violence v thought
Chaplinsky v. New Hampshire (315 U.S. 568, 1942) Chaplinsky called someone a "damned fascist" and was convicted of a breach of the peace; SCOTUS upheld and said that words that were likely to produce imminent violence can be stopped or punished
R.A.V. v. St. Paul (505 U.S. 377, 1992) St. Paul adopted an ordinance forbidding symbolic hate speech; R.A.V. burned a cross in a yard; St. Paul chose to prosecute him under the hate speech law; SCOTUS unanimously overturned the St. Paul ordinance, but for different reasons - overbroad; fighting words does not apply to "bias-motivated hatred" (similar to Brandenburg v Ohio)
Is a violent act considered speech?
Wisconsin v. Mitchell (508 U.S. 476, 1993) kids get angered by watching Mississippi Burning; beat up a white kid; Mitchell convicted of aggravated battery, and heavier sentence imposed under the the WI hate crime law. SCOTUS upheld: a physical assault is not protected expression
What about intimidation?
Virginia v. Black (538 U.S. 343, 2003) VA law banning cross-burning; SCOTUS said when the act is individualized and intended to intimidate, prosecution is lawful; a general cross burning in an open field without a specific target is not valid for prosecution More Hate What about non-threatening but contrary speech?
Reichle v Howards (No. 11-262, 2012) Cheney public appearance at a public mall; Howard tells someone on the phone he was going to ask Cheney "how many kid's he's killed today;" Secret Service agents hear the conversation; Howards asked the question and placed his hand on cheney's shoulder - arrested for assault; charges dropped, Howards sued the agents 1st and 4th Am.; 10th Cir. agrees; SCOTUS: no violation - Howards' doesn't touch Cheney - different outcome?
Weise v. Casper (593 U.S. 1163, 2005) Weise's bumper sticker has anti-war sentiment; Weise said nothing, but was removed from the event; 10th Circuit found for agent; Cert. denied, but dissents stated the expression is clearly protected, and people cannot be denied access because of speech outside of a forum
protected - democracy must protect all speech rights - even though some may be unpopular
(see Texas v. Johnson, 491 U.S. 397, 1989; see also U.S. v. Eihchman, 496 U.S. 310, 1990)
Bush I called for a Constitutional amendment to overturn Johnson and make flag desecration a crime; Congress passes the Flag Protection Act; SCOTUS declares the law unconstitutional
Eichman spurred a new debate regarding an Amendment; to get an Amendment to the Constitution, you need a 2/3 majority vote by both houses and 3/4 of the states must ratify the Amendment - the Amendment campaign fell 1 vote shy in the Senate
R.A.V and the flag cases signifies that symbolic speech is no crime unless violence accompanies Literature Distribution One of the methods government can control speech - time, place, and manner
the restrictions must be content neutral - if the state requires a permit before a parade/march for one group, it must require that of ALL groups; reasonable time limits, reasonable limitation on places to distribute literature - there must be a compelling state interest on a content-based restruction; no arbitrary denial to distrubute in a public forum
Jehovah's Witness Cases; city ordinances in the 1930s restricted activity; the cases established protections for distributing religious and political literature
(see Lovell v. City of Griffin, 303 U.S. 444, 1938) "Liberty of the press is not confined to newspapers and periodicals"
(see Schneider v. State of New Jersey, 308 U.S. 147, 1939) to prevent littering, you punish the litterer, not the person handing out the pamphlets; a city can limit the hours of door to door soliciting, but requiring a permit with a right of refusal amounts to _________________
(see Watchtower Bible and Tract Society v. Villiage of Stratton, 536 U.S. 150, 2002) What about on private property? PruneYard Shopping Center v. Robins (447 U.S. 74, 1980) high school students sought to distribute literature; the owners denied access; CA ruled favorably to the students - CA offering more freedom of expression than the US Constitution - owners apperaled; SCOTUS ruled for students - a state can go beyond federal guarantees of freedom
A stand-alone store is not generally a forum in the sense a public (though privately owned) mall is; similarly, an apartment grounds do not equal a public forum
Ladue v. Gilleo (512 U.S. 43, 1994) Ladue barred signage in private yards; Gilleo sued; SCOTUS ruled that a categorical ban (i.e., all yard signs) was too broad and violated the Constitution
Regarding abortion protests; sidewalks are a public forum, but targeting a specific house is not legal; a 30 foot buffer zone from entrances is ok, a 300 foot buffer zone is not; likewise, a buffer zone around people is not General Picketing issues Heffron v. International Society for Krishna Consciousness (452 U.S. 640, 1981) Krishna members were denied access to distribute literature and solicit funds at the MN state fair outside of a booth, which was available to anyone first come, first serve; SCOTUS agreed that the place restriction was not a violation of the 1st Am.
Board of Airport Commissioners v. Jews for Jesus (482 U.S. 569, 1987) a complete ban on 1st Am.. activity in a government-owned facility is unconstitutional on it's face. Why?
Lee v International Society for Krishna Consciousness (505 U.S. 830, 1992) denying fund-raising at an airport by a religious group is fine, but less intrusive 1st Am. activities must still be allowed; an airport is not a traditional public forum
Access to organizations/association
Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (515 U.S. 557, 1995) groups have a right to choose which types of people they intend to associate
Boy Scouts of America v. Dale (530 U.S. 640, 2000) a private organization can set a moral code and refuse to associate with people that do not abide that code
Westboro Baptist Church - I believe they are despicable; routinely picket funerals of people with whom they disagree; Snyder v. Phelps (131 S. Ct. 1207, 2011) picketing activities are proetcted speech as long as they follow the police rules for the location of the protect and do not interfere with the funerals
Parade/picket licensing schemes are typically valid as long as they are content-neutral and apply to all groups equally; time, place, and manner restrictions are upheld as long as they do not eliminate ALL ability to speak
Mixed outcomes in regard to whether speech can be regulated at national landmarks
Newsracks: can be completely prohibited, but a jurisdiction cannot prevent some while allowing others Anonymous Speech Generally, SCOTUS is permissive of anonymous speech (see McIntyre v. Ohio Elections Commission, 514 U.S. 334, 1995), but digital anonymity is at the frontier of litigation
Dendrite International, Inc. v. Doe (775 A2d 756, 2001) Dendrite sought to sue an anonymous Yahoo! user for libel; court came up with a 5 part test: 1) the plaintiff must attempt to notify the poster; 2) plaintiff must identify legally action al statements; 3) plaintiff must have a basis for the suit, libel in this case; 4) plaintiff must provide evidence of the claim; 5) the court balances the right of anonymous speech against the plaintiff's case and resulting harm
Bloggers generally have a right of anonymity; but courts differ - generally SCOTUS lets novel ideas and technologies run and won't step in until a larger body of cases exists;
generally anonymous sources are more likely to be protected if the speech is political or religious in nature, and less liely to be protected if the speech is purely commercial - in that sense, a malicious, anonymous review on Yelp or Urbanspoon, if sued for defamation by a restaurant, may possibly be revealed - Amy's Baking Company, anyone?