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Course: First Amendment Nofar 2000
School: University of Detroit
Year: 2000
Professor: Keenan
Course Outline provided by Legalnut.com
Also available: First amendment outline.

FIRST AMENDMENT

 

  1. FIRST AMENDMENT

    1. 1st amd only limits one branch of gov. “congress”

    2. EXCEPTIONS TO 1ST AMD PROTECTION; bribery, perjury, counseling for murder.

      1. See what is outside your fundamental right of free speech.

      2. (Highest protection) political speech, then religious speech, then commercial speech, then scandalous speech

      3. To justify suppression of your right to free speech—must be more than FEAR. Must be reasonable grounds of (1) imminent violence (2) serious vs slight injury to state

    3. CONGRESS is empowered to enact laws for the benefit of the people. Congress doesn’t have any rights. Government exists to serve me.

      1. Freedom of speech is a human rt.

      2. GOV didn’t give you any rights. they only limit or preserve your human rights

    4. AMENDMENTS;

      1. fundamental rights that are articulated (speech) or nonarticulated (vote)

      2. nonfundamental rights that are articulated (marry)( or non articulated (ex. abortion)

  2. COURTS

    1. JURY INSTRUCTION: If you find beyond a reasonable doubt the D’s stmts. … Then you must convict.

    2. SUPREME COURT: DOESN’T REVIEW STATE COURT FACTS. Highest state court finalizes.

      1. POWER OF REVIEW; Sct can review the fact findings of a fed dist ct. BUT NOT FOR THE STATE CTS.(wider scope of review in fed cts). WHY? because the 7th amd says so.

      2. PER CURIUM: any one person did not write the opinion specifically. The law is well settled and no discussion is required.

    3. COURT OF APPEALS their job is to see if there is an error in the law promulgated by the lower court. Q of fact goes to the jury unless judge takes it away by Directed Verdict

    4. ATTEMPT; SI, substantial step beyond mere preparation toward completion of a crime.

      1. Preparation must be complete and actual steps taken toward completion of a crime.

    5. IRREBUTTABLE PRESUMPTION-cannot disprove child born within 9 months of marriage as being the child of the father. Stupid people make attractive defendants

    6. REBUTTABLE PRESUMPTION—validity of a statute (1) did danger exist (2) danger imminent (3) substantial evil justifies the restriction.

    7. BURDEN OF PROOF; there is only one way to win the case if you have the burden of proof (beyond a reasonable doubt). Many ways to lose.

  3. STATUTES are strictly construed in favor of the D’s.

    1. GOV must prove that the statute serves a legitimate GOV interest

    2. there is a rational relationship between the accomplishment of the statute goal and

      1. INTERRORUM statute; you do it in terror of the legal consequences.

    3. CANT CREATE A SEDITOUS LIBEL ACT

    4. IS THE ORDINANCE OR STATUTE UNCONSTITIONAL ON ITS FACE?

      1. OVERBREATH; OVERBROAD test: Must show that AS APPLIED, THE STATUTE ON ITS TERMS WOULD VIOLATE 1ST & 14TH AMD & No privity or standing required.

        1. Does it regulate more speech than necessary? That is that it punishes all unprotected speech & some protected speech.

        2. Overbreath is substantial. The unconstitutional application is substantial.

        3. It is not commercial speech. Overbreath doctrine does not apply to commercial speech

      2. VAUGUE? test:

        1. The conduct forbidden is so unclearly defined that a reasonable person would have to guess at its meaning.

        2. its so vague that it does not give reasonable notice of what is actually prohibited (like LEWD SPEECH) it becomes an "in terrorum" statute

      3. REASONS FOR DOCTRINES:

        1. CHILL SPEECH

    5. PRIOR RESTRAINT?

      1. Prior restraints are administrative and judicial orders forbidding certain communication when issued in advance of the time that such communication occurs. A prior restrain is presumed to be unconstitutional & is a bad way to regulate speech.

        1. Examples:

          1. Prohibition as injunction (court order)

          2. system of prior reviews (require license, permit, or outright ban)

        2. Exceptions to prior restraints:

          1. doesn’t apply to commercial speech

          2. captive audience exception

          3. National security situations, (publishing design of a BOMB in a magazine.

    6. CONTENT BASED

    7. CONTENT NEUTRAL

  4. INCITMENT

    1. SPEECH IS ANY CONDUCT INTENDED TO EXPRESS AN IDEA

    2. Schenck; (Espionage Act) HOLMES (subjective test, situational test) looked less at intent and more at the EFFECT of the words.

      1. Said free speech does not extend to words used that create a “clear & present danger” (C&PD test) that they will bring about the substantive evils that congress has the right to prevent.

      2. Dangerous statute—SPEECH CRIME

      3. Court turned statute into a GI crime & removed intent

    3. Frohwerk; C&PD test used. Convicted based on views and other factors outside of the war.

      1. Suppression of free speech is OK b/c of Nat’l security

    4. Deb; The substantive evil was any speech against the draft. Latitude of expression depends on the circumstances. Deb actually influenced 1m votes.

    5. Masses; J. Hand (objective test) focuses on the language. Straight linguistic analysis to look at the meaning of the words- not just at ANY TENDENCY to incite.

      1. Statute had to do with false stmts not speech crime itself.

    6. Gitlow; Hand; statute prohibited teaching or advising.

      1. Substantive evil was to speak/print words.

      2. Said that 1st amd applied to the state via the 14th amd.

      3. Hand wanted immediacy

    7. Whitney; Criminal Syndicalism (unconstitutional statute) the case was overruled, mere association (association prevention) was the substantive evil –could loose your liberty

    8. Dennis; Hand; (said c& probable danger) c&pd means that the gravity of the evil discounted by its improbability justifies an invasion of free speech to avoid the substantive evils.

      1. Conspiracy is an incomplete crime (inchoate)

      2. first Peace-Time sedition act

      3. No majority opinion as to reasons—so just dictum. judgment is precedent though

      4. Speech repressive legislation

      5. Effect of this statute is to cut off all discussion & no one would ever contest any statute for fear of arrest.

      6. Need a compelling government interest.

    9. Yates; made a distinction over Dennis: you can regulate conduct but not a belief.

    10. Bond; cannot prohibit someone from becoming a senator because of his belief. S

  5. MODERN INCITEMENT TEST

    1. Brandenburg; Blacks concurrence mentions that there is no room for C&Pd test in the 1st amd.

      1. KKK rally filmed

  6. PROTECTED SPEECH

      1. Hate Speech is protected (niger)

      2. Offensive speech; profane language against race, religion, unless the audience is captive (on a bus) & language is obscene in the sense of being erotic.

      3. Commercial speech

  7. UNPROTECTED SPEECH

      1. Obscene speech

        1. It must be hard core sex. Mere nudity is not obscene ( serious literary, political, or scientific value)

        2. Can criminalize private possession of child porno. Even in the hands of a minor. State has a compelling interest in protecting minors.

    1. FIGHTING WORDS

      1. Cantwell; load phonograph that berated religions. It is not enough that the speaker made the crows angry, the crowd must be so angry that they are ready to fight. A personal attack would not be OK. But general criticisms are OK. If the crowd retaliates who is breaking the law? The crowd or the speaker.

      2. Chaplinski; None of the threats were personal but they were likely to produce retaliation. Fighting words are not an essential part of the exchange of ideas covered under the 1st amd. Fighting words have no social value. Requirements: FIGHTING WORDS: “Words that by their very utterance inflict or tend to incite an immediate breach of peace.”

        1. in your face (proximity)

        2. unspeakable by anyone else

          1. EXCEPTIONS to fighting words

            1. Anger is not enough

            2. The police must control the crowd instead of arresting the speaker

            3. Doesn’t apply where the mere identity of the speaker moves the crowd to anger.

            4. Fighting word Statutes that punish only certain viewpoints (race, religion, or gender: RAV case.)

            5. Fighting words statutes are usually VAGUE OR OVERBROAD. thus they may be held invalid.

          2. LIMIT on speech protection according to Chaplinski:

            1. commerce

            2. profane

            3. obscene

            4. libel

            5. fighting words

      3. Cohen; “Fuck the Draft” case. Wore a jacket that said words. The wearing of the jacket is CONDUCT but the expression on the jacket is SPEECH. Not fighting words because the jacket did not incite violence. The state statute was not specific enough to keep the jacket out of the courthouse. One mans vulgarity is another man’s lyric. NO ONE WORD IS SO BAD THAT IT CANNOT BE SPOKEN.

  8. HOSTILE AUDIENCES

    1. Difference between hostile audiences and fighting words:

        1. Fighting words are treated as offensive b/c of the form the message takes / while hostile audiences involve the form of the message or the message itself.

    2. Feiner; Ct sought to arrest the speaker. J. Black said should protect the speaker & control the crowd.

      1. If the speaker creates a traffic hazard, then the police can stop the speaker.

      2. When you arrest the speaker you violate his 1st amd rts.

    3. Cox; ct said that you should go after rowdy audience & not the speaker. Didn’t overrule Feiner, just eroded it.

    4. Kunz; Permits required to worship. Must be reasonable time, place restrictions.

      1. Permit must be content neutral.

      2. No excess discretion; Grounds for denial must be narrow & specific.

  9. LIBEL—SEE DEFAMATION HANDOUT

        1. Libel is publication

        2. to another person

        3. That is adverse to someone’s reputation.

        4. Truth is a defense.

    1. NY Times; CIVIL CASE (fed Q); private ad berating a police sheriff. Rule: in order for a plaintiff to recover he has the burden of proof of proving by clear & convincing evidence that:

        1. stmt was made with actual malice (malice is Definitional balancing) —this does not mean vengeance, it means that the publication was reckless

        2. stmt was false

        3. Reckless disregard of the truth.

        4. damages are no longer presumed

          1. BAR EXAM

            1. No double jeopardy in civil cases

            2. No expost facto limitations in civil cases

    2. Curtis; public official is a public figure.

    3. Gertz; 1st amd law must apply to everyone.

 

 

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Copyright Property. This outline is © copyrighted 2006 by Legalnut.com (Site). This outline, in whole or in part, may not be reproduced or redistributed without the written permission of Site. A limited license for personal academic use is permitted, as described below or in Site’s Terms and Conditions of Usage page on this site. This outline may not be posted on any other website without permission. Site reserves the exclusive right to distribute, change or modify this outline in whole or in part.

 

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No Warranties as to Accuracy. Site has made efforts to provide the best possible outlines, but, Site MAKES NO WARRANTIES AS TO THE ACCURACY OF THE INFORMATION CONTAINED IN THIS OUTLINE. THIS OUTLINE IS PROVIDED TO YOU ON AN AS-IS BASIS. USE IT AT YOUR OWN RISK, AND DO NOT RELY ON IT FOR LEGAL ADVICE. IF YOU NEED LEGAL HELP, PLEASE CONTACT A LICENSED AND QUALIFIED ATTORNEY IN YOUR JURISDICTION. AS THIS OUTLINE HAS BEEN WRITTEN BY A LAW STUDENT, IT MAY CONTAIN INACCURATE INFORMATION.

 

 

Students Can Not Claim This Outline As Their Own. Furthermore, some law schools have policies which permit law students to bring their self prepared course outlines into final exams. If your law school has such a policy, you are expressly prohibited from claiming this outline as your own or from representing that any of the other outlines contained on this Site are your own unless you are the author of this outline. If you are not sure of your law school's policy, you should contact the appropriate staff at your school.

 

 

Notices and Procedures for Making Claims of Copyright Infringement. If you have a claim of copyright infringement against this outline or any other content of this Site, then please see this Site’s Terms & Conditions of Use page for procedures of notifying Site of any alleged infringement.

 

 
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