1 HARM AND THE FIRST AMENDMENT: EVOLVING STANDARD S SPEECH BASED INJURIES IN U.S. SUPREME COURT OPINIONS By KARA A. CARNLEY A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 2014
2 2014 Kara A. Carnley
3 To Mom and Dad
4 ACKNOWLEDGMENTS I thank my parents for their love and support and for always challenging and believing in me. I thank my friends and family members, academic adv isors, colleagues and others who have served as my support system along the way, for their continual feedback and guidance Last but not least, I thank God, w ho has shown me through this process that all things are possible (Philippians 4:13).
5 TABLE OF CON TENTS page ACKNOWLEDGMENTS ................................ ................................ ................................ .. 4 LIST OF FIGURES ................................ ................................ ................................ .......... 9 ABSTRACT ................................ ................................ ................................ ................... 10 CHAPTER 1 INTRODUCTION ................................ ................................ ................................ .... 12 2 LITERATURE REVIEW ................................ ................................ .......................... 29 A Harm Principle in First Amendment Doctrine ................................ ....................... 30 Three Key Free Speech Rationales ................................ ................................ ........ 34 Marketplace of Ideas Theory ................................ ................................ ............ 35 Democratic Self Governance ................................ ................................ ........... 38 Personal Autonomy Rationale ................................ ................................ .......... 40 Social Research in Law ................................ ................................ .......................... 43 Law as an Auton omous Discipline ................................ ................................ .... 44 Trend Toward Greater Interdisciplinarity ................................ .......................... 45 ................................ ............... 48 Applicability of Social Science Findings in Legal Decisionmaking .................... 50 Familiarity with Social Science in Other Jurisprudential Areas ............................... 55 Segregation ................................ ................................ ................................ ...... 57 Juror Discrimination ................................ ................................ .......................... 60 Trend toward Cons titutional Empiricism ................................ ................................ .. 63 What is Empiricism? ................................ ................................ ......................... 66 Benefits of an Empirical Perspective ................................ ................................ 68 D rawbacks or Setbacks of the Empirical Approach ................................ .......... 69 Approaches to First Amendment Doctrine ................................ .............................. 71 Categoricalism ................................ ................................ ................................ .. 73 Ad hoc Balancing ................................ ................................ ............................. 77 Preferred p osition Balancing ................................ ................................ ............ 79 Empirical Balancing ................................ ................................ .......................... 81 Third Person Effect: An Explanation for Government Censorship .......................... 88 Perceptual Component ................................ ................................ ..................... 89 Behavioral Component ................................ ................................ ..................... 91 3 METHODOLOGY ................................ ................................ ................................ ... 94 Communication and Legal Resources ................................ ................................ .... 94 Selection of U.S. Supreme Court Cases ................................ ................................ 96 On the Relationship between Speech and Harm ................................ .................. 100 Typologies and Rubrics as Analytic Tools ................................ ...................... 101
6 ...................... 103 Harms of advocacy (third person harm) ................................ ................... 103 Harms of verbal assault (second person harm) ................................ ....... 104 Participant harms (first person harm) ................................ ....................... 106 Initial Observations ................................ ................................ ......................... 107 Nature of harm ................................ ................................ ......................... 107 Variety of speech ................................ ................................ ..................... 109 Types of evidence ................................ ................................ .................... 111 4 ANALYSIS ................................ ................................ ................................ ............ 115 ................................ ................................ ....................... 115 Incitement to Unlawful Action/Violence ................................ .......................... 117 Schenck v. United States ................................ ................................ ......... 117 Abrams v. United States ................................ ................................ .......... 121 Gitlow v. New York ................................ ................................ ................... 127 Whitney v. Californ ia ................................ ................................ ................ 131 Dennis v. United States ................................ ................................ ........... 134 Brandenburg v. Ohio ................................ ................................ ................ 138 Summary ................................ ................................ ................................ .. 141 Speech that Threatens ................................ ................................ ................... 145 Bridges v. California ................................ ................................ ................. 146 Watts v. United States ................................ ................................ ............. 149 NAACP v. Claiborne Hardware, Co. ................................ ........................ 152 Summary ................................ ................................ ................................ .. 158 Hostile Audience Reaction ................................ ................................ ............. 160 Cantwell v. Connecticut ................................ ................................ ........... 160 Chaplinsky v. New Hampshire ................................ ................................ 163 Feiner v. New York ................................ ................................ .................. 166 Gooding v. Wilson ................................ ................................ .................... 170 Snyder v. Phelps ................................ ................................ ...................... 172 Summary ................................ ................................ ................................ .. 17 7 Disclosure of Dangerous Information ................................ ............................. 179 New York Times Co. v. United States ................................ ...................... 180 N ebraska Press Association v. Stuart ................................ ...................... 184 Landmark Communications, Inc. v. Virginia ................................ ............. 188 Summary ................................ ................................ ................................ .. 191 ................................ ................................ ............................. 193 False Statements of Fact ................................ ................................ ................ 193 New York Times Co. v. Sullivan ................................ ............................... 194 Gertz v. Robert Welch, Inc. ................................ ................................ ...... 198 Hustler Magazine v. Falwell ................................ ................................ ..... 202 United States v. Alvarez ................................ ................................ ........... 204 Summary ................................ ................................ ................................ .. 207 Sexually Explicit and Violent Expression ................................ ........................ 209 Roth v. United States ................................ ................................ ............... 210 Miller v. California ................................ ................................ .................... 212
7 Paris Adult Theat re v. Slaton ................................ ................................ ... 216 Ferber v. New York ................................ ................................ .................. 220 Ashcroft v. Free Speech Coalition ................................ ............................ 224 Uni ted States v. Stevens ................................ ................................ .......... 229 Brown v. Entertainment Merchants Association ................................ ....... 233 Summary ................................ ................................ ................................ .. 238 Lewd, Profane and Indecent Expression ................................ ........................ 241 Cohen v. California ................................ ................................ .................. 242 Erznoznik v. City of Jacksonville ................................ .............................. 246 Young v. American Mini Theatres, Inc. ................................ .................... 249 Federal Communications Commission v. Pacifica Foundation ................ 253 City of Renton v. Playtime Theatres, Inc. ................................ ................. 256 City of Los Angeles v. Alameda Books, Inc. ................................ ............. 259 Federal Communications Commission v. Fox Television Stations, Inc. ... 264 Summary ................................ ................................ ................................ .. 271 Hate Speech ................................ ................................ ................................ ... 275 Beauharnais v. Illinois ................................ ................................ .............. 275 R.A.V. v. City of St. Paul ................................ ................................ .......... 282 Virginia v. Black ................................ ................................ ....................... 285 Summary ................................ ................................ ................................ .. 289 Chapter Summary ................................ ................................ ................................ 290 5 CONCLUSIONS ................................ ................................ ................................ ... 311 Proof of Harm Typology ................................ ................................ ........................ 311 Nature of Legal Question ................................ ................................ ................ 313 ................................ ................................ .............. 315 Number of Government Interests ................................ ................................ ... 318 Weightiness of the Government Interest(s) ................................ .................... 318 Perceived Legitimacy of the Asserted Interest(s) ................................ ........... 319 Level of Legislative Deference ................................ ................................ ....... 321 Availability of Evidence ................................ ................................ ................... 323 Strength of E vidence ................................ ................................ ...................... 324 Difficulty of Gathering New Evidence of Harm ................................ ................ 326 Normative Ranking / Ordering of Typological Factors ................................ .......... 327 Tier 1 ................................ ................................ ................................ .............. 328 Tier 2 ................................ ................................ ................................ .............. 328 Tier 3 ................................ ................................ ................................ .............. 329 Proof of Harm Rubric ................................ ................................ ............................ 330 Application of Proof of Harm Tools to a Specific Factual Scenario ....................... 331 Hypothetical Fact Pattern ................................ ................................ ............... 332 Application of the Analytic Tools to the Fact Scenario ................................ .... 335 Speech provoking a hostile audience reaction emotional harm (1) ....... 335 Speech that threatens emotional harm (3) ................................ ............ 342 Speech that threatens physical harm (3) ................................ ............... 350 Speech that threatens economic harm (1) ................................ ............ 350 Hate speech emotional harm (2) ................................ ........................... 352
8 Incitement to unlawful action physical harm (1) ................................ ..... 354 Incitement to unlawful action public health, safety, order, morals and welfare (1) ................................ ................................ ............................. 355 Sexually explicit and violent expression physical harm (1) .................... 356 Lewd, profane and indecent expression u rban planning and crime reduction (1) ................................ ................................ .......................... 357 Lewd, profane and indecent expression injury to minors (2) ................. 357 Effect of Third Person Effect on Censorship of Expression ................................ .. 360 Review of Research Questions ................................ ................................ ............. 377 LIST OF REFERENCES ................................ ................................ ............................. 385 Primary Sources ................................ ................................ ................................ ... 385 Constitutions ................................ ................................ ................................ ... 385 Cases ................................ ................................ ................................ ............. 385 Federal Statutes ................................ ................................ ............................. 388 Legislative Materials ................................ ................................ ....................... 389 State Statutes ................................ ................................ ................................ 389 City and Municipal Ordinances ................................ ................................ ....... 389 Secondary Sources ................................ ................................ .............................. 389 Books and Book Chapters ................................ ................................ .............. 389 Court Filings ................................ ................................ ................................ ... 393 Administrative Agency Reports ................................ ................................ ...... 393 Journal Articles ................................ ................................ ............................... 394 Unpublished Material ................................ ................................ ...................... 405 News Articles. ................................ ................................ ................................ 405 Websites ................................ ................................ ................................ ......... 406 BIOGRAPHICAL SKETCH ................................ ................................ .......................... 408
9 LIST OF FIGURES Figure page G 1 ................................ ................................ ................... 112 G 2 ................................ ................................ .................... 113 G 3 Selected U.S. Supreme Court cases (by decade) ................................ ............ 114 G 4 Evolution of proof of harm in U.S. Supreme Court opinions (by decade) ......... 297 G 5 Proof of harm typology ................................ ................................ ..................... 364 G 6 Proof of harm rubric ................................ ................................ ......................... 365 G 7 Normative ranking/ordering of typological factors ................................ ............. 376
10 Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy HARM AND THE FIRST AMENDMENT: EVOLVING STANDARD S SPEECH BASED INJURIES IN U.S. SUPREME COURT OPINIONS By Kara A. Carnley May 2014 Chair: Clay Calvert Major: Mass Communication This study of harm doctrine in freedom of expression analysis. It analyzes thirty eight Supreme Court cases beginning in 1919 and ending with discussion of its most recent free speech opinion in 2013. Free speech jurisprudence has never adhered to a position of absolute protection for expression, a position that woul d render all laws restricting expression unconstitutional. Rather, the Court has more often engaged in a balancing approach the value of the expression. Examination of m ore recent Supreme Court constitutional jurisprudence reveals a trend away from i ts historical balancing that deferred to legislative and congressional fact finding to one that requires sufficient scientific evidence. jurisprudence demonstrates it has not adopted an empirical approach across all brands of expression. In this sense, United States v. Alvarez and Brown v. Entertainment Merchants Association two prominent opinions adopting stringent evidentiary burdens re quiring empirical proof of harm, may more accurately represent outliers to its usual approach adopting much lower
11 evidentiary burdens. Until the Court has additional time to consider application of its empirical approach to a broader spectrum of expression, it is perhaps unclear whether Brown and Alvarez of a lengthier trajectory. This study proposes a typology of factors it found to have potentially affected the of its requirement of proof of harm, including the specific evidentiary burden imposed e and amount of evidence it required or evaluated to make its determination regarding the constitutionality of the allegedly harmful expression. It also proposes a rubric for helping courts assess the burden of proof of harm it should adopt when evaluatin g specific speech based claims. The requirements of assessment of an evidentiary burden of proof of harm in specific factual scenarios set forth in the rubric in based on the own assessment of the nature of harm, types of speech and evidence, includ ing the type and quantity, required or evaluated in its First Amendment opinion. The purpose of these tools the typology and rubric is to assist the development of a better understanding of the relationship between speech and harm in First Amendment jurisp rudence.
12 CHAPTER 1 INTRODUCTION In 2012, the United States Supreme Court considered in United States v. Alvarez 1 whether a portion of the Stolen Valor Act 2 that made it crime to lie about receiving a military medal violated the freedom of speech guaranteed by the First Amendment. 3 A central issue in the case was whether the government could 4 like those made in the case by Xavier Alvarez. 5 The governmen t 1 132 S. Ct. 2537 (2012). 2 The section at issue of the Stolen Valor Act, which was signed into law by President George W. Bush in 2006, provides that: Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by C ongress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined und er this title, imprisoned not more than six months, or both. 18 U.S.C. Â§ 704 (b ) ( 2011). In June 2013, President Barack Obama signed into law the Stolen Valor Act of 2013, a revised and more narrowly drafted measure of the statute struck down in Alvarez. Obama Signs Bill on Lying About Military Medals A SSOC P RESS June 3, 2013, available on LexisNexis Academic News database. 3 make no law ... abridging t U.S. C ONST amend. I. The Free Speech and Free Press Clauses were incorporated nearly ninety years ago through the Fourteenth Amendment Due Process Clause as fundamental liberties to apply to state and local governme nt entities and officials. See Gitlow v. New York, 268 U.S. 652, 666 (1925). 4 Alvarez 132 S. Ct. at 2549. See also Reply Brief of the United States, U nited States v. Alvarez, 132 S. Ct. 2537 (2012 ) ( No. 11 21 0), 2012 WL 454625, at *13 14. According to the reply brief: The aggregate effect of false claims undermines that purpose, not by harming public and honor. By creating the misimpression that the claimant has re ceived a medal for use misappropriation may make the public skeptical of all claims, allowing false claims to go unchecked could cause actual recipients to face unjustified doubts and harmful consequences if their records are not readily discoverable through private research Id. (internal citations omitted).
13 asserted that dilution of the integrity and reputation of such awards constituted a compelling interest sufficient for the law to satisfy strict scrutiny. 6 Rather than accept the naked assertion that lying about military medals harms their integrity and 7 however, a plurality of the Court demanded the government prove the speech in question actually caused the alleged injuries. Specifically, Justic e Anthony Kennedy explained : s is not to end the matter. There must be a direct causal link between the restriction imposed and the injury to b e prevented false claims of liars like respondent has not been shown. 8 5 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many t Alvarez 132 S. Ct. at 2542. Newspaper articles also reported on details of the case. See, e.g ., Robert Barnes, High Court to Review Stolen Valor Act W ASH P OST Feb. 19, 2012, at A03; Joan Biskupic, Lies About Military Feats Turns into Speech Case USA T ODAY Oct. 22, 2011, at 5A; Adam Liptak, Justices Take Case on Lying about Honors from Military N. Y. T IMES Oct. 18, 2011, at 18; Adam Liptak, Justices Appear Open to Affirming Medal Law N.Y. T IMES Feb. 23, 2012, at 13. A number of legal scholars have likewise written about this case. This case, however, has not yet been largely written about in law review and journa l articles. For an example of a law review article Alvarez v. United Stat es see, e.g ., Clay Calvert & Rebekah Rich, Low Value Expression, Offensive Speech, and the Qualified First Amendment Right to Lie: From Crush Videos to Fabrications about Military Medals 42 U. T OL L. R EV 1 (2010). 6 Alvarez 132 U.S. at 2549. 7 The aut hor does not dispute that lying about a military medal may well harm its integrity and value. Indeed, according to the Court: It must be acknowledged that when a pretender claims the Medal to be his own, the lie might harm the Government by demeaning the h igh purpose of the award, diminishing the honor it confirms, and creating the appearance that the Medal is awarded more often than is true. Furthermore, the lie may offend the true holders of the Medal. From one perspective it insults their bravery and hig h principles when falsehood puts them in the unworthy company of a pretender Id 8 Id. (emphasis added).
14 In brief, harm was neither to be assumed nor presumed, as it sometimes was and still is in defamation law under the doctrine of presumed damages. 9 Justice Kennedy demanded proof of direct causation of harm allegedly wrought by the speech points to no 10 In sharp contrast, Alvarez such direct, evidentiary proof of harm. Justice Samuel Alito, joined by Justices Antonin Scalia and Clarence reasonably concluded medals 11 Their opinion seemed more focused on its belief that the speech in question was valueless rather than whether there was evidence that it caused harm. 12 9 Kevin P. Allen, Pennsylvania Law 42 D UQ L. R EV 495, 495 (2004 ) ( explaining that presumed damages defamation plaintiffs to recover damages even if they could not prove that they actually suffered any A Principled Approach to Compensatory Damages in Corporate Defamation Cases 27 A M B US J.L. 491, 498 (1990 ) ( required to prove any injury to her reputation. Instead the reputational injury is legally presumed, and the trier of fact assesses the damages it regards as ap 10 Alvarez 132 S. Ct. at 2549. 11 Id. at 2556 (Alito, J., dissenting ) ( emphasis added). Justice Alito elaborated that: [M]uch damage is caused, both to real award recipients and to the system of military honors, by false statements that are not linked to any financial or other tangible reward. Unless even a small financial loss say, a dollar given to a homeless man falsely claiming to be a decorated veteran as more important in the eyes of the First Amendment than the damage caused to the very i ntegrity of the military awards system, there is no basis for distinguishing between the Stolen Valor Act and the alternative statutes that the plurality and concurrence appear willing to sustain. Id at 2560. 12 Justice Alito described the speech in questi entire Id. at 2564. He [t]hese lies have no value in and of themselves, and proscribing them does not chill any Id. at 2557.
15 Ultimately, then, a fundamental question in First Amendment jurisprudence is whether or not there is sufficient evidence that speech causes harm such that its regulation or prohibition passes constitutional muster. Alvare z is not the only recent opinion in which the Court grappled with the question of whether speech causes harm and, in par ticular, what standard of proof of harm must be demonstrated by the government to justify a speech restrictive statute. Certainly the sp eech at issue in the Brown v. Entertainment Merchants Association 13 video 14 intuit ively seems to have the capacity to cause harm. In fact, a Joint Statement filed in Brown and issued by six professional health o a causal connection between media 15 conclusion of the health community, based on over 30 years of research, is that viewing entertainment violence can lead to increases in aggressive attitudes, values and 16 A summary statement by Dr. Craig Anderson, 17 13 131 S. Ct. 2729 (2011). 14 Id. at 2733. pieces Id. at 2738. 15 Joint Statement on the Impact of Entertai nment Violence on Children, at 4, [hereinafter Joint Statement] available at http://www2.aap.org/advocacy/releases/jstmtevc.htm (last visited Sept. 14, 2013). 16 Id. 17 Dr. Craig Anderson is a professor of psychology and director of the Center for the Study on Violence at Iowa State University. Craig Anderson Iowa University, http://www.psychology.iastate.edu/~caa/ (last visited Sept. 16 2013).
16 whose research was heavily relied upon by the government in Brown and his colleagues in a 2003 study on children and media violence captures the consensus that perhaps currently exists among social science scholars about the effects of media violence: Research on violent television and films, video games, and music reveals unequivocal evidence that media violence increases the likelihood of ag gressive and violent behavior in both immediate and long term contexts. The effects appear larger for milder than for more severe forms of aggression, but the effects on severe forms of v iolence are also 18 Yet, the high court found that the games 19 was an unconstitutional, content based restriction devoid of a compelling government interest. 20 Why? to a significan t measure of First Amendment protection, and only in relatively narrow and well defined circumstances may government bar public dissemination of protected 21 e that it of solving, and the curtailment of free speech must be actually necessary to the 22 Although the Court acknowledged that states possess an interest in 18 Craig A. Anderson et al., The Influence of Media Violence on Youth 4 P SYCHOL S CI P UB 81, 81 (2003). 19 C AL C IV C ODE Â§Â§ 1746 1746.5 (2009). 20 131 S. Ct. 2729, 2738 39 (2011). 21 Id. at 2735. 22 Id. at 2739 (internal citations omitted).
17 protecting children from harm, 23 California could not satisfy strict scrutiny because it allegedly caus ed to minors, i.e. causes minors to act 24 It may be fair to say that sufficient controversy still exists regarding the claim of causality, which is often difficult to define. 25 Despite apparent research conclusions, California acknow ledged in its brief it could not 26 Anticipating the possible reaction that such a claim might lead some to view the consensus of the research community as erroneous, the Joint Statement co entertainment violence is the sole, or even necessarily the most important factor contributing to youth aggression, antisocial attitudes, and violence. Family breakdown, 23 Id. at 2736 (quoting Erznoznik v. City of Jacksonville, 422 U.S. 205, 212 23 (1975)). Indeed, according violent Id at 2738. Rather, it relied on Turner Broadcasting System, Inc. v. FCC legislature [could] make a predictive judgment that such a li nk exists, based on com peting psychological Id As this paper discusses, however, the Court was neither persuaded by this argument. children from harm floating power to restrict the ideas to w hich Id at 2736. Relying on prior Supreme Court precedent involving the regulation is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images Id. (quoting Erznoznik 422 U.S. at 213 14). Cf. Ginsberg v. New York, 390 U.S. 629 (1986) (prohibiting the sale of sexually explicit material to children). 24 Brown 131 S. Ct at 2739. 25 See generally Clay Calvert & Matthew D. Bunker, Examining the Immediate Impact of s Proof of Causation Doctrin e and its Compatibility with the Marketplace Theory 35 H ASTINGS C OMM & E NT L.J. 391 (2013) (describing the judicial ferment and potential differences between its use in law and the social sciences). 26 Brown 131 S. Ct at 2738.
18 peer influences, the av ailability of weapons, and numerous other factors may well all 27 Clarification that media violence may be only one of many different causes of aggression, however, was not enough for Justice Scalia. He found the research 28 29 laboratories, longitudinal studies, surveys of eighth and ninth graders, cutting edg e neuroscience and meta analyses, or studies of all the studies which the majority 30 was not enough, according to Justice Scalia, to justify a content based restriction on speech. 31 Rathe correlation between exposure to violent entertainment and miniscule real world 32 Brown 33 27 Joint Statement, supra note 15, at 8. 28 Brown 131 S. Ct. at 2739. 29 Id n.8. 30 Id 31 Id not framed with the precision that the Id at 2742 (Alito, J., concurring). Although the majority did not invite rewrite of the law, Justice Samuel Alito noted in his concurrence with Chief Justice Roberts that he squelch Id at 2751. See also Adam Liptak, M inors can Buy Violent Games, Justices D ecide N. Y. T IMES June 28, 2011, at 1; Robert Barnes, Limits on Video Games R ejected W ASH P OST June 28, 2011, at A01; Court Zaps California B an USA TODAY, June 28, 2011, at 18A (describing the ou tcome of the Cour 32 Id at 2739. 33 Id. at 2761 72 (Breyer, J., dissenting).
19 he would instead defer to the public health professionals who found that there did exist 34 Although cognizant of the conclusions reached by the studies referenced by the majority, these professionals, according to of the research. 35 these studies and expert opinions for this Court to defer 36 34 Id at 2768 (Breyer, J., dissenting) 35 Id. (Breyer, J., dissenting). See also e.g. Deanna Pollard Sacks et al. Do Violent Video Games Harm Brown v. Entertainment Merchants Association, 106 N W U. L. R EV C OLLOQUY 1 (2011 ) (providing a retrospective examination of the credentials of the amicus curiae exp erts t hat testified before the Court). According to Sacks and colleagues: [T]he Court should exercise its judgment critically and cautiously, considering that the vast majority of violent media experts concur that violent video games can cause serious harm to children ... violent video games on children demonstrates that the experts supporting California are far more qualified to offer opinions that the experts supporting the violent video game should ... uphold the California law because the scientific evidence clearly supports the findings o n which the legislature relied. Sacks supra note 35, at 12. 36 At least since Marbury v. Madison U.S. 137, 137 (1803). In keeping with this role, most federal courts have generally been reluctant and often disavowed the fact finding role, preferring in fact finding. Caitlin E. Borgmann, Rethinking Judicial Deference to Legislative Fact Finding 84 I ND L.J 1, 6 (2000). Deference to legislative fact finding has largely been based on two different th widely accepted view that legislative bodies are better than courts at fact the authority or legitimacy to question legislative fact Id As noted by Borgmann: A close examination of the cases ad dressing judicial deference to legislative fact finding, and of the circumstances under which such deference has been accorded or denied, reveals ... [that] the Supreme Court has been unclear about the role facts should play in its constitutional decisions. At times the Court treats facts as a decisive factor in determining the constitutionality of legislation, while at other times, it treats facts as largely irrelevant to that inquiry. Id. f gathering and assessing the Id at 4. Borgmann suggests that courts should not blindly defer to legislative
20 conclusion that the video games in question are particularly likely 37 involve technical matters that are beyond our competenc e, even in First Amendment 38 deference to legislative fact finding, at least in the context of social science research proving harm to minors. 39 It also indicates perhaps a greater willingness than the oth er justices to tolerate ambiguity in 40 Although Justice other than deference to legislative decision making before it would allow a speech based harm restriction, it does appear to require less than empirical 41 proof, which the majority found was insufficient. According to Justice Breyer, the social scientific studies offered by the deference, but should engage in greater social fact finding when basic individual rights and liberties are at stake. S ee id. generally For other scholarly approaches, see e.g ., Ruth Colker & James J. Brudney, Dissing Congress 100 M ICH L. R EV finding); see also generally John O. McGinnis & Charles W. Mulaney, Judging Facts Like Law: The Courts Versus Congress in Social Fact finding 25 C ONST C OMMENT 69 (2008 ) (arguing legislature has no advantage over the judiciary in conducting fact finding). 37 Brown, 131 S. Ct. at 2770 (Breyer, J., diss enting). 38 Id. (Breyer, J., dissenting). 39 See supra note 36 (discussing legislative deference). 40 Brown 131 U.S. at 2770 (Breyer, J., dissenting). 41 See B LACK S L AW D ICTIONARY S TANLEY J. B ARAN & D ENNIS K. D AVIS M ASS C OMMUNICATION T HEORY : F OUNDATIONS F ERMENT AND F UTURE at Kindle Location 901 ( 6th ed., See also infra Part
21 tantial (though controverted) 42 In analyzing other First Amendment opinions involving speech based harm, the Court has not always imposed such a high standard of proof before permi tting restriction of expression. Although proving unsuccessful, the government in Alvarez Gertz v. Robert Welch, Inc. 43 to support restricting false speech. 44 In Gertz an attorney brought a libel action against a magazine publisher for an article in which statements were made about the attorney. 45 Gertz noted the absolute liability imposed upon individuals for defamatory statements under the longstanding common law tradition in defamation. 46 42 Brown 131 S. Ct. at 2767, 2772 (Breyer, J., dissenting). 43 418 U.S. 323 (1974). 44 U nited States v. Alvarez, 132 S. Ct. 2537, 2544 45 (2012). For instance, the government cited the Gertz state Id at 2545 (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974)). This was the argument likewise supported by Amici, Constitutional Professors Euge ne Volokh and James Weinstein, in their brief, when exception, with some limitation .... Brief of Professors Eugene Volokh and James Weinstein as Amici C ur iae in Support of Petitioner, United States v. Alvarez, 123 S. Ct. 2537 (2012 ) ( No. 11 210) 2011 WL 6179424 at *22. However, this argument was struck down by the Court when it noted that: rom cases discussing defamation, fraud or some other legally cognizable harm associated with a false statement ... [i]n those decisions the falsity of the speech at issues was not irrelevant to our analysis, but neither was it determinative. The Court has ne ver endorsed the categorical rule that Government advances: that false statements receive no First Amendment protection. Alvarez isolated statements in some earlier decisions do not support the Governme Id. at 2344 45 (emphasis added). 45 Gertz 418 U.S. at 325 27. 46 Id at 341 42. See also id
22 perta ining to actions for libe l... the existence of injury in defamation is presumed from the 47 Gertz however, attempted to reconcile the presumption given to private plaintiffs in defamation law with competing First Amendment interests. 48 I t held that it would no liability is not based on a showing of knowledge of falsity or reckless disregard for the 49 Stated differently, although defamation plaint iffs could still recover damages for 50 they could not recover presumed or punitive damages without proof of actual malice 51 The standard applied demanded a lesser showing of proof tha n that imposed by the New York Times Co. v. Sullivan 52 standard, which prevents public figure and public official plaintiffs from recovering any damages whether actual or presumed without proof of actual malice. 53 both United States v. Schenck 54 and United States v. Abrams 55 foundational First Amendment cases involving speech 47 Id. at 349 (emphasis added). 48 Id. 49 Id. 50 Id. at 350. 51 Id. at 348 49. 52 376 U.S. 254 (1964). 53 Id. ( allows the States to impose liability on the publishers or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times ) ( emphasis added). 54 249 U.S. 47 (1919). 55 250 U.S. 616 (1919).
23 based harm neither Abrams nor Schenck specifically mention harm. In both cases, the defendants were found sentenced to prison for violating the Espionage Act of 1917, 56 a piece of congressional World War I legislation, upon only a production of circumstantial and testimonial evidence that they engaged in speech opposing U.S. war efforts and without any evidence it would have produced the harm the government alleged. In Schenck v. United States 57 often thought of as allowi ng the Court to make its own ad hoc determinations whether the speech actually caused the harm alleged to curtail the speech challenged in the case. 58 Specifically, the clear and present are in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to 59 Justice Oliver Wendell Holmes Jr. delivered the opinion for a unanimous 56 18 U.S.C. Â§ 793 (1917). 57 Schenck, 249 U.S. at 52 When Holmes first used the clear and present danger test in Schen c k he limited government authority to suppress speech advocating unlawful conduct to circumstances where it 58 Although the language of the clear and present danger e that be said to create See Martin H. Redish, Advocacy of Unlawful Conduct and the First Amendment: In Defense of Clear and Present Danger 70 C ALIF L. R EV 1159, 1160, 1162 (1982). Advocates of the test argue it is the best available judicial test for striking a balance between protection of the marketplace of ideas and the need to protect nati onal security and pub lic order. On the Id at 1160. Opponents argue it is open to widely varying interpretations and provides little or no protection to radical speech in times of political stress See, e.g ., M ARTIN H. R EDISH F REEDOM OF E XPRESSION : A C RITICAL A NALYSIS 173 (1984). 59 Schenck 249 at 52
24 Court. He upheld the conviction of individuals for circul ating a leaflet arguing that a draft violated the Thirteenth Amendment as a form of involuntary servitude. 60 Although there was no evidence that the leaflet had caused a single person to resist the draft, 61 y things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any 62 Applying this principle to Schenck sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to 63 In Abrams, 64 a seven justice majority eight months later affirmed the convictions of a group of Russian immigrants who circulated leaflets in English and Yiddish objecting to Americ a sending troops to Eastern Europe after the Russian Revolution. 65 Schenck year convictions fo r engaging in acts deemed potentially harmful to the war effort. 66 This 60 Id. at 47. 61 Id if an actual obstruction to the recruiting service were proved liability for words 62 Id 63 Id. at 51. 64 250 U.S. 616 (1919). 65 Id at 622. 66 Id at 622, 624.
25 of Patterson v. Colorado 67 68 Under the bad 69 Although the Cou rt seemingly overturned the bad tendency test in Schenck it permitted the restriction of speech by the governme nt in Abrams if the speech had any tendency to incite or cause illegal activity. Justice Holmes, who authored the majority opinion in Schenck dissented in Abrams, 70 an opinion that has been the center of speculation and controversy ever since. 71 In his diss ent, Holmes reaffirmed his vote in earlier cases, 72 and also his belief 73 In stark contrast to his majority opinion in Schenck nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder 67 205 U.S. 454 (1907). The bad tendency test was the predominant standard used by the Court in speech cases during the era, during and i mmediately following World War I, for determining whether criticism of the war was protected by the Constitution. Geoffre y R. Stone, 2002 S UP C T R EV 411, 411. 68 Isaac Molnar, Resurrecting the Bad Tendency Test to Combat Instructional Speech: Militias Beware 59 O HIO S T L.J. 1333, 1333 (1998) (discussing the bad tendency test). 69 See, e.g., Grubl v. United States, 264 F. 44 (8th Cir. 1920). 70 250 U.S. 616, 624 (Holmes, J., dissenting). 71 L EE C. B OLLINGER T HE T OLERANT S OCIETY opinions in Abrams and Schen ck ). 72 Schenck that the questions of law that alone were before this Court in the Cases of Schenck, Frohwerk, and Debs 73 Id. at 627 28 (Holm es, J., dissenting).
26 the success o 74 Simply put, he now seemed to doubt the ability of the pamphlets to result in any The Court has not always imposed a stringent evidentiary burden on speech 75 Cases such as Alvarez and Brown perhaps signaling a shift, or at least a step forward, in the First Amendment proof of thus call for an evaluation of its approach. This study addresses the following rese arch questions: 1. Do recent opinions such as Alvarez and Brown signal a shift toward a heightened standard of proof of harm stemming from speech as compared with earlier cases? 2. How does the nature of the alleged harm (physical, psychological or financial) an d/or the type of speech involved (incitement, libel) affect the level of proof of harm the type of evidence and the quantity of evidence required by the Court? In analyzing these queries, it performs an in depth review of U.S. Supreme Court opinions on pro of of harm stemming from speech. It seeks to determine whether, or to This study is compris ed of five chapters. Chapter 1 has examined recent incidents giving rise to re of harm jurisprudence. Chapter 2 sets forth a literature review of legal and communications scholarship on 74 Id. (Holmes, J., dissenting) ( arguing in favor of the clear and present d anger test, rather than the bad tendency test applied, t 75 Frederick Schauer, Harm(s) and the First Amendment 2011 S UP C T R EV 81, 81.
27 speech based h arm. Chapter 3 describes this methodology for locating the communication and legal resourc es and selecting the U.S. Supreme Court cases underlying its proof of harm analysis. Chapter 4 analyses thirty eight U.S. Supreme Court opinions, specifically focusing on the relationship between speech and harm to the determination of the evidentiary burd based restrictions. Chapter 5 draws on findings from its analysis to propose two evidentiary tools a typology and rubric for assessing the burden of proof a court might impose when evaluating claims involving sp eech based injuries. It applies these instruments to a hypothetical fact pattern to demonstrate their use It reviews the third person effect, including its specific relevance to judicial decisionmaking, and identifies areas for future research. While cons titutio nal law has witnessed a broad trend toward empiricism, First Amendment doctrine is inherently lacking of appropriate measures for empirically evaluating harm stemming from speech. In certain instances, the Court has rejected evidence believed to be relevant by the social scientific community to demonstrate a proximate speech harm connection. The refusal to find even empirical scientific research adequate within the certain varieties of expression it has been applied may be reflective of a general dis connect between social science and law, including proper understanding of language and terminology; the relevance of social science findings in legal decisionmaking ; and ability of judges and lawyers to properly evaluate the evidence.
28 Until the Court has additional time to evaluate the application, or in certain circumstance the appropriateness of empirical evidence to speech based claims, Alvarez and Brown evidentiary burdens, may be more akin to outliers within free speech jurisprudence. Ultimately, the goal of the study is to provide enhanced clarity to jurists in cases involving speech ba sed injuries. Specifically, it strives to help judges better focus on the relationship between the nature of the harm in question to justify speech restrictions. In doing so, it proposes not only a typology, but a rubric for assessing the evidentiary burde n to be applied in instances involving specific types of speech and natures of harm. It applies these evidentiary instruments to a hypothetical fact pattern involving speech based causes of action to illustrate how they might work.
29 CHAPTER 2 LITERATURE REV IEW This C hapter has five parts. Part A examines the relationship between speech principle in his 1869 work, On Liberty Part B describes and analyzes three key free spee ch theories the marketplace of ideas, democratic self governance, and personal autonomy/self fulfillment that may be used by courts in determining whether ostensibly harmful speech merits protection. Part C discusses and amalgamation of the social science and legal fields, including the use of social science evidence in other are as of jurisprudential analysis, demonstrating the Court's familiarity with and reliance on social science evidence in evaluating claims that come before it. Part D examines the Cour toward empiricism, placing greater emphasis on sci entific evidence, methods and procedures in constitutional law generally, and First Amendment law, specifically In doing so, it also assesses the lack of standards largely governing the Court's reliance on scientific and empirical evidence in speech based claims. Fina lly, Part E analyzes t he mass communication concept known as the third person effec t to potentially explain the fulcrum o f government regulations aimed at allegedly harmful expression and why this legislation may be unnecessary. W hile numerous authors have addressed topics broadly covered by this study none have performed an in depth review of the evolution of the Supreme C of harm principle across multiple spectrums of speech and only very few publications are specifically on point. 1 1 See, e.g ., Clay Calvert et al., Social Science, Media Effects & The Supreme Court: Is Communication Research Relevant After Brown v. Entertainment Merchants Association?, 19 UCLA E NT L. R EV 293 (2012 ) ; William K. Ford The Law and Science of V ideo Game Violence : What Was Lost in Translation 31
30 A Harm Principle in First Amendment Doctrine Speech and the harm allegedly wrought by it have a long, complicated relationship. Al though the Court has never endorsed an absolute right to engage in free speech, 2 it has sta ted, it is that the government may not prohibit the expression of an idea simply because society f 3 Put differently, the right of free expression protects speech that merely causes the kind of mental unpleasantness that stems from hearing a disquieting viewpoint or belief. In turn, it generally requires proof of something greater than harm in the form of emotional disgust or umbrage before it can be extinguished. 4 Although the Court recognizes speech related harm in some situations 5 and indeed, most legislative restrictions focus on preventing or prohibiting harm to the C ARDOZO A RTS & E NT L.J. 297 (2013); Sharon D. Herzberger Social Science Contributions to the Law: Understanding and Predicting Behavior 25 C ONN L. R EV 1067 (1993); Frederick Schauer, Harm(s) and the First Amendment 2011 S UP C T R EV 81 [hereinafter Schauer, Harms(s) ]; Barry Smith, The Fight Over Video Game Violence: Recent Developments in Politics, Social Science & Law 30 L AW & P SCYHOL R EV 185 (2006). 2 Whitney v. California, 274 U.S. 357, 373 ( 1927 ) ( Brandeis J., concurring ) ( Court has refused to confer absolute protection upon freedom of expression .... U.S. 343, 358 (2003 ) ( ... are not absolute .... ) ( right of free speech is not absolute at all times and under all circumstances ) ( citing Schenck v. United States, 249 U.S. 47 (1919)). See also O W EN F ISS T HE I RONY OF F REE S PEECH 5 (1996 ) [hereinafter F ISS I RONY ] ( as an absolute bar to state regulation of speech but more in the nature of a mandate to dr aw a narrow boundary 3 Texas v. Joh nson, 491 U.S. 397, 414 (1989). 4 Although plaintiffs can recover for emotional harm caused by speech under the theory of intentional infliction of emotional distress (IIED), that distress must be severe, and the Supreme Court has imposed high hurdles on recovery under the IIED tort when the speech relates to a matter of public concern, as it did in Snyder v. Phelps 131 S. Ct. 1207 (2011), and in cases filed by public figures, such as Hustl er Magazine v. Falwell 485 U.S. 46 (1988). 5 See, e.g. Hill v. Colorado, 530 U.S. 703 (2000) and Frisby v. Schultz, 487 U.S. 474 (1988 ) ( recognizing the harm caused by targeted picketing); Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749 (1985 ) ( acknowledging the harm caused from commercial defamation). In a few of these cases, the Court
31 public, institutions, individuals or societal interests very little of its First Amendment doctrine directly addresses speech based inju ries Only in more recent cases, such as Alvarez 6 and Brown 7 has the Court taken an approach in which it more f ully analyzes producing capacity. Yet, a society dedicated to an open and uninhibited free speech principle must be willing to protect at least some forms of harm causing speech, despite the resulting injury. 8 John Stuart Mill, 9 long regarded as one of the most influential philosophers on which power can be rightfully exercised over any member of civilized community, against his will, is to pr 10 Although some read Mill as rejecting trict the speech causing harm. See, e.g ., R.A.V. v. City of St. Paul, 505 U.S. 377 (1992 ) ( hate speech in the form of cross burning); Ocala Star Banner v. Damron, 401 U.S. 295, 301 (1971 ) ( White J., concurring ) ( recognizing the harm caused by defamation of public officials, but refusing to grant a cause of action). 6 132 S. Ct. 2537 (2012). 7 1 31 S. Ct. 2729 (2011). 8 Schauer, Harm(s) supra note 1, at 81. For a zealous approach to protection of speech despite the harm it may result, see C. Edwin Baker, Harm, Liberty and Free Speech 70 S C AL IF L. R EV 979, 980 81 (1997 ) [ hereinafter Baker, Ha rm, Liberty and Free Speech ] ( liberty). ld be subject to legal restriction depends not on whether it causes harm, but on how Id. at 981. He Id. at 993 97. 9 John Stuart Mi ll was born in London in 1806. Under the tutelage of his father, James Mill, he began his education at an early age, learning Greek by age three, and Latin by age eight. philosophy of Unitarianism in his teens, but later had a change of heart This led to his expansion of as well as his deve lopment of the harm principle, discus sed in depth in his book On Liberty J OHN S TUART M ILL (1806 1873), E NCYCLOPEDIA OF P HILOSOPHY 220 232 ( 2d ed. Donald M. Borchert, ed., MacMillian 2006) [hereinafter Borchert, J OHN S TUART M ILL ] ; see also J OHN S TUART M ILL A UTOBIOGRAPHY OF J OHN S TUART M ILL 3 11 (Columbia Univ. Press 1924). 10 J OHN S TUART M ILL O N L IBERTY 9 (Gertrude Himmelfarb, ed., Penguin Books 1974 ) ( 1859 ) ( emphasis added ) [ hereinafter M ILL O N L IBERTY ].
32 limits on potentially harmful speech, others interpret him as providing a broad defense 11 Mill sought to challe nge the type of speech society would recognize as legally cognizable harm, noting that even the relatively tolerant England that existed in the first half of the nineteenth century in which he lived still punished people for atheism, heresy and seditious l ibel. 12 change, 13 rejected such bans on opinions. 14 He believed the state should have no authority to restrict individual conduct. Y et, he never rejected some limits on speech. 15 Mill envisione d the harm principle as constructing the boundary between the state and individual liberty, 16 where the state would have the authority to restrict only to produce evil to someone else 17 or, in other words, to individuals other than the one causing the harm. 18 19 as opposed to 11 Id at 80. 12 Borchert, J OHN S TUART M ILL supra note 9, at 220 232. 13 Borchert, J OHN S TUART M ILL supra note 9, at 220 232. 14 Jeremy J. Ofseyer, Taking Liberties with John Stuart Mill 1999 A NN S URV A M L 395, 401. 15 In fact, Mill advocated for tolerance of opinions for several reasons. Fi rst, Mill wrote that censorship might inadvertently ban true opinions. Second, even if an opinion is mostly false, it may be, and often is, partly true. Third, even a wholly true orthodox opinion must be vigorously and earnestly contested for it to be properly understood and appreciated. Fourt Id at 77 97. 16 Frederick Schauer, On the Relation between Chapters One and Two of On Liberty, 39 C AP U. L. R EV 571, 571, 575 (2011 ) [ her einafter Schauer, On the Relation ]. 17 M IL L O N L IBERTY supra note 10, at 80. 18 Schauer, On the Relation supra note 16 at 574 75. 19 M ILL O N L IBERTY supra note 10, at 79.
33 20 which required no further proof of harm to the individual. 21 In this sense, Mill 22 23 as bodily injury and property damage, to more diffuse and intangible ones, such as damage to 24 Although there are certain well settled areas of the law for instance, de famation and intentional inflection of emotional distress (IIED) that require no specific evidence of physical harm before an individual can be compensated, 25 many legal scholars agree 20 M IL L O N L IBERTY supra note 10, at 80. Regarding constructive injury, Mill stated: But with regard to the merely contingent, or, as it may be called, constructive injury which a person causes to society, by conduct which neither violates any specific duty to the public, nor occasions perceptible hurt to any assignable injury exce pt himself; the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom. M IL L O N L IBERTY supra note 10, at 80. 21 Ofseyer, supra note 14, at 404. 22 Schauer, On the Relation supra note 16 at 575. According to Professor Schauer, the opening chapter of On Liberty prevent harm to others, but that self regarding conduct, whether because harmless or harmful but on ly to On the Relation supra note 16 at 575. See also R.J. Halliday, Some Recent Interpretations of John Stuart Mill 43 P HIL 1, 1 (1968 ) ( providing greater discussion on the distinction Mill makes be tween these two types of conduct). 23 Ofseyer, supra note 14, at 403. 24 Ofseyer, supra note 14, at 403. See also Baker, Harm, Liberty and Free Speech supra note 8 and accompanying text (discussing another conception of harm). 25 See supra note 9 and accompa nying text (describing conditions for, and limitations upon, recovery of emotio nal distress in the IIED tort).
34 that harm should constitute a necessary condition for governmental regul ation of speech. 26 Part A has discussed a harm principle in First Amendment doctrine. Part B next discusses th ree key free speech rationales underlying many of the Co Amendment opinions for protecting even speech causing harmful effects. Three Ke y Free Speech Rationales Part A details three key rationales for protecting free expression: the marketplace of ideas, democratic self governance, and personal autonomy/human dignity theories. 27 In analyzing each theory, it is important to consider, as note d by First Amendment philosopher Thomas Emerson, that freedom of expression the major controversies have not arisen over acceptance of the basic theory, but in attempting to fit its values and functions into a more comprehensive 28 Here, the difficulty involves reconciling limits placed upon an harm. 29 While no single rationale fully explains the compl free speech 26 See, e.g. Stuart P. Green, Lying, Misleading, and Falsely Denying: How Moral Concepts Inform the Law of Perjury, Fraud and False Statements 5 3 H ASTINGS L.J 157, 159 (2001 ) ( stating that proponents of the harm principle admit harm is necessary but not a suffici ent condition for criminality). 27 Robert Post, Participatory Democracy and Free Speech 97 V A L. R EV 477, 478 (2011 ) [ hereinafter Post Participatory Democracy ] ( explaining that it is sometime difficult to determine what speech the first : 1) the creation of new knowledge (marketplace of ideas); 2) individual autonomy; and 3) democratic self governance). 28 T HOMAS I. E MERSON T HE S YSTEM OF F REEDOM OF E XPRESSION 9 (1970 ) [ hereinafter E MERSON S YSTEM ]. 29 According to Emerson, the problem is th freedom of expression have been seriously defective through failure to take into consideration the realistic Id. Individuals tend to wa nt to eliminate opposition and limitations on expression are difficult to frame. Id While the goal may not be to suppress the actual is necessary to Id at 9 10.
35 jurisprudence a discussion of the concepts underlying each of these three main Marketplace of Ideas Theory Perhaps the Supreme freedom o f expression is the marketplace of ideas theory. The theory derives from Abrams v. United States of truth is the power of the th ought to get itself accepted in the competition of the market 30 Philosopher Mill expressed a similar view when he wrote: The peculiar evil of silencing the expression of an opinion is that it is robbing the human race, posterity as well as the existing generation those who dissent from the opinion, sti ll more than 31 He offered four rationales for protecting exp ression, as follows: 1) the opinion attempted to be suppressed may possibly be true; 2) even false statements contain a portio they may be 32 The mark etplace of and the advancement of knowled ge. It holds that only through vigorous and unrestricted debate can the best ideas emerge in the market For an individual to seek truth, alternatives, test his judgment by ex posing it to opposition and make full use of different 33 30 Abrams v. United States, 250 U.S. 616 (1919 ) ( H olmes, J., dissenting). 31 M ILL O N L IBERTY supra note 10, at 76. 32 M ILL O N L IBERTY supra note 10, at 76 82. 33 E MERSON S YSTEM supra note 28 at 6 7
36 34 because for instance, even some statements that have been taken as entirely true have turned out to be false. 35 The theory does not assume the infallibility of expression, 36 but seeks to remedy false speech with 37 Yet, the theory itself is not infallible 38 and has received much criticism over the years. 39 Scholars a rgue it is wrong to assume all ideas will enter the market place, and that even if they do that they will have an equal chance to be heard. 40 Professor James Weinstein has debated of ideas rationale is that the pr emise that a completely unregulated market of ideas will lead to the 41 Furthermore, Rodney C. Smolla, former president of Furman University, contests 42 specially when the wealthy 34 Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 40 (1974). 35 Id 36 R ODNEY A. S MOLLA F REE S PEECH IN AN O PEN S OCIETY 7 8 (Vintage 1993 ) [ hereinafter S MOLLA F REE S PEECH ]. 37 Whitney v. California, 274 U.S. 357, 377 (19 27) (Brandeis, J., concurring). 38 As Smo lla has S MOLLA F REE S PEECH supra note 36 at 6. 39 See, e.g ., C. E DWIN B AKER H UMAN L IBERTY AND F REEDOM OF S PEECH 25 36 (1989 ) [ hereinafter B AKER H UMAN L IBERTY ] ; Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth 1984 D UKE L. J. 1 (1984). 40 James Weinstein, Participatory Democracy as the Central Value of American Free Speech Doctrine 97 V A L. R EV 491, 502 (2011). 41 Id 42 S MOLLA F REE S PEECH supra note 36,
37 43 Other critics argue it is wrong to assume truth will necessarily prevail over falsehood. Professor C. Edwin Baker, former professor at the University of Pennsylvania Law School, notes p eople respond to emotion 44 and do not always use 45 Professor Smolla concurs, experience of man, often overwhelmed thou ghtful tolerance and understanding, leading 46 Professor Harry Wellington, former dean of Yale and New York Law Schools, observes, ones ... t he problem is that the short run may be very long, that one short run follows hard upon another, and that we may become overwhelmed by the inexhaustible supply 47 Fortunately, the theory does not rest on the principle that what actuall y emerges from the marketplace is truth. 48 Justice Holmes, one of the leading proponents of the marketplace of ideas theory, did not actually believe in truth himself. 49 The beneficial 43 L AURENCE H. T RIBE A MERICAN C ONSTITUTIONAL L AW 786 (2d ed. 1988). 44 Id. 45 B AKER H UMAN L IBERTY supra note 39, at 12 46 S MOLLA F REE S PEECH supra note 36, at 7. parade in America, and rad ical separatism in South Africa... remains as a still Id. 47 Harry Wellington, On Freedom of Expression 88 Y ALE L.J 1105, 1130 (1979) ( The problem is that the short run may be very long, that one short run follows hard upon another, and that we may become overwhelmed by the inexhaustible supply of freshly minted, often very seductive, false ide 48 S MOLLA F REE S PEECH supra note 36, at 7. 49 S MOLLA F REE S PEECH supra note 36, at 7.
38 best test of truth 50 As First Amendment scholar and UCLA Professor Eugene Volokh discerns, 51 A llowing the government to regulate speech it believes is false or harmful thus, constant process of questioning, testing, updating, and sometimes replacing received 52 Section 1 reviewed t he First Amendment marketplace of ideas rationale for freedom of expression. Section 2 discusses the democratic self governance rationale. Democratic Self Governance It is doubtless political speech, crucial to democracy and democratic decisionmaking, is a t the core of freedom of expression. In fact, Alexander Meiklejohn, only type of speech deserving of First Amendment protection. 53 The theory proceeds on the notion government authority is d erived from the consent of the governed. According to 54 Professor Steven H. Shriffrin 50 S MOLLA F REE S PEECH supra note 36, at 7 (emphasis added). 51 Eugene Volokh, In Defense of the Marketplace of Ideas/Search for Truth as a Theory of Free Speech Protection 97 V A L. R EV 595, 596 (2011 ). 52 Id at 597. 53 See generally A LEXANDER M EIKLEJOHN F REE S PEECH AND I TS R ELATION TO S ELF G OVERNMENT (1948 ) [ hereinafter M EIKLEJOHN F REE S PEECH ]. 54 Id at 27.
39 chimes, mitment to freedom of speech is nothing more than a reflection of our commitment to self 55 Yet, Meiklejohn also believed individual political participation was the true value behind the rationale He viewed voting as the purest form of all speech. 56 Professor Emerson agreed with this notion when he wrote, expression both in forming individual judgments and in forming the common 57 Columbia Law Schoo l Professor Vincent Blasi offered a slightly di fferent conception in his 58 theory of the First Amendment. Although still focusing on the power of individual expression, it placed emphasis on the 59 The democratic self governance rationale thus advances two distinct perspectives : 1) the social value of an informed citizenry; and 2) the individual value s[ing] the 60 The S upreme Court, however, has never adopted a solitary rationale for protecting expression or an exclusive type of speech protected by the First Amendment. It has i nsisted instead, not the preserve of political expres sion or comment upon public affairs 61 They extend beyond self 55 S TEVEN H. S HRIFFRIN T HE F IRST A MENDMENT D EMOCRACY AND R OMANCE 47 (1990). 56 Alexander Meiklejohn, First Amendment is an Absolute 1961 S UP C T R EV 245, 255 [hereinafter Meiklejohn, Absolute ]. 57 E MERSON S YSTEM supra note 36 at 7. 58 Vincent Blasi, The Checking Value in First Amendment Theory 1977 A M B. F OUND R ES J. 523, 542. 59 Id. 60 Ingber, supra note 39, at 9. 61 Time Inc. v. Hill, 385 U.S. 37 4, 388 (1967) (emphasis added).
40 government 62 Although Meiklejohn initially rejected protection of speech that did not relate to self government, he was later forced to recognize the inherent difficulty of distinguishing political from non political expression. 63 Alternatively, at least one scholar theoretical conceptions. Judge Robert H. B ork maintains valuable types of speech must be protected by the First Amendment confuses the 64 [c]onstitutional protection should be accorded only to speech th at is explicitly political. 65 He concluded here is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic a court is to make principled decisions, uninhibited by value laden judgments. 66 Section 2 summarized the democratic self governance rationale for freedom of expression. Section 3 discusses the personal autonomy rationale. Personal Autonomy Rationale The third and final ratio nale discussed by this work is the personal autonomy rationale. It treats freedom of speech as promoting individual autonomy and self 62 E MERSON S YSTEM supra note 36, at 7. 63 E RWIN C HEMERINSKY C ONSTITUTIONAL L AW 926 (Aspen Publishers 3d ed. 2006 ) (stating that ). 64 Robert Bork, Neutral Principles and Some First Amendment Problems 47 I ND L.J. 1, 29 (1971 ) [ hereinafter Bork, Neutral Principles ]. 65 Id. at 20. 66 Id.
41 fulfillment. 67 Professor Martin H. Redish at Northwestern University School of Law has contended the theory also referred t o as the individual self realization rationale is the primary value protect ed by the First Amendment because 68 Legal theorists Thomas I. Emerson has added that an 69 The self realiza tion/personal autonomy rationale protects speech contributing to intrinsically valuable, separate and distinct from its other values. As former Justice Thurgood Marshall ob of the polit y but also those of the human spirit 70 Through self realization, an individual realizes his or her own potential and takes n destiny through making life 71 It supports 72 67 Martin H. Redish, The Value of Free Speech 130 U. P A L. R EV 591 591 (1982). 68 Id at 59 1. does not mean that the majority of values thought by others t o be protected by free speech of are invalid... My contention is that these other values, though perfectly legitimate, are subvalues of self Id. 69 E MERSON S YSTEM sup ra note 36 at 6. Id at 9. 70 Procunier v. Martinez, 416 U.S. 396, 427 (19 74) (Marshall, J., concurring). 71 Redish, Value of Free Speech, supra note 67 at 591. 72 S MOLLA F REE S PEECH supra note 36, at 9.
42 Comparatively, c ommentators argue the theory is internally inconsistent where it favors one over Professor Cass Sunstein has conjectured that not only does t he theory suffer intrinsically but also, overemphasis of autonomy distorts public debate. 73 Judge Bork has criticized to distingu ish activities th at advance personal autonomy fro activity. 74 According to Judge Bork: An individual may develop his faculties or derive pleasure from trading on the stock market, working as a barmaid, engaging in sexual activity, or in a ny thousands of other endeavors ... O ne cannot, [however] on neutral grounds, choose to protect speech on this basis more than one protects 75 73 See C ASS R. S UNSTEIN D EMOCRACY AND THE P ROBLEM OF F REE S PEECH 93 (1993) (stating that ... My special concern is that the Similar to Sunstein, Fiss de emphasize s autonomy as a way to promote enhancement of the quality of public de bate in deliberative democracy. See O WEN M. F ISS L IBERALISM D IVIDED : F REEDOM OF S PEECH AND THE M ANY U SES OF S TATE P OWER (1996 ) [ hereinafter F ISS L IBERALISM D IVIDED ]; F ISS I RONY supra note 2. The shift Fiss proposes from a focus on autonomy to a n approach placing greater emphasis on the balancing public discourse approach represents what is known as the public debate approach in First Amendment jurisprudence. Others have argued, alternatively, that the two are naturally intertwined. F REDERICK S CHAUER F REEDOM OF S PEECH : A P HILOSOPHICAL E NQUIRY 35 46, 60 72, 85 8 6 (1982 ) ( finding a codependence between autonomy and democracy); see generally Steven Shriffrin, The First Amendment and Economic Regulation: Away from a General Theory of the First Amendment 78 N W U. L. R EV 1212 (1983 )( advancing a pluralistic approach to freedom of expression theories, viewing personal autonomy and democratic self governance as mutually essential components). A fourth, or perhaps fifth, rationale (if you count the check value rationale independently), not mentioned above, but recogniz ed by scholars includi ng Professor Lee Bollinger, is promoting tolerance. Perhaps the leading advocate of the perspective, Bollinger argues that freedom of expression likewise rdinary self restraint, the purpose of which is to develop and demonstrate a social capacity to control feelings evoked by a host of L EE B OLLINGER T HE T OLERANT S OCIETY : F REEDOM OF S PEECH AND E XTREMIST S PEECH IN A MERICA 9 10 (1986); see also Lee Bollinger, The Tolerant Society: A Response to Critics 90 C OLUM L. R EV 979 (1990). The opposite argument, however, it that preventing harm is much more important than preserving tolerance. See, e.g. David Strauss, Why Be Tolerant ? 53 U. C HI L. R EV 1485 (1992). 74 Bork, Neutral Principles supra note 64, at 25. 75 Bork, Neutral Principles supra note 64, at 25.
43 The above s ections have described three main rationales for protecting freedom of express ion. Yet, defining the boundaries between freedom of expression and other societal and individuals needs or values, that may conflict with these rationales, is often a contentious process and may result in a lack of adequate protection given expression, es pecially when there are powerful arguments against restricting it when it causes sufficient harm to these needs. 76 Part B reviewed three key free speech ration ales for protecting expression. Part C discusses the interaction between the legal and social science fields, including a trend within the legal realm toward greater interdisciplinarity. Social Research in Law Legal scholar and judge Richard Posner once said that l distinct meth odology, but an amalgam of applied logic, rhetoric, economics and familiarity with a specialized vocabulary and a particular body of texts, practices, and institutions 77 While it was once thought law was autonomous from all other disciplines, legal schol ars increasingly borrow from a variety of fields including history, philosophy, sociology, economics, linguistics and psychology. 78 In fact, Judge Posner 76 Jennifer L. Lambe, Dimensions of Censorship: Reconceptual izing Public Willingness to Censor 7 C OMM L. & P OL Y 187 (2002). 77 Richard Posner, Conventionalism: The Key to Law as an Autonomous Discipline U T ORONTO L.J 333, 345 (1988). 78 Donald M. Gillmor & Everette E. Dennis, Legal Research in Mass Communication in R ESEARCH M ETHODS IN M ASS C OMMUNICATION 320 (Guido H. Stempel III & Bruce Westley eds. 1981); see also Jonathan R. Macey, 41 S AN D IEGO L. R EV 1759, 1762 (2004 ) ( ... oach to legal scholarship has clear and unambiguous connections to the rest of the university. field or combinations of fields of study for guidance in developing a scholarly critique of the current legal landscape or of particular Id.
44 is busily ransac king the social sciences and the humanities for insights and approaches 79 rely on other methodologies particularly social science, to provide an understanding of the forces that act upon the legal system and of the impact of legal 80 Some of these disciplines (e.g., philosophy, economics, sociology) employ methods commonly relied upon by legal analysts, such as logical reasoning. 81 Others (e.g., psychology, economic, 82 Law as an Autonomous Discipline Harvard Law School Dean C hristopher Columbus Langdell, a leading advocate of formalism, once 83 Columbia Law Review article, distinguished American legal scholar and former dean of Harvard 79 Richard A. Posner, Law and Literature: A Relation Regarded 72 V A L. R EV 1351 1352 (1986). Ma tthew Bunker and David K. Perry suggested that much of the resistance to the incorporation of law and intersection of social science and the law has long bee n controversial. The extent to which social scientific methods and theoretical structures can or should contribute to the law has been contested in Standing at the Crossr oads: Social Science, Human Agency and Free Speech Law 9 C OMM L. P OL Y 1, 1 (2004). 80 Edwin L. Rubin, Law And and the Methodology of Law 1 997 W IS L. R EV 521, 521. 81 David Faigman, To Have and Have Not: The Value of Social Science to the Law as Science and Policy 28 E MORY L.J. 1005, 1007 (1989) [hereinafter Faigman, Value of Social Science ]. 82 Id. 83 M ATTHEW D. B UNKER C RITIQUING F REE S PEECH : F IRST A MENDMENT T HEORY AND T HE C HALLENGE OF I NTERDISCIPLINARITY (Laurence Erlbaum 2006).
45 Law School Roscoe Pound criticized did not recognize the relation of law to society, nor accurately reflect the process of judicial decisionmaking. 84 Trend Toward Greater Interdisciplinarity The shift from legal formalism to greater interdis ciplinarity in the legal realm has done much to transform the landscape of legal scholarship and education in the last few decades. According to Matthew Bunker, University of Alabama professor and scholar in he understanding of law and legal 85 86 It has 87 and 88 In their book on social science research published in 1990, Jer emy Cohen and Timothy Gleason called for continued interdisciplinary efforts at the intersection of communication and law communication 89 ing those 84 Roscoe Pound, Mechanical Jurisprudence 8 C OLUM L. R EV 605 (1908). 85 B UNKER supra note 83, at 18. 86 B UNKER supra note 83, at 18. 87 B UNKER supra note 83, at 18. 88 B UNKER supra note 83, at xii. 89 J EREMY C OHEN & T IMOTHY G LEASON S OCIAL R ESEARCH IN C OMMUNICATION AND L AW 12 (1990).
46 90 Now both deans at prestigious research universities, 91 they also provided a description of what they saw as the process of performing research at the intersection of co mmunication and law as well as identified potential benefits and setbacks facing researchers in this unique subdivision of resear ch. Soci al research at the intersection undoubtedly 92 According to Cohen and Gleason: Social research in communication and law implies an inquiry that goes beyond traditional jurisprudential case analysis by recognizing the struct ure of jurisprudence and examining that structure with tools and theory normally associated with communication science, histor iography, and critical 93 existing communication research to concrete legal questions or to explorations of 94 while all the while maintaining fidelity to both the based structure of result 95 The task of the communication and law resea rcher fashion theory that w ill enable us to understand better the interactions of communication 90 Id 91 Cohen is associate vice president, senior associate dean for undergraduate education and a professor of media studies at Pennsylvania State University. See Jeremy Cohen -College of Communications http://comm.psu.edu/people/individual/jeremy cohen (last visited Aug. 20, 2013). Gleason is dean and professor in the School of Journalism and Communication at the University of Oregon. See Tim Gleason -School of Journalism a nd Communication http://journalism.uoregon.edu/user/tgleason (last visited Aug. 20, 2013). 92 C OHEN & G LEASON supra note 89, at 11. 93 C OHEN & G LEASON supra note 89, at 15. 94 C OHEN & G LEASON supra note 89, at 126. 95 C OHEN & G LEASON supra note 89, at 103.
47 and of law, using observations that go beyond legal cases analysis or use of the 96 Research at th e intersection of communication and law does not compete with the goals of perf orming either type of research, but make s important contributions to the practice and study of both. 97 I t raise [ s ] basic questions regarding communication assumptions inherent in law and empirically test s those a ssumptions in a controlled setting. 98 It can make imp ortant changes in social policy while also producing r 99 The authors suggested that on e of the areas in which communication and law particularly maintain shared interests is in freedom of expression. 100 Law, after all, is considered normative in its prescription of proper patterns of behavior and frameworks for ordering society, 101 and numerous laws that affect freedom of expression are also based on assumption s regarding communication and human behavior, bringing it well within the discipline of communication research. 102 On the other hand, research in communication and law requires in depth knowledge of both the fields of communication and law to prevent the mis construing of legal documents and evidence, 96 C OHEN & G LEASON supra note 89, at 134 97 C OHEN & G LEASON supra note 89, at 11 16 98 C OHEN & G LEASON supra note 89, at 12. 99 C OHEN & G LEASON supra note 89, at 19. 100 C OHEN & G LEASON supra note 89, at 15. 101 C OHEN & G LEASON supra note 89, at 14. 102 C ommunication a subset of social science research, phenomena within a social setting. C OHEN & G LEASON supra note 89, at 14 15, 105.
48 likely to result in material that is at best irrelevant, and at worst, incorrect. 103 The dearth of literature that has so far been conducted, furthermore, provides little conceptual map on which to build a strong f oundation of literature. 104 Former dean of Stanford Law School Kathleen Sullivan has also suggested that such interdisciplinary efforts have so far failed to adequately protect expression. 105 It is perhaps for this reason scholars Bunker and Perry insist that 106 research and evidence in other areas of the law, it may be helpful to de scribe the process of conducting social science research, including the goals of the social scientist and the specific ways through which Wha cience Sir Karl Popper, generally regarded as one of the greatest twentieth century philosophers, is best known for his rejection of the classical inductive views of the scientific method. 107 He devoted much of his philosophical efforts to articulating the 108 Popper stressed the difficulty of 109 ), 103 C OHEN & G LEASON supra note 89, at 24 25. 104 C OHEN & G LEASON supra note 89, at 103. 105 Kathleen L. Sullivan, Free Speech Wars 48 SMU L. R EV 203 (1994 ) (stating that the studies so far viding examples of those studies). 106 Bunker & Perry, supra note 79, at 25. 107 Steven Thornton, Karl Popper in T HE S TANFORD E NCYCLOPEDIA OF P HILOSOPHY (Edward N. Zalta ed. 2009). 108 Faigman, Value of Social Science supra note 81, at 1014 15. 109 K ARL P OPPER C ONJECTURE AND R EFUTATIONS : T HE G ROWTH OF S CIENTIFIC K NOWLEDGE 39 (1963).
49 as the central criterion. 110 Social science of theories or hypothesis in controlled settings or conditions. Theories or hypotheses obtain objectivity through systematic tests, sometimes referred to synonymously under 111 The strength of a particular statement, survived attempts at falsification. 112 As opposed to the natural sciences, however, generally viewed as testing phenomena with extraordinary precision and producing replicable results, critics have doubted the reliability of current social science research to pursue objective measures. 113 Indeed, because of its history of imprecision and bending to subjecti ve values, some have questioned whether social inquiry can ever be scientific. 114 Social scientists are viewed as unable to separate their personal biases the type of research questions pursued by the 110 Faigman, Value of Social Science supra note 81, at 1016 17. K ARL P OPPER R EALISM AND THE A IM OF S CIENCE xx [From the P OSTSCRIPT TO T HE L OGIC OF S CIENTIFIC D ISCOVERY ] (W. Bartley, III ed. 1983). The one potential falsifier Id. 111 Faigman, Value of Social Science supra note 81, at 1018, 1019. See also id. fact that scientific theories are vulnerable to falsification imparts a strength stemming from having taken 112 Faigman, Value of Social Scien ce supra note 81, at 1018. 113 Andrew Greeley, Debunking the Role of Social Scientists in Court 7 H UM R TS 34, 34, 50 (1978); David M. O'Brien, The Seduction of the Judiciary: Social Science and the Courts 64 J UDICATURE 8, 10 11 (198 0). 114 Faigman, Value of Social Science supra note 81, at 1026.
50 research efforts 115 and also potentially incapable of preventing those biases from being grafted onto their research conclusions. 116 Thus, while the legal scholar uses legal theory to prescribe conditions that ought to exist in a legal system, the social scientist uses theory for t he purposes of explaining and understanding social conditions and phenomena. Legal research rules and institutions, explicates their internal logic and their relationship to other rules and institutions, and perhaps urges their reform of 117 In contrast, social science, often thought of within its quantitative domain, involves knowledge in which general statements hypotheses and theories are tested empirically under controlled conditions with the goals of producing 118 Applicability of Social Science Findings in Legal Decisionmaking It is perhaps not inconsequently that scholars have questioned the applicability of social science fi nding s in the legal realm 119 Professor Geoffrey Hazard has questioned 120 According to Professor Hazard: behavioral science are relatively remote, its methods relatively expensive, and its results relatively inconsequential. Its findings are, of course, more satisfying to the modern mind that the conclusions advanced from authority. 115 Faigman, Value of Social Science supra note 81, at 1026 28. 116 Faigman, Value of Social Science supra note 81, at 1028 30. 117 Larry Alexander, What We Do, and Why We Do It 45 S TANFORD L. R EV 1885, 1886 (1993). 118 Sarah H. Ramsey & Robert F. Kelly, Social Science Knowledge in Family Law Cases: Judicial Gate Keeping in the Daubert Era 59 U. M IAMI L. R EV 1, 6 (2004). 119 Faigman, Value of Social Science supra note 81, at 1025. 120 Geoffrey C. Hazard, Limitations on the Uses of Behavioral Science in the Law 19 C ASE W. R ES L. R EV 71 (1967).
51 That, however, is not much consolation for law me n, whose concerns are for immediate, cheap and significant decision making. 121 But Hazard is not alone. 122 Susan Haack, professor of law and philosophy, has offered several reasons for the clash between scientific inquiry and the legal system. 123 Among those is that l itigation is likely to arise in areas where commercially interested parties conduct the research, rather than academic researchers who perform t he research independent of the industry. 124 The promise of litigation may, furthermore, attract scientists w ho claim greater certainty than the science in their field justifies 125 or who may otherwise be than 126 Additionally, the legal system often demands answers of a kind science i s not well equipped to supply 127 or for which the evidence might not yet all be in. 128 William K. Ford has identified several limitations on the use of social s cience reliance on such eviden ce to support its conclusions First, is 121 Id at 77. 122 See, e.g. Yorgo Pasadeos et al., Influences on the Media Law Literature: A Divergence of Mass Communication Scholars and Legal Scholars?, 11 C OMM L. & P OL Y 179 (2006 ); Jeremy Cohen & Timothy Gleason, Charting the Future of Interdisciplinary Scholarship in Communication and Law in A MY R EYNOLDS & B ROOKS B ARNETT C OMMUNICATION AND L AW M ULTIDISCIPLINARY A PPROACHES TO R ESEARCH 3 aw is a system of regulatio n. Its purpose is to set, interpret, and enforce rules of conduct by which people live or, at least, be held accountable. Communication as an academic discipline, whether the scholarship of critical theorists, historians, or social scientists, is a search for understanding of individuals, events, institutions and other phenomena 123 Susan Haack, Irreconcilable Differences: The Troubled Marriage of Science and Law 72 WTR L AW & C ONT P ROBS 1 (2009). 124 Id at 15. 125 Id at 16. See also Ford, supra 126 Haack, supra note 123, at 16. See also Ford, supra 127 Haack, supra note 123, at 16. 128 Haack, supra note 123, at 16.
52 th at law is adversarial Rather than providing an uninterested statement of the literature, lawyers may only be interested in presenting a particular view or achieving a particular outcome. While this assumes attorneys have t and 129 Alternatively, j udges must beware of placing too much reliance on the research con clusions 130 Yet, even this assumes attorneys understand and can interpret the evidence underlying their arguments. As a second limitation, Ford observes a ttorney s and judges might not be properly trained to analyze and evaluate scientific research 131 Consider oral argument s before the Seventh Circuit Court of Appeals in Annex Books, Inc. v. City of Indianapo lis 132 Annex Books involved the constitutionality of an Indianapolis ordinance regulating adult entertainment businesses. 133 The plaintiffs presented a study by Professor Daniel Linz of U.C. Santa Barbara purporting to show 134 and a 135 that operation of the businesses had not resulted in increased crime. 136 129 Ford, supra note 1, at 300. 130 Ford, supr a note 1, at 300. 131 Ford, supra note 1, at 300. 132 581 F.3d 460 (7th Cir. 2009). 133 Id at 461 62. 134 the same are of a five year period, for the purpose of demonstrating whether the businesses were a significant source of crime within a neighborhood as compared to other businesses. Id. 135 adult businesses a nd several control areas during the calendar year before and the calendar year after the businesses opened (but excluding the year the businesses opened). The purpose was to determine whether crime increased after the businesses opened. Id. 136 See Separate Appendix for Appellants at 134, Annex Books, Inc. v. City of Indianapolis, No. 05 1926 (7th Cir. May 19, 2005). See also Ford, supra 7th Circuit decision).
53 137 According to Ford: the hotspot analysis was instead related to the before after analysis, as indicated by his reference to the three different distances. Like the attorney, Easter brook also appeared to confuse the different analyses when he referenced the circles in his comment on the hotspot analysis 138 confusion over the issue attorneys must not rely on judges to do this. 139 The attorney in the case, unable to address the basic methodological questions about evidence he offered before the court 140 may have been unprepared because such questions were unexpected. 141 However, kes these types of questions difficult for lawyers to 142 R elated to this issue is the or a lack of clarity regarding meanings attached to the use of specific terminology between disciplines. For i ns tance, the meaning of falsificati on is unfamiliar to many judges. 143 Additionally, social science research is not written for a lay audience. 144 But this also raises important questions about the type of evidence that may and 137 Ford, supra note 1, at 302. 138 Ford, s upra note 1, at 302. 139 Ford, supra note 1, at 302. 140 Ford, supra note 1, at 302 03. 141 Ford, supra note 1, at 303. 142 Ford, supra note 1, at 303. 143 Ford, supra note 1, at 338 (citing Sophia I. Gatowski et al., Asking the Gatekeepers: A National Survey of Judges of Judging Expert Evidence in a Post Daubert World 25 L AW & H UM B EHAV 433 (2001)). 144 Ford, supra note 1, at 338.
54 the certainty of concl usions based on such evidence 145 that they will not state causal hypothese s or draw causal inf erences even when 146 Although the level of certainty required depends on the circumstances, scientific conclusions certain enough to be useful today may present problems of uncertainty under new situations or problems tomorrow. 147 In sum: no matter how perfect the research design, no matter how much data we collect, no matter how perceptive the observers, no matter how diligent the research assistants, and no matter how much experimental control we have, we will never know a causal inference for certain. 148 Alternatively, Ford proposes, the problem may be reduced if lawyers resist substituting their own interpretation s which may be brought before the court through cross examina tion. 149 The distinctions between law and social science may, thus, appear quite stark. While law and legal scholarship use legal theory to prescribe conditions that ought to exist in a legal system, the social scientist uses theory for the purposes of expla ining and understanding social conditions and phenomena. Legal research rules and institutions, explicates their internal logic and their relationship to other rules 145 Ford, supra note 1, at 335 36. 146 Ford, supra note 1, at 335 (quoting G ARY K ING ET AL ., D ESIGNING S OCIAL I NQUIRY 75 76 (1994)) (inte rnal punctuation omitted). 147 Ford, supra note 1, at 336 37. 148 Ford, supra note 1, at 337 (quoting K ING ET AL supra note 148, at 790). 149 Ford, supra note 1, at 336 40 (describing the benefits of live expert testimony).
55 150 In contrast, knowledge in which general statements hypotheses and theories are tested empirically under controlled conditions with the goals of producing comprehensive 151 Despite due at least in part to their 152 the increasing use of scientific findings and data more than 100 years later in cases such as Brown v. Entertainment Merchants Association, nonetheless, may signify the trend is continuing. 153 Part C introduced social research in law toward interdisciplinarity. Part D next y with soc ial science evidence in other jurisprudential areas. Familiarity with Social Science in Other Jurisprudential Areas Even before jurists and lawyers were interested in the use of social science research and evidence to support legal propositions, social scientists were conducting research and advocating its use in the legal system. 154 150 Larry Alexander, What We Do, and Why We Do It 45 S TANFORD L. R EV 1885, 1886 (1993). 151 Sarah H. Ramsey & Robert F. Kelly, Social Science Knowledge in Family Law Cases: Judicial Gate Keeping in the Daubert Era 59 U. M IAMI L. R EV 1, 6 (2004). 152 Yorgo Pasadeos et al., Influences on the Me dia Law Literature: A Divergence of Mass Communication Scholars and Legal Scholars?, 11 C OMM L. & P OL Y 179 (2006). See also Jeremy Cohen & Timothy Gleason, Charting the Future of Interdisciplinary Scholarship in Communication and Law in A MY R EYNOLDS & B ROOKS B ARNETT C OMMUNICATION AND L AW M ULTIDISCIPLINARY A PPROACHES TO R ESEARCH 3 aw is a system of regulation. Its purpose is to set, interpret, and enforce rules of conduct by which people live or, at least, be held accountable. Communication as an academic discipline, whether the scholarship of critical theorists, historians, or social scientists, is a search for understanding of individuals, events, institutions and other phenomena 153 See Jeremy A. Blumenthal, Law and Social Science in th e Twenty First Century 12 S. C AL I NTERDISC becoming the latest craze in 154 See id. at 3.
56 use of social science data within the legal discipline was by Louis Brandeis in the 1908 case of Muller v Oregon 155 involving a law forbidding women to work more than ten hours a day. The comprised of more than 100 pages and only two of them devoted to legal argument, 156 legal practice 157 It collated from over ninety reports of committees, bureau of statistics, commissioners of hygiene, inspectors of factories, both in this country and in Europe, to the effect that long hours of 158 Eight decades later, questions remain whether Muller science research were as successful as originally anticipated. 159 social science masterpiece, [the Brandeis brief has been criticized as] consist[ing] legislative investigating committees, statutes, and quotes from medical texts, among 160 The sociological data relied upon i n the brief have been 161 155 208 U.S. 412 (1908). See also Blumenthal, supra note 153, at 10 (stating that the Brandeis Brief, submitted as to the U.S. Supreme Court in Muller v. Oregon described in the article] as another early beginning to the law social science r 156 David R. Dow, T he Relevance of Legal Scholarship: Reflections on Judge Kozinski's Musings 37 H OUS L. R EV 329, 334 (2000) science data include Brown v. Bd. of Educ. 347 U.S. 483 (1954); Plessy v. Ferguson 163 U.S. 537 (1896); and Chandler v. Florida 449 U.S. 560 (1981). 157 Dow, supra note 156, at 334. 158 Muller 208 U.S at 419 n.1. 159 Clyde Spillenger Revenge of the Triple Negative: A Note on the Brandeis Brief in M uller v. Oregon, 22 C ONST C OMMENT 5, 6 (2005). 160 David E. Bernstein, Brandeis Brief Myths 15 G REEN B AG 2 D 9, 12 (2011). 161 Spillenger supra note 159, at 5, 6.
57 162 For instance, as to prevent them from engaging in difficult physical ta 163 In other words, t he brief any information he can in a case, rather than a formal or unified movement by a social 164 Segreg ation Brown v. Board of Education 165 on the other hand, is perhaps the best known example of the extent to which social science has been incorporated in to Supreme Court jurisprudence. 166 Famous footnote e leven cites sev eral social scientific examples includin g work by Dr. Kenneth Clark, a psychologist who studied the self image of black and white students l iving in segregated conditions as supporting s 167 doctrine established in the 18 96 decision of Plessy v. Ferguson 168 162 Blumenthal, supra note 153, at 10 11. 163 Bernstein, supra note 160, at 9, 12. 164 Blumenthal, supra note 153, at 11. 165 347 U.S. 483 (1954). 166 J. Alexander Tanford, The Limits of Scientific Jurisprudence: The Supreme Court and Psychology 66 I ND L. J. 137, 141 (1990). 167 Brown 347 U.S. at 494 n.11. 168 163 U.S. 537 (1896).
58 Prior to the Supr the National Association for the (NAACP) litigation team had been uncertain about st public school segregation. 169 Some attorney briefs were drafted without reference to the social science findings, b irrelevant to the constitutional question presented by segregation. 170 Others, including attorneys Robert Clark and Thurgood Marshall, however, did not give up on the significance of this type of research to pursue 171 Clark persuaded Marshall to use the social science evidence at trial, and at the Supreme Court, they relied upon an approach used in Sweatt v. Painter 172 a lawsuit that successfully challenged segregation at the University of Texas Law School. 173 core conclusion in Brown : To separate [schoolchildren] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlike ly ever to be undone. 174 Having buttressed its conclusion in a psychological argument and favorably citing a lower court decision linking state sanctioned segregation and psychological harm, Chief Justice Warren Burger dropped a footnote referencing a list o f social science sources 169 Rachel F. Moran, What Coun ts as Knowledge? A Reflection on Race, Social Science and the Law 44 L. & S OC Y R EV 515, 117 (2010). 170 Id. 171 Id. 172 339 U.S. 620 (1950). 173 Moran, supra note 169, at 521. 174 Brown 347 U.S. 483, 494.
59 p urporting to support a finding of psychological harm arising 175 It relied on the social science evidence to strike down state mandated segregation. 176 Brown ushered in 177 More than fifty years later, scholars have suggested Brown is notable for its contribution to 178 a transformation that has greatly 179 It raised important questions concerning the role of social science evidence in constitutional litigation, 180 and also 181 Yet, even those scholars most optimistic about Brown of social science evidence in law have admitted its continued multidisciplinary legacy is a mixed 175 Id. See also n.11. 176 Moran, supra note 169, at 521 school segregation cases suggest an entirely different way in which the testimony of social scientis ts can Social Scientists Take the Standard: A Review and Appraisal of Their Testimony in Litigation 54 M ICH L. R EV 953, 962 (1956). 177 Moran, supra note 169, at 518. 178 Michael Heise, Brown v. Board of Educat ion Footnote 11, and Multidisciplinarity 90 C ORNELL L. R EV Brown accomplished, however, suggests that it feel far short of its goal of integrating public schools. To put the point more precisely, although Brown succeed ed in launching a desegregation movement, both the decision and movement failed to adequately integrate public schools. Despite this failure, however, the Brown decision continues to profoundly influence 179 Moran, supra note 169, at 524. 180 Moran, supra note 169, at 524. 181 Moran, supra note 169, at 521.
60 influence of broader notio ns of justice, and risked privileging social science evidence 182 Juror Discrimination Desegregation is not the only area in which the Court has used or potentially misused social science evidence to draw conclusions. inconsistently adopted ... [or] even refused to consider relevant social science data, 183 At least science evidence and its reliance on it within juror procedure. 184 J. Alexander Tanford, Professor at the University of Indiana Bloomington College of Law, determined, e it was cited in one of the opinions or presented in the briefs, 185 ignore[d], distort[ed] and display[ed] hostility towards the empirical research, preferring 186 Tanford notes: ase its trial process decision on psychology cannot be dismissed with the familiar claim that social science is inconclusive 182 Michael Heise, Institutional Role of the Federal Courts: Equal Educational Opportunity by the 59 W&L L. Rev. 1309, 1312 (2002). For addi tional commentary on the use of social science evidence in Brown see also Angelo N. Acheta, Science and Constitutional Fact Finding in Equal Protection Analysis 69 O HIO S T L.J. 1115 (2008); Sanjay Mody, Note, Brown Footnote Eleven in Historical Context: Legitimacy 54 S TAN L. R EV 793 (2002). 183 Donald N. Bersoff & Davis J. Glass, The No So Weisman Social Science Research 2 C HI L. S CH R OUNDTABLE 279, 279 (1995) (quoting Parham v. J.R., 442 U.S. 584, 602 (1979)). 184 Tanford, supra note 166, at 140. 185 See e.g ., Burch v. Louisiana 441 U.S. 130 (1979) (determining the c onstitutionality of a five out o f six verdict in criminal case, sans mention of jury size or unani mity studies); Marshall v. Lon berger 459 U.S. at 438 n.6 ( deciding the effect of limiting instruction without r eference to empirical research). 186 Tanford, supra note 166, at 140 41.
61 because there are always experts on both sides. With respect to some issues that have reached the Court, psychologists have arrived at a clear consensus about the effect that a procedure would have on the jury and the 187 within its juror discrimination jurisprudence occurred in Lockhart v. McCree 188 That case involved a claim that death qualification a procedure in capital cases allowing the prosecution to remove any juror opposed to the death penalty for cause produces a rial. 189 The credible excep tion, the research studies show that qualified juries are prosecution prone, unrepresentative of the community, and that death qualification impair s proper juror functioning 190 It also acknowledged however, that satisfies the criteria for evaluating the methodological soundness, reliability, and utility of 191 In his majority opinion for the Court Justice William Rehnquist assailed the methodologies used in the social science evide nce offered by the APA, finding there 187 Tanford, supra note 166, at 139. 188 476 U.S. 162 (1986). 189 Tanford, supra note 166, at 145 (discussing death qualification). 190 Brief for Amicus Curiae the American Psychological Association in Support of Respondent, Lockhart v. McCree, 476 U.S. 162 (1986) (No. 84 1865) 1985 WL 669161 [hereinafter Lockhart Brief]. 191 Id.
62 prone 192 According to Rehnquist: McCree introduced into evidence some 15 social science studies in support of his constitutional claims, but only 6 of these studies even purported to measure the potential effects on the gu ilt innocence determination ... Eight of the remaining nine studies dealt solely with generalized attitudes and beliefs about the death penalty and others aspects of the criminal justice system, and were thus, only marginally relevant to the constitutionalit y of 193 Furthermore, Rehnquist contended, of the six relevant studies, three had been previously presented to the Court in connection with another case, and, at that point sh that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt 194 The remaining three, Justice Rehnquist argued responses of individuals randomly selected from some segment of the population but who were not actual jurors sworn under oath to apply the law to the facts of an actual simulate the pro cess of jury deliberation... 195 Anticipating these arguments, the APA acknowledged in its brief that although death qualification experiments were conducted, the safeguards used, the number of replications and the co mplete absence of any data to the contrary justified the 192 L ockhart 476 U.S. at 168. 193 Id at 170. 194 Id 195 Id at 171.
63 conclusion that death qualified juries are in fact conviction 196 However, Rehnquist concluded to the contrary that the studies were of no value because they were subject to criticism. 197 He posit ed that even if the studies were methodologically qualification juries are significantly conviction prone should be rejected. 198 He substituted his own conclusion for that of the psychologists, somewhat death 199 Lockhart ficance of : [M] ost Justices [that] are hostile towards social psychology do not understand it, believe that empirical research on juror behavior is no more reliable than intuition and anecdotal evidence, and ultimately that the science of psychology has little or no place in the jurisprudence of tria l procedure. 200 Part D jurisprudential areas Part D examines empiricism. Trend t oward Constitutional Empiricism Constitutional law is now in the trend 196 Lockhart Brief, supra note 190, at 3. 197 Lockhart 476 U.S. at 173. 198 Id. 199 Tanford, supra note 166, at 147. 200 Tanford, supra note 166, at 147.
64 201 While constitutional empiricism historically operated in the 202 empirical scientific research has begun to 203 It has created a purposes and predicates, const itutional powers, and even explicitly normative 204 to a balancing approach, the courts necessarily assume the responsibility to make a more intensive investigation of the und 205 The transformation toward becoming a finder of fact, rather than solely a determiner of law, may be just as Justice Antonin Scalia predicted more than twenty years ago. 206 201 Timothy Zick, Constitutional Empiricism: Quasi Neutral Principles and Constitutional Truths 82 N.C. L. R EV 115, 118 (2003). Numerous authors have written about the trend toward empiricism within the context of constitutional law. See, e.g ., Stephen E. Gottlieb & David Schultz, The Empirical Basis off First Amendment Principles 19 J.L. & P OL 145 (2003); Shawn Kolitch, Comment, Constitutional Fact Finding and the Appropriate Use of Empirical Data in Constitutional Law 10 L EWIS & C LARK L. R EV 673 (2006); William M. Landes & Richard A. Posner Legal Precedent: A Theoretical and Empirical Analysis 19 J. L. & E CON 249 (1976); J OHN H ENRY S CHLEGEL A MERICAN L EGAL R EALISM AND E MPIRICAL S OCIAL S CIENCE (1995). There are also numerous articles discussing empirical legal scholarship. See, e.g ., Lee E pstein & Gary King, Empirical Research and the Goals of Empirical Legal Scholarship: A Response 69 U. C HI L. R EV 1 (2002); Michael Heise, The Past, Present, and Future of Empirical Legal Scholarship: Judicial Decision Making and the New Empiricism 2002 U I LL L. R EV 819, 824 (stating that despite scholarship ... Jack Goldsmith & Adrian Vermeule, Empirical Methodology and Legal Scholarship 69 U. C HI L. R EV 153 (2002); Craig Allen Nard, Empirical Legal Scholarship: Reestablishing a Dialogue Between the Academy and the Profession 30 W AKE F OREST L. R EV 347 (1995); Richard L. R evesz, A Defense of Empirical Legal Scholarship 69 U C HI L. R EV 169 (2002). 202 Zick, supra note 201, at 119. 203 Normative Constitutional Fact Constitutional Interpretation 139 U. P A L. R EV 541, 548 (1991) [hereinafter Faigman, Normative Constitutional Fact Finding ]. 204 Zick, supra note 201, at 117. 205 Wilson Huhn, Scienter Causation and Harm in Freedom of Expression Analysis: The Right Hand Side of the Constitutional Calculus 13 W M & M ARY B ILL R TS J. 125, 194 (2004 ) [ hereinafter Huhn Scienter ] 206 Antonin Scalia, The Rule of Law as a Law of Rules 56 U. C HI L. R EV 1175, 1182 (1989). According to on the basis of
65 Judge Richard Posner, an advocate of pragmatic legal philosophy, 207 once Constitutional scholarship ... is preoccupied on the one hand with Supreme Court decisions that are notably lacking in an empirical dimension and on the other hand with normative theo ries ... that have no empirical dimension either 208 He blamed what he saw as a deficiency in the legal academy on its proclivity to ward discussion of theory to the exclusion of the building of empirical knowledge. 209 According to Posner, ory today circulates in a medium that is largely opaque to the judge and the practicing lawyer ... It is the lack of an empirical footing that is and always has been the Achilles heel of constitutional law, not the lack of a good constitutional 210 the totality of the circumstances, or by a balancing of all the factors involved, he begins to resemble a He does not necessarily agree with this development. 207 Richard A. Posner, Pragmatism ve rsus Purposivism in First Amendment Analysis 54 S TAN L. R EV 737, 738 (2002). reality (whether scientific, aesthetic, moral, or political) but whether it is useful in he lping us to achieve our Id. 208 Richard A. Posne r, The Speech Market and the Legacy of Schenck, in E TERNALLY V IGILANT : F REE S PEECH IN THE M ODERN E RA 121, 152 (Lee C. Bollinger & Geoffrey C. Stone, eds., 2002); see also Paul Horwitz, Free Speech as Risk Analysis: Heuristics, Biases, and Institutions in the First Amendment, 76 T EMP L. R EV 1, 67 (2003) [ hereinafter, Horwitz, Risk Analys 209 See Richard A. Posner, Against Constitutional Theory 73 N .Y.U. L. R EV 1, 4 (1998 ) [ hereinafter Posner, Against Constitutional Theory ]. Still, the focus in scholarship on theory has resulted in major advances in recent years. See, e.g ., C. Edwin Baker, Scope of the First Amendment Freedom of Speech 25 UCLA. L. R EV 964 (1978) [hereinafter C. Edwin Baker, Scope ]; Lillian R. BeVier, The Fir st Amendment and Political Speech: An Inquiry Into the Substance and Limits of Principle 30 S TAN L. R EV 299 (1978); Blasi, Checking Value supra note 58, at 13 intentions of those who framed, proposed and C HARLES W. C OLLIER M EANING I N L AW ; A T HEORY OF S PEECH (Oxford Press 2009); Thomas I. Emerson, Toward a General Theory of the First Amendment 72 Y ALE L.J. 877 (1962 63); Post, Recuperating Doctrine supra note 173 ; David A.J. Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment 123 U P A L. R EV 45 (1974); Thomas Scanlon, A Theory of Freedom of Expression 1 P HIL & P UB A FF 204 (1972). 210 Posner, Against Constitutional Theory supra note 209, at 4, 21.
66 Yet constitutional empiricism 211 While it to 212 the shift in 213 As reflected by these statements, both made by Justice William Brennan within a quarter century, knowledge of scientific methods and principles now appears to be an 214 What is Empiricism? Empiricism is one of several epistemologies or theories of knowledge. 215 It holds that knowledge comes primarily from direct observation and experience. 216 As 217 empiricism emphasizes the role of social science 211 Zick, supra note 201, at 118 constitutional interpretation and a judicial perspective on the proper mission of the co urts in constitutional 212 Faigman, Normative Constitutional Fact Finding supra note 203 at 604 (quoting Justice William J. Craig v. Boren 429 U.S. 190, 204 (1976)). 213 Stephen G. Breyer Introduction to F EDERAL J UDICIAL C ENTER R EFERENCE M ANUAL ON S CIENTIFIC E VIDENCE 2 (2d ed 2000) available at http://www.fjc.gov/public/pdf.nsf/lookup/sciman00.pdf/$file/sciman00.pdf (last visited Sept. 14, 2013). 214 Zick, supra note 201, at 141. 215 Robert A udi, Empiricism, in E PISTEMOLOGY : A C ONTEMPORARY I NTRODUCTION TO THE T HEORY OF K NOWLEDGE 115 (3d ed. 1998 ) ( discussing theories of knowledge). Mill held that ultimately there were only empirical truths. Id. at 116 216 J OHN M. N EALE & R OBERT M. L IEBERT S CIE NCE AND B EHAVIOR : A N I NTRODUCTION TO M ETHODS OF R ESEARCH 2 (2d ed. 1980). 217 Id See also Martyn Hammersley, Empiricism in E NCYCLOPEDIA OF S OCIAL S CIENCE R ESEARCH M ETHODS 306 (Michael S. Lewis Be ck et al., eds., SAGE Pub. 2004).
67 evidence in the formation of ideas. 218 Empirical and quasi scientific methods includ e data compilations, hypothesis testing, falsification of causal claims, equations, ratios, and arguments over the nuances of sampling methodology and results. 219 gamut from rigorous social science and medical research, to lighter survey fare a nd 220 Although resembling, in some aspects, its earlier form of constitutional balancing, 221 222 The trend toward constitutional empiricism places greater emphasis on empirical data, scientific methods and other 223 ear to be attempting, through empiricism, to 224 According to Professor Timothy uestions that in the past were answered conceptually or even with purportedly judicial common sense are not rout 225 218 Sandra Mathison, Empiricism in E NCYCLOPEDIA OF E VALUATION 125 (Sage Pub. 2005 ) ( stating that L ARRY E. S ULLIVAN T HE S AGE G LOSSARY OF S OCIAL AND B EHAVIORAL S CIENCES 177 (Sage Pub. 2009 ) ( stating that empirici epistemological view that knowledge must originate in sensory experience. Empiricists deny that knowledge may originate through nonsensory channels such 219 Zick, supra note 201, at 117, 123. 220 Zick, supra note 201 at 117. 221 Zick, supra note 201, at 121 22 (stating that this new form of empiricism, constitutional empiricism, is and describing some of the similarities between the two). 222 Zick, supra note 201, at 116. 223 Zick, supra note 201, at 120. 224 Zick, supra note 201, at 135. 225 Zick, supra note 201, at 120.
68 Benefits of an Empirical Perspective An approach of this sort offers many benefits. Historically, and to this day, the Court relied on its own fact finding as authority for its constitutional decisionmaking. It often equated its fact interpretations. 226 ri 227 The increasing availability of empirical data provides the opportunity for commentators, finding on the basis of empir ical 228 I nteraction between law and empirical science thus, not only seeks to guide and restrain its constitutional discretion by holding the Court more accountable for its ally based factual suppositions, 229 it challenges the heightened sense of judicial deference once given to legislative judgments. 230 While legislatures were once giv en broad deference, under an empirical approach, they may now be required to confirm purported harms empirically. 231 C ourts must not only examine the means chosen by the government to achieve its purpose, but 226 Faigman, Normative Constitutional Fact Finding supra note 203, at 549. 227 Faigman, Normative Constitutional Fact Finding supra note 203, at 545. 228 Faigman, Normative Constitutional Fact Finding supra note 203, at 545. 229 Zick, supra note 201, at 135. 230 Zick, supra note 201, at 166. 231 Zick, supra note 201, at 147 48.
69 perform in depth judicial assessment s of legislat ive materials such as legislative histories, committee reports, floor statements and even evidence gathered through committee and subcommittee hearings. 232 They m ust make increasing use of the fulcrum of scientific, technical and other data now available, an d also take an more aggressive gatekee assessments of it. 233 It is perhaps easy, then, to understand why a trend toward constitutional empiricism is attractive to federal judges, including members of the Supreme Court. interpretation 234 but are in search of 235 The scientific precepts and conven tions often associated with empiricism that constitutional interpretation requires. 236 Drawbacks or Setbacks of the Empirical Approach On the other hand, e mpiricism as a form of co nstitutional interpretation is not suited to the discovery of constitutional 232 Zick, supra note 201, at 166 233 Zick, supra note 201, at 120. 234 Zick, supra note 201, at 11 9. 235 Zick, supra note 201, at The puke test Lochner v. New York 198 U.S. 45, 74 76 (1905 ) ( Holmes J., dissenting); see also Richard A. Posner, Pragmatic Adjudication 18 C ARDOZO L. R EV 1, 2 (1996 ) [ hereinafter, Posner, Pragmatic Adjudication ] ( grounds if no reas onable person could defend it). 236 Zick, supra note 201, at 120.
70 meaning 237 Not only has empiricism been criticized for being influences on both the data being examined an d the methods by which the courts are performing empirical f unctions, 238 it has also been censured for failing to contribute to the development 239 sults and 240 The c failure s to distinguish between distinctively normative empirical pr oposi tions additionally, may also result in their analyzing of empirical research much as they would more traditional sources of constitutional interpretation. 241 Moreover, Professor David Faigman has contended an empirical approach or the availability of e mpirical data does not ensure courts will make an empirical attempt. 242 Additionally, it has been suggested there are instances resources makes scientific data undesi or 237 Zick, supra note 201, at 116. 238 Zick, supra note 201, at 116. 239 Zick, supra note 201 at 116. 240 Zick, supra note 201, at 117. 241 Zick, supra note 201, at 117. But see Faigman, Normative Constitutional Fact Finding, supra note 203, at 549 ( approach factual questions as a matter of normative legal judgment rather than a separate inquiry aimed 242 Faigman, Normative Constitutional Fact Fi nd ing supra note 203, at 612.
71 provides limited benefit 243 Finally, as previously suggested, a court may not be 244 Part D nal empiricism. Part E mendment doctrine, including the more recent suggestion of an approach requiring empirical proof of harm. Approaches to First Amendment Doctrine Most of First Amendment doctrine has centered on determining where the li ne 245 regulation of it. 246 achieved through the promulgation of a number of categories of speech that may be subject to regulation In other cases, the Cou rt [has] engaged in a more open and 247 These statements, taken from Harvard Law Professor Owen Fiss famous tome, The Irony of Free Speech demonstrate the variety of a pproaches the Court has taken when asse ssing the constitutionality of a governm ent regulation. The distinction between these approaches is the subject of many scholarly articles. 248 243 C OHEN & G LEASON supra note 89 at 110. 244 C OHEN & G LEASON supra note 89 at 110. 245 F ISS I RONY supra note 2 at 5. 246 F ISS I RONY supra note 2 at 5. 247 F ISS I RONY supra note 2, at 5 6. 248 See, e.g ., T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing 96 Y ALE L. J. 943 (1987); Joseph Blocher, Categoricalism and Balancing in First and Second Amendment Analysis 84 N.Y.U. L. R EV 375 (2009 ) ( discussing the differences between the two approaches in the context of the First Amendment); Laurent B. Frantz The First Amend ment in the Balance 71 Y ALE L.J 1424 (1962) [hereinafter Frantz, First Amendment in the Balan c e ] ; John Hart Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis 89 H ARV L. R EV 1482 (1975);
72 appro 249 analyzing content 250 None may illuminate the muddle so well as Dean of Yale La w School Robert Post when he wri te s : Constitutional law inhabits the te nsion between doctrine and decision. Courts must decide cases correctly, but they must also explain their decis In recent years [, however,] ability to elucidate its First Amendment decisions.... 251 A y well be (roug contemp orary doctrine is nevertheless striking chiefly for its superficiality, its internal incoherence, its distressing failure to facilitate constructive judicial engagement with significant contemporary social issues connected 252 Perhaps nified is achieved by categoricalism 253 Through its categorical approach, the Court, first, determine whether a law is content neutral or content based Schaue r, Categories supra note 278, at 265 66; Kathleen Sullivan, The Supreme Court, 1991 Term Forward: The Justices of Rules and Standards 106 H ARV L. R EV 24 (1992). 249 Rodney A. Smolla, Categories, Tiers of Review and the Roiling Sea of Free Speech Doctrines and Principle: A Methodological Critique of United States v. Alvarez, 76 A LB L. R EV 499, 499 (2013 ) [ hereinafter Smolla, Roiling Sea ]. 250 Id. 251 Robert Post, Recuperating First Amendment Doctrine 47 S TAN L. R EV 1249, 1249 50 (1995 ) [ hereinafter Post, Recuperating Doctrine ]. 252 Id at 1250. S ee also Robert Post, Understanding the First Amendment 87 W ASH L. R EV 549, 549 (2012 ) [ hereinafter Post, Understanding Doctrine ] ( fer from First Amendment 253 D ANIEL F ARBER T HE F IRST A MENDMENT 21 (1998).
73 and, then, assesses its const itutionality based on the category of speech being regulated. 254 Categoricalism most famous embracement of its categorical approach occurred in its Chaplinsky v. New Hampshire 255 In his opinion for the Court, Justice Frank Murphy defined and narrowly limited classes of speech ... the prevention and punishment of which have never been thought to 256 The rationale the Court employed from prohibiting the expression was that it constituted such slight social value as a step to the truth that any benefit derived from them is clearly outweighed by the social interest i 257 Although the Court had never addressed that could be jettisoned from the First Amendment free zone, it appeared to find Walter Since Chaplinsky the list of unprotected categories of expression has been extended to encompass a variety of speech and now includes obscenity, defamation, fraud, 258 254 Id. 255 315 U.S. 568 (1942). 256 Id. at 571 72. 257 Id. at 572. 258 See A shcroft v. Free Speech Coal. 535 U.S. 234 245 46 (2002 ) ( stating that Similarly, the Court in United States v. Stevens wrote iminal conduct. 559 U.S. 460, 468 (2010).
74 More recent jurisprudence demonstrates the Court may not always immediately jettison low value speech from First Amendment protection as Chaplinsky suggested. United States v. Stevens 259 decided in 2010, had the opportunity to assess the validity of 260 portraying the 261 Defendant Robert J. Stevens w as convic ted for selling videos through his 262 T he government argued in Stevens that 263 But the Court, led by Chief Justice John Robert, rejected this argument. It acknowledged, while been 264 259 559 U.S. 460 (2010). See infra notes 115 20 and acc ompanying text for an analysis of the facts and issues in Stevens 260 18 U.S.C. Â§ 48 (1999). 261 Stevens, 559 U.S. at 465. 262 Id at 466. 263 Id. at 469 Quoting from the statute, the Court said that a depiction of animal cruelty was defined as Id at 474. Tracking the Miller v. California test, involving regulation of obscenity, the law also exempted from ical, scientific, educational, journalistic, historical, Id. Animals the videos may include are: cats, dogs, monkeys, mice and hamsters. Id. (citing H .R. R EP No. 106 397, at 2 (1999)). 264 Id at 472.
75 depictions of animal cruelty were not among them. 265 The decision to uphold an outright ban freewheeling authority to declare new categories of speech outside the scope of the 266 It held the law was unconstitutional. Although Stevens 267 may eneral reluctance to carving out new categories of unprotected expression, 268 it did not outright reject the potential that new categories of unprotected expression may be identified. Chaplinsky It says that speech is 269 While t he categorical methodology has most often turned on the historical granting of protecti on to certain types of expression, 270 First Amendment scholar Clay Calvert and his colleague suggest alleged harms to humans 271 in cases such as Alvarez and Stevens illustrates the 265 Id 266 Id. Since the first law was overturned, President Barack Obama has signed a revised statute into law. Specifically, the Animal Crush Video Prohibition Act, passed in December 2010, criminalizes the creation, sale and marketing of specific kinds of videos lawma to seven years. Bill Mears, CNN. COM Dec. 10, 2010, available at http://www.cnn.com/2010/POLITICS/12/10/animal.cruelty/index.html (last visited Sept. 14, 2013). 267 559 U.S. 460 (2010). 268 In Stevens Brown and Alvarez for instance, the Court refused to extend the categories of unprotected speech to new types of c ontent. 269 Harry Kalven, Jr., The Metaphysics of the Law of Obscenity 1960 S UP C T R EV 1, 10. 270 Clay Calvert & Rebekah Rich, Low Value Expression, Offensive Speech, and the Qualified First Amendment Right to Lie: From Crush Videos to Fabrications about Military Medals 42 U. T OL L. R EV 1, 2 (2010). 271 Id. at 4.
76 render it outside the ambit of First Amendment protection. 272 They propose a new the Court looks will involve a 273 M ost scholars have tended to criticize adequately explain the complexity of 274 or unnecessarily stifling certain predetermined, outcome 275 First Amendment scholar and President of Furman University Rod ney Smolla wrote a has derisively contended that Chaplinsky 276 Amendment case outcomes, the Chaplinsky standard is 277 At least scholar 278 272 Id. at 4 Stevens ). According to the Stevens Court, the imprison any speaker so long as his speech is deemed valueless or unnecessary United States v. Stevens, 559 U.S. 460, 471 (2010). 273 Calvert & Rich, supra note 270, at 4. 274 Huhn, Scienter, supra note 205 at 194. 275 Blocher, supra note 248, at 383. 276 Smolla, Roiling Sea supra note 249, a t 500. 277 Id. 278 Frederick Schauer, Categories and the First Amendment : A Play in Three Acts 34 V AND L. R EV 265, 265 66 (1981 ) [ hereinafter Schauer, Categories ].
77 U nlike categorizat balancing approach weightier 279 better serves and respects First Amendment interest s. Indeed, some have suggested the apparent progression from categorization to increasing use of balancing in the First Amendment jurisprudence may re cut cases. 280 Ad h oc Balancing a balancing approach which began as early as the 1930s, 281 with proponents such as Justice Oliver Wendell Holmes and former Harvard Law School dean and legal philosopher Roscoe Pound, 282 and was also consistent with other intellectual movements of the time. 283 279 Blocher, supra note 248, at 381. 280 Id. at 802 03 (describing the j 281 Aleinikoff, supra note 248 at 960. 282 Aleinikoff, supra note 248 at 959 60. 283 Aleinikoff, supra note 248, t be yond its [ that dominated the first half of the twentieth century. Darwinism, non Euclidian geometry, and relativity theo ry had shaken the foundations of formalism in the traditional sciences; the impact in the social sciences was dramatic. Universals, logically deducted from fixed categories, gave way to culturally empirical observation of the ways in which societies functioned. The balancing judge could assume the role of a social scientist, trading deductive logic for inductive investigation of interests in a social context. Aleinikoff, supra note 248 at 961.
78 Under the appr 284 by case, common law approach that accommodated gradual change and rejected abso 285 Frustrated with standard First Amendment doctrine, including categoricalism, to 286 Justice John Paul Stevens wrote in his 1992 concurring opinion in R.A.V. v. City of St. Paul 287 t hat 288 Yet, even a relative balancing of interests in First Amendment law some 289 At least some scholars have criticized the application ad hoc balancing in First Amendment doctrine 290 284 Aleinikoff, supra note 248 at 961. 285 Aleinikoff, supra note 248 at 961 analysis of the p 286 Wilson Huhn, Assessing the Constitutionality of Laws That Are Both Content Based and Content Neutral: The Emerging Constitutional Calculus 79 I ND L.J 801, 802 03 (2004 ) [ hereinafter Huhn Assessing the Constitutionality ] ( ver the past decade a number of Justices in particular, John Paul Stevens, Stephen Breyer, David Anthony Kennedy have expressed categorical analysis 287 505 U.S. 377 (1992). 288 Id at 431 (Stevens, J., concurring). 289 See, e.g ., Fred C. Zacharias, Flowcharting the First Amendment 72 C ORNELL L. R EV 936, 958 59 (1987). 290 Aleinikoff, supra note 248 at 943 Schauer, Categories supra note 278, at 299 (describing the forms of first amendment analysis in favor of a categorical approach); Laurence Tribe, Constitutional Calculus: Equal Justice of Economic Efficienc y? 98 H ARV L. R EV 592, 607 08 (1985 ) ( benefit analysis generally and as applied in the context of the Fourth Amendment s pecifically).
79 J. A lexander Aleinikoff, former dean at Georgetown University Law Center, has questioned the form and implications of balancing as a method of constitutional interpretation According to Aleinikoff: The Court under any of the version of the balancing metaphor has not of th e balancing. As a way to avoid problems in calculation, it has generally with little theoretical justification adopted scaled down equations that do not take into account all the possible interests. Furt hermore, recognizing the difficulty of developing credible and external standards of evaluation, the Court has moved to even more stylized versions of balancing in an attempt to demonstrate 291 Professor Laurent B. Fran t z has likewise observed, ail to protect freedom of speech, but it becomes a mechanism for rationalizing and validating the kinds of governmental action i ntended to be prohibited... [it] does not permit the First Amendment to perform its function as a constitutional limitation... 292 In contrast, o thers have suggested that only a weighted or a preferred position approach to judicial review properly respects First Amendment values. 293 Preferred p osition Balancing The origins of the prefer red position doctrine are usually traced to Chief Justice United States v. Carolene Products Co. 294 be 291 Aleinikoff, supra note 248 at 1003. 292 Frantz First Amendment in the Balance supra note 248, at 1449. See also Laurent B. Frantz, Is the First Amendment Law? A Reply to Professor Mendelson 51 C ALIF L. R EV 729, 746 48 (1963) (criticizing the judicial discretion inherent in a balancing test). 293 See D ON R. P EMBER & C LAY C ALVERT M ASS M EDIA L AW 42 47 (2011 12 ) ( reviewing First Amendment theories including the absolutist theory, ad hoc balancing theory and the preferred position balancing theory) Justice Hugo Black was perhaps the most prominent advocate of an absolutist approach to the First Amendment, rejecting any abridgement of freedom of speech. See e.g ., Barenblatt v. United S tates, 360 U.S. 109, 141 (1949 ) ( Black J., dissenting ) ( 294 304 U.S. 144 (1938).
80 legislation appears on its face to be within a specific prohibition of the Constitution, such 295 Under a preferred position approach, a government regulation of speech is presumed unconstitutional unless the government can show that the censorship is justified. Numerous courts have upheld this position. 296 Chief Justice John Roberts criticized application, in his majority opinion in Stevens 297 The Court proffered what appeared instead to be a more speech protective approach, weighting the scale in judgment by the American people that the be nefits of restriction on the Government 298 T a preferred position of the First Amendment was also highly visible in Alvarez Alvarez ferent judicial sensibilities regarding the preferred position of 299 1. freedom of speech occupies an exalted position, rarely trum ped by societal 300 295 Id at 152 n.4. 296 See C Thomas Dienes, When the First Amendment is N 56 U. C IN L. R EV 779, 779 n.1 (1988 ) ( listing cases). 297 Stevens 559 U.S. at 470. 298 Id. According to Justice Roberts, although the Court has outside the protection of the First Amendment, it has not been on the basis of a simple cost benefit Id. at 471. 299 Smolla, Roiling Sea supra note 249, at 500 (referencing United States v. Alvarez, 132 S Ct. 2537, 2542 51 (2012)) ( K ennedy, J., plurality opinion). 300 Id at 500 501 (referencing Alvarez 132 S. Ct. at 25 51 56 ) ( Br eyer, J., concurring).
81 2. of speech deserves some elevated stature in the constitutional scheme, but not a stature so elevated that it cannot be overtaken by other well crafted laws 3. divided into that speech that serves some plausible positive purpose, which is deserving of constitutional protection, and that speech which advances no legitimate end worth crediting, yet is highly offense to good order and morality, 301 Yet, t he inability of the Court to agree on a single rationale such as in Alvarez according to Smolla, creates 302 It also poorly serve s 303 Questions continue to abound regarding w hether a specific approach is appropriate in a particular type of case, and if not, specifically to what type of cases it applies. 304 Yet, d 305 Em pirical B alancing Similar to the evolution felt generally by American legal doctrine throughout the nineteenth and twentieth centuries, so too is First Amendment doctrine now undergoing 306 to an empirical balancing in its 301 Id at 501 (referencing Alvarez 132 S. Ct. at 25 56 65) (Alito, J., dissenting). 302 Smolla Roiling Sea supra note 249, at 499. 303 Smolla Roiling Sea supra note 249, at 499. 304 Frantz First Amendment in the Balance supra note 248 at 1424. 305 Aleinikoff, supra note 248 at 972. 306 Wilson Huhn, Assessing the Constitutionality supra note 248, at 802 ( doctrine evolved from a formalistic categorical approach that dominated legal thinking during the nineteenth century to a realistic balancing approach that developed over the course of the twentieth ) ( emphasis added). doctrine governing freedom of expression a process that may culminate in the adoption of what United State s Id
82 307 Professor Wilson Huhn of the University of Akron Law has poignantly described the transformation this way: Over the last decade there has emerged a simple and striking trend i n the reasoning of the Supreme Court regarding freedom of expression. Instead of focusing on the right to freedom of expression, the Court is increasingly turning its attention to an analysis of harm that may result from allowing the speech to remain unreg ulated. In place of analyzing what the law is, the Court is attempting to determine the facts that would justify regulation of speech. Rather than conducting a legal analysis, the Court is engaging in an empirical inquiry. 308 In this instance, it may be said 309 Although complex factual assessments are necessary for making determinations of 310 i t is only likely given the suggested trend toward empiricism, the Court will continue to confront difficult questions regarding the admissibility and sufficiency of evidence to support or reject arguments of constitutionality. 311 These questions have most often involved the assessment of the i njury and the evidence required by the government to squelch the speech in question. Obfuscating the and the quantum of proof necessary to sustain the constitutionality of laws regulating 307 See id. See also infra Part 2.E. (discussing empiricism). 308 Huhn, Scienter supra note 205, at 194 opposed basic legal analysis). 309 Huhn, Assessing the Constitutionality supra note 248, at 851. 310 Huhn, Scienter, supra note 205, at 200. 311 Id at 194, 201; see also Paul Horwitz, 87 W ASH L. R EV 445 446 47 (2012 ) ( legitimacy and epistemological themes).
83 312 the nature of the evidence and the quantum of proof necessary to sustain the 313 The situation in the Turner Bro adcasting Systems I and II paints the picture clearly. In Turner Broadcasting Systems, Inc. v. Federal Communications Commission I and II 314 the Court was asked to determine whether Congress had sufficient evidence Consumer Protection and Competition Act of 1992 315 imposed on cable operators were necessary to preserve local broadcasting. 316 The Court had no trouble accepting 317 were substantial, 318 but a plurality would not accept carry rules would in fact advance any or all of the 319 312 Huhn, Scienter supra note 205, at 195. 313 Huhn, Scienter supra note 205, at 195. 314 512 U.S. 622 (1994 ) [ hereinafter Turner I ] ; 520 U.S. 180 (1997 ) [ hereinafter Turner II ]. 315 Pub. L. No 102 385, 106 S TAT 1460 (codified as amended at 47 U.S.C. Â§ 609 (2000)); see also Communications Act of 1934, ch. 652, 48 Stat. 1064, 47 U.S.C. Â§Â§ 534 (b), (h ) ( rules). 316 Turner I 512 U.S. 632 34 (summarizing detailed congressional findings). 317 Id at 662 63. mination of information from a Id. at 662. 318 See id. at 667. 319 See id istorical evidence upon which Congress relied, or the introduction of some additional evidence to establish that the dropped or repositioned broadcasters would be at serious risk of financial difficulty, we cannot determine whether the threat to broadcast television is real enough to overcome the challenge to the
84 judgment of the facts bearing on an issue of constitutio 320 its requirement of studies on the record to support its legislative predictions. 321 It was not until upon remand in Turner II as well as an additional eighteen mo nths of legislative fact finding that the Court said it was 322 I n City of Erie ., 323 former Justice David Souter identified the problem of establishing a standard for measuring the quantum of proof the government must adduce to support legi slation restricting expression. Justice Souter concurrence in M justificat 324 He became dissatisfied with the sufficiency of the evidence the government had offered in City of Los Angeles v. Alameda Books 325 to support a zoning ordinance dispersing adult businesses. 326 320 Id. 321 Id at 664 68. 322 Turner II 520 U.S. at 182 (19 97). Id. at 187. 323 529 U.S. 277 (2000 ) ( Souter, J. concurring in part and dissenting in part). 324 Id. at 311. 325 535 U.S. 425 (2002). 326 Id at 458 59.
85 327 he expressed the concern that the Cou 328 In response to the greater intrusions upon freedom of expression demonstrated courts must insist t hat the government prove high levels of scienter, more immediate connections between the speech and harm, and more serious harms before laws 329 Professor Huhn has proposed multi factor balancing analysis 330 that expounds upon Justice Stevens in R.A.V 331 In R.A.V. Justice proposed a would analyze a number of factors including content, character, context, nature and scope to determine the value of the expres sion. 332 On the opposite scale, Professor Huhn suggests quantum of proof balanced against the reached by assessing the expression under factor approach comprises of mind that a speaker must have before he or she may be punished for expressing a 327 Id at 458. 328 Id. at 459. 329 Id. 330 Huhn, Scienter, supra note 205, at 127. 331 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (Stevens, J., concur ring). 332 Id. at 431 (Stevens J., concurring).
86 of the injury the government is seeking to prevent). 333 Professor Michael Hoefges of the University of North Carolina Chapel Hill examined the level of proof of causation required by the Court in the relatively narrow commercial speech doctrine. 334 In his article on causation of harm, he traces the evolution of the third factor of a test established by Central Hudson Gas & Electric v. Public Service 335 for determining when such restrictions violate the First Amendment. 336 The third Central Hudson factor rnment to demonstrate that its regulation directly advances a substantial regulatory goal in a direct and material 337 Professor Hoefges observes, t he Supreme Court has considered the extent of the evidentiary record under the third Central Hudson factor in more recent commercial speech cases such as Rubin v. Coors Brewing 338 44 Liquormart v. Rhode Island, 339 Greater New Orleans Broadcasting v. United States 340 and Lorillard Tobacco Co. v. Reilly 341 Yet, he notes the Court in each of these cases abandon ed its deferential 333 Huhn, Scienter supra note 205, at 127 28. 334 Michael Hoefges, Protecting Tobacco Advertising Under the Commercial Speech Doctrine: The Constitutional Impact of Lorillard Tobacco Co., 8 C OMM L. & P OL Y 267, 276 80 (2003). 335 447 U.S. 557 (1980). 336 The four part Central Hudson test asks: 1) whether the speech at issue concerns lawful activity and is not misleading; 2) whether the asserted government interest served by the restriction is substantial; and i f so, 3) whether the regulation directly advances the governmental interest asserted; and 4) whether it is not more extensive than is necessary to serve that interest. Id. at 566 (emphasis added). 337 Id. at 306 (emphasis added). 338 514 U.S. 476 (1995). 339 517 U.S. 484 (1996). 340 527 U.S. 173 (1999). 341 533 U.S. 525 (2001).
87 little or no evidence 342 of these cases is mitigated by the rather loose evidentiary s tandard it has taken when determining the sufficiency of evidence supporting claims of direct advancement under 343 Although Hoefges questions the quality and sufficiency of evidence presented by the government to satisfy its interest, Prof essor Paul Horwitz takes the opposite increases consumption of harmful products such as alcohol, tobacco and gambling. 344 f government justifications for psychological research showing the preference 345 He queries whether the assessment of the speech harm risk mig ht not be better placed in 346 Part E has described approaches to First Amendment doctrine, including a recent suggestion of a trend toward empiricism imposing gr eater evidentiary burden s of injury producing spe ech b efore it may be squelched. Part F describes the interdisciplinary construct of the mass third person effect: what it is, how it can be used 342 Hoefges, supra note 334, at 306 (emphasis added). 343 Horwitz, Risk Analysis supra note 208 at 56. 344 Horwitz, Risk Analysis supra note 208 at 56 61. 345 Horwitz, Risk Analysis supra note 208 at 59. 346 Horwitz, Risk Analysis supra note 208 at 61.
88 to explain government regulation of potentially harmful speech and why this sort of legislation is perhaps unwarrant ed Third Person Effect: An Explanation for Government Censorship In his seminal article The Third Person Effect in Communication sociologist W. Phillips Davison first described what he perceived as the third person effect. 347 Davison cited a number of hist orical accounts, 348 including a controversy during World War II in which the Japanese dropped leaflets over U.S. locations in Iwo Jima declaring it a 349 He alleged the reason the troops pulled out the following day was due to the white offic 350 members of an audience that if expose d to a persuasive communication.. will expect the communication to have a greater effect 351 According to 352 347 W. Phillips Davison, The Third Person Effect on Communication 47 P UB O P Q. 1 (1983). 348 D campaigns on the voting habits in the New Hampshire primary before the 1980 election. Id at 4 7. 349 Id at 1. 350 Id. 351 Id. at 3. 352 Id
89 Perceptual Component The third person percept ion occurs when perceived media effects are greater for others than for oneself. 353 Spe cifically, the theory holds, overestimate the influence that mass communications have on the attitudes and behaviors 354 According to Richard Perloff, professor of c ommunication at Cleveland State University and person perceptions are rooted in observers' beliefs that audience members are exposed to media content, coupled with the assumption that wi th greater exposure comes stronger 355 Professor J ames Tiedge and colleagues observed be willing to subscribe to the logical inconsistency inherent in maintaining that the mass media influence others considerably more than th 356 The third person effect, 357 Instead of looking at media effects on beliefs, it examines beliefs about media effects ... Indeed, it paradoxically posits that one of the strongest inf luences of media is the presumption that they have influences, stipulating that this presumption can itself engender a series of actions that would have been unthinkable in the absence of mediated communications. 358 353 Richard M. Perloff, Mass Media, Social Perception, and the Third Person Effect in M EDIA E FFECTS : A DVANCES IN T HEORY AND R ESEARCH 252 (3d ed. Jennings Bryant & Mary Beth Oliver, eds., Routledge Communication Series) [hereinafter Perloff, Mass Media ]. 354 Id. at 252. See also, e.g ., Richard M. Perloff, Perceptions and Conceptions of Political Media Impact: The Third Person Effect and Beyond in T HE P SYCHOLOGY OF P OLITICAL C OMMUNICATION 77 (Ann N. Crigler ed. 1996 ) [hereinafter, Perloff, Perceptions ] (positi ng that the third person effect is a result of a tendency to underestimate media effects on oneself, overestimate effects on others, or some combination of the two). 355 Perloff, Mass Media supra note 353, at 258. 356 James T. Tiedge et al., Discrepancy Betwe en Perceived First Person and Perceived Third Person Mass Media Effects 68 J. Q. 141, 152 (1991). 357 Perloff, Mass Media supra note 353, at 252. 358 Perloff, Mass Media supra note 353, at 252.
90 The third person effect is a cross discipl 359 By focusing on the intersection between public opinion, communication and psychological processes, it bridges the gap between sociology, psychology a nd perceptions of social reality. 360 Not only does there appear to be historical precedent for the effect, but extensive modern research gives it credence. 361 In fact, in only a very short time, it has become the fifth most popular theory in contemporary commu nication research. 362 While support for the effect involving messages with positive attributes (where an effect is linked with a positive message) is unclear, research had demonstrated a third person effect exis ts whether the message was explicitly intended to be persuasive. 363 Perhaps the strongest indicator of an effect occurs where the message is in that it is considered to have a bad influence or be less socially desirable. For instance, 359 Perloff, Mass Media supra note 353, at 254. 360 Perloff, Mass Media supra note 353, at 254. 361 See Vincent Price at al., Third Person Effects of News Coverage: Orientations Toward Media 74 J OURNALISM & M ASS C OMM Q. 5 the effects have been well documented by more than a decade of empiric A recent review of the studies of the third person perception has shown that fifteen out of sixteen found that people perceived greater media effects on others than on themselves. Perloff, Perceptions supra note 354, at 342. 362 Richard M. Perlo ff, Mass Media supra note 353, at 252 53 (referencing Jennings Bryant & Dorina Miron, Theory and Research in Mass Communication 54 J. C OMM 662 (2004)). 363 See generally, e.g ., Price et al., supra note 361; Albert C. Gunther & Esther Thorson, Perceived Persuasion Effects of Product Commercial and Public Service Announcements 19 C OMM R ES 154 (1992); Douglas M. McLeod et al., Support for Censorship of Misogynic Rap Lyrics: An Analysis of the Third Person Effect 24 C OMM R ES .153 (1997 ) [ hereinafter McLe od et al., Rap Lyrics ]; Douglas M. McLeod et al., Behind the Third Person Effect: Differentiating Perceptual Processes in Self and Other J C OMM 678 (2001 ) [ hereinafter McLeod, et al., Behind the 3D Person ]; Albert C. Gunther, Overrating the X rating; th e Third Person Perception and Support for Censorship of Pornography 45 J. C OMM 27 (1995) [hereinafter Gunther, X Rating ] ; Hernando Rojas et al., For the Good of Others: Censorship and the Third Person Effect 8 I NT L J. P UB O P R ES 163 (1995).
91 Eveland and McLeod found the more negative a message is per ceived, the wider the gap between its perceived influence on self and others. 364 Behavioral Component Not only did Davison perceive perceptual implic ation s of media effects, he believed it could have behavioral ramifications 365 According to Davison: [T]he impact that they expected this communication to have on others may lead them to take some action. Any effect that the communication achieves may thus be due not to reaction of the ostensible audience but rather to the behavior or those who anticipate or think they perceive, some reason on the part of others. 366 The behavioral component of the third person perception thus, takes the hypothesis one them to consider action 367 A majority of research on the behavioral component, however, has fa iled to measure actual behavior 368 Instead, much of the research has operationalized the willingness to censor the negative effec ts of certain typ es of 364 Willia m P. Eveland & Douglas M. McLeod, The Effect of Social Desirability on Perceived Media Impact: Implications for Third Person Perceptions 11 I NT L J. P UB O P R ES 315 (1999 ) ( finding the more negative a message is perceived, the wider the gap between its perceived influence on self and on others). Perloff, Mass Media supra note 345, at 259. See also Cynthia Hoffer et al., The Third Person Effect in Perceptions of the Influence of Television Violence 51 J. C OMM 283 (2001 ) ( observing that heavy violence watching, among other factors, contributes to a third person mean world perception, in which the viewer is more likely to see the world as a mean and scary place, and are more accepting of aggression). J ULIE L. A NDSAGER & H. A LLEN W HITE S ELF V ERSUS O THERS : M EDIA M ESSAGES AND THE T HIRD P ERSON E FFECT (2007). 365 Id 366 Davison, supra note 347, at 3 (emphasis added). 367 Perloff, Mass Media supra note 353, at 263. See also Yariv Tsfati & Jeremy Cohen, The Influence of P resumed Media Influence on Democratic Legit imacy: The Case of Gaza Settlers 32 C OMM R ES 794 (2005). 368 See generally Perloff, Mass Media supra note 353. See also Richard M. Perloff, Third Person Effect Research 1983 1992: A Review and Synthesis 5 I NT L J. P UB O P R ES 167 (1993) [hereinafter Perloff, Third Person Effect Research ].
92 content. This may be for several reasons including : 1) the difficulty of proving causality ; 369 message to attitude can be complex and multi and 3 ) speculation over censors failure to admit they have been adversely affected by the content 370 Professor Albert Gunther, professor at the University of Wisconsin Madison, observed that people who perceived a greater self other disparity in the impact of X rated films and pornographic magazines were more likely to support censoring them. 371 Douglas M. McLeo d and colleagues identified, in a study on the relationship between the third person perception and rap lyrics, that support for censorship was strong de spite controlling for several correlates of censorship (gender, conservatism, social desirability of the content ad knowledge of and liking of the content in question). 372 Additionally, a study by communication professor Jennifer Lamb e at the University of Delaware similarly found support for a correlation between censorship and a v ari ety of media content. 373 Bu t she identified an additional caveat: it is possible that people hold 369 Perloff, Mass Media supra path from message to attitude c an be complex and multi layered. ). See also Vincent Price & Natalie J. Stroud, Public Attitudes Towa rd Polls: Evidence from the 2000 U.S. Presidential Election 18 I NT L J. P UB O P 393 (2006) (suggesting that respondents may invoke perceptions of message effects to rationalize prior support for media censorship). 370 Clay Calvert, The First Amendment and the Third Person: Perceptual Biases of Media Harms & Cries for Government Censorship, 6 C OMM L AW C ONSPECTUS 165 165 (1998 ). 371 Gunther, X Rating supra note 363 at 27, 35; s ee also McLeod et al., Rap Lyrics supra note 363, at 165 (indicating that larger third person perceptions were positively associated with support for censorship of certain types of rap music); Rojas et al., supra note 355 ; Michael B. Salwen, Perceptions of Media Influence and Support for Censorship: The Third Pe rson Effect in the 1996 Presidential Election 25 C OMM R ES 259 (1998). 372 McLeod et al., Rap Lyrics supra note 363, at 168. 373 Lambe, supra note 76, at 217 19.
93 inconsistent views regarding regulation of expression, and, thus, it is importan t to 374 A major criticism of the third person effect on the other hand, is that it may be more of 375 massive media effects, evidence accumulated to date h as provided little indication of a sizable impact of media content 376 Research on the third 377 Namely, it h with relations between input variables ( e.g ., media information and its characteristics) and output variables ( e.g ., attitudes, beliefs, behavior), with little consideration of the cognitive processes that might mediate these 378 Part F has r eviewed the third person effect. It sets the foundation for discussion, following review of Supreme Court proof of harm doctrine, of ways in which knowledge of the mass communication concept might better help judges evalua te legislati ve claims of speech based harm. Chapter 3 provides a description of the methodology used to select cases included in its analysis. 374 notion that it is important to conceptualize Lambe, supra note 76, at 219. 375 Perloff, Mass Media supra note 353, at 252. 376 J.L. Shrum, Media Consumption and Perception of Social Reality: Effects and Underlying Processes in M EDIA EFFECTS supra note 353, at 50, (quoting William J. McGuire, The Myth of Massive Media Impact: Savagings and Salvagings in P UBLIC C OMMUNICATION AND B EHAVIOR 173 (George Comstock ed.1986)) 377 J.L. Shrum, Media Consumption and Perception of Social Reality: Effects and Un derlying Processes in M EDIA EFFECTS supra note 353, at 50. 378 J.L. Shrum, Media Consumption and Perception of Social Reality: Effects and Underlying Processes in M EDIA EFFECTS supra note 353, at 50.
94 CHAPTER 3 METHODOLOGY Chapter 3 is comprised of three parts. Part A describes this study locating relevant manual and electronic legal and communication resources. Part B summarizes methodology employed for selecting the U.S. Supreme Court cases underlying its proof of harm analysis. Part C examines the use of typologies and rubrics as analytic tools a nd makes some initial observations the ones it proposes in Chapter 5 Communication and Legal Resources This study relies upon both electronic and manual reso urces in communication and law. The databases include WestLaw Next, LexisNexis, the communication research databases of Ebsochost Discovery Service, Communications and Mass Media, and Communications & Mass Media Complete located through the University of Florida online library portal, University of Florida library catalog and web engine searches. Journ al articles and other relevant secondary materials on First Amendment, constitutional law and other legal issues w ere located using the primary legal research databases of Westlaw (WestLaw Next) and LexisNexis as well as University of Florida library catalog and databases for journal publications and books. Within WestLaw, primary and secondary material was found by running searches within the nd Research on the third person effect and other communication related topics were located through the Ebsochost Discovery Service, Communications and Mass Media and, Communications & Mass Media Complete databases on the University of Florida online library portal A se arch for third person effect related communications articles
95 was performed within particular publications geared toward journalism and mass communications specifically, Journalism & Mass Communication Quarterly and Journal of Communication known for being leading publishers of research in the field of journalism and communications. Searches within these publications were performed using the EbscohostEJS (Electronic Journal Service) database, allowing a researcher to search a particular journal by name. Fol lowing the search the author browsed the results for material of potential relevance to the research question. Given that at least a few legal scholars have written on the impact of the third person effect to produce censorship legislation a search of th e Westlaw and LexisNexis Secondary Source Journals and Law Reviews database was also conducted using the third the topic, although the search yielded fewer articles of relevance. Books on the First Amendment, free speech, free speech theory, and speech and harm, including those published by well known First Amendment scholars, such as Cass Sunstein, Lee Bollinger, Owen Fiss and Robert Post; as well as books published on the third person effect, including those related to the broader topic of media effects studies, were located using the University of Florida library catalog. Books further related to the specific top shelves surround ing identified catalog numbers. Part A discussed the legal and communication resources used to conduct this research. Part B describes the methodology for select ing the U.S. Sup reme Court First Amendment cases exam ined in Chapter 4
96 Selection of U.S. Supreme Court Cases produced 6,5 11 results. Comparatively, a similar search on the competitive legal research database of LexisNexis for cases by the U.S. Supreme Court related to the First Amendment produced 1,427 results. 1 These search results are too large to effectively achieve the goals of this work Alternatively, casebooks provide a workable list of cases providing foundational knowledge on case law of a specific topic. They doctrine,  place that doctrine in its historical setting ... and its social setting ... and  ensure that students connect particular doctrines and lines of doctrinal development with more general approaches to  interpretation. .. 2 There are a number of casebooks published on First Amendment law, including: The First Amendment, Fourth Edition 3 by Geoffrey Stone, Louis Seidman, Cass Sunstein, Mark Tushnet and Pamela Karlan; First Amendment Law Fifth Edition 4 by Kathleen Sullivan and Noah Feldman; The Firs t Amendment: Cases and Theory Second Edition 5 by Ronald Krotozynski, Christina Wells, Lyrissa Lidsky and Steven Gey; and The First Amendment: Cases, Problems and Materials, Third Edition by 1 n marks around First Amendment, into the search box. 2 G EOFFREY R. S TONE ET AL ., T HE F IRST A MENDMENT xxi ( 4th ed. Aspen Publishers 2012) [hereinafter S TONE ET AL ., F IRST A MENDMENT ]. 3 See id. at xi xx for a list of those cases. 4 K ATHLEEN S ULLIVAN & N OAH F ELDMAN F IRST A MENDMENT L AW ( 5th ed. Foundation Press 2013). 5 R ONALD J. K ROTOSZYNSKI ET AL ., T HE F IRST A MENDMENT : C ASES AND T HEORY (2d ed. Aspen Publishers 2013).
97 Russell Weaver, Catherine Hancock, Donald Lively and John Knecht le. 6 This list presents those casebooks published most recently, including two published in 2013. Consequently, they will provide the most current discussion of First Amendment case law. C asebooks often classify legal opinions on subject matter in distinct method s For instance, Speech Categories of Degrees of Protected Expression; 2) Freedom of Speech Modes of Regulation and Standards of Review; 3) Beyond Speaking Compelled Speech, As sociation, Money, and the Media; and 4) The Religion Clauses: Free comprised of two parts: 1) freedom of expression; and 2) freedom of religion. In pertinent part, the first part on freedom of expression contains six chapters: 1) The History and Philosophy of Free Expression; 2) Content Based Restrictions: Dangerous Ideas and Information; 3) Overbreadth, Vagueness, and Prior Restraint; 4) C ontent Value Spe ech; 5) Content Neutral Restrictions: Limitations on the Means of Communication and the Problem of Content Neutrality; and 6) Additional Problems. The First Amendment: Cases and Theory on freedom of expressio n is apportioned into twelve chapters: 1) The History, Values and Content of the First Amendment; 2) Setting the Modern Stage Incitement Based Discrimination; 4) Content Neutrality and the Regulation of S peech on Government Property; 5) Symbolic Speech 6 R USSELL L. W EAVER T HE F IRST A MENDMENT : C ASES P ROBLEMS AND M ATERIALS (3d. ed. LexisNexis 2011).
98 and Expressive Conduct; 6) Compelled Speech and Anonymous Speech; 7) Commercial Speech; 8) Regulation of the Mass Media; 9) Tort Law and the First Amendment; 10) The Conflict Between Free Speech and Promotin g Equality, Civility and Mutual Respect; 11) The Regulation of Sexually Explicit Speech; 12) The Government as Speaker, Employer, and Educator. Chapters within casebooks may then be divided into subparts. For instance, Chapter 1 within Sullivan and Feldman encompassing: 1) Free Speech: An Overview; 2) Incitement to Violence; 3) Fighting Words; 4) Injury by Speech Group; 5) Injury by Speech Individuals; 6) Sexually Explicit Expression; 7) Speech and New Media; 8) Co mmercial Speech. To help narrow the cases selected for analysis, the author browsed the selection of cases included in the First Amendment casebooks mentioned above; deployed a survey of books published on the intersection of speech and harm ; and performed a more targeted search of the legal databases using identified keywords to select those cases most on point to the topic of this paper The cases chosen for analysis appeared most repetitively within relevant sections of the selected casebooks, combined a nd cross function within the legal databases mentioned above. This study adopts the classification structure adopted by Stone and colleagues. According to Stone and colleagues the government pursues regulation of expre ssion or divided into four subparts. Under the rationale of targeting expression because of its dangerousness are the categories known as: 1) incitement to violence/unlawful action;
99 2) speech that threats 3) speech provoking a hostile audience reaction ; and 4) the disclosure of information. The cases falling under each one of these categories appears in Table 3 1. Speech the government may attempt to regulate because of its low value : 1) false statements of fact; 2) obscenity; 4) the lewd, profane and indecent; and 5) hate speech and pornography. E ach of the cases related to these categories is represented in Table 3 2 O pinions on a broad spectrum of other First Amendment and constitutional issues appear in the casebooks but were exempted from discussion as beyond the purview of this study These cases may involve challen ges: due to vagueness and overbreadth ; 7 on prior restraints; 8 the free exercise 9 and establishment clauses; 10 speech falling under the commercial speech doctrine; 11 or on intellectual property issues. 12 Other cases likewise exempted from discussion implicate the First Amendment 7 Connelly v. Gen. Const. Co 269 U.S. 385, 391 (1926). 8 An e xample of such a case is Gooding v. Wilson 405 U.S. 518 (1972 ) ( involving a challenge to a statute 9 See, e.g ., Braunfeld v. Brown, 366 U.S. 599 (1961). 10 See, e.g ., Lynch v. Donnelly, 4654 U.S. 668 (1984); Lee v. Weisman, 505 U.S. 577 (1992 ) ( involving the anti coercion principle). 11 These cases include: Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council 425 U.S. 748 (1976); Central Hudson Gas v. Pub. Serv. n of New York 447 U.S. 557 (1980); Lorillard Tobacco Co. v. Reilly 533 U.S. 525 (2001); and Th ompson v. Western States Med. Cent 535 U.S. 357 (2002). 12 For a discussion of those harms, see, e.g ., Pamela Samuelson & Krzysztof Bebenek, Why Plaintiffs Should Have to Prove Irreparable Harm in Copyright Preliminary Injunction Cases 6 I/S J. L. & P OL Y I NFO S OC Y (2010)
100 within the context of restricted environments, such as in the military, on school grounds and in prisons. 13 Overall, the list of cases adopted from those casebooks produced a list of thirty eight U.S. Supreme Court cases. The cases chos en through this methodology encompass a wide range of the types and the natures of harm that arise under the First Amendment. The selected cases stem from Schenck v. United States and Abrams v. United States some of the earliest U.S. Supreme Court First Amendment opinions to the modern day, United States v. Alvarez and Brown v. Entertainment Merchants Association Most categories include an opinion decided within the last decade. study exami nes the rmine whether there has been a more general evoluti on of the First Amendment proof of harm doctrine over time. Table 3 3 illustrates the number of cases decided in each decade from 1919 to 2013 supporting examination of opinions over multiple decades Part B discussed the process of selecting U.S. Supreme Court cases for its proof of harm analysis. Part C examines the use of typologies and rubrics as analytic devices and provides some initial ob servations regarding the tools for judicial analysis it p roposes in Chapter 5 On the Relationship b etween Speech and Harm Part C has three sections. Section 1 discusses typologies and rubric s as analytic tools. Section 2 reviews a n example of typology analyzing First Amend ment harms. Section 3 makes some observations regarding elements of Supreme Court opinions 13 See S TONE ET AL ., supra n ote 2 at xvi i for a listing of those cases.
101 that could potentially impact its assessment and establishment of an evidentiary burd en. These are factors it will pay close attention to when r on proof of harm. Typologies and Rubrics as Analytic Tools Typologies and rubrics provide judges with useful analytic tools for simplifying otherwise complex legal issues. Although they have been used in legal scholarship, courts have yet to embrace such models in legal analysis. 14 Typologies, are well established analytic tools in the social science s 15 They can make fundamental contributions to creating categories for classification and measure 16 C lassi at a given level of generality is subdivided into several (two or more) extensions corresponding to as many concepts at a lower level of 17 According to Marradi this subdivision is obtaine d by stating that an aspect of th e intension the internal content of a concept, of each of the latter concepts is a different partial articulation of the corresponding aspect of the inte 18 Th us, 14 Kearston Wesner, The Who, What, Why and Where of Online Anonymity: Toward a Judicial Rubric for Choosing Alternative Unmasking Standards (May 2013) (unpublished Ph.D. dissertation, University of Florida) (on f ile with author). 15 David Collier et al., Putting Typologies to Work: Concept Formation, Measurement, and Analytic Rigor 65 P OL R ES Q. 217, 217 (2012). 16 Id. 17 Alberto Marradi, Classification, Typology, Taxonomy 24 Q UALITY AND Q UANTITY 129, 129 30 (1990). 18 Id. at 130.
102 concept whose intension is articulated in one of its aspect s is 19 ing to individual classes are either formed or clarified by the definition of their boundaries with contiguous concepts... [O] nce the intension of each class concept h as been defined clearly (also by opposition with the intensions of each other class concep t ), it by stating certain characteristics which all and only the 20 Types, therefore, are the categories to which the objects or events have prev iously been assigned, with the complete set of types constituting the typology. 21 Similarly, r ubrics provide a similarly helpful tool with the social sci ences for engaging in analytic analysis. Indeed, social scientists have adopted a variety of models to organize and analyze everything from probabilistic network models used in handling survey data o creating a typology to study entertainm ent television and politics.. . 22 While most of the literature has focused on the development of rubrics within the educational system, the p rinciples can be extrapolated to provide useful analytic tools for analysis 23 19 Id. 20 Id. 21 Id. at 131. 22 P ETER C ARRINGTON ET AL M ODELS AND M ETHODS IN S OCIAL N ETWORK A NALYSIS (Cambridge University Press 2005). 23 Wesner, supra note 14, at 91.
103 First Amendment T rilogy of Harm(s) : An Example In his articles on the First Amendment, Schauer proposes a typology of speech based harms. It speech related harms are the 24 Utilizing the recent high court opinions in Steven s, 25 Snyder v. Phelps 26 and Brown 27 as the guidepost of the discussion, Schaue which Schauer broadly classifies as the harms of: advocacy (or third person harms) ; verbal assault (or second person harms) ; and participant harms (first person harms) 28 These next section s describe the types of harm en capsulated by each of the elements falling under typology. Harms of advocacy ( third person harm ) Schauer defines related harm of advocacy, which he t one that is itself defined by or necessarily eve n connected to speech, 29 as that which listener, who then proceeds to commit some nonspeech act as a result of the intentional or unintentional urging 30 Stated differently, 24 Frederick Schauer, Harm(s) and the First Amendment 2011 S UP C T R EV 81, 105 [hereinafter Schauer, Harm(s) ]. 25 559 U.S. 460 (2010). 26 131 S. Ct. 1207 (2011). 27 131 S. Ct. 2729 (2011). 28 Schauer, Harm(s) supra note 24, at 97 103. 29 Schauer, Harm(s) supra note 24, at 97. 30 Schauer, Harm(s) supra note 24, at 98.
104 do something 31 Thus, the harm occurs not to the first persons (the speakers themselves) or the second persons (th e listeners of the speech), but by the acts of the listeners to third persons. In Schenck the third person harm constituted the failure of draft eligible men to Brandenburg it was the proba bility of a violent reaction occurring against Jews and African Americans as result 32 Brown v. Entertainment Merchants Association the most recent Supreme Court case falling in this category, fits this same mold in that th e harm the government attempted to prevent was not the injury resulting to viewers of the games ( i.e. the video game players), but the harmful acts of the players to others a s a result of the what the players had viewed. 33 Harms of verbal assault (second p erson harm) S econd person harms, or the harm s of verbal assault, occur the utterance rather than what the hearer might do to someone else as result of hearing 34 It is ds are expected to have on the mental state of those 35 Even though the statement in Chaplinsky an image of the type of expression banned by this category, in all real ity, Schauer 31 Schauer, Harm(s) supra note 24, at 98. 32 Schauer, Harm(s) supra note 24, at 98. 33 Schauer, Harm(s) supra note 24, at 98. 34 Schauer, Harm(s) supra note 24, at 101. 35 Schauer, Harm(s) supra note 24, at 101.
105 explains Chaplinsky 36 In R.A.V. v. City of St. Paul and Virginia v. Black for example, the speaker to face re quirement. Moreover, Schauer suggests the harm occurring in Cohen v. California Erznoznik v. City of Jacksonville FCC v. Pacifica Foundation and Hustler Magazine v. Falwell can each be characterized as each involving a harm that is structurally similar t o second person harms even if one is skeptical about the harm actually resulting from the disputed expression. 37 In each of those cases, Schauer suggests xposure to allegedly 38 More recently, t he homosexuality sp eech in Snyde r v. Phelps is characteristic of what Schauer classifies as a person harm 39 name of the tort intentional infliction of emotional distress makes it clear that these are listener harms and not third 40 Although it is arguable that the method through which the Snyder less direct than through many of the hate speech cases, Schauer suggests that, distinctions aside, the: 36 Schauer, Harm(s) supra note 24, at 101. 37 Schauer, Harm(s) supra note 24, at 101. 38 Schauer, Harm(s) supra note 24, at 102. 39 Schauer, Harm(s) supra note 24, at 101 02. 40 Schauer, Harm(s) supra note 24, at 102.
106 distress caused to the Snyder family is of the same structural nature as the distress allegedly cau sed in Cohen Erznoznik and Falwell and almost R.A.V. v. St. Paul and Virginia v. Black victims are not he people who are hurt by what the listeners might do to others, but the listeners themselves. 41 Participant harms (fi rst person harm) Schauer explains that participant harms, though history of speech regulation and the First Amendment have been third party or listener harms are at the heart of concern about child pornography, and the Supreme C 42 Although New York v. Ferber and subsequent opinio ns involving child pornography concern a variety of harms including those stemming from ex the Court stressed was that done to the child participants in 43 According to Schauer: [T] the subsequent litigation about the important difference between child pornography and using actual children and so called virtual pornography makes it clear that the primary harms are the harms done to actual participants in the process of production, harms that, at least in a direct sense, do not require viewers at all. 44 As another example, the animals crushed in the making of the fetish pornography videos in United States v. Stevens constitute the type of unwilling participant harms tha t traditionally fall under this category 45 41 Schauer, Harm(s) supra note 24, at 102. 42 Schauer, Harm(s) supra note 24, at 103. 43 Schauer, Harm(s) supra note 24, at 103. 44 Schauer, Harm(s) supra note 24, at 103 04 (emphasis added). 45 Schauer, Harm(s) supra note 24, at 97.
107 According to Schauer, only when courts begin to understand the nature of har m s the extent of the harms involved, and whether the doctrine should allow any redress 46 Initial Observations m for developing an understanding of the nature of harm stemming from expression in First Amendment opinions. T his typology of speech based harms by focusing on the nature of harm alleged by the government, in addition to the type of expression assessment of the evidentiary burden of proof. As such, it also reviews different types of evidence the Court may weigh in making its constitutional assessment. These observations are based on the preliminary review of certain First Amendment opinions, discussed in the Introduction. Nature of h arm Lochner v. New York 47 decided in 1905, is perhaps the first Supreme Court case to discuss the various government interests that may be at stake when a government decides to legislate. A case of significant constitutional import, although not on First Amendment grounds, Lochner featured a challenge to a New York labor law forbidding bakers to work more than sixty hours a week or ten hours a day. 48 Although the decision 46 Id. at 107. 47 198 U.S. 45 (1905). 48 Lochner Id. overruled in part by Day Brite Lighting Inc. v. State of Mo., 342 U.S. 421 (1952); Ferguson v. Skrupa, 372 U.S. 726 (1963); overruling
108 wrote: There are... certain powers, existing in the sovereignty of each State in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals and general welfare of the public 49 Lochner identified a few of the inte rests the government may allege to justify a law: Yet, it may be safely concluded these are not the only interests that will justify a government interest. Indeed, review of the some of the opinions discussed earlier in this study reveal numerous other interests that may be alleged. For instance, in United State s v. Alvarez Xavier Alvarez was punished under a federal statute prohibiting individuals from lying about receiving a military medal of honor. The harm the government aimed to prevent was dilution of the reputation military system of awarding medals to so ldiers for their bravery. In this sense, the nature of harm could be characterized as harm to a government program In Gertz v. Robert Welch, Inc. the plaintiff brought a suit for libelous statement published in his magazine. Elmer Gertz was punished for his allegedly defamatory speech in the interest of compensating a private individual for damage to his reputation. In other words, the nature of the harm involves an recognized by Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992); not followed on state law grounds by Alabama Power Co. v. Citizens of State, 740 S.2d 371 (Ala. 1992). 49 Lochner, 198 U.S at 53 (emphasis added).
109 producing speech or the nature of harm may not always be asserted in isolation from each other. For instance, in Brown v. Entertainment Merchants Association, the government aimed to prevent the sale or rental of violent video games to minors. T he nature of the harm sought to be prevented in Brown could fall into several categories, including: 1) preventing psychological harm caused to the minors by their interactio n with the violent video games, as well as 2) physical harm potentially caused to an innoc ent person as result In these of these instances, the government sought to prevent injury to minors, which may sometimes appears as its own independent government interest in regulating harm from expression. Thus Brown physical harm; and 3) injury to minors. The natures of harm so far identified by review of the First Amendment case s thus far include, bu t may not be limited to: 1) the health, safety, morals and general welfare of the public; 2) harm to a government program; 3) reputational harm; 4) psychological harm ; or 5) physical harm; and 6) injury to minors. Variety of s peech First Amendment jurisprudence center s on identifying the specific variety or category of expression conveyed. In fact, within several lines of cases, suppression or protection of the expression depends on the classification of the speech involved. The cat egorical prohibition of expression in such instances was often premised solely on the history or tradition of finding that such expression was without social importance or value. For instance, within the obscenity doctrine, the Court upheld the prohibition of obscene material, without providing much clarification of the type of
1 10 expression that fell within this category, based on the number of laws that had previously been enacted banning such material. However, the Court has not always held tight to this im perative. Despite dicta in created an actual malice test when defamatory statements are made about public and private figures about matters of public concern. The test r emoves the outright ban placed on libelous utterances that previously existed under common law. It adopted an even more stringent test in United States v. Alvarez to be applied when false statements are made concerning receipt of a military medal of honor without purpose of monetary or pecuniary gain. or types o f ex pression in different ways. The emphasis placed by the Court in making its determinations regarding the constitutionality of the expression indicates it will likely have some effect on the assessment of the evidentiary burden of proof of harm in First Amendment analysis. As such, this study focuses on the specific type of expression employed to determine its impact on development of an evidentiary burden. The categories used by the Court for labeling expression beyond the First Amendment protected zone do not include all First Amendment opinions. Indeed, in Snyder v. Phelps, the Court chose not to address the Chaplinsky v. New Hampshire opinion, choosing instead to Yet, in an effort to include opinions where the result is n ot only the banning of expression, this study has adopted a classification system that encompasses those
111 categories of speech the Court has identified as going beyond the First Amendment free zone to include opinions favorable to the First Amendment. Chapt er 3 further discusses the classification structure adopted by this study to perform its analysis. 50 Types of e vidence A third factor involves the burden of proof established by the Court for squelching expression. For instance, in Schenck the Court found that circumstantial and obstruction of the war draft was sufficient to uphold his conviction. However, in Brown the majority found that the quantitative/empirical evid ence offered by the social science research studies was not sufficient to prove that violent video games caused harm to minors. Other types of evidence may include: qualitative or anecdotal evidence, which may include unscientific observations or a few rea l world incidents. For instance, anecdotal evidence of harm allegedly caused by playing violent video games might simply entail a list of school shootings from the past decade that were committed by minors who alleged played violent video games. It would s eem to require little direct proof before the speech can be restricted. Ultimately, the goal of this study is to provide clarity to judges in cases involving speech based harms. Specifically, it strives to help judges better focus on the relationship between the nature of the harm in question and the type of evidence and quantity of evidence that must be proved by the government to justify restricting the speech. Chapter 4 examines the thirty eig ht Supreme Court cases selected for analysi s 50 See infra Part 3.B.
112 Incitement to Violence/Unlawful Action Speech that Threatens Hostile Audience Reaction Disclosure of Dangerous Information Schenck v. United States 249 U.S. 47 (1919). Bridges v. California 314 U.S 252 (1941). Cantwell v. Connecticut 310 U.S. 296 (1940). New York Times Co. v. United State s, 403 U.S. 713 (1971). Abrams v. United States 250 U.S. 616 (1919). Watts v. United States 394 U.S. 705 (1969). Chaplinsky v. New Hampshire 315 U.S. 568 (1942). Nebraska Press Association v. Stuart 427 U.S. 539 (1976). Gitlow v. New York 268 U.S. 652 (1925). NAACP v. Claiborne Hardware Co ., 458 U.S. 886 (1982). Feiner v. New York 340 U.S. 315 (1951). Landmark Communications, Inc. v. Virginia 435 U.S. 829 (1978). Whitney v. California 274 U.S. 357 (1927). Gooding v. Wilson 405 U.S. 518 (1972). Dennis v. United States 341 U.S. 494 (1951). Snyder v. Phelps 131 S. Ct. 1207 (2011). Brandenburg v. Ohio 395 U.S. 444 (1969). Figure G 1. Dangerous xpression
113 False Statements of Fact Sexually Explicit and Violent Expression Lewd, Profane and Indecent Expression Hate Speech New York Times Co. v. Sullivan 376 U.S. 254 (1964). Roth v. United States 354 U.S. 476 (1957). Cohen v. California 403 U.S. 15 (1971). Beauharnais v. Illinois 343 U.S. 250 (1952). Gertz v. Robert Welch, Inc ., 418 U.S. 323 (1974). Miller v. California 413 U.S. 25 (1973). Erznoznik v. Jacksonville 422 U.S. 205 (1975). R.A.V. v. City of St. Paul 505 U.S. 377 (1992). Hustler Magazine v. Falwell 485 U.S. 46 (1988). Paris Adult Theatre I v. Slaton 413 U.S. 49 (1973). Young v. American Mini Theatres, Inc. 420 U.S. 50 (1976). Virginia v. Black 253 U.S. 343 (2003). United States v. Alvarez 132 S. Ct. 2537 (2012). New York v. Ferber 458 U.S. 747 (1982). FCC v. Pacifica Foundation, 438 U.S. 726 (1978). Ashcroft v. Free Speech Coalition 535 U.S. 234 (2002) City of Renton v. Playtime Theatres, 475 U.S. 41 (1986). United States v. Stevens 130 S. Ct. 1577 (2010). City of Los Angeles v. Alameda Books 535 U.S. 425 (2002). Brown v. Entertainment Merchants Association 131 S. Ct. 2739 (2011). FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009). Figure G 2. Low v alue e xpression
114 Decade Number of cases per decade List of cases decided in that decade 1910 1919 2 Schenck v. United States Abrams v. United States 1920 1929 2 Gitlow v. United States Whitney v. United States 1930 1939 0 1940 1949 3 Bridges v. California Cantwell v. Connecticut Chaplinsky v. New Hampshire 1950 1959 4 Feiner v. New York Dennis v. United States Roth v. United States Beauharnais v. Illinois 1960 1969 3 Watts v. United States Brandenburg v. Ohio New York Times v. Sullivan 1970 1979 10 New York Times v. United States ( Pentagon Papers ), Miller v. Califonrnia Landmark Communications v. Virginia Gertz v. Robert Welch Erznoznik v. City of Jacksonville American Mini Theatres v. Young Federal Communications Commission v. Pacifica Foundation Cohen v. California Paris Adult Theatre v. Slaton Gooding v. Wilson 1980 1989 5 Claiborne Hardware, Co. v. NAACP City of Renton v. Playtime Theatres Hustler Magazine v. Falwell Nebraska Press v. Virginia Ferber v. New York 1990 1999 1 R .A.V. v. City of St. Paul 2000 2009 4 Ashcroft v. Free Speech Coalition Virginia v. Black Alameda Books v. City of Los Angeles Federal Communications Commission v. Fox Television Stations, Inc. 2010 present 4 Snyder v. Phelps, United States v. Stevens Brown v. Entertainment Merchants Association United States v. Alvarez Total: 38 Figure G 3 Selected U.S. Supreme Court c ases (by dec ade )
115 CHAPTER 4 ANALYSIS Chapter 4 is divided into two p arts. Part A examines Supreme Court o pinions Part B reviews cases involving government low value. The division of the cases into dangerous and low value expression stems from the classification structure adopted by Stone an d colleagues in his First Amendment textbook, The First Amendment discussed in Chapter 3. Dangerous Information While the seminal standard enunciated by the Court under its incitement doctrine the clear and present danger test initially applied only to speech advocating unlawful action, it was later utilized across a broad spectrum of its free speech jurisprudence. T he clear and present danger test initially permitted the Court to determine whether the speech posed a suff icient danger on an ad hoc basis. Ultimately, it reformulated the test to require a greater burden of proof. The current version of the clear and present danger test remains prevalent in the area s of subversive advocacy and incitement to unlawful action T he Court eventually moved a way from it however, invoking a hostile audience reaction It transitioned toward a categorical approach that simply places certain brands of speech beyond First Amendment protection. More modern ju risprudence demonstrates, at leas t within these categories, the Court may be evolving beyond such categorical exceptions to more sophisticated examinations of the well as, increased standards of proof of harm.
116 Part A addr esses standards the Court used in four areas of expression: 1) incitement to unlawful action; 2) speech that threatens; 3) hostile audience reaction; and 4) disclosure of dangerous information. Section 1 sum from Schenck v. United States which established the test for subversive advocacy, to Brandenburg v. Ohio and present danger test. Section 2 reviews threatening s peech in the context of: 1) a common law restriction on contempt statements to ensure the fair administration of justice; 2) a federal criminal statute prohibiting physical threats against the President; and 3) a state law imposing civil liability for econ omic losses suffered as a result of a peaceful, political boycott. Although the fact s appear dissimilar, each involving a distinct the expression despite such asserted compelling interests. Section 3 audience doctrine from early dicta in Cantwell v. Connecticut e stablishing the foundation of a two tier speech valuation to of the First audience doctrine not only recognized but established specific standards of proof to be met before speech could be squelched. The cases encompassed within Section 4 involving th e disclosure of dangerous information all decided within the same decade each weig h the heavy presumption of unconstitutionality placed on stated interests in: 1) national sec urity; 2) a right to fair trial; or 3) the orderly administration of justice. W hile it is fair to say each of these interests existed at the time
117 the First Amendment was ratified, each of these opinions appears to take the First oms seriously. Incitement to Unlawful Action/ Violence When discussing harm and the limits to free speech, a statement that perhaps expression exempt from First Amendment free speech would not protect a man falsely shouting fire in a theatre and causing 1 After all, Schenck v. United States the case explicating this famous maxim, has been called the first important decision involving free speech. 2 Schenck v. United States Schenck involved the conviction of an individual for mailing circulars under a 3 testimony, as well as a book f ound at the headquarters of the Socialist party, of which Schenck was a member. 4 The book revealed a resolution that 15,000 leaflets asserting a right to oppose the draft would be printed for distribution; that additional leaflets had already been mailed t o drafted men; and that Schenck had personally attended to the printing. 5 1 Schenck v. United States, 249 U.S. 47, 52 (1919). 2 Dennis v. United States, 341 U.S. 494 503 (1951). In Dennis Justice classic dictum of Justice Holmes in the Schenck case that speech per se received that emphasis in a Id 3 Schenck 249 U.S. at 52 53 (1919). 4 Id. at 49 (emphasis added). 5 Id. at 49 language...that construction was despotism in its worst form and a monstrous wrong against humanity in the interest
118 6 nor any real harm resulting from its distributi on, it upheld the conviction. It found there was no question that 7 case is whether th e words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent 8 The Court acknowledged in any other context such as durin g peacetime hindrance to its effort that their utterance will not be endured ... 9 The Court viewed the war in the recruiting of forces, as well as the securing of fresh supplies as tantamount in importance to protecting the speech. The only question left for the Court was whether the defendant possessed the requisite mens rea to find him guilty of conspiracy to obstruct the draft. On this question, sent unless it had been intended to have some effect, and we do not see what effect it could be expected to h ave upon persons subject to the draft except to influence them to rights, you are helping to deny or disparage rights whi ch it is the solemn duty of all citizens and residents Id. at 51. 6 Id. at 52. 7 Id at 52 53. 8 Id 9 Id
119 10 Schenck allowing the government to punish the defendant on the basis of mere testimonial evidence, combined with a relaxed inferen ce of intent was seemingly used in a number of subsequent Supreme Court opinions to suppress expression. Since the early twentieth century, the Court has grappled with the problem of determining the bounds of protection afforded to speech advocating unlawf ul conduct. 11 of limited social value and may well lead to significant social harm. On the other hand, regulation of unlawful advocacy has often been employed as a means of suppressing unpopular social ideas and political groups ... 12 In Schenck the Court established the clear and present danger test to measure the limits of speech that advocates anti government action. 13 It allowed the government to punish criminal conduct on the basis of mere testimonial evidence and a relaxed inference of intent, despite a lack of evidence of actual harm arising from publication of the fliers. While the test has largely been constricted to subversive advocacy it was once 14 all content 15 10 Id at 51. 11 Martin Redish, Advocacy of Unlawful Conduct and the First Amendment: In Defense of Clear and Present Danger 70 C AL IF L. R EV 1159, 1159 (1982) [hereinafter Redish, Advocacy of Unlawful Conduct ]. 12 Id. 13 Id. 14 H ARRY K ALVEN J R ., A W ORTHY T RADITION 180 (1988). 15 Id. (emphasis added).
120 and present dange r test, the standard gained prominence as a rationale for prohibiting expression in a number of substantive areas, including obscenity, commercial speech, defamation and offensive speech. 16 While preference of the clear and present danger test in such diver se areas has receded, today it continues to reach into categories such as general advocacy of ideas, speech that provokes a hostile audience reaction, 17 and, in some circumstances, release of information interfering with the judicial process. 18 The language of the test announced by Schenck [es] a judicial attitude 19 After all, Schenck 16 Redish, Advocacy of Unlawful Conduct supra note 11 at 1172 ( emphasis added). 17 This includes the cases involving a hostile audience reaction by the audience against the speaker, such as Cantwell v. Connecticut 310 U.S. 296 (1940), or by different members of the audience against each other, the so Feiner v. New York 340 U.S. 315 (1951). 18 Both Bridges and Nebraska Press Association could be said to involve speech that inte rferes with the judicial process. In Bridges of court but rejected that such a presumption existed in the case. The Court and present danger test, requiring imminence. The Nebraska Press decision involved speech critical of judicial conduct but failed to ado pt a test that required imminence. In Landmark Communications, Inc. v. Virgini a, involving the release of information about a murder suspect, the Court similarly applied the Dennis standard, but questioned the appropriateness of the test in (1978). In New York Times Co. v. United States the Court did not invoke Brandenburg nor di d it adopt the clear and present danger test in the context of the release of true information that causes other harms. The decision produced nine separate opinions, only three of which adopted a standard that would allow suppress speech only on a showing States, 403 U.S. 713, 716 17 (1971) (Brennan, J. concurring); id at 730 (Stewart, & White, JJ., concurring). See Tom Hentoff, Note, Speech, Harm, and Self Government, Understanding the Ambit of th e Clear and Present Danger Test 91 C OLUM L. R EV 1453, 1459 61 (1991) (discussing the types of speech to which the clear and present danger test and its various formulations have been applied). 19 Redish, Advocacy of Unlawful Conduct supra note 11, at 11
121 20 Yet, at the time Schenck was decide d, Holmes had not envisioned clear and present danger as a speech protective doctrine. 21 As demonstrated by Schenck and its progeny, the test 22 It was not until Abrams v. United States 23 decided just a few months later, that Holmes and Justice Louis Brandeis applied the test in a fashion placing greater lim its on government authority to extinguish speech. 24 Abrams v. United States Holmes and Brandeis painted a picture in the ir dissent in Abrams of the clear and present danger test as imposing a stringent standard of proof against which speech should be measured: present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion ... 25 Yet, the majority in Abrams led by Justice John Clarke, failed to apply the clear and present danger test and, instead, upheld 26 Defendant Jacob Abrams was indicted for violating an am endment to the Espionage Act prohibiting conspiracy to advocate curtailment of the production of 20 Redish, Advocacy of Unlawful Conduct supra note 11, at 1168. 21 Gerald Gunther, Le arned Hand and the Origins of Modern First Amendment D octrine: Some Fragments of History 27 S TAN L. R EV 719, 720 (1975). 22 Redish, Advocacy of Unlawful Conduct supra 23 250 U.S. 616 (1919). 24 Id. at 624 31 (Holmes, J., dissenting). See also Gunther, supra note 21, at fall of 1919, with his famous dissent in Abrams v. United States that Holmes put some teeth into the clear and present danger formula at least partly as a result of probing criticism by acquaintances such as 25 Abrams 250 U.S. at 628 (Holmes, J., dissenting) (emphasis added). 26 Id. at 6 24 (majority opinion).
122 materials necessary to the war. 27 The evidenc e consisted of copies of two circulars, one printed in English and one in Yiddish, condemning American intervention in Russia and calling for a general strike. 28 According to portions of the leaflets quoted by Justice hypocritic, military propaganda which has fooled you so relentlessly, calling forth your sympathy, your help, to the pro that ammunition factory workers 29 The Abrams majority refused to apply the clear and p resent danger test, instead opinion in Patterson v. Colorado 30 based only on the circumstantial evidence of the printing of the brochures advocating anti military effo rts. Although the bad tendency test and present danger test in Schenck Justice Clarke applied the bad tendency test in 27 According to the opinion, the defendants were charged in the language of the statute with ... unlawfully to utter print, write and publish: In th e language about the form of government of the United Id. at 617. 28 Id. at 618. 29 Id at 621. 30 205 U.S. 454 (1907) (involving application of the bad tendency to uphold contempt charges against a newspaper publisher who accused Colorado judges of acting on behalf of local utility companies).
123 Abrams intended and t o be accountable for, the 31 Under the bad tendency test, a restriction on freedom of expression is permitted if it is believed that speech has a sole tendency to incite or cause illegal activity. A defendant 32 speech and any harm stemming from the speech based on only a single, if even tangential, likelihood of t he expression to result in a negative consequence. Intent is inferred from the tendency of the speech itself, on a theory that one intends the natural The defendants in Abrams vent injury to the purpose an d intent was only to aid in the Russian an of action the 33 Under the test, there was no conclusion but for the uade the persons to whom it was addressed to turn a deaf ear to patriotic appeals in behalf of the 31 Id. (emphasis added). 32 See e.g ., Schaefer v. United States, 251 U.S. 466 (1920). Schae fer reflects the then prevailing view of the lower federal courts that speech could constitutionally be punished as an attempt to cause some forbidden or otherwise undesirable condu ct under the bad tendency test if the natural and reasonable tendency of the expression might be to bring about the conduct, and if the speaker intended such a result. Id 33 Abrams 250 U.S. at 621.
124 government of the United States, and to cease to render it assistance in the prosecution 34 Upon such a conclusion, the Court found the remaining question of law was 35 ... tending to prove that the de fendants were 36 The combination of the constructive intent and bad tendency doctrines in decisions like Abrams was routinely used in cases involving attempts to cause insubordination and obstruction of recruiting throughout the era of Es pionage Act prosecutions. 37 Schenck to Abrams is the subject of much speculation. 38 Although their dissenting statement of the clear and present 34 Id. at 620. 35 Id 36 Id at 624. 37 For detailed accounts of this era, see e.g ., G EOFFREY S TONE P ERILOUS T IMES : F REE S PEECH IN W ARTIME 135 234 (2004); Z ECHARIAH C HAFEE F REE S PEECH IN THE U NITED S TATES 36 108 (1941); and David Rabban, The Emergence of Modern First Amendment Theory 50 U. C HI L. R EV 1205 (1983). As opposed to the test proposed in Schenck the bad tendency test has been said to focus on the content of the speech rather than the intent of the speaker. Under the Hand/bad tendency test, the dispositive factor was whether the speaker empl oyed direct words of incitement. See Gunther, supra note 21, at 720. Abrams Whitney and Gitlow the bad tendency test affords little to no protection to express advoca cy of criminal conduct. 38 Most commentators have concluded Justice Holmes moved from a narrow construction of the First Amendment in Schenck to a more civil libertarian position in his dissent in Abrams following a summer of Hand, Zechariah Chafee and Harold Laski. See e.g ., S TONE P ERILOUS T IMES supra note 37, at 198 211; Rabban, supra note 37, at 1208 09. Judge Learned Hand, however, supra note 21, at 749. For a defense of the clear and present danger test, see generally Martin Redish, Advocacy of Unlawful Conduct supra note 11. While Judge Learned Hand viewed express a dvocacy of law violation as outside First Amendment protection, Justice Holmes clearly thought otherwise. See Vincent Blasi, Holmes and the Marketplace of Ideas 2004 S UP C T R EV 1, 39.
125 danger test appeared unequivocal, commentators have conjectured Holme s and 39 Interestingly, both the majority and the Holmes Abrams relied on Schenck but seemed divided on their views of the evidence. 40 Unli ke the majority, Holmes seemed to believe that specific intent and probable effect could not be reasonably inferred fr om the content of the articles. In Abrams were involved and that such evil against which the statute aimed: 41 When words are used exactly, a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed ... he does not do the act wi th intent to produce it unless the aim to produce it is the proximate motive of the specific act although there may be some deeper motive behind. 42 requirements of the statu te prohibiting obstruction of the draft. 43 The opinion also specific act, and not some tangential motive as was accepted by the majority. 44 Apparently, Holmes thought this standard was not satisfied by the facts of the case, 39 Dennis v. United St ates, 341 U.S. 494, 504 (1951). 40 Id. at 535. 41 Abrams suggestion of conduct that would have interference with the war as an indirect and probably undesired effect seems to me by no means enough to show an attem 42 Id at 627 (Holmes, J., dissenting) (emphasis added). 43 Id. at 628 (Holmes, J., dissenting). 44 Id. at 627 (Holmes, J., dissenting).
126 an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to 45 In doing so, the dissent rejected the sufficiency of the circumstantial evidence on which the majority relied. Yet, even this statement tend 46 Mor although he did not find present the very specific intent that he thought was required for a violation of the statement[, it] nonetheless reveals both his willingness to equate the exercise of pure speech wit h a criminal attempt and his unsupported equation of the presence of an intent to accomplish a harm with an increase in the likelihood of that harm. 47 In sum, even after it appeared Holmes began to take the meaning of the test he had formulated seriously, h is Abrams dissent indicated a standard that would likely protect widespread suppression of expression under a showing of only a mere possibility of harm. 48 It was not unt the clear and present danger test regained majority acceptance. Even then, critics heavily contest whether it provided a stringent enough First Amendment standard for 45 Id at 628 (Holmes, J., dissenting). 46 Redish, Advocacy of Unlawful Conduct supra note 11 at 1169. 47 Id. 48 Id.
127 speech posing no imm afforded the Court the opportunity to judge the const itutionality of speech on an ad hoc basis. Gitlow v. New York Gitlow v. New York 49 Gitlow involved a conviction for distributing a radical manifesto under a New York law directly 50 Benjamin Gitlow, a member of the Left Wing of the Socialist Part, was arrested and indicted by the trial court for publishing and Wing. 51 52 Gitlow argued because there was no evidence of any effect resulting from the publication and circulation of the Manifesto, the statute punished utterances without propensity to incite to concrete unlawful action. 53 The New York courts had determined 49 268 U.S. 652 (1925). 50 Id at 654. 51 Id at 655. 52 Id. at 655 56. 53 Id [T]here was no evidence of any concrete result flowing from the publication of the Manifesto or of circumstances showing the likelihood of such result, the statute ... penalizes either to the circumstances of its utterance or to th e likelihood of unlawful sequences; and that, as the exercise of the right of free expression with relation to government is only contravenes the due process clause of the Fourteenth Amendment. Id
128 anyone who advocated violent revolution, absent any evidence of actual viol ent reaction, violated the law. 54 While Schenck applied of the clear and present danger test to words themselves under an admittedly valid law, there was no claim in Gitlow decided six years later, the law itself was invalid. The majority found the facts in Gitlow posed a different question: whether the legislature acted reasonably in prohibiting a certain type of speech it alleged was harmful and unlawful. 55 It failed to ap ply the clear and present danger test to a statute aimed expressly at speech where the legislature determined the danger of a substantive evil arising from utterances of a specific character. 56 Instead, the Court 54 Id at 662 government is crippled, the administration of justice paralyzed, and the health, morals and welfare of a community endangered, and this for the purpose of bringing about a revolution Id. at 663. The Court continued by quoti ng another appellate court opinion: academic and harmless discussion of the advantages of communism and advanced on and advocacy of action by one class which would destory (sic) the rights of all other classes and overthrow the state itself by use of revolutionary mass strikes. It is true that there is no advocacy in specific terms of the use of * force or violen ce. There was no need to be. Some things are so commonly incident to others Id 55 The Court observed, statutes may only be declared unconstitutional where they are arbitrary o r Id. at 668. 56 Id. at 670 71. According to the Court: It is clear that the question in such cases is entirely different from that involved in those cases where the statute merely prohibits certain acts involving the danger of substantive evil, without any reference to language itself, and it is sought to apply its provisions to language used by the defendant for the purpose of bringing about the prohibited results. T here, if it be contended that the statute cannot be applied to the language used by the defendant because of its protection by the freedom of speech or press, it must necessarily be found, as an original question, without any previous determination by the legislative body, whether the specific language used involved such likelihood of bringing about the substantive evil as to deprive it of the constitutional protection. In such cases, it has been held that the general provisions of the statute may be consti tutionally applied to the specific
129 deferred to legislative judgment of the harm ful potential of the proscribed words, framing 57 The State cannot be reasonably required to measure the danger from every revolutionary spark may kind le a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration ... It cannot reasonably be required to defer the adoption of measures for its own peace and safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent or immediate danger of its own destruction; but it may, in the exercise of its judgment, suppress the threatened danger in its incipiency. 58 In Gitlow the Court applied a standard of broad deference to the state to determine the type of speech that could be worthy of criminal sanction. The test adopted by the majority required even less evidence unlawful a ction than circumstantial evidence of a printed flier. As construed by the New York courts, defendant Gitlow could have been convicted without the publication of any Communists manifesto; he had only to advocate violent revolution through the use of speech to be convicted. utterance of the defendant if its natural tendency and probable effect was to bring about the substantive evil which the legislative body might prevent ... And the general statement in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they upon which great reliance is placed in the defendant's argument was manifestl y intended, as shown by the context, to apply only in cases of this class, and has no application to those like the present, where the legislative body itself has previously determined the danger of substantive evil arising from utterances of a specified c haracter. Id. 57 Id. at 657. 58 Id at 669 (emphasis added).
130 Meanwhile, Justices Holmes and Brandeis continued to adhere to a more speech protective view than the majority in Gitlow 59 They refused to defer to legislative judgment, insisting it was for the judiciary to determine in each and every in stance 60 This dictum represents the first time the Court acknowledged its ability to review the facts of a case to ent freedoms guaranteed to individuals under the Fourteenth Amendment. 61 In their concise dissent, Holmes and Brandeis found the facts alleged nothing 62 overthrow the govern ment by force on the part of the admittedly small minority who 63 Paying homage to the protection of freedoms guaranteed under the First Amendment, the dissent contended: Every idea is an incitement. It offers itself for belief and if believed it acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an enthusiasm for the result. Eloquence may set fire to reason. But whenever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. 64 59 Id at 672 73 (Holmes, J., dissenting). 60 Id at 672 (Holmes, J., dissenting). 61 Id. (Holmes, J., dissenting). 62 Id at 673 (Holmes, J., dissenting). 63 Id (Holmes, J., dissenting). According to an attempt to induce an uprising against government at once and no at some indefinite time in the future it would have pr Id This once against supports Holmes requirement of immediacy of harm required in prior opinions. 64 Id. (Holmes, J., dissenting).
131 They found the evidence presented in Gitlow the mere language of the Manifesto, criticizi ng the government and calling for a revolution was insufficient to support a conviction. 65 Whitney v. California Two years later the Court ag ain analyzed speech under a bad tendency standard in Whitney v. California 66 Anita Whitney was charged and convicted under a California Syndicalism Act that made it a felony for any person to knowingly be a member of any organization that engages in unlawful activity. 67 Unlike prior cases, which punished individuals for personally engaging in prohibited expression, Calif ornia now attempted to punish Whitney for association. abuse [the freedom of expression] by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized government and threaten its ov erthrow by unlawful means... 68 Under a standard of deems an existing evil .. where experience shows it to be most felt... 69 According to Justice Edward Sanford, who wrote for the majority: By enacting the provisions of the Syndicalism Act the State declared, through its legislative body, that to knowingly be or become a member of or assist in organizing an association to advocate, teach or aid and abet the commission of crimes or unlawful acts of force, violence or 65 Id at 672. (Holmes, J., dissenting). 66 274 U.S. 357 (1927). 67 Id 68 Id at 371. 69 Id. at 370.
132 terrorism ... involves such danger to the public peace and the security of the State, that these acts should be penalized in exercise of its police power. That determination must be given great weight. 70 Although Whitney argued she had no knowledge of the unlawful character and purpose of the organization, the Court permitted the legislature to punish Whitney on an inference Whitney is perhaps most notable for its concurrence in which Justice Brandeis gave a strong defense of free speech. 71 A 72 of serious injury cannot alone justify suppression of free speech and assembly ... To justify suppression of free speech there must be reasonable ground to fear that serious evil will result... 73 Although Brandeis recognized the rights of free speech and assembly are not absolute, he argued thei restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or moral 74 According to Brandeis, only clear, present and imminent thr Even imminent danger cannot justify resort to prohibition of these functions essential to effective democracy, unless the evil apprehended is relatively 70 Id. at 371. 71 Id at 372 (Brandeis J., concurring). 72 Id. at 374 (Brandeis J., concurring). 73 Id at 376 (Brandeis J., concurring). 74 Id at 373 (Brandeis J., concurring) (emphasis added).
133 serious ... The fact that speech is likely t o result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the State. 75 When it came to expression deemed dangerous, threatening or harmful, much less than 76 Justices Holmes and Brandeis concurred in Whitney but apparently only because the defendant failed to argue her activity did not pose a clear and present danger of harm. 77 They found the rec ord, contrary to earlier opinions, contained at least some evidence that organization of the Communist Labor Party might result in 78 In the present cases, however, there was other testimony which tended to esta blish the existence of a conspiracy, on the part of the members of the International Workers of the World, to commit present serious crimes, and likewise to show that such a conspiracy would be furthered by the activity of the society of which Miss Whitney was a member. Under these circumstances the judgment of the State court cannot be disturbed. 79 75 Id at 378 (emphasis added). 76 Id 77 Id at 372 74 (Brandeis & Holmes, JJ., concurring). The concurrence recognized that while the legislative declaration satisfies the requirement of the Constitution of the state emergency legislation ... it does not preclude inquiry into the question whether, at the time and under the circumstances, the conditions existed which are essential to validity under the federal Constitution ... whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to a defendant to present the issue wh ether the danger, if any, was imminent, and whether the evil apprehended was one so substantial as to justify the stringent restriction imposed by the Legislature. Id. at 379 (Brandeis & Holmes, JJ., concurring). 78 Id (Brandeis, J., concurring). 79 Id. (Br andeis, J., concurring).
134 In the quarter century between Whitney and Dennis v. United States 80 the Court embracing clear and present danger as the appropriate standard for a wide range of First Amendment issues. 81 These incl uded speech provoking a hostile audience rea ction 82 and contempt by publication. 83 In the cases that followed, the clear and present danger test garnered majority acceptance, but it had been so altered in its application, it is questionable whether it remained the same test, except in name only. 84 Denn is v. United States Fears over national security arose during the Cold War era, resulting in several prosecutions under the Es pionage Act and the Smith Act of 1940 in the 1950s, a period during which protection for First Amendment free speech was arguably at its nadir. 85 The first of these cases was Dennis decided in 1951. 86 In Dennis the defendants, leaders of the Communist Party of America, were arrested and indicted under the Smith Act, which made it a felony to conspire to advocate overthrow of the federal government by force or violence. 87 The trial lasted 80 341 U.S. 494 (1951). 81 Redish, Advocacy of Unlawful Conduct supra note 11, at 1171. 82 See Cantwell v. Connecticut, 310 U.S. 296 (1940). 83 See Bridges v. California, 314 U.S. 252 (1941). See a lso Frank R. Strong, Clear and Schenck to Brandenburg and Beyond 1969 S UP C T R EV 41. 84 Hentoff, supra Dennis abandoned the key imminence requirement, a strong case can be made that the Dennis formulation was a clear and 85 See T RIBE supra note 43, at 854. 86 Id 87 Dennis 341 U.S. at 497
135 88 The judge instructed the jury not to hold the defendants guilty unless they fou nd the leaders of the Communist party had specific, unlawful intent 89 the defendant Communists intended a violent revolution whenever the propitious 90 whether sufficient or, indeed, any evidence of criminal wrongdoing had been introduced at tria l. 91 Although the Court noted the prevention of acts intended to 92 it found the repudiation of its opinions in Whitney and Gitlow required it to apply the clear and present danger test rather than defer to legislative judgment. 93 88 Id. 89 Id at 499. 90 Id at 497. 91 Id at 581 (Douglas, J., dissenting). According to Douglas: If this were a case where those who claimed protection under the First Amendment were teaching the techniques of sabotage, the assassination of the President, the filching of documents from public files, the planting of bombs, the art of street warfare, an d the like, I fact is that no such evidence was introduced at the trial Id. (emphasis added). See also Marc Rohr, Communists and the First Amendment: The Shaping of Freedom of Advocacy in the Cold War Era, 28 S AN D IEGO L. R EV 1, 47 48 (1991 ) (discussing the lack of evidence in Dennis under which the defendants were convicted). 92 Dennis 341 U.S. at 509 (majority opinion). 93 S ee id Whitney and Gitlow have expressly overruled the majority opinions in those cases, there is little doubt that subsequent opinions have inclined toward the Holmes
136 Justice Fred Vinson, writing for the plurality, applied the clear and present that a shorthand phrase ... be crystallized into a rigid rule to be applied inflexibly without regard 94 cannot mean that before the Government may act, it must wait until the puts ch is about 95 Justice Vinson and present opinion below, finding the proper interpretation e (courts) must ask whether the gravity of the its improbability, justifies such invasion of free speech as it necessary to avoid the 96 The Court determined the mere fact that resulted in an a 97 The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when th e leaders, these petitioners, felt that the time h ad come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch and go nature of our relations with countries with whom petitioners were in t he very least ideologically attuned, convince us that their convictions were justified on this score. 98 eby they 94 Id. at 508. 95 Id. at 509. 96 Id at 510 (quoting United States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950)). 97 Id. 98 Id. at 511.
137 99 Whether such a danger existed was not based on the success or probabilit y of success of the attempt, but it 100 The C ourt reasoned 101 It 102 103 Following Dennis many First Amendment scholars and jurists thought the clear and present danger test was obsolete or no longer protected speech. 104 Dennis had so diluted the Holmes/Brandeis for mulation of the clear and present danger test that a 105 the independent requirements of im minence and probability. It replaced that formula 99 Id at 509. 100 Id at 511. 101 Id at 509. 102 Id. at 511. 103 Id at 517. 104 See, e.g ., Brandenburg v. Ohio, 395 U.S. 444, 454 (1969 ) ( Douglas, J., concurring ) ( Dennis out political trial Alan E. Fuchs, Steps Toward A G eneral Theory of the First Amendment 18 W M & M ARY L. R EV 347 366 n.71 (1976) ( Dennis Nebraska Press Association : An Expansion of Freedom and Contraction Theory 29 S T AN L. R EV 431, 431 (1977 ) ( Dennis ught to represent the nadir of F irs t A 105 Redish, Advocacy of Unlawful Conduct supra note 11, at 1172.
138 with one measuring the gravity of the harm against its likelihood of occurring, so that the 106 Brandenburg v. Ohio Eventual ly, calmer times prevailed and the Court backed away from its Dennis standard until it reformulated the test in its 1969 Brandenburg v. Ohio 107 opinion Brandenburg decided eighteen years after Dennis involved a Ku Klux Klan rally, featuring hooded figures gathered around a burning cross. 108 Clarence Brandenburg, dressed in full Klan regalia, gave a speech that included derogatory comments against blacks and Jews. 109 Brandenburg said: today wh ich are we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus Ohio Dispatch, five weeks ago Sunday morning. The Klan has more members in the state of Ohio than does any other organizatio revengent (sic) organization, but if our President, our Congress, our marching on Congress July the Fourth, four hundred thousand strong. From there we are dividing into two groups, on group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you. 110 With the cooperation of the organizers, portions of the film were broadca st on the local television station and on a national network. 111 106 Redish, Advocacy of Unlawful Conduct supra note 11, at 1172. 107 395 U.S. 444 (1969). 108 Id. at 446. 109 Id. 110 Id. 111 Id at 445.
139 Brandenburg was convicted under an Ohio criminal syndicalism statute that looked much like the one in Whitney 112 This time, however, the Court found the statute failed to distinguish mere advoca cy, such as the teaching of adverse doctrine, from true incitement to imminent lawless action 113 The Court applied a two pronged test for evaluating speech acts, holding that speech can be prohibited only when it is: 1. 2. 114 finding despite the offensiveness of his expression, he had engaged only in protected speech. 115 Althou gh Brandenburg mysteriously cited to Dennis to support its understanding of proper analysis, the new test appeared nothing like the one in Dennis 116 Central to the Brandenburg test is a requirement that the harmful consequences arising from 112 Clarence Brandenburg was convicted under the Ohio Syndicalism statute in the words of the statute, terrorism as a means of accomplishing industri any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal Id. at 445 (quoting O HIO R EV C ODE A NN Â§ 2923.13 (1919)). As the Court acknowle dged, Id. at 447. 113 Id at 4 47 Id. at 448 49. 114 Id. at 447 [T]he principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce See also Redish, Advocacy of Unlawful Action supra not opinion refer to the clear and present danger test by name, but is appeared to incorporate its meaning 115 Id. at 448 49. 116 Redish, Advocacy of Unlawful Conduct supra Brandenburg followed the Dennis
140 speech be both: 1) imminent ; and 2) grave before the speech can be restricted. 117 The Brandenburg imminence element has been interpreted to require not only that the threat before the speech may be abridged. 118 While numerous varieties threshold req uirement compels speech to rise to a certain level before the clea r and present danger test can be invoked to restrict speech. 119 While Holmes and Brandeis would seemingly require that violence, and only serious violence, could satisfy the test, 120 the Brandenburg 121 It is uncl ear, however, whether harm short of violence would justify speech restriction under the Brandenburg test. 122 As to intent, early proponents of the clear and present danger test appeared to bring about unla wful conduct with a reduced showing the harm would actually come about. 123 In other words, either a finding and present or intent to bring it about would justify suppression of expression. Brandenburg ratcheted up the First Amendment standa rd by adding an 117 Hentoff, supra note 18, at 1455. 118 Bridges v. California, 314 U.S. 25 2, 263 (1941). 119 Hentoff, supra note 18, at 1458. 120 In Abrams for instance, Holmes declared that advocacy of dangerous ideas can be suppressed only save the country Abrams 250 U.S. 616, 630 (Holmes, J. dissenting) ( emphasis added). 121 Hentoff, supra note 18, at 1459. 122 Hentoff, supra note 18, at 1459 n.41 (citing Hess v. Indiana 414 U.S. 105, 109 (1973), as supporting Brandenburg gravity element). 123 Redish, Advocacy of Unlawful Conduct supra note 11, at 1177.
141 punished. 124 This means that even if both requirements of imminence and gravity of harm are met, the state must also prove intent. 125 The independent requir ement of a finding of intent provides greater speech protection since it is only actual harm that justifies such suppression. Summary The incitement doctrine can largely be divided into cases concerning two varieties of expression: 1) speech advocating overthrow of military operations during wartime conditions, such as targeted by the Espionage and Smith Act convictions; and 2) speech inciting violence, force or law less action to bring out political and government reform, at the heart of criminal syndic alism statute s The test applied to both of these areas is the clear and present danger test, announced by Justice Holmes in Schenck Although the test enunciated by Holmes and Brandeis did not initially provide a rigorous standard against which First Amen dment speech should be judged, they switched sides to advocate a more stringent level of First Amendment protection for speech advocating overthrow of organized government. 124 Brandenburg 395 U.S. at 447. See Redish, Advocacy of Unlawful Conduct supra note 11, at 1179, n.88. See also John Rothchild, Menacing Speech and the First Amendment: A Functional Approach to Incitement that Threatens 8 T EX J. W OMEN & L. 207, 211 (1999) (discussing the elements of the Brandenburg incitement test). 125 A lthough the Brandenburg formulation adds a requirement of a finding of intent and does not use the me, it contains the key elements of the test and thus can be treated as such. See, e.g ., Thomas I. Emerson, First Amendment Doctrine and the Burger Court 68 C AL IF L. R EV 422, 436 (1980); Martin H. Redish, Advocacy of Unlawful Conduct supra note 11 at 1185 Brandenburg and it is a view that seems entirely correct as simply a protectionist But see Greer v. Spock, 424 U.S. 828, 863 (1976) (Brennan, J., dissenting ) ( citing Brandenburg Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis 88 H ARV L. R EV 1482, 1490 93 (1975 ) (arguing that Brandenburg s categorical test is different from the clear and present danger test ).
142 In Schenck the Court upheld an Espionage Act conviction under the clear and presen t which intent could be inferred. In Abrams the Court upheld a criminal conviction under an amendment to the Espionage Act prohibiting incitement of resistance to the war effort based on language used in the pamphlets. The Court found, under a bad t endency standard, the record presented at least some evidence with which to uphold the conviction and that the individuals could be presumed to have intended and be held accountable for the consequences of their acts. In Gitlow the question was not one of sufficiency of evidence, but whether the legislature had properly enacted a statute prohibiting speech it appraised to be a deferential standard it found the state was within its police power to punish the publicatio n of a manifesto advocating fascist principles, despite a lack of a finding of any evidence of harm originating from the manifesto. The in Whitney Although Dennis applied the clear and present sliding actually applied appeared to require much less than a clear and present danger standard. Under Dennis the Court did not make any detailed findings. 126 Despite Justice Vins 126 Dennis U.S. 341 U.S. 494, 516 (1951).
143 127 ion for a legislative judgment that the conspiracy now 128 Furthermore, despite the trial evidence of specific unlawful intent, it is questionable whether the Court req uired such a requirement given the uncertainty that any evidence of intent or more generally any evidence at all of criminal misfeasance had been produced at trial. In the cases involving advocacy of criminal anarchy or overthrow of government operation d iscussed above the Court upheld the convictions under a standard akin to flowing from the expression. The content of the speech, such as the language used, was often su and present The Court appeared to set a standard that advocacy of overthrow of organized government in wartime and specifically, advocacy of Communist and fascist principles is so dangerous that it would always outweigh any First Amendment arguments for its protection. On the opposing side the Court applied a highly speech protective standard for First Amendment expression in Brandenburg involving expression inducing unlawful conduct. Bran denburg resurrected the clear and present danger test, while also providing the most speech protective means for determining the level of constitutional 127 Id at 587. 128 Id at 542. But see id judicial review of legislative, I cannot agree that the First Amendment permits us to sustain laws s to littler more
144 protection afforded to incitement to unlawful action. 129 It is the v ersion of test that is applied today. Although the original formulation of the clear and present danger test did Brandenburg immediate unlawful action, combined with its pre Dennis standard of punishing only 130 131 132 establishes a difficult standard by which government can justify regulation of speech. 133 requirement of an imminent and serious 134 evil decreases the chances a court could scale test would presumably allow. 135 The Dennis convictions were eventually overturned 136 But the Court has not since applied Brandenburg to speech advocating overthro w of government during wartime. This raises the inq uiry whether Brandenburg would apply in such a situation or 129 Gunther, supra Brandenburg is the most protective standard yet evolved by the See also Hentoff, supra Brandenburg to rest Privacy Tort 68 C ORNELL L. R EV 291, 318 (1983) (describing the Brandenburg 130 Gitlow v. New York, 268 U.S. 652, 671 (1925). 131 Bridges v. California, 314 U.S. 252, 263 (1941). 132 justify resort to prohibition of these functions essential effective democracy, unle ss the evil apprehended is relatively serious 133 Redish, Advocacy of Unlawful Conduct supra note 11, at 1177. 134 See Hentoff, supra note 18, at 1458 49 (explaining that the gravity of the harm element of the Brandenburg test is perhaps the most undefine d and inconsistent element, apparently allowing abridgement of speech if the speech causes a mere breach of the peace or if it interferes with the administration of justice, or even with traffic). 135 See Hentoff, supra under the test, speech cannot be prohibited, no matter how serious the harm is, unless the harm is imminent). 136 See Yates v. United States, 354 U.S. 298 (1957) (overturning the Dennis convictions under a finding the Smith Act violates the First Amendment).
145 whether the Court would revert to its historical sliding scale formulation. It has also incitement to unlawful action cases, thus leaving the boundaries of the doctrine open to uncertainty. Section 1 g incitement to unlawful action, including its pronouncement of t he clear and present dange r test. This test appear s several times throughout other areas of expression within the Supreme such as within the doctrine of Speech that Threatens Incitement to illegal action, although central to the First Amendment, is only one of the types of governmental efforts to suppress speech because it conflicts with competing social, individual or governmental interests. The statutes at issue in this sequence of cases involve attempts to regulate pure spe ech because of its tendency to statute ... which makes criminal a form of pure speec h must be interpreted with the 137 clear and present danger test to subversive advocacy. Yet, its evolution away from within the context of threatening speech perhaps makes been committed. Thi s can be compared to incitement to unlawful action and speech 137 Watts v. United States, 394 U.S. 705, 707 (1969) (per curium).
146 provoking a hos tile audience reaction, another variety of expression in which the Court first applied the clear and present danger test. These brands depend on some immediate, violent reaction by the hearer: 1) against a third party (incitement); or 2) back at the speake r (hostile audience reaction). The Court first applied the clear and present danger test within its threatening speech doctrine to publication of contempt statements. Bridges v. California Bridges v. California 138 arose from litigation between two rival unio ns. 139 While a motion for a new trial was pending, Harry Bridges, president of the union against whom the trial judge had ruled, published a copy of a telegram he had sent to the U.S. gesting that, if the decision was enforced, his union would call a strike that would tie up the port of Los Angeles. 140 The trial judge found Bridges guilty of out of court contempt. 141 Declaring the clear and present ce in a great variety of cases in which the scope of constitutional protections of freedom of 142 the U.S. Supreme Court applied the test for the first time in Blac k determined to punish if they tended to interfere with the fair and orderly administration of justice in a 138 314 U.S. 252 (1941). 139 Id. at 271 72. 140 Id at 275 77. 141 Id. at 258. 142 Id at 262.
147 pending case. 143 Unlike both Whitney and Dennis however, the Court found the 144 Instead, ish common law. 145 While the Court noted a statute comprising a legislative declaration that out of court contempt statements created a clear and und the statute did 146 The Court reasoned that ... bringing about the substantive evil as to deprive (them) of the constitutional protection. 147 Justice Black found the clear and present substantive evil must be extremely serious and the de gree of imminence extremely high before the utterances can be punished. 148 He held, annoyance into substantive evils of sufficient weight to warrant the curtailment of liberty 143 Id at 259. 144 Id at 260 61. 145 Id at 260. 146 Id 147 Id. 148 Id at 263 (emphasis added).
148 149 upon any fair construction, [its] possible influence on the course of justice can be dismissed as negligible, and that the Constitu tional compels us to set aside the 150 The Court held, the Times editorials did not include threatening speech, they had done 151 and could not be taken as a threat by Bridges or the union to follow an illegal course of action. 152 Moreover, th e dangers attributed to the telegram and the editorials by the trial court were neither and present danger. 153 telegram, thus, w as simply an exercise of his First Amendment right to petition the government. 154 and present danger test within its incitement doctrine to suppress expression without any evidence of injury aris ing from the speech, Bridges a pplied a speech expression. Yet, the decision demonstrates its disposition toward deference to judicial decisionmaking, had there been any, in determining whether a government speech restriction could be upheld. 149 Id. (citing Schneider v. State, 308 U.S. 147 (1939)). 150 Id. at 274 75. 151 Id at 274. 152 Id at 277. 153 Id. 154 Id.
149 Watts v. United States The next time the Co urt addressed threatening speech was after the Court established its two tier valuing of free speech in Chaplinsky v. New Hampshir e. 155 Chaplinsky category of expression outside First Amendment protection. 156 In Watts v. United States 157 Roberts Watts was convicted under a federal statute 158 ... [make] any threat to take the life of or to inflict bodily 159 He was indicted for making a statement at a public rally held in 1966 on Washington Monument grounds to discuss police brutality. 160 already received my draft classification as 1 A and I have got to report for my physical this Monday coming. I am not going ... If they ever make me carry a rifle the first man I want to get in 161 Although Robert Watts argued the statement did not constitute a threat under the statute, the U. S. Court of Appeals for the District of Columbia rejected 155 315 U.S. 568 (1942). 156 See infra notes 230 45 and accompanying text (discussing the Chaplinsky doctrine). 157 394 U.S. 705 (1969) (per curium). 158 18 U.S.C. Â§ 871 (1917) stated: Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, prin t, missive, or document containing any threat to take the life of or to inflict bodily harm upon the President of the United States the President elect, the Vice President or other officer next in the order of succession to the office of President of the United States or the Vice President elect, or knowingly and willfully otherwise makes any such threat against the President, President elect, Vice President or other officer next in the order of succession to the office of President, or Vice President ele ct, shall be fined not more than $1,000 or imprisoned not more than five years, or both. 159 Id. 160 Watts 394 U.S. at 706. 161 Id
150 this argument, finding the statement violated the statute even if Watts had no intention of carrying it out. 162 Watts unprotected speech. Although it failed to cite Chaplinsky Watts another exception. The Court observed, the gove rnment undoubtedly has a valid if not an ove rwhelming interest in protecting the physical safety of its Chief Executive 163 but a statute prohibiting threats against the President of the United States must distinguish 164 While Watts determine d 165 it held it did 166 Yet, it failed to clearly define the category o f unprotected speech designated 167 Watts neglected to provide much guidance for determining when speech could be jettisoned from the First Amendment protected zone beyond identifying several Watts f statement constitutes political hyperbole; 2) the context of the statement; 3) its conditional nature; and 4) the reaction of the listeners. 168 162 Id. at 707. 163 Id 164 Id 165 Id. at 708. 166 Id. 167 Id 168 Id. at 707 08.
151 Applying those factors, the Court first recognized the political backdrop of t he rally. 169 It cited New York Times v. Sullivan 170 for the principle t issues should be uninhibited, robust, and wide open, and ... may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public offici 171 Given the express laughter after hearing it the Court d statement was protected speech. 172 Brandenburg Robert 173 In a brief discussion, the Court acknowledged 174 Yet, it sum 175 holding speech did not fall into the ca The Chaplinsky in which the Court rejected called fighting words n unprotected 169 Id. 170 276 U.S. 254 (1964 ). 171 I d. at 270. 172 Watts 394 U.S. at 707. 173 Id 174 Id at 707. 175 Id at 708.
152 speech category its 176 While the Court has never explicit ly applied the Watts factors to any subsequent case involving examination of threatening speech, NAACP v. Claiborne Hardware, Co. 177 the next case in this categ ory, at least demonstrates an emphasis on the 178 or the circumstances surround ing the speech, to determine its meaning and, th us whether it should be protected. NAACP v. Claiborne Hardware, Co. In Claiborne Charles Evers, field secretary of the NAACP in Mississippi, made several speeches before a group of supporters in Claiborne County, Mississippi. 179 He threatened violence against NAACP members that shopped at stores owned by white merchants. 180 The group had voted to boycott white merchants in the area after officials rejected a list of particularized demands for equality and integration. 181 In his speeches, Evers made several threatening comments to Claiborne County th 176 Paul T. Crane, 92 V A L. R EV 1125, 1130 (2006). 177 458 U.S. 886 (1982). 178 Ely, supra note 125, at 1493 n.44. While consideration of the tial determination of the unprotected category, a and present danger or ad hoc balancing depends on the actual or anticipated behavior of the audience in response to it. Ely, supra note 125, at 1493 n.44. 179 Claiborne 458 U.S. at 902. 180 Id. at 902. 181 Id at 900.
153 182 The most prevalent way 183 The names were read 184 The trial bo ycott violators during a five year period. 185 Several merchants filed suit to recover losses caused by the boycott and to enjoin future boycotts. 186 In a unanimous opinion, the Court reversed the heavy fines imposed on Evers, the NAACP and several other Africa n American citizens. 187 Claiborne held that while violence and threats of violence are not protected by the First Amendment, 188 Evers it may embarrass others or coerce them 189 According to the Court, coercive 182 Id. at 902. 183 Id at 903. 184 Id 185 Id at 904 06. 186 Id at 899 under the tort of malicious interference with business; 2) under a statute prohibiting secondary boycotts; and 3) under an antitrust statute. The distri ct court rejected the imposition of liability under the statutes but upheld the tort claim. The Mississippi Supreme Court upheld liability for interference, but augmented the the boycott, and thus that the entire boycott was unlawful, even though it did not cite the specific evidence linking the participants to the agreement. Id. at 890 96, 895 n.15. 187 Id. at 890 92, 934. 188 Id. at 917 18, 925 26. 189 Id at 910.
154 and intimidating speech does not lose its protected character simply because somewhere down the line, it results in acts of violence. 190 than peaceful messag e, evidence produced at trial maintained that no NAA 191 As proof, the Court cited the testimony of Julia Jo hnson, sustained were because of people like Johnson who favored the ends of the boycott and wanted to honor it. 192 d underlying the respect each other, and to realize the political and economic power a vailable to 193 address which predominantly contained highly charged rhetoric lying at the core of the 194 Additionally, t d violence (by the 195 Evidence presented at trial demonstrated that any acts of violence occurr 190 Id. 191 Id at 929. 192 Id at 922 n.62. 193 Id. at 928. 194 Id. at 926 27. 195 Id. at 922 23.
155 speeches. 196 Moreover, it e acts of violence ... 197 On this basis, the Court determined the record in 1972 three years after this lawsuit was filed were proximately caused by the 198 that state power has not been exerted to compensate respondents for the direct 199 Despite the t emporal circumstances implying a more serious nature surrounding 200 Its reference to Watts perhaps indicates it viewe direct, serious threat. 201 interest in regulating economic activity to the outright ban it placed on prohibiting s traditional reliance on an ad hoc form of policy balancing within the context of political boycotts, in which the 196 Id. at 928 (emphasis added). 197 Id. at 923 n.63. This was in direct contradiction to the finding of the Mississippi Supreme Court, as noted by the U.S. Supreme Court, to uphold the fi nes on a theory of concerted liability, writing that fear, and they were forced and compelled against their personal wills to withhold their trade and bu siness Id at 894 95. 198 Id at 923. 199 Id at 923. 200 Id at 926 27. 201 See Jennifer E. Rothman, Freedom of Speech and True Threats 25 H ARV J. L. & P UB P OL Y 283, 298 (2001).
156 their social objec 202 At least one scholar has suggested Claiborne may have turned instead , 203 upholding a prosecution of a draft card burning despite the contention the act was protected as symbolic expre ssion. 204 ... if it furthers an important or substantial governmental interest ... that is unrelated to the 205 Professor John Hart Ely has interpreted Brien as relationship between the asserted government inter est and implementation of that interest. 206 s based 202 NAACP v. Webb's City, Inc., 152 So. 2d 179, 183 (Fla. Dist. Ct. App. 1963) vacated on other grounds 376 U.S. 190 (1964) 203 391 U.S. 367 (1967). 204 Id at 376. 205 Id. at 377. The part quoted from in the text is taken from the four prong test which states that: a government regulation is sufficiently justified (1) if it is within the constitutional power of the Government; (2) if it furthers an important or substantial governmental interest; (2) if the governmental interest is unrelated t o the suppression of free expression; and (4) if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Id. (bracketed numbers added). 206 Ely, supra note 125 at 1484. Professor El y as: [W]hether the harm that the state is seeking to avert is one that grows out of the fact that the defendant is communicating, and more particularly out of the way people can be expected to react to his message, or rather would arise even if the defendant's conduct had no communicative significance whatever. Id. at 1497. If the court is applying a balancing approach, the court may permit a restriction of only the supra note 125, at 1484 85.
157 balancing test to definitional categorization. 207 If established the technique for e valuating instances in which a restriction on speech is merely incidental interest is then justified by a reasonable balancing of interests), Claiborne demonstrates message of the expressio n conveyed. In such an instance, the Court has found that a reasonable weighing of the competing interests cannot satisfy the demands of the First Amendment. Instead, the speech is categorically protected unless the state can prove it falls within one of t he several narrowly defined categories of unprotected expression. 208 his allegedly harmful expression. 207 Ely supra note 125, at 148 4. See e.g ., Cohen v. Calif ornia, 403 U.S. 15 (1971); Brandenburg v. Ohio, 395 U.S. 444 (1969). Although Ely initially proposed this interpretation in the context of flag desecration, it was eventually applied to political boycotts, similarly containing el ements of both speech and conduct. The standard was applied to political boycotts in Note, Political Boycott Activity and the First Amendment 91 H ARV L. R EV 659 (1975) [hereinafter Harvard Note ]. While the speech conduct dichotomy has sometimes been use d to distinguish constitutionally protected activity from that which is unprotected, it has been criticized as specious and question begging. See, e.g ., Ely, supra note 125, at 1494 96. The st in effectuating a regulation, however, begs a different question. Note Political Boycott Activity supra note 207 at 673 74. According to the Note: On the one hand, courts could accept any plausible interest urged by the state. This is the approach by which the Court concluded that the governmental interest in that case was administrative efficiency and convenience rather than a desire to suppress a particular politically unpopular message. On the other hand, a much more searching judicial scru tiny of legislative motive might be permissible, if not obligatory, in constitutional cases where legislative interest is a relevant issue. Note Political Boycott Activity supra note 207 at 674. 208 Ely, Flag Desecration supra note 125, at 1492 93.
158 Summary under the exception and, furthermore, has refused to apply it to threats of physical violence. On the other hand, the Court once rejected punishment of out of court contempt statements under an old, common law presumption that judges could punish statement s interfering with the fair and orderly administration of justice. In each instance, the Court ruled in favor of the administration of justice; 2) protecting the safety of the Chief Executive and in allowing him to perform his duties without interference from thr eats of physical violence; and 3) the economic interests of the state. Bridges held that a clear and present danger did not exist in the form of an tatements threatening labor disruption. The Court rejected the common law rule that judges could punish out of court contempt statements. It held that, in the absence of a legislative declaration that contempt statements are dangerous to the fair and order ly administration of justice or where circumstances lacked demonstrating a clear and present danger, the expression was protected under guarantees. Watts recog nized threats of physical violence aimed at the President may be banned, 209 it rejected applic The opinion identified 209 Watts decision in R.A.V. v. City of St. Paul 505 U.S. 377, 388 (1992).
159 several factors courts should consider in evaluating threatening speech. Under those fac tors, it simply determined Robert expression was protected. Yet, it has never applied those same factors to a subsequent case involving threatening speech. Claiborne held that threatening speech does not lose its protected character simply because i t may coerce others into action. It determined, based on its substantive review of the facts the record amply supported dismissal of liability. According to the Court, much of actually advanced peaceful methods of pursuing equal treatment and opportunity under the law. Moreover, n one of the individuals who heard s speech. In the absence of a failed to de tate, the Court determined activity. P erhaps the most consistent approach that emerges amid review of these cases is the emphasis placed on the circumstances surrounding the statements. These factors include: the nature of the speech (whether religious or political); the context of the speech (whether re ligious or political); and the reaction of the listeners. Absent these Virginia v. Black 210 decided more than thirty years later, that the Court set forth a more definitive statement 210 538 U.S. 343 (2003) (finding that a state could ban cross burning carried out with evidence of intent to intimidate but that evide nce of actual intent to carry out the threat was unnecessary).
160 Section 2 Section 3 turns t o e xpression invoking a hostile audience reaction. Hostile Audience Reaction The hostile audience doctrine suggests that when a speaker causes a crowd to react, regulation should not occur until that crowd is in fact stirred to violence. 211 While speech at the crux of the hostile audience reaction category may be closely related to incitement, the two differ in one important respect: incitement comprises expression that may persuade audience members to act undesirably, while speech invoking a hostile audience re action is suspect because it may result in a violent reaction against the speaker. 212 This category likewise began with application of the clear and present danger test, but evolved into greater examination of t he facts underlying the decision and all but re exception on which the majority of the hostile audience opinions is based. Cantwell v. Connecticut The Court first applied the clear and present danger test in the context of insulting speech evoking a breach of the peace in Cantwell v. Connecticut 213 In Cantwell, violent reaction was voided in the absence of a statute narrowly drawn to define and 211 G EOFFREY R. S TONE ET AL ., T HE F IRST A MENDMENT 89 ( 4th ed. Aspen Publishers 2012). 212 Id. See also Jennifer Elrod, Expressive Activity, True Threats, and First Amendment 36 C ONN L. R EV 541 ( speech and fighting words doctrines). 213 310 U.S. 296 (1940).
161 punish specific conduct presen ting a cl ear and present interest. 214 arrested and charged under a Connecticut solicitation statute 215 for pros elytizing a predominantly Roman Catholic neighborhood. 216 The Cantwells distributed material by traveling door to door and by approaching people on the street. 217 After voluntarily Catholic 218 One of them said he felt like hitting Cantwell, although he did not actually do so. 219 The U.S. Supreme Court found statements actually likely to produce a violent reaction may be proscribed, regardless whether the speaker intended the reaction, if the 220 In an opinion by Justice Ow en Roberts, the Court wrote, 214 Id. 215 Specifically, the statute read: No person shall solicit money, services, subscriptions or any valuable thing for any alleged religious, charitable or philanthropic cause, from other than a member of the organization for whose benefit such person is soliciting or within the county in which such person or organization is located unless such cause shall have been approved by the secretary of the public welfare council Id at 301 302. 216 Id at 300. 217 Id at 301. 218 Id at 303. 219 Id. makes statements likely to provoke violence and disturbance of good order, even though no such Id. 220 Id. at 309.
162 epith ets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would 221 While the Court recognized valid i immediate threat t o public safety, peace or order, 222 i t held not only that the statute or menacing public order but also that Connecticut had convicted Cantwell without any 223 It 224 to prevent only sp eech deemed a clear and present danger to a substantial government interest 225 It could not, thus, of views, religious or otherwise, under the guise of conserving desirable conditions. 226 Despite its holding, Justice Roberts concluded there are limits to the exercise of speech and religion and that individuals who attempted to exploit such freedoms may well be subjected to different constraints: The danger in these times from the coerciv e activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of 221 Id at 309 10. 222 Id traffic u pon the public streets, or other immediate threat to public safety, peace or order, appears, the Id. 223 Id. at 309. 224 Id at 307. 225 Id. at 311. 226 Id. at 308.
163 their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the states appropriately may punish. 227 Because the statute granted a state official the au thority to determine whether such solicitation pertains to a religious cause, the Court found the Connecticut statute violated the First Amendment. 228 The language of the opinion, however, suggests that may not have been protected. 229 Chaplinsky v. New Hampshire Two years later, the high court addressed another case involving speech by a Chaplinsky v. New Hampshire 230 This time, it departed from application of the clear and present danger test to insulting wo rds likely to provoke a hostile audi ence reaction. Instead, the Court created an exception to the First Amendment when it chose to carve out, in wholesale fashion, an entire category of speech from protection. 231 onvicted by 232 Chaplinsky was convicted 227 Id at 310. 228 Id. at 310 11. 229 Id. 230 315 U.S. 568 (1942). 231 Id at 571 72. See Burton Caine, Chaplinsky v. New Hampshire is a Threat to First Amendment Values and Should be Overruled 88 M ARQ L. R EV 441, 443 (2004) (discussing the Chaplinsky ion as establishing the categorical prohibition of certain categories of speech). 232 Id at 569. Specifically, N.H. Gen. Laws section 378(2) states:
164 in public. 233 The New Hampshire Supreme Court found the statute under which Chaplinsky was tendency to cause acts of violence by the person to whom, individually, the remark is ad 234 Building on dictum from Cantwell the U.S. Supreme Court refused to protect Walter 235 In his majority opinion for a unanimous bench, Justice Frank Murphy coined the now famous passage: There are certain well defined and na rrowly limited classes of speech, the prevention and punishment of which have never thought to raise any Constitutional problem. These include the lewd and obscene, the profane, those which by their very utterance tend to inflict injury or tend to incite an immediate breach of the peace. 236 Although the Court had never before addressed the issue, it seemed to assume the 237 To the contrary, it wrote observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation. 233 Chaplinsky 315 U.S. at 569. 234 State v. Chaplinsky, 18 A.2d at 757, 758 (N.H. 1941). 235 Chaplinsky 315 U.S. at 570 Id. 236 Id. at 572. 237 Id.
165 truth that any benefit that may be derived from them is clearly outweighed by the s ocial 238 Chaplinsky refused to apply the clear and present danger test, which it had adopted in Cantwell and which it had typically used to address speech that causes or is likely to cause immediate harm. The Court did not address the specific conduct it found 239 but summarily held the statute at issue, unlike the one in Cantwell define and punish specific conduct lying with in the domain of state power 240 The would be words likely to cause an average addressee 241 Apparently, the Court this category 242 and that New speech. The Chaplinsky opinion represented the first time the Court addressed the I t also demonstrates the lengths to which the Court went failing to stop short of rewriting the legislation to find the statute was constitutional. Justice Murphy explicitly rejected the contention that the statute was vague and overbroad. He refused mentio ning of the language of the 238 Id. (emphasis added). 239 Id 240 Id. 241 Id. (emphasis added). 242 Id.
166 statute, 243 except only in passing to hold that when limited to provoking a fight in the rbreadth arguments disappeared. Chaplinsky thus, sought salvation of this implie dly vague and overbroad phrase could be taken as provoking violence, but only pro vided several examples of words the Court thought plainly fell within this category. 244 Yet, a decade after it announced Chaplinsky it refused to apply the categorical exception to uphold a conviction in Feiner v. New York 245 Feiner v. New York In Feiner Ir ving Feiner was convicted under a New York disorderly conduct statute 246 243 any See supra note 232 for a full reading of the statute. 244 According to a pa Derisive and annoying words can be taken as coming within the purview of the statute as heretofore interpreted only when they have this characteristic of plainl y tending to excite the addressee to a breach of the peace The statute, as construed, does no more than prohibit the face to face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitute a breach of the peace b y the speaker likely to cause violence, and other disorderly words, including profanity, obscenity and threats. Id at 573. uggests there may be other categories of fighting words the Court has not thought to list in the opinion. Caine, supra note 231, at 450 51 (discussing possible interpretations of the fighting words dictum). 245 340 U.S. 315 (1951). 246 According to the statute : Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have
167 247 The police received a complaint and found a large crowd had filled a sidewalk and was spreading into the street. 248 they attempted to get the people listening back on the sidewalk. 249 But a s Feiner 250 Because of the feeling that existed in the crowd, the police asked Feiner to disperse it 251 resulting in a 252 Feiner was arrested and convicted. 253 Writing for the majority, Chief Justice Fred Vinson cited Cantwell for the traffic upon the public streets, or other immediate threat to public safety, peace, or order 254 Although the Court committed the offense of disorderly conduct: 1. Uses offensive, disorderly, threatening, abusive or insulting language, conduct or behavior; 2. Acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others; 3. Congregates with others on a public street and refuses to move on when ordered by the po lice; * *. N Y. P ENAL L AW Â§ 722 (McKinney). 247 Feiner 340 U.S. at 316 17 Irving F einer Id at 330 (Douglas, J., dissenting). He [ T ] he Ne groes don't have equal rights; they should rise up in arms and fight for their rights. Id (Douglas, J., dissenting). 248 Id at 316 (majority opinion). 249 Id at 317. 250 Id. 251 Id. 252 Id. 253 Id. at 317 18. 254 Id at 320.
168 allowed to silence a speaker, 255 it determined the officers had not acted inappropriately We are not faced here with a blind condonation by a state court of arbitrary police action ... It is one thing to say that the police cannot be used as an instrument f or the suppression of unpopular views, and another to say that, when as here, the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace. 256 In granting New York broad latitu de in exercise of its police power to regulate crowd behavior, Justice Vinson wrote: the findings of the New York courts as to the condition of the crowd and the refusal of petitioner to obey the police requests, supported as they were by the record of thi s case, are persuasive that the conviction of the petitioner for violation of public police, order authority does not exceed the bounds of proper police action. 257 He that 258 the opinion acknowledged the determination of the New York appellate courts that the police officers were justified in 259 On this basis the Court held, principle of freedom of speech sanctions incitement to riot or that religious liberty 255 Id at 320. 256 Id. at 319. 257 Id at 320. 258 Id at 319. 259 Id at 316.
169 connotes the privilege to exhort others to physical attack upon those belonging to 260 determination, which was rendered without a jury. 261 Notwithstanding the lack of circumstances indicating any great threat of danger but for one individu not act 262 the majority upheld Irving and present danger standard. The lack of evidence demonstrating a connection between Feiner speech and any actual harm, however, has not gone un conte st ed. Indeed, Justice s Hugo Black and William appear to recognize the lack of a sufficient evidentiary record upon which to indict the defendant. 263 According to Black: The record before us convinces me the petitioner, a young college student, has been sentenced to the penitentiary for the unpopular views he expressed on matters of public interest ... Many times in the past this Court has said despite findings below, we will examine the evidence for ourselves to ascertain whether federal ly protected rights have been denied ... But still this conviction makes a mockery of the free speech guarantees of the [First Amendment]. 264 Douglas seconded this opinion when he wr ote: A speaker may not, of course, incite a riot any more than he may incite a rd shows no standards of the It sho ws an unsympathetic audience and the 260 Id at 320. 261 Id 262 According to the Court One ma n who heard this told the officers that if they did not take that would Id at 308 09. 263 See Feiner 340 U.S. at 321 29 (Black, J., dissentin g); id at 329 331 (Douglas, J., dissenting). 264 Id at 321 24 (Black. J., dissenting).
170 threat of one man to haul the speaker from the age. It is against that kind of threat that speakers need police protection. 265 Feiner thus, cl 266 Decisions such as Gooding v. Wilson 267 t he next case discussed in this s ection, however, s up greater classes of speech th an are proscribable. Gooding also demonstrates the extremely n arrow circumstances to which Chaplinsky has been confined. Gooding v. Wilson using 268 He had communicated various phrases to police officers while they were 269 Although Wilson did not argue the statute was unconstitutional as applied to him, he claimed it was faci ally unconstitutional. 270 265 Id at 330 31 (Douglas, J., dissenting) (discussing the obligation of the police to protect the speaker). 266 Harry Kalven. Se e H ARRY K ALVEN T HE N EGRO AND THE F IRST A MENDMEN T 140 45 (1965). 267 405 U.S. 518 (1972). 268 Id. at 518 19. 269 Id at 534 (Blackmun, J., dissenting). 270 Id at 520 (majority opinion).
171 Justice William Brennan, writing for the majority, arguably spent more time in Gooding 271 Notably, the Gooding dissents acknowledged the Hampshire legislate on in Chaplinsky 272 The Court recognized the power of the state to o susceptible of application 273 Yet, it struck down a statute two justices thought satisfied Chaplinsky requirements. 274 The Court observed that the dictionary definitions of the language used in the Georgia statute had not been nar rowly construed by the lower that it had actually be given great farther reach 275 Gooding reaffirmed the proposition that the government may not punish profane, y offend, but only if they are aimed at words that have a direct tendency to cause acts of violence by the person to whom they are directed. 276 standard established in Cohen v. California. 277 In t hat case, the Court held that states may not ban, without demonstration of additional justifying circumstances, the simple 271 See supra note 230 45 and accompanying text (discussing the Chaplinsky decision). 272 Gooding 404 U.S. at 534 (Burger, J., dissenting); id. at 535 36 (Blackmun, J., dissenting). 273 Id at 523 (majority opinion). 274 S ee id at 529 30, 534 (Burger, J., dissenting); see also id at 536 37 (Blackmun, J., dissenting). 275 Id at 528 (majority opinion) (emphasis added). 276 Id. 277 403 U.S. 15 (1971).
172 reasonably have regarded the words as a dire ct personal insult. 278 Gooding narrowed the standard by requiring specific proof that the particular individual addressed must be likely to react in an immediate, violent manner. 279 Following Gooding y to speech: 1) addressed to someone; 2) face to face; 3) where the likelihood of violence by the average addressee is great. The decision also demonstrates the changing tide Cantwell and Chaplinsky to its standard of independent review of the record as well as imposition of an increased burden of proof. Gooding more than the unprotected category appears to be, as noted by Justice Harry Chaplinsky 280 The cases so far discussed w ithin the hostile audience variety of expression involve speech aimed by an individual at another individual or group of individuals. Conversely, Snyder v. Phelps 281 involves a claim brought by an individual against members of a group for their shocking and offensive speech. Snyder v. Phelps In Snyder decided only two terms ago, the father of deceased Marine Lance Corporal Matthew Snyder filed suit against mem bers of the Westboro Baptist Church 278 Id at 20. 279 Fighting Words and the First Amendment 3 K Y L.J. 1 13 (1975). 280 Id at 537 (Blackmun, J., dissenting). 281 131 S. Ct. 1207 (2011).
173 (WBC) 282 Church members, who had picketed hundreds of military funerals, traveled from Topeka, Kansas 283 The picketing, which remained peaceful, occurred approximately 1,000 feet from the church where the funeral was held, as to way for the WBC members to d punishes the United 284 Snyder was unable to separate the thoughts of his dead son from 285 exacerbation of pre existing health conditions, 286 including his diabetes. Even though Albert Snyder testified he was not aware of what was written on the signs until he viewed a n ews report of the funeral on television later that evening, 287 ked a hostile audience reaction. Rather than devoting time to reasons why the case did not present 282 Id. at 1213. 283 Id. at 1216 17. 284 Id at 1213 (stati funerals. In the more than 20 years that the members of Westboro Baptist have publicized their message, 285 Id at 1214. 286 Deanna Polla rd Sacks, Snyder v. Phelps: T Tort Jurisprudence and Normative Considerations 120 Y ALE L.J. O NLINE 193, 197 n.23 (2010) (stating that the evidence included medical expert testimony). 287 Id. at 1213 14.
174 suggests, 288 The Court conci First Amendment, not only because it complied with all police restraints on the time, place and manner of the picket, 289 but because it concerned matters of substantial public interest. 290 Despite a few of the signs being viewed as relating to Matthew Snyder dominant theme of West 291 The Court held: [W]hile these messages may fall short of refined social and political commentary ... the arguably inappropriate or controversial character of a statement is irrelevant to the question whe ther it deals with a matter of public concern ... The issues they highlight the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military and scandals involving the Catholic clergy are matters of public import. 292 288 Paul E. Salamanca, Snyder v Phelps: A Hard Case That Did Not Make Bad Law 2011 C ATO S UP C T R EV 57, 59 (2010 2011). 289 Id. by 25 foot plot of public land adjacent to a public street, behind a temporary fence. That plot was approximately 1,000 feet form the church where the funeral was held. Several buildings separated the picket site from the church. The Westboro picketers displayed their signs for about 30 minutes before the funeral began and sang hymns and recited Bible verses. None of the picketers entered the church property or went to the cemetery. They did not yell or use pr 290 Snyder 291 Id. at 1217. 292 Id at 1216, 1217.
175 Although Snyder did not set a standard of harm or req uirement of evidence necessary to justify the First Ame ndment jurisprudence, such as Brown or Alvarez 293 The Court determined the of interest to society at large, rather than matters 294 295 Snyder thus represents a subset of an area of expression in wh ich the Court has refused to extend its requirements of a greater evidentiary burden. The decision can also be differentiated from those opinions on the basis that Snyder i nvolves a tort based challenge, as opposed to one involving a government restriction resting on the content of expression. Justice Samuel Alito, on the other hand, took profound contention with the Snyder Amendment ensures that [WBC members] have almost limitless opportunities to 296 inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make n o contribution to public 297 293 See supra notes 432 49 & 573 97 and accompanying text for discussion of these cases. 294 Id at 1216. 295 Id at 1211 (internal punctuation omitted). 296 Id. at 1222 (Alito, J., dissenting). 297 Id. (Alito, J., dissenting).
176 the funeral protest, the more publicity the Westboro Baptist Churc 298 ); falsely that 299 300 As such, the WBC members 301 Justice Alito did not contest the picketers compliance with all police instructions or that they had conducted their protest on a public street. He reason why a public street in close proximity to the scene of the funeral should be regarded as a free fire zone in which otherwise actionable verbal attacks of shielded 302 did not transform their statements attacking the character of a private figure into statements that made a 303 He argued the decision had, in 298 Id. at 1224 (Alito, J., dissenting). 299 Id. (Alito, J., dissenting). 300 Id at 1226 (Alito, J., dissenting). 301 Id. at 1222 (Alito, J., dissenting). 302 Id at 1227 (Alito, J., dissenting). 303 Id. (Alito, J., dissenting).
177 304 such as Albert Snyder and his family. 305 Summary The evolution of the h ostile audience doctrine mirrors threatening speech in several ways. First, the Court originally applied the clear and present danger tes t to speech provoking a hosti le reaction in Cantwell but then shifted to a definitional categorization in Chaplinsky In fact, Chaplinsky is the chief case setting forth the category reveal a transition similar to the one experienced by threatening speech, from categoricalism to a narrowing of the doctrine in specific factual scenarios (e.g., Feiner v. New York, Gooding v. Wilson ). In fact, Gooding exposes a confinement of Chaplinsky to statutes punishi 306 affirmance of the doctrine, Snyder orical, categorical approach demonstrates even sufficiently offensive utterances may be protected where the ex pression pertains to matters of public concern. In Cantwell, the Court considered the constitutionality of a statute targeting speech posing a breach to the peace. The Court held that while Connecticut may regulate profane, indecent and abusive remarks, th e statute was not narrowly drawn to punish specific conduct constituting a clear and present danger. The record established no evidence that Cantwell was personally offensive or entered into an argument with anyone he interviewed. While the Court overturne 304 Id. at 1229 (Alito, J., dissenting). 305 Id at 1227 (Alito, J., dissenting). 306 Gooding v. Wilson 405, U.S. 518, 537 (1972) (Blackmun, J., dissenting).
178 his conviction might have been upheld under different circumstances, given the interest in maintaining order and peace on the streets. Chaplinsky held New Hampshire could punish words provoking a hostile audience react ion under a statute pre venting a breach of the peace. As o pposed to Cantwell Walter was upheld on the basis a mere category of speech was employed It applied a very low standard intelligence would under understand would be words likely to cause an average to confirm the conviction. To the extent Feiner embodies any of Chaplinsky rhaps only its punishment of speech for the reaction it produced. Feiner upheld a conviction under a disorderly conduct statute, despite a lack of evidence demonstrating a breach of the peace. In fact, the Court found the police had not inappropriately cen sored Irving Feiner when they arrested him, even though only one individual threatened violence if the police did not act. Feiner narrowed the f doctrine by refusing to apply it to the cl The decision raises substantial questions regarding the bounds of police authority to interfere with an Yet, it h as also been highly criticized and limited to the grounds found by the majority that the speaker was inciting the cr owd to riot and inadequate means were available to keep the peace. Others have questioned whether Feiner remains good law. To the extent the fighting words doctrine remains formally viable, as amended in Cohen v. California and its progeny, it is confine to ban the simple use, without a demonstration of additional justifying circumstances, of
179 so the ordinary citizen, are a matter of common knowledge, inherently likely to provoke 307 Gooding narrowed Chaplinsky The decision provides an example of a trend away from legislative deference to greater independent r eview of the facts and the requirement of a more stringent burden of proof. Finally, Snyder rejec ted presented at trial that physical condition had worsened as a result of t Yet, the decision represents a departure from more recent jurisprudence to impose a heightened evidentiary burden. Section 3 doctrine. Section 4 turns Disclosure of Dangerous Information government efforts to restrict publication of factual information it would perhaps prefer to keep secret, the Court examined the harm allegedly caused by the release of confidential informati 1) national security; 2) fair and orderly administration of justice; and 3) the right to a fair 307 403 U.S. 15, 20 (1971).
180 balancing scale is weighted in favor of the First Amendment. 308 New York Times Co. v. United States In what has become known as the Pentagon Papers case New York Tim es Co. v. United States 309 the United States government sought to enjoin newspapers from publishing the contents of a classified historical study of U.S. policy during the Vietnam War. 310 T he splintered Court ruled in an extremely concise, three paragraph per curium on the press. 311 It thus overturned an injunction granted by lower courts on the 312 While the per curium opinion does not pr ovide much insight into the standard the Court applies to the publication of sensitive government information, members of the fractured Court wrote nine opinions offering additional guidance. Interestingly, although Pentagon Papers was decided subsequent t o Brandenburg it did not cite to Brandenburg nor ment Yet, three Justices used language evocative of Brandenburg imminence test. Justice William Brennan ratified the Amendment against prior restraints 313 He wrote: Even if the present world situation were assumed to be tantamount to a time of war or if the power of presently available armaments would justify 308 See supra notes 294 96 (discussing the preferred position approach). 309 403 U.S. 713 (1971) (plurality opinion). 310 Id. at 714. 311 Id. 312 Id 313 Id at 725 (Brennan, J., concurring).
181 even if peacetime the sup pression of information that would set in motion a nuclear holocaust in neither of these actions has the Government presented or even alleged that publication of items from or based upon the material at issue would cause the happ ening of an event of the n ature. 314 must inevitably, directly, or immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the i ssuance of an 315 Justice Potter Stewart appeared to adopt a similar standard surely result in direct, immediate, and irreparable damage to ou 316 At least for Justice simply not sufficient. 317 R 318 He recognized: the administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the importance of the fundamental security of life and property by criminal alliances and official neglect. 319 314 Id at 726 (Brennan, J., concurring) (emphasis added). 315 Id at 726 27 (Brennan, J., concurring) (emphasis added). 316 Id at 730 (Stewart, J., concurring) (emphasis added). 317 Id at 725, 727 (Bre nnan, J., concurring). 318 Id at 722 724 (Douglas, J., concurring). 319 Id at 723 (Douglas, J., concurring).
182 320 Amendme nt [is] to prohibit the widespread practice of governmental suppression of history as the most dramatic illustration of that principle. 321 Thus, while Douglas argued in favor of press immunity from prior restraint to protect First Amendment values, it seems clear he also believed the attempted use of a prior restraint by the government in this opinion was to prevent publication of so called embarrassing information. In his con abridging freedom of the press in the name of equity, presidential power and national 322 He observed: the Government argues in its brief that in spite of the First Amendment publication of inform ation whose disclosure would endanger the national security stems from...the constitutional power of the President over the conduct of foreign affairs and his authority as Commander in 323 the publication of news by 320 Id (Douglas, J., concurring). 321 Id at 722 724 (Douglas, J., concurring). 322 Id. (Black, J., concurring). 323 Id. (Black, J., concurring).
183 and destroy the fundamental liberty and security of the very people the Government 324 New York Times appeared to be more concerned with determining the appropriateness of judicial prior restraints on the press as opposed to specifying the types of events and the appropriate levels of evidence to justify a prior restraint. The per curium opinion did not d efine the precise circumstances or the type or amount of evidence under which a court could constitutionally enjoin the publication of information relating to national security. Indeed, Justice Harry Blackmun, dissenting, acknowledged, the very narrow right of the Government to prevent ... 325 The standard enunciated by Justice Stewart or Justice Brennan in their concurrence s ect, immediate, and security, perhaps comes closest to a standard of harm in this context. 326 As to evidence, one justice provided a few cursory examples of the types of instances he believed would justify a prior re straint. 327 On the other hand, government reliance on inherent executive authority in national and foreign affairs, absent Congressional legislation and will simply not suffice 328 324 Id. at 719 (Douglas, J., concurring). 325 Id at 760 (Blackmun, J., dissenting). 326 Id (Blackmun, J., dissenting). 327 See supra note 314 (discussing those examples). 328 New York Times 403 U.S. at 725, 727 (Brennan, J., concurring).
184 While New York Times interests, the Court again addressed the constitutionality of prior restraints five years later in N ebraska Press Association v. Stuart 329 establishing the modern day test for balancing the strong presumption against prior restraints with fair trial considerations. Nebraska Press Association v. Stuart There is no doubt pretrial publicity may damage a defe In Nebraska Press police found the bodies of six family members murdered in their home in a small rural community. 330 The crime immediately garnered widespread local, regional and national news coverage. 331 Upon request, the tri al judge entered an order, following oral argument but without the taking of evidence, restraining the press from publishing or broadcasting confessions or admissions made by the accused. 332 Several press and broadcast associations immediately filed a motion to intervene to have the order vacated. 333 order that was subsequently modified by the Nebraska Supreme Court to prohibit the ture of any confessions or admissions made by the defendant to law enforcement officers, (b) any confessions or admissions made to any third parties, except members of the press, and (c) other 334 329 427 U.S. 539 (1976). 330 Id at 542. 331 Id. 332 Id at 542. 333 Id. at 543. 334 Id. at 545.
185 Nebraska Press r unanimously striking down the order barring the press from reporting on confessions 335 It held prior restraints are the 336 But the five separate opinions expressed some disagreement over the principles that should govern future cases. The majority, led by Chief Justice Warren Burger and joined by four others, 337 it declined to adopt an unqualified rule barring all prior restraints on publication in criminal cases. 338 It adopted a preferred position balancing test, given the heavy presumptive against prior restraints, but found the burden had not been met by the facts of the case. 339 A dopting a version of the clear and present danger test developed by Judge Learned Hand in United States v. Dennis 340 Chief Justice Burger designated three factors for determining whether the danger to a fair trial in a particular case was of sufficient magnitude to justify restraining publication of allegedly prejudicial nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; [and] 335 Id at 570. 336 Id at 559. 337 Chief Justice Burger was joined by Justices White, Powell, Rehnquist and Blackmun. 338 479 U.S. at 562 64. 339 Id. at 570. 340 See supra notes 85 103 and accompanying text (discussing that opinion).
186 (c) how effective ly a restraining order would operate to prevent the threatened 341 A pplying th ose factors, the Court initially suggested the trial judge had not unreasonably inferred a potential risk that pre trial news accounts could have an adve 342 Given the judge had done no more than imply alternative m easures might not be adequate, howe v er, Chief Justice Burger found the record established no evidence that alternative measures short of a prior 343 Additionally, these measures had be en found to blunt the impact of such publicity. 344 Recognizing the or that doubts about the gravity o f evil pretrial publicity can work ... the probability that it would do so here was not demons trated by the degree of certaint y our cases on prior 345 Nebraska Press determined the record lacked sufficient evidence to overcome the high b urd en against prior restraints. Y et Chief Justice Burger stopped far short of 341 479 U.S. at 562. 342 Id at 568 69. 343 Id. at 565. 344 Id. at 564. The alternative measures included: ity that seemed imminent in Lincoln County; (b) postponement of the trial to allow public attention to subside; (c) searching questioning of prospective jurors ... to screen out those with fixed opinions as to guilt or innocence; (d) the use of empathic and clear instructions on the sworn duty of each juror to decide the issues only on evidence presented in open court. Id. It also suggested juror sequestration. Id. 345 Id. at 569.
187 providing a standard of proof of remains penetrable to questions whet her the Court would apply the same or a similar standard under a less severe set of such a prior restraint. 346 possibility of showing the kind of threat to fair trial rights that would possess the 347 at least one scholar has suggested Nebraska Press ing of 348 Nebraska Press reverted back to the Dennis Learned Hand formulation of the clear and present danger test. In doing so, it is conceivable Chief Justice Burger wished to establish a propensity of the Court to apply a less stringent standard where the harm alleged is as indirect as fear that jurors will unfairly determine the outcome of a case based on access to prejudicial pretrial information. Th e Dennis test certainly did not possess Brandenburg imminence, also decided prior to Nebraska Press Alternatively, it is dubious whether Dennis provides the appropriate standard for evaluating the heavy presum ption against prior restraints. New York Times concerning a harm of similar contiguity, employed a much stricter standard. One potential interests in restricting speech. Pentagon Papers confronted the constitutionality of a prior restra int on information allegedly injurious to national security. Contrastingly, 346 See e.g ., T RIBE supra note 43, at 858 59. 347 Nebraska Press 427 U.S. at 569 70. 348 T RIBE supra note 43, at 858 59.
188 Nebraska Press The combination of these opinions and the standards they employed elevated locati on in the hierarchy of government interests. On the other hand, the lack of a majority opinion in New York Times controverts the stringency of the standard to be applied in prospective battles involving threats to national security. Furthermore, these case s represent only a single instance of evaluating the constitutionality of prior restraints against each of these interests. Landmark Communications, Inc. v. Virginia In Landmark Communications, Inc. v. Virginia 349 the third and final case within this series t he Virginia Pilot a Landmark Communications newspaper, published an into a state judge. 350 The Pilot published information regarding confidential proceedings in a judic ial conduct investigation. 351 confidentiality requirements but the attachment of criminal sanctions to publication of such information. 352 While a vast majority of states imposed an obligation of confidentiality, 353 on ly Virginia and one other state imposed sanctions under a threat of criminal penalty. 354 349 435 U.S. 829 (1978). 350 Id. at 831. 351 Id. 352 Id at 836. 353 Id. 354 Id. at 836 37.
189 The Supreme Court, in a 7 0 opinion, ruled for the newspaper. Chief Justice Warren Burger recognized the undoubted necessity, absent hard in court evidence of maintaining confidentiality to the functionality of proceedings and also the integrity of the judicial system. 355 Yet, he wrote, confidentiality and institutional reputation do not 356 Chief Justice Burger and present danger test, 357 finding that the test: [p] roperly applied ... requires a court to make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil, as well as its likelihood, against the need to free and unfettered expression. 358 He found be weighed. 359 On these assertions, B urger concluded it was: incumbent upon the Supreme Court of Virginia to go behind the legislative question and the circumstances of [its] publication to determine to what extent the substantial evil of unfair administration of justice was a likely consequence, and whether the degree of likelihood was sufficient to justify [subsequent] punishment. 360 As opposed to Nebraska Press Landmark recommenced a requirement of requ ired satisfaction of three elements: 355 Id. at 833. 356 Id at 841 42. 357 Id. at 842. 358 Id. at 842 43. 359 Id at 843. 360 Id at 843 44.
190 1. 361 2. 362 and 3. 363 Considering those factors, the Court declared the 364 According to the Court, n umerous opinions in which the clear and pre sent danger test was not satisfied involved more extreme circumstances and posed greater risk of substantial danger. 365 It injury ... through careful internal procedures to protect the confidentiality of Commission 366 Landmark analyzed the age old conflict between freedom of expression and the fair administration of justice but held tight to the preferred position of the Fir st reminiscent of the test applied in Bridges involving a very similar factual scenario. Alth ough both opinions overturned government speech restrictions, Landmark ratchets up Bridges 361 Id. at 843 44. 362 Id. 363 Id. 364 Id. and present danger test could not be satisfied in the more extreme circumstances of 365 Id. at 845. 366 Id
191 demonstrating imminence; and 2) that a danger that refused to bow to legislative ceder, which Bridges Nonetheless, Landmark established no specific requirements of the type or amount of it would presumably require more than circumstantial evidence It also provided no examples of the type of danger administration of justice. Summary Under what circumstances may the government restrict high va lue speech that potentially causes harm to the government, private individuals or society? Disclosure of he parameters of government power to regulate dangerous information have largely been governed by a not justify the speech restriction, regardless of the interest in: 1) preventing harm to national security; 2) protecting the fair and orderly administration of justice; or 3) ensuring a fair trial. In New York Times the Court applied a heavy presumption that prior restraints are unconstitutional. D espite the compelling interest in national security, it concluded that it could not prohibit the press from publishing the contents of a classified historical il. While national security undoubtedly qualifies as a compelling government interests, the Court seemed to question the legitimacy of the
192 opinions sole reliance on in herent executive power and government authority to prevent such disclosure. Nebraska Press adopted a preferred position balancing approach against prior restraints on press freedom despite due process arguments. It found the evidence did not satisfy even the weakened Dennis version of the clear and present danger test. While Chief Justice Burge r found the record established no evidence demonstrating raises questions regarding application of such the test to a factual record in which the alleged harm publicatio n of truthful information is so ambiguous and indirect. Landmark likewise involved a challenge to the publication of truthful information, this time regarding judicial commission investigations. The Court applied a clear and present danger test requiring i mminence and weighted in favor of the First Amendment. Under its factual review, it acknowledged the government undoubtedly possessed a significant interest in maintaining confidentiality but that the record lacked sufficient evidence of danger arising fro of that test. Part A advocacy/incitement to unlawful action; 2) speech evoking a hostile audience reaction; 3) speech that threatens; 4) and disclosure of dangerous information. In some areas, the Court initially applied the clear and present danger test or a similar test but eventually moved away from it. I n others, the clear and present danger test remains the standard under which speech threatening speech and hostile audience doctrine, the Court evolved toward a standard
193 of definitional categoricalism, in which constitutionality is based on a finding a specific category of ex pression was employed. More recent jurisprudence demonstrates a narrowing of those categories to apply under only very limite d circumstances and conditions. Part B examin namely, false statements of facts; sexually explicit and violent expression; lewd, profane and indecent speech; and hate speech. Section 1 involving false statements of fact. Section 2, and violent expression doctrine, encompasses a broad array of speech, including : 1) obscenity doctrine; 2) child pornography; 3) depictions of animal cruelty; and 4) violent video games. Section 3 indecent expression. Section 4 closes with discussion of the hate speech doctrine False Statements of Fact 367 it ha s 368 It is written the government may not restrict expression simply because it is false, however, prosecution for just those types of statements underlies the law of defamation. Oppos ed to Chaplinsky expression, 369 a balancing approach weighing 367 Gertz v. Robert Welch Inc., 418 U.S. 323, 340 (1974). 368 Id. 369 Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
194 comp ensating individuals for the reputational and emotional injury of harmful statements. Indeed more modern juris prudence has never imposed a categorical exception for all falsities, i mplicitly recognizing constitutional protection for at least a subset of false speech false opinions. 370 New York Times Co. v. Sullivan off with false speech occurred in New York Times v. Sullivan 371 In Sullivan L.B. Sullivan, a Montgomery, Alabama city commissioner, filed a libel suit based on a full page editorial advertisement published in the New York Times 372 Although the ad did not mention Sullivan by name, he claimed the reference to the Montgomery police personally defamed him. 373 At trial, Sullivan relied on the advertisement itself as well as the testimony of six individuals to establish the connection between himself and the injurious statements. 374 The jury awarded him a $500,000 libel verdict. 375 370 For discussion of the distinction between false factual statements and opinions, see generally, e.g. Robert D. Sacks, Protection of Opinion Under the First Amendment: Reflections on Alfred Hill, 100 C OLUM L. R EV 294 (2000); Robert C. Post, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell, 103 H ARV L. R EV 601 (1990). 371 376 U.S. 254 (1964). 372 Id. at 256. 373 Id at 258. 374 Id. at 288. In his brief to the Supreme Court, Sullivan argued: The reference to respondent as police commissioner is clear from the ad. In addition, the jury heart the testimony of a newspaper editor * *; a real estate and insurance man * *; the sales manager of a clothing stores * *; a food equipment man * *; a service station operator * *; and the operator of a truck line for whom respondent had formerly worked * *. Each of these witnesses s Id (internal citations omitted). 375 Id at 256.
195 recor d, that some of the statements published in the New York Times advertisement 376 Writing for the Court, Justice William Brennan acknowledged the evidence produced at trial demonstrated t hat the publisher had failed to check the accuracy of the publication against its own files; 377 that the Times Secretary suspected at least some of information in the advertisement was false; 378 and that the newspaper had failed to retract the charges at Sullivan's demand. 379 However, Sullivan began announcing a high First Amendment barrier on pression in the competition in the market. In his opinion for the Court, Justice William Brennan quoted philosopher John may be deemed to make a valuable contribu tion to public debate, since it brings about 380 He recognized the ability of the First Amendment to serve as a partial or 376 Id. at 258. 377 Id. at 287. 378 Id at 286. 379 Id 380 Id. at 279 n.19.
196 complete ban on tort liability arising from speech 381 and also the need to protect some false statements to prevent truthful expression from being chilled. 382 The opinion r ejected the standard akin to strict liability that previously existed under common law Under Alabama law, a publication was l 383 384 The standard created a presumption statements. 385 It also provided that a ctual damages did not need to be all eged or proved but were presumed, 386 even though actual mali 387 In its place, Sullivan adopted a standard that false speech about the official conduct of public officials only gives rise to liability when made with actual malice 388 a state of mind requi ring clear and convincing proof 389 that the defamatory falsehood 381 Sacks, Normative Considerations supra note 286, at 195. 382 Sacks, Normative Considerations supra note 286, at 195. 383 Sullivan 376 U.S. defense as to the stated facts unless he can persuade the jury that they were true in all their parti 384 Id damages need not be alleged 385 Id 386 Id 387 I d Id at 262. 388 Id. at 279 80. 389 r and convincing proof is be proved is highly p robable or reasonably certain. This is a greater burden than preponderance of the
197 was made with knowledge of its falsity or with reckless disregard for the truth. 390 The decision shifted the burden of proving falsity onto the plaintiff. 391 Under this new standard, the Court foun d 392 expression under t he First Amendment. The Court wrote 393 It held, neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less 394 It thus found that the circumstantial and testimonial evidence offered at trial was insufficient to satisfy the new standard o f actual malice the Court adopted term to describe what must be proved by the plaintiff to r ecover damages, however, was not invented for the Sullivan opinion Many jurisdictions, punitive damages. Yet, as noted by Justice Hugo Black in his concurrence, what constitutes actual malice may not be as clear as it seem s. According to Black: evidence, the standard applied in most civil trials, but less than evidence beyond a rea sonable doubt, the norm for criminal trials E VIDENCE B LACK L AW S D ICTIONARY (Gardner ed. 2009). 390 Sullivan 376 U.S. at 285 86 (stating that proof presented in Sullivan convincing clarity Is Libel Law Worth Reforming?, 140 U. P A L. R EV 487, 494 (1991) (describing the Sullivan actual malice standard). 391 Anderson, supra note 390, at 498. 392 Sullivan 376 U.S. at 269. 393 Id. at 272. 394 Id. at 273.
198 pt, hard to prove and hard to disprove. The requirement that malice be proved provides at best an evanescent protection for the right critically to discus s public affairs and certainly does not measure up to the sturdy safeguard embodied in the First Amend ment. 395 396 Although Sullivan was decided without a dissent, it was not long before the Court retreated from its protectio n of the value of fals e speech. Ten years later, Gertz v. Robert Welch, Inc. 397 held that statements regarding private persons received less protection than statements about public figures or officials. Gertz v. Robert Welch, Inc. In Gertz attorney Elmer Gertz was hired by a family to sue a police officer who killed their son. 398 American Opinion magazine published an article in an issue available for nationwide sale 399 400 the article. 401 At trial, the publication filed a motion for summary judgment, claiming Gertz could not meet the standard established by the intervening opinion of C urtis Publishing Co. v. 395 Id at 293 (Black, J., concurring). 396 Editorial, The Uninhibited Press, 50 Years Later N .Y. T IMES Mar. 9, 2014, http://www.nytimes.com/2014/03/09/opinion/sunday/the uninhibited press 50 years later.html?_r=1 (last visited Mar. 14, 2014). 397 418 U.S. 323 (1974 ). 398 Id at 325. 399 Id at 327. 400 Id. at 356. 401 Id at 326.
199 Butts 402 applying Sullivan t o anyone that was sufficiently public, not just government officials. 403 The editor also filed an affidavit stating that, although he denied knowledge of the statements he made no effort independently to review the facts of the article, relying ins tead on the autho 404 The judge denied the motion, and a jury granted Gertz an award of $50,000. 405 In a 5 4 opinion, Justice Lewis Powell refused to extend Sullivan to the facts in Gertz allowing for a much lesser fault standard for defamatory statements made about private individuals. 406 It held states are free to establish their own standards of liability for defamatory statements about private individuals concerning matters of public concern as long as they did not apply strict liability. 407 Und er Gertz a private plaintiff could recover damages if he or she could show the defendant acted at least negligently While Gertz established that evidence concerning the injury would be weighed under a preponderance of the evidence standard, the burden ap plied in most civil trials, 408 Gertz held that states could only award punitive or pecuniary damages where a plaintiff 402 388 U.S. 130 (1967). 403 Gertz 418 U.S. at 327 28. 404 Id. 405 Id at 328 29. 406 Id at 348. 407 Id long 408 Preponderance of the evidence means he applied in most civil trial. The jury is instructed to find for the party that, on the whole, has t he stronger evidence, however slight the edge may be. P REPONDERANCE OF THE EVIDENCE B LACK S L AW D ICTIONARY (Gardner ed. 2009).
200 proved actual malice. 409 Stated differently, Gertz eliminated the common law theory of presumed damages, which allowed individuals to recover compensatory damages without evidence of actual loss. 410 te, without more, cannot 411 awareness of ... 412 Sullivan and Gertz sought an optimal balance between compensating individuals for damage to their reputations and av oiding unnecessary press censorship. Sullivan of actual malice before a public official could recover damages for defamatory falsehoods concerning official conduct Gertz reduced the burden of proof of harm from actual malice when statements were made about private figures rega rding matters of public concern. It allowed recovery of pecuniary damages upon a showing of anything more than strict liability. However, i t added a requirement of of actual damages to maintain a reasonable standard in light of the reduced burden. 413 decision to impose a lesser burden in Gertz likely turned on the ate individuals for injury caused to their 409 Gertz actual injury. States may not permit recovery of presumed or punitive damages, at least when liability is 410 ity, personal Id. at 350. 411 Id at 332. 412 Id. (quoting St. Amant v. Thompson, 390 U.S. 727 (1968)). 413 Anderson, supra note 390, at 549.
201 414 Yet, e ach opinion protected libelous statement s despite Chaplinsky such utterances can be banned without any prior assessment of the value stemming from its falsity. They also repealed the common law presumption of strict liability, in favor of a more stringent standard, potentially recognizing the rationale behind the marketplace theory for protecting even false speech to prevent the c hilli ng of truthful expression. 415 Gertz false statements in contributing to public discourse. While the Court acknowledged, not all false factual statements receive First Amendment protection. 416 The Court did not address the footnote argument in Sullivan asserting the opposite point. 417 It only announced several reasons al lie nor the careless error 418 Sullivan Gertz rejected review of private plaintiff libel jury verdicts on a case by case bas is. It found that such a p olicy in the context of defamation claims brought by private individuals 419 414 Gertz rivate individuals are therefore more vulner able to injury, and the state interest in protecting them is correspondingly greater 415 See supra 416 Id. 417 See supra note 380 and accompanying text (referenci ng Sullivan 418 Id. at 340. 419 Id. at 343 44.
202 While Sullivan a nd Gertz involved libel actions, Hustler Magazine v. Falwell 420 involved a claim for injury to reputation caused by false statements under a slightly different tort Falwell extended the actual malice standard to public figures that sue for intentional infli ction of emotional distress (IIED) arising from speech. Hustler Magazine v. Falwell The inside front cover of the November 1983 issue of Hustler featured a parody of an advertisement for a liquor company, claiming Jerry Falwell, a nationally known minister 421 In a unanimous opinion by Chief Justice William Rehnquist, the Court held that ... a bad motive may be deemed controlling for purposes of tort liability in other areas of the law, the First 422 It standard that previously existed in cases involving claims of IIED was too subjective to justify damages for emotional harm caused by an ad a jury to impose liability on the basis of the 423 the fundamental importance of the free flow of ideas and opinions on matters of public 420 485 U.S. 46 (1988). 421 Id. 422 Id 423 Id. at 55.
203 424 by the First Amendment is bound to produce speech that is critical of those who hold public public questions, or by reason of their fame, shape events in areas of co ncern to society 425 But 426 prevent in dividuals like Falwell from circumventing the First Amendment limits of tort liability for public figure defamation plaintiffs by recasting a grievance as a claim for IIED. 427 Stated differently, although actual malice is not an element required under a comm on law claim for IIED, the Court found that a public figure could recover damages for IIED only if, in additional to establishing the elements of IIED, a plaintiff could show: 1) the publication was a false statement of fact; and 2) the statement was made with the requisite level of culpability (knowledge or reckless disregard). 428 To hold otherwise, Chief Justice Rehnquist observed, would be to subject political cartoonists and satirists ebate 429 424 Id at 50. 425 Id. at 51 (quoting 388 U.S. 130, 164 (1967)). 426 Id. at 52. 427 Boyd C. Farnam, Note, Free Speech and Freedom From Speech : Hustler Magazine v. Falwell, The New York Times Actual Malice Standard and Intentional Infliction of Emotional Distress 63 I ND L.J. 877, 885 (1987 88). 428 Sacks, Normative Considerations supra note 286, at 207. 429 Falwell 485 U.S. at 53, 54.
204 The standard has been interpreted to guarantee the same level of protection to media defendants, whether the plaintiff pleads defamation or IIED. 430 Because the jur y found about Falwell, the case fell apart. 431 Despite dicta in several opinions that false factual statements are not protected under the First Amendment, the Court had never, until United States v. Alvarez 432 Alvarez was decided, the Court had almost entirely repudiated its mechanical, categorical approach to libelous statements. In fact, Sulli van Gertz and Falwell demonstrate not even libelous statements are entirely without First Amendment protection. Alvarez referenced the it, the falsity of the statemen t had not been dispositive, but instead involved some other legally cognizable harm associated with it, such as invasion of privacy or the costs of vexatious litigation. 433 United States v. Alvarez In Alvarez Xavier Alvarez was prosecuted for statements made at a water district board meeting under a statute that penalized lying about receipt of a military medal of honor. 434 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded 430 Sacks, Normative Considerations supra note 286, at 207 08. 431 Falwell 485 U.S. at 57. 432 132 S. Ct. 2537 (2012). 433 Id at 2545. 434 Id at 2542.
205 435 None of this was true, and as the Court that eluded 436 The Court found while Xavier 437 did no t constitute a category of unprotec ted speech. 438 As the plurality saw it, the principles established by speech protective decisions such as Sullivan could not now be fashioned into a rule to restrict it. 439 According to the Court: The Government thus seeks to use this principle for a new purpo se. It seeks to convert a rule that limits liability even in defamation cases where the law permits recovery for tortious wrongs into a rule that expands liability in a different, far greater realm of discourse and expression. That inverts the rationale fo r the exception. The requirements of a knowing falsehood or reckless disregard for the truth as the condition for recovery in certain defamation cases exists to allow more speech, not less. A rule designed to tolerate certain speech ought not to blossom to become a rationale for a rule restricting it. 440 435 Id 436 Id. 437 Id at 2547. 438 Id at 2544 45. 439 Id rule that limits liabilit 440 Id.
206 The Court had never endorsed a categorical rule that all false statements receive no First Amendment protection, and no prior decision had confronted a law that targeted 441 The Court interest in protecting the reputation of the military medals, 442 443 The Court applied the standard it adopted in Brown v. Entertainment Merchants Association 444 involving the sale and rental o f violent video games to minors: There must be a direct causal link between the restriction imposed and the injury to be prevented. 445 But unlike Brown in which the government cited numerous studies purporting to demonstrate a causal link between video games and their impact on minors, th e of military awards is diluted by false claims such as those made by Alvarez 446 441 Id. 442 Id 443 Id. at 2549. 444 131 S. Ct. 2739 (2011). 445 Alvarez 132 S. Ct. 2537 (2012). 446 Id.
207 liars ... 447 In sharp contrast, Alvarez of harm. Justice Samuel Alito, joined by Justices Antonin Scalia and Clarence Thomas, 448 Their opinion seemed m ore focused on its belief that the speech in question was valueless rather than whether there was evidence that it caused harm. 449 Summary The variety claims, including: 1) libel claims brought by a public figure and a private figure respectively; 2) a tort claim for emotional damages from false statements published in an ad parody; and 3) the potential constitutionality of (or liability that could be attached to) solely false statements. 447 Id. 448 Id. at 2556 (Alito, J., dissenting ) ( emphasis added). Justice Alito elaborated that: [M]uch damage is caused, both to real award recipients and to the system of military honors, by false statements that are not linked to any financial or other tangible reward. Unless even a small financial loss say, a dollar given to a homeless man falsely claiming to be a decorated veteran as more important in the eyes of the First Amendment than the damage caused to the very integrity of the military awards system, there is no basis for distinguishing between the Stolen Valor Act and the alternative statu tes that the plurality and concurrence appear willing to sustain. Id at 2560 (Alito, J., dissenting). 449 entire Id. at 2564 (Alito, J., dissenting) [t]hese li es have no value in and of themselves, and proscribing them does Id. at 2557 (Alito, J., dissenting).
208 Sullivan rejected the common law presumption of imposing liability for libelous utterances. It adopted an actual malice standard, providing a more optimal balance individuals f or reputational damage, than previously existed under the pres umption utterances were published with knowledge of their falsity or with reckless disregard for the truth or falsity of the statements. Gertz increased interest in protecting private citizens. Falwell likewise represented a new approach to establishing potential liability for emotional harm when libelous utterances were aimed at public figures. In Falwell Jerry Falwell, a Baptist pastor, filed a claim for intentional infliction of emotional distress (IIED) when false statements about sexual experiences he encountered as a kid were trumpeted in a liquor advertisement. The Cour t rejected his attempt to circumvent libel law to recover emotional damages caused by the indubitable parody. The Court revised malice in addition to the normal showing of IIED. In analyzing the conflict between tort liability arising from injurious speech and including: (a) state interests in protecting health, feelings or repu tation, its opinions within the false speech category also
209 emotional injury, at least where physical injury is factually verifiable. However, the Amendment standard to be applied to tortious claims where the speech lacks inherent value. Alvarez proving injury stemming from factual falsities. It n hoc government regulations restricting expression needed to be supp orted by evidence of a tandard would be applied in other instances involving false factual statements, such as where a different set of government interests is involved. Furthermore, the practical difficulty of meeting the empirical standards required by Alvarez as invoked in o ther areas of expression, perhaps raises a different set of questions. Section 2 Section 3 Sexually Explicit and Vio lent Expression Sexually explicit and violent expression encompasses not only opinions involving regulation of obscenity, but also child pornography, animal cruelty and the sale of violent video games to minors. More than fifty five years after declaring o bscene not to have abandoned its categorical approach to regulating obscenity, as it has done in other categories. While the Court has acknowledged its First Amendment protection, it has not extended this categorical presumption beyond
210 obscenity. In fact, Ashcroft v. Free Speech Coalition 450 declined to extend its ban on Brown v. Entertainment Merchants Association 451 the Court found the social science studies submitted by California purporting to show a connection between the speech at issue violent video games and the alleged harm were not enough to demonstrate the requisite evidence of a direct causal link. The burden of direct, causal evidence, as required in Brown appears a long way from Roth constitu tional protection. Roth v. United States The Court had its first occasion in Roth v. United States 452 to squarely consider the constitutionality of obscenity. In Roth Samuel Roth, who owned a book selling business in New York, was found guilty under a federal obscenity statute for mailing obscene materials. 453 redeeming social importance unorthodox, controversial ideas, even ideas hateful to prevailing climate of opinion have the full prote ction of the guaranties, unless 454 Apparently, the majority, led by Justice William Brennan, thought obscenity fit this 450 535 U.S. 234 (2002). 451 131 U.S. 2739 (2011). 452 354 U.S. 476 (1957). 453 Id at 480. The statute prohibited the mailing of material that is obscene, lewd, lascivious, or filthy, or other publication of indecent character. 454 Id at 484.
211 category. It found obscenity constituted a category o 455 Roth established obscenity as an unprotected category of expression because of its presumed as fully developed as lib sufficient evidence to determine that obscenity was also outside of its protection. 456 For instance, the language in Chaplinsky recognized that the restriction of obscenity, similar to libel, was 457 Roth also cited the laws in forty eight states as well as the twenty statutes enacted by Congress from 1842 458 The defen dants in Roth argued the obscenity statutes under which they were convicted violated the Constitution because they punished speech without proof that conduct, or will proba 459 Roth however, determined regulation and penalties for distribution of obscenity could be justified without satisfaction of the clear and present danger test. 460 It established its own test for determining when sp eech is prohibited as obscene. According to the Court, the test 455 Id at 484. 456 Id. at 483. 457 Id at 485. 458 Id. at 484. 459 Id. at 486. 460 Id.
212 461 It upheld the conviction, finding Samuel category. 462 Following Roth added to the obscenity test in Memoirs v. Massachusetts 463 Memoirs required that before material could be deemed 464 The break from Roth in Memoirs was represented most sharply by the third prong of the test, which emphasized that speech could not be proscribe d unless it was found to be utterly without redeeming social value, whereas Roth merely presumed importance prosecution to prove a negative, i.e. that the material was utterly without redeeming social value a burden virtually 465 Miller v. California Sixteen years later, however, the Court again addressed the First Amendment obscenity sta ndard in Miller v. California Miller was not the first time within those sixteen years that the addressed the problem, however, it one 461 Roth 354 U.S. at 489. 462 Id at 485 86. 463 383 U.S. 413 (1966). 464 Miller v. California 413 U.S. 15, 21 22 (1973). Memoirs dominant theme of the material taken as a whole appeals to the prurient interest in sex; (b) the material is patently offensive because if (sic) affronts con temporary community standards relating to the description See Memoirs 383 U.S. at 418. 465 Miller 412 U.S. at 22.
213 of several cases re examining 466 Defendant Marvin Miller was convicted under a California statute prohibiting 467 He was arrested for conducting a mass mailing campaign to advertise the sale o f adult material bro chures complained to the police. 468 Writing the opinion for the Court, Chief Justice Warren Burger dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of 469 He affirmed the part of Roth banning obscenity finding it was otected by the First Amendment. 470 Ye t, Burger a cknowledged that egulate tate statutes designed to regulate obscene materials must 471 466 Miller 418 U.S. at 16. 467 Miller 418 U.S. at 16. The California statute under which the Miller was convicted prevented, in C AL P ENAL C ODE Â§ standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, which goe s substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social 468 Miller Id. the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed. Id. 469 Id at 18 19. For further discussion of the moral harm caused by obscenity, see Andrew Koppelman, Does Obscenity Cause Moral Harm? 105 C OLUM L. R EV 1635 (2005). 470 Miller 413 U.S at 23. 471 I d at 23 24.
214 Miller reformulated the Roth test as requiring that a state offense regulating obscenity must be interest in sex, which portrays sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, po 472 The Court found this required a trier of fact to establish three elements, whether: 1. that the work, taken as a whole, appeals to the prurient interes 2. 3. 473 The decision r epudiated Roth presumption that obscenity was without redeeming social value 474 replacing it with a requirement t hat a depiction or description be deemed obs cene. 475 emporary community standard s did not define the specific standard to be applied, 476 but merely asserted he doubted application of 477 According to Burger it is neither realistic nor 472 Id. at 24. 473 Id. 474 Id at 24. 475 Id. at 26. 476 Id. 477 Id. Statutes do not vary from community to community, but this does not mean that there are, or should be, fixed, uniform national standards or prec See also id at 32 (quoting Chief Justic e Earl
215 constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or 478 He did not clarify the requisite type or amount of evidence needed to demonstrate that sexually explicit material was obscene as to a specific community, but simply found 479 The Court vacated the jury verdict and remanded the case 480 The Miller opin ion setting forth the modern day, three pronged standard to be used for evaluating obscenity was the first time a majority since Roth had agreed on a definition of obscenity. 481 It provided s tates with broad leeway for prosecuting purveyors of obscene materi al. 482 483 Paris Adult Theatre v. Slaton 484 decided the same day, simultaneously Jacobellis v. Ohio 378 U.S. 184 (1964), as supporting application of a local community standard). 478 Id. at 32. 479 Id. 480 Id. at 37. 481 Id. at 29. 482 Notes, Community Standards, Class Actions, and Obscenity under Miller v. California, 88 H ARV L. R EV 1838, 1842 (1975) [hereinafter Notes, Community Standards ]. 483 Id. 484 413 U.S. 49 ( 1973).
216 granted triers of fact freedom 485 Paris Adult Theatre v. Slaton Paris Adult Theatre involved the conviction of movie theater owners under a Georgia statute 486 for showing obscene films. 487 Evidence produced at trial included photographs of the entrance of the movie theater at the time the complaint was filed and also testimonial evidence by investigators that there was nothing on the outside of the theater indicating the full nature of the f ilms. 488 However, fifteen days after the proceedings began the movie theater operators also produced the films themselves into evidence 489 In a 5 4 opinion by Chief Justice Warren Burger, the Court held obscene films did not acquire constitutional protection simply because they were shown only to consenting adults. 490 The Court acknowledged that while it has 485 Notes, Community Standards supra note 482, at 1842. 486 G A C ODE A NN Â§ 26 2101. The statute reads in relevant part: (a) a pers on commits the offense of distributing obscene materials when he sells, lends, rents, leases, gives, advertises, publishes, exhibits or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof, or who (b) Material is obscene if considered as a whole, applying community standards, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, s ex or excretion, and utterly without redeeming social value and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such Id. 487 Paris Adult Theatre 413 U .S. at 50 51. 488 Id at 52. 489 Id 490 Id. at 57, 68
217 importance of regulating the exposure of obscene materials to juveniles and in regulating obscene material. The Court affirmed the the total community environment, the tone of commerce in the great city centers, and, 491 Althoug demonstrate[d] that exposure to obscene material adversely affects men and women or 492 Chief Justice Burger cited the Hill Link Minority Report of the Commission on Obsc 493 But he went further, stating that even if conclusive evidence had not been established, it was not for resol 494 491 Id at 58. 492 Id at 50. 493 Id at 58 (citing R EPORT OF THE C OMMITTEE ON O BSCENITY AND P ORNOGRAPHY 390 412 (1970)). See also Memoirs v. Massachusetts, 383 U.S. 4 13, 451 53 (1966) (Clark, J., dissenting). According to Justice While erotic stimulation caused by pornography may be legally insignificant in itself, there are medical experts who believe that such stimulation frequently manif ests itself in criminal sexual behavior or other antisocial conduct. For example, Dr. George Henry of Cornell University has expressed the opinion that obscenity, with its exaggerate and morbid emphasis on sex, particularly abnormal and perverted practices and its unrealistic presentation of sexual behavior and attitudes, may induce antisocial conduct by the average person. Id. But se e id at 451 (discussing a division of thought between behavioral scientists in earlier studies on the correlation between obscenity and socially deleterious conduct). 494 Id. at 60 (quoting Ginsberg v. New York, 390 U.S. 629, 642 104, 110 (1911))).
218 Chief Justice Burger ruled conclusive proof of a connection between antisocial behavior and obscene material was not necessary to justify the Georgia law. 495 According to the majority thing in the Constitution [that] prohibits a State from reaching such a conclusion and acting on it legislatively simply because there is no 496 To the contrary, Burger rejected a requirement of proof of harm before all owing a state to legislate. He held, it was the sum of experience including that of the last two decades[, that] affords ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex. 497 Paris Adult Theatre thus rejected outright a requirement of proof of harm in favor of substantial legislative deference. It approved l egislative reliance on qualitative, anecdotal evidence, amounting to less than scientific proof to regulate the display of obscene expression. The opinion also rejected the argument it was failure to require were obscene when the materials 498 Chief Justice Burger noted that the use of what the y otherwise could not understand, 499 However, when the films themsel ves are submitted into evidence, he ruled, 500 495 Id at 60 61. 496 Id. 497 Id at 63 (emphasis added). 498 Id. at 56. 499 Id. n.6. 500 Id at 56.
219 and that, in such an instance, no assistance is needed. 501 Under such a interpretation, it the Court concluded of Georgia from the regulation of the allegedly obscene material exhibited [by the Paris Adult Theatres], provided that the applicable Georgia law, as written and authoritatively construed by the Georgia courts, meets the First Amendment standards set fort h in Miller v. California 502 The decision s so far disc ussed in Section 2 represent only to defer to government decisionmaking but to wholly discard arguments in favor of some kind of showing to regulate obscenity even as to consent ing adults. Miller adopted However, the Miller standard, viewed in its entirety, represented in practice only a minor improvement to the presumption of unconstitutionality Roth applied. In Paris Adult Theatre the Court continued the trend of rejecting a requirement of evidence of proof of harm, ruling state legislatures could l egitim ately regulate obscenity on the basis of a mere conclusion of harm stemming from the display of sexually explicit material in the name of protecting the s ocial interest in order and morality. It also ruled expert testimony is not required, especially when the material is presented to the court, to establish that it is obscene. W hile these opinions upheld the constitutionality of a ban on obscenity, the next opinion extended the ban to a new ca tegory of material child pornography. 501 Id n.6. 502 Id. at 69.
220 Ferber v. New York In New York v. Ferber 503 the Court had a prime opportunity to address the 504 stemming from the creation, sale and distribution of child pornography. Defendant Paul Ira Ferbe r owned a bookstore specializing in sexually oriented products. He was arrested and indicted under a New York statute prohibiting the distribution of a sexual performance of a child under the age of sixteen. 505 New York was one of twenty states prohibiting t he distribution of material depicting children engaged in sexual conduct without requiring that the material be legally obscene. 506 In enacting the criminal statute, New York had relied upon an array of sociological and psychological studies purporting to de monstrate the connection between abuse and harm caused to the child 507 as well as the need for restrictions of the kind it had enacted to adequately address the social issue. 508 Ferber extended the categorical exception of unprotected expression to the sale an d distribution of child pornography under a standard distinct from the Miller test for obscenity. Justice Bryon White, writing the opinion for the Court, noted it was the New 503 458 U.S. 747 (1982). 504 Id. at 749. 505 New York Penal Law section 263.05 (1980) makes the use of a child in a sexual performance a class C felony. in Â§ 263.00(3) as defined to include the sale, publication or distribution of such material if he knows of the character or content of the sexual performance. Â§ 265.145. 506 458 U.S. at 749. The Court noted that forty seven states and the Federal Government also prohibited the production of child p ornography, half of them not requiring the material be legally obscene. Id. 507 Id n.9 (listing studies). 508 Id at 749.
221 Yo rk l tion of 509 well as the judgment of the relevant literature, is that the use of children of subjects of pornographic material is harmful to the psychological, emotional, and mental health of 510 Relying upon this literature, Justice White found photographs and films depicting sexual activity by juveniles is intrinsically related to the 511 In his opinion, however, he also seem 512 and that, 2) quired in order to 513 He held that and abuse of children constitutes a government objective of surpassing impo that he at a body of relevant literature and testimony supported the legislative conclusions. 514 depicting minors engaged in explicit sexual conduct without a requirement that the material 509 Id at 757 (quoting N.Y. L AWS 910 Â§ 1). 510 Id at 758. 511 Id. at 759 (citing one of the studies) (emphasis added). 512 Id at 761. 513 Id at 760 (citing testimony by lawmakers, professors and law enforcement officials before the Subcommittee on Crime of the House Judiciary Committee generally supporting the point that targeting the production of child pornography is not sufficient). 514 Id. at 7 57 60.
222 threatened the harms identified by the governmen t facially valid. It wrote that some States may find that [such an] approach properly accommodates its interests, it does n 515 The Court held did not undermine its constitutionality. 516 The Court rejected the application of the Miller standard to child pornography, of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive matter; and the material at issue need not be considered as 517 Justice White sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment 518 but knowing distribution of depictions of minors engaged in explicit sexual conduct, regardless of the social value, does not. 519 On the other hand, Justice John Paul Stevens concurred in opinion, but 520 He noted e 515 Id at 761. 516 Id at 773. 517 Id at 764. 518 Id. at 765. 519 Id. at 765 66. 520 Id at 765 (Stevens, J., concurring).
223 however, is drawn substantially from congressional Committee Reports that ultimately reached the conclusion that a prohibition against obscene child pornography coup led with sufficiently stiff sanctions 521 The normally considered child pornography are obscene under the current standards h this blatant pornography, non obscene materials that depict 522 believe a more conservative approach to the issue would adequately vindicate the 523 just as strong as if an adult actor had been used 524 yet refused to hypothetically address how such an instance might affect overbreadth analysis. 525 Ferber held that child pornography was a category of lo w value expression that could be categorically prohibited. The Court buttressed its conclusion that distribution of materials depicting child ren engaged in sexually explicit conduct resulted in psychologic al harm to children by citing sociological and psyc hological studies 521 Id. n.4. (Stevens, J., concurring). 522 S. R EP N O 95 438, at 13 (1977). See also Ferber 458 U.S. at 765 n.4 (Stevens, J., concurring). 523 Ferber 458 U.S. at 765 (Stevens, J., concurring). 524 Id. at 779 (Stevens, J., concurring). 525 Id. (Stevens, J., concurring).
224 demonstrating a connection between harm to children and child abuse. It also relied upon the testimony of lawmakers, professors and law enforcement officials before a congressional committee hearing to support its contention that stringen t restrictions on the distribution of such sexually explicit materials depicting children engaged in sexual explicit conduct were necessary to proper adjudication. It doing so, it appeared to rely on the scientific and testimonial evidence which may or may not have specifically addressed the specific problem before the Court to support its conclusion. Although t he decision recognized potential limits to the category of child pornography, it was not until twenty years later in Ashcroft v. Free Speech Coaliti on 526 that the Court specifically addres sed those limits. Ashcroft v. Free Speech Coalition In Free Speech Coalition the Court considered the constitutionality of the Child Pornography Prevention Act (CPPA), which extended the federal prohibition on child pornography to images of virtual child pornography 527 Free Speech Coalition an adult e ntertainment trade association, distribution of materials created using adults who looked like minors or through the use of computer technology that made it possible to create realistic images of children that did not actually exist. 528 529 526 535 U.S. 234 (2002). 527 Id at 239. See Child Pornography Prevention Act of 1996, 110 Stat. 3009, Pub. L. No. 104 208 (codified at 18 U.S.C. Â§ 2251). 528 Free Speech Coal. 535 U.S. at 239 40. 529 pict ure or computer or computer ppear to depict minors but were produced by
225 530 phrases of the CPPA were overbroad and vague and thus violated the First Amendment. 531 In a 6 3 opinion by Justice Anthon y Kennedy, the Court held t he CPPA was overbroad and unconstitutional. 532 It found the CPPA did not attempt to conform to the Miller stand ard, but it acknowledged Ferber recognized that depictions of child pornography could be banned whether or not they were obscene as defined by Miller 533 However, t he Court in this opinion that involve, let alone thus were distinguishable from the depictions banned in Ferber 534 Despite the C the government alleged there were other reasons for upholding the CPPA, including tha t the materials could threaten children in less direct ways. 535 536 Additionally, the government argued, mages can lead to actual other means than using real children, such as through the use of youthful looking adults or computer Free Speech Coal 535 U.S. at 234. 530 CPPA Section 2556(8)(D) bans any sexually explicit i Free Speech Coal. 535 U.S. at 234. 531 Id. 532 Id. 533 Id at 240 41. 534 Id at 241. 535 Id. at 241. 536 Id.
226 537 538 It found the government d harm and the some unquantified (sic) 539 than a remote con nection between speech that might encourage thoughts or impulses 540 connection, the Government may not prohibit speech on the ground that it may encourage pedophiles to 541 Thus, despite the relevance of minors usually underlying a broad deference to legislative discretion the Court rejected extension of the interest in Free Speech Coalition to strike down a b an on virtual child pornography in the void of evidence demonstrating a greater connection between the alleged harm and the speech to be prevented. Free Speech Coalition Congress took greater efforts to demonstrate the proximate link between virtual child pornography and harm to 537 Id at 250. 538 Id. at 253. 539 Id. 540 Id. 541 Id.
227 defense could save th 542 ll have a compelling interest in barring or otherwise regulating some narrow category of order to enforce effectively laws against pornography made through 543 Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (or the 544 to address the Free Speech Coalition has suggested the provisionary language of the PROTECT Act still contains some of the imprecisions. 545 According to Professor Sara Macy, it is unclear whether a study involving virtual child pornography would ever be able to demonstrate the proximate link required under Ferber given the ethical constraints at hand. 546 Furthermore, Ferber could still be distinguished as creating only a production 547 It is perhaps for these reasons Macy suggests t pursuing vigorous enforcement of previously ex isting federal obscenity laws, in addition 542 Id at 259 (Thomas, J., concurring). 543 Id. (Thomas J., concurring). 544 Pub. L. No. 108 21, 117 Stat. 649. 545 Sara C. Macy, Virtual Child Pornography: Is there Any Way Around Ashcroft v. Free Speech, 81 N.C. L. R EV 2136, 2153 55 (2003). 546 Id. at 2149. 547 Id.
228 to precedent. 548 category have: a) upheld a presumption of the constitutionality of regulations targeting obscenity; b) revised that standard in favor of the modern day three pronged Miller test; c) upheld re strictions on the distribution and sale of child pornography; and d) carved out from that category protection for material involving individuals that only look like children. While Ferbe r appeared to impose a rather burdensome benchmark based on evidence o deference actually adopted by the Court would require such proof. This is different than the significantly more stringent standard enforced in Free Speech Coalition in which the Court required evidence of a direct speech injury connection but found the evidence was not sufficient to support that showing. Free Speech Coalition also addressed application of the standard in a slightly different method than Ferber in which the Court link It began with pronouncement of a standard and then took turn to evaluate whether the evidence offered was sufficient to meet it. While the cases so far have addressed obscenity and pornography, the next case in this section, United States v. Stevens 549 involved a federal statute prohibiting a different type of material: depictions of animal cruelty. 548 Id. at 2155 56. 549 559 U.S. 460 (2010).
229 United States v. Stevens Stevens involved a challenged to a federal sta tute prohibiting the creation, sale or possessio n of depictions of animal cruelt y. 550 Notably, the statute did not address the portrayals 551 The statute was enacted to target so ]he cries 552 The videos were said to appeal 553 Robert J. Stevens challenged the law after he was indicted for selling hunting and other videos through his bu siness and its associated website. 554 555 In Stevens Chief Justice John Roberts, who wrote the opinion for the Court 550 Id at 464 which a living animal is intentionally Â§ 48 (1999). Section 48 (a) created a criminal penalty of up to five years in prison for anyone who knowingly Miller the law also contained an exceptions clause, exe Â§ 48(b). 551 Stevens 559 U.S. at 464. The Court noted the conduct of harming animals often falls within established regulat ions on animal cruelty for instance, laws prohibiting dog fighting. Yet, it continued, these laws are often ineffective at targeting the underlying conduct in crush videos because the videos Id. at 466. 552 Id. at 465 66. 553 Id. at 466. 554 Id. 555 Id
230 found depictions of animal cruelty were not among them. 556 evide 557 Chief Justice Roberts reasoned that that freewheeling authority to declare new categories of speech outside the scope of the First Amend 558 categories of speech that have been historically unprotected, but have not yet been depictions of animal c ruelty in Stevens 559 animal cruelty could be exempted from First Amendment protection on the basis of the red and killed [are] of such minimal redeeming value as to render [them] unworthy of First Amendment 560 The government contended ch against its 561 This view, it said, had been derived from a number of opinions, including Chaplinsky and Ferber Yet, Chief Justic e Roberts rejected that argument. According to Robert, e arlier 556 Id. at 468. 557 Id. at 469. 558 Id at 472. 559 Id. at 472. 560 Id. at 470. 561 Id. at 471.
231 slight value as a step to the truth that any benefit that may be derived from them is clearly outweighed by the social in terest in order and morality. 562 Yet, he held that that may be applied as a general matter to permit the Government to imprison any speaker so long as his speech is deemed valueless or u nnecessary, or so long as an ad hoc calculus of costs and benefits tilts in 563 Stevens determined First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs 564 pro und it had never been on the basis of a simple cost 565 It held 566 The Court also took issue with the statute s exception clause, protecting on ly 567 ts of animal 568 The language of the exception was largely drawn from the opinion in Miller requiring depictions of sex to have serious value for them to be excepted f rom 562 Id at 470. 563 Id. at 471. 564 Id 565 Id. 566 Id 567 18 U.S.C. Â§ 48(b) (1999). 568 Stevens 559 U.S. at 478.
232 obscenity. Nor did the government contest the issue that the presumptively impermissible applications far outweigh the permissible ones. 569 Yet, the Court held, e did not however, determine that serious value could be used as a precondition to prot ecting other type categories of speech prohibited by the statute. 570 The government, finally, argued even if the reach of the statute went beyond that which was permissible it was nonetheless cured by its construction to reach only 571 The Court, however, found that a statement by President William J. Clinton, when the law was enacted characterized the statute as targeting only depictions o a prurient to read the statute as the government desired would rewriting would constitute 572 In Stevens historical use of a categorical exception for obscene material, yet it refused to extent the category to depictions of animal cruelty. The decision also adhered to a preferred position balancing approach, placing greater emphasis on First Amendment intere st in protecting expression. Chief Justice Roberts refused to subscribe a standard of deference to Congress on its 569 Id. at 481. 570 Id 571 Id at 480. 572 Id.
233 interpretation of the statute or a limiting construction, but simply found that the statute was not narrowly tailored to prohib it only unprot ected expression. If Stevens represents one small step toward an increased burden of proof in the Brown v. Entertainment Merchants Association 573 coming down the very next t erm, represents a giant leap. Brown v. Entertainment Merchants Association In Brown representatives of the video game and software indu stries challenged and require 574 The law defined violent video games dismembering, or sexually assaulting an image of a human being, if those acts are would find appeals to a deviant or morbid interest of minors 575 Finding that vid 573 131 S. Ct. 2729 (2011). 574 Id. at 2732. 575 Id.
234 harmful to b Brown 576 577 The New York statute regulating obscenity for minors upheld in Ginsburg v. New York 578 In that case, the Court approved a ban on the sale of sexual material that could 579 It reasoned in Ginsburg that a islature could adjust the definition of obscenity to social realities by permitting the appeal of this type of material to be assessed in terms of sexual 580 In Brown however, the Court found that Ginsburg did not allow regulation of vi olent material on the same basis because violence is not, per se, obscene. 581 576 Id based titled to a significant measure of First Amendment protection, and only in relatively narrow and well defined te power to protect children from harm, but that does not Id at 2736 (internal citations omitted). 577 Id at 2735. 578 390 U.S. 629 (1968). 579 Brown 131 S. Ct. at 2735 (de scribing the Ginsbe rg opinion). See also id in Ginsbe rg See also N. Y. P ENAL L AW Â§ 484 h(1)(f)(1965) (currently enacted as N. Y. P ENAL L AW Â§ 235.2 (McKinney 2014)). 580 Ginsberg Id. at 641. 581 Brown 131 S. Ct. at 2729. On that note, the Court found: The California Act is something else entirely. It does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. California does not argue that it is emp owered to prohibit selling offensively violent works to adults and it is wise not to, since that is but a Stevens Instead, it wishes to create a wholly new category of content based regulation that is permissib le only for speech directed at children.
235 subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas 582 The fact 583 The Court next addressed the standard to be applied to evaluate the g violent video games. It held that the statute must pass the that is, in order to impose a restriction on the 584 It added that California 585 Given such a demanding standard, it is not su rprising the Court ruled the evidence on which California relied could not satisfy it. 586 was not compelling. According to the Court, California had relied on research that posure to violent video 587 Apparently, for Justice Antonin Scalia, who Id at 2735. 582 Id. at 2736. 583 Id at 2738. 584 Id. 585 Id 586 Id 587 Id. at 2739.
236 games cause[d] minors to act 588 Furthermor e, the Court concluded the demonstrate that the small effects video games produced in some studies were distinguishable from effects produced by other media. 589 The Court determin ed California had not produced evidence of a direct, causal link between the games and the harms caused to minors. 590 decision in Turner Broadcasting v. F ederal Communications Commission 591 California a predictive legislative judgment that such a link exists, based on competing 592 However, the Court rejected this assertio n reliance on Turner Broadcasting scrutiny applied to a content neutral regulation. 593 588 Id. 589 Id. 590 Id. at 2738 42. In Brown the harm caused by the video games is dependent on how the children react games can be analogized to the harm caused in Nebraska Press ing of sensational Similarly, in Claiborne the Court fou instance, the potential harm caused by the speech was distinct. In Claiborne the charge revolved aroun d the economic damage caused to the white merchants. In Nebraska Press the government alleged the Brown the government aimed to prevent violent reactions caused as a result of inte raction with violent video games. While the type of harm may well impact the level of proof of harm the Court applied, the time period during which each of the opinions were decided may well have also affected the standard required by the Court. 591 512 U.S. 622 (1994). 592 Brown 131 S. Ct. at 2738. 593 Id.
237 burden is much higher, and because it bears the risk of uncertain ty, ambiguous proof 594 Scalia and Breyer reached two diametrically opposed decisions in Brown Whereas Scalia, who authored the majority opinion in Brown found the California statute opposing the sale of video games to minors unconstituti onal under a strict sta ndard, Breyer acknowledged his lack of 595 the legislature to make such a decision. 596 He found that in technical matters such as interpreting social science research the Court owed the legislature a grant of deference. 597 However, the decision does not provide a rationale why the legislature would be in a better position to make a determinatio n regarding an evaluation of the literat ure. Brown represents the most stringent First Amendment standard applied by the Court within its obscenity doctrine The decision represents the first time the Court considered the harm caused to minors from violent video games. In this instance, the nature of harm implicated is trifold: 1) psychological harm; 2) physical harm; and 3) ence. 598 According to Geoffrey Stone, the 594 Id. at 2739. 595 Id at 2769 (Breyer, J., dissenting). 596 Id at 2770 (Breyer, J., dissenting). 597 Id (Breyer J., dissenting). 598 Geoffrey Stone, Sex, Violence and the First Amendment 74 U. C HI L. R EV 1857, 1866 (2007).
238 approach for more than two centuries, is simply a bad 599 Summary The cases discussed above can arguably be divided into four different subcategories based on the vehicles of expression involved: 1) obscenity, 2) child pornography; 3) depictions of animal cruelty; and 4) violent video games. They also involve an array of alleged government interests, largely involving protection of minors either in protection of the sensibilities, from violence or sexually explicit material, or from physical abuse. Across the broad variety of expression, the Court appea a standard requiring a very high level of proof of harm. Yet, the opinions discussed here ently based on the content of the expression whether obscenity, child pornography, depictions of animal cruelty or depictions of violence contained within the sale or rental of violent video games to minors. Within obscenity, the Court has largely relied on the government to determine the bounds of access to obscene material. Roth adopted a very low standard of First Amendment protection. In Roth the Court determined obscenity was outside of the First of har m stemming from the expression. In fact, Roth rejected the argument that specific proof of harm was needed to regulate obscenity. The Court pointed only to anecdotal evidence of legislative attempts to regulate obscenity to support its contention that obsc 599 Id at 1866 67.
239 person, applying contemporary community standards, the dominant theme taken as a Miller establishing the Co day obscenity test, affirmed Roth designation of obscenity as beyond First Amendment protection. While Miller refined the First Amendment standard applicable to obscenity, it overall did little to advance the categorical exemption. Miller na local community, 600 while also requiring that obscene material may only be banned serious literary, artistic, political, or scientific value In Par is Adult Theatre decided the same day as Miller the Court continued the trend of rejecting a requirement of evidence of a connection between obscene material obscen ity, even as to consenting adults, on the basis of a mere conclusion of harm stemming from the display of sexually explicit material In New York v. Ferber the Court established the low value category of child pornography. It granted the government broad deference to regulate child pornography in light of the compelling interest of preventing harm to children. Ashcroft v. Free Speech Coalition rejected extension of the categorical exception to virtual child 600 The Court wrote that at trial, the jury was instructed to consider whether dominant theme of the substantially beyond customary limits of candor and affronts contemporary community standards of California prosecution and the defense making the factual determination of obscenity were those of the State of California Id. at 31. On the basis, the Court ruled it was not constitutional error for the prosecution to fail to offer evidence of a national standard.
2 40 pornography. As opposed to the broad deference ap plied in Ferber the Court required a heightened In Stevens the Court noted depictions of animal cruelty were not among the historical and traditional categories of unprotected expression. Instead the Court applied a preferred balancing position weighted in favor of First Amendment interest s, rather than an ad hoc weighing of the societal costs against the v alue of the expression. In Brown the Court adopted a heightened burden, representing perhaps the most stringent standard the Court has applied in opinions evaluating free speech. It is perhaps interesting the Court has adopted such a stringent standard in a case involving an interest in protecting children. In Ferber for instance, the Court refused to require more stringent evidence in a regulation aimed at child protection. Similar to Nebraska Press Claib orne political boycotts), the harm posed in Brown is dependent upon the actions of an non im mediate future. This same reliance on the conduct of a third party was present in Free Speech Coalition between the stated government in preventing child abuse through the categorical prohi bition of virtual child pornography (that would by definition not use real children in its production.) Rather than adopt a standard focused on the imminence of the third h in all likelihood would fail to account for the relationship that some harms share with
241 expression, the Court has focused on the connection between the speech and the t expression namely, Free Speech Coalition Stevens and Brown demonstrate that while the Court has not repudiated its categorical obscenity doctrine, it has rejected a al Section 2 and violent expression. Section 3 Lewd, Profane and Indecent Expres sion Chaplinsky categorically banned under the First Amendment. Yet, these cases demonstrate anything but the direct contravention of speech based on t he category of expression used. What thi s variety to uphold restrictions on the expression based on some other governm ental rationale for regulating. perceived as a content based restriction, under the guise the regulation did not actually target the content of the expression, but the repercussions of the expression on the surrounding communi ty. Other op inions falling within this vareity include endorsement of of indecent expression, akin to time, place and manner restrictions.
242 Cohen v. California In Cohen v. California 601 Paul Robert Cohen was convicted under a California disturbing the 602 The 603 ery beginning. The Court began with declaring that the state had attempted to penaliz e Paul Robert Cohen based on the words he used to convey his message. 604 lack[ed] the power to punish Cohen for the underlying content of the message the 605 appropriately decorous atmosphere in the courthouse where Cohen was arrested according to the Court, must fail in the absence of any language in the statute that 601 403 U.S. 15 (1971). 602 Id mean wearing the jacket. He did not speak to others at the courthouse about evading the war draft. There was no encouragement of others to curtail the war effort. This case can be distinguished from Schenck Abrams and other earlier cases in which there was no incitement to unlawful action of curtailing the war effort. 603 Id. at 15 (quoting the statute). 604 Id. at 18. 605 Id
243 would have put appellant on notice that certain kinds of otherwise permissible speech or 606 But this, to the Court, did not end the matter. According to the Court, the First speak whenever or wherever he places or to use any form of address in any 607 The Court ev established the power of government to deal more comprehensively with certain forms of individual expression simply upon a showing t 608 The Court first queried whether the speech could be viewed as obscene, but determined obscene expression, such expression must be, in so 609 It letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in th 610 There was no individual actually or likely to be present that could reasonably have regarded the words anyone 606 Id at 19. 607 Id. 608 Id. at 19 20. 609 Id vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely 610 Id (citing Cantwell v. Connecticut, 310 U.S. 296, 309 (1940)).
244 611 The Court thus rejected that the contention addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke 612 The Court next addressed arguments presented before the Court that California 613 It recogn ized, while the Court has ruled [the] government may properly act in many situations to prohibit intrusion the same time consistently off discourse solely to protect others from hearing it is, in other words, dependent up on a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a manner of personal predilections. 614 From here, unwitting listeners or viewers does not serve automatically to justify curtailing all speech avoid f 615 611 Id. 612 Id 613 Id. at 21. 614 Id. 615 Id
245 showing not fit any of the previou sly identified categories and thus could not restrict his speech. of citizens are standing ready to strike out physically at whoever may assault their sensibilities with 616 Yet, even in upholding al attack, the Court indicated it might have 617 618 In d oing so, the Court protected not only the emot ive but the cognitive element of speech, 619 even in the face of prior precedent permitting prohi 616 Id at 23. The Court continued: The re may be some persons about with such lawless and violent proclivities, but that is an insufficient base upon which to erect, consistently with constitutional values, a government power to force persons who wish to ventilate their dissident views into avo iding particular forms of expression. The argument amounts of little more than the self defeating proposition that to avoid physical censorship of one who has not sought to provoke such a response by a hypothetical coterie of the vio l ent and lawless, the S tates may appropriately effectuate that censorship themselves. Id. 617 Id (citing Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)). 618 Id at 25. 619 For further discussion on the emotive and cognitive elements of speech, see, e.g ., W. Wat Hopkins, When Does F*** Not M ean F***? FCC v. Fox Television Stations and a Call for Protecting Emotive Speech 64 F ED C OMM L.J. 1 (2011). For further discussion of the facts and impact of the Cohen opinion, see generally, e.g ., Clay Calvert, Revisiting the Right to Offen d Forty Years After Cohen v. California : One 10 F IRST A MEND R EV 1 (2011).
246 The next case in the series, decided three years later, involves a state challenge to a different type of expression falling under this same brand: the display of lewd, but nonobscene, films in a public place. Erznoznik v. City of Jacksonville In Erznoznik v. City of Jacksonville 620 the City of Jacksonville enacted an ordinance declaring it a public nuisance for any drive motion picture in which bare buttocks or female bare breasts were exposed if the movie theater screen on which the film was shown w as visible from any public street or public 621 The city conceded its ordinance swept far beyond the permissible constitutional restraints on obscenity and thus applied to films that were protected by the First Amendment. 622 But it argued it nonetheless had significant interests in preventing the public display of nude films 623 624 but also to protect 625 The only e vidence produced at trial was 620 422 U.S. 205 (1975). 621 Id at 206. The Jacksonville Ordinance section 330.313 declared it a public nuisance to exhibit any motion picture in which bare buttocks or female bare breasts were exposed if movie theater screen on which the film was shown was visible from any public street or public place. J ACKSONVILLE F L ., C ODE Â§ 330.313 (1972). See also Erznoznik 422 at 206 07. 622 Id. at 208. 623 Id. 624 Id. 625 Id at 212.
247 observed watching films while sitting outside the theat er in parked cars and in the 626 The Supreme Court rejected these arguments. According to Justice Lewis individual privacy by enacting reasonable time, place, an based restrictions forbade Jacksonville from being able to single out a restriction on the display of mov i es on the basis of the underlying content. 627 overnment acting as censor, undertakes selectively to shield the public from some kinds of speech on the ground that they are more offensive than others, the First Amendment strictly limits its 628 Mor eover, the Court determined, er obscene as to youths or subject to some other legitimate proscription in the name of protecting the 629 On that all nudity was too broad to uphold the ordinance. 630 The Court summarily addressed the next argument that the ordinance constituted a traffic regulation. 631 It claimed, for the first time upon oral argument before the Court, 626 Id at 207. 627 Id 628 Id. at 209. 629 Id. at 213 14. 630 Id at 209. 631 Id. at 214.
248 in movie screen distracts passing motorists, thus slowing the flow 632 It did not contest the validity of tra rigorous constitutional standards that apply when government attempts to regulate 633 According to the Court, here is no reason to think that a wide va riety of other scenes in the customary screen diet, ranging from soap operas to violence, 634 It determined that Jacksonville ... for distinguishing movies containing nudity from all other 635 and thus that the statute was 636 In Erznoznik the Court struck down a government regulation based on content, finding the government offered no valid justifi cation for regulating only the display of movies containing nudity and not any other type of film that might also violate its interests. Although it juxtaposed Erznoznik increase in privacy served by restricting the public display of nude films, the Court declined to apply a balancing approach. 637 Instead, Justice Powell characterized the 632 Id. 633 Id. 634 Id at 214 215. 635 Id. at 215. 636 Id. at 214. 637 Note, State Power to Impose Restrictions on Content of Drive In Motion Pictures 89 H ARV L. R EV 123, 123 (1975).
249 638 While the decision has been interpreted as guaranteeing drive in movie theaters significant First Amendment protection against state regulation p redicated on film content, 639 the Court also did not impose a stringent evidentiary burden to uphold such a government distinguish movies containing nudity from all other movies. 640 Erznoznik struck down a regulation prohibiting the public display of nude films on the rationale that content based restrictions are offensive to free expression. Jacks content of expression if the regulation is not aimed at the underlying message conveyed. Young v. American Mini Theatre s Inc. Young v. American Mini Theat r e s 641 involved a challenge by the operators of two adult movie establishments in Detroit 642 to a zoning ordinance requiring certain business es to be dispersed. 643 638 Id at 123 24 (quoting Erznoznik 422 U.S. 205, 224 (White, J. dissenting)). 639 Id at 123. 640 Erznoznik distinguishing movies containing nudity from all other movies in a regulation designed to protect traffic. d to uphold the ordinance. 641 420 U.S. 50 (1976). 642 Id. at 52 54. 643 Id. at 52.
250 644 defined to include ten businesses in addition to adult theaters. 645 At the time the original ordinanc e was adopted, the Detroit Common Council determined 646 In support of this finding, urban planners and real estate experts testified that th e undesirable quantity and quality of transients, adversely a ffects property values, causes a n increase in crime, especially prostitution, and encourages residents and busine sses 647 opinion of one individual, Dr. Mel Ravitz, a sociologist at Wayne State University located in Detroit, and a former member of the Detroit Common Council. 648 He filed a n affidavit at the time the amendments were enacted reciting some sociological reasons for regulating the location of adult businesses. According to Ravitz: [The] effect on neighborhoods of concentrations of [adult] business ... is deleterious ... They attract the kinds of people who frequent these places and drive away those who do not. This contributes to the decline of a neighborhood. A concentration of such businesses also causes the 644 Id. 645 These included adult businesses, adult motion picture theaters (includin g adult mini motion picture theaters), cabarets, establishments for the sale of beer and liquor, hotels, motels, pawnshops, pool or billiard halls, public lodging houses, secondhand stores, shoeshine parlors and taxi dance halls. See Nortown Theatre Inc. v. Gribbs, 373 F. Supp. 363, 365 (E.D. Mich. 1974) aff'd sub nom. Am. Mini Theatres, Inc. v. Gribbs 539 F.2d 711 (6th Cir. 1976) and aff'd 539 F.2d 711 (6th Cir. 1976) and rev'd sub nom. Am. Mini Theatres, Inc. v. Gribbs 518 F.2d 1014 (6th Cir. 1975) re v'd sub nom. Young v. Am. Mini Theatres, Inc. 427 U.S. 50 (1976) 646 Am. Mini Theatres 420 U.S. at 54. 647 Id. 648 See Nortown Theatre 373 F. Supp. at 365.
251 neighborhood to appear to be declining and this causes a lack of neighborh ood pride, resulting in further decline ... 649 The plaintiffs challenged the ordinance as imposing a content based restriction 650 In a 5 4 opinion, Justice John Paul Stevens dinance regulating the location of adult businesses. He wrote that while the zoning ordinance classified the movie theaters based on the type of films exhibited at the theater, it was not unconstitutional because it was unrelated to the underlying content of the films. 651 The of such businesses was likely to produce. 652 The majority reasoned that the adoption of zoning regulations was adequately 653 : 649 Id. 650 Am. Mini Theatres 420 U.S. at 53. 651 According to the Court: For the regulation of the places where sexually explicit films may be exhibited is unaffected by whatever social, political, or philosophical message a film may be intended to communicate; whether a motion picture ridicules or characterizes one point or another, the effect of the ordinances is exactly the same. Id. at 70. 652 Id. at 71 n.34 Philip J. Prygoski, 6 C OOLEY L. R EV 1 (1989). 653 Am. Mini Theatres 420 U.S. theaters, as well as the location of other commercial establishments, either by confining them to certain
252 must be allowed a reasonable opportunity to experiment with solutions to admittedly 654 decision to require adult theaters to be separa ted rather than concentrated in the same areas. 655 656 American Mini Theat r e s represents a landmark case addressing the rel ationship between free expression and zoning regulations. It did not, first, set a standard and then determine whether the evidence met that standard or establish the type or amount of It merely constitutionality of zoning regulations has had far reaching implications concerning the American Mini Theatre s the Court reviewed at least some evidence purpo rting to establish a connection between the and its method of achieving it. In the next opinion, the Court broadcast of indecent expression and its int erest in protecting minors. 654 Id 655 Id. 656 Id.
253 F ederal C ommunications C ommission v. Pacifica Foundation F ederal Communications Commission (FCC) v. Pacifica Foundation 657 involved the use of indecent expression during a mid afternoon radio station broadcast. In Pacifica a New York broadcast station aired a twelve 658 only spoke the words that he claimed could not be said on the public airwaves, 659 but ist those words and repeat them over and over again in a variety of 660 Although the station explained that it aired the monologue during a and peremptorily warned listeners FCC received a complaint from a man who said he heard the broadcast while driving with his young son. 661 Following the complaint, the FCC chose not to impose forma l sanctions against 662 Under its context based 657 438 U.S. 726 (1978). 658 Id. 659 The seven filthy words were: shit, piss, fuck, cunt, cocksucker, motherfucker and tits. Id at 751. 660 Id at 729. 661 Id. at 730. 662 Id. The Radio Act of 1927 first enunciated the prohibition on the Federal Radio Commission (the predecessor to the FCC) to ed Â§ 326, Pub. L. No. 69 632, 44 Stat. 1162 (1927). The same provision also granted the Commission the application. In 1948, the United States Code was rearranged and the prohibition against the obscene, indecent and enacted in the Criminal Code under 18 U.S.C. Â§ construed to deny the Commission the power to review the content of completed broadcasts in the Pacifica 438 U.S. at 735.
254 approach 663 in which the time of day, the content of the p rogram in which the indecent expression was aired and the mode of transmission are all relevant factors for assessing liability the FCC determined the broadcast of such language was not permitted to be aired on the radio ndoubtedly in the 664 activities. 665 against a radio station for the airing of such offensive language. 666 Writing the opinion for the Court, Justice John Paul Stevens wrote literary, political, or scientific value, they are not en tirely outside the protection of the 667 f there any reason to believe that to its political content or even to the fact th at it satirized contemporary attitudes about four letter words First Amendment protection might be required. But that is simply not 663 Id. at 750. The Commission proceeded is all content of the program in which the language was used and difference between radio, te levision, and closed circuit transmissions. Id. 664 Id at 732. 665 Id (1976). 666 Id. at 750. 667 Id at 746.
255 the case. 668 offend for the same reasons that 669 Finding the exp ression to be without sufficient value, Justice Stevens next turned to the government interest in regul ating such expression He found those interests to be two fold: First, g all Americans the broadcast of patently, indecent material over the airwaves ... alone plainly outweighs the First Amendment rights of the intruder 670 Second, its uniqu e accessibility to children also justified the regulation of otherwise protected content. 671 Based on these interests, J ustice Stevens reasoned that while the broadcast of such language might well have been protected under other circumstances, the broadcast medium had regularly been subjected to significantly more stringent regulations. 672 tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected progra offense by turning off the radio when he hears indecent language is like saying that the 673 Additionally, he recognized 668 Id. at 746. 669 Id 670 Id. at 748. 671 Id at 749. 672 Id at 74 8. 673 Id at 748 49.
256 674 He entered the parlor, the exercise of its regulatory power does not depend on proof that 675 Pacifica Foundation held the FCC could invoke penalties for the broadcast of t evidence of the harm caused by it. It determined that the reg ulation broadcast, as a medium, had been given the most limited First Amendment ng specific times of the day were administrative action. Pacifica Foundation is not the last time within this selection of cases that the case in thi s section, however, City of Renton v. Playtime Theatres, Inc 676 once again adult businesses. City of Renton v. Playtime Theatres, Inc. In May of 1980, the mayor o f Renton, Washington, suggested to city council members that the city should enact zoning legislation to deal with the 677 674 Id at 749. 675 Id. at 750 51. 676 475 U.S. 41 (1986). 677 Id. at 44.
257 and Development Committee he Renton on developments in other cities. 678 On the basis of the report, Renton adopted a zoning ordinance prohibiti ng adult businesses from locating within 1,000 feet of any residential zone, single or multiple family dwelling, church, park or school, attempted to gather, or clump, the businesses. 679 Rather than adopt an ordinance dispersing adult businesses as Detroit h concentrated the adult businesses in specific areas. 680 Playtime Theatres, Inc., an adult movie establishment, challenged the ordinance, seeking a permanent injunction against its enforcement. 681 The Court of Appeals for the Ninth Circuit in ory and speculative not conduct ed its own studies specifically geared to its particular needs and problems. 682 Chief Justice W illiam Rehnquist wrote a 7 2 opinion for the Court H e rejected the view that the First Amendment requires independent evidence already generated by other cites before enacting an 678 Id. 679 Id. (quoting the ordinance). 680 Id at 52 (describing the method through which the ordinance attempted to regulate the location of the adult businesses). 681 The Court ruled the statute did not fit neatly into the category of being specifically either content based or content Id at 47 48. 682 Id. at 50.
258 683 It held that Re retail trade, maintain[ing] property va lues and generally [to] protect[ t] and preserv[e] the quality of ] 684 was an 685 686 Chief Justice Rehnquist reasonably believed to be 687 Northend Cinema [ v. Seattle ] opinion in enacting its adult 688 codes were the: culmination of a long period of study and discussion of the problems of adult movie theaters in residential areas The trial court ... heard expert testimony on the adverse effects of the presence of adult motion picture theaters on neighborhood children and community improvement efforts[, including] a finding that the location of the adult theaters has a harmful effect on the area and contribute to neighborhood blight. 689 The fact Renton attempted to regulate adult businesses using a different method than Sea ttle gave the Court no pause for upholding the regulations as constitutional. 683 Id. at 51 52. 684 Id. at 48. 685 Id. at 50. 686 Id. 687 Id. at 51 52. 688 Id. 689 Northend Cinema, Inc. v. Seattle, 585 P.2d 1153, 1155 (1978).
259 The Cou rt determined that such an interest 690 Renton upheld a regulation akin to a time, place and manner restriction on the location of adult busines ses. 691 studies purporting to show a connection between the adult businesses and against the regulation of the s econdary effects produced by such businesses but found the evidence offered by the city sufficiently justified its means of regulation. Renton however, would not be the last time the Court addressed the relationship between a implementation of them. In the very next case, City of Los Angeles v. Alameda Books s efforts to prohibit the concentration of more than business in a single building. C ity of Los Angeles v. Alameda Books Inc. In 1977, Los Angeles conducted a study that conclud ed that concentrations of adult entertainment establishments are associated with high crime rates. 692 A central component of the study was a Los Angeles police repor e.g 693 Accordingly, Los Angeles enacted an ordinance prohibiting two esta 690 Id 691 Id at 46 47. 692 City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 430 (2002). 693 Id at 435.
260 1,000 feet of each other or within 500 feet of a religious institution, school, or public 694 entertainment business in the same buildin 695 Alameda Books, which operated a combined adult book store and video arcade in a single location, challenged the amendment on the ground there was no evidence that combining two activities in a single location produced high crime rates. 696 Justice Claren ce Thomas authored a plurality opinion that was joined by Justices and also by Chief Justice William Rehnquist. 697 The Court first considered its decision in Renton 698 It found the decision was comprised of three parts: first theaters altogether, but merely required that they be distanced from certain 699 second the adult theaters, but rather at the secondary effects of such theaters on the surrounding community 700 Third, the Court determined that the ordinance would be wed that its ordinance was designed to serve a 694 Id at 430 (quoting L OS A NGELES C A ., C ODE the city council when enacting this prohibition was not only to disperse distinct adult establishments housed in separate buildings, but also to disperse distinct adult businesses operated under c ommon 695 Id at 431 (quoting L OS A NGLES C A ., C ODE Â§ 12.70 (C) (1983)). 696 Id. 697 Id at 429. 698 Id at 433. 699 Id at 434. 700 Id.
261 substantial government interest and that reasonable alternative avenues of 701 decision to overturn th e ordinance. That court had determined the study on which Los Angeles had relied failed Renton prohibition on the multiple use adult establishments was designed to serve its substantial interest in reducing crime. 702 It found Los Angeles could not primarily rely on the 1977 study as demonstrating a link between the combination of adult businesses [the] combination [of] busines 703 704 hile the study reveals that areas with high concentrat ions of adult establishments are associated with high crime rates, areas with high concentrations of adult establishments are also areas with high 705 The plurality determined Los Angeles, alternatively, had reasonably re ban on multiple 706 701 Id. 702 Id at 434. 703 Id at 435 (internal citation omitted). 704 Id at 436. 705 Id 706 Id at 430.
262 Renton that want to address merely the secondary 707 Quoting that opinion, Alameda Books demonstrating a connection between speech and a subs tantial, independent 708 709 It found the evidence on which Los Angeles relied satisfied Renton 710 In Alameda Books on a study that did not specifically address the problem considered by its ordinance was constitutional. I First Amendment rights a efforts to reduce crime. 711 Yet, under the relati vely low evidentiary bar it applied from Renton it found Los Angeles that reducing the concentration of adult operations in a neighborhood, whether within separate establishments or in one large establishment, will reduce crime 712 In th at case, the Court determined that the city must present only evidence 707 Id at 438. 708 Id. (quoting Renton 475 U.S. at 51 52). 709 Id. 710 Id. 711 Id. at 440. 712 Id. at 426.
263 the Los Angeles City Council is in a better position that the Judiciary 713 The dictum also appeared to adopt a rationale that it was the obligation of the plaintiff in this case, the owners or operators of adu lt businesses 714 es incorrect interpretation of scientific, empirical research involving complex legal questions, however, would appear to place undue reliance on the owner or operator or rather his attorney to understand, interpret and apply such complicated evidence. 715 Wh ile Alameda Books represents the last case in this line in which the Court evaluated the relationship between research demonstrating a connection between the authority to regulate the broadcast of indecent expression, this time, occurring during a television broadcast. 713 Id at 440. 714 Id. 715 See Part 2.D. (discussing the setbacks or drawbacks to the use of social science evidence in Supreme Court jurisprudence).
264 F ederal C ommunications Commission v. Fox Television Stations, Inc. In F ederal C ommunications C ommission (FCC) v. Fox Television Stations, Inc ., 716 the Court revisited the authority to regulate the broadcasting of indecent expression. 717 In Pacifica Foundation ... language, which includes expletives referring to sexual or 718 placed the burden of the indecency ban on the shoulders of the licensees. 719 Pacifica of indecent language. 720 After Pacifica 721 Former 716 556 U.S. 502 (2009). 717 Id. 718 Id at 505 (internal citations omitted). 719 Id the statutory which Congress has instructed the Commission to enforce between the hours of 6 a.m. and 1 Commission various means of enforcing the indecency ban, including civil fines and license revocations 720 T his belief came from an opinion expressed by two justices of the majority in Pacifica that they might Pacifica Foundation 438 U.S. 726, 760 61 (1978) (Powell, J., concurring in part and concurring in judgment). While the FCC Fox Television Stations 556 U.S. at 553 (Stevens, J., dissenting), it also said it intended to narrowly construe the Pacifica decision. The FCC later abandoned this interpretation of Pacifica unduly narrow as a matter of Fox Television Stations 556 U.S. at 507 (quoting In re Infinity Broad. Corp. of Pa ., 3 FCC Rcd. 930, 5, 1987 WL 345514 (1987)). See also In re Complaints Against Various Bro adcast P rogram 19 FCC Rcd. 4975, 4982, 9 2004 WL 540339 (2004) [hereinafter Golden Globes Order]. 721 Fox Television Stations 556 U.S. at 507.
265 not 722 Following the NBC broadcast of the 2002 Golden Globes Awards, in which U2 singer Bono commented, change 723 to 724 In the order establishing its change in policy, the FCC repudiated its previous strict literal nonliteral dichotomy policy that distinguished the use of expletives (nonliteral) f rom descriptions or depictions of sexual or excretory functions (literal). 725 It determined the categorical 726 It determined the action was necessary to protect ch ildren from the most objectionable and offensive language, and that technological advances made it 727 722 Id at 509 10. However, the FCC determined that such precedent was no longer good law. Id. at 510. 723 In Â§ 1464 and the Enforcement Policies Regarding Broadcast Indecency which the 8002 9, 8003 10, 2001 WL 332787 (2001) [hereinafter In re Industry Guidance ]. In In re Complaints A P rogram the Commission went one step further by declaring that a nonliteral (expletive) use of the F and S words could be actionably indecent, even if used only once. 19 FCC Rcd. at 4976 n. 4. 724 Fox Television Stations 556 U.S. at 509 10. Because the Order represented a change in policy, however, the FCC did not impose formal sanctions because it determined NBC and its affiliates would not have had requisite notice of apparent liability. Id at 510 (quoting Golden Globes Order 19 FCC Rcd. at 4981 82, 15). 725 Id. at 512. 726 Id at 509 (quoting Golden Globes Order 19 FCC Rcd., at 4979, 9). 727 Id (quoting Golden Globes Order 19 FCC Rcd., at 4980, 11).
266 Fox Television Stations concerned utterances made during two live broadcasts. 728 The first occurred during the 2002 Billboard Music Awards when singer 729 The second involved a presentation during the 2003 Billboard Music Awards by Nichole Richie and Paris Hilton, principles of a show Have you ever tried to get cow s*** o 730 In the wake of each broadcast, th e Commission received numerous complaints from parents whose children were exposed to the language. 731 Both broadcasts were found by the Commission to violate its policy agai nst indecent expression. 732 In Fox Television Stations Justice Scalia r under the guidelines of the Administrative Procedures Act (APA), 733 which require 734 He course the agency must show that there are good reasons for the new policy[, b]ut it 728 Id. (quoting Golden Globes Order 19 FCC Rcd., at 4979, 9). 729 Id at 510 (quoting Golden Globes Order 19 FCC Rcd., at 4980, 12). 730 Id 731 Id. 732 In March of 2006, the Commission released Notices of Apparent Liability for a number of broadcasts that the Comm ission deemed actionably indecent, including the airing of the two incidents described above. Multiple parties petitioned and were granted a voluntary remand by the Court of Appeals for the Second Circuit so that the parties could air their objections. Upo n remand, the FCC found the regulation matter scope Id. at 511 (quoting In re Complaints Regarding Various Television Broadcast s Between February 2, 2002, and March 8, 2005 21 FCC Rcd. 13299, 2006 WL 3207085 (2006)(Remand Order))[hereinafter Remand O r der ]. The order determined that the broadcasts were patently offensive under the community standards for the medium. Id (quoting R emand Order at 13304 16, 13323 58). 733 5 U.S.C Â§ 551 et seq (2014). 734 5 U.S.C.
267 better 735 In stark contrast to his decision in Brown v. Entertainment Merchants Association decided just two years earlier, however, Sc alia held or at least the behavior that is presented to them as normal and appropri 736 is surely rationale (if not inescapable) to believe that a safe harbor for single words 737 In Fox Television Stations t he Court first addressed the argument that t he Commission had failed to explain why it had not previously banned fleeting expletives 738 The Second Circuit Court of Appeals below had expletive is harmful, let alone establishes that this harm is serious enough to warrant government 739 Yet, the Court rejected this argument, agency had a prior stance does not prevent it from changing its policy or cre ate a higher hurdle 740 According to Justice Scalia: There are some propositions for which scant empirical evidence can be marshaled, and the harmful effect of broadcast profanity on children is one action under the Administrative Procedure Act because of failure to adduce empirical data that can be 735 Fox Television Stations 556 U.S. at 515. 736 Id at 519. 737 Id at 518. 738 Id at 518 19. 739 Fox Television Stations, Inc. v. FCC 489 F.3d 444, 461 (2d Cir. 2007). 740 Fox Televisions Stations 556 U.S. at 519.
268 readily obtained. It is something else to insist upon obtaining the unobtainable. 741 The Court cited Pacifica as supporting the proposition that quantitativ e, empirical being of its 742 scientifically certain criteria to comply with the First Amendment neither does the [APA] 743 The Court next addressed the argument that the FCC possessed no scientific proof for its belief the per se exemption of liability for fleeting expletives would result in 744 The Court however, found the 745 prior policy 746 the Court exercise in logic rather th 747 Justice Scalia determined : 741 Id. 742 Id. 743 Id. at 520. 744 Id at 521. 745 Id. 746 Id confirmed ( Id. 747 Id.
269 By using the narrowness of Pacific a of harm before the Commission regulates more broadly, the broadcasters attempt to turn the sword of Pacifica which allowed some regu lation of broadcast indecency, into an administrative shield preventing any regulation beyond what Pacifica sanctioned. Nothing prohibits federal agencies from moving in an incremental manner. 748 The Court concluded acknowledgment of its belief that the policy change improved the former policy, satisfied 749 The standard imposed by Scalia in Fox Television which has been characterized 750 appears a long way from the requirement of empirical evidence of harm he imposed in Brown According to Scalia, word indecent expletives will tend to produce children who use (at least) one word 751 This standard appears quite similar to the one Justice Anthony Kennedy, concurring in Fox Televisions Stations said he would require. According to Justice Kennedy, the amount of evidence required to y view, to an answer that 752 He continued apparent to an agency that the reasons for the longstanding policy have been altered by discoveries in science, advances in technology, or by any of t he other forces at work in 748 Id at 522. 749 Id at 517. 750 Clay Calvert et al., Social Science, Media Effects & The Supreme Court: Is Communication Research Relevant After Brown v. Entertainment Merchants Association?, 19 UCLA E NT L. R EV 293 311 (2012 ). Paris Adult Theatre v. Slaton that Id. 751 Fox Television Stations 556 U.S. at 518. 752 Id at 535 (Kennedy, J., concurring).
270 agency must make predictive judgments 753 Justice Scalia likewise acknowledged the potential difficulty of developing new evidence of harm in certain situations, such as where the precise question before the Court is not particularly sus ceptible to scientific inquiry. Kennedy correspondingly found the record adequately s upported a finding the [where it] ignores or countermands its earlier factual findings without re asoned e reasons given by the FCC to support its change in policy agency acted in an 754 Such a conclusion however, ignores the lack of evidence provided by the FCC to support its contention concerning the harm caused to children by the fleeting use of one word expletives. Justice Stevens, in his cogent dissent, takes issue with the very assertion 755 Stevens acknowledges believe that an agency must always conduct full em empirical (or other) evidence to demonstrate that it previously 753 Id. (Kennedy, J., concurring). 754 Id at 538 (Kennedy J., concurring). 755 Id. at 555 56 (Stevens J., dissenting).
271 756 failure to discuss the findings of at least study of which the Court was aware, purporting to demonstrate that vulgarities have no negative effect on children, 757 or for that matter providing no empirical evidence a t all that must 758 Summ ary Despite the oft quoted mantra that free expression should not be prohibited expression reveals a propensity to uphold some restrictions on expression deemed only off ensive and not obscene. These regulations have taken several forms, focusing on the circumstances and medium in which lewd, profane or indecent speech may be expressed. Early doctrine within this brand, however, demonstrates a tendency to question the legi For instance, Cohen jacket bearing a profanity to protest U.S. involvement in Vietnam. It rejected a categorical approach to banning Paul Robert Co attempt by California to frame the statute as a time, place and manner regulation. Cohen 756 Id. at 564 (Stevens, J., dissenting). 757 age of 12 understand sexual language and innuen do therefore, it is unlikely that vulgarities have any Id (Stevens, J., dissenting). See also Barbara K. Kaye & Barry S. Sapolsky, Watch Your Mouth! An Analysis of Profanity Uttered by Children on Prime Time Television 4 M ASS C OMMUNICAT ION & S OC Y 7 429, 433 (2004). 758 Fox Television Stations 556 U.S. at 564 (Stevens, J., dissenting).
272 759 In Erznoznik the Court rebuffed film ban as a traffic regulation. It found the city offered no evidence to distinguish nude films from othe r content that might also distract Court refused to apply a balancing approach, finding, instead, the regulation did not satisfy the rigorous constitutional standards. est effects of adult businesses on the surrounding community. In American Mini Theat r e s a content based regulation predicated on the underlying message of the films displayed at the establishment. the concentration of several adult businesses in the same neighborhood negati vely affected property values. American Mini Theat r e s ... to appraise the wisdom of its decision to require adult movie thea ters allowed a reasonable opportunity to experiment with solutions to admittedly serious 759 For more discussion on the captive audience doctrine, see, e.g ., Marcy Strauss, Redefining the Captive Audience Doctrine 19 H ASTINGS C ONST L. Q. 85 (1991); Caroline Mala Corbin, The First Amendment Right Against Compelled Listening 89 B .U. L. R EV 939 (2009).
273 Holding true to dictum in American Mini Theat r e s Renton upheld a chall enge to an ordinance requiring that, rather than being dispersed, adult movie theaters be concentrated in red light areas. Renton g that the predominant concern of the city was not the underlying content of the sexually and findings regarding effective methods of regulating the location of the ad ult studies or produce evidence independent of that already produced by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to 760 The Court found Renton could reasonably rely problems, and furthermore the specific method Renton chose for regulating the loc ation of the businesses advanced its substantial interests. Finally, in Alameda Books the Court similarly found that the City of Los Angeles could rely on a study it produced some time before it enacted an ordinance prohibiting more than one adult establi shment from locating in the same building, even though the study did not address the negative effects of the combination of such businesses. The method for regulating wo uld actually further its substantial government interest in reducing crime. It held that Los Angeles could rely on a single study, as well as 760 Id at 51 52.
274 acted unreasonably. Furthermore, the decision shifted the burden onto the adult businesses to demonstrate that the evidence does not to fair rationale. expression, the Court analyzed the impose sanctions on the broadcast of indecent expression. In Pacifica Foundation the radio violated its ban on airing indecent language at a time when children would most likely be in the audience. Pacifica based appro ach for determining when indecent expression may be banned from public broadcast fell under the authority granted to it by Congress. In Fox Television Stations the Court upheld civil penalties for the airing of several live television programs in which ce lebrities used unscripted profanities. The of nonliteral expletives justified its interests in preventing the broadcast of indecent expression. Although the FCC present ed no evidence of any harm caused by the punish only fleeting expletives and an increase in the broadcast of profane language, it nly if it had acted arbitrarily or capriciously. businesses and the broadcast of indecent expression over the airwaves represents an area of First Amendment law in which the Court has not imposed heavy evidentiary
275 enacting speech restrictions. Indeed, in each area, the Court has rejected arguments that the state should produce empirical evidenc e of the connection between its justifications for regulation and the specific means of pursuing those ends. Section3 expression. Section 4 turns to the final category of expression, hate speech. Hate Speech encompasses a broad array of expression aimed at inflicting injury in the form of fear and emotional umbrage on a particular individual or group of individuals. A lthough the category began with expansion of one category of unprotected expression in the group libel case of Beauharnais v. Illinois the section demonstrates that decision was later discredited. The remaining segment of the section demonstrates a narrow ing of the doctrine in the context of bias motivated statutes, the enactment of which began in the 1950s with the civil rights movement. Those cases, however, demonstrate a hesitancy to uphold application of the statute where it attempts to go beyond those categories of banned expression or when it attempts to regulate on certain disfavored topics, constituting content or view point based discrimination, in violation of the First Amendment. Beauharnais v. Illinois Beauharnais v. Illinois 761 decided in 1952, involved the prosecution of Joseph Beauharnais, president of the White Circle League, under an Illinois statute forbidding any person from exhibiting any publication portraying lack of virtue of a class of 761 343 U.S. 250 (1952).
276 citizens. 762 Specifically, it declared it unlawful for any person to distribute any publication any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace 763 764 Beauharnais distributed a leaflet setting forth a petition calling on the mayor and city f white 765 The leaflet ngrelized by the negro will not unite us, than the aggressions, [rapes], robberies, knives, guns and 766 An application for membership in the White Circle League was attached to the leaflet. 767 The trial judge refused to ins truct the jury that in order to convict the defendant, danger of a serious substantial evil that rises for (sic) above public inconvenience, 768 In stead, the judge instructed the jury the defendant, Joseph Beauharnais, did * manufacture, sell or offer for sale, 762 Id at 251. 763 Id. See also I LL R EV S TAT c h 38, Â§ 471 (1949). 764 Beauharnais 343 U.S. at 252 765 Id 766 Id. 767 Id. 768 Id at 253
277 advertise or publish, present or exhibit in any public place the lithograph, then you are to find the defend 769 The Supreme Court, i n a 5 4 opinion delivered by Justice Felix Frankfurter affirmed the conviction under the criminal libel statute. 770 While courts were previously reluctant to uphold libel convictions for attacks upon entire races, religions or professions, opinions where convictions were upheld indicate the court s believed the group was either so well defined that the libel amounted to a direct attack upon each individual or the nature of the statement so inflammatory as to crea te a serious danger of violence In uphol ruled a state may proscribe determined the statement caused a particular social problem. It extended lib el doctrine to include defamatory statements aimed at a defined group. 771 T he Court determined evil, its lan guage drawing from history and practice in Illinois and in more than a score 772 Yet, it rejected the requirement that before libelous utterances could be p unished, the Court must find that they constituted a clear and present danger. 773 The Court upheld the statute under a standard of extreme deference to 769 Id 770 Id at 253, 266 67. 771 Id. at 252. 772 Id. at 253. The Court noted that criminal libel was a common law crime, which had not been abolished. the forty eight states, the District of Columbia, Alaska, Hawaii and Puerto Rico punish libels directed at individuals Id. 773 Id at 266.
278 legislative decisionmaking. It found, the legislature had offered no evidence that its method of regulation would actually solve the deeply embedded racial and religious tensions that existed in Chicago and Illinois during the last several decades 774 According to Justice Frankfurter, defamation of racial 775 A the legislativ e remedy might not mitigate the evil, or might itself raise new problems t is the price to be paid for the trial by 776 He held, it w us to deny that the Illinois Legislature may accorded him may depend as much as on the reputation of the racial and religious group to which he willy 777 the Due Process Clause does not require legislatures to be in the vanguard of science and also scientis ts as to the dependence of the individual on the position of his racial or religious 778 774 Id at 258 59. Specifically, the Court referenced a number of events occurring in Chicago and in Illinois over three decades including the murder of abolitionist Love joy, the Cicero riots, northern race riots, and a series of bombin gs the state. Id. at 259 61. 775 Id at 261 (emphasis added). 776 Id. 777 Id at 263. 778 Id.
279 The Court next address ed of expression protected by the First Amendment 779 Citing Chaplinsky Justice Frankfurter declared, o one would gainsay that it is libelous falsely to charge another with being a rapist, robber, carrier of knives and guns, and 780 He continued, sanctions, we cannot deny a State power to punish the same utterance directed a defined group, unless we can say that this is a willful (sic) and purposeless restriction unrelated to the peace and well 781 The minority in Beauharnais on the other hand, a apply the clear and present danger test before justifying limitations on the protected expression. 782 It severely criticized the majo unwillingness to consider any specific requirement of evidence before it summarily concluded libel aimed at a group was beyond constitutional protection. 783 779 Id at 258 59. 780 Id. at 258. 781 Id. 782 Id at 267 76 (Black, J., dissenting); id at 277 84 (Reed, J., dissenting); id at 284 87 (Douglas, J., dissenting); id. at 287 305 (Jackson, J., dissenting). 783 Notwithstanding the appropriateness of such an offer of proof, the Court noted the defendant offered to frequent in districts heavily populated by Negroes than in those where white predominated; (2) three specific crimes allegedly committed by Negroes; and (3) that properly Id. at 266 n.21. Besides fi nding the not only the truth of tful whether such a showing is as extensive as the defamatory Id at 266, 266 n.21. On the opposite side of the r deny claims of social scientists as to the dependence of the individual on the position of his racial or religious group in our authority [for] us educational opportunities and the dignity afforded him may depend as much on the reputation of his racial and religious group to which is willy nilly belongs, as on his o Id at 263.
280 Since Beauharnais a number of subsequent decisions have also questioned its continued legitim acy. S has been called, demons trates the negative treatment Beauharnais has received since it was originally decided. The Skokie controversy arose appropriately enough, within the same juris diction as Beauharnais It involved the threat of a group of National Socialist Party members to host a parade in Skokie, Illinois. 784 785 the small Chicago based group of 30 50 members planned to wear their uniforms similar to those worn by Nazis, including the swastika armbands in a single file parade line in front of the village hall. 786 At trial testimony was presented, including by a concentration camp survivor, that s a symbol that his closest family marchers, but that at the time of the event, he did not know if he would be able to control himself. 787 The Illinois Supreme Court eventually held the entire injunction against the parade invalid. 788 quickly gained p ublic notoriety because it planned to host the parade in a city in which more than 40,000 of its 70,000 784 Village of 785 Donald A. Downs, Skokie Revisited: Hate S peech and the First Amendment 60 N OTRE D AME L. R EV 629, 629 (1985). 786 Skokie 69 Ill.2d at 610. 787 Skokie 51 Ill.3d at 351. 788 Skokie 609 Ill.2d at 619.
281 residents were Jewish, thous ands of whom had survived Nazi concentration camps. 789 Following the spread of news concerning the planned protest the village enacted a string of ordinances designed to block the ma rch, including one that specifically w hich would promote hatred towards persons 790 display of markings and clothing 791 792 All three ordinances were found to violate the First Amendment. 793 Although not explicitly overruling Beauharnais Skokie indicated Beauharnais had prohibited utterances 794 and that opinions decided in the quarter century 795 Secondly, opinions such as New York Ti mes v. Sullivan and Gertz v. Robert Welch made it apparent that libelous utterances about public 789 Id. at 610. 790 V ILLAGE OF S KOKIE I LL ., O RDINANCE 77 5 N 995 Â§ 28 43.1 791 Id. Â§ 28 43.2 792 Collin v. Smith, 447 F. Supp. 676 (N.D. Ill. 1978) Collin v. Smith, 578 F.2d 1197 (7th Cir.). (providing an in depth review of the ordinances). 793 Collin v. Smith, 578 F.2d 1197 (7th Cir.). 794 Collin 579 at 1204. 795 Id. (citing Cohen v. California Gooding v. Wilson ; and Brandenburg v. Ohio ).
282 figures were subject to First Amendment ramification s. 796 It expressed doubt whether 797 In the wake of increased public focus on hate speech and other bias motivated concerns, state legislatures began in the 1950s to enact anti hate laws proscribing bias motivated violence and intimidation, many of them based on the fighting words exception. 798 However, many of these laws created their own First Amendment concerns due to judicial confusion and inconsistent treatment of the scope of the fighting words doctrine in the lower courts. 799 R.A.V. v. City of St. Paul One of these cases, R.A.V. v. City of St. Paul 800 involved several teenagers who 801 The police charged the teens under a local bias motivated, disorderly conduct ordinance. The regulation prohibited reasonable grounds to know arouses anger, 802 The Minnesota Supreme Court upheld the statute, construing it only to reach expression under Chaplinsky 803 796 Id at 1205. See libel can claim no talismanic immunity from constitutional limitations 797 Collin 578 F.2d at 1205. 798 Melody L. Hurdle, R.A.V. v. St. Paul: The Continuing Confusion of the Fighting Words Doctrine 47 V AND L. R EV 1143, 1145 (1994). 799 Id at 1146. 800 505 U.S. 377 (1952). 801 Id at 379. 802 Id (quoting from M INN S TAT Â§ 292.02 (1990)). 803 Id at 380 81.
283 Chaplinsky differently than the Court had done in prior decisions. Although it accepted the 804 it unanimously found the ordinance facially unconstitutional based on its viewpoint discrimination. 805 R.A.V. First Amendment principle that prohibition of constitutionally proscribable speech cannot be underinclusive. 806 instance of speech can be proscribable on the basis of one feature ( e.g., obscenity) but not on the basis of another ( e.g., opposition to the city government) is commonplace 807 In other words, the state could prohibit a particular mode of communication such as through time, place and manner restriction 808 809 but not where based on the content of the expression conveyed. R.A.V. 804 Id. 805 Id. at 381. 806 Id at 388. for the content discrimination consists entirely of the reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimi 807 Id 808 Hurdle, supra of communication). 809 Id justified added).
284 fighting w inve ctive, no matter how vicious or severe ... unless they [were] addressed to one of the not covered. 810 The Court suggested the ordinance did not impose a prohibition of fighting words ... directed at certain persons or groups (which would be facially valid if it met the requirements of the Equal Protection Clause); but rather, a prohibition of f ighting words that contain ... 811 In doing so, the specific measure can communicate to minorit y 812 Although a limited categorical approach remained an important aspect of the narrowin g of the scope of the traditional categorical exceptions. The Court tightened its categorical exception for defamation in each of New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc It also constricted its categorical exception for obscenity in Miller v. California. 813 R.A.V. prohibited 810 Id. at 391. 811 Id. at 392. 812 Id. 813 Id.
285 extension of its historical fighting words doctrine to be used by the legislature without justification i.e. evidence of any sort any subset of proscribable speech, such as principle that prohibition of constitutionally proscribable speech cannot be R.A.V. concurrences. 814 The Court responded it was simply prohibiting the use of fighting words by proponents of only side of the point of view or who wished to express their ideas on the basis of another reason such as 815 authority t o license one side of a debate to fight freestyle, while requiring the other to 816 The state offered no evidence of the racial e particular bias being singled out albeit, through a statute imposing limitations on speaker who possessed certain (to them, disagreeable) viewpoints. On this basis, the Court found the statute not narrowly tailored to serving a compelling state interest. 817 Virginia v. Black In a second case involving cross burning, Virginia v. Black 818 three individuals, including Barry Black, were found guilty independently of violating a Virginia statute that made it a felony for any person to burn a cross within intent to intimidate. 819 It also had a 814 Id at 401 (White, J., concurring); see also id at 418 (Stevens, J., concurring). 815 Id. 816 Id. at 391 92. 817 The content prohi 818 538 U.S. 343 (2003). 819 Id at 348. See also V A C ODE A NN Â§ 18.2 423 (1996). The statute read in full:
286 hall be prima facie evidence 820 of an 821 with intent to intimidate, the provision of th e Virginia statute treating any cross burning as a prima facie evidence of intent to intimidate renders the statute unconstitutional in 822 because it strips away the very reason why a State may ban cross burning with the intent to intimida 823 The Court first addressed the dual message conveyed by cross burning. 824 The Black 825 cross bu 826 But, the Court continued, the fact cross burning as used in conjunction with a nonviolent only messa 827 According to It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony. Any such burning of a cros s shall be prima facie evidence of an intent to intimidat e a person or group of persons. 820 Â§ 18.2 423; see also Black 528 U.S. at 348. 821 Black 528 U.S. at 348. 822 Id. at 348 49. 823 Id. at 365. 824 Id. at 352 61. 825 Id at 354. 826 Id. 827 Id. at 357.
287 threaten or menace another person sometimes use cross burning because of this association between a bur 828 While the Court r power to prohibit the dissemination of social, economic, and political doctrine which a vast majority of its citizens believes to be false and fraug 829 Given the opportunity to definition of true means to communicate a serious expression of an intent t o commit an act of unlawful 830 Addressing the issue of intent, the Court held it would not require that the speaker to have intended to carry out on protecting individuals from the fear and disruption that threats engender, as well as 831 The Court continued, oscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or a group of persons with the intent 832 828 Id 829 Id at 358. 830 Id. at 359. 831 Id. at 344. 832 Id at 360.
288 of cross burning in this cou the category that could be prohibited as true threats. 833 The Court found the statute was unconstitutional because it attempted to discriminate on the basis of content and viewpoint. 834 In doing so, it attempted to distinguish its holding from its earlier opinion in R.A.V. v. St. Paul 835 In R.A.V ., the Court held a state could not ban the act of cross burning by targeting those who uch as race, gender or religion. 836 But the Court wrote, R.A.V did not hold all forms of content based discrimination are bad. 837 Such content based form of discrimination could be upheld class of speech at issue ... 838 Similar to the constitutionality of the ban on threats directed at the President upheld in Watts burning done with the intent to intimid ate because burning a cross is a particularly 839 Although an individual who threatens violence, even against a violent backdrop, may not be held liable for the violent acts of others, the Court found the history of cross burni ng as a particularly virulent form of intimidation 833 Id. 834 Id. 835 505 U.S. 377 (1992). 836 Id at 378 (holding that the state may not attempt to regulate fighting words based on the underlying message). 837 Black 253 U.S. at 344. 838 Id. at 345. 839 Id. at 363.
289 While the Court presumably would require evidence of intent to intimidate before allowing a conviction under the Virginia statute, it concluded there would be no requirement of a finding that the speaker have intended to carry it out. Anecdotal evidence demonstrating that form of symbolic speech possesses dual meaning requires specific evidence that defendant intend ed to intimidate. The decision in Virginia v. Black employed a heightened First Amendment because it did not apply the clear and present danger test (which was often used by the Court to prohibit speech defer to legislat ive judgment. Here, the Court said it would require evidence though it did not establish what kind or how much of intent to intimidate before a conviction under a statute banning cross burning would be upheld. Again, Black overturned becau se the state interpreted the statute banning cross burning not only targeted threatening speech but speech that could be interpreted to have, for example, a political motive. Application of the statute to this type of speech would extend the statute beyond speech prohibited under the categorical exception against true threats. Summary Section 4 demonstrates the category of hate speech has done more to further variety of expression For ins tance, Beauharnais rejected application of the clear and present danger test in the context of a statute prohibiting the use of libelous utterances against racial groups. While Beauharnais no longer represents good law, the case extended the category of li bel to include group libel aimed at specific racial and religious groups. The Court
290 ev idence demonstrating the libelous utterances were harmful to particular group. R.A.V reviewed the constitutionality of a statute punishing bias motivated disorderly conduct. R.A.V. was prosecuted under the statute for allegedly burning a cross on a black with the First Amendment, can be regulated by their constitutionally proscribable content, the government may not regulate those areas based on hostility or favoritism toward the nonpr oscribable message they contain. While the decision affirmed the narrowly tailored to achieving only a compelling government interest. Black similarly involved a challenge to a statute against cross burning. Black was statute attempted to regul ate only a pernicious form of cross burning and was not aimed at the particular message conveyed by burning a cross, it constituted a constitutional form of regulation. The Court rejected evidence of cross burning as prima facie evidence of intent to intim idate, due to the dual message cro ss burning was said to possess. Chapter Summary This Chapter reviewed thirty eight Supreme Court opinions spanning numerous varieties of speech. Part A analyzed speech that may be banned because of its incitement to unlawful action; 2) threatening speech; 3) speech provoking a hostile audience reaction; and 4) disclosure of dangerous information. Part
291 statements of f act; 2) sexually explicit or violent expression; 3) lewd, profane and indecent expression; and 4) hate speech. Each section summarized the evolution of the of harm doctrine occurring within the variety of expression, paying close attention to the evidence evaluated, the specific burdens of proof and the standards applied in each case. Free speech jurisprudence has never adhered to a position of absolute protection for expression, a position that would render all laws restricting speech unconst itutional. Rather, the Court has more often engaged in a balancing approach that weighs the value of the expression. Examination of more recent First Amendment jurisprudenc e reveals a trend at least within certain brands of expression away from its historical balancing approach to one that requires sufficient empirical or social scientific evidence of harm. Brands of expression in which the Court has imposed evidentiary burd ens (e.g., Brown v. Entertainment Merchants Association (e.g., Alvarez v. United States ). The category known as sexually explicit and viol ent expression initially rejected any requirement of a proof of harm, instead adopting a presumption that obscenity was scientifically empirical evidence establishing a Brown involving a challenge to a California law prohibiting the sale of violent video games to minors, rejected the scientific, empirical evidence the government offered to support its contention. Under imposition of a standard requi
292 not meet that burden. recover damages without any evidence of harm stemming from libelous statements. reputation. The most recent free spe ech opinion within this brand, however, adopted Brown Alvarez the Court required them. It found the government had offe red no evidence demonstrating that Xavier f of a direct causal connection between harm and the lies. A caveat is that it is qu estionable whether the evidentiary bu rden applies to the entire variety of expression or, more likely, only narrowly pertains to the specific factual record. Alvarez and Brown both involved challenges to unique types of speech violent video games and lies about military medals, respect ively not previously addressed by It has yet not imposed such stringent evidentiary burdens on other types of expression fa lling even within the same variety of expression. In other instances, the Court has evaluated the appropriateness of requiring stringent evidentiary proof of harm but rejected it in favor of a much lesser burden. For rejected the contention t hat the First Amendment requires cities to conduct new studies
293 or produce their own evidence, independent of that already generated by other cities, to enact zoning ordinances targeting the secondary effects of adult businesses. Moreover, it found that the evidence relied upon by the cities did not even have to specifically address the particularly social problem the cities was attempted to address. It held a city ... rea sonably rely on any evidence that is reasonably believes to be relevant in demonstrating a connection between speech constituting a s ubstantial government interest, even if it only fairly supports its justification for enacting such an ordinance. In other areas, the Court has never required empirically proven, scientific data to support a government regulation. For example, within its incitement to unlawful action doctrine, the Court weighed only testimonial and circumstantial evidence to suppress expressio n under a showing of clear and present danger. The Court also has indicated that restrictions on the broadcast or public display of lewd, profane and indecent expression may be upheld upon without empirical proof of harm. In Erznoznik the Court ruled the City of privacy interests are being invaded ... 840 Furthermore, Jacksonville offered no evidence for distingu ishing movies containing nudity from other movies that might also be di stracting to passing drivers to justify upholding the ordinance as a traffic regulation. the ordi nance surely does not indicate a standard requiring empirical proof. 840 City of Jacksonville v. Erznoznik, 422 U.S 205, 210 (1975).
294 Alternatively, t empirical approach across all categories of expression. Decisions such as Alvarez and Brown perhaps more accura imposing lower standards of proof. These two decisions can also be distinguished from assessment of the e vidence. The remainder of the opinions establish an evidentiary burden, if they do so at all, only upon review of the sufficiency of the evidence. Several questions arise from such a determination, including: 1) whether the establishment of the evidentiary burden was based on the availability of evidence; 2) whether a different Court weighing the evidence would conclude it established the same or similar connection or relationship, between the speech and alleged government injury; and 3) whether the Court w ould impose the same or similar evidentiary burden in cases involving similar types of expression. Until the Court has additional time to consider application of its newfound empirical approach to a broader spectrum of expression, it is difficult to determ ine whether the mini trend of requiring scientific evidence of empirical proof specifically, one requiring a direct causal link will develop into a broader and more encompassing jurisprudential trend within the Cou opinions. Moreover, th e re appears to the empirical research underlying some of its more recent free speech opinions and conclusions by the Court on the value of such evidence. As discussed earlier, this deficit likely founded on differences between statements of the evidence, and confusion regarding the ability of social science
295 evidence (and the willingness of the social scientists to suggest th at the evidence) actually demonstrates causation. 841 In fact, there is actually a segment of the social science community that believes that social science research will never be strong enough to demonstrate causation. 842 of and interaction with scientific, empirical research will likely lead to greater understanding and reliance on this type of research and thus, impact the establishment of evidentiary burdens. Chapter 4 of harm in t he various categories of speech. It discussed the assorted governmental interests that often are b ased restrictions. The table below provides a tabular depiction of the evolution of the proof of harm doctrine across the multiples varieties of expression and decades. The information included in each of the boxes focuses standard applied, the type of evidence required or evaluated by the Court, the specific evidence evaluated by the Court, the ultimate outcome of the case, any requirement of intent as discussed in the opinion, and the asserted government interest in a particular case. As stated, these opinions appear not only be variety of expression but by the specific decade in whi ch they were decided in order to provide for a chronological assessment of evolution of the of harm doctrine. A caveat of this specific table, however, is that it is limited to those cases actually discussed in analyzed in this study. 841 See supra 842 See supra
296 Chapter 5 now turns to the development and application of an evidentiary typology and rubric to a hypothetical fact pattern
297 Variety of Speech By Decade (column) Incitement to Violence/ Unlawful Action Speech that Threatens Hostile Audience Reaction Disclosure of Dangerous Information False Statements of Fact Sexually Explicit and Violent Expression Lewd, Profane and Indecent Expression Hate Speech 1910 1919 Schenck (1919): C&PD; Espionage Act conviction upheld upon CE & TE: fliers asserting a right to oppose the draft and that Schenck had participated in printing; intent inferred; interest: national security/protection of gov. programs Abrams (1919): BT; conviction under Espionage Act amendment upheld based upon CE of fliers advocating curtailment of production of wartime materials; sole bad tendency; presumed intent; interest: national security / protection of gov ernment programs Figure G 4 Evolution of proof of h arm in U.S. Supreme Court opinions (by decade)
298 Variety of Speech By Decade (column) Incitement to Violence/ Unlawful Action Speech that Threatens Hostile Audience Reaction Disclosure of Dangerous Information False Statements of Fact Sexually Explicit and Violent Expression Lewd, Profane and Indecent Expression Hate Speech 1920 1929 Gitlow (1925): BT; conviction under NY criminal anarchy statute upheld under std. of deference to legislative judgment that speech radical fascist manifesto advocated violent revolution; required no evidence of intent; interest: Whitney (1927): BT; conviction under CA criminal syndicalism statute upheld upon DLJ; CE & TE of association with group organized for unlawful means; Figure G 4 Continued
299 Variety of Speech By Decade (column) Incitement to Violence/ Unlawful Action Speech that Threatens Hostile Audience Reaction Disclosure of Dangerous Information False Statements of Fact Sexually Explicit and Violent Expression Lewd, Profane and Indecent Expression Hate Speech 1930 1939 Bridges (1941): PPB; C& PD: evil imminence liability established CL presumption to punish contempt statements overturned; CE: calling for strike if enforced; interest: fair and orderly adm inistration of justice 1940 1949 Cantwell (1941): AHB; C&PD; conviction under CT solicitation statute overturned; while personal epithets not protected and intent not required, conviction under statute not n arrowly drawn to prohibit only C& PD overturned; TE : no deportment; one man felt like hitting Cantwell, though the did not do so; interest: order upon the public streets Figure G 4 Continued
300 Variety of Speech By Decade (column) Incitement to Violence/ Unlawful Action Speech that Threatens Hostile Audience Reaction Disclosure of Dangerous Information False Statements of Fact Sexually Explicit and Violent Expression Lewd, Profane and Indecent Expression Hate Speech 1940 1949 (cont.) Chaplinsky (1942): CB; protected by the Constitution; test: common intelligence would understand would be words likely to cause an average interest: public order and safety 1950 1959 Dennis (1951): Hand C&PD; conviction under Smith Act upheld upon CE evidence of plot to overthrow government and nature of world interest: apparent requirement of intent but unclear whether any evidence of intent actually adduced; interest: protect existing from violence, revolution Feiner (1951): AHB; conviction for disorderly conduct upheld; std: C&PD; TE : words used by Feiner; one man threatened violence react; police only prevent it from resulting i comply with police instructions; interest: public order and safety Roth (1956): CB; conviction under statute prohibiting mailing of obscene materials upheld; 1 st Am. D oes not protect material redeeming so cial test: whether the average person, applying contemporary community standards, the dominant theme of material taken as a whole appeals to prurient interests; AE: laws in 48 states, and federal restriction, restricting obscenity Beauharnais (1952): AHB; CB; conviction under group libel statute upheld, added to categories of unprotected expression; the legislature is entitled to seeks ways to curb false or malicious defamation of racial and religious groups without evidence that it s method of regulation would actually solve the deeply embedded racial and religious tensions in Chicago and Illinois ; interest: emotional harm Figure G 4 Continued
301 Variety of Speech By Decade (column) Incitement to Violence/ Unlawful Action Speech that Threatens Hostile Audience Reaction Disclosure of Dangerous Information False Statements of Fact Sexually Explicit and Violent Expression Lewd, Profane and Indecent Expression Hate Speech 1960 1969 Brandenburg (1969): C&PD; conviction under CA criminal syndicalism statute overturned under new C&PD test; harm must be imminent; degree of imminence extremely high; only serious lawless action or violence; specific films of speech; TE that Brandenburg was the speaker; AE of laws in other states; interest: prevention of use of force or lawless action to effectuate political reform Watts (1969): AHB; established category of true threats but overturned conviction under federal statute prohibiting threats against President; CE & TE: Watt speech (viewed as protected political hyperbole); 2) context (political rally); 3) conditional speech; 4) listeners reaction (laughs); interest: physical safety Sullivan (1964): AHB; std.: public figure cannot recover dam ages where fails to prove defamatory falsehood concerning official conduct was made (CCP that falsehood was made with K of its falsity or with RD for the truth to recover actual or punitive damages; TE: publisher had failed to check a ccuracy of ad with suspected that at least some of the information in the ad was false; newspaper failed to retract publication demand; P must prove falsity; interest: reputational injury Figure G 4 Continued
302 Variety of Speech By Decade (column) Incitement to Violence/ Unlawful Action Speech that Threatens Hostile Audience Reaction Disclosure of Dangerous Information False Statements of Fact Sexually Explicit and Violent Expression Lewd, Profane and Indecent Expression Hate Speech 1970 1979 Gooding (1972): SS; conviction under disorderly conduct statute overturned in void of statute not and limited to define and punish specific conduct lying within the domain of state limited doctrine by requirement; interest: public order and safety Pentagon Papers (1971): PPB; heavy presumption against prior restraints not satisfied by prevent publication of embarr assing governmental allegation of proof that publication must inevitably, directly, or immediately cause the occurrence of an event kindred to imperiling the safety of transport interest: national security Gertz (1974): AHB; Ct. overturned liability for statements made about a private figure concerning matters of public concern; STD: private figures can recover actual damages for defamatory statements concerning matters of public concern under a standard akin to anything above strict liability; evidence reviewed under POE; however, punitive damages can only be awarded upon proof of actual malice; mere proof of failure to investigate, without more, does not establish RD; publisher must act with high degree of awareness of falsity; interest: reputational injury Miller (1973): CB; obscene material is not protected by the 1st Am.; test: state statute prohibiting obscenity must be which, taken as a whole, appeal to the prurient interest in sex, which portrays sexual conduct in a patently offensive way, and which, taken as whole, do not have serious literary, artistic, political, or scientific value conviction under state statute remanded for ruling in light of new standard adopted; sensi bilities of unwilling recipients or exposure to Cohen (1971): SS; conviction under California statute prohibiting breach of the peace for wearing jacket with profanity in courthouse overturned; profane speech is not obscenity ( Miller ) or fighting words ( Chaplinsky ); nothing in the to indicate it is a valid TMP restriction; DE: jacket; lack of violent reaction by those who saw interest: public order and safety Erznoznik (1975): SS; AHB ; statute prohibiting public display of nude content struck down; it prohibited content that was not obscene and thus protected by the 1st Am.; no evidence that it constituted a valid traffic regulation; Figure G 4 Continued
303 Variety of Speech By Decade (column) Incitement to Violence/ Unlawful Action Speech that Threatens Hostile Audience Reaction Disclosure of Dangerous Information False Statements of Fact Sexually Explicit and Violent Expression Lewd, Profane and Indecent Expression Hate Speech 1970 1979 (cont.) Nebraska Press (1976): PPB; hi gh burden against prior restraints not met other measures short of a prior restraint would not have duly protected trial interests; Fa ctors: 1) of extent of pretrial restraining order would operate to prevent the threatened interests. Paris Adult Theatre (1973): CB; states may rely on their own experience in re gulating obscenity; evidence establishing a correlation between obscene material and antisocial conduct not required; expert testimony is not necessary to establish what constitutes obscenity; DE: films; interest: social interest in order and morality (con t.) TE: screen was visible from public street and people had been observed watching the films from outside the theater; interest: protection of unwilling viewers and minors American Mini Theatres (1975): IS; AHB; city zoning ordinance dispersing adult bus inesses upheld; city must be allowed experiment with s olutions to social problems; ( TE/FE: qualitative studies) (largely of one individual location of several such businesses in same neighborhood decreases property values and ca uses increase in crime; interest: urban planning; preservation of urban life Figure G 4 Continued
304 Variety of Speech By Decade (column) Incitement to Violence/ Unlawful Action Speech that Threatens Hostile Audience Reaction Disclosure of Dangerous Information False Statements of Fact Sexually Explicit and Violent Expression Lewd, Profane and Indecent Expression Hate Speech Landmark (1978): Government interests in protecting the confidentiality of confidential judicial proceedings did not outweigh high burden against prior restraints; C&PD test weighed in favor of the 1st Am. (PBB) required: 1) necessary to requisite showing of imminence; and 3) danger must not be r emove or probable, but must states imposing sanctions for publishing confidential proceeding information; interest: fair and orderly administration of justice Pacifica Foundation authority to impose sanctions on radio indecent expression is not based on proof that expression is obscene or caused harm to those who heard it; interest: privacy; protection of minors; CE: man heard broadcast while traveling in car with son; factors : repetitive use; aired during a time when children in the audience (mid afternoon); use of warning does not overcome burden Figure G 4 Continued
305 Variety of Speech By Decade (column) Incitement to Violence/ Unlawful Action Speech that Threatens Hostile Audience Reaction Disclosure of Dangerous Information False Statements of Fact Sexually Explicit and Violent Expression Lewd, Profane and Indecent Expression Hate Speech 1980 1889 Claiborne Hardware : (1982): AHB; liability for malicious interference overturned due to hearers were threatened by virtually even victim of violence continued to patronize white recorded by police, including several threatening comments, but was mostly peaceful; factors; timing of events in relation to other factors; interest: economic losses Falwell (1988): AHB; Claim for IIED rejected where jury found ad parody was not could not be viewed as stating P; Test: To recover for IIED, a public figure must prove, in addition to elements of IIED, that the: 1) the statement was false; and 2) was made with actual malice (same standard as in defamation claims); did not matter than D had malicious intent to defame P (would go toward intent); interest: emotional injury Ferber (1982): CB ; child pornography is a unprotected category of expression; AE: 20 states prohibited distribution of material depicting children engag ed in sexual conduct without requiring the material be obscene; TE & FE: psychological and sociological (qualitative) studies purporting to demonstrate a connection between child abuse and psychological, emotional, psychological, mental harm. Renton (1986) : IS; AHB; city zoning ordinance concentrating adult businesses in specific locations upheld; city was entitled to rely on the experiences of other cities; FE/TE: (qualitative) studies purported to show a connection between adult businesses and neighborhood regulation; interest: preventing crime, retail trade, maintaining property values, preserving quality of urban life Figure G 4 Continued
306 Variety of Speech By Decade (column) Incitement to Violence/ Unlawful Action Speech that Threatens Hostile Audience Reaction Disclosure of Dangerous Information False Statements of Fact Sexually Explicit and Violent Expression Lewd, Profane and Indecent Expression Hate Speech 1990 1999 R.A.V. (1992): AHB ; SS; conviction for crudely made cross backyard under bias motivated statute overturned; went beyond fighting words doctrine ( Chaplinsky ) to punish fighting words that contain messages of bias motivated hatred (based on viewpoint; ) state but cannot punish not based on content of expression ; TE: communicate to minority that group hatred not condoned by majority; interest: emotional harm; perceived legitimacy of interest Figure G 4 Continued
307 Variety of Speech By Decade (column) Incitement to Violence/ Unlawful Action Speech that Threatens Hostile Audience Reaction Disclosure of Dangerous Information False Statements of Fact Sexually Explicit and Violent Expression Lewd, Profane and Indecent Expression Hate Speech Free Speech Coalition (2002): SS; AHB; speech that is neither obscene ( Miller ) nor child pornography ( Ferber ) cannot be banned; virtual child pornography abuse of children; argument that it whets pedophiles appetites is some subsequent criminal action and not demonstrate a interes t: harm to minors Alameda Books (2002): AHB; IM; zoning ordinance prohibiting two businesses from operating in same building upheld; municipality may rely on any evidence that is reasonably believed to be relevant for demonstrating a connection between sp eech and a substantial, interest. TE/FE: police report (quantitative) purporting to demonstrate a concentrations of adult businesses are associated with high crime rates; interest: reduction in crime Black (2003): AHB; SS; conviction und er statute prohibiting cross burning with intent to intimidate, where cross burning was viewed as prima facie evidence of intent to intimidate overturned because very reason why a State may ban cross burning with threats: those statements where speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group; while threats of violence not protected, history of dual message communicated by expre ssion requires evidence of intent to intimidate; no intent to carry out threat required; interest: emotional harm; physical harm Figure G 4 Continued
308 Variety of Speech By Decade (column) Incitement to Violence/ Unlawful Action Speech that Threatens Hostile Audience Reaction Disclosure of Dangerous Information False Statements of Fact Sexually Explicit and Violent Expression Lewd, Profane and Indecent Expression Hate Speech Fox Television Stations (2002): AA; FCC policy change to punish because they are harmful to children does not need to be supported by scientific, empirical evidence; CE : complaints from parents following airing of live broadcasts ; interest: injury to minors Figure G 4 Continued
309 Variety of Speech By Decade (column) Incitement to Violence/ Unlawful Action Speech that Threatens Hostile Audience Reaction Disclosure of Dangerous Information False Statements of Fact Sexually Explicit and Violent Expression Lewd, Profane and Indecent Expression Hate Speech 2010 present Snyder (2011): SS; TE/FE: Albert and physical anguish (exacerbated pre existing health conditions, depression); lack of pre existing relationship b/w Snyders and WBC members; signs not viewed as mounting personal attack; dominant theme of sign relation to broader public (political and religious) issues Alvarez (2012): SS+; STD: requirement of between restriction imposed and injury to be prevented (dilution of perception of military medals); interest: law prohibiting lies credentials without regard to whether they were made for purposes of material gain (solely false speech) overturned; integrity of the military honor system Stevens (2010): SS; PPB; conviction under federal statute prohibiting depictions of animal cruelty overturned as reaching material protected by the 1st Am.; depictions of animal cruelty are not a category of unprotected expression; DE: gruesome hunting videos sold through interest: social morality Figure G 4 Continue d
310 Variety of Speech By Decade (column) Incitement to Violence/ Unlawful Action Speech that Threatens Hostile Audience Reaction Disclosure of Dangerous Information False Statements of Fact Sexually Explicit and Violent Expression Lewd, Profane and Indecent Expression Hate Speech 2010 present (cont.) Brown (2011): SS+; statute prohibiting sale or rental of violent video games st ruck down; between the harm and the expression; TE & FE : qualitative, empirical studies purporting to demonstrate a between violent material and violent reaction; interest: protection of minors Key: Types of evidence C E = Circumstantial T E = Testimonial E E = Expert A E = Anecdotal S E = Scientific Standards: C+PD = clear and present danger BT = bad tendency SS = strict scrutiny SS + = strict scrutiny plus (more than SS) IS = intermediate scrutiny Approaches: AHB = ad hob balancing PPB = preferred position balancing AA = deference to administrative authority CB = catego rical ban Figure G 4 Continued
311 CHAPTER 5 CONCLUSION S Chapter 5 feature s four parts. Part A proposes a proof of harm typology of factors or variables potentially affecting burdens of proof in allegedly harmful speech cases Part B establishes a proof of harm rubric for evaluating the evidentiary burden a court would apply in specific factual scenarios Part C makes normative suggestions regarding the weight that should be allotted the typological factors when engaging in an evidenti ary calculation of the burden of proof. Part D sets forth a hypothetical fact pattern, which embellishes on a real n First Amendment jurisprudence and applies the analytic tools the typology and rubric to the fact patt ern to demonstrate how the typology and rubric would be applied to a specific factual scenario Part E reexamines the mass communication theory of the third person effect to explai n its potential impact on judici al decisions evaluating potential harm s to g overnmental interests. Part F then reviews the research questions ini tially proposed in Chapter 1 summarizing the research to specifically answer each o f those questions. It identifies potential areas for future research. Proof of Harm Typology Typologies are useful analytic tools for simplifying complex legal issues. It is a This section assessment of an evidentiary burden of proof in the thirty eight Supreme Court cases examined in Chapter 4. Of course, it is potentially impossible to know exactly what 1 Surveys of judges attempt to 1 Ryan, supra note 1, at 1655.
312 better understand the factors that influence their decisions But even these studies assume the respondents are candid and aware of all variables affecting those decisions. 2 Even where the social scientific data is cited, it is potentially unclear whet her the social scientific evidence influenced the outcome or whether it was cited to support an outcome reached on other grounds. 3 Furthermore, social scientific data may Yet, i t seems clear that judicial evaluation of an evidentiary burden of pro of of harm is dependent on at least some other variables beyond the nature of harm alleged and variety of expression involved The typology proposed by this study is to assist in th deve lopment of a better understanding concerning those factors. Thus, t he f actors or variables this study has identified that may affect evaluation of the evidentiary burde n of proof of harm thus, include but may not be limited to, the : 1. nature of legal question ; 2. jurist s ideological values; 3. number of government interests at issue; 4. weightiness of the interest(s); 5. perceived legitimacy of the asserted inter est(s); 6. level of legislative deference adopted by the Court; 7. strength of evidence presented by the government to support its interest(s); 8. availability of evidence ; 9. difficulty of gathering new evidence of harm. These next sections review these factors. 2 Ryan, supra note 1, at 1655. 3 Ryan, supra note 1, at 1655.
313 Nature of L egal Q uestion The nature of a legal question is a key factor affecting the relevance of social science evidence to legal decisionmaking According James Ryan, now dean of the Harvard Graduate School of Education, i f a judge perceives a legal issue involves moral or philosophical judgments or that the question is abstract or value laden he ma y be less likely to rely on social science evidence or view the evidence as important 4 Alternative ly if the question is an empirical one or viewed as involving judgments, a judge may view social science findings as significant. 5 It is no doub t violence and abuse, and their effe cts particularly on children, are the focus of much p sychological and sociological research. Questions involving the potential effect of violence on children, thus, may be viewed as involving empirically based questions Brow n v. Entertainment Merchants Association reviewed psychological and sociological studies purporting to demonstrate causation b etw een violent video games and harm to minors. 6 Ferber relied on literature offered by Congress and New York demonstrating a connection between child abuse and psychological harm to hold that the distribution and sale of child pornography should be prohibited. 7 It seems clear, in each case, the Court at least viewed the evidence as relevant to answering the pertinent legal ques tion. Comparatively, legal questions involving personal privacy and emotional injury resulting from defamatory statements may be viewed as comprising normative 4 James E. Ryan, The Limited Influence of Social Science Evidence in Modern Desegregation Cases 81 N.C.L. R EV 1659, 1663 63 (2003). 5 Id. 6 See supra Part 4.B.2. (reviewing that opinion). 7 See supra Part 4.B.2. (reviewing that opinion).
314 judgments about human behavior. Erznoznik v. City of Jacksonville 8 power to prohibit the public display of nudity 9 Such a determination however, would appear to involve subjective measurements regarding th e point at which privacy interests are deemed substantial as T hese relatively broad abstract questions are then reduced to specific legal inquiries at the indivi dual level. Did the New York Times harm L.B. Sulliva failed to check the accuracy of the statements made in the ad ? Did Westboro Baptist members cause Albert Snyder emotional injury when they hono r wound the perceived integrity of the Congressional Medal of Honor. Yet, s cientific research on human behavior loses precision when it is applied in a generalized manner at the micro level This is potentially one of the problems Justice Scalia encountere d when he determined that the video game literature had failed to rule out the impact of other factors or media as contributi n I t is important to recognize there are potentially innumerable factors that weigh sizing of an issue, and thus the particul ar outcome the jurist may reach in a particular case. For parsimony, this study will not discuss each of those here, but it will make mention of one element political ideology that has received some support in the l iterature. 8 422 U.S. 204 (1975). 9 Id at 210.
315 Ideological Va lues In the ommon sense suggests that the more familiar and politically salient an issue, the greater the potential for ideology and 10 Consider, moreover, a New York Times article published in the November 2012 following a vote by a federal appellate court in Michigan that the state could not ban racial preferences in admissions decisions to its public universities. 11 The article was not a comment o in relation to their votes 12 Recapping a report posted on Scotusblog subseque nt to the decision, the author acknowledges while the political ideology is indeed a Democratic nominees, while each of the seven judges in the dissent were Republican nominees. 13 According to the author: Many judges h ate it when news reports note this sort of thing, saying it undermines public trust in the courts by painting them as political actors rather than how they like to see themselves as disinterested guardians of neutral legal principles. But the there is a lo t of evidence that the party of the president who appointed a judge is a significant guide to how that judge will vote on politically charged issues like affirmative action. 14 10 Id an issue is politically salient and perceived in moral and philosophical terms the likelihood that social science I d. 11 Politicians in Robes N.Y. T IMES Nov. 26, 2012, available at http://www.nytimes.com/2012/11/27/us/judges rulings fo llow partisan lines.html?_r=0 (last visited April 4, 2014). 12 Id. 13 Id. 14 Id.
316 But backed by more than common sense, studies have documented the impact Jeffrey Segal et al., acknowledge support among political scientists investigating the relationship between votes and values. 15 They recognize the sum of this research has concluded that if not the predominant, view of the U.S. Supreme Court decision making is the attitudinal model[, which] supposes that the ideological values of jurists provide the best predictor of their votes 16 Yet, in an article pu blished in 2000, Professor Schauer criticizes what he 17 He lays out the argument for the personal ambition and self interest of judge s as a motivating factor in judicial decision judges are human beings who have an array of self interested motivations to accompany their public interested motivations, then it is important that not only political 15 Jeffrey Segal et al., Ideological Values and the Votes of U.S. Supreme Court Justices Revisited 57 J P OLITICS 812, 812 (1995). 16 Id. (citing J EFFREY S EGAL & H AROLD S PAETH T H E S UPREME C OURT AND THE A TTITUDINAL M ODEL (Cambridge University Press 1993). The study however, did not find as concrete support for the attitudinal model as earlier Studies. See Jeffrey A. Segal and Albert D. Cover, Ideological Values and the Votes of U.S. Supreme Court Justices 83 A M P OL S CI R EV 557 (1989). The study updated the prior research to include the two Bush appointees (Justices David Souter and Clarence Thomas) and backdate them by including the seven Roosevelt nominees (Black, Reed, Fra nkfurter, Douglas, Murphy, Jackson and Rutledge) and the four Truman nominees (Burton, Vinson, Clark, and Minton). It used the same values, ranging from 1 (unanimously conservative) to 0 (moderate) to +1 (unanimously liberal). The newspapers included the New York Times Washington Post Los Angeles Tribune and Chicago Tribune two with conservative stances and two with liberal ones. T he later study added two additional newspapers, the St. Louis Post Dispatch and the Wall Street Journal For an argument that judges must act strategically rather than vote their sincere policy preferences, see L EE E PSTEIN & J ACK K NIGHT T HE C HOICES J USTIC ES M AKE (1998). 17 Frederick Schauer, Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior 68 U. C INN L. R EV 615, 615 (1999 2000).
317 scientists, but al so lawyers, law students, and all the rest of us who study the courts 18 Lee Epstein, William Landes and Judge Richard Posner take what has been t of the role Behavior of Federal Judges published in January 2013. The three authors conclude, less anyone still doubt such a finding, that y Republican presidents vote more conservatively on average than justices appointed by Democratic ones, with the difference being most pronounced in civ i 19 United States v. Alvarez only continu e to sup port such conclusions. Ex cept for Chief Justice Roberts t he panel of li beral justices voted in favor to overturn the federal statute, while those viewed as conservative Justices Alito, Scalia and Thomas (all appointed by Republican presidents George W. Bush or Ronald Reagan ) dissented, voting to uphold the law. According to the dissent, the law from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no 20 18 Id at 617 18. 19 L EE E PSTEIN ET AL ., B EHAVIOR OF F EDERAL J UDGES : A T HEORETICAL AND E MPIRICAL S TUD Y OF R ATIONAL C HOICE (2013). 20 United States v. Alvarez, 132 S. Ct. 2537, 2552 (2012). See also C ASS R. S UNSTEIN A RE J UDGES P OLITICAL ? A N E MPIRICAL A NALYSIS OF THE F EDERAL J UDICIAR y (Brookings Institution Press 2006)
318 Number of G overnmen t Int erests Review of First Amendment jurisprudence demonstrates that, where relevant, the government interest in regulating expression in a particular case may not only occur in isolation Erznoznik v. City of Jacksonville 21 involved not only a government interest in 22 but shielding min ors from this type of visual prohibiting the passing motorists, and thus, slowing the flow of traffic and increasing the 23 Similarly, City of Renton v. Playtime Theaters, Inc 24 involved in prevent [ing] crime, protect [ing] [ing] ing] and preserv[ing] 25 The multiplicity of government interests however, doe s not ensure the government regulation will be upheld or that the interests will be more heavily weighted in the constitutional balance, but it certainly does not hurt. Weightiness of the Government I nterest(s) U ndoubtedly, some interests may be viewed as in the hierarchy of interests than others. Within tort law, for instance, an unstated hierarchy exists with regard to the assessment of damages, which places physical harm above others, such 21 422 U.S. 204, 210 (1975). 22 Id at 212. 23 Id at 211. 24 475 U.S. 41 (1986). 25 Id at 48.
319 as emotional, reputational and psychological harm. 26 Similarly, national security unquestionably places a greater encumbrance on the scheme of interests In each case involving subversive advocacy, the Court required little to no evidence to uphold the s criminal convictions, based only upon his e xpression 27 Indeed, o nly when di d it refuse to uphold the restriction. Perceived Le gitimacy of the Asserted In terest(s) Thus, ultimately, the perceived legitimacy or authenticity, of the a sserted interests will a assessment of an e videntiary standard. Erznoznik minors from unwanted exposure to potentially offensive material. It then turn ed to the ti me upo n oral argument before it, dinance as a traffic regulation the record. 28 According to the Court he text of the 29 ... There is no reason to think that a wide variety of other scenes in the customary screen diet, ranging from soap opera to violence, would be any less distracting to the passing 30 26 See Part 4.B.1. (discussing this hierarchy). 27 See Part 4.A.1. (discussing those cases). 28 422 U.S. 205, 214 (1975). 29 Id at 214 Id. 30 Id. at 214 15.
320 Comparably, New York Times Co. v. United States skeptically rejected the 31 In his concurrence, Justice Hugo Black, joined by not on y farreaching contention 32 He observed: the Government argues in its brief that in spite of the First Amendment publication of information whose disclosure would endanger t he national security stems from ... the constitutional power of the President over the conduct of foreign a ffairs and his authority as Commander in Chief. 33 Justice Douglas admitted, and destroy the fundamental libe rty and security of the very people the Government 34 Justice Douglas to ok a similar position in his own concurrence when he wrote opportunity and ma lfeasance and corrup grown that the re was particular 35 According to Justice Douglas, ecrecy in government is fundamentally anti democratic, 31 403. U.S. 713, 718 (1971) (Black, J., concurring). 32 Id. (Black, J., concurring). 33 Id. (Black, J., concurring). 34 Id. at 719 (Douglas, J., concurring). 35 Id at 722, 723 (Douglas, J., concurring).
321 per petuating bureaucratic errors ... he dominant purpose of the First Amendme nt was to prohibit the widespread practice of governmental suppressio n of 36 He predicted, New York Times history a s the most dramatic illustration of that principle. 37 Level of Legislative D eference F ree speech jurisprudence demonstrates it is transitioning beyond a historical trend of deferring solely to legislative judgment. Yet, not all Supreme Court opinions aptl y support this conclusion. While Justice Scalia provided an extremely deferential standard to the legislative conclusions in Fox Television Stations that the public television broadcast of even fleeting expletives would cause harm to children two years la ter he outright rejected any deferential standard to legislative decisionmaking in Brown v. Entertainment Merchant s Association. Specifically, he refused in Brown to accept the conclusions reached by a vast majority of social scientific research that viole nt ma terial causes harm to children. Yet, Fox Television Stations and other decisions like it d emonstrate there are at least three ways in which the Court can defer to legislative judgment. While more recent jurisprudence demonstrates the Court is likely to engage in its own fact finding, the standard of legislative deference applied in each of these instances is likely to impact the governmental interests at stake in a particular instance involving speech associated harm. For instance, in Fox Television Stations the Court took for granted that the broadcast of even a single, 36 Id. at 723 24 (Douglas, J., concurring). 37 Id at 724 (Douglas, J., concurring).
322 According to Justice Scalia in Fox Television Stations the FCC did not need empirical dren It 38 Second, a court may defer to the evidence provided by the legislature to support its conclusions. In Ferber v. New York the Court not only deferred to the New York gment, perhaps unarguably, that the distribution of child pornography harms children, but also deferred to the evidence provided by the legislature in this instance, several qualitative sociological and psychological st udies purporting to demonstrate a con clusion between child abuse and psychological harm to support the contention that the distribution of ch ild pornography harms children. Perhaps more persuasively, the Court in City of Los Angeles v. Alameda Books permitted Los Angeles to re ly on studies no t specifically addressing the particular social problem the city aimed to prevent to support it s conclusion that the concentration of more that two types of certain adult businesses in one building resulted in increased crime age old mantra the upheld several times in secondary effects of even pro tected expression. 39 Thus, it granted the city deference to pursue means of regulating the secondary effects of adult businesses in the way the city saw fit, the final way in which a court may defer to legislative judgment. 38 556 U.S. 502, 518 21. 39 City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 439 (2002).
323 In summation, the level of defer ence granted to lawmakers concerning the: 1) suspected harm; 2) evidence offered to support the legislative conclusions; and the 3) method of regulation the alleged harm producing expression will likely influence the stringency with which the Court may req uire an asserted injury and the speech itself. Availability of E vidence The availability of evidence might also impact assessment of an evidentiary. In Brown the Court surveyed available evidence, which included more than 1,000 studies purporting to show a correlation between violent video games and harm to minors, but estab lished the evidence did not meet its evidentiary burden. The prior availability of evi dence likely impacted the assessment of its burden of proof. But whether evidence is available does not always, apparently, preface the adoption of a standard requiring empirical e vidence. Undoubtedly, there are going to be questions of law for which studi es have not been conducted or for which the evidence might no In Alvarez the Court imposed a standard requiring empirical evidence of proof when no evidence had been offered by the government purporting to demonstra te a speech harm connection. In United States v. Alvarez the establishment of such a stringent evidentiary burden appeared based on its prior development of such a standard. But it also raises questions whether the requirement of such stringent evidence w as the appropriate standard in such a case, or alternatively, the method by which evidence of a direct causal link between lies and dilution of the perception of mil itary medals would be produced.
324 Strength of E vidence S trength of evidence has several attri butes the legislature is drawing from the scientific evidence and the ability of the evidence to continue to support those conclusi ons (longitudinal studies) over time. In Brown there was evidence of more than 1,000 studies purporting to demonstrate at least a government provided many types of studies, incl uding longitudinal and meta analyses (stu dies of all the studies) to support its conclusions, but the Court still found against the government. In City of Renton v. Playtime Theatres the city relied largely on the testimonial and expert evidence of one so ciologist, Dr. Mel Ravitz, to support its Alameda Books similarly purported to rely upon a single quantitative 1977 police report in crime rates in Los Angeles to justify Fox Television Stations relied on no evidence (empirical or otherwise) to support its conclusion, boasting only administrative authority to regulate the public broadcast of profanity during hours when chi ldren would be in the audience in the way that it saw fit to pursue its protection of minors. Second, strength of evidence, as succinctly summed up by Professor James Ryan, refers to the ability of the evidence to measure what it purports to measure. 40 Acco be; the more mixed and inconclusive it is, the less likely it is that courts will rely heavily 40 See Ryan, supra note 1.
325 41 Professor Faigman adopts a similar perspective when he argues that scientific strength of evidence is the standard 42 While social science research is sometimes thought of as possess ing lesser and thus viewed as holding slighter relevance to legal decisionmaking 43 the reality is that no area of human inquiry escapes this critique. 44 to base legal decisions. Yet, the argument that any reliance on social science evidence otherwise be placed on law to make complex objective assessments regarding human behavior. Social scientists maintain an understanding of human behavior superior to the 45 A setback of the strength of evidence factor, however, is a belief held even by proponents of social science research, despite any mounting, lo ngitudinal evidence, social scientific research may never definitely prove causation. As recognized by the 41 Ryan, supra note 1, at 1662. 42 David Faigman, To Have and Have Not: The Value of Social Science to the Law as Science and Policy 28 E MORY L.J. 1005, 1009 1 science research can be judged...[is] their scientific strength, that is, on the ability of the social scientists 43 Faigman, supra not e 40, at 1012. Social science is potentially less scientific and is thus legal reliance on it would subject law to unstable footing because social scientist are unable are unable to separate their values and judgments from their experiments and analysis an supra note 40, at 1012. 44 Faigman, supra note 40, at 1012. 45 Faigman, supra note 40, 1012.
326 Brown majority, there are always going to be other variables that will influence the effect. Difficulty of Gathering New Evidence of H arm In stark co ntrast to harm in Brown 46 just two years earlier i n Federal Communications Commission v. Fox Television Stations, Inc 47 Instead of requiring causal evide nce of harm to children stemming from the broadcast of profanity, he wrote, the FCC did not nee d empirical evidence proving that fleeting expletives first blow s 48 action ... because of failure to adduce empirical data that can be readily obtained ... it is 49 Scalia held it was sufficient that Congress had determined that indecent material is harmful to children. 50 As to the specific difficulty associated with gathering evidence of this kind, Scalia observed: There are some propositions for which scant empirical evidence can be marshaled, and the harmful effects of broadcast profanity on children in one of them. One cannot demand a multiyear controlled study, in which some children are intentionally exposed to indecent broadcasts (and insulated from all other indecency), and others are shielded from all indecency. 51 46 See, e.g ., Clay Calvert et al., Social Science, Media Effects & The S upreme Court: Is Communication Research Relevant After Brown v. Entertainment Merchants Association?, 19 UCLA E NT L. R EV 293 (2012 ). 47 556 U.S. 502 (2009). 48 Id. at 518 21. 49 Id. at 519. 50 Id. 51 Id
327 Chief Justice Rehnquist observed a similar notion in his majority opinion in City of Renton v. Playtime Theaters 52 urban planning and crime prevention in the context of zoning ordinances. According to Rehnquist: The First Amendment does not require a city, before ena cting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so longa s whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses. 53 Part A discussed evidentiary burden. Part B makes some observations regarding the weight of certain factors in the overall application of the typological factors to judicial assessment of proof of harm. Normative Ran king / Ordering of Typological Factors it is difficult, if not impossible, to determine the factors that may affect or impact judicial assessment of an evidentiary burden in a particular case. In the same way, it is also potentially arduous to determine the weight placed in the calculus of selecting an appropriate evidentiary burden on any particular factor Indeed, it may be true that not every factor is relevant to assessment of an evidentiary burden in a specific case Part B makes some suggestions regarding which of the typological factors should possess greater weight in the overall assessment and selection of an evidentiary burden. illustrate the priority that should govern potential application of each of the factors identified in the proof of harm typology S ome factors however, are intrinsically related to another factor or variable These variables appear in green directly below their blue counterparts. 52 475 U.S. 41 (1986). 53 Id. at 51.
328 Tier 1 Giv en that the nature of the legal question is relevant to the whether appears on the top rung in the normative hierarchy of typological factors. R elated to the is sue of appears in green directly below the blue square labeled Tier 1. Tier 2 toward empiricism suggests a vaila bility of evidence should follow the nature of the legal question in the hierarchy of typological factors. Indeed, the availability of evidence is essential to whether the legal question can be answered empirically, and as Justice Scalia mentioned in his m ajority opinion in Fox Television Stations of that evidence may also come in to play, but whether there is Where there is evidence purporting to support or deny the presence of a relationship between the a lleged governmental harm and expression, it should be examined to determine its actual sufficiency for measuring the connection. Despite arguments against the use of social science evidence in judicial decisionmaking, the evaluation of scientific, empirical evidence appears to weaken the likelihood that ideological values can influence the outcome in a particular case. Y et, it has been acknowledged that not every legal question can be answered empirically.
329 Where there is not empirical evidence to confirm or cast doubt on a speech harm relationship, the Court has most often engaged in a balancing of the governmental inter est(s) against the First Amendment in protecting the expression. Of course, a preferred position balancing approach, as opposed to ad hoc balancing position, better recognizes the freedom of expression. This w as the approach taken in the recent U.S. Supreme Court opinion of United States v. Stevens In Stevens the Court not only rejected the categorical approach to banning expression, but disall owed protection afforded the expression to be calculated on an ad hoc basis. The Supreme Court opinions examined in this study demonstrate that the weightiness of the interests involved, such as national security or prevention of physical harm, may sometimes accrue more weigh in the overall balancing test afforded to the interests at stake. Yet, there may be other instances where the number of governmental interests alleged or the perceived legitimacy of the interests in issue may come to bear t to national security, the Court incredulously overturned the injunction. In this sense, the perceived legitimacy of the alleged governmental interest overwhelmed the weight iness of the expression. These factors the weightiness of the expression, the number of government interest(s) and the perceived legitimacy of the interest(s) all appear on equal platform in Tier 2. Tier 3 t, for the most, it has evolved beyond its historical approach of deferring to legislative judg ment regarding the
330 decision to ban expression only deemed harmful. Indeed, its most recent subscription to empiricism illustrates legislative may be required to confirm suspected harms empirically. Prerequisite proof of harm is likely to lessen the level of legislative deference concerning the alleged harm and the evidence provided by the legislature to support its conclusions, but also the means of pursuing regul ation of the suspected harm producing expression. Part B provided normative suggestions regarding the weight that should be assigned to the typological factors in establishing the evidentiary burden of proof Part C discusses the development of a proof of harm rubric for assessing an appropriate burden of proof in First Amendment cases. It provides courts with a framework determining the burden it should require when evaluating First Amendment claims. Proof of Harm Rubric The proof of harm rubric center s on of harm doctrine in its First Amendment jurisprudence As such, the proof of harm rubric provides recommendations for selecting the appropriate burden of proof in specific factual scenarios. On one axis, set forth in ro ws, are the categories of speech that have guided this study of harm doctrine On the other axis, listed in columns, are the various interests have been asserted by the government for squelching speech. These interests are characterized as the natures of harm. In applying the rubric, a court would presumably identify the specific variety of speech as well as the nature of the harm alleged to identify the appropriate burden of proof, or the standard applied, the type of evidence required and other factors that
331 factual scenario. The rubric also sets forth the Supreme Court p recedent presumably providing a good place to start for investigating further case law and reasoning that might prove useful to the analysis. A limitation of the rubric is that it is based only on analysis of the thirty eight cases analyzed in Chapter 4. T he rubric is set forth below in Figure 5 2. Part D next describes a hypothetical and applies the rubric and the typology to the hypothetical to demonstrate how they would work in the context of a specific factual pattern. Application of Proof of Harm Tools to a Specific Factual Scenario This part comprises two sections. Section 1 describes a hypothetical fact pattern, replete with potential speech based causes of action for illustrating application of the proof of harm rubric and typology. Portions of the h ypothetical are inspired by the real several important respects, teased out the hypothetical. 54 Section 2 applies the rubric and typology to the fact pattern to demonstr ate how they might work. 54 For instance, as indicated, the Austin City Council did indeed enact an ordinance endorsing same sex marriage, although it possess no legal significance. Similarly, the bias motivated statute is inspired by a similar one, indicated above, that was enacted in Colorado. Other portions of the hypothetical are based hosting of protests in support of their religious and political beliefs stems from Snyder v. Ph elps The Brandenburg v. Ohio The hypothetical additional states that the group members laughed following the conclusion of facts in Watts v. United States although the addition of the be analogized to the facts of the hostile audience reaction/fighting words cases, although the hypothetical fact pattern differs from any of the facts in those cases in several important regards. The exposure of children to the anti LGBT expression both on the school bus and in accompanying their parents to the picket ignites important discussi on regarding the harm to minors regarded as government interest in several free speech cases discussed in this study. Thus, the facts underlying the hypothetical are based true events, covered by U.S. Supreme Court opinions or in the media, but vary in sev eral important aspects, providing the impetus for the analysis conducted in the next section.
332 Hypothetical Fact Pattern The National Child Liberation Front of America (NCLFA) is a religious and political group that believes homosexuality is a sin. In support of its religious and political beliefs, NCLFA protests in front of capitol buildings of states that have not yet approved same recent endorsement of same sex marriage. 55 NCLFA members wanted to demonstrate their opposition to sex marriage often removes legal obstacles to adoption by same sex couples. Council members approved the resolution to symbolically express th sex marriage. 56 was Council member Gerry Schlender, who drove to California on the day it approved same sex marriage to wed his long time partn er. Schlender hopes to someday formally Prior to the event, the group received permission to protest in front of the city council building before business hours, and it complied with all police instructions on the day of the protest. NCLFA members marched in front of the office and held signs that 55 This part of the hypothetical is based on true events. See Marty Toohey, Austin City Council Endorses Same Sex M arriage Sept. 27, 2012, http://www.statesman.com/news/news/austin city council endorses same sex marriage/nSNpH/ (last visited Feb. 18, 2014). 56 The sentiment that council members wanted to be on th See id (quoting a spokesman for the city council). Interestingly, after this hypothetical was written, U.S. District marriage, pending review by an appellate court, in light of the recent Supreme Court opinions on the matter. Chris Tomlinson, Federal Judges Strikes Down Texas Gay Marriage Ban AP. COM http://abcnews.go.com/US/wireStory/federal judge strikes texas gay marriage ban 22685164 (last visited Feb. 26, 2014).
333 News about the protest spread fast. Portions were broadcast on local television n ews stations, including on the 6 :00 a.m. news. During the protest, a group leader made a speech, urging protesters to refrain from shopping at businesses owned by members of the lesbian, gay, bisexual or transgendered (LGBT) community. He believed that a boycott of LGBT businesses would eventually force them to move elsewhere. He proclaimed: This is a protest for the citizens of Texas who believe in the protection of our fu should refrain from shopping or receiving services at stores and businesses owned by gays. We must hold each other acc ountable to this cause or f ear the wrath of God! And if our elected officials continue to take this course of action we are not a vengeful organization but there might have to be some repercussions taken to ensure that our message is clearly communicated. And as for the council members who sp earheaded this endorsement, wel l, may God have mercy on their souls! As he spoke, the speaker raised his right arm and shook his fist ferociously at the Meanwhile, Council member Schlender, who was watch ing his regula r 6 :00 a.m. news sho w, saw coverage of the protest, including what was written on the signs. He became disturbed and distraught, and decided it would be best if he delayed his arrival to the office that morning to avoid any potential confront ation with the protesters. The news station and the FCC hotline received com plaints from parents, some of which included same sex couples, that their children were harmed by the contents of the protest that was covered by the news station. Members of the A ustin Police Department supervised the area during the entire
334 soon as the protest ended, however, police arrested the speaker and charged him under a recently enact ed city ordinance banning bias motivated intimidation. 57 Specifically, it prohibits speech made with the intent to intimidate based on race, ethnicity, gender, sexual orientation, political affiliation or union membership. The ordinance includes a legislati ve declaration that, in light of the recent social unrest over the legalization of same sex marriage, there is a need to protect members of the LGBT community from groups engaging in concerted harmful activity. The ordinance requires evidence of intent to intimidate. Following the protest but before the group had complete dispersed, bystanders who came to protest the speech jumped one of the protest members who was entering his vehicle parked nearby. The police, who had been patrolling the entire area, saw the fight break out and quickly arrested the individuals who had jumped on the protester. An NC L F A member who owns a magazine shop refinished a section of his store by turning it into a video arcade. The arcade features violent video games, including some depicting physical acts of violence against, but not limited to, LGBT members. 57 This law is modeled after those enacted in Colorado in 2005. Specifically, C OLO R EV S TAT Â§ 18 9 121(2) (2005) says, in pertinent part, that: A person commits a bias motivated crime if, with intent to intimidate or harass another person because of that origin, physical or mental disability, or sexual orientation, he or she (a) knowingly causes bodily injury to another person; or (b) by words or conduct, knowingly places another perso and such words or conduct are likely to produce bodily injury to that person or damage to Id. See also Kenneth Buck, Hate Crime Verdict Sends Me ssage D ENVER P OST Apr. 26, 2009, http://www.denverpost.com/guestcommentary/ci_12213263 (last visited Feb. 18, 2014); Assoc. Press, p eech C oncerns F IRST A MENDMENT C TR ., May 2, 2011, http://www.firstamendmentcenter.org/colo mans conviction over racist comments raises spee ch concerns (last visited Feb. 18, 2014).
335 Application of the Analytic Tools to the Fact Scenario There are potentially sixteen causes of action the government could allege concerning the facts alleging in the hypothetical Each cause of action involves the identification of the: 1) type of speech a nd 2) the nature of harm/government involved. The factors addressed under each cause of action relate to the elements listed in the rubric for assessing the appropria te burden of proof of harm under that combination. It identifies the specific facts in the hypothetical giving rise the cause of action and applies the Supreme Court precedent applicable to the facts. Speech provoking a hostile audience reaction emotional h arm (1) in The fact pattern states Schlender viewed coverage of the protest on the news program and would be Snyder v. Phelps 58 sets forth expression Under Snyder a court e motiona l injury arising from their hostile expression w ould evaluate evidence including: 1) testimonial and expert evidence of emotional injury, including the worsening of any physical conditions; as well as 2) circumstantial and testimonial evidence of a) any pr ior existing relationship between the parties ; b) a mounting personal attack; c ) the relations of the subject matter to a significant interest of public concern. Other factors that could affe ther public or private; 58 131 S. Ct. at 1207, 1216 (2011).
336 (TPM) restrictions; and also 3) the particular mode through which the plaintiff viewed the expression. In Snyde r the Court expression in the face of circumstantial and testimonial evidence of emotional and physical harm and speech that could be viewed as personally attack ing Albert Snyder, a private individual. Despite the evidence of injury, t he connection of the group member (religious and political) concern proved the dispositive factor. Snyder concern social, or other concern to the community, or when it is a subject of legitimate news 59 Based on this standard, a court could determine t hat the speech involved a significant matter of public concern so as to war rant First Amendment protection despite any emotional or physical Emotional injury : A court reviewing circumstantial and testimonial evidence of l harm could determine that there was not suffici ent evidence of The facts state Schlender became distraught and disturbed when he saw the words on the sign and decided not to go to work. However, there is no indication of any furt her emotional harm suffered by Schlender because of the speec h. This is different from the evidence presented in Snyder that Albert Snyder had suffered severe emotional injuries, including emotional anguish resulting in severe depression and the inability to separate the 59 Id. at 1214.
337 expression 60 Given that the Snyder presented stronger evidence of emotional injury Physical injury : A court could determine, additionally, there was no circ umstantial or expert evidence of physical injury arising from liable for emotional injury. Generally, phys emotional harm would strengthe n a claim tions. Depending on the state in which the claim arose, a court alternatively may re quire physical manifestation of emotional injury to establish such a claim In Snyder the plaintiff presented not only circumstantial, tes timonial and expert evidence of emotional injury, but that his physical ailment s had been exacerbated by the Yet, the fact pattern provides no similar indication that Schlender suffered expression Given that a court would not likely find sufficient evidence of emotiona l injury, it is likely a claim for physical i njury demonstrating emotional harm would likewise fail. Pre existing relationship : Moreover, a court would likely find others reasons suffi expression, including the lack of a pre existing relationship. A court would likely find no evidence of a pre existing relationship existing between Schlender and NCLFA members to hold the group members liable. The hypothetical states the group members 60 Id
338 endorsement of same sex marriage. Even if the group members had become aware of Schlende it is In Snyder Albert Snyder claimed the signs condemning Catholicism and the United Sta tes military personally targeted him and his family, and that, as a result of the 61 However, despite evidence of signs that could be viewed as waging a persona l attack against Snyder and his family, the Court found the facts of the case, including the history of the pickets viewpoints, cut against the finding of a pre existing relationship. 62 The hypothetical indicates the group members, similar to the WBC in Snyder staged protests opposing leg alization of same sex marriage long before any potential Given the connection of the protest to their religious and political views, combined with the fact the group had held many protests before this one, advertising their opposition to the legalization of adoption by same sex couples, it is unlikely a court would find the existing relationship. Personal attack : It is furthermore unlikely a court would find for Schlender on the issue of personal attack. The hypothetical states that the group members held signs that called for the removal of gays from office and that children should be raised by 61 Id. 62 Id
339 opposite sex couples only Given his same attack against Schlender and his family, his position with the cou ncil and his involvement with the passing of the endorsement. Additionally, the fact that in addition as waging a personal attack against Schlender. On these facts Schlen der could argue went b eyond the personal attack launched by the Westboro members against the Snyders. In Snyder the Court found e ven though some signs could be viewed as personally targeting Albert Snyde naturally have been understood as suggesting falsely 63 it ruled the statements that could be viewed as aimed at the Snyder family did change the fact that the overall thrust and d 64 Although Snyder provides no indication a speech was made by a group leader on behalf of the group that could also be viewed as personally attacking the Snyders, the dissent mentio ned the existence of a poem that was published online containing several offensive comments However, the only issue concerning the poem were not granted certiorari and thus were not addressed by the Court. Therefore, the impact of the addition of the poem to the analysis is uncertain that the signs did not constitute a personal attack, contending the content of the signs 63 Id at 1225 (Alito, J., dissenting). 64 Id at 1217 (majority opinion).
340 65 resulting in a 66 He concluded that such speech should not be protected. 67 to Court, it is likely the Court would view the dominant theme of the signs, even combi ned with the speech, would weigh against a finding of a personal attack. The message of the signs largely related to the religious and political beliefs on issues of p ublic concern. Speech on Matter of Public Concern : Additionally, a court would likely find that was of significant public concern. This element would likely dispositive factor in Snyder The hypothetical states that the group stag ed the protest to demonstrate their religious and political views that the legalization of same sex marriage results in the removal of obstacles to the process of child adoption by same sex couples. Additionally, there is no reason to believe, as the Court recognized in Snyder that the beliefs expres did not honestly represent its religious and political views regarding homosexuality and legalization of same sex marriage. Snyder 68 It established speech is of public concern fairly considered as relating to any matter of political, social, or other 65 Id at 1226 (Alito, J., dissenting). 66 Id. at 1229 (Alito, J., dissenting). 67 Id. (Alito, J., dissenting). 68 Id at 1219 (majority opinion).
341 concern to the com 69 While Justice s opini on as always powerless to private individua ls with necessary established by the Court would cut against a finding the protest was unrelated to a significant issue of public concern. Group members hosted the protest to demonstrate their religious and political views regarding homosexuality and the legalization of child adoption by same se x couples. T he legalization of same sex marriage and the benefits that are attached to achieving such marital equality, including child adoption, is undoubtedly a current hot button issue in the United States. There expression wa s ref lective of their honest beliefs, and the protest garnered attention from the news media. protest involved an issue of significant public concern. Status of the In dividual : atus as a public offic ial would only likely weigh in greater favor from liability. In Snyder generally allowed private plaintiffs to recover for emotional injury caused by malevolent actors under a much lower evidentiary burden than applied to public figures and officials. public figure it is unlikely his status would affect of public concern. 69 Id at 1216.
342 Compliance with police instructions/TMP restrictions : The fact pattern also states the group com plied with all police restrictions. There is no indication of a TMP restriction complied. Moreover, the hypothetical states the group filed a permit to host the protest, demonstrating an interest to keep their picket within the bounds of government and police confines. Mode of viewing expression : The hypothetical states Schlender became aware of the protest that was being conducted in front of his office while watching the morning news, presumably at the time the protest occurred. This presents a slightly different factual scenario than Snyder in which it was indicated even though there was testimonial evidence the Snyders saw the tops of signs at the funeral, Albert Snyde r became aware of the protest and what was written on the signs later that evening on the news. Nonetheless, both Schlender and Albert saw the protest through the same mode televised news coverage rather than being confronted by the protest in first hand f ashion. Although it is potentially impossible to know the potential impact such a first hand experience would have on the analysis of the emotional harm caused to the individual as a result of hostile audience expression, the fact at issue do not give any facts underlying this hypothetical. Speech that t hreatens emotional h arm (3) There are several potential claims that could arise for emotional harm resulting from the The hypothetical states the leader from shopping or receiving services at stores and businesses owned by members of the
343 LGBT c members insisted on continuing on the same course of action some repercussions take n Supreme Court precedent giving rise to a cause of action for emotional harm stemming from threatening speech include Watts v. United States 70 and Virginia v. Black 71 Although it was not until Black decided more than thirty years after Watts that the Court provided a d Watts ruled that did not constitute expression falling within the categorical prohibition 72 The decision also identified several factors a court should consider in evaluating threatening speech: 1) whether speech constitutes political hyperbole; 2) the content of the expression (what was actually said whether religious or political in nature ); 3) the context of the speech (the circumstances surrounding the expression, whether religious or political in natu re); 73 While context and circumstance undoubtedly impact the determination of the meaning behind expression, 74 Supreme Court precedent has not since explicitly upheld these factors. Virginia v. Black those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of 70 394 U.S. 705 (1969). 71 253 U .S. 343 (2003). 72 Watts 394 U.S. at 708. 73 Id. at 707 08. 74 Indeed, the Court evaluated the context and circumstances in Claiborne Hardware v. NAACP involving economic harm. 458 U.S. 886 (1982).
344 75 Although Bl ack speaker need not actually intend to 76 it identified three in terests in preventing threatening speech : 1) threatened violen 77 Under the variety of interests recognized by Black the re are three groups that could bring potential causes of action for the al legedly threatening statements: 1) NCLFA members; 2) Austin City Council members; and 3) LGBT b usiness owners. Specifically, NFLFA members could claim that the resulted in emotional harm Austin City Council members could claim emotional harm f suggestion that God shoul d take mercy on the endorsement initiating council members. However, the fact that the speech appears to target only those council members spearheading the endorsement could potentially cut against an argumen t that the speaker directed his comments at the entirety of the council board. Furthermore, the LGBT business owners could potentially boyc ott against them. Although likely th e weakest argument the business ow ners may allege they were placed in emotional harm that boycott participants may launch violent attacks against t h em in pursuance of the boycott. Review of the circumstantial and testimonial evidence w ould likely p roduce a finding in favor of protection for the despite the allegedly threatening comments that were made While it is possible the group leader could be 75 253 U.S. at 359. 76 Id. at 360. 77 Id.
345 mit an act of unl the groups claims for emotional harm would survive. offensive, yet numerous Supreme Court opinions have held speech may not b e suppressed on the basis of offensiveness Moreover, p 78 Yet, such speech is not forbidden protection. NCLF A members : Although NCLFA members potentially have the strongest claim for emotional harm stemming from the lead s allegedly coercive speech, a under the Watts factors would likely rule in favor of the speaker. In Watts rally. 79 They were conditional in nature and both he an d the crowd laughed following the statements 80 81 they were nothing more than political hyperbole. 82 Similarly, t he fact pattern political and religious beliefs and that the spokesman addr essed the group on these issues. Additionally, t here is no evidence that any of the NCLFA members who heard the speech were threatened by it or pl aced in fear of the possibility of a violent reactio n by other members of the group Moreover, the hypothetical states NCLFA members 78 Watts 394 U.S. at 708. 79 Id. at 707. 80 Id. 81 Id at 708. 82 Id.
346 Indeed, a court could find, given the context and nature combined with the the expression amounted to nothing more than political hyperbole. Yet, t he hypothetical states the crowd laughed and cheered Although the crowd, similar to Watts reacted with laughter it also states the crowd cheered. This would suggest the crowd heard his remarks, took them seriously and endorsed his position. Such a finding would likely weigh against a finding that the spe aker engaged in nothing more than political hyperbole. Intent: While a claim for emotional harm stemming from threatening speech is not 83 it is unlikely a court could find the speaker possessed intent to carry out any specific threat of violence that may have been communicating a serious threat of violence. The fact pattern states the picket was held to protest the endorsement and th e speaker promoted a n economic boycott of LGBT businesses. However, First Amendment jurisprudence has generally provided broad protection for political and religious boycott activity. Moreover, it is unlikely the speaker could be held liable for any action words and any those actions. 83 Virginia v. Black, 538 U.S. 343, 359 60 (2003).
347 I t is arguable the speech in Brandenburg v. Ohio 84 after which this speech is modeled, 85 contained rhetoric that was more highly charged than the expression Yet, in Brandenburg the Court found Clarence Brandenburg did not possess the requisite intent to be held accountable for the associated speech crime, under a standard req uiring intent. 86 Under Black which adopted the Brandenburg standard, it is likely a court would find that element was not satisfied by the facts of the hypothetical. 87 Intent to intimidate : communicating a ser ious expression of intent to commit an act of unlawful violence would, thus, also likely weigh in an assessment of intent to intimidate. The hypothetical states that a recently enacted Austin resolution prohibits speech made with intent to intimidate based on race, ethnicity, gender, sexual orientation, political affiliation or union membership. The city council enacted the ordinance in light of the recent social unrest over the legalization of same sex marriage. While the ordinance appears to makes amends for at least some of the Black unclear is whether the prot ecting members of the LGBT community from harmful activity i n light of recent social unrest would violate R.A.V. v. City of St. Paul prohibition on regulatio n on certain disfavored topics. 84 395 U.S. 444 (1969). 85 See id at 446. 86 Id. at 447. 87 Id
348 Nonetheless, t prohibition on bias motivated speech made with to intimidate appears modeled after the Blac k In Black a state could punish cross burning with intent to intimidate. It found, given the pernicious history of cross burning a state could punish cross burning as long cross burning was not taken as prima facie evidence of intent to intimidate 88 It persons in fear of bodily harm ... that must arise from the willful conduct of the accused 89 Given the connection of th e message l beliefs. The Black Court recognized the cross burning at a political rally would almost certainly be protected expression. Moreover, r eligious and political protest and boycotts are generally granted broad First Amendment protection. Thus, Black would seem to require that mere speech about race, ethni city, gender, sexual orientation, political affiliation or union membership could not serve as prima facie evidence of intent to intimidate. Austin City Council members : Austin City Council members could likely bring a claim for emotional distress as a members continue to take this course of action [participating in activist endorsement of 88 Black 253 U.S. at 363 65. 89 Id. at 349
349 same serious expression of intent to com mi 90 and thus would likely fall short of constituting a true threat. LGBT business owners: The same analysis would apply to the threats directed at the LGBT business owners Additionally, however, there is another line of reason ing that may apply to the LGBT members. The believes in our cause should refrain from shopping or receiving services at stores and This is similar to NAACP v. Claiborne County 91 in which a group leader of the Claiborne County NAACP made a plea for NAACP members to refrain from shopping at stores owned by white merchants 92 Additionally, there was evidence that the NAACP leader threatened that any NAACP members w ho failed to comply with the boycott would be would be subject to physical punishment. 93 Especially considering the social unrest acknowledged by the city as a rationale for the enacting the ordinance, the call for a political boycott of LGBT businesses may have placed the business owners in emotional fear that the boycott participants would engage in violent acts against them. However, given that such an action would rely on the intervening 90 Id. at 359. 91 458 U.S. 886 (198 2). 92 Id. at 899. 93 Specifically, the leader threatened that, If we catch any of you going in any of them racist stores, we're Id. at 902.
350 action of the boycott participants to engage in violence against th em combined with a lack of a specific call by the leader to engage in violence against the LGBT business owners would likely weigh against such a finding. Speech that threatens physical harm (3) The same analysis that would apply under a pleading of emot ional harm applies to physical harm given that both Watts and Black likewise addressed physical harm. For instance, th e federal statute at issue in Watts llowing him to perform his duties without interference 94 (emotional harm). The he disruption 95 Speech that t hrea tens economic h arm (1) The next cause of action concerns a claim for economic harm stemming from threatening speech In the hypothetical states the NCLFA group leader threatened that The case setting forth the standard for evaluating claims of economic harm stemming from threatening speech is NAA CP v. Claiborne Hardware 96 In Claiborne NAACP leaders pursued a boycott to advance political goals, namely, achievement of racial equality and integration. 97 The Court acknowledged the interest in protecting economic activity, but held 94 Watts 394 U.S. at 707. 95 Black 538 U.S. at 360. 96 458 U.S. 886 (1982). 97 Id at 899.
351 that th e NAACP had engaged in protected symbolic expression. 98 In doing so, the Court allegedly threatening remarks, which may have been viewed as instigating violent recourse, were akin to Robert s political hyperbole. 99 In rebu king the merchants claims, the Claiborne Court also noted there were intervening factors success. 100 It is questionable under this standard whether the facts un derlying the hypothetical Although the Court did not set the amount of evidence that would be needed to constitute sufficient evidence of economic harm, Claiborne featured multiple reports of economic losses suffered by merchants due to the boyco tt activity. 101 Sufficient evidence would then seem to require at least more than one report of monetary loss ca used by the threatening speech. Claiborne also emphasized the importance of timing of the threats in relation to the alleg ed economic losses. The Court noted that there were intervening events that may have impacted the success of the boycott. However, the hypothetical states the speaker was arrested immediately following the protest; it did not provide any indication the boycott continued following there was no apparent evidence whether any businesses suffered economic harm as a 98 Id at 894 95, 926 29. 99 Id. at 911. 100 Id at 901, 922. 101 Id. Id neral Id. n.3.
352 stemming from boycott activi ty would also seem to require evidence that the economic harm was suffered as a result of the boycott and not because of any intervening variables. Hate speech emotional h a rm (2) motivated intimidation, a c laim could be brought against the group and/or the speaker for their anti homosexual (hate) speech in the interest of protecting the specific class of individuals from emotional harm caused by the speech. Because the discussion above has alrea dy addressed intent and intent to intimidate elements this secti on will focus on the ordinance banning bias motivated intimidation. The precedent that applies most aptly to this analysis is Black 102 and R.A.V. v. City of St. Paul. 103 Indeed, in each of those instances, th e Court evaluated a statute that attempted to prevent expression that could be viewed as targeting a specific group. Yet, in each of those instances, the Court found, while not all content ulate on the basis of disfavored topics, while leaving others unabridged, constituted content and view point based discrimination in the violation of the First Amendment. For instance, R.A.V held that it was unconstitutional for the City of St. Paul to enact an ordinance imposing special prohibitions on speakers who expressed views on disfavored subjects of race, color, creed, religion or gender. 104 It found the ordinance ther ideas such as political affiliation, union membership or homosexuality. Black held the 102 505 U.S. 377 (1992). 103 253 U.S. 343 (2002). 104 505 U.S. at 380.
353 government may deal with part of a problem without addressing the entire category, but it must not do so on the basis of viewpoint. 105 Disfavored topics: The hypothet ical states that the ordinance prohibits only bias motivated intimidation if committed with intent to intimidate based on, for example, race, ethnicity, gender, sexual orientation, political affiliation or union membership. As long as a court does not view the advocacy of boycott activity as prima facie evidence of the under Black Here, disfavored topic s Yet, a court may view the legislative declaration as focusing on prohibited harmful acts against members of the LGBT community, given the current social unrest, as just the type of content and viewpoint based restriction that was prohibited in R.A V. an d Black Intent to intimidate under the bias motivated statute : However, A conviction under such a statute may be difficult, however, based on the necessity of sufficient circumstantial and testimonial e v idence of intent to intimidate. Similar to cross bur ning, not all forms of boycott constitute unprotected expression. T protection when connected to a political or religious motive. However, the Black Court recognized that given the dual message of cross burning, burning a cross at a political rally would almost certainly be protected expression. 106 On the other hand, boycotts 105 Id. at 388 90. 106 Black 538 U.S. at 366.
354 initiated with intent to intimidate a specific class of individuals may constitute a pernicious form of hate speech because of the message communicated by the activity. Conviction based only on speech: Moreover, the statute may run into problems where a conviction is based entirely on speech. The hypothetical states that the group members have not engaged in any action besides hosting a political protest Due to the First Amendment protection ge nerally afforded political and religious protests, combined distaste for statutes that punish speech alone, without being direct to inciting or producing imminent lawless action, it is unlikely a court could rule in favor of the LGBT members on this factor Incitement to unlawful action physical h arm (1) constituting incitement to unlawful action. Brandenburg standard for inciting speech. 107 In Brandenburg Clarence Brandenburg made a speech that is very similar to the one made by the group leader. 108 The Court, however, found speech cou ld arise under two theories statement about the repercussions that message clearly communicated and; the incitement to boycott the LGBT members businesses, could fall within the language of 107 395 U.S. 444 (1969). 108 Id at 449.
355 the bias moti vated statute. Under an incitement claim, a court would evaluate circumstanti al and testimonial evidence of imminence. necessary level of imminence and intent to commit a ser incitement doctrine, given it has not upheld an incitement conviction since the 1950s. In Brandenburg the Court overturned a conviction for criminal syndicalism upon a finding not posses the r equisite intent In this sense, the expression and thus the harm arising from the expression could be viewed as very similar to the expression harm arising under the fact pattern. Incitement to unlawful action p ublic health, safety, order, morals and w elfa re (1) The government could also potentially bring a claim for the violent reaction health, morals and general welfare. A court should weigh circumstantial and testimonia l evidence of the clear and present danger of riot and disorderly interference upon the streets and to public safety. The standard requires a finding of imminence. Although it is apparent that a violent reaction occurred, it does not require one. Also, und er the found sufficient to upheld a statute prohibiting breach of the peace, although it is unclear whether such a holding still remains good law. The hypothetical states the brawl between two individuals occurred immediately following after the protest. It is thus unclear whether the violent reaction was a result of the protest or simply a dispute between two individual members of the crowd. A finding it occurred immediately a of imminence, required under the hostile audience doctrine involving an interest in
356 protecting the public order. A court would also need to potentially weigh testimonial evidence, including the specific statements communicated between the two to determine whether it was related to the protest or another issue. Sexually explicit and violent expression physical ha rm (1) The government could potentially have an interest in preventing physical harm to LGBT members by violent video games including those that depict acts of violence against LGBT members, which would fall under the category of sexually explicit and violent expression. Under this doctrine, a court should require empirical scientific evidence of a direct casual link between the video games and violent acts toward minors. In Brown v. Entertainment Merchants Association the Court found that the vast majority of literature supported at least a weak correlation between the violent video Court held that the evidence was not ation. It is unclear whether Austin would be able to is instance, Brown appears to set an insurmountable hurdle to regulating types of speech that perhaps should be regulated in the interest of preventing harm. However, it is questionable whether the government maintains a similar interest in protecting LGBT members as it does in protecting children, who are often viewed an vulnerable and unable to protect themselves. The government may further allege an interest in protecting LGBT members from physical acts of violence under the statute. Under the statute, i t is unclear whether the government could offer circumstantial and testimonial evidence of intent to intimidate based on the identified disfavored topics. The fact pattern states that the stop owner began featuring video games including depictions of acts of violence against LGBT
357 members. It indicates, however, that these are not the only depictions of violence included in the video games, and thus may not have been the reason the shop owner started offering the games. A court may need to evaluate whether t here is any evidence that the shop owner started offering the video games in relation because of his desire to promote acts of violence against LGBT members. Lewd, profane and indecent expression u rban p lanning and crime r eduction (1) depicting acts of violence against LGBT members in the same venue as his magazine shop. Under s reduction of crime. City of Renton v. Playtime Theatres, Inc. provides the jurisprudential guidance on this issue. 109 Under Renton the Court established that a city may only be required to produce qualitative evidence and/or expert testimony fairly supporting the means of regulating for its regulation to be upheld. In some cases, a single expert opinion or study may suffice experimenting with solutions to neighborhood planning and crime reduction. Lewd, profane and indecent expression i njur y to m inors (2) There are potentially two different groups of minors for which causes of action could be brought in the interest of preventing injury to minors. Both of these potential causes of action stem from alleged ly lewd, profane and indecent expression. First, the 109 475 U.S. 41 (1986).
358 hypothetical states that parents complained following exposure of their children to the indecent and profane comments displayed on the signs and made during the protest. Second, the hypothetical states that parents engaged in a same sex relationship alleged harm to their children from the hearing of anti LGBT words. Specifically, the from shopping or receive services at the harm caused to the children with sam e sex parents could be characterized not only as exposure to indecent and profane expression, but emotional and psychological injury same sex. The Supreme Court cases that are most analogous include FCC v. Pacifica Foundation 110 and FCC v. Fox Television Stations. 111 In Pacifica a man who was e. 112 In the interest of protec ting minors and privacy interests, the Court ruled in Pacifica sanctions on radio stations for th e airing of indecent content is not based on proof that the expression is obscene or caused har m to those who heard it. 113 decision in that opinion, however, was based on several factors, including the medium 110 438 U.S. 726 (1978). 111 556 U.S. 502 (2009). 112 Pacifica 438 U.S. at 729 30. 113 Id. at 750 51.
359 used, the repetitive use of the indecent expression during the program and that it was broadcast at a time of day mid afternoon when children were likely to be in the audience. 114 It held that the use of a warning before the airing of the program would not overcome the burden of airing indecent content since the nature of the radio permitted listeners to tune in and out of the program an d could have missed the initial warning. In Fox Television Stations the FCC received complaints following the airing of indecent expression toward two celebrity awards program. 115 Prior to the program, the FCC had changed its policy to punish even the broad cast of single, fleeting use of expletives on television. 116 Although not penalizing the broadcast station in this ar bitrary and The policy would be overturned onl y upon a finding that the FCC had acted arbitrarily and capriciously. 117 policy change did not need to be supported by scientific, empirical evidence. Among other reasons, the Court found that it was rational for the FCC to conclude that even the 118 According to propositions from which scant empirical evidence can xpression was one of them. 119 114 Id. at 729 30, 750. 115 Fox Television Stations 556 U.S. at 510. 116 Id. at 507 10. 117 Id at 515 16. 118 Id. at 517 18. 119 Id. at 519.
360 The hy pothetical veers from these precedents in several ways. First, even if the comments and signs were not found to be repetitive in nature, it is arguable the allegedly harmful statements to which the children were exposed do not rise to the level of indecency conveyed by the expression in both Pacifica and Fox Television Stations Those cases concerned some of the vilest forms of profanity and, as in Pacifica included the repetitive statements terms over and over again. Although it could be argued the expression was sexual in nature (in that it concerned homosexuality; sexual orientation) or was profane (involved intimidating speech that could be viewed as a direct personal insult to members of the LGBT community), the si gns displayed at the protest could be characterized as containing the most graphic sexual content and the comments on the signs were written from than verbal in form. A single sentence in Pacifica distills significance of their form grader, Pacifica 120 Part C has discussed sixteen challenges that could be brought by different parties in response to the facts alleged in the hypothetical. The purpose has been to demonstrate how the rubric might work. Part D recaps the third person effect in regards to its specific relationship on censorship legislati on. Effect of Third Person Effect on Censorship of Expression In Chapter 2 this study provided an introduction to the mass communication concept known as the third person effect. Specifically, it suggested that the third person perception could be used to explain legislation aimed at restricting potentially harmful 120 Id. at 749.
361 speech. Communications sociologist W. Phillips Davison articulated what he perceived to be a third person effect in his studies of historical events, including the decision of black troops to de sert in Iwo Jima editorials on German foreign policy. In both anecdotes, the parties that evaluated the impact of communic ation estimated a larger media effect on others than on themselves. Since then, t he concept has gained significance in a broader array of research areas and contexts. The third person effect predicts that people perceive that mass communicated message s have a different influenc e on themselves compared to others, but the concept may als o produce behavioral consequences namely, that people will take action to counteract the consequences of a harmful message on other people. The behavioral component of the third person perception has spurred considerable recent research, especially involvi ng the use of the perception to explain censorial attitudes toward undesirable material. For instance, empirical research suggests that people judge others to be more negatively influenced by and thus a greater need for censorship of pornography 121 and viole nt rap music. 122 Other research indicates that people may overestimate the extent of reputational injury caused by defamatory statements, resulting in excessive monetary damages and a chilling effect on the press. 123 The result is likely to have severe consequences for First Amendment jurisprudence. According to communication 121 Albert C. Gunther, Overrating the X rating; the Third Person Perception and Support for Censorship of Pornography 45 J. C OMM 27 27, 35 (1995) 122 Douglas M. McLeod et al., Support for Censorship of Misogynic Rap Lyrics: An Analysis of the T hird Person Effect 24 C OMM R ES .153 165 (1997 ). 123 Jeremy Cohen et al., Perceived Impact of Defamation: An Experiment on Third Person Effects 52 P UB O PINION Q 161, 172 (1988).
362 social level effects of [harmful messages], then the third person effect may be inflating 124 The result is likely to have severe consequences for First Amendment jurisprudence. Legislators and jurists are not exempt from those individuals who may react one way to neutralize what th ey perceive as a larger effect on other individuals. Moreover, they may perceive in their constituents as a lesser ability to cope with or protect against the se poten tially harmful stimuli. Unpacking this relationship a bit, however, legislators may also have an additional interest in enacting legislation appealing to their constituents. This legislation may be filled with emotional appeals to judicial sensibi lities to restrict speech based harm unnecessarily Alternatively, judges and justices may not be aware or may simply ignore the influences at work. 125 Research in the area of communication and law aids the important goal of elucidating complex problems underlying ou r innate desires to restrict speech we believe is harmful. Continued investigation of the connection between the third person perception and censorial attitudes may help to explicate and eliminate or at least reduce the introduction of legislation aimed at restricting expression. Beneficial studies may focus on the potential impact of the third proposing speech based restrictions; or the third person perception as an explanation for the increase in speech tar geted legislation, including the number of speech based 124 Gunther, X Rating supra note 112, at 37. 125 Robert Cialdini has made many positive contributions to understanding elements of message influence. See, e.g ., Robert Cialdini, Social Influence: Compliance and Conformity 44 Ann UAL R EV P SYCHOLOGY 591 (2004).
363 laws proposed or enacted over several decades. Research on the third person perception may also assist judges in weighing the constitutionality of laws aimed at prohibiting speech based injury, the li kelihood of the impact of the third person person perception on their own attitudes for upholding speech based prohibitions, including the legitimacy of the government interests in restricting the allegedly harmful expression. Part C has discussed the third person perception and its likely impact on speech based regulation. In doing so, it has discussed how potential future research investigations may continue to contribute to explicating the complicated interactions between the mass communication concept and free expression. This next part concludes by answering the research q uestions proposed in Chapter 1 and suggesting ad ditional research possibilities.
364 Factors / Variable s Potentially Affecting Judicial Assessment of Proof of Harm 1. Nature of Legal Question 2. Ideological Values 3. Number of Government Interests 4. Weightiness of the Interest(s) 5. Perceived Legitimacy of Asserted Interest(s) 6. Level of Legislative Deference 7. Strength of Evidence 8. Availability of Evidence 9. Difficulty of Gathering New Evidence Figure G 5 Proof of h arm t ypology
365 Nature of Harm / Government Interest (row) Type of Speech (column) Emotional, psychologi cal, mental, reputational harm / fear Individuals physical harm Economic harm Public safety, health, order, morals and the general welfare Fair and orderly administrati on of justice fair trial rights Reduction of crime and the quality of urban life National security / government programs Injury to minors Incitement to Unlawful Action Criminal syndicalism: AHB; CE +TE; new C&PD test; harm = imminent; degree of imminence = extremely high; only serious lawless action or violence; requirement of specific intent ; AE: laws in other states Brandenburg v. Ohio Interference with military operations: AHB; CE +TE; new C&PD test; harm = imminent; degree of imminence = extremely high; only serious lawless action or violence; requirement of specific intent; AE: laws in other states Brandenburg v. Ohio Figure G 6 Proof of h arm r ubr ic
366 Nature of Harm / Government Interest Emotional, psychologi cal, mental, reputational harm / fear Individuals physical harm Economic harm Public safety, health, order, morals and the general welfare Fair and orderly administrati on of justice fair trial rights Reduction of crime and the quality of urban life National security / government programs Injury to minors Speech that Threatens Intimidating speech: AHB; CE +TE ; True Threats = serious expression of intent to commit act of violence against individual/group Factors: 1) nature; 2) context; 3) reactions; and 4) political hyperbole. Intent: no requirement speaker intended to carry out the threat; dual message of expression requires evidence of intent to intimidate TE : whether audience who heard expression was threatened by it Watts v. US Virginia v. Black Claiborne v. NAACP Intimidating speech: AHB; CE +TE ; True Threats = serious expression of intent to commit act of violence against individual/group Factors: 1) nature; 2) context; 3) reactions; and 4) political hyperbole. Intent: no re speaker intended to carry out threat; dual message of expression requires evidence of intent to intimidate TE : whether group against whom threats were made were placed in fear serious acts of violence would be committed against them Watts v. US Virginia v. Black Claiborne v. NAACP Political Boycott : AHB; TE : whether audience members who heard expression were threatened by it; whether group against whom DE: speech recorded by police, including several threatening comments, but was mostly peaceful; factors; timing of events in relation to other factor s; whether violent actions were threatening speech; whether boycott viewed as symbolic NAACP v. Claiborne Hardware Contempt Statements : AHB; CE + TE ; C&PD: evil must be of imminence = ly ; CE : threatening statements ; level of legislative deference Bridges v. California Contempt Statements : AHB ; CE + TE ; C&PD: evil must be of imminence = CE : threatening statements ; level of legislative deference Bridges v. California Figure G 6 Continued
367 Nature of Harm / Government Interest Emotional, psychologi cal, mental, reputational harm / fear Individuals physical harm Economic harm Public safety, health, order, morals and the general welfare Fair and orderly administrati on of justice fair trial rights Reduction of crime and the quality of urban life National security / government programs Injury to minors Hostile Audience Reaction IIED: SS; TE + EE of worsening of emotional / physical harm; TE + CE: 1 ) pre existing relationship between the parties ; 2) whether speech constitutes personal attack ; 3 ) whether speech on matters significant public concern. Other factors; 1) ( private v. public fi gure ) 2 ) whether protest complied with police instructions /TP M restrictions; 3) m ode of viewing expression Snyder v. Phelps Solicitation: C+PD ; Profane, indecent, a busive, personal epithets not protected; TE: man felt like hitti n g speaker, although he di d not; violent reaction not req ; intent: no of intent to produce violent reaction; CE /TE : relationship of the expression to religious or political topics ; other factors: level of legislative deference; statute tailored to prohibiting only speech constituting C&PD Cantwell v. Connecticut Figure G 6 Continued
368 Nature of Harm / Government Interest Emotional, psychologi cal, mental, reputational harm / fear / privacy Individuals physical harm Economic harm Public safety, health, order, morals and the general welfare Fair and orderly administrati on of justice fair trial rights Reduction of crime and the quality of urban life National security / government programs Injury to minors Disclosure of Dangerous Information Publication of government information : PPB: heavy presumption against prior restraints; C E + T E ; 1) evidence of imminence; 2) danger = extremely serious; 3) imminence = extremely high. D anger must not be remote or even probable; must immediat ely imperil ; weightiness of interests Landmark Communication v. Virginia Pretrial publicity: PPB: heavy presumption against prior restraints; C E +T E ; Factors : 1) nature a nd extent of pretrial news; 2) whether other measures could mitigate effects of unrestrained publicity; 2) effectiveness of restraining order to prevent danger ; 4) terms of restraining order; weightiness of interests Nebraska Press v. Stuart Publication of government secrets : PPB: heavy presumption against prior restraints; C E +T E ; immediate, irreparable damage; to nation and its people; proof that publication must inevitably, directly, or immediately cause occurrence of an event kindred to imperiling the safet y of a transport already at sea; perceived legitimacy of gov. interest in prohibiting publication of report NYT v. US Figure G 6 Continued
369 Nature of Harm / Government Interest Emotional, psychologi cal, mental, reputational harm / fear / privacy Individuals physical harm Economic harm Public safety, health, order, morals and the general welfare Fair and orderly administrati on of justice fair trial rights Reduction of crime and the quality of urban life National security / government programs Injury to minors False Statements of Fact Libel/IIED : AHB; C E + T E ; Statements were published with evidence of actual malice (knowledge that statements were false or with reckless disregard as to truth or falsity of statements); requires more than proof of mere failure to investigate; high degree of awareness; factors : 1) status of individual (public = actual malice for recovery of any damages; private : actual malice for recovery of punitive damages); New York Times Co. v. Sullivan Gertz v. Robert Welch Lies about military medals : S S+; S E restriction on speech must be actually necessary to achieve its interest) ; United States v. Alvarez Figure G 6 Continued
370 Nature of Harm / Government Interest Emotional, psychologi cal, mental, reputational harm / fear / privacy Individuals physical harm Economic harm Public safety, health, order, morals and the general welfare Fair and orderly administrati on of justice fair trial rights Reduction of crime and the quality of urban life National se curity / government programs Injury to minors Sexually Explicit and Violent Expression Child pornography: CB ; TE & FE : psychological and sociological studies (qualitative) purporting to demonstrate a connection b /w child abuse and psychological harm used to support proximate connection b /w psychological harm and distribution of child pornography; confirmed under much lesser standard; weightiness of gov interest; level of leg. deference Ferber v. NY production of materials that only appear to use children not categorically banned Ashcroft v. Free Speech Coalition Obscenity: CB; CE, T E, EE ; 1) average person, applying contemporary community standards would find work taken as whole: 1) appeals to prurient interest in sex ; portrays sexual conduct in patently offensive way; and 3) lacks serious literary, artistic, political, or scientific value; statute must also be limited to preventing only such works; no testimony; states may rely on their own experiences in regulating of correlation b/w antisocial conduct and obscene material Miller v. California Paris Adult Theatre v. Slaton Child pornography: CB; TE & FE : psychological and sociological studies (qualitative) purporting to demonstrate a connection b/w child abuse and psychological harm used to support psychological harm and distribution of child pornography; confirmed under much lesser standard; weightiness of gov intere st; level of leg. deference Ferber v. NY production of materials that only appear to use children not categorically banned Ashcroft v. Free Speech Coalitio n Figure G 6 Continued
371 Nature of Harm / Government Interest Emotional, psychologi cal, mental, reputational harm / fear / privacy Individuals physical harm Economic harm Public safety, health, order, morals and the general welfare Fair and orderly administrati on of justice fair trial rights Reduction of crime and the quality of u rban life National security / government programs Injury to minors Sexually Explicit and Violent Expression (continued) Violent video games : SS+ (curtailment of free speech must be actually necessary gov must identify an actual problem in need of solving; std: SE : direct between harm alleged and injury to be prevented; scientific evidence supporting only a correlation not sufficient; Brown v. Entertainment Merchants Association Videos depicting physical harm to animals : SS; PPB; statute must be limited to prohibiting no more than Miller ; hesitancy to expect unprotected categories of expression US v. Stevens Violent video games : SS+ (curtailment of free speech must be actually necessary to must identify an actual problem in need of solving; std: SE : direct causal between harm alleged and injury to be prevented; scientific evidence supporting only a correl ation not sufficient; Brown v. Entertainment Merchants Association Figure G 6 Continued
372 Nature of Harm / Government Interest Emotional, psychologi cal, mental, reputational harm / fear / privacy Individuals physical harm Economic harm Public safety, health, order, morals and the general welfare Fair and orderly administrati on of justice fair trial rights Reduction of crime and the quality of urban life National security / government programs Injury to minors Lewd, Profane and Indecent Expression Broadcast of indecent expression: authority to impose fines not based on proof that expression is obscene or caused harm to listeners; factors : repetitive use, (single fleeting use may be punishable); time of day; medium; use of w arning does not overcome burden; level of legislative dereference; weightiness of interests Pacifica Foundation Fox Television Stations Broadcast of indecent expression: authority to impose fines not based on proof that expression is obscene or caused harm to listeners; factors : repetitive use (single fleeting use may be punishable) ; time of day; medium; use of w arning does not overcome burden; weightiness of interest Fox Television Stations Pa cifica Foundation Broadcast of indecent expression: authority to impose fines not based on proof that expression is obscene or caused harm to listeners; factors : repetitive use; time of day; medium; use of w arning does not overcome burden; level of legislative deference Pacifica Foundation Zoning of adult establishment s : AHB; SE (one or more) +/ E E that the rationale for regulating ; level of legislative deference Young v. American Mini Theatre s City of Renton v. Playtime Theaters City of Los Angeles v. Alameda Books Public display of nudity : IS: CE + TE that the movie screen was visible from public streets and people could be seen watching films outside the movie theater; perce ived legitimacy of government interest Erznoznik v. City of Jacksonville Figure G 6 Continued
373 Nature of Harm / Government Interest Emotional, psychologi cal, mental, reputational harm / fear / privacy P hysical harm Economic harm Public safety, health, order, morals and the general welfare Fair and orderly administrati on of justice fair trial rights Reduction of crime and the quality of urban life National security / government programs Injury to minors Lewd, profane, indecent Expression (cont.) Public display of nudity : IS: CE + TE that the movie screen was visible from public streets and people were observed sitting watching films outside the movie theater; Erznoznik v. City of Jacksonville Public display of nudity : IS: C E + TE that the movie screen was visible from public streets and people were observed sitting watching films outside the movie theater; Erznoznik v. City of Jacksonville Broadcast of indecent expression: authority to impose sanctions not based on proof that expression is obscene or caused harm to listeners; factors : repetitive use; time of day; medium; use of warning does not overcome burden FCC v. Pacifica Foundation Figure G 6 Continued
374 Nature of Harm / Government Interest Emotional, psychologi cal, mental, reputational harm / fear / privacy P hysical harm Economic harm Public safety, health, order, morals and the general welfare Fair and orderly administrati on of justice fair trial rights Reduction of crime and the quality of urban life National security / government programs Injury to minors Hate Speech Cross burning: SS; C E + T E ; State may ban expression for the very reason the expression is proscribable (represents particularly pernicious form of intimidating speech), but may not attempt to regulate such expression on the basis of content or viewpoint; statute that attempts to re gulate on the basis of certain disfavored topics will be found unconstitutional; Cross burning: SS; CE + TE ; State may ban expression for the very reason the expression is proscribable (represents particularly pernicious form of intimidating speech), but may not attempt to regulate such expression on the basis of content or viewpoint; statute that attempts to regulate on the basis of certain disfavored topics will be found unconstitutional; Figure G 6 Continued
375 Nature of Harm / Government Interest Emotional, psychologi cal, mental, reputational harm / fear / privacy Individuals physical harm Economic harm Public safety, health, order, morals and the general welfare Fair and orderly administrati on of justice fair trial rights Reduction of crime and the quality of urban life National security / government programs Injury to minors Hate Speech (cont.) intent: no requirement of intent to carry the threat; intent to intimidate; requirement of intent to intimidate where dual message of expression makes it unclear whether the decision was based on the very reason the speech is proscribable; AE: evidence of racial tension giving rise to bias R.A.V. v. City of St. Paul Virginia v. Black intent: no requirement of intent to carry the threat; intent to intimidate; requirement of intent to intimidate where dual message of expression makes it unclear whether the decision was based on the very reason the speech is proscribable; AE: evidence of racial tension giving rise to bias R.A.V. v. City of St. Paul Virginia v. Black Key: Types of evidence C E = Circumstantial T E = Testimonial SE = Scientific A E = Anecdotal EE = Expert Standards: SS = strict scrutiny SS + = strict scrutiny plus (more than SS) IS = intermediate scrutiny CB = categorical ban AA = deference to administrative authority Approaches: C+PD = clear and present danger BT = bad tendency AHB = ad hoc balancing PPB = preferred position balancing Figure G 6 Continued
376 Figure G 7 Normative ranking/ordering of typological f actors Availability of Evidence Level of Legislative Deference Strength of evidence Difficulty of gathering new evidence of harm interest(s) Nature of Legal Question Perceived legitimacy of interests Weightiness of the interests values
377 Review of Research Questions In Chapter 1 this study proposed two r esearch questions: 1. Do recent opinions such as Alvarez and Brown signal a shift toward a heightened standard of proof of harm stemming from speech as compared with earlier cases?; 2. How does the nature of the alleged harm (physical, psychological or financial) and/or the type of speech involved (incitement, libel) affect the level of proof of harm the type of evidence and the quantity of evidence required by the Court?; It has attempted to answer the se research questions through systematic examination of spanning a broad swath of decades and numerous varieties of s peech. Chapter 5 recaps the research questions and addresses each of them specifically and then makes some suggestions for areas of potential future research. 1. Do recent opinions such as Alvarez and Brown signal a shift toward a heightened standard of proof of harm stemming from speech as compared with earlier cases ? While t he research has shown t he Court has moved away from its categorical approach of placing certain categories of speech beyond First Amendment protection, it has no t much evolved beyond simple ad hoc balancing. Indeed, only within specific brands of expression has it adhered to a preferred balancing approach, or alternatively, one that requires empirical evidence of harm. Alternatively, the Court has never subscribed to absolute protection for First Amendment freedoms, but has repeatedly placed certain types of harmful speech bey ond First Amendment protection. For instance, early jurispr in upholding government restrictions that targeted speech alone. Rather than adopting the principle that only real injury justifies speech suppression, as suggested by
378 philosopher John Stuart Mill, the Court was prone to censor speech without any evidence of harm deriving from the expression. Fortunately, m ore recent jurisprudence endorses greater evidentiary burdens of proof of harm to justify speech restrictions. of an between the harm and the expression apply across the broad spectrum of speech, or even more narrowly to the entire category under which they arise, is perhaps un clear. More accurately, the stringent evidentiary burdens of proof adopted by the Court in Brown and Alvarez, two prominent cases involving unique speech restrictions and very narrow varieties of expression, may seem more like outliers applying only within the specific factual scenario time to consider application of its empirical approach to a broader spectrum of expression, it is perhaps unclear whether the trend will continue. Alternatively, the Court adopted a similarly stringent standard in Alvarez and Brown In Brown the struck down the California statute prohibiting the sale or rental of deo games and harm caused to minors, such that the video games caused minors to act aggressively. Alvarez appeared to adopt Brown between lies about military medals and dilution of the While these cases involve very distinct and diverse factual patterns, the Court claim. In this sense, the Brown and Alvarez opinions represent a small step forward in
379 to uphold government content based restrictions on expression. At the very least, these decisions represents a m ini trend of an evidentiary burden requiring evidence of a ; use of scientific evidence within other areas of its jurisprudence; its incr easing understanding of empirical, scientific concepts and methods; and mounting reliance on scientific evidence in constitutional law, generally, and First Amendment doctrine, specifically, that the Alvarez and Brown decision s represent the beginning o f t standards of proof of harm. 2. How does the nature of the alleged harm (physical, psychological or financial) and/or the type of speech involved (incitement, libel) affect the level of proof of harm the type of evidence and the quantity of evidence required by the Court? T he Court has never adopted a one size fits all standard of proof of harm Neither ha s the standards appeared consistent within categories In some instances, the Court has evaluated the particular factual circumstances, including any evidence offered in support of the government interest in regulating and developed an evidentiary burden based on the circumstances. In other instances, it established the evidentiary burden and then eva luated the availability of evidence to meet that standard. A broad array of factors has evidentiary burden ain patterns exist which create lines These sometimes exist solely within a specific category of speech, but may also occur across categories. For instance, within the including the
380 clea r and present danger test as originally enunciated by Justice Holmes, as well as the bad tendency test derived from Patterson v. Colorado. Yet, in each of the cases, regardless of the test, the Court was prone to upheld a conviction upon only circumstantia or distribution of the fliers. A similar factor spanning this line of cases is the preventi ng interference with militar y operations such as the draft. Only when the stated interest veered from category as occurred in Brandenburg v. Ohio, involving fear of racial violence did the Court refuse to upheld the conviction upon circumstantial and testi speech) and that Brandenburg was indeed the speaker. At least in the initial case within each of the categories coming under content based restrictions based on the expre applied the clear present danger test, or a test reminiscent of the clear and present danger test. This proved true regardless whether the initial opinion came down in 1919 ( Schenck v. United States ) the earliest recorded First Amendment opinion, or decided more than five decades later ( New York Times v. United States 1971). The opinions in which the Court applied the clear and present danger test involve a variety of government interest from national security to the fair and orderly administration of justice to safety and order upon the public streets and thus does not offer a conjoining factor. Indeed, in each of the opinions, the Court proffered various enunciations of the clear and present danger test. In Brid ges v. California it required that the evil be Dennis v.
381 United States opinion adopted a different version when it characterized the clear and present danger test as one that balanc US) was decided subsequent to Brandenburg, in which the Court very clearly set forth the clear and present danger test it said would govern future cases, the Court in that opinion adopted a test that was only reminiscent of Brandenburg suggesting th governmental allegation of proof that publication must inevitable, directly or rity interest would the prior restraint imposed by the government be able to prevail. and present danger may be founded on the standard of extreme deference to legislation decisionmaking that existed in at least the first half of the twentieth century within First Amendment jurisprudence. In circumstances and are of such a nature as to create a clear and present danger that they wi dangerous expression. Only when the Court found the conviction was based on an old English of court contempt statements when they tended to interfere with a pending trial ( Bridges v. California ) or that it doubted the legitimacy of the alleged interest ( New York Times Co. v. United States ) di d it reject the deference to legislative, or executive, decisionmaking standard it
382 speech restriction without evidence of a confirmed harm arising from the expression un derlying the speech restriction. On the other hand, the opinions in Bridges the Pentagon Papers case and Cantwell v. Connecticut all falling within those opinions initially decided within each of the categories applying the clear and present danger test a nd involving extremely divergent governmental stakes indicate a willingness to defer to legislative authority upon different circumstances 126 each of those rejected such a standard in favor of ermination of an evil of a specific character arising from the expression. designation reveals this trend may apply more broadly. Indeed, although the Court applied the clear and pres ent danger test across the broad categories at least initially all four categories of speech (incitement to unlawful action, speech that threatens, speech provoking a hostile audience reaction and disclosure of dangerous information), it has not upheld a c Feiner v. New York and even that opinion has been criticized and severely limited to the facts underlying the majority opinion. In many instances, the Court designated circumstances, which did not exist in the ca se at hand, as potentially providing the facts that would justify a conviction, but did chose not rule against the speaker given the facts before it. 126 Bridges indicated a statute with a legi slative declaration indicating that such statements were e protected under a statute that was not narrowly tailored to preventing only speech constituting a clear and present danger to peace and safety on the public streets. Yet, the opinion indicated that upon different facts, his speech might not have been pro tected. Moreover, New York Times v. United States indicated the occurrence of an event kindred to imperiling the safety of a transport already at s ea would be worthy of upholding a prior restraint on the press.
383 In at least three cases ( Watts v. United States NAACP v. Claiborne Hardware Snyder v. Phelps ), the Court set forth several factors it would evaluate in evaluating the constitutionality of the government speech restriction, but neither are these opinions broadly conjoined by the type of speech involved or the governmental interest at stake. Watts and Claiborne Hardware opinions found the threatening or coercive expression communicated by the speaker could not be banned solely upon a finding a specific type of expression was used. It did the facts at hand. Contrastingly, Snyder involved speech provoking a hostile audience reac tion. while numerous causes of action were advanced by the plaintiff, similar to Claiborne, the claim actually reviewed by the Court was founded in tort law ( Snyder : intentional infliction of emotional distress; Claiborne : malicious interference with busin esses practices). While involving separate categories of expression, all could be said to involve speech that could be deemed offensive. Alternatively, while the Court has broadly proliferated the speech cannot be restricted because of its alleged offensiv eness, the Court has often times prohibited speech based on just that rationale. Review of these opinions finds no similarity in the governmental interest alleged. Snyder involved government interest in compensating private individuals for emotional injur y. Claiborne involved governmental allegat ions of economic harm caused to certain merchants as a result of a boycott. Lastly, Watts concerned the physical safety of the
384 chief executive and allowing him to perform his duties free of interference from threat s of physical violence. Future research sho uld examine how subsequent Supreme Court cases involving First Amendment speech factor into the typology proposed by this study whether they extend or reject the evidentiary burden propos ed by the typology to be applied in instances involving certain types of speech and governmental harms and the imposition of empirical evidentiary burdens. In these instances, the inductive establishment of an e videntiary burden may only be interests involved ( Bridges Cantwell ), or 2) variety of the speech involved ( Young v. A merican Mini Theatre s, Inc. City of Renton v. Playtime Theatres Inc. and City of Los Angeles v. Alameda Books Inc. ). Alternatively, it may be, as was suggested earlier in this study the First Amendment law has never settled any on systematic analytic approach to the assessment of an evidentiary burden.
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406 Kenneth Buck, Hate Crime Verdict Sends Message D ENVER P OST Apr. 26, 2009, http://www.denverpost.com/guestcommentary/ci_12213263 Court zaps California ban USA TODAY, June 28, 2011, at 18A. Editorial, The Uninhibited Press, 50 Years Later N .Y. T IMES Mar. 9, 2014, http://www.nytimes.com/2014/03/09/opinion/sunday/the uninhibited press 50 years later.html?_r=1 Adam Liptak, Justices Appear Ope n to Affirming Medal Law N.Y. T IMES Feb. 23, 2012, at 13. Adam Liptak, Justices Take Case on Lying about Honors from Military N. Y. T IMES Oct. 18, 2011, at 18. Joan Biskupic, Lies About Military Feats Turns into Speech Case USA T ODAY Oct. 22, 2011, at 5A. Adam Liptak, Minors Can Buy Violent Games, Justices D ecide N. Y. T IMES June 28, 2011, at 1. Politici N.Y. T IMES Nov. 26, 2012, available at http://www.nytimes.com/2012/11/27/us/judges rulings follow partisan lines.html?_r=0 Bill Mears, CNN.com, Dec. 10, 2010, available at http://www.cnn.com/2010/POLITICS/12/10/animal.cruelty/index.html Obama Signs Bill on Lying About Military Medals A SSOC P RESS June 3, 2013 Chris Tomlinson, Federal Judges Str ikes Down Texas Gay Marriage Ban ABCNEWS. COM http://abcnews.go.com/US/wireStory/federal judge strikes texas gay marriage ban 22685164 Marty Toohey, A ustin City Council E ndorses Same Sex M arriage Sept. 27, 2012, http://www.statesman.com/news/news/austin city council endorses same sex marriage/nSNpH/ Websites Jeremy Cohen College of Communications http://comm.psu.edu/people/individual/jeremy cohen Tim Gleason School of Journalism and Communication http://journalism.uoregon.edu/user/tgleason Craig Anderson Iowa University, http://www.psychology.iastate.edu/~caa/
407 Stephen G. Breyer Introdu ction to F EDERAL J UDICIAL C ENTER R EFERENCE M ANUAL ON S CIENTIFIC E VIDENCE 2 (2d ed. 2000) available at http://www.fjc.gov/public/pdf.nsf/lookup/sciman00.pdf/$file/scim an00.pdf Joint Statement on the Impact of Entertainment Violence on Children, available at http://www2.aap.org/advocacy/relea ses/jstmtevc.htm
408 BIOGRAPHICAL SKETCH Kara Alayne Carnley holds a Doctor of Philosophy from the University of Florida College of Journalism and Communications and a Juris Doctor from the University of Florida Levin College of La w. Prior to pursuing her J.D. /Ph .D., she earned a Master of Arts in Mass Communication at UF. Her Bachelor of Arts was obtained from the University of Central Florida.
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