CON LAW [email protected]**look up TORT CASE Monday january 12 (class 3)**missing notes class 2 --- basic first amendmend principles (6) reguarding speech in marketplace derived from first amendment cases today considered bedrock o 1. Neutrality principleo 2. Emotion principle- cognitive aspects of speech v emotional  Cohn v California Hustler Magazine v Faldwell in 1988 Snider v Phelps 2011- Protesting military funerals - Snider’s father followed suit against phelps under state law, claiming intentional infliction of emotional distress,intrusion, civil conspiracy - Held wesborough Baptist church liable for millions in punitive damages- Church challenged verdict under first amendment SC held that the first amendment protects westborough from tork liability for their actions - Roberts wrote opinion, talking about matters of public importance, demonstration was peaceful, were on public property, didn’t disrupt the funeral - Constitution protects speech on public issues - Cited HUSTLER V FALDWELLo 3. Symbolism principle protection of first amendment isn’t limited to language, can include expressed conduct, mass demonstrations, use of symbols to communicate ideas - ex. Burning an American flag is symbolic speech, burning crosses, etc. o 4. Harm principle  speech can be punished by the government when it causes harm concerned with defining types of injuries that would qualify as a harm sufficient to justify government regulating speech - 1. Physical harmo speech can be used to form contract to conduct murdero speech could be used to entice protesters, etc. o but physical harm may be contrary to the speakers intention - 2. relational o speech interferes with relationships, which include: social – libel/slander  commercial- injuries to business transactions, fraudulent speech, false advertising, insider trading  proprietary interests in information- copyright infringement,  confidentiality interests – disclosure of national security secrets, - 3. Reactive harmso injuries caused by peoples responses to the content of the speech (emotional/intellectual) can be actions by individuals or collective actions emotional distress invasion of privacy  injuries to sensibilities of community (racist, sexist, homophobic speech) o ***categories should be seen as a hierarchy for gov regulation of speech (strongest wth physical harms, reactive category allows essentially no governmental regulation) o 5. Causation principle  involves strict causation rule, first amendment requires close connection between speech and harm before speech can be penalized  ex. Modern version of CLEAR AND PRESENT DANGER RULE- 1969 BRANDENBURG V. OHIO- rule provides advocacyof criminal activity or violence cant be penalized unless such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such actiono 6. precision principle- even when regulation of speech is justified (compelling gov interest) the regulation must still be substantively precise and definition precision substantive precision- regulation must utilize the least restrictive means (test) - ex. Government has an interest in clean, litter-free streets, city council passes ordinance saying no one can pass out flyers on the streets  is there a less-restrictive method? Yes they implement a fine  definitional- requires terms used to idenfiy speech that is goingto be punished to be very specific  so that speakers will knowin advance which speech is permitted and which is not - overbreadth- - vaguenessWhat about non-content regulation??? problem of laws that may be passed for legitimate reasons, that have nothing to do with speech, but may infringe on free expression Ex. Constitution protects burning American flag, but burning an American flag in a national forrest during dry season is illegal for different reasons but is still restrictive of speechEx. Streets adjacent to hospitals are quiet zones, what if protesters want to walk through those streets? The law isn’t concerned with the content, its concerned with the method- time, place and manner regulations o gov is entitled to limit speech (if its content neutral) in terms of time, place and manner o 1968 US V. O’BRIEN- Wednesday Jan 13US v Obrien- to what degree can the gov regulate activity when activity has some symbolic component- Obrien and 3 others burned their draft cards on steps of something during Vietnam way- Crowd attacked Obrien, FBI brought him into court hosue- Violating federal law (1965) which forbade knowing mutilation/destruction of draft card- SCOTUS held that burning draft card was intended to communicate mixture of speech and conduct- Gov can regulate the activity IF the gov can satisfy a 4 prong test:o 1. Within gov’s constitutional power o 2. Important/substantial gov interest o 3. Unrelated to limiting free expression o 4. Incidental restrictions on speech  no greater than necessary to further gov interest - reasons court suggests:o proves individual has registeredo forgery of draft cards??o Trivial interests? Fucking rightSpecial settings removed from general marketplace:- free speech principles must be modified in some settings gov may have greater leeway to engage in regulation of speech not all 6 principles may beapplicable- ex. The emotion principle (cohen v California)  if cohen was highschool student and wore “fuck the draft” jacket would it be a different case?- Consistent with mission and function of a particular setting - SC had no occasion to make any significant discussion for more than 100 years after amendment was ratified.. why is that??**ROBERTSON V. BALDWIN (1898)- fed law- first 10 amendments weren’t intended to lay down any - we do have to interpret the first amendment doesn’t involve any radical new principles  grounded in principles part of the English heritage o if this is true, then we could look to blackstone’s commentaries on the English constitution in those commentaries blackstone is talking about freedom of press “not freedom from censure of criminal matter when published??”o every free man has right to lay what sentiments he has before the public but if he publishes something criminal/improper/mishevous you will be published  what is “improper” speech?? - if court is correct in Robertson than only thing that’s being protected is prior restraint (censorship)- at a bedrock minimum it