CL M3A1

FIRST AMENDMENT PART II

Constitutional Law

Brandenburg v. Ohio (1969)

Facts: Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."

Issue: Did Ohio's law prohibiting public speech that advocates various illegal activities violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments?

Holding: Yes

Rationale: The court adopted a new test that replaced the “clear and present danger test”.

 Imminent lawless action test

First Amendment Expression Rights of Public Employees

Constitutional rights can be applied differently based on one’s profession.

As public employees, law enforcement officers’ speech is protected under the First Amendment only under certain conditions

Questions for Consideration on Public Employee Speech

1. Is the employee on the government payroll?

2. Has the employee been punished for his or her speech in a non-trivial way, such as being discharged, demoted, or transferred?

3. Did the expression for which the employee was punished relate to a matter of "public concern?"

4. If the government says that it had additional reasons for punishing the employee that do not relate to the employee's expression on matters of public concern, would those additional reasons have resulted in the same punishment that the employee suffered?

5. If the employee's speech did relate to a matter of public concern, is the government's ability to "efficiently provide services" nonetheless adversely affected in a substantial way, or does the speech negatively reflect on the employee's job performance?

6. Was the employee punished for speech that was pursuant to his or her duties as an employee?

Symbolic Speech

 A form of speech that expresses an idea or emotion without the use of words.

 Falls within the protection of the First Amendment

 Examples of symbolic speech

Barnes v. Glen Theatre, 501 U.S. 560 (1991)

 Facts: Glen Theatre and the Kitty Kat Lounge in South Bend, Indiana, operated entertainment establishments with totally nude dancers. An Indiana law regulating public nudity required dancers to wear "pasties" and a "G-string" when they perform. The Theatre and Lounge sued to stop enforcement of the statute.

 Issues: Does a state prohibition against complete nudity in public places violate the First Amendment's freedom of expression guarantee?

 Holding: No, public indecency statutes like this one are justified.

 Rationale: Chief Justice Rehnquist, in a plurality opinion, conceded that nude dancing was a form of expressive activity. But he maintained that the public indecency statute is justified despite the incidental limitations on such expressive activity. The statute "furthers a substantial government interest in protecting order and morality."

R.A.V. v. St. Paul, 505 U.S. 377 (1992)

 Facts: Several teenagers allegedly burned a crudely fashioned cross on a black family's lawn. The police charged one of the teens under a local bias-motivated criminal ordinance which prohibits the display of a symbol which "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The trial court dismissed this charge.

 Issues: Is the ordinance overly broad and impermissibly content-based in violation of the First Amendment free speech clause?

 Holding: Yes, the ordinance is invalid on its face.

 Rationale: The ordinance "prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses." Under the ordinance, for example, one could hold up a sign declaring all anti-semites are bastards but not that all Jews are bastards.

Freedom of the Press

 Is related to freedom of speech because speech is not considered only spoken words, but any means of conveying information.

 Government has the right to restrict publishing

Miller v. California , 413 U.S. 15 (1973)

Facts: Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting the distribution of obscene material. Some unwilling recipients of Miller's brochures complained to the police, initiating the legal proceedings.

Issues: Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee?

Holding: No, Obscene materials are not protected by the First Amendment, but the definition of "obscene material" is lessened.

Rationale: The Court held that obscene materials did not enjoy First Amendment protection, but modified the test for obscenity

First Amendment Rights of Prisoners

 Prisoners are using this “due process revolution” to have the courts rule on First Amendment issues related to correctional clients.

 The courts have used the Rational Basis test to uphold prison regulations that are “reasonably related to legitimate penological interests.”

 Courts have ruled on this issue in a variety of areas

 Orange is the New Black Cindy Converts

Questions for Analysis – Rights of Prisoners

1. Is the regulation reasonably related to a legitimate, neutral government interest?

2. Does the regulation leave open another way for you to exercise your constitutional rights?

3. How does the issue impact other prisoners, prison guards or officials and prison resources?

4. Are there obvious, easy alternatives to the regulation that would not restrict your right to free expression?