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an anderson book

NS TU ON

FOR CRIMINAL JUST

-Freedom of Speech

Congress shall make no law . .. abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

First Amendment

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2 I

2.1 2.2

2.3 2.4

2.5 2.6 2.7 2.8 2.9 2.10 2.11 2.12 2.13

2.14

2.15 2.16 2.17 2.18 78

/

Chapter Outline

Historical Background Overview of Constitutional Protection for Speech and Expressive Conduct Is Speech Involved? First Amendment Distinction between a Speaker's Message and the Conduct Associated with Communicating It Punishing Speech Because of the Message -Obscenity and Child Pornography -Fighting Words -Speech Integral to Criminal Conduct -Incitement to Immediate Illegal Action -Hate Speech -Crude and Vulgar Speech -Commercial Speech Restraints on Speech Based on Considerations Other Than the Message Free Speech Access to Government Property: Public Forums and Nonpublic Forums -Validity of Particular Restrictions -Free Speech Access to Private Property -Need for Precision in Regulating Speech Summary Notes

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....

' [(EY TERMS AND CONCEPTS ... '.._' ; ....

~ 'ld pornography mmercial speech essive conduet

- 8 ti ng words - e speech

p ublic forum osc enity

- 2.1 Historical Background

Panhandling Public forum Public forum by designation Symbolic speech Traditional public forum Vulgar speech

.:viany portions of the Bill of Rights have origins that go back to the Magna Carta escend from time-honored English traditions. This is not so with the First Amend-

-ent. Freedom of speech, press, religion, and assembly was pioneered on American - •

1 The merger of church and state in England provided a fertile ground for religious political repression. Censorship of the press originated with the efforts of the

~::urch to suppress heretical writings. In 1585 , the Court of the Star Chamber issued a ee prohibiting books from being printed unless they were reviewed and licensed

_, :he Archbishop. 2 The function of licensing laws was to weed out unorthodox reli- thought or criticism of the crown. Licensing laws ended in 1694, only to be

eeded by seditious libellaws .3 The crime of seditious libel consisted of criticizing _ · lie officials . During the heyday of these laws, a person could be punished for this

· e if she read libelous material, heard it read and laughed at it, or repeated it to other.4

The framing of a bill of rights was the first order of business facing the Congress t met after the ratification of the Constitution. The foundations for a strong central

.: Yernment had been laid. Now curbs were needed to prevent the repressive English rience from being repeated. In specifying the rights of the American people against

eir government, it was no coincidence that freedom of speech, press, religion, and

45

46 CoNSTITUTIONAL LAw FOR CRIMINAL JusTicE §2.2

assembly were mentioned first. Our colonial forefathers had the vision to realize thar without these rights, no rights would be secure. The First Amendment placed these cherished freedoms beyond the federal government's control. With the adoption of the Fourteenth Amendment, which provides, among other things, that no state shall deprive any person of liberty without due process oflaw, the First Amendment became binding on state governments as well. 5

The United States has experienced more than two centuries of political stability. When viewed against the background of world history, this is remarkable. The First Amendment has played a singularly important role. When citizens can openly criticize their government, changes come about through orderly political processes. When grievances exist, they must be aired, if not through the channels of public debate, then by riots in the streets. The First Amendment functions as a safety valve through which the pressures and frustrations of a heterogeneous society can be ventilated and defused. Professor Emerson has identified another function that free speech serves in a demo- cratic society:

(F)reedom of expression is an essential process for advancing knowledge and dis- covering truth. An individual who seeks knowledge and truth must hear a ll sides of the question, consider all alternatives, test his judgment by exposing it to opposition, and make full use of different minds .... The reasons w hich make open discussion essential for an intelligent individual judgment likewise make it imperative for ratio- nal social judgment.6

A working knowledge of the First Amendment is a minimum that a nation firmly committed to the value of freedom of expression has a right to expect from those who enforce its laws.

§ 2.2 Overview of Constitutional Protection for Speech and Expressive Conduct

The First Amendment directs that "Congress shall make no law ... abridging the freedom of speech .... "Although this language is addressed to Congress, the First Amendment binds all branches and levels of government, as well as public officials who exercise government authority. 7 •

This chapter begins by examining the boundaries of "speech" under the First ... Amendment. "Speech" for First Amendment purposes goes far beyond written and spoken words. It encompasses all known mediums of communication and fields of

§ 2.2 FREEDOM OF SPEECH 47

intellectual endeavor, including art, music, theater, dance, entertainment, and much more.

The determination that "speech" is involved is just the beginning . It means that the case will be decided under the First Amendment. However, it does not ordain the out- come. The right to speak is not absolute. A society in which the government is power- less to restrain citizens from speaking at any time or place, on any subject, however loudly they please, would be an insufferable place to live. The First Amendment does not strip the government of power to regulate speech; it prohibits the government from " abridging freedom of speech." Deciding when a restriction " abridges freedom of speech" is what First Amendment jurisprudence is about; this determination calls for complex value judgments.

To the Framers, freedom of speech meant freedom from government control over the content of public discourse. When they wrote "Congress shall make no law ... abridging the freedom of speech ... " they were concerned with protect- ing the free exchange of ideas. They believed that a free marketplace of ideas was essential to creating an informed citizenry capable of self-government. 8

Consequently, in deciding whether freedom of speech has been abridged, an important distinction exists between interventions that are directed at a speaker's message, such as arresting a person for expressing unorthodox , provocative, or obnoxious ideas ,9 and those that are directed at a speaker's conduct, such as arresting a person for using a loudspeaker in a residential neighborhood after dark. 10

The First Amendment sharply curtails the government's power to dictate what can be written, spoken, or read. Punishing citizens for what they say is, with rare exception, unconstitutional unless their speech falls within a small, narrowly limited category of topics that have been written out of the First Amendment. These topics are discussed in§§ 2.5- 2.11.

Punishing people for what they do is an entirely different matter. Conduct involved in communicating a message can give rise to regulatory concerns that have nothing to do with the content. Bullhorns, for example, are loud, parades disrupt normal traffic patterns , and door-to-door solicitation intrudes on privacy. The First Amendment gives the government a freer hand to address concerns that stem from a speaker's conduct.

Figure 2.1 contains a flow chart that shows the relationship between the main con- cepts covered in this chapter.

Figure 2.1 Overview of the First Amendment

Is speech involved? If the answer is no, the Firs~l Amendment does not apply

I Does the challenged

regulation abridge freedom of speech?

I I

Regulations targeted at Regulations targeted at a speaker' s message a speaker's conduct

I I I I I

Category: Category: Category: Laws regulating Restrictions based on the location of

Unprotected speech Speech with limited Fully protected speech conduct the speech

protection

I I I I Topics: Constitutional as applied r 1

-~

Obscenity to persons engaged in Public Nonpublic Private , Child pornography ' Topics: speech when the law Topics: forums forums property Incitement to riot Vulgar speech furthers a substantial Fighting words , Commercial speech Everything else government interest not Speech integral related to suppressing to criminal conduct

I the message

I

Generally Sometimes Unconstitutional

unless the government Constitutional constitutional,

has a compelling sometimes

reason to prohibit not constitutional

speech on thi s topic

§ 2.3 FREEDOM OF SPEECH 49

Figure 2.2 First Amendment Concept of Speech

The First Amendment concept of speech includes the right to:

1 . receive information 2. maintain ideas and beliefs 3 . communicate them to others 4. engage in ideological silence 5. engage in symbolic speech.

§ 2.3 Is Speech Involved?

The First Amendment meaning of "speech" cannot be found in a dictionary. Dic- tionaries record standard usages. A broader meaning is necessary to achieve the pur- pose of the First Amendment. The essence of freedom of speech is the right to share one's views with others. However, the right to receive information must also be pro- tected because exposure to information is necessary to form opinions before they can be shared. 11 There are an infinite variety of techniques for sharing ideas and informa- tion . A partial list includes: making speeches; participating in parades, 12 marches, pick- ets, and other public demonstrations; 13 displaying signs and placards; distributing literature, pamphlets, and other written materials; writing letters; 14 soliciting member- -hip in organizations, signatures on petitions, and contributions for causes; 15 broadcast- ing via radio, television, or cable; 16 communicating and receiving information over the Internet; 17 filing public interest litigation; participating in politically motivated business boycotts; 18 and engaging in artistic forms of expression such as theater, dance, music, and painting. 19 All of these activities constitute "speech" within the meaning of the First Amendment.

Speech also includes the freedom not to speak or, in other words, to remain silent :Or ideological reasons. Compulsion to voice public adherence to ideas one finds unac- ~eptable is forbidden by the First Amendment. 20 In West Virginia State Board of Edu- ::ation v. Barnette,21 the Supreme Court struck down a state statute that required - hoolchildren, on pain of expulsion, to recite the Pledge of Allegiance while saluting :he American flag. The Court wrote:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force c itizens to confess by word or act their faith therein. If there are any circumstances wh ich permit of an exception, they do not now occur to us. 22

Speech also includes mute conduct like displaying a red flag, 23 wearing a black .:mnband,24 staging a sit-in demonstration,25 wearing a Nazi uniform,26 and burning a _ oss at a Ku Klux Klan rally. 27 These acts constitute speech because they are intended

50 CoNSTITUTIONAL LAw FOR CRIMINAL JusTicE § 2.4

to communicate a message. Mute conduct intended to communicate a message that is likely to be understood by those who view it is called symbolic speech. 28

§ 2.4 First Amendment Distinction between a Speaker's Message and the Conduct Associated with Communicating It

Some speech dissemination techniques, such as writing a newspaper editorial, have only one ingredient- the message . Others, such as marching, picketing, and hand- billing, have two. The second ingredient is public conduct. A large group of people marching down a city street, broadcasting their message over a bullhorn may interrupt traffic, hinder pedestrians, obstruct entrances to buildings, and cause distracting noise. The First Amendment distinguishes between the speaker 's conduct and the message. While the message carries almost absolute protection, the conduct associated with the delivery does not.

In United States v. 0 'Brien , 29 the Supreme Court established the controlling test for when laws prohibiting conduct may be enforced against people engaged in speech. O'Brien burned his draft card during an anti-war demonstration to express his opposi- tion to the war. He was prosecuted under a federal statute that made deliberate destruc- tion of draft cards a crime . He argued that the statute could not be applied to him because he destroyed his draft card as a symbolic substitute for words. The Supreme Court rejected this defense, holding that laws prohibiting conduct may be applied to persons engaged in speech when they : (1) further a substantial government interest that is (2) unrelated to suppressing the message accompanying the conduct. Because the government had a legitimate reason for requiring preservation of draft cards-a reason unrelated to stifling political dissent- O ' Brien's conviction was valid.

The holding in United States v. 0 'Brien has broad application in the field of law enforcement. Police are free to apply the general laws of the community (i.e., noise, traffic, trespass, disorderly conduct, breach of the peace, etc.) to persons engaged in speech because these laws advance important community interests that are unrelated to suppressing the content of the speech. If the law says it is illegal to use artificial sound amplification equipment, obstruct traffic, block entrances to public buildings, or engage in other disruptive acts, police may arrest people who perform these acts, even when they are engaged in First Amendment activity. "

The Supreme Court has applied the 0 'Brien test in several other cases. In Clark v. Community for Creative Non- Violence,30 the Court upheld the application of a National Park Service regulation prohibiting camping in national parks to a group that sought permission to erect a tent city in the park across the street from the White House to dramatize the plight of the nation's homeless. In Barnes v. Glen Theatre, Inc. ,3 1 the Court ruled erotic dancers in adult entertainment establishments were not exempt from complying with laws on public nudity. In both cases, the statute's regulatory focus was on the speaker 's conduct, not the message that accompanied it.

§2.5 FREEDOM OF SPEECH 51

The reverse was true in Schacht v. United States. 32 In Schacht, the Supreme Court struck down a federal statute prohibiting the wearing of military uniforms in dramatic productions under circumstances tending to discredit the armed forces. While this stat- ute ostensibly regulated conduct (wearing military uniforms in dramatic productions), the government's real concern was the message (depicting the armed forces in an unfa- vorable light). Because the statute's regulatory focus was on the message, the statute was unconstitutional under the 0 'Brien test.

A similar result was reached in Texas v. Johnson, 33 which involved a state statute that made it a crime to desecrate an American flag. The defendant was arrested under this statute for burning an American flag during a protest demonstration. The Supreme Court noted that promoting respect for national symbols is the government's only inter- est in regulating how Americans treat flags that belong to them. Since this interest is inextricably linked to the message that accompanies the act of flag desecration, the Texas statute was unconstitutional under the 0 'Brien test. The Court cautioned: "We do not consecrate the flag by punishing for its desecration, for in doing so we dilute the freedom that this cherished emblem represents."

The previous discussion in no way exhausts the range of activities that are consid- ered "speech." The determination that "speech" is involved leads to the next question. Do es the challenged restriction abridge freedom of speech? As previously noted, this answer often hinges on whether the restriction is directed at the speaker's message or - e conduct accompanying it.

=- ure 2.3 Expressive Conduct

eneral laws that prohibit trespasses, breaches of the peace, disorderly conduct, o locking the public passage, and the like may be applied to people engaged in speech-related conduct because they further important government interests that a e unrelated to the message.

- 2.5 Punishing Speech Because of the Message

The command that "Congress shall make no law ... abridging the freedom of ::>eech, or of the press" means, first and foremost, that the government cannot restrict ~ch based on the content.34 The First Amendment establishes a free marketplace of

, a marketplace in which there is no room for government censorship. 35 The "mar- lace of ideas" metaphor was coined by Justice Oliver Wendell Holmes to explain

-:..:y banning speech based on the content violates the First Amendment:

?ersecution for the expression of opinions seems to me perfectly logical. If you have o doubt of your premises or your power and want a certain result with all your eart, you naturally express your wishes in law and sweep away all opposition ....

3ut w hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own

52 CoNSTITUTIONAL LAw FOR CRIMINAL JusTICE

conduct, that the ultimate good desired is better reached by free trade in ideas- that the best test of truth is the pow er of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. 36

§ 2.5

The marketplace-of-ideas metaphor posits that truth is more likely to be discov- ered if all ideas-the good, the bad, and the ugly-are allowed to enter the marketplace and compete for acceptance. The Roberts Court is a staunch defender of this idea. The Court has protected the right to produce videos featuring sadistic torture of live ani- mals,37 to tell lies about receiving military honors,38 and to sell video games with themes of rape, killing, and dismembering to minors. 39 The Court set aside a multi-million dollar damage judgment against members of the contraversial Westboro Baptist Church for picketing the funeral of a young soldier who died in Iraq to publicize their belief that his death was due to God's hatred of homosexuals and wrath against the military for allowing homosexuals to serve . The Court ruled that holding them liable for infliching emotional distress on the fallen soldier's family violated their rights under the First Amendment. 40 Most people would find all of these ideas inappropriate and offensive, but that is the very reason why they need First Amendment protection. Free- dom to espouse hateful, dangerous, unpatriotic, and downright disgusting ideas receives greater protection under our Constitution than in any other democracy in the world.

A. Topics That Have Diminished or No Free Speech Protection

Although free speech generally means freedom to speak on any subject, a small number of speech categories have been excluded from the First Amendment. They include : (1) obscenity,4 1 (2) child pornography, (3) fighting words ,42 ( 4) speech inte- gral to criminal conduct,43 (5) incitement to immediate unlawful action,44 and several others that are unrelated to the work of police officers. These speech categories can be punished based on their content because they carry no First Amendment protection.

Although the excluded categories have remained the same, the Supreme Court's explanation for their exclusion has changed. The original explanation was that " such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly out- weighed by the social interest in order and morality."45 The shift in explanations occurred in United States v. Stevens ,46 involving a statute that criminalized the creation, posses- sion, and distribution of videos picturing humans intentionally maiming, mutilating, torturing, wounding, or killing live animals. The statute was aimed at crush videos show- ing women crushing small animals to death with their bare feet or stiletto heels. The government argued that the statute was constitutional because the value of the speech prohibited by the statute was slight as compared to harm caused by its production.

The Supreme Court not only rejected this argument, it chastised the government for making it. Writing for the Court, Chief Justice Roberts stated that the unprotected speech categories were unprotected, not because the Supreme Court had decided they

~ 2.6 FREEDOM OF SPEECH 53

lacked value, but because they were part of a long-standing history going back to the fo unding of this nation of denying protection to these classes of utterances. The Court acknowledged that there might be other "categories of speech that have been histori- a lly unprotected ... but have not yet been specifically identified or discussed . . . in

our case law," but stated that persuasive evidence of a "long (if heretofore unrecog- nized) history of proscription" would be necessary to induce the Court to exclude a new category of speech from the protection of the First Amendment. No such evidence was

roduced here. The excluded categories have narrow, well-defined boundaries. Students need to

ay close attention to them because police may not arrest people for the contents of -· eir speech unless their speech falls within one of the categories.

; 2.6 -Obscenity and Child Pornography

The Miller Definition of Obscenity In 1957, the Supreme Court ruled that obscenity lacks First Amendment protec-

. n, and then struggled for the next 15 years to formulate a constitutional definition. - e current test was announced in Miller v. California. 47 A work is obscene under the

.;:fer test if, taken as a whole, it:

1. appeals to the prurient interests of the average person depicts "hard-core" sexual acts, previously defined by applicable state law, in a patently offensive way

3. lacks any serious literary, artistic, political, scientific, or other value.

The Miller Court did not define "prurient," but the term is generally taken to mean 1nterest in sex that goes substantially beyond normal, healthy sexual desire. 48 Courts

-en use phrases like a "shameful or morbid interest in nudity, sex, or excretion," ormal, voyeuristic, or unwholesome interest in sex," or strings of synonyms like

_ ·d. lustful, lascivious, sordid, unwholesome, or degrading" to explain the meaning - - rurient interest" to the jury. Next, the work must depict hard-core sexual acts,

ered in the state's obscenity law, in a patently offensive way. The Miller test places us on state legislatures to give concrete meaning to the legal definition of obscen-

- 2 _ · enumerating specific types of hard-core sexual acts that must be found in a work : • it can be branded as obscene. These acts may include: patently offensive verbal

illal depictions of ultimate sexual acts (normal or perverted, real or simulated); bation; lewd exhibition of genitals; sadomasochistic sexual behavior; violent

· stiality; and sexual perversions. Finally, the work, considered as a whole, must serious literary, political, scientific, artistic, or other value. Works that have serious "' are not obscene even when they describe or depict sexual activity in highly

~~- .... ways.

54 CoNSTITUTIONAL LAw FOR CRIMINAL JusTICE

Figure 2.4 Constitutional Test for Obscenity

To be considered obscene in the constitutiona l sense, a literary work must:

l . appeal to prurient interests of the average person

§ 2.6

2. depict hard-core sexual acts previously defined by state law in a patently offensive way

3. lack serious literary, artistic, political, scientific, or other value.

B. Sale of Obscenity to Minors

The First Amendment permits states to enact separate laws regulating the sale of sexually explicit materials to minors. 49 Enactment requires a modification of the first prong of the Miller test. Whether a work appeals to prurient interests is made from the perspective of a minor rather than the average person. All other parts of the obscenity test are the same. A variable standard enables states to restrict the sale to minors of materials that are inappropriate for them, but that are not obscene under the Miller test and, consequently, can be sold to adult purchasers.

In Brown v. Entertainment Merchants Association, 5° the Supreme Court consid- ered a statute prohibiting the sale to minors of"violent video games." Violent video games were defined as games "in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being." Having learned from United States v. Stevens that new categories of unprotected speech will not be recognized unless their exclusion from the First Amendment is historically grounded, the government asked the Court to expand the definition of obscenity to include graphic violence and to uphold the statute based on the notion of variable obscenity-that some materials are obscene when sold to a minor that would not be so if sold to an adult. The Supreme Court declined, explaining that "the obscenity exception .. . does not cover whatever a legislature finds shocking, but only depictions of 'sexual conduct."' Whi le legislatures may adopt separate laws covering the sale of obscene materials to minors, "violence is not part of the obscenity that the Constitution permits to be regulated." Legislatures do not have "free -floating power to restrict the ideas to which children may be exposed." It is up to parents , and not the government, to decide whether materials are unsuitable for their children.

C. Child Pornography Child pornography is different from obscenity and the justification for exclusion is

also different. The exclusion of child pornography from the First Amendment is based on the need to protect children from the sexual abuse and exploitation that occurs when they are used as subjects to produce child pornography. The crime committed in

§ 2.6 FREEDOM OF SPEECH 55

creating the materials supplies the justification for excluding them from the First Amendment. Consequently, laws outlawing child pornography do not have to satisfy the Miller test for obscenity. However, departure from the Miller standard is allowed only for works that visually depict real children engaged in sexual activity, not adults posing as children or computer-generated images. 5 1

D. Role of Police in Enforcing Obscenity Laws

Because the line between punishable obscenity and free speech is not so sharp that police officers can instantly recognize on which side of the line certain works fall, spe- cial rules have been developed for obscenity searches and seizures. The rules are designed to minimize the risk that constitutionally protected materials will be mistak- enly seized while enforcing obscenity laws .

First, a search warrant is always necessary to seize literary materials. 52 Police must obtain a preliminary determination from a judicial officer that there is probable cause ro believe that a particular work is obscene before they may seize it. Undercover pur- hases are exempt from this requirement because no seizure is involved. 53 Purchases

are a convenient way to acquire the evidence that will be needed to support an applica- tion for a search warrant.

Second, affidavits used to support an obscenity search warrant must contain a hi gher than normal degree of specificity. The ideal situation is for the judge to view rhe materials in person. When this is not feasible , an officer applying for a search warrant must provide detailed factual data regarding the types of hard-core sexual ac ts , their quantitative and qualitative aspects , and their relationship to the plot, if any. It will not do to supply no more than a conclusory opinion that the Miller test has been met. The officer 's job is to supply factual data and the judge's job is to eYaluate the data in the light of the legal standards . The officer 's affidavit must be

etailed enough to enable the judge to make an independent determination of prob- ab le cause. 54 The sample affidavit in Figure 2.5 illustrates the amount of detail needed.

Third, the Fourth Amendment requirement that search warrants particularly des cribe the "things to be seized" is strictly applied when the things to be seized are ..iterary materials. General language authorizing seizure of "all obscene publica- ·ons" found at a particular location is unconstitutional because it delegates to the

executing officer discretion to make on-the-spot determinations of whether particu- ~ar works are obscene. This determination is one that can only be made by a judge. 55

Finally, police officers may not seize all copies of items described in their search warrant. Their mission is to obtain evidence for use at trial; one or two -opies are enough for this purpose. Police may not halt sales by seizing all copies _nt il after the work has been adjudicated obscene in an adversarial legal ;:roceeding. 56

56 CoNSTITUTIONAL LAw FOR CRIMINAL JusTICE

Figure 2.5 Sample Affidavit for an Obscenity Search Warrant

The affidavit below was upheld as legally sufficient in New York v. PJ. Video, Inc .. 47;:: U.S. 868, 878 106 S. Ct. 1610, 89 L. Ed. 2d 871 (1986):

"1, I.M. VIRTUOUS, being duly sworn, deposes and says:

I am presently a Confidential Criminal Investigator assigned to the Hope County District Attorney's Office and prior to this, was a detective with the State of Confusion Police Department for approximately 25 years.

On October 26, 2011 I rented and viewed the videotape movie "CALIFORNIA VALLEY GIRLS" in a viewing booth at Sex Frolics, an adult entertainment establishment located at 6900 Smut Road. The viewing of "CALIFORNI A VA LLEY GIRLS" began a t 12:00 Noon and lasted until 1 :33 P.M.

The content and character of the above mentioned video movie is as follows: Six white females, approximately 18 to 25 years of age, are unemployed and attempt to make a living by becoming prostitutes. The first scene is a bedroom scene where two females are involved in lovemaking, fondling , and cunnilingus. The second scene depicts a white male and a wh ite female having intercou rse in the back of a van. The third scene is a house scene where six girls, all white females, are introduced to the art of lovemaking. One male, approximately 35 years of age, is teaching the girls the art of fellatio with each one of them performing this act on him. The next scene is a bedroom scene in a home where a husband and wife, and the w ife 's friend, perform various sexual acts which include intercourse, fellatio, anal inter- course, and cunnilingus. The movie ends with some lesbianism where the wife per- forms cunnilingus on the friend while the latter performs fel latio on the husband and they engage in intercourse and anal intercourse."

§ 2.7 -Fighting Words

In Chaplinsky v. New Hampshire, 57 a man was arrested for confronting the city marshal and calling him "a God damned racketeer" and a "damned Fascist" to his face. Prior to Chaplinsky , the Court had observed that a "resort to epithets or personal abuse is not in any proper sense communication of information safeguarded by the Constitu- tion ... "58 In Chaplinsky, the Supreme Court officially excluded fighting words from the protection of the First Amendment.

Subsequent cases have reaffirmed the holding in Chaplinsky and have sought to clarify the scope of this exclusion. The "fighting words" exclusion is not concerned with speech that communicates an idea or makes a statement about the speaker's beliefs. 59 Marching through a Jewish neighborhood wearing Nazi uniforms with swas- tikas is an example. This conduct is protected by the First Amendment because the marchers are expressing their views. 60 Speech that communicates ideas cannot be pun- ished as fighting words, no matter how insulting, offensive, or provocative the ideas may be. 61 "Fighting words" are used for a different purpose. Their purpose is purely to inflict injury.

FREEDOM OF SPEECH 57

There is no judicially established list of words that, when spoken, always consti- ... e "fighting words ." Whether language constitutes "fighting words" requires an

:::xamination of both the words used and the context in which they are uttered. A person ~ y be arrested for using "fighting words" only if the person's language is:

1. abusive, derisive, or insulting62

2 . spoken in a face -to -face encounter under circumstances likely to provoke the other person into making an immediate violent response.63

Whether the second element is present calls for consideration of the factual ext, including the time and place of the communication, the characteristics of

e parties, and their proximity. Personally abusive remarks made by a feeble old ~--or shouted from the window of a passing car, for example , do not constitute -~ rin g words," because the possibility of provoking an immediate violent response

"0 -ent. The "fighting words" exclusion has a narrow application when the target of verbal

~"' is a police officer because police officers are trained not to respond in physical _-. Making profane gestures or calling a police officer an " ass" is not enough to

:fy an arrest for using "fighting words. "65 While the Supreme Court has stopped • of saying the "fighting words" exclusion can never apply when the object ofver-

" · use is a police officer, the indignities must go far beyond what an ordinary person _ be expected to endure. 66 In Lewis v. City of New Orleans ,67 the Supreme Court _ .arned the conviction of a woman who hurled a litany of four-letter words at a

:-"'offic er when he asked her husband for his license. The officer arrested the woman -=---an ordinance making it a crime to "curse or revile or to use ... opprobrious lan-

- ~= award or with reference to any member of the city police while in the actual _:;:nance of his duty." The Supreme Court declared the ordinance unconstitutional

-e it made cursing at a police officer a crime without regard to whether the words ely to provoke an immediate violent response . The Court commented that this

-ood is reduced when abusive language is addressed to a police officer because --~ trained not to respond in physical ways. The Supreme Court repeated this

~-=--..,=ion in City of Houston v. Hill, 68 this time noting that "freedom of individuals _ · to oppose or challenge police actions without thereby risking arrest is one of ~ ipal characteristics by which we distinguish a free nation from a police state." "'"~uently, police officers should think twice about arresting citizens who insult

-Speech Integral to Criminal Conduct

h is an integral part of many crimes. With crimes like perjury, blackmail, ---~ riminal solicitation, and threats, speech is the entire crime. No one seriously --~-~-- mat speech integral to criminal conduct should be protected by the First ~..,__-_;:nt. 69

58 CoNSTITUTIONAL LAw FOR CRIMINAL JusTicE § 2.9

Although true threats are not protected by the First Amendment, the line between true threats and constitutionally protected political speech is not always clear. To con- stitute a true threat, the speaker must intend his statement to be understood as a serious expression of intent to commit an act of unlawful violence against a particular person or group of persons . 70

Context is everything in determining whether a true threat has been made. In Watts v. United States,1 1 a young man took the floor at an anti-war rally and said in front oflarge audience:

They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday morn- ing . I am not going. If they ever make me carry a rifie, the first man to get in my sights is L. B.J. They are not going to make me ki ll my black brothers.

The "L.B.J." the young man was referring to was Lyndon Baines Johnson, then President of the United States. Watts was indicted and convicted under a federal statute making it a crime to "knowingly and willfully ... [make] any threat to take the life of or to inflict bodily harm upon the President ... "The Supreme Court set aside the con- viction on the grounds that Watts' statement, interpreted in the context in which it was made, constituted nothing more than " a kind of very crude offensive method of stating political opposition to the President" and, consequently, was not a true threat.

The Supreme Court revisited this issue in Virginia v. Black. 72 The case involved a statute that made it a crime to bum a cross with intent to intimidate. The Court began by noting that cross-burnings can have different meanings in different contexts. When a cross is burned on a black family's lawn, it communicates a message of impending violence- "Get out or else!" The message constitutes a true threat and is outside the protection of the FirstAmendment. 73 However, crosses are also burned at Ku Klux Klan rallies as a way of expressing group solidarity and shared commitment to the white supremacist cause . The message, in this context, constitutes core political speech that is protected by the First Amendment. 74 Although states may outlaw cross-burnings done with intent to intimidate, the Virginia statute went too far. It presumed that all cross-burning were done with this intent. The context must be examined on a case-by- case basis to determine whether a true threat has been made. 75

§ 2.9 -Incitement to Immediate Illegal Action

Inflammatory speech at the right time and place can incite action. Establishing the point at which speech advocating violence or other unlawful acts loses First Amend- ment protection was one of the Supreme Court's major concerns during the first half of the twentieth century. In the 1919 case of Schenck v. United States, 76 the Supreme Court adopted a test that would dominate First Amendment jurisprudence for decades to come. Schenck, a Socialist Party leader, was convicted under the Espionage Act for mailing circulars to young men who had been called up for the draft, criticizing the war

FREEDOM OF SPEECH 59

:rrging them not to go. At the time of this appeal, the nation had not yet recovered etime mentality. Mr. Justice Oliver Wendell Holmes , writing for the Court, ed the conviction, stating:

e a dmit that in many places and in ordinary times the defendants, in saying all -----xrt w as said in the circular, would have been within their constitutional rights. But

e character of every act depends upon the circumstances in which it is done .... - e q uestion in every case is whethe r the words used are used in such circum- :-anc es and are of such a nature to create a clear and present danger that they

bring about the substantive evils that Congress has a right to prevent. 77

-ithin a few years, it became apparent to Mr. Justice Holmes that he had set loose - :entiat Frankenstein monster in the hands of a Court swept up in the post-war tides _ ation beset by hysteria and frenzy. The waves of violence and labor unrest in the

created a panic that all of the nation 's woes were being stirred up by an interna- l Communist conspiracy. State legislatures responded in rapid succession by

:ring criminal anarchist and syndicalism laws, making it a crime to advocate or the doctrine that organized governments should be overthrown by force and vio-

". A rash of prosecutions directed at left-wing radicals followed. _;n a number of cases handed down during the early years following Schenck, a

_ rity of the Court affirmed the conviction of harmless political dissidents under the -"of applying the clear and present danger doctrine, with no real effort to determine .,._ er the danger from their speech was either clear or present. The Court stated that

cy of the doctrine ofthe violent overthrow of the government was so inherently =erous to society that the government could stamp the doctrine out in whatever

it to ok. 78 Justices Holmes and Brandeis opposed this application, taking the posi- - at advocacy of even the most alarming ideas should be protected by the First

-cndment, unless the speech posed a clear and present danger of immediate unlawful . In a famous dissenting opinion, they argued:

=ear of serious injury cannot alone justify suppression of free speech and assembly. 'en feared witches and burnt women. It is the function of speech to free men from e bondage of irrational fears. To justify suppression of free speech there must be

·easo nable ground to fear that serious evil w ill result if free speech is practiced. - ere must be reasonable ground to believe that the danger apprehended is immi- -ent. There must be reasonable ground to believe that the evil to be prevented is :::serio us one ... . (E)ven advocacy of violation (of the law), however reprehensible

rally, is not a justification for denying free speech where . . . there is nothing to ic ate that the advocacy would be immediately acted on .... Those who won

- ;nerican independence by revolution w ere not cowards. They did not fear politi- ::;al c hange. They did not exalt order at the cost of liberty. To courageous, self-reliant ~en, with confidence in the power of free and fearless reasoning applied through ~e processes of popular government no danger flowing from speech could be ::;eemed clear and present unless the incidence of the evil apprehended is so ~mi nent that it may befall before there is an opportunity for full discussion. If there

·me to expose through discussion the falsehoods and fallacies, to avert the evil ::, th e processes of education, the remedy to be applied is more speech, not ~~ orced silence . Only an emergency can justify repression l 9

60 CONSTITUTIONAL LAW FOR CRIMINAL JusTICE § 2.9

A. Brandenburg Test The position taken by Justices Holmes and Brandeis was accepted by the Supreme

Court 40 years later in Brandenburg v. Ohio 80 and has been the law ever since. Bran- denburg, a Ku Klux Klan leader, was convicted under an Ohio statute that made it a crime to advocate "the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing .. . political reform ... " His conviction stemmed from a speech he delivered at a Ku Klux Klan rally on a farm outside Cincinnati, Ohio . A local television reporter, who had been invited to witness the rally, filmed the event and later broadcast portions of the footage, in which Bran- denburg asserted that "if our President, our Congress, our Supreme Court, continues to suppress the white , Caucasian race , it's possible that there might have to be some revengeance [sic] taken." Brandenburg further stated that "the nigger should be returned to Africa, the Jew returned to Israel. " The Supreme Court overturned the conviction, holding that the Constitution does not allow the government to make advocacy of the use of force or other unlawful action a crime unless the advocacy is "both directed toward inciting or producing imminent lawless action, and likely to incite or produce such action. "

The Brandenburg test limits the authority of the police, as well as the authority of legislatures. Police may not halt ongoing speech and arrest a speaker for inciting unlaw- ful activity unless: (1) the speaker intends to incite unlawful action, (2) the unlawful action is likely to occur, and (3) the action is imminent. In Hess v. Indiana, 81 the Supreme Court overturned the disorderly conduct conviction of an anti-war demonstrator for shouting "We'll take the f-ing street later!" as the police were trying to move a crowd of demonstrators off the street and onto the sidewalk so that vehicles could pass. The Court held that the arrest was improper because Hess did not urge imminent unlawful action. The action urged (" We ' ll take the f- ing street later") was to occur at some indefinite future time.

Figure 2.6 Incitement to Immediate Unlawful Action

Speech advocating violence or other unlawful actions is protected by Fi rst Amend- ment un less it is both:

1. 2.

B.

directed toward inciting imminent law less action and is likely to incite such action.

-~

Premature Fears

Speech may not be suppressed out of premature fears of what might occur if it is allowed to take place. 82 On April 30, 1992, the day after verdicts of acquittal were announced in a highly publicized trial of several Los Angeles police officers accused of the racially motivated beating of a black motorist, a number of demonstrations

- 2.9 FREEDOM OF SPEECH 61

occurred in various parts of San Francisco. Most were peaceful, but a few were not. That evening, the mayor of San Francisco declared a local emergency and imposed a 9: 00P.M. curfew. The next day, he and the chief of police decided to ban all demonstra- . ons , peaceful or otherwise, effective May 1, 1992, and to arrest all demonstrators who

refused to obey dispersal orders. Later that day, local authorities became aware that a emonstration was planned for the BART (Bay Area Rapid Transit) Plaza area. Police ·ent to the scene, issued dispersal orders, and began arresting people. A federal court

;uled that imposing a ban on demonstrating before the demonstrators have done any- ;::li.ng illegal is unconstitutional. The court stated:

The law is clear that First Amendment activity may not be banned simply because p rior similar activity led to or involved instances of violence. There are sound reasons for this rule. Demonstrations can be expected when the government acts in highly controversia l ways, or other events occur that excite or arouse the passions of the citizenry. The more controversial the occurrence, the more likely people are to d emonstrate. Some of these demonstrations may become violent. The courts have held that the proper response to potential and actual violence is for the govern- ment to ensure an adequate police presence, and to arrest those who actually engage in such conduct, rather than to suppress legitimate First Amendment con- d uct as a prophylactic measure.

The court stressed the importance of allowing citizens to express their frustrations recent events by engaging in spontaneous protest. Banning demonstrations because

- ers have or might abuse the privilege deprives innocent citizens of their First - endment rights. The court, nevertheless, left open the question whether a city, con-

ted with widespread violence beyond the capabilities of the police, might in rare -..ances be justified in imposing a time-limited ban on all demonstrations. The court

d it unnecessary to address this question because that point had not been reached -an Francisco at the time the mayor imposed the ban in question.

The Ohio Supreme Court expressed a similar view in setting aside an injunction - prohibited two groups with opposing viewpoints from simultaneously picketing

ide the home of a Nazi war criminal whose conviction had been overturned by the .:.eli Supreme Court. 83 The Coalition for Jewish Concerns was picketing to show their

-ition, while the Ku Klux Klan was picketing to show their support, Picketing had -~ peaceful, but local authorities were concerned. The Ohio Supreme Court over-

ed the ban on simultaneous picketing, holding that prohibiting speech is not a "tutionally acceptable means of averting a feared disturbance.

Hostile Reception

?olice intervention is justified when an outbreak appears imminent, but the ----....... ,ce depends on whether the speaker84 or the audience85 is responsible. When the

-of an outbreak stems from a hostile reaction to an unpopular speaker's views, ~ eeping efforts must be directed at the audience, not the speaker. 86 In Cox v. Lou-

. - 2,000 African-American university students assembled a few blocks from the

62 CONSTITUTIONAL LAW FOR CRIMINAL JUSTICE § 2.

courthouse in Baton Rouge to protest segregation. They walked in an orderly fashio n. obeying traffic laws, until they reached the courthouse, where they pledged allegiance to the flag, prayed briefly, sang two "freedom songs," and listened to a speech delivered by Cox, their leader. A crowd of 100 to 300 spectators gathered on the sidewalk to watch. There was some angry muttering and jeering, but the protesters did not respond and the police presence at the scene was adequate to maintain order. At the end of his speech, Cox urged the demonstrators to go uptown and "sit in" at various segregated lunch counters. The sheriff, worried about the crowd's reaction, took a bullhorn and ordered the demonstrators to go home. When the order was ignored, the police arrested Cox for causing a breach of the peace. The Supreme Court reversed Cox's conviction, holding that the First Amendment does not allow the police to arrest a speaker because a hostile audience threatens to react with violence. 88 Police, instead, have a constitu- tional duty to maintain order so that the speech can continue. 89 Accordingly, peacekeep- ing efforts must be directed at the hecklers.

However, miscalculations occasionally occur about the strength of the peacekeep- ing force needed to maintain order. Halting speech should never be considered, except as a last resort. Police would be justified in asking demonstrators to suspend their activity in the face of an uncontrollable crowd reaction. If their request is refused, they may take the demonstrators into custody for their own protection, but may not arrest them for the disorderly conduct of spectators who are hostile to them. 90

D. Brandenburg v. Ohio in the Age of the Internet

The Internet is a fertile breeding ground for hate groups and extremists. Instances where extremists have used the Internet to exhort their followers to harm their enemies are far from rare. Cases involving incitement on the Internet are difficult to prosecute because they involve neither "true threats" nor "incitement" as these terms have tradi- tionally been defined. The Hal Turner case illustrates the problem.

In U.S. v. Turner, 91 Internet blogger Harold "Hal" Turner was convicted of threat- ening to murder three federal judges by posting their names and photographs on his website, along with the statement: "Let me be the first to say this plainly: These Judges deserve to be killed . ... Their blood will replenish the tree of liberty. A small price to pay to assure freedom for millions." Turner's blog was written in response to their ruling that the Second Amendment right to bear arms did not apply to the states. Turner referenced the infamous murders of another federal judge's husband and mother and implied that the killings were payback for her role in convicting a white supremacist leader. He stated that these judges were also traitors. "They have intentionally violated the Constitution .... If they are allowed to get away with this by surviving, other Judges will act the same way. These Judges deserve to be made such an example of as to send a message to the entire judiciary: Obey the Constitution or die." The next day, Turner updated his post with detailed information on how to find the three judges, including their phone numbers, work addresses, and office room numbers, along with a photo of the building in which they worked and a map of its location. The Court ruled that this

FREEDOM OF SPEECH 63

-= ~ i dence was sufficient to support the jury's finding that defendant's statements on - 'Yebsite amounted to a true ' threat ' within meaning of statute criminalizing the _ ening of a federal judge." The defendant's blog went beyond expressing an

-Siiact wish for their death; he posted photographs , work addresses and room numbers - each of the judges, along with a map and photograph of the courthouse to aid their

---- sins in locating them, and stated again that they "deserved to be killed." Though the Turner case was tried as a " true threat," this theory does not fit com-

ly with the facts. A threat involves " a serious expression of intent to commit an nf unlawful violence." The threatener is saying "I personally am going to kill you."

-- reason "true threats" are not protected by the First Amendment is because of the and disruption of the victim's life they engender. Turner's blog unquestionably

· ed fear in the judges, but not fear of what Turner was going to do. The fear was hat one of Turner's extremist followers might do. Brandenburg v. Ohio incitement doctrine was perhaps a better fit. Conviction for .em ent requires proof that the speech was both (1) intended and (2) likely to incite

- ~minent lawless action. Incitive utterances are excluded from the First Amendment e they increase the risk of violence urged. Since Turner's blog exhorted his fol-

ers to murder the judges rather than threatening to do it himself, why wasn't this -

3 tried under the Brandenburg theory? The answer is two-fold. First, Turner 's blog did not urge his followers to take ediate action. The murders could take place today, next week, or next month. There

..: o urgency to his call. Second, there is no way of knowing whether his call would : -~eeded. However, since the chances were less than even, the illegal acts he advo- -~ could scarcely be described as likely to occur.

Cases like United States v. Turner fall between the cracks. Turner did not issue a _ r in the normal sense . He instead exhorted his followers to do the deed. "The ,.. e characteristics of the Internet blur the distinction between threats and incitement

_ -= · owing speakers to threaten by incitement-that is, creating fear by increasing the ~ ood of ensuing violence without actually threatening to carry out the violence

- lves ."92A doctrinal purist might find that Turner 's blog was protected by the First -endment because his conduct did not fit neatly under either theory. However, this -~ ooks the fact that a serious wrong was committed. The three judges were robbed -- ir peace of mind and exposed to a risk of being murdered, though not a likelihood,

- -equired by Brandenburg. The Brandenburg test was not designed to regulate Internet incitement, which

: ins the poor fit. The test was designed for speech delivered to a finite and estima- ~ ::: dience in real time. It tells police when they can arrest a firebrand speaker who is ~g to work up a crowd-when violent action is intended, imminent, and likely. :-e are able to make these judgments in the context that the Brandenburg doctrine

- intended to operate, but not when incitement of violence occurs on the Internet. ihe Supreme Court needs to formulate a workable standard for when Internet

- -h intended to incite vio lent action ceases to be protected by the First Amendment, - dard that protects targets of Internet incitement from being put in fear and

64 CoNSTITUTIONAL LAw FOR CRIMINAL JusTicE § 2.10

subjected to the risk of being harmed, without disturbing the constitutional right of extremist groups to engage in political advocacy.

§ 2.10 -Hate Speech

Hate speech refers to speech that denigrates, belittles, or expresses contempt for others because of their race, color, religion, sexual orientation, or other characteristic that makes them vulnerable. Freedom to engage in hate speech is one of the most prob- lematic First Amendment issues in modem times. 93 While some argue that society would be better served by excluding hate speech from the protection of the First Amendment, this is not how our Constitution is interpreted. 94 The First Amendment protects the right to preach racism, sexism, anti-Semitism, homophobia, or any other bigoted belief. The Court has upheld the right ofNazi Party members to march through Jewish neighborhoods in full uniform,95 of private organizers to exclude gays and les- bians from their St. Patrick's Day Parade,96 and of Ku Klux Klan members to deliver hate speeches and bum crosses at their rallies. 97

Snyder v. Phelps 98 is the Court's most recent encounter with hate speech. The Court upheld the controversial Westboro Baptist Church's right to picket in a public area near the funeral of a soldier who died in Iraq, brandishing signs that read "God Hates Fags," "God hates the USA/Thank God for 9/11 ," "Thank God for Dead Soldiers," and "God Hates You." The members of the Westboro Baptist Church believe God hates homosex- uals and that the death of soldiers on the battlefield is God's punishment for tolerating homosexuality in the military. They travel around the country picketing the funerals of fallen soldiers and people who die of AIDS to proselytize their beliefs. The Court set aside a multi-million damage judgment against the church members for intentionally inflicting emotional distress on the deceased soldier's family, stating:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and as it did here-inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course-to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro.

Hate speech, nevertheless, is protected only so long as it remains an expressed belief. People have the right to march, carry banners, and deliver speeches about racial superiority and inferiority as long as they like, because they.are expressing their views. However, the First Amendment confers absolutely no protection on hate-motivated conduct. 99 When people go beyond expressing bigoted beliefs and act on them, they may be punished. 100 States, for example, can make it a crime to assault another person because of the person's race, religion, or sexual orientation. States are also free to take bigoted motives into account by providing enhanced punishment for defendants who select their victims because of their race, religion, sexual orientation, or other distin- guishing characteristics. 101 Offenders whose sentences are increased under statutes

- _.11 FREEDOM OF SPEECH 65

:rroviding enhanced punishment for hate crimes are not being punished for their beliefs; -- ey are being punished for their conduct.

Hate speech is not protected when accompanied by language or circumstances that _ nstitute a threat or fighting words because these categories of speech fall outside the '="irst Amendment.

- 2.11 -Crude and Vulgar Speech

Under traditional First Amendment analysis, speech was either fully protected by --"' First Amendment or had no protection at all. There was nothing in between. This - erne left no place for crude, profane, or vulgar speech. Vulgar speech contributes

: little to the marketplace of ideas that full protection seems inappropriate. At the same e, it is not so harmful that complete withdrawal of protection seems appropriate,

_ - er. As a result, the Supreme Court had difficulty locating a place within the First -~endment for crude and vulgar speech. The status has unfo lded gradually through a ·;::ies of cases.

Cohen v. California 102 was the first case in the series. Cohen was arrested for _ ~ch of the peace when he appeared in a courtroom wearing a jacket with the message : -the Draft!" displayed across the front. The Supreme Court ruled that Cohen's

guage, while vulgar, was protected by the First Amendment because in a society as -erse as ours, the government has "no right to cleanse public debate to the point

- e it is grammatically palatable to the most squeamish among us ." Cohen v. Cali- ia made it illegal for police to arrest people for using vulgar language in public,

-· ough 40 years later some officers still fail to appreciate this .103

In Bethel School District v. Fraser,104 the Supreme Court upheld the suspension of a chool student for delivering a lewd, racy speech during a high school assembly. The explained that it does not follow " simply because the use of an offensive form of sion may not be prohibited to adults . . . the same latitude must be permitted to chil-

in public school." Cohen was again distinguished in FCC v. Pacifica Foundation ,105

the Court upheld the government's authority to prohibit radio stations from airing grams with vulgar language during hours when children were likely to be listening.

Finally, in Young v. American Mini Theaters, Inc., 106 the Supreme Court made a break with the traditional notion that speech must be either fully protected or

_ tected. Upholding a zoning ordinance that restricted the location of adult movie the Court wrote:

gh w e recog nize th at t he First Amendment w ill not to lerate the tota l erotic mate ri a ls tha t have some arguably artistic value, it is manifes t interest in p ro tecting this type of expression is of . . . d ifferent, a nd

,; d e tha n th e interest in unt ra m meled po litica l debate .... Whethe r : ~ory o r ph ilosophica l d iscussion moves us to appla ud or to desp ise what

= =- schoolchild can understa nd why our duty to defend t he right to speak -=same . But few of us would march o ur sons and daughters off to war to

-= -e citizen's ri g ht t o see "Specified Sexual Activities" exhibited in t he

66 CoNSTITUTIONAL LAw FOR CRIMINAL JusTICE § 2. 13

theaters of our choice. Even though the First Amendment protects communication in this area from total suppression, we hold that the State may legitimately use the content of these materials as the basis for placing them in a different classification from other motion pictures.

As a result of Young and subsequent cases , there are now three categories of speech: (1) fully protected, (2) unprotected, and (3) speech that has limited protection . Vulgar speech falls in the third category. It is protected in some contexts, but not others. However, in the context in which police typically encounter it-on city streets and sidewalks-vulgar speech is protected and does not furnish grounds for arrest.

§ 2.12 -Commercial Speech

Commercial speech refers to speech calculated to stir up interest in a commercial transaction. The Supreme Court has explained that there are "commonsense differences between speech that does ' no more than propose a commercial transaction"' and speech that expresses a viewpoint and invites dialogue, and that these differences justify "a different degree ofprotection." 107 Accordingly, commercial speech also carries limited protection, being protected in some contexts, but not others. Reduced protection fo r commercial speech allows the government to protect consumers from misleading and deceptive advertising, 108 require sellers to warn consumers of health hazards from their product, 109 and prevent overly aggressive advertising. 11 ° Content controls like these would be unconstitutional if the government tried to impose them on fully protected speech.

§ 2.13 Restraints on Speech Based on Considerations Other Than the Message

We are now ready to consider the government's power to regulate a speaker 's conduct. Some speech dissemination techniques involve conduct entwined with speech. Handbilling, parading, picketing, and marching are examples. Freedom of speech would have limited practical value for people of modest means if it did not carry the right to use public spaces to engage in activities like these. For people championing poorly funded causes, streets, sidewalks, and parks are often the only cost-free facilities available for making contact with a large audience. These facilities, however, also have important nonspeech uses.

What would a day in the life of the community be like if First Amendment activi- ties like handbilling, marching, parading, and picketing could not be restricted? The following is a grisly sketch. After being kept awake all night by the clamor of sound trucks and the blasts of bullhorns, Jane leaves for work. As she walks down the street, she is accosted by people who want financial contributions , signatures on petitions, and

FREEDOM OF SPEECH 67

- logical support. Jane finally makes it to her car and, after removing the handbills, .: inching her way to work. Traffic is slow because of the need to stop at intersec- ~- to wait for parades and marches to pass. Traffic eventually clears. Jane picks up

and crashes into an oncoming vehicle that is blocked from view by a cluster of ards. Noise, congestion, delays, safety hazards, and intrusions on privacy would if a speaker's conduct was as impervious to regulation as the message.

Fortunately, the First Amendment does not require this.111 A different approach is used _ 1iluate restrictions on a speaker's conduct. How does a court decide whether local ~ents can prohibit individuals from using loudspeakers after dark? 112 Soliciting con-

·ons on public streets? 11 3 Holding parades during rush hour? Or erecting giant bill- - wherever they like? 11 4 The answer is through an approach called forum analysis.

14 Free Speech Access to Government Property: Public Forums and Non public Forums

_ ~embers of the public do not have an unrestricted right to use government prop- =- r speech simply because the government owns it. 115 Many locations are poorly ~ ed to accommodate speech-related activities and serious disruption would

- : 16 Recognizing this, the Supreme Court has adopted a forum-based approach to

_:e restrictions on the First Amendment use of government property. Under this _, "-~--h, the court classifies the location as being either a public forum or a non-

foru m, and then tests the restriction using the legal standards established for - of that type. _ lie forums occupy a special status in First Amendment law; speech can be

_::ed only for important reasons .

Cri teria Used to Determine Forum Status

~-e status of a public forum can be acquired in one of two ways. The first way is _- a long history and tradition of First Amendment use by members of the public.

___......._.v..., that have traditionally been available for public assembly and free exchange - are called traditional public forums . Streets , sidewalks, and parks are the

ples. 117 The second way public forum status can be acquired is through the ----.....,ent's deliberate decision to set a particular facility aside for speech uses by

of the public. Public forums that acquire their status this way are called pub- by designation. 118 Municipal auditoriums and public meeting halls are the

_ GII1ples. Traditional and designated public forums are subject to the same legal .=:.All other government locations are classified as nonpublic forums. 119 Non- .: rums represent the property the government uses to conduct its official busi- -h as post offices, police stations, courthouses, municipal airport terminals,

_ · tallations, government office buildings, and the like.

68 CoNSTITUTIONAL LAw FOR CRIMINAL JusTICE § 2.14

B. Control Over Speech in Nonpublic Forums

The government has broad control over speech in nonpublic forums because these facilities have been reserved by the government for its own use. Restrictions on speech in nonpublic forums are valid so long as the "restriction ... is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's views ." 120

1. Reasonable

Reasonableness is evaluated in light of the forum's purpose and normal patterns of activity. The government does not have to allow speech uses that are incompatible with the orderly conduct of its business. Handbilling and solicitation of funds , for example, do not have to be permitted inside government office buildings . 121

The First Amendment does not require equal access to nonpublic forums. The government may impose restrictions on subject matter and speaker identity that are related to the purpose for which the property is used. A school district, for example, may grant the union elected as the teachers' exclusive bargaining agent access to the interschool mail system without granting a rival union similar access 122 and a municipal transit authority can refuse to sell advertising space to political candidates while accept- ing other types of advertising. 123 Subject matter distinctions like these are not allowed in public forums where everyone has an equal right of access.

2. Neutral as to Viewpoint

Viewpoint discrimination is not allowed in either type of forum. 124 The govern- ment cannot use its control over access to government facilities to advance some views and suppress others. It cannot, for example, grant access to Republicans, but not Dem- ocrats or to pro-life groups, but not pro-choice groups. 125 This would empower the government to distort public debate by allowing the public to hear only one side of an issue. Few things are more dangerous in a democracy.

C. Control Over Speech in Public Forums Speech enjoys maximum protection in public forums. The right to freedom of

speech would be of little practical importance without the ability to reach a sizeable audience. Public streets, sidewalks , and parks have traditionally served this need. The Supreme Court has stressed the importance of open-air public facilities to groups cham- pioning poorly funded causes who lack the resources to hire newspaper space, televi- sion time, or billboards. For persons of modest means, public forum facilities offer the only opportunity for making contact with a large audience. However, use of these facilities for speech unavoidably burdens nonspeech uses. A large rally in a park makes the facilities temporarily unavailable for quiet contemplation and recreation, and a march through a busy downtown intersection at rush hour can tie up traffic for miles.

FREEDOM OF SPEECH 69

:llle local governments cannot declare public forums off limits for speech, they can ·ate conflicting demands by imposing reasonable time, place, or manner restric- on their use. 126

1. Reasonable Time, Place, and Manner Restrictions

To be sustainable as a reasonable time, place, or manner restriction, the measure -r: (1 ) advance a significant government interest, 127 (2) apply without regard to con- - c and (3) leave ample alternatives available to reach the desired audience. 129

Lo cal governments, for- example, can prohibit noisy demonstrations in front of .:A>Ols while classes are in session. This regulation satisfies all three requirements. 130

_ motes the government's significant interest in undisrupted school sessions, applies - out regard to content, and leaves ample alternatives available for reaching the : · ed audience. Speakers who are prevented from holding a noisy demonstration - e classes are in session can wait until classes are over, use a quieter medium, such

--ing out leaflets, or move to a different location. Would-be speakers, therefore, have :::;> e alternatives for communicating their message.

Blanket Prohibition on an Entire Medium of Expression

Laws that impose a blanket prohibition on an entire medium of communication, as residential yard signs, 131 door-to-door canvassing, 132 or handbilling, 133 are not

-- inable as a reasonable time, place, or manner restriction. By eliminating

= -e 2. 7 em ment's Power to Limit First Amendment Activity on Government Property

- -:::.: of property Criteria for Il lustrations Valid ity of restrictions on speech inclusion

-- bl ic Governm ent's Schools, Restrictions are va lid if they are: - - business libraries, jails, (l) neutra l as to viewpoint and -

property police stations, (2) reasonable in light of the courthouses, p urpose the particu lar faci lity office bu ildings serves .

- :: 'orums --::o· iona l Long -stand ing Streets, Reasonable restrictions on the

history and sidewalks, time, place, o r manner of using tradition of First parks public forums for speech w ill be Amendment use upheld w hen they by members of ( l ) advance a significant t he publi c government interest,

:c :::esignation Earmarked by (2) apply without regard to - government for Municipal content, and First Amend ment a uditoriums, (3) leave ample a lternatives uses meeting halls ava ilable to reach the desired

audience.

70 CONSTITUTIONAL LAW FOR CRIMINAL JuSTICE § ~ -

cheap and convenient means of communicating, they run the risk of preventing pe of modest means from making their voices heard. Laws that forbid use of an enn-~ medium of communication violate First Amendment unless adequate substitutes e. for reaching the desired audience as conveniently and cheaply. 134

§ 2.15 -Validity of Particular Restrictions

Now that we have explored the approach courts use to evaluate restrictions on u.L~ First Amendment use of government property, we are ready to discuss the outcomes courts have reached.

A. Anti-Noise Ordinances

Disturbingly loud noises can be an unpleasant by~product of freedom of speech.. Local governments can tone noise levels down by enacting reasonable time, place, an manner restrictions . The Supreme Court has upheld the constitutionality of noise con- trol measures regulating use of bullhorns, sound amplification equipment, loud music. and other excessively loud noises. 135

However, one size does not fit all. What constitutes a reasonable noise contro: measure in front of schools , churches, or hospitals might be an unconstitutiona: infringement on freedom of speech in a downtown business district. 136 The nature of the location and normal patterns of activity determine whether a given noise control measure is reasonable . 137

B. Ordinances Protecting Residential Privacy

Home is the place where people retreat to escape the stresses of their daily lives. Local governments can protect domestic privacy and tranquility by making it illegal to knock on doors of homes where the owners have posted "No Solicitation" signs. 138

Because posting a sign posting is adequate to protect the privacy of homeowners who want this protection, the First Amendment does not allow local governments to ban door-to -door canvassing 139 or to require a permit to engage in this activity. 140 Door-to- door canvassing has been an important medium of communication throughout history and cannot be banned altogether. 14 1

The Supreme Court, in contrast, has upheld an ordinance banning focused residential picketing (i .e., picketing directed at a part icular dwelling). 142 What accounts for the difference? The difference is that homeowners have adequate means to protect themselves from unwelcome intrusions by canvassers and solici- tors; they can post a "No Solicitation" sign . However, they are defenseless against people picketing in front of their home. The fact that they are a "captive audience" allows the government to step in and protect them from unwelcome assaults on their privacy.

fREEDOM OF SPEECH

.. 1ti-Litter Laws and Laws Prohibiting Distribution f Handbills

71

-......._ ·-litter laws are constitutional, but enforcement efforts must be directed at the _ = "·ho drop handbills and produce litter, not against those who distribute handbills

~ later dropped. The public distribution of handbills cannot be made illegal as a - of controlling litter. 143

_-\.v oiding Traffic Congestion and Interference with Access to Buildings

-=e government has a substantial interest in avoiding traffic congestion and inter- -" with access to buildings. A large group of people conducting a free speech

-=-=.ng on a public street or sidewalk are likely to obstruct entrances to buildings and ,.,.--e:-e with traffic. Laws prohibiting obstruction of the public passage are constitu-

and may be applied to individuals engaged in speech. 144

_-illti-abortion protesters sometimes deliberately block entrances to abortion clin- - a way of preventing women from obtaining abortion services. 145 Problems of

==:,Lion and violence outside abortion clinics have prompted some states to estab- :?irst Amendment free "buffer zones. " Buffer zone laws that prohibit protesters getting too close to patients about to enter an abortion clinic (known as floating

-~ zones) are constitutional, 146 but laws that prohibit protesters from standing on - ~ streets and sidewalks near the entrance to abortion clinics (known as fixed -~zones) are not. 147 The Supreme Court overturned a law that prohibited anyone - ~es patients, clinic employees , public safety workers , and persons walking to -~er location from approaching within 35 feet of the entrance to an abortion clinic.

= Court acknowledged that states have a legitimate interest in promoting unob- ed access and preventing violence and intimidation outside abortion clinics and ~d to numerous measures states may take to protect these interests, but ruled that

_· g a "substantial portion of a traditional public forum to all speakers" is not one

Restrictions on Face-to-Face Solicitation

Laws prohibiting public begging have been around for years, but problems of elessness have stepped up enforcement. 149 Because asking for money involves

_- h, restrictions on begging have frequently been challenged under the FirstAmend- :.. 150 Although the Supreme Court has not yet addressed this issue, many lower courts

e. The consensus is that public begging or panhandling, as it is often called, consti- - - expressive activity protected by the First Amendment. 151 As a result, local govern- =-ts cannot categorically prohibit begging. 152 Citywide bans have uniformly been

ed unconstitutional because they deprive beggars of all means to communicate message. 153 Narrower measures must be employed.

72 CoNSTITUTIONAL LAw FOR CRIMINAL JusTICE § 2::.-

Ordinances that prohibit aggressive begging, unacceptable conduct associa--- with begging, and begging in nonpublic forums have been upheld as valid." Begga;! who harass, touch, block, threaten, or otherwise intimidate persons to extract mon _ from them may be charged with disorderly conduct, assault, or under special statu~ dealing with aggressive panhandling. 154 Local governments may also outlaw condu associated with begging that poses a safety hazard, such as walking up to motoris stopped at a traffic light, 155 and also objectionable nonspeech conduct associated wi begging, 156 such as sleeping, 157 sitting, or lying on sidewalks. 158

Beggars often frequent places like train and subway stations, 159 airport terminals, 1

and lobbies of government office buildings .161 Local governments can prohibit begging in places like these because they are nonpublic forums. Restrictions on speech in non- public forums are constitutional if they are reasonable. 162 This requirement is satisfied because begging in these locations, even when nonaggressive, adds to congestio~ slows traffic, and intrudes on people who are in a hurry.

F. Signs and Billboards

Although billboards are a form of speech, they take up space, obstruct views, and pose other problems that call for regulation." 163 As a result, reasonable restrictions may be imposed on the size, location, and physical characteristics ofbillboards. 164 The post- ing of signs and advertisement on telephone poles and fire hydrants can also be prohibited. 165

However, bans on residential yard signs stand on a different footing. Residential yard signs constitute an important means of expression. They enable ordinary citizens to communicate their support for candidates, issues, and causes in ways that no other medium can. A municipality's interest in promoting neighborhood aesthetics is import- ant, but not nearly as important as the right of homeowners to take advantage of this unique, convenient, and economical medium of communication. 166

G. Permit Regulations All communities require permits for large-scale marches, parades, and rallies.

Advance notice is necessary for orderly scheduling, effective resource allocation, and adequate policing. Requiring a permit is the only practical way to ensure that advance notice is given.167 The First Amendment, nevertheless, is hostile toward laws that requires citizens to obtain advance permission from a public official before exercising their right to free speech.168 Laws that require advance permission create a danger that permission will be denied to groups whose appearance, lifestyles, or views are unacceptable. Con- sequently, permit laws are constitutional only if they contain adequate safeguards to prevent censorship. To be constitutional, they must: (1) contain clear, narrow, objective standards for permit officials to follow; (2) not impose unreasonably long advance notice requirements; and (3) not allow overly broad discretion in fixing permit fees.

Overly broad discretion is fatal to permit laws because it creates a risk of censor- ship. Permit officials cannot be given discretion to consider the applicant's identity,

- _17 FREEDOM OF SPEECH 73

,.....~sage , or predictions about the amount of public hostility the gathering might :ISe. 169 Resource allocation, scheduling, and financial responsibility for damages, in

~::rast, are legitimate considerations , but even as these matters, the administrators ' -:reti on must be narrowly circumscribed.170

Second, permit ordinances may not impose unreasonably long advance notice = _ · ements. Long waiting periods stifle speech that is reactive to late-breaking events

- di scourage some citizens from applying .171 An ordinance requiring 30 days ' ce notice, for example, would have silenced groups who wanted to hold a rally

_ test the first Bush Administration 's threatened military action in Iraq because the .:Sian was already in progress by then.

-=-inally, although a fee may be charged to cover the cost of processing the applica- rraffi c control, and clean-up costs, 172 the administrator may not be given unre-

o;::---......-v..-1 discretion to determine the amount. 173 The fee must be established in accordance - fix ed fee schedule or by reference to narrow, objective criteria. 174 The fee may

lude the cost of police protection required to keep hostile spectators in line. 175

- - __ h cannot be financially burdened, any more than it can be punished or banned, __ · because it might offend a hostile mob ." 176

16 -Free Speech Access to Private Property

-::2e First Amendment only controls the actions of the government. 177 Private land- - do not have to allow First Amendment activity on their property.

_ ontroversy existed at one time over whether corporate malls and shopping _ were obliged to permit picking, solicitation, and handbilling. Civil libertarians

_ --<hat shopping center streets and sidewalks were "functionally" indistinguishable :-eets and sidewalks in downtown business districts and, consequently, that shop-

= _ :er owners should have the same Constitutional responsibilities as the govern- - e Supreme Court briefly entertained this argument, 178 but later discarded it. 179

~., center proprietors are free to impose any speech restrictions they please.180

_ ="· police officers should never arrest peaceful First Amendment actors simply ~:hey are on private property. Their presence becomes a criminal trespass only ~in after being asked by the owner to leave.

--~:Ret that the First Amendment does not confer a right of speech access to = ~enter premises does not mean that state law cannot create such a right. Some

·e statutes requiring shopping malls to allow certain speech activities; these _ nstitute a valid exercise of police power. 18 1

-Need for Precision in Regulating Speech

- ing v. Wilson, 182 a group of anti-war protesters deliberately obstructed the =-~an army induction center to prevent inductees from entering. When an offi-

. ·ed to remove the protesters , the defendant, who was part of the group,

74 CONSTITUTIONAL LAW FOR CRIMINAL JusTICE § 2.:-

angrily remonstrated: "White son of a bitch, I'll kill you." "You son of a bitch, I 'J.: choke you to death." "You son of a bitch, if you ever put your hands on me again, n: cut you all to pieces." Threats like this are not protected by the First Amendment. The officer arrested the defendant under a statute prohibiting the use of"opprobrious words or abusive language." It may come as a surprise that the Supreme Court overturned the conviction.

What did the officer do wrong? The answer is nothing. The problem was in the statute used to make the arrest. Criminal laws-particularly those designed for appli- cation to people engaged in speech-must contain narrow, clear, and precise standards to guide arrest decisions .183 This requirement serves two equally important purposes. 184

The first is fair notice. 185 Citizens are entitled to know in advance when their behavior will subject them to arrest. The Constitution therefore requires criminal laws to define the prohibited conduct with sufficient clarity that ordinary citizens would understand what they are forbidden to do. 186 Fair notice is particularly important for laws that apply to speech. Cautious citizens faced with laws of uncertain meaning will often choose to forgo exercising their First Amendment rights rather than risk arrest. Vague laws, con- sequently, cause self-censorship, resulting in the suppression of more speech than the legislature intends.

Clear standards are also necessary to guide police officers in making arrest deci- sions.187 In a "nation of laws and not of men," legislatures may not delegate standard- less discretion to police officers to arrest whomever they please. 188 Laws that lack clear standards lend themselves to arbitrary and discriminatory applications. As a result, courts sometimes allow persons to attack the constitutionality of the statute under which they were arrested, even though their own conduct was not protected by the First Amendment and would have subjected them to arrest under a properly drawn law. 189

Police, therefore, need to pay special attention to the law they invoke in cases involving speech. Opportunities often exist to choose between several statutes: Police should always prefer statutes that contain precise, narrow, and objective criteria over statutes that confer broad discretion and invite subjective judgments.

There are three kinds of statutes that police should never use in a speech context, even when the speaker's language and conduct are not protected by the First Amendment.

A. Statutes Authorizing Arrests for nDisturbing," nAnnoying," or noffensive" Conduct

In Coates v. City of Cincinnati, 190 the Court invalidated an ordinance that made it unlawful for "three or more persons to assemble ... on any sidewalks, and there con- duct themselves in a manner annoying to persons passing by." Laws that make arrest decisions turn on an officer's assessment of whether others were offended or annoyed by the arrestee 's conduct are unconstitutional for three different reasons. 191 First, they fail to give ordinary citizens adequate notice of the conduct to be avoided because vir- tually any conduct might annoy at least some people in the vicinity. Second, they vest

- 17 FREEDOM O F SPEECH 75

much discretion in the police to decide whether the statute has been violated. How · an officer to know whether people passing by were annoyed by the arrestee's can-

t? The best an officer can do to gauge the reactions of others is to consider her own tion. A statute that, read literally, makes it a crime to annoy a police officer comes

-., gerously close to a police state . Finally, these statutes cover some speech that is tected by the First Amendment. Speech does not cease to have protection because

offends or annoys another person. 192 For these reasons , statutes authorizing arrest for =ensive or annoying conduct should never be used to arrest people engaged in speech,

_ en when their speech is protected by the First Amendment.

Statutes Authorizing Arrests for Refusal to Obey a Police Officer's Order to Move On

Statutes authorizing police to make an arrest for disobeying an order to "move on" - uld also be used with extreme caution. Such statutes are constitutional only when

. · contain objective criteria for when such orders may be issued. 193 Legislatures may - · invest police officers with standardless discretion to issue orders to move on and

~t those who disobey. Shuttlesworth v. City ofBirmingham 194 is the leading case on point. Shuttlesworth,

_: il rights activist, and several of his companions were standing outside a department e during a protest boycott when a police officer approached them and told them to Ye on. The others left, but Shuttlesworth stayed behind. When he questioned the ~ er's authority to order him to leave, he was arrested under an ordinance that made an offense to "stand ... upon any street or sidewalk of the city after having been

_ . es ted by any police officer to move on. " The Supreme Court reversed Shut- sworth's conviction on the grounds that legislatures may not give police authority to

::-est people who disobey a dispersal order without providing them with objective . eria for when such orders may be issued. The following observations, made in a

· = erent case, explain the reason.

(U) nder our democratic system of government, law making is not entrusted to the mo ment-to-moment judgment of the policeman on his beat. Laws, that is valid laws, are to be made by representatives chosen to make laws for the future, not by oolice officers whose duty it is to enforce laws already enacted and to make arrests o nly for conduct already made criminal. , , , To let a policeman ' s command b ecome equivalent to a criminal statute comes dangerously near making our gov- ernment one of men rather than of laws. 195

Statutes that treat the failure to obey a police order to move as grounds for arrest _ not objectionable when they detail the circumstances under which dispersal orders _· be issued. Had the Birmingham ordinance made it an offense to "obstruct the free ·sage upon any public street and remain after having been requested by an officer to

·e on," the unconstitutional discretion would have been eliminated.196 The right to d on the street no longer depends on an officer's whim because the statute now

76 CONSTITUTIONAL LAW FOR CRIMINAL JusTICE § 2..:

requires the officer to observe overt acts declared unlawful by the legislature befo~ issuing an order, the violation of which becomes grounds for arrest.

The point of this discussion is that law enforcement officers have no inhere-- power to issue arrest-triggering orders, and legislators may not confer this power o- them. But because law enforcement officers have no way of judging the constitution- ality of the laws they enforce, the following rule of thumb will reduce the risk of mak- ing an unconstitutional arrest: 197 If First Amendment actors are in a place where the_ have a legal right to be and are conducting themselves in a peaceful and lawful manner. an officer cannot make their conduct a crime by ordering them to disperse and arresting them if they disobey.

C. Statutes Authorizing Arrests for "Loitering" Loitering statutes that make it a crime to "wander or stroll about in a public place

without any apparent purpose" have uniformly been held unconstitutional because they are capable of being applied to large amounts of innocent conduct and contain no guidelines for distinguishing guilty from innocent behavior.198 Laws that criminalize aimless wandering are too lacking in standards to be enforced in any context, not sim- ply contexts involving speech. This principle is so well established that officers who make an arrest under a loitering statute like this run the risk of being sued.

The problem of standardless discretion is removed if the loitering statute requires proof of an overt act or a specific criminal intent, such as loitering in a public place with intent to commit prostitution. Loitering statutes that require an overt act or a specific criminal intent are constitutional because police no longer have unchecked discretion to arrest whomever they please. 199

§ 2.18 Summary

The First Amendment prohibits the police from abridging freedom of speech. Speech encompasses a variety of mediums, including parades, pickets, protest demon- strations, and symbolic speech. A critical First Amendment distinction exists between police interventions targeted at a speaker's message and those targeted at his or her conduct.

A. First Amendment Protection for a Speaker's Message

Police may not arrest people for the content of their speech unless their speech falls outside the First Amendment. The following speech categories have been excluded.

Obscenity. Obscenity refers to materials that appeal to prurient interests, depict hard-core sexual acts in a patently offensive manner, and lack seri- ous literary, artistic, political, scientific, or other value. Police officers are not allowed to make this decision; it must be made by a judge. Materials

FREEDOM OF SPEECH 77

suspected of being obscene may not be seized unless a judge has issued a search warrant. Child pornography. Child pornography refers to materials that visually depict real children engaged in sexual acts. In order to protect children from sexual exploitation, states may outlaw production and distribution of child pornography, without regard to whether the materials are obscene under the Miller standard. Fighting words. "Fighting words" are derogatory or abusive remarks spo- ken to another in a face-to-face encounter under circumstances likely to pro- voke the other into making an immediate violent response . The fighting words exclusion has a narrow application when the target of verbal abuse is a trained police officer. Speech integral to criminal conduct. The First Amendment does not protect speech integral to criminal conduct, such as threats . A threat, for purposes of the First Amendment, requires communication of a serious expression of intent to commit an act of unlawful violence. Incitement to immediate unlawful action. Speech advocating violence or other unlawful action ceases to be protected by the First Amendment only if the speech is both directed toward inciting imminent lawless action and is likely to produce such action. A hostile reception does not furnish grounds for arresting individuals engaged in orderly protest.

B. First Amendment Protection for a Speaker's Conduct

Conduct and speech are often intertwined. The First Amendment does not confer - e same protection on a speaker 's conduct as on the message. General laws prohibiting ~onduct may be applied to people engaged in speech when they serve a substantial _5overnment interest that is not related to suppressing the speaker 's message.

The government's authority to restrict speech on government property depends on ·bether the location is a public forum or a nonpublic forum. Restrictions on speech

., cess to nonpublic forums-such as schools, police stations, military installations, and .=overnment buildings-need only be reasonable and neutral as to viewpoint. Speech :-eceives maximum protection in public forums , such as streets, parks, sidewalks, and

unicipal auditoriums. While reasonable restrictions on the time, place, and manner of ::sing public forums for speech are permitted, restrictions that foreclose an entire medium

-expression are unconstitutional. The First Amendment does not guarantee a right of speech access to privately owned property including shopping centers and malls.

Laws that require a permit to hold a parade, march, or demonstration must: ( 1) con- in clear, narrow, objective standards for permit administrators to follow, (2) not pose unreasonably long advance notice requirements, and (3) not allow discretion to

_smblish the permit fee. Criminal laws that are capable of being applied to speech must contain clear, pre-

- ·se, and objective standards to guide arrest decisions. In policing open-air speech = therings, an officer must keep several things in mind. First, speakers may not be

78 CONSTITUTIONAL LAW FOR CRIMINAL JusTICE § 2.18

arrested for inciting a breach of the peace unless they urge imminent lawless action. Urging unlawful action down the road is not enough. Second, police may not arrest an unpopular speaker for a hostile audience reaction. Their duty is to protect the speaker 's right to speak.

Notes

1 BRYANT, THE BILL OF RIGHTS 81 ( 1965). 2 I d. at 98-100. 3 Id. at 94. 4Jd.at115. 5 Gitlow v. New York, 268 U .S. 652 , 45 S. Ct. 625 , 69 L. Ed. 1138 (1925) . 6 EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 6-7 (1969) . 7Id. 8 Whitney v. California, 274 U.S. 357, 375-76, 47 S. Ct. 641 , 648, 71 L. Ed. 1095 (1927)

(Brandeis, J., concurring). 9 Terminiello v. Chicago, 337 U.S. 1, 69 S. Ct. 894,93 L. Ed. 1131 (1949).

10 Kovacs v. Cooper, 336 U. S. 77, 69 S. Ct. 448, 93 L. Ed. 513 (1949) (upholding ordinance prohibiting the operation of vehicles equipped with sound amplifiers or other instruments that emit "loud and raucous noises") ; Grayned v. City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972) (upholding ordinance prohibiting noisy demonstrations in front of schools during school hours).

11 See, e.g., Lamont v. Postmaster General , 381 U .S. 301, 85 S. Ct. 1493 , 14 L. Ed. 2d 398 (1965) (invalidating federal statute requiring people who wished to receive "communist political propaganda" to notify the post office); Stanley v Georgia, 394 U.S. 557, 89 S. Ct. 1243 , 22 L. Ed. 2d 542 (1969) (holding that the government lacks power to make it a crime to possess obscene material in the privacy of one's own home. "[A] State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.") ; Reno v. American Civil Liberties Union , 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997) (invalidating provision of the Communications Decency Act of 1996, enacted to protect minors from indecent and patently offensive communications on the Internet, because the law effectively suppressed "a large amount of speech that adults have a constitutional right to receive").

12 Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995).

13 Thornhill v. Alabama, 310 U.S. 88, 60S . Ct. 736, 84 L. Ed. 1093 (1940); Edwards v. South Carolina, 372 U.S. 229, 83 S. Ct. 680, 9 L. Ed. 2d 697 (1963) .

14 Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800,40 L. Ed. 2d 224 (1974) . 15 International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 112 S. Ct. 2701,

120 L. Ed. 2d 541 (1992); Thomas v. Collins, 323 U.S. 516, 65 S. Ct. 315, 89 L. Ed. 430 (1945) .

16 Turner Broadcasting System, Inc . v. FCC, 512 U.S. 622, 114 S. Ct. 2445 , 129 L. Ed. 2d 497 (1994).

17 Reno v. American Civil Liberties Union , supra note 11. 18 NAACP v. Claiborne Hardware Co. , 458 U.S. 886, 102 S. Ct. 3409, 73 L. Ed. 2d 1215

(1982).