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1-27 notes - LSJ 361 Offensive Hate and Funded Speech Is it...

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LSJ 361 01/27/2009 Offensive, Hate and Funded Speech: Is it protected? 1) Free speech doctrine: post-1960s a) Broad protections b) Content – based restrictions are suspect c) Series of doctrines specify exceptions d) Result – court approves some government regulation 2) What can be regulated a) Circumstances i) Time, place, manner (so long as not content based) b) Speech plus conduct cases – where not “Pure Speech”: i) Implication that speech to effect conduct c) Categorical approach i) Absent “overbreadth – chilling effect” – cannot be overly broad (1) Libel (2) Fighting words (3) Obscenity (a) Defined (b) Early approaches – highly restrictive – held for a century (i) “deprive and corrupt” (c) Late 1950s and 60s less restriction (Warren Court) (i) “Appeals to prurient interests” - lustful (ii) “Appeal in a patently offensive way” (iii) “Lacking a redeeming social value” (d) 1970s – more restriction (Burger Court) (i) more local interpretation (ii) “lacks serious literary, artistic, political or scientific value” (iii) “reasonable person” (e) 1980s on (Rehnquist Court) – Ok to restrict availability (i) i.e. ok to ban viewing of child pornography, mailing of pornography, restricts adult bookstores, nude dancing exclusionary rules (f) 1990s Online (i) Overturns Communications Decency Act 1996 (ii) Overturns part of Child Pornography Prevention Act of 1996 1. Virtual child pornography is okay (iii) 2001 Upholds children’s Internet Protection Act of 2001 1. Libraries with filters on public access computers.
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