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Content-Based Restrictions On Speech

Content-Based Restrictions On Speech - Speech is a...

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Speech is a fundamental constitutional right - govt must be subject to criticism: necessary for accountability and elections The DPC fourteenth amendment applied the bill of rights to the states - Not every right in the bill of rights is so fundamental so that states are bound by them Ex. right to jury in civil cases Without the 1 st Amendment, only need a rational basis to punish the defendant Content-Based Restrictions On Speech Even laws against unprotected speech are unconstitutional if they are content-based - first look at whether law discriminates against any speech, if so, the 1 st A is implicated - then ask whether the speech is protected Incitement. Clear and Present Danger : When a speaker’s advocacy of illegal action is directed to inciting or producing imminent lawless action and is likely to incite or produce such action by the audience, Congress has a right to punish it. - the gravity of the evil, discounted by its improbability, determines whether there is a sufficient clear and present danger. States are allowed to decide what speech creates a clear and present danger - have an interest in self-preservation Shenck v. US (p.970) Defendants convicted for violating Espionage Act of 1917, which criminalized obstruction of recruitment and enlistment for WW1. Defendants protested the Act by handing out leaflets saying “assert your rights”, etc. Court says it is okay to punish defendant for his speech because it would influence dangerous acts. The speech is used in such circumstances that it created a clear and present danger, so Congress has a right to punish it. Defendants need not be successful to commit the crime. Abrams v. US (p.974) Defendants convicted under the same act prohibiting urging of curtailment of production of materials necessary for war by saying “don’t produce weapons against your brothers” (i.e. Russians). Defendants stated an aversion to Germany, which was the enemy in WW1, not Russia. Though advocacy in and of itself is not criminal, need a clear and present danger. HOLMES DISSENT: only the present danger of immediate evil or an intent to bring it about warrants congressional punishment of speech.
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Overbreadth: a statute that prohibits more speech than is constitutionally permissible will allow those who uttered punishable speech to get away with it by attacking the validity of the statute and chill constitutionally protected speech. - If narrowing of a statute is foreseeable the defendant is charged with knowing it would be narrowed and can be convicted - If the trial court does not narrow, a conviction based on that statute will not be upheld. An attempt to overthrow the govt by force, even though doomed from the outset, is a sufficient evil for Congress to prevent. Success doesn’t matter.
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