2 commercial and non obscene sexual speech 3 obscenityfighting words BUT hate

2 commercial and non obscene sexual speech 3

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- 2) commercial and non-obscene sexual speech - 3) obscenity/fighting words - BUT hate motivated crime laws endure: motive ≠ speech; harassment = act - Matsuda and the harm of racist speech - Social harm - mechanism of subordination - Matsuda definition: - message is of racial inferiority - directed against a historically persecuted group - message is persecutorial, hateful, and degrading - HARD cases - protect speech when it is the “victim’s story” [intent proxy?] - is the speaker a member of a victim group? - if so, protect the speech, unless it is directed against an- other historically victimized group - True Threats - VA v. Black (2003) burning cross directed at intimidating person or group to put in fear , of bodily harm/death”; burning = prima facie evidence of intent to intimidate - O’Connor plurality (4) upheld cross burning statute as a true threat (tradition of signifying violence), but struck down prima facie intent (threat or political?) - Souter Plurality (3) concur/dissent - BOTH are unconstitutional - Thomas/Scalia - statute as a whole is constitutional: conduct, not speech; p.f. okay because it’s a rebuttable inference
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- but don’t calls for illegal action have to be express/clear? - Libel - facts ≠ ideas in the marketplace of ideas, but we don’t want to chill fact dispersal - NYTimes v. Sullivan (1964) MLK ad about police brutality: PO chief: “it’s about me!” - ridonk huge awards for libel from all white jury; calculated litigation to reduce coverage of protests - HELD: FA safeguards apply to certain libel actions; Standard: - PUBLIC official cannot recover damages for defamatory falsehood relat- ing to official conduct unless proven statement made with “actual malice” - “recklessness or worse” test - breathing room for free debate - What’s a public figure? (have access to self-help in access to media) - General public figures: - assumed an influential role in ordering society - official conduct - that which touches on fitness for office - achieved pervasive fame or notoriety - Rosenblatt v. Baer (1966) - supervisor of publicly owned ski resort is public enough - limited public figures - have voluntarily injected themselves or been drawn into a particular pub- lic controversy - must be of public importance (not divorce, Firestone ) - Gertz v. Robert Welch (1974) false statements about private figures - not enough of a public figure for no libel damages (some guy) - liability, but NOT strict liability (but malice not req’d) - compensatory damages for ACTUAL injury (unless malice proven, then puni- tive) - Emotional Distress - Hustler Magazine v. Falwell (1988) parody ad not meant to be taken as fact, so not libel, IIED tort obliterated by this case? - has value in marketplace of ideas, even though malicious intent, doesn’t obliter- ate value - long history of political cartoons as being central to public debate - Snyder v. Phelps (2011) Westboro protesting military funerals in public permitted area - narrow, fact specific holding: PUBLIC PLACE, distance from site - “Public Concern” of speech makes it “at heart of the FA”, determined by - content, form, context
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  • Spring '14
  • First Amendment to the United States Constitution, United States Supreme Court cases

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