Review, Low Value Speech

Chaplinsky: “certain narrowly limited classes of speech…have never been thought to

raise any Constitutional problem. These include the lewd and obscene, the profane, the
libelous, and the insulting or fighting words…such utterances are no essential part of any
exposition of ideas…and any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality”

Main question: To what extent has and should the Court hold on to the Chaplinsky two-
tier approach?

Fighting Words and Hostile Audience

Subversive speech excites anger, offense and even violence. Why doesn’t subversive
speech count as fighting words?

What are “fighting words”? What is their legal definition? Problems with this definition?

Terminello was convicted for speech that “stirs the public to anger, invites dispute, brings
about a condition of unrest, or creates a disturbance.” Why was his conviction
overturned? What did the Court say was the proper standard? What is the difference
between this standard and Brandenburg?

What were the main points of Black’s dissent in Feiner? If we agree with his dissent,
how should the standard for restricting speech to a hostile audience be reformulated?

Lewdness and Profanity

Why did the Court rule that Cohen is not a case of fighting words, obscenity, hostile
audience or offensive nuisance? Explain why in each instance. Why does Harlan think
we should be reassured by this list of what his ruling in Cohen does not concern?

If Cohen’s speech fits none of these categories, then exactly what is the question in
Cohen?

What does Harlan mean by saying that “one man’s vulgarity is another man’s lyric”?

What does Harlan mean by saying that “much linguistic expression serves a dual
function”?

Are these points about vulgarity and dual function the same or different?

What are various points of disagreement in the different opinions about Pacifica, e.g., is
the role of low versus high value, captive vs non-captive, types of public media such as
print versus broadcasting, etc. Are the rulings in Cohen and Pacifica consistent?
 Libel

Gertz (1974) “Under the First Amendment there is no such thing as a false idea…But
there is no constitutional value in false statements of fact”

New York Times v Sullivan (1964): If Chaplinsky and Gertz say libel is of no
constitutional value, how can the Court inquire into the constitutionality of Alabama’s
libel laws?

What does the Alabama standard of “libelous per se” mean and involve? What about
damages?

What is the new standard for libel of a public official in his public duties? What about
damages?

What is the new test of libel in New York Times? Would official reputation and political
debate both be better protected by a different test that makes it easier to prove libel but
harder to win damages? Why or why not?

Why does the Court think that factual falsehood by itself should not be regarded as
sufficient for libel of an official in his public conduct?

Why does the Court think that injury to reputation of an official should not be regarded as
sufficient?

Why is the combination of our interest in truth and in reputation not sufficient?

Why do Kalven and Meiklejohn think this is a case “for dancing in the street”? Why do
they think this case provides a better analysis of the central meaning of the First
Amendment than “clear and present danger

Hate Speech

What is the main practical effect of RAV?

Why does the minority in RAV find the St. Paul ordinance too broad?

Why does the majority in RAV find the St. Paul legislation too broad?

The majority in RAV argues that their position is compatible with restricting some sub-
classes of low value speech. How?
In RAV, why does Justice White think that the argument above proves too much?

How does Justice Scalia respond?

Obscenity

What, in precise detail, is the Miller test? All parts of it. Again, be precise and
complete.

In Paris, Justice Burger argues that when a correlation between obscene material and
violence is controversial, the state is justified in assuming on the basis of “the sum of
experience” that a connection “might exist” and thus may legitimately restrict freedom of
speech. Briefly explain what might be said for and against this way of assigning the
burden of proof.

In Paris, Brennan identifies several problems that the Miller test fails to solve. What are
they?

What are the two state interests that Brennan thinks clearly do justify restrictions on
obscene speech?

According to Brennan, the state’s interest in regulating obscenity remains “essentially

unfocused and ill-defined.” Explain what Brennan might have meant in terms of the
private harm principle, the public harm principle and the offense principle.

Symbolic Speech

What is the O’Brien test? What is the main difference in how Justice Scalia interprets
this test in Barnes and how other Justices have understood it?

Why is the Court reluctant to look into Congressional motive?

What facts might be cited for and against the claim that the government really had no
interest in the communicative aspect of O’Brien’s conduct?

What is the difference between the O’Brien or “incidental effects doctrine” and the
“secondary effects” doctrine?

How does the plurality opinion in Barnes illustrate all four of the following justifications
for the restriction of public nudity: 1) the O’Brien or “incidental effect” doctrine (and the
Scalia version); 2) the offensive nuisance or captive audience doctrine; 3) the secondary
effects doctrine; 4) legal moralism.

Fom the perspective of First Amendment jurisprudence, what are the main advantages
and disadvantages “low value” analysis? What does the idea of low value speech allow
the Court to do that we might want it to do? How does the high/low distinction serve to
protect high value speech? What would getting rid of the high/low distinction help the
Court? What new problems might getting rid of this distinction create? In general, can
the Court do without this distinction altogether?