Speech Clauses IV (Public Forums and Preservation of Order) Lecture 16 Chapter 5 Speech Clauses IV (Public Forums and Preservation of Order)

This Lecture We continue in this section Pages 233-247 Public forums/Preservation of Order Chaplinsky v. New Hampshire (1942) Fighting Words Cohen v. California (1971) McCullen v. Coakley (2014)

Chaplinsky v. New Hampshire (1942) Background Another Jehovah’s Witness case He was selling the religion’s materials on a city street in Rochester, New Hampshire A crowd was not pleased with his attack on organized religion A town marshal decided to take him to City Hall He called the officer a “god damn racketeer” and told him “shut up you damn bastard” He was charged with a prohibiting offensive speech against others in public places He was convicted and fined He appealed

Chaplinsky v. New Hampshire- II Arguments For Chaplinsky The police should have arrested the crowd around him, not him He spoke words rather than resisted arrest If speech may lead to violence, that is still no reason to suppress it For New Hampshire The law promotes public order The words used verbally were not related to his expression

Chaplinsky v. New Hampshire- II Justice Murphy for an unanimous Court Lays down the “fighting words” doctrine A limitation on free expression Includes profane, lewd, obscene, libelous, insulting those that may lead to a breach of peace Words that "inflict injury or tend to incite an immediate breach of the peace" These words are not an essential part of and exposition of ideas Their positive value is outweighed by social interest in order and morality Use the plain meaning of “fighting words” not unconstitutionally vague

Cohen v. California (1971) Background Cohen wore a jacket to the Los Angeles County Courthouse that said “Fuck the Draft” and “Stop the War” All were able to see this message He didn’t wear it to court, but it was seen by an officer The officer arrested Cohen for disturbing the peace by offensive conduct He was convicted and sentenced to 30 days in jail The ACLU got involved and he appealed

Cohen v. California- II Arguments For Cohen For California There was no threat of violence This was not obscene First Amendment protects all speech equally offensive and non-offensive Profanity is part of speech For California First Amendment is a balancing test, thus not absolute All would have to view Cohen’s offensive message The jacket was inflammatory and could lead to a breach of peace A person may breach the peace even if it was not intended by them

Cohen v. California- III Harlan, J. for a 5-4 Court An important question here is weather this was speech or conduct He finds this was communication of a message Emotive and cognitive However, it was not directed at anyone in particular therefore not fighting words People cannot expect to be shielded from all offensive words can’t censor citizens for a better society “One man’s vulgarity is another’s lyric” Marketplace of ideas should not suppress certain ideas This is part of the passion of ideas

Cohen v. California- IV Blackmun, J. joined by Burger, C.J. and Black and White, JJ. Dissenting They find this to be conduct not speech “An absurd and immature antic”

Public Forums What interest does government have with regards to large crowds? When can those crowds meet? Where? In what way? Time, Place, Manner (TPM) Can permits be required? Free Speech zones What about use of public facilities? What if the goal of a regulation is to keep someone away?

Public Forum Cases- I Boos v. Barry (1988) Frisby v. Schultz (1988) Challenge to a DC local ordinance banning the display of any sign within 500 of an embassy and gathering of three or more people within 500 feet of one Sign violates first amendment as content based discrimination Gathering provision valid TPM restriction Frisby v. Schultz (1988) City ordinance preventing picketing the residence of an individual upheld because of a legitimate governmental interest Ward v. Rock Against Racism (1989) Court upholds NYC ordinance requiring groups performing in Central Park to use city supplied sound equipment supervised by a city official a valid TPM restriction

Public Forum Cases- II United States v. Kokinda (1990) Court upholds ban on soliciting outside post offices since it is not a traditional public forum International Society for Krishna Consciousness v. Lee (1992) Challenge to NY Port Authority regulations prohibiting distribution of materials and soliciting contributions in airport terminals Distribution ban violates First Amendment Solicitation upheld as it is not a public forum and there was a legitimate state interest Forsyth County, Georgia v. Nationalist Movement (1992) Court strikes down a local ordinance allowing public officials to fix the cost of parade fees based on what they think may be the cost to maintain the peace Gives the official too much discretion to charge more based on content

Public Forum Cases- III Bray v. Alexandria Women’s Health Clinic (1993) An abortion clinic sued to get rid of pro-life protesters The lose purpose of protest was to change policy, not inhibit travel Madsen v. Women’s Health Center, Inc. (1994) State court injunction had prohibited protesters at abortion clinics from being 36 feet from entrance, restricted noise during procedures, and a 300 feet buffer The first two win, but the final loses Schenck v. Pro-Choice Network of Western New York (1997) Injunction had created a fixed 15 foot buffer to entrances to clinic (win) and a floating 15 foot buffer around those entering clinic The second loses as it was found to violate First Amendment rights of protesters

Public Forum Cases- IV Hill v. Colorado (2000) Colorado law created 100 foot buffer at clinic and required permission from those entering to protest to them within eight feet This was upheld as being narrowly tailored and not content based Thomas v. Chicago (2002) Ordinance required groups to apply for a mass gathering permit and listed several reasons to deny This was a content neutral TPM restriction

McCullen v. Coakley (2014) Background Massachusetts passed a law regarding entrances to abortion clinics Cannot stand on a public way or sidewalk within 35 feet to an entrance Also prohibited knowingly obstructing access McCullen and several other pro-life supporters sued the State AG to ban enforcing this law

McCullen v. Coakley- II Arguments For McCullen Public sidewalks are public forums Not content neutral because it affects only speech on abortion Not viewpoint neutral because it exempts employees of the clinic Not narrowly tailored because it restricts their core free speech activities For Coakley and Massachusetts Lawful TPM restriction aimed at patient access and safety Targets protesters not their speech, and not aimed at their message

McCullen v. Coakley- III Roberts, C.J. for an unanimous Court Test to regulate here 1) Content neutral regulation 2) Narrowly tailored to a significant governmental interest It must not burden substantially more speech than is necessary to further the government’s legitimate interests, but is not a least restrictive means test 3) They leave open other channels for communication This problem limited to abortion clinics, so it is right that the solution is limited

McCullen v. Coakley- IV More from Roberts, C.J. Law is content neutral Focused on location of speech, not the speech itself, so no strict scrutiny Sidewalks though are a traditional public forum Restriction of speech here is very limited However, it is unconstitutional because it is not narrowly tailored because it places too much of a First Amendment burden on the protesters They were not able to engage in the speech they sought sidewalk abortion counseling to try to talk women out of abortions she could reach fewer women this way The State should have explored other options without placing an undue burden on the rights of the protestors Massachusetts the only state with a law like this They should try again on another solution to the problem

McCullen v. Coakley- V Scalia, J. concurring in judgment, joined by Kennedy and Thomas, JJ Scalia wanted the Court to overturn Hill v. Colorado He says the law was content based since it involved the politically charged issue of abortion, therefore is subject to strict scrutiny Compelling governmental interest Narrowly tailored Least restrictive means

Next Lecture More on the First Amendment Pages 247-259 Offensive and Hateful Speech Snyder v. Phelps (2011)- Westboro Baptist Church False Speech United States v. Alvarez (2012)- Stolen Valor Act