Constitution, Society, and Leadership Week 7 Unit 6 Concepts of Rights: Freedom of Expression Christopher Dreisbach, Ph.D. Johns Hopkins University

 Scope and limits of freedom of expression?  Five selections in this Unit  Catherine McKinnon, Not a Moral Issue  Cohen v. California, 1971  Village of Skokie v. National Socialist Party of America  PruneYard Shopping Center et al. v. Robbins et al.  Joel Feinberg, Offensive Nuisances 2

 Point: Pornography is a civil rights issue  Unlike obscenity, which is a moral issue  Standard defense of pornography  (i) Porn is obscenity  (ii) Obscenity is protected speech ▪ Under the First Amendment ▪ Subject to certain legal restriction  Therefore, (iii) porn should be subject to obscenity laws 3

 MacKinnon’s response  (i) Porn is about power and powerlessness ▪ I.e., the status of women, not sex  (ii) Obscenity is ▪ About moral good and evil, re: sex ▪ Not necessarily harmful  So, (iii) porn ≠ obscenity  Porn = “discrimination on the basis of sex, and as such, a civil rights violation” 4

 Point: Wearing a jacket that says “Fuck the draft” in court is protected speech under the First Amendment  The Case  Cohen arrested for “disturbing the peace…by…offensive conduct”  The conduct (see above)  Los Angeles Municipal Court convicts ▪ Thirty days in jail 5

 Court of Appeals of California upholds on 2 grounds ▪ “Offensive conduct” means “behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace” ▪ “It was foreseeable that such conduct might cause others to rise up and commit a violent act” 6

 U. S. Supreme Court reverses  There was no ▪ Act or threat of violence ▪ Loud noise  Clearly a free speech case ▪ California has no law prohibiting such an act only in court 7

▪ The usual exceptions to free speech do not apply ▪ E.g., shouting “fire” in a crowded theater ▪ E.g., fighting words ▪ No invasion of privacy  Therefore, Cohen’s constitutional right to free speech trumps California’s statute 8

 Point: the American Nazi Party has the First Amendment right to march through Skokie (a largely Jewish neighborhood) while wearing swastikas.  The Case  American Nazi Party notifies Skokie Village officials of party’s plan to peaceably assemble in the Village 9

 They will wear swastikas  They will have banners with “White Free Speech” and the like  They will not ▪ Distribute handbills ▪ Make derogatory statements ▪ Obstruct traffic 10

 Skokie files complaint with Cook County Circuit Court to ban swastikas  Court agrees: ▪ Over half of Skokie’s population is Jewish ▪ And over 10% are holocaust survivors ▪ Nazis are “dedicated to the incitation of religious and racial hatred” ▪ The American Nazi party has copied the German Nazi party 11

 Defendants: Freedom of speech and peaceable assembly!  Appellate Court: The party can march, but no swastikas  Illinois Supreme Court: Appellate Court’s decision violates defendant’s First Amendment rights 12

 Cohen v. California as precedent  “Fighting words” doctrine of Chaplinsky v. New Hampshire (1942) does not apply  No direct threat to peace  Not enough offense to warrant prior restraint  The party gave advanced notice ▪ So no one in Skokie will be forced to watch the rally 13

 Point: It is constitutional for California statute to allow people “to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited”  This does not violate the shopping center owner’s ▪ Property rights under the 5 th and 14 th Amendments ▪ Free speech rights under the 1 st and 14 th Amendments 14

 The Case  High school students set up table at PruneYard Shopping Center ▪ To solicit support against UN opposition to Zionism ▪ Move to public space at order of security guard ▪ Sue for violation of California statute 15

 Supreme Court of Santa Clara County sides with PruneYard  The students had many other chances to communicate  California Supreme Court reverses  No damage to PruneYard  No major dilution of PruneYard’s rights 16

 PruneYard  Cites Lloyd Corp. v. Tanner (1972): private shopping center can prohibit handbill distribution on site when handbills have nothing to do with center’s operation ▪ USSC: In Lloyd, no state statue permitting it 17

 Invokes ▪ 5 th Amendment: Cannot take property without just compensation ▪ USSC: No “taking” in this case ▪ 14 th Amendment: No deprivation of property without due process of law ▪ USSC: the California law is reasonable in this case  So, no lack of due process 18

▪ 1 st Amendment: Right not to be forced to use property for someone else’s speech ▪ USSC:  By PruneYard’s choice, not limited to personal use of appellants  “No specific message is dictated by the state to be displayed on [PruneYard’s] premises  PruneYard can “disavow any connection with the message by simply posting signs in the area”  Therefore, California Supreme Court’s decision is affirmed 19

 Point: There are “human experiences that are harmless in themselves yet so unpleasant that we can rightly demand legal protection from them even at the cost of other people’s liberties”  Mill’s Harm Principle v. Feinberg's Offense Principle  Offense Principle is a Privacy Principle 20

 Offense Principle: “the prevention of offensive conduct is properly the state’s business”  “Offense” in the sense of wrongful (right- violating)  Offense is less serious than harm ▪ At worst a “seriously irritating nuisance” 21

 Ride on the Bus, e.g.  Affronts to the senses  Disgust and revulsion  Shock to moral, religious, or patriotic sensibilities  Shame, embarrassment (including vicarious), and anxiety  Fear, resentment, humiliation, anger ▪ From empty threats, insults, mockery, flaunting, and taunting 22

 Relation between offense and privacy  The bus examples “are nuisances making it difficult to enjoy one’s work or leisure in a locality which one cannot reasonably be expected to leave in the circumstances”  Elizabeth Beardsley’s concept of privacy ▪ Right to autonomy ▪ Feinberg: Nuisances can be offenses in this sense ▪ Right to selective disclosure 23

 “The legislative problem of determining when offensive conduct is a public or criminal nuisance could with equal accuracy be expressed as a problem about determining the extent of personal privacy or autonomy” ▪ Balance between ▪ “Reasonableness of offending conduct” ▪ “Degree of seriousness of offense caused” ▪ Boundaries between ▪ “Various private domains of persons” ▪ “Private domain of [one] and the pubic world” 24

Week 7 Unit 6 Concepts of Rights: Freedom of Expression