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

2. 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)

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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”

10. 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?

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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