Virginia vs. Black - Virginia specifically outlawed any kind of cross burning. O’Conner argued that cross burning isn’t just saying that we don’t like black people it is a form of terrorism due to its specific history. So it’s not speech it’s specific terrorist intimidation, the dissenting opinion argues that the history of the cross burning is irrelevant Seuter, Kennedy, and Ginsberg.
Different standards of first amendment protection for different forms of media.
Broadcast media has finite space so some entity in the government has to regulate it and that is called the F.C.C. no one is able to broadcast without a license from the F.C.C. The airwaves are considered public property and the FCC can’t just deliberate who can broadcast but also what can be broadcast.
Red Lion V. FCC -1969 > Fairness Doctrine
The Court unanimously rules that the FCC does have that authority, because broadcast and radio television are different than print media in terms of scarcity.
Pg 614 - The FCC vs. The Pacifica Foundation 1978 - Carlin, 7 dirty words can’t be said and George Carlin had a monologue dealing with the 7 dirty words and their contextual usage, and Pacifica played the skit in the afternoon someone heard it and complained to the FCC and the FCC only put a warning to Pacifica not fined but they sued anyways because they argued that regulating indecency was a violation of the first amendment they also said that Pacifica issued a warning in advance of the language in the skit, and they also said that it isn’t offensive, because it dealt with the languages, the way they were used, and social satire. The court finds for the FCC and Stephens admits at the outset that governments can not regulate content and Stephens and the majority say that it isn’t obscene but radio is different and also when dealing with decency questions the FCC gets even more leeway because radio is intrusive. The dissenting opinion is that the FCC is using the standard of Sticklen in that they are holding up adults to the standards of children.
PG. 616 - 615 Denver Area Educational Telecommunications Consortium vs. FCC 1996 - the law in question is dealing with Cable Television specifically the CTCPCA section 10a 10b 10c
10a allows the cable operators to eliminate sexually explicit programming.
10b requires CTV to isolate sexual explicit networks unless the subscribers ask for them
10c allows the cable TV companies to eliminate offensive programs on public access.
The S.C. argues 7-2 that a is constitutional and b and c are not.
10c is constitutional, because cable TV companies are private companies and can decide what to distribute and what not to dissenters on point A argue that the law even though the private companies to discriminate based on content.
10b is overturned by a 7-2 vote because the law imposes restrictions on the business and it doesn’t restrict the operators but also restricts the individual. Thomas and Scalia disagree because they don’t believe that it is to much of a regulation, because the government has the authority to regulate it.
10c This one is overturned 6-3 under a concept of public forum because if someone is to open something to public use then they have no right to discriminate what groups are going to use that or not based on the content.
The internet -
The Federal Governments concern over access to internet porn for children.
Since the 1990’s the government has tried to regulate internet pornography but the Supreme Court overturned it then the feds used a backdoor.
Reno V. ACLU - Communications Decency Act of 1996, criminalized the knowing transmission of obscene material to children under the age of 18. In a nutshell any message over the internet that is determined to be indecent that could fall into the hands of a minor without the ISP or internet company taking affirmative action could be held liable. The court ruled 7-2 deemed it was unconstitutional. Stevens who wrote the majority opinion argued that the law as it was written other material could fall into the category besides porn. Also, after Miller obscene came down to local standards but the internet isn’t local; furthermore, the law put to much burden on the internet companies to verify age plus there are other methods that can be used to stop children from obtaining pornography. Rehnquist and O’Conner do not buy the overbroad argument or that it is to restrictive on the internet service providers.
Ashcroft V. ACLU 2004 - p621 - COPA Child Online Protection Act of 1998 - It narrows down congress’s scope on pornography regulation, three important parts, A. Only applies to web based material not email, B. Covers only communications made for commercial purposes, C. It only restricts the kinds of material that are of harm to minors. The lower courts struck this down and goes to the Supreme Court and a 6-3 majority strikes it down. Kennedy wrote in the majority opinion that it is a much narrower scope, however, it still doesn’t solve the restrictive means upon the service providers that were the second issue in Reno V. ACLU. Kennedy goes further and argues that filtering software may be more effective, because it would also block international websites, emails, etc.
US v. ALA of 2003 - CIPA, funded mandate that basically what congress said that any library which gets money from the Feds had to install filtering software but unlike the prior two cases it doesn’t ban anything it only has to deal with withholding funding if the libraries refuse to follow governmental regulation. Once a library selects a book or display then removes it under pressure is on shaky Constitutional grounds, because they are publicly owned. So the ALA argues that the filters are the same thing as choosing some things and to be placed in the library while not allowing others which is unconstitutional. The court upholds the law in a 6-3 decision.
The speech versus expressive content. The government can not regulate spoken or written words but can regulate conduct.
Ideas can be expressed not just in writing or speaking but also through actions.
Tinker V. DMICSD - 1960, - two kids were suspended for wearing black arm bands with peace symbols to protest the Vietnam war. 7-2 Decision in favor of the Tinker’s, it can hardly be argued that either students or teachers shed their constitutional rights at the entrance to the school. The Supreme Court argues that it is close enough to free speech that it is protected under the 1st amendment.
Texas V. Johnson 1989, deals with flag desecration. Before 1989 flag desecration was against the law. Johnson was arrested and the case went to the Supreme Court. The Court overturned his arrest. Brendan argues that there is protection for not just speech but also, expressive conduct and, also, the Supreme Court has many times dealt with flag cases. Texas argues that it the law is meant to maintain the peace, and the flag needs to have special protection, because it is a symbol of national unity. Brendan says that it is irrelevant because there are already laws against breech of the peace and that the emotional value of the flag are not sufficient to justify regulating freedom of expression. Kennedy concurs but adds that he personally supports the flag. The dissenters argues that the flag is uniquely in need of protection, and that the intention of flag burning is to incite anger. Johnson wasn’t prosecuted for the idea but for the way in which it was presented. Ex. what if they decide to spray paint it on a public facility.
Choose 4 questions based on the review sheet, pace yourself at 20 minutes per question. Rulings opinions and how they answer the question big main points.
Total, Selective, Total plus, and no incorporation 317