a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual simulated.
b) Patently offensive representations or descriptions of masturbatoin, excretory functions, and lewd exhibition of the genitals.
Paris Adult Theatre v. Slaton
Facts:
Petitioners are owners of two Atlanta movie theaters, operating in the style of “adult” theaters. The theaters have a conventional, inoffensive entrance, without pictures, but with signs indicating that the theaters exhibit “Atlanta’s Finest Mature Feature Films.” On the door is a sign saying “Adult Movie Theater—you must be 21 and able to prove it. If viewing the nude body offends you, Please Do Not Enter.”
The local state district attorney filed civil complaints alleging that petitioners were exhibiting to public for paid admission two allegedly obscene films, Magic Mirror and It All Comes Out in the End, which depict scenes of simulated fellatio, cunnilingus, and groups sex intercourse.
Respondent’s complaints demanded that the two films be declared obscene, and that the petitioners be enjoined from exhibiting the films.
The trial judge found the films obscene, but dismissed the complaints on the ground that “the display of these films in a commercial theatre, when surrounded by requisites notice to the public of their nature and by reasonable protection against the exposure of these films to minors, is constitutionally permissible.”
Georgia Supreme Court reversed that decision.
US Supreme Court vacated and remanded for reconsideration in light of Miller.
Legal Standard:
They disapprove the theory that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only. Right’s and interests “other than those of the advocate are involved.”
It is argued that there is no significant data which conclusively demonstrate that exposure to obscene material adversely affects men and women or their society. It is urged on behalf of the petitioners that, absent such a demonstration, any kind of state regulation is “impermissible.” They reject this argument. It isn’t for them to resolve empirical uncertainties underlying state legislation, save in the exceptional case where that legislation plainly impinges upon rights protected by the Constitution itself.
The State has the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize the State’s “right to maintain a decent society.”
Dissenting Opinion- The Court today permits suppression if the government can prove that the material lack certain artistic, social redeeming values. But Roth held that certain expression is obscene, and thus outside the protection of the First Amendment, precisely because it lacks even the slightest redeeming value. The Court’s approach is thus nothing less than a rejection of the fundamental First Amendment premises of Roth and an invitation to widespread suppression of sexually oriented speech.
Jenkin’s v. Georgia
Facts:
The Court overturned a state court determination that the highly acclaimed movie Carnal
Knowledge was obscene.
Legal Standard:
The Court explained that they could not uphold a defendants conviction based on a person’s depiction of a woman with a bare midriff.
The Court also stated that because the film itself did not focus on the bodies of the individuals, who were known to be engaged in ultimate sexual acts, it could not be found to depict sexual conduct in a patently offensive way.
Smith v. United States
Facts:
The Court upheld a conviction under a federal statute of prohibiting the mailing of obscene material where the mailing was entirely intrastate and when it occurred at a time when the state did not prohibit the distribution of obscene material.
Legal Standard:
The Court held that in a federal prosecution the jury is entitled to rely on its own knowledge of community standards and is not bound by the state legislature’s declaration of what the standards should be.
Pope v. Illinois
Legal Standard:
The Court explained that the value of a work does not vary from community to community. The proper inquiry is whether a reasonable person would find such value in the material.
Expression That Provokes a Hostile Audience
Terminiello v. Chicago
Facts:
Terminiello was convicted of disorderly conduct based on a speech he delivered under the following circumstances.
The auditorium was filled to capacity with over eight hundred people. Outside a crowd of one thousand people gathered to protest against the meeting. Many policemen were assigned to maintain order; but they were unable to prevent several disturbances. The crowd outside was angry and turbulent. Terminiello condemned various political and racial groups.
The decision was reversed by the Supreme Court.
Legal Standard:
A function of free speech under our system of government is to invite dispute. It may be best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.
Cantwell v. Connecticut
Facts:
Jesse Cantwell, Jehovah’s Witness, played a phonograph record that sharply attacked the Roman Catholic religion to persons he encountered on the street.
As a result, he was charged with various statutory and common law offenses. One being a breach of peace.
Legal Standard:
in dictum—When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious.
Equally obvious is it that a State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions.
In spite of the probability of excesses and abuses, these liberties are essential to enlightened opinion and right conduct on the part of the citizen’s of democracy.
Feiner v. New York
Facts:
Petitioner was addressing a street corner meeting. The police received a telephone complaint concerning the meeting, and two officers investigated.
They found a crowd of about seventy-five or eighty people, both Negro and white, filliing the sidewalk and spreading out into the street.
Petitioner urged his listeners to attend a meeting to be held that night, in the course of saying that, he made derogatory remarks concerning high political officials.
The police officers made no effort to interfere with petitioner’s speech but were first concerned with the effect of the crowd. The crowd became restless. Some threatened with violence.
The police urged the petitioner to stop speaking three times in a span of a half hour. Finally they arrested him.
He was charged and convicted of breach of peace under a State statute.
Legal Standards:
When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious.
Kunz v. New York
Facts:
Concerned the constitutionality of a city ordinance declaring it unlawful to hold public worship meetings on the streets without firs obtaining a permit.
Kunz was an ordained Baptist minister, was issued a permit in 1946, but the permit was revoked after a hearing at which it was determined that Kunz had ridiculed other religious beliefs.
He was convicted in 1948 for holding a meeting without a permit in violation of the audience.
Legal Standard:
The Court held that the permit scheme was invalid on its face because it failed to provide clear standards to guide the discretion of the official charged with administering the scheme.
Forsythe County, Georgia v. The Nationalist Movement
Facts:
The Court invalidated a municipal ordinance that authorized permit fees for parades, demonstrations, marches, and similar activities, up to a maximum of $1000, based in part on the anticipated expense necessary to maintain the public order.
Legal Standard:
According to the Court, Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob. Regulation which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.
Edwards v. South Carolina
Facts:
187 black high school and college students walked to the South Carolina State House grounds to protest discrimination. About 30 officers who had advanced knowledge of this demonstration were present.
The Petitioner walked through the grounds carrying placards bearing messages as “I am proud to be a Negro”. A crowd about 200 to 300 onlookers gathered; however there were no threatening remarks, or hostile gestures.
After thirty-five minutes, the police informed the Petitioner that they would be arrested if they did not disperse within fifteen minutes. The group then began to sing several patriotic songs while loudly clapping their hands and stamping their feet.
They were convicted of breach of peace.
Legal Standard:
The Court held that the convictions “infringed the petitioners constitutionally protected rights of free speech, free assembly, and freedom to redress for their grievances.”
The difference from Feiner was that there was no violence on the part of the petitioner or members of the crowd.
Cited Terminiello.
Dissenting Opinion—the situation made it a much greater danger, because of the environment it was in(the south).
Cox v. Louisiana—same as in Criticism of Judicial Process
Legal Standard:
The demonstrators themselves weren’t violent and did not threaten violence. Strikingly similar to Edwards.
Gregory v. City of Chicago
Facts:
Gregory led a march of about 85 protesters to the home of the Chicago Mayor to protest segregation in the city public schools. The protesters accompanied by 100 policemen, arrived at the home and began marching at 8:00pm and marched continuously around the block. They sang civil rights songs and chanted slogans criticizing the mayor.
The protesters marched quietly and continued to hold up signs. The crowd of white onlookers slowly gather until there were about 1000. The became unstable. Spectators physically attempted to block the march. There were threats and objects were thrown at the marchers.
The police then informed Gregory that the situation was becoming dangerous and asked Gregory to lead the marchers out of the area. When he refused, the police arrested them
Legal Standards:
There was no evidence that petitioner’s conduct was disorderly. And that the convictions so totally devoid of evidentiary support violate due process.
The demonstrators did no pass “the bounds of argument or persuasion and undertake incitement to riot. There was less likelihood of imminent violent response. The police were better able to handle the situation.
Chaplinsky v. New Hampshire
Facts:
Appellant, a member of Jehovah’s Witnesses, was convicted for addressing an offensive, and annoying words to another person.
Chaplinsky was distributing literature of his sect on the streets on a busy afternoon. Members of the local Citizenry complained to the City Marshal that Chaplinsky was denouncing all other religions. Marshal said that he was in his right to do that. The Marshal warned Chaplinsky that the crowd was getting restless.
A disturbance occurred later, and an officer took Chaplinksy to the station, not knowing that he was arrested or that he was going to be arrested.
The City Marshal found out about the disturbance and warned Chaplinsky again. Chaplinksy then addressed the Marshal and called him “A God damn Racketeer” and other offensive phrases.
The Supreme Court affirmed his conviction.
Legal Standard:
In Dictum—Certain speech and expression is not in the realm of the Constitution. These include the lewd and obscene, the profane, the libelous, and the insulting or “fight words” those which by their very utterance inflict injury or tend to incite an immediate breach of peace.
It has been observed that such utterances are no essential part of any exposition of ideas, and are of slight social value...that is outweighed by the social interest in order and morality.
The test is what men of common intelligence would understand would be words lkely to cause an average addressee to fight.
Fighting Words are unprotected because as epithets or personal abuse, they are intended to inflict harm, rather than to communicate ideas, and thus are not really speech at all. They are unprotected because they are likely to provoke the average person to retaliation, and thereby cause a breach of peace.
Street v. NewYork
Facts:
Street a black, on learning that a civil rights leader had been shot, burned an American flag in public. A small crowd gathered, and said “We don’t need no damn flag.” And other words.
Legal Standard:
The court stated that Streets disrespectful words were so inherently inflammatory as to come within that small class of fighting words.
Cohen v. California
Facts:
Cohen wore a jacket bearing the words “Fuck the Draft” in corridor of a courthouse.
He was convicted of maliciously and willfully disturbing the peace or quiet of any neighborhood or person by willfully disturbing the peace.
Legal Standard:
The Court stated that the jacket was clearly not directed to the person of the hearer. No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct person insult.
Gooding v. Wilson
Facts:
Gooding said to a police officer attempting to restore access to an army induction center to an antiwar demonstration, “White son of a bitch, I’ll kill you” and “You son of a bitch, I’ll choke you to death.”
He was thereafter convicted under a Georgia statute prohibiting the usage of words that would lead to a breach of peace.
Legal Standard:
The Court stated that the statute was overbroad and that it failed to construe the statute as a limited in application as in Chaplinsky.
Rosenfeld v. NewJersey
Facts:
The appellant in the course of a public school board meeting attended by about 150 people, about 40 who were children, used the word “mother-fucker” on four occasions to describe the teachers, and the rest of the education system.
Legal Standard:
The Court vacated judgment and reversed for consideration in light of Gooding.
Dissenting opinion—if the words were addressed at a person holding a gun, a disturbance would have likely happened. Therefore, it should be considered under fighting words.
Texas v. Johnson
Facts:
An individual burned the flag. He was convicted under a state statute prohibiting the desecration of the American flag in a way that seriously offends others likely to observe or discover his actions.
Legal Standard:
The Court held that no reasonable onlooker would have regarded the defendants expression of dissatisfaction with the policies of the government as a direct personal insult or invitation to exchange fisticuffs.
Expression that Induces Unlawful Conduct
Shaffer v. United States
Facts:
Shaffer was convicted of violating the Espionage Act of 1917. He had mailed a book, The Finished Mystery, which contained several “treasonable, disloyal, and seditious utterances.”
The Court of Appeals affirmed the conviction.
Legal Standard:
The question is whether the natural and probably tendency and effect of the publication are such as calculated to produce the result condemned by the statute. Speech could be constitutionally be punished as an attempt to cause some forbidden or other wise undesirable conduct if the natural and reasonable tendency of expression might be to bring about the conduct, and if the speaker intended such a result.
Masses Publishing Co. v. Pattern
Facts:
The postmaster told a publishing company engaged in the production of monthly revolutionary journal called The Masses, that the August issue of the journal was to be denied access to the mails under the Espionage Act of 1917.
Plaintiff applied for a preliminary injunction to forbid the postmaster to refuse to accept the August issue for mailing.
Legal Standard:
“Express Incitement”—Focused on the content of the speech rather than on the intent of the speaker or the consequences of the communication. If the effect of such speech “upon the hearers is only to counsel them to violate the law, it is unconditionally illegal.
Counter Opinion—the “clever” inciter, express incitement distinguishes between the speaker who uses express words of incitement and the speaker who specifically intends to incite, but is clever enough to avoid the language.
The express inciter is more danger because he is more likely to be effective.
What matters under the first amendment is not the intent of the speaker but the value of expression.
Schenck v. United States
Facts:
The defendants were convicted of conspiracy to violate the Espionage Act of 1917 by circulating “to men who had been called and accepted for military service.” A document alleged to be calculated to obstruct recruiting and enlistment.
Legal Standard:
“Clear and Present Danger”—The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the government has the right to prevent.
Frohwerk v. United States
Facts:
As result of their participation in a publication of a series of articles in the Missouri Staats Zeitung, a German language newspaper. Frohwerk and Gleeser were convicted under the Espionage of 1917.
The Court affirmed the conviction
Legal Standard:
Uses “clear and present danger” standard to interpret the case.
Debs v. United States
Facts:
As a result of a speech delivered to a public assembly, Debs, a leader of the Socialist Party, was convicted under the Espionage Act of 1917.
The Court Rejected the contention that he had a first amendment right.
Legal Standard:
The general utterances was to encourage those present to obstruct the enlistment process. His first amendment right had been disposed of in Schenck—“clear and present danger”.
Abrams v. United States
Facts:
The defendants were a group of Russian Immigrants who were self-proclaimed socialist and anarchists perceived the expedition as an attempt to crush the Russian Revolution.
In protest they distributed several thousand copies of each of two leaflets, on of which written in English and the other in Yiddish. The leaflets were thrown from a window and circulated secretly. They called for a general strike.
They were arrested and convicted of conspiracy to violate various provisions of the 1918 amendments to the Espionage Act of 1917.
Legal Standard:
Used the clear and present danger standard to affirm.
Dissenting Opinion—did not threaten the society because they were insignificant persons to society.
Gitlow v. New York
Facts:
Gitlow was as member of the Left Wing Section of the Socialist Party, was indicted for criminal anarchy. He organized a national conference in New York attended by ninety delegates from twenty states. It left to adoption the manifesto. Gitlow arranged for the printing and publication of the first issue of the paper, which contained the Manifesto.
Legal Standard:
“Direct Incitement”—The utterances inciting to overthrow of organized government by unlawful means present a sufficient danger of substantive evil to bring their punishment with in th range of legislative discretion is clear. Such utterances, by their very nature, involve danger to the public peace and to the security of the State. They threaten breaches of the peace and ultimate revolution. And the immediate danger is none the less real and substantial, because the effect of a given utterance cannot be accurately foreseen.
It cannot be said that the State is acting arbitrarily or unreasonably when in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark with out waiting until it has enkindled the flame or blazed into the conflagration.
Dissenting Opinion—that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendants view.
