Unprotected Speech (Content Based)

Question 1

What are the types of Unprotected Speech?

Answer 1

1. Incitement
2. Fighting Words
3. Hostile Audience
4. True Threats
5. Obscenity
6. Child Pornography

Question 2

1. Incitement

Answer 2

• Speech that is used to convince people to break the law.*
• Speech that is directed to inciting imminent lawless action and is likely to incite such actio

Question 3

Brandenburg Test and its Elements

Answer 3

Mere advocacy of the use of force or violence does not remove speech from protection of the 1st amendment

Factors:

1. Imminent Harm
2. A likelihood of producing illegal action; and
3. An intent to cause imminent illegality

Question 4

2. Fighting Words- dont focus to much

Answer 4

• (1)Likely to cause / provoke a violent response against the speaker and (2)it is an insult likely to inflict immediate emotional harm.
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Question 5

3. Hostile Audience: 1 v. Entire Crowd

Answer 5

1.Speech not directed specifically at listener.

2. Content of the message is more important than how it is said.
3. Content will incite violence from the audience to attack the speaker.
4. Government must show that the speech created a clear and present danger of serious substantive evil beyond crowd annoyance.
5. Where a speaker passes the bounds of argument or persuasion and undertakes incitement to a riot the police may arrest him to prevent breach of the peace.

Question 6

4. True Threats 1 v. 1

Answer 6

1. They are statements made where the speaker means to communicate a serious expression of an intent to commit an unlawful act of violence to a specific person or particular group.
2. Reckless disregard is the standard needed that the object of the threat will perceive it as a threat.

example: intimidation; speaker directs a threat to a person or group of persons with intent of placing the victim in fear of bodily harm or death

Question 7

5. Obscenity

Answer 7

1. Sexually oriented speech. Material which deals with sex in a manner appealing to a depraved interest.
2. Stanley v . Georgia: Can possess obscene material in one’s own home
3. Apply the 3-part Miller Test

Question 8

The Miller Test to see if obscenity can be banned

Answer 8

1. Whether the average person, applying contemporary community standards, would find that the work taken as a whole appeals to the prurient interest;
2. Whether the words/ pictures depicts (in a patently offensive way) sexual conduct defined in an applicable state statute? (Look to see if unconstitutional)
3. Whether the work taken as a whole lacks serious literary, artistic, political or scientific value.

Question 9

6. Child Pornography

Answer 9

1. DOES NOT need to pass the Miller Test because is not obscenity. It is sexual conduct that falls short of obscenity.

2.Government interest is safeguarding children.

3. Irrelevant whether the material has a literacy artistic, political or social value
4. Do not extend to computer generated images of child porn and adults who look like children.
5. Government prohibits the sale, distribution, exhibition and of child porn.