[SOUND] I'm still talking about the methodology of the First Amendment. I began by discussing the distinction between content based and content neutral regulations. And then I talked about prior restraints, a third concept that I want to talk about here involves what's called vagueness and overbreadth. The Supreme Court has said that laws that regulate speech are unconstitutional if they're impermissibly vague Or over brought. Let me deal with these concepts one at a time. The guard of vagueness, Supreme Court Lankey said, that vague laws violate due process. But the Supreme Court is especially concerned about vague laws that regulate speech. The court worries that they will chill constitutionally protected expression. So the supreme court has said that any low that regulate speech must be clear about what's prohibited and what's allowed. An example, city adopted ordinance prohibiting three or more people for congregating on a city sidewalk and I quote, annoying manner. The Supreme Court declared that unconstitutional, saying, what's annoying and to whom is unconstitutionally vague. Or another example, city adopted an ordinance prohibiting the sale of any book or magazine, quote, tending to corrupt the morals of youth. The ones I most wanted to read as a teenager. The courts said no bookseller could tell what was prohibited and what was allowed. So law was deemed unconstitutionally vague. Overbreadth says, a law is unconstitutionally overbroad If it regulate substantially more speech than the constitution allows to be regulated. Imagine that the government constitutionally can regulate certain speech, but the particular law permits much more than that amount of speech. That law was struck down on overbreadth grounds. Again I'll give you an example, it's case called Schad versus Borough of Mount Ephraim. City adopted an ordinance prohibiting all live entertainment. The city use the ordinance to close down a nude dancing establishment. The Supreme Court said even assuming that nude dancing is not speech protected by the First Amendment, this ordinance is unconstitutionally over broad. It prohibits all plays, all concerts, all athletic events, all live entertainment, and thus was impermissible on overbreadth grounds. So if a law is unconstitutionally vague or overwrought, it violates the First Amendment. A fourth concept with regard to the methodology of the First Amendment concerns conduct that communicates, so called symbolic speech. Often people express their ideas not through words but non verbally. In arm band, picketing a picture on a t-shirt of a hand with the middle finger outstretched. All of these aren't words, but they communicate ideas, and the Supreme Court has said that the word speech in the First Amendment isn't to be taken narrowly as the spoken word, it includes non verbal expression as well. But of course everything that people do could be though is non verbal expression hitting somebody, killing somebody could be regarded as a form of non verbal expression. So the court has struggled say, well, when is nonverbal expression speech and when is it protected by the First Amendment and when not? And the court, in United States versus O'Brien in 1969 said the government can regulate conduct that communicates a message that is an important interest unrelated to suppression of the message. And if the impact on communication is no greater than necessary to achieve the government's purpose. I know that's a long role, to criticize the government credit conduct to communicate is important interest unrelated to suppression on the message. And if the impact and communication is not greater than necessary achieve the government purpose. So let me give you an example. Imagine that after a bar examination some students go and beat up one of the bar examiners as their way of expressing protest on the questions of the bar exam. They try to raise the first amendment as a defense, they're going to lose. The court's going to say that the government has an important interest in stopping assault and battery. It's an interest unrelated to suppression of the message, and the impact is no greater than necessary to achieve the government's purpose. Let me tell you some of the examples where the Supreme Court has ruled on the ability of the government for their conduct that communicates. One of the most famous examples is the Supreme Court has said there's a first amendment right to burn a flag as a form of political protest. This was the holding of Texas versus Johnson back in 1989. When the Republican convention was in Dallas some individuals went burned an American flag and said red, white and blue we spit on you. And they got convicted under a Texas statute, that prohibited flag burning. But the Supreme Court as a 5-4 decision held that there is a First Amendment right to burn an American flag. The court said burning a flag is a powerful way of communicating a message. The supreme court said that the government shouldn't be able to use the flag, only to communicate a message of patriotism, and not a message of descent. By contrast though, the supreme court has said, the government can prohibit men from burning their draft cards. That was holding in United States versus O'Brien in 1969. The court said the government has an important interesting in making sure that men keep their draft cards to facilitate emergency military mobilization. The court said this is an interest unrelated to the suppression of the message, the impact on communication is no greater than necessary to achieve the government's purpose. Or another example, the court has said that the government can prohibit nude dancing. The court, I guess you could say, got to the bare facts, the naked truth, and said that the government has an important interest in decency and can prohibit nude dancing clubs. One more example, one of enormous importance to our political system, the court has said that spending money in election campaigns is a form of speech protected by the First Amendment. And this started with a case in 1976, Buckley versus Valeo. Once the court said that spending money in election campaigns is a form of speech, the question is, well when can the government regulate campaign spending, and when not? The Supreme Court in Buckley said that the government generally can regulate contributions to a candidate or a committee for a candidate. But the government can't regulate expenditures, the amount that a person spends on his or her own on behalf of a candidate. So imagine that this year and I'm speaking in 2016, somebody has $1 million to spend for Donald Trump or Ted Cruz or Hillary Clinton or Bernie Sanders. The government can limit the amount that the person can contribute to the candidate or any committee for the candidate, contributional limits are permissible. But the government can't stop the person from spending the whole $1 million by taking out ads in newspapers and the media. Contribution limits are permissible, expanded true limits are impermissible. Sure you're familiar with the Supreme Court decision. In January 2010 in Citizens United versus Federal Election Commission, there the court held that corporations have the First Amendment right. Spend unlimited amounts of money in independent expenditures. In other words corporations are treated the same as individuals, contribution limits are allowed, expenditure limits are not allowed. And of course, because of Buckley, because of Citizens United, the amounts spent in elections has increased tremendously. The personally wealthy have an enormous advantage. Those who gain corporate support gain an enormous advantage. And it all goes back to the Supreme Court saying that spending money in election campaigns is a form of speech protected by the First Amendment. So by way of free speech methodology, I've talked about four concepts so far. The distinction content-based and content-neutral laws, talked about prior restraints, I discussed vagueness and overbreadth. Now discuss conduct that communicates. One more and final concept that I want to talk about here concerns anonymous speech. The Supreme Court on a number of occasions said the First Amendment protects right of people to speak anonymously. A right to express oneself without disclosing one's identity. An initial case here was McIntyre versus Ohio Elections Commission two decades ago. Ohio had a law that prohibited distribution of anonymous literature with regard to election campaigns. A woman was convicted for distributing an anonymous leaflet with regard to a school board election. The Supreme Court overturned her conviction. The Supreme Court said, there is a First Amendment right to speak anonymously, a First Amendment right to speak without disclosing one's identity. Now, in some areas, the court has permitted laws that require disclosure. Campaign finances are the best example. The Supreme court has generally said the government can require disclosure of who's giving money, who a candidate received money from but that's because of compelling interest the court says, having this information be public for accountability's sake. So that was the next topic I wanted to talk about to guard the freedom of speech. These basic mythological issues, have you examined why we protect speech? Having talked about the methodology of freedom of speech, the third topic I want to address in regard to freedom of speech is the question what types of speech are unprotected or less protected by the first amendment. The Supreme Court has said that there are some categories of speech that are unprotected by the first amendment. So the government can prohibit and punish the expression. There are some categories of speech that are less protected by the first amendment. And I want to review these categories for you. The first category of speech that's unprotected by the First Amendment, so the government can prohibit and punish it, is incitement of illegal activity. The Supreme Court long has said that speech that incites lawlessness is not protected. But the Supreme Court has struggled now for almost a century for trying to figure out the right test for how to determine what's incitement that's not constitutionally protected. The court initially struggled with this in some cases in 1919. They involved the Espionage Acts of 1917 and 18. Then when other things made it a crime to criticized the draft with the war effort. The initial case that come to the Supreme Court was Schenck versus United States. Schenck circulate a leaflet titled, Do Not Submit to Intimidation. In it, he argued that the military draft was involuntary servitude in violation of the Thirteenth Amendment. He was convicted and sentenced to 20 years in prison for this speech or ten years in prison was the actual prison sentence. And the question was was this speech protected by the First Amendment and the Supreme Court in an opinion by Justice Oliver Wendel Holmes said no and upheld this conviction and this ten year prison sentence. Justice Holmes said speech is not absolute, the government can prohibit and punish falsely shouting fire in a crowded theater. Justice Holmes, in a very famous language, said the government can punish speech if there's a clear and present danger of harm. Well, many including me, question how was Schenck's speech a clear and present danger of harm? There was no showing of any likelihood that Schenck's speech was going to cause anybody to resist the draft or not show up for induction. It was ineffectual speech but the Supreme Court upheld it. And the Supreme Court, in a number of cases that decade in the 1920's said the government can punish speech of incitement if there is a clear present danger of harm. The court tried a different approach to defining incitement during the McCarthy era. Key case here was Dennis versus the United States. Dennis involved the Smith Act which made it a federal crime to advocate or conspire to advocate to overthrow the United States government. Some individuals were convicted of violating the Smith Act for organizing to teach the works of Marx, Lenin and Engels. The Supreme Court upheld their conviction of their sentence. Chief Justice Fred Vinson wrote the opinion for the court. He said, when the evil is as grave as the overthrow of the United States government, there doesn't have to be proof that the speech increases the likelihood of it happening. Is that speech protective enough? Should there be constitutional protection for speech that advocates the overthrow of the government? The most recent case to articulate a standard for incitement was Brandenburg versus Ohio in 1969, Brandenburg involved a prosecution of the clan in Ohio under on Ohio law called a criminal syndicalism substantial. So, law prohibited the advocacy of the overthrow the government when industrial organization by force of violence the Supreme Court overturned the conviction. The Supreme Court said, speech can be punished as incitement only if there's a substantial likelihood of imminent illegal activity and only if the speech is directed at closing imminent illegal activity. And so, if somebody gives a speech to a crowd that seems to incite them to violence, the speaker can be punished only if it could be shown that there's a substantial likelihood of imminent illegal activity and if it's shown that the speech is directed at causing imminent illegal activity. Is that far more speech protective test than Sanders, Schenck, or Dennis, what's been the law since 1969.
