FORMS OF LESSER PROTECTED SPEECH

April 6th - Incitement to illegal activity & Racist speech/Hostile audience/fighting words doctrine
Dennis v. United States
Brandenburg v. Ohio
Chaplinsky v. New Hampshire
Gooding v. Wilson
R.A.V. v. St. Paul

 Dennis v. United States

Facts: In 1948, the leaders of the Communist Part of America were arrested and charged with violating
provisions of the Smith Act. The Act made it unlawful to knowingly conspire to teach and advocate the
overthrow or destruction of the United States government. Party leaders were found guilty and lower
courts upheld the conviction.

Question: Did the Smith Act's restrictions on speech violate the First Amendment?

Rule: In each case the courts must ask whether the gravity of “evil,” discounted by its improbability,
justifies such invasion of free speech as is necessary to avoid danger in order to determine if the
speech is protected or not.

Holding: The Court upheld the convictions of the Communist Party leaders and found that the Smith Act
did not "inherently" violate the First Amendment. In the plurality opinion, the Court held that there was
a distinction between the mere teaching of communist philosophies and active advocacy of those ideas.
Such advocacy created a "clear and present danger" that threatened the government. Given the gravity
of the consequences of an attempted putsch, the Court held that success or probability of success was
not necessary to justify restrictions on the freedom of speech.

Reasoning: The Act is constitutional because it is directed at advocacy rather than discussion. Further,
the gravity of evil posed by the Communist Party justifies such an invasion of free speech in order to
avoid danger. Petitioners intended to overthrow the United States’ Government as soon as the
circumstances permitted. Their conspiracy to organize the Communist Party and to teach and advocate
the overthrow of the Government by force and violence created a “clear and present danger” of such an
attempt. Therefore, the Act is constitutional.

Brandenburg v. Ohio
Facts: Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted
under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or
unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as
assembling "with any society, group, or assemblage of persons formed to teach or advocate the
doctrines of criminal syndicalism."

Question: Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal
activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth
Amendments?

Rule of Law: The constitutional guarantees of free speech and free press do not permit a state to
forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is
directed to inciting or producing imminent lawless action and is likely to produce such action.
Holding:  The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to free
speech. Government cannot constitutionally punish abstract advocacy of force or law violation.

Reasoning: The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if
it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce
such action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while
ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The
failure to make this distinction rendered the law overly broad and in violation of the Constitution.

Chaplinsky v. New Hampshire

Facts: Chaplinsky, a Jehovah's Witness, called a city marshal a "God-damned racketeer" and "a damned
fascist" in a public place. He was arrested and convicted under a state law for violating a breach of the
peace.

Question: Does the application of the statute violate Chaplinsky's freedom of speech protected by the
First Amendment?

Rule of Law. “Fighting words” are not entitled to protection under the First Amendment of the United
States Constitution.

Holding:  No. Some forms of expression--among them obscenity and fighting words--do not convey
ideas and thus are not subject to First Amendment protection. In this case, Chaplinsky uttered fighting
words, i.e., words that "inflict injury or tend to incite an immediate breach of the peace."

Reasoning: Considering the purpose of the First Amendment of the Constitution, it is obvious that the
right to free speech is not absolute under all circumstances. There are some narrowly defined classes of
speech that have never been protected by the First Amendment of the Constitution. These include
“fighting words,” words that inflict injury or tend to excite an immediate breach of the peace. Such
words are of such little expositional or social value that any benefit they might produce is far
outweighed by their costs on social interests in order and morality.
The statute at issue is narrowly drawn to define and punish specific conduct lying within the domain of
government power. Moreover, the Supreme Court of New Hampshire, which is the ultimate arbiter of
the meanings of New Hampshire law, has defined the Statute as applying only to “fighting words”.
Therefore, the Statute does not unconstitutionally impinge upon the right of free speech.

Gooding v. Wilson
Facts: A Vietnam War protester, upon the appearance of police, made "threatening and insulting
remarks." Convicted of violating a Georgia statute against uttering "opprobrious words or abusive
language, tending to cause a breach of the peace," The man claimed the statute was unconstitutionally
vague and overbroad, and in violation of his First and Fourteenth Amendment rights.

Issue: Do all words that society finds offensive constitute "fighting words" within the meaning of
Chaplinsky?

Rule of Law. A statute prohibiting the utterance of certain words must be carefully drawn or be
authoritatively construed to punish only unprotected speech and not be susceptible of application to
protected expression.
Holding: Justice Brennan wrote for the majority.
 Phrases (like opprobrious words and abusive language) must be narrowly defined and narrowly
applied by trial courts so as not to suppress protected speech.
 All words that society finds offensive do not fall under Chaplinsky's "fighting words" doctrine;
"fighting words" are limited to language that has “a direct tendency to cause acts of violence by
the person to whom, individually, the remark is addressed.”
Because the state of Georgia had not interpreted the statute narrowly in all past cases, the law, as
construed by the state of Georgia, was unconstitutional.

Note: "The constitutional guarantees of freedom of speech forbid the States to punish the use of
words or language not within 'narrowly limited classes of speech.' Even as to such a class, however,
because 'the line between speech unconditionally guaranteed and speech which may legitimately be
regulated, suppressed, or punished is finely drawn,' 'in every case the power to regulate must be so
exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.' In other
words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected
speech and not be susceptible of application to protected expression. 'Because First Amendment
freedoms need breathing space to survive, government may regulate in the area only with narrow
specificity.'"

Significance of the case: When combined with the ruling in Cohen, the Court makes it clear that cursing
and vulgar language that might be offensive to most of society is constitutionally protected.

R.A.V. v. St. Paul

Facts: The Petitioner, R.A.V. (Petitioner) and several other teenagers made a cross and burned it inside
the fenced yard of a black family. The city of St. Paul charged Petitioner under the Ordinance which
forbids harmful conduct on the basis of race. Petitioner moved to have this count dismissed on the
ground that the Ordinance was substantially overbroad and impermissibly content-based.

Issue: Whether the Ordinance is substantially overbroad and impermissibly content-based?

Rule of Law: Content-based restrictions, as well as point-of-view restrictions, are presumably invalid.
A content-based distinction within a category of expression that can constitutionally be restricted
violates the First Amendment of the United States Constitution. A city may not prohibit expression of
particular ideas on the basis of the subjects the speech addresses. It may prohibit all fighting words or
even single out “especially offensive mode of expression,” but it may not proscribe particular “messages
of racial, gender, or religious intolerance.”

Holding: The justices held the ordinance invalid on its face because "it prohibits otherwise permitted
speech solely on the basis of the subjects the speech addresses." The First Amendment prevents
government from punishing speech and expressive conduct because it disapproves of the ideas
expressed. Under the ordinance, for example, one could hold up a sign declaring all anti-semites are
motherfuckers but not that all Jews are motherfuckers. Government has no authority "to license one
side of a debate to fight freestyle, while requiring the other to follow the Marquis of Queensbury Rules."

The statute is unconstitutional because it prohibits otherwise protected speech solely on the basis of the
subjects the speech addresses. This ordinance, even narrowly construed to apply only to “fighting
words,” still clearly applies to “fighting words” that insult or provoke violence “on the basis of race.”