Communication Arts

Overview (from Nexis Uni): "While the United States was at war, defendants circulated leaflets that urged men to refuse to submit to the draft into military service. For attempting to obstruct military recruitment, defendants were convicted of crimes pursuant to the Espionage Act, 40 Stat. 217, 219. Defendants contended that the distribution of the leaflets was activity protected by the First Amendment. The Court admitted that in many places and in ordinary times, the distribution of the leaflets would have been within defendants' constitutional rights. The Court explained, however, that the character of protected speech depended upon the circumstances in which it was expressed. For example, the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. The question in every case was whether the words were used in such circumstances and were of such nature as to create a clear and present danger that they would bring about the substantive evils that Congress had a right to prevent. Because Congress was within its power to punish activity intended to obstruct the draft, the conviction of defendants did not violate the First Amendment."

Overview (from Nexis Uni): "Appellant was convicted under a New Hampshire statute, N.H. Pub. Laws ch. 378, § 2, for using offensive language towards another person in public. Appellant contended that the statute was invalid under U.S. Const. amend. XIV because it placed an unreasonable restraint on freedom of speech and because it was vague and indefinite. In affirming the lower court's decision, the court noted that there were certain well-defined and narrowly limited classes of speech, the prevention and punishment of which had never been thought to raise any Constitutional problem, such as "fighting" words. The lower court declared that the statute's purpose was to preserve public peace, and in appellant's case, the forbidden words were those that had a direct tendency to cause acts of violence. Furthermore, the word "offensive" was not defined in terms of what a particular addressee thought, it was defined as what reasonable men of common intelligence understood as words likely to cause an average addressee to fight. The court held that the statute was narrowly drawn and limited to define and punish specific conduct lying within the domain of the state power."

Overview (from Nexis Uni): "Petitioners, New York and California mail-order businessmen, were convicted of mailing obscene materials under 18 U.S.C.S. § 1461 and Cal. Penal Code § 311 (1955). Petitioners appealed on grounds that the federal statute violated U.S. Const. amend. I, and the state statute violated the Due Process Clause. The Court concluded that obscenity was not within the area of constitutionally protected speech or press. The court determined that the test of whether the materials were obscene was whether, to the average person applying contemporary community standards, the dominant theme of the material taken as a whole appealed to prurient interest, and that the lower courts had applied the proper standard. Because the material was obscene, 18 U.S.C.S. § 1461 was a proper exercise of the postal power delegated to Congress to punish use of the mail for obscene material. The court noted that a lack of precision was not offensive to the requirements of due process, but that the statutes gave adequate notice of what constituted prohibited material. Cal. Penal Code § 311 did not impermissibly interfere with the federal statute, but regulated activity not contemplated under 18 U.S.C.S. § 1461."

Overview (from Nexis Uni): "Petitioner newspaper sought review of a decision upholding a judgment awarding respondent damages in a civil libel action. The Court held that the rule of law applied by the Alabama courts was constitutionally deficient for failure to provide petitioner the safeguards for freedom of speech and of the press that were guaranteed by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct. The Court held that petitioner's constitutional guarantees required a rule that prohibited a public official from recovering damages for a defamatory falsehood relating to the public official's official conduct unless the official proved that the statement was made with actual malice. The Court defined actual malice as knowledge that the defamatory statement was false or made with reckless disregard of whether it was false or not. Further, the Court held that under the proper safeguards, the evidence presented against petitioner was constitutionally insufficient to support the judgment for respondent. Respondent presented no evidence to show petitioner was aware of erroneous statements or was in any way reckless in that regard."

Overview (from Nexis Uni): "Petitioner was a leader of the Ku Klux Klan and was convicted by the Ohio courts after a television news report was aired broadcasting speeches made by petitioner. He was charged with violating Ohio's criminal syndicalism statute, Ohio Rev. Code Ann. § 2923.13, which made it unlawful, inter alia, to advocate crime or methods of terrorism or to voluntarily assembly with any group to teach or advocate doctrines of syndicalism. His conviction was upheld on appeal by the Supreme Court of Ohio. The United States Supreme Court granted review and concluded that, because Ohio's criminal syndicalism statute did not draw a distinction between teaching the need for force or violence and preparing a group for violent action, the statute unconstitutionally intruded on the rights guaranteed by the U.S. Const. amends. I and XIV. As a result, the Court reversed petitioner's conviction because the statute upon which his conviction was based was unconstitutional."

Overview (from Nexis Uni): "Respondent school officials suspended petitioner students from public high school because they wore black armbands to school in protest of the Vietnam War. Petitioners sued respondents under 42 U.S.C.S. § 1983. The trial court dismissed the complaint, upholding the constitutionality of respondents' action on the ground that it was reasonable in order to prevent the disturbance of school discipline. The circuit court affirmed. The Supreme Court reversed because the wearing of armbands was entirely divorced from actually or potentially disruptive conduct by those that participated in it. Petitioners' conduct was closely akin to pure speech which was entitled to comprehensive protection under the First Amendment, absent facts that might reasonably have led school officials to forecast substantial disruption of or material interference with school activities."

Overview (from Nexis Uni): "Appellee argued that the four-letter expletive imprinted on appellant's jacket was "offensive conduct" that might provoke others to violence against appellant. The U.S. Supreme Court disagreed, noting that appellant did not engage in any act of violence, or make any loud noises, when he wore the jacket in the municipal courthouse as an expression of his feelings toward the Vietnam War and the draft. A conviction resting solely upon "speech" could be justified under the First and Fourteenth Amendment only for the manner that the freedom was exercised, but not for the content of the message. The Court observed that the statute was not limited to protecting courtroom decorum, nor directed at erotic messages, and the message did not consist of "fighting words," directed at readers of the message. That the message was thrust upon unsuspecting viewers, who were not captive and could avert their eyes, did not entitle appellee to protect the sensitive by curtailing all such speech. Moreover, no evidence demonstrated that anyone was prepared to strike out at whomever assaulted their sensibilities."

Overview (from Nexis Uni): "In an action in the United States District Court for the Southern District of New York, the United States government sought an injunction against the publication by the New York Times of the contents of a classified study entitled "History of U. S. Decision-Making Process on Viet Nam Policy," and in an action in the United States District Court for the District of Columbia, the government sought a similar injunction against the Washington Post. Each District Court denied injunctive relief. The Court of Appeals for the District of Columbia affirmed the judgment of the District Court for the District of Columbia, but the Court of Appeals for the Second Circuit remanded the case to the District Court for the Southern District of New York for further hearings. (444 F2d 544; 446 F2d 1327.)
On certiorari, the United States Supreme Court affirmed the judgment of the Court of Appeals for the District of Columbia, but reversed the judgment of the Court of Appeals for the Second Circuit and remanded the case with directions to enter a judgment affirming the judgment of the District Court for the Southern District of New York. In a per curiam opinion expressing the view of six members of the court, it was held that the government did not meet its burden of showing justification for the imposition of a prior restraint of expression."

Overview (from Nexis Uni): "Defendant mailed brochures that contained pictures of sexually explicit activities to individuals who had not requested the material, and the individuals notified the police. After a trial, defendant was convicted of violating Cal. Penal Code § 311.2(a) by knowingly distributing obscene matter. The Court defined the standards that were to be used to identify obscene material that a state might regulate without infringing on the First Amendment, applicable to the states through the Fourteenth Amendment. The Court held that the standard to determine whether material was obscene was whether the average person, applying contemporary community standards, not national standards, would find that the work appealed to the prurient interest, whether the work depicted sexual conduct defined by state law, and whether the work lacked serious literary, artistic, or scientific value. The Court vacated and remanded the state court's decision."

Overview (from Nexis Uni): "The students brought an action against petitioners for allegedly violating their rights under U.S. Const. amend. I. The principal did not believe the students' articles were appropriate for publication because the identity of the students in the articles would be easily ascertained. The principal made the decision to eliminate two pages from the newspaper, which removed the articles from publication. The district court found in favor of petitioners but the appellate court reversed. The Supreme Court reversed the appellate court because the Court found that the principal's actions were not unreasonable. The Court found that public schools did not possess all of the attributes of streets and other traditional public forums. The school had an interest in protecting the identity of the students in a pregnancy article as well as maintaining the integrity of student speech allowed in the school newspaper. Therefore, no violations of U.S. Const. amend. I rights occurred."

Overview (from Nexis Uni): "Respondent brought suit against petitioner for libel, slander, and intentional infliction of emotional distress arising from the publication of his caricature in an ad parody. The jury awarded damages on the intentional infliction of emotional distress charge, and the court of appeals affirmed the award. Petitioner sought certiorari claiming the damages were inconsistent with the First Amendment. On review, the Court found that respondent, as a public figure, was required to show that the statements published in the advertisement parody were made with actual malice or reckless disregard of the truth. The Court found that the award of damages was inconsistent with the Court's longstanding refusal to allow damages just because a particular form of speech may have had an adverse emotional impact on the audience. The judgment of the Court of Appeals was accordingly reversed."

Overview (from Nexis Uni): "Respondent participated in a political demonstration where he doused the American flag with kerosene and set it on fire. Respondent was charged and convicted of desecration of the flag. The court of criminal appeals reversed the conviction and held that petitioner could not punish respondent for burning the flag as a part of political speech. Petitioner sought a writ of certiorari to determine whether the conviction was consistent with U.S. Const. amend. I. The Supreme Court found that it was not. The Court held that petitioner's interest in preventing breaches of the peace did not support respondent's conviction because his conduct did not threaten to disturb the peace. Additionally, petitioner's interest in preserving the flag as a symbol of nationhood did not justify the criminal conviction for engaging in political expression. The Supreme Court affirmed the decision of the court of criminal appeals."

Overview (from Nexis Uni): "Respondents, establishments wishing to provide nude dancing as entertainment, and dancers employed at these establishments, claimed Indiana's public indecency statute violated First Amendment's guarantee of freedom of expression, and sued in district court to enjoin enforcement of the statute. The district court concluded that the type of dancing respondents wished to perform was not expressive activity protected by the constitution, and rendered judgment for petitioners. The court of appeals concluded that non-obscene nude dancing performed for entertainment was expression protected by the First Amendment, and that the public indecency statute was an improper infringement of that expressive activity because its purpose was to prevent the message of eroticism and sexuality conveyed by the dancers. The Supreme Court reversed, holding that the statute requiring dancers to wear pasties and G-strings did not violate First Amendment since there was a sufficiently important governmental interest in regulating non-speech element of the expressive conduct, i.e., prevention of public nudity."

Overview (from Nexis Uni): "After Congress passed the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, appellees sought a declaratory judgment deeming it an unconstitutional violation of U.S. Const. amends. I and V. Appellants challenged the ruling of a three-judge federal district court panel that enjoined enforcement of the CDA. The Court upheld the district court's judgment on First Amendment grounds declining to reach the Fifth Amendment question. The Court found that (a) the CDA's vague provisions chilled free speech since speakers could not be certain if their speech was proscribed; (b) the CDA's provisions criminalized legitimate protected speech (including sexually explicit indecent speech) as well as unprotected obscene speech, and thus were overinclusive; (c) since the CDA regulated a fundamental freedom, it must be narrowly tailored; (d) time, place, and manner analysis was inapplicable since the CDA regulated the content of speech, not how it was presented; and (e) the CDA was unconstitutional due to its overbreadth."

Overview (from Nexis Uni): "The state supreme court determined that petitioner City's ordinance banning public nudity violated respondent operator of totally nude dancing establishment's right to freedom of expression under U.S. Const. amend. I. The issue was not moot because even though respondent had ceased operating its establishment, respondent could have decided to operate an establishment and petitioner had an ongoing injury as it was barred from enforcing its ordinance. The ordinance was content-neutral because it regulated conduct alone, did not target nudity that contained an erotic message, and petitioner's interest in preventing harmful secondary effects associated with adult entertainment establishments was not related to the suppression of the exotic message conveyed by nude dancing. Since the ordinance was content-neutral, the O'Brien test for evaluating restrictions on symbolic speech applied. Since petitioner's ordinance satisfied that test, the state supreme court's judgment was reversed."