Constitution, Society, and Leadership Week 7 Unit 6 Concepts of Rights: Freedom of Expression Christopher Dreisbach, Ph.D. Johns Hopkins University
Dec 17, 2015
Constitution, Society, and Leadership
Week 7 Unit 6Concepts of Rights:
Freedom of Expression
Christopher Dreisbach, Ph.D.Johns Hopkins University
Scope and limits of freedom of expression? Five selections in this Unit
Catherine McKinnon, Not a Moral Issue Cohen v. California, 1971 Village of Skokie v. National Socialist Party of
America PruneYard Shopping Center et al. v. Robbins et
al. Joel Feinberg, Offensive Nuisances
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Point: Pornography is a civil rights issue Unlike obscenity, which is a moral issue
Standard defense of pornography (i) Porn is obscenity (ii) Obscenity is protected speech▪ Under the First Amendment▪ Subject to certain legal restriction
Therefore, (iii) porn should be subject to obscenity laws
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MacKinnon’s response (i) Porn is about power and powerlessness▪ I.e., the status of women, not sex
(ii) Obscenity is▪ About moral good and evil, re: sex▪ Not necessarily harmful
So, (iii) porn ≠ obscenity Porn = “discrimination on the basis of
sex, and as such, a civil rights violation”
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Point: Wearing a jacket that says “Fuck the draft” in court is protected speech under the First Amendment
The Case Cohen arrested for “disturbing the
peace…by…offensive conduct” The conduct (see above) Los Angeles Municipal Court convicts▪ Thirty days in jail
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Court of Appeals of California upholds on 2 grounds▪ “Offensive conduct” means “behavior which
has a tendency to provoke others to acts of violence or to in turn disturb the peace”▪ “It was foreseeable that such conduct might
cause others to rise up and commit a violent act”
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U. S. Supreme Court reverses There was no▪ Act or threat of violence▪ Loud noise
Clearly a free speech case▪ California has no law prohibiting such an act
only in court
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▪ The usual exceptions to free speech do not apply▪ E.g., shouting “fire” in a crowded theater▪ E.g., fighting words
▪ No invasion of privacy Therefore, Cohen’s constitutional right to
free speech trumps California’s statute
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Point: the American Nazi Party has the First Amendment right to march through Skokie (a largely Jewish neighborhood) while wearing swastikas.
The Case American Nazi Party notifies Skokie
Village officials of party’s plan to peaceably assemble in the Village
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They will wear swastikas They will have banners with “White Free
Speech” and the like They will not ▪ Distribute handbills▪ Make derogatory statements▪ Obstruct traffic
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Skokie files complaint with Cook County Circuit Court to ban swastikas Court agrees:▪ Over half of Skokie’s population is Jewish▪ And over 10% are holocaust survivors
▪ Nazis are “dedicated to the incitation of religious and racial hatred”▪ The American Nazi party has copied the
German Nazi party
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Defendants: Freedom of speech and peaceable assembly!
Appellate Court: The party can march, but no swastikas
Illinois Supreme Court: Appellate Court’s decision violates defendant’s First Amendment rights
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Cohen v. California as precedent “Fighting words” doctrine of Chaplinsky
v. New Hampshire (1942) does not apply No direct threat to peace Not enough offense to warrant prior
restraint The party gave advanced notice▪ So no one in Skokie will be forced to watch
the rally
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Point: It is constitutional for California statute to allow people “to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited” This does not violate the shopping center
owner’s▪ Property rights under the 5th and 14th
Amendments▪ Free speech rights under the 1st and 14th
Amendments14
The Case High school students set up table at
PruneYard Shopping Center▪ To solicit support against UN opposition to
Zionism▪ Move to public space at order of security
guard▪ Sue for violation of California statute
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Supreme Court of Santa Clara County sides with PruneYard The students had many other chances to
communicateCalifornia Supreme Court reverses
No damage to PruneYard No major dilution of PruneYard’s rights
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PruneYard Cites Lloyd Corp. v. Tanner (1972):
private shopping center can prohibit handbill distribution on site when handbills have nothing to do with center’s operation▪ USSC: In Lloyd, no state statue permitting it
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Invokes▪ 5th Amendment: Cannot take property without
just compensation▪ USSC: No “taking” in this case
▪ 14th Amendment: No deprivation of property without due process of law▪ USSC: the California law is reasonable in this case
So, no lack of due process
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▪ 1st Amendment: Right not to be forced to use property for someone else’s speech▪ USSC:
By PruneYard’s choice, not limited to personal use of appellants
“No specific message is dictated by the state to be displayed on [PruneYard’s] premises
PruneYard can “disavow any connection with the message by simply posting signs in the area”
Therefore, California Supreme Court’s decision is affirmed
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Point: There are “human experiences that are harmless in themselves yet so unpleasant that we can rightly demand legal protection from them even at the cost of other people’s liberties” Mill’s Harm Principle v. Feinberg's
Offense Principle Offense Principle is a Privacy Principle
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Offense Principle: “the prevention of offensive conduct is properly the state’s business” “Offense” in the sense of wrongful (right-
violating) Offense is less serious than harm▪ At worst a “seriously irritating nuisance”
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Ride on the Bus, e.g. Affronts to the senses Disgust and revulsion Shock to moral, religious, or
patriotic sensibilities Shame, embarrassment
(including vicarious), and anxiety Fear, resentment, humiliation,
anger▪ From empty threats, insults,
mockery, flaunting, and taunting
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Relation between offense and privacy The bus examples “are nuisances making
it difficult to enjoy one’s work or leisure in a locality which one cannot reasonably be expected to leave in the circumstances”
Elizabeth Beardsley’s concept of privacy▪ Right to autonomy▪ Feinberg: Nuisances can be offenses in this sense
▪ Right to selective disclosure
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“The legislative problem of determining when offensive conduct is a public or criminal nuisance could with equal accuracy be expressed as a problem about determining the extent of personal privacy or autonomy”▪ Balance between▪ “Reasonableness of offending conduct”▪ “Degree of seriousness of offense caused”
▪ Boundaries between▪ “Various private domains of persons”▪ “Private domain of [one] and the pubic world”
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