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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Week 7 Unit 6Concepts of Rights:

Freedom of Expression