Sat. Jul 20th, 2024

 

THE FIRST AMENDMENT ENCYCLOPEDIA

Topics: Legal Terms and Concepts Related to Speech, Press, Assembly, or Petition

  • Actual Malice Actual malice is the legal standard the Supreme Court uses to protect the media in libel cases in determining when public officials or figures may win damages…The words must meet the definition of Actual Malice
  • Anti-SLAPP Law in California Protections and Responsibilities for Publishers
  • Ad Hoc Balancing In First Amendment law, ad hoc balancing involves judging cases on their unique facts, rejecting formulaic tests to determine whether speech is protected or not…
  • Advocacy of Illegal Conduct Mere advocacy of illegal conduct was not protected by the First Amendment until Brandenburg v. Ohio (1969), which created the incitement to imminent lawless…
  • Anonymous Speech The Supreme Court has protected anonymity under the First Amendment, but it has balanced this protection against competing interests, notably in the area of…
  • Appropriation Appropriation is the unauthorized use of a person’s likeness for financial gain. Although appropriation may involve speech, it is not protected by the First…
  • Bad Tendency Test The bad tendency test became the most influential standard used by courts to determine whether criticism of the government during World War I was protected by…
  • The ‘Brandenburg test’ for incitement to violence Test for Incitement to Imminent Lawless Action
  • Captive Audience The captive audience doctrine protects people in certain places and circumstances from unwanted speech. It is an exception to the First Amendment rule…
  • Central Hudson Test The Supreme Court developed the Central Hudson test for determining when government could limit commercial speech without violating the First Amendment…
  • Chilling Effect Chilling effect is the concept of deterring First Amendment free speech and association rights through laws or regulations that appear to target expression…
  • Clear and Present Danger Test In the 20th century, the Supreme Court established the clear and present danger test as the predominate standard for determining when speech is protected by the…
  • Commercial Speech Commercial speech is a form of protected communication under the First Amendment, but it does not receive as much free speech protection as forms of…
  • Community Standards In 1973, the Supreme Court said that community standards must be taken into account in determining whether something was obscene or could be protected by the…
  • Contempt of Court Civil contempt of court can be fixed by obeying court orders. Criminal contempt involves violating the dignity of the court and is more likely to raise First…
  • Content Based A content-based law discriminates against speech based on the substance of what is communicated. In contrast, a content-neutral law applies without regard to…
  • Content Neutral In First Amendment free speech cases, laws that are content neutral apply to all expression without regard to any particular message or substance…
  • Corporate Speech Corporate speech refers to the rights of corporations to advertise their products and to speak to matters of public concern, including by spending money in…
  • Counterspeech Doctrine The counterspeech doctrine, first articulated by Louis Brandeis in First Amendment jurisprudence in 1927, posits that the remedy for false speech is more speech…
  • Criminal Libel In the United States, courts have based decisions regarding slanderous or libelous statements on the First Amendment rights of free speech and freedom of the…
  • Defamation Defamation lawsuits can have a chilling effect on free speech. The Supreme Court first applied First Amendment protection from state libel laws in 1964 in New…
  • Exacting scrutiny Exacting scrutiny is a form of close judicial review used by the U.S. Supreme Court to evaluate restrictions on speech in campaign finance, election law and…
  • Express Advocacy Express advocacy is the use of words like “vote for” in political communications. It’s protected by the First Amendment, but the spending of money on such…
  • Expressive Conduct Expressive conduct is behavior designed to convey a message; its function as speech means that it has increasingly been protected by the First Amendment…
  • Fair Report Privilege The fair report privilege is a state-law defense to defamation claims used by journalists, although the level of protection may vary by state. Under the…
  • Fair Use Fair use allows copyrighted works to be used in ways that would infringe on the copyright. Fair use is a way of preventing copyright from violating of the First…
  • False Light False light invasion of privacy, portraying an individual unflatteringly in words or pictures as someone that person is not, is not protected by the First…
  • False Speech Because the First Amendment is designed to further the truth, it may not protect individuals who engage in libel. Generally, the government does not stand as…
  • Fighting Words The fighting words doctrine, an exception to First Amendment-protected speech, lets government limit speech when it is likely to incite immediate retaliation by…
  • Government Speech Doctrine Under the government speech doctrine, the government has its own rights as speaker that can assert its own messages, immune from challenges of viewpoint…
  • Gravity of the Evil TestThe gravity of the evil test is a refinement of the clear and present danger test to determine when First Amendment free speech may be subject to criminal…
  • Group Libel Since the 1900s, group libel, the defamation of an entire group of people, has coexisted uneasily with the First Amendment’s emphasis on individual speech…
  • Heckler’s Veto A heckler’s veto occurs when the government restricts speech because of the reactions of opponents of the speech. Courts have said hecklers’ vetoes violate…
  • Hicklin Test The Hicklin Test, an obscenity standard originating in England, was initially used in America but did not survive constitutional challenges based on the First…
  • Incitement to Imminent Lawless Action Many Supreme Court cases upholding restrictions on subversive speech have relied on the idea that such speech is forbidden because it incites violence or…
  • Libel and Slander Libel and slander lawsuits can have a chilling effect on free speech. The First Amendment rights of free speech and free press often clash with the interests…
  • Libel-Proof Plaintiff Doctrine The libel-proof plaintiff doctrine is a concept that insulates a defendant from defamation liability for statements made about someone who has no good…
  • Marketplace of Ideas The marketplace of ideas refers to the belief that the test of the truth or acceptance of ideas depends on their competition with one another and not on the…
  • Miller Test The Miller Test is the primary legal test for determining whether expression constitutes obscenity.  It is named after the Supreme Court’s decision in Miller…
  • Narrowly Tailored Laws The term “narrowly tailored” refers to laws regulating First Amendment rights. These must be written to place as few restrictions as possible on First Amendment…
  • Neutral Reportage Privilege Neutral reportage protects from libel claims media that accurately and objectively report newsworthy charges against public figures as part of an ongoing…
  • Neutrality, Speech Laws restr1icting speech are subject to strict scrutiny to ensure they are neutral under the First Amendment. They can not discriminate against speech the…
  • Noerr-Pennington Doctrine The Noerr-Pennington doctrine is a judicially created defense against certain business torts (wrongful acts) for activity that implicates the First Amendment…
  • Overbreadth Overbreadth provides that a regulation of speech can sweep too broadly and prohibit speech protected by the First Amendment as well as non-protected speech…
  • Perjury Perjury is not protected by the First Amendment because it undermines the ability of courts to obtain truthful testimony and to effectively administer justice…
  • Pickering Connick test The Pickering Connick test refers to a longstanding test in First Amendment law used by courts to determine whether a public employer violated an employee’s…
  • Press Access The First Amendment appears to provide a special right for the press, however the Supreme Court has taken a narrow view of the “press clause” and held that the…
  • Prior Restraint Prior restraint allows the government to review the content of printed materials and prevent their publication. Prior restraint usually violates the First…
  • Professional Speech Doctrine The professional speech doctrine is a concept used by lower courts in recent years to define and often limit the free-speech rights of professionals when…
  • Public Figures and Officials To promote First Amendment freedom of speech, libel plaintiffs who are public figures or officials must show a publisher acted with actual malice to collect…
  • Public Forum Doctrine The public forum doctrine is an analytical tool used in First Amendment jurisprudence to determine the constitutionality of speech restrictions implemented on…
  • Qualified Immunity Under the qualified immunity doctrine, government officials could violate a person’s First Amendment rights, but not face liability because the law was not…
  • Rhetorical Hyperbole Rhetorical hyperbole is a First Amendment-based doctrine that the Court has used to provide protection to exaggerated, over-the-top speech in defamation cases…
  • Right of Publicity The right of publicity is a right to legal action, designed to protect the names and likenesses of celebrities against unauthorized exploitation for commercial…
  • Right to Receive Information and Ideas The United States Supreme Court has recognized that the right to receive information and ideas flows from the First Amendment protection of free speech…
  • Right to Respond and Right of Reply The FCC’s right to respond and reply allowed those criticized on radio and TV broadcasts time to share their viewpoint on air to foster First Amendment…
  • Safety Valve Theory Under the safety valve theory of the First Amendment theory, the ability of citizens to freely protest about government deters them from undertaking violent…
  • Scarcity Rationale The scarcity rationale is a legal reasoning that provides for more government regulation and limited recognition of First Amendment freedoms for broadcasters…
  • Secondary Effects Doctrine The secondary effects doctrine is used when content-based laws are aimed at the secondary effects of protected expression. The laws can more easily pass First…
  • Self-government Rationale The self-government rationale justifies free speech protections of the First Amendment by reasoning that self-government depends on a free and robust democratic…
  • Substantial Disruption Test The substantial disruption test is the standard developed by the Supreme Court to determine when public school officials may discipline students for their…
  • Substantial Truth Doctrine The substantial truth doctrine, stemming from the First Amendment, allows individuals to avoid liability in libel claims if the gist of the statement was…
  • Symbolic Speech Symbolic speech consists of nonverbal, nonwritten forms of communication. It is generally protected by the First Amendment unless it causes a specific, direct…
  • Time, Place and Manner Restrictions Time, place and manner restrictions are content-neutral limitations imposed by the government on expressive activity. These restrictions do not usually violate…
  • True Threats A true threat is a statement meant to frighten people into believing they will be seriously harmed by the speaker. True threats are not protected by the First…
  • Vagueness Courts in the United States give particular scrutiny to vague laws relative to First Amendment issues because of their possible chilling effect on protected…
  • Watts Factors The Watts factors refers to three factors the Supreme Court identified in its true-threat decision to distinguish between speech protected by the First…

https://mtsu.edu/first-amendment/encyclopedia/topic/18/legal-terms-and-concepts-related-to-speech-press-assembly-or-petition


Anti-SLAPP Law in California

Freedom of AssemblyPeaceful Assembly1st Amendment Right

 

The First Amendment and Free Speech Rights: FAQs

Answers to frequently asked questions about the constitutional right to freedom of expression and its limits—including how free speech rights apply to social media, students, immigrants, public employees, and military service members.

Americans care deeply about their constitutional rights, especially the right to speak their minds freely, guaranteed under the First Amendment. But there are many misconceptions and questions about free speech rights—including whether those constitutional protections apply to decisions by social media sites to take down content (or ban users entirely) based on what they were posting.This article explores some of the most common questions about the application, limits, and consequences of the First Amendment’s free-speech protections.

What Does the First Amendment Mean by “Speech?”

As humans, we have many different ways of expressing our thoughts, opinions, and beliefs. While the text of the First Amendment refers to “freedom of speech,” courts have recognized that this right includes many different kinds of expression, including:

  • spoken and written words, including social media posts and comments
  • theater, dance, visual art, movies, TV shows, videos, and video games
  • actions that convey a message (known as “symbolic speech”) like burning a flag
  • clothes that express an opinion or demonstrate faith, from T-shirts with slogans to religious headscarves
  • signing a petition, and
  • money, in the form independent spending related to political campaigns (Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)).

As technology changes, more ways of expressing ideas or opinions come under the “speech” umbrella. For instance, some courts have found that the protected speech includes:

  • computer code, to the extent that it conveys information to human beings who understand it
  • “liking” someone else’s social media page, post, or comment; and
  • Google search results.

The First Amendment also protects the right not to speak (often referred to as a protection from “compelled speech”). In classic examples from U.S. Supreme Court opinions, this means that students may stay silent during the pledge of allegiance (West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)), and drivers may refuse to display a state’s “Live Free or Die” motto on their license plates (Wooley v. Maynard, 430 U.S. 705 (1977).)

Does the First Amendment Prohibit Speech Restrictions by Private Companies Like Social Media Providers?

Originally, the language in the First Amendment (“Congress shall make no law … abridging freedom of speech”) applied only to the federal government. But as a result of several U.S. Supreme Court decisions in the early 20th century, the First Amendment now applies to actions by federal, state, and local government to outlaw speech (“prior restraint” in legalese) or to punish people after they’ve already expressed their views. Because that includes government agencies and officials, it might be a violation of free speech rights when a police department or elected official bans users from social media accounts for their opinions. (Learn more about when government officials may block critics from social media.)

As a general rule, however, private businesses, organizations, and individuals are free to limit speech however they wish, as long as they aren’t violating contracts or other laws (including federal antidiscrimination laws or state laws protecting political activity by employees). For example, it’s usually not considered a violation of the First Amendment if:

  • a private employer fires a worker for expressing political opinions the boss doesn’t like
  • a private religious school disciplines a student for wearing a T-shirt with a pro-LGBT message
  • a private media company won’t publish content that doesn’t align with the owner’s political views
  • a web hosting company refuses to host a platform that embraces white supremacy or allows calls to violence and insurrection, or
  • a social media company enforces its policies on acceptable content by taking down posts or suspending users’ accounts.

Can Big Tech Companies Be Treated Like State Actors When They Restrict Free Speech?

As big tech has become more and more powerful, some commentators have called for the largest tech companies to be treated like government for purposes of the First Amendment, thus limiting their ability to restrain social media users’ speech. We heard more of these calls in the wake of actions by Twitter, Facebook, Snapchat and other providers to suspend or permanently ban Donald Trump’s social media accounts, based on fears that he would incite further violence following the insurrection at the Capitol on January 6, 2021.

Using the analogy of a company town, where a private corporation acts like government, these critics point to big tech’s control over the public conversation. This “state actor” argument is based on a number of U.S. Supreme Court decisions holding that constitutional protections against government actions apply when private companies exercise “powers traditionally exclusively reserved to the State” (Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1975)).

So far, however, courts have found that the First Amendment does not prohibit social media providers from taking down users’ posts. Although the Supreme Court has characterized social media as “the modern public square” (Packingham v. North Carolina, 137 S. Ct. 1730 (2017)), it hasn’t directly addressed this question yet.

Does the First Amendment and Federal Law Protect Actions by Social Media?

Free speech arguments cut two ways. While some people complain that social media companies violate their constitutional rights by taking down posts or suspending their accounts, the companies argue that it would violate their own free speech rights if the government tried to regulate their decisions about what to publish on their sites. Not only that, but part of a federal law known as “Section 230” (47 U.S.C. § 230) protects social media providers from civil lawsuits for their good-faith actions to restrict access to objectionable content. (Another part of the law gives them immunity for content that users post on their platforms.)

Debates will continue over big tech’s ability to control online speech. Under current law, however, social media companies are free to apply their private moderation policies to restrict users’ access or ability to post content on their platforms.

What Kind of Speech Isn’t Protected Under the First Amendment?

As with all constitutional rights, there are limits to freedom of expression. Over the years, the U.S. Supreme Court has carved out a few exceptions to First Amendment protections, including speech that is intended to incite the listeners to take immediate illegal action, threatens someone with immediate violence, or meets the strict legal definition of obscenity. But the Court hasn’t recognized a general exception for hate speech. (Learn more about the exceptions to free speech protections and how the First Amendment applies to hate speech.)

Balancing Freedom of Expression With Other Constitutional Rights

Sometimes, free-speech rights compete with other constitutional rights—which can require a balancing act to make sure the different rights involved are protected as much as possible. For instance, judges may issue gag orders in order to control publicity during trials and protect the constitutional right to a fair trial with an impartial jury. But these orders shouldn’t be so broad that they unnecessarily limit free-speech rights.

Do Some People Have Limited Free Speech Rights?

Not all U.S. residents enjoy the same level of constitutional protection when they speak their minds. For different reasons, the Supreme Court has given government more authority than usual to restrict speech by public school students, public employees, and prisoners. Also, while legal immigrants have the same basic right to freedom of expression as citizens, some people who aren’t legal permanent residents—including undocumented immigrants and temporary visa holders—may face certain limits on their freedom of expression. (Learn more about immigrants’ free speech rights.)

K-12 Public School Students

As the Supreme Court has said, public school students don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969)). But the Court also recognized that First Amendment rights for children in public K-12 schools may be more limited than for adults in other settings, because schools have an obligation to keep students safe and provide a good learning environment. (Learn more about freedom of expression for students.)

Members of the U.S. Military

People don’t lose all of their First Amendment rights when they join the military. But when courts look at whether military rules violate those rights, they generally apply different standards than they would in civilian contexts. As the U.S. Supreme Court has reasoned, “the military is, by necessity, a specialized society separate from civilian society,” with special disciplinary needs (Parker v. Levy, 417 U.S. 733 (1974)). So, for instance, courts have upheld military discipline against service members for speech that advocates disloyalty to the United States or expressive conduct that is disrespectful to the flag—both of which would generally be protected under the First Amendment for civilians.

Public Employees

Similarly, civilian employees don’t give up all of their free speech rights just because they work for the government. Still, public employers may discipline or fire employees for what they say, write, or post online in certain circumstances. The Supreme Court has set out guidelines for deciding when government employees have the right to speak their minds without interference from their bosses, depending on the context and content of their communications.

  • On-duty communications. The First Amendment doesn’t protect anything employees say or write as part of their job. This is true even when they’re communicating about important issues like government misconduct. (Garcetti v. Ceballos, 547 U.S. 410 (2006).) However, even when public employees are talking about information they learned at work, the Garcetti rule won’t apply if their communications aren’t within the scope of their official duties. Some states have laws protecting whistleblowers, but their safeguards vary.
  • Off-duty speech on public issues. The First Amendment might protect public employees when they speak out as private citizens about matters that would concern the general population—such as corruption, inefficiency, mismanagement, or discriminatory policies at governmental agencies. In a situation like this, courts will balance the employee’s free speech rights against the employer’s need to carry out its public service efficiently and without disruption. In practice, however, courts generally defer to the public employers’ judgment. As a result, public employees are often disciplined or fired for off-duty posts on their private social media accounts that shed a bad light on the agencies they work for.
  • Public employees’ private gripes. Government employees generally don’t have a constitutional right to air their private grievances with their employers, particularly when their speech undermines office relationships and the boss’s authority.

Prisoners

Prisoners have the right to express their political views, but prison and jail administrators have a lot of leeway to restrict how and when inmates can express themselves and what they can read. Those restrictions must be related to “neutral” goals like security rather than an attempt to censor certain viewpoints. For instance, prisons can censor incoming mail, limit and monitor phone calls, and prevent prisoners from books that are dangerous or pornographic. source


Personalizing First Amendment Jurisprudence:
Shifting Audiences & Imagined Communities to Determine Message Protection in Obscenity, Fighting Words, and Defamation- Download PDF University of Florida Journal of Law & Public Policy


Foundations of Free Expression: Historic Cases

Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed.2d. (1919): Justice Oliver Wendell Holmes stated in this case his famous aphorism about “falsely shouting fire in a theatre” and set forth a “clear and present danger test” to judge whether speech is protected by the First Amendment. “The question,” he wrote, “is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the right to prevent. It is a question of proximity and degree.” The Supreme Court affirmed the convictions of the defendants for conspiring to violate certain federal statutes by attempting to incite subordination in the armed forces and interfere with recruitment and enlistment. During wartime, the defendants mailed to new recruits and enlisted men leaflets that compared military conscription to involuntary servitude and urged them to assert constitutional rights.

Whitney v. California, 274 U. S. 357 (1927): Since Anita Whitney did not base her defense on the First Amendment, the Supreme Court, by a 7 to 2 decision, upheld her conviction of being found guilty under the California’s 1919 Criminal Syndicalism Act for allegedly helping to establish the Communist Labor Party, a group the state argued taught the violent overthrow of government.

“The Whitney case is most noted for Justice Louis D. Brandeis’s concurrence, which many scholars have lauded as perhaps the greatest defense of freedom of speech ever written by a member of the high court.”–Basic Readings in U.S. Democracy. Below–all quotes from Justice Brandeis–are a few reasons why.

Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.

Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears.

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931): In this case, the Supreme Court interpreted the First and Fourteenth Amendments to forbid “previous restraints” upon publication of a newspaper. “Previous restraints”–or in current terminology, “prior restraints–suppress the freedom of the press to publish without obstruction, and recognize that lawsuits or prosecutions for libel are “subsequent punishments.” The Court invalidated as an infringement of constitutional guarantees a Minnesota statue allowing specified government officials or private citizens to maintain a lawsuit in the name of the State to suppress a public nuisance and enjoin the publication of future issues of a “malicious, scandalous and defamatory newspaper, magazine or other periodical,” unless the publisher can prove “the truth was published with good motives and for justifiable ends.”

Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d. 430 (1969): The Supreme Court established the modern version of the “clear and present danger” doctrine, holding that states only could restrict speech that “is directed to inciting or producing imminent lawless action, and is likely to incite or produce such action.”

 

more on Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1st Amendment

 

The Right to Read Freely

Evans v. Selma Union High School District of Fresno County, 222 P. 801 (Ca. 1924): The California State Supreme Court held that the King James version of the Bible was not a “publication of a sectarian, partisan, or denominational character” that a State statute required a public high school library to exclude from its collections. The “fact that the King James version is commonly used by Protestant Churches and not by Catholics” does not “make its character sectarian,” the court stated. “The mere act of purchasing a book to be added to the school library does not carry with it any implication of the adoption of the theory or dogma contained therein, or any approval of the book itself, except as a work of literature fit to be included in a reference library.”

Rosenberg v. Board of Education of City of New York, 92 N.Y.S.2d 344 (Sup. Ct. Kings County 1949): After considering the charge that Oliver Twist and the Merchant of Venice are “objectionable because they tend to engender hatred of the Jew as a person and as a race,” the Supreme Court, Kings County, New York, decided that these two works cannot be banned from the New York City schools, libraries, or classrooms, declaring that the Board of Education “acted in good faith without malice or prejudice and in the best interests of the school system entrusted to their care and control, and, therefore, that no substantial reason exists which compels the suppression of the two books under consideration.”

Todd v. Rochester Community Schools, 200 N.W.2d 90 (Mich. Ct. App. 1972): In deciding that Slaughterhouse-Five could not be banned from the libraries and classrooms of the Michigan schools, the Court of Appeals of Michigan declared: “Vonnegut’s literary dwellings on war, religion, death, Christ, God, government, politics, and any other subject should be as welcome in the public schools of this state as those of Machiavelli, Chaucer, Shakespeare, Melville, Lenin, Joseph McCarthy, or Walt Disney. The students of Michigan are free to make of Slaughterhouse-Five what they will.”

Minarcini v. Strongsville (Ohio) City School District, 541 F.2d 577 (6th Cir. 1976): The Strongsville City Board of Education rejected faculty recommendations to purchase Joseph Heller’s Catch-22 and Kurt Vonnegut’s God Bless You, Mr. Rosewater and ordered the removal of Catch-22 and Vonnegut’s Cat’s Cradle from the library. The U.S. Court of Appeals for the Sixth Circuit ruled against the School Board, upholding the students’ First Amendment right to receive information and the librarian’s right to disseminate it. “The removal of books from a school library is a much more serious burden upon the freedom of classroom discussion than the action found unconstitutional in Tinker v. Des Moines School District.”

Right to Read Defense Committee v. School Committee of the City of Chelsea, 454 F. Supp. 703 (D. Mass. 1978): The Chelsea, Mass. School Committee decided to bar from the high school library a poetry anthology, Male and Female under 18, because of the inclusion of an “offensive” and “damaging” poem, “The City to a Young Girl,” written by a fifteen-year-old girl. Challenged in U.S. District Court, Joseph L. Tauro ruled: “The library is ‘a mighty resource in the marketplace of ideas.’ There a student can literally explore the unknown, and discover areas of interest and thought not covered by the prescribed curriculum. The student who discovers the magic of the library is on the way to a life-long experience of self-education and enrichment. That student learns that a library is a place to test or expand upon ideas presented to him, in or out of the classroom. The most effective antidote to the poison of mindless orthodoxy is ready access to a broad sweep of ideas and philosophies. There is no danger from such exposure. The danger is mind control. The committee’s ban of the anthology Male and Female is enjoined.”

Salvail v. Nashua Board of Education, 469 F. Supp. 1269 (D. N.H. 1979): MS magazine was removed from a New Hampshire high school library by order of the Nashua School Board. The U.S. District Court decided for the student, teacher, and adult residents who had brought action against the school board, the court concluding: “The court finds and rules that the defendants herein have failed to demonstrate a substantial and legitimate government interest sufficient to warrant the removal of MS magazine from the Nashua High School library. Their action contravenes the plaintiffs’ First Amendment rights, and as such it is plainly wrong.”

Loewen v. Turnipseed, 488 F. Supp. 1138 (N.D. Miss. 1980): When the Mississippi Textbook Purchasing Board refused to approve Mississippi: Conflict and Change for use in Mississippi public schools, on the grounds that it was too concerned with racial matters and too controversial, the authors filed suit. U.S. District Judge Orma R. Smith ruled that the criteria used were not justifiable grounds for rejecting the book. He held that the controversial racial matter was a factor leading to its rejection, and thus the authors had been denied their constitutionally guaranteed rights of freedom of speech and the press.

Kreimer v. Bureau of Police for Morristown, 958 F.2d 1242 (3d Cir. 1992): In detailed analysis, the court of appeals held that a municipal public library was a limited public forum, meaning open to the public for the specified purposes of exercising their First Amendment rights to read and receive information from library materials. Such exercise could not interfere with or disrupt the library’s reasonable rules of operation. The court then upheld three library rules which: 1) required patrons to read, study, or otherwise use library materials while there; 2) prohibited noisy or boisterous activities which might disturb other patrons; and 3) permitted the removal of any patron whose offensive bodily hygiene was a nuisance to other patrons.

Case v. Unified School District No. 233, 908 F. Supp. 864 (D. Kan. 1995): When the Olathe, Kansas, School Board voted to remove the book Annie on My Mind, a novel depicting a lesbian relationship between two teenagers, from the district’s junior and senior high school libraries, the federal district court in Kansas found they violated the students’ rights under the First Amendment to the United States Constitution and the corresponding provisions of the Kansas State Constitution. Despite the fact that the school board testified that they had removed the book because of “educational unsuitability,” which is within their rights under the Pico decision, it became obvious from their testimony that the book was removed because they disapproved of the book’s ideology. In addition, it was found that the school board had violated their own materials selection and reconsideration policies, which weighed heavily in the judge’s decision.

Campbell v. St. Tammany Parish School Board, 64 F.3d 184 (5th Cir. 1995): Public school district removed the book Voodoo and Hoodoo, a discussion of the origins, history, and practices of the voodoo and hoodoo religions that included an outline of some specific practices, from all district library shelves. Parents of several students sued and the district court granted summary judgment in their favor. The court of appeals reversed, finding that there was not enough evidence at that stage to determine that board members had an unconstitutional motivation, such as denying students access to ideas with which board members disagreed; the court remanded the case for a full trial at which all board members could be questioned about their reasons for removing the book. The court observed that “in light of the special role of the school library as a place where students may freely and voluntarily explore diverse topics, the school board’s non-curricular decision to remove a book well after it had been placed in the public school libraries evokes the question whether that action might not be an attempt to ‘strangle the free mind at its source.'” The court focused on some evidence that school board members had removed the book without having read it or having read only excerpts provided by the Christian Coalition. The parties settled the case before trial by returning the book to the libraries on specially designated reserve shelves.

Sund v. City of Wichita Falls, Texas, 121 F. Supp. 2d 530 (N.D. Texas, 2000): City residents who were members of a church sought removal of two books, Heather Has Two Mommies and Daddy’s Roommate, because they disapproved of the books’ depiction of homosexuality. The City of Wichita Falls City Council voted to restrict access to the books if 300 persons signed a petition asking for the restriction. A separate group of citizens filed suit after the books were removed from the children’s section and placed on a locked shelf in the adult area of the library. Following a trial on the merits, the District Court permanently enjoined the city from enforcing the resolution permitting the removal of the two books. It held that the City’s resolution constituted impermissible content-based and viewpoint based discrimination; was not narrowly tailored to serve a compelling state interest; provided no standards or review process; and improperly delegated governmental authority over the selection and removal of the library’s books to any 300 private citizens who wish to remove a book from the children’s area of the Library.

Counts v. Cedarville School District, 295 F.Supp.2d 996 (W.D. Ark. 2003): The school board of the Cedarville, Arkansas school district voted to restrict students’ access to the Harry Potter books, on the grounds that the books promoted disobedience and disrespect for authority and dealt with witchcraft and the occult. As a result of the vote, students in the Cedarville school district were required to obtain a signed permission slip from their parents or guardians before they would be allowed to borrow any of the Harry Potter books from school libraries. The District Court overturned the Board’s decision and ordered the books returned to unrestricted circulation, on the grounds that the restrictions violated students’ First Amendment right to read and receive information. In so doing, the Court noted that while the Board necessarily performed highly discretionary functions related to the operation of the schools, it was still bound by the Bill of Rights and could not abridge students’ First Amendment right to read a book on the basis of an undifferentiated fear of disturbance or because the Board disagreed with the ideas contained in the book.

CITIZENS UNITED v. FEDERAL ELECTION COMMISSION – 1st Amendment In the landmark 2010 Citizens United v. Federal Election Commission case, the Supreme Court recognized that “[l]aws enacted to control or suppress speech may operate at different points in the speech process.”

If a law restricts filming itself, one could argue that such a law “restricts a medium of expression—the use of a common instrument of communication—and thus an integral step in the speech process.”

In other words, by prohibiting someone from filming, the government is arguably prohibiting future speech (sharing or posting the video) by suppressing it at the first point in the speech process (the act of filming itself). 

The Court ultimately held in this case that the anti corruption interest is not sufficient to displace the speech in question from Citizens United and that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.


Illinois Supreme Court Strikes Down Eavesdropping Statute as Unconstitutional

People v. Melongo, 2014 IL 114852

This blog recently reported on developments in California regarding potential liability for businesses under California’s Call Recording and Monitoring Privacy Laws for recording or monitoring inbound and outbound telephone calls with customers or employees as well certification pitfalls to such cases.  Other states, such as Illinois, have similar criminal statutes related to the recording or monitoring of such calls.  In Illinois, for example, it is a crime for any person to record any conversation or electronic communication unless done so with the permission and consent of all parties to the communication.  See 720 ILCS 5/14-2.  While recent California opinions have curtailed the ability for plaintiffs to bring class action complaints under California’s privacy laws, the Illinois Supreme Court has gone even further.  In a pair of opinions recently released by the Illinois Supreme Court, People v. Clark and People v. Melongo, the Illinois eavesdropping law was declared unconstitutional as violating the overbreadth doctrine under the First Amendment of the United States Constitution.


 

American Civil Liberties Union of Illinois v. Alvarez

 several U.S. Circuit Courts of Appeals have found that the First Amendment protects the act of video recording itself, not just disseminating the recording. The Seventh Circuit Court of Appeals, for example, has held that “[t]he act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording.” Am. C.L. Union of Illinois v. Alvarez, 679 F.3d 583, 600 (7th Cir. 2012). 


in Glik v. Cunniffe, the First Circuit Court of Appeals held that a private individual has the right to record police officers in public, subject to reasonable time, place, and manner restrictions.


See also: Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982)

Smith v. Board of School Commissioners of Mobile (Ala.) County, 827 F.2d 684 (11th Cir. 1987)

Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987)

Virgil v. School Board of Columbia County, 862 F.2d 1517 (11th Cir. 1989)

American Library Association v. U.S. Department of Justice and Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d. 874 (1997)

Mainstream Loudoun, et al. v. Board of Trustees of the Loudoun County Library, 24 F.Supp.2d 552 (E.D. of Va. 1998)

Freedom of Expression in Schools

Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d. 731 (1969): In this seminal case considering the First Amendment rights of students (John F. Tinker, Christopher Eckhardt, and Mary Beth Tinker) who were expelled after they wore black armbands to school in symbolic protest of the Vietnam War, the Supreme Court held that students “do not shed their constitutional rights at the schoolhouse gate” and that the First Amendment protects public school students’ rights to express political and social views.

Zykan v. Warsaw (Indiana) Community School Corporation and Warsaw School Board of Trustees, 631 F.2d 1300 (7th Cir. 1980): A student brought suit seeking to reverse school officials’ decision to “limit or prohibit the use of certain textbooks, to remove a certain book from the school library, and to delete certain courses from the curriculum.” The district court dismissed the suit. On appeal, the Court of Appeals for the Seventh Circuit ruled that the school board has the right to establish a curriculum on the basis of its own discretion, but it is forbidden to impose a “pall of orthodoxy.” The right of students to file complaints was recognized, but the court held that the students’ claims “must cross a relatively high threshold before entering upon the field of a constitutional claim suitable for federal court litigation.”

Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982): In 1975, three school board members sought the removal of several books determined objectionable by a politically conservative organization. The following February, the board gave an “unofficial direction” that the books be removed from the school libraries, so that board members could read them. When the board action attracted press attention, the board described the books as “anti-American, anti-Christian, anti-Semitic, and just plain filthy.” The nine books that were the subject of the lawsuit were Slaughterhouse-Five by Kurt Vonnegut, Jr.; The Naked Ape by Desmond Morris; Down These Mean Streets by Piri Thomas; Best Short Stories of Negro Writers edited by Langston Hughes; Go Ask AliceLaughing Boy by Oliver LaFarge; Black Boy by Richard Wright; A Hero Ain’t Nothin’ But a Sandwich by Alice Childress; and Soul on Ice by Eldrige Cleaver.

The board appointed a review committee that recommended that five of the books be returned to the shelves, two be placed on restricted shelves, and two be removed from the library. The full board voted to remove all but one book. After years of appeals, the U.S. Supreme Court upheld (5-4) the students’ challenge to the board’s action. The Court held that school boards do not have unrestricted authority to select library books and that the First Amendment is implicated when books are removed arbitrarily. Justice Brennan declared in the plurality opinion: “Local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”

Smith v. Board of School Commissioners of Mobile (Ala.) County, 827 F.2d 684 (11th Cir. 1987): Parents and other citizens brought a lawsuit against the school board, alleging that the school system was teaching the tenets of an anti-religious religion called “secular humanism.” The complainants asked that forty-four different elementary through high school level textbooks be removed from the curriculum. After an initial ruling in a federal district court in favor of the plaintiffs, the U.S. Court of Appeals for the Eleventh Circuit ruled that as long as the school was motivated by a secular purpose, it didn’t matter whether the curriculum and texts shared ideas held by one or more religious groups. The Court found that the texts in question promoted important secular values (tolerance, self-respect, logical decision making) and thus the use of the textbooks neither unconstitutionally advanced a nontheistic religion nor inhibited theistic religions.

Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987): Parents and students brought this action challenging the mandatory use of certain textbooks on the ground that the texts promoted values offensive to their religious beliefs. The U.S. Court of Appeals for the Sixth Circuit rejected the plaintiffs’ claim, finding that the Constitution does not require school curricula to be revised substantially in order to accommodate religious beliefs.

Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988): After a school principal removed two pages containing articles, among others, on teenage pregnancy and the impact of divorce on students from a newspaper produced as part of a high school journalism class, the student staff filed suit claiming violation of their First Amendment rights. The principal defended his action on the grounds that he was protecting the privacy of the pregnant students described, protecting younger students from inappropriate references to sexual activity and birth control, and protecting the school from a potential libel action.

The Supreme Court held that the principal acted reasonably and did not violate the students’ First Amendment rights. A school need not tolerate student speech, the Court declared, “that is inconsistent with its ‘basic educational mission,’ even though the government could not censor similar speech outside the school.” In addition, the Court found the newspaper was part of the regular journalism curriculum and subject to extensive control by a faculty member. The school, thus, did not create a public forum for the expression of ideas, but instead maintained the newspaper “as supervised learning experience for journalism students.” The Court concluded that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” The Court strongly suggested that supervised student activities that “may fairly be characterized as part of the school curriculum,” including school-sponsored publications and theatrical productions, were subject to the authority of educators. The Court cautioned, however, that this authority does not justify an educator’s attempt “to silence a student’s personal expression that happens to occur on the school premises.

Virgil v. School Board of Columbia County, 862 F.2d 1517 (11th Cir. 1989): This case presented the question of whether the First Amendment prevents a school board from removing a previously approved textbook from an elective high school class because of objections to the material’s vulgarity and sexual explicitness. The U.S. Circuit Court of Appeals concluded that a school board may, without contravening constitutional limits, take such action when the removal decision was “reasonably related” to the “legitimate pedagogical concern” of denying students access to “potentially sensitive topics.” The written “stipulation concerning Board Reasons” cites explicit sexuality and excessively vulgar language in two selections contained in Volume 1, The Humanities: Cultural Roots and Continuities as the basis for removal of this textbook. The two selections are Chaucer’s The Miller’s Tale and Aristophanes’s Lysistrata.

Romano v. Harrington, 725 F.Supp. 687 (E.D. N.Y. 1989): The U.S. District Court found in favor of a faculty adviser to a high-school newspaper who claimed a violation of the First and Fourteenth Amendments when fired following the newspaper’s publication of a student’s article opposing the federal holiday for Martin Luther King, Jr. The Court held that educators may exercise greater editorial control over what students write for class than what they voluntarily submit to extracurricular publications.

Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996): Tenured professor of English was disciplined for violating the college’s sexual harassment policy against creating a “hostile learning environment” for his in-class use of profanity, and discussions of sex, pornography, obscenity, cannibalism, and other controversial topics in a confrontational, devil’s advocate style. The court held the policy unconstitutionally vague as applied to Cohen’s in-class speech, calling it a “legalistic ambush.” In-class speech did not fall within the policy’s core definition of sexual harassment and Cohen, who had used this apparently sound and proper teaching style for year, did not know the policy would be applied to him or his teaching methods.

See also: Evans v. Selma Union High School District of Fresno County, 222 P. 801 (Ca. 1924)

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)

Rosenberg v. Board of Education of City of New York, 92 N.Y.S.2d 344 (Sup. Ct. Kings County 1949)

Todd v. Rochester Community Schools, 200 N.W.2d 90 (Mich. Ct. App. 1972)

Minarcini v. Strongsville (Ohio) City School District, 541 F.2d 577 (6th Cir. 1976)

Right to Read Defense Committee v. School Committee of the City of Chelsea, 454 F. Supp. 703 (D. Mass. 1978)

Salvail v. Nashua Board of Education, 469 F. Supp. 1269 (D. N.H. 1979)

Loewen v. Turnipseed, 488 F. Supp. 1138 (N.D. Miss. 1980)

Case v. Unified School District No. 233, 908 F. Supp. 864 (D. Kan. 1995)

Campbell v. St. Tammany Parish School Board, 64 F.3d 184 (5th Cir. 1995)

Counts v. Cedarville School District, 295 F.Supp.2d 996 (W.D. Ark. 2003)

Minors’ First Amendment Rights

American Amusement Machine Association, et al., v. Teri Kendrick, et al., 244 F.3d 954 (7th Cir. 2001); cert.denied, 534 U.S. 994; 122 S. Ct. 462; 151 L. Ed. 2d 379 (2001): Enacted in July 2001, an Indianapolis, Ind., city ordinance required video game arcade owners to limit access to games that depicted certain activities, including amputation, decapitation, dismemberment, bloodshed, or sexual intercourse. Only with the permission of an accompanying parent or guardian could children seventeen years old and younger play these types of video games. On March 23, 2001, a three-judge panel of the Seventh Circuit Court of Appeals reversed and remanded the trial court’s decision stating that “children have First Amendment rights.” On Monday, October 29, 2001, the U.S. Supreme Court denied certiorari.

Interactive Digital Software Association, et al. v. St. Louis County, Missouri, et al., 329 F.3d 954(8th Cir. 2003): St. Louis County passed an ordinance banned selling or renting violent video games to minors, or permitting them to play such games, without parental consent, and video game dealers sued to overturn the law. The Court of Appeals found the ordinance unconstitutional, holding that depictions of violence alone cannot fall within the legal definition of obscenity for either minors or adults, and that a government cannot silence protected speech for children by wrapping itself in the cloak of parental authority. The Court ordered the lower court to enter an injunction barring enforcement of the law, citing the Supreme Court’s recognition in Erznoznik v. Jacksonville, 422 U.S. 205, 213-14, 45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975) that “speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them. In most circumstances, the values protected by the First Amendment are no less applicable when the government seeks to control the flow of information to minors.”

See also: West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)

Ginsberg v. New York, 390 U.S. 629 (1968)

Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d. 731 (1969)

Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982)

Free Press

New York Times Company v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d. 822 (1971): In the “Pentagon Papers” case, the U.S. government attempted to enjoin the New York Times and the Washington Post from publishing classified documents concerning the Vietnam War. Applying the doctrine of prior restraint from Near v. Minnesota, the Court found that the claims that publication of the documents would interfere with foreign policy and prolong the war were too speculative, and could not overcome the strong presumption against prior restraints.

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d. 41 (1988): Hustler Magazine published a parody of a liquor advertisement in which Rev. Jerry Falwell described his “first time” as a drunken encounter with his mother in an outhouse. A unanimous Supreme Court held that a public figure had to show actual malice in order to recover for intentional infliction of emotional distress as a result of a parody in a magazine. The Court held that political cartoons and satire such as this parody “have played a prominent role in public and political debate. And although the outrageous caricature in this case “is at best a distant cousin of political cartoons,” the Court could see no standard to distinguish among types of parodies that would not harm public discourse, which would be poorer without such satire.

Simon & Schuster, Inc. v. Members of New York State Crime Victims Board, 502 U.S. 105, 112 S.Ct. 501, 116 L.Ed.2d. 476 (1991): The Supreme Court struck down New York’s “Son of Sam Law,” which required book publishers to turn over to the state, any proceeds from a book written by any person convicted of a crime, related to or about that crime. The Court said the law impermissibly singled out income only from the prisoner’s expressive activity, and then only expressive activity relating to his crime, without necessarily compensating any victims of those crimes. The Court agreed that many important books–including The Autobiography of Malcolm X, Thoreau’s Civil Disobedience, and works by Martin Luther King–perhaps might not have been published with such a law in place.

See also: The New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d. 686 (1964)

Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d. 789 (1974)

The Right to Dissent

West Virginia State Board of Education v. Barnette, 319 U.S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943): In 1940, the West Virginia Board of Education issued regulations requiring every schoolchild to participate daily in a salute to the flag of the United States. The Barnette children, all members of the Jehovah’s Witnesses, refused to participate in the flag salute, consistent with the tenets of their religious beliefs, and were expelled from school. The Supreme Court struck down the regulation on the grounds that the First Amendment barred any rule compelling an individual to salute the flag or participate in the Pledge of Allegiance. In strong language, the Court affirmed the right to dissent: “But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”

Wooley v. Maynard, 430 U.S. 705 (1977): A Jehovah’s Witness objected to New Hampshire’s state motto—“Live Free or Die”—on his license plate. Because the saying went against his conscience, he did not believe the state had a right to force him to advertise something the state believes in, but he does not. When the state discovered he had covered up the motto on his license plate, they prosecuted him. The Supreme Court agreed with him, saying, “We begin with the proposition that the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.” In addition, the Court said, “The fact that most individuals agree with the thrust of New Hampshire’s motto is not the test; most Americans also find the flag salute acceptable. The First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.”

Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989): In this case the Supreme Court held that burning the United States flag was a protected form of symbolic political speech, concluding that there is no legitimate government interest in protecting the U.S.flag where the sole act in question is destroying the flag in its symbolic capacity. “A bedrock principle underlying the First Amendment is that Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

U.S. v. Eichman and U.S. v. Haggerty, 496 U.S. 310, 110 S.Ct. 2404, 110 L.Ed.2d 287 (1990): The Supreme Court struck down a federal statute designed to allow the government to punish persons who burn United States flags. The Court held that the plain intent of the statute was to punish persons for political expression and that burning the flag inextricably carries with it a political message.

City of Ladue v. Gilleo, 512 U.S. 43, 114 S.Ct. 2038, 129 L.Ed. 2d. 36 (1994): A federal court struck down a local ordinance banning the placement of signs on private property, in a challenge brought by a woman who had posted a sign on her lawn protesting the Persian Gulf War. The Court said lawn signs were a “venerable means of communication that is both unique and important,” for which “no adequate substitutes exist.”

R.A.V. v. St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d. 305 (1992): St. Paul, Minnesota passed an ordinance that banned “hate speech,” any expression, such as a burning cross or swastika, that might arouse anger, alarm, or resentment in others on the basis of race, color, religion, or gender. The Supreme Court struck the ordinance down as unconstitutionally discriminating based on the content of expression: the law banned only fighting words that insult based on race, religion, or gender, while abusive invective aimed at someone on the basis of political affiliation or sexual orientation would be permissible. The law thus reflected only the city’s special hostility towards certain biases and not others, which is what the First Amendment forbids.

See also: Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d. 731 (1969)

The Right to Free Association and the Freedom of Religion

Concerned Women for America, Inc. v. Lafayette County, 883 F.2d 32 (5th Cir. 1989): The County library that had permitted various groups to use its auditorium had created a designated public forum and thus could not deny access to groups whose meetings had political or religious content. Such a denial would be based on the content of speech and would be permissible only as the least restrictive means to serve a compelling interest. Preventing disruption or interference with general use of the library could be such an interest; library officials’ first step to controlling such disruptions would be to impose reasonable regulations on the time, place, or manner of the auditorium’s use, provided the regulations apply regardless of the subject matter of the speech.

Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d. 352 (1993): The Court held that a school district that opened its classrooms after hours to a range of groups for social, civic, and recreational purposes, including films and lectures about a range of issues such as family values and child-rearing, could not deny access to a religious organization to discuss the same, permissible issues from a religious point of view. Whether or not the classrooms were public fora, the school district could not deny use based on the speaker’s point of view on an otherwise permissible topic.

Right to Privacy and Anonymity

Stanley v. Georgia, 394 U.S. 55, 22 L. Ed. 2d 542, 89 S. Ct. 1243 (1969): A man found to possess obscene materials in his home for his private use was convicted of possessing obscene materials in violation of the state laws of Georgia. The Supreme Court overturned the conviction, holding that Constitution protects the right to receive information and ideas, regardless of their social worth, and to be generally free from governmental intrusions into one’s privacy on the grounds that the government “cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.”

McIntyre v. Ohio Election Commission, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d. 426 (1995): The Supreme Court struck down a state law banning distribution of anonymous campaign literature, emphasizing the long tradition of anonymous and pseudonymous political and literary speech and recognizing the right to exercise First Amendment rights anonymously as an “honorable tradition of advocacy and dissent.”

Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. Sup. Ct., 2002): The Colorado Supreme Court reversed a court decision that required Denver’s Tattered Cover Book Store to turn over information about books purchased by one of its customers. As part of an investigation, officers of the City of Thornton (Colo.) discovered two books on the manufacture of amphetamines in a suspect’s residence and found a Tattered Cover mailer in the garbage. The officers, seeking to tie the books to the suspect directly, served a Drug Enforcement Agency subpoena on the Tattered Cover. The subpoena demanded the title of the books corresponding to the order and invoice numbers of the mailer, as well as information about all other books ever ordered by the suspect. The Tattered Cover then brought suit to litigate the validity of the search warrant. The court began its opinion by stating that both the First Amendment to the U.S. Constitution and Article II, Section 10 of the Colorado Constitution protect an individual’s fundamental right to purchase books anonymously, free from governmental interference.

When Is Speech Unprotected?

Obscenity and Indecency

Butler v. Michigan, 352 U.S. 380, 1 L. Ed. 2d 412, 77 S. Ct. 524 (1957): A man convicted of selling “a book containing obscene, immoral, lewd, lascivious language, or descriptions, tending to incite minors to violent or depraved or immoral acts, manifestly tending to the corruption of the morals of youth” to a police officer appealed his conviction to the Supreme Court. The Court overturned the conviction and struck down the law, holding that the state’s attempt to quarantine the general reading public against books not too rugged for grown men and women to read in order to shield juvenile innocence “is to burn the house to roast the pig.” Famously, the Court ruled that the state of Michigan could not “reduce[s] the adult population of Michigan to reading only what is fit for children.”

Ginsberg v. New York, 390 U.S. 62, 20 L. Ed. 2d 195, 88 S. Ct. 1274 (1968): The Supreme Court upheld a New York State statute barring retailers from selling sexually explicit publications to minors under the age of 17. Noting that the statute did not interfere with the right of adults to purchase and read such materials, it found that it was not constitutionally impermissible for New York to restrict minors rights to such publications in light of the state’s interest in safeguarding children’s welfare and supporting parents’ claim to authority in the rearing of their children.

Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d. 419 (1973): In this case, the U.S. Supreme Court mapped out its famous three-part definition of obscenity. First, the average person, applying contemporary community standards, must find that the work, taken as a whole, appeals to prurient interests; second, that it depicts or describes, in a patently offensive way, sexual conduct as defined by state law; and third, that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. The Court ruled that community standards and state statutes that describe sexual depictions to be suppressed could be used to prosecute Miller, who operated one of the largest West Coast mail order businesses dealing in sexually explicit materials.

New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982): In July 1982, the U.S. Supreme Court added child pornography as another category of speech excluded from First Amendment protection. The other categories excluded are obscenity, defamation, incitement, and “fighting words.” The ruling came in the case when the U.S. Supreme Court affirmed a conviction against Ferber for showing a movie depicting two young boys masturbating. The film itself was not seen as obscene for adults, but the Court made the distinction between what was obscene if children were the participants compared with if adults were the leading actors.

American Booksellers Assoc., Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985) (Easterbrook, J.), aff’d., 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986): The city of Indianapolis passed a statute outlawing pornography, defined as the graphic, sexually explicit subordination of women, presenting women as sex objects, or as enjoying pain, humiliation, or servility. The court of appeals struck the law down, saying it impermissibly established an “approved” view of women and how they react in sexual encounters. The law therefore allowed sexually explicit words and images that adhered to that approved view, but banned sexually explicit words and images that did not adhere to the approved view. The court called this “thought control,” saying the “Constitution forbids the state to declare one perspective right and silence opponents.”

National Endowment for the Arts, et al. v. Finley, et al., 524 U.S. 569, 118 S.Ct. 2168, 141 L. Ed. 2d 500 (1998): In 1990, homoerotic photographs by Robert Mapplethorpe and blasphemous ones by Andres Serrano created a furor on Capitol Hill, because both artists had received grants from the National Endowment for the Arts (NEA). As a consequence, the NEA governing statute was amended to require the NEA to consider “decency” and “respect” for American “values” when selecting future grant recipients. Shortly thereafter, performance artists Karen Finley, John Fleck, Holly Hughes, and Tim Miller were denied fellowships, because of the “decency and respect” clause, they alleged. They made this allegation in a federal court lawsuit seeking to have the clause declared unconstitutional; and they were successful at the district court and court of appeals level. The U.S. Supreme Court ruled, however, that the statute is constitutional “on its face.” Writing for the court, Justice Sandra Day O’Connor did not “perceive a realistic danger that it will be utilized to preclude or punish the expression of particular views,” nor did she think that the statute would “significantly compromise First Amendment values.”

John D. Ashcroft, Attorney General, et al. v. Free Speech Coalition, et al., 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403, (2002): The U.S. Supreme Court affirmed the Ninth Circuit’s judgment invalidating the Child Pornography Prevention Act of 1996 on the grounds that the act’s ban on any depiction of pornographic images of children, including computer-generated images, was overly broad and unconstitutional under the First Amendment. Supreme Court Justice Anthony M. Kennedy wrote: “First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”

See also: Stanley v. Georgia, 394 U.S. 55, 22 L. Ed. 2d 542, 89 S. Ct. 1243 (1969)

Libel

The New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d. 686 (1964): To protect “uninhibited, robust, and wide-open” debate on public issues, the Supreme Court held that no public official may recover “damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’–that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” The Court stated that the First and Fourteenth Amendments require that critics of official conduct have the “fair equivalent” to the immunity protection given to a public official when he is sued for defamatory speech uttered in the course of his duties.

Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d. 789 (1974): The Court applied the rule in the New York Times case to public figures, finding that persons who have special prominence in society by virtue of their fame or notoriety, even if they are not public officials, must prove “actual malice” when alleging libel. Gertz was a prominent lawyer who alleged that a leaflet defamed him.

See also: Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d. 41 (1988)

Albert Krantz v. City of Fort Smith
A 1998 decision by the Eighth Circuit Court of Appeals concerning the distribution and posting of flyers and leaflets. In this ruling informed by the First Amendment’s protection of freedom of expression.

KRANTZ v. CITY OF FORT SMITH United States Court of Appeals,Eighth Circuit. No. 97-3359. Decided: November 30, 1998

  1. are not facially invalid on First Amendment overbreadth grounds,
  2. are not unconstitutional as applied to plaintiffs, and
  3. were not enacted with a discriminatory purpose.   In addition, defendant the City of Dyer challenges plaintiffs' standing.   
    For the reasons stated below, we hold that plaintiffs have standing to sue the City of Dyer. We further hold that the 
    ordinances are unconstitutional because they are facially overbroad restrictions on free speech.   Accordingly, we do not 
    reach the remaining issues raised on appeal.   The judgments of the district court are reversed, and the case is remanded 
    to the district court for further proceedings consistent with this opinion.
    

The First Amendment and New Technologies

Broadcast and Cable Communications

FCC V. Pacifica Foundation, 438 U.S. 726, 57 L. Ed. 2d 1073, 98 S. Ct. 3026 (1978): In a case that considered the First Amendment protections extended to a radio station’s daytime broadcast of comedian George Carlin’s “Seven Filthy Words” monologue, the Supreme Court held that Section 326 of the Telecommunications Act, which prohibits the FCC from censoring broadcasts over radio or television, does not limit the FCC’s authority to sanction radio or television stations broadcasting material that is obscene, indecent, or profane. Though the censorship ban under Section 326 precludes editing proposed broadcasts in advance, the ban does not deny the FCC the power to review the content of completed broadcasts. In its decision, the Court concluded that broadcast materials have limited First Amendment protection because of the uniquely pervasive presence that radio and television occupy in the lives of people, and the unique ability of children to access radio and television broadcasts.

Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 116 S.Ct. 2374, 135 L.Ed.2d. 288 (1996): In a decision that produced six opinions, the Supreme Court upheld a federal law permitting cable system operators to ban “indecent” or “patently offensive” speech on leased access channels. The Court also struck down a similar law for non-leased, public access channels, and struck down a law requiring indecent material to be shown on separate, segregated cable channels. The case is significant in that the Court affirmed that protecting children from some speech is a compelling state interest.

United States, et al. v. Playboy Entertainment Group, Inc., 529 U.S. 803, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000): On May 22, in a 5-4 decision, the U.S. Supreme Court upheld a U.S. District Court decision that Section 505 of the Telecommunications Act of 1996 violated the First Amendment when it sought to restrict certain cable channels with sexually explicit content to late night hours unless they fully scrambled their signal bleed. In an opinion written by Justice Anthony Kennedy, the court ruled that the government may have a legitimate interest in protecting children from exposure to “indecent material.” Section 505, however, is a content-based speech restriction and, therefore, must be the least restrictive means for meeting the governmental interest. The court found that Section 505 is not the least restrictive means.

Telecommunications

Sable Communications of California, Inc v. FCC, 492 U.S. 115, 106 L. Ed. 2d 93, 109 S. Ct. 2829 (1989): The Supreme Court overturned a Telecommunications Act ban on indecent telephone messages, concluding the law violates the First Amendment because the statute’s denial of adult access to such messages far exceeds that which is necessary to serve the compelling interest of preventing minors from being exposed to the messages. Unlike broadcast radio and television, which can intrude on the privacy of the home without prior warning of content and which is uniquely accessible to children, telephone communications require the listener to take affirmative steps to receive the communications. The failure of the Government to show any findings that would justify a conclusion that there are no constitutionally acceptable less restrictive means to achieve the Government’s interest in protecting minors, such as scrambling or the use of access codes, demonstrates that a total ban on such communications goes too far in restricting constitutionally protected speech. To allow the ban to stand would have the effect of “limiting the content of adult telephone communications to that which is suitable for children to hear.”

The Internet

303 Creative LLC v. Elenis – First Amendment

A Colorado law would have forced web designer Lorie Smith and her studio, 303 Creative, to design and publish websites promoting messages that violate her religious beliefs.

American Library Association v. U.S. Department of Justice and Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d. 874 (1997): In a 9-0 decision, the U.S. Supreme Court on June 26, 1997, declared unconstitutional a federal law making it a crime to send or display indecent material on line in a way available to minors. The decision in the consolidated cases completed a successful challenge to the so-called Communications Decency Act by the Citizens Internet Empowerment Coalition, in which the American Library Association and the Freedom to Read Foundation played leading roles. The Court held that speech on the Internet is entitled to the highest level of First Amendment protection, similar to the protection the Court gives to books and newspapers.

Mainstream Loudoun, et al. v. Board of Trustees of the Loudoun County Library, 24 F.Supp.2d 552 (E.D. of Va. 1998): Adopted in 1997, the Loudoun County, Va., Library Board’s “Policy on Internet Sexual Harassment” was designed to prevent adult and minor Internet users from accessing illegal pornography and to avoid the creation of a sexually hostile environment. To accomplish these goals, the board contracted with Log-On Data Corporation, a filtering software manufacturer that offers a product called “X-Stop.” Though Log-On Data Corp. refused to divulge the method by which X-Stop filters sites, it soon became apparent that the software blocks some sites that are not prohibited by the policy. Shortly after the adoption of the policy, People for the American Way Foundation commenced litigation on behalf of several Loudoun County residents and members of a nonprofit organization, claiming the policy violates the right to free speech under the First Amendment. The suit was predicated on the theory that the policy is unnecessarily restrictive, because it treats adults and children similarly, and precludes access to legitimate as well as pornographic material. On November 23, 1998, Judge Leonie Brinkema declared that the highly restrictive Loudoun County Internet policy was invalid under the free speech provisions of the First Amendment.

United States, et al. v. American Library Association, Inc. et al., 539 U.S. 194, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003): The Supreme Court upheld the Children’s Internet Protection Act, which requires libraries receiving federal funds for Internet access to install filters so that both adult and child patrons cannot access materials considered obscene, child pornography, or “harmful to minors.” Chief Justice Rehnquist announced the judgment of the court that the law, on its face, is Constitutional. Speaking for a plurality of four justices, Rehnquist held that CIPA was a valid exercise of Congress’ spending power and did not impose an unconstitutional condition on public libraries that received federal assistance for Internet access because Congress could reasonably impose limitations on its Internet assistance, and because any concerns over filtering software’s alleged tendency to erroneously “overblock” access to constitutionally protected speech were dispelled by the ease with which library patrons could have the filtering software disabled. Justices Kennedy and Breyer concurred with the judgment, holding that CIPA, while raising First Amendment concerns, did not violate the First Amendment as long as adult library users could request that the Internet filter be disabled without delay.

Freedom of Speech and the Press

“Congress shall make no law . . .  abridging the freedom of speech, or of the press.” What does this mean today? Generally speaking, it means that the government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances.Although the First Amendment says “Congress,” the Supreme Court has held that speakers are protected against all government agencies and officials: federal, state, and local, and legislative, executive, or judicial. The First Amendment does not protect speakers, however, against private individuals or organizations, such as private employers, private colleges, or private landowners. The First Amendment restrains only the government.The Supreme Court has interpreted “speech” and “press” broadly as covering not only talking, writing, and printing, but also broadcasting, using the Internet, and other forms of expression. The freedom of speech also applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like.The Supreme Court has held that restrictions on speech because of its content—that is, when the government targets the speaker’s message—generally violate the First Amendment. Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. Such laws are thought to be especially problematic because they distort public debate and contradict a basic principle of self-governance: that the government cannot be trusted to decide what ideas or information “the people” should be allowed to hear.There are generally three situations in which the government can constitutionally restrict speech under a less demanding standard.1. In some circumstances, the Supreme Court has held that certain types of speech are of only “low” First Amendment value, such as:a. Defamation: False statements that damage a person’s reputations can lead to civil liability (and even to criminal punishment), especially when the speaker deliberately lied or said things they knew were likely false. New York Times v. Sullivan (1964).b. True threats: Threats to commit a crime (for example, “I’ll kill you if you don’t give me your money”) can be punished. Watts v. United States (1969).

In Elonis v. United States 575 US __ (2015), Chief Justice John G. Roberts, Jr. was joined by six justices who reversed a trial court conviction, which had been upheld by the 3rd U.S. Circuit Court of Appeals. They decided that Anthony Douglas Elonis had been improperly convicted of transmitting threats through postings on Facebook.

c. “Fighting words”: Face-to-face personal insults that are likely to lead to an immediate fight are punishable. Chaplinsky v. New Hampshire (1942). But this does not include political statements that offend others and provoke them to violence.  For example, civil rights or anti-abortion protesters cannot be silenced merely because passersby respond violently to their speech. Cox v. Louisiana (1965).

d. Obscenity: Hard-core, highly sexually explicit pornography is not protected by the First Amendment. Miller v. California (1973). In practice, however, the government rarely prosecutes online distributors of such material.

e. Child pornography: Photographs or videos involving actual children engaging in sexual conduct are punishable, because allowing such materials would create an incentive to sexually abuse children in order to produce such material. New York v. Ferber (1982).

f. Commercial advertising: Speech advertising a product or service is constitutionally protected, but not as much as other speech. For instance, the government may ban misleading commercial advertising, but it generally can’t ban misleading political speech. Virginia Pharmacy v. Virginia Citizens Council (1976).

Outside these narrow categories of “low” value speech, most other content-based restrictions on speech are presumptively unconstitutional. Even entertainment, vulgarity, “hate speech” (bigoted speech about particular races, religions, sexual orientations, and the like), blasphemy (speech that offends people’s religious sensibilities), and violent video games are protected by the First Amendment. The Supreme Court has generally been very reluctant to expand the list of “low” value categories of speech.

2. The government can restrict speech under a less demanding standard when the speaker is in a special relationship to the government. For example, the speech of government employees and of students in public schools can be restricted, even based on content, when their speech is incompatible with their status as public officials or students. A teacher in a public school, for example, can be punished for encouraging students to experiment with illegal drugs, and a government employee who has access to classified information generally can be prohibited from disclosing that information.Pickering v. Board of Education (1968).

3. The government can also restrict speech under a less demanding standard when it does so without regard to the content or message of the speech. Content-neutral restrictions, such as restrictions on noise, blocking traffic, and large signs (which can distract drivers and clutter the landscape), are generally constitutional as long as they are “reasonable.” Because such laws apply neutrally to all speakers without regard to their message, they are less threatening to the core First Amendment concern that government should not be permitted to favor some ideas over others. Turner Broadcasting System, Inc. v. FCC (1994). But not all content-neutral restrictions are viewed as reasonable; for example, a law prohibiting all demonstrations in public parks or all leafleting on public streets would violate the First Amendment. Schneider v. State (1939).

Courts have not always been this protective of free expression. In the nineteenth century, for example, courts allowed punishment of blasphemy, and during and shortly after World War I the Supreme Court held that speech tending to promote crime—such as speech condemning the military draft or praising anarchism—could be punished. Schenck v. United States (1919). Moreover, it was not until 1925 that the Supreme Court held that the First Amendment limited state and local governments, as well as the federal government. Gitlow v. New York (1925).

But starting in the 1920s, the Supreme Court began to read the First Amendment more broadly, and this trend accelerated in the 1960s. Today, the legal protection offered by the First Amendment is stronger than ever before in our history.

Express Unpopular Views – Rule of LawSnyder v. Phelps  First Amendment Landmark Supreme Court case: Snyder v. Phelps 131 S. Ct. 1207 (2011)(link is external)

Express Unpopular Views – Rule of Law Texas v. Johnson First Amendment Landmark Supreme Court case: Texas v. Johnson 491 U.S. 397 (1989)

 


Click to learn more on why Speech Is Not Violence and Violence Is Not Speech

Words may hurt, but treating speech as ‘violence’ only leads to less speech and more violence.

Related Court Cases

Kathleen R. v. City of Livermore is a complaint filed by the mother of a 12-year-old who allegedly used public library Internet access to download and distribute sexually explicit materials. The case was settled in favor of the library. See Kathleen R.

The Consumer Review Fairness Act – What It Is & Why It Matters

What is California’s Filing Deadline for a Defamation Claim ?

U.S. Supreme Court Links

 The Supreme Court of the United States Home Page

The Federal Judiciary Home Page

Oyez Oyez Oyez, Northwestern University

Supreme Court Decisions, Findlaw

Findlaw First Amendment Annotations Expanded

See also U.S. Constitution: First Amendment Annotations from FindLaw

sourced

 

 

 

 

God leaves NO CHILD LEFT BEHIND, it’s the child who refuses to return to his Father!

Our Father is always available, never drunk, never lies, never allows any harm to his children… (a perfect father, hence the name God, the creator)
the harm that one may perceive is not harm but an awakening, if you join with him by asking for his help
pray with good intent in your heart, believe like you once believed in Santa! That means NO DOUBT, 100% PURE TRUST in him!
He never lies, He will deliver! God, through Jesus and only him will give you what you need when you need it!

 

Gospel Mt 11:28-30

Jesus said to the crowds:

“Come to me, all you who labor and are burdened,
and I will give you rest.
Take my yoke upon you and learn from me,
for I am meek and humble of heart;
and you will find rest for yourselves.
For my yoke is easy, and my burden light.”

Trust God!

He Lives in Those Whom Invite Their Father In

Nothing Formed Against You Shall Prosper !

 


California Constitution
Article VI – Judicial
Section 13.

Universal Citation: CA Constitution art VI § 13

SEC. 13.No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.

 

(Sec. 13 added Nov. 8, 1966, by Prop. 1-a. Res.Ch. 139, 1966 1st Ex. Sess.)


To Learn More…. Read MORE Below and click the links Below 


Abuse & Neglect The Mandated Reporters  (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About:
The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRAClick Here

 Mandated Reporter formMandated ReporterFORM SS 8572.pdfThe Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS  INFO BULLETIN:
Click Here Officers and DA’s
 for (Procedure to Follow)

It Only Takes a Minute to Make a Difference in the Life of a Child learn more below

You can learn more here California Child Abuse and Neglect Reporting Law  its a PDF file


Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

Anti-SLAPP Law in California

Freedom of AssemblyPeaceful Assembly1st Amendment Right

Supreme Court sets higher bar for prosecuting threats under First Amendment 2023 SCOTUS

We also have the Brayshaw v. City of Tallahassee1st Amendment Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment Posting Police & Civilians real Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019)1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006)1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims
Against Government Officials1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims
Against Government Officials1st Amendment

Can You Annoy the Government? – 1st Amendment

Freedom of the Press Flyers, Newspaper, Leaflets, Peaceful Assembly1$t Amendment – Learn More Here

Vermont’s Top Court Weighs: Are KKK Fliers1st Amendment Protected Speech

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive 1st Amendment

Paglia & Associates Construction v. HamiltonPublic Internet Posts & Public Criticisms – Bad Reviews1st Amendment

Right to Record Government Officials Engaged in the Exercise of their Official Duties


Learn More About True Threats Here below….

Counterman v. Colorado Supreme Court sets higher bar for prosecuting threats under First Amendment

We also have the The Brandenburg v. Ohio (1969)1st Amendment

CURRENT TEST = We also have the TheBrandenburg testfor incitement to violence 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United StatesTrue Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

The Consumer Review Fairness Act – What It Is & Why It Matters


Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment


Mi$Conduct Pro$ecutorial Mi$Conduct Prosecutor$

Attorney Rule$ of EngagementGovernment (A.K.A. THE PRO$UCTOR) and Public/Private Attorney

What is a Fiduciary Duty; Breach of Fiduciary Duty

The Attorney’s Sworn Oath

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – makes it easier to sue police

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & ProsecutorRules of Professional Conduct

Functions and Duties of the ProsecutorProsecution Conduct

Standards on Prosecutorial Investigations – Prosecutorial Investigations

Information On Prosecutorial Discretion

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Fighting Discovery Abuse in LitigationForensic & Investigative AccountingClick Here

Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

Pen. Code, § 1424 – Recusal of Prosecutor

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

ABA – Functions and Duties of the ProsecutorProsecution Conduct

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF


Mi$Conduct JudiciaMi$Conduct  Judge$

Prosecution Of Judges For Corrupt Practice$

Code of Conduct for United States Judge$

Disqualification of a Judge for Prejudice

Judicial Immunity from Civil and Criminal Liability

Recusal of Judge – CCP § 170.1Removal a Judge – How to Remove a Judge

l292 Disqualification of Judicial OfficerC.C.P. 170.6 Form

How to File a Complaint Against a Judge in California?

Commission on Judicial PerformanceJudge Complaint Online Form

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case


DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn more HERE

Understanding Due Process  – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge Due Process 5th, & 14th Amendment

 Mathews Test3 Part TestAmdt5.4.5.4.2 Mathews Test

UnfriendingEvidence – 5th Amendment

At the Intersection of Technology and Law

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts  1st Amendment
so if you are interested in learning about 
Introducing Digital Evidence in California State Courts
click here for SCOTUS rulings

Right to Travel freely – When the Government Obstructs Your Movement – 14th Amendment & 5th Amendment

What is Probable Cause? and.. How is Probable Cause Established?

Misuse of the Warrant System – California Penal Code § 170Crimes Against Public Justice 4th, 5th, & 14th Amendment

What Is Traversing a Warrant (a Franks Motion)?

Dwayne Furlow v. Jon Belmar – Police Warrant – Immunity Fail – 4th, 5th, & 14th Amendment


Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

ARE PEOPLE LYING ON YOU?
CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

Penal Code 115 PCFiling a False Document in California

Penal Code 118 PC – California Penalty of “Perjury” Law

Federal Perjury – Definition by Law

Penal Code 132 PCOffering False Evidence

Penal Code 134 PCPreparing False Evidence

Crimes Against Public Justice

Penal Code 118.1 PCPolice Officer$ Filing False Report$

Spencer v. PetersPolice Fabrication of Evidence – 14th Amendment

Lying Cop or Citizen – PC 129 Preparing False Statement or Report Under Oath

Penal Code 132 PCOffering False Evidence

Penal Code 134 PCPreparing False Evidence

Penal Code 135 PCDestroying or Concealing Evidence

Lying Cop or Citizen – PC 129 Preparing False Statement or Report Under Oath

Penal Code 141 PC Planting or Tampering with Evidence in California

Penal Code 142 PCPeace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

PC 146 Penal CodeFalse Arrest

Penal Code 148.5 PC –  Making a False Police Report in California

Misuse of the Warrant SystemCalifornia Penal Code § 170

Penal Code 182 PC “Criminal Conspiracy” Laws & Penalties

Penal Code § 236 PCFalse Imprisonment

Penal Code 664 PC “Attempted Crimes” in California

Penal Code 31 PC – Aiding and Abetting Laws

Penal Code 32 PC – Accessory After the Fact

What is Abuse of Process? 

What is a Due Process Violation? – 4th Amendment & 14th Amendment

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)


Misconduct by Government Know Your Rights Click Here 

 Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242Deprivation of Right$ Under Color of Law

18 U.S. Code § 241Conspiracy against Right$

Section 1983 LawsuitHow to Bring a Civil Rights Claim

 Suing for MisconductKnow More of Your Right$

Police Misconduct in CaliforniaHow to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court? 

Removing Corrupt Judges, Prosecutors, Jurors
and other Individuals & Fake Evidence
from Your Case 

Anti-SLAPP Law in California

Freedom of Assembly – Peaceful Assembly – 1st Amendment Right

How to Recover “Punitive Damages” in a California Personal Injury Case

Pro Se Forms and Forms Information(Tort Claim Forms here as well)

What is Tort?


Tort Claims Form
File Government Claim for Eligible Compensation

Complete and submit the Government Claim Form, including the required $25 filing fee or Fee Waiver Request, and supporting documents, to the GCP.

See Information Guides and Resources below for more information.

Tort Claims – Claim for Damage, Injury, or Death (see below)

Federal –  Federal SF-95 Tort Claim Form Tort Claim online here or download it here or here from us

California – California Tort Claims Act – California Tort Claim Form Here or here from us

Complaint for Violation of Civil Rights (Non-Prisoner Complaint) and also UNITED STATES DISTRICT COURT PDF

Taken from the UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Forms source

WRITS and WRIT Types in the United States


How do I submit a request for information?

To submit a request send the request via mail, fax, or email to the agency. Some agencies list specific departments or people whose job it is to respond to PRA requests, so check their websites or call them for further info. Always keep a copy of your request so that you can show what you submitted and when.

Templates for Sample Requests

Incident Based Request: Use this template if you want records related to a particular incident, like the investigative record for a specific police shooting, an arrest where you believe an officer may have been found to have filed a false report, or to find out whether complaint that an officer committed sexual assault was sustained.
ACLU Download Word document | ACLU Download PDF

or from us Download Word document | or from us Download PDF

Officer Based Request: Use this template if you want to find any public records of misconduct related to a particular officer or if he or she has been involved in past serious uses of force.
ACLU Download Word document | ACLU Download PDF

or from us Download Word document | or from us Download PDF

The First Amendment Coalition also has some useful information to help explain the PRA process.

Sample Letter | SB 1421 & SB 16 Records

Download Word document | Download PDF


Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence

First Things First: What Can Be Appealed and What it Takes to Get StartedClick Here

Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation 

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California –  Motion to Dismiss

WIC § 700.1If Court Grants Motion to Suppress as Evidence

Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal Felony (Defendant) (CR-120)  1237, 1237.5, 1538.5(m) – Click Here

California Motions in LimineWhat is a Motion in Limine?

Petition for a Writ of Mandate or Writ of Mandamus (learn more…)

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise


Retrieving Evidence / Internal Investigation Case 

Pitchess Motion & the Public Inspection of Police Records

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDAClick Here

Fighting Discovery Abuse in LitigationForensic & Investigative AccountingClick Here

Orange County / LA County Data, BodyCam, Police Report, Incident Reports,
and all other available known requests for data below: 

SEARCH SB-1421 SB-16 Incidents of LA County, Oakland

California Senate Bill 16 (SB 16) – 2023-2024 – Peace officers: Release of Records

APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

Learn About Policy 814: Discovery Requests OCDA Office – Click Here

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization Form Release of Case InformationClick Here

Texts / Emails AS EVIDENCEAuthenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior CourtReleasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Rules of AdmissibilityEvidence Admissibility

Confrontation ClauseSixth Amendment

Exceptions To The Hearsay RuleConfronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the ProsecutorProsecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

Section 832.7Peace officer or custodial officer personnel records

Senate Bill No. 1421 California Public Records Act

Assembly Bill 748 Makes Video Evidence Captured by Police Agencies Subject to Disclosure as Public Records

SB 2, Creating Police Decertification Process and Expanding Civil Liability Exposure

The Right To Know: How To Fulfill The Public’s Right Of Access To Police Records

How Access to California Police Records

Los Angeles County Sheriff’s Department SB-1421 Records

 SB1421 – Form Access to California Police Records

California Statewide CPRA Requests Submit a CPRA Request 

Electronic Audio Recording Request of OC Court Hearings

CPRA Public Records Act Data Request – Click Here

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Police BodyCam Footage Release


Cleaning Up Your Record

Tossing Out an Inferior JudgementWhen the Judge Steps on Due Process – California Constitution Article VI – Judicial Section 13

Penal Code 851.8 PCCertificate of Factual Innocence in California

Petition to Seal and Destroy Adult Arrest RecordsDownload the PC 851.8 BCIA 8270 Form Here

SB 393: The Consumer Arrest Record Equity Act 851.87 – 851.92  & 1000.4 – 11105 CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in CaliforniaPenal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons –What Does A Governor’s Pardon Do

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a MisdemeanorPenal Code 17b PC Motion


PARENT CASE LAW 

RELATIONSHIP WITH YOUR CHILDREN &
YOUR
CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE IMMORAL NON CIVIC MINDED PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

Family Law AppealLearn about appealing a Family Court Decision Here

9.3 Section 1983 Claim Against Defendant as (Individuals)14th Amendment this CODE PROTECT$ all US CITIZEN$

Amdt5.4.5.6.2 – Parental and Children’s Rights“> – 5th Amendment this CODE PROTECT$ all US CITIZEN$

9.32 Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECT$ all US CITIZEN$

California Civil Code Section 52.1The Bane ActInterference with exercise or enjoyment of individual rights

Parent’s Rights & Children’s Bill of Rights
SCOTUS RULINGS FOR YOUR PARENT RIGHTS

SEARCH of our site for all articles relating for PARENTS RIGHTS Help!

Child’s Best Interest in Custody Cases

Are You From Out of State (California)?  FL-105 GC-120(A)
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Learn More:Family Law Appeal

Necessity Defense in Criminal Cases

Can You Transfer Your Case to Another County or State With Family Law? – Challenges to Jurisdiction

Venue in Family Law Proceedings


GRANDPARENT CASE LAW 

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C)Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000)Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular RightsFourteenth AmendmentInterference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate?Reason for Joinder

Joinder In Family Law CasesCRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation


Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse AllegationsFamily Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court Sanction Click Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee RecoveryClick Here

Zamos v. StroudDistrict Attorney Liable for Bad Faith ActionClick Here

Malicious Use of Vexatious Litigant – Vexatious Litigant Order Reversed


 Epic Criminal / Civil Right$ SCOTUS Help Click Here

At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) Epic Parents SCOTUS Ruling Parental Right$ Help Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors


Please take time to learn new UPCOMING 

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.