Outline - Con Law Ii Volokh

Topics: Freedom of expression, Freedom of speech, Censorship Pages: 34 (11390 words) Published: February 10, 2013
Advocacy of Crime – Incitement and Solicitation Exceptions I. “Advocacy of the use of force or of law violation is constitutionally unprotected incitement when it is (Brandenburg) a. 1) "Directed to inciting or producing"

i. Look at ALL circumstances carefully (i.e. DJ playing co-killer – wk 1) b. 2) "Imminent lawless action"
ii. Prob means action w/i hours or at most several days iii. Excludes advocacy of illegal action "at some indefinite future time" (Hess) c. 3) "And is likely to incite or produce such action" iv. Consider size of audience – if large, increases likelihood that someone will react BUT might also increase value of the speech v. Consider statistical evidence of ppl’s reactions vi. Is there some other deterrent (i.e. punishment for murder) that cuts against likelihood that speech will incite unlawful behavior II. Solicitation is constitutionally unprotected speech when (Williams) d. Speech is “a proposal to engage in illegal activity" e. Esp when focused on "a particular piece" of contraband (i.e. child porn in Williams) f. As opposed to "the abstract advocacy of illegality"  g. Generally, imminence isn't as big of a deal - can probably be absent h. But usually need to show some purpose and some likelihood that solicitation will have intended effect III. Exception? Dennis and Yates – commy advocacy cases not consistent w/ Brandenburg test, but not clear what rule they set forth i. Allowed restrictions on advocacy of concrete action (rather than just abstract doctrine) even when the action wasn’t imminent j. Most scholars think they’re not good law, but never overruled IV. Distinguish cases where speech itself is being punished from cases where speech is being used as evidence of D's crime (not protected in the latter situation) False Statements

I. Overview and Basic Theoretical Principles
a. Generally seen as harmful and valueless (Gertz)
b. But Have to protect some falsehood in order to protect speech that matters – Punishing error risks making speakers unduly cautious and avoiding even accurate allegations (Gertz) II. Basic Substantive Rules

c. False stmts of fact can generally lead to civil liability or even crim punishment if they are said with a sufficiently culpable mental state d. Knowingly false stmts of fact (deliberate lies) or recklessly false stmts of fact can almost always be punished i. Libel and slander law; false light tort; trade libel law (probably); statutes banning fraud including fraudulent solicitation of charitable donations; crim punishment of perjury; crim punishment of false inducement of fear (p. 58!) e. Under some circumstances, negligently false stmts of fat may also lead to liability (Gertz) f. Where speech is on matters of “private concern,” it is possible tt speakers can be held strictly liable even for rzbl nonnegligent mistakes (Dunn and Bradstreet) g. However, some false stmts might not be punishable even if they’re deliberate lies ii. Ny Times and Rosenblatt strongly suggest tt law can’t punish even deliberate lies about the government (“seditious libel”), if no particular person is defamed 1. Search for truth - need to protect b/c subject matter of speech is likely to be matters of public significance 2. Chilling effect

iii. Some reason to think tt false historical or scientific claims (i.e. Holocaust denial) as well as false stmts about current events should be constitutionally protected (Brandeis dissenting in Schaefer) 3. BUT Court has hinted tt other lies or reckless falsehoods may generally be punished, even if they don’t relate to specific ppl (Davis, and others – false stmts in political campaigns) iv. No clear line b/w impermissible “seditious libel”...
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