American Constitutionalism in Historical Perspective (packet)

Manner regulation: let people say what they want within prescribed parameters—this can be constitutionally suspect. Court fears line drawing, too subjective—“one man’s vulgarity is another’s lyric. If experience violence from society, should be able to use any language you want to express it. (Autonomy view/Whitney concurrence). Afraid if limit vocab would censor meaning and shift moral vocabulary and metaphors of a ppl.

Terminiello v. Chicago: more offensive more protected, directed at crowd not at individual. Reversed breach of peace conviction.

Feiner v. NY, 1951: members of Young Progressives of America advocating the black rts refused to stop speaking when police told him to. (cf. Cantwell left immediately). Large crowd was getting agitated and onlookers told police that he would attack him. Protected speech (conscience conviction of politics), but there was clear and present danger. (see Dennis). Probability may be low but outcome is great. Won’t strike down the breach of the peace statute. Dissent: job of police is to protect speaker not to shut him up rather than the audience.

Edwards v. South Carolina, 1963: D convicted b/c audiences upset by nonviolent civil rts protests on state capital grounds. Court strikes down statute as unconstitutional as applied and overbroad. What has changed is conception of clear and present danger (offensive speech not enough). After Brandenburg, court more speech protective, requires high level of gravity, probability, lack of rebuttability and discredits Feiner. Also Cox v. Louisiana and Gregory v. Chicago which took place in the sixties struck down similar laws.

Kunz v. NY, 1951: D convicted for failing to obtain an ordinance for demonstration. C/n give permit to any group that denounces religion. Court strikes down as prior restraint and vague (also content discriminatory). D/n want authorities to have broad discretion to ban speech they disagree with.