American Constitutionalism in Historical Perspective (packet)

Protected v. Unprotected Speech: unprotected speech can be regulated, protected speech c/n be censored, those that find speech offensive try to squeeze it into the unprotected speech category so that it can be regulated. Political and moral dissent at the core of protected speech.

Breach of Peace:

1. 
   Cantwell v. Connecticut, 1940 (as applied) Reversed Jehovah’s witness conviction for breach of peace for playing religious message in public place offensive to Catholics. No msg directed at any person and walks away when asked to. In core of protected speech, religious free exercise/religious conviction (most highly protected speech we have). Criminal statute c/n be applied to Cantwell—would be heckler’s veto if any speech offending others could be stifled.
   
2. 
   Cohen v. California, 1971: (as applied) Overturns conviction for breaching the peace by wearing a jacket that with “fuck the draft” written on the back b/c he removed the jacket when he was in the courtroom. Court found that OK to constrain behavior in the courtroom but not in the hallway. Speech and not action b/c it’s all about the lewd words on the jacket and reaction to it.
   
   1. 
      Core of Free Speech: if audience offense triggers criminal penalty, must be regarded as core of free speech.
      
   2. 
      Public Forum: corridors are a sufficient public forum. Can’t have content based restrictions in public forum. D/n want offense in the forum to be a ground for abridgement, precisely when you need free speech protection.
      
   3. 
      Obscenity: requires erotic content, doesn’t attract or compel sexually.
      
   4. 
      Fighting words: not directed at an individual. (narrowing Chaplinsky).
      
   5. 
      No incitement to riot: can’t be moved into action if ppl are offended. Burden on state to prove clear and present danger—mere offense is not enough
      
   6.