Application of Brandenburg - 1973 Hess v. Indiana Facts: Vietnam protestor, take the fucking street or again” later “we’ll during a demonstration Not imminent 1982 NNACP v. Claiborne Hardware Co. – NAACP sponsored boycott of rally discriminating merchants in MS; you shop at the stores, we’ll break your necks” “if Not imminent & No likelihood Precedent condition Hyperbole Speech is protected when crowd is listening to a speaker and they are incited to act Re-cap of different tests Court formulated: BT: Blackstone Express Incitement Test: - Hand Massey CPD as BT Test: Holmes CPD as Speech Protective Test: Holmes/Brandeis Reasonableness Test: Gitlow, Whitney CPD Balancing: Gravity x Probability of Harm vs. of Speech Dennis – Brandenburg: advocacy directed to inciting or producing imminent lawless action likely to incite or produce that imminent lawless action Unlawful Advocacy vs. HAR Unlawful advocacy: A tells B to violate the law HAR: A angers B; B breaches peace Hostile Audience Response Heckler’s Veto: If listeners don’t like what the speaker is saying, the heckler can threat to riot causing the police to silence the speaker Police duty to control the crowd: Concerns: LE can use pretext to arrest the speaker; collusion with LE to heckler’s veto to win 1st duty control the crowd If police can’t control the crowd shut down the speaker - 1940 Cantwell v. Connecticut Jehovah’s Witness played a record on the street that anti-catholic propaganda; listeners wanted to beat him up; conviction breach of peace – No test articulated CPD language – Intent OR Express Language of Provocation To create a CPD of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace or order Ct looked at intent separately Cantwell no intent to have listeners punch him – No express language that is insulting individuals
Application of Brandenburg Hess v. Indiana - 1973 Facts: Vietnam protestor, “we’ll take the fucking street later or again” during a demonstration Not imminent NNACP v. Claiborne Hardware Co. – 1982 NAACP sponsored boycott of rally discriminating merchants in MS; “if you shop at the stores, we’ll break your necks” Not imminent & No likelihood Precedent condition Hyperbole Speech is protected when crowd is listening to a speaker and they are incited to act Re-cap of different tests Court formulated: BT: Blackstone Express Incitement Test: Massey - Hand CPD as BT Test: Holmes CPD as Speech Protective Test: Holmes/Brandeis Reasonableness Test: Gitlow, Whitney CPD Balancing: Dennis – Gravity x Probability of Harm vs. of Speech Brandenburg: advocacy directed to inciting or producing imminent lawless action likely to incite or produce that imminent lawless action Unlawful Advocacy vs. HAR Unlawful advocacy: A tells B to violate the law HAR: A angers B; B breaches peace Hostile Audience Response Heckler’s Veto: If listeners don’t like what the speaker is saying, the heckler can threat to riot causing the police to silence the speaker Police duty to control the crowd: Concerns: LE can use pretext to arrest the speaker; collusion with LE to heckler’s veto to win 1st duty control the crowd If police can’t control the crowd shut down the speaker Cantwell v. Connecticut - 1940 Jehovah’s Witness played a record on the street that anti-catholic propaganda; listeners wanted to beat him up; conviction – breach of peace No test articulated – CPD language Intent OR Express Language of Provocation To create a CPD of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace or order Ct looked at intent separately – Cantwell no intent to have listeners punch him No express language that is insulting individuals
Con-Law-II-Nowlin-KK.docx