Editing First Amendment
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i. Can only recognize unprotected if they haven't been recognized by Court but has been historically unprotected. Historical unprotected are incitement, obscenity, defamation, speech integral to criminal conduct, fighting words, child porn, fraud, true threat, grave and imminent threat the government has power to prevent. Practically speaking, nothing fits this bill. Court must be presented with persuasive evidence that a novel restriction (new category of unprotected speech) on content is part of a long (if heretofore unrecognized) tradition of proscription New categories are unprotected speech are not derived from balancing but a long tradition of non protection.See U.S. v. Stevens under Overbreadth. | i. Can only recognize unprotected if they haven't been recognized by Court but has been historically unprotected. Historical unprotected are incitement, obscenity, defamation, speech integral to criminal conduct, fighting words, child porn, fraud, true threat, grave and imminent threat the government has power to prevent. Practically speaking, nothing fits this bill. Court must be presented with persuasive evidence that a novel restriction (new category of unprotected speech) on content is part of a long (if heretofore unrecognized) tradition of proscription New categories are unprotected speech are not derived from balancing but a long tradition of non protection.See U.S. v. Stevens under Overbreadth. | ||
b. | b. R.A.V.: No content-based restrictions within an unprotected class unless restriction satisfies strict scrutiny or fall under one of the exceptions. | ||
i. FACTS: D and several other teenagers assembled a cross and burned it inside fenced yard of a black family. Violated a ordinance that said "whoever places on … private property a symbol, object…a burning cross which one knows or has reasonable grounds to know arouses anger, alarm … on basis of race color, creed… shall be guilty of misdemeanor. D moved to miss on ground that it was OB. Minnesota SC said that phrase "arouse anger, alarm or resentment" limited the reach to fighting words. Regardless, MN SC said that it's ok to regulate CB because narrowly tailored to accomplish compelling state interest. | i. FACTS: D and several other teenagers assembled a cross and burned it inside fenced yard of a black family. Violated a ordinance that said "whoever places on … private property a symbol, object…a burning cross which one knows or has reasonable grounds to know arouses anger, alarm … on basis of race color, creed… shall be guilty of misdemeanor. D moved to miss on ground that it was OB. Minnesota SC said that phrase "arouse anger, alarm or resentment" limited the reach to fighting words. Regardless, MN SC said that it's ok to regulate CB because narrowly tailored to accomplish compelling state interest. |