CONTENT-BASED RESTRICTIONS ON SPEECH

I. THE STRICT SCRUTINY TEST

(is applied when the government seeks to restrain speech based upon the ideas or views expressed)

Only if--

1. There is a compelling state interest, and

2. The regulation is "narrowly tailored" to achieve that interest (the "least restrictive alternative")

is a regulation of speech based on content justified.

Simon & Schuster v. N.Y. State Crime Victim's Board (1991)

The "Son of Sam" Law (David Berkowicz)--for a person "convicted of a crime" (trial or guilty plea) or who "admitted the commission of a crime" (even if the case was never prosecuted), the profits from the re-enactment of the crime (book, movie, etc.) will be held in escrow for 5 years and will be subject to the claims of the victims of the crime.

This is a content-based restriction on speech. pp. 87-88

Compelling state interests: (1) Ensuring that victims of crime are compensated by those who harm them (2) Ensuring that criminals do not profit from their crimes

Not "narrowly tailored"

Under-inclusive: Why should the state have a greater interest in compensating victims from the proceeds of "crime stories" than from other assets of the criminal--

Over-inclusive:--It rules out protected speech--

Works in which the crime is merely "incidental"

Works (of persons) never accused/ convicted

Thoreau

St. Augustine

Martin Luther King, Jr.

Bertrand Russell

 

Virginia v. Black (2003)

At issue was a 50 year old VA statute banning cross-burning: sec. 18.2-423:

"It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate an provision of this section shall be guilty of a Class 6 felony."

"Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons."

Compelling State Interest

Protecting "the basic human rights of groups that hve historically been subjected to discrimination"

NOT Narrowly Tailored

Rules out too much protected speech: "abstract advocacy" is protected; "true threats" are not.