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Using the First Amendment Against the Criminalization of Free Expression

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Beware when a judge sees the First Amendment’s free speech clause as a hindrance to judicial administration, perhaps emphasizing that the First Amendment is not absolute and does not protect the right to cry “fire” in a crowded theater. (As it turns out, a Supreme Court dissenter first introduced the fire-in-a-crowded-theater phrase. Bridges v. State of Cal., 314 U.S. 252, 296 (1941).) (Correction: Thanks to a colleague for advising that the fire-shouting phrase started in the following majority opinion by Justice Holmes: Schenk v. U.S, 249 U.S. 47 (1918).)

Negative judicial reactions to the First Amendment may be imperfectly akin to negative judicial reactions to Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), and Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), both of which substantially expand criminal defendants’ Sixth Amendment Confrontation Clause protections. Both Melendez-Diaz and Supreme Court First Amendment jurisprudence probably strike many judges as individual liberty gone too far, with First Amendment jurisprudence protecting flag burning, KKK demonstrations, and non-obscene sexually explicit images.

At least judges can catch up to speed on the state of the Confrontation Clause merely by reading Melendez-Diaz and Bullcoming and the manageable number of lower court appellate opinions interpreting those recent decisions. First Amendment free expression jurisprudence, on the other hand, is a morass of balancing tests that depend on a case’s factual allegations and that arise from decades-old tugs-of-war between the likes of Justices Black and Douglas advocating for particularly robust First Amendment protection[1] and Justice Scalia advocating for a much narrower reading of the amendment[2], with plenty of justices in between. Trial judges generally do not have the time to be sufficiently up-to-speed in advance on First Amendment jurisprudence, leaving litigating attorneys to synthesize the applicable First Amendment law to them, both credibly and persuasively.

Many prosecutions strike at free expression, with the First Amendment often ready at the rescue. The best way to be armed with the First Amendment in criminal cases is to know both its civil and criminal jurisprudence, as the civil side can often get intertwined with the criminal side, including civil and criminal libel laws[3], both civil and criminal laws geared to hound strip clubs[4] and adult video stores[5] [6], and criminal laws applying to demonstrators who have no demonstration permits[7] or who are arrested for acting disorderly.

First Amendment defenses apply for defending such criminal cases as obscenity (Miller v. California, 413 U.S. 15 (1973)), child pornography (Ashcroft v. Free. Speech Coalition, 535 U.S. 234 (2002)), soliciting minors for sexual activity (see Ashcroft v. FSC, supra, for arguments on statutory vagueness and overbreadth), disorderly conduct (Chaplinsky v. New Hampshire, 315 U.S. 572 (1942), phone harassment (U.S. v. Cassidy, , RWT 11-091, ___ F.Supp. 2d ___ (D.Md. Dec. 15, 2011) (discussed infra) (Titus, J.), and stalking (Cassidy, id.).

First Amendment defenses also apply against prosecutions for cross burning (R.A.V. v. St. Paul, 505 U.S. 377 (1992)), providing non-obscene erotic material to minors (Reno v. Am. Civil Liberties Union, 521 U.S. 844 (1997)), providing violent video games to minors (Brown v. Entertainment Merchants Ass’n, 131 S.Ct. 2729 (2011)), videotaping animal cruelty (United States v. Stevens, 130 S.Ct. 1577 (2010)), and sending email spam (Jaynes v. Virginia, 276 Va. 443, 666 S.E.2d 303 (2008)).

As the Internet continues to dominate as a communications medium, prosecutions involving Internet use will increase, including obscenity, child pornography, soliciting minors for sexual activity, online copyright infringement, email spam, online gambling, alleged terroristic communications, stalking and harassment.

In United States v. Stevens, the Supreme Court affirmed the Third Circuit’s decision holding that a content-based restriction of protected speech ” i.e. a federal statute that criminalized the intentional creation, sale or possession of a depiction of animal cruelty ” did not serve a compelling state interest on the basis that these types of content-based restrictions of protected speech are presumptively invalid. [Stevens,] 130 S.Ct. 1577, 1584 (2010).12 Because the Government’s interest in criminalizing speech that inflicts emotional distress is not a compelling one, the statute does not survive strict scrutiny…

The foregoing law can help sway judges to provide favorable results to criminal defendants when the First Amendment applies.


[1] New York Times v. U.S., 403 U.S. 713, 720 (1971) (Douglas, J., concurring, joined by Black, J.)

[2] City of Erie v. Pap’s A.M., 529 U.S. 277, 310 (2000) (Scalia, J., concurring).

[3] New York Times v. Sullivan, 376 U.S. 254 (1964) remains the key Supreme Court case for limiting the reach of libel laws. In Dring v. Sullivan, 423 F. Supp. 2d 540 (D.Md. 2006), I obtained the dismissal of an online libel suit based on the limits of long arm jurisdiction.

[4] City of Erie v. Pap’s A.M., 529 U.S. 277 (2000), reconfirms that nude performance falls within the ambit of the First Amendment’s free speech clause. Lawyers continue, with good reason, to argue that lap dancing also is First Amendment-protected. See Lap Dances Find Academic Champion as Cities Rein in Strip Clubs, (Bloomberg, Dec. 5, 2011).

[5] City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002), addresses the negative secondary effects principle, which is a disingenuous legal fiction.

[6] City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) requires a sufficient number of accessible locations for the operation of adult entertainment businesses, including when they are zoned out of their current locations.

Thomas v. Chicago Park Dist., 545 U.S. 316 (2002), and FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990), prohibit government employees and officials from using unbridled discretion in issuing permits and licenses for demonstrations, adult entertainment businesses, and other expressive activity.