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Chapter 3

MMC 4200 Chapter Notes - Chapter 3: Constitutional Avoidance, Child Pornography


Department
Mass Media Communication
Course Code
MMC 4200
Professor
Colin Kearney
Chapter
3

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Chapter 3 Hate Speech/Fighting Words
Hate Speech
Justice Murphy and the “fighting words” doctrine (1942)
o Words that by their very utterance inflict injury or tend to incite an immediate
breach of the peace
Fighting words can be prohibited as long as the statutes are carefully drawn and do not
include prohibition of protected speech
o Must be a verbal assault (face-to-face manner)
Swearing can sometimes be fighting words, it depends on the context
The threat of violence is NOT required to be considered fighting words
o Instead, a “threat is merely another factor to be considered by the courts when
determining whether the words spoken were fighting words”
Unprotected speech include:
o Child pornography involving real minors, as well as obscenity
o Fighting words under Chaplinksy
o Incitement to violence under Brandenburg v. Ohio
o Certain types of libelous statements
o Advertising that is false, misleading or about an unlawful product or service
A Minnesota ordinance that made it illegal to have any picture or writing that arouses
the anger, alarm or resentment in others on the basis of race, color, creed, religion, or
gender”
o State courts upheld it by saying it was synonymous to “fighting words
o The Court struck it down because it was content-based
o Revisited in a Virginia Cross-burning case, the Court held that it was
constitutional if the state could prove the intent to intimidate
True Threats of Violence are not protected
o This doctrine is being used to pass anti-cyberbullying statutes
Constitutional avoidance if the Court can resolve a case on statutory grounds without
ever reaching the constitutional issue, it should do so
Foundation for Individual Rights in Education (FIRE) works to challenge school policies
that too strictly restrict free speech
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