First Amendment


The first amendment provides that "Congress shall make no law...abridging the freedom of speech ...or the right of people peaceably to assemble...


Three types of speech:

1.         pure speech - talking, newspapers, magazines

2.         speech plus - picketing, parades

3.         symbolic speech - flag burning, black arm bands, etc.  See Gilberts Section 832 -     833


Five areas of speech not protected -

1.         Obscenity - give example of cards at Craze

2.         Fighting Words - A personal insult to the person addresses which by their very utterance tend to incite an immediate breach of the peace.

3.         Incendiary Speech - riots, endangering national security - yelling "fire" in a crowded theater when there is no fire (Different if speech is merely "unpatriotic, disrespectful, defiant or patently offensive to the community")

4.         Commercial Speech, libel, slander, defamation of character - Commercial speech = that whose dominant theme is simply to propose a commercial transaction even though there is some discussion of important public issues (advertisement for contraceptives was commercial speech despite discussion of venereal disease and family planning) Because commercial advertising has a greater potential for deception and confusion than noncommercial speech, its content may be more readily regulated.  The offense of injuring a person's character, fame, or reputation by false and malicious statements.  The term seems to include both libel and slander.  Libel is any publication that is injurious to the reputation of another.  Slander - the speaking of false and malicious words concerning another, whereby injury results to his reputation.  Libel and slander are both methods of defamation.

5.         Manner of Speech involved with - time, place and volume (church revival tent with loud speaker blasting at 3 AM) 


Test in regard to validity of restrictions:  Court will weigh:

the great importance of these rights in a democratic society

the nature and scope of the restraint imposed on the individual

the type and strength of the government interest sought to be served

whether the restraint is a narrowly tailored means t achieving that interest



Problems with laws in this area are primarily ones of vagueness and overbreadth

Example:  An ordinance makes it a crime for "three or more persons to assemble on any of the sidewalks and there conduct themselves in a manner annoying to persons passing by."  Held to be vague because people of common intelligence must necessarily guess at its meaning.  Also mere public intolerance and animosity cannot be the basis on which to abridge the right to assemble and the ordinance contains "an obvious invitation to discriminatory enforcement"  - those who are annoying due to their ideas or physical appearance.

Case involving a city ordinance which said "No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, not call him by any offensive or derisive name nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation."  A Jehovah's Witness shouted at a city marshal,  “You are a damned fascist and a damned racketeer.”  Court said those are epithets likely to provoke the average person to retaliation and thereby cause a breach of the peace.  Upheld the ordinance.


Cohen v. California - Defendant convicted of disturbing the peace for walking through the courthouse corridor wearing a jacket that said "Fuck the Draft" in a place where women and children were present.  Court said that the only conduct sought to be punished here was "speech" and that without a showing of an intent to incite disobedience to or to disrupt the draft.  Not obscene since not erotic, also justification of seeking to preservation of an appropriate decorous atmosphere in the courthouse not valid because no mention of any particular locations in the statute itself.


Houston v. Hill - Involved a Houston city ordinance which read "It shall be unlawful for any person to assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty, or any person summoned to aid in making an arrest." Evidence was introduced in the lower court that the ordinance had been employed to make arrests for "arguing, talking, interfering, failing to remain quiet, refusing to remain silent, verbal abuse, cursing, verbally yelling, talking loudly, walking through a crime scene."  The portion of the ordinance challenged was, of course, the "in any manner oppose, molest, abuse or interrupt any policeman..."  Assaulting and striking are obvious physical forms of conduct which were made illegal in other Texas statutes.  Court will uphold prohibitions against fighting words that by their very utterance inflict injury or tend to incite an immediate breach of the peace.


Police officers can be expected to exercise a higher degree of restraint than the average citizen and should be less likely to respond belligerently to fighting words.  Lisa - lecture here on merits of ignoring citizens

The Court concludes:  read Section IV

Bottom line:  A person has the right to express himself to the police verbally, but if he interferes in any way physically, you may arrest.


KC City Ordinance   Peace Disturbance

Did disturb the peace of ___ (state facts describing prohibited act)  If language only, add:  CALCULATED TO PROVOKE A BREACH OF THE PEACE

Cannot disturb the peace of a police officer.

STATE STATUTE PEACE DISTURBANCE - Section 1(c) prohibiting "threatening to commit a crime against any person has been ruled unreasonably broad and is void.  Read comments on page 188.


Disorderly Conduct - Attempting to fight or fighting in public view - Here, there will be a physical act.  DID ACT IN A DISORDERLY MANNER (WITH INTENT TO PROVOKE) WHEREBY A BREACH OF THE PEACE WAS OCCASIONED BY__________________.


Obstructing and Resisting Arrest



            (a) Any person who shall in any way or manner hinder, obstruct, molest, resist or otherwise interfere with any city officer or inspector or any member of the police force in the discharge of his official duties shall be guilty of a misdemeanor.

            (b) Any person who shall attempt to prevent any member of the police force from arresting any person, or shall attempt to rescue any person in the custody of a member of the police force, or from anyone called to assist the police officer, shall be guilty of a misdemeanor.     



DID FAIL TO COMPLY WITH THE LAWFUL ORDER OF A POLICE OFFICER BY ______________________.  TRAFFIC ONLY - based on public interest in the free flow of traffic.


The standard for loitering ordinances are:  Void for vagueness because they fail to give people of ordinary intelligence fair notice that his contemplated conduct is forbidden, it encourages arbitrary and erratic arrests and convictions, makes criminal those activities which by modern standards are normally innocent and places almost unfettered discretion in the police.  The Missouri Supreme Court has struck down the St. Louis loitering ordinance which read "No person shall loiter at the corner of streets, or in the vicinity of any place of amusement or hotel, or public building, or thoroughfare, and refuse to disperse or vacate such places when requested to do so by a police officer.”


Read City Ordinances on Loitering


Eighth Amendment - "...nor may cruel and unusual punishment be inflicted."

Applies to the states as well as to the federal government


The scope of the constitutional prohibition is two-fold:

Look at whether the punishment is disproportionate to the crime, that is, excessive (example - 12 years at hard labor for falsification of records - statute that makes it a crime to be addicted to the use of narcotics) OR the punishment is barbaric regardless of the crime (example - imposing the death penalty on an insane person, stripping an army deserter of citizenship)


The death penalty is not under all circumstances, cruel and unusual punishment.  If the sentencing body is given adequate guidance as to both aggravating and mitigating factors about the crime and the defendant relevant to the sentencing and there must be a review procedure to insure against imposition of the death sentence for discriminating reasons. (A mandatory death penalty with no meaningful opportunity for consideration of mitigating factors is cruel and unusual.)