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Feiner v. New York – hostile audiences & the 1st amendment

Feiner v. New York – hostile audiences & the 1st amendment.

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Feiner v. New York – hostile audiences & the 1st amendment

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  1. Feiner v. New York – hostile audiences& the 1st amendment • Feiner – speaker advocated racial equality to a crowd that perhaps didn’t receive the speech well. Court essentially finds his breach of peace conviction constitutional because he falls under that exception in Cantwell for speakers who: • intend to provoke violence or disturbance of good order (i.e., a hostile audience response) • It’s not clear what Feiner did to show “intent” other than refuse to listent to police. Nor was there an obvious clear and present danger of serious unrest. • Raises some interesting questions.

  2. Feiner & Police Discretion • SCT notes that absent improper motives, police have great discretion to determine when a speaker is “undertaking to” cause a clear & imminent danger of disorder: • What kind of guidance does the concept of ‘clear & present danger of disorder’ give to the police who are trying to determine whether to intervene and stop a speaker when the crowd is hostile? • Can we readily discern police motives regarding why they shut speakers down? • Where should we look to determine police motives? • How often are such motives overtly “improper”?

  3. Feiner& the Black dissent • Justice Black contends that the police should make “all reasonable efforts to protect” the speaker: • What should such efforts entail? • How does this approach differ from the majority’s focus on whether D was “inciting a riot” and presenting, in the police’s good faith belief, a “clear and present danger” of disorder?

  4. Feiner’s Aftermath – Cox, Edwards, & Gregory • Post-Feiner cases - really a “far cry from Feiner?” • Edwards – 80ish protestors/crowd of 200-300/30 police • Cox – 2000 protestors/crowd of 100-200/80 police • Gregory – 85 protestors/crowd of 1000/? police • What principles do they establish different from Feiner? • Feinerclearly turns on the notion that he “intended” to incite the crowd (regardless of whether the facts bear that out) • Cannot silence speaker with offensive ideas absent clear evidence of imminent, uncontrollable violence • Even then, police must first make all reasonable efforts to control the crowd and protect the speaker first

  5. Terry Jones & hostile audiences • In the first incident – p. 543 – Should the police have removed Jones or tried to protect him per the case law we’ve seen? • Is the restraining order “because he was likely to breach to peace” in the immediately succeeding incident (p. 544 top) markedly worse or better from a free speech perspective? • Re the permit to preach near the Islamic Center in April 2012 – are the 1A problems with the permit system? Consider the following Waiver condition on the permit: In consideration for the right to utilize City of Dearborn property, Standup America! … agree[s] to RELEASE AND FOREVER DISCHARGE the City of Dearborn, a municipal corporation, and its officers, employees, and agents, from any and all claims, liabilities, or lawsuits, including legal costs and reasonable attorney fees, resulting from their activities on the City of Dearborn property.

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