The First Amendment permits criminal punishment for speech only when it falls within an established exception. True threats, incitement to violence, obscenity, and fighting words are among the categories of speech falling outside the protections of the First Amendment (although the fighting words exception is arguably defunct as a practical matter, as I wrote here). Each category has narrow definitions and standards that must be met as a matter of constitutional law before criminal liability can be imposed. My former colleague Jonathan Holbrook has written about the incitement exception and the true threats exception before. I wanted to write about another First Amendment exception, one that is much broader than the rest—speech integral to criminal conduct. Read on for the details.
first amendment
Case Summaries – U.S. Supreme Court (June 23 & 27, 2023)
In her concurring opinion in Samia v. United States, No. 22-196, 2023 WL 4139001 (U.S. June 23, 2023), Justice Barrett makes a startling admission: “[W]hy not simply say that the history is inconclusive?” Justice Barrett, remember, clerked for Justice Scalia, author of the watershed confrontation clause case, Crawford v. Washington, 541 U.S. 36 (2004), which relied heavily upon a historical analysis. See id. at 43 (“We must … turn to the historical background of the Clause to understand its meaning.”). In reciting this history, making it central to interpretation of the Sixth Amendment, Scalia rejected the view that the framers’ intent cannot be recovered from the remaining sources. Cf. California v. Green, 399 U.S. 149, 174 (1970) (Harlan, J., concurring) (“History seems to give us very little insight into the intended scope of the Sixth Amendment Confrontation Clause.”). Indeed, Justice Thomas, writing for the majority in Samia, likewise makes “historical practice” a pillar of the Court’s analysis, albeit a history Justice Barrett finds disposable. Samia, 2023 WL 4139001, at *6. This post summarizes opinions issued by the United States Supreme Court on June 23, 2023 (Samia v. United States) and June 27, 2023 (Counterman v. Colorado). These summaries, written by Joseph L. Hyde and Brittany Bromell, respectively, will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to present.
Fourth Circuit Rules that the First Amendment May Protect a Vehicle Occupant’s Right to Livestream a Traffic Stop
Several years ago, two officers working for the Winterville Police Department stopped a car for a traffic violation. Dijon Sharpe was a passenger in the vehicle. Sharpe had some prior negative interactions with police, so he began using his phone to livestream the stop on Facebook Live. One of the officers saw what Sharpe was doing and attempted to grab the phone, saying “We ain’t gonna do Facebook Live, because that’s an officer safety issue.” Sharpe held on to the phone and continued to livestream the stop. One of the officers told him that recording the stop was fine, but that livestreaming was not permissible and that “in the future,” if he attempted to livestream a stop, his phone would be taken from him. Sharpe subsequently sued, contending that the officers violated his First Amendment rights by trying to prevent him from livestreaming the stop. A federal district court dismissed his complaint. Sharpe appealed, and the Fourth Circuit recently issued a significant opinion in the case. Read on to find out what the court said.
Does the First Amendment Protect a Right to Verbally Abuse the Police?
Editor’s note: This post contains vulgar language that isn’t suitable for children and quite possibly many adults. If you’re an email subscriber, your spam filter probably won’t like it, either. Also, it is quite long.
A federal court of appeals recently ruled in favor of a man who called a group of police officers “bitch ass fucking pigs,” “motherfuckers,” and “dirty rat bastards.” It found that his arrest on disorderly conduct charges was unjustified because “mere epithets” directed at a law enforcement officer, no matter how coarse or profane, do not constitute fighting words and are protected by the First Amendment. Wood v. Eubanks, 25 F.4th 414 (6th Cir. 2022). This raises the question: do police officers really have to put up with this?
Disturbing Behavior, Harassment and Threats to Public Employees
Editor’s Note: This post has been updated in response to helpful feedback from a reader.
A few weeks ago, my colleague Jill Moore asked me to participate in a recorded interview addressing whether certain disturbing or threatening behavior from citizens directed at public officials and employees could support criminal prosecution. Jill is an expert in public health law so the questions she posed related primarily to concerns raised by officials and employees who work in that field. More recently, another colleague advised that social services employees had similar questions. I thought it might be helpful to share here my thoughts on the questions they posed.
State v. Humphreys and RDO
Last week, the SOG offered a criminal law update featuring various members of the criminal law faculty. If you missed it and are interested viewing the recording, the webinar should be posted here within a few weeks. This post will be familiar to those who attended, as I covered the topic there. Consider watching the program—it is free to view for educational purposes, and a modest cost if you need the CLE credit. For those that prefer their criminal law updates from the blog, read on!
Court Vacates Stalking Convictions on First Amendment Grounds
Yesterday the court of appeals vacated Brady Lorenzo Shackelford’s convictions for felony stalking on the basis that the prosecution of Shackelford for violating G.S. 14-277.3A impermissibly infringed upon his constitutional right to free speech. This post will review the court’s opinion in State v. Shackelford, ___ N.C. App. ___ (March 19, 2019), consider how it might affect future prosecutions, and suggest statutory amendments to stave off future constitutional challenges.
Evaluating the Sincerity of an Inmate’s Religious Beliefs
Inmates do not forfeit the right to practice their religious faith while they are incarcerated. But of course that right is not unlimited. Officers can impose certain restrictions when an inmate’s religious practices would conflict with the institution’s legitimate interests in safety, security, and good order. There is a lot of case law about those restrictions, both as a constitutional matter under the First Amendment, and under a federal statute, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-1(a)(1)–(2)—which is even more protective of inmates’ rights than the Constitution.
Criminal Law and Protests
Protests are breaking out all over. This weekend, protesters gathered at RDU to oppose President Trump’s travel ban. Last weekend, participants in Women’s Marches took to the streets of Washington and Raleigh. This post considers the criminal law issues that most often arise during protests.
Cyberbullying Statute Struck Down
Last week, the state supreme court unanimously ruled that a provision of North Carolina’s cyberbullying statute, G.S. 14-458.1, “violates the First Amendment.” The case is State v. Bishop, and the opinion is here. I previously wrote here about the court of appeals ruling upholding the statute. This post summarizes the case and discusses the new opinion.