Related to speech and expression, social, political, artistic or sometimes none of the above. Sometimes the tradeoff society where we want to speak only what we believe but we may adapt where speech became before us but we were credit for what we create. This involves a balance between unrestricted speech and sounds against other values. When does unwanted speech crossed the line into criminal threat . Is when we can determine whether it is a threat and intent on the speakers part matters. Turning to another case, the freedom of conscious and wish to speak should the government mandates access to the speech or public Accommodations Office conflict . When must be having part of another encourage creativity while incentivizing the work . These and more are raised and partially answered by cases and articles you will hear about next. Will briefly discuss the review to set the stage of you all for discussion and keep the bios short because there full bios at the back. First of, clay calvert, former director of the First Amendment project in florida and being on counterman versus colorado. The annual constitution symposium, im going to end a little bit of time for this afternoon talking about the Supreme Court decision this june and criminal law case of colorado. The really counterman for online talking causing serious emotional distress. Specifically over the course of several years hundreds of Facebook Messages colorado singersongwriter with whom he has no prior relationship and a total stranger called and not off permanently and it will tell you. The messages and new heard movement in several times on facebook but kept coming back so he kept powering them in cost to cancel several performances and turndowns in the colorado jury convicted the online stock and causing serious emotional distress. Protected by the First Amendment guaranteed free speech because they argued this is not rise to the level of unprotected true threats of violence. Stocking conviction could not stand because his works did not fall into one of the few categories United StatesSupreme Court held protected by the First Amendment mainly true threats of violence. When exactly announced the threat of violence outside the production. Compared to other categories of speech might think about, incitement or obscenity, the truth is relatively new as the Supreme Court has recognized, in 1969, the court overturned the conviction for Lyndon Johnson during 1966 antiwar rally to the Washington Monument so complaining about these, 18yearold watts told the crowd they ever make me carry a rifle, but first man to sell, they laughed. The court deemed political hyperbole stresses the First Amendment does not safeguard true threats which failed to define in 1969 in 2003 the court offers partial definition and observed, states with the speaker means to communicate a serious expression of intent to commit acts of unlawful violence for particular individual or group of individuals. What does that really mean . It was unclear they disagreed with this for the period that actually required to attend to threaten someone they communicate a message that came to be understood as starting person to whom it was received . The court tackled. The speakers mental awareness about statements in their. Doesnt matter usable present in a message threaten an important position. A drone might be misunderstood, may never have been intended a way normal fears for being will be able to have the censorship and expression of statement protected by the First Amendment. Fear of liability as sometimes they are sensitive times when it comes to sort out whats a threat. Objective reasonable standards can turn out to be subjected left in the hands of jurors. Taking into account speakers state of mind regarding the threatening nature sometimes me safeguard this and prevent a person from being convicted is not morally culpable. On the other hand intended to protect people from certain harm in the Supreme Court stated the design to protect individuals from destruction that it engenders and the balance will in fact occur so the jury was not asked to consider anything about his state of mind what he knew or incentivizing statements. What he thought did not matter. All that counted was if it would find it threatening so courts should consider the state of my turning their awareness or lack there of, threatening nature of what they communicate. He could try to balance the First Amendment protecting speech on the one hand the interest in protecting the victim from a terrifying life disrupting harm on the other from threats and heres what the Supreme Court concluded. Ive just a story and elena kagan and barack obama of 20 during practices from across the ideological political spectrum, namely chief Justice John Roberts and samuel alito, to push appointees and the donald trump appointee Ketanji Brown jackson, joe biden of 20 concluded the state of mind these must be considered when deciding the threat. More specifically this is the rule the Court Created quote consciously disregarded a substantial Risk Communications could be viewed as threatening, three parts. Consciously disregarded, and risk and threatened by recklessness. Recklessness has done more than make the mistake and accepted substantial risk of harm because the jury was not asked to consider this, the Court Conviction back to colorado retried without the Standard Wheel or such, a lot of interesting matchups between the justices, believed a higher level of recklessness in this case specifically for believe the government must prove purpose to put a person in fear of violence. Its not enough the speaker was aware of substantial risk of harm will disregarded. In their view, the government must prove speaker actually intended to make the target feel threatened so it should be noted somewhere in between the highest level with intent or purpose and power level, there is a number level of knowledge, the speaker might not have intended to put a person in here but instead knew the target would be fearful. They both issued the opinions. They believe the objective state of mind about threatening meaning whether intent, purpose, knowledge or recklessness, basically irrelevant. All they must prove is a reasonable was your full. This is the least free speech from the possibility and uphold the production. The bottom line being the court adopted recklessness standard or mental state. The government must demonstrate a defendant consciously disregarded a Risk Mitigation is viewed as threatening violence. Those five justices nominated by four president s from two different parties so free speech can unite despite their political ideologies although we will hear that was not the case with this. Next up is christopher greene, professor of law at the university of mississippi. That was a beautiful segue interrupted by 303, one of the big cases and conservative versus liberal, i got a lot of press i think, most people are pretty familiar with it but should colorado five years ago in the masters cake shop, a free exercise case, for special election caps off, 14th amendment so masterpiece they said is going after this fact philip because of hostility to religion, but the 303 case, about websites. So if you go to a wedding, a weird one so if you got something to be green, my grandmother was there, 1 foot turned green so anyway, this, and what, what she had this idea, and the winning and will want to see only the this service so i told my kids and they said who were the people who wanted a website . There werent any people because she colorado would come after a lot of coverage when it first came out and gave the impression the case about whiteness which it was not but she obviously had no controversies with the state of colorado but no particular couple came saying we want a website lori smith conditions, she filed a federal lawsuit on this while from getting in the lori smith house monopoly on lori smith, as part of this wild theory that didnt get much on the second is that maybe there will a firm, fox kind of wacky and that was right thing it violates me right under Employment Mission and overruling we are going rewrite this and its about the there was another brief theory that i was on and it was back so is very at Harvard Law School and some friends of his this was about the in pretty extensive form. As you read the opinion spending like three or four pages really going like singers right in all of these cases saying what is a theory . My theory is we should reinvigorate Public Interest doctrine from illinois as applied to samesex wedding cases, if you could get service somewhere else with no additional hassle at all, access due to relevant goods, theres no reason for a particular person to apply this other than the desire to have that persons view suppressed because thats not a legitimate interest unless you have scarcity, you dont have a genuine reason. Senior and his colleagues say that not the right history of public accommodations law. They say public accommodations is about to independence, specifically they say business offers to serve the public, any business at all offers to serve the public, its subject to serve all equally so not limited to any particular kind of business. This is contrary to something Supreme Court said in 1923. Charles says one does not devote business to public use will close with Public Interest merely because of commodities and cells to the public. Why wouldnt the court want to cite this case from 23 . Of course its phobia. You dont have to go full locker to get there so what i want to do and what a lot of scholars want to do is have a tradition and equal citizenship approach to economic entrepreneurial liberty as well as other things under the 13th amendment to First Amendment . Was the first word . Congress. Youre not going to be able to go and its going to be proper. Why . 1791 federal government that has no power over occupation. How do i know . They didnt have the power to prohibit slavery. Article one section plus one so if we reinvigorate the Fourth Amendment and go back to tradition accommodation, youre going to find these rationales. He find some cases saying public accommodation for businesses that serve in the public and you will find cases saying these laws are for accommodation of people whose circumstances of blinds them to trust particular people so it is a case from 1703. From 1701 anyway, theres a lot of historical debate and i invite you to read the article. Basically they look at a bunch of cases saying its for businesses for everybody and they look at these, dont look, they dont mention cases that say it is tight circumstances of scarcity. Basically i mentioned online or twitter or something saying about cox, what about 19th century cases that talk about scarcity . There are more cases that talk about serving the entire public rather than different rationales what we should do is look at all to see if you can have integrated rational self 1701 case written by the same author the way we should think is this. If you are a railroad or surveying difficult scarce situation and you make it an offer to the entire public, come on the railroad and use no particular places and then you say its going to be an extra 3000 in, store your laptop in a safe or something, you got them over a barrel. The offer to the public causes the scarcity which requires the public accommodation so thats my story of how you put the rationale together. Certainly look at charles wolf, that is the picture you get, there are particular pieces of evidence, line in the 1914 article for the article says nowhere is monopoly suggested distinguishing characteristic that she reads saying nowhere in the discussion of public accommodation in the entire history of the 19th century is discussed talking about the early 18th century, hes not saying it had nothing to do with monopoly, hes deciding the Historical Foundation so anyway, theres a bunch of details if youre interested which of course you should be and virtually all of you are, im sure but the thing that is most encouraging, not criminal from the justice and this long distance, it makes me think that it is expected on this ground and given the weakness, it seems like this battle has come maybe another five years. Finally, we have gregory, associate professor of law at the university of baltimore senior litigation counsel recently served as resident associate justice of the Supreme Court speaking on to intellectual property cases and jack daniels properties. Its been ten years and its nice to be back. Its kind of odd to me to be on this panel because First Amendment issue in this case are sometimes very secondary in these and construction of case so to intellectual properties but in both cases it was kind of the undercurrent because they claimed to have the First Amendment notwithstanding this so let me talk about the cases and why this was one case where the First Amendment concerns the short end of the argument in my own to begin with this easier case, so you know the trademarks unit if you dont see the label, 90 degrees or we all know dennis had particular number seven so you see all of the features and that is the purpose. You have trademarks and they recognized. You could be driving down the highway and you see it down the road and you underneath and you see a car and they need to come up will. They make these and one was shaped is where bottle was formed similar to jack daniels law, its wrong and instead of saying Tennessee Whiskey for this recipe, it says number two on your tennessee carpet and they call this bottle not jack daniels, they call it bad daniels. Apparently he didnt see the humor in this so they sued on Trademark Infringement meaning these consumers, the joy would come from the same producers as jack daniels and they sued arm this word, disparagement of the mark. There was a trial and it included they are confused or there is this confusion and trademarks over and i teach in this language no space is a joke, right . And brain cells knows thats what happened. It is that humorous sarcastic entry into the market and thats how it got to the. And they rejected that here. Essentially sure, there may be instances where you do need to talk about the mark and use the symbol to comment on the mark so the movie super size me, super size is a trademark of mcdonalds and in those, not to sell your own, mcdonalds has terrible food in her a good car or your own but as a comment, of course you cannot make commentary on anything without naming that thing. I suppose the one that uses assistant not really based on this, you could describe that but that is inefficient to set Apple Computers are good, bad, indifferent, whatever. Justice kagan says there is this narrow set of circumstances where youre not having this mark but it is used in another way and there is this case that came up a while ago. He made a movie and authorized this, you are using my trademark to self your own movie but how else are you going to shoot a movie about a couple who model their life . Although you use this trademark, its not about her, and it is way too far. In every trademark dispute, from now on the first step of the inquiry is, is there a potential First Amendment value allowing people to speak . There is a value about humor and justice came in, thats not how it works. First, figure out if you are trademark violation and may be you will be able to use the First Amendment defense even if it is exists. By the way, the defense, come on, Everybody Knows this is a joke, Everybody Knows that humor but if that is true, it seems odd was a matter of fact finding, the court could be confused. Of course its a joke, of course just making fun of jack daniels but we know this defense, im not quite sure this is the case and if you understand, through for the photographed, it is very helpful in what they are debating about. One of my professors said a picture is worth a thousand words. People can look at that so a famous photographer took a photograph of the late artist, she writes a onetime use and she paid money and took the photograph and got the license turned the photograph over who adjusted it and rotated it totally within permission granted and they printed the article and transformed the photograph and that was that but so loved the photograph and numerous colors based on the photograph and etc. The fact that one died in the rush to publish more studies, a lot of magazines were speaking for the period so they published the 2. 1, it was not initially in vanity fair and the photographer instantly recognizes this and send a letter and what are you doing . This is my photograph, my copyright. At the very least you ought to pay me loyalty and this is america. They just went to court and we are not infringing and even if we are, we have a First Amendment sketch to write because our work is transformed and that was the argument and kagan wrote this opinion a few weeks prior in the First Amendment but side is kicking and robert in the opinion so he writes this photograph here is kind of the baseline. Its not just slap some paint and holiday. Those of us have seen, thats not nice but that is not all there is to it. The question is not merely whether it resulted in a different work of art, of course it did. The question is whether its the type of difference. The