Chapter 2: The First Amendment
Snyder v. Phelps
Supreme Court held the 1st Amendment was violated by a $5 million jury award for emotional distress allegedly caused by picketers carrying signs proclaiming "God Hates Fags" near a soldier's funeral; the court feared jurors imposed liability due to their dislike of the views expressed
Miami Herald Publishing v. Tornillo **
Supreme Court struck down a section of the FL Election Code requiring a publisher to print a free reply by candidates attacked by a paper; The court held that while the statute does not "prevent [newspapers] from saying anything [they] wish" it "exacts a penalty on the basis of the content." Because newspapers are economically finite enterprises, "editors may conclude that the safe course is to avoid controversy," thereby chilling speech; the Court held the exercise of editorial judgment is a protected First Amendment activity.
T/F "A university that opens rooms can limit access to student organizations discussing political and social issues, but the university cannot discriminate against viewpoints expressed by students on those issues."
TRUE
T/F "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."
TRUE
T/F "In 2001, a federal appeals court reaffirmed that students at state universities and colleges enjoy more First Amendment freedoms than high school students do."
TRUE
T/F "Individuals and ideological groups have a First Amendment right to contribute money and to solicit funds to further a cause."
TRUE
T/F "The Supreme Court has ruled that the media's freedom of expression includes protection to publish false, defamatory statements about public officials, provided that the false statements are not published knowingly or recklessly."
TRUE
T/F "The Supreme Court has said, the constitutional guarantee of freedom of expression means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content."
TRUE
T/F " First Amendment rights of students at public high schools are weak."
TRUE, Supreme Court has ruled that hs officials can regulate student speech that is disruptive, lewd, or "inappropriate" in campus newspapers, school assemblies and other school sponsored settings
What case did the Supreme Court strike down a law punishing desecration of the American flag?
Texas v. Johnson (1984); Gregory Lee Johnson burned a flag at the Republican National Convention in Dallas to protest policies of the Reagan administration; his act posed as no danger
Morse v. Frederick (2007)**
"Bong Hits for Jesus"; upheld suspension; Supreme Court extended school control over school-sponsored student speech to school-approved off-campus events;
First Amendment
"Congress shall make no law respecting an establishment of religion or prohibting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances."
Theories of freedom of expression
1. Attainment of truth 2. Governance 3. Check on Government Power 4. Change with Stability 5. Fulfillment
The most important judicial practices guaranteeing maximum freedom of express are
1. judicial review 2. First Amendment due process 3. bias against regulating expressive content
What kinds of speech does the First Amendment protect absolutely?
1. speech critical of the government (although the media may be sued if they defame individuals within the government) 2. Equal time requirements mandated by federal communications law for broadcasting stations
What factors go into play when determining if a regulation is constitutional?
1. type of expression 2. who is speaking 3. medium of expression
Exceptions to freedom of speech depends on:
1. what is said 2. who is speaking 3. the harm that speech or writing causes
Who said "truth is not our deepest need" and he is referred to as an absolutist?
Alexander Meiklejohn
Cohen v. California (1971)**
Court overturned the conviction of a war protestor because the slogan "F*ck the Draft" on his jacket he wore in a CA courthouse did not constitute as fighting words; it presented no immediate danger of a violent physical reaction in a face-to-face confrontation; not a personal direct insult
Hazelwood School District v. Kuhlmeier **
Court upheld deletions of two stories about teen pregnancies and divorce from the student newspaper; b/c the newspaper was not a public forum; after this case "high school admins can impose almost ANY reasonable regulation on school-sponsored student expression
T/F "The courts are more tolerant of regulations on political speech than on commercial speech or sexual expression."
False, the courts are less tolerant of regulations on political speech than on commercial speech or sexual expression
T/F "Government employees may not speak as private persons on public issues and vote for political candidates."
False, they can speak out & Supreme Court also ruled mid-level gov. employees may accept payments for talks and articles they produce off the job
Check on Government Power
FoE serves to further democratic governance; values as a check on abuses of governmental authority; Professor Vincent Blasi; most valued during pathological periods
Who believed the truth has no chance to prevail without the freedom of expression (FoE) and silencing the opinion of even one person robs the human race?
John Stuart Mill
What case did the Supreme Court employ strict scrutiny to strike down an Ohio law prohibiting anonymous campaign literature "designed to influence voters"?
McIntyre v Ohio (1995)
Is symbolic expression permitted at times and in all places?
NO, however, it is protected by the First Amendment along with more "pure" speech and publishing
Are cable operators subject to having the government regulate "decency" of its programs?
No, cable is subject to minimal government control; cable is a medium like newspapers that customers choose by purchasing it; however publishers have a little more freedom than cable
Are high schools required to wait until there is violence to prevent thing?
No, officials have wide discretion to forestall violence and protect student safety
T/F " Courts are less tolerant of regulations on the print media than on broadcasting."
True
T/F "A private speaker may permit "multifarious voices" in a parade without forfeiting the right to exclude others"
True
T/F "As in all forums, the government may not favor one viewpoint over another."
True
T/F "Freedom of expression is not protected absolutely."
True
T/F "Publishers enjoy fuller freedoms of expression than broadcasters and nonmedia corporations."
True
T/F "Regulations on speech by adults are less likely to be constitutional than regulations on expression by students."
True
T/F "The Internet, like newspapers, is generally unregulated."
True
T/F "The average adult has greater First Amendment rights than students and government employees?"
True
T/F "Without the 14th Amendment, the 1st Amendment would only protect American citizens from abridgments of free expression by the federal government. The 14th Amendment protects citizens and the media from "state action" abridging free speech."
True
T/F "Cross burning to intimidate constitutes an unprotected true threat."
True, according to the Virginia v. Black case
T/F "Corporate rights include the ability to buy advertising supporting or opposing ballot issues"
True, for example whether a state should require a deposit on beverage containers to encourage conservation
T/F "The right to speak and publish therefore implies an audience to hear, to read and to respond."
True, it protects the interchange of ideas
T/F "The right to receive derives from, and it is subsidiary to, the right to speak and publish."
True, therefore it is difficult to assert
Who said "abuse of government is an especially serious evil -- more serious than the abuse of private power, even by institutions such as large corporations which can affect the lives of millions of people"?
Vincent Blasi
Can an overbroad or vague law that restricts freedom of expression be challenged "on its face" and why?
Yes, because the very existence of the law may curtail freedom of expression
incorporation doctrine (process)
a constitutional doctrine through which the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process clause of the Fourteenth Amendment
theory
a set of assumptions, principles and procedures that categorize knowledge and explain behavior
What do the courts adopt when reviewing content regulations?
a skeptical attitude of "prove to me there is nothing unconstitutionalabout this regulation"
Simplistically, what does the clear-and-present danger test set?
a standard for halting or punishing speech that presents an immediate danger of unlawful action
What is in the MIDDLE when it comes to favored speech & what is it subject to?
advertising & nonobscene sexual expression & it is subject to intermediate scrutiny, or more relaxed scrutiny
Attainment of truth
argument that freedom of expression aids the search for truth assumes that rational decisions emerge from consideration of all facts and arguments; marketplace of ideas metaphor; John Milton & John Stuart Mill valued free speech
fighting words
beyond constitutional protection; words by their very utterance inflict injury or tend to incite an immediate breach of the peace
When should the balancing test be employed?
cases involving defamation or invasion of privacy, speech may be sufficiently harmful to justify compensation for an uninjured party; cases where speech incites unlawful action
Schenck v. U.S. (1919)
concluded that defendants who distributed fliers to draft-age men, urging resistance to induction, could be convicted of an attempt to obstruct the draft, a criminal offense.
hate speech
consists of written or spoken words that insult and degrade groups identified by race, gender, ethnic group, religion, or sexual orientation; ALLOWED & can include swastikas carried by neo-Nazi marchers or a burning cross in a black family's front yard
Change with Stability
contribution of free speech to orderly change; free expression can act as a safety valve, allowing critics to participate in peaceful change rather than seek influence through antidemocratic acts; Thomas Emerson; promotes stability & flexibility, tradition and change
definitional balancing
courts define the outer limit of free speech before the balancing test is applied in individual cases; reduces the vagueness of ad hoc balancing by providing defined standards that can be applied in similar cases
Whistleblower Protection Act of 1989
created to protect federal employees from retaliation if they reveal violations of law or regulations, gross mismanagement, waste of funds, abuse of authority, or substantial danger to public health or safety
What does protected subject matter include?
debate about elections, referenda, labor, race, health, agriculture, religion, education and other political social issues
examples of dedicated public forums
dedicated areas of campus facilities, school board meetings, municipal auditorium, municipal school bus
Does public access to government records and meetings depend on state and federal statutes or on a First Amendment right of access serving a public right to receive information?
depends on state and federal statutes
dedicated public forum (aka limited forum)
designated areas for public discourse; as with a traditional public forum, this type of forum may have a speaker excluded only if the gov. has a compelling interest that is narrowly tailored; can limit to certain speakers and topics in order to preserve the purpose for which the forum was created
bad-tendency test
discredited today; expression may be halted or punished if it presents the slightest "tendency" to cause a substantial evil; unconstitutionally vague because it fails to warn a speaker when speech may be punished
Professor Vincent Blasi
emphasize the importance of protecting powerful media that "check" government's power
What factors determine the degree of freedoms that a medium enjoys?
factors include: availability of channels, the pervasiveness and intrusiveness of the medium, and the historic relationship between the government and the medium
What is the LEAST favored speech & what is it subject to?
false advertising, fraud, child pornography, fighting words and true threats & they are all excluded from constitutional protections
Chaplinsky v. New Hampshire (1941)**
fighting words doctrine established from this case; Chaplinsky convicted for calling a marshal in N.H. a "g*ddamned racketeer and a damned Fasc*st" these epithets were deemed by the courts as likely to provoke the average person to physical retaliation; outside of 1st Amendment protection
viewpoint discrimination
form of content regulation that does not regulate a whole category of subject matter (i.e. political speech) but rather favors or disfavors a point of view within a category
traditional public forums
historically been open for public discourse; include streets, parks, and other public places that the Supreme Court says have "immemorially been held in trust for the use of the public" for assembly, communicating, and discussing public questions; gov. can impose reasonable regulations on the loudness and house of speech, but can exclude speakers only by demonstrating a compelling interest (i.e. stopping a riot) & that is narrowly tailored
When can a person's expression be halted, punished? (essentially when are you are not protected)
if it endangers national security, incites a riot, contains "fighting words" or infringes a copyright, or after dissemination if it damages the reputation of others or invades their privacy
What does Professor Thomas Emerson say about the root purpose of the First Amendment?
is to assure an effective system of freedom of expression in a democratic society
If a regulation is content-neutral, then
it will be acceptable if the law serves a substantial, but not compelling governmental, interest
What is an overbroad law?
may be quite clear about what it prohibits, but it prohibits too much; i.e. The Supreme Court ruled the Communications Decency Act was overbroad & vague
What is an example of a nonpublic forum?
military base, because it is dedicated to the training and discipline of soldiers not to the exploration of ideas; the gov. has power to preserve the property under its control for the use to which it is lawfully dedicated
What is an unconstitutionally vague law?
one that is written so unclearly that persons "of common intelligence must necessarily guess at its meaning and differ as to its application"; inhibits speech by making speakers unnecessarily cautious
What is the MOST favored speech & what is it subject to?
political and social content (expression dealing with political, social, religious, and cultural issues) & it is subject to strict scrutiny
Which type of medium has historically enjoyed the MOST protection under the First Amendment?
print medium
What does the 14th Amendment do?
prohibits any state from enforcing a law that would 1. abridge the privileges or immunities of citizens of the U.S. 2. deprive any person of life, liberty or property, without due process of law 3. deny any person equal protection of the laws
nonpublic forum
property that is neither traditionally open for public debate nor dedicated by policy to public discourse; government may permit speech, but the gov. need demonstrate no compelling reasons to justify barring speech; government only needs reasonable regulations that preserve the property for the purpose to which it is lawfully dedicated
What types of regulation is the Constitution more tolerant toward?
regulations on advertising, nonpolitical communication and other content-neutral regulations (such as restrictions on the time and routes of parades) that may impinge slightly on freedom of expression but are not aimed at regulating the content of the speaker's expression, ONLY time, place, & manner of expression
First Amendment due process
requires that judges determine what restrictions are allowed after the government meets its burden of proving that a regulation is necessary; the government bears the burden of proof so that the media will not become defensive and censor themselves
What First Amendment rights do profit-making nonmedia corporations have?
rights to spend from the corporate treasury for all manner or product advertising and issue advertising to bolster the corporate image and comment on public affairs; i.e. Coca Cola or Microsoft
Near v Minnesota (1931)**
since this case almost all of the clauses in the Bill of Rights have been applied to states in a process called incorporation;decision that found that prior restraints on publication violate freedom of the press as protected under the First Amendment, a principle that was applied to free speech generally in subsequent jurisprudence;
true threat
speech or symbolic expression intended to create a pervasive fear in victims that they are a target of violence; intended to intimidate
Professor Lee Bollinger
stresses the importance of freedom of expression as a way to develop and reflect a tolerant society
If a regulation is aimed at content, then it is subject to...
strict scrutiny
Where regulations restrict the content of political, social, and artistic expression, skeptical judges subject the regulations to an analysis called
strict scrutiny
content regulations
subject to strict scrutiny to prevent government from unconstitutionally favoring or discriminating against a subject or viewpoint
Professor Frederick Schauer
suggests there are several First Amendments, each with different theoretical justifications for different circumstances
absolutionism
supported by Justice Hugo Black; argued that the federal government was "without any power whatever under the Constitution to put any type of burden on speech and expression of ideas of any kind"'; concedes that the government may abridge perjury and fraudulent speech
The authority of American federal courts to review the constitutionality of state laws restricting speech derives from...
the 14th Amendment
public forum & types
the degree of government control depends on the degree to which the property is this kind of forum; 1. traditional 2. dedicated 3. nonpublic
strict scrutiny
the regulations must be 1. justified by a compelling government interest and 2. narrowly drawn so as to impose the minimum abridgment of free expression; the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest
Aside from the right to speak and publish, what is another First Amendment right that a citizen has?
the right to associate with others
speaking & publishing
the right to speak and publish is basic to freedom of expression; includes the right to participate in symbolic forms of expression (i.e. marching, demonstrating, contributing money to a political campaign & burning the American flag); anonymous speech is protected too
Governance
theory of freedom of expression is to be valued primarily for its contribution to governance; Alexander Meiklejohn; FoE was valued for its role in democratic governance than as a route toward truth
What are broadcasters, who acquire a government license required to operate in?
to operate in the public interest
clear-and-present danger test
today protects more speech than the bad-tendency test; first stated by Justice Oliver Wendell Holmes in Schenck v. U.S.; "only when words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent"
T/F "Unlike newspapers publishers, broadcasters must allow equal opportunities for political candidates to access their channels during the election cycle."
true
The courts examine content- and content-neutral regulations for what two things?
vagueness and overbreadth
Fulfillment
valued not only because of the social values it promotes but also because speaking and publishing enrich one's life; Professor Laurence Tribe; a fundamental good; contributes to human fulfillment; "government of the people"
actual malice
when false statements are published knowingly or recklessly
ad hoc balancing
when judges treat each case separately, placing speech considerations on one side of the scale and conflicting values (i.e. individual reputation) on the other side; no definitions or single standards for guidance; provides great flexibility and lack of predictability
Do commercial media corporations have a First Amendment right to criticize and comment on candidates?
yes
Is freedom of expression a negative freedom?
yes, because it is freedom FROM government interference
Does freedom of expression include freedom from compelled speech?
yes, i.e. the government cannot compel schoolkids to salute the flag if their families' religious beliefs forbid it
