MC 3080 Chapter 2

Pentagon Papers Results

"only a free and unrestrained press can effectively expose deception in government." (Justice Hugo Black) "secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions there should be 'uninhibited, robust, and wide-open' debate." (Justice William Douglas

The First Amendment

"Congress shall make no law respecting an establishment of religion, or prohibiting 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."

Case for Non-verbal Conduct

Texas v. Johnson

Cases for Clothing/Accessories

Tinker v. Des Moines I.S.D., Littlefield v. Forney I.S.D.

Vague Regulations

Vagueness: The regulation does not provide a standard of acceptable conduct. If people cannot tell what speech is subject to regulation, they are likely to avoid engaging in speech, even if it would be protected. This results in a "chilling effect."

Near v. Minnesota

a minnesota law banning "nuisance" publications was ruled unconstitutional; banning future newspaper issues=unconstitutional prior restraint case: the 1st amendment almost never allows for prior restraint

Prior Restraint

action taken by the government to prohibit publication of a specific document or text before it is distributed to the public; a policy that requires government approval before publication

Why is the First Amendment important?

aids the search for truth - the "marketplace of ideas", holds the government accountable, enables self-governance (keeps people informed so they can govern themselves), safety valve for social discontent (to preempt violence)

What are different ways prior restraint occurs?

by injunction, agreement, or discriminatory taxation

Speech Unprotected by the First Amendment

fighting words, true threats, obscenity, copyright/trademark infringement, false advertising

Expression

first amendment speech can take many different forms ex) nonverbal conduct, clothing/accessories, tattoos

Attainment of Truth

free speech advances the "marketplace of ideas" to increase knowledge and the discovery of truth. by challenging "certain truth" and "received wisdom," open public discussion allows a society to expand understanding

Safety Value

free speech allows people to express problems and grievances before they escalate into violence. except during "the worst of times," free speech is a mechanism for "letting off steam" and helping to balance social stability and change, compromise and conflict, tolerance and hate

Limited Government Power

free speech is an "invaluable bulwark against tyranny." the free speech of "the people" serves as a "check" on authoritarian rule and a limit to the abuse of the power by the few

Its Own End

free speech, like clean air, or beauty, or justice, is an end in and of itself, a valuable good and a cherished right

Why is prior restraint rarely appropriate?

in the U.S., it is better to punish unprotected speech after the fact than to prohibit its expression

Six Core Values of Free Speech

individual liberty, self-government, limited government power, attainment of truth, safety value, its own end

What speech is most protected by the First Amendment and what is least protected?

political/social commentary has the most protection followed by commercial speech and non-obscene sexual expression and finally obscenity, false advertising, fighting words, and true threats are unprotected

5 Freedoms of First Amendment

religion, speech, press, assembly, petition

When does prior restraint exist?

-prior restraints are only constitutional in extremely limited, exceptional situations -there must be clear, convincing evidence that publication will cause great and uncertain harm, and that the harm can't be addressed by less intrusive means OR the media clearly got the information through criminal means -prior restraint exists when any government body or representative reviews speech or press prior to distribution and stops the dissemination of ideas before they reach the public

Content-Based Regulations

-the regulation is based on what is said -presumed to be unconstitutional -test: strictly scrutiny, the government must show that it used... 1) the least restrictive means and 2) to advance a compelling government interest

Content-Neutral Regulations

-the regulation is based on where or when the expression is happening -are generally "time, place and manner" -test: intermediate scrutiny, the government only needs to show that the regulation... 1) is within the government's power 2) advances an important or substantial government interest that is not related to suppressing speech and 3) is narrowly tailored to impose an incidental restriction on 1st amendment freedoms

Case for Tattoos

Anderson v. City of Hermosa Beach

New York Times Co. v. United States

the "pentagon papers" case -the government tried to enjoin the new york times from publishing the pentagon papers -this was an unconstitutional prior restraint

Chilling Effect

the discouragement of a constitutional right, especially free speech, by any government practice that creates uncertainty about the proper exercise of that right

Individual Liberty

the freedom is deeply intertwined with fundamental natural rights. in this sense, free speech is an inalienable right

Self-government

the freedom to discuss political candidates and policies and to render judgements is an essential cornerstone of responsible self-governance. the freedom of speech enables "the people" to pursue "democratic self-determination"

Unconstitutionally Broad

Overbreadth: Restricts protected speech, in addition to unprotected speech. A regulation is overbroad if it includes protected speech. Bd. Of Airport Commissioners of Los Angeles v. Jews for Jesus, Inc.

Texas v. Johnson

-"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." -Regulation: TX statute that criminalized the desecration of a "venerated object." (= state action) -Involves speech? Yes, burning a flag is "expressive conduct." -The statute is a content-based regulation; its purpose is to preserve the flag as a symbol of national unity. -Content-based,Strict Scrutiny -Compelling Government interest: Peace/public safety BUT, not the least restrictive means; the statute penalized all flag burnings, not just those likely to result in some kind of public hazard.

Ward v. Rock Against Racism

-Regulation: NYC reg required sound systems and technicians provided by the city for concerts in Central Park. (= State Action) -Involves expression/speech? (Concerts/performances = Yes) Content-neutral reg. (the regulation is concerned with the volume of music in Central Park),Intermediate Scrutiny -Within the gov's power to Regulate? Yes. -The Government has a substantial interest in controlling noise. This concern has nothing to do with SUPPRESSING speech, just managing it. -The regulation was narrowly tailored to achieve the interest of curbing noise pollution. It did not intentionally suppress speech. NOTE: Intermediate Scrutiny does not have to be the "least restrictive means" (that's strict scrutiny).

McCullen v. Coakley

-Reproductive Health Care Facilities Act - Required a 35-ft buffer zone around reproductive health clinics. -Protesters challenged the law under the 1st Amendment. State Action? -Involves speech? Content-Neutral. It is concerned with WHERE protests take place. -Intermediate Scrutiny test -Within the State's power to regulate? Substantial interest? (Preserving public safety/peace) Narrowly tailored? -Here's where the problem is. "The Buffer zones burden substantially more speech than necessary to achieve [Massachusetts'] asserted interests." The buffer zones suppress all protest, including peaceful ones. Doing so doesn't further the interest of public safety/peace. Also, the Government failed to show that there weren't less intrusive ways to achieve public peace and safety at clinics

First Amendment Regulations

Content Based and Content Neutral

Example of Prior Restraint

Gag Orders that prevent trial participants (the parties, their attorneys, jurors, witnesses, etc.) from speaking with the media about the trial. Gag orders can be constitutional, if the court determines that there is a substantial likelihood that allowing trial participants to speak about the trial will undermine a fair trial.