Chapter 2: The First Amendment

kincaid v. gibson [2001]

1. students at state universities + colleges enjoy more first amendment freedoms than HS students do 2. ruled that kentucky state university violated first am. when admins. confiscated yearbooks b/c admin. did not like the color 3. court rejected university's claim of hazelwood ruling 4. ruled that the university failed to demonstrate the compelling interest needed to justify a prior restraint on content in a public forum in a university

the hierarchy of protected/non-protected speech (3)

1. level one: political + social expression [most protected] 2. level two: commercial + sexual expression 3. level three: fighting words, threats, obscenity, false advertising [least protected]

miami herald v. tornillo [1974]

1. miami herald refused to publish a reply to the paper's criticism of pat tornillo 2. scotus struck down a section of the florida election code requiring a publisher to print a free reply by candidates attacked by the paper, said compelling publication would interfere with the function of editors 3.government can't control editorial content 4.a newspaper could not be compelled to publish news stories, ads, letters or replies

fulfillment (Theory of Freedom Expression)

1. natural and enriches our lives when people fulfill themselves by speaking + writing, they also serve the social + politcal values of free speech professor laurence tribe the first amendment sponsors individualism, rebelliousness + anti-authoritarianism

Freedom of Expression for Corporations

1. non-media corporations have protection but not as much as media corps. 2. profit-making non-media corporations have rights to: - to spend from the corporate treasury for all manner of advertising - to buy advertising supporting or opposing ballot issues - to buy advertising on behalf of candidates in federal elections - to criticize + comment on candidates can be compelled to testify against themselves

hazelwood v. kuhlmeier [1988]

1. principal removed articles because he didn't like the content [about drug issues, teen pregnancy, divorce] 2. court said it was constitutional for the principal to remove the spectrum articles to protect younger students from inappropriate material to allow the school to disassociate itself from expression it disliked, and to protect the privacy of students and parents 3. administrators can impose regulation if it is school-sponsored 4. high schoolers do not have as many first amendment rights as adults [or college student]

level three: fighting words, threats, obscenity, false advertising [least protected]

1. professor matsuda argues that government's failure to punish racial + ethnic invective amounts to state support for hate speech [near v. minnesota] 2. SCOTUS has ruled that most expression of bigotry + prejudice is political speech protected by the first amendment 3. only words that amount to a slap in the face, fighting words, are beyond constitutional protection

Freedom of expression for NONPUBLIC forum

1. property that is neither traditionally open for public debate nor dedicated by policy to public discourse [a military base] 2. gov't has power to preserve the property under its control for the use to which it is lawfully dedicated

Freedom of expression for DEDICATED public forum

1. property that the gov't intentionally designated for public discourse 2. government can limit the dedicated forum to certain speakers + topics in order to prevent the purpose for which the forum was created [turlington]

snyder v. phelps [2011]

1. speech on public sidewalks, about a public issue, cannot be liable for a tort of emotional distress. 2. westboro baptist [phelps] protested with wife and daughter with anti-gay banners at gay soldier's funeral. followed police direction and were 1,000 ft. from the funeral and not visible or audible to mourners.

Freedom of expression for TRADITIONAL public forum

1. the gov't can exclude speakers only be demonstrating a compelling interest [such as stopping a riot] + the exclusion is narrowly tailored 2. cannot favor any one viewpoint over another [plaza of americas]

Freedom of expression for Adults

1. the right to speak + publish 2. the right to associate 3. the right of symbolic expression 4. the right to receive information - interchange of ideas protected 4. the right to solicit funds - right to contribute money + solicit funds to further a cause 5. freedom from compelled speech - the right to speak + the right to refrain from speaking are complementary components of the broader concept of individual freedom of mind

know the history of the first amendment

1. to set limits on the gov't 2. ratified in 1791 as first of 10 amendments 3. written by james madison [father of first amendment]

level two: commercial + sexual expression

1. tolerates more regulation on advertising + pornography because they are supposedly less valuable that political speech 2. advertising, being motivated by economic gain, is harder + can therefore withstand more regulation 3. the supreme court justifies less rigorous first amendment protection for broadcast indecency bc broadcasts supposedly intrude into the home, assailing vulnerable children

cohen v. california [1971]

1. war protester wore a jacket that said "F8ck The Draft" 2. court ruled that it was constitutionally protected speech, and not fighting words, on the unpopular war in Vietnam 3. did not represent any immediate danger of a violent physical reaction in a face to face confrontation

What does first amendment due process require?

1. judges determine what restrictions are allowed after the govt proves that a regulation is necessary - govt bears the burden of proof so the media doesn't become defensive + censor themselves

what is the clear + present danger test?

- speech should not be suppressed unless it threatens immediate interference with the law - punished only if it incites lawless action - provides more protection for freedom of expression

The government regulating the content of expression

1. Govt should NOT regulate the content of expression 2. where regulations restrict the content of expression, judges ensure that the regulations are - justified by a compelling government interest - narrowly drawn so as to impose the minimum abridgement of free expression 3. the courts examine content + content- neutral regulations for vagueness and overbreadth

what are the first amendment right of HS students? how can they be restricted? college?

1. HS officials can reg school sponsored speech that is disruptive or vulgar; students can post offensive but not disruptive speech off campus 2. censorship of expression bearing the standard the school doesn't violate the first amendment if reasonable regulations serve the school's educational purposes 3. university officials lack the authority to ban offensive student expression in the name alone of the conventions of decency

hosty v. carter [2005]

1. administrator didn't like what was being published in the student paper so they refused to let them print it. court applied hazelwood standard in a university setting @ gov state university 2. decided by seventh district; school sponsored paper can be regulated 3. compelling interest

change with stability (Theory of Freedom Expression)

1. allows critics to participate in peaceful change rather than seek influence through antidemocratic acts helps let off steam + supports a stable + adaptable community with contributes to orderly change professor thomas emerson suppression drives opposition underground, leaving those suppressed either apathetic or desparate.

check on government power (Theory of Freedom Expression)

1. allows investigation + criticism of the government check on abuses of gov't authority; valuable in periods like Watergate professor vincent blasi

understand the judicial decision-making process

1. any fed judge has the authority to determine whether a law or regulation in the judge's jurisdiction unconstitutionally restricts the freedom of speech 2. judges use the 14th amendment to review the constitution and prohibit states from passing laws that violate it 3. Fed courts have the authority to review whether a state law is unconstitutional 4. standards of review strict scrutiny: fundamental rights rational basis: other laws

morse v. frederick [2007]

1. bong hits for jesus banner was a joke during a fieldtrip to the olympic ceremony 2. SCOTUS rules against him and find that the school has a right to regulate this because it was pro-drug message 3. extended school control over school-sponsored student speech to school-approved off-campus events 4. limited rights for students because of the special characteristics of the school environment 5. the HS principal may constitutionally restrict student speech at approved school events when the speech is reasonably viewed as promoting illegal drug use in violation of school rules

chaplinksy v. new hampshire [1942]

1. fighting words doctrine originated in this case 2. chaplinsky was convicted for calling a marshal a god d8mned racketeer and a damned fascist 3. court ruled that these words were likely to provoke the avg person to physical retaliation 4. he had no first amendment protection because he had uttered fighting words 5. level 3: fighting words have no constitutional protection because there are no essential part of the descripition of ideas and are of slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality

what are fighting words? understand the concept of hate speech and the first amendment. are threats protected under the first amendment?

1. fighting words: unprotected words that by their very utterance inflict injury or tend to incite an immediate breach of the peace - ruling in cohen v. california, that "f8ck the draft" was not fighting words 2. hate speech: written or spoken words that insult and degrade groups identified by race, gender, ethnic group, religion or sexual orientation [near v. minnesota]

What does the 14th amendment protect?

1. fourteenth amendment protects citizens + the media from state action, abridging free speech it prohibits any state from enforcing a law that would: 1. abridge the privileges or immunities of citizens of the US 2. deprive any person of life, liberty or property without due process of law 3. deny any person equal protection of the laws

Marketplace of ideas/attainment of truth ( Theory of Freedom of Expression)

1. good ideas and the truth will prevail in a free market attainment of truth: freedom of expression aids the search for truth; assumes that rational decisions emerge from consideration of all facts + arguments an individual who seeks knowledge + truth carries on a continuous Socratic dialogue john milton (areopagitica - 1644); parliament should allow unlicensed printing

Freedom of Expression for Students

1. have less first amendment rights than adults [public high school are weak] 2. high school officials can regulate student speech that is disruptive, lewd or otherwise inappropriate in campus newspapers, school assemblies + other school sponsored settings 3. students at state colleges have sounder first amendment freedom than high schoolers, generally being free to say or publish whatever they wish as long as the speech does not disrupt the education program

Governance ( Theory of Freedom Expression )

1. informed citizenry will intelligently elect its leaders the informed voter is crucial alexander meiklejohn (1872-1964); absolutist because he believed that speech that contributes to the business of gov't should be absolutely protected from gov't intervention

near v. minnesota [1931]

1. jay near, anti-semitic publisher, accused the minneapolis police chief of failure to pursue a jewish gangster who allegedly controlled gambling, bootlegging + racketeering in the city 2. hate speech is tolerated and protected by the first amendment 3. court struck down a state nuisance statute that permitted an injunction to halt malicious, scandalous or defamatory publications 4. ruled unconstitutional because it permitted courts to enjoin publication of expression critical of public officials 5. established that prior restraints are unconstitutional

Freedom of Expression for Gov. Employees

1. while they're working, their rights are limited because it could be conflict of interest 2. Little protection for Whistleblowers 3. public employees must not distort the political process, disrupt the efficient operation of an agency, compromise the safety of fellow employees or reveal confidential information entrusted to an agency

why is it important?

1.ultimate protection for communicators 2. necessary to the operation of a democracy 3. restricts all gov't [federal, state + local] from punishing critics [check on gov't power] 4. helps in the search for truth 5. individuals free to express themselves and feel more fulfilled

us v. stevens [2010]

[overbroad] scotus refused to add depictions of animal cruelty to the short list of expression excluded from constitutional consideration court declared unconstitutionally broad a federal statute adopted to punish crush videos [sexual fetish films in which women step on insects or small animals with their bare feet or high heels] content-based, regulation struck down for being overbroad

what did SCOTUS say about the unconstitutionality of a statute that regulated depictions of animal cruelty?

animal cruelty + falsehoods 2. SCOTUS refused to add depictions of animal cruelty to the short list of expression excluded from constitutional consideration 2. united states v. stevens: declared unconstitutionally broad federal statute adopted to punish "crush videos" - the statute had only been used to prosecute images of animals fighting, including the dogfight videos sold by robert j. stevens

level one: political + social expression [most protected]

expression that arguably contributes most to individual fulfillment as well as to democratic governance

degree of freedom a medium

print/internet → cable → broadcasting press has highest level of protection

What does the first amendment protect?

religion speech press assemble petition

The First Amendment

the legal foundation of the american freedom to speak and publish

what is the scope of protection under the first amendment? (2)

two kinds of speech are absolutely protected: 1. speech critical of the government 2. broadcasters fulfilling equal time requirements mandated by federal communications law