Chapter 2

Hosty v. Carter

-2005 -applied the Hazelwood standard to a university. said colleges can adopt any kind of control if they're sponsoring that organization. -does not uphold the 1st amend. -appellate court in Chicago ruled that Governors State University might censor the campus paper, the Innovator, like a high school paper if it was not designated a public forum.

definitional balancing

-puts more uniformity and predictability in balancing by setting standards -courts define the outer limit of free speech before the test is applied in individual cases

overall judging the first amendment

1. bias against content regulation 2. tendency not to defer to legislatures and lower courts decisions which restrict free speech 3. standards of review: strict scrutiny-funadmental rights. &rational basis-other laws. 4. scrutinize regulations for over-breadth, vagueness and ensure least drastic means to accomplish a compelling govt interest.

Strict scrutiny

content regulations must be: justified by a compelling govt interest and narrowly drawn so as to impose the minimum abridgment of free expression. -"prove to me there is nothing unconstitutional about this regulation. -deference to a legislative finding can't limit judicial inquiry when first amendment rights are at stake.

viewpoint discrimination

-the government doesn't regulate a whole category of subject matter, such as political speech, but favors or disfavors a point of view within a category -difference between content-neutral regulation and content regulation

judges and the first amendment

-the guardians of free expression -first amendment due process -no absolutes: judge cases by weighing conflicting interests. judicial review. -use a number of analytical and procedural tools to uphold individual rights proected by the bill of rights

two kinds of speech the first amendment does protect absolutely:

-the press can say what they want about a city, state or other govt but may be sued if they defame individuals within the govt. -broadcasters fulfilling equal time requirements mandated by federal communications law.

Adult protections under the 1st amendment

the right to: -speak and publish -associate -to receive info (interchange of ideas, more limited than speak/publish) -to solicit funds (informative/persuasive speech) -freedom from compelled speech (except broadcast channels which requires "reasonable access" to political candidates)

fighting words

- a form of hate speech: written or spoken words that insult and degrade groups identified by race, gender, ethnic group, religion, or sexual orientation. -fighting words that by their very utterance inflict injury or tend to incite an immediate breach of the peace." -if it is so offensive as to have "a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed."

regulating political and social expression

- expression dealing with political, social, religious, and cultural issues. Protected subject matter: debate about elections, referenda, labor, race, health, agriculture, religion, education. -may be printed in newspapers, magazines, editorial advertisements, posters, and poetry. -may be expressed orally through speeches, lectures, films, and broadcasts. -may be delivered symbolically through black armbands,83 political campaign contributions,84 marches, slogans, and political symbols

Fulfillment Theory

- speaking and publishing enrich one's life -self-expression: a fundamental/basic human right. -protects natural law: people are born, as with fundamental rights of life, liberty, and property, rights that the government is bound by contract with its citizens to protect

Check on Govt Power Theory

- the media as an institutional counterweight to government. -the press can expose political corruption if it scrutinizes government operations in a system that recognizes the First Amendment checking function of the press.

definitional balancing in libel cases

- the media's freedom of expression is balanced against the official's right to a good reputation -media's advantage: protection to publish false, defamatory statements about public officials, provided that the false statements are not published knowingly or recklessly, either of which constitutes what is called actual malice. its really difficult to prove. -political speech is robust and uninhibited which is protected more than a public official's reputation

Cohen v. California

-"**** the Draft" slogan on jacket -was a constitutionally protected comment on the unpopular war in Vietnam, was NOT considered fighting words. -presented no immediate danger of a violent physical reaction in a face-to-face confrontation. -ruling prohibits states from making the public display of a single four-letter expletive a criminal offense, without a more specific and compelling reason than a general tendency to disturb the peace.

14th amendment

-1868 -prohibits states from passing laws which violate the federal constitution or restrict free speech -protects citizens and the media from "state action" abridging free speech. -judges are appointed for life and can be objective, free of political pressures -prohibits any state law that would: abridge the privileges of U.S. citizens, deprive any person of life, liberty or property without due process of law, or deny any person equal protection of the laws. -ended dual citizenship

Chaplinsky v. New Hampshire

-1941 -Chaplinsky convicted for calling a marshal in New Hampshire bad words -court ruled his words were likely to provoke the average person to physical retaliation= so he had no 1st amend protection. the court articulated the fighting words doctrine (a limit of 1st amend guarantee of freedom of speech) -the Court said, because they are "no essential part of any exposition of ideas, and are of such 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."

Tinker v. Des Moines Independent Community School District

-1969 -the Court said that the First Amendment protects expression by high school students as long as it does not disrupt school functions, is not obscene, and does not violate the rights of other students. -The First Amendment, as applied through the Fourteenth, did not permit a public school to punish a student for wearing a black armband as an anti-war protest, absent any evidence that the rule was necessary to avoid substantial interference with school discipline or the rights of others.

Brandenburg v. Ohio

-1969 case. -active precedent -overturned the conviction of KKK members for racist provocations. -"mere advocacy" can't be punished. can punish only speech that "is directed to inciting or producing imminent lawless action and is likely to incite or produce such actions."

Miami Herald Publishing Co. v. Tornillo

-1974 -overturned a Florida state law requiring newspapers to allow equal space in their newspapers to political candidates "right to reply statute" -newspapers are economically finite enterprises and must be free to make decisions about editorial content. govt can't decide what newspapers must print, and can't compel newspapers to speak.

Hazelwood School District v. Kuhlmeier

-1988 -the Court upheld deletions of two stories (about teen pregnancies and divorce) from Spectrum, the student newspaper -was not a public forum because it had never been dedicated "by policy or by practice" to use by the public. -The Court said a school could impose virtually any reasonable regulation on school-sponsored expression

McIntyre v. Ohio Elections Commission

-1995, Supreme court used strict scrutiny to strike down an Ohio law prohibiting anonymous campaign literature "designed to influence voters" -the court invalidated the subject matter regulation bc it unconstitutionally banned a category of political speech -court said Ohio's ban was broader than necessary to prevent fraud and libel and not a big enough risk to ban anonymity

Kincaid v. Gibson

-2001 -upheld 1st amend. -university didn't want to release yearbook bc of its color. federal circuit opinion said they had a 1st amend. right to -the court made it clear that the Hazelwood case should not be applied to the college media. -The Sixth Circuit ruled that Kentucky State had failed to demonstrate the compelling interest needed to justify a prior restraint on content in a public forum at a state university.

Morse v. Frederick

-2007 - the Court upheld the suspension of 18-year-old Joseph Frederick for hoisting a "Bong Hits 4 Jesus" banner on a sidewalk across from his high school -a high school principal may constitutionally restrict student speech at approved school events when the speech is "reasonably viewed as promoting illegal drug use" in violation of high school rules.

Broadcast v. print protection under 1st amend

-Broadcasters, who acquire a government license to operate over government-allocated frequencies, are—unlike newspapers—required to operate "in the public interest." -broadcasters must allow equal opportunities for political candidates to access their channels during the election cycle -Cable operators enjoy less freedom than publishers, but more than broadcasters.

Change with Stability Theory

-Free expression can act as a safety valve, allowing critics to participate in peaceful change rather than seek influence through antidemocratic acts. -Where freedom prevails, consensus may support orderly change. Free expression therefore promotes both stability and flexibility, tradition and change. -right to protest/assemble/sign petitions

Texas v. Johnson

-Supreme court struck down a law punishing desecration of the American flag bc the law was aimed at the content of political messages -"If there is a bedrock principle underlying the First Amendment," Justice William Brennan wrote for the Court majority, "it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

Student protection under 1st amendment: high school

-The Supreme Court has ruled that high school officials can regulate student speech that is disruptive, lewd, or otherwise "inappropriate" in campus newspapers, school assemblies, and other "school sponsored" settings. -Courts have ruled that high school officials may punish off campus student speech that poses a true threat, bullies, or presents a potential of disruption.

Certiorari

-a writ seeking judicial review. It is issued by a superior court, directing an inferior court, tribunal, or other public authority to send the record of a proceeding for review.

Stop Huntingdon Animal Cruelty

-an animal rights group that orchestrated a campaign of harassment, vandalism, cyber attacks, and threats against a British company—Huntingdon Life Sciences—that conducted medical research on animals -were convicted because they illegaly urdger their members to crash corporate websites and to immobilize email servers and phone services. scheduled cyber attacks.

governance theory

-being able to be informed about what our government is doing is critical to democracy. -Meiklejohn said the First Amendment is an important device "for winning of new truth," but the First Amendment is even more important as a "device for the sharing of whatever truth has been won. -the informed voter was crucial

Dennis v. United States

-crime: belonging to the Communist Party. -The Court's version of the clear-and-present-danger test in Dennis amounted to little more than a one-time balancing of free speech interests against general security consider- ations during a politically charged era. Whether or not one agrees with the Court's results, the justices in the plurality did not rigorously scrutinize the speech of Dennis and his cohorts to determine whether it presented a clear and present danger.

Virginia v. Black

-cross burning is constitutionally protected if not intended to intimidate—such as burning a cross in a film—but is beyond constitutional protection if intended to intimidate—such as burning a cross in a black family's yard. -the majority also ruled that the Virginia statute at issue in Virginia v. Black was unconstitutional because it allowed a jury to infer from the cross burning itself that the defendant intended to intimidate. The First Amendment requires a more detailed inquiry into intent in each case. -and it was unconstitutional bc it was content-based, punishing symbolic speech with ideological content. Cross burning is inherently symbolic

Public forum: traditional

-historically been open for public discourse: 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. -govt can exclude speakers by demonstrating a compelling interest but it can't favor one viewpoint over another in any forum.

Tort

-in common law jurisdictions, is a civil wrong[1] that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act, called a tortfeasor. -The victim of the harm can recover their loss as damages in a lawsuit. -The equivalent of tort in civil law jurisdictions is delict.

balancing test

-judges employing the balancing test consciously weigh conflicting interests against each other. -it is the duty of the courts to determine which of two conflicting interests demands the greater protection in particular circumstances -

Vagueness and overbreadth

-judges scrutinize regulations for over-bredth, vagueness and ensure "least drastic means" to accomplish a "compelling" govt interest. -an overbroad or vague law that restricts freedom of expression can be challenged "on its face" because the very existence of the law may curtail freedom of expression by inhibiting speech that speakers are unnecessarily cautious. -A policy that does not define the line between protected and unprotected speech will inhibit speech and is therefore unconstitutionally vague

nonpublic forum

-property that is neither traditionally open for public debate nor dedicated by policy to public discourse. ex: a military base -The government "has power to preserve the property under its control for the use to which it is lawfully dedicated" (doesn't need a compelling interest, only reasonable regulations)

public forum: dedicated (/limited)

-property that the government intentionally designates for public discourse. -ex: university dedicates public facilities for registered groups to meet -govt can exclude with a compelling interest that is narrowly tailored. - contrary to practice in a traditional forum, the government can limit the dedicated forum to certain speakers and topics in order to preserve the purpose for which the forum was created.

first amendment due process

-requires govt to prove speech is unprotected using due process -govt must post notice of a hearing at which media attorneys can challenge the proposed restriction.

First Amendment purposes

-serves the goals of democratic governance by forbidding government to suppress the political speech of its critics. -the search for truth in the "marketplace of ideas." -protects individual fulfillment by safeguarding expression in the arts. -change with stability - Important values served by freedom of expression: the social goals of attaining the truth, making decisions in a democracy, checking government power, managing change, serves the related personal value of individual fulfillment. (marketplace of ideas, governance, check on govt, change w stability, fulfillment)

incorporation

-since Near v. Minnesota by Chief Justic Charles Evans Hughes, almost all of the clauses of the bill of rights have been applied to the states with incorporation -state laws violate the constitution by denying citizens privileges and immunities, equal protection of the law, or due process. -private broadcasters, colleges and newspaper publishes are not state agents infringing free speech

true threat

-speech or symbolic expression "intended to create a pervasive fear in victims that they are a target of violence." intended to intimidate. A true threat is not found where speech is merely vulgar or offensive, where the "threat" may be light-hearted or vague. -Ex: internet case, appeals court ruled 6-5 that posters and a website could be halted bc they constituted a true threat to abortion doctors by the American Coalition of Life Activists.

Killian Nine (1999) & John Doe v. Arkansas (2003)

-student wrote an article about maybe shooting principle. arrested for a hate crime and suspended. -8th grader wrote violent rap song that his friend stole. expelled. federal courts give school boards much power.

U.S. v. Stevens

-the Court declared unconstitutionally broad a federal statute adopted to punish "crush videos" bc because it not only punished crush videos but also provided for up to five years in prison for anyone who violated a state law forbidding picturing a living animal being intentionally maimed, mutilated, tortured, wounded, or killed.

Snyder v. Phelps

-the Supreme Court held the First Amendment was violated by a $5 million jury award for emotional distress allegedly caused by picketers carrying signs -there was no intrusion into the funeral service so the court feared jurors imposed liability due to their dislike of the views expressed. -ruling: Speech on a public sidewalk, about a public issue, cannot be liable for a tort of emotional distress, even if the speech is found to be "outrageous."

the communications decency act

-the communications decency act was struck down because it didn't narrowly define the "indecency" that the statute prohibited for youth. too vague -overbroad: prohibited parents from searching the web for indecency with their children. the govt can't ban indecent expression for adults. unconstitutionally over broad bc it prohibited all internet indecency.

Regulating Commercial and sexual expression

-the constitution tolerates more regulation on advertising and pornography because they are supposedly less valuable than political speech -advertising is more regulated bc its hardier and more easily verified. -commercial speech has relaxed scrutiny.

content regulations

-when govt attempts to restrict or ban expression -Unless the government has a compelling interest, 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." -more tolerant of content-neutral regulations

Hate speech

-written or spoken words that insult and degrade groups identified by race, gender, ethic group, religion or sexual orientation. -most expression of bigotry and prejudice is political speech protected by the first amendment, according to U.S. Supreme Court

hierarchy of protected expression

1. highest protection: political and social content 2. commercial and non obscene sexual expression (easier to regulate than level 1) 3. no constitutional protection: false advertising, fraud, child pornography, fighting words, and true threats.

Absolutism

absolutely NO law abridging free expression. there's never been a court decision to adopt this view.

Marketplace of ideas/attainment of truth theory

by John Milton, 1644. promoted the idea of divorce, published it without a license. criticized the govt for requiring ppl to have licenses. all sides of an issue need to be discussed and battle in the market place, the truth will ultimately prevail.

bad tendency test

expression may be halted or punished if it presents the slightest "tendency" to cause a substantial evil. not in effect anymore

clear-and-present-danger test

first stated by Justice Oliver Wendell Holmes in Schenck v. United States.68 Expression should be punished, Holmes said in the 1919 case, 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." -To Holmes, Schenck's fliers, which the justice noted were being distributed during wartime, were not speech on political matters so much as they were interjections -Holmes dissented when the Supreme Court upheld the conviction of five Russian aliens for distributing political fliers. In his famous dissent in Abrams v. United States,Holmes said that even opinions we "loathe and believe to be fraught with death" should not be suppressed "unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country."

ad hoc balancing

judges treat each case separately, placing speech considerations on one side of the scales and conflicting values—such as individual reputation—on the other side. -no definitions or single standards for guidance. -provides great flexibility, can assign different weights to different facts of a case -creates opportunities for biased judgments because judges may impose their own values where there are no objective standards. risks making 1st amend protection indefinable

times when freedom of expression must give way to other personal and social interests:

national security and public order.