Exam 1: MMC4200 Week Two

How we apply and interpret the US Constitution and the meaning of the First Amendment in 1791

- Absolutism - Textualism - Historicism/ Original Intent - Judicial Activism -Balancing

Creation and Development of the First Amendment

- Adopted in 1791 and has withstood all these years -First of the 10 amendments making up the Bill of Rights -

Historicism/ Original Intent

- Clarence Thomas follows more of this method - What was the original intent of the framers when writing this - This is difficult because the framers didn't know about broadcasting, television, or websites - They also considered African Americans to be 3/5ths of a person so is this really good? - Doesn't necessarily address all of the changes since they originally intended them - Problem with the first amendment because we didn't know what the framers intended when writing it in 1791 - Some argue it was at a state of fermentation - When do we look and what do we look at? What documents do we look at? Historicism can be very problematic

Why Should We Protect Speech?/ Theories for Protecting Speech

- Marketplace of ideas - Democratic Self-government/ Meiklejohnian - Self-relaization - Checking Value - Safety Valve - Access Theory

Heckler's Veto

- Often occurs when speakers are disinvited because they fear a negative reaction - Is in opposition to everything that the first amendment stands for. It is wrong because the government has an obligation to protect a speaker with offensive and disagreeable viewpoints from being drowned out from a hostile majority (a hecklers veto. Making the analogy of a comedy club where the comedian gets booed off stage) - Think about Richard Spencer and the University of Florida (because we are a governmental entity). - Couldn't be shifted to Richard Spencer and make him pay 500,000 dollars because allowing only the wealthy to speak that in a way is a hecklers veto and restricts their first amendment - Because we have the 1st amendment to protect minority and dissenting viewpoints - EX. When the nazis wanted to march through a jewish area of town full of holocaust survivors - Very high cost for free speech ability of a hostile bystander to end a peaceful assembly notion that the audiences reaction (audience/heckler) will drown out/ silence or veto the speakers speech

Judicial Activism

- Republicans are against judicial activism. It gives the courts leeway to the words of the constitutions - Its an activist approach to interpreting the meaning of the constitution. The courts and justices can find and read in the - Ex. Roe v. Wade found the constitutional right for women to choose whether or not to have an abortion. It was a right to privacy (however the word privacy is not written in the constitution or its amendments). The 3rd, 4th, and 5th amendments have references to privacy; even the first amendment to an extent because the right to assembly implies that if groups are assembling they have a right to do so in private with out the government finding out who is in their group - Problem is its 9 unelected people who are able to find rights that are not in the text

Safety valve

- Says that we allow people to say things (that we wouldn't allow the same kind of conduct) because they get to blow off steam and vent their frustrations or air their disagreements because if not it may cause them to actually react in their conduct - We allow free speech because if they don't it bottles up and results in negative conduct. Groups feeling like I can't say anything anymore so I act out in violence

Checking Value

- Suggests that we have free speech to serve as a check on governmental abuses of power - Typically think of this as involving the press as an unofficial 4th estate of the government. The watchdog role of the press to check the 3 official branches of government - Exposing, finding and airing out things discussed by the government - Is cynical as it believes that the government is inherently corrupt

Meiklejohnian Theory

- expression that relates to the self-governing process must be protected absolutely by the First Amendment. - Presents a hierarchical approach to First Amendment theory, with political speech placed at the top of this hierarchy.

Democratic Self Government/ Meiklejohnian

- privileges speak that will effect the voting of wise decisions. We protect speech to allow voters, citizens to make educated and wise decisions. This priveledges political speech over all other categories of speech - Speech is at the top of the hierarchy meaning there is other speech that has no protection (obscenity, child pornography, fighting words) and other types of content can be regulated. Advertising would be towards the middle Problems= what makes political speech any more worthy of being protected?

Symbolic Speech Doctrine and John E Brennan

-In 2012, 50 year old John E Brennan went through a pat down security search at Portland International Airport a TSA agent was suspecting him of carrying nitrates -he refused to go through a body scanner because of the implicit accusation that he was a terrorist -Brennan stripped down completely naked and was arrested for indecent exposure -In July, the circuit court judge dismissed the case saying Brennan's act of nudity was one of symbolic protest

The historical myth surrounding the first amendment

-Is not the first because its the most important, it was supposed to the 3rd but the other two were not adopted so it became 1st by default -"first freedom" is the idea the because the amendment occurs first in the bill of rights, it was considered the most important Myth: first because it's the most important. It was actually supposed to be the 3rd amendment, but the two before it never got ratified so it moved up

Milo Yiannopoulos (community censorship)

-Students at a private university in 2016 shut down conservative speaker, Milo Yiannopoulus by drowning him out with their protesting -Heckler is asking for prior restraint against the speaker, preventing him to speak, but thats unconstitutional - government cant stop the people against the speaker from voicing their opinion (prior restraint) -so the government has to come to the defense of the speaker not the heckler unless the speaker is saying things that are not protected by the constitution (hate speech, obscenity, fighting words etc) * if this would have happened on a public universities campus, it does raise First Amendment concerns (think richard spencer UF)

Curt Shiling

-fired from ESPN for negative remarks about transgenders - Posting on social media and getting canceled based on the feedback from the public because he posted an offensive meme and caption regarding transgender people's rights -ESPN said that they are an inclusive company and said that Schiling's conduct was unacceptable

Loretta Lynn (community censorship)

-in the 1970s, country music radio stations refused to play her music because it depicted subject matter that was considered too risque (birth control)

Charlie Hebdo (self censorship)

-is the name of a satirical French publication - Charlie Hebdo published cartoons about the Prophet Muhammad which many muslims consider to be offensive -Muslims said they cant do that so they killed people on behalf. A gunmen went into the publications office and killed 12 people, including 4 prominent cartoonists - When reporting on the shooting, CNN (us media) chose not to show the cartoons out of fear that they would be targets of a violent attack. chose to not show that because they were trying to protect their employees. -News was censoring themselves out of fear

Wendy Bell (2016; community censorship)

-she was a local anchor for Pittsburgh TV station WTAE and was fired for posting a message on facebook that many perceived to be *racist* -Groups like the Pittsburgh Black Media Federation and other equal rights/black activists organizations and groups loudly protested her remarks -as a result the private entity (WTAE) fired her following her remarks making this a case of community censorship or self-censorship (had the government agency the FCC fired her, then this would have violated her right to freedom speech)

Textualism

-the notion of how we interpret= that we simply look at the text of the doctrine - We look at the words, the plain meaning of the words, we don't go beyond them or the history. This type of interpretation would lead us to an absolutist interpretation. It is a mode of judicial interpretation and would lead to the interpretation that the first amendment means total protection - Textualism is a process for interpreting and applying the constitution. - If you were to look only at the text of the first amendment, it would be an absolutist interpretation of the first amendment - Justice Scalia was a textualists

Community Censorship and examples

-the silencing of speech by private people or business entities, often as a result of pressure exerted by political activists, public interest groups and economic stakeholders - We're not dealing with the government - Were talking about corporations, private businesses, or private universities The first amendment only applies to government entities so it does not apply to this - Entities choose to censor their own speech in a way. Is often Brought about by business and economic press. EX. Media broadcast= advertisers may threaten to pull their advertisements if a certain content is found offensive - Look at the examples on the reading schedule Examples include: Wendy Bell Charlie Hebdo Curt Schiling Loretta Lynn

7 First Amendment Theories

1. Absolutist 2. Ad Hoc Balancing 3. Preferred Position Balancing* 4. Meiklejohnian 5. Marketplace of Ideas 6. Access 7. Self-Realization

Two-part rule for symbolic speech

1. Actor: Intent to convey a particularized meaning with the conduct? 1. The person must intend for their to be some symbolic meaning and convey a message to someone in doing this act of conduct 2. Audience: Is there a substantial likelihood under the circumstances

Marketplace of Ideas Theory

Belief that truth will emerge out of the competition of ideas in free, public discourse. 1. All ideas on any topic, whether it sports, religion, arts or politics, and from a competition of ideas through free open and fair competition of ideas, the best idea emerges. No prior restraint on ideas, marketplace competition for ideas. Based on an economic concept - Should be freely, fairly, and competently/ rationally thought out and through them the truth emerges 2. Even if we never agree on the truth, we should continue testing the ideas to figure out which is the best. The inherent process is also beneficial Problems with this idea= access to the marketplace of ideas is skewed to those who have the wealthiest. - The idea that their is one single answer and truth is also - Weakness is that we don't always have rational debate and discourse

Access Theory

Everyone has right to access mass media Right to speak/publish not just for rich Media required to present all points of view Applied to broadcasting & cable NOT applied to print - The government has an affirmative responsibility to give the people access the means to speak. It has a positive - First amendment is thought of as a negative law/rights because it says what the government cant do. This is looking at it in the positive light - ex. Miami Herald vs. Tornello. It criticized him in an editorial. But, Florida had a right of reply statute which gives the candidate the same amount of space in the newspaper to reply in the paper free of charge; designed to even out the market place of ideas. This implements the access theory because Florida is stepping in to give them access. However, the Supreme Court ruled against his saying that it violates the Miami Herald's free speech by telling them what to print. The court said newspapers can be unfair, you can subscribe to a liberal or a conservative paper, they don't have to be unbiased. - In broadcasting however, there are some shreds of the access theory remaining because you don't own the public airways. We can impose some obligations on broadcasters, not on print

Viewpoint Neutrality

GOVERNMENT DOES NOT FAVOR ONE SIDE OR ANOTHER WITHIN A GIVEN SUBJECT MATTER OF SPEECH - "the notion of neutrality is key. you cannot have freedom of speech only for the ideas that you like and the people you like" - First amendment is a viewpoint neutral document: government must be neutral on any particular topic or political viewpoint - The government can not take part in view point based discrimination - This is why Trump got into trouble for blocking people with certain viewpoints on Twitter

The original intent and meaning of the first amendment when it was ratfied

Madison's original amendment dealing with freedom of expression states: the people shall not be deprived or abriged of their righ tot speak, to write or to publish their sentiments and freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

William Blackstone and the discussion of prior restraints

Sir William Blackstone was a British Legal scholar who published a major summary of common law between 1765 and 1769 - he defined freedom of the press as "laying no previous restraints upon publication" - today we call this no prior restraint or no prior censorship -*subsequent punishment*= many scholars argue that freedom of expression also protects people from punishment *after publication*

chilling effect

Tendency of reporters to self-censor because of fear of possible legal action -if citizens cannot reasonable predict whether a particular kind of expression might be prohibitted, they will have the tendency to play it safe and keep silent

Zenger Case

The case that established the precedent that true statements about public officials could not be prosecuted as libel; Newspapers are not financially liable for criticism of government if actually true. - the most famous case of government censorship in the American colonies was the seditious libel trial of immigrant printer John Peter Zenger Doesn't really have much precedent Printer of a newspaper. Newspaper was hostile to the governor of NY. John Peter Zenger gets in trouble for criticizing the governor Is prosecuted for *seditious libel*. Saying things that are libel against the government - At the time, truth WAS NOT a defense in a seditious libel case. Today regular civil libel, the best defense you can have are true facts because if something is true, you're not going to be harmed by it So, Zenger's attorney, makes the argument that everything Zenger said is true and that the jury should ignore the law and rule for Zenger

jury nullification

The jury's power to disregard, or "nullify," the law when it conflicts with personal conceptions of justice. -the power of a jury in a criminal case to ignore and thereby nullify a law and return a verdict according to it's conscience -the jury ignores the law and bases its decision on what it feels is right - its own sense of conscience -can be very controversial since people are choosing to ignore the law Appellate courts look for errors of law so if this case made it to appeals, they could argue the jury nullification because its against the law However, if the jury keeps nullifying the law then maybe it is a problem with the law

ad hoc balancing

When conflict occurs, it is the responsibility of the court to balance the freedom of expression with other values. The meaning of the freedom of expression is determined *solely on a case-by-case* basis. Not a theory but a strategy. Problem? It relies too heavily in its final determination on the personal biases of the judge or justices who decide a case -it is rarely invoked as a strategy today except by judges unfamiliar with first amendment law

Preferred Position Balancing Theory

a legal theory that says that a balance must be struck between speech and other rights, although *speech has a preferred position* compared to other rights Problem? this presumption forces the government to bear the burden of proof in any legal action challenging the censorship

First amendment only protects against

government censorship: censorship done by government officials and entities -does not protect against community censorship

Self-Realization Theory

speech is important to an individual regardless of its impact on politics or its benefit to society at large - We do not have any external value when it comes to speech. It is inherently valuable to you and doesn't have to help anybody else or society else - EX. Writing in a diary. No body else ideally is supposed to see that speech but that speech is valuable to you. Another example could be self identity, like wearing a shirt with your favorite sports team. Singing in the shower can be valuable to us but not really anybody else. These things can help you realize your own identity - Can be very hedonist. "I can say anything I want because I am realizing my own identity." And this can be racists, homophobic, etc. So their has to be restrictions on this and there are

Absolutism

the proposition that the first amendment is an absolute, and that government may adopt no laws whatsoever that abridge freedom of expression - Verbatim interpretation. Taking what words literally mean - Ex. That in the first amendment "no law" really means no law - Has never been adopted in the Supreme Court