Freedom of Speech and Press Part 2

Must everyone understand that the parody is parody? What is the standard?

"But when it comes to parody, the law requires a reasonable reader standard, not a 'most gullible person on Facebook' standard. The First Amendment does not depend on whether everyone is in on the joke."

Are many social evils protected by the First Amendment?

"First Amendment's guarantee of free speech does not extend only to categories of speech that survive and ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgement by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgement simply on the basis that some speech is not worth it."

Why is "The First Amendment is not absolute" usually empty rhetoric and not a helpful response to, "Can the government punish this speech?"

"Our decisions in [a child pornography] case and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment. Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law."

In other words, does false speech constitute a general category of speech that is presumptively unprotected?

*** -No (exact opposite) -"In deciding that lying about the Medal of Honor, without more, is protected speech, the plurality and concurrence "reject ANIMAL LEGAL DEFENSE FUND V. WASDEN 17, the notion that false speech should be in a general category that is presumptively unprotected." -Flat prohibition of lies constituted an impermissible restriction protected by the First Amendment.

What are the four elements of a First Amendment retaliation claim?

*** 1. He suffered an adverse employment action 2. The speech at issue involved a matter of public concern 3. His interest in commenting on matters of a public concern outweighed the government's interest in promoting efficiency 4. The speech motivated the adverse employment action

When may false speech be criminalized?

-False speech may be criminalized if made "for the purpose of material gain" or "material advantage," or if such speech inflicts a "legally cognizable harm." -When used to obtain employment or information.

Understand the reasons why government laws and regulations that evince viewpoint discrimination generally receive the highest form of scrutiny under the free speech clause.

-Government laws and regulations that evince (bring to light) viewpoint discrimination generally receive the highest form of scrutiny under the free speech clause, because viewpoint discrimination threatens many of the purposes for protecting speech. -It is more accurate to say that although content discrimination is permitted in many circumstances, especially in limited public and nonpublic government owned-forums, viewpoint discrimination is rarely permitted and is normally subjected to the strictest standards of scrutiny.

What were the facts of the case? What was the court's reasoning?

-In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court. -The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibition or censoring of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "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."

Which kind of speech is protected?

-Protest of political speech is itself protected speech, but protest cannot be so forceful or dominant that it vetoes the speaker. -But the law is clear. The First Amendment tolerates the maximum possible public discourse, disagreement and confrontations; and it commands the government to protect the values it embodies.

Know and understand why these arguments against free speech are empty.

-They distort the debate -"Not all speech is protected, there are exceptions to the First Amendment." -"This speech isn't protected, because you can't shout "Fire!" in a crowded theater." -"Incitement and threats are not free speech." -"Fighting words are not free speech." -"Hate speech is not free speech." -"Stochastic terrorism is not free speech." We must balance free speech with social good. There is a line between free speech and social evil." -"They do it in Europe." -"We talked to a professor and litigator who said this is not protected speech." -"This speech may be protected right now, but the law is always changing."

Why is the phrase "This speech isn't protected, because you can't shout 'Fire!' in a crowded theater" historically ignorant?

-This line, though ubiquitous, is just another way to convey that "not all speech is protected by the First Amendment." As an argument, it is just as useless. -So when you smugly drop "You can't shout 'Fire!' in a crowded theater" in a First Amendment debate, you're misquoting an empty rhetorical device uttered by a career totalitarian in a long-overturned case about jailing draft protesters. This is not persuasive or helpful.

What is a better response to flag burning than punishment?

-To persuade those that want to burn the flag that they are wrong. -"We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by- as one witness here did- according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents."

Does the First Amendment protect the right to criticize and even mock government?

-Yes -Novak's lawyer, Subodh Chandra, welcomed the decision. "This case goes to the heart of what it means to be an American," he said in an interview. "we have not only the right to criticize the government, but to mock it mercilessly."

Does the First Amendment protect lies that don't bring about harm?

-Yes, the first amendment does protect some lies that don't bring about harm. -Example: the Stolen Valor Act's flat prohibition of such lies constituted an impermissible restriction on speech protected by the first amendment.

What were the 8th Circuit's findings and reasoning on the four elements.

1. Garcia engaged in First Amendment protected activity 2. That Officer Baker's actions would chill a reasonable person from continuing the First Amendment protected activity 3. The adverse action against Garcia was motivated at least in part by Garcia' protected activity 4. Lack of probable cause

The 8th U.S. Circuit Court of Appeals said the driver's "rude and offensive gesture" was what?

A form of protected speech

What objective test is imposed by most courts?

A threat is "true" if a reasonable person hearing it would take it as a sincere expression of intent to do harm.

Do American courts balance the benefits and harms of speech to decide whether it is protected? What do courts look to? Why?

American courts don't balance the benefits and harms of speech to decide whether it is protected--they look to whether that speech falls into the First Amendment exceptions noted above.

What were the facts in Chaplinsky?

As a Jehovah's Witness, Walter Chaplinsky was a member of a religious minority subject to shocking abuse and injustice in the 1930s and 1940. He was preaching on a street corner when a mob assaulted him; one man tried to impale him on a pole bearing the American flag. Police officers led him away rather than arresting his attackers, provoking him to call them fascists. For that offense he was prosecuted.

At most, it allows the government to punish what?

At most, the doctrine allows the government to punish face-to-face insults likely to provoke an immediate violent reaction from the particular person addressed.

Did Justice Holmes regret the Schenck decision?

But the phrase is not just empty. It is also a historically ignorant way to convey the point. It dates back to a 1919 Supreme Court decision allowing the imprisonment of Charles Schenck for urging resistance to the draft in WW1. Justice Oliver Wendell Holmes Jr. wrote that the "most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing panic." This decision led to a series of cases broadly endorsing the government's ability to suppress speech that questioned official policy.

Such speech would be unprotected only in which instance?

By definition, if stochastic terrorism doesn't call for violence, it doesn't fall outside the First Amendment, because it's not intended and likely to lead to imminent lawless action. It may be morally reprehensible, but, just like hate speech, it's protected.

If the statute was intended to quash investigative reporting on agricultural production facilities to avoid the "court of public opinion" and treatment of investigative videos as "blackmail," then the speech aspect of the statute prohibiting misrepresentations could not be considered what?

Cannot be squared with a content-neutral trespass law.

What is the chilling effect in terms of expression?

Chilling effect is a term in law and communication that describes a situation where a speech or conduct is suppressed by fear of penalization at the interests of an individual or group. It can affect one's free speech. Since many attacks rely on libel law, the term libel chill is also often used.

s speech unprotected by the First Amendment simply because it's hateful, i.e., denigrates people based on ethnicity, religion, or sexuality?

Contrary to the popular slogan, there is no hate speech exception to the First Amendment. Particular examples of hateful speech may satisfy the established tests for the true-threats or incitement exceptions, but they're not unprotected just because they're hateful.

What bedrock principle underlies the First Amendment?

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.

What is the key?

Imminent is the key word here

What is a heckler's veto?

In the United States, a heckler's veto is a situation in which a party who disagrees with a speaker's message is able to unilaterally trigger events that result in the speaker being silenced.

When might it best serve its high purpose?

It serves its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people with anger.

Why is the observation "The law changes all of the time" a truism of no value in determining if specific speech is protected or likely to become unprotected?

Many free-speech issues that are controversial politically and culturally, by contrast, are utterly banal legally, and the Court has offered no signs of change

What are the historic and traditional categories of speech not protected by the First Amendment? How is each of those categories defined?

Obscenity, defamation, fraud, and incitement ***

What constitutes a threat that isn't protected?

Only "true threats" are unprotected.

How might the ruling strengthen the flag's place in our community?

Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is one of the bombardments it survived at Fort McHenry. It is the Nation's resilience, not its rigidity, that Texas sees reflected in the flag and is the resilience that we reassert today.

Why is the SCOTUS unlikely to deem hate speech unprotected speech?

Over the past generation the Court has issued a series of unanimous or near-unanimous decisions affirming that hateful and offensive speech is protected by the First Amendment.

How have courts interpreted the fighting words doctrine since its introduction in Chaplinsky v. New Hampshire (1942)?

People in favor of restrictions on ugly speech often point to the "fighting words" doctrine-- the idea, taken from the 1942 case Chaplinsky v. New Hampshire, that the government can punish words "which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace." This argument ignores the past 80 years of First Amendment cases, which have dramatically narrowed the doctrine to the point that many commentators question whether it still survives.

Descriptive Statements

Present an account of how the world is. The word is connected to 'description.'

Normative Statements

Present an evaluative account, or an account of how the world should be.

The majority of contemptible, bigoted speech is what?

Protected under the First Amendment

Is ugly rhetoric in general unprotected by the First Amendment?

Saying "Go beat up those protestors over there" probably qualifies; ugly rhetoric in general does not

ALDF v. Wasden (9th Cir. 2018) What brought about the statute being challenged?

See Notes

Be familiar with the Terminiello precedent and its application today.

See Notes

Man can sue over arrest for parody Facebook page mocking police: U.S. court. What are the facts of the case?

See Notes

What was the Ninth Circuit's reasoning that the First Amendment protected false statements made to access an agricultural production facility?

See Notes

Which should you seek when asking if speech is protected by the First Amendment?

Should seek descriptive statements

What must the government do when listeners might react violently to a speaker?

Since the First Amendment requires breathing room, the police must be extremely tolerant of protesters and may remove only those whose behavior physically prevents the use for which the venue was leased.

What is stochastic terrorism?

Stochastic terrorism whips up hatred against groups and leads unbalanced people to commit violence against them, even if it doesn't explicity call for violence.

That test doesn't cover what?

That does not cover most hyperbole and political invective.

The author describes the First Amendment as what?

The First Amendment is broad, robust, aggressively and consistently protected by the Supreme Court, and not subject to the many exceptions and qualifications that commentators seek to graft upon it.

That the statute regulated speech related to property far beyond a classic agricultural facility would invariably result in what?

The fact that the subsection regulates speech related to property far beyond a classic agricultural facility would invariable result in the chilling of lawful speech. Indeed, a "speaker might still be worried about being prosecuted for a careless false statement, even if he does not have the intent required to render him liable."

What is the principal function of free speech under our system of government?

The principal function of free speech is to invite dispute.

What is the relevant question?

The relevant question is "Does this speech fall into an established exception to the First Amendment, and if not, what does that mean?"

What affirmative obligation does the government have in such situations?

They have an affirmative obligation to take all reasonable steps to protect the speaker's right to speak, the audience's right to hear and the protesters' right to protest.

What is the doctrine of qualified immunity?

This doctrine provides that government officials are not liable for constitutional-right violations unless the officers violated clearly established law.

Threats conveying what?

Threats conveying "a serious expression of intent to an act of unlawful violence to a particular individual or group of individuals."

What is viewpoint discrimination?

Viewpoint discrimination is the term the Supreme Court has used to identify government laws, rules, or decisions that favor or disfavor one or more opinions on a particular controversy. For example, a government official who permitted "pro-life" proponents to speak on government property but banned "pro-choice" proponents because of their views would be engaged in "viewpoint discrimination."

When is incitement, or advocacy to incitement, unprotected?

We're free, moreover, to attack the law, argue that breaking it is moral, and urge our fellow citizens to break it. We can even assert that violence is justified. Such advocacy is only unprotected when it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

Citizens should train themselves to separate what from what?

Wishes about the law from accurate descriptions of it.

Does the First Amendment protect a person's right to burn the American flag as a form of political protest?

Yes, in a 5-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment.