Chapter 2: First Amendment in Principle and Practice

Words do not equate to Speech

The 1st Amendment is intended to protect expression, not *action*. When words are mixed with or are the cause of illegal action, they can be punished as a crime. *Expression does not always come in the form of words*. Spending money can be viewed as expression.

The First Amendment Restricts Government Action

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; 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." This includes public schools and universities because these are publicly funded. Private actors who restrict free speech are generally not in violation of the 1st Amendment.

Reviewing the First Amendment

"Congress" has been interpreted as any government branch, individual, agency, or entity that acts under the authority of government. "Shall make no law" translates to more than legislation. It can mean how a law is enforced. When a rule is enforced in such a way that it violates free speech, it is a 1st Amendment violation.

Boy Scouts of America Versus Dale (2000)

5-4 decision the court ruled that Boy Scouts had the constitutional right to exclude a homosexual from becoming a scout master. Reasoned that Boy Scouts were engaging in expressive activity as a normal part of the organization.

Citizens Untied Versus Federal Election Commision (2010)

A conservative nonprofit court produced a film negatively portraying Hillary Clinton and wanted to show it in theaters and air ads near an upcoming election. This violated the Bipartisan Campaign Reform Act, specifically section 203 which bans "electioneering communication" within 60 days of a general elections or 30 days of a primary. In a 5-4 decision, BCRA was struck down as well as any limit on corporate spending in advertising on election campaigns.

Chilling Effect

A criticism of *vague restrictions on speech* which may cause speakers to restrict themselves from saying certain things for fear that they might subsequently be punished, when in fact the speech in which they would engage would be constitutional.

Petitioning for Redress: the TEETH of the Constitution

Addresses what was on the forefront of the minds of the framers of the Constitution. Indifference on the part of the government, as int eh King's indifference to colonial petitions for redress was seen as a mark of tyranny. Gives people the right to sue the gov. in order to recover lose civil liberties. The right to petition has come to mean that we are entitled to nonviolent means of motivating our government to action.

NAACP Versus Alabama (1958)

Court Ruled that the NAACP did not have to comply with an Alabama law that required organizations within the state to give a list of members. The reasoning behind rulings is that if a membership were made public forcibly, then some groups may have fewer members. (the right of expressive association)

Compelling Speech

Court has asserted that compelling one to speak, as in the Pledge of Allegiance, is abridging speech, and it would be just as restricting. Taxes and dues used for viewpoint neutral ends are not in violation of the constitution. *If one is compelled to pay dues that support speech that the individual does not support*, then that is a violation of their 1st Amendment rights. T. Jefferson "...To compel a man to furnish contributions of money for propagation of opinions which he disbelieves is sinful"

Rowan v. United States Post Office (1970)

Court upheld a law that allowed individuals to block mail they found offensive. Court reasoned that a listener's rights overweighed those of the speaker when the listener was in their home.

Gloria Bartnicki 1993

Filed a lawsuit against a radio station for airing an interception of her phone call with the president of a local teacher's union. She claimed that the airing violated the Omnibus Crime Control and Safe Streets Act of 1968 which dealt with wiretapping and surveillance. Court refused to hold radio host Fredrick Vopper responsible and ruled that doing so would infringe on his 1st Amendment rights. The Act itself was not unconstitutional, but rather the application in this context was.

Rights of Assembly

Has been interpreted not just as the right to assemble in public spaces, but also the *freedom of association*

Democracy

If this is to be effective, there must be a free flow of information so that the best choices can be made in regard to electing leaders. If opinions and beliefs are suppressed, democracy is useless. *Political speech* lies at the "core of the 1st Amendment" It is the most protected form of speech due to its key role in support of representative government. One problem with this is that virtually all forms of expression have the capacity to become political. *F**k the Draft* : Paul Cohen found guilty of disturbing the peach in L.A. but the Supreme Court found this expression was protected because it was related to a political issue and was thus worthy of protection.

Abridging Freedom

Is to diminish or deduce it in scope. This includes law tha overtly restrict free speech as well as those laws or government actions that discourage free expression without overtly restricting it.

Self-Fulfillment

The ability to speak freely is a part of what defines us as human beings. Freedom of expression is a fundamental right and deserving of protection whether or not it promotes public good.

New York Times C. Versus Sullivan 376 U.S. 245 (1964)

The first time U.S. Supreme Court used the chilling effect argument to rule a Law unconstitutional

Freedom on Expression (Key Points)

The right of Free Expression is NOT absolute. there are limits to what the law will allow. Justice Oliver Wendell Holmes wrote in *Shneck v. U.S.* "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing panic." The U.S. government has attempted to suppress free expression when the expression is deemed threatening to the nation. (After the Bolshevik Revolution, Espinage Act and the Sedition Act)

Speech and Presss

These words mean all forms of expression: printed, spoken, and enacted.

Stability of Society

To promote this, individuals must have the means to complain. It is best to let the citizenry let off steam rather than wait until it blows. *Clear and present danger test*: Speech that presents a clear and present danger is outside the protection of the first Amendment. If free speech is destabilizing to the point of public disruption then it is *not* deserving of protection.

Discovery of the Truth

We need information from multiple sources that are sometimes conflicting in order to get a broader picture of what's going on. *Marketplace of ideas*: The justification for freedom of expression that holds that the best way to find truth is to allow conflicting ideas to compete. "Buyers (seekers of info)" and "vendors (sources of info)" John Milton "A free and open encounter" truth would win out over all other thought.

Speaker Rights versus Listener Rights

When we protect the rights of speakers, listeners benefit from listening to multiple viewpoints, even if those viewpoints may be offensive. The court has stated "The 1st Amendment permits the government to prohibit offensive speech as intrusive when the 'captive' audience *cannot avoid the objectionable speech*" The U.S. Supreme Court cited this as a reasoning for prohibiting religious invocations at public schools. Requires understanding the *nature, content, and location* of the communication.

United States Versus Alvarez and the Stolen Valor Act of 2005

Xavier Alvarez won an election to a California water board and introduced himself as having received the Medal of Honor. This was a lie. He was fined $5,000 but challenged the constitutionality. The Stolen Valor Act that prohibits lying about received military honors *was struck down*. Justice Kennedy wrote that lies could be remedied with truth, bypassing the need for a law that was overreaching its attempt to curtail falsehoods.

Thomas Emerson

Yale University Law professor identified four values inherent in the American desire to protect freedom of expression. Discovery of the truth, Democracy, Stability of Society and Self-fulfillment

Redress

to set right, remedy; relief from wrong or injury