"Law of Journalism and Mass Communication" Ch 3 - Speech Distinction
"Incitement" Test (Brandenburg):
Speech is not protected by 1st Amendment if it is intended and likely to incite immediate violence or illegal action Replaced the vague clear and present danger test. The Brandenburg decision established that the government may punish criticism of government or advocacy of radical ideas only when speakers intentionally incite immediate illegal activity. This remains true today
"Fighting Words" Test:
Speech is not protected by the 1st Amendment if it is likely to provoke an immediate violent reaction that cannot be prevented or curbed Relationship to "Incitement" "Heckler's veto" Continued validity?
"True Threat" Test (Virginia v. Black):
Speech is not protected by the 1st Amendment if it is meant to communicate a serious threat of unlawful violence to a particular person or group of people with the intent to place them in fear of bodily harm or death
Intimidation and Threats
Speech that threatens an individual with violence or intimidates them is protected The speech conveys a real threat of physical harm causes the victim to fear for their life • Virginia vs. Black (2003)
true threat
Speech with the intent to cause fear of one's safety.
Student Speech in Schools
Student speech receives greater protection in secondary schools (college) than in primary schools (elementary and high school) Differences in students' age and stage of development Differences in schools' educational priorities and mission Often treated like limited public forums subject to content-neutral time, place, and manner restrictions But student speech is not protected by 1st Amendment if it disrupts school operations or undermines the school's legitimate educational priorities and mission
Fighting words
The First Amendment doesn't protect speech that is directed at an individual and likely inflict emotional harm and/or trigger immediate violence...rarely used in court today
USA Patriot Act
The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. Passed in the wake of the Sept. 11 attacks, the act was designed to give law enforcement agencies greater authority to combat terrorism.
chilling effect
The discouragement of a constitutional right, especially free speech, by any practice that creates uncertainty about the proper exercise of that right.
Offensive protest
The gov't cannot ban speech it finds offensive that is political in nature and does not causes a disturbance The First Amendment protects the content and the emotional value of the message • Cohen vs California (1971) - Vietnam bureau speeches - Cohen walks into courthouse to testify in court case wearing leather jacket that said "**** the Draft" on the back - SC says he has the right to wear the jacket • Texas vs Johnson (1989) - US flag, lighter fluid
establishment clause
The portion of the First Amendment that prohibits government from setting up an official religion or passing laws that favor a specific religious doctrine.
Free Speech and Schools
• Courts have struggled to define the free speech rights of students • Supreme Court has generally viewed public schools and universities as limited public forums - time, place, and manner restrictions • Schools and universities may adopt regulations to achieve their educational goals even if those regulations incidentally limit free speech
What determines a threat to national security?
• Depends on country climate (war vs peace) • No defined rules on speech during wartime • Chilling effect could exist • WWI (Clear and Present Danger) • Cold Ware (Are you a Communist?) • 9/11 (Patriot Act, "With us or against us")
Disruptive Speech
• Hate Speech • Threats • Calls for violence • Protests On the fringes of Constitutional protection
University Campus Speech Codes
• Often prohibit verbal harassment based on race, gender, religion, etc. on college and university campuses • Courts have struck these speech codes down, citing them as unconditional
Hate Speech
• Speech that denigrates an individual group of people based on several characteristics such as race, gender, religion, ethnicity • These view-point based laws are unconstitutional • Hate speech is constitutionally protected unless the speech results in violence or is a direct threat or incites violence against victim
selective incorporation
after the 14th Amendment, the courts have held that certain rights spelled out in the Constitution are binding on the states as well as the federal government, including the right to free speech, as an example. Those earlier amendments from the Bill of Rights that now bind the state governments just like the federal government were SELECTIVELY INCORPORATED into the 14th Amendment's provisions.
underinclusive
first amendment doctrine that disfavors narrow laws that target a subset of a recognized category for discriminatory treatment
viewpoint based discrimination
government censorship or punishment based on the ideas or attitudes expressed. courts will apply a strict scrutiny test to determine whether the government acted constitutionally
Free speech can be restricted in public schools when....
• Students expressions disrupts education • Student speech is lewd or of low value • When schools sponsor or fund the speech • Regulate clothing • School related expression of teachers • Content of student publications • Advocates illegal druge use • Tinker vs. Des Moines (1969) - armband • Hazelwood vs Kuhlmeier (1988) - hs newspaper • Morse vs. Federick (2007) - advocate drug use
Strict Scrutiny
1. Be necessary 2. Advance a compelling gov't interest 3. Harm First Amendment rights as little as possible
O'Brien Test/Intermediate Scrutiny Test
1. Not related to suppression 2. Advances important gov't interest 3. Narrowly tailored
punishable threat
1. the speaker intended the statement to be a threat 2. the statement conveys the speaker's intent to do bodily harm
heckler's veto
A First Amendment concept that generally favors the right of an orderly speaker over the right of an offended or antagonized member of the audience.
as applied
A phrase referring to the interpretation of a statute on the basis of its actual effect on concerned parties.
Symbolic Speech & Expressive Conduct
Actions "closely akin to pure speech" and primarily intended as expression of an idea May be subject to strict scrutiny, particularly if the regulation is motivated by the content of the expression Contrast with laws that regulate conduct and that have only an incidental effect on speech Generally subject only to intermediate scrutiny
KSU Speech Codes
Applies to clear and present danger, disruptive to campus academic functioning, bullying, harassment
Categorical Balancing
Courts' method to determine when speech is no longer protected by First Amendment • Judges weigh different categories against one another to determine how much speech is protected • May be applied to future cases • Often used in cases of disruptive speech • Does silencing speech outweigh the benefits of free expression?
categorical balancing
Defining categories of speech that are/aren't protected by the 1st Amend.
Symbolic protests
Gov't may regulate symbolic protests to advance an important gov't interest that is unrelated to suppression of speech and not greater than needed • US vs O'Brien (1968) -- O'Brien test and intermediate scrutiny (Chapter 2)- O'Brien ripped up draft card and was arrested
incorporation doctrine
the legal concept under which the Supreme Court has nationalized the Bill of Rights by making most of its provisions applicable to the states through the fourteenth amendment
offensive speech
Protected by 1st Amend unless it falls into an unprotected category: 1. obscenity 2. incitement 3. fighting words
Constitution bans heckler's veto
Rights of an orderly speaker are favored over the interest of an offended audience Heckler's veto - an acting party's right to free speech is curtailed or restricted by the gov't in order to prevent reacting party's behavior • Speakers are not responsible for any unprovoked violence caused by listeners
Gitlow v NY
Ruled that Bill of Rights can be applied to states through 14th amendment The 1925 Supreme Ct decision holding that freedoms of the press and speech are "fundamental personal rights and liberties protected by the due process clause of the 14th Amendment from impairment by the states" as well as by the fed gov't.
Citizen media
Same legal approach applied to Facebook, Twitter, YouTube, Text, etc.
Texas v. Johnson
Brief Fact Summary. A conviction for burning the United States flag based on a Texas law was overturned after the Supreme Court of the United States (Supreme Court) found that the Texas law was unconstitutional. Synopsis of Rule of Law. The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. It may not, however, proscribe particular conduct because it has expressive elements. It is not simply the verbal or nonverbal nature of the expression, but the governmental interest at stake, that helps to determine whether a restriction on that expression is valid. Facts. After publicly burning the American flag, the Defendant, Gregory Lee Johnson (Defendant), was convicted of desecrating a flag in violation of Texas law. The Court of Criminal Appeals overturned the conviction. Issue. Whether Defendant's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment of the United States Constitution (Constitution)? Whether the state's interest in preserving the flag as a symbol of nationhood justifies Defendant's conviction? Held. Yes. Judgment of the Court of Criminal Appeals affirmed. The very purpose of a national flag is to serve as a symbol of our country. Pregnant with expressive content, the flag as readily signifies this nation as does the combination of letters found in "America." Texas conceded that Defendant's conduct was expressive conduct. He burned the flag as part of a political demonstration. Therefore, Defendant's burning of the flag constituted expressive conduct thereby permitting him to invoke the First Amendment of the Constitution. No. Judgment of the Court of Criminal Appeals affirmed. The state's restriction on Defendant's expression is content-based. Therefore, the state's asserted interest in preserving the special symbolic character of the flag must be subjected to the "most exacting scrutiny." To say that the Government has an interest in encouraging proper treatment of the flag is not to say that it may criminally punish a person for burning the flag as a means of political protest. Therefore, the state's interest in preserving the flag as a symbol of nationhood does not justify Defendant's conviction because it is not consistent with the First Amendment of the Constitution. Dissent. It was for Defendant's use of this symbol, not the idea that he sought to convey for which he was convicted. The interest of preserving the flag as a symbol of nationhood is legitimate and justified the Defendant's conviction. Discussion. This case resulted in battle lines being drawn between those in Congress who wanted to amend the Constitution to permit restraints on flag desecration and those who supported new legislation rather than constitutional amendment.
Tinker V. Des Moines Independent Community School District
Brief Fact Summary. In protest of the Vietnam War, several students wore black armbands to school. The Respondent, Des Moines Independent Community School District (Respondent), adopted a policy that any students wearing the bands would be suspended for causing disruption. The Petitioners, Tinker and other students (Petitioners) refused to remove their armbands and brought suit seeking protection of their First Amendment constitutional rights to political expression. Synopsis of Rule of Law. This case presents the landmark decision that a student does not shed his personal rights at the schoolhouse door. Facts. In protest of the Vietnam War, several students wore black armbands to school. The Respondent adopted a policy that any students wearing the bands would be suspended for causing disruption. The Petitioners refused to remove their armbands and brought suit seeking protection of their First Amendment constitutional rights to political expression. After the Respondent invoked its policy, the Petitioners refused to remove their armbands and were suspended. They brought suit in federal court, seeking an injunction from the disciplinary practice, maintaining that they had done nothing disruptive. The District Court and Court of Appeals upheld the school action and an appeal was brought to the Supreme Court of the United States (Supreme Court). Issue. This case considers what happens when the fundamental rights of students collide with school policies, which are facially designed to lessen controversy. Held. Justice Abe Fortas (J. Fortas). Reversed and Remanded. The majority of the Supreme Court held that, in seeking to punish the Petitioners for their passive expression of opinion, unaccompanied by any disorder, the Respondent had violated their First Amendment rights. Just because a view may be politically charged, a student might express his opinion if he does so without colliding with the rights of others. Dissent. Justice Hugo Black (J. Black). The dissenting opinion notes that, while no overt disturbance may have happened, the mere presence of the armbands took the students minds off of their work and diverted their attention to the war, which was a collision with the rights of others. Concurrence. Justice Potter Stewart (J. Stewart). The concurrence agreed with the majority opinion, that the armbands were passive and therefore the punishment imposed by the Respondent was an abridgement of the Petitioners' rights. However, J. Stewart did not agree that the First Amendment constitutional rights of children were necessarily the same as those of adults. Discussion. This case stands for the proposition that the First Amendment of the United States Constitution (Constitution), as incorporated by the Fourteenth Amendment, will allow passive expression of opinion, even as to controversial topics.
clear and present danger
Doctrine establishing that restrictions on First Amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent harm.
Clear and present danger
doctrine establishing that restrictions on the first amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent harm ordinary words can become criminal during times of war because of the heightened danger that they pose. "It is a question of proximity and degree."
