CHAPTER 19:3 Freedom of Speech

Chapter 19:3: Freedom of Speech

o We will examine the importance of two basic purposes served by the guarantees of free expression.

o We will summarize how the Supreme Court has limited seditious speech and obscenity.

o We will examine the issues of prior restraint and press confidentiality; and describe the limits the Court has placed on the media.

o We will examine symbolic and commercial speech; describe the limits on their exercise.

(Mat 12:34) O generation of vipers, how

can ye, being evil, speak good things? for

out of the abundance of the heart the

mouth speaketh.

Introduction:

o The first and fourteenth Amendments’ protections of free speech and a free press serve two fundamentally important purposes:

o (1) To guarantee to each person a right of free expression in the spoken and the written word, and by all other means of communication, as well.

o (2) To ensure to all persons a full, wide-ranging discussion of public affairs.

As you examine the Constitution’s 1st and 14th Amendments, keep

two other key points in mind.

o The guarantees of free speech and press are

intended to protect the expression of unpopular views.

o That is because the opinions of the majority need, after all, little or no constitutional protection.

o Some forms of expression are not protected by the Constitution.

o No person has an unbridled right of free speech or free press.

o Many reasonable restrictions can be placed on those rights.

As you examine the Constitution’s 1st and 14th Amendments, keep

two other key points in mind.

o No person has the right to libel or

slander another.

o Libel is the false and malicious use of printed words;

o Slander is such use of spoken words.

o Similarly, the law prohibits the use of obscene words, the printing and distributing of obscene materials, and false advertising.

OBSCENITY:

o The First and Fourteenth

Amendments do not protect obscenity, but in recent years the Court has had to wrestle several times with these questions:

o What language in printed matter, films, and other materials are, in fact obscene?

o What restrictions can be properly placed on such materials?

A book, film, recording, or other piece of material is legally obscene if:

o The average person applying

contemporary [local] community standards finds that the work, taken as a whole, appeals to the prurient interest that tends to excite lust;

o The work depicts or describes, in a patently offensive way, a form of sexual conduct specifically dealt with in an anti-obscenity law; and

o The work, taken as a whole, lack serious literary, artistic, political, or scientific value.

Obscenity:

o A sampling of Supreme Court decisions involving local attempts to regulate so-called adult book stores and similar places shows how thorny the problem can be.

o Most of what those stores sell cannot be mailed, sent across state lines, or imported at least not legally.

o Still, those shops are usually well-stocked.

Obscenity:

o The first and fourteenth amendments do not prevent a city from regulating the location of “adult entertainment establishments.”

o A city can decide to bar the location of such places within 1,000 feet of a residential zone, church, park, or school.

o But a city cannot prohibit live entertainment in any and all commercial establishments.

Obscenity:

o The Supreme Court has upheld a state law that makes it a crime to possess or view child pornography, including films.

o The court ruled that the state has a compelling interest in protecting the physical and psychological well-being of minors and in the destruction of the market in which they are exploited.

o Psa_101:3 I will set no wicked thing

before mine eyes: I hate the work of

them that turn aside; it shall not

cleave to me.

o Pro_23:17 Let not thine heart envy

sinners: but be thou in the fear of the

LORD all the day long.

• What type of media should be censored?

With growing concerns of sexual slavery

connected with pornography, do you think

pornography should be made illegal?

PRIOR RESTRAINT:

o The Constitution allows government to

punish some utterances after they are

made.

o But, with almost no exceptions,

government cannot place any prior

restraint on spoken or written words.

o That is, except in the most extreme

situations, government cannot curb

ideas before they are expressed.

PRIOR RESTRAINT:

o The Supreme Court struck down a state law that prohibited the publication of any “malicious, scandalous, and defamatory periodical.”

o The Court held that the guarantee of a free press does not allow a prior restraint on publication, except in such extreme case as wartime, or when a publication is obscene or incites readers to violence.

PRIOR RESTRAINT:

o The Court said that even “miscreant purveyors of scandal” and anti-Semitism have a Constitutional protection against prior restraint.

o The Constitution does not forbid any and all forms of prior censorship, but “a prior restraint on expression comes to this Court with a heavy presumption’ against its constitutionality.

PRIOR RESTRAINT:

o In the case of the famous Pentagon Papers, several newspapers had obtained copies of a set of classified documents.

o They had been stolen from the Defense Department and then leaked to the press.

o The government sought a court order to bar their publication, but the Court held that the government had not shown that printing the documents would endanger the nation’s security, and so had not overcome the “heavy presumption” against prior censorship.

PRIOR RESTRAINT:

o Examples of Prior Restraint that the Court has approved include regulations prohibiting the distribution of political literature on military bases without the approval of military authorities.

o CIA agents must never agree to publish anything about the agency without the CIA’s permission.

o A federal prison rule that allows officials to prevent an inmate from receiving publications considered “detrimental to the security, good order or discipline of the prison. “

PRIOR RESTRAINT:

o The Court has recently said that public school officials have a broad power to censor school newspapers, plays, and other “school sponsored activities.”

o It held that educators can exercise “editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical “teaching” concerns.”

CONFIDENTIALITY:

o Can news reporters be forced to testify

before a grand jury, in court, or before a legislative committee, and there be required to name their sources and reveal other confidential information?

o Many reporters and news organizations insist that they must have the right to refuse to testify, the right to protect their sources.

o They argue that without this right they cannot assure confidentiality of their sources.

CONFIDENTIALITY:

o Unless they can do that, reporters say,

many sources will not give them information they need to keep the public informed.

o Both state and federal courts have generally rejected the news media argument.

o In recent years several reporters have refused to obey court orders directing them to give information.

o As a consequence, a number of reporters have gone to jail, testifying the importance of these issues.

CONFIDENTIALITY:

o In 1972, the Supreme Court held

that reporters, “like other citizens, [must] respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.”

o If the media are to receive any special exemptions, said the court, the exemptions must come from Congress and the State legislatures.

CONFIDENTIALITY:

o Congress has not acted on the

Court’s suggestion.

o However, some 30 states have

passed so-called shield laws.

o These laws give reporters some

protection against having to disclose

their sources or reveal other

confidential information in legal

proceedings in those states.

Movies:

o In 1915, the Supreme Court took its

first look at motion pictures early in

the history of the movie industry.

o It held a state law that any film that

were not of a “moral, educational, or

harmless and amusing character,”

can be censored.

Movies:

o The Court declared that “the

exhibition of moving pictures is a

business, pure and simple,” and “not

… part of the press of the country.”

o With that decision, nearly every State

and thousands of communities

setup movie reviews, really movie

censorship programs.

Movies:

o The court reversed itself in 1952,

where New York censorship found that

“liberty of expression by means of

motion picture is guaranteed by the 1st

and 14th amendments.”

o Movie censorship is not necessarily

unconstitutional, however.

o A state or local government can ban an

obscene film, but only under a law that

provides for a prompt judicial hearing.

Movies:

o At that hearing that government

must show that the picture in question is in fact obscene.

o Very few of the once common local movie review boards still exist.

o Most movie-goers now depend on the film industry’s own rating system and on the comments of movie critics on television and in newspapers and magazines.

RADIO AND TELEVISION:

o Both radio and television broadcasting are

subject to extensive federal regulation.

o Most of this regulation is based on the often-amended Federal Communications Act of 1934, which is administered by the Federal Communications Commission.

o As the Supreme Court has described the situation: “Of all forms of communication, it is broadcasting that has received the most limited First Amendment protection.

RADIO AND TELEVISION:

o The Court has several times upheld this

wide ranging federal regulation as a

proper exercise of the commerce power.

o Unlike newspapers and other print

media, radio, and television use the

public’s property—the public airwaves to

broadcast their materials.

o They have no rights to do so without the

public’s permission—that is, without a

proper license.

RADIO AND TELEVISION:

o The Court has regularly rejected the

argument that First Amendment prohibits such regulations.

o Instead, it has taken the view that the regulation implements the constitutional guarantee.

o It has held that there is no “unbridgeable 1st Amendment right to broadcast comparable to the right of every individual to speak, write, or publish.”

RADIO AND TELEVISION:

o However, “this is not to say that the

1st Amendment is irrelevant to

broadcasting.

o But … it is the right of the viewers

and the listeners, not the right of the

broadcasters, which is paramount.”

RADIO AND TELEVISION:

o Congress has forbidden the FCC to

censor the content of programs

before they are broadcast.

o But the FCC can prohibit the use of

indecent language, and it can take

violations of the ban into account

when a station applies for the

renewal of its operating license.

RADIO AND TELEVISION:

o The FCC has refused applications for

renewal of licenses due to past use

of objectionable practices.

o And Congress itself cannot prohibit

the broadcasting editorials by public

radio and television stations.

RADIO AND TELEVISION:

o In several recent decisions, the Supreme

Court has given the growing cable television industry broader First Amendment freedoms than those enjoyed by traditional television.

o For example, the Court held that the State’s cannot regulate “indecent” cable programming.

o It reached that decision by striking down a Utah law that prohibits the cable broadcast of any sexually explicit or other “indecent material” between the hours 7 a.m. and midnight.

• In 1992, a hip hop group in protest for

Arizona not observing the Martin Luther King

Holiday produced a music video that showed

the group assassinating politicians from the

State of Arizona. Do you think the

government is justified in censoring this

music video?

• Do you think terrorists groups ideology

should be protected freedom of speech?

SYMBOLIC SPEECH:

o Symbolic Speech: People also

communicate ideas by conduct by the

way a person does some particular

thing.

o Thus, a person can say something with

a facial expression or a shrug of the

shoulders, or by carrying a sign or

wearing an arm band.

o This mode of expression—expression by

conduct—is known as symbolic speech.

SYMBOLIC SPEECH:

o Clearly, not all conduct amounts to

symbolic speech.

o If it did, murder or robbery or any other crime could be excused on grounds that the person who committed the act meant to say something by doing so.

o But, just as clearly, some conduct does express opinion.

o Take picketing in a labor dispute as an example.

o Picketing involves patrolling of a business site by workers who are on strike.

SYMBOLIC SPEECH:

o By their conduct, picketers attempt

to inform the public of the

controversy, and to persuade others

not to deal with the firm involved.

o Picketing is, then, a form of

expression.

o If peaceful, it is protected by the First

and Fourteenth Amendments.

SYMBOLIC SPEECH:

o Generally, Supreme Court has been sympathetic to symbolic speech but there are exceptions.

o For example, when draft dodgers burned draft cards:

o “We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.”

o Thus, burning a draft card is not protected by the Constitution.

The Court also held that acts of dissent by conduct can be punished if:

o (1) The object of the protest here,

the war and the draft is within the

constitutional powers of the

government.

o (2) Whatever restriction is placed on

expression is no greater than

necessary in the circumstances.

o (3) The government’s real interest in

the matter is not to squelch dissent.

The Court also held that acts of dissent by conduct can be punished if:

o Examples include court holding for

students and teachers for wearing

black arm bands in protest of the

Vietnam War were suspended.

o The court said: “It can hardly be

argued that either students or

teachers shed their constitutional

rights to freedom of speech or

expression at the schoolhouse gate.”

The Court also held that acts of dissent by conduct can be punished if:

o Burning the American flag as an act of

political protest is expressive conduct protected by the First and Fourteenth Amendment.

o So a sharply divided Court has twice held.

o “If there is a bedrock principle underlying the 1st Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive….

o We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that cherished emblem represents.”

• What do you think of Flag burning, do you

think it should be against the law?

COMMERCIAL SPEECH:

o Commercial speech is speech for

business purposes mostly, advertising.

o Until fairly recently, it was generally

thought that the 1st and 14th

Amendments did not protect such speech.

o However Supreme Court held

unconstitutional a state law that

prohibited the newspaper advertising of

abortion services.

COMMERCIAL SPEECH:

o And in 1976, it struck down another Virginia law forbidding this advertisement of prescription drug prices.

o Not all commercial speech is protected, thus, government can and does prohibit false and misleading advertisements, and the advertising of illegal goods or services.

• What type of speech do you feel should NOT

be protected by the First Amendment?

• Do you think threats or bullying statements

made in social media be protected under

freedom of speech?