FREEDOM OF SPEECHFREEDOM OF SPEECH

I. Nationalizing influence I. Nationalizing influence of Amendment 14.of Amendment 14.

II. Involves both the II. Involves both the freedom to give and hear freedom to give and hear speech speech

III. III. BeliefBelief is most is most protected, protected, actionaction can be can be most restricted, but most restricted, but speechspeech falls somewhere falls somewhere in between.in between.

IV. Historic tests used by IV. Historic tests used by courts to determine if courts to determine if speech is protected.speech is protected.

FREEDOM OF SPEECHFREEDOM OF SPEECH A.A. Bad tendency doctrine.Bad tendency doctrine.    1. State legislatures, 1. State legislatures,

and not the courts, should and not the courts, should generally determine when generally determine when speech should be limited. speech should be limited.

2. Speech can be 2. Speech can be limited when it might lead to limited when it might lead to harm/illegal actionharm/illegal action

3. Example: university 3. Example: university speech code banning "racially speech code banning "racially abusive" speech would be abusive" speech would be

constitutional.constitutional. 4. A restrictive test.4. A restrictive test.

FREEDOM OF SPEECHFREEDOM OF SPEECH B. Clear and present danger B. Clear and present danger

doctrine.doctrine.    1. 1. Schenck v. U.SSchenck v. U.S., 1919., 1919. .

Case involved a man who was Case involved a man who was urging others to avoid the draft urging others to avoid the draft during WWI. The conviction during WWI. The conviction was upheld, however: was upheld, however: Speech can be suppressed Speech can be suppressed only if there is an imminent only if there is an imminent threat to societythreat to society, e.g., falsely , e.g., falsely shouting "Fire!" in a crowded shouting "Fire!" in a crowded theater.theater.

2. The university speech code 2. The university speech code would be unconstitutional would be unconstitutional because there is no imminent because there is no imminent threat to society.threat to society.

Sorry, but this movie had nothing to do with the “CPD” principal…

FREEDOM OF SPEECHFREEDOM OF SPEECH C. Preferred position C. Preferred position

doctrine. doctrine.    1. Free speech is of 1. Free speech is of

utmost importance and utmost importance and should therefore occupy should therefore occupy a "preferred position" a "preferred position" above other values ---> above other values ---> government should government should virtually never restrict it.virtually never restrict it.

2. The university 2. The university speech code would be speech code would be clearly unconstitutional.clearly unconstitutional.

FREEDOM OF SPEECHFREEDOM OF SPEECH V.V. Non-protected speechNon-protected speech    A. Libel and slander.A. Libel and slander. B. ObscenityB. Obscenity C. “Fighting words:” Speech that leads to C. “Fighting words:” Speech that leads to violence can be restricted.violence can be restricted. D. Commercial speech is subject to far D. Commercial speech is subject to far greater regulation than political speechgreater regulation than political speech E. SeditionE. Sedition

1. In the past, could be mere criticism of the 1. In the past, could be mere criticism of the government (e.g., Alien and Sedition government (e.g., Alien and Sedition Acts)Acts) 2. 2. Smith Act, 1940Smith Act, 1940: banned advocacy of : banned advocacy of overthrowing the government.overthrowing the government. 3. Supreme Court narrowed the definition 3. Supreme Court narrowed the definition even further when it stated that sedition waseven further when it stated that sedition was prohibited only when: prohibited only when:    a. there is imminent danger of an overthrow, and a. there is imminent danger of an overthrow, and

b. people are actually urged to do something b. people are actually urged to do something rather than merely believe something.rather than merely believe something.

The Alien and The Alien and Sedition ActsSedition Acts

FREEDOM OF SPEECHFREEDOM OF SPEECH VI.VI. Protected speechProtected speech    A. Prior restraint.A. Prior restraint. 1. Blocking speech before it is given.1. Blocking speech before it is given. 2. Such action is presumed by courts to be 2. Such action is presumed by courts to be unconstitutional.unconstitutional. 3. In the Pentagon Papers case, the court refused to 3. In the Pentagon Papers case, the court refused to impose prior restraint: the revelations may have impose prior restraint: the revelations may have embarrassed the government, but they did not embarrassed the government, but they did not endanger national security.endanger national security.   B. Vagueness.B. Vagueness. 1. Speech restrictions cannot be written in too vague 1. Speech restrictions cannot be written in too vague a. a. manner. They must be clear to the average person.manner. They must be clear to the average person. 2. The university speech code would be 2. The university speech code would be unconstitutional.unconstitutional.   C. Least drastic means test.C. Least drastic means test. 1. Laws cannot restrict speech if there are other means 1. Laws cannot restrict speech if there are other means to handle the problem.to handle the problem. 2. The university speech code would be 2. The university speech code would be unconstitutional.unconstitutional.   

FREEDOM OF SPEECHFREEDOM OF SPEECH D. Centrality of political speech: D. Centrality of political speech:

political speech is given special political speech is given special protection because of its importance protection because of its importance in a democracy. Political speech is in a democracy. Political speech is less likely to be restricted than other less likely to be restricted than other types of speech, e.g. commercial types of speech, e.g. commercial speechspeech

E. Symbolic speech.E. Symbolic speech.    1. Somewhere between speech 1. Somewhere between speech

and action. Generally protected.and action. Generally protected. 2. 2. U.S. v. O'Brien, 1968U.S. v. O'Brien, 1968: draft card : draft card

burning was not a protected form of burning was not a protected form of speech.speech.

3. 3. Tinker v. Des Moines, 1969Tinker v. Des Moines, 1969:: wearing black armbands in school as wearing black armbands in school as a form of protest (against the a form of protest (against the Vietnam War) is constitutionally Vietnam War) is constitutionally protected.protected.

4. 4. Texas v. Johnson, 1989Texas v. Johnson, 1989: flag : flag burning was a protected form of burning was a protected form of speech.speech.

FREEDOM OF THE PRESSFREEDOM OF THE PRESS I. Nationalizing effect of Amendment I. Nationalizing effect of Amendment 14.14. II. Balancing test once again applies.II. Balancing test once again applies. III. Controversial areas.III. Controversial areas.    A. Right of access. A. Right of access.    1. Generally granted to the 1. Generally granted to the

press, press, but not always.but not always. 2. "Sunshine laws" require 2. "Sunshine laws" require agencies to open their agencies to open their meetings to the public and meetings to the public and press.press. 3. Freedom of Information Act 3. Freedom of Information Act (1966) allows public access (1966) allows public access

to to government files.government files. Electronic Freedom of Information Act of Electronic Freedom of Information Act of

1996 requires agencies to put files online.1996 requires agencies to put files online.

FREEDOM OF THE PRESSFREEDOM OF THE PRESS B.B. Executive privilege.Executive privilege.    1. The right of presidents to withhold 1. The right of presidents to withhold

information from Congress or the courts.information from Congress or the courts. 2. 2. U.S. v. Nixon, 1974U.S. v. Nixon, 1974: A President : A President

generally does have executive privilege, but not in generally does have executive privilege, but not in criminal cases. Even the President is not above criminal cases. Even the President is not above the law.the law.

   C. Gag orders may be issued by courts C. Gag orders may be issued by courts to ensure fair trials.to ensure fair trials.    D. D. Shield laws. (Branzburg v. Hayes)Shield laws. (Branzburg v. Hayes) 1. Protect reporters from having to 1. Protect reporters from having to reveal their sources. reveal their sources. 2. The press claims that without them, 2. The press claims that without them, their sources would "dry up," and their sources would "dry up," and they would be unable to provide they would be unable to provide information to the public. information to the public. 3. While Congress has not passed a 3. While Congress has not passed a shield law, many states have done shield law, many states have done so.so.

FREEDOM OF THE PRESSFREEDOM OF THE PRESS E.E. Defamation.Defamation. 1. Distinction between libel (written 1. Distinction between libel (written word) and slander (spoken word).word) and slander (spoken word). 2. Not protected by Amendment 1.2. Not protected by Amendment 1. 3. To win a libel or slander case, 3. To win a libel or slander case,

one one must generally prove that the must generally prove that the allegations were false and that allegations were false and that they damaged his/her reputation.they damaged his/her reputation. 4. In 4. In New York Times v. Sullivan New York Times v. Sullivan (1968), (1968), however, the Court ruled however, the Court ruled that that public figurespublic figures must also prove must also prove malice. This makes it difficult for malice. This makes it difficult for public figures to win libel suits, so public figures to win libel suits, so the case was seen as a major the case was seen as a major victory for freedom of press.victory for freedom of press.

FREEDOM OF THE PRESSFREEDOM OF THE PRESS F. Obscenity.F. Obscenity. 1. Not protected by First 1. Not protected by First

Amendment.Amendment. 2. Old standard for proving 2. Old standard for proving

obscenity: material appealing to obscenity: material appealing to prurient interests and utterly prurient interests and utterly without redeeming value.without redeeming value.

3. New standards in 3. New standards in Miller v. Miller v. California, 1973California, 1973::

a. Community standards a. Community standards must be violated.must be violated. b. State obscenity laws b. State obscenity laws

must must be violated.be violated.

c. Material must lack serious c. Material must lack serious literary/artistic/political literary/artistic/political value.value.

Thurgood Marshall as SC Thurgood Marshall as SC Justice strongly affected the Justice strongly affected the debate on obscenitydebate on obscenity

FREEDOM OF THE PRESSFREEDOM OF THE PRESS

G. Student press. G. Student press. Hazelwood v. Hazelwood v. KuhlmeierKuhlmeier, , 19881988: high : high school newspaper was school newspaper was not a public forum and not a public forum and could therefore be could therefore be restricted just as other restricted just as other high school activities high school activities could be restricted by could be restricted by school authorities.school authorities.

H. Prior restraintH. Prior restraintNew York Times v. U.S.,New York Times v. U.S., 19711971

FREEDOM OF THE PRESSFREEDOM OF THE PRESS I. Regulation of the electronic media.I. Regulation of the electronic media. 1. Radio and t.v. stations need 1. Radio and t.v. stations need

license from FCC, and must comply with FCC license from FCC, and must comply with FCC regulations, e.g., devoting a certain amount of regulations, e.g., devoting a certain amount of time to public service, news, and children's time to public service, news, and children's programming.programming.

2. Fairness Doctrine required that 2. Fairness Doctrine required that stations allow a broad spectrum of viewpoints, stations allow a broad spectrum of viewpoints, but that was repealed by the FCC in 1987.but that was repealed by the FCC in 1987.

3. FCC restricts the use of obscene 3. FCC restricts the use of obscene words. Fine imposed upon Howard Stern. words. Fine imposed upon Howard Stern. FCC also fined CBS $500,000 for the FCC also fined CBS $500,000 for the Janet Jackson incident at the Super Bowl Janet Jackson incident at the Super Bowl halftime show.halftime show.

4. The Court struck down the 4. The Court struck down the Communications Decency Act (CDA) in 1997, Communications Decency Act (CDA) in 1997, which had prohibited the circulation of which had prohibited the circulation of "indecent" material on the Internet to minors."indecent" material on the Internet to minors.

5. “Virtual” child pornography is 5. “Virtual” child pornography is protected by Amend. 1 (Ashcroft v. ACLU, protected by Amend. 1 (Ashcroft v. ACLU, 2002): this case struck down the Child Online 2002): this case struck down the Child Online Protection Act using the least drastic means Protection Act using the least drastic means test: the goal of protecting children could be test: the goal of protecting children could be accomplished in a less restrictive manner.accomplished in a less restrictive manner.

The now-infamous ‘wardrobe malfunction’ incident with J Timberlake and J Jackson…

FREEDOM OF ASSEMBLY AND FREEDOM OF ASSEMBLY AND PETITIONPETITION

I. Nationalizing effect of Amendment 14.I. Nationalizing effect of Amendment 14. II. II. Freedom of petitionFreedom of petition..   

• A. A. Right to petition the govt. for redress of Right to petition the govt. for redress of grievancesgrievances, i.e., right to ask for government , i.e., right to ask for government action.action.

B. Serves as constitutional justification for B. Serves as constitutional justification for lobbying.lobbying. C. Since people "petition" the govt. in C. Since people "petition" the govt. in groups, groups, this has also provided the constitutional this has also provided the constitutional

basis basis for freedom of association. Two types: for freedom of association. Two types:    1. Political association (e.g., belonging to parties, 1. Political association (e.g., belonging to parties, interest groups, PACs). (interest groups, PACs). (Gitlow v. New YorkGitlow v. New York, 1925), 1925) 2. Personal association (e.g., belonging to private 2. Personal association (e.g., belonging to private clubs). Boy Scouts of America v. Dale (2000) is a clubs). Boy Scouts of America v. Dale (2000) is a relevant case here: Boy Scouts can ban relevant case here: Boy Scouts can ban

homosexuals homosexuals from being scout leaders.from being scout leaders.

FREEDOM OF ASSEMBLY AND FREEDOM OF ASSEMBLY AND PETITIONPETITION

D. Freedom of association has D. Freedom of association has been limited by the Hatch Act been limited by the Hatch Act for federal employees (restricts for federal employees (restricts their political activities).their political activities).

E. Freedom of association has E. Freedom of association has been limited by restrictions on been limited by restrictions on campaign campaign contributionscontributions, but, but

these restrictions have these restrictions have generally been upheld. generally been upheld. However, the Court struck However, the Court struck down in down in BuckleyBuckley

v. Valeo v. Valeo limits on the amount limits on the amount that a congressional candidate that a congressional candidate can can spendspend on his campaign. on his campaign. Such campaign spending is a Such campaign spending is a form of expression protected by form of expression protected by Amendment One.Amendment One.

FREEDOM OF ASSEMBLY AND FREEDOM OF ASSEMBLY AND PETITIONPETITION

II.II. Freedom of assembly.Freedom of assembly.    A. Government may regulate A. Government may regulate

the time, place, and manner. the time, place, and manner. B. Government may require B. Government may require

police permits for assemblies.police permits for assemblies. C. Problem of "heckler's veto:" C. Problem of "heckler's veto:"

if govt. restricted assembly if govt. restricted assembly every time an opposing group every time an opposing group claimed that there might be claimed that there might be "violence or disorder," there "violence or disorder," there would be very few assemblies. would be very few assemblies. Courts are therefore reluctant Courts are therefore reluctant to impose prior restraint. to impose prior restraint. (Skokie case)(Skokie case)

D. Applies to public places, not D. Applies to public places, not private places.private places.