Freedom of Speech

What does it mean for journalists?

Definition:

The press is generally free of government interference, ensuring that citizens have access to a wide array of information.

The government can’t regulate speech based on its content (or because it doesn’t like it)

HOWEVER . . .

Exceptions have been made . . .

The government can regulate expression based on some factors not related to the message.

The Supreme Court looks to see if the expression has SOCIAL VALUE.

Unprotected Speech

Various exceptions to free speech have been recognized by the Supreme Court obscenity libel inflammatory expression "fighting words"

Obscenity – NOT PROTECTED

If the average person finds that the work appeals to his or her prurient (improperly sexual) interest, it is considered obscene

Lacks serious value (more on that later)

Obscenity Court Case

Miller v California Marvin Miller sent a mass mailing promoting

four illustrated books (Intercourse, Sex Orgies Illustrated, Man-Woman and An Illustrated History of Pornography) and a film (Marital Intercourse)

Supreme Court found the work offensive and lacking serious literary, artistic, political or scientific value

Libel – NOT PROTECTED

Stating a fact that is Published False Harms the reputation of someone

Is this libel? A Spoke article reports that Ms. Houseman has green hair.

Is this libel?A Spoke article reports that Ms. Houseman runs a gambling operation out of her home.

Libel: Public v Private Figure

A private figure has an easier time proving libel than a public figure who puts himself in the limelight and invites public comment.

MALICE

A public figure must prove MALICE. For instance, the reporter, says, “I’m going to

print it even though I haven’t checked my facts and it may not be true.” or “I know it’s not true but I’m publishing it anyway.”

MALICE

Here’s the difference: A private figure is reported as being drunk at a

restaurant – easy to win case if it’s false A public figure is reported as being drunk at a

restaurant – the figure must prove that the reporter was reckless

Example

Carol Burnett v. National Enquirer

“In a Washington restaurant, a boisterous Carol Burnett had a loud argument with another diner, Henry Kissinger. Then she traipsed around the place offering everyone a bite of her dessert. But Carol really raised eyebrows when she accidentally knocked a glass of wine over one diner and started giggling instead of apologizing. The guy wasn't amused and 'accidentally' spilled a glass of water over Carol's dress” (National Enquirer, 1976)

Libel and Parody

It may be printed and it may be false, but if it’s obviously a PARODY, the speech may be protected.

Falwell and Hustler Magazine

Inflammatory Expression

You cannot advocate illegal activity

The Supreme Court deems speech “inflammatory” when There is an imminent danger of incitement to

illegal activity and it’s likely to happen. Imminence Incitement Likelihood

Inflammatory Court Case

Brandenburg v Ohio (1969) The Court found that merely advocating illegal

activity is protected speech.

Brandenburg was a KKK leader. He made a speech at a Klan rally.

Fighting Words – NOT PROTECTED

“In your face” words that inflict injury or incite someone to break the peace

The Supreme Court deems speech “fighting words” when The speech is face-to-face The speech/expression is unavoidable

Fighting Words Court Case

Chaplinsky v New Hampshire (1942) A Jehovah’s witness called a police officer a

“damned fascist” and a “God damned racketeer.”

The Supreme Court found that the verbal assault was fighting words: an utterance that would inflict injury or tend to incite an immediate breach of the peace.

Test: 1. was it face-to-face?

2. was the cop unable to avoid the speech?

Fighting Words Example from 1977

a Nazi group requested to parade through a Jewish community, home to many Holocaust survivors, in Skokie, Illinois. The Supreme Court found that the parade was protected speech. Why?

Let’s test it 1. Was it face-to-face? 2. Could the residents

avoid the speech?

Case Studies

A budding rap group proposes to perform a work which includes the exhortation to "kill whitie" or "kill the cops“

Is this protected expression?

Case Studies

An art exhibit that depicts certain named persons, ordinary citizens as child molesters or persons with a secret Nazi past or people who earned extra income as prostitutes. The exhibit harms the reputation of the people depicted.

Is this protected expression?

Case Studies

Suppose....you and some friends decide to go to the movies. While you are waiting in line outside the theater, a man is giving an angry speech. He says he is out of work because we have a bad system of government. Some adults standing in line say he should be arrested for criticizing the government.

Is this protected speech?

Case Studies

You write for the school newspaper and because you are upset about being cut from the football team, you write an article about the coach accusing him of stealing school equipment and selling it on the black market.

Is this protected expression?

Case Studies

You write an editorial for the school paper urging students to participate in a food fight in the cafeteria on the day before Spring Break,

Is this protected expression?