Lesson Objectives:- No prior restraint
- Symbolic speech and flag burning
- Commercial speech
- Subversive speech
- Obscenity and pornography
- Unprotected speech
- Student speech
- Freedom of the press
It is one of our nation's most meaningful rights to be able to speak freely and to listen to what others have to say.
The Supreme Court is very reluctant to support Prior Restraint, which is restraining an activity before it has actually occurred. When expression is involved, prior restraint refers to censorship.
An example of this is the requirement to obtain a permit before a public speech.
In a landmark case, the Supreme Court established No Prior Restraint in New York Times v. United States in 1971.
Several newspapers were going to publish documents obtained from a former official of the pentagon. They contained details of our involvement in the Vietnam War.
The government argued that the pentagon papers were obtained illegally and that they posed a threat to the security of our nation. The newspapers contended that the people had the right to know. The Supreme Court ruled in favor of the newspapers, establishing the no-prior-restraint doctrine.
When students wore armbands protesting the Vietnam War, the Supreme Court ruled in Tinker v. Des Moines School District in 1969 that the students were protected under the First Amendment.
It was called Symbolic Speech, which is expression that is made through articles of clothing, gestures, movement, and other forms of nonverbal conduct.
Flag Burning was found to be a protected form of speech when the Supreme Court decided in 1989 that states prohibiting it violated the First Amendment. When Congress passed the Flag Protection Act of 1989, the Supreme Court once again ruled it unconstitutional.
On the other hand, it was decided by the Supreme Court in 2003 that cross burning could be banned by the states if it was done with the intent to intimidate. It further found that historically, cross burning was an act that signaled impending violence.
Not all commercial speech is what you see on TV or in the newspaper. As you can imagine, some of it can get rather tasteless.
Commercial Speech includes all statements made in advertising, which increasingly have been given First Amendment protection.
At first, it was found that commercial speech was not protected at all by the First Amendment. But as case after case was brought before the Supreme Court, commercial speech found more and more protection under the First Amendment.
In 1919, the Supreme Court decision found speech unprotected by the First Amendment if it presented a clear and present danger.
The Clear and Present Danger Test asserts that Congress has the power to prevent speech if there is evidence that such speech can cause a dangerous condition, whether it exists now or could possibly happen in the very near future.
If speech can bring about some form of "evil," it can be restricted based on the Bad Tendency Rule.
Gitlow v. New York was a case that concerned Benjamin Gitlow who published and distributed pamphlets that called for a violent overthrow of the U.S. Government. Gitlow was convicted on charges of violating New York's criminal anarchy statute.
The Supreme Court invoked the First Amendment against New York. However, the Supreme Court made it clear that Gitlow could be punished under the Bad Tendency Rule since his speech could incite violence and the state had a right to protect itself.
In 1969, Brandenburg v. Ohio was a case where the Supreme Court ruled that the conviction of a KKK leader was unconstitutional because speech that advocates the use of force or breaking laws is protected, as long as it does not incite immediate actions. It is a very fine line, but advocating rioting is okay as long as the speech is not inciting a riot at the moment.
This is the Imminent Lawless Action Test, the current standard established by the Supreme Court for evaluating the legality of advocacy speech. Such speech can be forbidden only when it is "directed to inciting... imminent lawless actions."
When Chief Justice Warren Burger decided on Miller v. California, he created a list to define obscenity that was so vague that it had to be left up to local authority interpretation. The list included such things as what the average person might find obscene and whether or not the work has any redeeming literary, artistic, political, or scientific value.
But, popular attitudes toward obscenity have changed so much that things such as pornography leaving nothing to the imagination can now be found in every corner of our country.
Pornography on the internet has posed an impossible challenge to police. Congress tried to pass laws to protect children from exposure, but the Supreme Court found those attempts unconstitutional.
Congress did however get a win when they passed legislation calling for schools and libraries to be penalized if they did not install software that filtered out "adult" content.
The private sector has shown an interest in restricting obscenity itself. Movie theaters, for example, will not show movies that receive a pornographic rating from the Motion Picture Association of America.
Also, the government can still place restrictions on media that it regulates. Television and radio are regulated by the FCC and are prohibited from the use of obscenity, though the definition of the word changes with public opinion.
States can criminalize the making of and the possession of child pornography. But, there is a fine line once again.
The crime is child abuse, not obscenity. For example, a movie can depict children engaging in a sex act as long as the actors themselves are not children. Also, books and cartoons are not exploiting an actual, identifiable child.
A person cannot simply say whatever they want about another person. This speech is unprotected because it falls under defamation of character and slander.
Defamation of Character is wrongfully hurting a person's good reputation.
Slander is the public uttering of a false statement that harms the good reputation of another. The statement must be made to, or within the hearing of, someone other than the defamed party.
Court rulings have actually identified that free speech in schools depends on the level of the school involved. Elementary schools have more latitude to limit free speech than high schools, and college students have the most freedom of speech of all of them.
It has been established that high schools have the right to limit the freedom of speech beyond what the public is allowed. This was illustrated very clearly in the Supreme Court ruling of 2007 where a student displayed a banner advocating drug use on private property across from the school. The principal took the banner down and suspended the student, which the Supreme Court ruled he had the right to do.
Should a school be able to collect fees that subsidize activities on campus that some students find objectionable?
In 2000, the Supreme Court decided in a case brought to their attention by University of Wisconsin students that the university could collect student activity fees if the school found it in their best interest to promote open discussions of philosophy, religion, science, and political subjects.
Universities often have codes that prohibit such things as hate speech. The Supreme Court has found that these codes do in fact violate free speech. However, they still exist on many campuses.
At one time, "the Press" referred only to written materials that were published and distributed. Nowadays, the television and the internet are examples of ways in which the term "Press" has been expanded.
Libel is a written defamation of a person's character or reputation. The defamatory statement must be observed by a third party.
Proving defamation of character requires a set of conditions.
Was there Actual Malice? That is either knowledge of a defamatory statement's falsity or a reckless disregard for the truth.
Public Figures are an entirely different case from private individuals. A Public Figure is a public official, movie star, or other person known to the public because of their positions or activities.
Because they hold a public interest of some sort and they have access to a public platform to address statements made against them, it is harder for them to seek damages in defamation cases.
The right to a fair trial and Freedom of the Press can conflict when media coverage has the ability to influence the outcome.
A Gag Order, which is an order restricting the publication of news about a trial or a pretrial hearing, can be imposed by the judge to protect the accused's right to a fair trial.