L13: Freedom of Speech & The Press

Prior Restraint

The practice of prohibiting speech or other expression before it takes place, often deemed unconstitutional in the context of the First Amendment. This concept is crucial in discussions about freedom of speech and the press.

-Any government action preventing a communication from reaching the public (**generally disfavored by the court)

• When the government adopts a content-based prior restraint of speech, it has the burden of proving that the restriction is narrowly tailord to achieve a compelling or significant government interest

Court case involving freedom of speech in and anti-draft brochures:

Schenck v. U.S. (1919)

-Facts:

• Charles Schenk was convicted of distributing anti-draft leaflets in violated of the Espionage Act during WWI

-Court’s Ruling:

• Clear and Present Danger Test- free speech can be restricted if the words used create a clear and present danger of inciting illegal actions.

Court case involving freedom of speech and Russian immigrants distributing pamphlets:

Abrams v. U.S. (1919)

-Facts:

• 5 Russian immigrants were convicted of publishing and distributing seditious pamphlets

-Court’s Ruling:

• Bad-Tendency Doctrine- free speech can be limited if it has a tendency to lead to illegal acts.

• Free speech protection is less during wartime

Following WWII (Cold War), what began to rise?

Communism

-Congress began to pass several laws targeting communism (4 major acts)

Smith Act

• Illegalized speech, literature or organized groups that advocate for the overthrow of the government by force

• ****Passed in response to communism (attempt to target it)

Taft-Hartley Act

• Labor union officers must sign sworn statements they are not affiliated with a communist party or group advocating the overthrow of government by force

• ****Passed in response to communism (attempt to target it)

McCarran Act

• Communist-action groups must register with DOJ and disclose members (excluded from government and defense jobs)

• ****Passed in response to communism (attempt to target it)

Communist Control Act

• The Communist Party is a treasonable conspiracy against the U.S. government

• ****Passed in response to communism (attempt to target it)

Court case involving free speech and violation of the Smith Act (applied the Bad-Tendency Test)

Dennis v. U.S (1951)

-Facts:

• Eugene Dennis (secretary general of the U.S. Communist Party) and 10 others were convicted for violating the Smith Act (Illegalized speech, literature or organized groups that advocate for the overthrow of the government by force)

-Court Ruling:

• If an organization like the Communist Party is dedicated to the overthrow of the government, then the government should restrict it

Court Case involving free speech- Modernization and anarhism

Brandenburg v. Ohio (1969)

-Facts:

• Brandenburg was a leader of the Ohio KKK who spoke at a public rally and made a threat to the government because they were “suppressing” white people’s rights. He was initially convicted under Ohio law for advocating violence.

-Court’s Ruling:

• Incitement Standard- the danger presented in provocative speech was real and directed toward inciting or producing immediate illegal activity.

• Ohio’s law was unconstitutional and Brandenburg’s speech was permissible (didn’t pose threat of immediate hostile action to the state)

Symbolic Speech

The government can regulate symbolic speech if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government’s purpose (eg. draft card burning)

• “Pure” speech receives more protection than speech plus conduct

• States cannot have:

  • Laws prohibiting symbols that oppose organized government

  • Compulsory flag salute and pledge laws

EX!!:

1. Wearing a black armband in protest of the Vietnam War.

2. Burning US and state flag

3. IMPERMISSIBLE: draft card burning

Content Neutral Regulations (general)

• Subject to intermediate scrutiny and will be upheld if the government can show

1. They advance important interests unrelated to the suppression of speech; AND

2. They do not burden substantially more speech than necessary to further those interests

Content Neutral Regulations: Time Place Manner Restrictions

• The government may regulate speech and speech-related conduct through neutral time, place, and manner regulations

• To be valid, speech regulations in public places must be content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communication.

Content Neutral Regulations: Public Forums (general)

• Government properties that the government is constitutionally required to make available for speech (eg, parks, sidewalks)

• Regulations on speech in public forums must be subject matter and viewpoint neutral; if not, strict scrutiny must be met

• Speech regulation in public forums must be time, place, and manner regulations

Content Neutral Regulations: Limited Public Forums & Designated Public Forums

-Limited Public Forums:

• Government properties that are limited to specific groups or dedicated to the discussion of only some subjects

• The government can regulate speech in a limited public forum so long as the regulation is reasonable and viewpoint-neutral

Content Neutral Regulations: Non-Public Forums

• Non-public forums are government properties that the government constitutionally can and does close to speech

• The government can regulate speech in non-public forums so long as it is reasonable and viewpoint neutral

Content Regulations + Unprotected Speech: Obscenity

-A depiction of a sexual conduct that, taken as a whole, by the average person, applying contemporary community standards:

1. Appeals to the prurient interest in sex

2. Portrays sex in a patently offensive way; AND

3. Does not have serious literary, artistic, political or scientific value when applying a national standard

• Determination of whether something is obscene or not is a question for the jury

Content Regulations + Unprotected Speech: Commercial Activity

• Advertising for illegal activity, and false deceptive ads are not protected by the first amendment

• Non-deceptive commercial speech is subject to immediate scrutiny and the government regulation must be narrowly tailored to serve a substantial governmental interest.

Content Regulations + Unprotected Speech: Freedom of the Press

• SCOTUS has held that requiring journalists to appear and testify before state or federal grand juries does not abridge freedom of speech or press

Coerced Speech (general)

-SCOTUS has traditionally upheld rights protecting citizens from coerced support for an expression or ideology they disagree with

Court Case involving Coerced Speech and a license plate with a controversial state motto for Jehovah Witnesses

Wooley v. Maynard (1977)

-The state could not require persons to advertise an ideological message with which they disagree by using a private vehicle as a “mobile billboard”

• Jehovah Witnesses did not want to drive with the license plate that had a state motto of “Live Free or Die”

Non-Protected Speech: Fighting Words

• A category of speech that is not protected by the First Amendment due to its potential to incite immediate violence or breach of peace, as established in the Supreme Court case Chaplinsky v. New Hampshire.

• States can prohibit public speech that is offensive or derisive of another person

• Rationale- not protected because they are likely to “provoke the average person to retaliation”

Court case involving non-protected speech and established the “fighting words” act.

Chaplinsky v. New Hampshire (1942)

-Fighting words “are no essential part of any exposition of ideas, and are of such slight social value as a step to the truth that any benefit may be derived from them is clearly outweighed by social interest in order and morality”

• “F*** the draft” on a jacket is not fighting words

Non-Protected Speech: Hate Speech (it depends)

• State bans on racially discriminatory speech are not always constitutional

• State cross-burning bans- now unconstitutional unless it is carried out with the intent to intimidate

• University policies- policies limiting racially discriminatory speech cannot be too broad

Freedom of the Press & the Court: Publishing to profit from crime-

Stories by criminals can be published by news media, books, movies, etc.

Freedom of the Press & the Court: Intercepting private conversations-

You cannot be held liable for publishing illegally intercepted information IF:

1. The matter is of “public importance” AND

2. The press did not participate in any act of interception

Freedom of the Press & Confidentiality: Can the press keep identities and sources confidential?

Yes, the press can keep identities and sources confidential to protect journalistic integrity, and in many jurisdictions, they have legal protections such as shield laws.

Freedom of the Press & Confidentiality: Shield laws-

Protect journalists’ sources from judicial scrutiny

• However, journalists do not have an unqualified right to shield information and evidence needed in a criminal investigation

• Journalists must also testify and appear before a grand jury when a subpoena is issued

Freedom of the Press & Limitations: Gag orders

Protective orders for judicial proceedings intended to limit or prohibit publications of materials about ongoing trials and investigations

-The publishing source can receive a contempt-of-court citation for violating a gag order

-However, SCOTUS has made it difficult for state courts to enforce gag orders since less drastic means are available to them

Freedom of the Press & Limitations: Media access to trials is limited-

They can in criminal trials but not when defendants request a closed hearing

Freedom of the Press & Limitations: Defamation-

A defamatory statement is of or concerning the plaintiff published to a third party that causes damages to someone/ plaintiff

-Slander= spoken defamation regarding:

1. A person’s competence in business or profession

2. A person having a loathsome disease

3. Accusations of a crime of moral turpitude

4. Suggesting a person is unchaste (mostly applies to women)

Libel

Written defamation

• Either a person is clearly identified or identity is determined through innuendo

Freedom of the Press & Limitations: Other defamation considerations-

-If the content of a statement is of public concern, must also prove:

• Falsity- the plaintiff must prove the statements are false

• Fault- depends if defamed person is a private or public figure

  • If public figure: must prove malice (knowledge the statement is false or reckless disregard for the truth)

  • If private figure: Must prove negligence (a reasonable person wouldn’t have made the statement under these circumstances)

Defenses to defamatory statements:

-Consent

-Truth

-Absolute privilege= statements made:

1. During judicial proceedings, 2) by legislators in debate, 3) by federal executive officials speaking in their official capacity , 4) in compelled broadcasts, and 5) between spouses

-Qualifies privilege- applies to:

2. Reports or official proceedings, 2) statements in the interest of the publisher, 3) statements in the interest of the recipient, and 4) statements in the common interest of the publisher and interest in a legal context, such as court cases or legislative debates.