Freedom of Expression - FINAL EXAM

What does the First Amendment cover?

This fundamental right covers freedom of speech, religion, assembly, and the right to petition the government. This amendment protects people from government retaliation or interference

Where does our body of law originate from?

The body of law in the United States primarily originates from the English Common Law System, which was adopted by the 13 colonies and was further developed and altered through the Constitution

What is a precedent?

An action or decision in a court case that later serves as an example or helps

Marketplace Theory

Promotes that everyone shares their ideas freely, and in the competition of ideas, the ‘best’ idea rises to the top (reached the people it needs to reach - be a success)

Self Government Theory

• The means by which democracy functions 

• Relatively narrow scope - only applied to democracy and government ideas (leaves out other important ideas)

Individual Autonomy Theory

holds that free speech is an important part of individual liberty

Dissent Theory

the value of having a dissenting opinion is that it allows people to disagree

Tolerance Theory

free speech teaches tolerance by allowing people to be exposed to ideas different from their own

Check and Balance Theory

speech is a way for us to hold the government accountable

Three Levels of Scrutiny

1. Strict Scrutiny

2. Intermediate Scrutiny

3. Rational Basis Review

Strict Scrutiny

• the last and highest level of scrutiny is applied in cases that deal with the restriction of fundamental human rights. To prove this, the government must prove:

  • they have a compelling interest in restricting this right

  • the law is narrowly tailored to serve that interest

  • the law is the least restrictive means possible

Intermediate Scrutiny

• typically applied in cases of gender-based discrimination. To win these cases the government must prove that:

  • they have a substantial interest in restriction or regulation

  • the law they are implementing serves an important purpose

Rational Basis Review

• the lowest level of scrutiny that can be applied and is usually the easiest case for the government to win. To prove this, the government must prove:

  • they have a legitimate purpose for imposing this law

  • the law is rationally related to the purpose they have

Symbolic Speech

Includes gestures, clothing, flags, or other forms of expression that convey a particular message. Like wearing a T-shirt with a political slogan or burning a flag as a protest (both are considered to be symbolic speech)

Hate Speech

Specific language attacking someone based on race, color, religion, ethnicity, or sexual orientation. It is protected under freedom of speech laws

What speech is NOT protected?

1. The threat of violence, fighting words, and inciting a riot 

2. True threats of violence 

3. Harmful speech like Libel and Slander 

4. Obscene or vulgar speech 

5. Child Pornography 

6. Threats towards POTUS

Public Forum

A government-owned property that is open to the public for expressive activities such as speech, assembly, and protesting. The designation of a public forum is significant because it determines the level of First Amendment protections afforded to speech in that designated space

Traditional Public Forum

• in these spaces, the government has limited ability to place time, place, and manner restrictions on people

• any restriction the government does place has to be both content and viewpoint neutral

  • example: Public Park

Limited Public Forum

• the government has the ability to use time, place, and manner restrictions

• any restriction only has to be viewpoint-neutral, they can regulate content

  • example: university classroom that is available for student groups to reserve

Non-Public Forum

• spaces that the government can regulate because they have never been considered public spaces

  • example: hospitals, government offices, prisons

Heckler’s Veto

Occurs when the speaker is silenced due to a disruptive or hostile audience reaction. This is often used in the context of free speech and the First Amendment. It violates the First Amendment right of the speaker and audience as they have a right to listen without issue

Examples of Heckler’s Veto

• Terminello v. Chicago (1949)

  • Arresting a controversial former Catholic priest under a breach of the peace ordinance due to his inciting a hostile audience amounted to an unconstitutional Heckler’s Veto 

Incitement

Refers to speech that is meant to provoke or encourage others to engage in illegal or violent actions. The legal standard for this was established in the SCOTUS Case Brandenburg v. Ohio, which refined the definition of what constitutes unprotected speech

Schenck v. United States (1919)

• Incitement Case 

• Established the Clear and Present Danger Test - speech can be restricted if it presents a clear and immediate threat to national security (urging draft resistance during wartime)

Gitlow v. New York (1925)

• Incitement Case - Incitement must have the tendency to spark violent action 

• Established the Incorporation Doctrine - the First Amendment applies to state laws through the Fourteenth Amendment, allowing states to restrict speech that poses a clear and present danger 

Whitney v. California (1927)

Upheld restrictions on speech that advocates violent government overthrow but introduced a concurrence arguing that free speech should only be restricted in cases of immediate, serious danger 

Dennis v. United States (1951)

Developed the Balancing Doctrine - speech advocating government overthrow can be restricted if the government’s interest in preventing them outweighs free speech protections

Brandenburg v. Ohio (1969)

Speech that does not call for illegal action is protected, and even speech that does call for illegal action is protected if the action is not “imminent” or there is reason to believe that the listeners will not take action

Fighting Words

• Provoking someone to the point of hurting you. Typically, personal insults or offensive language aimed at an individual or a specific group. Meant to incite a violent response from the listener 

Fighting Words Example Case

• Chaplinsky vs. New Hampshire (1942)

  • Fighting words are a breach of peace 

  • Created the Fighting Words Doctrine, which states that insulting or provocative speech directed at an individual that is likely to incite violence in unprotected

True Threats

Statements or actions in which an individual communicates a serious expression of intent to commit violence or unlawful harm against another person or group. These are NOT protected under the First Amendment as they can disrupt public safety and lead to real fear or danger

True Threats Example Case

• Virginia v. Black (2003)

  • Declares cross burning is protected by the First Amendment as long as the act does not have the intent to intimidate

Tinker v. Des Moines (1969)

• Public High School Speech Case - Students have Symbolic Speech rights

• Public school students may wear armbands to class, protesting against America’s war in Vietnam, when such display does not disrupt classes 

Bethel v. Fraser (1986)

• Public High School Speech Case - Students are not allowed to disrupt a public assembly by speech 

• Schools can regulate lewd or indecent speech 

Hazelwood v. Kuhlmeier (1988)

• Public High School Speech Case 

• The U.S. Supreme Court held for the first time that public schools can limit what appears in school-sponsored student publications on the grounds of legitimate pedagogical concerns

Healy v. James

• Public College Speech Case

• Public universities cannot deny student organizations recognition (even if they disagree with the viewpoint of the organization)

Papish v. Missouri Board of Curators

• Public College Speech Case

• Universities cannot punish students for offensive speech if it does not disrupt campus order. The Supreme Court held that public universities are not enclaves immune from the sweep of the First Amendment 

Obscenity

Content that is offensive, morally corrupt, or inappropriate according to social standards, often involving explicit sexual material or indecent behavior

Where does Obscenity originate from?

Originates from cultural, religious, and legal norms that define what is considered offensive or harmful

Why is Obscenity regulated?

It is regulated to protect public morals, maintain societal standards, and avoid content that could disrupt public decency

Regina v. Hicklin (1868)

Established the first standard for obscenity laws. This decision applied the Hicklin Rule: Material is obscene if it corrupts or depraves the most vulnerable audience (e.g., children).

Roth v. United States (1957)

The Supreme Court ruled that obscene material is NOT protected by the First Amendment.

Jacobellis v. Ohio (1964)

• Justice Stewart famously stated that he couldn't define what constituted obscenity, but he knew it when he saw it. This case underscored the complexities of regulating obscenity and highlighted the need for a more precise legal standard to protect artistic expression.

Memoirs v. Massachusetts (1966)

To be obscene, material must be utterly without redeeming social value

Miller v. California

• Current Obscenity Test

  • a) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest

  • b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law 

  • c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (SLAPS acronym) 

    
    

Indecency

content that may be offensive to some people, but it is not as extreme as obscenity. Is often subject to restrictions, especially in broadcast media

How is indecency different/like obscenity?

• Both are forms of offensive content and can involve explicit material 

• The difference is that obscenity is not protected by the First Amendment, while indecency is protected but regulated. Indecency is less extreme than obscenity and it is not entirely prohibited 

Who decides what is indecent?

The FCC

What is the FCC?

• The Federal Communications Commission regulates interstate and international communications by radio, television, wire, satellite, and cable in all 50 states, the District of Columbia, and U.S. territories 

• Indecency covers explicitly broadcast industries 

Communications Decency Act of 1934

• The act established a legal basis for regulating wired and wireless communications 

• The Federal Communications Commission was founded because of the act

  • Replaced the Federal Radio Commission 

FCC v. Pacifica (1978)

• George Carlin’s “Seven Words” Routine 

  • Outcome: FCC does have some limited ability to regulate based on time, audience, and method of transmission

Sable v. FCC (1989)

• Communications Decency Act blocked the transmission of both obscene and indecent commercial telephone messages

• Court upheld federal restrictions on obscene material (according to Roth), but struck down blockage of indecent messages for adults

Denver v. FCC (1996)

• Ruled that cable operators can regulate indecent content but that broad, government-mandated restrictions on indecent programming violate the First Amendment 

Reno v. ACLU (1997)

• Struck down portions of the Communications Decency Act for being overly broad in restricting online speech 

Fox v. FCC (2009/2012)

• Fleeting swear words are not illgal 

• The FCC’s indecency regulations were deemed unconstitutionally vague

Political Speech

• Considered the most important type of speech because it is central to democratic governance and the protection of individual freedoms 

• The First Amendment prioritizes political speech because, without it, citizens could be silenced or oppressed by those in power

Commercial Speech

• Refers to speech that proposes a commercial transaction or is related to the promotion of goods and services. Commercial speech is arguably the LEAST important type of free speech 

What separates acceptable vs. unacceptable public speech?

• Acceptable Public Speech: is protected by the First Amendment (especially political speech) as long as it doesn’t incite violence, including threats, or break laws (like defamation or false advertising) 

• Unacceptable Public Speech: includes things like obscenity, inciting lawless action, true threats, or misleading commercial content - none of which are protected under the First Amendment

Why did the founders give so much power to the press?

• The Founders gave power to the press because they saw it as essential for keeping the government accountable and protecting democracy 

• Based on their experience with British censorship, they believed a free press was critical for an informed public and individual liberty 

What are the differences between the acceptance of press freedom in the U.S. v. the rest of the world?

• The U.S. strongly protects press freedom through the First Amendment, while many other countries have government-controlled media, strict censorship, or limited legal protections for journalists.

  • Countries with weak press freedoms:

    • North Korea 

    • China

    • Vietnam 

    • Cuba

• In contrast to the U.S., some governments punish critical reporting, making truly free press rare in many parts of the world.

Where prior restraint originates from?

Originates from English Common Law, where the government required printers to get approval before publishing

Purpose of Prior Restraint

Prevent harmful or sensitive information from being published before it reaches the public

When is Prior Restraint allowed and under what circumstances?

Almost never allowed in the U.S., but may be permitted in extreme cases like national security threats, inciting violence, or obscenity

Zenger Trial (1735)

• In English Common Law, Seditious Libel existed, which meant you could be found guilty for simply publishing criticism of the government if it undermined respect for them 

• Zenger criticized the government in print. Charged for it. Persuaded the jury to nullify the law 

Sedition Act of 1798

• Made it a crime to publish “false, scandalous, and malicious” statements against the government, which directly limited the freedom of the press. 

• Though it did not impose prior restraint (it didn’t prevent publication ahead of time), it punished critical speech after the fact, which still chilled press freedom

• The backlash against the act helped shape future interpretations of press freedom and contributed to its expiration in 1801.

Near v. Minnesota (1931)

• Minnesota authorities tried to enjoin Near using a state public nuisance statute 

• Robert McCormick (publisher of the Chicago Tribune) financed Jay Near’s appeal to the U.S. Supreme Court because he realized the outcome of Near’s case could affect his own publication 

• Recognized that the government’s attempts to enjoin the press are no different from requiring journalists to ask permission from the government to publish 

New York Times Co. v Sullivan (1964)

SCOTUS held that the government can only restrain publication if it can prove that the publication would lead to irreparable harm

Supreme Court rationale in NYT Case

• The Executive Branch cannot just have the Judicial Branch rubber-stamp their orders for censoring the press 

• The more effective remedy for protecting classified information is for the government to better manage (i.e. punish) leakers 

• The press plays a special role in democracy by checking the government

Libel

• written defamation, as in a newspaper or magazine article

  • The standard of truth defendants must show to defeat a libel suit against them is: 

    • Substantial truth or a gist of the truth 

Slander

• spoken speech, though if a transcript exists, that would also be considered libel

Effects of Defamation

• Harms a person’s reputation 

• This may result in legal consequences, including lawsuits if the defamation is proven false and damaging.

• Can spread misinformation, affecting public trust in individuals, institutions, or media.

Balancing Protection of the Press with Public Citizen Protections

• The press has an obligation to report on matters of public concern 

• However, every individual possesses the right “not to be subjected to falsehoods that impugn their character.”

• The right “to protect one’s good name”

Actual Malice Standard

• The result of Sullivan was that going forward to prove defamation, public officials must prove actual malice 

• Public officials cannot recover damages for libel without proving that a statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

All Purpose Public Figure

• Widespread fame or notoriety

• Occupies a position of power that they are designated a public figure for all purposes 

• Celebrities

Limited Purpose Public Figures

• Receives public figure status within narrow circumstances - likely controversy 

• The public controversy must exist before the publication of the libelous statement 

• The plaintiff must have voluntarily participated in resolving the controversy, and in some ways influence public opinion 

Involuntary Public Figures

• Does not thrust themselves into public attention or controversy but is drawn into a given issue 

• Example: those charged with a crime; those in accidents or natural disasters, but who garner news coverage not of their own doing 

Public Officials

• Responsible for or control over conduct of government actions 

• Positions with importance to the public 

• Information about them may relate to qualifications, conduct, or character

Defamation Per Se

• On the surface, without any additional knowledge, the statement is defamatory. Presumes harm to a person’s reputation. Examples:

  • Saying that someone committed a crime or immoral conduct

Defamation Per Quod

• A type of defamation that requires additional information, knowledge, or extrinsic evidence to claim damages 

  • Alleging that a restaurant buys chicken from Walmart or a very cheap vendor, instead of organic as they claim 

Defenses to Libel

• Truth, or a substantial portion of it 

• Opinion 

• Privilege 

• Retraction 

• Fair comment and criticism 

Curtis Publishing Co v. Butts (1967)

• The US Supreme Court extended the actual malice fault standard to public figures 

The Associated Press v. Walker (1967)

• The case extended the “actual malice” standard from New York Times v. Sullivan to public figures, not just public officials.

• The Court ruled that AP was not liable for defamation because it did not act with actual malice — it believed its report was true.

• The decision strengthened press protections, allowing more leeway for reporting on public figures without fear of defamation suits.

Gertz v. Welch (1974)

• Public figures must prove a higher fault standard (actual malice) than regular, everyday individuals (neglignce) in defamation cases because:

  • Public figures tend to have greater access to communication channels to rebut defamatory claims 

  • Public figures regularly seek public attention 

  • Society places its trust in public figures just as it does in public officials, so the press must be free to hold them accountable 

Anti-SLAPP (Strategic Lawsuit Against Public Participation) laws are designed to do which of the following?

Stop frivolous defamation lawsuits (especially by powerful plaintiffs against small-time defendants) at a very early stage

Why do some public figures and public officials still sue for defamation even if it’s unlikely that they’ll win?

• To "win" in the Court of Public Opinion 

• To create a chilling effect against the press 

• Because they have deep pockets to pay for legal fees

What does the Constitution say about our expectation of privacy?

• Although not part of the First Amendment, the notion of an individual right to privacy has long been connected to our collective ability to speak, explicitly and/or expressively 

• Privacy is a component of:

  • First, Third, Fourth, Fifth , And Ninth Amendments

What does a reasonable expectation of privacy refer to?

People have no reasonable expectation of privacy in public spaces where their actions, content, and possessions can be seen or conversations heard; again whether the content at issue is physical or virtual 

Four Torts of Privacy

• Intrusion into Seclusion

• Appropriation of Name and Likeness

• Public Disclosure of Private Facts

• False Light

Intrusion into Seclusion

• Someone is in a  private location - home or hotel room - and their privacy is disturbed by camera or physical presence - they are invading that person’s privacy 

• Difference from defamation: how they view themselves, as opposed to how the public views them

Appropriation of Name and Likeness

• Unlawful usage of someone’s name and image for personal or professional gain 

• Limitation: if someone’s image is deemed “newsworthy”, it is protected by Freedom of Speech and Press 

• Creative expressions allowed

Public Disclosure of Private Facts

• Publication of private information that could be considered highly offensive to a reasonable person

• Once again, if there is a substantial need for the public to know, in terms of a public official, the First Amendment and Freedom of the Press applies 

False Light

• The information may be truthful, but it was presented in a manner that was intended to place someone in ridicule or embarrassment and would be offensive to the average person

• Difference between defamation? Does not cause harm to reputation

Griswold v. Connecticut (1965)

• The decision established that the Constitution protects a right to privacy in certain areas of life, starting with the privacy of married couples in making decisions about contraception.

Katz v. United States (1967)

• Two prong test to determine if a “reasonabke expectation of privacy” exists: 

  • The first must show a “subjective” expectation that his activities or items would be private 

  • Second, the individual must show that his subjective expectation of privacy is one that society considers reasonable 

Sipple v. Chronicle Publishing (1984)

• The court ruled that publishing Sipple’s sexual orientation did not violate privacy, since it was already publicly known within his community.

• The decision emphasized that freedom of the press protects the disclosure of newsworthy information, even if it involves personal details.

Lawrence v. Texas (2003)

• The Supreme Court struck down a Texas law banning same-sex intimacy, ruling it violated the constitutional right to privacy and liberty under the 14th Amendment.

• The decision reinforced that the government cannot criminalize private, consensual relationships, strengthening personal privacy rights

Communications Decency Act

• First notable attempt to regulate pornography, obscene, and indecent content on the internet 

• If prohibited any individual from transmitting “obscene or indecent” messages to a recipient under 18 and outlawed the knowing display of “patently offensive” materials in a manner available to those under 18

Purpose of the Communications Decency Act

To regulate and restrict indecent or obscene content online, especially to protect minors, and to provide legal protection to internet platforms (like websites and social media) for content posted by users

Why was Section 230 created?

• to encourage the growth of the internet by protecting online platforms from being held legally responsible for user-generated content, while also allowing them to moderate harmful or offensive material without being treated as the publisher.

What does Section 230 accomplish?

Section 230 protects online platforms from being held liable for content posted by users, enabling the growth of the internet and free expression