Media law and ethics lesson 7 - Speech

Protected vs unprotected speech: the big map

•Most speech is protected—even offensive speech

•Unprotected categories are narrow (courts resist expanding them)

•Unprotected today: incitement, threats, harassment, fighting words

Incitement meaning?

Speech encouraging, persuading, or otherwise influencing another person to commit a criminal offense.

What to consider for speech?

Category of speech

Context of which the speech is given

The intent behind it

Incitement: from 'clear & present danger' to Brandenburg

•Older tests allowed more punishment of radical speech

•Brandenburg draws a line: advocate ideas vs provoke imminent violence

•Key: intent + imminence + likelihood

“The reasonable person” test

Judging an action objectively (objective test). Birds-eye-view. “What would the reasonable person do in that situation?”

The Brandenburg test (memorize this)

The controlling standard for evaluating the limits of speech advocating for violence or unlawful conduct:

Intent: Directed to inciting or producing imminent lawless action

Likelihood: AND likely to produce such action

Imminence: no time for counterspeech or cooling off (immediately/soon)

Which example is incitement, which is advocacy?

“The government is corrupt, we need a revolution”

“Throw these brick on the building when I count to three”

“Throw these bricks on the building when I count to three”

Why:

1. Intent

2. Imminence

3. Likelyhood (lets say in this situation it is likely)

“Tonight we should protest peacefully, bbut if the police show up lets teach them a lesson tomorrow”

1. Intent - Vague

2. Likelihood - Maybe

3. Imminence - No

Not incitement

“Break the doors now”

1. Intent - Yes

2. Likelihood - Yes/Maybe

3. Imminence - Yes

Incitement

True Threat meaning

A serious expression of intent to commit unlawful violence against a person or group.

True threats: why intent matters

•Punishable when speaker intends to threaten (or knows it will be perceived as threat)

•Directed to an individual or group

•Context matters (online posts included)

Context: What would make a statement sound more serious?

Specificity

Targeted

Repeated

The capability of the person

“If I wasn’t so tired I’d punch you”

Not a true threat

Harassment, cyberstalking, cyberbullying (overview)

•Often overlaps with threats and intimidation

•Overbreadth risk: laws must be narrowly drawn

•Enforcement challenges: anonymity + cross-border jurisdiction

Harassment depends on:

1. Conduct

2. Intent

3. Repeated targeting

4. Person targeted has a lot of fear

Fighting words: extremely narrow today

•Face-to-face personal insults likely to trigger immediate violence

•Origin: Chaplinsky; narrowed by later cases

•Protected speech can still 'invite dispute' and upset people

In-class check: categorize these 4 statements

Protected, Unprotected, Less Protected

•A. 'We should overthrow the gov someday.'

•B. 'Meet me after class and I’ll break your jaw.'

•C. 50 DMs after being blocked

•D. Insult screamed in someone’s face at a tense rally

•A. Protected (Advocacy)

•B. Unprotected (True Threat)

•C. Unprotected (Harassment)

•D. Less Protected (Depends - general insults or targeted)

Brandenburg v Ohio

The Court held that the government cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action".

Miller v California

The United States Supreme Court held that obscene material is not protected by the First Amendment and articulated a three-part test (the Miller test) for identifying obscenity.

1. Whether the average person sees the material as having/encouraging excessive sexual interest based on community standards.

2. Whether the material depicts or describes sexual conduct in a clearly offensive way as defined by the applicable state law, and

3. Whether the work, when considered in its entirety, “lacks serious literary, artistic, political, or scientific value.”

Virginia v Black

Any state statute banning cross burning on the basis that it constitutes prima facie evidence of intent to intimidate is a violation of the First Amendment to the Constitution.