Freedom of Expression Final

First Amendment

freedom of speech, religion, assembly, and the right to petition

U.S. legal system

The English common law system that relies heavily on court precedent (few cases make it to the Supreme Court)

Precedent

An action or decision that later serves as an example (most are SCOTUS cases)

Three levels of scrutiny

rational basis review, Intermediate, and strict

Rational Basis Review

has to satisfy some government interest

Intermediate Scrutiny

has to have important interests and relate to it

strict scrutiny

has to include a crucial government interest and perfectly serve that

mechanism in place to regulate expression

constitutionality tests

clear and present danger test

To determine if speech poses an immediate threat.- Speech can be restricted if it creates a clear and present danger of causing significant harm (e.g., inciting violence or illegal acts).

imminent lawless action

Modern version of the "clear and present danger" test. - Speech advocating illegal activity is protected unless it is intended to incite imminent lawless action and is likely to produce such action.

miller test (obsentity)

• Purpose: To determine if speech is obscene and therefore unprotected.

• Explanation: Obscenity is not protected if:

  1. It appeals to prurient interest (community standards),

  2. Depicts sexual conduct offensively,

  3. Lacks serious literary, artistic, political, or scientific value.

o’brian test

• Purpose: To evaluate laws that restrict symbolic (nonverbal) speech.

• Explanation: Government can restrict symbolic speech if:

  1. The law is within constitutional power,

  2. It furthers an important government interest,

  3. The interest is unrelated to suppressing expression,

  4. The restriction is no greater than necessary.

time, place, and manner restrictions

• Purpose: Regulate how speech is expressed, not what is said.

• Explanation: Restrictions are constitutional if they are:

  1. Content-neutral,

  2. Narrowly tailored to serve a significant government interest,

  3. Leave open alternative channels for expression.

symbolic speech

gestures, flags, clothing, and other forms of expression that convey a message

hate speech

(protected) specific language attacking someone based on race, ethnicity, religion, sexual orientation, etc.

unprotected speech

threats of violence (fighting words and true threats), harmful speech, obscene or vulgar speech, child pornography, and threats to the president

public forum

government owned property that is open to the public for expressive activities - traditional, limited, non-public

traditional public forum

restricted ability to suppress time, place, and manner

limited public forum

dependent on time, place, and manner

non-public forum

not really public (ex. prisions)

Hecklers Veto

speaker is silenced by disruptive or hostile audience reactions (violates speaker and audiences rights)

incitement

speech that is meant to provoke or encourage illegal actions (not protected)

Schenck v. U.S.

speech can be restricted if it presents clear and present danger

Gitlow v. New York

tendency to spark violent action (incites illegal action)

Whitney v. California

states can punish speech that threatens public order

Dennis v. U.S.

threats to overthrow the government are punishable

Brandenburg v. Ohio

Speech is protected unless it incites imminent lawless action

Brandenburg test

directed at producing imminent lawless action and is likely to produce such action

fighting words

not protected - Words that by their very utterance are likely to incite immediate violence or an immediate breach of the peace.

true threats

not protected - Statements in which the speaker seriously expresses an intent to commit violence or cause harm to a specific person or group.

Rav v. St. Paul

overly broad content - based restriction

Chaplinsky v. New Hampshire

fighting words are a breach of peace

Watts v. U.S

political hyperbole is not a true threat

tinker v. des moines

students have symbolic speech rights unless education is being disrupted

bethal v. fraser

school can limit vulgar speech

hazelwood v. kuhlmeier

schools can monitor school sponsored student expression

morse v. frederick

schools can prohibit speech promoting illegal drug use

healy vs. james

colleges must recognize student groups unless there is clear evidence of disruption

papish vs. missouri board of curators

public universities cant punish students for offensive content without disruption

Obscenity

offensive or disgusting bt accepted standards of morality and decency measured with the 3 prong miller test

regina v. hicklin

first obscenity statute

roth v. united states

obscenity not protected by the 1st amendment

Jacobellis v. Ohio

defined obscenity as '“utterly without redeeming social values”

Memoirs v. Massachusetts

obscenity must be utterly without social value

miller v. california

current obscenity test

millers test

used by courts to determine whether speech is obscene and therefore not protected by the First Amendment.

• Three-Part Test: Speech is obscene if:

  1. Prurient Interest: The average person, applying contemporary community standards, would find that the work appeals to lustful thoughts.

  2. Offensive: The work depicts or describes sexual conduct in a patently offensive way, as defined by state law.

  3. Lacks Value: The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

If all three parts are met, the material is considered obscene and can be legally restricted.

indecency

describes sexual or excretory organs or activities in a way that does meet societies standards (not illegal but restricted) - just places boundaries and guidelines (ex. can not play during a certain time of the day.

FCC and the importance of it

federal communications commission - very important and involved in many supreme court cases (monitors indecency)

Communications Decency Act of 1934

established a legal basic for regulating wired and wireless communication - created the FCC

FCC v. Pacifica

Indecent but not obscene speech can be restricted to public

Sable v. FCC

indecent speech via telephone cant be entirely banned

Denver v. FCC

cable providers have greater free speech rights than broadcasters

Reno v. ACLU

struck down anti-indecency provisions of the CDA as over broad

Fox v. FCC

The government must give fair notice before punishing fleeting expletives

political speech

• Definition: Speech related to government, public affairs, or social issues.

• Protection: Highly protected by the First Amendment.

• Acceptable vs. Unacceptable:

  • Acceptable: Criticizing government, advocating policy change.

  • Unacceptable: Inciting imminent lawless action or making true threats.

Commercial Speech

• Definition: Speech that proposes a commercial transaction (e.g., advertising).

• Protection: Protected, but less than political speech.

• Acceptable vs. Unacceptable:

  • Acceptable: Truthful ads for legal products/services.

  • Unacceptable: False, misleading, or promotes illegal products

bigelow v. virginia

advertising protected by public information (people deserve to know)

central hudson v. public service commision

created a test for when commercial speech can be regulated

why did the founders give some much power to the press

to ensure a check on government and inform the public. They believed it was crucial for a free society

difference between acceptance of press freedom in the U.S. v. the rest of the world

the U.S. generally has stronger protections for press freedom than many other countries

limits of press freedom: allowed

reporting and opinions

limits of the press: prevented

incitement to violence, defamation, etc.

Prior restraint

originates from government censorship. It’s purpose is to prevent publications. It’s allowed in cases of national security or imminent harm

Zenger trial

established truth as a defense against the libel (early press case)

sedition act of 1798

punished criticism of the government (later seen unconstitutional)

near v. minnesota

prior restraint is generally unconstitutional

new york times co v. sullivan

established “actual malice” standard for press reporting in public officials

forms of defamation

libel and slander

libel defamation

written, as in a newspaper or magazine article

slander defamation

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

balancing protection of the press and public citizens protections

press has an obligation to report on matter of public concern and the right to orotect ones good name

actual malice standard

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”

public official

responsible for or control over government actions (important public positions)

public figures

someone who chooses to be in the spot light

private figures

average person who does not have access to channels of mass communications

public figures: all purpose

widespread fame or notoriety

public figures: limited purpose

receives attention within narrow circumstances

public figures: involuntary

does not want attention but is thrown into the spot light due to a specific issue

defamation per se

statement is defamatory on the surface with no additional knowledge

defamation per quod

defamation that requires additional information

defenses to libel

truth, opinions, privilege, retraction, fair comment and criticism

curtis publishing co. butts

extended “actual malice” to public figures

the associated press v. walker

combined with butts to apply “actual malice” to public figures

gertz v. welch

private individuals have greater protections from defamation

constitutions view on privacy

says nothing about privacy but privacy has been long connected to our ability to speak and is seen as an individuals right regardless of this. The person must also show a subjective expectation that activities should be private

four torts of privacy

intrusion to seclusion or invasion of privacy, appropriation of name and likeness, public disclosure of private facts, false light

intrusion to seclusion or invasion of privacy

disturbed in a private location

appropriation of name and likeness,

unlawful use of someones name for personal gain

public disclosure of private facts

publication of private information

false light

true information presented in a negative manner

the press and ethical reporting

reporting truthfully and in the public’s interest while avoiding unnecessary harmful intrusions into private lives

griswold v. connecticut

established a constitutional right to privacy

katz v. U.S.

defined privacy expectations under the 4th amendment

sipple v. chronicle publishing

public interest can outweigh individual privacy

lawrence v. texas

extended privacy rights to consensual adult sexual behavior

What was the Communications Decency Act? purpose?

the CDA aimed to promote internet saftey and restrict indecent materials.

what is section 230 of the CDA?

Created to encourage free expression online while protecting platforms from legal repercussions for users posts. lows platforms to remove inappropriate content without facing liability.

section 230s criticism

enabling misinformation and hate speech proliferation

internet: public vs. private good?

helps everyone and is for the public benefit vs. a mechanism for private companies and citizens to do their business

when can tech companies be held liable?

if they are found to have knowingly facilitated illegal activities or failed to act on clear violations