Freedom of Expression Midterm

First Amendment: What does it cover?

Congress shall make no law respecting an establishment of religion, or prohibiting free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble,m and to petition the Government for a redress of grievances.

Legislative Branch

Allowed to pass federal laws

Judicial Branch

Delegated powers from the constitution to settle disputes of federal law and between states

Executive Branch

Enforces the statutes set forth from the legislative, in part using administrative agencies and law

Where does our body of law originate from?

U.S. Constitution, statutory law, and common law

What is a precedent?

Stare decisis; links previous interpretations of the law with new cases

Marketplace Theory

The best ideas right to the top

Self-Government Theory

Individuals have the right to govern themselves; to support democracy among the people

Individual Autonomy Theory

Free speech matters, no matter what that speech is; our individual experience with free speech; free speech is a huge pat of individuals experience 

Dissent Theory

Freedom of expression allows us to disagree with others and dissent

Tolerance Theory

The amount to which people are able to allow and control; being able to accept what others say and think, without acting on it based on your own beliefs 

Checking Value Theory

“Watchdog” role; checking for the facts to ensure that things are correct

Lowest Level of Scrutiny

Rational Basis Review

Rational Basis Review

the default standard for most other laws and classifications; including those based on age, disability, or wealth

Middle Level of Scrutiny

Intermediate Scrutiny

Intermediate Scrutiny

laws involving gender or sex-based classifications and some forms of commercial speech

Highest Level of Scrutiny

Strict Scrutiny

Strict Scrutiny

Laws that infringe on fundamental rights or involve suspect classifications (race, national origin, or religion)

What is symbolic speech?

Nonverbal, nonwritten forms of communication (flag burning, wearing arm bands); generally protected by the first amendment unless it causes a specific, direct threat to another individual or public order

Symbolic Speech Test

1. Is the law within the constitutional power of the government?

2. Does the law further a substantial or important government interest?

3. Is the interest unrelated to the suppression of free speech?

4. Is the regulation the least restrictive means with regard to free speech?

Hate Speech

Abusive language specifically attacking a person or persons because of their race, color, religion, ethnic group, gender, or sexual orientation

What is a public forum?

Any space that has been designated a public area; streets, parks, or public meeting locations, citizens are able to assemble and express themselves

How many types of public forums are there?

3

Traditional Public Forums

Restricted ability to suppress (time, place, and manner)

Must be content neutral and viewpoint neutral

Limited Public Forums

Time, place, manner

“Compelling interest”

Can discriminate based on content, but not viewpoint

Nonpublic Forums

Prisons, government offices, hospitals

Can be regulated - allowable commercial speech

Not based on disliking speakers view

Content based restrictions

Limit speech based on its subject matter

Viewpoint based restrictions

Limit speech based on ideology and perspective

Heckler’s Veto

Governments responsibility is toward safeguarding speaking events where a crowd might disagree and display that disagreement 

What is an example of the heckler’s veto?

Terminello v. Chicago

Terminello v. Chicago (1949)

Court held that the “breach of peace” ordinance unconstitutionally infringed upon the freedom of speech

Feiner v. New York (1951)

“Clear and Present danger” test

Defined limits of free speech; does not protect speech that incites public disorder

Expanded government power; gave law enforcement more discretion to stop speech that is violent

Set a precedent: influenced future rulings on public speech, protest, and police authority

Brown v. Louisiana (1966)

Henry Brown, a black man, sat in a “white only” area and was considered “disturbing the peace”

Affirmed the right to peaceful protest and limit state power

U.S. Supreme Court overturned the conviction, ruling that it was a peaceful silent protect and was protected by the First Amendment and applies the 14th Amendment 

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston (1995)

Ruled in favor of GLIB until the Supreme Court

You cannot overreach out view onto someone else with the potential of infringing on their opinions

Incitement

Speech that urges someone to commit an unlawful act; core of incitement is the intent to provoke an immediate, illegal response from the audience 

What separates incitement from legal speech?

Legal speech does not incite violence among the people

Schenk v. United States (1919)

“Clear and Present Danger” Test

Prevention of “substantive evils” that are right in front of us

Echoing concerns during times of war - public safety is most important (Espionage and Sedition Acts)

This test is no longer used anymore, because it was replaced by the Brandenburg test, which is a much more stringent test

Abrams v. United States (1919)

First attempted to balance the ability to speak freely with the potential consequences of those actions toward our government 

The standard, early on, was heavily weighed towards the government

There were massive fears that the government would be overthrown and a different hierarchy would be put into place

Gitlow v. New York (1925)

Reinterpreted Schenk; court views that a causal connection between speech and action wasn’t warranted; only the tendency toward such a “spark” of danger toward government safety

Justice Holmes dissented: “every idea is incitement”

Case made it clear that the First Amendment wasn’t just federal but applied to the states as well (Due Process Clause of 14th Amendment)

Whitney v. California (1927)

Echoed Gitlow, in that the court use a “bad tendency test” toward speech suppression, because it was “inimical to the public welfare, trending to incite crime, disturb the peace or endanger the foundations of organized government and threaten its overthrow”

Justice Brandeis concurred with the majority opinion yet gave a full force defense of freedom of speech. He argued that any prevention of free speech would dismantle democracy 

Dennis v. United States (1951)

Another case that displayed the court’s fear of speech that might push toward an overthrow of the current government

Built off the Clear and Present Danger Test, but also weighed the “gravity of evil” against the fears of suppressing speech

The opinion noted that if the government had to wait entirely before the actions took place, there would be fear of what that would mean

Brandenburg v. Ohio (1969)

Would change incitement standards forever

Advocacy of ideas weren’t enough to prevent speech from taking place

Brandenburg 2 pronged test

1. Speech can be prohibited if it is “directed at inciting or producing imminent lawless action”

2. It is “likely to incite or produce such action”

Fighting Words

Words that, by their very utterance, are likely to provoke an immediate, violent, and personal response from the average person to whom they are addressed

How are fighting words and incitement different?

Fighting words are directed at a specific individual to incite a person, violent response; incitement Is directed at an audience to provoke lawless action

Chaplinsky v. New Hampshire (1942)

Chaplinsky, a Jehova’s witness, was distributing religious pamphlets and speaking one afternoon in Rochester, New Hampshire, when a crowd gathered around him

Police told the crowd he was within his rights to speak

A riot happened shortly after Chaplinsky spoke. As he was being taken to the police station, he told the police, “You are a God damned racketeer” and “a damned fascist and the whole government of Rochester are fascists or agents of fascists

He was arrested for breaking New Hampshire law

His argument to SCOTUS was that his words were protected under the First Amendment 

The Court rules unanimously that expressions that are “lewd and obscene, profane, libelous, and insulting or “fighting words” cannot claim constitutional protection

Justice Murphy argued that fighting words “by their very utterance inflict injury or tend to incite an immediate breach of peace”

Texas v. Johnson (1989)

Gregory Johnson, during a political protest, burned the American flag

Convicted under Texas law

Cannot prohibit him from doing that as it was a “content” limitation

Cannot prohibit expression simply because society finds it offensive 

R.A.V. v. St Paul (1992)

Group of teenagers burned a cross on the lawn of a black family

Content based discrimination

Ordinance was unconstitutional because it prohibited speech based on viewpoint

Government can’t ban because it simply disagrees with the message

Ordinance was under inclusive 

Punished Certain types of fighting words and not others

True Threats

A statement that frightens or intimidates on for more specified persons into believing that they will be seriously harmed by the speaker or by someone acting at the speakers behest

What actions taken by an individual would constitute a true threat?

The speaker does not actually intend to carry out the threat, but the prosecution must prove that he or she intended to communicate a threat 

Watts v. United States (1969)

Can you threaten the president? No, but the court rules in this case threat to the president could not be considered “serious” as it was hyperbole

Watts Factors in True-Threat Analysis

1. The context of the statement or statements in question

2. The conditional nature of the supposed threat

3. The reaction of the recipients or listeners 

Virginia v. Black (2003)

The Klu Klux Klan burned two crosses in front of a black family’s home, which was against the law in the state

At the trial, the judge ordered that simply by burning the cross, intent was established. Black was convicted.

The Virginia Supreme Court reversed the decision. Black wins.

In her opinion for the majority, Justice O’Conner said that while burning crosses can be expressive conduct, and therefor protected, Virginia could ban cross burned if it constituted a “true threat”

“True threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,” O’Conner wrote

One issue: R.A.V. v. St Paul rules that a local ordinance that banned cross burnings as a form of hatred toward “race, color, and creed” to be illegal content discrimination

O’Conner noted in her opinion that cross burning was a particular form of virulent discrimination, so it did not fall under R.A.V.’s ruling

Ultimately. the court rules that while the overall restriction can exist, the notion that cross burning “on its face” was intimidation was deemed unconstitutional

Counterman v. Colorado (2023)

Justice Elena Kagan, in the 7-2 ruling, wrote that the state must require some level of mental culpability for communication to be a true threat, but that a low level - recklessness in making the threat - is sufficient

Under the recklessness standard, the state must prove that the person “consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” the ruling said

“The speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgement wrong; his fear, in any event, of incurring legal costs - all those may lead him to swallow words that are in fact not true threats,” Kagan wrote.

What types of books are subject to book banning?

Sexual content (92.5%)

Offensive language (62.5%)

Unsuited to age group (49%)

Religious viewpoint (26%)

LGBTQIA+ content (23.5%)

Violence (19%)

Racism (16.5%)

Board of Education v. Pico (1982)

A school board pulled books from its library, because it felt the books were “anti-American, anti-Christian, anti-Semitic, and just plain filthy”

Students brought a lawsuit, arguing that their First Amendment rights were being violated

The lower court, without hearing arguments at the trial, granted summary judgement to the school board, ruling that it should have “broad discretion” of what to include in libraries

Justices had wildly different opinions, with many writing their own version of what they believed

Ultimately, Pico, a student at the school, won the case 5-4

Overall, Justice Brennan’s opinion, which was the principal one of this case, argued that school boards do have some distraction, but that discretion “must be exercised in a manner that comports with the transcendent imperatives of the First Amendment”

All four dissenting justices wrote opinions attacking Justice Brennan’s views

The basis of their claims were: Removing books from school libraries is not connected to the First Amendment, The books are available elsewhere, “The right to receive information” does not apply in schools, Federal courts should leave discretion to the schools and their governing bodies

Tinker v. Des Moines (1969)

All cased following this one have been evaluated by it

Wore black arm bands to school to protest Vietnam War

Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate”

Tinker Test

Does the speech cause a material and substantial disruption to the school’s functioning?

Bethel v. Fraser (1986)

In opposition to Tinker, the court rules that a student who used inappropriate language at a school assembly did not have his free speech rights violated when he was suspended

“The undoubted freedom to advocate unpopular views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior” - Chief Justice Warren Burger

Indencent student speech (No) vs. Political speech (Yes)

Hazelwood v. Kuhlmeier (1988)

High school was accused of the censoring student publication regarding two stories about divorce and teen pregnancy

The Supreme Court held that schools may restrict what is published in student newspapers if the papers have not been established as public forums. The court also decided that the schools may limit the First Amendment rights of students if the student speech is inconsistent with the schools’ basic educational mission

Hazelwood created a new standard for school-sponsored student speech as opposed to student-initiated speech

Educators, Justice White said, do not violate students First Amendment rights “by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”

Hazelwood Test

1. Served the educational mission of the school

2. Was done in a reasonable manner

3. Was related to pedagogical concerns

4. Served a valid purpose

Healy v. James (1972)

In favor of free speech and association rights for college students

University disallowed a student group whose organization had been known for some violent acts on other campuses

In rules for the student org. Justice Powell argued that “state colleges and universities are not enclaves immune from the sweep of the First Amendment.”

Papish v. Missouri Board of Curators (1973)

A Missouri graduate student was expelled for violating a bylaw forbidding “indecent conduct or speech.” Published an underground newspaper with an explicit political cartoon

In reversing the lower court ruling, the Court majority said Healy made “clear the mere discrimination of ideas - no matter how offensive to good taste - on a state university campus may not be shut off in the name alone of ‘conventions of decency.’”

Obscenity

Certain types of sexual or graphic content that are not protected by the First Amendment because they are considered to have no serious value and are deeply offensive by community standards

Can be banned under strict legal concerns

Where does obscenity originate from?

Common Law

Began banning obscene materials from Comstock Act of 1873

Supreme Court decisions

Why is obscenity regulated?

Protect public morality, protect children and vulnerable groups, preserve community standards

Regina v. Hicklin (1868)

“In Intractable Obscenity Problem”

Guided by the English Hicklin rule

swatter the tendency of the matter is to deprive and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall

A “tendency” standard occurred in another place

What was wrong with the Hicklin Test?

Obscenity based off “isolated passages”

“Susceptible persons” not reasonable persons

Created no space for the social and artistic value of the material 

Roth v. United States (1957)

Roth operated book-selling businesses, convicted of mailing obscene materials

Obscenity was not “within the area of constitutionally protect speech or press”

Roth Test

1. The material appeals to a prurient interest in sex

2. The material is utterly without redeeming social importance

3. The material must be considered obscene as a whole

Jacobellis v. Massachusetts (1966)

Showed French film which was deemed obscene under law

Deemed not obscene because it had serious artistic value

“I know it when I see it” by Justice Potter Stewart, referring to hardcore pornography

Proceeded to shape the Miller Test

Miller v. California (1973)

Whether the average person applying contemporary community standards would find that the work, taken as a whole, appears to the prurient interest

Whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law

Whether the work, taken as whole, lacks serious literary, artistic, political, or scientific value (SLAPS)

Indecency

Covers explicit the broadcast industries

“Language or material that, in context, depicts or describes, in terms patently offensive, as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or other activities”

Who decides what is indecent?

FCC

Why is FCC allowed to regulate indecency?

Vastness of broadcast media

Fear of children finding material

Technology is sacred, causing need to regulate 

What is the FCC?

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 

Communications Decency Act of 1934

Part of the Telecommunications Act

Criminalized the intentional transmission of “obscene or indecent” messages as well as the transmission of information of “sexual or excretionary activities or organs” in a manner

Meant to protect minors from this material

FCC v. Pacifica (1978)

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

Reno v. ACLU (1997)

The case struck down portions of the Communications Decency Act of 1966

It was over broad, faulted to limit restrictions to certain hours of the day, or individuals

Did not demonstrate that the transmission of “offensive” material is devoid of any social value 

Fox v. FCC (2009/2012)

Cher at the Billboard Awards

Nicole Ritchie at Billboard Music Awards

Ruling in 2009: Regulating “fleeting expletives” by the FCC was not illegal and within the scope of their work

Remanded back to appeals court, Reuters to SCOTUS in 2012: Overturned because FCC’s statute was vague and did not give proper notice

Which organization outlines political speech regulations?

Federal Election Commission (FEC)

Why is political speech more important than all other types of speech?

Most protected and vital form of speech

Allows citizens to criticize government, advocate for policies, support candidates, and influence public opinion 

Democracy cannot function without open debate and discussion

Courts apply to the highest level of scrutiny (Strict Scrutiny)

Government must have compelling reason and use the least restrictive means

Defends and expands other rights

Hard Money

Political donations given directly to a candidate or party with strict limits and disclosure rules

Soft Money

Donations to political parties or outside groups or “party building” or issue advocacy not directly for a candidate 

Buckley v. Valeo (1976)

While the government can limit how much individuals contribute to political campaigns:

it cannot place limits on campaign expenditures

Expenditures by a candidate from personal resources

Or independent expenditures by group supporting the campaign 

Issue Advocacy vs. Express Advocacy:

According to Valeo, it was illegal to influence the election through advertisement, but there was a loophole

As long as the advertisers did not use the “magic words” - vote for, elect, support - or identify a candidate, it was appropriate 

Citizens United v. FEC (2010)

Corporations are people when it comes to free speech - especially political speech

Text of the constitution does not distinguish in terms of “speakers” only speech, according to Justice Scalia

Critique: Corporate spending on political races dilutes and corrupts the political process 

Commercial Speech

Speech that does “no more than propose a commercial transaction”

False advertising is considered unconstitutional

Much of the discussion around commercial speech’s legalities refers to advertising practices 

Valentine v. Chrestenen (1975)

When was commercial speech not protected?

Justice Roberts: Purely commercial speech has no constitutional basis for protection

No guidance for why decision was made; left it up to the legislature to decide laws

Bigelow v. Virginia (1975)

Could Virginia prevent a magazine from running an ad for abortion services in New York?

Result: No

Why: Because the advertisement contained important information in the “public interest,“ which went beyond merely informing readings of a commercial service

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc (1976)

Virginia did not allow advertising of drug prices

Law was challenged on First Amendment grounds

“The free flow of commercial information is indispensable,” according to the Court