Mr. McCormack

American Government

Central Dauphin High School

Chapter Nineteen – Civil Liberties: First Amendment Freedoms

III. Freedom of Speech and Press

A. Free Expression

1. The First Amendment guarantees each person a right to freely express his thoughts

a. Verbal speech

b. Written speech

c. Pictures or Images

d. Symbolic speech or Expressive Conduct

i. Expressive activity can be banned because of the action it entails, but not because of the ideas that it expresses

ii. United States v. O’Brien (1968)

1. David Paul O’Brien intentionally burned his draft card on the steps of the South Boston Courthouse in an attempt to make others reevaluate their opinions about Selective Service

2. The Court held that governmental regulation of speech is constitutional if “it is within the constitutional power of the government, if it furthers an important or substantial governmental interest, if the governmental interest is unrelated to the suppression of free speech, and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” [Strict Scrutiny]

3. The Court found that the law O’Brien violated satisfied all of these conditions, so his punishment was appropriate

iii. Tinker v. Des Moines Independent School District (1969)

1. Students wearing black armbands to protest the Vietnam War were suspended when the principal feared it would cause a disruption of school activities

2. “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of school officials, consistent with fundamental constitutional safeguards, to control conduct in the schools.”

3. “Certainly, where there is no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.”

4. The Court found that the silent expression of opinion did not disrupt school activities or pose a threat of violence

2. The First Amendment guarantees the public an opportunity for a full debate of public affairs, though some speech adds very little to the debate

3. These freedoms are usually invoked to protect unpopular expressions

B. Content Based Restrictions of Expression

1. No Constitutional freedom is absolute

2. Historically, the Supreme Court has found some categories of speech to be of higher value than others

a. Political speech should be regarded as deserving the most protection

b. Restrictions based on content (“low value” or “no value” speech)

i. Sedition

1. Seditious speech advocates or urges people to attempt to overthrow the government by force or violence

2. The first Sedition Act, passed in 1798, expired in 1800 and has been judged by history (if never the Court) as a violation of the First Amendment

3. Another sedition act was passed in 1917 to criminalize a variety of speech

a. Encouraging disloyalty

b. Interfering with the draft

c. Obstructing military recruiting

d. Inciting insubordination of the armed forces

e. Hindering the sale of government bonds

f. “Willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of the government of the United States.”

4. The 1917 Act was upheld by the Court several times, notably in Schenck v. United States (1919)

5. The Smith Act of 1940, still technically in force today, made it a crime to advocate the violent overthrow of the government of the United States, to distribute material that does so, or knowingly belong to a group that does so

6. The Smith Act has been upheld, but only as it applies to encouraging acts of violence – you are free to encourage people to believe in the violent overthrow of the government, just not to do it (Yates v. United States, 1957)

7. Brandenburg v. Ohio (1969)

a. KKK members were convicted of advocating crime, sabotage, or violence as a means of accomplishing political reform

b. “The mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action.”

i. Express advocacy of law violation

ii. Advocacy must call for immediate law violation

iii. The immediate law violation must be likely to occur

ii. Obscenity

1. The first reported obscenity case in the US was in Pennsylvania, in 1815

2. From 1868 until the 1930s, most courts applied a rather broad test of obscenity: states could regulate anything that had the tendency to corrupt those whose minds are open to immoral influences

3. By the 1930s, courts began to apply a more restrictive standard, considering what the effect of the whole work would have on the average person

4. From 1957 to 1973, the Supreme Court struggled to reach an objective definition of obscenity

a. Roth v. United States (1957)

i. Mr. Roth was convicted of violating a federal statute that prohibited mailing obscene materials

ii. Obscene material, being historically outside the scope of the freedom of speech, may be regulated without proof of posing a clear and present danger of antisocial conduct

iii. “The proper test is, whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.”

b. Jacobellis v. Ohio (1964) contains the famous admission of Justice Stewart: “Under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it….”

c. Stanley v. Georgia (1969) established that “the mere private possession of obscene material cannot constitutionally be made a crime.” [Osborne v. Ohio (1990) clearly excepts child pornography from this ruling]

5. From 1973 to the present, the Court has applied a different test

a. Miller v. California (1973) required three determinations to regulate obscenity

i. Whether the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest

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

iii. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

b. Paris Adult Theatre v. Slaton (1973) reaffirmed that the state has a legitimate interest in “stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passerby.”

i. “To say that our Constitution incorporates the proposition that conduct involving consenting adults only is always beyond state regulation is a step we are unwilling to take.”

ii. Many state laws interfere with transactions between consenting adults

6. In addition to regulating the nature of obscene material, the Court has upheld state laws regulating where purveyors of such material may do their business (City of Renton v. Playtimes Theaters, Inc., 1986)

iii. Fighting Words and Hate Speech

1. “Fighting Words” – those which tend by their very utterance to inflict injury or tend to incite an immediate breach of the peace

2. What men of common intelligence would understand would be words likely to cause an average addressee to fight

3. The Court last upheld a state prohibition on “fighting words” in Chaplinsky v. New Hampshire (1942), but has not upheld a conviction since then for various reasons

4. “Hate Speech” is similar to fighting words, in that they are words that inflict injury, but it is different because it is directed against a group and there is no expectation that they result in an immediate breach of the peace

a. The Court upheld an Illinois law against what amounted to group libel in Beauharnais v. Illinois (1952), though that case has been weakened by later decisions insisting that truth must be an absolute defense against libel

b. The Court overturned a conviction based on a Minnesota hate speech law in R.A.V. v. City of St. Paul (1992) because “content-based regulations are presumptively invalid.”

i. “The government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government.”

ii. “When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists…. A state might choose to prohibit only that obscenity which is the most patently offensive in its prurience, but it may not prohibit only that obscenity which includes offensive political messages.”

iii. The Minnesota law gave special protection to race, color, creed, religion, or gender, but not other categories like political affiliation or union membership; since the special protection was not centered on the basis of the content discrimination (words prone to cause injury or provoke violence), that extra content discrimination was unconstitutional

iv. The government may not regulate some fighting words more strictly than others because of their content

c. Virginia v. Black (2003)

i. A general cross-burning ban for the purpose of intimidation was upheld

ii. The basis for content discrimination (cross burning for intimidation) was the same as the very reason for the class of speech (intimidating speech), in accordance with R.A.V.

iii. The law did not allow cross burning to target some people but not others

iv. The law did not outlaw all cross burnings, only those that were for intimidation

iv. Commercial Speech

1. Speech for business purposes (advertising, etc.)

2. The Court has been protecting some commercial speech since the mid-1970s

3. Some commercial speech is still prohibited

a. Advertisements for illegal goods or services

b. False and misleading advertisements

c. Restrictions must have a compelling reason (can’t be arbitrary)

v. Public Disclosure of Private Information

1. Many states protect privacy by creating a private cause of action for publicity of non-newsworthy items

2. We have the right “to be free from unwanted publicity about private affairs, which, although wholly true, would be offensive to a person of ordinary sensibilities”

3. There can be trouble determining when something crosses the line from private to public knowledge

vi. False Statements

1. Libel – false statements of fact that are published in some permanent form that result in damage to another’s reputation

2. Slander – false statements of fact that are published in some non-permanent form (speech) that result in damage to another’s reputation

3. New York Times v. Sullivan (1964)

a. Sullivan, a county commissioner in Alabama, sued the New York Times for libel based on stories that were written about racial protests in Montgomery, Alabama

b. “The Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct. …the rule requiring proof of actual malice is applicable….”

c. “An otherwise impersonal attack on government operations [cannot be construed as] a libel of an official responsible for those operations….”

4. Gertz v. Robert Welch, Inc. (1974)

a. “Private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery.”

b. “The private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times [that is, without a showing of malice] may recover only such damages as are sufficient to compensate him for actual injury.”

5. Hustler Magazine v. Falwell (1988)

a. Hustler Magazine published a fake interview that depicted a false biography of the Reverend Jerry Falwell, who subsequently sued for libel and intentional infliction of emotional distress

b. “A public figure may hold a speaker liable for the damage to reputation caused by publication of a defamatory falsehood, but only if the statement was made with knowledge that it was false or with reckless disregard of whether it was false or not”

c. “Public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications… without showing in addition that the publication contains a false statement of fact which was made with actual malice, i.e. with knowledge that the statement was false or with reckless disregard as to whether or not it was true….”

3. Historically, the Supreme Court has found prior restraints to be unconstitutional

a. Except in extreme cases, the government cannot curb expressions before they are made

b. Pentagon Papers Case – New York Times v. United States (1971)

i. The New York Times published Department of Defense documents relating to the Vietnam War that were embarrassing to the President, and the DoD attempted to block further publication

ii. The opinion was a very short per curiam decision that merely stated the government had not met the burden required to justify a prior restraint

c. Examples of acceptable prior restraints

i. Prohibition on distribution of political literature on military bases without the approval of military authorities

ii. Requirement that CIA agents must get agency approval before publishing anything about the agency

iii. Prison rules that prevent inmates from receiving publications that are detrimental to security, order, or discipline

C. The Right Not to Speak

1. West Virginia State Board of Education v. Barnette (1943)

a. West Virginia required all school children to salute and pledge allegiance to the flag

b. “To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to pubic authorities to compel him to utter what is not in his mind.”

2. Wooley v. Maynard (1977)

a. New Hampshire required licensed vehicles to display the state motto “Live Free or Die”

b. The Court found New Hampshire did not have a compelling interest to force its citizens to become a “courier” for a message

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

a. Massachusetts tried to force the South Boston Allied War Veterans Council to allow a gay rights group to march in the St. Patrick’s Day parade under the interest of preventing discrimination based on sexual orientation

b. The Supreme Court found that forcing the Veterans Council to allow the gay rights float in the parade would have forced them to alter the “expressive content” of the parade