Lesson 18: Freedom of Expression
In this lesson, we will learn about the concept of No Prior Restraint, which
refers to censorship. We will also learn about how the Supreme Court has ruled
on cases involving symbolic speech, commercial speech, and subversive or
advocacy speech. We will then take a look at the legal definition of obscenity,
and how it has changed over time. Finally, we will talk about categories of
speech that are unprotected, limits on the freedom of speech of students, and
the freedom of the press.
It is one of our nation's most meaningful rights to be able to speak freely and
to listen to what others have to say.
The Supreme Court is very reluctant to support Prior Restraint, which is
restraining an activity before it has actually occurred. When expression is
involved, prior restraint refers to censorship.
An example of this is the requirement to obtain a permit before a public speech.
In a landmark case,
the Supreme Court established No Prior Restraint in New York Times v. United
States in 1971.
Several newspapers were going to publish documents obtained from
a former official of the pentagon. They contained details of our involvement in
the Vietnam War.
The government argued that the pentagon papers were obtained illegally and
that they posed a threat to the security of our nation. The newspapers
contended that the people had the right to know. The Supreme Court ruled in
favor of the newspapers, establishing the no-prior-restraint doctrine.
When students wore armbands protesting the Vietnam War,
the Supreme Court ruled in Tinker v. Des Moines School District in
1969 that the students were protected under the First Amendment.
It was called Symbolic Speech, which is expression that
is made through articles of clothing, gestures, movement, and other forms of
nonverbal conduct.
Flag Burning was found to
be a protected form of speech when the Supreme Court decided in 1989 that
states prohibiting it violated the First Amendment. When Congress passed the
Flag Protection Act of 1989, the Supreme Court once again ruled it
unconstitutional.
On the other hand, it was decided by the Supreme Court in
2003 that cross burning could be banned by the states if it was done with the
intent to intimidate. It further found that historically, cross burning was an
act that signaled impending violence.
Not all commercial speech is what you see on TV or in
the newspaper. As you can imagine, some of it can get rather tasteless.
Commercial Speech includes all statements made in advertising,
which increasingly have been given First Amendment protection.
At first, it was found that
commercial speech was not protected at all by the First Amendment. But as case
after case was brought before the Supreme Court, commercial speech found more
and more protection under the First Amendment.
In 1919,
the Supreme Court decision found speech unprotected by the First Amendment if
it presented a clear and present danger.
The Clear and
Present Danger Test asserts that Congress has the power to
prevent speech if there is evidence that such speech can cause a dangerous
condition, whether it exists now or could possibly happen in the very near
future.
If speech can bring about some form of "evil,
" it can be restricted based on the Bad Tendency Rule.
Gitlow v. New York was a case that concerned Benjamin Gitlow who published and
distributed pamphlets that
called for a violent overthrow of the U.S. Government. Gitlow was convicted on
charges of violating New York's criminal anarchy statute.
The Supreme Court invoked the First Amendment against New York. However,
the Supreme Court made it clear that
Gitlow could be punished under the Bad Tendency Rule since his speech could
incite violence and the state had a right to protect itself.
In 1969, Brandenburg v. Ohio was a case where the Supreme Court ruled that the
conviction of a KKK leader was unconstitutional because speech that advocates
the use of force or breaking laws is protected, as long as it does not incite
immediate actions. It is a very fine line, but advocating rioting is okay as
long as the speech is not inciting a riot at the moment.
This is the Imminent Lawless Action Test,
the current standard established by the Supreme Court for evaluating the
legality of advocacy speech. Such speech can be forbidden only when it is
"directed to inciting... imminent lawless actions."
When Chief Justice Warren Burger decided on Miller v. California, he created a
list to define obscenity that was so vague that it had to be left up to local
authority interpretation. The list included such things as what the average
person might find obscene and whether or not the work has any redeeming
literary, artistic, political, or scientific value.
But,
popular attitudes toward obscenity have changed so much that
things such as pornography leaving nothing to
the imagination can now be found in every corner of our country.
Pornography on the internet has posed an impossible challenge to police.
Congress tried to pass laws to protect children from exposure, but the Supreme
Court found those attempts unconstitutional.
Congress did however get a win when they passed legislation calling for schools
and libraries to be penalized if they did not install software that filtered
out "adult" content.
The private sector has shown an interest in
restricting obscenity itself. Movie theaters, for example, will not show movies
that receive a pornographic rating from the Motion Picture Association of
America.
Also, the government can still place restrictions on media that
it regulates. Television and radio are regulated by the FCC and are
prohibited from the use of obscenity, though the definition of the word changes
with public opinion.
States can criminalize the making of and
the possession of child pornography. But, there is a fine line once again.
The crime is child abuse, not obscenity. For example, a movie can depict
children engaging in a sex act as long as the actors themselves are not
children. Also, books and cartoons are not exploiting an actual, identifiable
child.
A person cannot simply say whatever they want about another person. This speech
is unprotected because it falls under defamation of character and slander.
Defamation of Character is wrongfully hurting a person's good reputation.
Slander is the public uttering of a false statement that
harms the good reputation of another. The statement must be made to, or within
the hearing of, someone other than the defamed party.
Court rulings have actually identified that free speech in
schools depends on the level of the school involved. Elementary schools have
more latitude to limit free speech than high schools, and college students have
the most freedom of speech of all of them.
It has been established that
high schools have the right to limit the freedom of speech beyond what the
public is allowed. This was illustrated very clearly in the Supreme Court
ruling of 2007 where a student displayed a banner advocating drug use on
private property across from the school. The principal took the banner down and
suspended the student, which the Supreme Court ruled he had the right to do.
Should a school be able to collect fees that subsidize activities on campus that
some students find objectionable?
In 2000, the Supreme Court decided in a case brought to their attention by
University of Wisconsin students that the university could collect student
activity fees if the school found it in their best interest to promote open
discussions of philosophy, religion, science, and political subjects.
Universities often have codes that prohibit such things as hate speech. The
Supreme Court has found that these codes do in fact violate free speech.
However, they still exist on many campuses.
At one time, "the Press" referred only to written materials that
were published and distributed. Nowadays, the television and the internet are
examples of ways in which the term "Press" has been expanded.
Libel is a written defamation of a person's character or reputation. The
defamatory statement must be observed by a third party.
Proving defamation of character requires a set of conditions.
Was there Actual Malice?
That is either knowledge of a defamatory statement's falsity or a reckless
disregard for the truth.
Public Figures are an entirely different case from
private individuals. A Public Figure is a public official, movie star, or other
person known to the public because of their positions or activities.
Because they hold a public interest of some sort and
they have access to a public platform to address statements made against them,
it is harder for them to seek damages in defamation cases.
The right to a fair trial and
Freedom of the Press can conflict when media coverage has the ability to
influence the outcome.
A Gag Order, which is an order restricting the publication of news about a
trial or a pretrial hearing, can be imposed by the judge to protect the
accused's right to a fair trial.