Freedom of Speech, Press, and Assembly

1
Freedom of Speech, Press, and Assembly

• Combined we know these freedoms as our freedom of
  expression

2
Fundamental importance of our Freedom of
Expression

• Guarantee each person the right of free
  expression so that a wide range of public affairs
  can be discussed.
• The right of expression was intended to protect
  unpopular views---Supreme Court Justice Oliver
  Wendell Holmes described it this way freedom
  for the thought we hate---He said majority
  opinions need little or no Constitutional
  protection.
• Do you agree with him???????????

3
Types of Expression that are not protected

• 1. Obscene words and materials (but what is
  obscene?)
• 2. Words that prompt others to commit a crime.
  (Charles Manson---Huey Newton)
• Slippery slope because belief can not be
  punishedonly actions.
• 3. Slander and libelspoken and written words
  that are false and cause harm to another person.
• slander deals with spoken words
• libel deals with written words
• 4. Student speech can be restricted at school.

4
Slander and Libel

• Can public officials recover damages for
  published criticisms that are false, and or
  exaggerated???????
• No, unless the published article was made with
  malicious intent
• NY Times v. Sullivan 1964
• Malicious intent would be defined as knowing
  something is false but printing it anyway so that
  you could purposefully harm someone.

5
Can a public figure (movie star, sports star,
Television Evangelist) recover damages () when
they are made fun of in a false and unkind manner
by a publication?

• In almost every instance No, Hustler Magazine v.
  Falwell 1988
• Falwell won his case in a lower federal court
  right here in Roanokebut the decision was
  overturned by the Supreme Court.

6
Seditious Speech

• Defined as advocating, or urging the overthrow of
  the government by force or to disrupt its lawful
  activities by violent acts.
• 1798 Alien and Sedition Acts
• Gave Federalist President Adams the power to
  deport aliens. It also made any false,
  scandalous, and malicious criticism of the
  government a crime.
• Law was meant to quiet Anti-Federalist criticism
  of the President.
• 25 persons arrested---10 convicted
• all pardoned by Jefferson when he became
  President.

7
The Sedition Act of 1917

• Passed during World War I ---made it a crime to
  encourage disloyalty, interfere with the draft,
  obstruct recruitment, incite insubordination in
  the armed service, or hinder the sale of
  government bonds.
• Also to willfully utter, print, write, or
  publish any disloyal, profane, scurrilous or
  abusive language about the government of the
  United States.
• 2000 persons convicted under law.

8
Constitutionality of 1917 Sedition Act questioned

• Can a member of the Socialist Party distribute
  leaflets which urged men to resist the
  draft?????????????
• No, Schenk v. U.S. 1919
• Justice Holmes spoke for the majority of the
  court. He said words can be outlawed, and those
  who say them can be punished, when the words
  trigger an immediate danger that criminal acts
  will follow.
• Becomes known as the Clear and Present Danger
  Doctrine.
• How was the distribution of these leaflets a
  clear and present danger?

9
1940 Smith Act

• Law made it a crime to advocate the violent
  overthrow of the government, to distribute any
  material that teaches or advises violent
  overthrow, or to knowingly belong to any group
  with such aim.
• Does membership in the Communist Party violate
  this law?
• In 1951 the Supreme Court said yes and allowed
  the conviction of a person who was a member of
  the Communist Party under the Smith Act to stand.
  
• However, in 1957 they changed their mind and
  said to merely urge someone to believe something
  cannot be made illegaltoday a person can be a
  member of the Communist Party if they want. In
  fact Communist have sometimes been elected to
  public office.

10
Obscenity

• The first and fourteenth amendment do not protect
  obscenity. However, defining what is obscene is
  been very difficult.
• In 1957 The Supreme Court upheld a law passed by
  Congress which made it a federal crime to use the
  mail to transport obscene materials.

11
How do you define whats obscene???????????????

• 1973 Miller v. California Supreme Court creates
  three part test for obscenity.
• 1. The average person applying community
  standards finds the work appealing to only
  prurient interest.
• 2. The work depicts or describes a form of sexual
  conduct dealt with in antiobscenity law.
• 3. The work lacks serious literary, artistic,
  political, or scientific value

12
Can a city regulate the location of adult
entertainment?

• Yes, Young v. American Mini Theaters 1976
• Can the Federal and State government make it a
  crime to possess, view, or transport through the
  mail child pornography???
• Yes, Osborne v. Ohio 1990
• Can a city ban taverns, bars, and clubs that
  feature nude dancing?
• Yes, City of Erie v. Paps AM 2000

13
Review for Part 1 Quiz

• What was the viewpoint of Oliver Wendell Holmes
  concerning Freedom of Expression?
• What types of expression are not protected?
• Be able to define slander, libel, and malicious
  intent, and seditious speech
• What happened in the Hustler Magazine vs. Falwell
  case?
• Be able to describe the 1798 Alien and Sedition
  Act Sedition Act of 1917 1940 Smith Act
• Is the transportation of obscene material
  illegal?
• What was the three part test established by
  Miller vs. California?
• Can a city regulate the location of adult
  entertainment?
• What happened in the Skokie case?

14
Review Continued

• What are the three legal methods by which
  governments may limit the right to peacefully
  assemble?
• Who was Joseph McCarthy?
• From what sources will you find the origin of our
  right of assembly and petition?
• Why does the Supreme Court say that Americans
  have a right to associate with whom they wish
  even though the right to association is not found
  in the Constitution?

15
Does the News Media have an Agenda?

• Lead in on ABC news radio to Va. Tech shooting
  story
• in a part of Virginia where hunting is
  popular and guns are common
• Is the reporter trying to imply something?
• What?
• Is this fair and appropriate reporting?

16
Censorship

• The Constitution allows the government to punish
  someone for their expression after it is made
  However, can government stop the expression
  before it is made????
• This is called Prior Restraint or Censorship
• The Supreme Court has said that the general rule
  is that with almost no exception can government
  place prior restraint on expression.

17
Can the state of Minnesota stop the printing of
an anti-Semitic (anti-Jewish) newspaper?No,
1931 Near v. MinnesotaCensorship can only be
used in extreme cases such as wartime, obscenity,
or incitation to violence.
18
Presumption of unconstitutionality

• Today, any case coming before the Federal Courts,
  that deals with government censorship, is
  considered unconstitutional upon arrival, and it
  is up to the government to explain why there
  should be an exception.

19
Pentagon Papers Case

• 1971 N.Y. Times v. United States
• A document known as The History of U.S. decision
  making process on Vietnam Policy was stolen from
  the Pentagon.
• The document was labeled Top Secret.
• It was given to the N.Y. Times and they wanted to
  print it. The U.S. Government objected and
  attempted to stop the printing.
• The Supreme Court sided with the N.Y. Times
  because the government could not prove that
  National Security was endangered.

20
Censorship/Prior Restraint that has been judged
Constitutional

• Regulations limiting distributions of political
  materials on a military base.
• Regulation that required retired CIA agents to
  first get the permission of the CIA before
  publishing anything about the CIA.
• Regulation in federal prison that allows
  officials to prevent an inmate from receiving
  certain publications.
• School officials can censor school newspapers and
  plays.

21
Can reporters be forced to testify in a court of
law about information they might have uncovered
involving a criminal case?

• Reporters claim that they should not because they
  are protected by the First Amendments Freedom of
  the Press. (Valarie Plame case)
• The Supreme Court has disagreed and says that
  like other citizens reporters must respond to
  relevant questions.
• Thirty states have passed Shield Laws to give
  reporters limited protection in state courts.
  However, no such protection exist in Federal
  Court.

22
Radio and Television

• In 1934 the Congress passed the Federal
  Communications Act. Since that time radio and
  television have been subject to extensive
  regulation from the Federal Communications
  Commission (one of many federal regulatory
  commissions or agencies).
• The Supreme Court has said that Broadcasting
  over the airways receives the least of protection
  from the 1st. Amendment.
• Why? What makes television and radio different
  from newspapers and magazines?
• Television and Radio broadcast over the public
  airways.
• Pay cable channels have more first amendment
  freedom. U.S. V Playboy Entertainment 2000
• Supreme Court declares law unconstitutional.

23
FCC regulates television and radio

• CBS was fined 500,000 by the FCC for allowing
  the Janet Jackson wardrobe malfunction to happen
  during half time of the 2004 Super Bowl.
• Howard Stern and the radio stations that have his
  program have been fined by the FCC.

24
Symbolic SpeechExpression by Conduct

• Can school systems have dress codes or school
  uniforms?
• Yeshowever, the rules should reflect their
  clothes not their personal appearance. Personal
  appearance items like piercing, hair color, and
  hair length can not be regulated unless it
  presents a health threat.

25
Picketing as symbolic speech

• Can workers patrol a business site and protest
  working conditions and pay?
• Yes, as long as it is peaceful and does not block
  access to the business.

26
Free Speech and the workplace

• Can a police officer, on his own time, provide a
  web site that offers visitors a strip tease for a
  certain amount of money. (Officer starts with his
  police uniform on)
• The police department warned the police officer
  and when he refused to stop he was fired.
• No, the Supreme Court unanimously found that the
  police officers actions were detrimental to the
  mission and function of the employer.

27
The flag and free speech

• Can the federal, state, or local government make
  it a crime to burn the flag in protest or show
  disrespect to the flag in any manner?
• NoProtected action by first amendment
• There has been some talk about adding an
  amendment to the Constitution to make burning the
  flag a crime.

28
Political Contributions and free speech

• Can the federal, state, or local government
  regulate a persons political donations?
• (how much, when, make them public)
• Yes, but in a very limited manner.

29
Commercial Speech

• You may not advertise illegal goods
• You may not advertise falsely or in a misleading
  manner.

30
Can the Boy Scouts (a private organization)
exclude homosexuals from their organization?

• Yes---they are a private organization and
  therefore have what is called freedom of
  association which is a form of expression.

31
Can a school system punish students for wearing
black armbands as a form of protest against
government actions?

• No
• Protected by 1st. Amendment