1st Amendment Speech

1
1st Amendment Speech PressThe Right to Offend,
but not Injure!

• We cherish freedom to communicate ideas. From
  this has come religion, science, literature,
  commerce, art, politics.
• Ideas are powerful new ideas have always been
  resisted in history.
• fear of punishment stifles ideas one even
  suspects might be condemned

2
Speech Press

• Intolerant stop ideas by killing advocates.
• Belief earth revolves around sun results in death
  penalty.
• Thomas Paine did not believe in literal truth of
  Bible vilified.
• Advocate political/social improvements in England
  result in trials by ordeal, torture by the church
  courts, death or imprisonment.

3
Speech Press

• Ideas do incite some to right injustice, others
  riot for wrong.
• The constitution establishes a line between
  speech/press that advances society that which
  is destructive.
• Merely because an idea is controversial may be
  disputed or lead to change ... like God is dead,
  or advocating birth control, or allowing women
  rights, or stating earth is round not center of
  universe ... is not to say it is legally
  destructive speech/press.

4
Blasphemy

• Artist shows Jesus in bottle of urine at an art
  museum, or the artist who showed Jesus holding a
  box of Wheaties in a cartoon of the Last Supper.
• At an earlier time in U.S. history, such would
  have condemned the perpetrator to death, or
  imprisonment as heresy or blasphemy. If any
  contradict religious teaching (like Galileo or
  Bruno, or merely making statements such as
  Jesus was NOT born on December 25 would land
  the person in legal trouble, but also all of his
  relatives (corruption of blood).

5
Heresy

• 2005 Danish satirical artist Kurt Westergaard
  published cartoon showing Mohammed with a bomb in
  his turban caused Muslim rioting around the
  world given death fatwah. 2/12/08 3
  Islam-o-terrosits captured in Denmark planning to
  murder Westergaard.
• Author Rusdies book Satanic Verses criticizes
  Islam given death fatwah.

6
A Balance

• In their attempt to draw the line separating
  permissible from impermissible speech, judges
  have had to balance freedom of expression against
  competing values like
• public order
• national security
• the right to a fair trial

7
Press Censorship

• Near v. Minnesota 1931
• Near, editor of Saturday Press muckraking
  newspaper with anti-Semitic, anti-Black,
  anti-Catholic, anti-labor views.
• Paper closed under state law prohibiting
  malicious, scandalous, defamatory publications
  that cause public nuisance. It said Jewish
  gangster in control of Minneapolis crime police
  ignore criminal activity.
• SC - OK to criticize government demand redress
  of grievances without expecting that the power of
  government will be used to punish you.

8
Prior restraint (censorship)

• New York Times v. U. S., 1971 Nixon attempt to
  stop publication of Pentagon Papers about secret
  Vietnam War facts that would be embarrassing.
• Nixon "plumbers" felony burglary of Dan
  Ellsbergs doctors office.

9
Attempts to Limit SpeechThe Alien and Sedition
Acts (1798)

• These acts were designed to silence criticism of
  the government.
• They made it a criminal offense to publish any
  false, scandalous writing against the government
  of the United States.
• A new Congress allowed the acts to expire before
  the Supreme Court had a chance to rule on the
  constitutionality of the laws.

10
Speech During the Civil War

• During the Civil War, President Lincoln suspended
  the free press provision of the First Amendment.
• President Lincoln also ordered the arrest of
  editors of two New York newspapers. Congress
  supported him.

11
Anti-Governmental SpeechEspionage Act (1917)

• During World War I anti-German feelings ran high.
  Anything German was renamed sauerkraut became
  liberty cabbage.
• This law curtailed speech and press during World
  War I.
• The law made it illegal to urge resistance to the
  draft, and even prohibited the distribution of
  antiwar leaflets.
• Nearly 2,000 Americans were convicted under the
  Espionage Act.

12
Espionage Act (continued)

• The bad tendency test was used by the Court.
  Engaging in speech that had a tendency to induce
  illegal behavior was not protected by the First
  Amendment.

13
Debs v. United States (1919)

• In Debs the Court upheld the conviction of Eugene
  V. Debs (a Socialist candidate for the U.S.
  Presidency) because his anti-war speeches had the
  tendency to obstruct recruitment efforts.
• While serving his 20 year prison sentence he
  received nearly one million votes in the 1920
  presidential election!
• Debs was later pardoned by President Harding.

14
Subsequent punishment

• Justice Holmes defined the Clear and Present
  Danger test in Schenck v. U.S. 1919 the Supreme
  Court upheld the conviction of Schenck (a
  secretary of the Socialist Party) for interfering
  with the draft.
• Even the most stringent protection of free
  speech would not protect a man falsely shouting
  fire in a crowded theatre. Justice Holmes.
• Clear present danger doctrine - can stop
  speech, if words are used in circumstances are
  of such nature to create clear and present danger
  that they will bring about evils before there is
  an opportunity for discussion.
• MIAMI, Dec. 7, 2005 - Federal air marshals shot
  and killed a passenger on AA plane waiting to
  taxi after he ran yelling he had a bomb in his
  backpack.

15
Clear Present Danger

• Dennis v. U. S., 1951 (Seditious speech)
• Smith Act of 1941 prosecutes Communists who
  advocate violent overthrow of the U.S.
• 1949 Dennis 10 Communist leaders convicted for
  the illegal speech of "advocating violent
  overthrow.
• Dennis case upheld convictions but now Smith only
  applies to actually inciting producing lawless
  action. Sheik Abdul Rachman.

16
Osmai bin Laden

• Muslin Holy War against Americans.
• All efforts must be directed at this enemy
  America. Kill it, fight it, destroy it, break it
  down, plot against it, ambush it and God the
  Almighty willing, until it is gone.

17
Libel and Slander

• In 17th century England it was seditious libel to
  criticize the king or his ministers whether true
  or not...
• Libel is a written statement that defames the
  character of a person.
• Slander is spoken words that defame the character
  of a person.
• In the United States, it is often difficult to
  prove libel or slander, particularly if public
  persons or public officials are involved.
• New York Times v. Sullivan, 1964 a person
  cannot be made to pay damages for defaming a
  public official unless can prove actual malice
  that one knowingly or recklessly made the
  statement.

18
Obscenity and Pornography

• Efforts to define obscenity have perplexed courts
  for years. Public standards vary from time to
  time, place to place, and person to person.
• Work that some call obscene may be art to
  others. Justice Potter Stewart once said he
  couldn't define obscenity, but "I know it when I
  see it." The ambiguity of definition still exists
  and is becoming even more problematic with the
  Internet.
• No nationwide consensus exists that offensive
  material should be banned.

19
Obscenity

• The courts have consistently ruled that states
  may protect children from obscenity (Osborne v.
  Ohio, 1991), while adults often have legal access
  to the same material.
• Although the Supreme Court has ruled that
  obscenity is not within the area of
  constitutionally protected speech or press (Roth
  v. United States, 1957) it has proven difficult
  to determine just what is obscene.

20
Miller v. California (1973)

• Miller concerned bookseller Marvin Miller's
  conviction under California obscenity laws for
  distributing illustrated books of a sexual
  nature.
• In Miller, the Court's decision stated that
  obscene material is not protected by the First
  Amendment.

21
"Three-Pronged Test" for Obscenity

• In order to meet the definition of obscene
  material articulated in Miller, three conditions
  must be met
• whether the average person, applying contemporary
  community standards, would find that the work,
  taken as a whole, appeals to the prurient
  (unwholesome interest or desire) 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 a whole, lacks serious
  literary, artistic, political, or scientific
  value.

22
Supreme Court said 3/2000

• Not much talking goes on in gentlemen clubs
  where women wear only a smile while undulating to
  exotic music.
• Ruling states such does have limited
  constitutional protection, but is trumped when
  govts interest is in controlling negative
  secondary effects. Law restricting such is
  legal so long as law aimed at limiting crime that
  accompanies nude dancing and not the expressive
  act of nude dancing.

23
What Types of Speech are Protected?

• Symbolic speech--symbols, signs, and other
  methods of expression. The Supreme Court has
  upheld as constitutional a number of actions
  including
• An example of protected symbolic speech would be
  the right of high school students to wear
  armbands to protest the Vietnam War (Tinker v. De
  Moines Independent Community School District,
  1969).
• flying a communist red flag
• burning the American flag

24
Flag Burning

• Burning the American flag is a form of protected
  symbolic speech.
• The Supreme Court upheld that right in a 5-4
  decision in Texas v. Johnson (1989).

25
Speech Press

• Vagueness such laws have a "chilling effect"
  because no one knows what is or is not allowed.

26
Speech Campaign finance

• Buckley v. Valeo, 1976 Two competing values in
  regulating campaign
• (1) protecting free speech
• (2) preventing the appearance and actual
  corruption of political process.
• In past we have restricted what people give
  directly to candidates, (hard ) BUT, have not
  found a way to restrict what people spend on
  behalf of candidates, (soft ).

27
McCain-Feingold 2002

• Bars interest groups financed with corporate or
  union money from airing TV/radio ads month before
  primary and 2 months before general that
  ID/targets federal candidates district. Corp
  union cannot contribute to federal campaigns or
  national parties.
• News orgs exempt allows to cover
  endorse/oppose candidates air interviews.
  Movies, TV shows, and comedy monologues that
  feature federal candidates also exempt.
• FEC has allowed corporations to produce
  publications featuring federal candidates and
  violate ban on corporate contributions.

28
Contribution limits 2007

• Individual can give 2300 per election to each
  federal candidate (indexed for inflation in odd
  years).
• Individual can give a PAC 5,000 per year to each
  federal candidate.
• There are maximum annual limits. For details see
  http//www.fec.gov/

29
Speech Press

• Fighting words illegal - can injure provoke
  some to attack, injure, kill, destroy property
  of others.
• merely harsh, abusive, insulting words not enough.

30
Assembly

• NAACP v. Alabama 58
• Right of association with others of your
  choosing. Government has no right to demand
  membership list so it can go on fishing
  expedition to harass members.
• Healy v. James 72
• Student organizations protected in a similar way.

31
National Socialist Party of Americav. Skokie 77

• In the Chicago suburb of Skokie, 1 of 6 were
  Jewish citizens in the late 1970s who were
  survivors of Holocaust.
• But their safe haven shattered when a neo-Nazi
  group announced its intention to parade there in
  1977.
• The debate clear-cut American Nazis claimed the
  right of free speech while their Jewish "targets"
  claimed the right to live without intimidation.

32
Assembly Speech

• National Socialist Party of America v. Skokie 77
• Protests ok.
• Government decides time, place, manner, permit,
  to preserve order.

33
Religious free speech?

• 11/01  The Westboro Baptist church in Kansas was
  found liable for invasion of privacy and intent
  to inflict emotional distress and jurors awarded
  Snyder (parent of Marine killed in Iraq) 2.9
  million in compensatory damages and 8 million in
  punitive damages because the church picketed
  funerals of Iraq war dead with placards bearing
  such slogans as Thank God for dead soldiers"
  and "God hates fags.
• http//abcnews.go.com/US/wireStory?id3803459