OConnor and Sabato: Chapter 4: Civil Liberties

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OConnor and SabatoChapter 4 Civil Liberties

• Presentation 4.2 Freedom of Expression

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Key Issues

• A Brief History of Free Speech
• Anti-Governmental Speech
• Obscenity Pornography

• 4. Libel and Slander
• 5. What Types of Speech are Protected?
• Prior Restraint
• Symbolic Speech
• Speech After 9/11

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A Brief History of Free Speech

• Democracy requires the free interchange of ideas
• Democracy and the problem of passionate
  majorities
• Using the power of government to suppress dissent
• Freedom of speech and the press are not absolute

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1i) The Courts Hierarchical Approach to Freedom
of Expression

• The Supreme Court has tended to protect the most
  ambiguous expressions the most, and the most
  concrete expressions the least
• Thoughts receive the greatest protection
• Actions receive the least protection
• Words fall somewhere in between
• Content and purpose are crucial in determining
  states right to punish someone

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1ii) History of Free Speech cont.

• Upon ratification, the 1st Amendment was viewed
  solely as protection against prior restraint
• Govt. cannot prohibit speech or publication of
  material before the fact
• Over time, the meaning of the 1st Amendments
  free speech mandate has been subject to
  interpretation

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1a) Attempts to Limit Speech

• The Court has generally prohibited most
  governmental bans on most varieties of speech
• However, some forms of expression are not
  protected
• In 1942, the Court attempted to distinguish b/n
  constitutionally protected and unprotected speech

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1ai) Unprotected Speech

• Obscenity, lewdness, libel, and fighting words
  are not protected by the 1st Amendment
• Such expressions are no essential part of any
  exposition of ideas, and are of such slight
  social value as a step to truth that any benefit
  that may be derived from them is clearly
  outweighed by the social interest in order and
  morality

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1b) The Alien and Sedition Acts

• 1798 crisis stemming from a foreign conflict with
  France rising domestic criticism of the Adams
  administration
• The Federalist-controlled legislature passed the
  Alien Sedition Acts
• Made any false, scandalous writing against the
  government of the U.S. a criminal offense

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1bi) The Problem with Sedition

• The object of criticism (govt.) is put in the
  position of distinguishing between legitimate
  illegitimate criticism (sedition)
• The existence of such a legal prohibition of
  political speech has a chilling effect on
  political discourse
• The act also politicized the judiciary partisan
  federalist judges imposed fines and jail
  sentences on newspaper editors who published
  criticisms of federalist policy

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1bii) The Fate of the Alien Sedition Acts

• Thomas Jefferson vocally opposed the laws
• The acts became a major campaign issue in the
  1800 elections
• Jeffersons party won a crushing victory over the
  Federalists, and allowed the law to lapse

Jefferson attempted to use impeach several
federalist judges, but failed
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2) Anti-Governmental Speech

• There were no systematic efforts prior to 1917 to
  restrict freedom of speech and the press until
  passage of the Espionage Act
• Lincoln did jail editors who expressed southern
  sympathies during the Civil War
• During WWI, nearly 2,000 Americans were convicted
  of violating provisions of the Espionage Act

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2a) Schenck v. U.S. (1919)

• The Court interpreted the 1st Amendment to allow
  Congress to restrict certain kinds of speech
• Speech designed to create a clear and present
  danger that will bring about the substantive
  evils that Congress has a right to prevent
• Ex anti-war leaflets may be permitted in times
  of peace, but not in wartime

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2b) Brandenburg v. Ohio (1969)

• The Court was troubled by what constituted a
  danger
• Created a new test in 1969 called the direct
  incitement test
• Mere advocacy of illegal action was protected by
  the 1st Amendment except when imminent lawless
  action is intended and likely to occur

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3) Obscenity Pornography

• Obscenity as anything disgusting, foul or
  morally unhealthy
• The problem with pornography
• Not necessarily obscene
• The impossibility of distinguishing pornography
  from art
• Pornography became a political issue in the 1968
  presidential campaign

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3a) Miller v. California (1973)

• The Court attempted to establish a test for
  determining when pornographic material was
  obscene
• Conclusion courts must determine whether the
  work depicts or describes, in a patently
  offensive way, sexual conduct specifically
  defined by state law
• Does the work , taken as a whole, lack serious,
  literary, artistic, political, or scientific
  value?
• Community standards generally prevail

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3b) Two Particular Issues

• The federal funding of the arts
• National Endowment of the Arts (NEA) funding of
  controversial works of art
• The Maplethorpe Exhibit
• The distribution of obscenity pornography on
  the Internet
• Communications Decency Act (1996) banned sending
  indecent acts to anyone under 18
• Reno v. ACLU (1997) ruled the act unconstitutional

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3bi) The Problem with ObscenityThe Case of
Robert Maplethorpe

• At right part of the Maplethorpe portfolio
• Is this photograph obscene?
• If so, can you offer reasons why it constitutes
  obscenity?

Picture courtesy www.jornada.unam
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3bii) The Problem with Obscenity The Connection
Between Art and Obscenity

• Is this painting, by Peter Paul Reubens, obscene?
• If so, then much of the art of the Renaissance
  should have been suppressed
• Obscenity, like beauty, is in the eye of the
  beholder

Picture courtesy www.interesting.com
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3bi) Child Online Protection Act (1998)

• Broadened the definition of pornography
• Included computer-generated images rather than
  actual involvement
• Targeted material deemed harmful to minors
  based on community standards (which community?)
• Ashcroft v. Free Speech Coalition (2002) struck
  down as too vague

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4) Libel and Slander

• Concern that freedom of the press be protected
• However, the press can be sued after the fact for
  untrue or libelous statements
• Libel a written statement that defames the
  character of a person
• Slander Untrue defamatory spoken statements
• Truth is an absolute defense against a libel
  charge

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4a) Why is it So Hard to Win a Libel Suit?

• New York Times v. Sullivan (1964)
• Segregationists in AL were attempting to destroy
  a civil rights group created by Martin Luther
  King, Jr.
• In response to police coercion, the group ran
  advertisements in the New York Times for help
  from northern African-Americans
• AL officials sued the group and the NYTimes for
  minor inaccuracies in the advertisement
• Central issue can inaccurate statements justify
  a libel verdict

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4ai) The Actual Malice Standard

• The Court believed that AL officials were more
  interested in violating the free speech rights of
  protesters than in protecting their own
  reputations
• Concluded that inaccuracies were not sufficient
  to sustain a libel verdict
• Plaintiffs must prove that a published report was
  motivated by actual malice
• Today the standard includes knowledge of
  falsity and reckless disregard of the truth

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5) What Types of Speech are Protected?

• The Supreme Court takes a strict scrutiny view
  of prior restraint
• Generally presume that all censorship prior to
  the fact is unconstitutional
• Other types of speech are protected as well

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5a) Prior Restraint

• The Court has ruled that in instances of conflict
  between fundamental values like freedom of speech
  and national security, freedom of speech wins
• Any attempt by govt. to prevent freedom of
  expression carried a heavy presumption against
  its constitutionality

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5ai) New York Times Co. v. United States (1971)

• A State Dept. official leaked the Pentagons
  secret intelligence estimate of the conduct of
  the war in Vietnam
• The Nixon administration attempted to prevent
  their publication by the NYTimes, arguing
  national security concerns
• The Court argued that the public had a right to
  know how the war was going that outweighed any
  threat to the national security

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5aii) Daniel Ellsberg Patriot or Traitor?

• State Dept. official who leaked the Pentagon
  Papers to the NYTimes
• Publication helped turn public opinion against
  the war
• Act was at once one of conscience illegal

Picture courtesy www.hrcr.org.
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5b) Symbolic Speech

• The 1st Amendment also protect symbols, signs and
  other methods of expression
• The Court first acknowledged symbolic speech in
  1931

Protesters burning the American flag at the
Democratic National Convention in Chicago.
Picture courtesy www.theodora.com
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5bi) Texas v. Johnson (1986)

• Gregory Johnson burned an American flag during
  the 1984 GOP Convention
• Violated a TX statute that banned burning the
  American flag
• By a 5-4 vote, the Court ruled that the TX law
  was an unconstitutional infringement of free
  speech
• Freedom of expression includes the right to say
  unpopular things

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5c) Speech After 9/11

• Freedom of expression has been less vigorously
  protected in the aftermath of the Trade
  Towers/Pentagon bombings
• Several television commentators lost their jobs
  for criticizing Pres. Bush or U.S. foreign policy
• Universities creation of free speech zones
  that restrict how students professors may speak
  politically

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5ci) The Cost of FreedomThe Case of Bill Mahr

• Mahr lost his late night TV show Politically
  Incorrect on ABC
• Argued it was cowardly for the U.S. to bomb
  hostile countries from the air
• The show lost sponsors after the show aired, and
  ABC pulled it shortly thereafter
• How important is freedom of speech to you?

Picture courtesy www.salon.com