Theories Behind Freedom of Expression

1
Theories Behind Freedom of Expression

• Attainment of truth
• The free exchange of ideas allows people to get
  their message out.
• Free speech contributes to democratic government
• By allowing people to participate in the
  political debate
• Check on government power
• By allowing people to criticize the government
• Allows power transitions with stability
• By allowing people seeking influence to do so
  peacefully through speech
• Individual fulfillment

2
Constitutional Provisions and Government
Regulation of Speech

• The first Amendment, of course, is the source of
  the free speech right.
• The First Amendment applies to the states through
  the due process clause of the Fourteenth
  Amendment.
• The Fifth Amendment also guarantees some aspects
  of free speech through its criminal procedure
  protections and due process clause.
• As a general principal, the constitutional
  protections apply only to government action.
  Unless made illegal by law, a private company or
  landowner can stifle speech in its office or on
  its property.

3
Regulation of Politically Motivated Speech

• This is the hardest speech for the government to
  regulate.
• For content-based restrictions, the regulations
  must pass strict scrutiny.
• For content-neutral restrictions, the
  restrictions (sometimes referred to as time,
  place and manner restrictions ) serve an
  important government purpose but leave open other
  adequate methods to communicate the ideas.
• Any law that limits speech is invalid if it is
• too vague for a reasonable person to understand
  what speech is allowed and what is prohibited or
  if it is
• Overbroad in that it prohibits speech that is
  protected by the Constitution in addition to
  speech that is not

4
Examples of Laws Struck Down forVagueness or
Overbreadth

• Communications Decency Act, which prohibited
  peddling indecency to children, was struck down
  because
• 1) It was too vague as to what indecency meant
  and
• 2) It was overbroad because it prohibited
  indecent expression by adults in some cases as
  well.
• A U. of Michigan policy prohibiting racist or
  sexist speech in certain contexts was vague and
  overbroad.

5
Speech that is not Protected

• Incitement
• If its intended to cause imminent lawless action
  and is likely to cause such imminent lawless
  action.
• Obscenity
• Certain forms of commercial speech
• Commercial speech is protected, but not to the
  same extent as politically motivated speech.
• Fighting words and threats
• These are basically irrelevant because laws that
  prohibit these are usually too vague or
  overbroad.
• Defamation
• Prohibited speech whose prohibition passes strict
  scrutiny

6
Rights Included in Freedom of Speech

• Politically motivated speech (as discussed)
• Publishing any material that can be said orally
• Freedom of Association
• Even if that association is based on
  discrimination or hatred
• Receiving information
• The First Amendment also protects the rights of
  people to read and hear what others have to say.
• Soliciting funds
• Though this can be, and often is, subject to
  reasonable time, place and manner restrictions
• Freedom from being compelled to speak
• i.e.. Children may refrain from citing the pledge
  of allegiance in public school if they so choose.

7
Speech Restrictions in Public forums

• This is the hardest place to regulate speech.
• As discussed before, content-based regulations
  here require the regulation to pass strict
  scrutiny.
• What is a public forum?
• Anything publically owned, including
• Streets and parks
• Public schools and universities
• The airwaves and newspapers and the internet
• The government is under no duty to fund speech,
  but once it does so, it must do so in a
  viewpoint neutral manner.

8
Speech Restrictions in non-Public forums

• What is a non-public forum?
• Any place that is not traditionally reserved for
  the exchange of ideas including
• Public airports
• Most government buildings
• Military bases
• In a non-public forum, the government may
  institute content-based restrictions, as long as
  they are viewpoint neutral.
• Regarding private forums (privately owned malls
  and stores, etc.), theres no freedom of speech
  so the government can enforce a private property
  owners demand that speech not take place on his
  or her property.

9
Free Speech Application to Others (1)

• Government Employees
• A government employee may accept payment for
  speaking.
• However, the government can restrict employees
  from revealing confidential information, like any
  other employer.
• Government officials or employees can be
  restricted in terms of their political
  participation while holding a government job.
• Whistleblowers are protected under general
  federal laws.
• Students
• There is freedom of speech for public school
  students, though it is more limited.
• It can be prohibited if it is disruptive,
  obscene, etc.
• School publications can be censored in the best
  interest of all students.
• Even off-campus speech can be punished if it is
  disruptive.

10
Free Speech Application to Others (2)

• Corporations
• Enjoy similar free speech rights as individuals,
  including news networks, etc.
• Commercial speech can be limited by some
  advertising rules or the SEC, FDA, etc.
• Press
• They enjoy basically the same free speech rights
  as individuals and get some extra protections
  (especially in defamation suits).
• Broadcasters
• If they use public airwaves, their content can be
  restricted more than individuals and they must
  follow FCC rules.

11
Free Speech Application to Others (3)

• Cable Operators
• Often not subject to FCC rules because they dont
  use public airwaves.
• Still, their freedom of speech is more limited
  than publishers.
• Telephone companies
• In todays day and age, theres little difference
  between them, and cable companies, and
  individuals, as theyre not regulated monopolies
  like they once were.
• Internet
• Users enjoy the full freedoms available to any
  communication. It cannot be regulated like
  over-the-air television.