Freedom of Speech and Freedom of Press

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Freedom of Speech and Freedom of Press

• Roy L. Moore

Fall 2003
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The First Amendment

• The First Amendment Congress shall make no law
  respecting an establishment of religion, or
  prohibiting the free exercise thereof or
  abridging the freedom of speech, or of the press
  or the right of the people peaceably to assemble,
  and to petition the Government for a redress of
  grievances.
• Ratified December 15, 1791 -- three years after
  constitution ratified.

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The Big Question

• Why Dont Laws Punishing Invasion of Privacy,
  Libel and Other Civil Offenses (Torts) Violate
  the U.S. Constitution?
• Lets look first at what is law?

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Sources of Law A Hierarchy

• Constitutional -- The U.S. Constitution and state
  constitutions
• Statutes (federal, state and local)
• Administrative law (federal, state and local)
• Common law (state and local)
• Equity law

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The U.S. Constitution

• Supreme law of the land
• Supreme Court (SCOTUS) is final arbiter, thanks
  to Marbury v. Madison (1803).
• Can be amended but requires cumbersome and long
  process outlined in the Constitution itself

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Does no not mean no?

• In a word, NO!
• 1st Amendment clearly says no law BUT
• No clear direction from Founding Fathers re
  meaning

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200 Years Make a Difference

• Historical evidence (diaries, letters. Essays,
  etc.)
• Judicial precedents (stare decisis)
• Evolving judicial philosophies
• Generally Accepted Conclusion (GAC) 1st
  Amendment protects some forms of speech more than
  others

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Top in Protection (BUT NOT ABSOLUTE)

• Political Speech uninhibited, robust and
  wide-open public debate (in words of former
  Justice Wm. Brennan)
• Religious Speech
• Some forms of consumer information

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Some Protection (BUT NOT FULL)

• Commercial Speech, especially unfair, deceptive,
  misleading and fraudulent speech

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Little or No Protection

• Obscene speech
• Indecent speech (varies with context)
• Libel, especially when published with actual
  malice malice
• Speech harming national security

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Gitlow v. New York (1925) Applying No. 1 through
No. 14

• SCOTUS upheld conviction of Gitlow for
  distribution of 16,000 copies of a publication of
  the radical left-wing of the socialist party.
  Court said no 1st A. violation because statute
  did not punish communication of abstract doctrine
  or academic discussion but punished language
  implying encouragement of action. SCOTUS,
  however, did say that 1st A. DID apply to states
  through the 14th A.

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Near v. Minnesota (1931)

• 5-4 decision struck down state statute as
  unconstitutional that allowed authorities to ban
  publication of any obscene, lewd and lascivious
  ... or malicious, scandalous, and defamatory
  newspaper, magazine, or other periodical as a
  public nuisance.
• According to Court, it is generally agreed that
  the chief purpose of the First Amendment is to
  prevent prior restraint.

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Exceptions to Prior Restraint

• National security, especially during wartime
  (obstruction to recruiting and publication of
  sailing dates of transports or the number and
  location of troops)
• Obscene publications
• Fighting words (security of community life may be
  protected against incitements to acts of violence
  and the overthrow by force of government) breach
  of peace .

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Theories of Free Speech (purpose of 1st A.)

• Nimmer enlightenment function (informed speech)
• J. Holmes free marketplace of ideas continuing
  quest for truth more speech (even bad speech)
  is better
• Alexander Meiklejohn free speech allows
  intelligent choices by voters in a self-governing
  democracy (primary purpose of 1st A. protect
  political speech)
• Obscenity (no protection) (Miller v. California)
  ( 1973) .

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New York Times v. Sullivan (1964)

• Landmark SCOTUS decision established new libel
  defense known as constitutional privilege
• Thanks to First Amendment, public officials
  (three years later extended to public figures)
  MUST demonstrate ACTUAL MALICE
• Reckless disregard for truth or
• Knowledge of falsity
• when suing media defendants
• SCOTUS said ad was editorial advertisement, not
  commercial speech per se (see ad)

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Symbolic Speech Flag Burning and Cross Burning I

• U.S. States v. OBrien (1968) SCOTUS, applying
  an intermediate level of scrutiny test
  (substantial government interest), upheld a
  conviction for draft card burning on ground that
  govt. had vital interest in setting up a draft
  system and the destruction of a registration card
  interfered with that system.
• Cohen v. California (1971) SCOTUS reversed
  conviction of man for wearing a jacket with the
  words, F the Draft in corridor outside the
  courtroom.

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Symbolic Speech Flag Burning and Cross Burning II

• Texas v. Johnson (1989) and U.S. v. Eichman
  (1990) SCOTUS, in 5-4 decision struck down a
  state and a federal flag burning statute that
  provided criminal penalties for desecrating the
  U.S. flag as violating the 1st A. AS APPLIED
  in the two cases. Court said such acts were
  symbolic speech.
• RAV v. City of St. Paul (1992) SCOTUS
  unanimously ruled that a city ordinance
  criminalizing the placing on public or private
  property any symbols, graffiti, etc. that one
  knew or had reasonable grounds to know would
  arouse anger, resentment or alarm in others on
  the basis of race, color, creed, religion or
  gender.

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Symbolic Speech Flag Burning and Cross Burning
III

• But last April in Virginia v. Black (2003),
  SCOTUS, in 6-3 decision held that states may
  outlaw cross-burnings that are clearly intended
  to intimidate. Such statutes do not violate the
  1st A., according to the Court, which upheld the
  conviction of two men who burned a cross in a
  familys yard without permission BUT overturned
  the conviction of a KKK leader who had burned a
  cross at a rally on a willing owners property on
  a technicality. The statute, as written at that
  time but since revised, said any cross-burning on
  its face was evidence of intent to intimidate.

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Conclusions What does this tell us about the
First Amendment ?

• Not absolute
• Government has heavy burden in justifying
  restrictions, especially prior restraint
• Evolving with the Court and with the times
• Some forms of communication and some content such
  as political and religious speech have broader
  protection than others
• Courts, including SCOTUS, are more likely to
  strike down restrictions on speech than on the
  press