Title: 1st Amendment Speech
11st 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
2Speech 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.
3Speech 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.
4Blasphemy
- 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). -
5Heresy
- 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.
6A 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
7Press 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.
8Prior 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.
9Attempts 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.
10Speech 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.
11Anti-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.
12Espionage 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.
13Debs 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.
14Subsequent 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.
15Clear 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.
16Osmai 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.
17Libel 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.
18Obscenity 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.
19Obscenity
- 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.
20Miller 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.
22Supreme 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.
23What 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
24Flag 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).
25Speech Press
- Vagueness such laws have a "chilling effect"
because no one knows what is or is not allowed.
26Speech 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 ).
27McCain-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.
28Contribution 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/
29Speech Press
- Fighting words illegal - can injure provoke
some to attack, injure, kill, destroy property
of others. - merely harsh, abusive, insulting words not enough.
30Assembly
- 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.
31National 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.
32Assembly Speech
- National Socialist Party of America v. Skokie 77
- Protests ok.
- Government decides time, place, manner, permit,
to preserve order.
33Religious 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