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1st Amendment Speech

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Speech During the Civil War ... Flag Burning. Burning the American flag is a form of protected symbolic speech. ... Corp & union cannot contribute to federal ... – PowerPoint PPT presentation

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Title: 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
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