Com360: The First Amendment

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Com360 The First Amendment
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Freedom of Speech

• Free speech is a means to an end discovering
  the best idea possible.
• (social reasons)
• Free speech is also an end itself the desire
  for free expression, self-fulfillment.
• (individualistic reasons)

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The Case for Free Speech

• Discovery of Truth The pursuit of political
  truth through competition of ideas.
• A means of political participation.
• Check on Government The restraint on tyranny,
  corruption, and ineptitude.
• Social Stability The facilitation of majority
  rule.

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The marketplace theory

• The best test of truth is the power of the
  thought to get itself accepted in the competition
  of the market (Oliver Wendell Holmes)
• Freedom to think as you will and to speak as you
  think are means indispensable to the discovery
  and spread of political truth (Justice Louis
  Brandeis)

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Free expression and human dignity

• The First Amendment serves not only the needs of
  the polity but also those of the human spirita
  spirit that demands self-expression (Thurgood
  Marshall)
• Self-fulfillment
• Pleasure, Gratification
• Respect

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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
  peaceably to assemble, and to petition the
  Government for a redress of grievances.

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The First Amendment

• Ratified in 1791 as additional safeguards against
  central government
• Originally applied only to federal government
• Expanded to the states in Gitlow v. New York
  (1925). Decision based on the Equal Protection
  Clause of the 14th Amendment (Incorporation
  Doctrine) No state shall deny to any person
  within its jurisdiction the equal protection of
  the laws.

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What is Speech

• All forms of expressions
• The actual spoken/written communication
• Symbolic speech / Expressive conduct to convey a
  message

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Symbolic speechCohen v. California (1971)

• FactsA 19-year-old man expressed his opposition
  to the Vietnam War by wearing a jacket emblazoned
  with "FUCK THE DRAFT. STOP THE WAR"
• He was convicted under a California statute that
  prohibits "maliciously and willfully disturbing
  the peace and quiet of any neighborhood or person
  by offensive conduct."

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Cohen v. California (1971)

• Question Presented Did California's statute
  violate freedom of expression rights?
• Conclusion Yes. The expletive, while
  provocative, was not directed toward anyone The
  Court recognized that "one man's vulgarity is
  another's lyric." In doing so, the Court
  protected two elements of speech the emotive
  (the expression of emotion) and the cognitive
  (the expression of ideas).

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What about burning draft cards?

• United States v. OBrien 1968
• Not protected by the First Amendment
• A sufficiently important governmental interest in
  regulating the nonspeech element (the card
  assists in administrative procedures).

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Symbolicspeech
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R.A.V. v. City of St. Paul 1992

• Displays containing abusive invective, no matter
  how vicious or severe, are permissible as long as
  they dont provoke violence etc.

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Flag burning
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Texas v. Johnson (1989)

• During the protests against the Republican
  National Convention in Dallas in 1984 Gregory
  Johnson set on fire a national flag.
• He was convicted under Texas criminal statute
  making it is a criminal offense to desecrate a
  state or national flag.
• He was sentenced to one year in prison and a fine
  of 2,000.

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Texas v. Johnson (1989)

• The Supreme Court was divided 5-4 in the decision
  but ruled for Johnson.
• It ruled that the desecration was expressive
  conduct. Thus, Texas statute prohibited
  expressing ideas, not desecration and thus was
  not permissible.

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United States v. Eichman 1990.

• The Federal Flag Protection Act adopted in
  response to Texas v. Johnson is unconstitutional
  under the first Amendment.

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(No Transcript)
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Chaplinsky v. New Hampshire (1942)

• Facts Chaplinsky called a city marshal a
  "God-damned racketeer" and "a damned fascist" in
  a public place. He was convicted under a state
  law for violating a breach of the peace.
• Question Does the statute violate his freedom
  of speech rights?
• Conclusion No. Some forms of expression--among
  them obscenity and fighting words--do not convey
  ideas and thus are not subject to First Amendment
  protection.

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Prior RestraintNear v. Minnesota (1931)

• Prior Restraint (censorship) Prohibition of
  speech before the fact
• The Case of Near v. Minnesota Any system of
  prior restraints of expression comes to this
  Court bearing a heavy presumption against its
  constitutional validity

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Prior Restraint other methods of censorship

• Licensing (excessive requirements/unequal)
• Informal Coercion (warnings)
• Financial burdens (e.g., tax on certain
  publications, extra fees, limiting payments, etc.)

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Punishment After the Fact

• More likely than Prior Restraint, but still very
  unusual.
• Will be covered in greater detail in later
  chapters

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Compelled Speech

• Media Access
• Compelled Financial Support (e.g., union dues)
• Attribution Requirements
• Time, Place, Manner Restrictions

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Standards of judicial review

• Minimum Scrutiny
• Rational Standard / Legitimate Interest
  requires the law to be reasonably related to a
  legitimate state interest.
• Intermediate Scrutiny
• Important governmental interest requires the
  law to be substantially related to an important
  government interest
• Strict Scrutiny
• Compelling governmental interest the law must
  be narrowly tailored to address a compelling
  state interest.

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Strict Scrutiny

• The highest standard of judicial review. To pass
  strict scrutiny, the law or policy
• 1. must be justified by a compelling governmental
  interest
• 2. must be narrowly tailored to achieve that goal
  or interest
• 3. must be the least restrictive means for
  achieving that interest