Chapter 4
Freedom of Expression
Fundamental Facts About Civil Liberties
No freedom is ABSOLUTE (w/o limits)
Courts must balance one person’s claims of
liberty against countervailing claims of liberty (or
rights) of other individuals or “society” expressed
in an exercise of the state’s “police powers” , i.e.,
the power to enact legislation for the promotion or
protection of society’s health, safety, morals, or
general welfare.
The most fundamental liberties are those listed in
the 1st Amendment
No court [not withstanding individual judges] has
ever interpreted the words of the 1st Amendment
absolutely literally.
Gitlow v N.Y., 1925
Chaplinsky v N. H., 1942
“Fighting
Words”
Sedition
Protected Speech
Obscenity &
Pornography
Libel/Slander
Freedom of Expression
Unprotected speech/expression

Evolving definitions of sedition –
Schenk v U.S. – “clear and present danger”
Gitlow v N.Y. – “bad tendency test”
Dennis v U.S. – “clear and probable danger”

Mislabled – “clear though improbable danger”
Brandenburg v Ohio – “incitement to
imminent lawlessness”
4-4b
Unprotected speech/expression

Evolution of slander/libel
Prior to 1964 – state laws vary, but "strict
liability" [i.e., any false statement was libelous
per se], and "presumed damages" [i.e., no proof
required by plaintiff] were common features.
Truth only defense.
N.Y. Times v. Sullivan (1964)

actual malice standard for public officials
Curtis Pub. Co. v. Butts and Assoc. Press v.
Walker (1967) – public figures must show
"highly unreasonable conduct" by press [i.e.,
flagrant disregard for normal standards of
journalistic professionalism]
4-4b
Unprotected speech/expression

Evolution of slander/libel
1971 Rosenbloom v. Metromedia [a fragmented Court/plurality
opinion]-- even private individuals involved in events of
"general or public interest" must show "actual malice;" [made
libel laws nearly meaningless].
Time, Inc. v Firestone (1976)

Private person must "voluntarily thrust" himself into a “public
controversy,” to be treated as a public figure for libel action
purposes; it is not merely someone who has been caught up in
events that may be deemed "newsworthy.“
Herbert v. Lando (1979) – libel plaintiff has right to information
relating to the journalistic "editorial process" in order to prove
"actual malice.“
Masson v. New Yorker Magazine, Inc. (1991) – a writer who
alters or fabricates statements made by the subject of an
interview, then passes them off as direct statements (by the
use of quotation marks around the statements) may be guilty
of actual malice.
4-4b
Freedom of Expression
Unprotected speech/expression


Sedition –speech which “incites hearers
to immediate illegal action”
Slander/libel –
actual malice standard for public officials
and public figures [knowingly saying or
publishing false information]
Private person must only show “fault”

4-4b
Obscenity/Pornography
Freedom of Expression
Unprotected speech/expression

Obscenity/Pornography
pre-1934 U.S. courts follow English common law
doctrine [known as Hicklin rule] which defined
matter obscene if it "tends to deprave and corrupt
those whose minds are open to such immoral
influences, and into whose hands a publication of
this sort might fall."
 1934 U.S. v. One Book Entitled Ulysses -- [2d
Circuit Court of Appeals] -- test for obscenity is
the "dominent effect" of the material, not
isolated passages, scenes, etc.
4-4b
Freedom of Expression
Unprotected speech/expression

Obscenity/Pornography
1957 Roth v. U.S./Alberts v CA – [1st Supreme
Court case on obscenity] --something is obscene
if,

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

4-4b
"to the average person,
applying contemporary community standards,
the dominant theme of the material taken as a whole
appeals to prurient interests."
Over the next 16 years and dozens of cases a
fragmented the Court could produce no majority
opinion, only plurality opinions; plurality opinions
have no value as precedents!]
Potter Stewart’s lament
Freedom of Expression
Unprotected speech/expression

Obscenity/Pornography
Miller v CA (1973)
Three-tiered test



4-4b
the average person, applying contemporary community
standards, finds the material taken as a whole appeals to
prurient interests [“community” allows for at least state
by state variations]
the work depicts/describes “in a patently offensive way,”
sexual conduct specifically defined by the applicable
state law
the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value
Unprotected speech/expression

Obscenity/Pornography: Child pornography
issues
Protection of children from exposure/exploitation




4-4b
FCC v Pacifica Foundation (1978)
The context of speech matters
Broadcast media never accorded same 1st Am
protection as print media
Court emphasized narrowness of ruling – more a
“time, place, manner” than truly content-based
NY v Ferber (1982) – bans use of children
Reno v ACLU (1997)
Bases for distinguishing this case from “precedents”
“Overbreadth” doctrine
Ashcroft v Free Speech Coalition (2002): can’t ban
“virtual depiction” of children
Unprotected speech/expression


Obscenity/Pornography
What constitutes government censorship?
National Endowment for the Arts v Finley (1998)



4-4b
O’Conner’s opinion rejects the “facial invalidity”
challenge of Finley by neutering the interpretation of the
challenged statute
Also leaves the door open for later challenges to funding
decisions by stating that “. . . the 1st Am. certainly has
application in the subsidy context . . . ”
Scalia’s concurring opinion
“The operation was a success but the patient died.”
1st Am. irrelevant in gov’t. subsidy context – it
prohibits gov’t abridgement of freedom, but does not
compel evenhandedness of promotion
Freedom of Expression
Unprotected speech/expression




Sedition –speech which “incites hearers to
immediate illegal action”
Slander/libel – actual malice standard
[knowing saying or publishing false
information]
Pornography – Roth & Miller tests
Fighting words – still exists in theory, but
essentially a dead letter
“Hate speech”
4-4b
Freedom of Press

Near v MN (1931)
Freedom from prior restraint
Limits on that right

NY Times v U.S. (1971)
“Strict scrutiny” standard of review



4-4b
Reverse normal presumption of validity of gov’t. action
Reverse “burden of proof”
“Compelling interest” standard (see pp. 100-01) and
features on website)
Symbolic expression – “speech plus” or
substitute speech

Texas v Johnson (1989)
The O’Brien test (U.S. v O’Brien, 1968, p. 138 & 179)




Within government’s constitutional power
Furthers an important or substantial gov’t. interest
That interest is unrelated to suppression of free expression
The incidental restriction on expression is no greater than
essential to the furtherance of that interest
Texas law fails test

Barnes v Glen Theater (1991)
Application of O’Brien test
Indiana law passes test
4-4b
The Right to Assemble and Petition
Can be limited by municipalities’ police
power to maintain public order


May require permits to regulate the “time,
place, and manner” of public demonstrations,
assemblies, marches, etc.
Such regulation can only be justified by
“public safety” concerns and may NOT
extend to the purpose of the march or
demonstration, nor the content of signs,
speeches, etc.
Edwards v SC (1963)
4-6
The Right to Assemble and Petition
Can be limited by municipalities’ police
power to protect “non-public access”
areas of public property

4-6
Adderley v FL (1966)
The Right of Expressive Association
Extension of right of assembly, speech,
religion

Boy Scouts of America v Dale (2000)
What state police power is involved?
What is the standard by which expressive
associational rights trumps anti-discrimination
statutes?
4-6