Free Speech and the Supreme
Court
GOVT 2305
Here we pick up from the where the
section on the development of the
freedom of speech left off.
We’ve determined that speech cannot
be restricted if it poses no harm, but
its not that easy sometimes to
determine if speech does and does not
pose harm.
Its up to the Supreme Court to
make that determination.
So in this section we turn to that
institution and look at the types of
disputes it has chosen to hear and
how it has ruled on them.
These Folks
When we covered the Supreme Court before, we
mentioned that since the composition of the court
changes, its rulings can change as well. What counts as
“speech” and what speech is protected can vary.
Generally it does not do so often. Many of its rulings
can establish precedence that solidifies the meaning of
terms and the extent of governmental power for a
period of time.
But these can change. Even when the court issues an
opinion about a specific matter, there can be internal
debate about the issue.
That’s a long winded way of saying
that determining the extent of the
freedom of speech is very
controversial.
And as we will see, over the past
century the court has become
more protective of free speech.
Click here for a
story about Upton
Sinclair’s arrest for
reading the First
Amendment before
a crowd in
California.
Members of the court can have
different philosophies when it
comes to determining how to
address the freedom of speech.
(Note by the way that the freedoms of speech and press are
often considered together – they overlap substantively)
Remember that the freedom of speech was
added to the Constitution as an amendment
because the drafters of the Constitution did not
think it necessary to do so. The Anti-Federalists
did and in the state conventions made its
addition as an amendment necessary.
Click here for an blog post on that subject.
And click here for related readings – from that
time period – in the Founders’ Constitution.
There are different schools of thought regarding
how to interpret the Constitution. We’ve
discussed this before. These go under labels like
original intent, textualism, and the living
constitution – among others.
The simple way to put this is that some argue
that issues related to free speech should be
settled based on circumstances around the
drafting of the document. Others argue that
changes over time force us to rethink speech in
light of those changes.
I’ll try to make those disputes
apparent as we proceed.
You might find is useful to see how
these controversies are addressed
in these two websites:
The First Amendment Center
The Bill of Rights Institute
If you feel ambitious, here’s an
online version of Freedom of
Expression in the Supreme Court:
The Defining Cases.
These class notes might also be
helpful.
Here’s a quick look at what the
Freedom of Speech does and does
not cover according the United
State Courts.
It’ll help guide what follows.
Freedom of speech includes the right:
Not to speak (specifically, the right not to salute the flag).
West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
Of students to wear black armbands to school to protest a war (“Students do not
shed their constitutional rights at the schoolhouse gate.”).
Tinker v. Des Moines, 393 U.S. 503 (1969).
To use certain offensive words and phrases to convey political messages.
Cohen v. California, 403 U.S. 15 (1971).
To contribute money (under certain circumstances) to political campaigns.
Buckley v. Valeo, 424 U.S. 1 (1976).
To advertise commercial products and professional services (with some restrictions).
Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976); Bates v.
State Bar of Arizona, 433 U.S. 350 (1977).
To engage in symbolic speech, (e.g., burning the flag in protest).
Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).
Freedom of speech does not include the right:
To incite actions that would harm others (e.g., “[S]hout[ing] ‘fire’ in a crowded
theater.”).
Schenck v. United States, 249 U.S. 47 (1919).
To make or distribute obscene materials.
Roth v. United States, 354 U.S. 476 (1957).
To burn draft cards as an anti-war protest.
United States v. O’Brien, 391 U.S. 367 (1968).
To permit students to print articles in a school newspaper over the objections of the
school administration.
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
Of students to make an obscene speech at a school-sponsored event.
Bethel School District #43 v. Fraser, 478 U.S. 675 (1986).
Of students to advocate illegal drug use at a school-sponsored event.
Morse v. Frederick, __ U.S. __ (2007).
Let’s run through some of the
major categories related to free
speech.
Sedition and Imminent Danger
This was the subject of much of the
previous section.
We noted how the has increasingly
narrowed what counts as sedition,
meaning what speech poses a
threat that might be legitimately
limited by government.
We discussed the controversies
associated with the Espionage Act
of 1917 and the Sedition Act of
1918.
Each led to protest.
Holmes’ dissenting opinion in
Abrams v US began the process of
restricting the clear and present
danger rule’s application to speech.
Here are major Supreme Court decisions regarding
sedition according the Legal Information Institute.
Here are some significant cases
following Abrams:
Whitney v. California
The Supreme Court upheld the conviction of a
woman who had engaged in speech that raised
a threat to society, specifically she helped form
the Communist Party in 1920 which led to the
accusation that she violated California’s Criminal
Syndicalism Act. In addition to the clear and
present danger rule, the court justified the
conviction based on the bad tendency rule.
What is criminal syndicalism?
a statutory crime in many states of
the U.S. consisting of acts of
violence or of advocating violence
or other illicit means of bringing
about political change or
alterations in government
Click here for detail on the bad
tendency test: “The government . . .
could impose criminal penalties for
speech or writing that had bad
tendencies or likely harmful
consequences. Many courts added
that the criminal defendant, to be
convicted, must also have intended
harmful consequences.”
Despite the loss, Justice
Brandeis’ concurring
decision is argued to be
one of the better
statements regarding
the importance of free
speech in a democracy.
Here are key parts of
the decision:
“Those who won our independence believed that the final end
of the State was to make men free to develop their faculties, and
that, in its government, the deliberative forces should prevail
over the arbitrary. They valued liberty both as an end, and as a
means. They believed liberty to be the secret of happiness, and
courage to be the secret of liberty. They believed that freedom
to think as you will and to speak as you think are means
indispensable to the discovery and spread of political truth; that,
without free speech and assembly, discussion would be futile;
that, with them, discussion affords ordinarily adequate
protection against the dissemination of noxious doctrine; that
the greatest menace to freedom is an inert people; that public
discussion is a political duty, and that this should be a
fundamental principle of the American government.”
They recognized the risks to which all human institutions are
subject. But they knew that order cannot be secured merely
through fear of punishment for its infraction; that it is hazardous
to discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces
stable government; that the path of safety lies in the opportunity
to discuss freely supposed grievances and proposed remedies,
and that the fitting remedy for evil counsels is good ones.
Believing in the power of reason as applied through public
discussion, they eschewed silence coerced by law -- the
argument of force in its worst form. Recognizing the occasional
tyrannies of governing majorities, they amended the
Constitution so that free speech and assembly should be
guaranteed.
To justify suppression of free speech, there must
be reasonable ground to fear that serious evil
will result if free speech is practiced. There must
be reasonable ground to believe that the danger
apprehended is imminent. There must be
reasonable ground to believe that the evil to be
prevented is a serious one.
If there be time to expose through discussion the
falsehood and fallacies, to avert the evil by the
processes of education, the remedy to be applied is
more speech, not enforced silence. Only an emergency
can justify repression. Such must be the rule if
authority is to be reconciled with freedom. Such, in my
opinion, is the command of the Constitution. It is
therefore always open to Americans to challenge a law
abridging free speech and assembly by showing that
there was no emergency justifying it.
But since the question in the case
did not involve free speech, he did
not dissent.
But the argument did help limit
future attempts to limit speech.
Brandenburg v. Ohio
“ . . . if our president, our
Congress, our Supreme
Court, continues to
suppress the white,
Caucasian race, it’s
possible that there might
have to be some
revengeance [sic] taken.” –
freespeechdebate.com
This case overturned Whitney by
narrowing the bad tendency test. “
. . . government cannot punish
inflammatory speech unless that
speech is directed to inciting, and
is likely to incite, imminent lawless
action.”
The imminent lawless action test further
limits acceptable restrictions on speech by
stating that incitement must make it both
imminent and likely that harm will occur as
a result of the speech.
This is still the standard today, though the
actual meaning of “imminent” was
considered to be vague.
Fighting Words
The fighting words doctrine helped
narrow the imminent lawless
action test.
The speech has to be narrowly
targeted to a particular person in a
particular situation that would
likely lead to retaliation.
Chaplinsky v. New Hampshire
This was the case that led to the development of
the fighting words doctrine. A person passing
out religious pamphlets verbally attacked
others, including police officers (there is
controversy though about what exactly
happened). Since the words were delivered with
the intent to provoke specific people, and not to
advance certain ideas, the court argued that
they were not protected by the First
Amendment.
Click here for an essay on the
fighting words doctrine and the
cases that helped shape it.
Its not enough for words to be
offensive.
They have to be deliberately and
narrowly provocative.
Here are recent cases involving the
doctrine.
Cohen v. California
A man’s conviction for
wearing a shirt
containing a profanity
directed at the draft
was overturned. The
phrase did not qualify
as fighting words.
“one man’s vulgarity is another’s
lyric.”
Snyder v. Phelps
Protests at the funerals of American
soldiers are protected speech.
The Westboro Baptist Church has made it a
habit to protest various events in order to
oppose policies that approve of
homosexuality. They’ve been able to
publicize themselves well as a result.
In recent years this has included protesting
the funerals of soldiers killed in Iraq and
Afghanistan, among many others.
From the WBC: "Our attitude
toward what's happening with the
war is the Lord is punishing this evil
nation for abandoning all moral
imperatives that are worth a
dime."
The Holding in the decision:
“Speech on a public sidewalk,
about a public issue, cannot be
liable for a tort of emotional
distress, even if the speech is
found to be ‘outrageous.’"
The Heckler’s Veto
The heckler’s veto occurs when an
anticipated reaction leads to
restriction of speech by the
government.
It can also lead to self censorship.
It also refers to a crowd shouting
down a speaker who expresses
views they disagree with.
Hate Speech
Speech Codes
These are controversial restrictions
on speech – or punishments placed
upon them – in certain places.
Most notably in educational or
work place settings.
Click here: Hate Speech and Speech Codes
The argument is that restrictions
on speech that demean certain
populations create a hostile
environment for those
populations.
Do restrictions on speech create a
chilling effect on speech?
Chilling Effect Doctrine:
In Constitutional Law, any practice
or law that has the effect of
seriously dissuading the exercise of
a constitutional right, such
as Freedom of Speech.
“Speech, Intent and the Chilling
Effect”
First Amendment Coalition: Chilling
Effect on Speech.
False Speech
Can telling a lie be criminalized?
This is another way of asking if lies
are protected speech.
Stolen Valor Act of 2005
The law made it a federal misdemeanor to
falsely represent oneself as having received any
U.S. military decoration or medal. If convicted,
defendants might have been imprisoned for up
to six months, unless the decoration lied about
is the Medal of Honor, in which case
imprisonment could have been up to one year.
United States v. Alvarez
The Stolen Valor Act is
unconstitutional and Alvarez's
conviction under that Act is
reversed.
While a 6-3 majority of the Supreme Court
agreed that the law was unconstitutional under
the First Amendment's free speech protections,
it could not agree on a single rationale. Four
justices concluded that a statement's falsity is
not enough, by itself, to exclude speech from
First Amendment protection. Another two
justices concluded that while false statements
were entitled to some protection, the Stolen
Valor Act was invalid because it could have
achieved its objectives in less restrictive ways.
First Amendment Center:
False Speech.
Public Forums
A public forum is a publicly owned
space that can be used as places to
express opinions.
The question is whether the
government – usually a local
government – has the right to regulate
speech activity as a necessary way to
manage the property.
The Public Forum Doctrine.
“While the Court has continually upheld the
principle that an individual retains his or her
constitutional rights in government-controlled
settings, the Court must nonetheless balance
the individual's right to speak with the
government's interest in managing its property.”
In 1897 the Supreme Court ruled
that local government could limit
the use of publicly owned spaces –
like parks and sidewalks – and
prevent people from voicing their
opinions in them.
Davis v. Massachusetts
Facts: “Davis was convicted of
violating a Boston City ordinance
that made it illegal to make any
public address on public grounds
except in accordance with a permit
from the mayor. Davis appealed his
conviction, arguing that the
ordinance violated his First
Amendment right to speak.”
Issue: “Whether an ordinance
requiring a permit from the mayor
to make any public address on
public grounds violates the 14th
Amendment of the United States
Constitution.”
Legal Basis for the Decision: “The Court
determined that the Boston Common was
absolutely under the control of the legislature,
which could both limit its use and could and did
delegate this authority to the municipality. The
Court determined that for the Legislature to
forbid or limit public addresses on the common
was no more an infringement of the rights of a
member of the public than for the owner of
private property to forbid the same conduct.”
As with other free speech issues,
the Supreme Court has sided
increasingly with the speaker and
against governmental restrictions.
Hague v. CIO
Facts: “A Jersey City ordinance prohibited public
meetings without a permit. Individual citizens
and a labor union, the CIO, seeking to educate
laborers about the National Labor Relations Act,
applied for a permit. The permit was denied,
and the citizens and the CIO filed suit, arguing
that the ordinance violated their First
Amendment rights to speak and assemble. Both
the district and appellate courts ruled in favor of
the individuals and the union.”
Issue: “Whether an ordinance
prohibiting public meetings
without a permit in order to
prevent disorderly assembly
violates the First Amendment.”
Legal Basis for the Decision: “Governing principles at
the time required restrictions on speech to relate to the
municipality's comfort and convenience of using the
streets and parks. The Court determined that the Jersey
City ordinance was arbitrary and therefore did not
relate to the comfort or convenience of using the
streets or parks. The Court justified its finding by
explaining that the director of public safety, who had
authority to issue and deny permits, could determine
that any communication had the potential for causing
disorderly conduct and therefore could limit expression
far more than the prevailing standards of the time
would suggest.”
The Supreme Court established the
distinction between three different
types of public forums in the case
or Perry Education Association v
Perry Local Educators’ Association.
Traditional Public Forum
Limited Public Forum
Non Public Forum
Traditional Public Forum: “places which by long
tradition or by government fiat have been
devoted to assembly and debate," the rights of a
state to limit expressive activity are more closely
scrutinized. In such forums, the government
may not prohibit all communicative activity and
may enforce content-based restrictions only to
the extent that such regulation is necessary to
serve a compelling state interest and that it is
narrowly drawn to achieve that end.”
Limited Public Forum: “public property
which the state has opened for use by
the public for expressive activity.
Although a state is not bound to retain
the open character of the property
indefinitely, as long as it does so it is
bound by the same standards as apply
to a traditional public forum.”
Non Public Forums: “Public property that is
not by tradition or designation a public
forum is designated as a nonpublic forum.
The state may reserve the forum for its
intended purposes as long as the
regulation on speech is reasonable and not
an effort to suppress expression because
public officials oppose the speaker's view.”
Symbolic Speech
Ideas can be conveyed without
speaking of course. Symbols and
symbolic action can do so as well.
The Supreme Court has recognized
this and argued that symbolic
speech can be considered the
same as verbal speech.
Stromberg v. California
This is the first case to establish
that symbolic speech has the same
protections as verbal speech.
Red flags
Past cases have included
Arm bands
Burning draft cards
Burning flags
The later case involves the state of
Texas.
Texas v. Johnson concerned the ceremonial
burning of an American flag in Dallas. The
defendant was arrested for violating a Texas law
outlawing the burning of venerated objects. A
split court (5-4) argued that burning the flag was
intended to send a message, and it did not
create the possibility if imminent lawless action.
The court would decide differently
in a case involving burning a cross.
In Virginia v. Black the court ruled
that while a law against cross
burning is an unconstitutional
restriction of speech (even if it
racist speech) the clos connection
between flag burning racial
violence means that cross burning
with the intent to intimidate can
be subject to punishment.
Burning the cross by itself does not
prove an intend to intimidate. The
state has to prove it.
But the possibility if imminent
lawless action exists due to the
history of cross burning.
On a lighter note, the court has
also ruled that nude dancing is a
form of expression and is
protected speech.
Erie v. Pap's A. M.
In this 2000 decision, the court ruled that
nude dancing had to be evaluated in the
same content neutral framework as other
forms of expression, but they did note that
erotic dancing can be subject to regulation
because of its harmful “secondary effects.”
Compelled, or Coerced Speech
Does the First Amendment allow
the government to compel
individuals to make expressive
statements? – UMKC
Click here for stories about
compelled speech from the First
Amendment Center.
The classic example is whether the
government can compel children
to say the Pledge of Allegiance.
The Supreme Court went back and
forth on this question in the early
1940s.
Minersville School District v Gobitis
In 1941 the court ruled that children who
were Jehovah’s Witnesses and were
expelled for not saluting the flag and
saying the pledge. They argued that being
forced to do so violated their religious
beliefs against worshiping non-religious
objects – graven images.
The majority held that forcing all
students across the nation to state
the pledge furthered the effort to
create national unity during an
increasingly difficult environment –
the US was about to go to war.
From Harlan Stone’s dissent: “The
guarantees of civil liberty are but
guarantees of freedom of the human mind
and spirit and of reasonable freedom and
opportunity to express them...The very
essence of the liberty which they
guarantee is the freedom of the individual
from compulsion as to what he shall think
and what he shall say.”
Fun fact:
This is how
the flag
was
saluted
back then.
The result was a backlash against
Jehovah’s Witnesses nationwide
followed by a quick reversal by the
court.
West Virginia State Board of
Education v. Barnette
In 1943 the court reversed itself,
specifically stating the mandatory
salutes and pledges were coerced
speech. The US could not impose
orthodox belief on its citizens.
"If there is any fixed star in our
constitutional constellation, it is
that no official, high or petty, can
prescribe what shall be orthodox in
politics, nationalism, religion, or
other matters of opinion or force
citizens to confess by word or act
their faith therein."
They clarified the idea that the Bill
of Rights was intended to protect
the minority from the majority.
The very purpose of a Bill of Rights was to
withdraw certain subjects from the vicissitudes
of political controversy, to place them beyond
the reach of majorities and officials and to
establish them as legal principles to be applied
by the courts. One's right to life, liberty, and
property, to free speech, a free press, freedom
of worship and assembly, and other
fundamental rights may not be submitted to
vote; they depend on the outcome of no
elections.
School Speech
Do the free speech rights extend to
students in K-12?
Sort of.
Students still posses their
constitutional rights but school
administrators have been allowed
latitude in regulating student
speech in order to maintain
decorum on campus.
Controversies arise in how this
decorum is best attained.
Tinker v. Des Moines Independent
Community School District
The First Amendment, as applied through the
Fourteenth, did not permit a public school to
punish a student for wearing a black armband as
an anti-war protest, absent any evidence that
the rule was necessary to avoid substantial
interference with school discipline or the rights
of others.
students do not "shed their
constitutional rights to freedom of
speech or expression at the
schoolhouse gate"
Bethel School District v. Fraser
The First Amendment, as applied
through the Fourteenth, permits a
public school to punish a student
for giving a lewd and indecent, but
not obscene, speech at a school
assembly.
Hazelwood v. Kuhlmeier
The Court held that speech that
can be reasonably viewed to have
the school's imprimatur can be
regulated by the school if the
school has a legitimate pedagogical
concern in regulating the speech.
Morse v. Frederick
Because schools may take steps to
safeguard those entrusted to their care
from speech that can be regarded as
encouraging illegal drug use, the school
officials in this case did not violate the First
Amendment by confiscating the pro-drug
banner and suspending Frederick.
Pornography and Obscenity
This may seem to be a surprise, but
obscenity is not protected speech.
The problem is that the court has found it
very difficult to define obscenity. Without a
clear definition, it is not certain what can
and cannot be banned. A loose definition
allows for an arbitrary use of governing
powers.
For more on this go to:
First Amendment Center
Pornography and Obscenity.
Important cases:
Jacobellis v. Ohio
1964: The First Amendment, as
applied through the Fourteenth,
protected a movie theater
manager from being prosecuted
for possessing and showing a film
that was not obscene.
A pornographic film was found to
not be pornographic based on
definitions at that time.
Justice Potter Stewart could
provide no definition [for
obscenity] in Jacobellis v.
Ohio other than exclaiming: “I
know it when I see it.” In that 1964
decision, Stewart also said that the
Court was “faced with the task of
trying to define what may be
indefinable.”
Nudity is not obscene
“ . . . nudity does not equal obscenity. The
Supreme Court recognized this in Jenkins v.
Georgia, when it ruled that the film “Carnal
Knowledge” was not obscene. Justice
William Rehnquist wrote in that 1974 case
that “nudity alone is not enough to make
material legally obscene under the Miller
standards.”
Miller v. California
1973: Obscene materials are defined as those
that the average person, applying contemporary
community standards, find, taken as a whole,
appeal to the prurient interest; that depict or
describe, in a patently offensive way, sexual
conduct specifically defined by applicable state
law; and that, taken as a whole, lack serious
literary, artistic, political, or scientific value.
This case established a standard
the can be used to determine what
is obscene.
It is called the Miller Test.
1 - Whether the average person, applying
contemporary community standards, would find that
the work, taken as a whole, appeals to the prurient
interest.
2 - Whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by
the applicable state law.
3 - Whether the work, taken as a whole, lacks serious
literary, artistic, political or scientific value.
One of the places this controversy
has played out is literature and art.
Some argue that certain art works
are obscene and either should not
be sent over the mail, and/or
should not be eligible for
government funding.
Examples:
Henry Miller’s Tropic of Cancer.
Comic Book Legal Defense Fund.
The Law of Obscenity.
A question unanswered by the test
is what the word “community”
applies to.
Is there a national standard, or
does it vary from area to area?
This is especially difficult with the
rise of the internet.
There is little way to impose local
community standards due to the
ease with which images that come
from anywhere can be accessed.
Congress has passed two major
laws relating to pornographic
content on line:
Communications Decency Act
Child Online Protection Act
The Supreme Court struck down parts of
the Communications Decency Act in Reno v
ACLU arguing that it “ did not permit
parents to decide for themselves what
material was acceptable for their children,
extended to non-commercial speech, and
did not define "patently offensive," a term
with no prior legal meaning.”
The Child Online Protection Act
was written in order to
compensate for the problematic
aspects of the CDA, but much of it
was also found to be an
unconstitutional violation of the
First Amendment in Ashcroft v.
American Civil Liberties Union.
“COPA required all commercial distributors of
"material harmful to minors" to restrict their
sites from access by minors. "Material harmful
to minors" was defined as material that by
"contemporary community standards" was
judged to appeal to the "prurient interest" and
that showed sexual
acts or nudity (including female breasts). This is
a much broader standard than obscenity.”
Simulated child pornography
Simulated child pornography refers
to computer generated imagery
that portrays minors involved in
sexual activity as well as adult
actors portraying children doing so.
It does not involve actual underage
minors engaged in sexual activity
however.
The PROTECT Act of 2003 made
both illegal.
But this is problematic because it
criminalizes pandering, which
involves conveying the idea of child
pornography, not necessarily
actual child pornography.
This was found unconstitutional in
United States v. Williams.
A man was prosecuted for sending
links to pages that purported to –
but did not – contain child
pornography.
“ . . . speech that advertises or
promotes such content does have
the protection of the First
Amendment.”
By the way, PROTECT stands for
"Prosecutorial Remedies and Other
Tools to end the Exploitation of
Children Today."
Ashcroft v. Free Speech Coalition
The court went further and argued
that the restrictions included
limitations on “categories of
speech other than obscenity and
child pornography, and thus were
overbroad.”
Is Romeo and Juliet child
pornography? Juliet is 13.
How about American Beauty?
The actress was 18, but the
character was 15.
Is this pandering? Can it be made
illegal because it raises the idea of
sexual acts by minors?
Profanity
Here’s a good read from the First
Amendment Center: Remember,
profanity isn’t always protected
speech.
Click here for their stories on
profanity.
Limitations on profanity are problematic.
While they are expressions of feelings and
opinions, they can be offensive to some,
and are sometimes fighting words - these
can be limited for other reasons. Schools
are also given leeway in punishing students
for the use of profanity.
Context matters.
Here’s a story about a town that
has made it illegal – subject to a
$20 fine – to swear in public, and
classroom assignments related to
the example.
From Mother Jones: The F-Bomb:
Protected By The 1st Amendment?
FCC v Pacifica Foundation
Could a radio station play George
Carlin’s comedy bit: Seven Dirty
Words?
Transcript
Facts of the Case: “During a mid-afternoon
weekly broadcast, a New York radio station aired
George Carlin's monologue, "Filthy Words."
Carlin spoke of the words that could not be said
on the public airwaves. . . . The station warned
listeners that the monologue included "sensitive
language which might be regarded as offensive
to some." The FCC received a complaint from a
man who stated that he had heard the
broadcast while driving with his young son.”
Question: “Does the First
Amendment deny government any
power to restrict the public
broadcast of indecent language
under any circumstances?”
Conclusion: “No. The Court held that limited civil
sanctions could constitutionally be invoked against a
radio broadcast of patently offensive words dealing
with sex and execration. The words need not be
obscene to warrant sanctions. Audience, medium, time
of day, and method of transmission are relevant factors
in determining whether to invoke sanctions. "[W]hen
the Commission finds that a pig has entered the parlor,
the exercise of its regulatory power does not depend
on proof that the pig is obscene."
Click here for the decision in
findlaw.
Fleeting Explitives
Can the Federal Communications
Commission punish a television
statement airing a live show if
someone on that show utters an
expletive, or if there is a brief shot
of a nude body?
There have been two recent cases
involving fleeting expletives.
FCC v Fox – 1
The Federal Communications Commission
had not acted arbitrarily when it changed a
long-standing policy and implemented a
new ban on even "fleeting expletives" from
the airwaves. The Court explicitly declined
to decide whether the new rule is
constitutional, and sent that issue back to
the lower courts for their review.
FCC v Fox - 2
Vague regulations on indecency are not
Constitutional. However, the Federal
Communications Commission can
promulgate non-vague regulations, acting
in the public interest, without violating the
First Amendment. Second Circuit vacated
and remanded on this case and the 2009
case.
Commercial Speech
Key point: The court has ruled that
not all speech is the same
Commercial Speech is different
from Political Speech and is given
fewer protections. Limits on
cigarette advertisements have
been found constitutional.
Some additional readings on commercial
speech:
- Commercial Speech.
- Governmental Regulation of Commercial
Speech.
- LII: Commercial Speech.
- Government Regulation of Commercial
Speech.
- CATO: Contrived Distinctions.
Political Activity
It is very difficult to restrict speech on
political grounds. It must be demonstrated
that an act of speech had a direct
connection with a disruption of public
order.
The mere articulation of an unpopular,
even dangerous opinion is not sufficient to
punish the speaker if no harm is likely to
result from the speech.
Political Speech is argued to be
central to democratic governance,
so it is given the highest protection
from the courts.
Strict Scrutiny
Yes, that’s the same standard used for suspect
classifications under equal protection claims.
In the section on campaign finance
we looked at the number of laws
which had been overturned based
on the argument that campaign
expenditures facilitated political
speech and were therefore entitled
to free speech protections.
The arguments in favor of
campaign finance generally rested
on the idea that imbalances in
finance – the fact that some points
of view have more funding behind
them than others – requires a
legislative correction, which is a
compelling purpose government
has the right to pursue.
That’s enough
There’s more, but its time to
transition to the next topic
Now that free speech rights have
been established and decisions
have been made about how they
are protected, the question turns
to the nature of the opinion that
results, how it is formed an what
impact it has on public policy.