Chapter 19: Freedom of Speech Honors Classes, Dec. 11, 2013

1. Chapter 19: Freedom of SpeechHonors Classes, Dec. 11, 2013

2. The Owner’s Manual says… • … “Congress shall make no law…abridging the freedom of speech or of the press….” • Voltaire (or at least his biographer) says, “I disapprove of what you say but I will defend to the death your right to say it.” Not sure how much protecting this guy would do

3. Why do we have this protection? • We all benefit from a competition of ideas. • Best to let the merits of an argument win, not force. • Speech is rarely as harmful as people fear it will be. Overreacting to it can lead to harmful results. • “Men feared witches and burned women.” Louis Brandeis

4. It’s a balancing act • Is there an absolute right to free speech? No. Courts will balance the need for free speech against the possible harm. • Classic example: can’t yell “FIRE!” in a crowded movie theater (unless, of course, the theater is on fire). Why? People will be trampled. • Instances in addition to inciting violence where free speech can be curtailed: obscenity, national security.

5. Seditious Speech • Sedition: crime of attempting to overthrow the gov’t by force. Not protected. • Alien and Sedition Acts: An example of how wrong things can go. • John Adams didn’t want people criticizing him so got a law passed that applied just to him (and not TJ), and that expired with Adams administration. • Exactly what you want your gov’t NOT to do.

6. Seditious speech (cont.) • Sedition Act of 1917 • A WWI-era statute. Can’t encourage disloyalty, interfere with draft, obstruct recruiting, etc. • Also can’t utter/write/publish/etc. “disloyal, profane, scurrilous, or abusive language” about the form of gov’t in the U.S.

7. Seditious speech (cont.) Sedition Act of 1917 upheld in Schenck v. U.S. (1919) • Schenck an officer in the U.S. Socialist Party. Sent leaflets to 15,000 men who’d been drafted, urging them to resist. Schenck arrested and convicted. • Appealed to USSC, saying First Amendment protects his speech. • Court: Nope. First Amendment does not protect words that “create a clear and present danger” of bringing about the “substantive evils that Congress has a right to prevent.” Schenck’s pamphlet:

8. Seditious speech (cont.) • Smith Act of 1940 • Can’t advocate for the violent overthrow of the gov’t or belong to a group that does. • But seeYates v. U.S. (1957): urging someone to believe something (as opposed to urging them to do something) cannot be made illegal. Effectively renders the Smith Act useless.

9. Obscenity Roth v. U.S. (1957) • Roth ran a literary business and used the U.S. mail to ship novels by Flaubert, James Joyce, D.H. Lawrence, et al., as well as a “literary erotica” magazine. • A statute prohibited using U.S. mails to ship lewd, obscene, lascivious, or filthy material. • Test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. • Roth lost. Mr. Roth:

10. Obscenity (cont.) Miller v. California (1973) • 3-part test: • Does something appeal to a prurient interest in sex (i.e., an immoderate or unwholesome interest in sex; lust); • Is it patently offensive; and • Does it lack “serious literary, artistic, political, or scientific value.” • So how have cities dealt with “adult entertainment” venues? Often through zoning laws.

11. Prior Restraint • Prior restraint is preventing speech before it is published. • Near v. Minnesota (1931) • State court tried to apply a law banning “malicious, scandalous, and defamatory” material to keep a local paper from being printed that criticized local pols. Near’s paper:

12. Prior restraint (cont.) • Holding of Near: Can’t do that. There is to be no prior restraint in this case. • First Amendment does not allow a prior restraint except in cases of wartime, when the material is obscene, when it incites violence, or in some instances involving “school speech.”

13. Prior restraint (cont.) • NY Times v. U.S. (a/k/a the Pentagon Papers case) (1971) • Daniel Ellsberg got a secret report on the VN War and gave it to the NYT. Papers showed that presidents going back to Truman lied about our role in VN. • Court: The government failed to meet the heavy burden of proof required for prior restraint injunction. • “Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.” Justice Hugo Black (famous Alabaman; pictured at right)

14. Prior restraint – school speech • Hazelwood School District v. Kuhlmeier(1988) • Journalism class published a paper. One of the articles was about teen pregnancies and divorce, using aliases. Administration: the identity of students could be figured out; don’t publish. • Court: schools retain the right to refuse to sponsor speech that is "inconsistent with 'the shared values of a civilized social order.'" No violation of 1st Amendment by restraining speech so long as their actions were "reasonably related to legitimate pedagogical concerns.”

15. Prior restraint – school speech (cont.) • Morse v. Frederick (2007): • The “Bong hits 4 Jesus” case. • Court: a school may restrain speech that advocates illegal drug use.

16. Prior restraint – school speech (cont.) Other considerations in school speech cases: • The extent to which the student speech in question poses a substantial threat of disruption (Tinker v. Des Moines School District (1969)) • Black armbands worn by students to protest the Viet Nam War okay.

17. Prior restraint – school speech (cont.) • Whether the speech is offensive to prevailing community standards (Bethel School District v. Fraser) • Court upholds suspension of student giving a nominating speech full of sexual innuendos. • I don’t know if the speech • was offensive but the hair was.

18. Symbolic Speech • Picketing is protected, as long as it’s peaceful. Thornhill v. Alabama (1940) (union member picketing) • Burning a flag as an act of political protest is protected. Texas v. Johnson (1989) • Burning draft cards to protest the Viet Nam War held not to be protected. U.S. v. O’Brien (1968). • Burning a cross as an act of intimidation is not protected. Virginia v. Black (2003).

19. Hate Speech • Brandenburg v. Ohio (1969) • KKK held a rally during which one of the Klansmen gave a speech making reference to the possibility of “revengeance” [sic] against blacks, Jews, and those who supported them. • Court: KKK wins. State cannot restrain speech that advocates the use of force or breaking the laws unless the speech is intended to incite imminent lawless action and is likely to lead to it.

20. Libel and Slander • Libel is written, slander is oral. • Both: A false statement that damages someone’s reputation. • Defenses: • Truth • Opinion

21. Libel and slander (cont.) Higher standard for public figure. NYT v. Sullivan: Public figure may recover damages for libel only if the statement is made with actual malice (which means knowing the statement was false or reckless disregard for the truth.) • Full-page ad in NYT signed by several ministers accusing Montgomery police of abusing blacks. It contained inaccuracies (said police arrested MLK 7 times when it had been “only” 4). • Court: Standard of “reckless disregard” not met. The ad:

22. Libel and slander (cont.) • No prior restraint of libelous or slanderous speech. • Recourse is to sue for damages after the speech has been made. • Careful what you wish for (see the “manners of a pig” case).

23. Confidentiality of sources • Most states provide some protection of sources (called a “shield law”). • A balancing test: do the needs of a “journalist” to protect sources outweigh the interest of the gov’t in gathering info for a criminal prosecution?