Freedom of Speech Chapter 37

What does it mean? The right to express information and ideas Protects all forms of communication including symbolic speech Protects ideas that may be unpopular or different from the majority Includes the right to hear, see, read, and be exposed to different points of view

The importance of Freedom of Speech Enables people to obtain information from a variety of sources “marketplace of ideas” Enables truth to emerge from diverse opinions “safety valve” Protects everyone – including those that criticize the government Courts must balance the need for peace and public order against the fundamental right to express one’s views

Things to think about… Can you think of any public statements or expressions of public opinion that made you angry? How did you feel about protecting the speaker’s right to freedom of expression? What is the value of hearing opinions you dislike? What is the danger of suppressing unpopular thought?

Things to think about… A Supreme Court justice once wrote that the most important value of free expression is “not free thought for those who agree with us, but freedom for the thought we hate.” What did the justice mean by this? Do you agree or disagree? Discuss a relevant example.

Prohibitions on the First Amendment I. Obscenity How does one define “obscenity”? Gov’t can prohibit the distribution of obscene material Laws regarding access cannot be overinclusive

Prohibitions on the First Amendment I. Obscenity Miller v. California (1973) Three part test Would the average person applying contemporary community standards find that the material, taken as a whole, appeals to prurient interest Does the work depict or describe, in a patently offensive way, sexual conduct specifically outlawed by applicable state law? Does the work, taken as a whole, lack serious literary, artistic, political, or scientific way?

Prohibitions on the First Amendment I. Obscenity Some communities have: tried to ban all pornographic works that degrade or depict sexual violence against women Used zoning laws Outlawed child pornography Problem 37.3 (pg. 450)

Prohibitions on the First Amendment Problem 37.2 (pg. 448) Should the government be allowed to censor books, movies, the Internet or magazines? Is so, under what circumstances, and why? Who should decide if a book or movie is obscene? What definition should be used? Do you think books and movies that depict nude women and emphasize sex encourage violence against women? Should they be banned? Explain your answer. Assume that filtering software is installed on the computers in your town’s public school library. The software blocks pornographic sites, but some historical and religious sites are also blocked. Is the use of this software a violation of the First Amendment? Explain. Is there a problem with indecent material on the Internet? If so, what should be done about it?

Prohibitions on the First Amendment II. Defamation A false expression about a person that damages that person’s reputation. Slander Libel No First Amendment protection. Less protection for public officials and celebrities. Problem 37.3 (pg. 449) “Reckless disregard for the truth”

Prohibitions on the First Amendment III. Commercial Speech Advertising Receives some First Amendment protection Governments can ban commercial speech that is false or misleading or that provides information about illegal products

Prohibitions on the First Amendment III. Commercial Speech Examples of false or deceptive advertising: Listerine was once marketed as a cure all. Magnetic bracelets Credit repair services Lose 20 lbs. in one week! Get ripped in 90 days! “Froot Loops” and “Crunchberries” Energy Drinks Herbal Medicines Rogaine Anything “Anti-bacterial”

Protecting the Speaker I. Fighting Words Words spoken face-to-face that are likely to cause an imminent breach of the peace between the speaker and the listener. Rarely used today II. Clear and Present Danger Prior to the 1950s When a danger of unlawful action existed No time specified

Protecting the Speaker III. Incitement Test Government can punish the speaker if it is directed toward inciting, or producing immediate lawless action. Must happen within a “short period of time”

Protecting the Speaker IV. Hate Speech Speech motivated by bigotry and racism (and now also sexual orientation) Those who support punishment: Emotional and psychological damage Hate speech amounts to “fighting words” Those who oppose punishment Rules are vague and difficult to enforce fairly Puts the gov’t in the censorship business Result has been state laws providing enhanced punishment The case of… (pg. 461)

Protecting the Speaker V. Time, Place, and Manner Restrictions Reasonable regulations Permits Sound Public property Public vs. Non-public Forum Problem 37.8 : Content vs. TPM (pg. 457) Content Neutral “You be the Judge” Activity The Case Of…The Nazis in Skokie (pg. 456)