Freedom of Speech, Press, Assembly, & Petition Stephanow 2009

AMENDMENT I 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 people peaceably to assemble, and to petition the government for a redress of grievances. 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 people peaceably to assemble, and to petition the government for a redress of grievances.

Defamation Must show they were False statements (person knew they were false.) Must show they were False statements (person knew they were false.) Must damage reputation. Must damage reputation. Celebrities must show MALICE. Celebrities must show MALICE. Libel: written Libel: written Slander: spoken Slander: spoken

SEDITION ACTS What are they? What are they?

“Clear & Present Danger” Schenck v. U.S. (1919): Court ruled that during wartime, Schenck’s actions created a “clear & present danger” to the national security of the United States, and was NOT protected under the 1 st Amd. Schenck v. U.S. (1919): Court ruled that during wartime, Schenck’s actions created a “clear & present danger” to the national security of the United States, and was NOT protected under the 1 st Amd.

HATE SPEECH Court now uses the INCITEMENT TEST. Court now uses the INCITEMENT TEST. Cannot “incite” others to act violently. Cannot “incite” others to act violently. Brandenburg v. Ohio (1969): Court ruled that although KKK Grand Wizard Brandenburg’s speech may have been offensive, it did not INCITE others to “eminent lawless action,” and was protected free speech. Brandenburg v. Ohio (1969): Court ruled that although KKK Grand Wizard Brandenburg’s speech may have been offensive, it did not INCITE others to “eminent lawless action,” and was protected free speech. VA v. Black (2003): Court ruled that a state may ban cross-burning that has the intent of intimidating others. VA v. Black (2003): Court ruled that a state may ban cross-burning that has the intent of intimidating others.

Miller Test (Miller v. CA) Average person applying CONTEMPORARY COMMUNITY STANDARDS, appeals to the prurient interest. Average person applying CONTEMPORARY COMMUNITY STANDARDS, appeals to the prurient interest. The work is patently offensive. The work is patently offensive. Work TAKEN AS A WHOLE, lacks PALS value. (Political, Artistic, Literary, Scientific) Work TAKEN AS A WHOLE, lacks PALS value. (Political, Artistic, Literary, Scientific) Therefore, obscenity is NOT protected by the 1 st Amendment. Therefore, obscenity is NOT protected by the 1 st Amendment. OBSCENITY

PRIOR RESTRAINT Precensorship. Precensorship. Government cannot curb ideas or expressions before they are made. Government cannot curb ideas or expressions before they are made. It is NOT constitutional. It is NOT constitutional. NYT v. U.S. (1971): Ruled for the NYT. Gov’t cannot use prior restraint. NYT v. U.S. (1971): Ruled for the NYT. Gov’t cannot use prior restraint.

Can schools use prior restraint? Bethal v. Fraser (1986) Bethal v. Fraser (1986) Student speech given to an assembly of about th -12 th graders Student speech given to an assembly of about th -12 th graders “I know a man who is firm…he’s firm in his pants, he’s firm in his shirt, his character is firm—but most of all, his believe in you, the students of Bethel is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts—he drives hard, pushing and pushing until finally— he succeeds. Jeff is a man who will go to the very end—even the climax for…everyone of you.” “I know a man who is firm…he’s firm in his pants, he’s firm in his shirt, his character is firm—but most of all, his believe in you, the students of Bethel is firm. Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts—he drives hard, pushing and pushing until finally— he succeeds. Jeff is a man who will go to the very end—even the climax for…everyone of you.”

Can schools use prior restraint? Bethal v. Fraser (1986): Court ruled YES. Bethal v. Fraser (1986): Court ruled YES. “The ‘lewd’ speech and student responses illustrated the detrimental effect that Fraser’s words had on the school’s work.” “The ‘lewd’ speech and student responses illustrated the detrimental effect that Fraser’s words had on the school’s work.” “The special nature of schools requires that the expression of controversial views be balanced against society’s interest in teaching students the boundaries of socially appropriate behavior.” “The special nature of schools requires that the expression of controversial views be balanced against society’s interest in teaching students the boundaries of socially appropriate behavior.” The Court noted that they have an interest in protecting minors from exposure to vulgar and offensive spoken language. The Court noted that they have an interest in protecting minors from exposure to vulgar and offensive spoken language.

Can school officials “censor” student newspapers? Hazelwood v. Kuhlmier (1988) Hazelwood v. Kuhlmier (1988) Last issue of school newspaper for the year Last issue of school newspaper for the year Two stories were questioned by the principal regarding student privacy. Two stories were questioned by the principal regarding student privacy. Affects of divorce on students Affects of divorce on students Teenage pregnancy Teenage pregnancy Editor told to rewrite stories, but there was not enough time, so principal pulled the two stories. Editor told to rewrite stories, but there was not enough time, so principal pulled the two stories. Editor sued on grounds of freedom of the press. Editor sued on grounds of freedom of the press.

Can school officials “censor” student newspapers? Hazelwood v. Kuhlmier (1988): Court ruled YES. Hazelwood v. Kuhlmier (1988): Court ruled YES. Journalism class is for educational purposes, not for a student forum. Journalism class is for educational purposes, not for a student forum. Students must be given guidance on what is appropriate/inappropriate for the learning environment. Students must be given guidance on what is appropriate/inappropriate for the learning environment. Precedent case: Bethal v. Fraser Precedent case: Bethal v. Fraser

SHIELD LAWS Protect reporters from revealing their sources. Protect reporters from revealing their sources. No Federal Shield Law. No Federal Shield Law. Texas does not have it either. Texas does not have it either. Some states, like CA, do. Some states, like CA, do. Some reporters have gone to jail, because they refuse to give up their source. Some reporters have gone to jail, because they refuse to give up their source. Writer Vanessa Leggett, center, speaks to reporters after being released from the Federal Detention Center in Houston where she spent more than five months for refusing to give federal prosecutors her research about a murder case.

“Freedom of Expression” SYMBOLIC SPEECH TX v. Johnson (1989): Court ruled that you DO have the 1 st Amd. Right to burn an American flag in protest. TX v. Johnson (1989): Court ruled that you DO have the 1 st Amd. Right to burn an American flag in protest.

Protest outside of the Republican National Convention in Dallas, TX (1984).

Congress has tried to pass a constitutional amendment, 9 times since the Johnson case in 1989.

“Freedom of Expression” SYMBOLIC SPEECH Tinker v. Des Moines (1969): Court ruled that “students do not give up their rights at the schoolhouse gate.” Tinker v. Des Moines (1969): Court ruled that “students do not give up their rights at the schoolhouse gate.” Silent protest by wearing armbands, did not disturb the learning environment. Silent protest by wearing armbands, did not disturb the learning environment.

John Tinker, Mary Beth Tinker, & Christopher Eckhardt (2005). Mary Beth Tinker, brother, & their mother (1965).

Does the First Amendment allow public schools to prohibit students from displaying messages promoting the use of illegal drugs at school-supervised events? Morse v. Frederick (2007) Morse v. Frederick (2007) Can students be punished for speech off school campus?

Peaceably Assemble & Petition May protest in a peaceful, nonviolent manner. May protest in a peaceful, nonviolent manner. Gov’t must be CONTENT NEUTRAL. Gov’t must be CONTENT NEUTRAL. May adapt “TIME, PLACE & MANNER” restrictions.—this is to keep the public peace and order. May adapt “TIME, PLACE & MANNER” restrictions.—this is to keep the public peace and order. Many college campuses have set up “free speech zones” for protestors. Many college campuses have set up “free speech zones” for protestors. Students are challenging in the courts and winning. Students are challenging in the courts and winning.

Freedom of Association (Assembly) Boy Scouts of America v. Dale (2000) Court ruled that the Boy Scouts did not have to allow homosexuals into their organization because it violated their freedom of association, that is, being able to choose who they want to be in their PRIVATE organization. Do not have to take people who go against their teachings and values.