Chapter 37 Freedom of Speech

First Amendment Protects all forms of communicationProtects all forms of communication –Speeches, books, art, newspapers, television, radio & other media Exists to protect ideas that may be unpopular or different from those of the majorityExists to protect ideas that may be unpopular or different from those of the majority Protects people making the communication AND people receiving itProtects people making the communication AND people receiving it

Freedom of Speech is NOT an Absolute Like other constitutional rights… Courts are VERY protective of this rightLike other constitutional rights… Courts are VERY protective of this right 1 st Amendment includes right to hear, see, read, & in general be exposed to different points of view1 st Amendment includes right to hear, see, read, & in general be exposed to different points of view

Importance of Freedom of Speech The essential, CORE political purpose of the 1 st Amendment is self~governanceThe essential, CORE political purpose of the 1 st Amendment is self~governance –Enabling people to obtain information from a diversity of sources –Make decisions & communicate them to the government 1 ST Amendment is the HEART of an open, democratic society1 ST Amendment is the HEART of an open, democratic society

Marketplace of Ideas Rather than having the government establish the truth, Freedom of Speech enables the truth to emerge from diverse opinionsRather than having the government establish the truth, Freedom of Speech enables the truth to emerge from diverse opinions People determine the truth by seeing which are accepted in the “marketplace”People determine the truth by seeing which are accepted in the “marketplace” Emphasizes the US’s commitment to trusting the will of the peopleEmphasizes the US’s commitment to trusting the will of the people

Conflicts of Free Speech Cases Clash of fundamental valuesClash of fundamental values Sometimes freedom of speech can be limited by government actionSometimes freedom of speech can be limited by government action –Obscenity –Defamation –Commercial speech –Fighting words –Incitement

Obscenity Defined: anything that treats sex or nudity in an offensive or lewd manner, exceeds recognized standards of decency, and lacks serious literary, artistic or scientific valueDefined: anything that treats sex or nudity in an offensive or lewd manner, exceeds recognized standards of decency, and lacks serious literary, artistic or scientific value Values of medical textbooks depicting nudity versus pornographyValues of medical textbooks depicting nudity versus pornography –Standards of the community

Defamation Defined: a false expression about a person that damages that person’s reputationDefined: a false expression about a person that damages that person’s reputation NOT protected under 1 st AmendmentNOT protected under 1 st Amendment Slander: When defamation is SPOKENSlander: When defamation is SPOKEN Libel: When defamation is WRITTENLibel: When defamation is WRITTEN If it turns out to be true then there is NO defamation and no crimeIf it turns out to be true then there is NO defamation and no crime

Fighting Words, Offensive Speakers & Hostile Audiences Defined: words spoken face-to-face that are likely to cause imminent breach of the peace between the speaker & listenerDefined: words spoken face-to-face that are likely to cause imminent breach of the peace between the speaker & listener A verbal slap in the faceA verbal slap in the face Do NOT convey ideas or contribute to the marketplace of ideas.Do NOT convey ideas or contribute to the marketplace of ideas.

Court Tests Clear & Present Danger Test: a test formerly used by courts to restrict speech when the government thought the speech would create an immediate danger of serious harmClear & Present Danger Test: a test formerly used by courts to restrict speech when the government thought the speech would create an immediate danger of serious harm Incitement Test: a method used by courts to determine whether to restrict or punish expression based on its potential to cause immediate unlawful behaviorIncitement Test: a method used by courts to determine whether to restrict or punish expression based on its potential to cause immediate unlawful behavior

Hate Speech Defined: Bigoted speech attaching or disparaging a social or ethnic group or a member of such a groupDefined: Bigoted speech attaching or disparaging a social or ethnic group or a member of such a group Supporters for punishment of Hate Speech believe that strong measures should be taken because of impact on victims & communities.Supporters for punishment of Hate Speech believe that strong measures should be taken because of impact on victims & communities. Amounts to fighting words, and does not qualify as protection of 1 st AmendmentAmounts to fighting words, and does not qualify as protection of 1 st Amendment

Hate Speech (continued) Others believe that although it is well-intentioned that the speech codes designed to promote tollerance are vague and difficult to enforce fairly.Others believe that although it is well-intentioned that the speech codes designed to promote tollerance are vague and difficult to enforce fairly US Supreme Ct decision upholds Wisconsin law that provides enhanced sentencing when the defendant “Intentionally selects the person against whom the crime (is committed) because of…race, religion, color, disability, sexual orientation, national origin or ancestry…”1993 US Supreme Ct decision upholds Wisconsin law that provides enhanced sentencing when the defendant “Intentionally selects the person against whom the crime (is committed) because of…race, religion, color, disability, sexual orientation, national origin or ancestry…”