Free Speech Basics September 2, 2004 ComS 152

Five Freedoms of the First Amendment Speech Press Religion Assembly Petition

The Text of the First 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.

Typical Path of a Free Speech Controversy A communicator delivers a message The communicator’s right is challenged Civil lawsuit—your speech damaged me Criminal proceeding—your speech violates the law A trial is held—either state or federal courts depending on the basis for the claim

The path of Federal Free Speech Suits Federal District Court—the trial court in the federal system (Federal Supplement—Fed. Supp. 2 nd ) deals with questions of fact Circuit Court of Appeals—nine courts across the country (Federal Reporter—F. 3 rd )— deals with questions of law U.S. Supreme Court—the court of last resort (U.S. Reports, Supreme Court Reporter—US or SCt.)—usually limited to questions of law

Court Citation Formats 376 U.S. 254 (1964) New York Times v. Sullivan, found in volume 376 of the US Reports at page F.2d 1197 (7 th Cir., 1978), cert. den. 439 U.S. 916 (1978) What does all this mean?

Some terms to learn Writ of Certiorari Chilling Effect Prior Restraint stare decisis Majority or Dissenting opinion Concurring opinion Plurality opinion

Some constitutional and academic tests for free speech cases Vagueness Overbreadth Ad hoc balancing Narrowly tailored Slippery Slope

Some Final Considerations Marketplace of Ideas Economic metaphor Milton—Aereopagitica John Stuart Mill--On Liberty Oliver Wendell Holmes

John Milton, The Areopagitica “And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?”

John Stuart Mill, On Liberty “If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”

Justice Oliver Wendell Holmes “…the ultimate good desired is better reached by free trade in ideas, and that the best test of truth is the power of the thought to get itself accepted in the competition of the marketplace.” Abrams v. US, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting)

The Functions of Free Speech in Society It facilitates self-government It serves a truth-seeking function It serves as a safety valve It allows for individual self fulfillment It checks abuses of governmental power It serves as a powerful legitimating tool for elites