Interpreting and Applying the First Amendment

What is Speech: Defamation Defamation: intentional, false statements Libel: written statement defaming another person Slander: defamatory oral statement Variable jury awards—hard to collect Public figures must also show the words were written with “actual malice” ◦ New York Times v. Sullivan ◦ New York Times article defended MLK and inaccurately portrayed some issues in Montgomery, AL. L.B. Sullivan (Public Safety Commissioner) sued the Times ◦ Results: First Amendment protects publication of all statements (even false) except when statements are made with “actual malice”

What is Speech: Obscenity Obscenity :First Amendment protects anything with political, artistic, or literary merit No enduring and comprehensive definition, but generally nudity and sex are not, by definition, obscene; -First Amendment protects anything with political, literary, or artistic merit; -government only punishes “hard-core pornography” Balancing competing claims remains a problem: freedom v. democracy Localities decide whether to tolerate pornography but must comply with strict constitutional tests if they decide to regulate it Protection is extended to almost all forms of communication

What is Speech: Obscenity Cont. Miller v. California Indianapolis statute: Court ruled the legislature cannot show preference for one form of expression over another (women in positions of equality vs. women in positions of subordination) Zoning ordinances for adult theaters and bookstores have been upheld; regulates use of property rather than expression Internet regulation rules unconstitutional by the Supreme Court  Decency v. liberty

What is Speech: Symbolic Speech Symbolic Speech :Actions that convey a political message (these are protected) Cannot claim protection for an otherwise illegal act on the grounds that it conveys a political message (ex.- burning a draft card) But statutes cannot make certain types of symbolic speech illegal ◦ Tinker v. Des Moines- Students wore black arm bands to protest war ◦ Texas v. Johnson- Burning U.S. flag protected by 1 st Amendment ◦ Virginia v. Black – cross burning as symbolic speech?

Who is a Person? Corporations and organizations usually have the same rights as individuals -Corporations and interest groups have First Amendment rights -Businesses that cater to “vice” also have First Amendment rights Restrictions can be placed on commercial speech

Who is a Person? McCain-Feingold Act: campaign finance reform changed the parameters of acceptable political speech for corporations and other organizations Organizations could not pay for “electioneering communications” that “refer” to a specific candidate on radio or television 60 days before and election Supreme Court upheld this law, saying ads that only mentioned, but did not “expressly advocate” a candidate were ways of influencing the election Campaign finance laws changed what is “acceptable” speech

Who is a Person? Minors have less freedom of expression than adults Hazelwood v. Kuhlmeier Hazelwood (1988) allowed that a school newspaper can be restricted School-sponsored activities can be controlled if controls are related to pedagogical concerns

Morse v. Frederick Let’s discuss…