1. Theories Behind Freedom of Expression
Attainment of truth
The free exchange of ideas allows people to get their message out.
Free speech contributes to democratic government
By allowing people to participate in the political debate
Check on government power
By allowing people to criticize the government
Allows power transitions with stability
By allowing people seeking influence to do so peacefully through speech
Individual “fulfillment”
Public Communications Law Lecture 2

2. Constitutional Provisions and Government Regulation of Speech
The first Amendment, of course, is the source of the free speech right.
The First Amendment applies to the states through the “due process” clause of the Fourteenth Amendment.
The Fifth Amendment also guarantees some aspects of free speech through its criminal procedure protections and “due process” clause.
As a general principal, the constitutional protections apply only to government action. Unless made illegal by law, a private company or landowner can stifle speech in its office or on its property.
Public Communications Law Lecture 2

3. Regulation of Politically Motivated Speech
This is the hardest speech for the government to regulate.
For “content-based” restrictions, the regulations must pass strict scrutiny.
For “content-neutral” restrictions, the restrictions (sometimes referred to as “time, place and manner restrictions” ) serve an important government purpose but leave open other adequate methods to communicate the ideas.
Any law that limits speech is invalid if it is:
too “vague” for a reasonable person to understand what speech is allowed and what is prohibited; or if it is
Overbroad; in that it prohibits speech that is protected by the Constitution in addition to speech that is not
Public Communications Law Lecture 2

4. Examples of Laws Struck Down for Vagueness or Overbreadth
Communications Decency Act, which prohibited peddling “indecency” to children, was struck down because:
1) It was too vague as to what “indecency” meant; and
2) It was overbroad because it prohibited “indecent” expression by adults in some cases as well.
A U. of Michigan policy prohibiting “racist” or “sexist” speech in certain contexts was vague and overbroad.
Public Communications Law Lecture 2

5. Speech that is not Protected
Incitement
If it’s intended to cause imminent lawless action and is likely to cause such imminent lawless action.
Obscenity
Certain forms of commercial speech
Commercial speech is protected, but not to the same extent as politically motivated speech.
Fighting words and threats
These are basically irrelevant because laws that prohibit these are usually too vague or overbroad.
Defamation
Prohibited speech whose prohibition passes strict scrutiny
Public Communications Law Lecture 2

6. Rights Included in Freedom of Speech
Politically motivated speech (as discussed)
Publishing any material that can be said orally
Freedom of Association
Even if that association is based on discrimination or hatred
Receiving information
The First Amendment also protects the rights of people to read and hear what others have to say.
Soliciting funds
Though this can be, and often is, subject to reasonable time, place and manner restrictions
Freedom from being compelled to speak;
i.e.. Children may refrain from citing the pledge of allegiance in public school if they so choose.
Public Communications Law Lecture 2

7. Speech Restrictions in Public forums
This is the hardest place to regulate speech.
As discussed before, content-based regulations here require the regulation to pass strict scrutiny.
What is a public forum?
Anything publically owned, including:
Streets and parks
Public schools and universities
The airwaves and newspapers and the internet
The government is under no duty to fund speech, but once it does so, it must do so in a “viewpoint neutral” manner.
Public Communications Law Lecture 2

8. Speech Restrictions in non-Public forums
What is a non-public forum?
Any place that is not traditionally reserved for the exchange of ideas; including:
Public airports
Most government buildings
Military bases
In a non-public forum, the government may institute content-based restrictions, as long as they are viewpoint neutral.
Regarding private forums (privately owned malls and stores, etc.), there’s no freedom of speech; so the government can enforce a private property owner’s demand that speech not take place on his or her property.
Public Communications Law Lecture 2

9. Free Speech Application to Others (1)
Government Employees
A government employee may accept payment for speaking.
However, the government can restrict employees from revealing confidential information, like any other employer.
Government officials or employees can be restricted in terms of their political participation while holding a government job.
“Whistleblowers” are protected under general federal laws.
Students
There is freedom of speech for public school students, though it is more limited.
It can be prohibited if it is disruptive, obscene, etc.
School publications can be censored in the best interest of all students.
Even off-campus speech can be punished if it is disruptive.
Public Communications Law Lecture 2

10. Free Speech Application to Others (2)
Corporations
Enjoy similar free speech rights as individuals, including news networks, etc.
Commercial speech can be limited by some advertising rules or the SEC, FDA, etc.
Press
They enjoy basically the same free speech rights as individuals and get some extra protections (especially in defamation suits).
Broadcasters
If they use public airwaves, their content can be restricted more than individuals and they must follow FCC rules.
Public Communications Law Lecture 2

11. Free Speech Application to Others (3)
Cable Operators
Often not subject to FCC rules because they don’t use public airwaves.
Still, their freedom of speech is more limited than publishers.
Telephone companies
In today’s day and age, there’s little difference between them, and cable companies, and individuals, as they’re not regulated monopolies like they once were.
Internet
Users enjoy the full freedoms available to any communication. It cannot be regulated like over-the-air television.
Public Communications Law Lecture 2