1. Chapter 19: Civil Liberties: First Amendment Freedoms Section 3

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Objectives
Explain the importance of the two basic purposes served by the guarantees of free expression.
Summarize how the Supreme Court has limited seditious speech and obscenity.
Examine the issues of prior restraint and press confidentiality, and describe the limits the Court has placed on the media.
Define symbolic and commercial speech; describe the limits of their exercise.
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Key Terms
libel: the false and malicious use of printed words
slander: the false and malicious use of spoken words
sedition: the crime of attempting to overthrow the government by force or disrupt it by violent acts
seditious speech: advocating sedition
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Key Terms, cont.
prior restraint: banning an idea before it is expressed
injunction: a court order
shield laws: laws protecting lawyers from giving up confidential sources
symbolic speech: expressing an idea by one’s conduct
picketing: patrolling a workplace while on strike
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Introduction
What are the limits on the guarantees of free speech and free press?
No person has the right to libel or slander another person.
It is illegal to encourage others to commit a crime.
Laws can ban the use of obscene words, printing or distributing obscene materials, and false advertising.
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Free Expression
The 1st amendment guarantees each person the right of free expression by speech, writing, and all other means of communication.
The 14th Amendment extends this federal right to citizens of every state.
Everyone has the right to hear what others have to say on public issues.
Only an informed populace can make good decisions about public policy.
Promote wide ranging discussion of public affairs
To preserve democracy - essential that people make sound reasoned judgements on matters of public concerns
Must know all the facts and interpretations of those facts
Intended to protect unpopular views
Some forms of of expression are not protected
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Seditious Speech
Congress passed laws banning seditious speech.
The Alien and Sedition Acts of 1798
punished government critics.
The Espionage Act of 1917
crime to say, write, or publish disloyal remarks about government.
The Smith Act of 1940
crime to urge or plan violent overthrow of American government.
Alien and Sedition Acts - John Adams - undesirable aliens deported - false, scandalous and malicious criticism of govt.
Espionage Act of interfered with the draft -
Smith Act of advocate the overthrow of the government - upheld in Dennis v. U.S modified in Yates v U.S. (differentiate between urging someone to believe something and urging someone to do something)
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8. What Counts as Sedition?
Schenck v. United States (1917)Supreme Court established “clear and present danger rule.”
Conviction upheld
Banned words strong risk that encourage criminal activity.
Yates v. United States, the Court ruled that it is not illegal to urge someone to believe something but it is illegal to urge them to do something.
Schenck - Socialist Party - urged draftees to refuse military service
Yates - Challenge to the Smith Act - led to overturning convictions of Communist leaders who advocate the overthrow of government.
- Made Smith Act unenforceable
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Obscenity
Illegal under federal and state law to distribute obscene material.
The Supreme Court created a three-part test
Material is obscene if it:
Incites lust according to local community standards
Describes sexual conduct banned in anti- obscenity law
Lacks serious literary, artistic, political, or scientific value
Roth v. U.S. - Ruling applied also to state obscenity - prevented mailing of obscene material - “offended average person based on contemporary community standards”
OBSCENITY is not protected speech - Indecent speech however is protected.
NOTE FOR TEACHERS: The three-part obscenity test comes from the Supreme Court ruling in Miller v. California, 1973.
“I know it when I see it”. Justice Potter Stewart
Moral standards vary from time to time, place to place and person to person
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Prior Restraint
Government censorship is usually illegal.
Near v. Minnesota (1931)
New York Times v. U.S(1971)
Censorship may be allowed
if it endangers national security.
applied to censor material distributed in military bases and federal prisons
about the CIA (SneppvUS1980)
Government may not curb ideas before they are expressed.
Near v. MN (1931) - Court struck down state law that allowed public officials to prevent publishing of news stories that used malicious, scandalous and defamatory remarks against them. Local Court placed injunction on the Saturday Press.
Ruled that only during wartime and when material is obscene can prior restraint be enforced.
Nixon administration sought an injunction to prevent Pentagon Papers from being published in the New York Times.
The Court ruled the government did not prove that printing documents would compromise National Security.
Heavy presumption against its constitutionality. More important to preserve the publics right to know.
Even if it involves revealing information about a terrorist plot and how it was thwarted?
The Supreme Court has ruled that under federal law, news reporters must testify in court even if it means revealing confidential sources.
Reporters argue that if they cannot assure confidentiality, individuals like whistle blowers would be reluctant to reveal important information. (Watergate, Pentagon Papers)
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Prior Restraint, cont.
Checkpoint: How has the Supreme Court ruled on student speech?
Public schools have broad power to censor “school-sponsored expressive activities,” including school newspapers and plays.
Hazelwood School District v. Kuhlmeier (1988)
Checkpoint Answer: Student speech (including writing) has fewer protections that speech made outside of a school setting, and may be censored by school officials for educational reasons.
Hazelwood School District v. Kuhlmeier - series of articles on teen pregnancies and the impact of divorce on teenagers.
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The Media, cont.
The movie industry
less protection than newspapers
Films can be censored.
Radio and television receive the least amount of 1st Amendment protection.
Heavily regulated (cable TV less so)
Radio and TV stations are licensed to broadcast their signals on publicly owned airwaves.
No guaranteed 1st Amendment right to broadcast their material.
Fall under the commerce power of Congress.
FCC can refuse license, issue fines and prosecute
NOTE TO TEACHERS: The main bullet and the second sub-listing refer to the ruling in FCC v. Pacifica Foundation, 1978 and Red Lion Broadcasting Co. v. FCC, The first sub-listing refers to the ruling in National Broadcasting Co. v. United States, 1943.
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The Media, cont.
Few Supreme Court cases dealing with the Internet
laws aimed at stopping distribution of pornography online struck down
One exception; Children’s Internet Protection Act.
Reno v. American Civil Liberties Union, 1997
Text
NOTE TO TEACHERS: The relevant Supreme Court rulings are Reno v. American Civil Liberties Union, 1997 (overturned an anti-pornography law) and United States v. American Library Association, 2003 (upheld CIPA).
U.S. v. American Library Association 2003
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Symbolic Speech
Symbolic speech is the expression of ideas by a person’s conduct and is often meant as an act of dissent.
Peaceful picketing is protected speech
Thornhill v. Alabama 1940
Burning the American flag or a cross as a political protest is also protected speech according to the Supreme Court. (Texas v. Johnson 1989)
Tinker v. Des Moines School District (1969)
students may wear black armbands in protest of Vietnam War.
NOTE TO TEACHERS: The relevant Supreme Court case for the first sub-listing is Thornhill v. Alabama, For the second sub-listing, the two flag-burning Court cases are Texas v. Johnson, 1989 and United States v. Eichman, The cross case is Virginia v. Black, 2003.
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Symbolic Speech, cont.
Checkpoint: When are acts of dissent by speech punished?
If the object of the protest is within the constitutional powers of the government
If whatever restriction is placed on expression is no greater than necessary
If the government’s real intent is not to prevent dissent
Checkpoint Answer: See the listed items above, which can be restated as follows: If the act or law being protested is a legal action of the U.S. government, if the limit on free expression is not excessive, and if the government’s goal is not specifically to ban dissent.
NOTE TO TEACHERS: These criteria come from the Supreme Court case United States v. O’Brien, 1968, in which four young men who burned their draft cards to protest the Vietnam War were prosecuted because burning draft cards was a federal crime.
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Commercial Speech
Commercial speech most often refers to advertising.
The Supreme Court usually strikes down arbitrary bans on advertising.
The government can ban false and misleading advertisements or the advertising of illegal goods and services.
Congress has also banned tobacco ads on radio and television.
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Review
Now that you have learned about the limits on the guarantees of free speech and free press, go back and answer the Chapter Essential Question.
How can the judiciary balance individual rights with the common good?
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