3 - First Amendment & Speech Flashcards
First Amendment
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.
Freedom of Speech
While free speech is considered a nearly absolute right in the U.S., over the years some exceptions have been established.
Free Speech Exceptions:Incitement
In Brandenburg v. Ohio (1969) the Supreme Court ruled that speech which is “directed to inciting or producing” “imminent lawless action” and is “likely to incite or produce such action” is not protected by the first amendment.
Reversed a criminal conviction of a Ku Klux Klan group for “advocating… violence… as a means of accomplishing political reform” because their statements at a rally did not express an immediate, or imminent intent to do violence.
Changed a previous decision Schenck v. United States (1919), which simply decided that a “clear and present danger” could justify a congressional rule limiting speech.
Free Speech Exceptions:
Incitement
False Statement of Facts
Obscenity (pornography)
“Fighting Words”
Threats
Copywrite and Trademark
Commercial Speech
Free Speech Exceptions:False Statement of Facts
In Gertz v. Robert Welch, Inc. (1974), the Supreme Court found “no constitutional value in false statements of fact”. There are 4 types of false statement.
Statements made with a “sufficiently culpable mental state” can be subject to civil or criminal liability.
Knowingly making a false statement of fact is almost never protected (libel and slander law are permitted under this category).
Negligently false statements of fact may lead to civil liability in some instances.
Free Speech Exceptions:Obscenity (pornography)
Obscene speech is not protected by the first amendment. In Miller v. California(1973) the Supreme Court established a three level test to determine if speech can be prohibited:
“the average person, applying contemporary community standards, would find that the [subject or work in question], taken as a whole, appeals to the prurient interest”
And “depicts or describes, in a patently offensive way, sexual conduct defined by the applicable state law”
And the work, taken as a whole, lacks serious literary, artistic, political, or scientific value”
Free Speech Exceptions:“Fighting Words”
In Chaplinsky v. New Hampshire (1942), the Supreme Court found that speech which constitutes “fighting words” is speech that “tend[s] to incite an immediate breach of the peace” by provoking a fight, so long as it is a “personally abusive [word] which, when addressed to the ordinary citizen, is, as a matter of common knowledge, inherently likely to provoke a violent reaction”.
Such speech must also be “directed to the person of the hearer” and “likely to be seen as a ‘direct personal insult’”.
Free Speech Exceptions:Threats
Threats of violence that are directed at a person or group of persons that has the intent of placing the target at risk of bodily harm or death are generally unprotected.
However, there are several exceptions. For example, the Supreme Court has held that “threats may not be punished if a reasonable person would understand them as obvious hyperbole”.
Additionally, threats of “social ostracism” and of “politically motivated boycotts” are constitutionally protected.
Free Speech Exceptions:Copywrite and Trademark
In Harper & Row v. Nation Enterprises (1985), infringement of copyright law was ruled not to be protected by the First amendment.
Enforcing broadcasting rights for TV Shows, films and other copy-written material are not an infringement of free speech.
The Court has upheld such restrictions as an incentive for artists in the ‘speech marketplace’.
Free Speech Exceptions:Commercial Speech
While the Supreme Court has not established clear guidelines as to the limits of commercial speech it has recognized that commercial speech has “diminished protection “.
False advertising can be prohibited, and commercial speech in general can be restricted in ways that other speech can’t.
infringment of first amendement free speech rights
West Virginia v. Barnette(1943)
In this case the Supreme Court of the United States ruled that forcing students to salute the American flag or to say the Pledge of Allegiance in school was an infringement of students first amendment free-speech rights.
the Court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas).
Cohen v. California(1971)
A 19-year-old department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with “FUCK THE DRAFT. STOP THE WAR” The young man, Paul Cohen, was charged under a California statute that prohibits “maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct.” Cohen was found guilty and sentenced to 30 days in jail.
In an opinion by Justice John Marshall Harlan, the Court reasoned that the expletive, while provocative, was not directed toward anyone; besides, there was no evidence that people in substantial numbers would be provoked into some kind of physical action by the words on his jacket. Harlan recognized that “one man’s vulgarity is another’s lyric.” In doing so, the Court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas).
“[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Texas v. Johnson(1989)
In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an American flag as a means of protest against Reagan administration policies. Johnson was tried and convicted under a Texas law outlawing flag desecration. He was sentenced to one year in jail and assessed a $2,000 fine. After the Texas Court of Criminal Appeals reversed the conviction, the case went to the Supreme Court.
In a 5-to-4 decision, the Court held that Johnson’s burning of a flag was protected expression under the First Amendment. The Court found that Johnson’s actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that “[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Virginia v. Black(2003)
Barry Black was convicted of violating a Virginia statute that makes it a felony “for any person…, with the intent of intimidating any person or group…, to burn…a cross on the property of another, a highway or other public place,” and specifies that “any such burning…shall be prima facie evidence of an intent to intimidate a person or group.”
At trial, Black objected on First Amendment grounds to a jury instruction that cross burning by itself is sufficient evidence from which the required “intent to intimidate” could be inferred. He was found guilty.
Virginia’s cross-burning statute, which prohibits the burning of a cross, violates the First Amendment.
In a plurality opinion the Court held that while a State may ban cross burning carried out with the intent to intimidate the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form.
Freedom of Speech in France and the US.
Just as the idea of separation of church and state has been interpreted and implemented differently in France and the US, the limits to free speech are noticeably different in the two countries.
As a general rule, speech is less restricted in the US, in particular from the point of view of legislation concerning what is allowed and what is prohibited.
France limits free speech in a few ways that the US does not:
Privacy
Defamation of political figures
Historical revisionism
Insults
Hate Speech
