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MCLawCh4notes - Chapter 4 The First Chapter 4 The First...

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Unformatted text preview: Chapter 4: The First Chapter 4: The First Amendment: Limitations How has the Supreme Court interpreted and limited the freedoms granted by the First Amendment? Limitations Limitations The Supreme Court limits freedoms on expression in a variety of ways Time, place and manner restrictions Speech plus conduct concept (literalist) Location­based forum approach Literalist and social conformist views Content restrictions Limited scope Obscenity/Indecency Non­speech? (social conformist view) Review of Philosophies of Review of Philosophies of Constitutional Interpretation Most prevailing are Literalist & Social Conformist (See Ex.4.1, p.85 in text) Literalist “pure speech” free from regulation Speech plus conduct may be regulated (limited) Politically neutral Can’t discriminate based on speaker or what’s being said Social Conformist Speech is protected, but with content classified as socially good or not and limited with a balance of competing interests Non­speech (does not advance a social good) is not protected Time, Place and Manner Time, Place and Manner Restrictions Applying the Literalist view, the Supreme Court has found restrictions on communication conduct to be permissible as long as those restrictions are content­neutral. Called Time, Place and Manner restrictions Interestingly, in order for the Court to determine content­neutrality, the content of the message must be considered, which requires some use of the social conformist theory. 9 Non­speech classifications historically not protected, and in fact often punished: Obscenity; defamation; “fighting words”; expressive conduct that tends to inflict injury; speech that incites immediate illegal conduct; speech that poses an imminent threat to national security; false/misleading commercial speech; perjury. Time, Place and Manner Time, Place and Manner Restrictions See text, pp.86­87 for further discussion of non­speech categories After review, it seems apparent that the Supreme Court bases its First Amendment interpretation on a social conformist view in that it has created these non­speech categories. Time, Place and Manner Time, Place and Manner Restrictions Applying both theories, the Court has also created several limitations on the liberties of free speech and free press From a Literalist view, the Court distinguishes between pure speech and speech plus conduct and then allows restrictions based on time, place or manner of speech or the forum in which the expression takes place From a Social Conformist view, the Court allows limitations based on content. Time, Place and Manner Time, Place and Manner Restrictions Some permissible restrictions on free expression are based entirely on the time, place or manner of communication, which means laws governing: When one may speak, Where one may communicate, or The manner or medium of expression However, for such restrictions to be constitutional, they must be absolutely content­neutral. (See p. 88) No regulations allowing preference for one point of view over another Time, Place and Manner Time, Place and Manner Restrictions To help evaluate challenges to limitations on free speech based on time, place or manner, the Court has developed a forum­based approach, so that the location of the expressive conduct helps decide what standard of review the Court will apply. Begins by dividing communication behavior into 3 categories based on location: Traditional Public Fora Designated Public Fora Non­public Fora Then the Court applies a different standard of review for each, based on the desire to balance the governmental interest in restriction with the speaker’s right of free speech Time, Place and Manner Time, Place and Manner Restrictions Traditional Public Fora Areas that have been traditionally available for public expression Public streets, sidewalks, parks, some public buildings Depends on how the area is usually used When evaluating First Amendment challenges to speech conducted in public fora, the Court uses the Strict Scrutiny standard of review Time, Place and Manner Time, Place and Manner Restrictions Traditional Public Fora Strict Scrutiny Review For the restriction to be upheld as constitutional, the government must show that: Law is narrowly tailored, To further a compelling state interest, and That there are ample alternative channels of communication open to users of these venues. Time, Place and Manner Time, Place and Manner Restrictions Designated Public Fora Areas not traditionally used for public expression, but created or designated for that purpose TTU’s “free speech” area Bulletin boards Metaphysical fora Media created for the expression of ideas Usually for a limited purpose, group Court uses Strict Scrutiny Standard to review Viewpoint discrimination impermissible so long as content is within the forum’s purpose Time, Place and Manner Time, Place and Manner Restrictions Non­Public Fora All remaining public or private property Largest category of locations where expressive behavior may be met with government and private legal restrictions Includes private property (not designated public fora) to which owners invite the public, like malls, restaurants, businesses Also includes some government properties like jails, military bases and airport terminals Time, Place and Manner Time, Place and Manner Restrictions Non­Public Fora Court uses a Reasonableness Standard of Review for these cases (here, burden on the challenging party) So reasonable restrictions are OK, and may be imposed to minimize disruption of business or to control activities within the area The restrictions must be: Content­neutral No broader than necessary to further a legitimate government purpose Allow reasonable alternative channels of communication Time, Place and Manner Time, Place and Manner Restrictions Make sure to look at Ex. 4.2 on p.90 in your text for a good overview and comparison of the three different categories of fora and the judicial reviews that attach to each. History of Sedition History of Sedition The Sedition Act of 1798 made it unlawful to publish false, scandalous, and malicious information about the government, Congress or the president. However, Thomas Jefferson felt so strongly about the First Amendment protections, that he pardoned all convicted under the Act History of Sedition History of Sedition There have been several attempts since to make it illegal to speak against the government Most have been created during times of perceived national emergencies or war Includes the PATRIOT Act of 2001 Many state sedition laws also have gone to the Supreme Court for interpretation Clear & Present Danger Test Clear & Present Danger Test From a social effects point of view, deals with when agovernmental control and punishment is generally upheld as constitutional First articulated in Schenck v. United States (1919) (see quote p.92 in text) Our rights and liberties may be interpreted differently depending on national conditions of peace and war Clear & Present Danger Test Clear & Present Danger Test This initiated the Clear and Present Danger Test Used to define the point at which speech can trigger serious harm Government does not have to show that the harm actually happened, language alone is enough Not widely accepted until Brandenburg v. Ohio (1969) And, went through many changes between 1919 and 1969 Clear & Present Danger Test Clear & Present Danger Test That decision overturned a KKK conviction and declared an Ohio law unconstitutional; and Modified the Clear and Present Danger Test to become the current Incitement Test Essentially bars laws censoring or prosecuting advocacy of force or violation of the law Unless inciting imminent lawless action or is likely to actually incite or produce violence (see Ex. 4.3, p. 94) Tort Liability Based on the Tort Liability Based on the Incitement Standard Beginning in the late 1970s, appellate courts began to develop case precedents dealing with torts based on injuries caused by expression inciting harmful conduct The legal concepts of Specific Incitement or Negligent Incitement were taken from the Brandenburg decision Tort Liability Based on the Tort Liability Based on the Incitement Standard If media reps accused of inciting harmful conduct, Π must meet a stringent burden of proof and must prove that the expression by the media is responsible for injury to the Π Heavy burden was imposed to: Avoid chilling effect on potentially valuable speech; and Avoid flood of lawsuits based on media content Tort Liability Based on the Tort Liability Based on the Incitement Standard New standard of review arose out of these types of cases Modified negligence standard Applies to suits against media Δs for harm caused by the content of their messages Uses the imminent incitement test from Brandenburg Shows how rights can be limited or expanded based on a particular political philosophy of the Court Follows the social effects view Tort Liability Based on the Tort Liability Based on the Incitement Standard General rules applied in such cases based on the foreseeability of the risk to public safety Publishers knew or reasonably should have known National Security/National National Security/National Defense In such cases, Supreme Court usually applies exceptions to the Strict Scrutiny level of review afforded government restrictions on speech and press 3 types of cases: Media gets access to critical information and chooses to publish it Government employees leak critical information to press Access to info restricted or censored because in a time of war National Security/National National Security/National Defense Typically the Court handles on a case­by­ case basis with no consistent standard of review Court does seem clear on the fact that there is no guarantee of the right of media access, but only a right to communicate all but the most sensitive of info Near v. Minnesota is an example While MN law was struck down… In dicta, discussed situations where prior restraint would be upheld, like locations of troops, etc. National Security/National National Security/National Defense N.Y.Times v. U.S. (1971) is another example (so­called Pentagon Papers case) Both the Times and the Washington Post were ultimately allowed to publish excerpts from a classified government study regarding the decision­making process in the Viet Nam war because the government could not meet its heavy burden of proof under the strict scrutiny standard Obscenity & Indecency Obscenity & Indecency Generally how either is classified depends as much on the subjective mind of the recipient as it does on the content of the message. Based on the social function theory, obscenity is non­speech and therefore afforded no First Amendment protection The definition is based on community standards and is subject to changing political pressures Obscenity & Indecency Obscenity & Indecency Indecent communication enjoys some First Amendment protection but is subject to extensive government regulation. Definition is based solely on opinions of various government agencies, populated by political appointees and therefore subject to changing political viewpoints as well. Obscenity & Indecency Obscenity & Indecency Prescriptive Laws Proscriptive Laws Prohibit behaviors Vagueness Set standards of behavior to which we must conform Laws that do not define prohibited conduct specifically enough Overbreadth Too all encompassing so as to include behaviors that are perfectly legal Obscenity & Indecency Obscenity & Indecency Avoiding vagueness and overbreadth is a constant problem in attempts to proscribe obscenity and indecency Obscenity The Court has defined as a special classification of sexually explicit material considered so offensive that it warrants no First Amendment protection Obscenity & Indecency Obscenity & Indecency Current standard of defining obscenity came out of a 1973 case (now modified) Miller Test (see Ex. 4.5, p. 102 in text) Average person Contemporary community standards Work as a whole Appeals to prurient interests And work depicts sexual conduct in patently offensive way Conduct that is defined by state law And, no artistic value, political value or scientific value Obscenity & Indecency Obscenity & Indecency Problems with Miller Test Many cases before the Court to further clarify the elements Wouldn’t any such a state law (that specifically defines…) be obscene by definition? Because community standards are used, enforcement is often arbitrary and capricious Questions abound as to its constitutional validity Obscenity & Indecency Obscenity & Indecency Only clear area of obscenity with no opposition is child pornography Definition is material showing children engaged in sexual conduct Enforced even in private homes Lately, law extended to include computer­generated virtual images Obscenity & Indecency Obscenity & Indecency While predicting what is obscene is difficult, predicting what is indecent is virtually impossible!! Indecency covered further in Ch. 5 ...
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This note was uploaded on 10/03/2011 for the course MCOM 3320 taught by Professor Parksinson during the Spring '08 term at Texas Tech.

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