“… and whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States ... shall be punished”
The First Amendment Bill of Rights U.S. Constitution
The Bill of Rights was designed to protect the rights of individual citizens and limit the power of the federal government.
The First Amendment states:
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.
Supreme Court Decision – written by Chief Justice Oliver Wendell Holmes
Decision: The United States Supreme Court affirmed Schenck's conviction. Reasoning: … the character of every act depends upon the circumstances in which it is done.... The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
Justice Holmes then upheld the convictions in the context of a wartime draft , holding that the pamphlet created “a clear and present danger” of hindering the war effort while our soldiers were fighting for their lives and our liberty .
Mailing leaflets = shouting fire?
Dershowitz questions the logic of treating these two acts as equivalent.
Schenck pamphlet urged people to think about its message and make a decision based on reason , then to act on that decision in a non-violent way.
A better analogy?
Shouting “Fire” is designed to force action without contemplation.
Equivalent to setting off an alarm bell .
Better analogy: Schenck stands outside the theater, handing out a pamphlet urging people not to enter the theater because it has unresolved fire hazards .
But the core analogy is the nonverbal alarm, and the derivative example is the verbal shout. By cleverly substituting the derivative shout for the core alarm, Holmes made it possible to analogize one set of words to another–as he could not have done if he had begun with the self-evident proposition that setting off an alarm bell is not free speech.
Jerry Falwell vs. Hustler Magazine
A Hustler magazine parody portrayed Rev. Jerry Falwell as having engaged in a drunken sex with his mother in an outhouse (Hustler Magazine v Falwell, 485 US 46)
The inside front cover of the November 1983 issue of Hustler Magazine featured a "parody" of an advertisement for Campari Liqueur that contained the name and picture of respondent and was entitled "Jerry Falwell talks about his first time.“
This parody was modeled after actual Campari ads that included interviews with various celebrities about their "first times." Although it was apparent by the end of each interview that this meant the first time they sampled Campari, the ads clearly played on the sexual double entendre of the general subject of "first times."
Jerry Falwell sued Hustler for libel – the crime of damaging the reputation of another person with false statements.
Because no reasonable person could believe this statement is true, it is not illegal. The Supreme Court ruled in favor of Hustler magazine.
Falwell sued Flynt, Hustler magazine, and Flynt's distributing company in the United States District Court for the Western District of Virginia for libel, invasion of privacy, and intentional infliction of emotional distress. Before trial, the court granted Flynt's motion for summary judgment on the libel and invasion of privacy claims, and the remaining charge proceeded to trial. A jury found in favor of Falwell on the intentional infliction of emotional distress charge, and awarded him $150,000 in damages .
"At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern . The freedom to speak one's mind is not only an aspect of individual liberty -- and thus a good unto itself -- but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions".
Burning the Flag on the steps of the capitol in Olympia
This is a protected form of expression, though not a popular one (United States v Eichman, 496 US 310)
The Supreme Court upheld a law which banned flag burning for the purpose of intimidation (Virginia v.Black, 123 S. Ct. 1536), and distinguished it from a general blanket on flag burning.
Is this speech protected?
Burning a Cross in front of an African American Home
“ The government cannot outlaw cross burning because this would outlaw the message. The fact that this type of message is generally not accepted in our society any more does not make it illegal for those who continue to say it. R.A.V. v St. Paul, 505 US 377”
Is this speech protected?
“ I hear that Senator Murray sells her votes to well-heeled liberal lobbyists.”
If the comment is not true, and the speaker knows that, and someone heard it and believes that it is true, then the speaker could be guilty of libel.
Libel – making false statements that damage someone’s reputation
Notable exceptions to Freedom of Speech
“ My wife/husband is a real pain in the ass. You know, if someone were to “take care” of the situation, there could be some serious money in it for them. Like about $10,000.”
Solicitation to commit murder. This is the crime of which actor Robert Blake is currently accused.
“ FIRE, FIRE, Run for your lives….”
If you are negligently or recklessly endanger others you are not protected by the constitution
Said in an angry, threatening voice
A: What the hell are you looking at?
B: Nothing, nothing at all
A: You some kind of smart-ass. Aren’t you?
B: [Making a fist] Hey buddy, you going keep your mouth shut, or am I going have to help you
Chaplinsky v. New York
Fighting Words, likely to cause an imminent breach of the peace, not protected
In the U.S., although the first amendment says there shall be no law abridging the freedom of speech, the Courts have set some limits on the types of speech that are actually protected.
Give examples of censored language in Taiwan. Discuss the legal basis for censorship, and whether you agree or disagree with the government’s decision.
Freedom of Speech in Taiwan
Is freedom of speech protected by Taiwan’s constitution?
What kind of speech is protected?
What kind of speech is not protected?
Give examples of how the government has censored speech in Taiwan’s past or present.
Is destruction of national symbols protected as a form of protest?
Is hate speech protected in Taiwan?
Is libel protected in Taiwan?
Should this student have been expelled?
Doug Hann, a student at Brown University, was heard shouting racist, anti-gay and anti-Semitic (Jewish) insults on campus.
No one was physically hurt, or threatened with physical violence.
The Undergraduate Disciplinary Council ruled that Hann be expelled from Brown.
Hann’s case set a precedent
Hann was the first student to be expelled for violating a hate speech code.
The president of Brown University denied the claim that Hann was expelled for exercising free speech.
Instead, he was expelled for “inappropriate, abusive, threatening or demeaning behavior . Behavior that shows….. (p.387)
American Civil Liberties Union’s Response
Test to determine whether Hann was expelled for speech or behavior:
Would the student have been expelled if the message he shouted had been different?
Examples: shouting “Black is beautiful.” “Go Brown! Beat Yale!”
If the answer is no, then Brown should admit that the student was expelled for the content of his speech, not for the action of drunken shouting
Are you in favor of unlimited freedom of expression?
When does the government have the right to limit free speech?
Speech that puts others in danger
False statements that could damage an individual or a society (also depends on whether the speaker has the power to influence public opinion)
Public and private statements should be evaluated differently.