Overview of First Amendment and free speech

1. The First Amendment,
Freedom of Speech & Press
Produced by Prof. Mark Grabowski

3. Freedom of religion
• Prevents the government from setting up or
establishing an official religion of the country.
Americans have the freedom to attend a
church, mosque, synagogue, temple, or other
house of worship of their choice. They can
also choose to not be involved in any religion
as well.

4. Freedom of speech
• Stops the government from making any laws
that may stop us from saying what we feel or
think. The American people have the right to
share their opinions with other people or
criticize the government.

5. Freedom of the press
• We have the right to publish information for
the public and to get information from many
different sources of information. The
government does not have the power to
control what is broadcasted on radio or TV,
what is printed in books or newspapers, or
what is offered online. Citizens may shares
their views in letters to the editor, leaflets,
blogs, etc.

6. Freedom of assembly
• The right to come together in private and
public gatherings. Citizens can join groups for
religious, social, recreational, or political
reasons. By organizing in order to act on a
common idea and accomplish a common goal,
Americans can more easily spread their ideas
to others.

7. Right to petition
• Americans can ask for adjustments or changes
in the government. Citizens can do this by
collecting signatures for petitions and sending
them to elected representatives. They can also
call, e-mail, or write to their elected
representatives. Another way they can
petition the government is by creating support
groups that try to cause change by lobbying
the government.

8. Such freedom is rare
Throughout most of history, governments,
parties in power, and private actors routinely
punished blasphemers, malcontents, those
with new ideas, and mostly, those who sought
to criticize them or expose their misdeeds.

9. Around the
world,
governments, like
the United States,
that recognize
the value of free
speech are rare.

10. For example: China, Iran, Syria and
North Korea block Facebook

11. China said the New
York Times was
“endangering national
security, disrupting
social order and
violating the
legitimate rights and
interests of others.”
Just yesterday …

12. Freedom of speech & press
• The right of individuals and journalists to say
(or express, or perceive) anything they want
without fear of government censorship or
reprisal, barring a defined exception.
• English philosophers, such as John Stuart Mill
and John Locke, argued for its importance in
society.

13. Why allow free speech?
• Informed citizenry: Free speech allows the truth
to surface and prevail.
• Marketplace of ideas: A free society is more
dynamic than a closed one, making it a breeding
ground for new ideas, inventions, ways of doing
business and of governance.
• Social good: those who are free are more fully
developed as human beings.
• Watchdog: Unhindered speech is a safeguard
against abuse of power, allowing journalists and
others to expose corruption and tyranny.

15. The First Amendment prohibits only the government
from restricting your speech, not anyone else.

16. Non-government
punishment for
bad speech …
• People might think
you’re a jerk (or
worse)
• You might get
“Twitter-shamed”
• Social media sites or
businesses might ban
you
• Private schools might
suspend or expel you
• Private employers
might fire you

18. Private companies can restrict speech
During the 2004
presidential election, a
woman put a "Kerry for
President" sticker on her
bumper. When her boss
saw it, he said she could
"either work for John
Kerry or work for me." The
employee refused to take
the sticker off her car and
was immediately fired.

20. Gov’t censorship is rare
• Prior Restraint means preventing publication of
speech before it is published by an injunction.
The Supreme Court has said prior restraint (or
government censorship) is presumptively
unconstitutional. The only way it will be allowed
is if the court agrees there is an imminent and
compelling threat.
• Subsequent Punishment means punishing the
purveyor of illegal speech after it is published.
This can be through civil or criminal actions. The
court allows this.

21. Pentagon Papers
In 1971, the Nixon Administration went to court to
stop publication of "the Pentagon Papers," a series of
accounts based on a stolen, classified document
entitled, "The History of U. S. Decision-Making on Viet
Nam Policy." The Administration argued that
publication would threaten national security because
other nations would be reluctant to deal with the U. S.
if their dealings couldn't be kept secret. The Court
ruled this violated the First Amendment.
Smart decision?

22. Oops?
One seemingly innocuous statement in published
reports about the Pentagon Papers was attributed
to Soviet leader Leonid Brezhnev. The Soviets
knew that the quoted statement was made inside
a Soviet limousine – a limousine that the CIA had
succeeded in bugging. As a result, the bug was
removed by the Soviets.
Does this incident suggest that courts should defer
to Administration judgments that there is a
national security need to enjoin publication?

23. Offensive speech protected
• Hate speech
• Vulgar words
• Flag burning
• Pornography
• Violent movies
& video games
• Graphic rap music

24. Also protected
• Anonymous speech
• Symbolic speech (doesn’t have to be spoken
or written)
• Online speech

25. For example, see Snyder v. Phelps
https://youtu.be/ZM6ZzEwJJs0

26. But First Amendment has limits
Free speech
& press
Right to privacy, safety,
reputation, intellectual
property, etc.

27. Court’s conclusion
• A distasteful protest sign regarding hotly debated
matters of public concern, such as homosexuality
or religion, is not the medium through which a
reasonable reader would expect a speaker to
communicate objectively verifiable facts. In
addition, the words on these signs were rude,
figurative, and incapable of being objectively
proven or disproven. Given the context and tenor
of these two signs, a reasonable reader would
not interpret them as asserting actual facts about
either Snyder or his son.

28. Obstacles to restricting speech
The Supreme Court will often rule that laws
restricting speech are unconstitutional if:
• They are written in an overly broad manner (such
laws could be arbitrarily enforced or be used to
limit legitimate speech)
• They are not content neutral (e.g. a public school
allows pro-life but not pro-choice speakers)
• They do not further a compelling government
interest unrelated to speech suppression (e.g.
nat’l security, right to privacy, etc.)

29. Some restrictions apply
Threats to harm people,
incitement to violence,
child pornography,
revealing national security
secrets, defamation, false
advertising, copyright
infringement and some
other types of speech are
not constitutionally
protected .

30. Fighting Words
• The Supreme Court has effectively limited the
“fighting words” ban to only include abusive
language, exchanged face to face, which would
likely provoke a violent reaction.
• However, lewd, vulgar, racist or profane speech is
protected. The fighting words doctrine can’t be
used to justify censorship (such as public
university speech codes that ban certain language
or words).

31. It’s not illegal to
draw swastikas, but
it is illegal to
vandalize property.
But, in RAV v St. Paul,
the police files
charges for hate
speech rather than
vandalism/trespass/
etc. So, SCOTUS
threw out the
charges.

32. Harassment
Harassment is not protected by free speech if it’s a
pattern of repeated behavior that a reasonable person
would find offensive and the victim has informed the
harasser (directly or indirectly) that the conduct is
unwelcome and must stop.
What’s illegal?
– Wearing a MAGA hat? No. (Reasonable person)
– Telling a neighbor they’re hot, even after they ask you to
stop? Yes.
– Unwanted physical contact? Yes – that’s not speech.
– Ringing an ex’s phone non-stop to annoy them? Probably.

33. Obscenity law: Miller Test
Miller v. California: 1973 case that established Supreme
Court’s current test for determining what’s obscene and
thus not protected by the First Amendment.

34. Case: “Puppy crushing” videos
• Pennsylvania enacted a law forbidding "crush
videos,” which depicted people crushing small
animals to gratify a sexual fetish. The
constitutionality of the law was challenged by
a man charged with breaking it. The Supreme
Court ruled it was written in an overly broad
manner.
• See https://youtu.be/a4xUyviw6zY

35. “I know it when I see it”
This phrase was
famously used in a 1964
case by United States
Supreme Court Justice
Potter Stewart to
describe his threshold
test for obscenity. The
Miller Test now defines
what’s legally obscene.

36. Nat’l Security: What if someone wanted to print
an article on how to build a nuclear bomb?
Already happened . The U.S. went to court to enjoin
publication of an article scheduled to appear in the left-
wing magazine, The Progressive. The article, "The H-
Bomb Secret: How We Got It and Why We're Telling It,"
was essentially a how-to-do-it account for anyone
wanting to build an atomic bomb. Reasoning that the
article presented a clear and present danger of speeding
the efforts of foreign nations or terrorist groups
interested in developing atomic weapons, a Wisconsin
federal district judge issued an injunction against
publication.

37. Later, the story was
published outside
the U.S., making the
case moot. To date,
no direct harm has
been traced to the
story.

38. K-12 school speech restrictions

39. But some protections

40. What about student
speech outside school?
• https://youtu.be/6x5hLOd-vUU

42. First Amendment continues to evolve
• The First Amendment was ratified in 1791.
The Founders couldn’t have envisioned new
media such as the internet.
• No worries: The Constitution of the United
States is referred to as a "living document"
because its authors intended for it to be
adapted by future generations..
• So … amendments can be added to it. And
courts can interpret how it applies to new
developments and issues.

43. First Amendment rights
often must be asserted
• Government and public school officials frequently
attempt to trample on people’s First Amendment
rights (either intentionally or due to ignorance).
• In such cases, you need to speak up. You may
need to hire a lawyer. Sometimes, organizations
such as the ACLU, SPLC and FIRE will provide free
legal representation. Sometimes, public pressure
and negative publicity can bring about change.

44. Many people support only the
broad concept of free speech

45. Many favor more restrictions
______
But where do we draw the line? What’s
“offensive” may vary by person and situation.
If one person can be silenced, anyone can.

46. • Dan Savage: "All men look
at porn … The handful of
men who claim they don’t
look at porn are liars or
castrates.”
• 65 percent of men say
they feel bad about
watching porn.
• Only 29 percent of
Americans think watching
porn is morally
acceptable.
• 39 percent said they'd
oppose legal restrictions
on pornography.

47. “marketplace of ideas”

48. Selective exposure even more common today
A 2014 Pew Research Center
survey found conservatives
are twice as likely to have a
Facebook news feed that
aligns with their own views,
while nearly half of liberals
have blocked or defriended
someone on social media
because they disagreed with
something that person
posted about politics.

49. offensive speech
We need to tolerate a lot of offensiveness in
society. There are no purely self-regarding acts,
since our behavior will invariably offend some
people who hold different values and opinions.
But if the law were to recognize being offended
as an injury, it would swallow up the category of
self-regarding acts. Therefore, the law must not
recognize as a cognizable injury merely being
offended (or even deeply offended)

50. “There are many who consider as an injury to
themselves any conduct which they have a distaste
for, and resent it as an outrage to their feelings; as a
religious bigot, when charged with disregarding the
religious feelings of others, has been known to
retort that they disregard his feelings, by persisting
in their abominable worship or creed. But there is
no parity between the feeling of a person for his
own opinion, and the feeling of another who is
offended at his holding it; no more than between
the desire of a thief to take a purse, and the desire
of the right owner to keep it. And a person’s taste is
as much his own peculiar concern as his opinion or
his purse.”

51. Ethical considerations
Should the First
Amendment protect
hate speech? Explicit
music? Pornography?
Violent video games?
Why or why not?
https://youtu.be/gnbqCqLZsjk