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30 Cards in this Set
- Front
- Back
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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. |
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Five Freedoms |
Speech, Press, Religion, Assembly, and Petition.
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Bill of Rights |
The Founding Fathers proposed the Bill of Rights, subject to state ratification, to protect those cherished rights, including speech and press, which Great Britain had suppressed in Colonial America. |
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Development of Freedom of Expression from the 17th Century |
Thomas Paine’s Common Sense challenged British censorship (because editors were jailed and books were burned for printing without permission) – Stamp Act of 1765 put a tax on newspapers. |
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Seditious Libel |
Written or spoken words, pictures, signs, or other forms of communication that tend to defame, discredit, criticize, impugn, embarrass, challenge, or question the government, its policies, or its officials; speech that advocates the overthrow of the government by force or violence or that incites people to change the government by unlawful means. |
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John Peter Zenger Case |
-John Peter Zenger: editor of NY Weekly Journal was arrested, jailed and tried for “raising sedition” by criticizing Governor Cosby and the incompetent colonial government bureaucracy. Freedom to express justifiable truth.
-Acquitted for seditious libel in 1735. |
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Alien and Sedition Act |
- Could punish “…any person shall write, print, utter or publish …any false, scandalous and malicious writing…” against the federal government, the Congress, or the President. ---
-Meant to muzzle Anti-Federalist editors. |
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Basis of freedom of expression. |
1. Value to the individual (self-fulfillment theory)
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First Amendment Theories |
1. Absolutist Approach 2. Liberty Model 3. Self Governance Rationale 4. Checking Function
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Absolutist Approach
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Found unrealistic by Supreme Court. Namely "No law means no law." can be restrict to speech and press. Can be applied to criticism of the government or the FCC broadcasting equal time provisions.
CRITICISM: incites immediate violence, directly causes harm to others, or endangers children. |
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Liberty Model
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Focused on the value of free speech for individual autonomy and self-fufillment. Would protect all expressive conduct until that expression interferes with the rights of others, hinders personal decision making or injures.
CRITICISM: Not grant Press such protection |
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Self Governance Rationale
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In a democracy, the citizen is the most important "official". Freedom of speech, truth-seeking activities are rooted in the heart of self-government deserves absolute protection from censorship since its necessary for citizens to make informed judgments on crucial issues.
CRITICISM: unrealistic due to low voter participation |
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Checking Function |
-The First Amendment was created to be a check on the abuse of government power.Only the mass media have the real power to monitor government, so they need special First Amendment protection, and less so for individuals. |
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How do courts approach the First Amendment |
1. Categorical Approach 2. Balancing Approach |
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Categorical Approach |
- Speech is put into a category and protection is awarded accordingly High-low...
Ex. Press freedom: FCC's licensing of broadcast radio and tv stations under the "spectrum scarcity" rationale, while print publications are not licensed by the federal government.
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Balancing Approach |
-Government interests are balanced against speech protections, and a balance is struck, often on a case-by-case basis.
-Favored by ideology of the current Supreme Court where it will devise a "test" or specific guidelines in an attempt to balance the government interest against free speech & press. |
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Speech/Conduct Distinction |
Government may constitutional prohibit and punch conduct more readily than expressive activity.
Ex. Trespassing on private property, racial motivated crimes. |
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Content Neutral Regulation |
Laws regulating expressive activity but not based on it content. Regulations based on time, place and manner restriction, not content. Courts elevate the law using lower scrutiny, such as a rational basis review. Does the law serve some rational purpose? *Law is often upheld. Ex. Law against rock band performing on a public street at night |
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Content Based Regulation |
Law regulating expressive activity based on its content, courts evaluate strict scrutiny; the law is presumed invalid. To pass strict scrutiny, regulation must be narrowly tailored to serve a compelling government interest.
EX. 1970' Draft card burning |
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What categories of speech are unprotected based on their content? |
1. Fighting words 2. Obscenity (Child Porn) 3. Defamation 4. Incitement to imminent lawless action (*yelling fire in a movie theatre) 5. Commercial Speech; misleading, deceptive or promoting illegal transactions |
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Content that is not regulated or protected |
1. Offensive Speech: "F.. the draft" ruled as protected speech. 2. Hate Speech: Court has not made a definitive ruling. 3. Pornography that exploit and degrades women
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Overbreadth/ Overbroad
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A law that prohibits both unprotected and protecting expressive activity. Prohibition of too much speech- the law will be ruled unconstitutional.
Ex. The communications decency act banned Internet sales of indecent materials to minors, but prohibited parents from searching Web for indecency with their children |
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Vagueness |
Difficult to predict whether the law prohibits expressive activity or not. The law must give notice on how to obey it. Persons of common intelligence much be able to know they are violating the law. * Due process clause of the Fifth and Fourteenth Amendments. |
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Prior Restraint |
Prior restraint (also referred to as prior censorship or pre-publication censorship) is censorship imposed, usually by a government, on expression before the expression actually takes place. |
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When is Prior Restraint Justified? |
Incitement to overthrow the Government, obscenity or a threat to national security.
ex. publishing the movement of troops during wartime. |
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Near v Minnesota |
A Minnesota law that imposed permanent injunctions against publication of newspapers with "malicious, scandalous, and defamatory" content violated the First Amendment. (NOTE: court did not establish ban on Prior Restraint)
Law resulting from case: No prior restraint of the content of new by the government is allowed unless it reveals crucial military information, contains obscenity, or may directly incite acts of violence. |
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Prior Restrain and the Pentagon Papers |
HOLDING: To exercise prior restraint, the Government must show sufficient evidence that the publication would cause a “grave and irreparable” danger. |
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Pentagone Papers: New York Times Co. v. United States, (1971) |
Former pentagon employee, Daniel Ellsberg, leaked classified documents relating to American's involvement in Vietnam to the New York Time and Washington Post. Nixon Administration sought an injunction to stop publication due to "national security." -Court of Appeals (NY) halted New York Times -Court of Appeals (DC) allowed the Post to publish. -Supreme Court rejected the government's argument to restrain further publication since the threat of national security was not proven. |
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Clear and Present Danger Doctrine |
Adopted by the Supreme Court to determine under what circumstances limits can be places on First Amendment Freedoms. ex. falsely shouting fire in a movie theatre
Schenck v United States (1919): Incident of lawless action- criticism of draft not protected by First Amendment. |
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Levels of First Amendment Protection |
Highest to Lowest: Political Speech- discussion of proposed laws. Matters of Public Interest & Concern- building a new highway system. Public Figure- criticizing a professional athlete Interpersonal Communications- talking to someone on the phone Commercial Speech- advertising Indecency- cursing on the radio Obscenity- child pornography |
