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1. First Amendment Topics • Origins of FA rights • Development of the FA • First Amendment theory • First Amendment applications • Print media • Electronic media • On-line environment

2. Free Speech Paradigm • Communicators • Are some segments of the population denied the right to speak? • Content of expression • Are some types of speech tolerable while others are not? • Is some speech tolerable only under certain circumstances?

3. Speech Rights Historically • Ancient Greece • Roman Republic • Roman Empire • Middle Ages • Evolution in Britain • Divine right of kings v. Magna Carta • Rise of “the press” – role of technology

4. Historically Regulated Speech • Seditious libel • Criticizing the government • Defamation • Impuning one’s reputation • Blasphemous libel • Criticizing the church • Obscene libel • Speech that “tends to disturb the civil order of society”

5. Speech in Colonial America • First colonists well aware of suppression of speech in England so were things different in the New World? • Essentially the same … but why?

6. Role of the Revolution • Passage of the Stamp Tax of 1765 • Impact on the press • Role of the press in the war effort

7. Birth of the First Amendment • U.S. Constitution adopted without the Bill of Rights – why? • Very little “legislative history” to tell us what they intended the First Amendment to mean but most experts agree: • No radical departure from the common law tradition intended • It is not an absolute prohibition on government action that might curtail speech • So what restrictions on speech are constitutionally permissible, and which are not?

8. Alien and Sedition Acts of 1798 • Federal crime to publish seditious ideas • How can this law co-exist with the First Amendment?

9. Clear and Present Danger Test • First appeared in Schenck v. U.S. (1919). • Clearest statement in Brandeis concurrence in Whitney v. California (1927) • Elements to be proven: • Reasonable grounds to fear that • Serious evil will result from speech and • The apprehended danger must be imminent.

10. Balancing Societal Interests • Why is the First Amendment important? • What are the interests that it protects? • What are other “competing” interests?

11. Types of Balancing Tests • Ad hoc balancing • Focus on specific interests tied to facts of given case and balance those competing interests with a holding limited only to that situation. • Definitional balancing • Categorize speech and/or speakers and generalize so the result can have a wider application.

12. Rules of Judicial Construction • Legislation is presumed to be constitutional until a court rules otherwise. • Also applies to administrative rules • Courts defer to the discretion of the lawmakers • “Preferred position” – laws that restrict political freedoms should not be given this presumption • The government should have the burden of proving that a restriction on such rights/liberties is necessary.

13. Components of the Analysis • Is law directed to speech? • Reach of the law/regulation • Nature of the governmental interest the law is designed to advance • Degree to which law interferes with First Amendment interest • Often will look at relationship between effectiveness in achieving goal of law and impact on speech rights

14. Tests of Constitutionality • Strict scrutiny • Intermediate scrutiny -- O’Brien test • Minimum scrutiny -- rational basis test

15. Strict Scrutiny • Applied to content-based regulations • Furthers a compelling state interest • Narrowly-tailored to advance that interest • Least restrictive alternative

16. Intermediate Scrutiny • Used where regulation is content-neutral and imposes an incidental burden on speech • Substantial, significant or important state interest • Narrowly-tailored • Restriction no greater than necessary to further the government interest • There are alternative channels of communication – need not be the least restrictive alternative

17. Rational Basis Test • Regulation applies to many parties, not just speech interests • Legitimate government interest • Restriction is a reasonable way to advance the state interest

18. Time/Place/Manner Restrictions • Generally content-neutral • Public property • Public forum • “Designated” public forum • Non-public forum • Private property • “Truly private” property • Private but open to public

19. Prior Restraint • Doctrinal dilemma created by Near v. Minnesota (1931) • Legal standard reinforced in New York Times v. United States (1971) • Current test established in Nebraska Press Ass’n v. Stuart (1976)

20. To Obtain a Valid Prior Restraint: • Proof that publication will irreparably harm party seeking restraint. • Proof by party seeking restraint that no alternative will be effective. • Proof that prior restraint will be effective.

21. Procedural Requirements • Censor has burden of instituting a proceeding • Adversarial hearing to review requested restraint • Prompt final judicial determination required

22. Recent Prior Restraint Contexts • Judicial restrictions on coverage of proceedings • Mistaken disclosure of protected material • Protecting identity and/or personal information • Enjoining defamatory publications • Protecting business interests • Prohibiting obscene speech • Controlling speech in schools

23. Prior Restraint on the Internet • Same rules as with other media • Few litigated cases • Most involve intellectual property • Some involve technology • DeCSS cases • Digital Millennium Copyright Act

24. Print Media & the 1st Amendment • Where content is the issue: • Miami Herald v. Tornillo (1974) • Non-content issues: • Minneapolis Star Tribune v. Comm’r (1983)

25. Models for Regulation • Print model • Miami Herald v. Tornillo (1974) • Broadcast model • NBC v. United States (1943) • Red Lion Broadcasting v. FCC (1969) • Common-carrier model • Hybrid model • Turner Broadcasting v. FCC (1997) • National Cable & Telecommunications Ass’n v. Gulf Power Co. (2002)