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1 st Amendment Speech & Press The Right to Offend, but not Injure!. We cherish freedom to communicate ideas. From this has come religion, science, literature, commerce, art, politics. Ideas are powerful & new ideas have always been resisted in history.

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1 st amendment speech press the right to offend but not injure
1st Amendment Speech & PressThe Right to Offend, but not Injure!
  • We cherish freedom to communicate ideas. From this has come religion, science, literature, commerce, art, politics.
  • Ideas are powerful & new ideas have always been resisted in history.
    • fear of punishment stifles ideas one even suspects might be condemned
  • Thus, the 1st Amendment is designed to protect “unpopular” speech & press from the majority.
    • Jefferson said: “Where the press is free and every man able to read, all is safe.” Jefferson also said: “…. were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter if every man could receive and read them.”
    • Freedom of information is a check on government power.
    • The answer to bad speech is better speech – not censorship by the majority or government – unless harms or will harm.
speech press
Speech & Press
  • Intolerant stop ideas by killing advocates.
    • Belief earth revolves around sun (Bruno) results in death penalty (by religion)
    • Thomas Paine did not believe in literal truth of Bible & vilified.
    • 1600s profess Quakerism and Puritan theocracy condemned them to death.
    • Advocate political/social improvements in England result in trials by ordeal, torture by the church courts, death or imprisonment.
speech press1
Speech & Press
  • Ideas do incite some to right injustice, others riot for wrong.
  • The constitution establishes a line between speech/press that advances society & that which is destructive.
  • Merely because an idea is controversial & “may be disputed or lead to change” ... like God is dead, or advocating birth control, or allowing women rights, or stating earth is round & not center of universe ... is not to say it is “legally destructive speech/press.”
  • Artist shows Jesus in bottle of urine at an art museum, or the artist who showed Jesus holding a box of Wheaties in a cartoon of the Last Supper.
    • At an earlier time in U.S. history, such would have condemned the perpetrator to death, or imprisonment as heresy or blasphemy. If any contradict religious teaching (like Galileo or Bruno, or merely making statements such as: “Jesus was NOT born on December 25” would land the person in legal trouble, but also all of his relatives (corruption of blood).
    • New Broadway play by South Park authors makes fun of Mormons http://www.broadway.com/shows/book-mormon
  • 2005: Danish satirical artist Kurt Westergaard published cartoon showing Mohammed with a bomb in his turban & caused Muslim rioting around the world & church issued death fatwah. 2/12/08: 3 Islam-o-terrosits captured in Denmark planning to murder Westergaard.
  • Author Rusdie’s book Satanic Verses mildly criticized Islam & given death fatwah.
  • Read Iranian Ahmad Batebi’s story (and page 2 video) about torture at http://www.cbsnews.com/stories/2009/04/03/60minutes/main4917310.shtml
a balance
A Balance
  • In their attempt to draw the line separating permissiblefrom impermissiblespeech, judges have had to balance freedom of expression against competing values like
    • public order (yell fire crowed theater)
    • national security (how to build a nuke)
    • the right to a fair trial (hearsay evidence)
attempts to limit press prior restraint censorship
Attempts to Limit PressPrior restraint (censorship)
  • The Alien and Sedition Acts (1798)
  • Civil war President Lincoln
  • Espionage Act (1917
  • Near v. Minnesota 1931
  • New York Times v. U. S., 1971
subsequent punishment
Subsequent punishment
  • Justice Holmes defined the “Clear and Present Danger” test in Schenck v. U.S. 1919:
attempts to limit speech
Attempts to Limit Speech
  • The bad tendency test
  • Debs v. United States (1919)
    • Dennis v. U. S., 1951
osama bin laden
Osama bin Laden
  • Muslim Holy War against Americans.
  • “All efforts must be directed at this enemy America. Kill it, fight it, destroy it, break it down, plot against it, ambush it and God the Almighty willing, until it is gone.”
libel and slander
Libel and Slander
  • In 17th century England it was seditious libel to criticize the king or his ministers whether true or not...
  • Libel is a written statement that wrongly defames the character of a person.
  • Slander is spoken words that wrongly defames the character of a person.
  • In the United States, it is often difficult to prove libel or slander if “public persons” are involved.
    • New York Times v. Sullivan, 1964:
obscenity and pornography
Obscenity and Pornography
  • Efforts to define obscenity have perplexed courts for years. Public standards vary from time to time, place to place, and person to person.
  • Work that some call “obscene” may be “art” to others. Justice Potter Stewart once said he couldn't define obscenity, but "I know it when I see it." The ambiguity of definition still exists and is becoming even more problematic with the Internet.
  • No nationwide consensus exists that offensive material should be banned.
  • Roth v. United States, 1957:
  • Osborne v. Ohio, 1991:
miller v california 1973
Miller v. California (1973)
  • Miller concerned bookseller Marvin Miller's conviction under California obscenity laws for distributing illustrated books of a sexual nature.
  • In Miller, the Court's decision stated that obscene material is not protected by the First Amendment.
three pronged test for obscenity
"Three-Pronged Test" for Obscenity

In order to meet the definition of obscene material articulated in Miller, three conditions must be met:

  • whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient (unwholesome interest or desire) interest.
  • whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
  • whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
supreme court said 3 2000
Supreme Court said 3/2000
  • Ruling states nude dancing does have limited constitutional protection, but is trumped when government’s interest is in controlling “negative secondary effects.” Law restricting such is legal so long as law aimed at limiting crime that accompanies nude dancing and not the expressive act of nude dancing.
what types of speech are protected
What Types of Speech are Protected?

Symbolic speech--symbols, signs, and other methods of expression. The Supreme Court has upheld as constitutional a number of actions including:

  • Tinker v. De Moines Independent Community School District, 1969
flag burning
Flag Burning
  • Texas v. Johnson 1989
speech press2
Speech & Press
  • Vagueness: such laws have a "chilling effect" because no one knows what is or is not allowed.
speech press3
Speech & Press
  • Fighting words: illegal - can injure & provoke some to attack, injure, kill, & destroy property of others.
    • merely harsh, abusive, insulting words not enough.
  • NAACP v. Alabama ’58
  • Healy v. James ’72
assembly speech
Assembly & Speech
  • National Socialist Party of America v. Skokie 1977
federal employees
Federal employees
  • The Hatch Act
    • What does it do & why?
religious free speech
Religious free speech?
  • 11/2001:  What happened between the Westboro Baptist church in Kansas and Marines? Matthew Snyder, 20, Anbar.
    • http://www.reuters.com/article/topNews/idUSN3134225120071031
    • http://www.time.com/time/nation/article/0,8599,2056613,00.html
      • Court ruled in favor of church and free speech 8-1 right to picket military funerals.