Politics & Ethics: Freedom of Speech

Limitations, Regulations, &

Censorship

• Traditionally rooted in rigid systems of religious and

governmental control over speech and print.

• The term derives from the office of the census in

early Rome, where the censor served as both

census taker and as supervisor of public conduct

and morals.

• Before the advent of the printing press in the 15th

century, most manuscripts in Europe were produced

in monasteries, which controlled their production.

• After the invention of the printing press both church

and state controlled content perceived as threats to

their authority.

• The English monarchy had published lists of

prohibited books starting in 1529 and exercised

its control through a contract with the Stationers'

Company, which, in 1557, was granted a

monopoly

• This contract remained in effect until 1694.

• It was then replaced with less systematic

methods, such as laws against seditious libel,

through which speech that merely criticized

government policies could be punished.

• Although systems similar to these continue to exist in

modern-day authoritarian regimes, they are consensually

viewed as incompatible with democracy.

• The history of free speech principles in the West

coincides with the rise of democratic thought, as

expressed by 18th century Enlightenment philosophers in

France and in the influential political philosophies of John

Locke, John Milton, and John Stuart Mill in England.

• For instance, Locke explained that governments are the

servants of the people, not the reverse, thus speech

could no be dependent of a people’s rulers

• The right, guaranteed by the First Amendment to

the U.S. Constitution to express beliefs and

ideas without unwarranted government

restriction.

• However, democracies have long grappled with

the issue of the limits, if any, to place on the

expression of ideas and beliefs.

• Some, like Justice Hugo L. Black, have believed

that freedom of speech is ABSOLUTE.

• But many agree with Justice Oliver Wendell

Holmes Jr., who felt that the Constitution allows

some restrictions on speech under certain

circumstances.

• Holmes famously made the example a someone

yelling fire in a crowded theater as proof that

there must be some regulations in place

• In this 2002 case, a federal appeals court ruled that an anti-abortion website was not protected by the First Amendment.

• The website posted photos, names, addresses, and other information pertaining to abortion providers, their family members, and supporters.

• Although no explicit threats were posted, violence at clinics that provided abortions had followed poster distribution in the past.

• Planned Parenthood sued the group and the court sided with Planned Parenthood stating the content was threatening and thus life-endangering.

• The legal principles governing freedom of expression are

based largely on interpretations of the First Amendment

whose "speech" and "press" clauses are combined in the

statement that "Congress shall make no law ... abridging

the freedom of speech, or of the press."

• This places a burden on governments to justify any and

all regulatory action.

• On the other hand, this framing excludes from discussion

the positive role that governments can (and do) play in

supporting these needs.

• Pretty much protected in public forums, such as

parks and sidewalks, as far as content is

concerned

• Though regulations may be put in place in terms

of time, manner, and location

• The government may also impose more

restrictions in limited public forums such as state

fair grounds or nontraditional public forums such

as jails

• Regulations may be put in place for obtaining

permits for large rallies

• The First Amendment itself has little to say about the

control that private organizations exert over the

expressive rights of individuals, or the control that private

media companies exert over the communication of public

issues.

• A strict reading that the government has no right to

intercede to regulate communication between a

corporation and its employees (harassment rules provide

an exception) or to intervene when privately owned

media fail to meet the needs of a community.

• Many argue that this is as it should be:

employees can always seek employment

elsewhere and those whose speech is barred in

one forum can always seek another.

• Others insist that differences between the

conditions of modern society and those at the

time the Constitution was drafted warrant the

extension of communicative rights beyond those

provided in the First Amendment.

• 1. The prior restraint of information by

government.

• This meaning the FCC can enact regulations that

impose post hoc penalties for some forms of

speech while declaring it is not censorship.

• 2. Any form of government regulations that

restrict or disable speech.

• Fines imposed by the FCC for "indecent" speech

on radio fit this use.

• 3. Though less conventional, the term is modified

to refer to nongovernmental restrictions on

speech.

• For ex, in one of the few instances in which the

Supreme Court has applied the term to private

concerns (Red Lion v. FCC, 1969), the Court

stated that "The First Amendment does not

protect private censorship by broadcasters who

are licensed by the Government to use a scarce

resource which is denied to others."

• Fighting Words

• Hate Speech

• Obscene Materials

• Prior Restraint

• Expressive Conduct

• Commercial Speech

• Defamation & Privacy

• Media Differences

• News-print

• Broadcast tv

• Cable tv

• Telephone

• The Internet

• Laws that limit inciting or provocative speech, often called fighting words, or offensive expressions such as pornography are subject to strict scrutiny.

• The government may establish some regulations.

• Chaplinsky v. New Hampshire, 1942 deemed that, “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise constitutional problems.”

• Often viewed as a subcategory of “fighting words”

• The Supreme Court has generally invalidated laws that ban hate speech unless threat is established

• Virginia v. Black (2003) involved a cross burning aimed at terrorizing an African American family.

• A Virginia criminal statute had outlawed cross burning “on the property of another, or other public place ... with the intent of intimidating any person or group.”

• The Court upheld the statute.

• It emphasized that the First Amendment would protect some types of cross burnings, such as one held at a political rally, but not when it was a from of criminal intimidation.

• This is also subject to regulation

• The three-part Miller test stands as the measure for materially that is legally obscene and thus subject to restriction (Miller v. California, 1973).

• Material is obscene if:

• (1) the average person, applying contemporary community standards, would find that it appeals to shameful or morbid sexual interests;

• (2) it depicts or describes patently offensive sexual conduct;

• and (3) it lacks serious literary, artistic, political, or scientific value.

• The Seventh circuit court of Appeals ruled in Kendrick v.

American Amusement Machine Association, 2001, that a

city ordinance that prohibited minors from playing violent

or sexually explicit video arcade games was

unconstitutional.

• The appeals court found no real difference between the

content of the allegedly “violent” video games and

generally available, unrestricted literature that depicted

the same level of violence.

• The court, therefore, found that the ordinance

impermissibly restricted minors’ freedom of expression

• Some regulation allowed, though a strident

standard must be evaluated

• The main question is if the material poses a CLEAR

AND PRESENT DANGER resulting in damage to

national security.

• This was first expressed by Justice Holmes in the

Schenck case.

• Charles T. Schenck had been charged with violating

the Espionage Act by distributing pamphlets that

urged insubordination among members of the

military.

• The Court held that his activities created “a clear and

present danger that they will bring about the

• Extended during the 1950s, when widespread fear of communism led to the passage of the Smith Act, which prohibited advocating the overthrow of the government.

• The act was challenged as a prior restraint on speech, but it was upheld.

• The Supreme Court argued that government did not need to prove that a threat is imminent

• Thus, clear and present danger can lead to a slippery slope of regulations

• Refers to non-speech freedom of speech, such as symbols

• Some expressive conduct is the equivalent of speech and is protected by the First Amendment.

• In Tinker v. Des Moines Independent Community School (1969), the Supreme Court held that it was unconstitutional to suspend high-school students for wearing black armbands to protest the Vietnam War, because their conduct was “akin to pure speech”

• Thus, the Court ruled that student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of

• In Morse v. Frederick, (2007), the Supreme Court found that the Tinker precedent did not protect student expression that was perceived as promoting illegal drug use, even though the expression took place off school property.

• In 2002, the Olympic Torch Relay passed in front of Juneau-Douglas High School, Alaska, en route to the winter games in Salt Lake City

• Students at JDHS were permitted to leave classes and watch the relay from outside the school.

• Joseph Frederick was one such student. Just as the relay runner and television cameras passed by Frederick, he and his friends held up a large banner containing the phrase “BONG HITS 4 JESUS.”

• Principal Morse crossed the street, demanded that Frederick take down the banner, and then confiscated it when he refused to take it down.

• Frederick was suspended for ten days, which was later reduced to two days.

• The Supreme Court first rejected Frederick’s argument that Morse had no authority over him because he was off school property.

• The event occurred during normal school hours, and it was sanctioned by the principal an approved event for which teachers were chaperones, under which school and district rules apply.

• Thus, Morse had an obligation to oversee Frederick’s activities just as if they had taken place inside the school.

• The court lastly stated that the Frederick’s banner’s message was dangerous and “The 1st Amendment does not require schools to tolerate student expression that contributes to those dangers”

• Usually in the form of advertising, enjoys some

First Amendment protection, but not to the same

degree as that which is given to noncommercial

forms of expression.

• Generally, the First Amendment protects

commercial speech that is not false or

misleading and that does not advertise illegal or

harmful activity.

• The First Amendment protects language even when the language may become “vehement, caustic…”

• In New York Times v. Sullivan, (1964), a public official claimed that allegations about him that had appeared in the New York Times were false, and he sued the newspaper for libel.

• The Court balanced the plaintiff’s interest in preserving his reputation against the public’s interest in freedom of expression.

• It decided that, in order to recover damages, a public official must prove actual malice, which is knowledge that the statements were false or that they were made with reckless disregard of whether they were false.

• Except through the sporadic use of antitrust laws, the Court has been unlikely to permit regulations of print-based news.

• But it will allow regulations of broadcast media due to public ownership of the airwaves, scarcity of the broadcast spectrum, and "pervasiveness" of the broadcast signal.

• Cable television has fallen somewhere in between, with regulations reflecting the monopolistic control that companies exert over cable access to individual households and the fact that municipalities own the property through which television cables are distributed.

• Telephone companies are classified as

"common carriers," which interdicts their

editorial control over the information that

passes through their wires.

• The Internet, has so far been granted the

highest rung of protection from government

regulation.

• In 1996 Congress responded to concerns that indecent and obscene materials were freely distributed on the Internet by passing the Communications Decency Act.

• This law forbade the knowing dissemination of obscene material to persons under the age of

• The American Civil Liberties Union and online Internet services challenged the CDA.

• A special three-judge federal panel in Pennsylvania agreed with these groups, concluding that the law was overbroad because it could limit the speech of adults in its attempt to protect children

• The Supreme Court affirmed the panel

• Though the Court recognized the “legitimacy and importance of the congressional goal of protecting children from the harmful materials” on the Internet, it ruled that the CDA abridged freedom of speech and that it, therefore, was unconstitutional.

• In United States v. American Library Ass’n, 2003 the

plaintiffs alleged that it improperly required the restriction

of the First Amendment rights of library patrons due to

the Internet filter put in place in the public library.

• The Supreme Court held that the use of filtering software

at public libraries does not violate First Amendment rights

• In doing so, the Court upheld the CIPA requirement that

applicable institutions install filtering devices to prevent

access to pornography and other content deemed

inappropriate for children.

• Levels of protection for different forms of speech have

changed over time and there is no reason to think that

they will not continue to do so.

• Movies were long considered a form of crass

entertainment, outside of First Amendment protections,

and birth control information was once classified as

obscene.

• In the not-distant future, the plethora of programming

opportunities on the Internet is likely to result in Supreme

Court challenges of the scarcity principle upon which

public-interest broadcast regulations are based.

• The right is preserved in the UN’s Universal Declaration of Human Rights and is granted formal recognition by the laws of most nations.

• Nonetheless the degree to which the right is upheld varies greatly from one nation to another.

• In many nations, particularly those with authoritarian forms of government, overt government censorship is enforced.

• Eritrea, North Korea, Cuba, and Iran are ranked as the worst offenders when it comes to media restrictions, where journalists are often imprisoned without trial

• In many religiously conservative countries, blasphemy (religious libel) is banned

• "Freedom of Speech." Gale Encyclopedia of American

Law. Ed. Donna Batten. 3rd ed. Vol. 4. Detroit: Gale,

2010. 543-550. Gale Opposing Viewpoints In Context.

Web. 31 Dec. 2012.

• "Internet." Gale Encyclopedia of American Law. Ed.

Donna Batten. 3rd ed. Vol. 5. Detroit: Gale, 2010. 489-

495. Gale Opposing Viewpoints In Context. Web. 2 Jan.

2013.