Chapter 14Free Speech

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Free Speech

• Not Absolute, but Justice Black felt is should be• Internet comments not recallable• Not a fair forum

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Political Speech-Restrictions• There must be a compelling government interest in

prohibiting this speech• The law must be narrowly tailored to achieve that

interest• The law must be the least restrictive possible in

order to achieve that interest

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Commercial Speech

• Has ‘diminished protection’• Advertising of tobacco products (health)• False or misleading (Federal Trade Commission) • Profit-motivated• Lawful, not misleading• Substantial government interest• Regulation must directly advance government interest• Regulation cannot be more extensive than necessary

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Expressive Conduct

• Burning the American flag is a form of free speech• Can be limited in ‘time, place and manner’• No bullhorns at 3am

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Speech Restrictions Based on State Role• Prohibition against government restriction on free

speech does not apply to individuals or businesses, only to state

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State and Free Speech Restrictions• Public employee statements pursuant to official

duties• School administration regarding discipline or the

rights of others• Prison regulations related to reasonable

penological interests• Military discipline and obedience require

restrictions

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Prisoners and Free Speech

• Prisoners have limited internet access due to potential problems• Harassing their victim’s families• Downloading ‘Anarchists’ Cookbook’…

• Should prisoners be allowed internet access to do legal research?• Some states beginning to allow prisoners access

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Military Free Speech

• Not same protections afforded members of military• Milbloggers need to be careful not to reveal too

much sensitive info-people can die• Army websites have been found to reveal more

sensitive info than the milbloggers

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Regulator of the State Bar

• Conduct, advertising and speech can be regulated• Where do lawyers cross the line from free speech

to regulated advertising?• IA attorney disciplined for NOT responding to client

text messages• Attorneys disciplined for social media and blogging

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Regulators of the Airwaves

• Federal Communications Commission-FCC• Prohibits ‘obscene’ programming• Restricts times when indecent or profane can be

aired• Mainly due to child accessibility

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Unprotected Speech

• Incitement-advocating use of force or lawless action• Fighting words• True Threats-at a specific person• National Security-classified documents. • Pentagon papers controversy• Edward Snowden

• Obscenity (line between pornography/obscenity?)• Child Pornography- later chapter

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Social Boundaries of Free Speech• Most protected-political free speech• Less protected-commercial free speech• Not protected-obscenity, yelling fire, criminal

conduct• What about differences in state and country

jurisdiction?• Cockfighting (legal in LA)• Pro-Nazi sentiments?

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