Week 1 Topic Post: The First Amendment

 
Topic Overview

The First Amendment states that Congress cannot prohibit the exercise of or curtail free speech or the press. The Supreme Court usually interprets the First Amendment on a case-by-case basis and weighs the constitutional interests and competing rights, such as freedom of speech and right to privacy, to reach a decision based on constitutional merit.

The Constitution does not prevent the government from regulating speech and press freedoms. Not all forms of speech are protected and can be punished without violating the First Amendment. There are categories that serve as broad guidelines to determine types of speech, but do not provide exact parameters to determine the degree of protection and when speech should and should not be protected.

The foundational principle of the First Amendment is that it acts as a barrier to government prior restraints on expression. Prior restraints are generally unconstitutional because they pose a risk of government censorship of disfavored ideas and altering the marketplace of ideas, but are permitted when there is clear evidence of great and certain harm that cannot be addressed another way, or when restrained information was obtained illegally.

There are existing laws of journalism and mass communication that can affect freedom of speech and press. Content-based laws regulate what is being said and content-neutral laws restrict where, when and how ideas are expressed. Content-neutral laws are called time/place/manner (TPM) laws.

The First Amendment is designed to protect political speech in its entirety because it is vital to our democratic government. Strict scrutiny is used to review laws that infringe on political speech. Promoters and speakers have been distinguished by the Court to limit campaign contributors but not candidate spenders. The Court can also rule on the degree of government involvement in political contributions to avoid partisan political activity.

Anonymous speech is not absolute and may be narrowly tailored to advance government interest.  Control over any form of government speech may also be subject to strict scrutiny and can be held constitutional as long as it advances an objective of the government program speaking and prevents dangers or harm to government operations.

People have a First Amendment right to use public property to express themselves in the forms of traditional, designated and nonpublic forums, but this right is balanced against other interests such as privacy, health, or safety. Content-neutral rules in public forums could be applied to maintain the primary function of the designated spaces. When government funds create public forums, the government needs to provide nondiscriminatory access to users.

The First Amendment protects the right to remain silent and laws that create compelled speech in public places are generally unconstitutional.

Today, Courts face the challenge of determining decisions under the First Amendment with the expansion and advancement of new media.

Defining Key Terms

Sedition- conduct or speech inciting people to rebel against the authority of a state
http://legal-dictionary.thefreedictionary.com/sedition

Libel- published false statement that is damaging to a person's reputation; a written defamation
http://legal-dictionary.thefreedictionary.com/libel

Prior restraint- judicial suppression of material that would be published or broadcast, on the grounds that it is libelous or harmful. 
http://legal-dictionary.thefreedictionary.com/prior+restraint

Important Cases

New York Times Co. v. United States (1971)- Pentagon Papers- Supreme Court ruled the New York Times was protected by the First Amendment and could print the materials and lifted the injunction because the federal government did not show the ban was essential to prevent immediate risk or harm to a compelling government interest.

Near v. Minnesota (1931)- Court stated prior restraint, especially any prior restraint that involves an outright ban on expression, is the least tolerable form of government intervention is the speech marketplace.

United States v. O’Brien (1968)- draft card burning- Supreme Court ruled the law did not target disfavored viewpoints and allowed free expressions of opposition to the draft.

Relevant Doctrine:

Prior Restraint

May be constitutional when necessary to prevent:

1.     Obstruction of military recruitment

2.     Publication of troop locations, numbers, and movements in time of war

3.     Obscene publications

4.     Incitements to violence

5.     Forcible overthrow of government, or

6.     Fighting words likely to promote imminent violence

http://legal-dictionary.thefreedictionary.com/Prior+Restraint

Strict Scrutiny

Content-based laws must:

1.     Be necessary

2.     to advance a compelling government interest and

3.     go no further than necessary in harming First Amendment rights

http://www.law.cornell.edu/wex/strict_scrutiny

Intermediate level scrutiny

A law must:

1.     Fall within the power of government

2.     Advance an important or substantial government interest

3.     that is unrelated to suppression of speech and

4.     be narrowly tailored to impose only an incidental restriction on first Amendment freedoms

http://www.law.cornell.edu/wex/intermediate_scrutiny

Current Issues or Controversies:

Everything we do is a component of self-expression. The notion of speech is already blurry and there are no set guidelines for each case because there are so many factors that can be weighed. We cannot define speech, the press or the extent to which they are protected by the First Amendment. The current example of the WikiLeakes release raises challenging questions about technology and the law. The law can only protect so much and with the evolution of new media, it becomes even harder to apply and define the law to determine how much protection can and cannot be granted by the First Amendment. Controlling influences of speech and press usher additional pressures and challenges on the courts to interpret and apply of the First Amendment. 

My Questions/Concerns:

1. Are there guidelines or rules set to determine what, exact, speech is?

2. How does the government handle cases dealing with Internet anonymity or the Internet in general?

3. Are content-based laws the same for different media (radio, print, TV)?

References:   

 Trager, R., Russomanno, J. & Ross, S.D. (2012), The law of journalism and mass communication. Thousand Oaks, CA: Sage Publications.

Photo Link: http://www.shestokas.com/wp-content/uploads/2013/03/First-Amendment.jpg