Week 2 Topic Post: Speech Distinctions

Topic Overview

Courts use categorical balancing to weigh broad categories of speech against categories of interest to determine if speech is punishable. Since some categories of speech are not well defined, courts also look at the level of offense or disruption. Times of peace and war are also factors in the freedom and suppression of speech and press.

There are laws to protect national security to ensure speakers do not provoke discontent or incite overthrow of government. Speech related to conspiracies to commit crimes, advocacy of terrorism, treason, protest, and intimidation are also against the law.

Following September 11, 2001, The USA Patriot Act was enacted. It was designed to identify suspicious activity and speed the prosecution of terrorists. It had a chilling effect on speech which deterred freedom of expression for fear of being investigated and punished. The Free Expression Policy Project along with other laws enacted following September 11 permanently permitted the government to persecute people who were against policy or associated with members of unpopular groups and hampered press abilities to inform the nation about the country’s security. In response to lawsuits, the Department of Justice said all actions and restrictions of liberty were necessary to ensure national security.

The clear and present danger test allows courts to determine whether or not speech is protected based on the harm or dangers they present such as violence or unrest. The boundaries of this test are unclear and its application varies. The Court ruled in Gitlow v. New York that radical political advocacy is protected by the First Amendment because disseminating ideas does not endanger the nation. The expansion of free speech established by the doctrine of incorporation prevents states and the federal government from curtailing First Amendment rights. The regulation of speech is unconstitutional if it is not tailored to avoid violating protected speech. So it is constitutional to regulate speech that advocates illegal action but not an expression of a radical idea.

The clear and present danger test was proven inconsistent, too flexible, too subjective, and too easily swayed. The Brandenburg/Incitement test does not protect speech that incites immediate violence, however, the court cannot punish the advocacy of force unless it is directly to and were likely to incite imminent lawless action.

Offensive speech is protected because effective speech has cognitive and emotional content. Meaningful protection of free speech goes beyond content to protect its emotive function. What you say and how you say it are protected.  Fighting words are not protected because they cause immediate harm or illegal acts. However, anti-bias and anti-hate speech laws are generally unconstitutional. They are underinclusive and viewpoint-based discrimination censors expression on the bias of the message expressed. The laws are overbroad punishing some forms of racist speech but not others. The Court ruled that the First Amendment permits the targeting of a specific set of fighting words that constitute a true threat with a clear and pervasive history of violence, like cross burning. For speech to become a true threat, a speaker must direct the threat toward one or more individuals with intent of causing the listeners to fear bodily harm or death. Intended speech, taken in context, conveying a threat of serious harm to a person is not protected by the First Amendment.

Symbolic speech is protected as well as nondisruptive political protest in general as long as they are not threats to national security or hinder military operations.

Speech in schools have special rules and regulations. The nation’s interest in raising youth outweighs the free speech rights of public school students. Public schools and universities are designated as limited public forums. They may adopt regulations to achieve their educational goals even if they limit the freedom of students and staff, but cannot dictate content of speech except to prevent speech that would undermine its educational mission. Rules affecting expression in public schools are constitutional as long as they do not limit expressive content that is compatible its educational priorities or target specific content without strong educational justification. University policies must provide a neutral platform for broad student discussion of issues.

Individuals do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” School administrators do not have authority to control students’ silent political expression unless it materially or substantially disrupts educational activities demonstrated by Tinker v. De Moines. School officials may prohibit student speech that raises a “palpable” danger to established school policy like an anti-drug policy (“Bong Hits 4 Jesus”).  

Decisions to remove books must not be made in a “narrowly partisan or political manner or to limit or bias student access to ideas.  They may be constitutional if they advanced a curricular purpose, and responded to educational disruption. Speech during a school-sponsored event may be curtailed to protect educational purposes. Administrators have authority to determine the appropriate content of a school-sponsored student newspaper and are required to control the content to achieve educational goals.

Schools may not indoctrinate students into particular ideologies or silence teachers who wish to speak out on issues of public concern. Any introduction of religion into schools violates the First Amendment’s establishment clause. Unpopular speech may disrupt the functioning of public schools, but radical and unpopular speech on a university campus advances educational objectives and mission to engage in dynamic discussions. Hate speech codes are found unconstitutional because they target disfavored speech and reduce the flow of information and ideas. Punishing speech on the grounds that they are unseemly or offensive are unconstitutional overbroad.

Key Definitions

Treason- The betrayal of one's own country by waging war against it or by consciously or purposely acting to aid its enemies

http://legal-dictionary.thefreedictionary.com/treason

Chilling effect- the discouragement of a constitutional right, especially free speech, by any practice that creates uncertainty about the proper exercise of that right

Espionage- The act of securing information of a military or political nature that a competing nation holds secret. It can involve the analysis of diplomatic reports, publications, statistics, and broadcasts, as well as spying, a clandestine activity carried out by an individual or individuals working under secret identity to gather classified information on behalf of another entity or nation.

http://legal-dictionary.thefreedictionary.com/espionage

Orthodoxy- a belief or a way of thinking that is accepted as true or correct

http://www.merriam-webster.com/dictionary/orthodoxy

Important Cases

Texas v. Johnson- flag burning- symbolic speech and is protected under the First Amendment as long as it does not hinder compelling interest or fail the Brandenburg test.

Tinker v Des Moines Independent Community School District-black armbands-symbolic speech was protected under the First Amendment and did not disrupt education. School administrators did not have authority to control students’ silent political expression unless it materially/substantially disrupted educational activities.

Virginia v. Black- established punishable threats and rationale for punishment

Relevant Doctrine

The Brandenburg Test

Incitement test allows punishment of “advocacy of illegal action” if speech is:

1.     Directed toward inciting

2.     Immediate violence or illegal action and

3.     Is likely to produce that action

Government may punish criticism of government or advocacy of radical ideas only when speakers intentionally incite immediate illegal activity.

Fighting Words

Under the Supreme Court’s fighting words doctrine, the First Amendment does not protect words that:

1.     Are directed at an individual

2.     That automatically inflict emotional harm or trigger violence

Threat

A punishable threat exists if:

1.     The speaker intended the statement to be a threat; and

2.     The statement, taken in context, conveys the speaker’s intention to do bodily harm to the target

Rationales for government punishment of truly threatening speech include:

1.     Protecting individuals from the fear of violence

2.     Protecting society from the disruptive effects of violent threats

3.     Pre-empting the violence threatened by the speaker; and

4.     Preventing coercion of the target of threats 

Questions/Concerns:

1. How can you measure the impact of hate speech? 

2. If threats are vague but followed by a hate crime not committed by the speaker, are they punishable? 

References: 

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

Image: http://rockrivertimes.com/wpapp/wp-content/uploads/hatespeech-W.jpg