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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       • Commercial Speech
  • Hate Speech        • Defamation & Privacy
• Obscene Materials    • Media Differences
• Prior Restraint        • News-print
• Expressive Conduct     • 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
• 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
• 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
• 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.

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9694 thinking skills limitations on free speech

  • 1. Politics & Ethics: Freedom of Speech Limitations, Regulations, & Censorship
  • 2. • 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.
  • 3. • 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.
  • 4. • 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
  • 5. • 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.
  • 6. • 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
  • 7. • 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.
  • 8. • 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.
  • 9. • 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
  • 10. • 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.
  • 11. • 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.
  • 12. • 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.
  • 13. • 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."
  • 14. • Fighting Words • Commercial Speech • Hate Speech • Defamation & Privacy • Obscene Materials • Media Differences • Prior Restraint • News-print • Expressive Conduct • Broadcast tv • Cable tv • Telephone • The Internet
  • 15. • 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.”
  • 16. • 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.
  • 17. • 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.
  • 18. • 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
  • 19. • 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
  • 20. • 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
  • 21. • 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
  • 22. • 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
  • 23. • 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”
  • 24. • 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.
  • 25. • 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.
  • 26. • 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.
  • 27. • 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.
  • 28. • 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.
  • 29. • 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.
  • 30. • 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.
  • 31. • 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
  • 32. • "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.