The First Amendment. U.S.Constitution Bill of Rights

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1 What is it? First Amendment What does it protect? Why is it important? What are the theories of freedom of expression? What is the scope of protection under the First Amendment? Who is protected? How does it work? What is a prior restraint? Can any speech be restrained? If so, what kind? 1 The First Amendment U.S.Constitution Bill of Rights 2 First Amendment History To set limits on government. Ratified in 1791 as first of 10 amendments. Written by James Madison. Interpreted by courts and judges. 3

2 The First Amendment Judges have a duty to uphold individual rights protected by the Bill of Rights Judges are the guardians of free expression. No absolutes - Judges usually decide cases by weighing conflicting interests. Judges use a number of analytical and procedural tools. 4 14th Amendment Prohibits states from passing laws which violate the federal Constitution. Incorporation. 5 What does the First Amendment protect?? 6

3 First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. 7 First Amendment Protections Freedom of religion Freedom of speech Freedom of the press Freedom of assembly Freedom to petition 8 Why is the First Amendment important? 9

4 Why is the First Amendment important? Ultimate protection for communicators. Necessary to the operation of a democracy. Restricts all governments (federal, state, and local gov ts.) from punishing critics -- effective check on gov t power. Helps in the search for the truth. Individuals free to express themselves feel more fulfilled. 10 First Amendment Theories Marketplace of Ideas: Good ideas and the truth prevail in a free market. John Milton Self-Governance: Informed citizenry will intelligently elect its leaders. Alexander Meiklejohn 11 More theories... Check on Gov t Abuse: Allows investigation and criticism of gov t. Prof. Vincent Blasi Safety Valve : Helps let off steam and supports a stable and adaptable community which contributes to orderly change. Prof. Thomas Emerson Fulfillment: Natural and enriches our lives. Prof. Laurence Tribe 12

5 Hierarchy of Protected Expression Level 1 Level 2 Level 3 Political and Social Expression Commercial and Sexual Expression Fighting Words, Obscenity, False Advertising Sandra F. Chance 13 The First Amendment Judges have a duty to uphold individual rights protected by the Bill of Rights Judges are the guardians of free expression. No absolutes - Judges usually decide cases by weighing conflicting interests. Judges use a number of analytical and procedural tools. 14 Expression v. Conduct Expression designed to communicate ideas. Conduct not protected. Symbolic speech or expressive conduct is protected. 15

6 No absolute protection to every individual to speak whenever or wherever he pleases, or to use any form of address in any circumstances he chooses. Cohen v. California 16 Restrictions on Speech Content-based regulations are almost always struck down. content (content-neutral) can Non-content ( ) can be constitutional where substantial governmental interest is served. Time, place, manner restrictions. 17 Judicial Decision-Making 1. Bias against content regulation. 2. Tendency not to defer to legislatures and lower courts decisions which restrict free speech. 18

7 Judicial Decision-Making 3. Standards of Review: (Tools Judges Use) 1. Strict Scrutiny-fundamental rights 2. Rational Basis-other laws 4. Scrutinize regulations for OVER- BREADTH, VAGUENESS and ensure LEAST DRASTIC MEANS to accomplish a COMPELLING government interest. 19 State Action Required Government action that infringes on expression - laws, court orders, actions of public officials. 20 Who is protected? Adults the right to speak and publish the right to associate the right to receive information the right to solicit funds freedom from compelled speech Miami Herald Publishing Co. v. Tornillo Government Employees 21

8 Who is protected? Students Corporations Media Non-media 22 Government Property Public Forums Traditional Designated Non-public forums 23 Content of Speech First Amendment prohibits gov t from regulating the content of expression. Government has no power to restrict expression because of its message, its ideas, its subject matter or its content. Exceptions - fighting words 24

9 No absolute protection to every individual to speak whenever or wherever he pleases, or to use any form of address in any circumstances he chooses. Cohen v. California

10 Examples Obscenity Fighting Words/Hate speech Speech which presents a clear and present danger to national security University Codes of Conduct Speech which benefits criminals 28 New York Times v. United States Pentagon Papers Prior restraint at issue Prior restraint presumptively unconstitutional Rule of Law: A prior restraint may be appropriate where publication of vital government information threatens national security. But government didn t meet burden in this case. 29 Fighting Words and Hate Speech 30

11 Fighting Words Words that by their very utterance inflict injury or tend to incite an immediate breach of the peace. Chaplinsky v. New Hampshire Cohen v. California -court said slogan NOT fighting words - protected comment on unpopular war- no immediate danger of a violent physical reaction 31 Hate Speech 32 Hate Speech Written or spoken words that insult and degrade groups identified by race, gender, ethnic group, religion or sexual orientation. Most expression of bigotry and prejudice is political speech protected by the First Amendment, according to U.S. Supreme Court. 33

12 Florida Statute Criminal Anarchy, Treason and Other Crimes Against Public Order Placing burning or flaming cross on property of another. It shall be unlawful for any person or persons to place or cause to be placed on the property of another in the state a burning or flaming cross or any manner of exhibit in which a burning or flaming cross, real or simulated, is a whole or part without first obtaining written permission of the owner or occupier of the premises to do so. Any person who violates this section commits a misdemeanor of the first degree. 34 Son of Sam Law 35

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