Objectives 9/16/2015. First Amendment Introductory Concepts; Defining Obscenity

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1 First Amendment Introductory Concepts; Defining Obscenity CS 340 FALL 2015 CHAPTER 7 Objectives How are current free speech laws interpreted when we apply them to recent methods of expression? In what ways are these free speech laws insufficient for our new forms of expression? What types of speech are generally not protected? ETHICS IN A COMPUTING CULTURE 2 First Amendment of the US Constitution 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. 1

2 Three Important Questions: 1)Is speech just spoken or written words? Opinion Question: Is a Facebook like a free speech expression? A. Yes B. No Yes No Bland v. Sheriff Roberts 2013, 4 th Circuit Court of Appeals Facts: from class discussion Lower (district ct): merely liking a FB page is insufficient speech to merit Constitutional protection. Appealed to the Court of Appeals. Holding: Once one understands the nature of what Carter did by liking the campaign page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the 'like' button literally causes to be published the statement that the user 'likes' something, which is itself a substantive statement, In sum, liking a political candidate s campaign page communicates the user s approval of the candidate and supports the campaign by associating the user with it. In this way, it is the Internet equivalent of displaying a political sign in one s front yard, which the Supreme Court has held is substantive speech, Resource: the radar/2013/09/court rulesfacebook like is free speech html 2

3 Other kinds of non-verbal speech? What could we list here? Three Important Questions cont d 2) Are these rights and guarantees of the First Amendment absolute? What examples of things can you think of that you don t have a right to say? Flintstones cig ad: AExoSozc2c 3

4 Contemporary Case Study: Tiny Doo Brandon Tiny Doo Duncan is facing 25 years to life for allegedly violating a California statute Felony to participate, have knowledge or benefit in gang activity Other interview: interview jail no safety faceslife in prison for recording album Watch cnn video: entertainment/tiny doo rapconspiracy charges/index.html Opinion Question: Do you think Tiny Doo is within his free speech to record and distribute this album? A. Yes B. No C. Unsure Update on Tiny Doo Yes No Unsure Three Important Questions cont d 3) From whom does the First Amendment give you protection? See Madison s versions (page 235) How does the 14 th Amendment relate? Gitlow v. NY (1925), p

5 Fourteenth (14 th ) Amendment of the US Constitution (1868) Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The speech protected by the 1 st amendment is only written or spoken language. A. True B. False True False The guarantees of the First Amendment mean all speech is protected speech. A. True B. False True False 5

6 With the application of the 14 th Amendment, from whom does the First Amendment offer protection? A. Federal government B. State and local government C. Individuals and corporations D. All of the above E. Both A and B Federal government State and local government Individuals and corporations All of the above Both A and B Free Expression & the Internet Tool for empowerment & democracy But ease of publication means ease of doing harm And restricting publication can be synonymous with restricting speech. US S. Ct. in Reno v. ACLU about the power of the Internet: Anyone can become a pamphleteer, a town crier with a voice that resonates farther than it could from any soapbox. Tim Berners-Lee on the Internet Who is Tim Berners Lee? "Close to the principle of universality is that of decentralisation, which means that no permission is needed from a central authority to post anything on the web, there is no central controlling node, and so no single point of failure," he wrote last year. "This has been critical to the web's growth and is critical to its future. tool democracytim berners lee 6

7 Regulation of Speech As a general rule, government may not regulate speech ''because of its message, its ideas, its subject matter, or its content.'' Police Dept. of Chicago v. Mosley US S. Ct 1972 Ordinance about prohibiting picketing found unconstitutional as it had a provision allowing picketing for labor disputes. In this case, the ordinance itself describes impermissible picketing not in terms of time, place, and manner, but in terms of subject matter. The regulation "thus slip[s] from the neutrality of time, place, and circumstance into a concern about content. This is never permitted. The General Rule Has Some Exceptions. The First Amendment offers no protection or safe harbor for: Obscenity Speech that Incites Defamation These are forms of unprotected speech Defining Obscenity, 3 criteria Standard is the 1973 Miller test, p. 257 in text a) Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; b) Whether the work depicts or describes in a patently offensive way sexual conduct defined by state law; c) Whether the work, taken as a whole, lacks literary, artistic, political or scientific value. 7

8 Obscenity Miller moved away from the previous standard for obscenity I know it when I see it without social redeeming value test. Miller has a community standard Internet blurs the traditional community/state/nation boundary. Community: people living in same district same laws Webster's Example : California porn in TN. Example: the movie showing of Turn Me on Dammit in Tuscaloosa, summer Pornography with Child Participants NB: child pornography can never be a form of protected speech. NY v. Ferber US S. Ct Child pornography is categorically legally obscene Citizen s guide to US Federal Law on Child Pornography ceos/citizens guide us federal law childpornography Hypothetically, an item can be legally obscene in West Virginia and not legally obscene in California. A. Yes B. No Yes No 8