First Amendment and Freedom of Expression

• In the United States, freedom of expression is more protected than in any other country.

Differing National Approaches

• Nations vary in how they balance speech protections against other important rights, such as personal reputation and privacy.
• Acceptable expression is based on a nation's cultural and political heritage
• Following experiences with Nazism in the 1930s and 1940s, France and Germany developed a sensitivity to hate speech.
• European countries generally exhibit greater sensitivity to defamation.
• Historically, in Europe, an accusation against an aristocrat's reputation could lead to a duel.
• Defamation laws reduced violence in Europe.
• American colonists sought religious, economic, and expressive freedom, which the founding fathers then incorporated into the U.S. Constitution

Chapter Topics

• Exploration of the First Amendment
• Varying levels of protection for different media
• Categories of speech that lack safeguards
• Legitimate boundaries for time, place, and manner restrictions
• Internet speech, including whether the Internet is a public forum
• Whether computer code constitutes speech
• How student websites are protected

The First Amendment

• Free expression in the U.S. is empowered by the First Amendment
• Congress cannot make laws that establish a religion or prohibit religious expression
• Congress cannot abridge freedom of speech or the press
• People have the right to assemble peaceably
• People have the right to petition the government to address grievances
• The founding fathers integrated the right to religious freedom, protection against state-sponsored religion, freedom of speech and the press, the right to assemble, freedom of association, and the right to petition for grievances
• First Amendment protection for speech and the press is foundational to U.S. media law
• U.S law differs from other commonwealth and civil law countries in issues such as defamation, hate speech and obscenity
• The First Amendment is unique, as other countries have constitutional safeguards for expression; none are as broadly stated.
• The Supreme Court and Congress have struggled to interpret its admonition against abridging freedom of speech
• The meaning is open to interpretation
• Judges and scholars have debated its meaning for two centuries
• How far can Congress go before abridging freedom of speech?
• Advances in technology have put the words “or of the press” in doubt
• The meaning of "press" has expanded from books and newspapers to include radio, film, and television
• Should it now include websites, web logs, pod casts, vod casts, videos on YouTube, and social networking sites?
• First Amendment absolutists such as Justices Hugo Black and William Douglas believed "no law" meant no law whatsoever.
• Others have felt that the right of expression must be balanced against other rights and societal interests.

Purpose of the First Amendment

• The First Amendment does not protect all expression
• It protects against government suppression of expression rather than private suppression
• The First Amendment protects speech from government suppression at the city, state, and federal level
• The Supreme Court initially interpreted the First Amendment to apply only to the federal government, based on the statement that "Congress shall make no law"
• The Fourteenth Amendment changed circumstances when ratified in 1866
• The Fourteenth Amendment states that no state can enforce laws that abridge the privileges of citizens, deprive people of life, liberty, or property without due process, or deny equal protection of the laws
• The Supreme Court determined in this case that the Fourteenth Amendment incorporates freedom of expression
• The Fourteenth Amendment binds states to other guarantees in the Bill of Rights, known as the incorporation doctrine
• Explicitly recognized freedoms under the Fourteenth Amendment are the First Amendment’s freedoms of speech, press, religion, assembly, association, and petition for redress of grievances
• The Fifth Amendment's command that private property not be taken for public use, the Fourth Amendment’s prohibition of unreasonable searches and seizures, and the Eighth Amendment's ban on cruel and unusual punishment
• The First Amendment applies in U.S. territories and to aliens legally residing in the United States through the Fourteenth Amendment Rights not considered "fundamental" remain outside the amendment’s reach

Prohibition on Prior Restraint

• Founding fathers probably mirrored the English definition presented in William Blackstone’s Commentaries on the Laws of England when writing the Bill of Rights
• Blackstone interpreted freedom of the press to mean freedom from prior restraint, or freedom to publish without prior censorship, but not freedom from punishment after the fact
• Support exists for the contention that the founding fathers also understood freedom to entail to prior restraint from the press
• Many of the same men who voted to ratify the Bill of Rights passed The Sedition Act of 1798, seven years after the First Amendment's ratification.
• The Sedition Act made it a crime to write, print, utter or publish any false, scandalous and malicious writing against the United States government
• The meaning of the First Amendment was narrowly understood at first
• Historian Leonard Levy observes “it was boldly stated, and that the bold statement, the principle of unqualified free speech, was written into fundamental law and was meant to endure.”
• A broad libertarian theory of expression emerged within a decade after ratification
• This is supported by the fact that the Sedition Act was allowed to expire in 1801
• The Supreme Court confirmed that the chief purpose of the guarantee of freedom of the press is to prevent previous restraint on publication in Near v. Minnesota (1931)
• J.M. Near and Howard Guilford were editors of a scandal sheet called The Saturday Press that vilified Jews and Catholics
• Guilford was shot after the first edition was published
• Near accused the chief of police of conspiring with Minneapolis gangsters and the local prosecutor of ignoring the matter because he did not think authorities were doing enough to find his assailant
• Minnesota had an abatement statute against malicious, scandalous, or defamatory newspapers, magazines, or periodicals and used it to enjoin publication of Near’s paper
• Justice Hughs wrote that preventing previous restraints upon publication has been generally considered the chief purpose of the guaranty of freedom of the press
• The Court overturned the state statute as a violation of the First Amendment, allowing prior restraint only in four exceptional cases
• Obstruction of military recruitment or publication of sailing dates, number or location of troops
• Obscenity
• Incitements to violent overthrow of government
• Protection of private rights according to equitable principles, such as defendants’ rights to a fair trail or plaintiffs’ rights to protect intellectual property
• Courts have interpreted Near to mean that few circumstances other than national security can justify prior restraint on the press
• The Supreme Court lifted an injunction barring the New York Times from printing the Pentagon Papers in New York Times Co. v. United States (1971) because the government had not met the heavy burden required to warrant an injunction. Justice Stewart explained that publication would not clearly result in direct, immediate, and irreparable damage to our Nation or its people in a concurring opinion
• A federal district court concluded that the Near standard was met when it enjoined a magazine in United States v. The Progressive from publishing directions to make a hydrogen bomb
• Although the information was available in the public domain in bits and pieces, the court believed that, when synthesized, it was too dangerous
• The injunction was lifted later, however, when other publications printed the secret
• Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights
• This comes from Nebraska Press Association v. Stuart (1976)
• A lower court attempted to impose a gag order on the media to limit the potential damage of excessive press converge on a defendant’s right to a fair trial
• A judge can issue prior restraint orders to prevent excessive media coverage only in situations where no other alternative could curb the damaging effect of the publicity and a restraining order would actually be effective

Types of Prior Restraint Orders

• Prior restraint orders come in three forms:
• Temporary restraining orders (TROs)
• Preliminary injunctions
• Permanent injunctions
• A temporary restraining order provides immediate relief
• An aggrieved party files a complaint with a court for an order to stop someone from engaging in an action that will result in irreparable injury
• The plaintiff may have to pay a bond to mitigate against any harm to the defendant if the plaintiff has misrepresented the circumstances, because the defendant is not present to defend their actions
• The court establishes a hearing to contest the order
• The court may replace the TRO with a preliminary injunction if the plaintiff establishes potential for irreparable harm and likelihood of winning a suit at trial
• The court sets a trial date to determine whether issuing a permanent injunction is appropriate
• A permanent injunction, established after a trial, is a court’s final order to enjoin an action permanently
• Temporary restraining orders are meant to preserve the status quo until the court has time to give the matter consideration
• Publication must threaten an interest more fundamental than the First Amendment itself in a First Amendment context
• Courts are less willing to protect Internet sites lacking credibility
• A federal district court lifted a temporary restraining order against Wikileaks.org and a permanent injunction against its Internet host after international cries of censorship
• WikiLeaks posted documents leaked by a former employee of Julius Baer Bank’s Cayman Islands branch, suggesting that some clients were involved in money laundering and tax evasion schemes
• Dynadot agreed to disable the WikiLeaks site and lock the domain name to prevent WikiLeaks from moving to another server in a U.S. District Court for Northern California permanent injunction settlement between Dynadot and Julius Baer
• The judge realized the injunction was too broad and ineffective in February 2008
• Broad injunction had the opposite effect intended: -The material was mirrored on websites all over the world -Media attention increased public awareness
• The court realized that its jurisdiction over the case was questionable, in addition to First Amendment concerns
• Permanent injection on Dynadot was not the least restrictive means to protect the bank clients' privacy
• Something more limited, like redaction of their identifying information from the leaked documents, might be more appropriate
• Likelihood that legal action to censor information will draw greater attention to it is known as the Streisand Effect
• Mike Masnick, the CEO of TechDirt, coined the term "Streisand Effect"
• Barbara Streisand launched a lawsuit against an amateur photographer who inadvertently posted a picture of her home on the web
• The defendant, Kenneth Adelman, took 12,000 aerial photos of the California coastline from a helicopter for an environmental project
• Streisand’s house was visible in image 3,850
• She sued for $10 million for violating a California “anti paparazzi” law and her privacy rights
• Internet users downloaded the images en masse, peaking interest
• A Los Angeles Superior Court Judge dismissed the suit since it restricted Adelman’s speech rights on a matter of public concern
• The image is still accessible and now labeled as the Streisand Estate

Expanding the Meaning of the First Amendment

• Throughout the twentieth century, protection for expression expanded beyond restrictions on prior restraint
• Lawmakers understood statutes could restrict speech
• The First Amendment became a protection against censorship after the fact, undue burdens on expression, and discriminatory applications of speech regulations
• First Amendment cases involve applied challenges to laws, based on their interference with a particular person’s protected speech
• The Supreme Court has recognized facial challenges to laws that violate the First Amendment
• A facial challenge is based on the argument that the statute should be struck down, because, as written, it has the potential to interfere with or "chill" the protected speech of others
• It limits more speech than necessary to accomplish its purpose
• It leaves people confused by ambiguous wording

Doctrines of Overbreadth and Vagueness

• The Supreme Court developed the doctrines of Overbreadth and Vagueness to address facial challenges to laws restricting speech
• The overbreadth doctrine entitles a court to strike down a law that covers more protected speech or expressive conduct than necessary to accomplish its intended purpose
• The threat of its enforcement may deter or “chill” constitutionally protected speech
• An overbroad statute imposes criminal sanctions
• Many persons will choose simply to abstain from protected speech, harming not only themselves but society as a whole
• Overbreadth adjudication reduces social costs by suspending all enforcement of an overinclusive law
• Overbreadth of a statute must be real and substantial, judged in relation to the statute’s plainly legitimate sweep
• The Court prefers to uphold the statute but narrow its interpretation when overbreadth is not significant
• The vagueness doctrine is not specific to First Amendment cases
• The Constitution’s Fifth and Fourteenth Amendments include the right to due process of law
• Due process requires that people be given fair warning regarding conduct that is deemed illegal
• An ambiguously written law that fails to do that may be struck down as unconstitutionally vague
• A law is unconstitutionally vague if persons of “common intelligence must necessarily guess at its meaning and differ as to its application.”
• The Court demands a higher degree of clarity when the challenged law concerns a fundamental right, such as freedom of expression
• A vague law is dangerous because it is subject to discriminatory enforcement by officials
• The vagueness doctrine is frequently coupled with the overbreadth doctrine in First Amendment cases
• The Supreme Court determined that a provision banning Internet transmission of indecent and patently offensive materials to minors was both vague and overbroad in Reno v. ACLU (1997)
• Other provisions remain in place Congress normally incorporates a severability clause in legislation to sever parts of laws it finds unenforceable
• This retains the rest of the statute

Limitations on Protection

• Expression is not completely protected from government suppression, despite the First Amendment
• The level of protection for expression varies somewhat depending on the medium used
• Categories of speech perceived to be of no value or likely to cause imminent harm garner little or no protection
• Time, place, and manner of expression may be controlled when the expression occurs on government property, especially if it does not comport with the intended use of the property
• The government has more leeway to regulate expressive or symbolic and student speech

Medium-Specific Protection

• The Supreme Court does not grant equal First Amendment protection to all media
• It bases the level of protection allotted to each form on its distinct characteristics
• Print media gets maximum protection from government intervention and requires no special accommodations
• Broadcast media operates under government constraints and requires use of the public spectrum
• Content restrictions are based on the pervasiveness and accessibility to children
• Cable relies on public rights of way for its lines and must carry signals from local stations, and is generally free from content restrictions, as a subscription-based medium
• Satellite must reserve some of its capacity for educational programming and local stations, but its own content is protected from censorship, as another subscription medium
• The government was unsure how to characterize the internet initially
• It is largely print-based, but also carries audio and video and provides the immediacy of phone service
• Congress imposed restrictions on the Internet that would be unconstitutional for print media. as a result of Carnegie Mellon study that suggested 83 percent of the images on Usenet groups contained pornography Legislations was struct down by Supreme court in 1997

Categorical Speech Protection

• A basic assumption in a liberal democracy is that government should not interfere with speech unless it poses a legitimate threat of harm
• The Supreme Court considers certain categories of speech unworthy of First Amendment protection because they carry this potential
• These expression areas are valued so slightly that they deserve no special consideration
• Incitement to violence
• Criminal solicitation
• Fighting words
• True threats
• Obscenity
• False commercial speech
• In some cases, libel
• Restrictions related to these categories of speech are discussed in later chapters

Levels of Judicial Review

• The government cannot restrict speech based on its content
• In First Amendment cases when courts suspect that the regulation challenged was put in place to restrict expression of a particular idea or viewpoint, they subject the regulation to strict scrutiny
• Strict scrutiny demands that content-based regulations be narrowly tailored to serve a compelling government interest
• Strict scrutiny is the highest level of judicial review
• A mid-tier level of review known as heightened or intermediate scrutiny is generally applied to cases involving restrictions that burden speech, but which are not intended to target a particular idea or point of view
• A content-neutral regulation must serve an important government interest/restrict speech as required under heightened scrutiny
• Courts impose a lower level of judicial scrutiny test known as the rational-basis test when legislative actions or agency regulations are challenged as arbitrary or capricious
• The test considers whether the government can supply a rational basis for the regulation and whether the regulation serves a legitimate state interest

Time, Place, and Manner Restrictions

• The government attempts to balance speech interests against its own interest as the trustee of public property
• The government may impose nondiscriminatory restrictions on the time, place, and manner in which speech is conducted when speech occurs on public property that is not reserved for speech purposes
• The question to consider is whether the manner of expression incompatible with the normal activity of a particular place at a particular time
• The Supreme Court adopted a forum analysis to assess the constitutionality of regulations that constrain speech on public property
• Three forum tiers for public property: -The traditional public forum -The designated public forum -The nonpublic forum
• Traditional public forms include public spaces that have traditionally been open for speech
• Parks, street corners, sidewalks, and the steps of city hall
• Justice Owen Roberts said that "these places have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”
• Government restrictions on speech are subject to strict scrutiny in a traditional public forum
• Government entities open designated or limited public forums to the public for expressive activity
• Fairgrounds, town halls, and some public schools
• The government must make it available on a nondiscriminatory basis once public property is intentionally opened for expressive activity
• They may impose reasonable time, place, and manner restrictions in keeping with the property’s primary use
• Courts subject restrict “time, place, and manner” restrictions on speech in limited public forums to scrutinize intermediately
• The law must be content-neutral
• The law must not constitute a complete ban
• The law must be narrowly tailored Public areas designated for purposes other than expression have include nonpublic forms.
• Airport concourses, polling places, subway stations, prisons, and military bases are public forums
• The government has the right to restrict speech in these areas

Is The Internet a Public Forum?

• Whether the Internet constitutes a public forum is open to debate
• The internet is is a “space” open to the public for information exchange
• Internet servers are privately owned
• Internet hosts reserves the right to withdraw from subscribers who violate rules
• California courts: "Under its plain meaning, a public forum is not limited to physical setting, but also includes other forms of public communication such as electronic communication media like the internet.”
• The Supreme Court has been reluctant to recognize the Internet as a public forum
• The Supreme Court rejected a district court’s use of public forum analysis over access to libraries in United States v. American Library Association (2003)
• The Supreme Court didn't consider the internet as a public forum, and libraries weren't designated without government express intent
• The Supreme Court has refused to apply forum analysis to any medium in Denver Area Educational Telecommunications Consortium v. FCC (1996)
• Justice David Souter said “As broadcast, cable, and the cybertechnology of the Internet and World Wide Web approach the day of using a common receiver, we can hardly assume that standards for judging the regulation of one of them will not have immense, but now unknown and unknowable, effects on the others.”
• Justice Kennedy countered that forum analysis was appropriate
• The Court weighed the question of links and the city's website in Putnam Pit v. City of Cookeville (1998)

Expressive Conduct

• Communication can be nonverbal
• Sit-ins and flag burning are forms of expressive conduct
• The 1996 decision by website operators to blacken their home pages for anti-Communications Decency Act messages
• The act must be evaluated in context, not all acts are intended to communicate a message
• Courts are required to consider whether the intent to covey was great
• The government has more leeway to regulate than pure speech
• The landmark case of expressive conduct is United States v. O’Brien (1968)
• The Supreme Court devised a test for speech regulations with intermediate scrutinity under these questions
• Did regulation uphold constitution, support government insterests, suppression and expression restrictions?

Is Computer Code Speech or Conduct?

• The U.S. Court of Appeals classified posting and linking of computer code as expressive conduct in Universal City Studios, Inc. v. Corley (2001)
• The court acknowledged that programs and code are covered by the First Amendment, but because it can function without human action, it contains both speech and nonspeech components
• Computer programs instructions require a computer for its functions, argues it is executable
• The court determined it was the lack of conveying a message and instead decrypting CSS for it's unconstitutionality

Student Speech

• Supreme Court cases regarding student speech rights have been limited to consideration of speech on school property and at school-sanctioned events
• Lower courts have considered/protected off campus expression
• Internet posts on both on/off campuse are gray for speech
• States the standard of nexus between the web site and campus
• Courts uphold the supreme Court rulings in Tinker v. Des Moines (1969) because students don't shed their constitutional right to freedom
• First Case of speech online came from Beussink v Woodland (1998), where content wasn't disruptive
• Easy to disrupt student threat speech in school. Js v. Bethlehem Areea School District (2000) shows students head dripping and animation

No Compelled Speech

• Freedom of expression includes the element of the right not to speak
• The Supreme Court has said that speech involves choices of what to say and what to leave unsaid
• Government can not force individuals or groups to convey wrong messages
• Protection to linking to expression with consensus by the Supreme Court

First Amendment Theories

• The Constitution does not indicate protection and a consensus made for what is protected
• The First amendment has many theroies such as democratic, safety valve, self expression, and find truth

Explore freedom of expression and differing national approaches. The expression acceptable is based on a nation's cultural and political heritage. The US constitution provides for religious, economic, and expressive freedom.