Free Speech Legal Cases

Free Speech and Competing Values

Background:

• Congress shall make no law abridging the freedom of speech or the press”.
• Political speech elevated to the highest protection by the court under the First Amendment.
• Low-level speech: i.e. commercial speech (advertising), obscenity. This is less protected, but not entirely unprotected.
• Freedom of speech covers all kinds of expressive speech—term of art used to describe something like flag burning. If you intend to communicate something with an action and people would tend to understand that you’re communicating it, it is understood as expressive speech. The courts have sometimes drawn distinctions b/w pure speech and symbolic speech.
• Prior restraint on speech such as censorship is about as reliable of a wrong as you can get to under 1^st A. jurisprudence. After the fact, you can be punished for libel or other criminal consequences of speech, but courts have been very suspicious of prior restraints and typically the gov’t loses.

• There is some unprotected speech, which includes bribery, perjury, counseling to murder. These issues are uncontroversial and thus unlitigated.
• Other more controversial speech = incitement, fighting words, libel, obscenity, child pornography. These issues have been extensively litigated. Generally, they are unprotected, but there has been some shrinking of the boundaries surrounding these. Especially, statements that can be considered political.
• Note: If something falls within the 1^st Amendment, it is a fundamental right and receives strict scrutiny.

Content based v. content neutral laws:

1. Content-based laws receive strict scrutiny. The gov’t cannot regulate speech based on its content. This includes viewpoint-based laws (RAV)
2. Content-neutral speech: Speech w/o regard for the message itself. Content-neutral regulations only need to meet intermediate scrutiny. (O’Brien)

Two types of content neutral regulations:

1. Regulation that doesn’t focus on the message, but rather is aimed at wider behavior and has only an incidental impact on speech (O’Brien)
2. Regulation that is aimed at expression, but for reasons unrelated to what the message is. (i.e. regulations that keep protesters a certain distance away from abortion clinics—this clearly implicates speech.)

Three principles of First Amendment Theory

1. Based on the concept of knowledge and truth in the marketplace of ideas.
   

Mills On Liberty said that suppression of an opinion is wrong regardless of whether that opinion is truth. He said if the opinion is true and it’s suppressed, society is denied the truth. If it is false and it’s suppressed, society is denied the fuller understanding of the truth that comes with falsehoods. If the opinion is partially true and false, argued that society could only learn the whole truth by allowing the erring of human ideas.

2. Focus on how free speech facilitates a representative government and democracy.
   

People who stress this value say that public speech (on public issues effecting self government) must be immune to regulation, whereas private speech is entitled to less protection. Counterintuitive that public speech should be immune to regulation. Private speech = slander (becomes public when it involves a public figure)

3. Individual autonomy, right to self expression, self fulfillment, focus on unique ability of human beings in their own personal development.
   

Emphasizes the intrinsic values of being able to express ourselves as human beings.

Brandenburg Test:

Three elements:

1. Express advocacy.
2. With intent to incite unlawful conduct.
3. Likelihood that the action you expressly advocated and intended is going to occur—foreseeability of result, imminent danger.