Freedom of Expression in the Marketplace of Ideas

Douglas Fraleigh, Joseph S. Tuman

• Publisher: SAGE Publications, Inc
• Year: 2010
• ISBN:
  9781452236902
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto dei media e dell'intrattenimento

A comprehensive guide to effective participation in the public debate about our most indispensable right: freedom of expression

Encouraging readers to think critically about freedom of speech and expression and the diverse critical perspectives that challenge the existing state of the law, this text provides a comprehensive analysis of the historical and legal contexts of the First Amendment, from its early foundations all the way to censorship on the Internet. Throughout the book, authors Douglas M. Fraleigh and Joseph S. Tuman use the "Marketplace of Ideas" metaphor to help readers visualize a world where the exchange of ideas is relatively unrestrained and self-monitored. The text provides students with the opportunity to read significant excerpts of landmark decisions and to think critically about the issues and controversies raised in these cases. Students will appreciate the treatment of contemporary issues, including free speech in a post-9/11 world, free expression in cyberspace, and First Amendment rights on college campuses. Features:

• Demystifies free speech law, encouraging readers to grapple with the complexities of significant ethical and legal issues
• Sparks student interest in "big picture" issues while simultaneously covering important foundational material, including incitement, fighting words, true threats, obscenity, indecency, child pornography, hate speech, time place and manner restrictions, symbolic expression, restrictions on the Internet, and terrorism.
• Includes significant excerpts from landmark freedom of expression cases, including concurring or dissenting opinions where applicable, to help students become active learners of free expression rights
• Offers critical analysis and alternative perspectives on free expression doctrines to demonstrate that existing doctrine is not necessarily ideal or immutable
• Includes a global perspective on free expression including a chapter on international and comparative perspectives that helps students see how the values of different cultures influence judicial decisions

CHAPTER 1

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Introduction to Freedom of Expression and the American Legal System

Freedom of speech is one of the most fundamental American values, but it is also one of the most controversial. Free expression issues arise on a daily basis in the United States, as the following examples show:

• One thousand or more Critical Mass bicycle riders gather in cities on the last Friday of each month, riding together in a pack without regard for traffic signals.

• The Rocky Mountain Collegian, the Colorado State University student newspaper, publishes an editorial that uses an “f-bomb” to criticize George W. Bush.

• An Internet blogger writes that Barack Obama is part of a Muslim conspiracy against America, who would take his oath of office on the Koran.

• A newspaper tries to publish secret government information revealing that the United States has been waterboarding suspected terrorists.

• Opponents of U.S. immigration policy wave Mexican flags during their demonstrations.

• Entertainers such as Bono or Janet Jackson use profanity or have wardrobe malfunctions on television, YouTube, or videos delivered to mobile phones.

Should each of these communicators be protected by freedom of speech?

Freedom of speech rights also have an impact on your own life, whether you want to speak out on an issue on campus, in your community, or in the world. May your university confine your free speech to a designated area on campus? May a shopping mall have you arrested if you protest sweatshops outside a mall store that sells products made by sweatshop labor? Do you have a right to approach persons entering an abortion clinic or military recruiting center and attempt to persuade them to change their minds? Could the government regulate the content of music you listen to, books you read, or movies you watch?

When you study freedom of speech, you will focus on issues such as these. There are three major lines of inquiry that we will consider in this text. The first question is how the First Amendment protects freedom of expression in the United States. What do people have a right to say and when can the government place limits on communicators? We will study landmark Supreme Court cases defining free expression rights in detail, and consider subsequent judicial decisions that apply to these opinions.

The second issue is what expression should be protected in the United States. Here you will have the chance to consider arguments for and against protecting different types of expression (such as the examples given above). Has freedom of speech been insufficiently protected? Overprotected? You will consider the opinions of justices who were in the majority and also in the minority (called dissenting opinions), along with the perspectives of First Amendment scholars. Your professor is likely to present additional points of view. From these ideas, you can use your critical thinking skills to reach your own conclusions about what freedom of speech in the United States should entail.

The third topic is historical and cultural perspectives on freedom of expression. Freedom of speech is not an American invention. Ancient cultures had traditions that facilitated—and inhibited—free expression. American colonists had experiences as British subjects and later as citizens of an independent nation that provide perspectives on the importance of this right and the challenges required to protect it. Women, ethnic minorities, members of the working class, and religious and political dissenters all have faced unique struggles for freedom of speech. The study of history shows how fragile free expression protections can be and the necessity of vigilance if these rights are to be guaranteed.

Before beginning to study these three lines of inquiry, it is important to understand the concept of freedom of expression itself. In Chapter 1, first we will define what we mean by freedom of expression. Next, we will explain how free expression rights are determined in the United States. Finally, we will consider some fundamental justifications for freedom of expression, along with arguments used by critics of free speech.

THE NATURE OF FREEDOM OF SPEECH

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The study of freedom of expression begins by considering what we mean by expression and what it means to say that expression is free. These concepts are reflected in the First Amendment to the Constitution, which states that “Congress shall make no law … abridging the freedom of speech, or of the press.” In our system of government, the Supreme Court has the power to interpret the meaning of these terms.

The Definition of Expression

In its contemporary First Amendment usage, expression usually refers to the freedom to communicate by diverse means, including but not limited to the use of the spoken or printed word.¹ Generally speaking, if you have a First Amendment right to utter a particular insult or criticism of a political leader in a speech or conversation, you are likely to have the same right if you use those words in a newspaper article, text message, e-mail, or message painted on your body.

The right to communicate messages may vary in some contexts, depending on the medium of communication. For example, Critical Mass participants may have a free expression right to express their opposition to automobiles by posting a critique on their Web site, but not by riding their bicycles through a red light. An excerpt from a Wayans Brothers movie that could be put on YouTube might not be allowed on television (without substantial editing). We call these differences to your attention in some of the later chapters of the book.

Nevertheless, when scholars or jurists write about freedom of speech, they are ordinarily referring to the freedom to communicate a message, rather than the narrower right to express that message orally or in writing. Therefore, we will use the terms freedom of speech, freedom of expression, and First Amendment freedoms interchangeably to refer to the same basic right to communicate.

The Definition of Freedom

When we speak of freedom of expression, we will focus on freedom from abridgment by the government. This is because the First Amendment provides that Congress is the agent that is forbidden to abridge freedom of speech and press. As you will read in Chapter 3, the Supreme Court has extended this guarantee to freedom from state abridgment.² The freedom to communicate not only is threatened by government action, but also is inhibited by a number of private actors including employers, property owners, corporations, community members, and even neighbors. Nevertheless, Supreme Court decisions have focused on freedom from government sanctions on expression. There have been a limited number of cases involving private restrictions on expression, and the Court has been reluctant to find that the First Amendment prohibits such constraints.

The First Amendment forbids abridgments of free expression. A wide variety of government actions fit the term “abridgment,” as you will see in the cases we will study. Whenever the government places or threatens to place a penalty or burden on one or more persons based on their communication, expression is abridged. This definition includes obvious sanctions such as a criminal prosecution or conviction, a civil judgment for money damages, or censorship. It incorporates government-compelled expression (e.g., requiring people to stand during the national anthem), too. It also includes requirements to obtain a license or government permission, or to meet other requirements before expressing an idea. A rule against anonymous communication or demand that communicators reveal their supporters also has constituted an abridgment. Invasions of privacy, such as surveilling, wiretapping, or keeping names in a database, are abridgements if they are triggered by the content of the message one has expressed. The removal or exclusion of a communicator from a place where he or she is entitled to express a message, along with limitations on the manner of expression, also meet the definition. One more instance is a decision, based on an objection to their messages, not to give government funds or other benefits to people. Abridgments can be receiver-based or source-based. They can include government limits on a person’s ability to be an audience member, access a Web site, or obtain government information.³

When we speak of a person’s or a society’s freedom of expression, we are not referring to a total absence of abridgments or an unlimited right to communicate. No nation guarantees absolute freedom of speech, and even the staunchest of civil libertarians would agree that certain speech should not be protected—such as the freedom to say “I have a gun, give me all your money” to a convenience store clerk, to interrupt brain surgery with a screaming tirade about medical malpractice, or to falsely tell a child that his parents have just died. Every country places some limitations on the right to communicate; in a given society, freedom of speech refers to that bundle of communicative rights that persons have. This collection of rights is substantial in some parts of the world and quite limited in others. In this text, we will discuss what these rights are (particularly in the United States) and also challenge you to consider what these rights should be in a good and just society. In the next section of this chapter, we will discuss how the first of those questions is answered in the United States.

HOW FREE EXPRESSION RIGHTS ARE DETERMINED

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The text of the First Amendment states that Congress may not abridge freedom of speech or the press, but it does not define those rights. In our system of government, the Supreme Court has the last word on interpreting the Constitution.⁴ The Court does not establish regulations and guidelines that define free speech rights as thoroughly as possible before free speech disputes arise. Instead, the function of the judicial system is to resolve cases and controversies⁵ that come about after the alleged denial of rights has occurred. We will discuss the process by which a free expression right is determined by considering the example of student free speech rights.

A Communicator Delivers a Message

A freedom of speech case begins with communication. In the cases you will study, a variety of means of expression will be used, including speeches, pamphlets, music, television, the Internet, and symbolic acts, such as flag burning. In the case of Morse v. Frederick,⁶ the communication at issue was a banner reading “Bong Hits for ...

Table of contents

• Cover Page
• Title Page
• Copyright
• Brief Contents
• Detailed Contents
• Preface
• List of Court Cases
• 1 Introduction to Freedom of Expression and the American Legal System
• 2 Historical Perspectives on Freedom of Expression
• 3 Incitement to Illegal Conduct and True Threats
• 4 National Security and Freedom of Expression
• 5 Fighting Words and the Categorical Exceptions Doctrines
• 6 Hate Speech
• 7 Defamation: First Amendment Issues
• 8 Obscenity and Child Pornography
• 9 Time, Place, or Manner Restrictions
• 10 Symbolic Expression
• 11 Technology and the First Amendment
• 12 Privacy and Free Speech
• 13 Access to Information
• 14 Copyright and the First Amendment
• 15 International and Comparative Perspectives on Freedom of Expression
• Index
• About the Authors