First Amendment

11 Key excerpts on "First Amendment"

• 

  eBook - ePub

  Digital Media Law

  A Practical Guide for the Media and Entertainment Industries

  • Christopher S. Reed(Author)
  • 2022(Publication Date)
  • Routledge

    (Publisher)

  Chapter 3 The First Amendment

  DOI: 10.4324/9781003197966-3

  What is the First Amendment and what rights does it afford citizens? Does it provide special guarantees to the press? What are the boundaries of the First Amendment and how do courts resolve tensions between First Amendment rights and other important constitutional values?

  In the previous chapter, we established the broad contours of the law. In this chapter, we will orient ourselves within that broad universe by examining the spectrum of protection that First Amendment law has developed over the years and how it affects the media industry. Among other things, this chapter will examine distinctions between highly protected speech, such as political statements, and unprotected speech, such as obscenity.

  Fundamental Freedoms

  The First Amendment to the U.S. Constitution provides that:

  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.

  In that single sentence, comprising only 45 words, the framers of the Constitution established a framework for what have become some of the most sacrosanct rights of U.S. citizens: the right to freely practice religious beliefs and be free from government attempts at establishing a national religion; the right to assemble peaceably, which enables the protests, demonstrations, and marches that have, throughout our history, led to momentous legal and cultural changes; the right to complain to the government and ask for changes to laws and policies; and the freedom to speak openly and freely, and the right of the press to report on government affairs and other matters of public importance.

  The rights set forth in the First Amendment represent the framers’ attempt at avoiding the tyranny of a central government, such as the English monarchy from which they had fled. As noted previously, the guiding principle of the U.S. democratic framework is that power vests first in the people, who grant the authority to govern to the government. The ability to speak, assemble, and practice one’s own religious beliefs free from undue government involvement, coupled with the right to complain to (and seek redress from) the government, were all considered essential to ensuring that the power to govern remained fundamentally with the citizens.

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  Eloquence and Reason

  Creating a First Amendment Culture

  • Robert L. Tsai(Author)
  • 2008(Publication Date)
  • Yale University Press

    (Publisher)

  1 1 Freedom as a Matter of Faith Mostly ignored by the United States Supreme Court for the first hundred years after its reduction to parchment, the First Amendment played a central role in a transformation of American political identity during the twentieth century. During this period, the rights to speech and religion became defining features of citizenship in the nation-state and the enforcement of rights the primary responsibility of the courts. In turn, the reach and intricacy of judge-made law developed well beyond what the gentlemen of 1789 could have foreseen. First Amendment law today defines and demarcates an impressive amount of social life. No longer limited to the right to speak or publish, the ‘‘First Freedoms’’ extend to unconventional strategies of protest, artistic cre-ations and scientific discoveries, and matters of the intellect, self-definition, and spirituality. ∞ An underlying order belies the unruliness on the surface of First Amend-ment law, but it is not maintained by reason alone. To appreciate freedom of speech as a distinctive way of life, it may be fruitful to conceptualize the law as a sophisticated system of devotional practices, rather than as merely a set of conflict-resolving protocols or commands backed by threats. ≤ This orientation promises greater descriptive accuracy for three related rea-sons. First, it goes some distance toward explaining the intensity of feeling that the populace has for the right to speak, assemble, and petition. Opinion polls 2 Freedom as a Matter of Faith and learned treatises consistently locate free speech at the center of democratic constitutionalism. As Kent Greenawalt explains: ‘‘[n]o one doubts that free-dom of speech and of the press is a cornerstone of liberal democracy.’’ ≥ Some theorists posit that political community is, or ought to be, grounded in neutral principles of governance.

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  Democracy, Expertise, and Academic Freedom

  A First Amendment Jurisprudence for the Modern State

  • Robert C. Post(Author)
  • 2012(Publication Date)
  • Yale University Press

    (Publisher)

  First Amendment coverage does in fact display systematic patterns that are both indifferent to individual autonomy and consistent with the view that the fundamental purpose of the First Amendment is political, rather than ethical. The Court 14 Democratic Legitimation has time and again explained its own First Amendment juris-prudence in terms of “securing of an informed and educated public opinion with respect to a matter which is of public concern.” 60 The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subse-quent punishment. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period. 61 The persistent attention in First Amendment doctrine to whether communication involves public officials, or public fig-ures, or matters of public concern, or is directed to the general public, derives from the conviction that, as Learned Hand put it, “public opinion . . . is the final source of government in a democratic state.” 62 “Public opinion,” said James Madison, “is the real sovereign in every free” government. 63 The function of the First Amendment is to safeguard the communicative pro-cesses by which public opinion is formed, so as to ensure the integrity of “the great process by which public opinion passes over into public will, which is legislation.” 64 Agreement on this point is almost universal. Even a thinker like Carl Schmitt defines democracy as “the rule of public opinion, ‘government by public opinion.’” 65 It is for this reason that we denominate

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  The Cosmopolitan First Amendment

  Protecting Transborder Expressive and Religious Liberties

  • Timothy Zick(Author)
  • 2013(Publication Date)
  • Cambridge University Press

    (Publisher)

  First Amendment liberties are of course implicated in this exchange, as, for example, where a U.S. court is asked to enforce a foreign libel or hate speech judgment against an American speaker. However, there is also an international relations aspect to enforcement of foreign judgments and laws. Questions relating to the cross-border The First Amendment’s Transborder Dimension 29 flow or exchange of constitutional standards and norms, and specifi- cally conflicts between First Amendment and foreign standards, are addressed in Part III of the book, which examines the First Amendment within the community of nations. Cross-Border Movement, Communication, and Association In the domestic realm, information-gathering, the transmission and receipt of ideas and materials, and various associational activities (inti- mate, large-scale, secular, sectarian) are all core First Amendment activities. These activities are also prevalent in cross-territorial con- texts. People, information, ideas, cultural practices, and religious activ- ities all traverse U.S. borders. Egress and Ingress – International Travel and Immigration Ever since U.S. passports were first required for international travel, federal laws and policies have restricted citizens’ cross-border move- ment. At times, permission to travel abroad was denied solely on ideo- logical or religious grounds. Further, during both war and peacetime, presidents have imposed area travel restrictions on U.S. citizens and resident aliens. Economic embargoes also limit travel by U.S. citizens to certain foreign nations, and thus restrict exchange with aliens in those targeted nations. Millions of Americans travel abroad each year, and millions hold dual citizenship status. 3 Foreign travel is closely connected to a num- ber of First Amendment liberties. 4 When they leave the country, U.S. citizens can gather first-hand information about foreign nations, cul- tures, and people.

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  Constitutional Law For Dummies

  • Glenn Smith, Patricia Fusco(Authors)
  • 2011(Publication Date)
  • For Dummies

    (Publisher)

  Part IV Rights to Self-Expression and Political Participation

  In this part . . .

  In making decisions, courts are constantly balancing an individual’s rights and the greater public good. The right to self-expression is no exception. In this part, we discuss how courts tackle balancing this with other interests, including how they approach the difficult area of free exercise of religion — not interfering with individual rights while at the same time not allowing the government to favor a certain religion. We also discuss politics and voting, considering what practical realities resulted from constitutional provisions and subsequent cases in these areas.

  Passage contains an image

  Chapter 11 “Express Yourself!” Freedom of Speech In This Chapter

  Finding out what freedom of speech is all about

  Determining whether the speech in question is protected

  Pinpointing the amount of protection speech gets

  Looking at situations that warrant extraordinary protection

  Exploring special contexts in which speech gets less protection

  The First Amendment guarantees the right of free speech. However, that doesn’t mean government can’t regulate speech to various extents. When legislatures pass laws or other governmental authorities adopt policies affecting speech, many agonizing and controversial questions arise. But luckily, a basic two-step (and, at times, three-step) approach can help you analyze many free-speech controversies.

  When government sets out to regulate speech, the first step is to ask whether the speech in question gets any First Amendment protection. (Some kinds of speech are considered to be unprotected — that is, outside the scope of the protections the First Amendment provides.) If the First Amendment protects the speech at issue, the second step is to ask whether government is regulating based on the content of the speech or not. In many cases, answering these two questions tells you the extent

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  Constitutional Law for the Criminal Justice Professional

  • Carl J. Franklin(Author)
  • 1999(Publication Date)
  • Routledge

    (Publisher)

  2 A committee appointed to reach an agreement on language acceptable to both House and Senate rewrote the language and added from other provisions of Madison’s draft to make it read: The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the Government for redress of grievances, shall not be infringed. 3 Subsequently, the religion, speech, and press clauses were combined by the Senate, and the final language was agreed upon in conference. 4 The intent of the Framers was to construct an amendment that set forth simple principles of protection for speech and press. Madison warned against dangers that would arise “from discussing and proposing abstract propositions.” 5 He further 78 Constitutional Law for the Criminal Justice Professional suggested that “if we confine ourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty.” 6 Commentators have often likened the protections of the First Amendment to the common law principles of the English system. These views, as expressed by Black-stone, hold that: The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. 7 The common law principle held that the press should not be subject to licensure, that is, that the press or the individual’s sentiments, should not be limited by requiring one to gain license from a government arbiter.

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  Election Interference

  International Law and the Future of Democracy

  • Jens David Ohlin(Author)
  • 2020(Publication Date)
  • Cambridge University Press

    (Publisher)

  152 6. Free Speech and Elections square this result with the denial of voting rights for foreigners. It would fundamen- tally alter the nature of American political campaigns. In addition to being normatively undesirable, it is clear that this view of the First Amendment is not consistent with the Court’s First Amendment jurisprudence. The First Amendment as currently understood by the Court would not be a barrier to the proposal discussed in the prior chapter: a regulation requiring social media compa- nies to label foreign political speech as having a foreign origin. To the extent that foreigners using social media platforms objected to this regulation, they would not be entitled to successfully raise a First Amendment challenge before a federal court. In Bluman v. FEC, a federal court explicitly recognized that the First Amendment permits the federal government to limit the participation of foreigners in order to protect the political process. 22 As other scholars have noted, Bluman is consistent with the idea that the First Amendment permits the government to regulate the political speech of foreigners. 23 Some scholars have argued that the federal govern- ment could prohibit “intentionally false lies containing express advocacy.” 24 Although this is a worthwhile suggestion, one should separate out the foreign speech component from the intentional lie. Although the principles of self-determination and the integrity of the democratic process require distinguishing between domestic and foreign speakers, allowing the government to get into the business of distinguish- ing between truth and fiction in the political context is especially hazardous. In many other contexts the government does make those distinctions (such as health and welfare regulations), but in the context of political speech, the otherwise unproblematic enterprise becomes especially dangerous.

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  Advertising and Public Relations Law

  • Carmen Maye, Roy L. Moore, Erik L. Collins(Authors)
  • 2019(Publication Date)
  • Routledge

    (Publisher)

  1 The First Amendment

  Advertising and public relations students and practitioners picking up a 500-plus page book filled with examples and discussions of laws regulating advertising and public relations speech could be pardoned for being somewhat puzzled. After all, the language of the First Amendment to the federal Constitution clearly mandates that “Congress [and, by logical extension, any lesser unit of government] shall make no law … abridging freedom of speech or of the press.”1 How can there be laws regulating any speech (let alone advertising or public relations speech) in the face of the Constitution’s emphatic statement that there can be “no law”? This puzzle requires us to begin with a brief overview of the First Amendment and how it is interpreted, before we turn our attention to the principal subject matter of this book.

  Development of First Amendment Jurisprudence

  The dilemma for courts faced with deciding cases that challenge the constitutionality of attempts by government to regulate speech and press is that despite the emphatic “no law” language of the First Amendment (see Appendix A), it is almost impossible to believe that those who helped add the amendment to the federal constitution more than 200 years ago meant to protect all speech without exception, even speech, for example, that is treasonous or criminally threatening or harmful to reputation. Yet judges and justices cannot simply ignore the First Amendment because they personally disapprove of the speech in question. Therefore, they have been obliged to develop a logical, rational and defensible method of interpretation by weighing and balancing the interests of those supporting freedom of expression against those favoring competing interests. To understand how they have accomplished this, we need to take a brief look both at how judges interpret law and how historians interpret history.

  Role-play the part of judge for a moment. Not a Supreme Court justice but a judge in a lower level court in which the cases usually involve petty crimes and minor disagreements—the kind of court you often see depicted on afternoon or late-evening cable television programs. The next case on the docket is City v. Jones

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  No Law

  Intellectual Property in the Image of an Absolute First Amendment

  • David L. Lange, H. Jefferson Powell(Authors)
  • 2008(Publication Date)
  • Stanford Law Books

    (Publisher)

  The [first ten] amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people’s freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: “Congress shall make no law. . . abridging the freedom. . . of the press. . . .” Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints. 53 Solicitor General Griswold’s argument, in other words, turned the original history of the First Amendment upside down: instead of treating the amendment, as its language and its origins require, as a restraint on the powers granted by the original text of the Constitution, Griswold wanted the Court to use the powers granted in 1787–88 to adjust, by judicial fiat but in what the executive deemed a socially valuable fashion, the denial of power adopted in 1789–91

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  The Constitution Explained

  A Guide for Every American

  • David L. Hudson(Author)
  • 2022(Publication Date)
  • Visible Ink Press

    (Publisher)

  When the Warren Court ended with the retirement of Chief Justice Warren in 1969, many feared that the Court would retract or reduce constitutional freedoms, including the freedom of speech. However, in the free-speech arena, the Court under Chief Justice Warren E. Burger (1907–1995) expanded First Amendment doctrine in numerous ways. The Court narrowed several unprotected categories of speech, protecting for the first time advertising or commercial speech, and warned against the government discriminating against speech based on the content or message of the speaker. This expansion of free-speech doctrine continued even more in the subsequent decades under Courts headed by Chief Justices William H. Rehnquist and his former law clerk, John G. Roberts Jr. (1955–).

  In 2019, Roberts declared in an interview with Belmont University College of Law dean and former U.S. attorney general Alberto Gonzales (1955–): “I’m probably the most aggressive defender of the First Amendment. Most people might think that doesn’t quite fit with my jurisprudence in other areas.”

  Fundamental Free-Speech Principles

  Free-speech law is an intricate area, but there are numerous fundamental principles that can help readers navigate it.

  1.The First Amendment protects the ability of people to criticize the government.

  The essence of the First Amendment is the ability of individuals to criticize the government. The Supreme Court defended this principle most notably in New York Times Co. v. Sullivan (1964), ruling that an editorial advertisement published in the New York Times that spoke of rights abuses perpetrated by Southern officials in Montgomery, Alabama, did not subject the newspaper or principal creators of the ad to liability for defamation. Montgomery police commissioner L. B. Sullivan had sued the Times and four African American clergymen who created the ad for defamation, even though he was not specifically identified.

  Published on March 29, 1960, in the New York Times, this ad, which was full of factual errors, resulted in a lawsuit by Police Commissioner L. B. Sullivan of Montgomery, Alabama.

  An all-white, state-court jury in Alabama had awarded Sullivan $500,000 in damages, a verdict upheld by the Alabama Supreme Court. The Times

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  Our Democratic First Amendment

  • Ashutosh Bhagwat(Author)
  • 2020(Publication Date)
  • Cambridge University Press

    (Publisher)

  This strongly supports the view the First Amendment’s Freedom of Speech Clause also provided immunity from punishment (though the broadening of the right to speech by all people anywhere, not just legislators in the legislative chamber, made absolute immunity impossible). The second point is more profound, because it relates to why we protect freedom of speech. As discussed earlier in this chapter, it has been relatively uncontroversial since the time of the Framing that free- dom of the press is protected by the First Amendment because of the fundamental and essential role that a free press plays in a democracy based on principles of popular sovereignty. One might think the same is 56 English Bill of Rights (1689), available at http://avalon.law.yale.edu/17th_century/england .asp (last visited March 1, 2017). 57 Bogen, supra note 50, at 431–434. 58 U.S. CONST. Art. I, § 6, cl. 1. 59 See Bogen, supra note 50, at 431; Kurland, supra note 8, at 255. 28 The Framers’ Democratic First Amendment obviously true regarding free speech but in fact in modern times that assertion has been more controversial. Some scholars have advanced instead a more purely dignitary theory of free speech, suggesting that its value lies in advancing individual autonomy and self-fulfillment, 60 or in protecting a person as “a thinker,” who is able to control “the free development and operation of her mind.” 61 Others have argued (draw- ing on a famous opinion by Justice Holmes 62 ) that the reason we protect free speech is to advance an abstract “search for truth.” 63 Of course, many, perhaps most, scholars defend a democracy-based view of free speech; 64 but debate continues, and the Supreme Court has never adopted democracy as the rationale for the Free Speech Clause, instead choosing not to choose. Nothing else can explain why, in modern times, the Court has extended free-speech protections to things like nonpolitical, commercial advertising.

  Sign up to read

  Learn more about book