Non Protected Speech

7 Key excerpts on "Non Protected Speech"

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  eBook - ePub

  The Law of Public Communication

  • William E. Lee, Daxton R. Stewart, Jonathan Peters(Authors)
  • 2019(Publication Date)
  • Routledge

    (Publisher)

  Chapter 8 .

  92 Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).

  Regulations on nonobscene sexual expression are also subject to less exacting scrutiny than regulations on political content. Nude dancing, the Supreme Court has said, enjoys less First Amendment protection than political speech because it is expressive conduct within the outer perimeters of the First Amendment.93 Nonobscene sexual films, plays, and magazines may be examined for obscenity before distribution, whereas political and other more highly valued expression may not.94 Furthermore, the display of nonobscene sexual plays, movies, and printed materials can be restricted to certain zones within a city without violating the First Amendment.95

  93 City of Erie v. Pap’s A.M., 529 U.S. 277 (2000).

  94 Freedman v. Maryland, 380 U.S. 51 (1965).

  95 City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).

  Some expression is less protected if it is broadcast rather than printed. Indecency, which may be thought of as four-letter words, is fully protected content in magazines, books, and other printed media, but is less protected in broadcasting. The Supreme Court justifies less rigorous First Amendment protection for broadcast indecency because broadcasts supposedly intrude into the home, assailing vulnerable children.96 Obscenity, “patently offensive” depictions of sexual and excretory acts, is excluded from constitutional protection. Obscenity, indecency and violence will be discussed in Chapter 9 . The section in Chapter 3

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  Dare to Speak

  Defending Free Speech for All

  • Suzanne Nossel(Author)
  • 2024(Publication Date)
  • Dey Street Books

    (Publisher)

  Part IV

  Principles to Follow in Considering Speech-Related Policies

  Passage contains an image

  16.

  Know the Legal Limits of Free Speech

  FREEDOM OF SPEECH IS NOT ABSOLUTE. ALTHOUGH THE FIRST AMENDMENT provides that the government “shall make no law abridging the freedom of speech,” that doesn’t actually mean everything we say is legally protected. In considering whether our current system of stringent safeguards for free speech does enough to shield against harm, it is essential to understand the boundaries of what speech is and is not protected. When a noxious image is displayed or intimidating words are uttered, it may be that an exception to the First Amendment applies, allowing authorities such as police or public university administrators to take legal or disciplinary action. In its 1942 decision in Chaplinsky v. New Hampshire, the Supreme Court spelled out a partial list of categories of speech beyond the First Amendment’s protective umbrella, including obscenity, defamation, and—in Chaplinsky’s own case—“fighting words” that “inflict injury or tend to incite an immediate breach of the peace.” Later court decisions have added categories to this list, among them fraud, incitement, speech integral to criminal conduct, and “true threats.” This list of exceptions has been relatively stable over the years. Courts have both progressively narrowed their scope and hesitated to add new categories, while not ruling out the possibility that additional exceptions will someday be recognized.

  Incitement

  The First Amendment does not protect express advocacy of immediate illegal action where the action is likely to occur and the potential harm serious. The legal test for unprotected incitement (defined as spurring or urging someone to action, including violence) comes from the 1969 case of Brandenburg v. Ohio. In Brandenburg, the Supreme Court held that the state of Ohio could forbid advocacy “directed to inciting or producing imminent lawless action” and “likely to incite or produce such action.” In practice, this is a strict, highly speech-protective test. Most speech that might seem

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  Democracy and the Problem of Free Speech

  • Cass R. Sunstein(Author)
  • 1995(Publication Date)
  • Free Press

    (Publisher)

  I suggest that “political speech” lies at the heart of constitutional concern. Such speech is securely protected against government; when the state tries to ban political speech, it is subject to the strongest presumption of unconstitutionality. Without a showing of likely, immediate, and grave harm, government cannot regulate political speech. This conclusion has broad and dramatic implications. It suggests, for example, that government may rarely regulate speech critical of its own performance during wartime; that claims for the violent overthrow of government are usually protected; and even that racist and sexist speech usually falls within the free speech “core.” But nonpolitical speech—which I define below—receives less stringent protection. A view of this general sort, asserted most vigorously in the work of the philosopher Alexander Meiklejohn, 1 would help solve many of our current controversies. It would do so while maintaining our focus on deliberative democracy, and without sacrificing the basic features of free speech law as it now stands. On the Madisonian view, ours is a “two-tier” First Amendment. 2 The two tiers are defined in terms of constitutional value. Constitutional value is measured by reference to the animating purposes of the free speech guarantee. This is not a matter of uncovering some preexisting fact; with respect to constitutional purposes, there is no such thing. Instead we try to give the best constructive interpretation to the constitutional provision. In this process, we accord weight to structure and history, but acknowledge that these sources of meaning do not afford complete guidance

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  Hate Speech

  Linguistic Perspectives

  • Victoria Guillén-Nieto(Author)
  • 2023(Publication Date)
  • De Gruyter Mouton

    (Publisher)

  The ECRI General Policy Recommendation No. 15 discusses how far the right to freedom of opinion and expression can go in a democratic society (Article 1 of the Universal Declaration of Human Rights). The ECRI’s recommendation also imposes a high standard for limiting freedom of speech, but not as high as the one set by the United States constitutional law. First, the law should only criminalise extreme manifestations of hate speech, those inciting violent acts against the target groups. Second, hate speech prohibition should not be misused by those in power to curb dissent and criticism. Third, freedom of expression should be extended to expressing ideas that contradict, attack, or upset the State, the democratic system, or a population group.

  3  The lack of an agreed-upon technical legal definition of hate speech

  As I pointed out in Chapter 1, at present, there is no agreed-upon technical legal definition of hate speech. Because of the lack of consensus about the legal meaning of hate speech, some people might argue that any attempt to regulate hate speech should be abandoned because regulating a legal concept for which there is no single definition is impossible. Hate speech is an umbrella term that encompasses a family of legal definitions drawn from several legal cultures. However, each definition differs from the next in perspective while sharing at least one quality with another definition in the family (cf. Wittgenstein’s concept of family resemblance).

  Apart from the problem of the lack of an internationally agreed-upon technical definition of hate speech, some jurisdictions have no technical legal definition of hate speech at all. In my view, this may have two significant implications. First, if hate speech is not cast in a technical legal definition, it may not be possible for the court of justice to recognise which forms of expression are likely to fall under the legally sanctionable category of hate speech. Second, certain forms of hate speech may pass unnoticed by the court of justice. As a result, victims of legally unrecognised hate speech could lack either protection of their fundamental rights to dignity and equality or lack parity of protection in a given jurisdiction compared to the victims of legally recognised hate speech in another jurisdiction. To illustrate the implications that the lack of an agreed-upon technical legal definition of hate speech may have, let us take the case of the United States, already discussed in Chapter 1. At the federal level, the Hate Crime Statistic Act defines a hate crime as one that:

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  Hate Speech and Human Rights in Eastern Europe

  Legislating for Divergent Values

  • Viera Pejchal(Author)
  • 2020(Publication Date)
  • Routledge

    (Publisher)

  Although “hate speech bans generate pervasive indeterminacy and contradiction (…) many Western European countries prohibit various forms of racist, sexist, anti-religious, homophobic, or other intolerant speech.” 132 Moreover, international human rights law affirms that freedom of expression is not an absolute right 133 and provides certain standards for limiting speech and thus proposing a definition. 134 The International Covenant on Civil and Political Rights (ICCPR) in its Articles 19 and 20 and the International Convention on the Elimination of All forms of Racial Discrimination (ICERD) in Article 4, all offer clear limits on the exercise of freedom of expression. 135 These limits are set to protect, among others, the rights of others, public security, or simply outlaw advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence or which promotes racial superiority. In the European context 136 a number of hard and soft law documents offer both limits on free speech and definitions of hate speech. 137 Mendel argued that international law provides standards in relation to the criminal prohibition of hate speech; however, he also admitted that “international courts failed to provide a clear interpretative framework for hate speech.” 138 The absence of a clear interpretation of international norms may be one of the reasons for the lack of a universal definition of hate speech. 139 130 The American First Amendment was analyzed in the light of hate speech in an important volume of publications, see among: Kevin Boyle, “Hate Speech – The United States Versus the Rest of the World?,” Maine Law Review 53, no. 2 (2001): 487–502; Asaf Fisher, “Regulating Hate Speech,” UTS Law Revi ew 8 (2006): 21–48; Daniel A. Farb er, The First Amend ment; Ronal J

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  Trust in Epistemology

  • Katherine Dormandy(Author)
  • 2019(Publication Date)
  • Routledge

    (Publisher)

  not immitigable: discriminatory speech (the argument goes) still advances significant and compelling free speech interests due to which it deserves legal protection, despite being odious. The interests typically appealed to include the pursuit of truth and knowledge, ensuring democratic deliberation and functioning, and fostering personal autonomy and individual progress (Brink 2001; Dworkin 1981; Meiklejohn 1965; Mill 1974; Raz 1991; Scanlon 1972; Sunstein 1992; Yong 2011).

  Looking at how discriminatory speech seemingly influences us in deeply covert and hard-to-detect ways, however, undermines liberal arguments that advance a sort of “hands-off” policy to discriminatory speech—or so I will argue here by examining harmful effects that discriminatory speech has on epistemic autonomy. In short: intellectual self-trust is a necessary condition for the pursuit of knowledge and for fostering (personal and epistemic) autonomy; but because discriminatory speech erodes and perverts self-trust, it undermines in subtle, covert, and insidious ways the very grounds supposedly justifying its permissibility. This becomes particularly clear once we appreciate the role that discriminatory expressions conceivably play in shaping and maintaining prejudicial unconscious influences. I will discuss implicit bias, stereotype threat, and essentializing striking generics to make my case. Because these influences have in common with discriminatory speech a crucial connectedness to prevalent, public stereotypes, there is a complex and mutually sustaining relationship between unconscious influences and discriminatory speech. Everyday stereotypes (as I will understand them here) are putative pieces of knowledge that are “associated with a group of people, knowledge that is learned from, and shared with, others in the culture” (Moskowitz and Li 2011, 103; see also Beeghly 2015; Blum 2004). Stereotypes are negatively or positively valenced false, misleading, or exaggerated generalizations that link groups to one or more general traits. They are highly evidence resistant and rigid: we are inclined to see stereotypical behavior where it does not exist and overlook counter-stereotypical behavior when it occurs. This is because one feature of unconscious stereotypical attitudes is that they “bypass autonomous deliberative processes” (Hurley 2004, 176). Because we are not aware of their influences (the attitudes are automatic and unconscious), our subsequent behavioral and epistemic responses can forego norms and attitudes over which we can exercise conscious control. Given what we know about the workings of implicit attitudes, there is reason to think that discriminatory speech is one mechanism keeping such attitudes alive. Hence, I will argue here, discriminatory speech generates perhaps surprising and yet serious ways in which words can also “wound” due to their effects on self-trust. This shows that a laissez-faire attitude to discriminatory speech is problematic, although it does not justify censoring discriminatory speech—nor will I be advocating such legal counter-measures here. Still, the problems that I will highlight demonstrate that a hands-off policy to this sort of speech is misguided and that educational interventions are warranted. In fact, given the prevalence of discriminatory expressions, its corrupting force on epistemic autonomy may well be much more widespread than that of hate speech, though less immediate.

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  Free Speech and Censorship

  Examining the Facts

  • H. L. Pohlman(Author)
  • 2019(Publication Date)
  • ABC-CLIO

    (Publisher)

  2 Unprotected Speech

  As noted in Q3, the Supreme Court in Chaplinsky v. New Hampshire (1942) excluded certain categories of speech, such as “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words,” from any protection under the First Amendment. These types of speech were excluded, the Court explained, because “such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality” (315 U.S. 568, 572 (1942)). Other categories of excluded speech include threats, solicitations of unlawful conduct, conspiracy, and perjury. Following Chaplinsky , the Court has dropped “profanity” and “lewd” speech (outside of public schools—see Q28) from the list of unprotected categories of speech and added “child pornography,” while at the same time it has significantly narrowed the legal definitions of “libel,” “obscenity,” and “fighting words.” The clear inference is that the types of unprotected speech are not set in stone and their boundaries can evolve over time.

  The fact that certain categories of speech are excluded from the First Amendment affects how judges decide cases dealing with them. In such cases, the issue is not one of “balancing” the importance of the government’s interest versus the value of the kind of speech under consideration, but rather whether the speech activity in question fits the definition of the excluded category—a form of judicial decision making referred to as “categorization.” If it fits the definition, then it is not protected by free speech; if it does not fit, then it is protected. Accordingly, the determination is made without any apparent judicial balancing of values or interests. A purported value of “categorization” is that it gives citizens a “bright line”; they do not have to wait for a judge to engage in “balancing” to decide after the fact whether the government’s interest is more important than speech. However, it is not entirely clear that the two approaches are fundamentally different if judges engage in “balancing” as they define the excluded category or if the definition requires a judicial assessment of the context of the speech activity. In these two ways, some sort of “balancing” may creep into the “categorization” approach. Chapter 3

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