The First Amendment consists of 45 words, that gives us of the most cherished values of Americans - freedom of speech. Along with freedom of speech, the first amendment gives us the essential liberties of freedom of religion, the freedom of press, the freedom of assembly, and the right to petition the government.
This is inherently important because it gives all citizens the right to express without fear of government censorship. The First Amendment is tedious however especially when you start to consider the public vs. private places, on media platforms like Facebook and Twitter, or considering certain rhetoric like threats or defamation.
Defining Key Terms:
Original intent: the perceived intent of the framers of the First Amendment that guides some contemporary First Amendment application and interpretation.
Ad hoc balancing: making decisions according to the specific facts of the case under review rather than more general principles.
Categorical binding: a judge's or court's practice of deciding cases by weighing different broad categories, such as political speech, against other categories of interests, such as privacy, to create rules that may be applied in later cases with similar facts.
Prior restraint: Action taken by the government to prohibit publication of a specific document or texts before it is distributed to the public
Defamation: a false communication that harms another's reputation and subjects him or her to ridicule and scorn; incorporates both libel and slander.
Seditious Libel: communication meant to incite people to change the government; criticism of the government.
6 Core Values of Free Speech:
1) Individual liberty - fundamental natural rights
2) Self-government - discuss political candidates and policies and to render judgments
3) Limited government power - free speech is an invaluable against tyranny
4) Attainment of truth - increases knowledge and the discovery of the truth
5) Safety valve - free speech allows people to express problems and grievances
6) Its own end - a valuable good and a cherished right
Injunction: a court order prohibiting a person or organization from doing some specified act.
Content-neutral laws: laws that incidentally and intentionally affect speech as they advance other important interests.
Laws of general application: are constitutional; laws such as tax and equal employment laws that fall within the express power of government; laws of general application are generally reviewed under minimum scrutiny.
Rational review: a standard of judicial review that assumes the constitutionality of reasonable legislative or administrative enactments and applies minimum scrutiny to their review.
Content-based laws: laws enacted because of the message, the subject matter, or the ideas expressed in the regulated speech
*The Supreme Court generally views them as unconstitutional. -> SO, to be viewed constitutional must pass strict scrutiny.
Compelling interest: a government interest of the highest order, an interest the government is required to protect.
Content-neutral laws: laws enacted to advance a government purpose unrelated to the content of speech.
Time/place/manner laws: a First Amendment concept that laws regulating the conditions of speech are more acceptable than those regulating content; also the laws that regulate these conditions.
Symbolic expression: action that warrants some First Amendment protection because its primary purpose is to express ideas.
Quid pro quo = the payment of a specific action by a candidate, corruption by trying to bribe.
Public forum: government property held for use by the public, usually for purposes of exercising rights of speech and assembly.
Traditional public forums: land designed for public use and historically used for public gathering, discussion, and association.
Designated public forum: government spaces or buildings that are available for public use (within designated limits).
Nonpublic forums: government held property that is not available for public speech and assembly purposes.
Important Cases:
Near vs. Minnesota - (1931) JM Near published the paper "The Saturday Press" and was arrested because the content in the paper was thought to be racist, prejudiced and hateful. Police arrested him because of the Minnesota Gag Law (hateful media could not be passed to the public) of 1925.
Near appealed, because he thought this was a restriction of his First Amendment rights and that he was not intending to inflict violence with the words.
US Supreme Court declared Near was not in violation and that the Gag Law was rather violating the First Amendment.
New York Times v. United States (1971) - "Pentagon Papers Case" with Nixon Administration attempting to prevent the NYT and Washington Post from publishing materials belonging to the Defense Department. The papers would reveal classified information on the US in Vietnam.
In per curiam (unanimous agreement) the decision was that the press was not in violation of security so this was legal action.
Relevant Doctrine:
1.Strict scrutiny: a test for determining the constitutionality of laws aimed at speech content, under which the government must show it is using the least restrictive means available to directly advance a compelling interest.
For content based laws to be considered constitutional:
Must be: necessary-> use the least restrictive means-> and advance a compelling government interest
Most rigorous test to see whether a law is constitutional.
2. Intermediate scrutiny: a standard applied by the court to review laws that implicate core constitutional values; also called a heightened review; fall within the power of government; advance an important or substantial government interest that is unrelated to suppression of speech; be narrowly tailored to impose only an incidental restriction on First Amendment freedoms.
Must: fall within the power of government-> advance an important or substantial government interest that is unrelated to suppression of speech -> be narrowly tailored to impose only an incidental restriction on the First Amendment freedoms.
^O'Brien Test: A three part test to determine whether a content-neutral law is constitutional.
Current Issues/Controversies:
It is fascinating to me to be in an age on the Seattle University college campus and looking out into other college campuses, where students and faculty are surrounded by this idea of political correctness. When first explained to me and as I now intentionally try to practice on a daily basis, I see the value and the importance of such inclusivity, respect, and carefulness.
However, I am also trying to figure out how it is that some people make others feel or whether or not
(by correcting a person, sometimes with an aggressive tone) is infringing upon one's free speech, or is it just an informal pressure?
My Questions/Concerns:
1) Does free speech include tattoo art in gangs, or language on clothing in any capacity that is intended to cause harm?
2) What role does tolerance play in freedom of speech, freedom of religion, and freedom on expression?
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