Topic Overview:
The First Amendment is a law many American's surely take for granted. But, American's become most aware of their speech when it is prohibited by the law. Understandably, empowering a Court to weigh speech that goes against all American's best interests is necessary. Depending on the circumstance, speech can be dangerous and present defined harm to an individual or groups of people.
Therefore, it is necessary to look at the ways speech can be a danger, can inflict fights or threats, or the ways it is needed to meet educational needs. In our time and day, this means that on public college campuses around the country, we must take into consideration and reflect on the ways that limiting people's ability to speak on campus' because of their differing views goes directly against the First Amendment. I think it is notable when campus' explain the type of community they would like to create and then when confronted with hate speech, explaining how this wording is inconsistent with the direction they are aspiring to go.
Defining Key Terms:
as applied: a phrase referring to interpretation of a statute on the basis of actual effects on the parties in the present case.
USA PATRIOT Act: The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. The act gave law enforcement agencies greater authority to combat terrorism.
chilling effect: The discouragement of a constitutional right, especially free speech, by any government practice that create uncertainty about the proper exercise of that right.
clear and present danger: Doctrine establishing that restrictions on First Amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent harm.
Espionage Act (1917): one of several federal laws enacted to unify the nation behind the war effort.
incorporation doctrine: the Fourteenth Amendment concept that most of the Bill of Rights applies equally to the states.
tort: a private, or civil, wrong for which a court can provide remedy in the form of damages.
negligence: Generally, the failure to exercise reasonable or ordinary care.
proximate cause: Determining whether it is reasonable to conclude the defendant's actions led to the plaintiff's injury.
fighting words: Words not protected by the First Amendment because they cause immediate harm or illegal acts.
hate speech: A category of speech that includes name-calling and pointed criticism that demeans others on the basis of race, color, gender, ethnicity, religion, national origin, disability, intellect or the like.
Speech loses constitutional protection when the speaker intends to provoke violence or incite unrest to a targeted group or individual.
underinclusive: A First Amendment doctrine that disfavors narrow laws that target a subset of a recognized category for a discriminatory treatment.
viewpoint-based discrimination: Government censorship or punishment of expression based on the ideas or attitudes expressed. Courts will apply a strict scrutiny test to determine whether the government acted constitutionally (banning racist, but not sexist or homophobic, for example).
true threat: Speech directed toward one or more specific individuals with the intent of causing listeners to fear for their safety.
Important Cases:
Tinker v. Des Moines Independent Community (1969)- District Court recognized that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment.
Unless student expression materially or substantially disrupts the schools educational activities, school administrators lack the authority to regulate speech.
Elonis v. United States (2015)- Federal law makes it a crime to transmit interstate commerce "any communication containing any threat to injure the person of another."
Question before the Supreme Court was when Internet posts constitute true threats punishable by law.
Relevant Doctrine:
1. Fighting Words: Words not protected by the first Amendment because they cause immediate harm or illegal acts.
The First Amendment protects people's right to say offensive, unkind, and even ugly things to each other. Free speech serves as a societal safety valve; provides catharsis to discontented individuals and allows them to blow off steam.
Unless -> shown likely to produce a clear and present danger of a serious substantive evil that rise far above public inconvenience ->annoyance-> or unrest.
2. Insightment: In 1969, the Supreme Court replaced the vague "clear and present danger" standard with the Brandenburg/Hess incitement test to determine when speech is sufficiently likely to prompt illegal action that it no longer warrants First Amendment protection.
Incitement test allows punishment when speech is
-> directed toward inciting immediate violence or illegal action.
-> likely to produce that action.
Brandenburg v. Ohio (1969) - government could forbid or punish the advocacy of force only when the advocacy was directed to and was likely to incite or produce imminent lawless action.
Hess v. Indiana - Hess was protected because his comments were not meant to and not likely to provoke imminent violation of the law.
3.True threats: Speech directed toward one or more specific individuals with the intent of causing listeners to fear for their safety.
For speech to be punishable as a true threat:
1) direct the threat toward one or more individuals
2) with the intent of causing the listener(s)
3) to fear bodily harm or death
4. Media Negligence: Plaintiffs suing the media for causing physical harm most often argue the media negligently distributed material that led to injury or death.
Proximate cause: the legal determination of whether it is reasonable to conclude the defendant's actions led to the plaintiff's injury.
To win a lawsuit for injury caused by media negligence, the plaintiff must prove breach of media's duty of care because the content posed a 1) reasonable foreseeability of harm 2) proximate (directly related) cause of harm.
My Questions/Concerns:
1. In what ways does Donald Trump's language, for example his negative rhetoric to NBC journalist Katy Tur on Twitter and in rallies, who followed him on the campaign trail, incite threat or harassment? Or more generally, how can speech surrounding political campaigns and political candidates be regulated, if at all?
2. Is exacerbating division and pressing heaps of scorn on democratic institutions a threat to our government's peace?
References
Trager, R., Ross, S. D., & Reynolds, A. (2016). The law of journalism and mass communication.. CQ Press.
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