Chapters 1,2,3,4,10 COM 250
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Date Created: 09/23/15
Chapter 1 Intro to Freedom of Expression First amendment protects freedom of expression in the US but how 0 What do people have a right to say and when does government place a limit 0 What expression should be protected 0 Historical and cultural perspective on freedom of expression 0 Not an American invention 0 Ancient cultures had traditions on free expression The Nature of Freedom of Speech 0 Expression the freedom to communicate by diverse means including the use of spoken or printed word 0 The freedom to communicate a message rather than the narrower right to express that message orally in writing 0 Freedom congress is forbidden to abridge freedom of speech and press 0 Freedom of speech and press Freedom to communication is often threatened by government action and is inhibited by a number of private actors including employers property owners etc 0 First Amendment says abridgments are forbidden They can be receiver based or source based Government limits on a person s ability to be an audience access web or obtain government info 0 No nation has absolute free speech How free Expression rights are determined 0 Communicator delivers a message 0 Freedom of speech case begins with the communication 0 Morse V Frederick banner that reads quotBongs hits forJesusquot Communicators expression is Approved 0 For case to proceed government approval or burden must be threatened or placed on a person 0 The case consisted of an eight day suspension The banner advocated illegal use of drugs displayed in front of a school which was inconsistent with the school s mission 0 Sanction is challenged on rst amendment 0 District courts are the lowest level 0 Appellate courts exist in state and federal courts Frederick had to appela The side that loses has one nal option to appeal to the US supreme court 0 The Case in this one is appeleaed to the supreme court Us Supreme Court has the nal authority to resolve questions of federal constitutional law If you lose an appeal you can write a writ of cortiori lower court sends record of case to Supreme Court 0 If Supreme Court grants ceritiorari the justices will read record by both sides conduct an argument and write opinions on decision 0 Most of Supreme Court cases are not on free expression IF supreme court doesn t want to hear then the lower decisions stands 0 The Court did not prevent the School from suppressing this type of language that promotes illegal drug use 0 Supreme Court Free Expression Precedent O O O O Majority opinion holding and reasoning of the court Concurring Opinion same majority decision with different reasoning Dissenting Opinion completely disagree on the opinion ofjudges Precedents previous decisions that relate to current case and explain how principles apply to the facts of the case before them 0 Supreme court granted certiorari on Frederick case and majority voted to reverse appellate courts decision and agree with the school district 0 Majority held that school districts may restrict student expression of illegal drug use 0 Frederick was now used as a precedent for student speech rights Bene ts of Freedom of Expression 0 Essential for self government 0 People be informed on all sides of an issue 0 Facilitates civic engagement Participation in political affairs and social communication organizations 0 Checks government power important as check on government so it doesn t abuse its own power ie johnson administration from escalating vitnam war so that government doesn t use power for self promotiom 0 Search for Truth 0 Market place of ideas freedom of speech Facilitiates discovery of truth Promotes individual autonomy Arguments for limiting Freedom of Speech 0 Free expression limits the speech rights of others 0 The rights of those with power need to be limited so that viewpoints of less privileged persons will not be silenced o Con icts with other values such as protecting national security 0 Con icts with other constitutional rights Freedom of Expression the right to communicate without fear of government burden or sanction Chapter 2 Freedom of Expression Freedom of speech limited in many places because the number of conditions must be met before such as Before free speech could emerge o Needed to realize that individual have needs or ideas that might differ from the leaders 0 Believe that its important to communicate disagreements 0 Laws and institutions for our freedom Barriers to Freedom of Speech 0 People believed ruler was god with absolute power 0 Sacred monarchies Belief that a ruler was a gd or gds representation on earth lE Horus Hawk gd o Criticsm of a ruler was unlikely dangerous to make negative comments Absolute Power of Rulers o Emperors and monarchs could simply use their power to control chcalspeech 0 Le king of Chinese state of Qin o ordered all persons to bring tests that Confucians favored to be burned Tyranny of Majority o In more democratic societies speech could be restricted by political majority 0 Le in Athens people could vote to exile a citizen The Nature of Restrictions on Speech 0 Book burning o The Chilling effect when speaker is permitted to communicate but risks being punished after the fact 0 Status based restrictions limiting women s rights Examples of Freedom of Speech Arab people leader elected to lead a tribe or clan Dissent in ancient Egypt Wide variety of philosophers in China Greek theatre Among Hebrews and African cultures Reversals of Freedom of Speech 0 Leader s were dependent on monarch s 0 Good will check on pharaoh was justice 0 But no mechanism for replacement of ruler 0 Also lost when leaders seized absolute power 0000 O Freedom of Expression in America 0 Native American Traditions o The Iroquois confederacy had quotGreat Law of peoplequot chiefs had to relate criticism Could bring complaints about the chiefs 0 Restrictions on Speech 0 Allowing communities to practice religion without being controlled by a center government 0 Toleration Act Protected rights of Christians 0 Rhode Island Charter people could not be punished for different of opinion on religious matters 0 Parliamentary privilege freedom from physical assault criticism of assembly 0 Signs of Support of Free Expression 0 Enlightement thinking emphasis on use of reasoning to find answers to humanities questions People jailed on seditious ibe charges 0 Adoption of Bill Rights 0 Madision proposes two amendments People shall not be deprived or abridged of their rights to speak to write or to publish their sentiments No state shall violate the equal rights of conscience freedom of press or trial by jury in criminal cases 0 Sedition Act of 1798 War of 1812 0 US declares war on Great Britain prosecuting war proved to be a challenge Freedom of Expression during Civil War 0 Anyone who opposed the war were called copperheads and didn t believe war was worth ghUng 0 Government took number of actions to limit free speech during war Habeus corpus process under which a person can challenge the legality of his or her arrest Chapter 3 lncitement Illegal Conduct and True Threats lncitement to Illegal Conduct and True Threats 0 Tension between protecting freedom of speech and reducing the risk that free speech and reducing the risk that free speech will inspire others to break the law 0 Supreme court where draw the line on incitement to illegal conduct 0 Clear and Present Danger Test 0 Schenck v United States Espionage Act punished certain types of speech that could impair war efforts 0 Questions to consider for cases What communication by defendant led to his or her conviction What test did court use to decide if the defendant s conviction was constitution How did the court apply the rest to the defendant s communication to decide if his or her speech rights have been violated More Defeats for speech 0 Frohwerk v United States Defendant was guilty of violating the espionage act and sentenced to ten years in prison The defendant had assisted in the production of twelve articles in Missouri that impaired recruiting for the armed forces and that was wrong 0 US participation in world war one was wrong Bad tendency and were illegal 0 This test with permits restriction of freedom of speech if they believe it has tendency to incite illegal activity 0 Debs v US Eugene was convicted for violating espionage act by obstructing military recruiting and enlistment Speech he gave in ohio Court rejected debs claim that his speech was protected based on the fact that it had bad tendency In conclusion 0 If speech could impair military recruitment than it wasn t protected by rst amendment 0 Call to require a clear and present danger Brandeis and Holmes said that the rst amendment should give way only if danger is truly clear and present 0 Abrams v US Convicted for espionage act violations based on two lea ets one English one yidish Messages to workers of America Majority said his lea ets shouldn t be protected But holmes didn t believe that his lea ets presented a clear and present danger 0 He wanted greater protection of rst amendment rights 0 Gitlow v New York Benjamin Gitlow member of national council of the left wing socialist party Arranged for printing of 16000 copies of left wing manifesto Rejected achievement of socialism through democratic channels Was ruled constitutional but majority said new York had right to punish this expression because constituted clear and present danger test Critical Thinking When should a speaker be held accountable 0 Clear and present danger critique o The rule gave too many rights to communicators 0 An unnecessary bleeding heart heart concern 0 The moral right of the majority to enter upon war in parts the right to secure success 0 Persecution of Communists lntesi es 0 19405 and 19505 public fear of communism intensi ed o the tools were originaly created to deal with fascists I growing concern of communication power 0 smith act aliens required to register with ngerprint contained provisions against seditious speech plurality opinion contained provisions against seditious speech 0 repression of communist speech decreases o Branderburg test Government isn t allowed to punish speech just because it has tendency or even possibility of inciting illegal conduct It must follow the following criterion 0 Speech must be directed to inciting lawless action 0 Advocacy must be calling for imminent law breaking 0 Advocacy must be likely to produce such conduct Chapter 10 Symbolic Expression Symbolic Expression non verbal symbols used to communicate a message 0 Why would you express idea nonverbally Communicators have recognized that actions can speak louder than words ie boston tea party Some of cials sometimes approval such communication using rationales such as need to promote morals public safety and social order 0 Through speech or symbolic government approvals have same effect they restrict available possibilities for expression in market place of ideas Symbolic Expression has received less rst amendment protection than has verbal expression The Bene ts of Symbolic Expression 0 An idea conveyed using symbolic expression can maximize persuasive power of the message 0 Symbolic expression also increases communicators ability to reach their targrt audience 0 Symbolic messages also increase likelihood of receiving media coverage 0 Visual demons can also critique the status quo and the open audience to new ways of thinking Cohen v California 0 Supreme court recognized importance of protecting a wide variety of verbal expression even if the words may offend some elements of society 0 Cohen recognized importance of personal autonomy as rationale for freedom Persons choose speci c tactics when engaging in Symbolic expression Protesters care about how they go about there organization 0 Paul Cohen was wearing a jacket that said fuck the court and was penalized for violating law of California for disturbing piece and quiet of the neighbors etc o The court ruled that this was a matter of speech not conduct and if you were punishing him for speech this was against the rst amendment rights of cohen De nitions of Symbolic Expression 0 Symbols central to human communication Interact through symbols to create meanings Arbitrary representation of something Can include non verbal conduct Key questions in de ning communication Whether communication must be intentional Whether it require that a message be successfully received 0000 Does it achieve a shared meaning 0 if the creation of a shared meaning is required before a symbolic act can be considered communication than there would be no communication 0 Judicial De nition of Symbolic Expression 0 Pure speech verbal expression 0 Symbolic speech speech plus expressive nonverbal conduct 0 Supreme Court Recognition of Symbolic Expression Stromberg V California 0 Symbols could constitute expression Yetta Stromberg was a supervisor at a Young Communist League summer camp She directed the campers through a daily ritual in which a camp made reproduction of the ag of soviet Russia was raised Stromberg was convicted of violating California penal code which provided that any person who displays a red ag as a sign or symbol of opposition is guilty 0 The SC reversed the conviction because the statute was vague West Virginia State Board v Education w Barnette Marie and Gathie Barnette they were Jehova s witnesses and were not allowed to salute a ag because of their religion 0 West Virginia education law required that the school children salute the ag and if not they would be expeHed The court recognized that a symbol could serve the same function as verbal message 0 ln Brown v Louisiana it was voted that the First Amendment not only limited to verbal expression but rather include the right to peacefully protect the unconstitutional segregation of public facilitates in a place where the defendants have every legal right to be 0 Supreme Court Consideration of the Boundaries of Symbolic Expression 0 Spence v Washington considered the right of a college student to hang upside down American ag from window of his apartment with a peace symbol made of black tape 0 Spence was convicted under Washington prohibiting imporpper use of the US ag 0 He argued that his action conveyed the message that the American ag should be associated with peace not war and violence O O In spence the supreme court held that this conduct was expressive because the defendant had the intent to convey a message Because his act was protected expression and no proof that any valid state interest was impaired by his display the conviction was overturned The de nition of symbolic expression became consistent with a relatively narrow de nition of communication that requires intent and success The court agreed that his display of the ag was expression because he intened to communicate his opposition to the war 0 What about harmful activities such as driving over the speed limit as expression 0 O 0 Conduct that is dangerous to others should not be protected even if expressive lf court decides that conduct is not symbolic expression the government will prevail most likely However if conduct is deemed expressive than a courts inquiry does not end Has its own rst amendment test 0 The test for protection of symbolic expression 0 United States v Obrien Burning of draft cards 0 The Obrien tesrt Government power to legislate the rst prong of the test asks whether government restriction is within its lawful power An Important government interest 0 Does the regulation further an important government interest 0 The draft card made it easier to draft people because communication between registrant and draft board was easier 0 So burning it was bad Unrelated to suppressing expression 0 The regulation has to be unrelated to the suppression of expression No greater restriction than necessary 0 The restriction must be no greater than is necessary to advance further 0 Restrictions related to suppression 0 If you restrict symbolic speech it has to be unrelated to the suppression of expression it has to do nothing with suppression freedom of expression 0 American Flag Flags convey deep feelings It is sacred to the US and to communicate disdain for government is to destroy it ls communicative uses of the ag that are not viewed as patriotic also protected by rst amendmentgt Nebraska v Halter 0 Don t use ag image to advertise Street v New York 0 Don t set ag on re 0 Texas v Johnson 0 The rst amendment question answered Johnson was handed an American ag during a march and set it on re during the march He was convicted for violating texas penal code which prohibited this act The SC granted certiorari Freedom of Expression Notes from Class Is there an ethic of expression What speech should we value and express and why Where is the line between law and ethics who decides how and what is limited Where is line between speech we protect 0 Prior Restraint restraining of speech in advance 0 Boss can say quot no you cant publishquot this is you can quit different than government saying 0 Employer has the right to tell you what to say and not to say private action suggests lack of trust 0 Post Utterance something already published there and then prosecuted 0 Difference between law and ethics 0 Law abide by controlling structured set of rules 0 Ethics something more based on society and sociable what is right what is wrong 0 Law carries escape punishment compulsory you got to do it Ethics what we think should be good whats good speech good movie good journalism etc 0 First Amendment protect speech we nd offensible 0 Le nazi kkk speech Control and Censorship Faultiness 0 Prior Restraints Vs Post Public Punishments 0 Prior Restraints something government or parent thinks must be restrained before said because it can cause damage ie coca cola can get prior restraint on something with commerce 0 Public Punishments doing afterwards not always an answer free to say but if you day you might get punishment they punish speech that incites law breaking 0 lncitement punishment for speech that incites law breaking Hate Speech Mysogeny certain words we can say have no value based on time such as nigga or fuck you hate speech france or Germany deny holoucaust over here we say this is punished but over there its not prosecuted 0 Can be prosecuted based on past experience and history as society makes difference on our freedom of expression Mysogeny speech against women Obsenity o Punishment for doing it raised questions on laws can we decide whats obscene and whats not 0 Are there forms of speech that are so lacking in value that can be punished and prohibited 0 Do we need to worry about its effect on this society of speech Indecency o Wardrobe malfunction on newspaper not a problem but on tv it is a problem we may not like 0 Defamation 0 Right to protect reputation of individuals because of this one can sue government cant protect news media etc 0 Privacy 0 When do we value this more than speech 0 Le Bill Clinton monica lewisnky case 0 Symbolism 0 Burning American ag does it matter whether its words or not 0 Its also a form of speech 0 Not only words but symbolic stuff are also protected speech Time has to be reasonable time 0 Place where is line of where you can express Such as protesting on USl Manner Regulations reasonable manners We cant protect ideas but rather expressions Copy Right what we allow some people to own certain form of expression 0 I write a song I won it has to be limits on copyright you cant say oh I wrote a love poem now you cant Five Basic Themes 0 Religion sacred monarchies and divinity being able to challenge it developed over time due to politics and rise of parliament Authority Challenging authority can be pretty difficult o Majorities V Minorities or Dissenters o Minorities what about them Such as Obama care 0 Dissenters should we allow protest of the rst amendment etc anti democratics etc 0 Social and Political Change such as issues of LGBQT o Blasi s pathological perspective when we feel good we tolerate the different people the opposers etc but when we are in peridos of fear we draw into ourselves only and not opossers Roles of Courts and Courts of Law 0 Blasi says we don t want government to restraint speech because these are our central rights and we must embed them deeply o What is law Independent judges protect us such as elected officials American Legal System Basics 0 Sources of Law 0 English Tradition Five sources of law 0 Common law English law judge mode law Statuory law passed by congress legistlature Administrative law rules of administration agencies like FDA International law treaties etc Fundamental law us constitution no law can violate this legal text 0 Divided Government and the US federal system 0 0 Congress and president Separation of power each with its own roles of checks and balances Preemption Standing not everyone can sue over an issue have to have been affected by it somehow it s a law suit by those involved Jurisdiction power of court to decide a case Trial Court case is tried judge and jury decided verdict Appellate court look to see if trial court followed the law correctly don t listen to witnesses again Highest court supreme court published written opinions then become our law 0 Our Fundamental Laws 0 O 0 Court interpret these laws judicial review established by john marshal chiefjustice We have a system of checks and balances that if we didn t follow would be a chaotic mess The courts cant enforce decisions if not funded by the government If you are congress and don39t like law u re like it re pass it or re amend it and this has happened very few times Courts do not make the laws they interpret the laws not write it Federal Preemption Federal system supremacy on federal law on some issues States have their own constitution Those laws cant violate federal law Highest Court Supreme Court Appellate Court whether or not trial court interpreted law correctly Trial Court judge and sometimes jury gets evidence examine witnesses and judge has power to throw verdict out ifjury has bad verdict against law of land jury decides whose telling the truth about what 0 Kobe Bryant Rape Case did he rape her or not Reasons to protect expression pros and cons 0 Self Government democracy if your going to vote for one president or other you want information for self government you need to be informed you need free speech Checking value to check the power of government Ability of people to speak to one another and debate etc Search for truth of debatable issues Individual authority inevitable abuse of authority Resilience people less tender we want our people to be stronger Futility Golden rule don t do to others as you don t want them to do to you 0 Authority American distrust of government we don t want to give all power to the government Costs of too much freedom 0 Sixth amendment press too much power 0 Fourteenth amendment equal protection clause morally opposed to same sex marriage and opposes to bake cake he is violating law or is it his rst amendment right 0 Other personal rights and values anacy 0 Story about love life Where is line of privacy and limit 0 Social values Peaceful Funerals Reputation OOOOOOO Daniel Elsberg leaked Pentagon papers during the Nixon administration Edward Snowden leaked document re ecting NSA data collection Are both the same Law and Ethics of NSA spying on americans Bothered people How much privacy do we trade away in name of our privacy Order in Society police officers military at what point do we cut back on these things Trade off limits on expense National security how much we surrender to these people who might abuse their powers How much freedom do we give up to be safe Civility at what point do we stop attacks etc because of religion 0 Le do we let Nazis march in a town with a lot of survivors Health and Morality of Children 0 Objecti cation how many of us like porn Are we objectifying women even if legal doesn t necessarily promote quality 0 Body not person anymore Amendment 1 0 Congress should make no law respecting an establishment of religion or prohibiting the free exercise there of or shortening the freedom of speech or of the press or the right of the people peacable to assemble and to petition the government for a redress of grievances 0 WHAT IT MEANS How can congress make no law In 19th century they thought this applied to federal government and not states this fell apart 14th amendment nationalized all of these 0 Not to abridge speech 0 The rst amendment is different now than it was back then like in 17th century Declaration of Rights of 1789 French 0 French revolution not very effective ftench constitution had been amended USSR 1977 more speci c 0 Utterly ineffective Secular and Prior Restraints 0 Times of Crisis times of war and least likely to tolerate dissent 0 Times of fear civil war world war one 0 Laws of sedation Laws of Sedation 0 Conduct or speech making people rebel against authority is illegal o Punishment of disloyal speech Secrecy o Classi ed information o Vagueness of national security and risk of abuse 0 Lets not tell people etc of own mistakes Abused 0 Restraints and First Amendment 0 Near v Minnesota 0 Vietnmam and Pentagon papers 0 Surveillance o Snowdne 0 We worry about conformity here 0 Fear that our behavior is being watched so it might change 0 Changed interaction because of surveillance 0 Pentagon Papers 0 Daniel Elsberg Marine pro war in Vietnam worked for the secretary of defense believed in surveillance He then turned against the US American leaders because he believed they were lying to the public Maclamore commissioned a study which became the pentagon papers He was horri ed because everything was a lie so he spoke and wrote and made copies he didn t give it to the chineese but rst he went to the people in congress no one would take it so he went to the press the Ny Times Nixon didn t like this so he told the new York times to stop publishing because they are violating the laws of sedition NY times disagreed and said it just shows embarrassment and the truth Nixon administration got an injuction to NY times to stop publishing and they cant violate court orders so they had to o Jurisdiction power of court to hear a case 0 Difference betweel trial court and appellate court 0
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