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UM / Communications / COM 250 / What is the nature of freedom of speech?

What is the nature of freedom of speech?

What is the nature of freedom of speech?


School: University of Miami
Department: Communications
Course: Freedom of Expression and Communication Ethics
Professor: Samuel terilli
Term: Fall 2015
Cost: 25
Name: Chapters 1,2,3,4,10
Description: Notes for Freedom of Expression Class Com 250, take very well detailed notes. Everything Professor says is on these notes. and my own notes from the textbook!
Uploaded: 09/24/2015
16 Pages 10 Views 15 Unlocks

arielle Notetaker (Rating: )

Chapter 1: Intro to Freedom of Expression

What is the nature of freedom of speech?

First amendment protects freedom of expression in the US, but  how?  

 What do people have a right to say and when does government place a limit?

 What expression should be protected?  

 Historical and cultural perspective on freedom of expression o Not an American invention  

o Ancient cultures had traditions on free expression  The Nature of Freedom of Speech

 Expression: the freedom to communicate by diverse means including  the use of spoken or printed word  

o The freedom to communicate a message rather than the  narrower right to express that message orally in writing  

 Freedom: congress is forbidden to abridge freedom of speech and  press  

o Freedom of speech and press  

How freedom expression rights determined?

We also discuss several other topics like nu 403 class notes

 Freedom to communication is often threatened by  

government action and is inhibited by a number of private  actors including employers, property, owners etc.  

o 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  Don't forget about the age old question of heidi beattie

 No nation has absolute free speech  

How free Expression rights are determined?  

 Communicator delivers a message  

o Freedom of speech case begins with the communication o Morse V. Frederick: banner that reads “Bongs hits for Jesus”   Communicators expression is Approved?

o For case to proceed government approval or burden must be  threatened or placed on a person  

What are the benefits of freedom of expression?

o 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  


 Sanction is challenged on first amendment  

o District courts are the lowest level  

o Appellate courts exist in state and federal courts  

 Frederick had to appela  

 The side that loses has one final option to appeal to the US  supreme court  

 The Case in this one is appeleaed to the supreme court

o Us Supreme Court has the final authority to resolve questions of  federal constitutional law Don't forget about the age old question of psyc 2120

 If you lose an appeal you can write a writ of cortiori: lower  court sends record of case to Supreme Court  

 If Supreme Court grants ceritiorari the justices will  

read record by both sides: conduct an argument and  

write opinions on decision  

 Most of Supreme Court cases are not on free  We also discuss several other topics like humanistic psychologists believe that

expression, IF supreme court doesn’t want to hear,  

then the lower decisions stands  

o The Court did not prevent the School from suppressing this type  of language that promotes illegal drug use  

 Supreme Court: Free Expression Precedent  

o Majority opinion: holding and reasoning of the court  

o Concurring Opinion: same majority decision with different  reasoning  

o Dissenting Opinion: completely disagree on the opinion of judges o Precedents: previous decisions that relate to current case and  explain how principles apply to the facts of the case before them   Supreme court granted certiorari on Frederick case and majority voted  to reverse appellate courts decision and agree with the school district  o Majority held that school districts may restrict student expression of illegal drug use  Don't forget about the age old question of adpr meaning

o Frederick was now used as a precedent for student speech rights  Benefits of Freedom of Expression

 Essential for self government  

o People be informed on all sides of an issue

o Facilitates civic engagement  

 Participation in political affairs and social communication  organizations  If you want to learn more check out What does experiment mean in science?

o Checks government power: important as check on government  so it doesn’t abuse its own power  

 i.e: Johnson administration from escalating vitnam war  

 so that government doesn’t use power for self promotiom   Search for Truth

o Market place of ideas- freedom of speech  

 Facilitiates discovery of truth  

 Promotes individual autonomy  

Arguments for limiting Freedom of Speech

 Free expression limits the speech rights of others  

o The rights of those with power need to be limited so that  viewpoints of less privileged persons will not be silenced  

o Conflicts with other values such as protecting national security  o Conflicts 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.  

o Believe that its important to communicate disagreements  o Laws and institutions for our freedom

 Barriers to Freedom of Speech

o People believed ruler was god with absolute power  

o Sacred monarchies

 Belief that a ruler was a g-d or g-ds representation on earth  I.E: Horus Hawk g-d  

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  critical speech  

o i.e: 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  

o i.e: in Athens people could vote to exile a citizen  

 The Nature of Restrictions on Speech  

o Book burning  

o The Chilling effect: when speaker is permitted to communicate,  but risks being punished after the fact  

o Status based restrictions, limiting women’s rights  

 Examples of Freedom of Speech

o Arab people: leader elected to lead a tribe or clan  

o Dissent in ancient Egypt  

o Wide variety of philosophers in China

o Greek theatre  

o Among Hebrews and African cultures  

 Reversals of Freedom of Speech  

o Leader’s were dependent on monarch’s  

o Good will- check on pharaoh was justice  

o But no mechanism for replacement of ruler  

o Also lost when leaders seized absolute power

Freedom of Expression in America

 Native American Traditions

o The Iroquois confederacy had “Great Law of people”- chiefs had  to relate criticism  

 Could bring complaints about the chiefs  

 Restrictions on Speech  

o Allowing communities to practice religion without being  controlled by a center government  

o Toleration Act  

 Protected rights of Christians  

o Rhode Island Charter: people could not be punished for different  of opinion on religious matters  

o Parliamentary privilege: freedom from physical assault, criticism  of assembly  

 Signs of Support of Free Expression  

o Enlightement thinking: emphasis on use of reasoning to find  answers to humanities questions  

 People jailed on seditious libel charges  

 Adoption of Bill Rights  

o 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  

o Sedition Act of 1798  

 War of 1812  

 US declares war on Great Britain prosecuting war  

proved to be a challenge  

 Freedom of Expression during Civil War  

 Anyone who opposed the war were called  

copperheads and didn’t believe war was worth  


 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: Incitement Illegal Conduct and True Threats

Incitement to Illegal Conduct and True Threats  

 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  

o Supreme court: where draw the line on incitement to illegal  conduct

 Clear and Present Danger Test  

o Schenck v United States  

 Espionage Act: punished certain types of speech that could impair war efforts  

o Questions to consider for cases  

 What communication by defendant led to his or her  


 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  

o 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  

o US participation in world war one was wrong  

 Bad tendency and were illegal  

 This test with permits restriction of freedom of  

speech if they believe it has tendency to incite illegal


o 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

 If speech could impair military recruitment than it  

wasn’t protected by first amendment  

o Call to require a clear and present danger  

 Brandeis and Holmes said that the first amendment should  give way only if danger is truly clear and present  

o Abrams v US  

 Convicted for espionage act violations based on two  

leaflets- one English one yidish  

 Messages to workers of America  

 Majority said his leaflets shouldn’t be protected  

 But holmes didn’t believe that his leaflets presented a clear and present danger

 He wanted greater protection of first amendment  


o 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  


 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  


 Clear and present danger critique:  

o The rule gave too many rights to  


o An unnecessary bleeding heart heart concern  

o The moral right of the majority to enter upon  

war in parts the right to secure success  

 Persecution of Communists Intesifies  

o 1940s and 1950s, public fear of communism intensified  o the tools were originaly created to deal with fascists  

 growing concern of communication power  

o smith act  

 aliens required to register with fingerprint  

 contained provisions against seditious speech  

 plurality opinion  

 contained provisions against seditious speech  

 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

 Speech must be directed to inciting lawless action  

 Advocacy must be calling for imminent law- breaking  

 Advocacy must be likely to produce such conduct  

Chapter 10: Symbolic Expression

 Symbolic Expression: non verbal symbols used to communicate a  message  

o Why would you express idea nonverbally?

 Communicators have recognized that actions can speak  louder than words.  

 i.e: boston tea party

 Some officials sometimes approval such communication using  rationales such as need to promote morals, public safety, and social  order  

o 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 first amendment protection than has verbal expression

 The Benefits of Symbolic Expression

o An idea conveyed using symbolic expression can maximize  persuasive power of the message  

o Symbolic expression also increases communicators ability to  reach their targrt audience  

o Symbolic messages also increase likelihood of receiving media  coverage  

o Visual demons can also critique the status quo and the open  audience to new ways of thinking  

 Cohen v California  

o Supreme court recognized importance of protecting a wide  variety of verbal expression even if the words may offend some  elements of society  

o Cohen recognized importance of personal autonomy as rationale  for freedom  

 Persons choose specific tactics when engaging in Symbolic  expression  

 Protesters care about how they go about there  


o 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 first  amendment rights of cohen  

 Definitions of Symbolic Expression  

o Symbols: central to human communication  

o Interact through symbols to create meanings  

o Arbitrary representation of something  

o Can include non verbal conduct  

o Key questions in defining communication

 Whether communication must be intentional  

 Whether it require that a message be successfully received  Does it achieve a shared meaning?

 if the creation of a shared meaning is required before a symbolic act can be considered communication  

than there would be no communication  

 Judicial Definition of Symbolic Expression

o Pure speech: verbal expression  

o Symbolic speech/ speech plus: expressive nonverbal conduct  o Supreme Court Recognition of Symbolic Expression

 Stromberg V California

 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 flag of soviet Russia was raised  

 Stromberg was convicted of violating California penal code: which provided that any person who displays a  

red flag as a sign or symbol of opposition is guilty  

 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 flag  

because of their religion  

 West Virginia education law required that the school  

children salute the flag and if not they would be  


 The court recognized that a symbol could serve the  

same function as verbal message  

o In 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  

 Supreme Court Consideration of the Boundaries of Symbolic Expression o Spence v Washington: considered the right of a college student  to hang upside down American flag from window of his  

apartment with a peace symbol made of black tape  

o Spence was convicted under Washington prohibiting imporpper  use of the US flag  

o He argued that his action conveyed the message that the  American flag should be associated with peace not war and  violence  

o In spence the supreme court held that this conduct was  expressive because the defendant had the intent to convey a  message

o Because his act was protected expression and no proof that any  valid state interest was impaired by his display the conviction  was overturned  

o The definition of symbolic expression became: consistent with a  relatively narrow definition of communication that requires intent and success  

o The court agreed that his display of the flag was expression  because he intened to communicate his opposition to the war   What about harmful activities such as driving over the speed limit, as  expression,  

o Conduct that is dangerous to others should not be protected  even if expressive  

o If court decides that conduct is not symbolic expression the  government will prevail most likely  

o However if conduct is deemed expressive than a courts inquiry  does not end,  

 Has its own first amendment test  

 The test for protection of symbolic expression

o United States v Obrien  

 Burning of draft cards  

o The Obrien tesrt  

 Government power to legislate: the first prong of the test  asks whether government restriction is within its lawful  


 An Important government interest  

 Does the regulation further an important government interest  

 The draft card made it easier to draft people because communication between registrant and draft board  

was easier  

 So burning it was bad  

 Unrelated to suppressing expression

 The regulation has to be unrelated to the suppression of expression  

 No greater restriction than necessary  

 The restriction must be no greater than is necessary  to advance further  

 Restrictions related to suppression

o 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  

o American Flag  

 Flags convey deep feelings  

 It is sacred to the US and to communicate disdain for  government is to destroy it

 Is communicative uses of the flag that are not viewed as  patriotic also protected by first amendment>?  

 Nebraska v Halter  

o Don’t use flag image to advertise  

 Street v New York  

o Don’t set flag on fire  

 Texas v Johnson

o The first amendment question answered  

 Johnson was handed an American flag during a march and  set it on fire 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?

 Prior Restraint: restraining of speech in advance  

o Boss can say “ no you cant publish”- this is you can quit,  different than government saying  

o Employer has the right to tell you what to say and not to say private action: suggests lack of trust  

 Post Utterance: something already published, there, and then  prosecuted  

 Difference between law and ethics:

o Law: abide by, controlling, structured set of rules  

o Ethics: something more based on society, and sociable, what is  right what is wrong  

 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?  

 First Amendment: protect speech we find offensible

o I.e: nazi, kkk speech  

Control and Censorship Faultiness:

 Prior Restraints: Vs. Post Public Punishments  

o Prior Restraints: something government or parent thinks  must be restrained before said because it can cause  damage  

 i.e: coca cola can get prior restraint on something  with commerce  

o 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  Incitement: 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  

o 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?  

o Are there forms of speech that are so lacking in value that can be punished and prohibited?

o 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  

 Defamation

o Right to protect reputation of individuals, because of this one can sue, government cant protect news media etc  

 Privacy  

o When do we value this more than speech?  

o i.e: Bill Clinton, monica lewisnky case  

 Symbolism:

o Burning American flag, does it matter whether its words or not?  o Its also a form of speech  

o Not only words but symbolic stuff are also protected speech   Time: has to be reasonable time

 Place: where is line of where you can express? Such as protesting on  US1

 Manner Regulations: reasonable manners  

 We cant protect ideas but rather expressions  

 Copy Right: what we allow some people to own, certain form of  expression

o 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:  

 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

 Majorities V. Minorities or Dissenters  

o Minorities: what about them? Such as Obama care  

o Dissenters: should we allow protest of the first amendment etc,  anti democratics etc?  

 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  

 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  

 Sources of Law:

o English Tradition  

 Five sources of law  

 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  

 Divided Government and the US federal system  

o Congress and president  

 Separation of power, each with its own roles of checks and  balances  

o Preemption:

o Standing: not everyone can sue over an issue have to have been  affected by it somehow, it’s a law suit by those involved  o Jurisdiction: power of court to decide a case  

o Trial Court: case is tried, judge and jury decided verdict  o Appellate court: look to see if trial court followed the law  correctly, don’t listen to witnesses again  

o Highest court: supreme court: published written opinions then  become our law  

 Our Fundamental Laws:

o Court interpret these laws  

o Judicial review established by john marshal chief justice  o We have a system of checks and balances that if we didn’t follow would be a chaotic mess  

o The courts cant enforce decisions if not funded by the  government  

 If you are congress and don’t like law u re like it re  pass it or re amend it and this has happened very  few times  

o Courts do not make the laws; they interpret the laws not  write it  

o Federal Preemption: Federal system – supremacy on federal law  on some issues

o 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 if Jury has bad verdict against law of land. Jury decides  whose telling the truth about what

 Kobe Bryant Rape Case: did he rape her or not?

 Reasons to protect expression: pros and cons  

o 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  

o Checking value: to check the power of government

o Ability of people to speak to one another, and debate etc

o Search for truth of debatable issues  

o Individual authority, inevitable abuse of authority  

o Resilience: people less tender we want our people to be stronger  o Futility  

o Golden rule: don’t do to others as you don’t want them to do to  you  

o Authority: American distrust of government we don’t want to give all power to the government  

 Costs of too much freedom

o Sixth amendment: press too much power  

o Fourteenth amendment: equal protection clause: morally  opposed to same sex marriage and opposes to bake cake, he is  violating law or is it his first amendment right?  

o Other personal rights and values:  

 Privacy

 Story about love life? Where is line of privacy and  


 Social values? Peaceful Funerals? Reputation  

Daniel Elsberg leaked Pentagon papers during the Nixon  administration

Edward Snowden: leaked document reflecting 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  o i.e ;do we let Nazis march in a town with a lot of survivors ?  Health and Morality of Children  

o Objectification: how many of us like porn? Are we objectifying  women even if legal doesn’t necessarily promote quality  

o Body not person anymore  

 Amendment 1  

o 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  

o 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

o Not to abridge speech  

o The first amendment is different now than it was back then like in 17th century  

Declaration of Rights of 1789 French  

 French revolution not very effective ftench constitution had been  amended  

USSR 1977: more specific  

 Utterly ineffective  

Secular and Prior Restraints  

 Times of Crisis: times of war and least likely to tolerate dissent   Times of fear: civil war, world war one

o Laws of sedation  

 Laws of Sedation:

o Conduct or speech making people rebel against authority is  illegal  

o Punishment of disloyal speech  

 Secrecy  

o Classified information  

o Vagueness of national security and risk of abuse  

o Lets not tell people etc of own mistakes? Abused ?  

 Restraints and First Amendment

o Near v Minnesota  

o Vietnmam and Pentagon papers  

 Surveillance  

o Snowdne  

o We worry about conformity here,  

o Fear that our behavior is being watched so it might change  o Changed interaction because of surveillance  

 Pentagon Papers  

o 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 horrified because everything was a lie, so he spoke  and wrote and made copies he didn’t give it to the  

chineese but first 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  

 Jurisdiction: power of court to hear a case  

 Difference betweel trial court and appellate court  


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