Interpreting and Applying the First Amendment

What is Speech: Defamation• Defamation: intentional, false statements • Libel: written statement defaming another person• Slander: defamatory oral statement• Variable jury awards—hard to collect

• Public figures must also show the words were written with “actual malice”◦ New York Times v. Sullivan◦New York Times article defended MLK and inaccurately

portrayed some issues in Montgomery, AL. L.B. Sullivan (Public Safety Commissioner) sued the Times

◦Results: First Amendment protects publication of all statements (even false) except when statements are made with “actual malice”

What is Speech: ObscenityObscenity :First Amendment protects anything with

political, artistic, or literary merit • No enduring and comprehensive definition, but generally nudity

and sex are not, by definition, obscene; -First Amendment protects anything with political, literary, or artistic merit; -government only punishes “hard-core pornography”

• Balancing competing claims remains a problem: freedom v. democracy

• Localities decide whether to tolerate pornography but must comply with strict constitutional tests if they decide to regulate it

• Protection is extended to almost all forms of communication

What is Speech: Obscenity Cont.• Miller v. California• Indianapolis statute: Court ruled the legislature cannot

show preference for one form of expression over another (women in positions of equality vs. women in positions of subordination)

• Zoning ordinances for adult theaters and bookstores have been upheld; regulates use of property rather than expression

• Internet regulation rules unconstitutional by the Supreme Court

Decency v. liberty

What is Speech: Symbolic SpeechSymbolic Speech :Actions that convey a political

message (these are protected)• Cannot claim protection for an otherwise illegal act on the

grounds that it conveys a political message (ex.- burning a draft card)

• But statutes cannot make certain types of symbolic speech illegal

◦ Tinker v. Des Moines- Students wore black arm bands to protest war

◦ Texas v. Johnson- Burning U.S. flag protected by 1st Amendment

◦ Virginia v. Black – cross burning as symbolic speech?

Who is a Person?

• Corporations and organizations usually have the same rights as individuals -Corporations and interest groups have First Amendment rights

-Businesses that cater to “vice” also have First Amendment rights

• Restrictions can be placed on commercial speech

Who is a Person?

• McCain-Feingold Act: campaign finance reform changed the parameters of acceptable political speech for corporations and other organizations

Organizations could not pay for “electioneering communications” that “refer” to a specific candidate on radio or television 60 days before and election

Supreme Court upheld this law, saying ads that only mentioned, but did not “expressly advocate” a candidate were ways of influencing the election

• Campaign finance laws changed what is “acceptable” speech

Who is a Person?

• Minors have less freedom of expression than adults Hazelwood v. KuhlmeierHazelwood (1988) allowed that a school newspaper can be

restricted School-sponsored activities can be controlled if controls

are related to pedagogical concerns

Morse v. Frederick

• Let’s discuss…