1st Amendment Speech & PressThe Right to Offend, but not Injure!

We cherish freedom to communicate ideas. From this has come religion, science, literature, commerce, art, politics.

Ideas are powerful & new ideas have always been resisted in history even when later proved to be true. The danger of such a threatening environment is that fear of

punishment stifles ideas one even suspects might be condemned, and thus truth is concealed and society cannot advance.

Thus, the 1st Amendment is designed to protect “unpopular” speech & press from the majority. RIGHT TO OFFEND others but not the right to injure. Jefferson said: “Where the press is free and every man able to read, all is

safe.” Jefferson also said: “…. were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter if every man could receive and read them.”

Freedom of information is a check on government power. The answer to bad speech is better speech – not censorship by the majority

or government – unless injures or will injure another.2/6/2005 1

Speech & Press Intolerant stop ideas by killing advocates.

Belief earth revolves around sun (Bruno) resulted in death penalty (by religion).

Thomas Paine did not believe in literal truth of Bible & vilified.

1600s Puritan theocracy condemned Quakers to death. Salem witch trials resulted in accused murders by

majority due to “beliefs,” rather than facts. Advocate political/social improvements in England

resulted in trials by ordeal, torture by the church courts (inquisitions), imprisonment or death.

There are radicals in our society today who hate, often based on religion, who if they had the power would take our society into the dark ages to censor opposition. See http://www.splcenter.org/get-informed/hate-map

2/6/2005 2

Speech & Press

Ideas do incite some to right injustice, others riot for wrong.

The constitution establishes a line between speech/press that advances society & that which is destructive.

Merely because an idea is controversial & “may be disputed or lead to change” ... like God is dead, or advocating birth control, or allowing women rights, or stating earth is round & not center of universe ... is not to say it is “legally destructive speech/press.”

2/6/2005 3

Blasphemy Artist shows Jesus in bottle of urine at an art museum http://

en.wikipedia.org/wiki/Piss_Christ , or the artist who showed Jesus holding a box of Wheaties in a cartoon of the Last Supper. (Breakfast of champions)

At an earlier time in U.S. history, such would have condemned the perpetrator to death, or imprisonment as heresy or blasphemy like what happening today in some Muslim countries. If any contradict religious teaching (like Galileo or Bruno, or merely making statements such as: “Jesus was NOT born on December 25” would land the person in legal trouble, but also all of his relatives (corruption of blood).

New Broadway play by South Park authors makes fun of Mormons http://www.broadway.com/shows/book-mormon

Our constitution free speech/press protects the right to offend but not the right to injure.2/6/2005 4

Heresy 2005: Danish satirical artist Kurt Westergaard published cartoon showing

Mohammed with a bomb in his turban & caused Muslim rioting around the world & church issued death fatwah murder contract. 2/12/08: 3 Islam-o-terrorsits captured in Denmark planning to murder Westergaard.

Consider Charlie Hebdo related violence resulting from a cartoon! http://en.wikipedia.org/wiki/Charlie_Hebdo

Author Rusdie’s book Satanic Verses mildly criticized Islam & given death fatwah.

Read Iranian Ahmad Batebi’s story (and page 2 video) about Iranian sadistic torture at http://www.cbsnews.com/stories/2009/04/03/60minutes/main4917310.shtml

Our constitution free speech/press protects the right to offend but not the right to injure.

2/6/2005 5

A Balance In their attempt to draw the line

separating permissible from impermissible speech, judges have had to balance freedom of expression against competing values likepublic order (yell fire crowed

theater)national security (how to build a

nuke)the right to a fair trial (hearsay

evidence)

2/6/2005 6

Attempts to Limit Speech/PressPrior restraint (Pre-publication censorship -

stopping speech/press before utterance) Prior restraint prevents the censored material from being heard or

distributed at all. Once in America, there were censor boards approving content, even determining which movies could be shown or what can be printed in newspapers.

The Alien and Sedition Acts (1798) Congress passed law to make it a crime to criticize government. In the Civil War President Lincoln illegally suspended habeas corpus permitting him to arrest any he wanted, including newspaper reporters, put in prison as long as wanted without any check/oversight. The Espionage Act (1917) made it a crime to criticize government in a way that encouraged men to resist enlisting in the military. Presidential candidate sentenced to prison for advocating war resistance - Debs v. United States 1919 – (Think about how we changed where today the public freely criticizes wars without penalty). Near v. Minnesota (1931) overturned Minnesota law requiring newspaper statements about government criticism to be proven true before publicatio. New York Times v. U. S. (1971) known as Pentagon Papers case. What happened & what did court decide?

2/6/2005 7

Subsequent punishment after utterance Even though censorship is normally not permitted except in unusual

cases, the alternative is punishing after utterance or printing if crossing the legal line.

Justice Holmes defined the “Clear and Present Danger” test in Schenck v. U.S. (1919) WWI speech advocating disruption of military draft. ''The question in every case is whether the words used are used in

such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”

Dennis v. U. S. (1951) "Imminent lawless action" standard now used - Brandenburg v. Ohio

(1969) - defining the limits of freedom of speech. It clarified "clear and present danger" with the imminent lawless action test where speech is not protected by the First Amendment if the speaker intends to incite a violation of the law that is both imminent and likely. Examples?

2/6/2005 8

Osama bin Laden What happened Friday Feb 26, 1993 and who is Sheikh Omar

Abdel-Rahman ? And see http://www.fbi.gov/news/stories/2008/february/tradebom_022608

Regarding bin Laden’s self declared “Muslim Holy War” against Americans - in on line videos he said: “All efforts must be directed at this enemy America. Kill it, fight it,

destroy it, break it down, plot against it, ambush it and God the Almighty willing, until it is gone.” We know the result on 9/11/2001.

While we did not know it at the time, Osama Bin Laden was busy plotting the murder of tens of thousands of innocent Americans. On Tuesday morning September 11, 2001, I had just returned to my UTA classroom from national park law enforcement active duty. 8:46 AM. Al Qaeda Islamic murdering terrorists filled with anger, hate and ignorance flew American Airlines Flight 11, 79 passengers and 11 crew members aboard, into the World Trade Center North Tower between floors 94 and 98. A student mentioned the attack and I suspended class to see the next attack into the South Tower live on TV.  Do you remember where you were? 9:03 AM. Islamic mass murdering terrorists flew United Airlines Flight 175, 51 passengers and 9 crew members aboard, into the World Trade Center South Tower between floors 78 and 84. More than 90 countries lost citizens in the attacks on the New York City World Trade Center buildings. 2,606 innocent persons were murdered in those towers, including 343 NYFD firefighters, 23 NYPD police officers, 37 Port Authority police officers, 15 EMTs (who saved 15,000 in the towers), and 3 Court officers. See the 911 memorial website at http://www.911memorial.org 9:37 AM. American Airlines Flight 77, bound for Los Angeles, California with a crew of 6 plus 58 passengers was crashed it into the Pentagon by 5 Islamic mass murdering terrorists. http://pentagonmemorial.org/ 9:28 AM. Islamic mass murdering terrorists take over United Airlines Flight 93, after the pilot received a warning message about hijacking terror attacks. 33 passengers and 7 crew members were aboard. Heroic passengers counterattacked the terrorists and forced the aircraft to crash at 10:03 AM in a farm field in Stonycreek Township, Somerset County, Pennsylvania, rather than allow it to be used as a mass murder weapon against the U.S. Capitol building.

2/6/2005 9

Libel and Slander In 17th century England it was seditious libel to criticize the

king or his ministers whether true or not ... And could get you imprisoned or executed.

Today, libel is a written statement that wrongly defames the character of a person. Slander is spoken words that wrongly defames the character of a person.

In the United States, it is often difficult to prove libel or slander if “public persons” are involved. New York Times v. Sullivan, 1964: stopped the ability

of government officials being able easily to sue citizens for criticizing them. Previously law chilled citizens wishing to utter criticisms fearing expensive court battles. As a result of this case, libel & slander law does NOT protect them as much as ordinary citizens. The standard is so high for government officials to sue other citizens that it rarely happens, which permits citizens to get away with saying most any scurrilous insulting things about them and get away with it.

2/6/2005 10

Obscenity and Pornography

Efforts to define obscenity have perplexed courts for years. Public standards vary from time to time, place to place, and person to person.

Work that some call “obscene” may be “art” to others. Justice Potter Stewart once said he couldn't define obscenity, but "I know it when I see it." The ambiguity of definition still exists and is becoming even more problematic with the Internet.

No nationwide consensus exists that offensive material should be banned.

2/6/2005 11

Obscenity

Roth v. United States, 1957:

Osborne v. Ohio, 1991:

2/6/2005 12

Miller v. California (1973) Miller concerned bookseller Marvin Miller's

conviction under California obscenity laws for distributing illustrated books of a sexual nature.

In Miller, the Court's decision stated that obscene material is not protected by the First Amendment.

2/6/2005 13

"Three-Pronged Test" for Obscenity

In order to meet the definition of obscene material articulated in Miller, three conditions must be met:

1. whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient (unwholesome interest or desire) interest.

2. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.

3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

2/6/2005 14

Supreme Court said 3/2000 Ruling states nude dancing does

have limited constitutional protection, but is trumped when government’s interest is in controlling “negative secondary effects.” Law restricting such is legal so long as law aimed at limiting crime that accompanies nude dancing and not the expressive act of nude dancing.

2/6/2005 15

What Types of Speech are Protected?

Symbolic speech--symbols, signs, and other methods of expression. The Supreme Court has upheld as constitutional a number of actions including: Tinker v. De Moines Independent

Community School District, 1969

2/6/2005 16

Flag Burning Texas v. Johnson

1989

2/6/2005 17

Speech & Press Vagueness: such laws have a "chilling

effect" because no one knows what is or is not allowed. Example: What if had vague blasphemy or

sacrilegious laws that made it criminal to criticize churches or religions? 1. Critics never know where the line is that

cannot be crossed without punishment. 2. Would prevent one from telling the truth

about evil clerics or religious beliefs.

2/6/2005 18

Speech & Press

Fighting words: illegal - can injure & provoke some to attack, injure, kill, & destroy property of others. merely harsh, abusive, insulting words not

enough.

2/6/2005 19

Assembly

NAACP v. Alabama ’58 Healy v. James ’72

2/6/2005 20

National Socialist Party of Americav. Skokie ’77

What happened?

2/6/2005 21

Federal employees

The Hatch ActWhat does it do & why?

2/6/2005 22

Religious free speech? 11/2001:  What happened between the Westboro Baptist church in Kansas and

Marines? Matthew Snyder, 20, Anbar. http://www.reuters.com/article/topNews/idUSN3134225120071031 http://www.time.com/time/nation/article/0,8599,2056613,00.html

Court ruled in favor of church and free speech 8-1 right to picket military funerals but what are the limits?

2/6/2005 23