Saturday, February 18, 2012

1st Amendment is not absolute

*This post is fairly sensitive and I will be updating it as I find out more on the 1st Amendment. If you find a discrepancy please post it in the comments. The topic is long and I didn't want to bore anyone to much so I didn't even come close to noting a majority of the Supreme Court cases. I will post more in the future with small explanations.

 That is correct, the government can restrict freedom of speech under certain circumstances. It's few and far between but it can happen. So when is your freedom of expression allowed and when is it not?

It is easier to discuss when it is not allowed. Freedom of speech and expression is fairly broad and if a law is introduced to censor it must be specific.

1.Censoring the student newspaper, the classroom is a place for education and the principal has the authority to determine what is in instruction, articles are to sensitive for the age group

Hazelwood School district v. Kuhlmeier 1988
 2. Promotion of illegal drugs at a school sponsored event. A student had a sign which read, "bong hits for Jesus."  Supreme Court sided with the school, saying that the sign was stating the use of illegal drugs and that the school is entrusted with the supervision of students.
Morse v Frederick June 2007
 3. The use of 'fighting words' may not be protected.
- Chaplinsky v. New Hampshire 1942
 4. The government can prohibit the time, place and manner in which expressions are permitted. 
The government may lawfully regulate the time, place and manner in which First Amendment activities occur, provided the rules are content neutral. Rules are content neutral if they treat all speech the same, regardless of its content. that are content based, that treat different content of speech differently, must undergo increased judicial scrutiny. They may be found constitutional but the burden on the government is much higher to justify them. *1
5. Material that is found to be a threat to specific individuals.
6. The control of the volume of a concert but it can't control the content or anything else.

Protection extends to....

1. Distribution of literature, leaflets and signature gathering: door-to-door, in public places such as side-walks and malls.
 2. Discussing ideas even if they are not friendly and the majority doesn't agree.
 3. Protesting is allowed but depending on the city and or state there may be regulations on obtaining a permit but the law for this must be content neutral.
4. Flag burning is allowed even if it is unpopular.

Harvard Professor Zechariah Chafee, in his 1941 work, argued that freedom of expression is essential to the emergence of truth and advancement of knowledge. The quest for truth “is possible only through absolutely unlimited discussion,” Chafee said. Yet, he noted that there are other purposes of government, such as order, the training of the young, and protection against external aggression. Those purposes, he said, must be protected too, but when open discussion interferes with those purposes, there must be a balancing against freedom of speech, “but freedom of speech ought to weigh heavily on that scale.” *1

Constitutional scholar, Alexander Meiklejohn, agreed for the most part with Chafee’s interpretation of the First Amendment. He said that only expression that incites unlawful acts should be punishable. Further, he said, incitement does not occur unless an illegal act is actually performed and the prior words can be directly connected to the act. Then, and only then, can words be punished in spite of the First Amendment. *1
Chafee and Meiklejohn felt that the voters must be well informed to make wise decisions. Both endorsed Milton’s “marketplace of ideas” concept, and Meiklejohn supported Milton’s view that truth will prevail in this clash of ideas. *1

*1: Overbeck, Wayne; Belmas, Genelle (2011-01-17). Major Principles of Media Law, 2012 Edition, 1st Edition (Kindle Locations 2226-2227). Cengage Learning. Kindle Edition.

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