The First Amendment
-The first amendment does not prevent government from all regulations of speech and press
-The court has not established a clear, fixed definition of the freedom of speech and press
-With new media reshaping both speech and press, the court provides different degrees of protection to different speakers and to different types of speech
- When a government action falls within the power delegated to government, the court uses minimum scrutiny (rational review) and assumes the law is constitutional
-If a law affects constitutionally protected rights the court uses a heightened form of review
-The first amendment does not infringe on the right of the government to speak, establish policies, and control the work related speech of its employees
-The supreme court has said that the first amendment also protects an individuals right to speak anonymously and to refrain from speaking
Key Terms:
Ad hoc balancing- Making decisions according to the specific facts of the case under review rather than more general principles
Seditious Libel- Communication meant to incite people to change the government; criticism of the government
Important Cases:
New York Times Co. v United States-
A landmark decision by the United States Supreme Court on the First Amendment. The ruling made it possible for the New York Times and the Washington Post newspapers to publish the then-classified Pentagon Papers without the rick of government censorship or punishment.
Reed v Town of Gilbert-
A case in which the Supreme Court clarified when municipalities may impose content-based restriction on signage. The case also clarified the level of constitutional scrutiny that should be applied to content-based restrictions on speech.
Relevant Doctrine:
Strict Scrutiny
A court test for determining the constitutionality of laws aimed at speech content, under which the government must show it is using the least restrictive means available to directly advance its compelling interest. When the court applies strict scrutiny, its most rigorous review, the court finds most laws unconstitutional.
laws must 1) serve a compelling government interest and 2) be narrowly drawn to be constitutional
laws must 1) serve a compelling government interest and 2) be narrowly drawn to be constitutional
Intermediate Scrutiny (O’Brien Test)- also called heightened review
Three substantive parts hold that a law is content neutral and will be constitutional if it 1) is not related to the suppression of speech, 2) advances an important government interest, and 3) is narrowly tailored to achieve that interest with only an incidental restriction of free expression. Most laws reviewed under intermediate scrutiny are upheld.
Under the O'Brien Test, a law must also serve an important government interest.
It also requires a law to "fit" its purpose.
Prior Restraint (Near Test)
Action taken by the government to prohibit publication of a specific document or text before it is distributed to the public; a policy that requires government approval before publication
Adjunct professor who jokingly said Iran should list 52 U.S. cultural sites to bomb has been fired.
Amid recent tensions between Washington and Tehran, during which President Trump threatened to target 52 sites “important to Iran & the Iranian culture,” Professor Phansey suggested that Iran’s supreme leader might want to do the same. Ayatollah Ali Khamenei “should tweet a list of 52 sites of cultural American heritage that he would bomb,” Phansey, an adjunct professor and administrator at Babson College in Wellesley, Mass., wrote on Facebook earlier this week. While decades of First Amendment case law prevents officials at public universities from restricting what their employees can say, or punishing them for expressing their views, private schools like Babson have much greater leeway. So when academics have made controversial posts on social media about any number of news items — mass shootings, the death of former first lady Barbara Bush or North Korea’s imprisonment of Otto Warmbier — their posts have resulted in a range of disciplinary outcomes.
Questions:
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