1 Micah Germano Mr. Hawkins 12/19/12 Per.

2 Assessment 6, Part 2: On Demand Writing

The Freedom of Speech and Press is the First Amendment to the Constitution, the first among the rights that are fundamentally guaranteed by the laws of the United States. Ideally, this ultimate protection of ideas would be an unequivocal good, a guarantee by which citizens can express their views and values in a public setting. Unfortunately, circumstances dont always permit such liberty. The rights of free expression have been reduced or even entirely suspended in certain circumstances- determining whether such restrictions are legally correct is an ongoing struggle for the Supreme Court. The rights guaranteed by the First Amendment have evolved in their interpretations throughout the years, and these changes can be evaluated according to five distinct categories: Seditious Speech, Obscenity, Prior Restraint, the Media, and Symbolic Speech. The rights to free expression have been contested in cases of Seditious Speech. Sedition is defined as the crime of attempting to overthrow the government by force or attempting to hinder or disrupt its lawful function through violence. Seditious speech is the advocating of violence against a lawful government through words, print, or symbols. These laws are integrated into federal law to reinforce a lawful and peaceful means of modifying society according to the needs of its constituents.

2 The government has had multiple challenges to its authority in the past, and the Supreme Court needed to judge the legality of those actions. One of the most important of these cases was Schneck v. United States, wherein a Socialist officer named Charles Schneck was convicted of speaking in an abusive manner about the government of the United States. The Court upheld his conviction, concluding that his words were leading to a clear and present danger. This principle is one of the fundamental restrictions to freedom of speech, because the court decided that citizens lose their right to freely express themselves if their messages can cause genuine harm to others. The case is also an example of how some liberties can be suspended in wartime. The liberty of free expression has also been regulated in cases of Obscenity. A book, film, recording, or other material is defined as legally obscene if a person who is applying local contemporary standards finds a specific work appeals to prurient interest, depicts or describes sexual conduct in an offensive manner, or lacks serious literary, artistic, political, or scientific value. These criteria were formulated in order to assess exactly what material can be considered obscenity, as offensiveness is a subjective reaction. The leading Obscenity case is Miller v. California, wherein the test for legal obscenity was first designed. These criteria have been applied to various other cases in determining whether or not obscene material should be sent through the mail, whether sexually charged expression can be limited to certain areas, or whether or not the government has the right to prevent the exploitation of minors. These rulings also overlap with the restrictions that the public can place on broadcasting companies, as these companies cannot use foul language on public airwaves without special permission.

3 The freedom of speech can also be suspended in cases of Prior Restraint. This principle is the censorship of information or messages before they are actually expressed. Some would argue that certain beliefs can undermine the authority of government, and that the spread of such dangerous ideas must be prevented. In all but certain extreme cases, the government has no power to control the beliefs and values of the individual. Two cases serve as the structure for Prior Restraint cases, Near v. Minnesota, and Nebraska Press Association v. Stuart. In the former, the court supported the freedom of the press, even if the writers are miscreant purveyors of scandal. In the latter, the Court stated that nothing except clear and present danger or obvious obscenity would justify the exercise of prior restraint, and that it carried a heavy presumption against its Constitutionality. These two cases defend political speech expressed through the press, a protection that was affirmed in the New York Times v. United States. In the course of the aforementioned case, several notable publications wished to print compromising information about the governments actions during the Vietnam War. As the publication of these documents did not immediately jeopardize American interests, the federal government could not apply prior restraint. Another manner in which the right to free expression has been challenged is in cases that deal with the Media. For example, the government has been forced to adapt to the evolution of different media as they have arisen, and it has not always been easy to decide which means of expression deserve Constitutional protection. Other issues of importance deal with Constitutional law in relation to mass media are the confidentiality of the press in court, and the right for the public to determine the content of broadcasting companies.

4 The protection of free expression in new media was the issue for motion pictures in Mutual Film Corporation v. Ohio, where the Supreme Court held that the exhibition of moving pictures is a business that has no Constitutional protection, and in Burstyn v. Wilson, wherein the court decided that liberty of expression by means of motion pictures by the First and Fourteenth Amendments. A more recent case that deals with a similar topic is Brown v. Entertainment Merchants Assn., where the Court struck down a California law that would have prohibited the sale of videogames that depict violence to minors. The final examples of cases where First Amendment rights have been challenged are cases of Symbolic Speech. Symbolic speech is the communication of ideas through conduct, demonstration, or the presentation of a symbol. The Court needed to create clear definitions of what constitutes symbolic speech, as any potentially criminal action could be defended with the reasoning that it was done to send a message. Cases that deal with symbolic speech are often decided on a specific basis, with a close examination of the context and participants. One of the most important Symbolic Speech cases is OBrien v. United States, where four young men burned their draft cards in protest of the Vietnam War and were subsequently convicted of violating the federal law that makes such actions a crime. The Court upheld their conviction, stating that acts of dissent by protest could be punished if the object of protest is within the Constitutional powers of government, if whatever restriction placed upon the expression is no greater than necessary, and if the governments interest in the matter is not merely to silence dissent. This case is extremely important as the Court once again set down criteria by which future judgments can be

5 made, and showed that the binary distinctions of what is and what is not legal are complicated by a variety of circumstances. Cases involving Seditious Speech, Obscenity, Prior Restraint, the Media, and Symbolic Speech are the major points of contention over the rights granted by the First Amendment. By testing these freedoms in a variety of contexts, the Courts have constructed a framework by which the legality of expression can be appraised. Over the years, the Court has determined that freedom should not be absolute, especially when it compromises the safety of others. It has also prioritized the needs of the many over the needs of the few, and has adhered to the majority opinion of society through the application of Constitutional law. Between parties and ideals, the Supreme Court has served as an arbiter, an entity to maintain the balance of government in the favor of rights.