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IKRAM JUNAIDI UPDATED May 29, 2016 08:32am
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The Nawaz League MNA Ramesh Kumar Vanwani said the RTI bill could not be passed
during the PPPs tenure, and this was also the case with the PML-N government.
The media criticises why the drone attack was [carried out] in Balochistan, but it does
not say how Taliban leaders are found in Pakistan, he said.
MQM MNA Farooq Sattar said political parties should have taken measures in 2008 to
ensure the freedom of expression, and because of their negligence the heads of all the
important political parties were facing problems.
Standing committees have become dysfunctional. Altaf Hussains case is the only case
in history in which the court, which protects basic rights, has suspended a right to
expression.
Supreme Court advocate Abid Saqi said that even judges do not understand issues. He
said they had capacity issues, and there were no arrangements to hold refresher courses
for judges.
Pakistan Bar Council member Qalb-i-Hassan said the army and the judiciary were
working hand in hand. He said one violates the law, and the other validates it.
Journalist Hamid Mir pointed out that while the recovery of Rs730 million from a
personality in Balochistan became huge news, the media did not discuss the recovery of
Rs13 billion from a brigadier.
He added: Journalists of Fata and Balochistan are in vulnerable condition, and they are
forced by an agency to work for them.
Asma Shirazi said that advertisements worth Rs8 billion were given to media houses,
making it impossible to speak out against the federal and Punjab governments. She added
that the Pakistan Electronic Media Regulatory Authority (Pemra) had become a tool used
to control the media.
Lawyer and activist Asma Jahangir, who moderated the event, read a resolution stating
that Article 19 of the Constitution should be revisited, a standing committee on the
protection of freedom of speech should be made, an alternative mechanism should be
adopted to get rating of media houses and Pemras decisions need to be challenged.
Since the event took place on May 28, Kishwar Naheed recited a poem about her visit to
Chagai to mark the occasion. In 1998, Pakistan officially became a nuclear power after a
successful test in Chagai, Balochistan. In the poem, she recounts a conversation with a
shepherd.
Published in Dawn, May 29th, 2016
.
Free speech
Shortly before the act came into force, the Supreme Court of India gave a landmark
ruling on Feb 9, 1995 which renders the act unconstitutional in two concurring
judgements.
One said: The central government shall take immediate steps to establish an independent
autonomous public authority representative of all sections and interests in society to
control and regulate the use of airwaves.
The other amplified: The broadcasting media should be under the control of the public
as distinct from government. This is the command implicit in Article 19(1)(a) [the
fundamental right to free speech]. It should be operated by a public statutory corporation
or corporations, as the case may be, whose constitution and composition must be such as
to ensure its/their impartiality in political, economic and social matters and on all other
public issues.
It/they must be required by law to present news, views and opinions in a balanced way
ensuring pluralism and diversity of opinions and views. It/they must provide equal access
to all the citizens and groups to avail of the medium.
Both judgements agreed on the major premises underlying the order. Since the
airwaves/frequencies are a public property and are also limited, they have to be used in
the best interest of society and this can be done either by a central authority by
establishing its own broadcasting network or regulating the grant of licences to other
agencies, including the private agencies.
...[T]he electronic media is the most powerful media both because of its audio-visual
impact and its widest reach covering the section of society where the print media does not
reach. The right to use the airwaves and the content of the programmes, therefore, needs
regulation for balancing it and as well as to prevent monopoly of information and views
relayed, which is a potential danger flowing from concentration of the right to
broadcast/telecast in the hands either of a central agency or of few private affluent
broadcasters.
That is why the need to have a central agency representative of all sections of society
free from control both of the government and the dominant influential sections of
society.
The court also added, This is particularly so in a country where the majority of the
population is illiterate. When, therefore, the electronic media is controlled by one central
agency or few private agencies of the rich, there is a need to have a central agency ...
representing all sections of the society. Hence to have a representative central agency to
ensure the viewers right to be informed adequately and truthfully is a part of the right of
the viewers under Article 19(1)(a). The citizens right to a truly autonomous public
broadcaster follows inexorably from his right to free speech.
Thus private TV channels also owe a legal duty to maintain a fair balance. The airwaves
are public property held in trust, as the US Supreme Court held in the Red Lion case in
1969. It is the right of viewers and listeners, not the right of the broadcasters which is
paramount. That right is legally enforceable against private broadcasters as much as
against the state broadcasting corporation.
The writer is an author and a lawyer based in Mumbai.
.
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Freedom of expression
RECENTLY, disturbances erupted throughout the Muslim world against the film
Innocence of Muslims which was deliberately made to hurt the religious feelings of
Muslims.
US President Obama refused to ban it or take any action against its makers citing the
American law on freedom of expression. Obama said that as long as this law exists in
America, he cannot take any action against the producers. Also, it is election time in
America and President Obamas opponents can exploit any slight mistake on his part to
reduce his chances of being re-elected.
This should be understood and appreciated. It is what it is. Of course the violence against
Americans has to be strongly condemned. But the situation has given rise to an important
question: can such a right be absolute as American law makes it out to be? Should it have
any limits or not? According to this law, there is no limit and religious sentiments do not
count. Even outright and wilful blasphemy cannot be barred or punished.
For example, in a number of New York subway stations posters were recently put up
which said, In any war between the civilised man and the savage, support the civilised
man. Support Israel. Defeat Jihad. The relevant court also upheld the ad as permissible
according to American law.
Rick Jacobs, a Jewish scholar, commented on the ad thus: What is the message of this
ad, directed at the multitude of subway riders of countless faiths and ethnicities? Mr
Jacobs then continues, By using the term jihad in the context of war against savages,
the ad paints Islam as inherently violent, evil and bent on overthrowing the Western
democracies and their key ally in the Middle East , Israel.
This ad implicates all Muslims as wagers of jihad in the sense of war, though hardly a
handful of extremists indulge in this and millions of other Muslims take jihad as a
spiritual struggle against selfish desires, greed and lust for power. But it is quite
legitimate according to American law. Interestingly, an Arab activist who spray-painted
one of the posters was arrested. Perhaps we have to understand why such a law was made
by Americas founders.
Those who came to America after its discovery were mostly persecuted Protestants from
all over Europe. The Catholic Church was persecuting them for defying its authority.
They did not want its repeat in America and hence they wanted a law which allowed them
absolute freedom from all such persecution in the name of religion. And so this law was
made.
There is another factor which must also be taken into account to understand the American
law. At the time when this law was made America had mostly Protestant Christians and
no other religious groups had yet migrated to the country in significant numbers. In their
eyes this law was not only justified but greatly needed so that no one used religion for the
persecution of others. Had there been a plurality of religions as is the case today, such a
law perhaps would not have been enacted. This law gives full freedom to any individual
to defy, to blaspheme or to ridicule ones own or others religions.
First we must understand what freedom of religion means. Religion is a system of belief
and belief is rooted in ones conscience. In any democracy, or even non-democratic
system, freedom of conscience is a very important freedom which cannot be tampered
with. The Quran also greatly respects this freedom of conscience when it says There is
no compulsion in religion. (2:256).
This right to freedom of conscience or religion can certainly allow a serious critique of
certain religious or cultural practices as long as the motive is philosophical.
Yet this freedom cannot allow ridiculing or attacking other religious belief systems just to
humiliate ones opponent, either by a powerful majority or minority. So in all multireligious and multicultural societies the freedom of expression should be qualified by
other laws not to offend others religious feelings. If a law on freedom of expression is
not so qualified, it may lead to serious law and order situations in multi-religious
societies.
It also needs to be seen in a political context as to which religious group or part thereof
wants to misuse this freedom to attack religious beliefs or practices of other religious
groups for political purposes.
The same situation arose when Salman Rushdie published his novel The Satanic Verses
and the West defended it in the name of freedom of expression. This publication also led
to violent demonstrations in the Muslim world and threats to Rushdies life. In multireligious societies and with political power struggles between different religious
communities, such laws have to be duly qualified through other laws. But such laws
should not curb genuine freedom of expression and that is always for the courts to decide.
Freedom of expression, then, is a very delicate matter, not to be taken lightly on either
side. The law on freedom of expression has to be quite balanced. While it should allow
genuine freedom of expression it should not be made absolute so as to enable certain
mischievous groups to attack others beliefs.
The situation in America has now greatly changed. It is no longer a uni-religious or
mono-cultural society. Perhaps the earlier America modifies its law the better it would be
for that country.
The writer is an Islamic scholar who also heads the Centre for Study of Society &
Secularism, Mumbai.
..
Alan Rusbridger
In his presentation to the Leveson inquiry, the Guardian editor explains why journalistic
freedom remains a fundamental right
25
Anyone wanting to know why a free press matters could do worse than study
the story of how the phone-hacking scandal at the News of the World was
uncovered looking both at the dogs that barked, and those that didn't.
It took almost exactly two years for the story to unravel. For the first 18
months not very much happened. The police added two more cursory
investigations to their original inadequate probe in 2006. Parliament did its
best, and some individual MPs did very well indeed. But it struggled to flush
out the truth. Politicians, from prime ministers down, have since admitted to
everything from pragmatism to fear as an explanation for their inaction or
general complicity. The regulator produced a lamentable report which
betrayed an inability, or lack of will, in getting at the truth. And, with some
notable exceptions, much of the media showed little initial inclination to shine
a bright light on a particularly glaring abuse of power. The normal checks and
balances in civil society didn't work.
The press is sometimes called the fourth estate. That's probably too grandiose
a concept for most journalists' tastes but it does suggest an important,
coherent and independent force in society. That "apartness" is crucial. The
press does not share the same aims as government, the legislature, the
executive, religion or commerce. It is, or should be, an outsider.
Stanley Baldwin did not intend it as a compliment when he said of newspapers
in 1931 that they had "power without responsibility." But, in fact, that lack of
responsibility is one of the important respects in which the press is
different. Of course, the press must be responsible for its own standards and
ethics. But it's not the job of journalists to run things: they are literally without
responsibility. They don't have to respond to a party whip, make the
compromises necessary in politics or answer to shareholders. They are not
bound by the confidentiality agreements that bind others. They are careless of
causing inconvenience or embarrassment. They don't have to win votes. They
can write things about the economy, say, or the environment which may
need saying but which are unsayable by politicians. They come from a
different place.
This freedom is a fundamental one. There are plenty of writers, jurists and
political philosophers who consider it the first and foremost of our freedoms.
The American first amendment is probably the most robust expression and
enshrinement of the primacy of free speech in an open society.
So that's the ideal. But it's worth asking, in a British context, how "free" is our
press? And, even more fundamentally, what is "the press?"
How free?
Many journalists and lawyers would argue that the press in the UK is
relatively, but only relatively, free. It is not clear that the situation has
improved notably since Harold Evans, unable to publish the full truth about
the thalidomide scandal, bemoaned what he called Britain's "half-free press"
in the mid 1970s. A 2009 Index/PEN commission into our defamation laws
concluded: "The law as it stands is hindering the free exchange of ideas and
information." The 2011 Global Press Freedom Rankings placed the UK in
joint 26th place.
Another measure of freedom is whether reporters are genuinely free to follow
any story they wish regardless of proprietorial, editorial or commercial
pressures or influence.
Until recently it would have been self-evident what "the press" was. The 19479 Royal Commission on the press described it as "the chief agency for
instructing the public on the main issues of the day the main source from
which information, discussion and advocacy reach the public."
Whether or not "the press" remains the chief agency of instruction today, it
would be very rare to find a "newspaper" that existed only as a printed
product. Increasingly "the press" encompasses digital forms of journalism as
well. That will include moving images, data and sound, often published
around the clock on a variety of platforms.
The further it moves from its traditional and historic form the more it sails
into uncharted, converged waters where it meets with broadcasters coming
from one direction and so-called amateur creators of content from another.
Countless blogs, platforms and websites reproduce some of the functions of
newspapers, though very few aspire to replicate the entire bundled form of a
newspaper, if only because the economic model is so unpromising.
This digital disaggregation, or fragmentation, of a newspaper has, of course,
severe economic implications. But it also brings into question the hitherto
distinct role of "the press". Many of these new digital forms of information
sharing are based on a different idea of what media is, or who should take part
in it. This revolution in technology considered by many the most significant
since the invention of moveable type in the 15th century allows virtually
anyone to create and share their news and thoughts. So 21st-century media, in
many respects, marks a sharp break with what went before a world in which
a relatively restricted group of people benefited from having a platform to
address a mass audience. Gone are the days when the freedom of the press is
limited to those who owned one.
The courts are already grappling with the implications for enforcing rules of
one jurisdiction on an internationallyavailable medium which may be based
elsewhere. The British footballer impotently trying to protect his privacy in
London is part of the same tide that allows a digital citizen of Syria or
Zimbabwe to exploit the free-press jurisdiction of other countries in order to
publish necessary truths.
An imperfect art
We meet at a time when, for the first time since the Enlightenment, it's
possible to imagine societies towns, cities, and even countries without any
agreed or verifiable forms of the truth. As journalists we would like it to be
self-evident that what we do is as crucial to democracy as a clean water supply
or a fire service. That surveys show that this is not a widely held view ought to
be a matter for self-reflection.
Since Watergate journalists often like to cite big campaigning investigations to
demonstrate why what we do matters. It's we, the free press, who exposed
phone-hacking, MPs expenses, illegal rendition, the truth about the death of
Ian Tomlinson, match-fixing in sport, World Cup votes for sale, chicanery in
the arms trade, cash for questions and so on.
This work of investigation is, indeed, vital evidence of the importance of the
free press. As vital is the institutional muscle of the press that stands behind a
reporter engaged in this kind of work. Reporters need to know that they will
be protected from the threats and immense costs that are often involved when
people seek to stop daylight being thrown on their affairs. Our Moscow
correspondent, for example, could not be free to work in Russia without the
solidity of the Guardian behind him. The widespread defence of the sanctity of
journalistic sources when our reporter, Amelia Hill, was recently threatened
with the Official Secrets Actwas an example of the institutional strength of the
press as a whole.
But there is a quieter, less glamorous side to our trade which is also vital, and
which is not easily replicated by social media or bloggers. It is the simple craft
of reporting: recording things; asking questions; being an observer; giving
context. It's sitting in a magistrates' court reporting on the daily tide of crime
cases the community's witness to the process of justice. It's being on the
front line in Libya, trying to sift conflicting propaganda from the reality. It's
reporting the rival arguments over climate change and helping the public to
evaluate where the truth lies.
Totalitarian governments can never allow a free press. Our own relative
freedom has been fought for over 400 years, and there can never be a moment
when freedom can be considered "won". When people talk about "licensing"
journalists or newspapers the instinct should be to refer them to history. Read
about how licensing of the press in Britain was abolished in 1695. Read about
how Wilkes, Cobbett, Locke, Milton, Mill, Junius and countless anonymous
writers, lawyers and printers argued and battled for the comparative freedoms
the press in Britain enjoys. Remember how the freedoms won here became a
model for much of the rest of the world. And be conscious how the world still
watches us to see how we protect those freedoms.
..
Freedom of Speech
Why is freedom of speech so solidly entrenched in our
constitutional law, and why is it so widely embraced by the
general public? Over the years many philosophers,
historians, legal scholars and judges have offered
theoretical justifications for strong protection of freedom of
speech, and in these justifications we may also find
explanatory clues.
The First Amendment's protection of speech and expression
is central to the concept of American political system. There
is a direct link between freedom of speech and vibrant
democracy. Free speech is an indispensable tool of selfgovernance in a democratic society. It enables people to
obtain information from a diversity of sources, make
Freedom of Press
Freedom of the press protects the right to obtain and
publish information or opinions without government
censorship or fear of punishment. Censorship occurs when
the government examines publications and productions and
prohibits the use of material it finds offensive. Freedom of
press applies to all types of printed and broadcast material,
including books, newspapers, magazines, pamphlets, films
and radio and television programs.
The Constitution's framers provided the press with broad
freedom. This freedom was considered necessary to the
establishment of a strong, independent press sometimes
called "the fourth branch" of the government. An
independent press can provide citizens with a variety of
information and opinions on matters of public importance.
However, freedom of press sometimes collides with other
rights, such as a defendant's right to a fair trial or a citizen's
right to privacy. In recent years, there has been increasing
Namely, once in this country that now seems far away, radio
and television broadcasters had an obligation to operate in
the public interest. That generally accepted principle was
reflected in a rule known as the Fairness Doctrine. The rule,
formally
adopted
by
the
Federal
Communications
Commission in 1949, required all broadcasters to devote a
reasonable amount of time to the discussion of controversial
matters of public interest. It further required broadcasters
to air contrasting points of view regarding those matters.
The Fairness Doctrine arose from the idea imbedded in the
First Amendment that the wide dissemination of information
from diverse and even antagonistic sources is essential to
the public welfare and to a healthy democracy.
In August 1987 the FCC repealed the Doctrine, claiming that
it was unconstitutional, although the Supreme Court had
ruled unanimously in 1969 that the Fairness Doctrine was
not only constitutional but essential to democracy. As a
result, general public is very rarely served with fair and
balanced information. The public airwaves serve today no
other purpose but to express the opinions of those who can
pay for air time. Some authors argue that mainstream media
journalism today is a shameful joke because of president
Reagan's decision to abolish Fairness Doctrine. Once upon a
time, the Fairness Doctrine ensured that the information we
receive - information vital to the ability of the people to
govern in the manner intended - came from a wide variety of
sources and perspectives. Reagan's policies annihilated the
Fairness Doctrine, opening the door for a few megacorporations to gather journalism unto themselves. Today,
Reagan's old bosses at General Electric own three of the
most-watched news channels. This company profits from
every war Americans fight, but somehow is trusted to tell
the truths of war. Thus, the myths and lies are sold to us
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Security issues warrant greater freedom of expression, seminar told
PEOPLE are abusing the movies team and advising each other over cellphones and
online social networks to share those abusing remarks to register their protest. I am
not convinced. I think propagation of a good act is a healthy activity but
propagation of a bad act is negative.
I believe that respect and dignity of the Prophet is mighty and no one can harm him by
such acts. The point we are ignoring here is the way the Prophet used to react to such
actions.
There are extremists in all religions. It is well-known that most of the non-Muslims also
raised objection on this movie.
I agree that there is a need to take notice of such acts and negative minds behind them,
but the protest should be peaceful. I am not fully convinced with the official stand of the
US government that this act was freedom of expression and that the government is not
able to block that movie.
I think considering the situation and sentiments of the Muslim world some serious and
precautionary steps should have been taken by the US administration.
We are being taught that our world is a global village but, unfortunately, there is no law
and set norm for the protection and respect of different religions.
It is true that religion is not an affair of the state in most parts of the world. But despite
liberalism, most of the believers of different religions are touchy about their faith. What is
freedom of expression and what are its boundaries is a different debate.
Today, it appears that the misuse of freedom of expression will ultimately lead the
civilised world to chaos.
All countries should come forward for peace. This is the only way to bring this world
towards peace and harmony.
HUMAIRA KANWAL
Islamabad
Restraint
The answer to the blasphemous contents is not violence but a wisdom-based response.
Turning violent in reaction to such attempts will be a success of the hardcore fanatics
who want to draw us into this dirty game.
There are many more dirty fanatics than one can imagine, and reacting to such attempts
will encourage them to toy with our sentiments that may result in an endless cycle of
blasphemy and violent reaction to it.
The nonsense of hate contents does not deserve our attention. The more we pay attention
to them, the more they will turn ugly.
Lets ignore these insane fanatics and soon they will realise that their hard work is going
unnoticed.
Having said that, governments and civil societies in the Muslim world should also play
their due role. They should send a clear message to the West to control hate and
fanaticism on their soil and legislate to curb such attempts of insensitivity and
inhumanity.
In western societies, where religion is a non-issue, it is necessary to educate them about
religious beliefs and personalities.
Finally, it is time for the rulers of the Muslim world to realise that they should invest
maximum in education and human resource development to advance in science and
technology to make the Muslim world economically and politically independent.
Before we attempt to change western fanatics sick mindset, let us change ourselves first
by becoming good Muslims.
NADEEM AKRAM
Islamabad
Illinois, USA
Freedom of Speech
The right, guaranteed by the First
Amendment to the U.S. Constitution, to express beliefs and ideas without unwarranted
government restriction.
Democracies have long grappled with the issue of the limits, if any, to place on the expr
ession of ideas and beliefs. Thedilemma dates back at least to ancient Greece, when th
e Athenians, who cherished individual freedom, neverthelessprosecuted Socrates for hi
s teachings, claiming that he had corrupted young people and insulted the gods.
The Framers of the Constitution guaranteed freedom of speech and expression to the ci
tizens of the United States with theFirst Amendment, which reads, in part, "Congress sh
all make no law abridging the freedom of speech." Almost since theadoption of the Bi
ll of
Rights, however, the judiciary has struggled to define speech and expression and the e
xtent to whichfreedom of speech should be protected. Some, like Justice HUGO L. BLACK,
have believed that freedom of speech is absolute.But most jurists, along with most U.S.
citizens, agree with Justice OLIVER WENDELL HOLMES JR., who felt that the Constitutionall
ows some restrictions on speech under certain circumstances. To illustrate this point, H
olmes wrote, "The most stringentprotection of free speech would not protect a man in fal
sely shouting fire in a theater and causing a panic" (SCHENCK V. UNITEDSTATES, 249 U.S.
47, 39 S. Ct. 247, 63 L. Ed. 470 [1919]).
During the two centuries since the adoption of the First Amendment, the U.S. Supreme
Court has held that some types ofspeech or expression may be regulated. At the same t
ime, the Court has granted protection to some areas of expressionthat the Framers clea
rly had not contemplated.
Public Forum Regulation
When the government attempts to regulate the exercise of speech rights in traditional p
ublic forums, such as parks or publicsidewalks, the U.S. Supreme Court examines whet
her the regulation restricts the content of the speech or merely regulatesthe time, mann
er, and place in which the speech is delivered.
If the law regulates the content of the expression, it must serve a compelling state intere
st and must be narrowly written toachieve that interest (Perry Education Ass'n v. Perry L
ocal Educators' Ass'n, 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d 794[1983]). Restriction
s on speech in a public forum also may be upheld if the expressive activity being regulat
ed is of a typethat is not entitled to full First Amendment protection, such as Obscenity.
Laws that regulate the time, manner, and place, but not content, of speech in a public fo
rum receive less scrutiny by theCourt than do laws that restrict the content of expressio
n. These so-called content-neutral laws are permissible if they servea significant govern
ment interest and allow ample alternative channels of communication (see Perry). It is n
ot necessarythat a content-neutral law be the least restrictive alternative, but only that th
e government's interest would be achieved lesseffectively without it (Ward v. Rock again
st Racism, 491 U.S. 781, 109S. Ct. 2746, 105 L. Ed. 2d 661 [1989]).
An important distinction is drawn between public premises that serve as traditional publi
c forums and those that constitutelimited public forums. For example, state fair grounds
are public premises that have not traditionally served as publicforums. The government
may impose more restrictions on free speech in limited public forums than in traditional
publicforums. In Heffron v. International Society for Krishna Consciousness, 452 U.S. 64
0, 101 S. Ct. 2559, 69 L. Ed. 2d 298(1981), the Court upheld regulations limiting the sal
e or distribution of religious materials to fixed locations on state fairgrounds.
The Court reaffirmed in Thomas v. Chicago Park Dist., 534 U.S. 316, 122 S. Ct. 775, 15
1 L. Ed.2d 783 (2002) that localgovernments do not violate the First Amendment when t
hey require the obtaining of a permit before individuals can holdlarge-scale rally events i
n public parks. In this case, the Chicago Park District denied a rally permit to a group th
at hadsought to hold a "Hempfest." The park district denied the permit because of violati
ons of park rules at previous events runby the organizers. The group challenged the de
nial, arguing that the park district could use its unfettered discretionary powerto deny pe
rmits to those who held unpopular or controversial political views, such as support for th
e legalization ofmarijuana. The U.S. Supreme Court held that the park district's ordinanc
e was a constitutionally permissible "content-neutral" regulation of time, manner, and pla
ce. It was directed toward all activity in a public park, not just towardcommunicative or p
olitical activity. It did not constitute subject-matter Censorship in any way. The Court ex
plained that thepark district's object was to coordinate multiple uses of limited space; to
assure preservation of park facilities; to preventdangerous, unlawful, or impermissible u
ses; and to assure financial accountability for damages caused by an event.
Although it seems reasonable to assume that public premises owned and operated by t
he government are public forums,some are not. In Adderley v. Florida, 385 U.S. 39, 87
S. Ct. 242, 17L. Ed. 2d 149 (1966), the U.S. Supreme Court upheldthe Trespass convic
tion of students who demonstrated on the grounds of a jail. Although jailhouse grounds
are publicproperty, they have not been used traditionally as public forums: "No less so t
han a private owner of property, the state hasthe power to preserve the property under it
s control for the use to which it is lawfully dedicated." Later cases challengingrestricted
access to public premises focused on whether the government, in creating the premises
, had intended to create apublic forum. In United States v. Kokinda, 497 U.S. 720, 110 S
. Ct. 3115, 111 L. Ed. 2d 571 (1990), the Court upheld apostal-service regulation that ba
rs the solicitation of contributions on a post office's sidewalk, because that sidewalk lack
edthe characteristics of a general public sidewalk. Similarly, it declared an airport termin
al to be a nonpublic forum because"the tradition of airport activity does not demonstrate
that airports have historically been made available for speech activity"(International Soci
ety for Krishna Consciousness v. Lee, 505 U.S. 672, 112 S. Ct. 2701, 120 L. Ed. 2d 541
[1992]).
When private property rights conflict with the public-forum doctrine, the Court examines
whether the regulation in question isnarrowly tailored to serve a significant government i
nterest. A law may not prohibit all canvassing or solicitation of, ordistribution of handbills
to, homeowners in a residential neighborhood, because a public street is a traditional pu
blic forum.However, it may limit specific types of speech activity that target particular ind
ividuals. In Frisby v. Schultz, 487 U.S. 474,108 S. Ct. 2495, 101 L. Ed. 2d 420 (1988), th
e Court upheld an ordinance that prohibited the picketing of individualresidences. The la
w had been narrowly drawn to serve the government's interest in precluding the picketin
g of captivehouseholders, and allowed picketers ample alternative means of expression.
Inciting, Provocative, or Offensive Speech
Laws that limit inciting or provocative speech, often called fighting words, or offensive ex
pressions such as Pornography,are subject to Strict
Scrutiny. It is well established that the government may impose content regulations on
certaincategories of expression that do not merit First Amendment protection. To illustrat
e this point, the Court stated inChaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 7
66, 86 L. Ed. 1031 (1942),"There are certain well-defined andnarrowly limited classes of
speech, the prevention and punishment of which have never been thought to raise cons
titutionalproblems."
With the increase of activity in cyberspace, individuals can distribute questionable speec
h throughout the U.S. and theworld. In Planned Parenthood of the Columbia/Willamette
Inc. v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir.2002), a federal appea
ls court ruled that an anti-abortion web site was not protected by the First Amendment.
The web siteposted photos, names, addresses, and other information pertaining to Abo
rtion providers, their family members, and otherswho were perceived as supporting abo
rtion rights. Although neither the site nor the posters made explicit threats against theab
ortion providers, violence at clinics that provided abortions had followed poster distributi
on in the past. PlannedParenthood sued the group under the Freedom of Access to Clin
ic Entrances Act of 1994 (FACE), 18 U.S.C. 248, andother laws. The trial judge instruc
ted the jury that if the defendants' statements were "true threats," the First Amendment
would not protect them. The jury awarded the plaintiff a multimillion-dollar verdict. The N
inth Circuit stated that a jury couldconclude that the postings constituted a true threat un
der FACE, which removed any First Amendment protection for thedefendants.
The Court has also upheld laws that regulate speech activity if those laws do not limit th
e content of speech and imposeonly an indirect burden on freedom of speech. In such c
ases, the Court applies a less stringent test and balances theindividual's free speech int
erests against the government's interest that is furthered by the law in question. In O'Bri
en v.United States, 393U.S. 900, 89 S. Ct. 63, 21 L. Ed. 2d 188 (1968), the Court held t
hat a statute prohibiting the destruction ofdraft cards did not violate the First Amendmen
t, because the government's interest in maintaining a viable selective-servicepool outwe
ighed the statute's incidental infringement of free expression.
Since the 1980s, a number of laws have been passed that attempt to regulate or ban "h
ate speech," which is defined asutterances, displays, or expressions of racial, religious,
or sexual bias. The U.S. Supreme Court has generally invalidatedsuch laws on the grou
nd that they infringe First Amendment rights. In R.A.V. v. City of St. Paul, 505 U.S. 377,
112 S. Ct.2538, 120 L. Ed. 2d 305 (1992), the Court invalidated the city of St. Paul's hat
e-crime ordinance, ruling that itunconstitutionally infringed free speech. The defendant i
n that case had been prosecuted for burning a cross on the lawn ofan African-American
family's residence.
The Minnesota Supreme Court held that the ordinance was limited to restricting conduct
that amounted to Chaplinksky"fighting words." Therefore, the ordinance was not imperm
issibly content-based because it was "narrowly tailored" to furtherthe "compelling govern
mental interest in protecting the community against bias-motivated threats to public safe
ty andorder." The U.S. Supreme Court disagreed. Justice Antonin
Scalia, in his majority opinion, wrote that, even assuming thatthe cross burning was pro
scribable under the "fighting words" doctrine, the ordinance was, on its face, unconstituti
onal. Itviolated the First Amendment because it prohibited "otherwise permitted speech
solely on the basis of the subjects thespeech addresses." Scalia agreed that the govern
ment may constitutionally proscribe content such as LIBEL, but that it maynot proscribe o
nly libel that is critical of the government. In Scalia's view, the unprotected features of "fi
ghting words" aretheir "nonspeech" element of communication. Thus, fighting words are
like a noisy sound truck: each is a mode of speech,and both can be used to convey an i
dea, but neither has a claim on the First Amendment. The government cannot,however,
regulate fighting words or a sound truck based on "hostility-or favoritism-towards the un
derlying messageexpressed."
In addition, the ordinance was not over-broad but underinclusive. The content limitation
was impermissible because itdisplayed "the city council's special hostility towards the pa
rticular biases thus singled out." An ordinance not restricted "tothe favored topics" would
have the same effect the city desired, but without the discrimination against unpopular vi
ews.Justice Scalia also noted that the city could have prosecuted the defendant under tr
aditional Criminal
Law statutes,including Arson, trespass, and terroristic threats. In his view, the city had
other means to address the problem "withoutadding the First Amendment to the fire."
This decision did not end the debate over HATE CRIMES. The Court took up the issue aga
in in Virginia v. Black, 538 U.S. 343,123 S. Ct.1536. 155 L. Ed.2d 535 (2003). This case
also involved a cross burning aimed at terrorizing an African-Americanfamily. A Virginia
criminal statute had outlawed cross burning "on the property of another, a highway or ot
her public place with the intent of intimidating any person or group." In a 6-3 decision,
the Court upheld the statute. It emphasized that theFirst Amendment would protect som
e types of cross burnings, such as one held at a political rally. However, when the cross
burning was targeted at individuals for the purposes of criminal intimidation, freedom of
speech would not protect the crossburners.
Like fighting words, materials that are judged obscene are not protected by the First Am
endment. The three-part Miller teststands as the yardstick for differentiating material tha
t is merely offensive and therefore protected by the First Amendment,from that which is l
egally obscene and therefore subject to restriction (MILLER V. CALIFORNIA, 413 U.S. 15, 9
3 S. Ct. 2607, 37 L.Ed. 2d 419 [1973]). The Miller test determines that material is obsce
ne if (1) the average person, applying contemporarycommunity standards, would find th
at it appeals to shameful or morbid sexual interests; (2) it depicts or describes patentlyof
fensive sexual conduct; and (3) it lacks serious literary, artistic, political, or scientific valu
e.
The Seventh Circuit Court of Appeals ruled in Kendrick v. American Amusement Machin
e Association, 244 F.3d 572 (7thCir. 2001) that a city ordinance that prohibited minors fr
om playing violent or sexually explicit video arcade games wasunconstitutional. The cou
rt noted that the city had not sought to regulate video games because they were "offensi
ve" underMiller. Rather, the ordinance premised its restriction on the belief that violent f
antasy video games led to real-world harm.The appeals court found no real difference b
etween the content of the allegedly "violent" video games and generallyavailable, unrest
ricted literature that depicted the same level of violence. They were both examples of "a
children's world ofviolent adventures." The court, therefore, found that the ordinance im
permissibly restricted minors' freedom of expressionwithout any offsetting justification.
Prior Restraint
The Court uses a stringent standard when it evaluates statutes that impose a Prior
Restraint on speech. The test that ismost frequently employed asks whether the prohibi
ted activity poses a Clear and Present
Danger of resulting in damage toa legitimate government interest. Most often, the clearand-present-danger doctrine has applied to prior restraints on thepublication of material
s thought to threaten national security. This test was first expressed by Justice Holmes i
n theSchenck case. Charles T. Schenck had been charged with violating the Espionage
Act (Tit. 1, 3, 4 [Comp. St. 1918, 10212c, 10212d]) by distributing pamphlets that u
rged insubordination among members of the military. The Court held thathis activities cr
eated "a clear and present danger that they will bring about the substantive evils that Co
ngress has a right toprevent." The government's interest in maintaining national security
and preventing dissension among the troops outweighedSchenck's interest in free spee
ch.
The clear-and-present-danger test was extended during the 1950s, when widespread fe
ar of Communism led to thepassage of the Smith
Act, 18 U.S.C.A. 2385, which prohibited advocating the overthrow of the government.
The act waschallenged as a prior restraint on speech. It was upheld by the U.S. Suprem
e Court, which stated that the clear-and-present-danger test does not require the govern
ment to prove that a threat is imminent or that a plot probably would be successful(Den
nis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137[1951]).
The Dennis decision was criticized as weakening the clear-and-present-danger test and
allowing the government too muchfreedom to restrict speech. These results were remed
ied somewhat in Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827,23 L. Ed. 2d 430 (1
969), in which the Court invalidated a statute that punished the advocacy of violence in i
ndustrialdisputes. The Court held that the government cannot forbid the advocacy of the
use of force unless that advocacy isdirected to inciting imminent illegal activity and is lik
ely to succeed.
Expressive Conduct
In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87
L. Ed. 1628 (1943), Justice ROBERTH. JACKSON wrote that symbols are "a short cut from
mind to mind." Expressive conduct or Symbolic
Speech involvescommunicative conduct that is the behavioral equivalent of speech. Th
e conduct itself is the idea or message. Someexpressive conduct is the equivalent of sp
eech and is protected by the First Amendment.
In TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT, 393 U.S. 503, 89 S.
Ct. 733, 21 L. Ed. 2d 731 (1969), the U.S.Supreme Court held that it was unconstitution
he meansfor expressing it within the city. It found that the city had good grounds for ban
ning nude-dancing clubs; these weresecondary effects on the community rather than th
e dancing itself. Therefore, the city had the authority to restrict thelocation of such clubs.
Commercial Speech
Commercial speech, usually in the form of advertising, enjoys some First Amendment pr
otection, but not to the samedegree as that which is given to noncommercial forms of ex
pression. Generally, the First Amendment protects commercialspeech that is not false o
r misleading and that does not advertise illegal or harmful activity. Commercial speech
may berestricted only to further a substantial government interest and only if the restricti
on actually furthers that interest. In CentralHudson Gas & Electric Co. v. Public Service
Commission, 447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980), the U.S.Supreme
Court held that a statute banning promotional advertising by Public
Utilities was unconstitutional. That case setforth a "general scheme for assessing gove
rnment restrictions on commercial speech." Commercial speech will beprotected by the
First Amendment if (1) it concerns lawful activity and is not misleading; (2) the asserted
governmentinterest is not substantial; (3) the regulation does not directly advance the a
sserted governmental interest; and (4) theregulation is more extensive than is necessar
y to serve that interest. The U.S. Supreme Court has struck down bans ondrug advertisi
ng, (Thompson v. Western States Medical Center,, 535 U.S. 357, 122 S. Ct. 1497, 152
L. Ed. 2d 563 (2002)and tobacco advertising, Lorillard Tobacco Corp. v. Reilly,, 533 U.S.
525, 121 S. Ct. 2404, 150 L. Ed. 2d 532 (2001), usingthis test.
Defamation and Privacy
In NEW YORK TIMES V. SULLIVAN, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), th
e U.S. Supreme Court declared that theFirst Amendment protects open and robust deb
ate on public issues, even when such debate includes "vehement, caustic,unpleasantly
sharp attacks on government and public officials." In Sullivan, a public official claimed th
at allegations abouthim that had appeared in the New York Times were false, and he su
ed the newspaper for libel. The Court balanced theplaintiff's interest in preserving his re
putation against the public's interest in freedom of expression, particularly in the area of
political debate. It decided that, in order to recover damages, a public official must prove
actual malice, which is knowledgethat the statements were false or that they were made
with reckless disregard of whether they were false.
Where the plaintiff in a Defamation action is a private citizen who is not in the public ey
e, the law extends a lesser degreeof constitutional protection to the statements at issue.
Public figures voluntarily place themselves in positions that inviteclose scrutiny, whereas
private citizens have a greater interest in protecting their reputation. A private citizen's r
eputationaland privacy interests tend to outweigh free speech considerations and theref
ore deserve greater protection from the courts(see Gertz v. Robert Welch, Inc., 418 U.S.
323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 [1974]).
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