Freedom of Speech

Why do we have freedom of speech?

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Quote from Oliver Wendell Holmes:
the best test of truth is the power of thought to get itself accepted in the competition of the market

We have free speech to preserve FREEDOM. Restrictions on speech are undemocraticthey prohibit the free-flow of ideas.

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Freedom of Speech protects unpopular speech. Are First Amendment freedoms absolute? Answer: no.

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Examples of UNPROTECTED speech:
Libel Slander Perjury Sedition? Obscenity Fire in crowded theater example

Where is the line as to what is protected speech?

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Libel written defamation Slander verbal defamation Defamation -- Must be:
Published Damaging to reputation Untrue

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Private persons have more protection than public figures To defame public figuremust prove actual malice(bad intent)

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Obscenity
Miller v. California provides test for legal obscenity:

1. If the average person, applying contemporary community standards finds the work as a whole appeals to the prurient interest

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Miller v. California Test (Contd):

2. Work depicts or describes in a patently offensive manner certain conduct 3. Work lacks serious artistic or literary value

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Recent Obscenity Rulings: In 1996, Congress passed the Communications Decency Act, prohibiting transmission of obscene material over the Internet

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ACLU filed suit, and in 1997, the CDA was declared Unconstitutional Prior Restraint censorship before publication
Near v. Minnesota
States cant censor papers

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Prior Restraint (contd)

Prior restraint only acceptable where National Security threatened Exceptions: Student speech may be censored when censorship is related to legitimate pedagogical concerns

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Confidential Sources

No Constitutional protection for news reporters wanting to protect sources.

Matter is left to statessome states have shield laws. Why?

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Radio & TV Speech on radio & TV may be regulatedWhy? Answer: airwaves considered public propertylimited no. of broadcast channelstherefore the public interest is served by some censorship.

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FCC does not censorbut may act to punish networks that go too farby refusing to renew licenses First Amendment takes a back seat in TV & Radio Question: How will cable TV and the Internet change this?

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Symbolic Speech -- Examples: Flag burning Protected Picketing Protected if peaceful Burning draft cards during Vietnam War: NOT protectedgovt propertycant have people burning draft cardsharms public

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Symbolic Speech -Examples: Students wearing black arm bands Protected if not disruptive Campaign contributions Protected

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Commercial Speech -Examples: Advertising contraceptives Protected Lawyer solicitations (Jim Adler) Protected