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Transcript of AP Gov.
How can one distinguish what can and cannot be protected by the First Amendment? By using the "Clear and Present Danger Test"
created by Justice Oliver Wendell Holmes.
This test is used to determine whether or not a law that limits a person's First Amendment rights is constitutional or not, by seeing if the speech poses a "clear and present danger". Freedom of Expression What is freedom of expression? As stated in the quote, freedom of expression is:
The right to say whatever you want.
The right to publish whatever you want in the media.
The right to peacefully protest/ assemble.
The right to petition.
Freedom of expression is ESSENTIAL in enabling democracy to work, and in encouraging public participation in decision making.
There ARE ways for the government to control/ regulates these "free expression clauses" though, for example:
The government can restrict freedom of speech if it proves to be harmful (if it promotes lawless action).
The government can put certain restrictions on the WAY things are communicated. Brought to you by: Group Two *Free expression clauses are the press and speech clauses of the First Amendment. *Clear and Present Danger Test is a means by which the Supreme Court has distinguished between a speech as the advocacy of ideas, which is protected by the First Amendment, and speech as incitement, which is not protected. In laymen's terms, it is a test used to determine if your speech endangers an individual or the nation. * Prior Restraint is censorship before publication Symbolic Expression and Tinker vs. Des Moines Symbolic expression is nonverbal communication. This type of expression generally receives less protection, except in certain cases, like Tinker vs. Des Moines Independent County School District (1969).
This case involved 3 students who wore black armbands to protest the Vietnam War, even though Principals in their school district had prohibited it. The students were suspended on the grounds that the armband would cause disruptions, but the Supreme Court overturned the suspensions because Justice Abe declared that the principals failed to show that the forbidden conduct would substantially interfere with appropriate school discipline. THEM'S FIGHTING WORDS! Fighting Words Fighting Words are an example of words NOT protected by the First Amendment.
Fighting words don't express ideas, so they are not subject to First Amendment protection.
An example of fighting words would be the case Chaplinsky vs. New Hampshire, where Chaplinsky, a Jehovah's witness was convicted for calling a city Marshal a "G__-damned racketeer" and a "damned fascist" in a public place. He appealed to the Supreme Court, but his conviction was upheld because his words were intended to inflict injury and breach the peace. *Fighting Words- Speech that is not protected by the First Amendment because it inflicts injury or tends to incite an immediate disturbance of the peace. EXTRA! EXTRA! READ ALL ABOUT
IT! Freedom of Press Freedom of Press protects your right to obtain and publish information or opinions without the fear of punishment or government censorship.
Censorship occurs when the government examines publications and productions and prohibits the use of information it finds offensive.
Freedom of Press applies to the National, State, and Local governments as well as all types of printed and broadcast materials such as:
Radio and Television programs Defamation of Character Defamation of Character Defamation of Character Libel written defamation of character.
A person who believes his or her name and character have been vandalized by deceitful statements in a publication can file a lawsuit against the publication and seek monetary compensation for damage.is
However, such a lawsuit can infringe limits on freedom of expression; at the same time, false statements impinge on the rights of citizens.
In 19 Defamation of Character and Restrictions of Press Libel is the written defamation of character.
A person who believes his or her name and reputation has been harmed by deceitful statements in a publication can file a lawsuit against the institution and seek monetary compensation for damage.
However, such a lawsuit can infringe on freedom of expression; at the same time, false statements impinge on the rights of individuals.
Publications cannot infringe on the privacy of an individual
Publications that are created with actual malice are NOT protected by the 1st Amendment. New York Times vs. Sullivan In this case, the Supreme Court decided that Freedom of Press takes precedence when the defamed individual is a public official.
The court unanimously agreed that the First Amendment protects all statements , even false ones about the conduct of government officials and public figures (gov't or not). EXCEPT when the statements are made with the intent to harm that individual, or with knowledge that the information they're publishing is false. The Rights to Petition and Assemble The rights to petition and assemble are stated in the First Amendment. The rights are provided to every man and can't be infringed upon.
The right to petition originated from the Magna Carta.
The right to petitions means that you have the right to ask for changes in government policies.
You have the right to assemble as long as you are not disrupting the peace or committing illegal acts.
You must seek official permission if you are petitioning on public property, or someone's provate property. Court Cases Some courts that cases you need to know;
Schenck v. United States
Gitlow v. New York
Benjamin Gitlow was arrested for distributing copies of a "left wing manifesto" that called for the establishment of Socialism through strikes and class action. He was convicted under a state anarchy law. He argued that they were violating his right to Freedom of Speech.
The New York courts decided anyone advocating the doctrine of violent revolution violated the law, so Gitlow was declared guilty of his crime.
A state can prohibit speech and publication when they have a tendency to result in an action dangerous to public security. In order to punish the offender, clear and present danger is not necessary. They can decide that an entire class of speech is so dangerous that it should be prohibited.
Bradenburg v. Ohio
Clarence Bradenburg, leader of the Ohio KKK was convicted under state law for advocating racial strife. His comments (caught on camera) included threats against government officials.
Bradenburg's conviction was reversed, because the government failed to prove that the danger was real. The Court went further and declared that threatening speech is protected by the First Amendment, unless the government can prove that it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
This ruling offered wider discretion for the expression of political ideas.
Tinker v. Des Moines Independent County Schools
Chaplinsky v. New Hampshire Court Cases (Cont.) Cohen v. California
Paul Cohen, a 19 year old, expressed his opposition to the Vietnam War by wearing a jacket in the hallway of an LA county courthouse emblazoned with the words "F*** the draft. Stop the war." Paul was charged under a California statute that prohibits "maliciously and willfully disturbing the peace and quiet of any neighborhood or person by offensive conduct." He was found guilty and sentenced 30 days in jail.
On appeal, the US Supreme court reversed the conviction because while his jacket was provocative, was not directed at anyone and the state failed to show evidence that his jacket would provoke people "in substantial numbers" to take physical action.
New York Times v. Sullivan
Near v. Minnesota
In Minneapolis, Jay Near published a scandal sheet in which he attacked local officials saying that they were working with gangsters. Minnesota officials obtained an injunction to prevent Near from publishing his newspaper, under a state law that allowed such action against publications deemed "malicious, scandalous, and defamatory."
The Supreme Court struck down the law, declaring that prior restraint places an unacceptable burden on free press.
New York Times v. United States
The U.S. Department of Justice sought to restrain the NYT from publishing the "Pentagon Papers". The case was brought before the supreme court.
The court concluded that the government had not proved the immediate, inevitable, and irreparable harm that would follow publication of the documents. Vocabulary Public figures
Clear and Present Danger Test
Free-Expression Clauses *Public figures- People who assume roles of prominence in society or thrust themselves to the forefront of public controversy.