Governments may also place some reasonable controls on the time, place, and manner of communication, although they must do so very carefully in order to avoid a violation. Much of the case law in this area revolves around what kind of speech can be controlled and how the government may go about doing so.
In many areas there are no clear lines separating constitutional from unconstitutional control of speech, and cases involving such line drawing have often been very controversial.
What is Protected Speech? Conduct versus Speech. When the government tries to regulate or punish any kind of communication, a number of questions must be answered to determine if the controls will survive a constitutional challenge.
This is not as simple as it may seem. Numerous activities that do not involve the use of words have been held to be speech, while in some cases, use of language, both written and oral, may not be considered speech. Examples of expressive conduct that have been held to be speech are wearing black armbands or burning the American flag to protest the Vietnam war. Although no words are spoken, the acts themselves are intended to communicate ideas and may be given the same protection as actual words.
On the other hand, the government may punish painting words on a public building graffiti , or threatening to reveal damaging secrets if not paid blackmail , even though that conduct involves written or spoken words. Is it Protected Speech? Next, it must be determined if the speech in question is protected by the First Amendment. Certain kinds of speech have not been given constitutional protection.
For example, states may allow damage suits against persons who have made slanderous or libelous statements. Slander consists of orally making and libel consists of publishing false statements that are damaging to the reputation of another. Another example of unprotected speech is incitement to illegal action. Someone who stands before a crowd and encourages them to start a riot would not receive First Amendment protection.
Two particular kinds of unprotected speech, obscenity and fighting words, have given the courts particular difficulty. The Supreme Court has struggled to define obscenity. In order to declare material obscene, a court must determine:. Defining the term has proven much easier than applying it. Fighting words.
Courts have not always been this protective of free expression. In the nineteenth century, for example, courts allowed punishment of blasphemy, and during and shortly after World War I the Supreme Court held that speech tending to promote crime—such as speech condemning the military draft or praising anarchism—could be punished. Schenck v. Moreover, it was not until that the Supreme Court held that the First Amendment limited state and local governments, as well as the federal government.
Gitlow v. New York But starting in the s, the Supreme Court began to read the First Amendment more broadly, and this trend accelerated in the s. Today, the legal protection offered by the First Amendment is stronger than ever before in our history. The first pressing issue concerns the regulation of money in the political process. The Court also recognized, however, that political expenditures and contributions could be regulated consistent with the First Amendment if the government could demonstrate a sufficiently important justification.
In Buckley v. Valeo , for example, the Court held that the government could constitutionally limit the amount that individuals could contribute to political candidates in order to reduce the risk of undue influence, and in McConnell v.
Federal Election Commission , the Court held that the government could constitutionally limit the amount that corporations could spend in the political process in order to influence electoral outcomes. In more recent cases, though, in a series of five-to-four decisions, the Supreme Court has overruled McConnell and held unconstitutional most governmental efforts to regulate political expenditures and contributions.
Citizens United v. Federal Election Commission ; McCutcheon v. Federal Election Commission As a result of these more recent decisions, almost all government efforts to limit the impact of money in the political process have been held unconstitutional, with the consequence that corporations and wealthy individuals now have an enormous impact on American politics.
Those who object to these decisions maintain that regulations of political expenditures and contributions are content-neutral restrictions of speech that should be upheld as long as the government has a sufficiently important justification. They argue that the need to prevent what they see as the corruption and distortion of American politics caused by the excessive influence of a handful of very wealthy individuals and corporations is a sufficiently important government interest to justify limits on the amount that those individuals and corporations should be permitted to spend in the electoral process.
Because these recent cases have all been five-to-four decisions, it remains to be seen whether a differently constituted set of justices in the future will adhere to the current approach, or whether they will ultimately overrule or at least narrowly construe those decisions. In many ways, this is the most fundamental First Amendment question that will confront the Supreme Court and the nation in the years to come.
In recent years, the Supreme Court has taken a narrow view of the low value concept, suggesting that, in order for a category of speech to fall within that concept, there has to have been a long history of government regulation of the category in question.
This is true, for example, of such low value categories as defamation, obscenity, and threats. An important question for the future is whether the Court will adhere to this approach. Why does this doctrine matter? As a result, except in truly extraordinary circumstances, such expression cannot be regulated consistent with the First Amendment.
Almost every other nation allows such expression to be regulated and, indeed, prohibited, on the theory that it does not further the values of free expression and is incompatible with other fundamental values of society. Suppose, for example, an individual posts naked photos of a former lover on the Internet. This remains an unresolved question. The Supreme Court has held that the government cannot constitutionally prohibit the publication of classified information unless it can demonstrate that the publication or distribution of that information will cause a clear and present danger of grave harm to the national security.
At the same time, though, the Court has held that government employees who gain access to such classified information can be restricted in their unauthorized disclosure of that information. Snepp v. It remains an open question, however, whether a government employee who leaks information that discloses an unconstitutional, unlawful, or unwise classified program can be punished for doing so.
This issue has been raised by a number of recent incidents, including the case of Edward Snowden. At some point in the future, the Court will have to decide whether and to what extent the actions of government leakers like Edward Snowden are protected by the First Amendment.
Direct contributions to candidates, as opposed to independent speech about them, can be restricted, as the Court has held. But I agree these are likely to be heavily debated issues in the coming years. Many professionals serve their clients by speaking. Psychotherapists try to help their patients by talking with them. Commercial speech is a form of protected communication under the First Amendment, but it does not receive as much free speech protection as forms of noncommercial speech, such as political speech.
Commercial speech, as the Supreme Court iterated in Valentine v. Chrestensen , had historically not been viewed as protected under the First Amendment. This category of expression, which includes commercial advertising, promises, and solicitations, had been subject to significant regulation to protect consumers and prevent fraud. Beginning in the s, however, the Supreme Court gradually recognized this type of speech as deserving some First Amendment protection.
In Bigelow v. Virginia , the Supreme Court ruled that an individual had the right to advertise in Virginia the availability of abortion services in New York although the procedures were at the time illegal in Virginia. Justice Harry A. Shortly thereafter in Virginia State Board of Pharmacy v.
Virginia Citizens Consumer Council, Inc. Writing for the Court in striking down a state law making it illegal for pharmacies to advertise the price of drugs, Justice Blackmun asserted that the First Amendment not only includes the right of the speaker to speak but also right of the listener to receive information. In this case, consumers had a right to receive lawful information about drug prices. Moreover, the Court also noted that speech does not lose its protection simply because money is transacted through it.
To support that claim, the Court cited political communications involving political contributions and expenditures. Thus, Blackmun concluded that commercial speech, even a communication such as advertising, which merely suggests a business transaction, is protected by the First Amendment. Blackmun also noted, however, that simply because this type of speech is protected speech does not mean that it is immune from government regulation.
This type of speech is entitled to less protection than political speech and can be regulated if false or misleading.
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