Topic Overview:
To make the job of determining whether or not a certain case
violates the First Amendment rights, the courts often times turn to a
categorical weighing of the speech and its impact in order to determine the
result. Generally, when it comes to protecting the national security that can
potentially outweigh the speech protection in some situations. However, some of
the lines between protected and unprotected speech are not determined,
therefore dependent on the courts’ interpretation of the legal tests available.
Throughout history, the U.S. public has seen many cases in
which ordinary speech became criminal during the times of war or national
crisis. That kind of speech was defined as “clear and present danger” by
Justice Holmes in 1919. Over the years, the legal tests for the illegal speech
were adjusted and eventually became the Brandenburg/ Hess test, which enables
the court to clearly determine whether or not there was any intention of an
incitement.
When it comes to media, the plaintiffs that sue mass media
for incitement rarely win the lawsuits. Namely, it is extremely challenging to
prove that the media had an actual intention of promoting violence. In terms of
offensive speech, the majority of offensive expression is protected by the
government, except for the word and expressions that directly promote violence
and illegal action. But, hate speech hasn’t been defined as a specific category
of speech, which creates an issue of knowing when hate speech promotes direct
violence, or when it is just speculative and vague. To solve this problem to a
certain extent, the Court has determined the concept of true threats.
The cases that happen inside schools and universities depend
on the intensity of the threat, on statutory language, and the societal
interest involved. Universities generally have a higher obligation to provide
public forums for their students’ expression.
Defining Key Terms:
USA PATRIOT Act:
the Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act of 2001; law enforcement agencies got
more power to fight terrorism.
Chilling effect:
the discouragement of a constitutional right by any government practice.
Viewpoint-based
discrimination: Government censorship or punishment of expression based
on the ideas or attitudes expressed.
True threat:
Speech directed toward one or more individuals with the intent of causing
listeners to fear for their safety.
Orthodoxy: The generally accepted
beliefs of society at a particular time.
Important Cases:
Tinker v. Des MoinesIndependent Community: The wearing of a band is a form of symbolic
expression and is protected by the First Amendment, as it cannot be defined as
directly disruptive conduct.
Elonis v. UnitedStates: Because the posting is not a criminal act, but the threat in the
content of the posting is, the accused did not allege to having an actual
intent of harm, hence he was innocent.
Relevant Doctrine:
Incorporation Doctrine
The Fourteenth Amendment concept that most of the Bill of
Rights applies equally to the states.
The Brandenburg/ Hess
Incitement Test
The test allows punishment of “advocacy of illegal action”
if:
1. The speech is directed toward inciting immediate
violence or illegal action
2. The speech is likely to produce that action.
Media Liability for
Negligence
The plaintiff must prove that a certain media content posed
a:
1. Reasonable foreseeability of harm or
2. Proximate cause of the harm.
Underinclusive
A First Amendment doctrine that disfavors narrow laws that
target a subset of a recognized category for discriminatory treatment.
True threat
Utterance in a context of violence [that] can lose its
significance as an appeal to reason and become part of an instrument of force.
Non-University-Student
Speech
The Non-University-Student Speech may be regulated if it:
1. Disrupts the functioning of the public school or
violates the rights and interests of other students.
2. Is lewd or if it conflicts with the school’s pedagogical
goals or public values.
3. Is sponsored by the school and therefore
perceived to reflect the school’s official position and attitude. If the speech
occurs in a school-sponsored forum or event, if it is part of the school’s
official curriculum or if it appears to entangle the school with particular
religious viewpoint, it may be regulated.
Current Issues/ Controversies:
Generally, the presidential candidate D. Trump has had
several speeches in which he had included hate speech toward certain groups of
people or individuals. However, the speech wasn’t calling for any kind of harm
to any of the people targeted in D. Trump’s speeches, therefore it was
protected by the First Amendment Rights.
Nonetheless, as D. Trump was elect for the new U.S.
President, there is a question of standards of hate speech. With his personal
attitudes and approached toward hate speech and the amount of openness in his
personal expression, will that move the boundaries among the U.S. public as
well?
Also, will more hate speech become more acceptable generally
and in the court as well if the leader of the nation consistently demonstrates discriminatory
statements and attitudes? There are a lot of controversies revolving around the
issue, especially since the official results of the Elections came out. Although
there is high level of anticipation present among many, almost everyone is
aware of the general issue of the marketplace of ideas, and where the power to
freely express yourself comes from – money. Hence, it is hard to determine what
the future status of hate speech would be, but hopefully it is only going to improve,
regardless of the leadership at the front of the nation.
My Questions/ Concerns:
1. Are there any established boundaries that help
differ vague and speculative hate speech against intentional hate speech toward
a person or a group? How much attention is given to these issues in general?
References:
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