Chapter Two: The First Amendment

Topic Overview:

As one of the most essential and referenced amendment, the First Amendment represents one’s right to free speech and the freedom of press. Although the exact explanation of the limitations of the Amendment wasn’t given in its making, the Supreme Court rejects the idea that the First Amendment bans the government from regulating speech and press. The Supreme Court uses various tools to avoid broad interpretations of the meaning of free speech, which enables the Court to balance the competing interests in their own way.
Through its decision making processes, the Supreme Court demonstrates different interpretations and understandings of the First Amendment and its values, as well as the perimeters of the meaning of free expression and speech. Throughout the time, the constitutional protection and rights have been adjusted to different publics and according to different levels of freedom.

With the emergence of new media outlets, there have been new issues that challenged the values of the First Amendment, as there was more space for free expression and the circulation of that expression. Generally, with the evolution of mass media and journalism, the Supreme Court has designed various tests when the government’s actions invade the rights given by the Constitution. Among all the forms of free speech, political speech receives most attention and is analyzed the most. 

Defining Key Terms:

Categorical Balancing: A judge’s or court’s practice of deciding cases by weighing different broad categories to create rules that may be applies in later cases with similar facts.

Defamation: A false communication that harms another’s reputation and subjects an individual to ridicule; includes both libel and slander.

Seditious libel: Criticism of the government.

Compelling interest: a government interest of the highest order.

O’Brien test: A three-part test used to determine whether a content-neutral law in constitutional.

Important Cases:

Near v. Minnesota – The Court ruled that anyone who becomes a part of the business of publishing an obscene or a defamatory newspaper or periodical would be faulted for nuisance, and prevented from further maintaining the nuisance.

New York Times Co. v. United States – In the famous ‘Pentagon Papers Case’, the United States attempted to prevent the Washington Post and the New York Times Co. from publishing the content by calling for the prior restraint, under the reasoning that the documents were crucial for national security. 

Relevant Doctrine:

Prior Restraint
In order for prior restraint to exist:
1. Any government body or representative
2. Reviews speech or press prior to distribution and
3. Stops the dissemination of ideas before they reach the public

Government prior restraints are constitutional when they prevent:
1. Obstruction of military recruitment
2. Publication of troop locations, numbers and movement in time of war
3. Obscene publications
4. Incitements of violence
5. Forcible overthrows of government
6. Fighting words likely to promote imminent violence

Scrutiny
Strict scrutiny
In order to be constitutional, content-based law must:
1. Be necessary and
2. Use the least restrictive means
3. To advance a compelling government interest
Intermediate-level scrutiny
1. To be constitutional, a law must:
2. Fall within the power of government and
3. Advance an important substantial government interest that is unrelated to suppression of speech and
4. Be narrowly tailored to impose only an incidental restriction on First Amendment freedoms

Current Issues and Controversies:

In the past year, especially in the last several months of the Presidential Election in the U.S., there have been many discussion on the Constitution and how do the candidates understand and interpret the importance and the role of the constitution. For example, in one of his Tweet posts, Donald Trump states that burning the American flag should be punished with jail or the loss of citizenship. The reason this post caused a controversy is that the Supreme Court ruled the burning of the flag as protected by the First Amendment, as it is a form of free expression. 

On one side, Donald Trump’s reaction would be understandable as burning of the American flag is, in essence, disrespectful and impolite. There are better and less dramatic ways of expressing one’s dissatisfaction with the situation in U.S. at the same time, being at such a high position in the Office, D. Trump’s approach should be kept off Twitter and other social media.

The other side of the arguments brings about the controversy about changing the First Amendment, which would start many other discussions on the matter of free expression and speech. The First Amendment itself is a highly complex aspect of the U.S. Constitution, and changing only one aspect calls for a much deeper evaluation of other elements of the First Amendment and what they mean as well. 

My Questions/ Concerns:

1. Where is the line between an individual being disrespectful and him or her merely practicing their right given by the First Amendment? Is there a way of recognizing those differences?
2. As the highest body in the U.S. justice system, by giving the right to go against the First Amendment, isn’t the Supreme Court exercising its power to apply highly subjective attitude in altering the First Amendment and its values? How can that be regulated?

References:

Trager, R., Russomanno, J. & Ross, S.D. (2016), The law of journalism and mass communication. Thousand Oaks, CA: Sage Publications.