Constitutional Law and the First Amendment: Freedom of Speech

the freedom of speech is widely considered to be one of the most rates it is enshrined in the amendment of the United States Constitution and is the Liberty that is treasured by Americans and has allowed democracy to flourish from the John Peter Zenger acquittal in 1735 wherein a jury refused to judges instructions to convict a newspaper publisher for publishing damaging information about the royal governor to Brandenburg V Ohio where the Supreme Court reversed the incitement conviction of the KKK leader on freedom of speech grounds - the Pentagon Papers case in which the Supreme Court stopped the government from preventing the New York Times from publishing classified information regarding the Vietnam War there is a long and storied tradition of freedom of speech in our culture and in our legal system the theory behind free speech is based on a model of marketplace of ideas the belief is that if a state protects free speech there will be competing ideas and robust debate that could advance a country and its democracy the marketplace of ideas theory rests on the presumption that truth is best obtained by free speech regardless of agreement with the ideas being expressed the marketplace of ideas leads to two essential benefits the first is that it can lead to an informed citizenry who is more active and engaged second is that a marketplace of ideas will allow for decision making processes that are more open to the entire citizenry as a result stronger and more impactful decisions can be reached by the government and its citizens it must also be noted that freedom of speech includes more than just the right to verbal expressions it also includes the right to take part in other forms of expression such as advertising products producing and promoting visual arts and engaging in symbolic speech such as wearing clothing designed to send political messages a content-based regulation is a restriction on speech or expression that is based on the substance of the message being communicated rather than the method or manner in which the message is being expressed for example a local regulation that says you can make a speech in a park if it's merely informative or educational but not if politically contentious is a content-based restriction to be valid these restrictions must pass strict scrutiny to pass a strict scrutiny analysis the government must prove that the content-based restriction is the narrowest means necessary to achieve a compelling government interest strict scrutiny is a very difficult standard to meet and it is rare that laws subjected to strict scrutiny are upheld its analysis is fact intensive but some general principles help guide courts first a law restricting speech is not narrowly tailored if it restricts a significant amount of speech that doesn't involve this compelling government interest for example the Supreme Court struck down New York's Son of Sam law that ordered proceeds from criminals telling their stories be turned over to the public for eventual distribution to crime victims the court ruled that the state had not shown that its law was narrowly tailored to the state's objective of compensating victims because the law was over inclusive it applied to works on any subject authored by a person convicted of a crime and so did not always further victim compensation further illustrating this principle of strict scrutiny is that narrower more clearly defined similar laws have in fact passed constitutional scrutiny moreover a compelling government interest is not one that is merely furthered by a restriction on speech the government must demonstrate using simple common sense of the interest is important and crucial to achieving a desired governmental goal Buckley v Valeo presented another example of a content-based limitation on speech being analyzed by the Supreme Court the federal election campaign Act of 1971 limited campaign contributions limited election expenditures and required disclosures of campaign contributions the Supreme Court upheld restrictions on individual contributions to political campaigns but struck down other restrictions such as limitations on independent expenditures on campaigns limitations on expenditures by candidates of their own money on their own campaigns and limitations on total campaign expenditures the court did acknowledge that the government had a compelling interest in restricting campaign finance to some extent but this was to limit undue influence that an individual contributing greatly to a campaign may have over a candidate tangentially the court's ruling in this case set the stage for the highly controversial case almost thirty years later in Citizens United v Federal Election Commission that granted corporations the constitutional right to attempt to influence political elections in boos V Barry the court analyzed a Washington DC statute that banned people from displaying signs with messages that tended to bring foreign governments into public disrepute within 500 feet of the country's embassy in boozes case he and his fellow protesters were prohibited from displaying signs criticizing the Soviet Union in front of the Soviet Union's embassy the court had to determine whether the District of Columbia's justification for the statute passed strict scrutiny because the statute regulated the expression of protesters as viewpoints a content-based restriction the court held that the prohibition failed to pass strict scrutiny because the government's arguments that the limitations were necessary to keep peace and security were not compelling enough to validate the sign ban content-neutral restrictions also known as time place manner and restrictions are laws that prohibit or limit communication without regard to the message conveyed thus they are justified without reference to the content of the regulated speech these regulations are subject to a lesser degree of scrutiny than content-based restrictions because these regulations are not necessarily designed to curtail public discourse content-neutral restrictions will be constitutional if the government demonstrates that the restrictions are content-neutral are serving an important government interest and leave open ample alternative channels of communication in United States v O'Brien David O Brien burned his draft card on the steps of the South Boston courthouse to protest the Vietnam War he was convicted under the selected Service Act for violating the no willful struction of draft cards mandate the Supreme Court of the United States upheld the federal statute and reasoned that it was a valid time place and manner restriction on speech the court found that the acts prohibition of burning draft cards furthered a legitimate government interest which was to ensure a smooth and proper functioning of the system that Congress has established to raise armies additionally the Court determined that even though the Act prohibited one type of speech O'Brien still had numerous alternative means to communicate as a position to the Vietnam War in other words while the government could not prohibit protesting the Vietnam War it could punish this method of protest which served to curtail the functioning of the draft in Heffron V International Society for Krishna consciousness a Minnesota rule had restricted the sale or distribution of any merchandise at the state fair without a license from the state this prevented the plaintiffs from carrying out a religious ritual of going into public places to distribute or sell religious literature and to solicit donations the Supreme Court held that the Minnesota rules were valid content-neutral restrictions the court reasoned that the rule was content-neutral because it didn't target the religious groups subject matter and was applied equally to all organizations second the state proved that its interest in limiting the distribution and sale of written materials at its fair location was necessary to prevent congestion on the fairgrounds this was a sufficient government interest to justify these limitations on the group's speech finally individual members of that group could still freely pass out their literature outside of the fairgrounds so alternative channels for communication existed the willingness of American courts to protect freedom of speech even when potentially sacrificing some security embodies the famous Benjamin Franklin quote those who would give up Essential Liberty to purchase a little temporary safety deserve neither liberty nor safety while the freedom of speech is certainly not unlimited courts are sworn to protect this critical right except to the narrowest extent required to preserve the public safety

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Keywords: First Amendment, Constitutional Law, Freedom of Speech, first amendment rights, first amendment bill of rights, freedom of speech crash course, freedom of speech definition, freedom of speech explained, freedom of speech examples, freedom of speech first amendment, constitutional lawyer, constitutional law lecture, constitutional law review, constitutional law class, constitutional law bar exam, constitutional law and constitutionalism, constitutional law bill of rights

Id: 5o7tuB8uoqE

Length: 9min 10sec (550 seconds)

Published: Thu Apr 23 2020