The First Amendment, 4th
Author:
Farber, Daniel A.
Edition:
4th
Copyright Date:
2014
12 chapters
have results for Communications
Chapter 11. The Media 12 results (showing 5 best matches)
- Communications law is one of the most rapidly evolving areas of the law today. Communications are also among the most rapidly evolving areas of technology. Cable has changed from a back-up system for people with bad television reception into the dominant method of receiving programming. The Internet, which began as a government-funded curiosity, is now a major avenue of communication. Billions of dollars are invested based on
- In terms of general First Amendment doctrine, Powell seems to have the better argument. Disclosure orders are content-neutral regulations that affect speech, and should be subject to at least some mid-level scrutiny. Thus, courts should ensure that the order serves a significant government interest and is narrowly tailored to the government’s needs. (Indeed, because the order is individually targeted rather than directed equally at the public at large, it may present some of the same special risks as injunctions against protestors. Recall from Chapter 9 that in the abortion protest cases, the Court subjected such injunctions to semi-strict scrutiny.) True, disclosure does not directly prohibit communication with sources, but it does burden the communication in a way that the Court has ...legislative investigations into political associations are limited because of the impact of disclosure on free association. And in cases involving communications in the executive branch, the Court...
- It seems inevitable that government policies will play a role in shaping the future of new communication technologies. Even if the government avoids content regulation entirely, it is involved in various subsidies of new technologies, it is a major user of those technologies, and it has regulatory jurisdiction over many of the business aspects of the communications industry. In deciding how to exercise its powers, the government will inevitably consider what kind of communications system it will favor in terms of numerous social goals. These goals include economic efficiency, equal access,
- Jim Chen, The Last Picture Show (On the Twilight of Federal Mass Communications Regulation), 80 Minn. L. Rev. 1415 (1996)
- Whether or not it was fully principled, at least this seemed to be a clear, understandable rule. However, the rise of new communication media such as cable television would soon blur the boundaries. In a 1992 statute that built on earlier FCC rules, Congress required cable systems to transmit local commercial and public broadcasting stations, subject to some restrictions. After extraordinarily lengthy and complex litigation, the Supreme Court ultimately upheld the “must carry” provisions.
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- This sounds as if the First Amendment applies only to oral or printed communication. But other forms of communication are also protected, including not only the electronic media but also unconventional forms of “symbolic speech” like flag burning.
- of communication. The classic example is that it can forbid the use of loudspeakers in the middle of the night, whatever the message may be. These restrictions on the “time, place, or manner” of speech are subject to some judicial scrutiny, but are likely to be upheld if at all reasonable.
- Part II turns to the categories of “unprotected speech.” More accurately, it deals with categories of disfavored messages, which the government can regulate except in certain circumstances. Historically, the most important disfavored category has been advocacy of illegal action. This is the subject of Chapter 4, which also takes a more detailed look at some key First Amendment history. Chapters 5 through 8 deal in turn with defamation; offensive communications and hate speech; obscenity and pornography; and commercial speech.
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Chapter 7. Sexual Material 3 results
- The pornography debate also raises the more general question of whether we should recognize new categories of “unprotected speech”—or more accurately, of disfavored communications. The Supreme Court has been extremely reluctant to do so. But why
- With all this said, however, the argument against recognizing new categories—or against radically revamping old ones, as in the case of the civil rights approach to obscenity—can amount to no more than a strong presumption. The fact that we have failed to suppress a type of communication in the past is a strong reason for questioning the legitimacy of doing so in the future, but it should not be completely decisive, especially when circumstances have changed dramatically.
- Given this kind of content neutrality, the Court said the appropriate test was whether the ordinance is designed to serve a substantial governmental interest and allows reasonable alternative avenues of communication. The Court found this test easily satisfied in light of the governmental interest in preserving the quality of urban life. Additionally, the city was justified in relying on the experience of other cities rather than studying the problem independently. Furthermore, the ordinance left legally open five percent of the entire land area for adult theaters, which the Court considered ample even though the lower courts had found there was actually no commercially available land for this use. Although as a practical matter the ordinance might foreclose adult theaters, their proprietors “must fend for themselves in the real estate market”; if they can’t find a suitable location, that’s their hard luck but is not constitutionally relevant.
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- We will focus on the Court’s treatment of the expenditure and contribution limits. The key to the Court’s analysis was its determination that strict scrutiny applied. The government had argued that spending money was conduct rather than pure speech, so that the regulations should be considered the equivalent of restrictions on symbolic speech. The Court firmly rejected the suggestion that “the dependence of a communication on the expenditure of money operates itself to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amendment.” Moreover, the government interests underlying the statute did not satisfy the requirement of being unrelated to the suppression of free expression. These interests included “restricting the voices of people and interest groups who have money to spend ...rationale for the statute “arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful.” Having decided that...
- The Court was less hostile to the contribution restrictions. Unlike restrictions on expenditures, “a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor’s ability to engage in free communication.” Such a contribution “serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support.” Thus, a contribution limitation places “little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor’s freedom to discuss candidates and issues.” In short, the Court seemed to consider contribution restrictions to involve primarily associational rather than speech rights, and to burden those rights only marginally. The Court found ample justification for the restriction:
- The increasing importance of the communications media and sophisticated mass-mailing and polling operations to effective campaigning make the raising of large sums of money an ever more essential ingredient of an effective candidacy. To the extent that large contributions are given to secure a political
- ...rather than merely theoretical restraints on the quantity and diversity of political speech.” The $1000 limit on individual expenditures “would appear to exclude all citizens and groups except candidates, political parties, and the institutional press from any significant use of the most effective modes of communication.” The restrictions on spending by campaigns and parties were less severe, but would still have required restrictions on the scope of past federal campaigns. The Court found the interests invoked by the government to be insufficient to justify the spending restrictions. The danger of corruption was not sufficient to justify the expenditure limitations, as independent expenditures did not pose a major danger of real or apparent corruption. Moreover, in order to avoid vagueness, the statute had to be construed to apply only to ads that “in express terms advocate the election or defeat of a clearly identified candidate.” As so construed, however, the...
- Court, in order to avoid overbreadth concerns, had construed the statute to apply only to ads containing “express advocacy” of a candidate. Section 203 expanded the ban to include all “electioneering communications.”
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Chapter 2. The Content Distinction 5 results
- Finally, it must leave open “ample alternative channels for communication of the information.”
- is that they uphold the government regulation. Except for statutes that entirely foreclose a traditional channel of communication such as lawn signs, the Court rarely invalidates a regulation once it has found it to be content neutral. Even the presumption against closing a channel of communication is unreliable: the Court had little difficulty in upholding a ban on attaching posters to utility poles.
- , is that the type of selectivity must be “such that there is no realistic possibility that official suppression of ideas is afoot.” Presumably for this reason, the state can legitimately choose to regulate advertising in one industry but not another, or in particular communication media rather than others.
- , see the discussion of hate speech in Chapter 6.) Justice Scalia’s majority opinion viewed the ordinance as impermissible content discrimination. The ordinance allowed abusive communications, “no matter how vicious or severe,” unless they related to one of the prohibited categories. Under the ordinance it was perfectly permissible to use fighting words “to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality.” Indeed, Justice Scalia considered the ordinance to be even more fatally flawed, because it prohibited only the use of fighting words to support racist or sexist viewpoints, not to oppose those viewpoints. Thus, it was an example of impermissible viewpoint discrimination.
- ...is that the First Amendment generally takes an anti-paternalistic attitude toward the recipients of communications. Listeners are expected to decide for themselves what they want to hear and whether they believe it. Those who are offended by speech are expected to take care of themselves. The audience is not considered to be in need of protection. Because there is a strong presumption that communicative impact is “no problem,” a statute that relies for its justification on such an impact must carry a heavy burden. The difficulty with this argument for content neutrality is that it is too narrow. It applies to content restrictions only when they are based on the forbidden causal link. But this is quite often not true, especially for restrictions based on subject-matter. For example, the “Son of Sam” law was not based on the idea that the criminal’s book would have a harmful effect on the audience. Also, the argument may overstate the breadth of the anti-paternalism...
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Chapter 9. Public Property 14 results (showing 5 best matches)
- The third category is the nonpublic forum. Public property “which is not by tradition or designation a forum for public communication” is subject to broad state control. Not only are time, place, and manner regulations proper, but the state may also “reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Thus, for example, the government could limit the use of the driveway in to transportation rather than communication. Government decisions about these nonpublic forums receive relatively casual judicial scrutiny:
- The Court had little difficulty in finding that the “narrow tailoring” standard was met. The Court also found that the guidelines left ample alternative means of communication, since it did not restrict access to the bandshell but merely reduced volume.
- Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege . . . to use the streets and parks for communication of views on national questions may be regulated in the interest of all; . . . it must not, in the guise of regulation, be abridged or denied.
- The second category, according to Justice White, is the limited forum. Property that has been opened as a forum for public communication is treated as a public forum so long as it remains open, but the government has the option of closing it off entirely. This “limited public forum” category accounted for
- Implicit in the concept of the nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker identity. . . . The touchstone for evaluating these distinctions is whether they are reasonable in light of the purpose which the forum at issue serves. . . . [W]hen government property is not dedicated to open communication the government may—without further justification—restrict use to those who participate in the forum’s official business.
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Chapter 3. The First Amendment Toolkit 6 results (showing 5 best matches)
- The constitutional references to “speech” and the “press” could be read to protect only verbal communications. However, people communicate in a variety of other ways, some of which we have already seen. Some people, for example, express their views by burning flags, draft cards, or crosses. (Given the central role of fire in the lives of early humans, perhaps it is not surprising that combustion still carries a strong emotional charge.) The modern Supreme Court seems to have little difficulty in finding these activities sufficiently communicative to come within the scope of the First Amendment. Apparently, Americans in the early days of the Republic also recognized that symbolic conduct implicated freedom of speech. These non-verbal activities are often called “symbolic speech.”
- Much of First Amendment law, however, is more narrowly focused. In Part II, we will examine the doctrines governing regulation of specific categories of speech, such as incitement to violence and defamation. These doctrines are outgrowths of the old two-tier theory, in which these categories of expression were considered as much outside the protection of the First Amendment as riding a bicycle or cooking a pizza. The situation today, as we will see, is quite a bit more complicated. In Part III, we will turn to the government’s special interests in regulating speech in certain contexts, usually when the speaker or the channel of communication has some direct tie to the government. Sometimes, but not always, the government can regulate speech by its employees, grantees, licensees, and “wards,” when ordinary citizens would be constitutionally entitled to speak without hindrance.
- regulation is content neutral. Thus, the government is generally unhampered in enforcing a general regulation unrelated to the protestor’s intended message, even if we do classify the conduct as speech. In contrast, if the government regulation is based on a protestor’s intended message, the government cannot very well deny that the protestor is engaged in an act of communication. Either way, the crucial question is no longer, “Does the defendant’s conduct constitute speech?”, but rather, “Is the government’s regulation based on content?”.
- of the case is often more important: how has the government written the regulation at issue? Thus, today, the First Amendment is as much about which laws the government can pass as it is about what communications people can make. Contrary to what a lay person might think, the right question to ask is usually not, “Did the defendant have a constitutional right to engage in this conduct?” Instead, it is more often, “Has the government written a permissible rule for regulating this conduct?” By emphasizing what the government has done, as much as what the speaker has said, this approach may be (perhaps unwittingly) mirroring the text of the First Amendment itself. After all, the Amendment does speak in terms of what kinds of “laws” Congress can “make,” rather than solely in terms of what rights are possessed by speakers.
- , overbreadth is closely related to another problem: unconstitutional vagueness. Anyone reading the ordinance would surely know that it would not be applied across its full literal scope. But what the reader would not know is which particular activities would actually be covered and which would not be covered. Would the airport distinguish between passengers and other speakers? Would it draw a line between verbal communications and written leaflets? Or would enforcement simply depend on how any particular airport employees felt about a specific speaker? In effect, assuming it was not given its full literal
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- Even in 1971, no one could have argued with a straight face that “four-letter words” could be banned in all books or movies. But the public display of the same words could be considered different. The reader of a book, after all, has made a voluntary decision to expose himself to the author’s words, but visitors to the Los Angeles courthouse had not made a deliberate decision to expose themselves to the motto on the jacket. Presumably, people have some right to avoid being involuntarily forced to confront unwelcome communications. For example, no one has the right to park outside someone’s house and expose them for hours on end to offensive language on a loudspeaker.
- , the Court has not upheld captive audience claims except where individuals have been unwittingly exposed to offensive communications within the home. For instance, in
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Chapter 8. Commercial Speech 2 results
- Once we discard the idea that some categories of communication simply are not “speech” at all for First Amendment purposes, we must recognize that First Amendment doctrine provides varying levels of protection to different kinds of speech.
- of the Court’s traditional reluctance to assess the merits of economic legislation. Instead, it did not hesitate in giving constitutional status to its own view of economics, which was that price competition is favorable to consumers. Rejecting the argument that consumers would seek the lowest prices regardless of the quality of service, the Court proclaimed the existence of “an alternative to this highly paternalistic approach.” That alternative is “to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.” In short, the Court said, “[i]t is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us.”
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Chapter 4. Illegal Advocacy 1 result
- ...1, there is questionable historical warrant for the idea that the Framers intended such sweeping protection for speech. Historically, some restrictions on speech such as obscenity and libel laws were well entrenched and little questioned. Moreover, society clearly has a legitimate interest in regulating many kinds of communicative activities, such as false advertising, solicitations of bribes by public officials, and agreements to fix prices. Other communicative activities, such as parades, broadcasting, and picketing, seem to require government regulation because of their ability to interfere physically with the activities of others. Supporters of the absolutist approach attempted to deal with these situations in several ways: by saying that the government was regulating the “conduct” aspect of the behavior rather than the “speech” aspect, by classifying certain activities as non-speech even though they involved communication, or by calling them “speech brigaded with action...
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Chapter 5. Defamation and Other Torts 5 results
- ...“false, scandalous, and malicious writing” about the government. The great disputes at common law had been over whether truth was a defense and whether the jury was limited to deciding the mere fact of publication. The Sedition Act resolved both of these issues in favor of the defendant, which made it a somewhat progressive piece of legislation (compared with the English common law, at least). Nevertheless, the Sedition Act served as a powerful tool for the Federalists to attack their enemies, and in return was vigorously attacked as a violation of the First Amendment. In the Virginia Resolutions of 1798, which were drafted by James Madison, the Virginia legislature criticized the statute as a violation “of the right of freely examining public characters and measures, and of free communications among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.” The constitutionality of the Act never reached the Supreme Court, though it...
- Harte-Hanks Communications v. Connaughton
- A Florida newspaper was found liable for publishing the name of a rape victim, in violation of a state law prohibiting “any instrument of mass communication” from printing the name of a victim of a sexual offense. The newspaper had obtained the name from a police report, which was inadvertently released to the press without deleting identifying information. As a result of the publication, the victim and her mother were exposed to anonymous phone calls, and they had to seek police protection and obtain mental health counseling. The jury awarded $75,000 in compensatory damages and $25,000 in punitives. Justice Marshall’s opinion for the Court reversed the damage award, but refused to go as far as to say the press can
- The suit had been brought under a federal anti-wiretapping law, which makes it illegal to intercept cell phone calls and other electronic communications. The statute provides a private cause of action against anyone who discloses the contents of illegally intercepted material. The plaintiff, who was the chief negotiator for a local teacher’s union, had used the cell phone in her car to call the union’s president. During a discussion of the negotiations, the union president had said, “If they’re not gonna move for three percent, we’ll gonna have to go to their, their homes. . . . To blow off their front porches, we’ll have to do some work on some of those guys.” After the school district entered into a contract favorable to the union, a radio talk show broadcast a tape of the conversation.
- Justice Stevens’ majority opinion conceded that individuals have a strong interest in the privacy of their communications. But in this case, “privacy concerns give way when balanced against the interest in publishing matters of public importance.” In a concurring opinion, Justice Breyer (joined by Justice O’Connor) stressed that the Court’s holding was limited to the “special circumstances present here,” including the radio station’s complete lack of involvement in the original interception itself and the unusual public significance of the information (involving a threat of physical harm). Dissenting, Chief Justice Rehnquist, joined by
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- Publication Date: September 30th, 2014
- ISBN: 9781628100143
- Subject: First Amendment
- Series: Concepts and Insights
- Type: Hornbook Treatises
- Description: Written by a leading national scholar, Farber's coverage of the First Amendment is clear and incisive. All of the major areas of this complex doctrine are reviewed, including the religion clauses. The text also probes theories of free speech and debates over controversial issues such as campaign finance, hate speech, and religious exemptions.