First Amendment Law in a Nutshell
Author:
Barron, Jerome A.
Edition:
5th
Copyright Date:
2018
16 chapters
have results for Communications
Chapter II First Amendment Methodology 8 results (showing 5 best matches)
- recognizes a distinction between freedom from prior restraint and freedom from subsequent punishment. A prior restraint prevents a communication from entering the marketplace of ideas. Subsequent punishment assumes that the communication has entered the market and the question is whether the disseminator of the communication can be punished. For many, freedom from prior restraint is the more important freedom. The original rationale for the prior restraint doctrine was historical.
- , the Court did hold unconstitutional a law prohibiting homeowners from displaying signs but also providing for numerous exceptions, even assuming that it was a content-neutral law. The law prohibited too much protected expression, almost completely foreclosing a unique and important means of communication. The Court questioned whether there were adequate communication alternatives to the banned signs. But in spite of
- What rationale other than history exists for the presumption against prior restraint? Professor Thomas I. Emerson has provided a rationale for the expanded prior restraint doctrine: “A system of prior restraint is in many ways more inhibiting than a system of punishment; it is likely to bring under government scrutiny a far wider range of expressions; it shuts off communication before it takes place; suppression by a stroke of the pen is
- , this is an overstatement. Rather, when using content-based restrictions, government must demonstrate that the communication falls into one of
- : “A government regulation is sufficiently justified . . . if it furthers an important or substantial government interest; if the government interest is unrelated to the suppression of free expression; and if the incidental restriction of alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Sometimes in reviewing content-neutral time, place and manner regulations of “public forums” (See Ch. IX, A), the courts require that content-neutral laws regulating the public forum be “narrowly-tailored to serve a significant government interest and leave open ample alternative channels of communications.”
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- The Court viewed limitations on expenditures as direct restraints on political speech but statutory caps on political contributions only serve as a limited restriction on an individual’s ability to engage in political communication. Of course, such limits obviously inhibit an individual’s ability to engage in political communication. But in no way do they present an individual from being able to freely discuss the merits on demerits of a political candidate. A critical point is that a contribution involves speech by a third party and not by the contributor.
- to apply they had to be unrelated to expression. Nor could the spending limitations be treated simply as time, place and manner regulation. The limitations imposed by the Act were direct restraints on the quantity of political communication. Such restrictions reduce “the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.”
- , the Court, 5–4, per Justice Kennedy, struck down as facially unconstitutional those provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA) (which within specific timeframes) prohibited corporations and unions from using their general treasury funds to make independent expenditures for speech engaging in “electioneering communication” or for speech expressly advocating the election or defeat of a candidate. Prior rulings in
- determination that the group’s message was worthy of communication and even of support. A moving, expressive parade was not a context similar to the shopping centers in
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Index 5 results
Table of Cases 2 results
Chapter V Obscenity and Indecency 10 results (showing 5 best matches)
- accorded to a communication containing such patently offensive sexual and excretory language need not be the same in every context.” The social value of speech, he declared, varies with the circumstances. It was appropriate to consider the indecent content of the speech in the special context of broadcasting: “And of all forms of communication, it is broadcasting that has received the most limited First Amendment protection.” Just as in
- The Internet, unlike broadcasting, had no history of regulation. On the contrary, the Internet had developed as an unregulated communications medium. Technological scarcity had justified the more deferential review accorded to broadcast regulations but the Internet was not a scarce medium at all. Therefore, Justice Stevens reasoned, there was no basis for reducing the degree of scrutiny which should be applied to the Internet. The Court decided to leave the Internet unregulated and concluded that the most effective way to do that was by applying the strict scrutiny standard of review. Indecent speech ...a right to receive indecent speech if less restrictive means were available to protect children. It had not been shown that this was not the case. Indeed, software might well be available to limit the access of children to indecent material on the Internet. Since more narrowly tailored alternatives were available, the challenged provisions of the Communications Decency Act failed...
- particular communications medium may be critical in assessing the First Amendment validity of a regulation.
- Of course, Justice Stevens observed, each communications medium raised its own unique issues, but there was no justification for less than full protection for the Internet. The deferential review applied to broadcasting was not appropriate for the Internet. Broadcasting received more limited protection than other media because warnings could not prevent the listener from being surprised by unwanted program content. Such surprise was unlikely on the Internet because one had to undertake a number of affirmative steps to access it. Unlike the case with broadcasting, a child had to have some degree of ability and sophistication to use the Internet.
- ...forum may not be based on content alone, and may not be justified by reference to content alone.” But for the plurality, this did not mean that the sexual content of the material could not be used as a basis for the regulation. Two considerations were critical for the Court. First, the use of content in the Detroit zoning ordinance was done “without violating the government’s paramount obligation of neutrality in its regulation of protected communication.” Simply, the law was not viewpoint-based; it distinguished only on the basis of subject matter. However, subject matter discrimination is usually enough to involve the presumption against content-based regulation. Second, “it is manifest that society’s interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate. . . .” Justice Stevens reasoned that “few of us would march our sons and daughters off to war to preserve the citizen’s right to...
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Chapter I Text, History and Theory 2 results
- Critics of the marketplace model challenge the premises of the theory as well as whether a marketplace of ideas comports with contemporary reality or indeed ever existed. They challenge the assumption that a marketplace of ideas will produce truth. They question whether the receptors of communication are the rational decision-makers the model necessarily posits. Successful appeals to our emotions and our basic instincts, the ability of opinion-makers—and demagogues—to condition behavior, our natural tendencies to conformity and habit, all challenge reliance on unfettered dialogue as a response and a remedy for harmful ideas.
- How are the absolutist words of the First Amendment and the fire metaphor of Justice Holmes to be reconciled? Consider again the First Amendment text. The constitutional guarantee protects against an “abridging” of the “freedom of speech.” Not every restriction on speech necessarily constitutes an “abridging” of the right. Nor does the phrase “the freedom of speech or of the press” necessarily mean that all variants of the spoken or the written word are protected. Of course, even this more modest approach to the language of the First Amendment presents its own analytical problems. What constitutes an “abridgment”? What communication should be subsumed under the phrase, “the freedom of speech or of the press”? One approach to these problems of interpretation would be to consider the original intent of the Amendment’s Framers. What was the scope of protection envisioned by those who wrote, defended and enacted the First Amendment?
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- , privacy concerns arose in the context of federal and state wiretap laws prohibiting not only nonconsensual eavesdropping, but also use and disclosure of the intercepted communications if the user has knowledge or reason to know of their illegal source. When the press published the contents of such an illegally intercepted communications between union officials discussing a strike during which the possibility of violence was discussed, the union official sued under the wiretap laws. The Court, per Justice Stevens, held, 6–3, that the disclosures were protected by the First Amendment and the wiretap laws, as applied, were unconstitutional. While the wiretap laws was content-neutral regulation, Justice Stevens said it involved a direct regulation of speech, not conduct. Relying on
- ...self-censorship from departing from the actual malice rule. But free speech interests had to be balanced against the competing legitimate state interests in compensating individuals for the harm they suffer from defamatory falsehood. Two factors were cited by Justice Powell as justifying a lesser degree of constitutional protection in libel actions by private figures. First, “[p]ublic officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.” The private libel plaintiff’s lack of means of self-help enhanced the state’s interest in the balancing analysis. Justice Brennan, dissenting, argued that effective access to the media for self-help was seldom available to any libel victim regardless of status. Second, Justice Powell cited the “compelling normative consideration” that public figures voluntarily choose...
- Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978)
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Chapter IX The Public Forum 4 results
- channels of communication still open to CLS when it did not accept the all-comers policy. The burdens on CLS were, on balance, incidental ones.
- content-neutral time, place and manner regulations if they are “narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.”
- the distribution ban was an unreasonable time, place and manner regulation. The distribution ban was not narrowly drawn and did not leave open alternative channels of communications. Problems of congestion could be dealt with by a more narrowly drawn regulation. Chief Justice Rehnquist, now writing in dissent, joined by Justices White, Scalia and Thomas, saw no difference between the risks and burdens of in-person solicitation and distribution. “Chief Justice Rehnquist would have upheld both bans.
- , the Court noted that “the type of focused picketing prohibited by the ordinance is fundamentally different from more generally directed means of communication that may not be completely banned in residential areas.”
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Chapter XIII Freedom of the Press 5 results
- wrote the following: “Our constitutional theory is in the grip of a romantic conception of free expression, a belief that the ‘marketplace of ideas’ is freely accessible. But if ever there were a self-operating marketplace of ideas, it has long ceased to exist. [A] realistic view of the first amendment requires recognition that a right of expression is somewhat thin if it can be exercised only at the sufferance of the managers of mass communication.” Barron,
- , which validated sanctions for indecent expression over the radio, Justice Stevens tellingly observed: “[O]f all forms of communication, it is broadcasting that has received the most limited First Amendment protection.”
- political candidates. This “reasonable access” requirement became Sec. 312(a)(7) of the Federal Communications Act. The Carter-Mondale Presidential Committee requested that the major networks provide time for a 30-minute program in the early part of December 1979. The networks declined to provide such time and the Committee contended that the “reasonable access” provision was violated. The FCC and the federal appellate court agreed.
- there has been an explosion of new technologies. We have witnessed the emergence of cable television and satellite communications not to mention the internet. In the light of the multiplicity of electronic forums now available, the scarcity rationale, which was used to justify treating the broadcast media differently than the print media, has come under reexamination. Although the Supreme Court has recognized the diminishing force of the scarcity rationale,
- cable. Public access requirements were an infringement on the editorial discretion of cable operators. Justice Breyer, on the other hand, would leave open the question of “whether the interests of the owners of communications media always subordinate the interests of all other users of a medium.” Justice Stevens made a distinction between leased access and public access channels. Public access channels were created by local governments. The federal government had no more power to censor the programming on public access channels created by local governments than they had power to censor the programming of cable operators on channels they owned. Justice Souter, like Justice Breyer, took a practical rather than a doctrinal approach: “[B]ecause we know that changes in these technologies will enormously alter the structure of regulation itself, we should be shy about saying the final word today about what will be accepted as reasonable tomorrow.”
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Preface to the Fifth Edition 1 result
- The Supreme Court whose work in the First Amendment field is summarized in this book has itself experienced loss and changes since the Fourth Edition. Justices Souter and Stevens retired and were succeeded by Justices Sotomayor and Kagan. More recently, Justice Scalia died in 2016 and was succeeded by Justice Gorsuch in 2017. Such changes affect, at least to some degree, the substance and direction of First Amendment law. The book has always had as its intended readership students and faculty in First Amendment law, communications law, internet law and allied fields. Lawyers and journalists have found previous editions useful. Hopefully, that will be true of this edition as well.
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- rule into its already confused jurisprudence on government employee speech. Justice Kennedy wrote for a 5–4 majority stating: “We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communication from employer discipline.”
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- Court answered by saying that such expression does not contribute to the exposition of ideas or the search for truth. Any benefit to society from such speech is outweighed by the societal interest in order and morality. Commentators have likened fighting words to verbal assaults, more akin to conduct than the communication of ideas. Fighting words exemplify what Justice Douglas meant when, concurring in
- . A young man who wore a jacket bearing the words, “Fuck the Draft” while in a courthouse was convicted for disturbing the peace. In overturning his conviction, Justice Harlan assumed that the basis for the conviction was the offensiveness of the words on Cohen’s jacket and not any conduct on his part. He questioned whether it was appropriate for the state to punish such communication absent any proof of incitement to illegal conduct. The message did not fall into any of the established categories of low value speech such as fighting words or obscenity. Neither did a captive audience rationale apply. If Cohen’s jacket upset a spectator in this public place, it was easy enough for the spectator to look away. The real issue for Justice Harlan in
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Chapter VIII New Categories? 1 result
- , the Court, per Justice Scalia, struck down a California law which prohibited the sale or rental of violent video games to minors without the consent of a parent. The law banned video games which gave players options such as “killing, maiming, dismembering, or sexually assaulting an image of a human being.” Video games communicate ideas, Justice Scalia declared, and are as entitled to First Amendment protection as are the books, plays, and movies which preceded them. The “basic principles of freedom of speech and press” do not vary when a new medium of communication arises.
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Chapter VII Commercial Speech 1 result
- , the Court, 6–3, per Justice Kennedy, struck down a Vermont law which prohibited pharmacies from selling the prescribing practices of individual physicians without their consent to pharmaceutical manufacturers. The law was an unconstitutional burden on speech. Pharmaceutical manufacturers promote their drugs to physicians through a marketing program called “detailing.” Detailers provide drug samples and medical reports that set forth the merits of prescription drugs. Knowledge of prescriber-identifying information helps detailers to market their drugs. The law did not entirely prohibit the sale and disclosure of prescriber-identifying information. For example, it did not apply to “educational communications.” By prohibiting the sale of prescriber-identifying information by pharmacies to pharmaceutical manufacturers, the law targets marketing and, therefore, focuses on speech with a particular content. Therefore, the law is content based. The law also disfavored certain speakers,
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Chapter X Expressive Conduct 1 result
- . Scalia simply justified the state statute on the ground of the state’s interest in morality. Nor did the application of the law to public nudity require any First Amendment inquiry. Unlike the flag burning cases, the purpose of the Indiana public indecency law was not designed to suppress communication. A difficulty with Scalia’s position, and indeed in this respect with Rehnquist’s, is that they simply assume that public nudity is just conduct. They do not grapple with the problem that nudity itself may convey an idea—and an erotic one at that. Insofar as Rehnquist even considers this problem, he does so from the basis that nudity is symbolic speech but that nudity is only incidentally or secondarily regulated under the
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- Publication Date: November 20th, 2017
- ISBN: 9781683283164
- Subject: First Amendment
- Series: Nutshells
- Type: Overviews
- Description: This product provides a short and readable source for individuals interested in constitutional law, First Amendment law, and communications law. It is divided into four parts: the history, methodology, and philosophical foundations of the First Amendment; topics such as First Amendment issues that arise in cable television and in regulating children's access to the Internet; issues in First Amendment law such as the public forum doctrine, the compelled speech doctrine, and the free expression rights of government employees; and the text, history, and theory of the religion clauses, chronicling the ongoing battle in the Supreme Court between accommodationists and separationists. The Fifth Edition brings the book up to date with modern First Amendment jurisprudence, including a focus on racist and offensive speech, electoral spending, and other topics covered by recent Supreme Court cases and discussions.