Ch 2: The First Amendment

Topic Overview
Due to vague text within the First Amendment there are multiple ways to interpret its meaning. Various approaches exist to the text: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof: or abridging the freedom of speech, or of the press: or the right of the people peaceably to assemble, and petition the government for a redress of grievances", as the Courts struggle to define the jurisdiction of these ideas. Justices interpret the amendment in numerous ways, including original intent and ad hoc balancing. However, there are certain categories of speech the courts have ruled are unprotected. Unprotected speech includes fighting words, obscenity, defamation, blackmail, extortion, and various other true threats to national security. 

The First Amendment was originally intended to prevent the U.S. from enacting oppressive laws similar to those in England following the birth of the printing press. Numerous theorists and authors including John Milton, John Locke, and Jean-Jacques Rousseau influenced and outlined ideas which would serve as the basis of the First Amendment. The U.S. eventually rejected seditious libel and prior restraints, allowing for criticism of the government. 

As no explicit definition of "the freedom of speech and of the press" exists, the Supreme Court interprets the First Amendment as a means to further certain social functions and values. Another view regards free speech as valuable in and of itself, seeing it as an end rather than a means. Both viewpoints aim to provided guidelines for determining what types of speech should be protected and to what degree. This is further brought into question upon the emergence of mass media and its unique nature. 

The Courts have generally ruled against prior restraint, regarding it as being directly opposed to freedom of speech and of the press. Only in rare cases has the Court justified prior restraint. The Court also must examine whether certain laws violate or are protected by the First Amendment. Content based laws generally are unconstitutional whereas content neutral laws are generally accepted as advancing a legitimate government goal or social function. Courts utilize the O'Brien test to determine if a law is content neutral. The highest degree of protection is given to political speech. The Courts also govern the use of space in regards to free speech, imposing rules in designated public forums as to what is permissible. 

Defining Key Terms
Categorical Balancing: A judge's or court's practice of deciding cases by weighing different broad categories such as political speech against other categories of interest such as privacy to create rules that may be relevant in future similar situations. 

Prior Restraint: Government action to prohibit the publication of a specific text before it is distributed to the public. 

Injunction: A court order prohibiting a person or organization from doing a certain specified act. 

Content Based Laws: Laws that regulate what may be said; singling out messages for punishment specifically due to the government's dissatisfaction with its ideas. Unconstitutional. 

Content Neutral Laws: Laws restricting when, where, and how ideas are expressed. Said to advance public interests and government goals. Constitutional. 

Important Cases
Near v. Minnesota (1931): The Supreme Court ruled that prior restraint on The Saturday Press in Minneapolis was unconstitutional. Recognizing the freedom of the press, rejecting prior restraint as an infringement on First Amendment rights. 

New York Times Co. v. United States (1971): The Supreme Court rejected Nixon's injunction to stop the publication of the Pentagon papers, ruling that to do so would be unconstitutional prior restraint as it posed no immediate risk of harm to compelling government interest. 

Relevant Doctrine 
The O'Brien Test: A three part test to determine if a content neutral law is constitutional. It holds that a law is constitutional if 
1) It is not related to the suppression of speech.
2) It advances an important government interest.
3) Is structured in such a way to achieve said interest with little to no restriction of free speech. 

Current Issues or Controversies
The juxtaposition of PC culture and the First Amendment.

My Questions & Concerns
1. In what (if any) situations aside from immediate threats to national security may an injunction be issued?
2. Is it possible to consistently regulate online speech that violates the First Amendment?

References 
Trager, R., Russomanno, J. & Ross, S.D. (2012), The law of journalism and mass communication. Thousand Oaks, CA: Sage Publications.