Ch 3: Speech Distinctions

Topic Overview
Chapter 3 focuses on different categories of speech as they are in conflict with First Amendment rights. The court must determine the boundaries between protected and disruptive speech, in some cases weighing the benefits of expression against any harm it poses to competing values case by case (ad hoc balancing), and in other cases weighing a broad category of speech against competing social interests (categorical balancing). History demonstrates the tendency for stricter government control on free speech during wartime, raising the importance of national security as a priority over first amendment rights under certain conditions. There are tests in place that have been developed through various cases which aid the court in determining if certain speech should be protected or punished. It is important to remember that speech is not just spoken word, but any form of expression, this extends to mass media and symbolic speech. 

Defining Key Terms
Negligence: The failure to exercise reasonable or ordinary care. 

Fighting Words: Words not protected by the First Amendment because they cause immediate harm or illegal acts. 

Hate Speech: Category of speech which includes name calling and pointed criticism that degrades others on the basis of race, color, gender, ethnicity, religion, national origin, disability, intellect or the like. 

True Threat: Speech directed toward one or more specific individuals with the intent of causing listeners to fear for their safety. 

Important Cases
Tinker v. Des Moines Independent Community School District (1969): Centering around the rights of two students to wear anti-war armbands in school. The Supreme Court upheld the constitutional first amendment rights of students in public schools. The Court ruled that the wearing of the arm bands represented constitutionally protected symbolic speech and that it was not found to be disruptive of school activities.

Elonis v. United States (2015): Concerning threat and intent to threaten via rap lyrics and true threat. Elonis was originally sentenced to jail however the court reversed its decision and remanded the case. 

Relevant Doctrine
Clear and Present Danger: Doctrine which establishes that restrictions on First Amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent danger.

Incorporation Doctrine: Expanding on the idea of free speech protection by incorporating the Fourteenth Amendment's due process. This guarantees First Amendment rights on a state level, limiting the power of local/state gov to censor speech. 

The Incitement Test (Brandenburg/Hess): Created to replace the vague clear and present danger test. This test serves to determine when speech is sufficiently likely to prompt illegal action that it no longer deserves First Amendment protection. Speech may be punished if
1. It is directed toward inciting immediate violence or illegal action and 
2. Likely to produce that action. 

Media Liability for Negligence: The Courts generally side with the media in such cases concerning media incitement to harm. To win a lawsuit over media negligence, the plaintiff must prove breach of media's duty of care because the content posed a
1. Reasonable foreseeability of harm or 
2. Proximate (directly related) cause of the harm. 

Proximate Cause: Determining whether it is reasonable to conclude that the defendant's actions led to the plaintiff's injury. 

Fighting Words Doctrine: The First Amendment does not protect words that 
1. Are directed at an individual and 
2. Automatically inflict emotional harm or trigger violence 

The Tinker Test : Only when speech inside or adjacent to the school during school hours disrupts school activities may it be punished. 

The Fraser Approach: When student speech occurs during a school sponsored event the student's liberty of speech may be curtailed to protect the school's educational purpose, especially when young students are in the audience. 

The Hazelwood Test: When a school creates and supervises a forum for student speech, such as a student assembly or newspaper, the school endorses that speech and it not only permitted but required to control the content to achieve educational goals. Schools must exercise a supervisory function to promote a positive educational environment in all school sponsored mediums. 

Current Issues or Controversies
There was an interesting interview several months ago with Ben Carson on transgenderism which prompted me to think about gender pronouns. Carson has a controversial view point, seeming not to believe in the legitimacy of transgenderism. In the interview when questioned on whether there should be tolerance for transgender people he responds "Of course there should be tolerance. Let me put it this way. Tolerance goes in both directions and I believe that our Constitution protects everybody and every group. They have equal rights. But nobody gets extra rights. Nobody gets to redefine everything for everybody  else and then make them comply to it... that's not tolerance". Considering this, I wonder in the future if and how the law will deal with gender pronouns. Will it be considered hate speech to address someone in a way other than their preferred pronouns? Will a new category of speech be defined by this? 

My Questions & Concerns
1. How is intent determined? Many of these tests are contingent upon intent, e.g. intent "of causing the listener to fear bodily harm or death". How is intent proved? 

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