Chapter 3: Speech Distinctions

Topic Overview:
This chapter discusses when the government has the right to have agency over the first amendment. Usually, the government would limit our freedoms if there were to be a threat to our national security i.e., clear and present danger. In addition, when the government has the right to stop someone or a group of individuals from expressing their freedom of speech if there is "imminent lawless action." This chapter also questions the media's role and if it has the ability to incite harm.

When individuals express their views it can sometimes lead to offensive speech but it is often difficult to note the boundaries of legal and illegal behavior under the first amendment. When words are not protected they are known as fighting words. Another term that could fall under that category would be hate speech because it can make others feel unsafe and stop them from fully participating in their first amendment rights. However, it is usually hard to win this argument in court. It is imperative to note the differences between types of speech because the government can only act when there is an immediate danger. There are specific forums in which people are legally able to protest or express their opinion.

Defining Key Terms:

• USA Patriot Act: The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. The act gave law enforcement agencies greater authority to combat terrorism. 
• Chilling Effect: The discouragement of a constitutional right, especially free speech, by any government practice that creates uncertainty about the paper exercise of that right. 
• Clear and Present Danger: Doctrine establishing that restrictions on First Amendment rights will be upheld if they are necessary to prevent an extremely serious and imminent harm. 
• Incorporation Doctrine: The 14th Amendment concept that most of the Bill of Rights apply equally to states. 
• Negligence: Generally, the failure to exercise reasonable or ordinary care. 
• Proximate Cause: The legal determination of whether it is reasonable to conclude the defendant's actions led to the plaintiff's injury. 
• Fighting Words: Words not protected by the First Amendment because they cause immediate harm or illegal acts. 
• Underinclusive: A First Amendment doctrine that disfavors narrow laws that target a subset of a recognized category for discriminatory treatment. 
• Viewpoint-based Discrimination: Government censorship or punishment of expression based on the ideas or attitudes expressed. Courts will apply a strict scrutiny test to determine whether the government acted constitutionally. 
• 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: The Court established the school classroom as a location that is "peculiarly the marketplace of ideas" where speech may be regulated only to prevent a "substantial disruption" to school activities.  

Elonis v. the United States: The Supreme Court relied on statutory construction to conclude only that a conviction for threats online, like any criminal conviction, requires a showing that the defendant intended to violate the law and make a true threat. 

Relevant Doctrine:

Fighting Words

Under the Supreme Court's 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

True Threats 

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

Incitement/Brandenberg Test

Advocacy of illegal action may be punished if it is:

1. Directed at inciting or producing imminent lawless action
2. and likely to incite or produce such action

Media Negligence:

To win a lawsuit for injury caused by media negligence, the plaintiff must prove a breach of the media's duty of care because the content posed a:

1.  Reasonable foreseeability of harm
2. Proximate (directly related) cause of harm

Current Issues or Controversies:

 Trump has incited violence, hate speech, and has never publicly condoned such behavior. He also gets away with a lot of the things that he decides to say in rallies and social media.

My Questions/Concerns:

1. What will it take for Facebook to regulate what people post?

References:

Trager, Robert., Ross, Susan Dente., & Reynolds, Amy (2018), The Law of Journalism and Mass Communication. Thousand Oaks, CA: Sage Publications.