Does the 1st amendment grant Americans freedom from punisment for speech or just prevent the government from prior restraint?
Yes, although the First Amendment is not absolute. Untruthful speech can be sanctioned, for example.
So if someone is raising a riot with truthful speech it can’t be punished? Interesting…
IANAL, but wife is and I’ve been learning for years.
- First amendment applies to the Federal government. It restricts what the Federal government may do. And in general they may not punish anyone anywhere for any speech itself. teh act of speaking is what’s protected, nothing more. And “speech” and “speaking” are defined broadly to mean any form of communication.
A citizen can sue for libel or slander if someone’s untrue speech injures them, but that’s not a First Amendment governmental issue, that’s a tort between citizens.
- There are a few, very carefully carved out exceptions to the First Amendment. One is called “Clear and Present Danger”, and refers to situations like the proverbial shouting “Fire!” in a crowded theater or inciting a riot.
Law enforcement acts within the constititutional limits in preventing (i.e. exercising prior restraint / censoring) PROVIDED the danger of other harm is both clear and present. In other words, you gotta stop the speaker immediately before the critical moment the crowd goes nuts. The truth or untruth of the speaker’s exhortations is immaterial. The issue is the imminent danger of harm.
Naturally in human affairs things are seldom as neat as that; Cops have acted too soon and also too late to stop a brewing problem. The subsequent cases have gone both ways.
Pornography regulation is another example of a First Amendment exception.
- The ensuing damage from a riot or theater stampede is always actionable, both civilly and criminally.
Bottom line: the First Amendment says they can’t censor you, but it doesn’t mean you’re immunized from the consequences of your speech.
Actually your first point reminds me of something.(Something alot of stupid people think is true but isn’t.) I’ve seen alot of people on other newsboards whine when the moderators delete posts. They’ll complain that they’re denying them the right of free speech. However since they’re done by private individuals they have every right to dump your posts if they want. So in a nutshell it’s like you say, you have the right to free speech but I don’t have to help you do it.(I’m surprised those people haven’t complained that the local paper won’t publish their “articles”)
Dave,
In the legal biz, the usual phrase is “The right of a free press attaches to the man who owns one.” The Feds can’t control the owner, but the owner can certainly control what he/she publishes on behalf of others.
That’s the truly unique power of the internet, where each of us now has the ability to set up a website and affordably publish directly to the world, eliminating all censorious middlemen.
Either you need to learn more from your wife, or she needs to review her notes from law school. While the first amendment initially only applied to the federal government, a series of decisions in the early part of the last century applied its strictures to the states via the 14th amendment’s due process clause.
The upshot is that if the first amendment forbids an action by the federal government, it also forbids similar action by state and local government. **
This is also false, because the degree to which a private citizen may sue for libel and slander is a policy decision made by the state, and thus is subject to first amendment scrutiny.
See, e.g., New York Times v. Sullivan, where the Supreme Court held that the first amendment requires a higher standard of proof (“actual malice”) in order for a public figure to assert a libel claim.
The government can also regulate commercial speech (i.e., advertisements). If you make a false claim in an ad, then you can be fined, and can’t use the first amendment as a defense.
I think its clear but just to make sure - I think he was using that as an EXAMPLE - there are other (above posted) examples of restrictions.
I hate it when people raise this example.
It’s not common sense, as everyone seems to think. It’s one of the most pernicious abuses among the well-known Supreme Ct ruling.
The case is SCHENCK v. UNITED STATES (1919) and it has direct application to the original topic. Sheck was convicted for printing up and mailing 15,000 leaflets protesting the Spanish American War, which was very unpopular, but which many people didn’t want to protest, for fear of seeming ‘unpatriotic’ (In a famous historical anecdote, Thoreau was locked up for protesting the use of his taxes for this war. His friend paid the $1 (or 5 or ten, I don’t recall) so he was freed against his wishes. He was not happy)
The first page of the leaflet was the text of Section I of the 13th Amendment to the Constitution. The flip side of the leaflet had advice like “Do not submit to intimidation”, “Assert your Rights”, “your right to assert your opposition to the draft”, and “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.” Specifically, Schenck was arrested for passing along this information because it could hinder the government’s enlistment and recruiting efforts.
Basically, it was a mild version of the 1960s Civil Rights and anti-war pamphlets.
This is not an isolated case. Many famous people in the first third of the 20th century (labor leaders, suffragettes, the Pulitzer prize winning crusader journalist Upton Sinclair, even some politicians) were arrested for doing nothing more than reading excepts from the Constitution. Not as part of a speech - it was actually an established protest measure to stand up before a crowd and read key passages from the Constitution. The protesters knew that The Powers That Be (local or federal officials, anti-union industrialists with pinkertons and the ear of the local establishment, etc) had agents on the outskirts of the crowd, ready to for them to cross that line, once they’d been warned not to.
In fact, even assembling to discuss matters that the authorities did not wish to be discussed (work conditions, public policy, corruption, women’s suffrage) was often enough to trigger arrests on the spot
I know it’s tempting to say that we must use common sense in applying the First Amendment, and that the courts will not abuse such ‘common sense’, but history shows that courts have frequently abused this principle, whenever a protest was too inconvenient, especially when they had no good opposing argument to stand on except popular sentiment and contemproary bias.
Shenk went to jail (I forget the exact sentence, but it was in the range of 10-15 years) for telling people they had rights. There were numerous other cases built on this ruling, including other Supreme Court rulings, that would simply outrage us today. We have the benefit of hindsight, and of having cast off the specific prejudicies that they believed were ‘human nature’ (or similar) – i.e. more thna once a judge has said that it would be desirable to cast off a certain prejudice or attitude, but since it would be impractical to expect that to ever happen, Consitutional rights must be suppressed.
I’m not one of those radicals who thinks the government is evil, and I generally have great respect for the wisdom of the Supreme Court. However, there have been some real blunders, and it is our duty to learn their lessons. All too few citizens actually bother, and (according to Schenk v. US) no one else may inform them!
No. One of the leading cases in this area is Brandenburg v. Ohio where a television station had a report on a rally, I think it might have been a Klan rally, in which the leader said something to the effect of “we’ll take to the streets later.” Now, neither the television station nor the rally leader were punished for this, but the case led to a rule on public speech. If the speech
- incites violence or attempts to incite violence and
- that threat is imminent
a person can be punished for that speech. Even if the underlying subject for that speech happens to be truthful, it’s irrelevant if it leads to imminent violence.
Likewise, there’s a recent case Rice v. Paladin where a book publisher was held liable for a “how to” book on hit-men because someone used it to actually kill someone. The book was 100% truthful, but it also led to violence and that’s not acceptable.
Thoreau died in 1862, years before the Spanish-American War was fought. His refusal to pay taxes occured during the Mexican War.
And Schenk involved actions committed during World War I, not the Spanish-American War.
Reality Check said : “The government can also regulate commercial speech (i.e., advertisements). If you make a false claim in an ad, then you can be fined, and can’t use the first amendment as a defense.”
BUT … corporations (and all the politicians they own) are making headway in changing this.