The First Amendment and Freedom of Speech

For the most part, freedom of speech is the freedom to speak on any subject. There is an exception to the First Amendment, and these categories are obscenity, child pornography, fighting words, speech integral to criminal conduct, and incitement to immediate unlawful action. They are not protected under the First Amendment, therefore are punishable based on content. The lack of protection from the First Amendment protects children from people trying to exploit them, protects a group or single person from injury due to incitement or fighting words, and protect individuals from blackmails and extortion. Context is very important component of speech. These categories have well-defined boundaries and there are more that are unprotected, but don’t pertain to police officers. The Supreme Court took 15 years after obscenity was declared unprotected by the first Amendment to develop a constitutional definition. Obscenity is tested by the Miller test. This test shows obscenity if it appeals to the prurient, which is defined as an interest in sex, of the average person, illustrates hard-core sexual acts, and lacks any literary, political, artistic, scientific, or other value. The Miller test identifies specific hard-core sexual acts that must be established before it is considered obscene. If a piece has value it is not considered obscene even if they portray sexual activity. Child pornography is excluded because of the need to protect children from being exploited and sexual abused. Child pornography does not have to appease the obscenity portion of the Miller test. The first legislation for child pornography was passed in 1977. Since then, Congress has toughened statutes on child protection laws. As the internet progressed, Congress began to talk about child pornography on computers. Allowing children to view pornography allows adults to entice children into sexual activity. Other concerns brought to Congress was it was a moral concern too. Congress’s first action in this area was its passage of the Communications Decency Act of 1996 (CDA), which attempted to incorporate the Miller obscenity test and sought to limit the exposure of children to sexually explicit material on the Internet (Ward, para. 6). Fighting words are not excluded from the First Amendment for communicating ideas, insulting or offensive language. People have a right to say provocative things if they so choose. Fighting words are classified as to purely inflict injury, as the book stated. There are no set words that are automatically categorized as fighting words. Fighting words are highly debated, especially when it comes to police officers. The Supreme Court has made it unconstitutional to arrest someone who verbal attacks a police officers because they are trained to not react physical and therefore it would not be considered fighting words. The incitement to riot is depended upon if the words used in that situation creates a present danger. The Congress has a right to prevent such acts. The Supreme Court has said that for speech to lose First Amendment protection, it must be directed at a specific person or group and it must be a direct call to commit immediate lawless action (Incitement to Imminent, 2008). True threat is a speech that is meant to intimidate one or more specific people. The court does not have defined boundaries and have only used this defense in a couple of cases. One case in which true threat was upheld was Virginia v. Black. The Supreme Court stated that states could criminalize cross burning if they could prove it was a threat and not a form of expression. A stipulation with the true threat category is that it doesn’t have to be proved that one intends to carry out the threat, but that one communicated a threat. One complication is that the Supreme Court has defined the level of intent that is required for prosecuting true threat. Considering the list of unprotected speech, I don’t think I would add or take away any. They are all very valid with what I would deem acceptable. The First Amendment allows citizens to criticize the government and voice unpopular opinions and the very few stipulations to that law is warranted. The federal government passed a law to restrict freedom of speech in 1978. Congress thought that people would be sympathetic to France during the war, so the Sedition Act was passed. Many people were against the Sedition Act and it was never challenged before the Supreme Court. By 1801 the act expired, and Thomas Jefferson pardoned all those convicted under the law. The second attempt to restrict freedom of speech was in 1917 when Congress passed the Federal Espionage Act. This prohibited false statements that interfered with military forces of the country or promoted the success of enemy forces. The Supreme Court’s first decision in the area of free speech was in the case of Schenck vs. the United States, in which Justice Holmes wrote the opinion which sided with the government. He stated, “When a nation is at war, many things that might be said in time of peace are such a hinderance to its efforts that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any Constitutional right (Costly, para. 12). His view was limited to times of war, which clearly alter many different laws and government views. This one issue created many others, which raised the question what “clear and present danger means and when it should stop people from saying certain things. The Supreme Court established the clear and present danger test in the 20th century to determine when speech is protected by the First Amendment (Parker, para. 1). The clear and present danger doctrine played a major role in the Constitution’s beginning. It was placed to limit speech against the government. I think this is because government was so new that they wanted to make sure that everyone was on the same page and if they weren’t, make it to where they couldn’t be heard without prosecution. In later years, Justice Holmes wrote, we should be eternally vigilant against attempts to check the expression of opinions . . . unless they so imminently threaten immediate interference with the lawful and pressing purpose of the law that an immediate check is required to save the country (Parker, para. 8). His statement was after the case of Abram v. United States. In 1937, the clear and present danger test was accepted and between 1940-1951 it was used to decide twelve cases. In 1951, the presence of gravity of evil was introduced in the revised clear and present danger. Judge Learned Hand of the Second Circuit Court of Appeals adapted the revision in United States v. Dennis: Clear and present danger depends upon whether the mischief of the repression is greater than the gravity of the evil, discounted by its improbability (Parker, para. 16). The clear and present danger test has been revised and interpreted different ways depending on circumstances of the nation. The test is no longer used and is superseded by the imminent lawless action. The people didn’t like the danger test because it made it where it depended on judicial findings. Then the balancing test was in place which weighed the interest of speech. References Costly, A. (n.d.). A “Clear and Present Danger”. Retrieved November 26, 2018 Incitement to Imminent Lawless Action. (2008, May 12). Retrieved November 26, 2018 Kanovitz, J. R. (2015). Constitutional Law for Criminal Justice. New York: Routledge. O’Neill, K. F., & Jr, D. L. (2017, June). The First Amendment Encyclopedia. Retrieved November 26, 2018 Parker, R. (n.d.). The First Amendment Encyclopedia. Retrieved November 26, 2018 Ward, Artemus. The First Amendment Encyclopedia. Virginia and Kentucky Resolutions of 1798. Retrieved November 26,2018

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