FREEDOM OF SPEECH. A relatively recent idea in Western history

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1 FREEDOM OF SPEECH A relatively recent idea in Western history

2 JOHN MILTON Published Areopagitica in 1644, a pamphlet arguing for more freedom of speech, at the height of the English Civil Wars in the conflict between the Parliamentarians and the Royalists. Had suffered censorship over his attempts to publish arguments against divorce. Argued against the Licensing Order of 1643 which required authors to get government approval before publishing (prior restraint), something he considered an excuse for governmental control of thought. Did not immediately succeed in repealing the license but did have long lasting influence.

3 Quotes from Areopagitica When God gave him [Adam] reason, he gave him freedom to choose, for reason is but choosing; he had been else a mere artificial Adam. As good almost kill a man as kill a good book; who kills a man kills a reasonable creature, God s image; but he who destroys a good book, kills reason itself. Where there is much desire to learn, there of necessity will be much arguing, much writing, many opinions; for opinion in good men is but knowledge in the making. And how can a man teach with authority, which is the life of teaching, how can he be a doctor in his book as he ought to be, or else had better be silent, whenas all he teaches, all he delivers, is but under the tuition, under the correction of his patriarchal licenser, to blot or alter what precisely accords not with the hidebound humour which he calls his judgment?

4 PUBLICK OCCURRENCES Published in 1690 by Benjamin Harris, it was the first newspaper in America. It was shut down by colonial authorities after only one issue because they objected to the content. Fourteen years later John Campbell publish the first continuous newspaper: the Boston News-Letter. It was published by authority.

5 THE JOHN PETER ZENGER TRIAL Zenger printed a publication called The New York Weekly Journal. In 1735 this publication accused the royal governor of New York of rigging elections and allowing the French enemy to explore New York harbor, basically calling him a corrupt idiot. Because Zenger would not give up the authors names, he was charged with libel and jailed. In that day libel was anything published that was opposed to the government, regardless of truthfulness. Andrew Hamilton, the most famous lawyer in the colonies, took the case, admitting that Zenger published the articles but arguing that falsehood must make the libel. The jury came back in less than 10 minutes with the verdict: not guilty.

6 Hamilton s appeal to the jury: Every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny; and by an impartial and uncorrupt verdict, have laid a noble foundation for securing to ourselves, our posterity, and our neighbors, that to which nature and the laws of our country have given us a right the liberty both of exposing and opposing arbitrary power (in these parts of the world, at least) by speaking and writing Truth.

7 THE BILL OF RIGHTS The First Amendment, adopted Dec. 15, 1791 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 to petition the government for a redress of grievances.

8 By Charlotte Alter Promoted AND IT S BEEN A BATTLE OF INTERPRETATION EVER SINCE We Have a Free-Speech Problem in America Too Sticks and stones may break my bones, but names can never hurt me. Until they do, and then you'll pay for it. The massacre of Charlie Hebdo journalists and cartoonists in Paris is an assault on free speech everywhere. But the same media that so fervently defends free speech in the aftermath of this tragedy makes a habit of policing language, seizing upon offensive remarks of the famous, or not Promoted so famous, and using them to manufacture outrage in pursuit of an audience.

9 Background: TINKER VS DESMOINES, 1969 In Dec John and Mary Beth Tinker and friend Chris Eckhardt wore black armbands to school to protest the war in Vietnam. School officials told them to remove the armbands, and when they refused, they were suspended. They sued the school district claiming a violation of First Amendment rights.

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11 Ruling: The Supreme Court sided with the students, saying that students and teachers don t shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. Said that as long as an act of of expression doesn t disrupt classwork or school activities or invade the rights of others, it s acceptable. Impact: Lower courts have relied on Tinker in ruling son school attire, allowing nose rings and dyed hair, for example, but disallowing a T-shirt displaying a Confederate flag. In June 2008 (Frederic v. Morse) the Supreme Court ruled that schools can limit student speech that seems to advocate illegal drug use. Frederick s shirt said, Bong Hits 4 Jesus.

12 Background MILLER V. CALIFORNIA, 1973 In 1971 Marvin Miller, an owner/operator of a California mail-order business specializing in pornographic films and books, sent out a sexually explicit brochure to a Newport Beach restaurant. The owner and his mother opened the envelope and seeing the brochures, called the police. Miller was arrested on obscenity charges and found guilty, then later appealed.

13 Ruling The Supreme Court ruled that obscene material is not protected by the First Amendment. The Court devised a set of three criteria for determining obscenity: 1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; 2. Whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, specifically defined by applicable state law; and 3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Impact: The Miller test is still the standard used by courts to define obscenity.

14 Background: BETHEL V. FRASER, 1986 A high school student delivered a nominating speech on behalf of another student at a student assembly filled with elaborate and immature sexual innuendo. The school suspended the student for violating the school s no-disruption rule prohibiting obscene, profane language. The student sued, saying his First Amendment rights had been violated.

15 Ruling The Supreme Court ruled that school officials may prohibit student speech that is vulgar, lewd and plainly offensive. School officials have a responsibility to inculcate values into students. Permitting the speech would undermine the educational mission of the school as attendance at the assembly was mandatory, implying school sanction. The undoubted freedom to advocate unpopular and controversial views in school and classrooms must be balanced against the society s countervailing interest in teaching students the boundaries of socially appropriate behavior. Impact: Although speech that is legally obscene is not protected by the Constitution, this ruling made it clear that school boards can define what is and is not obscene.

16 Background: HAZELWOOD V. KUHLMEIER, 1988 Cathy Kuhlmeier, Leslie Smart and Leanne Tippett helped write and edit articles for their school newspaper, the Spectrum, about the impact of divorce on students and teen pregnancy in Using prior restraint, the principal refused to publish the two stories, saying they were too sensitive for younger students and contained too may personal details that could identify the pregnant teens.

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18 Ruling The Supreme Court ruled against the girls. The court said that a school newspaper isn t automatically a public forum in which anyone can voice an opinion, but rather a supervised learning experience for students. Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate concerns. Impact: Schools may censor newspapers and restrict other forms of student expression, including theatrical production, yearbooks, creative writing assignments and campaign and graduation speeches, but they are encouraged to balance high standards with students rights to free expression.

19 SO Because of the Hazelwood decision school officials, under certain circumstances, can impose prior restraint and can censor what students write for a student newspaper if the newspaper is not deemed an open forum. Can a student be punished for what he or she publishes on social media not directly related to the school?