Chapter 2 - The First Amendment (Part 2)

1/21/2009 PAGE \* MERGEFORMAT 1 January 21, 2009 MMC 4200 Professor Sandra Chance Video Break (1/21/2009) Freedom of Speech Colleed Mohammad is a racist who organizes the Million Youth March Giuliani said it was a hate march The Judges overruled Giuliani and said that he can?t stop them Letterman is an artist who drew Giuliani as Hitler and he kept getting arrested Letterman also said that people who ask for money are just exercising free speech, even though they being arrested and driven away Why protect the first Amendment? It allows us to evolve as a society It allows democracy to flourish By not allowing free speech, groups that cannot express themselves or make themselves heard may get violent and desperate As the government is supposed to serve the people who are being goverend, if they are not doing their job, then the people can let them know Why is the First Amendment important? Ultimate protection for communicators. Necessary to the operation of a democracy. Restricts all governments (federal, state, and local gov?ts.) from punishing critics --effective check on gov?t power. If you can?t criticize theo government then it becomes all powerful and can do whatever they want to do Helps in the search for the truth. Doesn?t guarantee it, as people?s definition of ?truth? is always different Individuals free to express themselves feel more fulfilled Your ability to express your emotions makes you feel better, put simply First Amendment Theories Marketplace of Ideas Good ideas and the truth prevail in a free market John Milton Areopagitica Self-Governance Informed citizenry will intelligently elect it leaders Alexander Meiklejohn (1872-1964) Check on Government Abuse Allows investigation and criticism of the government Prof. Vincent Blasi Safety Valve Helps let off steam and supports a stable and adaptable community which contributes to orderly change Professor Thomas Emerson Fulfillment Natural and enriches our lives Professor Laurence Tribe Regulating Expression ?Congress shall make NO LAW?? Absolutist view Times when freedom of expression must give way to other personal and social interests National security Public order Judging the First Amendment Judges have a duty to uphold individual rights protected by the Bill of Rights Judges are the guardians of free expression. They can?t go by popularity Brown v. Board of Education wasn?t popular, but it protected everyone?s rights No absolutes - Judges usually decide cases by weighing conflicting interests. Judges use a number of analytical and procedural tools. 14th Amendment Adopted in 1868 Prohibits states from passing laws which violate the federal Constitution Incorporation There are still really dumb laws on the books that may conflict with federal laws and until they are resolved, they stay on the books. For example, it?s illegal in Florida to have sexual relations with a porcupine, and it?s an offense to shower nation. ?State Action? Required Government action that infringes on expression ? laws, court orders, actions of public officials Individuals cannot bring 1st Amendment cases against each other, it can only be done if the Government is restricting your free speech rights. This also applies to private businesses When John Rocker said his terrible things, he had a contractual agreement with the Atlanta Braves and they had the right to enforce their contract and punish him Bias against content regulation Tendency not to defer to legislatures and lower courts decisions which restrict free speech They understand the legislators are heavily influenced by popular decision They know the difference between what is popular and what is right. Standards of Review: (Tools Judges Use) Strict Scrutiny (fundamental rights) Rational Basis (other laws) Scrutinize regulations for OVER-BREADTH, VAGUENESS and ensure ?LEAST DRASTIC MEANS? to accomplish a ?COMPELLING? government interest. They are focusing very narrowly on these regulations Over-broad prohibits a wide range of speech it may not apply to Vagueness means it?s written unclearly Least Drastic Means is that the law has to be narrowly tailored to accomplish a compelling government interest!