Why Freedom of The Press Matters

pressWatching the disgusting display of hatred at the Tampa Florida rally is proof positive that freedom of speech matters. Freedom of speech is enshrined in the first of the ten amendments to the Constitution. It is key to learning, developing and encouraging advancement of discussion. Discussion is the exchange of ideas that allow a salient person to make a decision that is fair and balanced.

The Framers of the Constitution cared a good deal about the freedom of the press, as the Appeal to the Inhabitants of Quebec, written by the First Continental Congress in 1774, shows:

The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honorable and just modes of conducting affairs.

The statement mentions some of the values that the Founders saw as inherent in the principle of freedom of the press: the search and attainment of truth, scientific progress, cultural development, the increase of virtue among the people, the holding of governmental officials to republican values, the strengthening of community, and a check upon self-aggrandizing politicians.

Free speech is not just central to the development of knowledge in the history of humanity; it may be central to the development of knowledge in any intelligent species. It is essential to democracy. Stalin, Hitler, Mao, and Imperial Japan, came into existence when freedom of speech was silenced. Groups of armed fanatics used violence to silence or intimidate their critics and adversaries. We officially have an executive office that chooses to use acts of intimidation like those that he used in board rooms to brow beat the press and free thinking public.
the following free speech rules:

1. As with all of the Bill of Rights, the free speech/press guarantee restricts only government action, not action by private employers, property owners, householders, churches, universities, and the like.

2. As with most of the Bill of Rights, the free speech/press guarantee applies equally to federal and state governments, which includes local governments as well as all branches of each government. In particular, the civil courts are subject to the First Amendment, which is why libel law and other tort law rules must comply with free speech/press principles. New York Times Co. v. Sullivan (1964).

3. The free speech and the free press clauses have been read as providing essentially equal protection to speakers and writers, whether or not they are members of the institutional press, and largely regardless of the medium—books, newspapers, movies, the Internet—in which they communicate. Newspapers enjoy no more and no fewer constitutional rights than individuals. The one exception is over-the-airwaves radio and television broadcasting, which has for historical reasons been given less constitutional protection. Reno v. ACLU (1997).

4. The free speech/press guarantee also extends to any conduct that is conventionally understood as expressive—for instance, waving a flag, wearing an armband, or burning a flag. It also extends to conduct that is necessary in order to speak effectively, as, for example, using money to buy a public address system or to buy advertising. Restrictions on independent campaign expenditures, for instance, raise First Amendment problems because restricting the use of money for speech purposes is a speech restriction. Stromberg v. California (1931); Buckley v. Valeo (1976); McConnell v. Federal Election Commission (2003).

5. The free speech/press guarantee extends not just to political speech but also to speech about religion, science, morality, social conditions, and daily life, as well as to art and entertainment. In the words of a 1948 case, “The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine.” And the guarantee extends to low-brow expression (such as jokes or even profanity) as well as high-brow expression. Winters v. New York (1948); Cohen v. California (1971).

6. The free speech/press guarantee extends to all viewpoints, good or evil. There is no exception, for instance, for Communism, Nazism, Islamic radicalism, sexist speech, or “hate speech,” whatever that rather vague term may mean. “Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” Gertz v. Robert Welch, Inc. (1974); New York Times Co. v. Sullivan (1964).

7. There is, however, a small set of rather narrow exceptions to free speech protection:

a. Incitement: Speech may be restricted if it is (i) intended to persuade people to engage in (ii) imminent unlawful conduct, and is (iii) likely to cause such imminent unlawful conduct. Outside this narrow zone, even speech that advocates lawbreaking is constitutionally protected. Brandenburg v. Ohio (1969).

b. False statements of fact: False statements of fact may generally be punished if they are knowing lies, though generally not if they are honest mistakes (even unreasonable mistakes). There are, however, some situations where even honest mistakes can be punished, and a few where even intentional lies are protected. Gertz v. Robert Welch, Inc. (1974).

c. Obscenity: Hard-core pornography is punishable if (i) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to a shameful or morbid interest in sex or excretion; (ii) the work depicts or describes, in a way that is patently offensive under contemporary community standards, sexual conduct specifically defined by the applicable state law; and (iii) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Miller v. California (1973).

d. Child pornography: Sexually themed live performances, photographs, and movies that were made using actual children may be punished even if they do not fit within the obscenity test. This does not cover digitized pictures, drawings, or text materials, which are constitutionally protected unless they are obscene. The Court has reasoned that child pornography is unprotected because it hurts the children involved in its making, so the exception only covers cases where actual children were indeed involved. Ashcroft v. Free Speech Coalition (2002).

e. Threats: Speech that is reasonably perceived as a threat of violence (and not just rhetorical hyperbole) can be punished. Virginia v. Black (2003).

f. Fighting words: Face-to-face insults that are addressed to a particular person and are likely to cause an imminent fight can be punished. More generalized offensive speech that is not addressed to a particular person cannot be punished even if it is profane or deeply insulting. Cohen v. California (1971).

g. Speech owned by others: Intellectual property laws, such as copyright law, may restrict people from using particular expression that is owned by someone else; but the law may not let anyone monopolize facts or ideas. Harper & Row Publishers, Inc. v. Nation Enterprises (1985).

h. Commercial advertising: Commercial advertising is constitutionally protected, but less so than other speech (political, scientific, artistic, and the like). Misleading commercial advertising may be barred, whereas misleading political speech cannot be. Commercial advertising may also be required to include disclaimers to keep it from being misleading; such disclaimers can’t be required for political speech. It is an open question whether commercial advertising may be restricted for paternalistic reasons, because of a fear that people will learn accurate information but will do bad things based on that information—for example, buy more alcohol, smoke more, or use more electricity when there is a shortage. This exception applies only to speech that proposes a commercial transaction between the speaker and the listener; it does not apply to speech that is merely sold in commerce, such as books, videos, and databases. 44 Liquormart, Inc. v. Rhode Island (1996).

8. All of the preceding rules apply to restrictions that relate to what the speech communicates—to the tendency of the speech to persuade people, offend them, or make them feel unsafe. Content-neutral restrictions that relate to the noncommunicative impact of speech—for instance, noise, obstruction of traffic, and so on—are easier to justify. The test for content-neutral restrictions is complicated, but the key point is that the government may generally impose content-neutral “time, place, and manner restrictions” so long as those restrictions leave open ample alternative channels for communication. All such restrictions, however, must be neutral as to content: if they treat speech differently based on content, they are generally unconstitutional even if they focus only on the time, place, and manner of the speech. Ward v. Rock Against Racism (1989).

9. Finally, all of the preceding rules apply to restrictions that are imposed by the government acting as sovereign and backed by the threat of jail terms, fines, or civil liability. They also apply to the government controlling what is said in “traditional public fora,” such as parks, streets, sidewalks, or the post office. But when the government is acting as, for instance, (a) employer, (b) K–12 educator, (c) proprietor of government property other than traditional public fora, (d) subsidizer, (e) speaker, or (f) regulator of the airwaves, it has broader (though not unlimited) authority. The rules for that, unfortunately, are too elaborate to set forth here. Connick v. Myers (1983); Tinker v. Des Moines Independent Community School District (1969); ISKCON v. Lee (1992); Rosenberger v. Rector and Visitors of the University of Virginia (1995); FCC v. League of Women Voters of California (1984).

According to a new Pew Research Center survey, 94% of Americans say they have heard about the current state of the relationship between the Trump administration and the news media. And what they’ve seen does not reassure them: Large majorities feel the relationship is unhealthy and that the ongoing tensions are impeding Americans’ access to important political news.

Moreover, both of these concerns are widely shared across nearly all demographic groups, including large majorities of both Democrats and Republicans.

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